The Superior Orders Defense: a Principal-agent Analysis

• Publication year: 2012
• Citation: Vol. 41 No. 1

THE SUPERIOR ORDERS DEFENSE: A PRINCIPAL-AGENT ANALYSIS

Ziv Bohrer^*

TABLE OF CONTENTS

I. INTRODUCTION...................................................................................3

II. THE CORE PREMISE OF THE CURRENT SUPERIOR ORDERS DEFENSE DISCOURSE..........................................................................................7

A. The Balancing Test.......................................................................7
B. The State of Applied Law............................................................13

1. International Law................................................................14
2. American Military Law........................................................17

III. AGENCY ANALYSIS OF OBEDIENCE TO ORDERS...............................19

A. Use of Agency Models................................................................19
B. Agency Model of Obedience to Orders......................................20
C. Command Responsibility Rule....................................................23

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D. Agency Analysis of the Five Commonly Endorsed Approaches.................................................................................26

1. Equal Liability, Respondeat Superior, and Reduced Sentence Approaches...........................................................26
2. Agency Analysis of Conditional Liability Approaches........31

IV. Any One-Rule-Fits-All Policy is Inappropriate: Further Indications.....................................................................................34

A. Agency Analysis, Excusatory Considerations, and Conditional Liability Approaches..............................................34

1. Mistake of Law and the Factual Approach..........................35
2. Psychological Coercion and the Normative Approach........38

B. Applying the Agency Analysis to the International Arena..........40
C. Effects of Discretion in a Subordinate's Determination of Legality.......................................................................................42

V. Solution—A Modular Policy....................................................45

A. Choosing a Fragmentation Level...............................................45

1. Case-by-Case Regulation is Inappropriate.........................46
2. Choosing the Proper Level of Specification........................50

B. Criminal Orders in Non-Emergency Situations.........................53
C. Other Illegal Orders...................................................................55
D. Orders Given in Emergency Situations......................................56
E. Protecting Civilians from Harm.................................................63

1. Rules Applicable in All Emergency Actions.........................63
2. Use of Force in Emergencies Other Than Armed Conflicts...............................................................................65
3. Use of Force in Armed Conflicts.........................................67

VI. Conclusion.....................................................................................73

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I. Introduction

Imagine that Jane is a soldier who just received an order to abuse prisoners, as in the case of Abu Ghraib, Iraq;¹ to kill innocent civilian villagers, as in the case of My Lai, Vietnam;² or to participate in the persecution and extermination of an ethnic group, as in the case of the Holocaust.³ While we can argue over the specific details of the law that should govern the extent to which soldiers have a duty to obey their commanders' orders, can anyone argue that the law should instruct a soldier like Jane to obey orders in any of those three situations? Can anyone truly argue that a soldier like Jane should not be expected to know that such orders are illegal? Furthermore, let us assume that Jane obeys the order, she is put on trial, and she raises the superior orders defense; a criminal law defense that allows a subordinate to avoid culpability for an illegal act committed under orders. Setting aside the question of if and when subordinates should be allowed to raise this defense, does anybody truly think a soldier like Jane should be sheltered from punishment by claiming obedience to orders?

Let us now consider the case of another soldier, Sue, who is a supply sergeant. Her commander gives her an order to supply certain ammunitions to a battalion in the field. Sue has doubts as to whether the ammunitions she is instructed to supply in massive quantities are legal according to the law of war, but she has no time to clarify the issue.⁴ If Sue is right, and the order is

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illegal, then obeying it will enable the commission of a war crime on a massive scale. If Sue is wrong, and the order is legal, a legitimate military attack might fail due to her mistaken refusal to supply the ammunitions. When should Sue be punished for such obedience, if the order turns out to be in violation of the law of war?

Lastly, consider a third case dealing with domestic law. Jill is an airplane mechanic in the Air Force. Her commander gives her the order to do a quick fix on an airplane engine. Jill vaguely recalls that Air Force regulations forbid the kind of procedure she has been instructed to perform for safety reasons, but she has no time to check the governing regulations. If Jill is right that the order is illegal and obeys it anyway, the airplane might crash and soldiers might die. If Jill is wrong and disobeys the order that is legal and safe, an important military operation will be unnecessarily delayed. When should domestic law obligate Jill to obey? Moreover, if Jill was correct in suspecting the order to be illegal and yet decided to obey because she was unsure of her assessment, should she be allowed to raise the superior orders defense if she is later prosecuted?

When we think of the superior orders defense, we usually think of cases like Jane's. But, we should also have in mind cases like Sue's and Jill's, as well as many others where the illegality and immorality of an order is less apparent. Moreover, in this Article I will argue that by paying more attention to cases like Sue's and Jill's, we can actually create a law that reduces the likelihood of soldiers obeying orders in cases like Jane's.

How do we want illegal acts committed under military orders, known as crimes of obedience, to be regulated by the law? Jurists are in wild disagreement on this subject and have only been able to agree that the issue should be regulated by a "one-rule-fits-all policy" (i.e., the same legal rule should be applied regardless of the subordinate's rank or the kind of military activity in which the order is given).⁵ Moreover, this dispute is not only an

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academic one; in many legal systems, including international law, judges differ in their interpretation of the relevant law on the books, causing uncertainty and inconsistency in the applied law.⁶

This failure to agree upon a regulating norm is not due to a lack of effort. Combatants are the perpetrators of the vast majority of war crimes,⁷ and they often perform such crimes under orders.⁸ Thus, the superior orders defense issue "has long been a critical issue in international criminal law."⁹ The law pertaining to obedience of orders is also a core issue for any domestic system of military criminal law, since obedience to orders is the "cardinal virtue"¹⁰

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of the military profession and the "backbone" of any armed force.¹¹ Despite this issue being central for both domestic and international law, it has yet to be resolved.¹² Moreover, in the past decade, this issue has even experienced a surge of legal interest. This is in part due to the United States' and other countries' prolonged involvement in Iraq and Afghanistan,¹³ as well as the ratification by many states of the Rome Statute of the International Criminal Court (ICC), which includes a superior orders defense.¹⁴ Sadly, this increased discussion has neither resolved the scholarly dispute, nor has it reduced uncertainty and inconsistency in the application of the law.¹⁵

Thus, this Article re-examines the issue from a new perspective that originates from the field of microeconomics; principal-agent analysis. This analysis demonstrates that the core premise of current legal discourse—regulation through a one-rule-fits-all policy—is flawed. Furthermore, the principal-agent analysis' concussions help to formulate, in this Article, a model for a new legal policy; one that can better regulate the issue of obedience to illegal orders.

The Article proceeds in the following manner: Part II discusses the current approaches to crimes of obedience, all of which are one-rule-fits-all policies. The actual harm caused by the current inability to agree on a policy is also discussed, as are the reasons for the legal community's inability to come to a consensus. Part III offers a new way to assess the public aims relevant to regulating crimes of obedience, by applying a principal-agent analysis. This analysis shows how each of the currently suggested policies influences subordinates' and commanders' behavior. It further uncovers the lawmaker's gains and harms under each policy. Doing so enables one to compare the different policies—with regard to the extent each is beneficial to the lawmaker. The analysis shows that none of the currently adopted policies should be applied in all scenarios (i.e., in different situations, a different policy will be the one most beneficial to the lawmaker). Part IV discusses three additional matters that strengthen the conclusion that

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obedience to illegal orders should not be regulated through a one-rule-fits-all legal policy. First, it shows that even if the superior orders defense is viewed as an excuse defense, it does not follow that regulation of obedience to illegal orders should be done through a blanket application of one legal norm. Second, it argues that, despite differences between international law and domestic law...