Do Soldiers Have a Duty to Disobey Illegal Orders?

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.