Gavin Dingwall

Claims that an actor who followed orders issued by a superior should be granted a defence to a criminal offence are largely rejected in international and domestic criminal law. Various justifications have been offered: such a defence would often excuse participants in the gravest forms of criminal activity; a degree of choice remains and so some culpability is present; and deterrence would be compromised if the defence could be invoked too readily. This article will assess these claims with particular regard to the notions of “circumstantial luck” and choice. It will be argued that the rejection of a superior order defence is justifiable, even though some of the orthodox rationales for rejection appear weak. Instead, the relevance (if any) of a superior order claim should be considered at the sentencing stage as part of an overall assessment of individual culpability.

superior orders; comparative approaches; international criminal justice; defences; mitigation
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Criminal law scholarship has long debated the availability of defences to a criminal charge. Recently there has been a resurgence of interest fuelled in part by the modification of existing defences and the introduction of new defences at a domestic level. It is right that defences are subjected to this level of scrutiny; someone who ostensibly should incur criminal liability, and the associated penalty, should not readily be excused as that would appear to defeat the purpose of criminalisation and, in a practical sense, would lead to inconsistency of application, which raises questions of legitimacy. The impact of a defence can be enormous: criminal liability can be removed in many cases and reduced in others. Often there is no doubt that a defence should exist. Debate centres on the exact circumstances where the defence should apply. An example is provided by self-defence. The need for individuals to have the legal right to protect themselves through the use of force appears obvious, but the situations where force should be legitimate and the degree of force that can be justified are areas of dispute.

Superior orders, the subject matter of this article, needs consideration at a more basic level because there is no general acceptance that such a defence exists or is desirable; instead, there is considerable inconsistency at a comparative level. The debate then is more about whether a defence in any form should be available and less about the ambit and scope of such a defence. This makes the argument presented in this article more complicated because reliance on the existing law will only get us so far. Reasons may be given as to why a superior orders defence is necessary or why it should be refused, though the courts frequently arrive at a conclusion without articulating their reasoning, but a ledger of where a defence exists and where it does not fails to provide an answer as to whether and why a defence should or should not be allowed. Any analysis needs to be more philosophical and must address some fundamental, and often complex and difficult, issues concerning individual culpability. If it is decided that a defence should be available, secondary issues would then need to be considered. An example of such a secondary concern would be whether a defence should be available to all offences or should be limited. However, even if it was decided that following the commands of a superior does affect culpability, this does not mean that a defence is appropriate. Rather than creating (or in some jurisdictions confirming) a superior orders defence, the issue could be resolved at the sentencing stage by recognising that compliance with an order from a superior should be viewed as personal mitigation. Sentencers would have the discretion to determine what culpability (and in extreme cases it may be minimal) attaches to the inferior’s compliance with the command. The primary distinction between the approaches is that a conviction would still result if superior orders were to be treated as mitigation whereas a defence would result in acquittal. Questions then of fair labelling and reputation are also pertinent.

The paucity of existing jurisprudence is not the only reason why it is necessary to subject the rationales for having a superior orders defence to a sustained theoretical critique. Superior orders as a potential defence differs from most forms of defence. One distinction relates to context: although there are examples regarding orders from a civilian,6 most cases arise in a military context and often during conflict. Conversely, although many “domestic defences” are recognised in international criminal justice, their use would be highly unusual. This must be recognised because it is arguably in the field of international criminal law that the need for careful evaluation of defences becomes most acute. Extraordinary crime has no direct parallel in domestic criminal justice due to the barbarity and scale of the offending. In itself, any system of criminal law would struggle to respond appropriately to harm of this magnitude. However, the context makes the attribution of criminal liability difficult despite this evident and extreme harm. Prosecution will be arbitrary and therefore tokenistic, for example, given the systemic nature of the offending, leading to legitimate concerns that a very limited number of individuals are being scapegoated for the sins of many. The danger of scapegoating is compounded by the command structure inherent in the armed forces. Frequently, individual acts of violence are committed by low-ranking combatants who are following orders from those more senior in the hierarchy. Those who issue such commands can be held criminally liable where appropriate, as can those whose wilful blindness allows subordinates to act in this manner. What, though, of the individual perpetrator who maintains that the only reason he acted in this way was because he was commanded to do so?

Claims that a defence should be granted to those who followed orders have a significant historical pedigree.11 With the development of international criminal justice in the aftermath of the Second World War, a more reasoned response to the age-old “soldier’s dilemma” was required. The fact that authorities are comparatively sparse reflects the limits of enforcement; despite the involvement of thousands in most wars, few participants have faced justice in international tribunals. Of those who have, only junior combatants could potentially claim that they were acting on a senior officer’s command. Neither is such a defence likely to be run with any frequency in domestic courts. In addition the fact that such a scenario is likely to be rare, and one where there is supporting evidence even rarer, the lack of domestic case law can often be explained by a settled position in a criminal code, for example in France, or by the availability of another established and accepted defence. One must, however, guard against measuring the importance or the contestability of a point of law with reference only to the frequency with which it emerges in the courts. Many of the most vexed questions of substantive law, for example the situations where intention can properly be inferred, seldom arise in practice. It remains the case that such questions should not be ignored and deserve a considered response.

In a detailed analysis of the American and English authorities, Brownlee outlines three possible approaches that could be taken with regards to those who seek to excuse their criminal conduct on the basis that they were following superior orders:
(1) Position A. Absolute and automatic justification of the subordinate concerned. The superior who was the author of the orders becomes the principal to any offence on the maxim, respondeat superior.
(2) 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 each order that he or she is given and a personal responsibility for ensuring that only lawful orders are obeyed. It is sometimes referred to as the position of “absolute” liability.
(3) Position C. The middle position, which has been called, “the manifest illegality principle”. According to this approach a soldier is entitled to a defence on the basis of superior orders where the order on which the defence is based was not of such a nature that it should have been palpably obvious to the reasonable recipient that it called for an illegal act to be done.

This framework will be adopted throughout this article both as a means of classifying existing approaches in comparative and international law and when considering whether a defence (of whatever type) should be available in appropriate cases. It is necessary to go through several stages to assess the desirability of a defence of superior orders. An important starting point is to scope existing legal practice to see if a consensus has emerged and, regardless of whether that is the case, the factors that have influenced the courts. The next three sections consider, in turn, superior orders in English law, superior orders in comparative law and superior orders in international criminal justice. Later sections adopt a more theoretical approach. It will be argued that the nature of a superior orders claim has distinct similarities with the widely-accepted defence of duress and so the first of these sections considers whether there is a difference in terms of culpability where an individual offends after being commanded to do so by a superior as opposed to where they have been threatened with severe violence. Reviewing the arguments for having a defence of duress assists us in deciding whether a superior orders defence should be provided, but other concerns are relevant. The section following provides this broader appraisal of the case for a distinct defence. An alternative option — namely that superior orders should be viewed as a form of mitigation — is considered in the penultimate section.

It will be submitted in the conclusion that, whilst cognisance should be taken of the soldier’s plight and allowance must be made for the consequent reduction in individual culpability, a superior orders defence is not the preferable means to achieve justice. An absolute defence (Brownlee’s Position A) absolves individuals of all responsibility for their actions whereas the “manifest illegality” option (Brownlee’s Position C), whilst initially attractive because it links culpability to the gravity of the harm, also has the potential to be permissive and excuse all but a limited number who commit the most serious offences. Where illegal superior orders have been followed, sentencers should recognise that this reduces, but does not remove, individual liability: some degree of mitigation is appropriate, but the weight that should be attached to it will vary with each case. This conclusion is, in the author’s opinion, consistent with the existing law in England and Wales and, therefore, in this jurisdiction, amounts to a defence of the status quo.