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FOR EDUCATIONAL USE ONLY

Crim. L.R. 1989, JUN, 396-411

Criminal Law Review

1989

Article

SUPERIOR ORDERS - TIME FOR A NEW REALISM

Ian D. Brownlee.

Copyright (c) 1989 Sweet & Maxwell Limited and Contributors

Subject: ARMED FORCES. Other related subjects: Criminal law

Keywords: Criminal conduct; Defences; Military lawAbstract: Whether soldier able to rely on defence of obedience

to superior orders when accused of criminal conduct.

*396 The recent shooting dead by British soldiers ofthree I.R.A. members in Gibraltar [FN2] has led to a renewalof the allegations that the British government is operating a"shoot-to-kill" [FN3] policy against Republican militants.Such allegations have always been strenuously denied bythe British authorities and it is not intended in this article toenter that particular debate, important as it is in the contextof the supremacy of the Rule of Law. What will be examinedhere is the question of how far under English law a soldiercould, and should, be able to rely on a defence of obedienceto superior orders when facing an accusation that he or shehas committed a criminal act.

This question is addressed not because the author wishesto imply that the soldiers in Gibraltar either committed anycrime or were ordered to do so. However, in times of civil

emergency, such as that which now exists in Ireland,military personnel are bought into closer contact with thecivilian population and with the civilian law than is usual.[FN4] They are asked to play a role for which they areprepared neither by outlook nor (on the whole) by training.

They are expected to comply with both military disciplinebased on obedience to superiors and to the ordinary

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criminal law with its emphasis on individual responsibility.And all the time, as the Americans found out in Vietnam, theclose attention of the world media makes each act, everydecision a piece of public property, to be used to condemn

when mistakes are made. This is the basis of what legalwriters from Dicey [FN5] forward have referred to as thepractical dilemma of the solider; he faces the risk ofcondemnation by a civil court if he obeys his orders and therisk of military discipline (even court martial) if he does not.

In circumstances such as these the precise legal effect ofsuperior orders is likely to be of crucial importance to theindividual soldier. Yet the most that can be said with anycertainty in relation to this question is that the answerremains uncertain. A divergence of approach exists

between those whose *397prime concern is for themaintenance of the supremacy of law and those who areresponsible for safeguarding military discipline andeffectiveness. Most legal writers seem to prefer the "no-defence" stance because "it subordinates military law tocivil law and illustrates the status of military command asbeing subject to the law of the land." [FN6] Certainly, thepresent editors of the British Manual of Military Law followthis approach, [FN7] and the fact that there is little recent

English case law on this point may be due in no small partto the stance which the Manual, in seeking to encapsulatethe common law position, has taken against the validity ofsuch a plea.

While such a stringent approach may preserve the logicalintegrity of the criminal law, it is submitted that it fails toaddress the real dilemma of the soldier. This dilemma islikely to arise increasingly where military forces aredeployed not on conventional battlefields but rather insupport of the civil power. [FN8] The argument which thisarticle will advance is that, at least as far as militarypersonnel are concerned, it is time to re-examine Englishcommon law and to consider whether on the grounds ofindividual justice and public policy some concessions oughtnot to be made in the direction of allowing at least a partialdefence of superior orders.

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Alternative approaches to a superior orders defence

For the purposes of the present analysis it is sufficient toidentify three fairly all-embracing theoretical responses to

the soldier's claim that "I did what I did because I wasordered to do so by someone whom it was my duty toobey."Position A. Absolute and automatic justification of thesubordinate concerned. The superior who was the author ofthe orders becomes the principal to any offence [FN9] onthe maxim, "respondeat superior."Position B. Personal liability of the subordinate. This "no-defence" position is effected by affixing the individual

soldier with both an unavoidable obligation to evaluate eachorder that he or she is given and a personal responsibilityfor ensuring that only lawful orders are obeyed. It issometimes referred to as the position of "absolute" liability.[FN10]Position C. The middle position, which has been called,[FN11] "the manifest illegality principle." According to thisapproach a soldier is entitled to a *398 defence on thebasis of superior orders where the order on which the

defence is based was not of such a nature that it shouldhave been palpably obvious to the reasonable recipient thatit called for an illegal act to be done.

Although Position A--respondeat superior--is well knownin international law and forms the basis of many continentalapproaches, [FN12] judges within the common law traditionhave almost uniformly rejected it. Lord Hailsham L.C., forexample, in the case of Maharaj v. A.G. of Trinidad and

Tabago in 1979 [FN13] remarked obiter, that whilst acommon law the Crown might have been immune from

prosecution for the acts of its servants, nonetheless,"These servants [...] from the highest Minister to the

private soldier driving a truck, were personally liable fortheir own misdoings, negligences and crimes. Superiororders, even from the sovereign himself, afforded no excuseor immunity from process civil or criminal ..."

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More recently in the Australian case of A v.Hayden,Murphy J. [FN14] observed,

"In Australia it is no defence to the commission of acriminal act or omission that it was done in obedience to the

orders of a superior or the government. Military and civilianshave a duty to obey lawful orders, and a duty to disobeyunlawful orders."

Taken together, those dicta illustrate one of the twopresumptions on which common lawyers have traditionallypredicated the rejection of superior orders as a defence--namely that its rejection was a necessary check on theabuse of executive prerogative. The validity of thispresumption will be examined below.

The rejection of position A may seem to imply the

acceptance of position B, absolute liability, and indeed mostcommentators conclude that this does represent theposition in English Law. There is little direct authority on thepoint, but the following statement in Halsbury's Laws [FN15]is often taken as indicative of the settled law:

"The mere fact that a person does a criminal act inobedience to the order of a duly constituted superior doesnot excuse the person who does the act from criminalliability ... Soldiers and airmen are amenable to the criminal

law to the same extent as other subjects ... Obedience tosuperior orders is not in itself a defence to a criminalcharge."

Amongst the textbook writers, Smith and Hogan, whilstacknowledging the lack of direct authority, are similarly ofthe opinion that "it is safe to assert that it is not a defencefor D merely to show that the act was done by him inobedience to the orders of a superior, whether military orcivil" unless the *399 fact of the orders gives rise to amistake of fact negativing mens rea or negligence wherethat is the basis of culpability. [FN16]

In this general statement they are in accord with GlanvilleWilliams, [FN17] although the latter takes a divergent viewon whether orders are a defence where they give rise to areasonable mistake of law. Such a situation arises where asoldier intentionally or recklessly causes what in law

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amounts to the actus reus of a criminal offence butmistakenly believes it to be a lawful act because it has beenordered by a lawful authority. Smith and Hogan feel that theproper course in these circumstances is to apply the "harsh

general rule" that mistake of law, whether reasonable ornot, is no defence. Since knowledge that an act is forbiddenby law is usually no part of mens rea, then, by implication,lack of that knowledge on whatever grounds is irrelevant.[FN18] Williams on the other hand argues that there issufficient authority for placing members of the armed forcesin a special category of persons for whom a defence ofsuperior orders is available "where the orders were believedto be lawful, at any rate if the belief was reasonable."[FN19]

Williams view appears to be closely akin to position C,above, the "manifest illegality" principle. On thisformulation, a soldier is entitled to raise in his defence aclaim to have acted on the orders of his lawfully appointedsuperior. The efficacy of this defence then stands to beadjudicated by the court on the basis of the reasonablenessof the soldier's belief. Unless the act or omission impugnedwas so palpably unlawful that no reasonable person in theposition of the recipient could fail to discern its unlawful

quality, the fact of the order amounts per se to ajustification.

It is Williams' contention that the weight of Englishauthorities follows this via media, departing from the rigidstrictness of a "no-defence" position to allow soldiers an aposterior defence where their decision to obey orders isheld to have been reasonable in all the circumstances. Hecites in part support of this the summary of the lawcontained in editions of the Manual of Military Law publishedbefore 1944. Subsequent editions (including the present)have departed from that earlier position, he contends, inorder to avoid any incongruity between domestic militarylaw and the Charter of the International Military Tribunal(the Nuremburg Charter) which was established to trySecond World War criminals and which specificallyprohibited reliance on superior order defences. [FN20]

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If Williams is correct in this explanation, [FN21] then theassertion in the Manual that the "no-defence" position(position B, above) is the "better view" of English Law canbe accounted for by the particular and exceptional historical

circumstances which surrounded the Nuremburg Charterand trials. In any *400 event, whilst it is published by thegovernment (and authorative in that sense) and is relied onby the Military Forces for interpretation of the law, theManual has, of course, no statutory force and cannot betaken as conclusive of either of the conflicting viewpoints.

The symbolic importance of the war crime trials

Simply to conclude, however, that the Nuremburg Charter

has no direct application in English law is not to deny thatthe events surrounding Nuremburg have been unimportantin influencing the subsequent development of this area indomestic criminal law. Their symbolic significance findsechoes, for instance, as recently as 1976 in dicta in the caseof Abbot v. The Queen. [FN22]. The question for the PrivyCouncil in this appeal was whether duress was capable ofproviding a defence to a charge of murder. In this contextLord Salmon observed [FN23]

"In the trials of those responsible for wartime atrocitiessuch as mass killings of men, women or children, inhumanexperiments on human beings, often resulting in death, andlike crimes, it was invariably argued for the defence thatthese atrocities should be excused on the ground that theyresulted from superior orders and duress: if the accused hadrefused to do these dreadful things, they would have beenshot and therefore they should be acquitted and allowed togo free. This argument has always been universallyrejected. Their Lordships would be sorry indeed to see it

accepted by the common law of England."The same reasoning resounds through dicta of Lord

Hailsham in the leading case of Howe in 1987. [FN24] Herehe referred to superior orders again in conjunction withduress defences and, distinguishing the former from thelatter, cited with approval the prohibition on superior order

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defences which, as we have seen, is contained in theNuremburg Charter.

Dicta of this kind serve to illustrate the second mainpresumption on which the "no-defence" opposition to the

via media on superior orders is predicated. This revolvesaround an overarching acceptance of a certain view whichinternational lawyers took in response to the terribleoutrages of the war criminals at the end of World War Two.A considerable body of international jurisprudence, bothbefore and since, has concerned itself with evaluating thatparticular view, and it is beyond the present purposes toexamine it here. [FN25] Two points will, however, be madein connection with it. The first is that the standing ofsuperior order defences at international law (whatever that

may be) is in no way conclusive of the domestic law ofEngland or any other jurisdiction. It is often noted in thiscontext [FN26] that both German and Israeli law nowexpressly recognise the defence and even in relation to"grave *401 breaches" of humanitarian law the framers ofthe First Geneva Convention following the Second WorldWar declined to incorporate directly the Nuremburg charterprohibition. [FN27] Instead, it was left to individual signatorystates to decide whether their legal rule of responsibility

should be absolute or qualified.The second point to be made concerning this apparent

justification of the "no-defence" position by relation to theactivities of war criminals is that it excludes too much by itsoverstringency. Questions of scale are not irrelevant. It mayserve the interests of justice that the principal commandersof the Nazi extermination gangs should not escape theirindividual deserts through "an exaggerated andpreposterous notion of vicarious liability." [FN28] But is it sopreposterous to query whether the same stringent andabsolute rule should apply to the driver of an army vehiclewho, in response to an order from his N.C.O., fails toobserve a traffic signal while in pursuit of a fleeing terrorist?[FN29]

It can be argued that, despite rhetoric to the contrary,the common law has always been prepared to countenance

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this sort of pragmatic approach and to allow superior ordersto operate, not merely in mitigation of punishment but incomplete exoneration, where the justice of a particular casewas taken to demand this. Putting it at its lowest, it is

submitted that, in substance if not in form, Anglo-Americancommon law has never consistently excluded the"manifestly illegal" principle. If this submission is correctthen the application of this principle to future "EmergencyPowers" situations must be all the less objectionable, evento the staunchest advocates of law's internal consistency. Areview of the case law which does exist provides evidencefor this contention.

Approaches within the Common Law to the soldier's

dilemma

(a) The English cases

Perhaps the earliest cases in the United Kingdom werethose involving the various functionaries who had takenpart in the execution of Charles I in obedience to thedictates of the Commonwealth. The cases of Cooke, [FN30]the Chief Justice of Ireland who had presented the king's

indictment, and of Axtell [FN31] who commanded theexecution guard, are well known. Both men were convictedof treason when the Restoration courts before which theywere separately arraigned refused to allow obedience to thede facto authority to amount to a defence.

At first sight this may seem fatal to the argument thatsuperior order defences may be relied upon and Williams,who as we have seen appears to favour position C, the"manifest illegality" principle, resorts to describing thedecision in Axtell as "a montrous one." However, a more

compelling rebuttal *402 is offered by Green. [FN32] Heobserves that in Cooke's case there was constant referenceto the fact that the accused was learned in law and couldtherefore reasonably be expected to appreciate theillegality of what his Parliamentarian masters werecommanding of him. Axtell was a common soldier and sothe same argument cannot be applied to account for the

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rejection of the superior order defence in his case.Nonetheless, Green sees a similar reasoning at work andexplains the decision on the grounds that the court took theline that even a common soldier must have known that it

was an act of treason to participate in any way in theexecution of one's king.Such an approach is not in the least incompatible with

the "manifest illegality" principle, and Green suggests thatthe same reasoning may apply equally to the decision inKidd's case. [FN33] Kidd was convicted of piracy, but threeothers who had received booty were acquitted on thegrounds that they were "servants" on Kidd's ship, ratherthan able seamen. This distinction was taken by the judge,Ward L.C.B., to imply that they might be more constrained

to obedience and that their acts might be less voluntarythan if they had been ordinary crewmen. Although a servantmight indeed act voluntarily at times, and so possesssufficient mens rea to be guilty of a crime, he might alsosometimes be said to be "under the compulsion of hismaster" and this, the learned Chief Baron said, wouldnegative the mens rea which was a required element ofpiracy. Not every order of a master would have this effectfor "a servant is not bound to obey his master but in lawful

things." The three accused had claimed that they believedKidd's orders were within the King's commission andtherefore lawful; significantly for the present analysis, the

judge directed the jury that the men were entitled to beacquitted if this belief was reasonable even if it was, in fact,mistaken.

Reference may also be made to the nineteenth centurycases of James [FN34] and Trainer. [FN35] Although thesubstantive decisions in these cases have been treated asturning on claim of right and absence of negligencerespectively, [FN36] each contains obiter dicta redolent of"manifest illegality." In James, workmen who, on the ordersof their employer, had stopped up the airway of a minebelonging to a competitor sought to be excused liability onthe grounds that they had acted in a bona fide belief thattheir employer had a lawful right to give such orders.

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Although Lord Abinger C.B., held that superior ordersprovided no defence to a charge of murder, he appears tobase this decision on the ground that murder was an actmalum in se and, therefore, "[i]f a master told his servant to

shoot a man, he would know that was an order he ought todisobey." [FN37]In Trainer a locomotive passed a danger signal and

collided with a preceding train, killing some of itspassengers. Both the driver and fireman of the locomotivewere charged with manslaughter, but the fireman pleadedthat he should be excused on the grounds that companyrules required him to be *403 subject to, and obey, theorders of the driver and that it was the driver who hadordered the locomotive through the signal. In his judgment

Willes J. considered the specific situation of an inferiorofficer ordered by a superior to undertake an act which inthe event proved to be unlawful. He concluded, [FN38]

"that in a criminal case an inferior officer must bejustified in obeying the directions of a superior, notobviously improper or contrary to law-- that is, if an inferiorofficer acted honestly upon what he might not unreasonablydeem to be the effect of the orders of hissuperior, he wouldnot be guilty of culpable negligence, those orders not

appearing to him at the time, improper or contrary to law."James and Trainer were both cases involving civilians. In

Keighley v. Bell, Willes J. [FN39] returned to the question ofsuperior orders, this time in relation to military personnel.

This case involved a claim for a civil remedy by asubordinate officer following his detention for trial for aperiod which was, in the outcome, unlawful. The detentionhad been ordered by his superior, and in his judgmentWilles J. considered the position of those soldiers who hadobeyed the order and imposed the detention. He was of theopinion that, "an officer or soldier acting under the orders ofhis superior--not being necessarily or manifestly illegal--would be justified by his orders." [FN40]

It is true that in a case decided in the very next law termthe same judge appears to have departed from this lenientposition. That later case, Dawkins v. Lord Rokeby [FN41]

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concerned a dispute between a subordinate officer and hiscommander (i.e. two people subject to military law), butWilles J. went on to consider the question of an injury doneto a civilian by a serviceman. Citing "the necessity and the

absolute necessity of the maintenance of the constitutionalliberties" of the ordinary citizen as justification, he statesthe view [FN42] that:

"Ordinary citizens, who do not constitute a part of thearmy, are not bound by anything in the Articles of War inrespect to them; and, if the military should injure them intheir persons or property, not even the command of asuperior officer will justify a soldier in what he does, unlessthe command should turn out to be legal and to be withinthe limits of the protection given by the Mutiny Act and the

Articles of War."Both dicta were of course strictly obiter but cannot be

dismissed merely on that ground. They may bedistinguished, however, on the basis of the differingcontexts which the learned judge had in mind in attemptingto lay down general principles. It is clear from the reportsthat in Keighley Willes J. is thinking of the position of thesoldier who does a criminal act "in time of actual war,"[FN43] whilst the dictum in Dawkins concerns justification of

civil *404 wrongs "in time of peace." [FN44] This distinctionis significant for the present argument precisely becausethe context in which it is sought to admit superior orderdefences is that of military intervention in urban guerillawarfare. Governments are often reluctant to acknowledgethat a state of warfare exists within their boundaries. Whilesuch a stance may be justifiable on political grounds in theinterests of the government, officially defining war as peacein this way should not, it is submitted, be permitted to denythe individual soldier the possibility of the kind of defencehe might enjoy on another type of battlefield. [FN45] Toquote an earlier comment on this:

"It is no longer a credible position for a civilised society totake that a soldier in time of urban guerilla warfare shouldbe regarded as a special constable and in time of

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conventional warfare as an extra-legal being. A soldier is asoldier is a soldier." [FN46]

What is looked for is some official recognition by thegovernment and the courts that, in the type of civil

emergency that is tantamount to an armed insurrection, therole which the soldier plays is of a different order andmagnitude to "normal" peacetime duties. It should followfrom such a recognition that something more akin to "rulesof war," (however they be described), should be applied togovern the soldier's behaviour and to protect his interests.

This argument does not necessarily imply that criminal actsmust simply be excused or ignored, for even in time of warthat cannot be the case. What the "manifest illegality"principle does contemplate, as we shall see, is that in

proper cases the person who must answer for the illegalityis not the subordinate whose duty to obey was not obviatedby palpable unlawfulness, but the superior (at whateverlevel) who called for the harm to be done.

For completeness, a more recent English case should alsobe mentioned since it is sometimes referred to as authorityfor the "no-defence" position. In Lewis v. Dickson [FN47] therespondent had been charged with causing an obstructionof the highway by deliberately slowing the entry of cars

onto his employers' premises. The magistrates hadacquitted him on the grounds, inter alia, that in checkingeach vehicle before admitting it he was merely carrying outhis employers' instructions. However on appeal by theprosecutor the Divisional Court held, without giving reasons,that the order of a superior "is acknowledged to be no sortof lawful excuse."

The first observation that might be made is that the caseinvolves a civilian and so, strictly, does not fall within theambit of the general argument here. The basis on which it isargued that soldiers should be permitted a "superior orders"defence is that soldiers have a special duty to obey ordersand that if they disobey, they face consequences whichsimply do not apply to civilians. However, Lewis v. Dicksonmay also be distinguished on its facts, for it is clear on thefacts stated that Dickson was seeking not to obey orders

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but *405 rather to exploit them in the furtherance of atrade dispute with the very employer who had formulatedthe instructions in the first place. The presence of malice orbad motive in the subordinate has always been held to

obviate the possibility of a superior order defence. [FN48]

(b) The American cases

The early American case law on superior orders in amilitary context has been summarised elsewhere by Green.[FN49] He concludes that,

"... in the view of the municipal courts in the UnitedStates, a soldier may plead superior orders as a justificationfor his actions, provided the order was lawful or he had

reasonable grounds to believe in the circumstances that itwas so, unless the order was so 'palpably' outrageous that'a reasonable man of ordinary understanding' would havebeen repelled at the order of committing the act ordered."

Green cites as an early authority for this view dicta fromthe decision in McCall v. McDowell [FN50] to the effect that,

"Except in a plain case of excess of authority, where atfirst blush it is apparent and palpable to the commonestunderstanding that the order is illegal, I cannot but think

that the law should excuse the military subordinate whenacting in obedience to the order of his commander. ... True,cases can be imagined where the order is so palpablyatrocious as well as illegal that one can instinctively feelthat it ought not to be obeyed, by whomever given ...Between an order plainly legal and one palpably otherwise--particularly in time of war--there is a wide middle ground,where the ultimate legality and propriety of orders dependsor may depend upon circumstances and conditions of whichit cannot be expected that the inferior is informed or

advised. In such cases, justice to the subordinatedemands ... that the order of the superior should protect theinferior; leaving the responsibility to rest where it properlybelongs--upon the officer who gave the command."

More recently, the effect of a mistake of law [FN51]engendered by reliance on the orders of a superior has beenconsidered in relation to the general defence of "reasonable

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good faith reliance." Where this defence is made out, it istaken to curtail the general rule that mistake of law is no

justification, *406 and it may be based, inter alia, on theinterpretation of the law by a responsible body or ofifical.

[FN52]In U.S. v. Barker [FN53] the defendants, former CIAoperatives, were recruited to break into a psychiatrist'soffice to obtain incriminating evidence against one of theopponents of the Nixon administration. When their actionswere uncovered, they were charged with violating thedoctor's Fourth Amendment rights. In their defence theysought to rely on representations made to them by the manwho had recruited them (who had been their former"control" in the CIA and who was closely connected with the

President's office) to the effect that the burglary wasauthorised for national security purposes. This plea wasrejected by the trial court. However, the Court of Appeals(D.C. Circuit) held, by a majority, that the defendants wereentitled to a mistake-of-law defence since they mightreasonably have believed that the Executive was using theconsiderable powers it had in the field of foreign affairs tomake lawful that which was prima facie illegal. The WhiteHouse contact was not, in fact, in a position to make such a

dispensation and therefore his "order" to break into theoffice was always unlawful. This did not seem to weigh somuch with the majority of the court, however, as did the"reasonableness" (as they saw it), of the burglars' belief inthe lawfulness of what they were being ordered to do.

In the majority, District Judge Merhige found support forthis view in Model Penal Code, s.2.04(3)(b) [FN54] whichmakes provision for Official Interpretation defences.However, in a powerful dissenting judgment Leventhal J.drew attention to three further sections of the Code,sections 3.07(4), 2.10 and 3.09(1). In combination, he said,these limited such defences, if improper force had beenused, to persons responding to a call for aid from a policeofficer making an arrest or obeying unlawful military orders.

The justification for singling out these two classes of actors

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was based upon the duty of the first to act and the duty ofthe second to obey military orders:

"In both instances, the [Model Penal Code] recogniseslimited curtailment of the doctrine excluding a mistake of

law defense on the ground that the actor is under a duty toact. ... Punishing an individual for failure to inquire as to thelawful basis for the officer's request would frustrate theeffective functioning of the duly constituted police (andmilitary) force and in its operation on the individual wouldcompel a choice between the whirlpool and the rock."[FN55]

The rationale of the defence of superior orders in amilitary context has always been the need to bolstermilitary discipline and ensure prompt obedience. That

Leventhal J. can distinguish the situation of the soldier fromalmost every other citizen demonstrates that he, at least,has appreciated the military dilemma; that such an elegantstatement of the rationale underlying *407 the superiororder defence in the military context comes from a judgewho would have severely restricted its applicationelsewhere may answer in some measure those "flood-gate"critics who fear that any concession in this direction wouldlead to ultimate inundation. The strict "no-defence"

approach of position B which insists on treating soldier andcivilian alike misses the subtle breath of realism implicit in

Judge Leventhal's approach.

(c) The position in Australia

Certain of the Australian States have been prepared torecognise the unrealism inherent in position B and havemoved towards a qualified defence of superior orders basedon the "manifest illegality" principle in Position C. In

Queensland and Western Australia, for example, theCriminal Codes provide [FN56] "that a person is notcriminally responsible for an act or omission, if he does oromits to do the act ... [in] obedience to the order of acompetent authority which he is bound by law to obey,unless the order is manifestly unlawful." A similar provision,but one limited in application to military personnel acting in

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the suppression of a riot, is contained in the TasmanianCriminal Code. [FN57]

The position in the other three Australian States and atthe federal level is less easily stated since, in the absence of

criminal codification, recourse must be had to the samecommon law principles we examined above. In relation toservice offences only, personnel subject to militarydiscipline are entitled to be exonerated before militarytribunals if their acts or omissions were in obedience tolawful orders; even unlawful orders may provide a

justification where "the person did not know, and could notreasonably be expected to have known" that the orderswere unlawful. [FN58] However, if a serviceman is chargedwith a criminal offence before the civilian courts, the

position will be different. As the Hayden case referred toabove demonstrates, there is no place for a general defenceof superior orders in Australian criminal law. Yet there aresome grounds for believing that a soldier, acting in a Stateof Emergency, might be treated as a special case.

This speculation arises from the report of a review ofdomestic security laws carried out on behalf of theGovernment by Hope J. following a bomb outrage at theSydney Hilton in 1979 and the deployment of troops in

support of the civil authorities thereafter. [FN59] During thecourse of this very detailed review, the learned judge didconsider the question of superior orders but he chose not toexpress a final opinion on whether a member of theDefence Force could rely on the orders of a superior, notbeing manifestly illegal, as a defence. This legal issue, hefelt, had not been resolved satisfactorily and would requireto be developed further by the courts. [FN60]

The openness of Hope J.'s position on this question, whenconsidering the particular circumstances of militaryinvolvement in armed civil strife, is instructive. It has ledone Australian commentator, Lee, to conclude, inter *408alia, that when soldiers have been called out to aid the civilpower they will be protected against charges which requiremens rea if they can establish that they acted bone fide inobedience to an order which, even if it was unlawful, was

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not manifestly so. [FN61] While this position may be difficultto reconcile with the stringent "no-defence" stance of theAustralian High court in Hayden, that case may bedistinguished on the ground that it did not concern soldiers

in conditions of, or approximating to, actual warfare, butrather trainee intelligence officers on a routine (if somewhatexcessive) training exercise. In any event, it is hoped thatthis (necessarily selective) review of the cases hasdemonstrated that the position outlined by Lee is notinvariably at odds with precedent in Anglo-American law;and it is further contended that Lee's position is to bepreferred on the grounds that in practice it will do more,both to ensure military efficiency and superiority and todeliver substantive justice to the individual subordinate

soldier.

The constitutional baby and the law's bath water

Such a contention, when it is made, draws the fire ofthose constitutional lawyers who see the rejection ofsuperior order defences as an essential weapon in law'sunending battle against the abuse of executive power andprerogative. Their argument appears to be that to allow the

fact of superior orders to operate as a defence at all wouldbe to encourage men of bad faith to shelter behind thispossibility by disguising their illegalities as public duties.Any derogation from the supremacy of law is taken to leadinevitably to an escalating shift of responsibility in thehierarchy of command: the only safeguard against such aconsequence is said to be the absolute prohibition of suchdefences in all circumstances, since only this will ensure theimposition of effective sanctions on identifiable offenderswhen abuses occur.

We have already seen examples of how this presumptionhas influenced judicial thinking on superior order defencesin English and Australian cases. The same type of approachcan be identified in the American courts too. In the casesarising out of the Watergate and Pentagon Papers scandals(of which Barker is an example), some of the defendantssought to have their own illegal acts excused because they

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had been carried out on the instructions of superiors whomthey assumed could authorise such acts so as to make themlegal. In Barker Leventhal J. asserted that (save for theexceptions he identified, above), such a plea must be

rejected because,"[t]o hold otherwise would be to ease the path of theminority of government officials who choose, withoutregards to the law's requirements, to do things their way,and to provide absolution at large for private adventurersrecruited by them ..." [FN62]

The same argument was put succinctly in a later articleon the lessons of Watergate. If such defences were allowed,it warned, "Harry Tuman's buck would be passed so rapidlyfrom one person to another, than in the end, no *409

criminal would have committed the crime, only publicservants doing their duty." [FN63]

Yet, as history records, the particular Watergate "buck"did finally come to rest back where Truman (in othercircumstances) said it would. The Nixon resignation is oneexample which, surely, entitles us to question whether thepresumption against superior order defences is necessarilythe best and only way of checking abuse of executivepower. It may be argued instead that this presumption is a

particular legacy of English constitutional history and of thegreater readiness of common lawyers to criminaliseindividual rather than hierarchical turpetude. Lacking arigorous concept of "State," and anxious to maintain thecompromise embodied in the "Glorious" revolution, thecustodians of bourgeois rights theory sought to confine theactions of the Sovereign by punishing the acts of hisservants as if they and they alone were responsible forofficial wrongdoing. [FN64]

Where the hierarchy of command is headed by aSovereign beyond redress the prohibition on superior orderdefences is arguably logical and necessary. It is submitted,albeit tentatively, however, that given the advances in oursystem of democratic accountability this individualisedapproach is no longer to be preferred. Indeed, concentratingon the individual misdemeanours of Crown servants can

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often appear more like scapegoating than a genuineattempt to control the abuse of power. When the "buck"stops at the bottom because the actual perpetrator of theunlawful act is alone made susceptible to law, neither

justice nor civil liberties are necessarily best served. What isto be feared is that the "no-defence" approach actuallyrepresents only the manipulation of a particular theoryabout the Rule of Law which, by sacrificing the"footsoldiers," safeguards the "generals."

One strong argument, therefore, for allowing courts todecide on the genuineness of superior order defences is thepotential this has for repoliticising the exercise of executivepower. If somebody did order summary executions inGibraltar, does not the supremacy of law demand that we

hear about it? Yet even if it were the case that the soldierswho carried out the killings were, or believed they were,carrying out the orders of their superiors, the absoluteprohibition in the Military Manual [FN65] on such defenceswould make it futile to raise the issue in pleading. True,some assertion to that effect may be adduced in mitigation,even as the law stands. But by that stage the subordinatehas been convicted, and in bringing an offender to book theauthorities may claim to have "dealt with" the offence. The

press and the public have a culprit whom they may seebeing led off in the metaphorical equivalent of chains and,politically, this is less damaging than would be an acquittalon the grounds that the illegal act was actually ordered"from above." Sonorous rhetoric about confining executivepower by punishing the acts of executive servants maybolster formal theories of constitutional law. But when thepractical effect of such an approach is to leave uncoveredthe *410 full extent of the illegality so that its true authorsare not called to account, then such rhetoric shades into theideological.

Cynics may say, with some justification, that merelypointing the finger upwards (as it were), by acquitting thesubordinates would not necessarily result in the superiorsbeing brought to book. Admittedly, it would be naive toimagine that those in the chain of command would be

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anything less than adept at concealing their involvement.The point is, however, that forcing the authorities into thattype of concealment exercise, rather than allowing them toassuage public concern by the conviction of a lowly

operative, has the potential (nothing more is claimed), of"unmasking" the gap between the idea of governmentalaccountability and the reality of the situation. [FN66] Intheory at least, if faced with this sort of "immanentcritique," the authorities must either deliver the substanceof their claims to be an accountable government, or theywill suffer the destabilising consequences of a lack oflegitimation. [FN67]

The counter argument to this thesis comes, in part, froma civil libertarian perspective which asserts that a

respondeat superior approach would, in fact, lead to lessaccountability because it would allow the actualperpetrators of the criminal acts (who may often be the onlyidentifiable culprits), to escape responsibility. Such anargument is founded on the premise that respondeatsuperior and individual responsibility are necessarily twoopposed positions, incompatible with each other. This neednot be so. The link between the two is "manifest illegality"on an objective standard. Soldiers should not be, (and

within the common law never have been), able to exoneratethemselves from responsibility for acts which anyreasonable person should have appreciated were unlawful.So, the naval sentry who shoots dead a passenger in apleasure boat [FN68] or the Marine officer who orders thedestruction of an entire village [FN69] can no more defendthose acts on the basis of superior orders than can thecommandants of Nazi extermination camps. But theargument here has been that guilt and accountability shouldbe questions of fact, not principle.

Reliance on orders can lead and has led to mistakes as tothe state of the law, especially among soldiers whose dutyis to obey commands for which they frequently see no

justification. Whilst soldiers are never mere automations,there is a sense, paradoxically, in which their actions arethe responsibility of those who have commanded them. It is

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submitted that "manifest illegality" provides the objectivekey to this paradox. In the absence of an objectivelydetermined mens rea the "poor bloody infantryman" shouldnot be condemned for the "mistake" of his superior. The

principle of respondeat superior on the basis of the middle,or "manifest illegality" position is not that no one answersfor a guilty action but rather that one with the guilty minddoes. [FN70] In *411 this way mens rea is connected toactus reus (where that exists), by evidence of fact ratherthan by legal fiction and imputation, and justice is betterserved.

Conclusion

This article has argued that the stringent denial of asuperior orders defence to the soldier in a situation of urbanguerrilla warfare who acts illegally but bona fide in relianceon superior orders is of questionable authority and bothinappropriate and unrealistic. It is inappropriate because theharm it is aimed at remedying, namely the abuse ofexecutive fiat, is being perpetrated, if at all, by thesuperiors at various levels who have committed him to thesituation. It is unrealistic because it requires the individual

soldier to be able to make decisions on legal niceties insituations where sometimes his or her military competenceand perhaps even instinct for physical survival will compelinstant obedience. The strict "no-defence" position ispredicated upon assumptions about constitutional law andthe possible consequences of allowing such a defence whichcannot be demonstrated in practice. Indeed, the denial ofthe possibility of a superior order defence may evenfacilitate the very abuses which its opponents say they seekto control. On the contrary, therefore, it is submitted that

courts should be allowed to decide the bona fides of such adefence on the basis that military orders which are notmanifestly illegal may give rise to a mistake of law which,per se, negatives mens rea. It is in this way that theinterests of justice both for the individual soldier and for thewider civil society in which, increasingly, the soldier isbecoming involved, will best be served.

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FN The author acknowledges gratefully the advice and support of other members of

Leeds Law Faculty in the preparation of this article, particularly Clive Walker, Brian

Hogan and Howard Davies, all of whom read and commented on earlier drafts.

FN2. On March 6, 1988. An inquest held in Gibraltar later returned majority verdicts oflawful killing in respect of all three; see The Guardian, October 1, 1988.

FN3. See, e.g. Stalker Autobiography (1988); New Statesman, February 12, 1988.

FN4. Soldiers are, of course, always subject to the criminal law and may be tried on

ordinary criminal charges before either a civil or military tribunal. The point is that, in

peacetime, soldiers, qua soldiers, tend to have little actual contact with the civilian

population and any misdemeanours which they may commit will normally be against

fellow soldiers and be dealt with under military discipline. Once they are committed to"peace-keeping" duties in time of civil emergency, this generality ceases to apply.

FN5. Dicey, The Law of the Constitution (10th ed.), pp.302-306.

FN6. Rowe, Defence, The Legal Implications (1987), p.57.

FN7. Manual of Military Law (12th ed.), hereafter M.M.L. pp.156-157.

FN8. For definition, etc., of the various levels of military assistance to the civil powers,

see M.M.L., pt.2 section V. See also, Rowe, op. cit., Chap. 4.

FN9. As opposed to merely an aider and abettor or inciter which is his position in English

law at present. The distinction may seem academic as far as the superior goes for,

clearly, any of those present categories import criminal

liability. However, the respondeat superior position allows this criminal liability in the

superior to continue independently of the position of the subordinate, and this article

seeks to demonstrate that this "free-standing" superior responsibility has importantlegal and political advantages over the present situation.

FN10. "Absolute" is being used here, not in the strict technical sense that it has within

English law where it describes offences for which mens rea is not an essential element,but rather in the wider sense of "unavoidable" or "final."

FN11. Dinstein, The Defence of 'Obedience to Superior Orders' in International Law

(1965), Chap. 1.

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FN12. e.g. In France where Article 327 of the Code Penal provides that "no crime or

derelict is committed when the homicide ... was ordered by law or by legal authority."

See also, Dinstein, op. cit., p.8 for a discussion of the application of this ordinance in amilitary context.

FN13. Maharaj v. Attorney General of Trinidad & Tobago (No. 2) [1979] A.C. 385 atp.404.

FN14. 156 C.L.R. 532 at p.562.

FN15. Halsbury's Laws (3rd ed.), Vol. 10 p.539.

FN16. Smith & Hogan, Criminal Law (6th ed.), p.249.

FN17. Williams, Criminal Law, the General Part (1961) pp. 296-301.

FN18. Smith & Hogan, op. cit., p.250. Dinstein reaches a similar conclusion with respect

to the position at international law, see Dinstein, op. cit., pp.88-89.

FN19. Williams, op. cit., p.297.

FN20. Charter of the International Military Tribunal, Art. 8; see Fredman, The Laws of

War (1972) p.885 et seq.

FN21. There seems to be sufficient evidence to suggest that he is. See, e.g. an article by

Lauterpacht, the editor of the 1944 edition, in 21 BYBIL (1944) and Dinstein, op. cit.,

pp.78-79.

FN22. Abbot v. The Queen (PC) [1976] 3 W.L.R. 462.

FN23. Ibid. at p.469.

FN24. R. v. Howe [1987] A.C. 417 at p.427.

FN25. Dinstein provides an extensive bibliography on this point at op. cit., p.77 notes

243 and 244, and reviews the question generally. See also the debate between D'Amato

and Levie in (1986) 80 American Journal of International Law 604-611.

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FN26. e.g. Nichols, "Untying the Soldier by Refurbishing the Common Law" [1976] Crim.

L.R. 181.

FN27. See, Draper, The Red Cross Conventions of 1949 (1958) pp. 103-104.

FN28. Phillipson, International Law and The Great War p.261, cited in Dinstein, op. cit.,

p.71.

FN29. An example quoted in Eveslegh, Peacekeeping in a Democratic Society (1978) p.

98.

FN30. (1660) 5 St.Tr. 107.

FN31. (1661) Kelyng 13; 84 E.R. 1060.

FN32. Canadian Yearbook of International Law (1970) pp.61-103.

FN33. (1701) 14 St.Tr. 147.

FN34. (1837) 8 C. & P. 131; 173 E.R. 429.

FN35. (1864) 4 F. & F. 105; 176 E.R. 163.

FN36. Smith & Hogan, op. cit., p.249.

FN37. At pp. 132-133 and 430.

FN38. At pp. 111-113 and 491-492.

FN39. 4 F. & F. 763; 176 E.R. 781.

FN40. 763 at 790, 781 at 793.

FN41. 4 F. & F. 806; 176 E.R. 800.

FN42. 806 at 831, 800 at 811.

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FN43. See note 39, supra.

FN44. See note 41, supra.

FN45. See, for instance, the Boer War cases: R. v. Smith 17 S.C. 561, Kaplan v.

Hanekorn 20 S.C. 53.

FN46. Nichols, op. cit., p.190.

FN47. [1976] R.T.R. 431.

FN48. See again, Keighley v. Bell, Dawkins v. Lord Rokeby.

FN49. Green, op. cit.

FN50. (1887) 1 Abb 212 at p.218.

FN51. Reliance on superior orders can also give rise to a mistake of fact. This situation is

often encountered in unlawful arrest cases where the arresting officer claims that theorder to arrest coming from a superior officer provided him with "reasonable suspicion"

(in America, "probable cause") grounds for arrest, even if, in fact, no lawful grounds for

arrest existed. Mistakes of fact of this kind are capable of negativing mens rea: see,McKee v. Chief Constable for Northern Ireland [1985] 1 All E.R.; Vela v. White 703 F.2d

147 (1983). It is possible to see these cases as involving a form of "superior order"

defence. However, the basis on which the courts deal with them (mistake as to facts

appertaining) distinguishes them from what might be called "superior order proper"

cases where the mistake involved is one as to the state of the law. It is this lattervariety only which are contentious and which form the subject matter of this article.

FN52. For a general account of this defence see, Lafave and Scott, Criminal Law (2nd

ed.), p.418.

FN53. 546 F.2d 940 (1976).

FN54. At p.995.

FN55. At p.967.

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FN56. At s.31(2).

FN57. Tasmanian Criminal code, s.38(1).

FN58. Defence Force Discipline Act 1982, s.14.

FN59. "Protective Security review Report," Canberra (1979).

FN60. Ibid., pp.168-169.

FN61. Lee, Emergency Powers (1984), p.246.

FN62. Ibid., at p.967.

FN63. Article by Korn and Craig in the Washington Post, January 20, 1974, cited in

Kadish, Schulhofer & Paulsen, Criminal Law, Cases & Materials (1983), pp.332-323.

FN64. c.f. Nichols, op. cit., p.186.

FN65. See note 6 supra.

FN66. Habermas, Legitimation Crisis (1976) p.23: "For this reason the critique of

bourgeois society could take the form of an unmasking of bourgeois ideologies

themselves by confronting idea and reality."

FN67. For a general discussion of the "immanent critique" thesis see Habermas, op. cit.,

pp.20-23, and Part III.

FN68. Thomas (1816) 4 M. & S. 442.

FN69. U.S. v. Calley 22 U.S.M.C.A. 534 (1973).

FN70. c.f. Lord Mansfield in Wall v. M'Namara (1779) 1 Term Rep. 536; 99 E.R. 1239:

"... the principal inquiry to be made is, by a Court of Justice, how the heart stood? And if

it appears to be nothing wrong there, great latitude will be allowed for misapprehension

or mistake".

CRIMLR 1989, Jun, 396-411

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END OF DOCUMENT