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 law Abstract: 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 of three I.R.A. members in Gibraltar [FN2] has led to a renewal of the allegations that the British government is operating a "shoot-to-kill" [FN3] policy against Republican militants. Such allegations have always been strenuously denied by the British authorities and it is not intended in this article to enter that particular debate, important as it is in the context of the supremacy of the Rule of Law. What will be examined here is the question of how far under English law a soldier could, and should, be able to rely on a defence of obedience to superior orders when facing an accusation that he or she has committed a criminal act. This question is addressed not because the author wishes to imply that the soldiers in Gibraltar either committed any crime 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 the civilian population and with the civilian law than is usual. [FN4] They are asked to play a role for which they are prepared neither by outlook nor (on the whole) by training. They are expected to comply with both military discipline based on obedience to superiors and to the ordinary

criminal law with its emphasis on individual responsibility. And all the time, as the Americans found out in Vietnam, the close attention of the world media makes each act, every decision a piece of public property, to be used to condemn when mistakes are made. This is the basis of what legal writers from Dicey [FN5] forward have referred to as the practical dilemma of the solider; he faces the risk of condemnation by a civil court if he obeys his orders and the risk of military discipline (even court martial) if he does not. In circumstances such as these the precise legal effect of superior orders is likely to be of crucial importance to the individual soldier. Yet the most that can be said with any certainty in relation to this question is that the answer remains uncertain. A divergence of approach exists between those whose *397 prime concern is for the maintenance of the supremacy of law and those who are responsible for safeguarding military discipline and effectiveness. Most legal writers seem to prefer the "nodefence" stance because "it subordinates military law to civil law and illustrates the status of military command as being subject to the law of the land." [FN6] Certainly, the present editors of the British Manual of Military Law follow this approach, [FN7] and the fact that there is little recent English case law on this point may be due in no small part to the stance which the Manual, in seeking to encapsulate the common law position, has taken against the validity of such a plea. While such a stringent approach may preserve the logical integrity of the criminal law, it is submitted that it fails to address the real dilemma of the soldier. This dilemma is likely to arise increasingly where military forces are deployed not on conventional battlefields but rather in support of the civil power. [FN8] The argument which this article will advance is that, at least as far as military personnel are concerned, it is time to re-examine English common law and to consider whether on the grounds of individual justice and public policy some concessions ought not to be made in the direction of allowing at least a partial defence of superior orders.

Alternative approaches to a superior orders defence For the purposes of the present analysis it is sufficient to identify three fairly all-embracing theoretical responses to the soldier's claim that "I did what I did because I was ordered to do so by someone whom it was my duty to obey." 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 [FN9] on the maxim, "respondeat superior." Position B. Personal liability of the subordinate. This "nodefence" 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. [FN10] Position C. The middle position, which has been called, [FN11] "the manifest illegality principle." According to this approach a soldier is entitled to a *398 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. Although Position A--respondeat superior--is well known in international law and forms the basis of many continental approaches, [FN12] judges within the common law tradition have almost uniformly rejected it. Lord Hailsham L.C., for example, in the case of Maharaj v. A.G. of Trinidad and Tabago in 1979 [FN13] remarked obiter, that whilst a common 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 for their own misdoings, negligences and crimes. Superior orders, even from the sovereign himself, afforded no excuse or immunity from process civil or criminal ..."

More recently in the Australian case of A v. Hayden,Murphy J. [FN14] observed, "In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders." Taken together, those dicta illustrate one of the two presumptions on which common lawyers have traditionally predicated the rejection of superior orders as a defence-namely that its rejection was a necessary check on the abuse of executive prerogative. The validity of this presumption will be examined below. The rejection of position A may seem to imply the acceptance of position B, absolute liability, and indeed most commentators conclude that this does represent the position in English Law. There is little direct authority on the point, 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 in obedience to the order of a duly constituted superior does not excuse the person who does the act from criminal liability ... Soldiers and airmen are amenable to the criminal law to the same extent as other subjects ... Obedience to superior orders is not in itself a defence to a criminal charge." Amongst the textbook writers, Smith and Hogan, whilst acknowledging the lack of direct authority, are similarly of the opinion that "it is safe to assert that it is not a defence for D merely to show that the act was done by him in obedience to the orders of a superior, whether military or civil" unless the *399 fact of the orders gives rise to a mistake of fact negativing mens rea or negligence where that is the basis of culpability. [FN16] In this general statement they are in accord with Glanville Williams, [FN17] although the latter takes a divergent view on whether orders are a defence where they give rise to a reasonable mistake of law. Such a situation arises where a soldier intentionally or recklessly causes what in law

amounts to the actus reus of a criminal offence but mistakenly believes it to be a lawful act because it has been ordered by a lawful authority. Smith and Hogan feel that the proper course in these circumstances is to apply the "harsh general rule" that mistake of law, whether reasonable or not, is no defence. Since knowledge that an act is forbidden by 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 is sufficient authority for placing members of the armed forces in a special category of persons for whom a defence of superior orders is available "where the orders were believed to 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 this formulation, a soldier is entitled to raise in his defence a claim to have acted on the orders of his lawfully appointed superior. The efficacy of this defence then stands to be adjudicated by the court on the basis of the reasonableness of the soldier's belief. Unless the act or omission impugned was so palpably unlawful that no reasonable person in the position of the recipient could fail to discern its unlawful quality, the fact of the order amounts per se to a justification. It is Williams' contention that the weight of English authorities follows this via media, departing from the rigid strictness of a "no-defence" position to allow soldiers an a posterior defence where their decision to obey orders is held to have been reasonable in all the circumstances. He cites in part support of this the summary of the law contained in editions of the Manual of Military Law published before 1944. Subsequent editions (including the present) have departed from that earlier position, he contends, in order to avoid any incongruity between domestic military law and the Charter of the International Military Tribunal (the Nuremburg Charter) which was established to try Second World War criminals and which specifically prohibited reliance on superior order defences. [FN20]

If Williams is correct in this explanation, [FN21] then the assertion in the Manual that the "no-defence" position (position B, above) is the "better view" of English Law can be accounted for by the particular and exceptional historical circumstances which surrounded the Nuremburg Charter and trials. In any *400 event, whilst it is published by the government (and authorative in that sense) and is relied on by the Military Forces for interpretation of the law, the Manual has, of course, no statutory force and cannot be taken 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 that the events surrounding Nuremburg have been unimportant in influencing the subsequent development of this area in domestic criminal law. Their symbolic significance finds echoes, for instance, as recently as 1976 in dicta in the case of Abbot v. The Queen. [FN22]. The question for the Privy Council in this appeal was whether duress was capable of providing a defence to a charge of murder. In this context Lord Salmon observed [FN23] "In the trials of those responsible for wartime atrocities such as mass killings of men, women or children, inhuman experiments on human beings, often resulting in death, and like crimes, it was invariably argued for the defence that these atrocities should be excused on the ground that they resulted from superior orders and duress: if the accused had refused to do these dreadful things, they would have been shot and therefore they should be acquitted and allowed to go free. This argument has always been universally rejected. 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] Here he referred to superior orders again in conjunction with duress defences and, distinguishing the former from the latter, cited with approval the prohibition on superior order

defences which, as we have seen, is contained in the Nuremburg Charter. Dicta of this kind serve to illustrate the second main presumption on which the "no-defence" opposition to the via media on superior orders is predicated. This revolves around an overarching acceptance of a certain view which international lawyers took in response to the terrible outrages of the war criminals at the end of World War Two. A considerable body of international jurisprudence, both before and since, has concerned itself with evaluating that particular view, and it is beyond the present purposes to examine it here. [FN25] Two points will, however, be made in connection with it. The first is that the standing of superior order defences at international law (whatever that may be) is in no way conclusive of the domestic law of England or any other jurisdiction. It is often noted in this context [FN26] that both German and Israeli law now expressly recognise the defence and even in relation to "grave *401 breaches" of humanitarian law the framers of the First Geneva Convention following the Second World War declined to incorporate directly the Nuremburg charter prohibition. [FN27] Instead, it was left to individual signatory states 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 the activities of war criminals is that it excludes too much by its overstringency. Questions of scale are not irrelevant. It may serve the interests of justice that the principal commanders of the Nazi extermination gangs should not escape their individual deserts through "an exaggerated and preposterous notion of vicarious liability." [FN28] But is it so preposterous to query whether the same stringent and absolute rule should apply to the driver of an army vehicle who, in response to an order from his N.C.O., fails to observe 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

this sort of pragmatic approach and to allow superior orders to operate, not merely in mitigation of punishment but in complete exoneration, where the justice of a particular case was taken to demand this. Putting it at its lowest, it is submitted that, in substance if not in form, Anglo-American common law has never consistently excluded the "manifestly illegal" principle. If this submission is correct then the application of this principle to future "Emergency Powers" situations must be all the less objectionable, even to the staunchest advocates of law's internal consistency. A review of the case law which does exist provides evidence for this contention. Approaches within the Common Law to the soldier's dilemma (a) The English cases Perhaps the earliest cases in the United Kingdom were those involving the various functionaries who had taken part in the execution of Charles I in obedience to the dictates 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 the execution guard, are well known. Both men were convicted of treason when the Restoration courts before which they were separately arraigned refused to allow obedience to the de facto authority to amount to a defence. At first sight this may seem fatal to the argument that superior 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 the decision in Axtell as "a montrous one." However, a more compelling rebuttal *402 is offered by Green. [FN32] He observes that in Cooke's case there was constant reference to the fact that the accused was learned in law and could therefore reasonably be expected to appreciate the illegality of what his Parliamentarian masters were commanding of him. Axtell was a common soldier and so the same argument cannot be applied to account for the

rejection of the superior order defence in his case. Nonetheless, Green sees a similar reasoning at work and explains the decision on the grounds that the court took the line that even a common soldier must have known that it was an act of treason to participate in any way in the execution of one's king. Such an approach is not in the least incompatible with the "manifest illegality" principle, and Green suggests that the same reasoning may apply equally to the decision in Kidd's case. [FN33] Kidd was convicted of piracy, but three others who had received booty were acquitted on the grounds that they were "servants" on Kidd's ship, rather than 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 voluntary than if they had been ordinary crewmen. Although a servant might indeed act voluntarily at times, and so possess sufficient mens rea to be guilty of a crime, he might also sometimes be said to be "under the compulsion of his master" and this, the learned Chief Baron said, would negative the mens rea which was a required element of piracy. Not every order of a master would have this effect for "a servant is not bound to obey his master but in lawful things." The three accused had claimed that they believed Kidd's orders were within the King's commission and therefore lawful; significantly for the present analysis, the judge directed the jury that the men were entitled to be acquitted if this belief was reasonable even if it was, in fact, mistaken. Reference may also be made to the nineteenth century cases of James [FN34] and Trainer. [FN35] Although the substantive decisions in these cases have been treated as turning on claim of right and absence of negligence respectively, [FN36] each contains obiter dicta redolent of "manifest illegality." In James, workmen who, on the orders of their employer, had stopped up the airway of a mine belonging to a competitor sought to be excused liability on the grounds that they had acted in a bona fide belief that their employer had a lawful right to give such orders.

Although Lord Abinger C.B., held that superior orders provided no defence to a charge of murder, he appears to base this decision on the ground that murder was an act malum in se and, therefore, "[i]f a master told his servant to shoot a man, he would know that was an order he ought to disobey." [FN37] In Trainer a locomotive passed a danger signal and collided with a preceding train, killing some of its passengers. Both the driver and fireman of the locomotive were charged with manslaughter, but the fireman pleaded that he should be excused on the grounds that company rules required him to be *403 subject to, and obey, the orders of the driver and that it was the driver who had ordered the locomotive through the signal. In his judgment Willes J. considered the specific situation of an inferior officer ordered by a superior to undertake an act which in the event proved to be unlawful. He concluded, [FN38] "that in a criminal case an inferior officer must be justified in obeying the directions of a superior, not obviously improper or contrary to law-- that is, if an inferior officer acted honestly upon what he might not unreasonably deem to be the effect of the orders of hissuperior, he would not 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 of superior orders, this time in relation to military personnel. This case involved a claim for a civil remedy by a subordinate officer following his detention for trial for a period which was, in the outcome, unlawful. The detention had been ordered by his superior, and in his judgment Willes J. considered the position of those soldiers who had obeyed the order and imposed the detention. He was of the opinion that, "an officer or soldier acting under the orders of his 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 term the same judge appears to have departed from this lenient position. That later case, Dawkins v. Lord Rokeby [FN41]

concerned a dispute between a subordinate officer and his commander (i.e. two people subject to military law), but Willes J. went on to consider the question of an injury done to a civilian by a serviceman. Citing "the necessity and the absolute necessity of the maintenance of the constitutional liberties" of the ordinary citizen as justification, he states the view [FN42] that: "Ordinary citizens, who do not constitute a part of the army, are not bound by anything in the Articles of War in respect to them; and, if the military should injure them in their persons or property, not even the command of a superior officer will justify a soldier in what he does, unless the command should turn out to be legal and to be within the 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 be distinguished, however, on the basis of the differing contexts which the learned judge had in mind in attempting to lay down general principles. It is clear from the reports that in Keighley Willes J. is thinking of the position of the soldier 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 distinction is significant for the present argument precisely because the context in which it is sought to admit superior order defences is that of military intervention in urban guerilla warfare. Governments are often reluctant to acknowledge that a state of warfare exists within their boundaries. While such a stance may be justifiable on political grounds in the interests of the government, officially defining war as peace in this way should not, it is submitted, be permitted to deny the individual soldier the possibility of the kind of defence he might enjoy on another type of battlefield. [FN45] To quote an earlier comment on this: "It is no longer a credible position for a civilised society to take that a soldier in time of urban guerilla warfare should be regarded as a special constable and in time of

conventional warfare as an extra-legal being. A soldier is a soldier is a soldier." [FN46] What is looked for is some official recognition by the government and the courts that, in the type of civil emergency that is tantamount to an armed insurrection, the role which the soldier plays is of a different order and magnitude to "normal" peacetime duties. It should follow from such a recognition that something more akin to "rules of war," (however they be described), should be applied to govern the soldier's behaviour and to protect his interests. This argument does not necessarily imply that criminal acts must simply be excused or ignored, for even in time of war that 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 illegality is not the subordinate whose duty to obey was not obviated by palpable unlawfulness, but the superior (at whatever level) who called for the harm to be done. For completeness, a more recent English case should also be mentioned since it is sometimes referred to as authority for the "no-defence" position. In Lewis v. Dickson [FN47] the respondent had been charged with causing an obstruction of the highway by deliberately slowing the entry of cars onto his employers' premises. The magistrates had acquitted him on the grounds, inter alia, that in checking each vehicle before admitting it he was merely carrying out his employers' instructions. However on appeal by the prosecutor the Divisional Court held, without giving reasons, that the order of a superior "is acknowledged to be no sort of lawful excuse." The first observation that might be made is that the case involves a civilian and so, strictly, does not fall within the ambit of the general argument here. The basis on which it is argued that soldiers should be permitted a "superior orders" defence is that soldiers have a special duty to obey orders and that if they disobey, they face consequences which simply do not apply to civilians. However, Lewis v. Dickson may also be distinguished on its facts, for it is clear on the facts stated that Dickson was seeking not to obey orders

but *405 rather to exploit them in the furtherance of a trade dispute with the very employer who had formulated the instructions in the first place. The presence of malice or bad 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 a military context has been summarised elsewhere by Green. [FN49] He concludes that, "... in the view of the municipal courts in the United States, a soldier may plead superior orders as a justification for his actions, provided the order was lawful or he had reasonable grounds to believe in the circumstances that it was so, unless the order was so 'palpably' outrageous that 'a reasonable man of ordinary understanding' would have been repelled at the order of committing the act ordered." Green cites as an early authority for this view dicta from the decision in McCall v. McDowell [FN50] to the effect that, "Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the order of his commander. ... True, cases can be imagined where the order is so palpably atrocious as well as illegal that one can instinctively feel that 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 depends or may depend upon circumstances and conditions of which it cannot be expected that the inferior is informed or advised. In such cases, justice to the subordinate demands ... that the order of the superior should protect the inferior; leaving the responsibility to rest where it properly belongs--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 been considered in relation to the general defence of "reasonable

good faith reliance." Where this defence is made out, it is taken to curtail the general rule that mistake of law is no justification, *406 and it may be based, inter alia, on the interpretation of the law by a responsible body or ofifical. [FN52] In U.S. v. Barker [FN53] the defendants, former CIA operatives, were recruited to break into a psychiatrist's office to obtain incriminating evidence against one of the opponents of the Nixon administration. When their actions were uncovered, they were charged with violating the doctor's Fourth Amendment rights. In their defence they sought to rely on representations made to them by the man who 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 was authorised for national security purposes. This plea was rejected by the trial court. However, the Court of Appeals (D.C. Circuit) held, by a majority, that the defendants were entitled to a mistake-of-law defence since they might reasonably have believed that the Executive was using the considerable powers it had in the field of foreign affairs to make lawful that which was prima facie illegal. The White House contact was not, in fact, in a position to make such a dispensation and therefore his "order" to break into the office was always unlawful. This did not seem to weigh so much with the majority of the court, however, as did the "reasonableness" (as they saw it), of the burglars' belief in the lawfulness of what they were being ordered to do. In the majority, District Judge Merhige found support for this view in Model Penal Code, s.2.04(3)(b) [FN54] which makes 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 been used, to persons responding to a call for aid from a police officer making an arrest or obeying unlawful military orders. The justification for singling out these two classes of actors

was based upon the duty of the first to act and the duty of the second to obey military orders: "In both instances, the [Model Penal Code] recognises limited curtailment of the doctrine excluding a mistake of law defense on the ground that the actor is under a duty to act. ... Punishing an individual for failure to inquire as to the lawful basis for the officer's request would frustrate the effective functioning of the duly constituted police (and military) force and in its operation on the individual would compel a choice between the whirlpool and the rock." [FN55] The rationale of the defence of superior orders in a military context has always been the need to bolster military discipline and ensure prompt obedience. That Leventhal J. can distinguish the situation of the soldier from almost every other citizen demonstrates that he, at least, has appreciated the military dilemma; that such an elegant statement of the rationale underlying *407 the superior order defence in the military context comes from a judge who would have severely restricted its application elsewhere may answer in some measure those "flood-gate" critics who fear that any concession in this direction would lead to ultimate inundation. The strict "no-defence" approach of position B which insists on treating soldier and civilian 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 to recognise the unrealism inherent in position B and have moved towards a qualified defence of superior orders based on the "manifest illegality" principle in Position C. In Queensland and Western Australia, for example, the Criminal Codes provide [FN56] "that a person is not criminally responsible for an act or omission, if he does or omits to do the act ... [in] obedience to the order of a competent 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

the suppression of a riot, is contained in the Tasmanian Criminal Code. [FN57] The position in the other three Australian States and at the federal level is less easily stated since, in the absence of criminal codification, recourse must be had to the same common law principles we examined above. In relation to service offences only, personnel subject to military discipline are entitled to be exonerated before military tribunals if their acts or omissions were in obedience to lawful orders; even unlawful orders may provide a justification where "the person did not know, and could not reasonably be expected to have known" that the orders were unlawful. [FN58] However, if a serviceman is charged with a criminal offence before the civilian courts, the position will be different. As the Hayden case referred to above demonstrates, there is no place for a general defence of superior orders in Australian criminal law. Yet there are some grounds for believing that a soldier, acting in a State of Emergency, might be treated as a special case. This speculation arises from the report of a review of domestic security laws carried out on behalf of the Government by Hope J. following a bomb outrage at the Sydney Hilton in 1979 and the deployment of troops in support of the civil authorities thereafter. [FN59] During the course of this very detailed review, the learned judge did consider the question of superior orders but he chose not to express a final opinion on whether a member of the Defence Force could rely on the orders of a superior, not being manifestly illegal, as a defence. This legal issue, he felt, had not been resolved satisfactorily and would require to be developed further by the courts. [FN60] The openness of Hope J.'s position on this question, when considering the particular circumstances of military involvement in armed civil strife, is instructive. It has led one Australian commentator, Lee, to conclude, inter *408 alia, that when soldiers have been called out to aid the civil power they will be protected against charges which require mens rea if they can establish that they acted bone fide in obedience to an order which, even if it was unlawful, was

not manifestly so. [FN61] While this position may be difficult to reconcile with the stringent "no-defence" stance of the Australian High court in Hayden, that case may be distinguished on the ground that it did not concern soldiers in conditions of, or approximating to, actual warfare, but rather trainee intelligence officers on a routine (if somewhat excessive) training exercise. In any event, it is hoped that this (necessarily selective) review of the cases has demonstrated that the position outlined by Lee is not invariably at odds with precedent in Anglo-American law; and it is further contended that Lee's position is to be preferred on the grounds that in practice it will do more, both to ensure military efficiency and superiority and to deliver 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 of those constitutional lawyers who see the rejection of superior order defences as an essential weapon in law's unending battle against the abuse of executive power and prerogative. Their argument appears to be that to allow the fact of superior orders to operate as a defence at all would be to encourage men of bad faith to shelter behind this possibility by disguising their illegalities as public duties. Any derogation from the supremacy of law is taken to lead inevitably to an escalating shift of responsibility in the hierarchy of command: the only safeguard against such a consequence is said to be the absolute prohibition of such defences in all circumstances, since only this will ensure the imposition of effective sanctions on identifiable offenders when abuses occur. We have already seen examples of how this presumption has influenced judicial thinking on superior order defences in English and Australian cases. The same type of approach can be identified in the American courts too. In the cases arising out of the Watergate and Pentagon Papers scandals (of which Barker is an example), some of the defendants sought to have their own illegal acts excused because they

had been carried out on the instructions of superiors whom they assumed could authorise such acts so as to make them legal. In Barker Leventhal J. asserted that (save for the exceptions he identified, above), such a plea must be rejected because, "[t]o hold otherwise would be to ease the path of the minority of government officials who choose, without regards to the law's requirements, to do things their way, and to provide absolution at large for private adventurers recruited by them ..." [FN62] The same argument was put succinctly in a later article on the lessons of Watergate. If such defences were allowed, it warned, "Harry Tuman's buck would be passed so rapidly from one person to another, than in the end, no *409 criminal would have committed the crime, only public servants doing their duty." [FN63] Yet, as history records, the particular Watergate "buck" did finally come to rest back where Truman (in other circumstances) said it would. The Nixon resignation is one example which, surely, entitles us to question whether the presumption against superior order defences is necessarily the best and only way of checking abuse of executive power. It may be argued instead that this presumption is a particular legacy of English constitutional history and of the greater readiness of common lawyers to criminalise individual rather than hierarchical turpetude. Lacking a rigorous concept of "State," and anxious to maintain the compromise embodied in the "Glorious" revolution, the custodians of bourgeois rights theory sought to confine the actions of the Sovereign by punishing the acts of his servants as if they and they alone were responsible for official wrongdoing. [FN64] Where the hierarchy of command is headed by a Sovereign beyond redress the prohibition on superior order defences is arguably logical and necessary. It is submitted, albeit tentatively, however, that given the advances in our system of democratic accountability this individualised approach is no longer to be preferred. Indeed, concentrating on the individual misdemeanours of Crown servants can

often appear more like scapegoating than a genuine attempt to control the abuse of power. When the "buck" stops at the bottom because the actual perpetrator of the unlawful act is alone made susceptible to law, neither justice nor civil liberties are necessarily best served. What is to be feared is that the "no-defence" approach actually represents only the manipulation of a particular theory about the Rule of Law which, by sacrificing the "footsoldiers," safeguards the "generals." One strong argument, therefore, for allowing courts to decide on the genuineness of superior order defences is the potential this has for repoliticising the exercise of executive power. If somebody did order summary executions in Gibraltar, does not the supremacy of law demand that we hear about it? Yet even if it were the case that the soldiers who carried out the killings were, or believed they were, carrying out the orders of their superiors, the absolute prohibition in the Military Manual [FN65] on such defences would 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 subordinate has been convicted, and in bringing an offender to book the authorities may claim to have "dealt with" the offence. The press and the public have a culprit whom they may see being led off in the metaphorical equivalent of chains and, politically, this is less damaging than would be an acquittal on the grounds that the illegal act was actually ordered "from above." Sonorous rhetoric about confining executive power by punishing the acts of executive servants may bolster formal theories of constitutional law. But when the practical effect of such an approach is to leave uncovered the *410 full extent of the illegality so that its true authors are not called to account, then such rhetoric shades into the ideological. Cynics may say, with some justification, that merely pointing the finger upwards (as it were), by acquitting the subordinates would not necessarily result in the superiors being brought to book. Admittedly, it would be naive to imagine that those in the chain of command would be

anything less than adept at concealing their involvement. The point is, however, that forcing the authorities into that type of concealment exercise, rather than allowing them to assuage public concern by the conviction of a lowly operative, has the potential (nothing more is claimed), of "unmasking" the gap between the idea of governmental accountability and the reality of the situation. [FN66] In theory at least, if faced with this sort of "immanent critique," the authorities must either deliver the substance of their claims to be an accountable government, or they will suffer the destabilising consequences of a lack of legitimation. [FN67] The counter argument to this thesis comes, in part, from a civil libertarian perspective which asserts that a respondeat superior approach would, in fact, lead to less accountability because it would allow the actual perpetrators of the criminal acts (who may often be the only identifiable culprits), to escape responsibility. Such an argument is founded on the premise that respondeat superior and individual responsibility are necessarily two opposed positions, incompatible with each other. This need not 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 exonerate themselves from responsibility for acts which any reasonable person should have appreciated were unlawful. So, the naval sentry who shoots dead a passenger in a pleasure boat [FN68] or the Marine officer who orders the destruction of an entire village [FN69] can no more defend those acts on the basis of superior orders than can the commandants of Nazi extermination camps. But the argument here has been that guilt and accountability should be questions of fact, not principle. Reliance on orders can lead and has led to mistakes as to the state of the law, especially among soldiers whose duty is 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 are the responsibility of those who have commanded them. It is

submitted that "manifest illegality" provides the objective key to this paradox. In the absence of an objectively determined mens rea the "poor bloody infantryman" should not 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 answers for a guilty action but rather that one with the guilty mind does. [FN70] In *411 this way mens rea is connected to actus reus (where that exists), by evidence of fact rather than by legal fiction and imputation, and justice is better served. Conclusion This article has argued that the stringent denial of a superior orders defence to the soldier in a situation of urban guerrilla warfare who acts illegally but bona fide in reliance on superior orders is of questionable authority and both inappropriate and unrealistic. It is inappropriate because the harm it is aimed at remedying, namely the abuse of executive fiat, is being perpetrated, if at all, by the superiors at various levels who have committed him to the situation. It is unrealistic because it requires the individual soldier to be able to make decisions on legal niceties in situations where sometimes his or her military competence and perhaps even instinct for physical survival will compel instant obedience. The strict "no-defence" position is predicated upon assumptions about constitutional law and the possible consequences of allowing such a defence which cannot be demonstrated in practice. Indeed, the denial of the possibility of a superior order defence may even facilitate the very abuses which its opponents say they seek to control. On the contrary, therefore, it is submitted that courts should be allowed to decide the bona fides of such a defence on the basis that military orders which are not manifestly illegal may give rise to a mistake of law which, per se, negatives mens rea. It is in this way that the interests of justice both for the individual soldier and for the wider civil society in which, increasingly, the soldier is becoming involved, will best be served.

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 of lawful 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 important legal 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.

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 a military context.

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

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.

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 the order 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 latter variety 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.

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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