Do Soldiers Have a Duty to Disobey Illegal Orders?

News Abroad

Mr. McDevitt is an assistant professor of history at the University at Buffalo, State University of New York. He is the author of most recently MAY THE BEST MAN WIN: SPORT. MASCULINITY AND NATIONALISM IN GREAT BRITAIN AND THE EMPIRE, 1880-1935 (Palgrave Macmillan, 2004). He is currently writing a book about social justice and human rights in the Atlantic world.

Joseph Heller’s famous novel Catch-22 is based on the premise that common soldiers can never beat the system. Regardless of the rights or wrongs of the matter, when someone has to pay, it’s going to be your average GI Joe (or Jane), not the military and certainly not the civilians charged with overseeing the military.

As the courts martial of U.S. soldiers suspected of abusing prisoners in Abu Ghraib prison are conducted, we will undoubtedly be hearing a great deal about the so-called "Nuremberg defense." After the Second World War, the victorious Allied powers put dozens of Nazi officials on trial for war crimes in the German city of Nuremberg. The most common defense was that the accused were "just following orders" and therefore not personally responsible for their actions.

The most recognizable of the currently accused soldiers, Pfc. Lynndie England, trotted out the same self-justification when she told CBS news, “We think everything was justified because we were instructed to do this and to do that.”

However, the International Military Tribunal which oversaw the proceedings at Nuremberg rejected this defense, arguing that individuals had an obligation to disobey orders which violate international law.

This precedent has been enthusiastically embraced by activists ever since, who see in the rejection of the Nuremberg defense, an encouragement for civil disobedience. Martin Luther King wrote in his "Letter from a Birmingham Jail" that “one has a moral responsibility to disobey unjust laws.”

However, the Nuremberg defense –- in either its original sense or when used to justify disobeying orders or laws which an individual decides are unlawful – is a Pandora’s box for society.

Take the case of Capt. Lawrence Rockwood, a counter-intelligence officer from the U.S. Army's 10th Mountain Division, which went to Haiti in 1994. Twenty thousand U.S. military personnel were sent to help restore deposed president Jean-Bertrand Aristide and stop human rights abuses by the military regime which had toppled him three years earlier.

Rockwood believed that American inaction in the face of human rights abuses was contrary to international law. His repeated attempts to get his superiors to intervene to improve the degraded conditions of Haiti’s prisons were rebuffed and Rockwood was ordered to cease his investigation. Believing the order to cease was an unlawful one, Rockwood dressed in full battle-gear and attempted to inspect the National Penitentiary, where 85 percent of the prisoners were political prisoners.

The Haitian warden prevented Rockwood from inspecting the prison in its entirety, but even in his brief tour produced evidence of mistreatment. The intervention of the U.S. military attaché convinced Rockwood to return to base. Given the choice of resigning or facing a court martial, Rockwood chose the latter. He told the court, “I am personally responsible for carrying out international law… That is the Nuremberg principle.”

After a trial at which any discussion of human rights violations was disallowed, Rockwood was convicted of numerous offenses. He was dismissed from the army and forfeited all pay, despite the fact that all of his criticisms of the prisons were later held to be valid.

None of this bodes well for the soldiers who are facing court martial for their roles in Abu Ghraib. The U.S. military and government in general want to maintain control of the situation, not protect human rights. Few people are as forthright and impolitic as Oklahoma’s Sen. James Inhofe, who dismissed people interested in investigating what is done in our name as “humanitarian do-gooders,” but his views are clearly widely shared in the country and the current administration.

So where does it leave us as a society if we punish those who carry out unlawful orders and those who disobey unlawful orders? It’s not clear, but it is certain that even if all the accused soldiers are convicted, most of the world will see it as a cover-up as long as no senior civilian official resigns or is fired. Of course, taking responsibility for things that go wrong has not been a hallmark of this administration.

Despite President Bush’s penchant for disregarding international agreements, his virtual abandonment of the Geneva Convention is still surprising, not least of all for the precedent it sets for our own military personal when they are captured by hostile forces. How will the U.S. public react when we’re told that captured Americans are not civilian contactors or POW’s, but rather “enemy combatants” and therefore not protected by Geneva and international law?

Unfortunately for the soldiers on trial, and even more so for those Iraqis who were abused and humiliated while detained without the benefit of trial or due process, it’s unlikely that our approach to international law is going to change while the current administration is in power. We will continue to act as if international law is something for lesser countries to obey and we will continue to squander the reservoir of good will that we possessed after September 11, 2001.

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Dave Livingston - 1/7/2005

Clearly sprcially in wartime there are potential situations when a soldier may be faced with a duty to refuse an unlaw order, but unless the situation involves threats of harm to innocents no soldier under my command, if he is wise, will hesitate consider refusing an order and if does decide to refuse one, he'd damned well choose a situation defined as illegal by the UCMJ, the Uniform Code of Military Justice. Otherwise, he'll find himself in the slammer, assuming he lives to make it into a courtroom. The battlefield is not a place for windbags to debate orders given.

All that said, yes, the incidents at Abu Ghraib, if they've been described at all accurately by the news media, were evilly sadistic and heads should roll via the military justice system. It may be bias on my part, but I cannot envision any officer ordering what evidently happened there, not if he is sane and interested in his military career. But clearly too one or more officers failed to preserve good military order at Abu Ghraib. Likewise at My Lai neither Calley nor Medina ordered the slaughter of innocenta, but they were responsible for the poor discipline of Calley's platoon, when some of the troops lost control of their emotions & proceeded to commit mass murder. That may, probably was, be the case in Iraq, a badly led unit permitted some individual G.I.s to run out-of-control. Even so, a commander is responsible for the conduct of the men he commands, whether or no he is on the scene when they do something good or bad. That's why Captain Medina, nowhere in the area at the time, was nailed for the murders committed by Calley's platoon.

John H. Lederer - 6/6/2004

"The lack of courage to disregard a criminal order, or a mistaken fear that you could be court-martialed for disobedience of orders, is not a defense to a charge of murder, pillage or any other war crime," U.S. Army Land Warfare Manual

I know in my naval training (long, long, long ago) I had expressly emphasized to me my duty to disobey an unlawful order.

The trick, of course, is in determining what is an unlawful order. But of course a similar trick is needed in many religions to save one's soul.

Paul Noonan - 6/4/2004

Actually everything I've read about My Lai states that Calley not only gave specific orders to kill civilians,but actually shot civilians himself. See, for example


Every time I read about My Lai I have a pleasant fantasy that some day Calley will go on vacation outside the US, be arrested and dragged before the Hague Tribunal to finally really face the consequences of his actions.

Vernon Clayson - 6/4/2004

Mr. Severance, water balloons, playing monster and tickling could be considered horseplay, albeit genteel horseplay, if the "victims" aren't really distressed by it and it is acted out by friends, albeit childish friends. I mentioned earlier that we give these less than sophisticated suspect soldiers too much credit if we think they believe they were actaully conducting psychological operations meant to break down the prisoners will to resist. It is far more likely that they are small-minded and mean spirited persons who took advantage of the situation, HOWEVER IT CAME ABOUT, to act out their perceived superiority over the imprisoned individuals. As difficult as it may seem to believe , from all indications, they were having "fun", and therefore, "horseplay" does fit, albeit over the edge from a civilized viewpoint.

Ben H. Severance - 6/3/2004

Agreed. We must all be calm and level-headed for the sake of good and proper jurisprudence. I don't want anyone being punished for something they didn't do. But I don't want a travesty of justice either. The media certainly looks for sensational headlines, but it rarely manufactures scandals simply for public consumption. It does embellish the truth, but it doesn't deliberately make things up. Seymour Hersh is a veteran journalist whose findings have to be taken seriously. Also, many of the JAG officers I've listened to or read about are quite perturbed by the Pentagon's handling of the legal matters. Moreover, while I agree that the Pentagon may have to withhold information from the public at large, I find it very disturbing when it withholds information from Congress, a body whose authority and trustworthiness is superior to the military.

As for the 8th Amendment, you are right, it explicitly applies only to U.S. citizens, but dismissing its applicability to others is a dangerous precedent. As for the Geneva Convention, because the Senate ratified U.S. participation, it has the full weight of a Treaty, which is as binding as any domestic law. America cannot violate its provisions without an official Senate abrogation. Thus, Rumsfeld (a civil appointee mind you) has absolutely no authority to dispense with it, at least not in Iraq, which was an "established state" when the U.S. conquered it, and whose current insurgents are mostly combatants, such as the Mahdi Army of Al-Sadr, rather than terrorists, though Al-Queada is operating there.

But enough, we both want a thorough investigation and a fair trial. That we differ over the magnitude and significance of Abu Ghraib is another matter altogether.

Vernon Clayson - 6/2/2004

The Pentagon is probably withholding some information, more than likely because they have to substantiate any and all information. They don't deal in inflammatory headlines like the media, they have to research every aspect. For each picture in their possession, the military and civilian investigators have to gather every possible bit of evidence they can to answer, what, when, where, how and why. They have to build a case as sophisticated and thorough as any criminal charge, there can be no short cuts. The silly posturing woman in the photos has to be presumed innocent despite the crude and stupid acts pictured. Her photograph is an instant on display, a moment frozen in time, it is not a complete history of the incident. Also, my understanding of the 8th amendment is that it is a guarantee to citizens of the US, not every person in the world. That aside, I would like to know where in the constitution it explains that agreements like the Geneva Convention are "constitutionally obligated" - does it clarify whether a formal declaration of war is necessary for it to apply and, in any event, doesn't it prescibe the treatment of uniformed military personnel of an established state?? I don't like what the soldiers did but they can't be tried in the media, the legal process is in place and would anyone want less?

Ben H. Severance - 6/2/2004

Mr. Clayson, See my comments elsewhere on this article's blog thread. You simply must redefine your notion of horseplay. Tossing water balloons at a buddy taking a nap while he is sunbathing is horseplay. Pretending to be Frankenstein's monster and chasing your four-year-old around the den is horseplay. Tickling your girlfriend until she can barely breath through her laughter is horseplay. The incidents at Abu Ghraib, however, are examples of sadism.

Ben H. Severance - 6/2/2004

Mr. Clayson,

You're quite right to point out that the implicated soldiers at Abu Ghraib are free agents. And I do believe that they were willing participants in the abuse--the gleeful smiles and posing demonstrate that--and I do want them to face the full punishment of UCMJ, their spurious "just following orders" defense notwithstanding. Nonetheless, one would have to be obtuse to think that the story ends with a half-dozen or so "unsupervised brutes." I've read the Taguba Report (or at least those portions the Pentagon has not censored) and its findings are damning; it essentially indicts the entire chain-of-command at Abu Ghraib. There is no way six or seven guards could have tortured scores of prisoners for several months, and taken some 2,000 photos and video in the process, and the officers not have known about it.

I'm not suggesting that there is a government conspiracy going on, nor that heads must roll right on up to Rumsfeld (though his deliberate, and admitted, violation of the Geneva Convention, a treaty the U.S. is constitutionally obligated to uphold, is sufficient grounds for his removal). I am suggesting that the abuse is more widespread than many Americans want to believe. As a former officer myself, I steadfastly believe in the overall professionalism and honor of the U.S. military, and do consider Abu Ghraib an aberration, albeit a big one, but the Pentagon's less than forthright reaction to the scandal leaves me wondering whether there is more fire in the smoke.

As for your characterization of Karpinski as a pathetic SGT Schultz, I totally agree. As for your description of the abuse as "crude horseplay," I do not. Could you laugh off the humiliation of being stripped by foreigners, having snarling dogs inches from your balls, having shit smeared all over you, having a broken chem light shoved up your ass, having someone sit on your head, being stacked naked on top of other men, being forced to renounce your faith, being chained to a rail for hours in panties, etc...? That's a very weird form of horseplay. The 8th Amendment forbids "cruel AND UNUSUAL punishment." The abuse at Abu Ghraib was highly unusual.

Vernon Clayson - 6/1/2004

Mr. Severance is doing the same as most others, he assumes the soldiers involved were acting under orders, but that is still in contention. All actions by individual soldiers are not the result of orders, they do not give up all self-expression and thought merely because they are in the military. My bet is still that it was largely crude horseplay carried out, admittedly way too far, by some really less than sophisticated individuals and I think we give too much credit to those individuals by positing that they were acting under orders. One would have to believe that some superior told them to use the prisoners in any fashion short of killing them, however, the superior-subordinate relationship in the military is never quite that casual. The major failure is that responsible people allowed these dull brutes to be around the prisoners unsupervised. I watched Gen. Karpinski on TV last evening, it made me wonder how she advanced to that rank with her "I saw nothing.", not unlike Schultz on Hogan's Heroes.

Richard Henry Morgan - 6/1/2004

I'm not in principle opposed, I'd just like to see the text that says the duty, in this case, fell upon Rockwood.

Richard Henry Morgan - 6/1/2004

I'm not in principle opposed, I'd just like to see the text that says the duty, in this case, fell upon Rockwood.

Ben H. Severance - 6/1/2004

As my unit established an assembly area in northern Saudi Arabia in the fall of 1990, I remember a captain telling me that we might have to carry out some tough orders. But he stressed that we could disobey any order we thought was illegal or unethical. Good advice, but thankfully I never had to test my convictions on this matter. If I, as an officer, had some inner doubts about my moral courage then, I can only sympathize with the actual moral failings of the Abu Ghraib prison guards. They should have disobeyed orders, but its hard to stand up to pressures from above.

What bothers me about Abu Ghraib, besides the torture itself, is the Pentagon's apparent intention to restrict prosecution to the junior enlisted personnel. To me, there is a much wider web of culpability, particularly among the officer corps (including perhaps BG Karpinski and COL Pappas). And if it really is just fraternity type hazing, then why is the military brass so evasive? Why not come clean, court-martial the entire chain-of-command at the prison, and end the matter?

Sadly, I think there are some generals who are demonstrating just how difficult it is to do the right thing. But it's so easy to let a tacit policy of selective abuse erupt into a moral conflagration. Rumsfeld dispenses with the Geneva Convention against Al-Quaeda. This unofficially translates into unwise prisoner policy at Abu Ghraib. Vague orders about "softening up" become ugly. Otherwise decent and professional officers, who likely gnashed their teeth at first, reluctantly look the other way, hoping that Abu Ghraib is a one time only case of letting the ends justify the means. They hope that no one will find out, vowing inwardly to play by the rules the next time. But the story leaks, and rather than take responsiblity, the civil and military leaders engage in subterfuge and damage control. They do so not just for self-preservation, but because they truly are basically good people who on the whole are trying to fight a good war, and fight it justly, but realize that one instance of bad judgement risks destroying the achievements of their other, more sound decisions.

If the Abu Ghraib torture had occurred at Gitmo and not in Iraq, I think most Americans would have no pity. Gitmo is full of real terrorists and the war on terror is a just war. Unjust fighting against terrorists can be tolerated, and can be necessary. But the war in Iraq is not a just war (at least not for the reasons posed by President Bush) and U.S. objectives in Iraq are different than those in the war on terror. It is extremely difficult to fight an unjust war (Iraq) justly, and just fighting is the only way one can salvage an unjust war. The performance of the majority of U.S. troops is laudable, but in an unjust war it has to be perfect. Abu Ghraib reminds us all that nothing is perfect, particularly courage.

chris l pettit - 6/1/2004

On my way out the door...what do you think of positive obigations in the law. Not just international law as I suspect I know that response, but law in general. Are their duties as well as rights?


Jonathan Dresner - 6/1/2004

They are, however, most of what we have to go on. Wouldn't be the first time new evidence required new conclusions, if we turned out to be wrong.

Richard Henry Morgan - 5/31/2004

I would say that press reports are a very thin reed for conclusions, particularly given the incentive for England and others to claim so, and given the testimony of Sivits.

Richard Henry Morgan - 5/31/2004

Jon is right. Rockwood had no orders to venture into the prison. Nor, as a counterintelligence officer, was it within his job description, or mission, or expertise. He did have a lawful order not to venture there. Nor is it clear that obligations fell on him, or on the US, but if the latter, it is not Rockwood's job to fulfill US obligations. As to the larger question, it is obvious. In fact, every US soldier is instructed he has a duty to disobey an unlawful order.

chris l pettit - 5/31/2004

...that Rockwood was incorrect? We seem to be ventruing into the area of guilt by omission...something the US was blatantly guilty of in haiti in 1994. I am a bit uncomfortable with the analogy because it once again shows the propensity of certain historians to interpret history as a series of independent events instead of an infinite timeline of causes and effects and, as this author has, pick a certain event to start from...in this instance 1994 and the US going into haiti to try and rectify the mess they caused in the first place by undermining Aristide.

That being said, the guilt by omission thought is very interesting in this context. historically, it can be argued that the US was in Haiti a) cleaning up the mess they originated (actually making it worse), b) worried about corporate and economic interests, c) worried about US international legitimacy since they had undermined the elections and supported the coup to begin with, and d) worried about human rights. Not necessarily in that order, but I would think that we can conclude from the historical record that the concern for human rights violations was last on any list of priorities (any statements to the contrary being either rhetoric or individual feelings not borne out by actual policy). For my money, this is the perfect situation where Fortas' famous "rule of law" analysis falls apart and civil disobedience becomes necessary.

I guess I am stating that it all seems to come back to positivism and whether one has the duty to disobey an unethical and immoral order from the sovereign in regards to both positive and negative duties. It becomes a debate between whether "law" is interpreted as what the sovereign creating the law does or does not say, and whether there is a duty to obey or enforce such law. With the twisted and mistaken view that many (most?) Americans take of international law, there exists a great area available to make the case that Rockwood was correctly interpreting international law and US obligations according to his training and scholarship. Whether his actions because of that belief were sensible is another matter, but a US military tribunal is not the place to judge whether the interpretation of international law, which was the law in question, was being interpreted correctly. Of course this again runs into another problem...what is a correct response and who decides whether a nation or its forces are correctly implementing measures that actually addresses the violations international law...and does failure to implement correct policies once one commits to doing so indicate a dereliction of a nation's international obligations? THe fact that human rights were not breached at the trial is a farce and a disgrace, as they had everything to do with why US forces were there. The violations that Rockwood was passionate about were clearly violations of international law, the question becomes whether the US had an obligation to investigate such matters and actually do something to combat them, and what requirements were placed on the US. It is here that the nation-state basis of the UN and international community breaks down and the paucity of any system based on nation-state sovereignty is once again exposed. how to handle such an issue is problematic. What action should the international community take if a member undertakes a "humanitarian" mission, then proceeds to protect and deal with only its own self interests (or deals with human rights on a minimal level so as to have something to point to)? If you want to argue state's interests what about the sovereignty and interests of the Haitian people? This harkens back to the fact that the US screwed Aristide and a democratic election in the first place! Where was the discipline under international law at that point? And why was the US back in Haiti again to simply promote self interest for a second time. Come to think of it...we are still there for a third time and nothing is being done. This for me shows why soldiers...anyone for that matter...has a duty to disobey orders or laws that violate international law and constitutional law. I must bring attention to a book by Zinn, who normally I would not quote, but who happens to have written what is the best book on Fortas' "rule of law"...True Democracy, True Dissent. In addition, the reasoning contained in the writings of Lon Fuller regarding positivism becomes prevalent as well.

I guess this ramble comes down to where I started...omission and positive versus negative duties...both of which exist and are required under any moral and ethical pretense (although not positivist law).


PS - By the way...I see in blogdom that you all are had a fascinating legal discussion regarding the blatantly unconstitutional bill being brought about by the House. I leave for a nice r+r in the jungles of Sri Lanka and you guys go and start a legal discussion...no fair! Hope everyone is having a good week by the way. Sorry Dr. Dresner that I won't be able to get back to you on reply about this as I am now off to Nepal...talk to you next week.

Jonathan Dresner - 5/30/2004

Sorry, I was using "evidence" in the epistemological, not legal sense: "the basis for my conclusions".

Vernon Clayson - 5/30/2004

Mr. Dresner, you say you don't see any evidence that you are wrong. Actually, unless you have unlikely access to information from the the actual investigators, you have no evidence. At best, you have the same media reports and photographs the rest of us have, therefore, you most likely have no more knowledge of these incidents than the rest of us and that knowledge hardly can be considered evidence. Evidence is more complicated than knowledge of something, it has to meet strict legal and judicial standards. Inflammatory pictures and reports may a story make, but evidence they do not make. Responsible people in the military and the government will review and judge every aspect of the various acts and decide what is actual evidence. Their biggest crimes, if crimes they be, were stupidity and meanness and the most advanced systems of governance and supervision hardly ever legislate against that.

Paul Noonan - 5/30/2004

Good point. Obviously Lyddie England is going to claim to have been following orders if she pleads not guilty. It is the only possible defense open to her, as the photographs prove the events in question happened. The only alternative is to cop a plea. Note that Sivits (sp?), who pled guilty denied that they acted under orders.

It is possible that the interrogators told Graner, England and Co. to "soften up" the prisoners for interrogation without specifying how far to go. I think it is unlikely that the specific acts committed were ordered by superiors.

Jonathan Dresner - 5/30/2004

You're right, both of us believe (not an assumption, but a conclusion drawn from a variety of evidence including the use of the "following orders" defense) that the abuse was systemic and intentional.

We'll see: I think it's too early to actually make firm conclusions about this, but I don't see a lot of evidence that I'm wrong, yet.

Vernon Clayson - 5/30/2004

Both Mr. McDevitt and Mr. Dresner are proceeding on the assumption that the soldiers involved were acting under orders rather than, more likely, indulging in some unsupervised and stupid horseplay. The fault is not with high ranking military and civilian authorities, the fault is completely with the immediate supervisors of these obviously less than complex individuals. Generals have to rely on officers and non-coms at ground level to control their subordinates, no one expects that a general oversee every detail in the day to day operation of individual units. The major failure is that the ranking officers and non-coms in this situation did not perceive that their subordinates were capable of such foolishness, the subordinates should not have been left in position to act out their stupid conduct. I also take umbrage at the media outrage that violence, abuse and torture is not American, they only have to go back in history to the Civil War and the treatment of prisoners at Andersonville, GA, and Elmira, NY, for serious examples of abuse and torture and it has continued in most conflicts since. If they need more recent examples of violence, they could venture into the night life in Washington D.C.,four or five blocks from the White House.

Jonathan Dresner - 5/30/2004

I'm not sure that the Rockwood example is a clear counterbalance to the Abu Ghraib cases. From this description, Rockwood did not "disobey an unlawful order" as much as he reinterpreted international and military law to allow him to carry out an individual crusade (for which this administration ought to give him a "leading the way" medal, but that's neither here nor there). The mission he was on was intended to end the human rights abuses he found, just not on his timetable.

In the Abu Ghraib case, the torture constitutes a clear positive violation of international law, of military law, of criminal law. There's no room for interpretation, and disobeying those orders would have been entirely justified.