The Responsibility for War Crimes: Who Is To Blame?
H.L.A. Hart notes that even though it is the internal point of view rather than sanctions that provides the primary motive for obedience to laws, sanctions are still necessary to motivate into conformity those who take an external point of view toward laws and do not view them as their laws.
The imposition of sanctions, however, becomes problematic when the rules are vague or widely ignored. This is particularly important to our study because sanctions are a crucial aspect of the humanitarian laws of war for at least two special reasons. First, as I argued in the last chapter, nations have been remiss in promulgating these laws to their armed forces in ways that allow soldiers to take an internal point of view of them. This increases the need for effective sanctions as a deterrent.
Second, before sanctions can be imposed, there must be a means for establishing culpability. This has often been problematic in the military because one characteristic specific to the military profession-and one that all soldiers understand clearly-is that the orders one receives from a superior inherently bear with them the force of law.
Because obedience to orders is emphasized during all phases of a soldier’s service-in peacetime and in combat and is an integral part of the indoctrination each recruit receives in Basic Combat Training or “boot camp,” instant and unquestioning obedience to superior orders soon becomes a rule toward which soldiers almost invariably take an internal point of view.
When one considers that the rule of instant obedience is one that soldiers understand the reasoning behind, accept as important to their own interests, and know the punishment for violating, it is not surprising that they have often committed war crimes when directed to do so by their superiors, especially since many of the laws and sanctions associated with these crimes are vague or ambiguous. Moreover, the units to which soldiers are assigned soon become their units.
And the officers and noncommissioned officers of these units become their leaders (i.e. those who will look out for their welfare). This increases even further a soldier’s disposition to obey without question orders received from superiors. The military principle (MP) of obedience, then, might be stated this way:
MP, Soldiers have a legal duty always to obey the orders of their superiors.
Even if MP, is true (we will return to it momentarily) there remains the additional question of whether soldiers have a moral duty always to obey the orders received from superiors. We might formulate this as a principle thus:
MP2 Soldiers have a moral duty always to obey the orders of their superiors.
Of course, if soldiers have a moral duty always to obey the orders of their superiors, then this would severely limit their moral agency in those cases when they are acting under such orders. This seems to be reinforced by a third military principle, recognized by virtually all nations, that holds Commanders legally and morally responsible, at least to some extent, for the actions of their subordinates. This might be formulated this way:
MP3 Commanders are morally and legally responsible for any actions performed by their orders.
There are several reasons why these principles warrant rigorous scrutiny. As the cases in our introduction to this section demonstrate, commanders accused of ordering or overlooking criminal acts have frequently been excused or received only token punishments because they did not commit the acts themselves.
On the other hand, those who have executed war crimes have often claimed superior orders as a justification or excuse for their actions. In many cases the result of this “who is responsible?” shell game has been either that no one has been held accountable for war crimes, or that the extent of culpability has been so mitigated as to seem ridiculous, as the historical evidence shows.
Without clear, established criteria for delineating individual responsibilities for war crimes, the issue of sanctions becomes and international laws of war might be interpreted as ideals to be moot. And without sanctions, the jus in Bello rules found in national followed only when expediency permits, rather than legal prescriptions grounded in moral principles.
We will now examine these three military principles more closely and explore ways that the difficulties each present might be resolved.
Read: Moral Issues in War: A Systematic Analysis
Obedience as a Legal Obligation
Before World War II, the lack of consensus concerning a subordinate’s responsibility always to obey superior orders was reflected in the divergent laws that various nations adopted concerning this issue (referred to by lawyers as respondeat superior). The English military code of 1749 specified that soldiers had to obey only those orders that were lawful.
Lassa Oppenheim’s classic, International Law, first published in 1906, however, states that members of the armed forces who violate the laws of war under orders from superiors are not war criminals and may not be punished by the enemy. This probably influenced the British and U. S. World War I army manuals that absolved from culpability those who violated the laws of war under orders from their superiors.
The 1914 edition of the U.S. Army’s Rules of Land Warfare enumerates all of the acts that are prohibited in war, and adds: “Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders.”
During World War II, however, both Great Britain and the United States adopted variations of Article 47 of the German Military Code of 1872, which states that a subordinate “is liable to punishment as an accomplice if he knew that the order involved an act the commission of which constituted a civil or military crime or offense.” Unfortunately, neither the Geneva Convention nor the Hague Convention addresses the subject of superior orders.
In the armed forces of the United States, disobeying a lawful order can be prosecuted as a felony under the Uniform Code of Military Justice. In their oath of enlistment, for example, U. S. military personnel swear to obey the lawful orders of their officers and those legally appointed over them.
This aligns with the present U. S. doctrine on obedience to superior orders as discussed in Field Manual 27-10. The Law of Land Warfare, states that “members of the armed forces are bound to obey only lawful orders (italics added). Thus even though most orders carry with them the force of law, certain laws are more fundamental and that take precedence over orders.
Lawful orders, we may presume, are those given by a duly appointed authority that prescribes lawful acts; unlawful orders are those that either originate with an improper authority or that command acts that are illegal. Perhaps we are ready to alleviate part of the difficulty with the legal obligation of obedience by rewording our principle so that obedience is required only in response to lawful orders.
MP Soldiers have a legal duty to obey the lawful orders of their la superiors.
This formulation seems to address some of the difficulties with MP because it provides for limitations to the rule of obedience by making certain legal prescriptions more fundamental than others. In other words, superior orders carry with them the force of law provided that they do not prescribe criminal acts. Now, however, although we have limited the domain of actions into which superior orders may take subordinates by excluding those that are illegal, we are faced with the practical question of how recipients of orders are going to be able to distinguish between legal and illegal acts.
This is particularly problematic because in war the boundaries between legal and illegal behavior are drastically different from those recognized in peacetime. Consider the distinction between criminal acts for which soldiers are culpable and lawful acts of war for which they are not, as explained by Telford Taylor, the chief American counsel at the Nuremberg trials:
War consists largely of acts that would be criminal if performed in the time of peace-killing, wounding, kidnapping, destroying, or carrying off other peoples’ property. Such conduct is not regarded as the criminal blanket of immunity over the warrior.
If it takes place in the course of the war, because the state of WA But the area of immunity is not unlimited, and its boundaries a marked by the laws of war. Unless the conduct in question f within those boundaries, it does not lose the criminal character s would have should It occur in peacetime circumstances. In a sense, therefore, the expression “war crime” is a misnomer, for means an act that remains criminal even though committed in the course of the war, because it lies outside the area of immunity preserved by the laws of war.
A difficulty arises when we attempt to determine just how far the “blanket of immunity” extends. Taylor argues that its limits are “marked by the laws of war,” but the laws of war are often unclear. For example, international law permits reprisals against the enemy as a legitimate means of responding to violations of jus in Bello when other efforts to curb criminal actions fail. In other words, as a means of deterrence, one side can legally violate many of the rules of war in response to enemy violations. This means that soldiers may be legally ordered to commit acts that would otherwise be war crimes as reprisals. As one jurist, commenting on the trial of General Falkenhorst, Commander in Chief of the German Armed Forces in Norway during World War II, notes:
Possibly there is no more difficult subject in the ambit of the law relating to war crimes than a correct application of the principles in a case where reprisal and superior orders are raised by the defense in respect of one and the same order which the defendant is alleged to have carried out.
Moreover, it is not only reprisals that can cause such difficulties: Almost every humanitarian law that is articulated in either the Geneva and Hague conventions or the Nuremberg Principles specifies that certain actions are prohibited unless required by military necessity.
(We will return to reprisals and military necessity in greater detail in the next two chapters.) And of course, all of this complexity is compounded by the extreme stress of combat situations where such decisions are generally made.
As a German court noted in convicting two submarine officers who had sunk a British troopship and, afterward, under orders from their captain, surfaced to destroy the survivors in lifeboats with machine-gun fire: “A refusal to obey the commander on a submarine would have been something so unusual that it is humanly possible to understand that the accused could not bring themselves to disobey.”
Given these overriding considerations that are built into the international laws of war, the boundaries of the “blanket of immunity” are not as obvious as they might initially seem. Because soldiers routinely perform acts at the direction of their superiors that would be crimes under peacetime conditions, it seems unreasonable to require soldiers to distinguish between acts that are illegal in peacetime but legally obligatory in war from those that are illegal in peacetime and in war-especially when this latter group can change entirely depending on the circumstances. As one author commenting on his World War II experience, observes:
To be sure, since the Nuremberg trials. Western nations have officially denied the soldier’s right to obey orders that involve him in crimes. He must distinguish between illegitimate orders and those that are in line with his duty as a soldier. Presumably, the distinction is always clear according to official pronouncements, but in reality, under the conditions of total war, few things are more difficult to distinguish. Our age is caught in a painful contradiction for which there is no resolution other than the renunciation of wars or at least of the way we have been waging them in this generation.
The difficulties inherent in requiring soldiers to distinguish between lawful and unlawful orders in light of the situational aspects of the laws of war have not been lost on those in charge of defining U. S. military doctrine. The previous passage cited from U. S. Army Field Manual 27-10, The Law of Land Warfare, is prefaced with the following discussion:
In considering the question of whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed force; that the latter cannot be expected, in the conditions of war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time, it must be borne in mind that members of the armed forces are bound to obey only lawful orders.
This passage reinforces several concerns. On one hand, it acknowledges that soldiers cannot “weigh scrupulously the legal merits of the orders received” and that certain acts of war may be criminal under some circumstances and legal under others. On the other hand, however, it enjoins soldiers to obey “only lawful orders.”
It seems, then, that soldiers should always obey military orders unless they know such orders to be unlawful; but because what is lawful can change dramatically depending on the circumstances, it will often be impossible for soldiers to know with any reasonable degree of certainty whether or not certain orders are unlawful, In other words, the relevant military manual advises soldiers to obey only lawful orders while at the same time acknowledging that they will often be unable to tell lawful orders from unlawful ones! With this in mind, it is not surprising that the imposition of sanctions on soldiers who have violated the laws of war under orders has been minimal.
So far we have identified two serious problems for the Just War Tradition that are associated with a soldier’s legal obligation to obey lawful orders. The first is that soldiers often view the rule of obedience to superior orders as more fundamental than other relevant rules such as those associated with the humanitarian principles of jus in Bello.
In most cases, this may be attributed to soldiers taking an internal point of view of the former and an external point of view of the latter. The second problem is with the formulation of the rules themselves. Soldiers cannot reasonably be expected to conform to rules that require them to choose between alternative courses of action based on information that they will frequently not know, as required by MP1 and the existing laws of war.
Unfortunately, these two difficulties present for us a case where developing an acceptable solution may be as challenging as explicating the nature of the problem and understanding its causes.