FOR EDUCATIONAL USE ONLY17 Am. J. Crim. L. 55

American Journal of Criminal LawFall, 1989

Note

*55 THE DEFENSE OF OBEDIENCE TO SUPERIOR ORDERS: THE MENS REA REQUIREMENT

Jeanne L. Bakker

Copyright 1989 by the University of Texas School of Law; Jeanne L. Bakker

I. INTRODUCTIONIf soldiers are told by a superior officer to burn houses or shoot prisoners, can those soldiers be held criminally accountable for the burning or shooting? Such actions may be violations of the "Laws of War."' [FN1] Soldiers may find themselves facing criminal war crimes charges, [FN2] but they may have the defense of obedience to superior orders available to them. Whether obedience to superior orders is a shield behind which the offender can hide from the arm of the law has been a concern of jurisprudential thought since the early 1600s. [FN3] This note analyzes the superior-subordinate relationship and the criminal culpability of subordinates who obey illegal orders.Offenses committed pursuant to superior orders may occur wherever a hierarchical relationship of superior and subordinate exists and where, within the ambit of that relationship, the subordinate is duty-bound to comply with his instructions. The demands of obedience, however, come into conflict with the imperative need for supremacy of law when the subordinate is given and expected to carry out an illegal order. Although both military personnel and civilians may find themselves in such hierarchical relationships, [FN4] the dilemma *56 facing the subordinate most poignantly presents itself within the military context. Soldiers, as opposed to civilians, have a greater than ordinary duty of obedience; obedience is the nature of their profession. Accordingly, this note will scrutinize the mens rea requirement of the defense of obedience to superior orders in the context of military subordinates carrying out illegal orders.Conventional war crimes, like other crimes, require proof of two elements: "'the performance of an act forbidden by law . . . and the presence in the person executing the act of a guilty or culpable condition of mind."' [FN5] Both must be present to secure conviction. As a general rule, "a guilty or culpable condition of mind consists in the will or intention to do the act which constitutes a crime under law; in the knowledge a person has that he is participating in such an act; or in a culpable failure to perform a duty imposed by law."' [FN6]This note proposes that the traditional doctrines that address superior orders do not adequately take into account the subordinate's state of mind. The doctrine of respondeat superior, in which the subordinate is always innocent, is examined in Part II. Part III examines the doctrine of absolute liability, in which the subordinate is always guilty. However, mens rea is more adequately addressed without the aid of such extreme theories. Therefore, Part IV argues that the existence or non-existence of the defense of superior orders, alone, is not determinative of mens rea; rather, a number of other elements should be considered, including the nature of the orders, the nature of the threats upon disobedience, and the circumstances surrounding the subordinate when given the orders. Superior orders may be a defense, but only within the context of other defenses, namely, compulsion and mistake *57 of fact. Finally, Part V addresses the Spring 1989 trial of Lt. Col. Oliver North--a high-ranking officer of the National Security Council under President Ronald Reagan--who successfully maintained a defense of obedience to superior orders.

II. THE DOCTRINE OF Respondeat Superior

Under the doctrine of respondeat superior [FN7], obedience to superior orders is a priori an absolute defense to criminal prosecution. [FN8] The second volume of Oppenheim's Treatise on International Law [FN9] contains a passage regarded as the "backbone and cornerstone"' [FN10] of the doctrine: "In case members of forces commit violations ordered by their commanders, the members cannot be punished, for the commanders are alone responsible and the latter may, therefore, be punished as war criminals on their capture by the enemy."' [FN11] Allowing obedience to superior orders as an absolute defense does not eliminate criminal responsibility; instead, it shifts the locus upward to the person who issued the illegal orders.Professor Oppenheim did not produce authority for his view in the first two editions of his treatise, the latter published in 1912. However, with World War I looming on the horizon, "[T]he question of granting impunity to war criminals acting in pursuance of orders suddenly materialized with all its gravity."' [FN12] Consequently, contrary authorities began to appear. [FN13] The result was considerable confusion in military law on the question of a subordinate's defense of obedience to superior orders. [FN14]*58 Even as late as 1961, when the weight of authority no longer supported the respondeat superior doctrine, Nazi fugitive Adolf Eichmann maintained (unsuccessfully) that as the recipient of orders, he was immune from responsibility and guilt: HAUSNER: You know that the Nuremberg Tribunal condemned to death Goering, Frank, Kaltenbrunner and others for their part in the killing of the Jews. EICHMANN: Yes, but they gave orders. Q: And therefore you consider the sentences justified? A: As persons who gave orders and were thus responsible, yes. Q: Then the sentences were justified? A: Men who give orders must bear the responsibility. Responsibility rests on those who give orders, not on those who receive orders, for those who give orders can change them, but those who accept orders can only obey them. [FN15]Supporters of the respondeat superior doctrine attempted to fill the gaps left by Oppenheim to counter the arguments of contrary authorities. Their arguments operate on the premise that soldiers are duty-bound to follow orders and the interests of military discipline could not require less. Thus, they look to the "practical problem emanating from the straits to which the soldier, confronted with superior orders, is reduced when the defense of Respondeat Superior is denied."' [FN16]

A. Ignorance or Mistake of LawSome supporters of the respondent superior doctrine rationalize it in terms of a bona fide mistake of law by the recipient of the order. First, solders cannot judge the legality or illegality of the orders because their ignorance of the laws of war makes them incompetent to make such a decision. [FN17] Therefore, "it is repugnant . . . to think of punishing a soldier who, in the first place, would be ignorant of the legality or illegality of his act."' [FN18] Second, even if a soldier were earnestly encouraged to disobey obviously illegal orders, many times the soldier would still be incompetent to assess what is and is not a violation of *59 the laws of war given the "uncertainty and irrationality"' of international law. [FN19] Third, the soldier may not be in a position to ascertain the legality of the order. [FN20] Finally, it has even been suggested that the maxim ignorantia juris non excusat [FN21] simply does not apply in international law. [FN22]On a very broad scale, the mistake of law rationale for respondeat superior seems appropriate. For example, several defense counsel at the Nuremberg trials [FN23] argued that military discipline made it impossible to impose upon an officer the obligation to probe into the legality of the orders to wage war. First, soldiers will rarely be in a position to discern all relevant circumstances to determine whether war is permissible. Second, because the definition of aggression, as a matter of law, is disputable even among scholars versed in international law, soldiers should not be required to determine such a subtle question. [FN24] The defense argued that the officer or soldier standing trial is not a judge and is neither obliged nor competent to pronounce a verdict on the lawfulness of his nation's policy. [FN25] Furthermore, even when the soldier doubts the legality of orders, he still must obey. [FN26] One defendant even

argued that war could not be waged if, on the basis of personal opinions that the war contravened the laws of war, soldiers refused to comply with the wishes of the competent political leadership--thus effectively handcuffing the national government. [FN27]*60 It is true that subordinates who "receive orders from duly constituted authorities operating within an apparently legal framework . . . may well assume that the orders themselves are legal,"' [FN28] thus affirming arguments that this mistake of law should exculpate them. In many instances, however, even soldiers with minimal training and experience will have some sense of when they are given an illegal order. For example, at the trial of U.S. Army Lieutenant Calley one of the enlisted soldiers of "Charlie Company"' described how he directly disobeyed Lieutenant Calley's orders to fire upon the occupants of the village of My Lai 4 in Vietnam. When asked if he fired when Lieutenant Calley ordered, Pfc. James Joseph Dursi testified: "No. I just stood there. Meadlo [another enlisted soldier] turned to me after a couple of minutes and said 'Shoot! Why don't you shoot! Why don't you fire!' He was crying and yelling. I said, 'I can't! I won't!'D'D' [FN29]Specialist Four Ronald Grzesik reported an even more direct confrontation with Lieutenant Calley: GRZESIK: Well, Lieutenant Calley, I walked past the ditch. I was called back by someone, I don't recall who. I had a discussion with Lieutenant Calley. He said to take the fire team back into the village and help the second platoon search. DANIEL: Did Lieutenant Calley say anything before he gaveyou that order? GRZESIK: He said, "Finish them off."' I refused. DANIEL: What did you refuse to do? GRZESIK: To finish them off. [FN30] It is clear that some soldiers will often have a sense that what they are doing is wrong even if they are unable to frame their objection in legal terms. Therefore, a rationale for respondeat superior based on mistake of law can only be justified in a limited number of situations. Accordingly, the rationale fails to explain why a soldier who carries out an illegal order with full knowledge of its illegality should be exculpated. Although military discipline is a necessity for the smooth operation of a hierarchical chain of command, allowing obedience as a defense to carrying out an obviously illegal order makes military obedience superior to the rule of law. Even the advocates of the respondeat superior doctrine have not gone so far.

*61 B. CompulsionProponents of respondeat superior argue that the interest of military discipline requires immediate obedience without hesitation: "Obedience to orders is the first duty of a soldier, and it is absolutely necessary to military discipline. He cannot discuss or question the commands that are given him."' [FN31] Similarly, Professor Oppenheim inserted the following statement in a footnote in the third edition of his treatise: "The law cannot require an individual to be punished for an act which he was compelled by law to commit."' [FN32]Because a soldier's training "will very largely consist of a process designed to inculcate within him habits of obedience to command,"' [FN33] "it is practically impossible for a soldier to refuse to obey an order."' [FN34] It is argued that the severity of military discipline eliminates any alternative action by the soldier and therefore, a soldier should "be excused whenever he does do what he is told to do because this is what they will have been trained to do."' [FN35] Defense counsel at Nuremberg put their trust in the respondeat superior doctrine, emphasizing that a soldier is bound to obey orders without doubt or hesitation and that discipline is the backbone of the army. [FN36] One of the defense attorney's at the Nuremberg Trials even said, "If a man becomes a soldier, his soul and body thereby become the property of his commanding officer."' [FN37]According to this approach, the habit of obedience that military discipline infuses into soldiers' blood becomes second nature, paralyzing all independent will power and thinking capacity and converting soldiers into puppets who react automatically to any whim or caprice of the master pulling the strings. In short, when soldiers are confronted with a superior order, they are driven, virtually forced to obey.The argument that whoever doffs his civilian clothes and dresses in military uniform is

magically changed into an unthinking follower of all orders, be they legal or illegal, has been categorically rejected *62 in war crimes trials. For example, in the Einsatzgruppen trial, another post-World War II war crime trial, the tribunal pointed out the impossibility of such a position: [T]he obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery. It is a fallacy of widespread consumption that a soldier is required to do everything his superior officer orders him to do . . . . [FN38]The effectiveness of a chain of command may itself be jeopardized if subordinates blindly follow superior orders. "Officials are expected to ask questions of their superiors, and to be morally and legally responsible for their own actions . . . . They realize that they owe a president something more precious than obedience; they owe him their independent judgment."' [FN39] The compulsion rationale for absolute exoneration has not found a place in judgments of war criminals.Advocates of the compulsion argument attempt to exonerate recipients of illegal orders in every case. However, the fact that orders are sometimes attended with compulsion does not mean that every case of obedience to orders is invariably accompanied by compulsion. "Obedience to orders is possible without compulsion, and compulsion is feasible without obedience to orders."' [FN40] Many soldiers gladly obey the orders of their superiors without being compelled to do so. Why should subordinates who willingly, intentionally, or deliberately carry out illegal orders gain the benefit of a defense rationalized in terms of compulsion? To rationalize an a priori defense on grounds of institutionally created compulsion when subordinates may willingly carry out illegal orders is to place institutional military discipline above the rule of law. Like the mistake of law rationale, compulsion may apply in *63 limited circumstances but it fails as an overall basis for the doctrine of respondeat superior.

III. ABSOLUTE LIABILITYThe doctrine of absolute liability arose as a reaction to what some scholars feared would result from the respondeat superior doctrine: The soldier says, "I shot this man upon the sergeant's orders."' The sergeant says, "Captain Hirsch issued a general order covering this situation."' Captain Hirsch refers to Major Blank, Major Blank to Colonel Jacobs, Colonel Jacobs to Lieutenant General Abrams, and Abrams refers a directive of Goering. Goering says, "Ah yes, but the Führer ordered it."' [FN41]Where is the Führer? As the person who ostensibly issued all orders, all subordinates would have been following orders and therefore found guiltless of Nazi atrocities.The absolute liability doctrine is not only a response to respondeat superior, it is its antithesis. Rather than complete exoneration for all subordinates obeying orders, the absolute liability doctrine demands that obedience to superior orders never justify an unlawful act. [FN42] Proponents of absolute liability take the extreme position that obedience to superior orders has no role in the determination of criminal culpability. For example, even if compulsion exists in a particular case, recipients of illegal orders could not argue that they were compelled to follow orders and did not have the required criminal state of mind. However, once culpability is found, evidence of obedience to superior orders may be allowed to mitigate punishment. It remains to add that . . . facts alleged in defense but not sufficient for justification or excuse are not to be wholly disregarded. They may still have their effect in mitigating the sentence. The propriety and the measure of such mitigation--extending, it may be, to the imposition of a merely nominal penalty--are in the judicial discretion of the Court and not definable by rule. [FN43]It has been argued that "[o]bedience to orders under mistake of law or compulsion, although not sufficient to justify the acquittal of *64 an offender, should be taken into account . . . when sentence is passed."' [FN44]At least two arguments for absolute liability have been advanced. First, instead of soldiers having an absolute duty of obedience, absolute liability proponents would limit that duty to obedience to lawful orders. [FN45] Thus, [a]n order to require obedience must relate to military duty. . . . And what the superior

officer may not militarily demand of his subordinate, the subordinate is not required to do. Even if the order refers to a military subject it must be one which the superior is authorized under the circumstances to give. The subordinate is bound only to obey the lawful orders of his superior. . . . [FN46]Soldiers who obey unlawful orders will in all cases be culpable for the criminal results. [FN47] The simplicity of this rationale is attractive, but its weakness is immediately apparent. This rationale does not take into consideration the problems faced by subordinates who must discern lawful from unlawful orders.In more persuasive efforts to counter the respondeat superior doctrine, absolute liability proponents rely on the supremacy of international law. They argue that international law would be frustrated if offenders are not held accountable for their actions. [FN48] By not allowing real sanctions against the actual offenders, the doctrine of respondeat superior shifts responsibility for offenses upward in the hierarchy of command so that the prescriptions of international law are never applied. Allowing obedience to superior orders as automatic armor from responsibility incapacitates criminal policy in international law, particularly in the sphere of the laws of war, [FN49] and ultimately results in "international lawlessness."' [FN50] The doctrine of respondeat superior would sacrifice the international legal order to military discipline.Article 8 of the charter of the International Military Tribunal, after much negotiation between the United States and the Soviet Union, [FN51] embraced the absolute liability doctrine. According to Article *65 8, the fact that a defendant acted pursuant to order of his Government, or of a superior, shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. [FN52] Under this Article, obedience to orders would not be a defense and could not play any role in the context of any other defense--a defense based on compulsion or lack of mens rea not excepted. Defendants who plead that they acted pursuant to orders and under the threat of death for disobedience would not receive any discharge from responsibility. Upon proof of the illegal act, the Article precludes any possibility of relieving the defendant of criminal responsibility in any context. Claims of compulsion and mistake of law could only be taken into account within the bounds of mitigation of punishment. [FN53]While proponents of the absolute liability doctrine succeed in their efforts to assign individual responsibility for criminal acts, they do little to address the dilemma faced by subordinates whose commanders promise severe punishment upon disobedience.Subordinates can choose not to obey unlawful orders and thereby not incur criminal culpability, but they must accept punishment for their disobedience, a punishment which may be death. Conversely, subordinates may obey illegal orders, escape immediate punishment for disobedience, but later face criminal sanctions. Neither alternative gives subordinates an opportunity to act justly without suffering adverse consequences.*66 The absolute liability doctrine and the respondeat superior doctrine have a common flaw: neither address the element of mens rea. The defense is never allowed under the absolute liability doctrine even when sufficient mens rea is lacking. Conversely, the respondeat superior doctrine acts as a complete defense even when the culpable mens rea element exists. Neither extreme adequately deals with the appropriate level of blameworthiness attributable to a soldier who carries out illegal orders. The key element should not be the existence or nonexistence of superior orders, but the offenders' state of mind when they obey orders.

IV. MENS REA

A. Manifest IllegalityUnder the "manifest illegality"' principle, considered the only valid "rule"' in this area of international law, [FN54] the nature of the order determines the culpability of the offender. Obedience to superior orders is allowed as a defense only where orders are not so manifestly illegal that subordinates did not know or could not have known them to be unlawful. [FN55]Where obedience to orders results in an obviously criminal act, obedience is not permitted as a defense. [FN56] Manifest illegality is an objective standard "based on the

intelligence of the reasonable man"' [FN57] and is used to indicate the subjective state of mind of subordinates. To be manifestly illegal, an order must be one that cries out, like a black flag, the warning, "Prohibited."' It is not the kind of unlawfulness discernible only to the legal expert, but a flagrant and manifest breach of the law, appearing on the face of the order, which the average man clearly recognizes as criminal in character; an unlawfulness which blinds the eye and stabs at the heart . . . . [FN58]For example, orders calling for the physical extermination of the Jews were found by the Israeli District Court in the Eichmann trial to *67 be manifestly illegal. [FN59] Where the legality of an order is doubtful, the soldier "would be justified by his orders"' [FN60] and therefore "bound to obey."' [FN61] For example, the tribunal in the High Command Case concluded that a certain military commander "has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions."' [FN62]Since the prosecution must prove the defendant's subjective state of mind, the objective manifest illegality standard "operates only as an auxiliary, technical contrivance . . . to ease the burden of proof lying on the prosecution[.]" [FN63] To prove mens rea, the prosecution need only prove that the orders were manifestly illegal. Once the prosecution makes such a showing, an irrebuttable presumption arises that the defendant, like other reasonable persons, was aware of the illegality of the order. [FN64] Although an irrebuttable presumption may ease the burden on the prosecution, it still does not fully address the issue of mens rea because it does not provide for cases in which the subordinate is aware of the illegality of the order, but due to other circumstances (for example, compulsion) does not have a culpable intent. Furthermore, it is possible for a subordinate to have actual knowledge that an order is illegal even if the nature of the order does not make the illegality manifestly apparent. [FN65] Therefore, although manifest illegality recognizes the need to account for a defendant's state of mind in cases of war crimes, in many situations mens rea can be addressed more adequately within the context of mistake of fact and compulsion.

*68 B. Mistake of FactEvidence of obedience to superior orders should be allowed to prove a mistake of fact defense. Often subordinates will not have all the facts to evaluate the legality of a superior order, even a manifestly illegal superior order. Obedience to orders becomes a "stepping-stone"' [FN66] to proving the belief necessary for a defense based on ignorance or mistake of fact. The fact that subordinates obeyed orders permits the inference that they believed "in good faith and on reasonable grounds, in the existence of a state of facts"' that justify the carrying out of the orders. [FN67] Because subordinates carried out the orders, one can infer the soldier believed that the facts were such that the orders were legal. [FN68] Therefore, to say that obedience to orders can never be allowed as a defense is to strip subordinates of a means of proving that they justifiably believed in certain facts that, if true, would make their actions non-criminal.The mistake of fact defense is crucial when subordinates are told to carry out orders that constitute "reprisals"' for enemy war crimes, but which violate the laws of war. A reprisal is "an action taken by a nation against an enemy that would normally be a violation of the laws of war, but that [is] justified as necessary to prevent the enemy from continuing to violate the laws of war."' [FN69] A reprisal is justified because of the lack of apparent alternatives; i.e., a case where the enemy's violations "were beyond the reach of the offended belligerent, and protests had proved fruitless."' [FN70] Under such circumstances, a reprisal is necessary in order to force compliance with the laws of war. [FN71]The fact that violations of the laws of war may be legal within the context of reprisals creates a special dilemma for subordinates. When confronted with an order utterly and palpably contemptuous of law and humanity, subordinates may be expected to assert their own standard of law and morality. However, no such independence of conviction *69 and action may be expected in cases where subordinates are confronted with a

command ordering an act admittedly illegal and cruel, but issued as a reprisal against the similarly reprehensible conduct of the adversary. It is not always reasonable to expect subordinates to be in possession of the information necessary to make a judgment about the lawfulness of a retaliatory measure. One author has noted that "[s]uch circumstances are probably in themselves sufficient to divest the act of the stigma of a war crime."' [FN72]Another has stated "[t]he fact that a superior commands a subordinate to contravene the laws of war, and, in phrasing the order,"' labels it a reprisal, "'cannot of itself immunize the subordinate against responsibility."' [FN73] Reprisals can be used by an unscrupulous enemy seeking a pretext for illegal conduct. [FN74] The real question is whether subordinates believe "in light of the explanation given by the superior and the other circumstances of the case, that [they] are performing a legitimate act of reprisal."' [FN75] How can a soldier know that a command that violates the rules of warfare is not a reprisal and therefore not permitted? [FN76] Each case should be determined on its own merits. Subordinates should be allowed to show obedience to superior orders for purposes of alleging a mistake of fact defense. Allowing such evidence to be admitted brings the trier of fact closer to the state of mind of subordinates who carried out illegal orders.

C. CompulsionIt is well-established law that one who is physically forced to commit a crime against his will is not criminally liable because he lacks the requisite intent. It becomes more difficult to draw lines of culpability*70 and non-culpability when the force is not applied against the body of another, but against the mind. Some writers are unwilling to forgive subordinates of criminal acts when the actors are mentally coerced to commit crimes. One critic asserts: "It is clear that if and when coercion is a justification the reason lies in the recognition of the strength of the instinct of self-preservation; i.e. a recognition of human frailty; but a soldier's entire work involves the suppression of the instinct of self-preservation."' [FN77] Another author argues that "[i]t may be conceded that if he had refused to obey he might have been shot for insubordination; but it has always been known that the military profession was an extrahazardous occupation. [FN78]These Draconian arguments, like the diametrically opposed respondeat superior doctrine, are apparently based on the same unwarranted assumption that "as soon as a person chooses to be a soldier and is dressed in a uniform, he stops being an ordinary human being and is possessed of subhuman instincts."' [FN79] However, instead of the subhuman instinct to obey advocated by respondeat superior proponents, subordinates are required to have a subhuman instinct to accept death where the only alternative available is the commission of a war crime. Self-preservation is a basic human instinct that exists even in soldiers, arguably even more so given their profession. The American Military Tribunal at Nuremberg stated that "there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns."' [FN80] Even though all the defendants were found guilty in this case, [FN81] the Tribunal saw fit to remark that it would have acquitted the defendants had they acted under a threat that was "'imminent, real and inevitable."' [FN82]Based on this dicta, one could assert that the defense of obedience to superior orders based on compulsion is limited to "imminent, real, *71 and inevitable"' [FN83] threats to the subordinate's life. The problem is determining when threats become so imminent, real, and inevitable that they rise to the level of compulsion that disables a subordinate from forming a culpable state of mind. The only possible solution is that such threats must leave subordinates no choice but to act. When are subordinates left without any choice?

D. Moral ChoiceThe "moral choice"' standard can be used to evaluate mental pressure and to determine the mens rea of the actor. The principle pronouncement on the "moral choice"' standard was made at the Nuremberg Trial: The provisions of this Article are in conformity with the law of all nations. That a soldier

was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible. [FN84]Although the Tribunal expressed support for Article 8, the Tribunal added its own contribution to the subject of obedience to orders by stating the "moral choice"' test. The test is not found in the text of Article 8. *72 Although it has been argued that the moral choice test should only be used to mitigate punishment, [FN85] this somewhat cryptic test implies that subordinates who are faced with a moral choice, but decide to carry out an illegal order, are criminally responsible for their actions. However, subordinates who carry out orders because that is their only choice are free from responsibility. [FN86] If culpability then turns on the choice made, under what circumstances is a moral choice available to subordinates?The harshest alternative is that a moral choice is always available; i.e., even if subordinates face death as a consequence of disobeying superior orders, they have the moral choice of accepting death rather than harming an innocent party. [FN87] Surely, however, this is too harsh. Although they are soldiers, subordinates are still human beings. When caught up in certain circumstances perhaps they should not be blamed for opting to save themselves at the cost of other lives. In such a case, the moral choice is illusory and the soldier's dilemma should be considered in his defense. [FN88]A preferable alternative is that a moral choice is available where subordinates have the freedom to choose between right and wrong courses of conduct without suffering detrimental consequences. Subordinates who choose to obey an illegal order when they could have disobeyed without suffering adverse consequences are guilty of criminal action. [FN89] This conclusion received judicial sanction in The Medical Case, another post World War II war crimes trial. The tribunal held that the use of the doctrine of superior orders as a defense "has never been held applicable to a case where the one to whom the order is given has free latitude of decision whether to accept the order or reject it."' [FN90] Where subordinates freely chose to engage in criminal activity, they cannot claim that they were compelled to act. Having intentionally chosen their course of action, they should not be able to claim compulsion by way of obedience to superior orders.Although some authorities have argued that this freedom to choose between right and wrong is only available to high ranking personnel *73 who have an opportunity for reflection, choice, and the exercise of responsibility, [FN91] moral choices are available to persons all along the hierarchical ladder. Otto Ohlendorf, commanding officer of one of the notorious Einsatzgruppen (death wagons), executed more than 90,000 "undesirable elements composed of Russians, gypsies, Jews and others"' [FN92] on the basis of an order that he recognized as "wrong,"' [FN93] although he refused to consider "whether it was moral or immoral[.]" [FN94] In view of his acknowledged unwillingness to exercise moral judgment, the tribunal refused him a plea of obedience to superior orders. [FN95]Similarly, a willing instrument such as John "Ivan"' Demjanjuk, had he pled obedience to superior orders, would likely have found little protection from the reach of the law. Demjanjuk was a Ukrainian guard in a Nazi death camp who willfully and, as some witnesses testified, zealously carried out the orders of the extermination camp commanders. [FN96] In its verdict, the Israeli Supreme Court stated: [O]ne Ukrainian . . . was especially conspicuous among all the Ukrainian collaborators because of his brutality, his criminal actions, his enthusiasm and his ardor to assist the Germans in the execution of the extermination and his name was Ivan. [FN97] Ivan . . . did not content [himself] with supplying the gas to the gas chambers, but [was] accustomed to take up positions at the side of the 'schlauch,' the path on which the victims were led to the gas chambers, and there . . . would prod the Jews to enter the "showers,"' namely the gas chambers, more speedily. They would accompany this by striking them with implements of destruction, daggers, iron bars or whips. [FN98]A moral choice is still available when all alternatives may cause the subordinate to suffer evil consequences. In such a situation, the morally correct solution would be to consider

the harm that would *74 result from obeying the orders and the harm that would befall the subordinate for disobeying the orders and then choose the least harmful course of action. [FN99] Where subordinates are exposed to imminent, real and inevitable threats to their lives, a defense based upon compulsion would be justifiable whether the order threatened innocent lives or only threatened the destruction of property. Threats of "stern punishment"' [FN100] should be enough to justify the defense only where carrying out the orders would result in less harm than that of the punishment for disobedience. Threats of demotion in rank, for example, for not carrying out an illegal order may be imminent, real and inevitable, but they would not be a defense where the soldier was ordered to kill innocent persons (even though they might be a defense if he was ordered to destroy property).Whether a subordinate's belief in the existence of an imminent, real and inevitable threat to his life is justified should be a function of circumstances surrounding the subordinate faced with an illegal order. A number of circumstances may be considered including age, education, intelligence, [FN101] general conditions in which subordinates find themselves, length of time spent in action, nature of the hostilities, the type of enemy confronted, and opposing methods of warfare. [FN102]Circumstances that go directly to the state of mind of the offender confronted with a moral choice include the announced penalty for disobeying orders, the probable penalty for disobedience, the typical subordinate's reasonable beliefs about the penalty, the subordinate's belief as to what the penalty is, and any alternatives available to the subordinate to escape execution of the penalty. [FN103] Where the understood *75 penalty for disobedience is death, but execution of the penalty is not probable or there are opportunities for alternative action or avenues for escape, subordinates have moral choices. However, where the announced, probable, and understood penalty for disobedience is summary execution, and the superior officer is in such close proximity to the subordinate that the subordinate would likely be shot immediately upon disobedience, the soldier does not have any real choice. Therefore, he is less likely to have formed the culpable state of mind necessary for guilt. This imminent, real and inevitable threat to the subordinate's life removes any opportunity for moral choice and thus rises to the level of compulsion necessary to constitute a defense based on obedience to orders.

IV. LT. COL. OLIVER NORTH'S PLEA OF OBEDIENCE TO SUPERIOR ORDERSThe trial and conviction of Lt. Col. Oliver North was the major U.S. media event of the spring of 1989. In twelve separate charges, the Government accused North of making false statements about his activities involving solicitation of funds for the Nicaraguan Contra rebels and giving tactical and other advice when Congress had specifically banned such activities. [FN104] The Congressional ban on all military aid to the Contras was passed in October 1984 and remained effective until October 1986. [FN105]Events that led to North's downfall began as early as February, 1985, when North and two associates, [FN106] made the first of six arms purchases for the Contra rebels. [FN107] Money for these purchases came from private contributors and a secret $35 million contribution by King Fahd of Saudi Arabia. North and his associates eventually spent $16.5 million for military aid to the Contra rebels. [FN108] In 1985, when the press linked North to a private network supplying military aid to the Contra rebels, Congress issued letters of inquiry. [FN109] North responded to these inquiries by denying any involvement, although he later admitted that the denials were false. [FN110] Notwithstanding these *76 Congressional inquiries in 1985, North, on April 4, 1986 outlined a plan to divert $12 million in profits from the sale of arms to Iran to the Contra rebels. [FN111] On August 6, 1986, North met with eleven members of the House Intelligence Committee and denied raising money for the Contra rebels or offering them military advice. North later testified that he lied in this session. [FN112] Between November 12 and November 19, 1986, North and other White House officials prepared inaccurate chronologies of events in the Iran affair to deal with any repercussions that might arise. [FN113] On November 21, when North was told that Justice Department officials intended to inspect his files the next day, North began shredding documents. [FN114] Finally, On November 25, 1986, President Reagan dismissed Mr. North. [FN115]

At his trial, North maintained that all of his actions were taken pursuant to superior orders: [FN116] "I had been led to believe that everything I was doing was done at the direction of the President."' [FN117] Some evidence was presented at trial that indicated North's activities were sanctioned by the highest officials in the Reagan Administration. [FN118] For example, Robert McFarlane, former National Security advisor to the President, testified that President Reagan gave "clear guidance to me to do all we could to keep the movement alive"' [FN119] despite the ban [FN120] and, more specifically, that Reagan authorized a secret plan in April 1985 to secure Honduran help for the Nicaraguan rebels by providing Honduras with millions of dollars in economic and military aid. [FN121] A classified memorandum was also read to the jury that suggested that Reagan approved a "very specialized intelligence"' mission in October 1985 to equip the Nicaraguan rebels with information and weapons to attack the Sandinista government's arms shipments. The memo was titled, "What to Tell the President,"' but had the words "President Approved" *77 written on it. [FN122] Efforts by defense attorneys to subpoena the President underscores the importance of Reagan to North's defense. [FN123]Willing to hold North accountable for his personal acts, the jury found North guilty on three counts: obstructing Congress by creating false and misleading chronologies; destroying, concealing, and removing National Security Council documents in November 1986; and, receiving an illegal gratuity. [FN124] The jury returned verdicts of not guilty on the other nine counts, in which authority from superiors was more directly implicated. For example, North was acquitted on charges of soliciting funds and other support for Contra military activities. [FN125] Notwithstanding Judge Gerhard Gesell's strict instructions that neither the President nor any of the defendant's superiors had the legal authority to order anyone to violate the law, [FN126] and the fact that North admitted lying to Congress about his activities, [FN127] it appears that the jury accepted North's plea of obedience to superior orders and acquitted him of those nine charges.Application of the manifest illegality principle to these facts exposes the flaw of the principle and demonstrates why it has only limited use in evaluating criminal actions taken pursuant to superior orders. Assuming that North was acting pursuant to superior orders, [FN128] those orders cannot be characterized as manifestly illegal. Since it is at least ambiguous whether the Boland amendment applies either to the Executive, [FN129] or the National Security Council, [FN130] the orders contradicting the Boland amendment did not cry out the warning 'prohibited' so as to permit an irrebuttable inference that North knew his orders were illegal. Without the irrebuttable inference of knowledge, North would not have been found to have had a culpable state of mind. However, it is clear that North did have knowledge that the Congressional ban *78 on Government aid to the Contra rebels might apply to his activities. [FN131] Because the orders were not manifestly illegal, North would be automatically exonerated, notwithstanding his actual knowledge that his activities might violate the law.North's obedience to superior orders is better evaluated within the context of either mistake of fact or compulsion. The ambiguity as to whether the Boland amendment applies to either the executive, [FN132] or the National Security Council, [FN133] is crucial under a mistake of fact analysis. North could have argued that because of this ambiguity, he mistakenly believed that his actions were legal. His obedience to orders would be proof of this mistaken belief because it permits the inference that he believed in good faith and on reasonable grounds in the existence of a state of facts that justified the carrying out of the orders. North may have known that his activities would violate that law in certain situations, but because the orders came from the executive, he believed that the Boland amendment did not apply. Thus, he could carry out the orders under the mistaken assumption that the facts were such that his activities were not illegal.Although, North should have this mistaken belief argument available to him, the argument should not necessarily prevail. Obedience to orders should be viewed as just another factual circumstance among all the elements of criminal actions. Considering all the circumstances, it is unlikely that a mistaken belief argument would prevail. If North obeyed his orders under the mistaken belief that the orders were legal, why was there so much secrecy surrounding his fundraising activities and why did North destroy massive

amounts of documents when he learned of pending Justice Department investigations? North could not reasonably have believed that the facts were such that his activities were legal under the Boland amendment. Therefore, obedience to superior orders within the context of mistake of fact would not have been a viable defense.A plea of obedience to superior orders within the context of compulsion probably would not have prevailed either. North had a "moral choice"' available to him, but he opted for the path that eventually brought him to trial. As a result of North's choice to obey his orders when he knew that his actions may have been in violation of a Congressional *79 mandate prohibiting government sponsored aid to the Contras, only the most serious compulsion could exonerate North. There is no evidence, however, of an imminent, real and inevitable threat to North's life if he failed to obey. Other consequences might have followed from his disobedience such as dismissal, but such an action does not rise to the level of compulsion necessary to exonerate one who violates a Congressional mandate. The greater harm is certainly in the violation of the Congressional mandate.As a high-ranking official within the National Security Council, North had every "opportunity for reflection, choice, and the exercise of responsibility,"' [FN134] but he chose to carry out his orders. North was not operating under compulsion and therefore the implication is that he was in possession of the requisite state of mind to make him culpable for his criminal actions. Despite the fact that North was acquitted of the nine charges where the defense of obedience to superior orders was most potent, within the context of mistake of fact and compulsion, there is little evidence to show that North's actions were justified.

V. CONCLUSIONThe traditional theories that address the defense of obedience to superior orders do not adequately address mens rea. As an absolute defense under the respondeat superior doctrine, mens rea is never considered because subordinates are automatically exonerated. Conversely, to impose absolute liability for criminal actions taken pursuant to superior orders without ever considering the nature of the superior orders strips defendants of a means of proving that they lacked a culpable state of mind.Instead, obedience to superior orders should be just another factual finding in the search for evidence indicative of the actor's state of mind when carrying out orders. Alone, the fact of obedience to superior orders should not protect offenders from the arm of the law. Such a factual finding, however, may contribute, in conjunction with other facts, to the substantiation of either the mistake of fact defense or the compulsion defense where there was no moral choice. Where either of these two defenses are substantiated, defendants should be relieved of responsibility--not because of the existence of superior orders--but *80 because orders within the context of mistake of fact or compulsion eliminate the possibility of forming a culpable state of mind.Therefore, if subordinates commit a criminal offense in compliance with orders from a superior, they may be found either innocent or guilty. The choice between conviction and acquittal should be dependent upon all the facts of the case; obedience to superior orders is only one brick in a large wall.

[FN1]. The unsparing cruelty of war practices during the greater part of the Middle Ages was eventually tempered by customs and treaties. 2 OPPENHEIM, INTERNATIONAL LAW § 67 (7th ed. 1952). Through the ages, these customs and treaties became legal rules known as the "Laws of War"' incumbent on belligerents under all circumstances and conditions. Id. at § 69.

[FN2]. An action in violation of the laws of war is a war crime. Id. at § 251.

[FN3]. The defense of obedience to superior orders emerged in legal guise over three centuries ago in war crimes trials. After the Stuart restoration in 1660, the commander of the guards was tried for treason and the murder of King Charles I. The officer defended himself on the ground "that all he did was as a soldier, by the command of his superiour [sic] officer, whom he must obey or die,"' but the court gave him short shrift saying, "where the command is traitorous, there the obedience to that command is also

traitorous."' Axtell's Case, 84 Eng. Rep. 1060, 1060 (1660). The court believed that "even a common soldier must have known that it was an act of treason to participate . . . in the execution of one's king."' L.C. GREEN, Superior Orders and the Reasonable Man, in ESSAYS ON THE MODERN LAW OF WAR 43, 49 (1985).

[FN4]. Following are several examples of civilians following illegal orders: a. The civilian burglars who broke into the Watergate building "considered themselves to be acting under orders."' H.C. KELMAN & V.L. HAMILTON, CRIMES OF OBEDIENCE 26 (1989). b. During the subsequent investigation of the Watergate scandal, Judge Robert Bork fired Special Prosecutor Archibald Cox pursuant to former President Nixon's order. Nader v. Bork, 366 F. Supp. 104, 107 (D.D.C. 1973). Judge Gerhard A. Gesell ruled Judge Bork's actions illegal because they violated regulations establishing the Special Prosecutor's Office. Id. at 108. c. In June, 1987, the Chrysler Corporation was indicted by a federal grand jury for selling sixty thousand cars and trucks as new even though they had been driven by company executives with the odometers disconnected. Holusha, Chrysler Acts in False Mileage Case, N.Y. Times, July 2, 1987, at D9, col. 4. The Chrysler Corporation later pled guilty to these charges. This incident suggests a corporate crime of obedience involving a large number of participants over many years where "orders"' were communicated and enforced by company personnel. d. Apparently under Department of Energy instructions, the Fernald nuclear power plant in Ohio, a government operated plant, has been releasing hazardous waste into the air when filters fail. These alleged instructions are of course illegal, but the plant is claiming that it acted as it did because of governmental instructions. N.Y. Times, Oct. 19, 1988, at A1, col. 4.

[FN5]. M. GREENSPAN, THE MODERN LAW OF LAND WARFARE 477 (1959) (emphasis in original).

[FN6]. Id. at 478.

[FN7]. Respondeat superior (let the superior reply) is a tort doctrine invoked where there is a master-servant relationship. The master must accept responsibility when his servant, acting during the course of the relationship and due to some fault of the servant incurs tort liability. BLACK'S LAW DICTIONARY 1179 (5th ed. 1979).

[FN8]. Y. DINSTEIN, THE DEFENCE OF 'OBEDIENCE TO SUPERIOR ORDERS' IN INTERNATIONAL LAW 8 (1965).

[FN9]. Professor Oppenheimer was a lecturer in public international law at the London School of Economics and Political Science and a member of the Faculty of Laws. He is credited with first authoritatively enunciating the doctrine.

[FN10]. DINSTEIN, supra note 8, at 39.

[FN11]. 2 L. OPPENHEIM, INTERNATIONAL LAW § 253 (1st ed. 1906).

[FN12]. DINSTEIN, supra note 8, at 40.

[FN13]. C. PHILLIPSON, INTERNATIONAL LAW AND THE GREAT WAR 260-61 (1916); April, An Inquiry into the Juridical Basis for the Nuremberg War Crimes Trial, 30 MINN. L. REV. 313, 325 (1946); Schneeberger, The Responsibility of the Individual under International Law, 35 GEO. L.J. 481, 488 (1947); Schwarzenberger, The Judgment of Nuremberg, 21 TUL. L. REV. 329, 354-55 (1947).

[FN14]. See T. TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY CH. 2 (1970), reprinted in WAR AND MORALITY 383 (R. Wasserstrom ed. 1970).

[FN15]. M. PEARLMAN, THE CAPTURE AND TRIAL OF ADOLF EICHMAN 470 (1963).

[FN16]. DINSTEIN, supra note 8, at 49.

[FN17]. J.W. GARNER, INTERNATIONAL LAW AND THE WORLD WAR § 253 (1920).

[FN18]. Eagleton, Punishment of War Criminals by the United Nations, 37 AM. J. INT'L L. 495, 497 (1943).

[FN19]. Wasserstrom, The Responsibility of the Individual for War Crimes, in PHIL., MORALITY AND INT'L AFF. 59-60 (1974).

[FN20]. Id.

[FN21]. "Ignorance of the law is no excuse."DD'

[FN22]. It is difficult to see how international law can be effectively applied if ignorance of such law could provide a complete defense. GREENSPAN, supra note 5, at 486 n. 313.

[FN23]. At Nuremberg, more than a score of the leaders of the Third Reich and half a dozen Nazi organizations were criminally prosecuted by the four Allied Powers: the United States, Great Britain, the Republic of France, and the Soviet Union. During the long months of the trial, the prosecution and the defense crossed swords many times over the question of obedience to orders, and the Tribunal seriously pondered the question. Because of the major contribution that this trial made to the area of obedience to superior orders, I will quote the trial transcript extensively.

[FN24]. 19 Trial of the Major War Criminals Before the International Military Tribunal [hereinafter Military Tribunal] 21-22 (July 19, 1946) (Final plea for Defendant Jodl by defense counsel Exner). See also 18 Military Tribunal, at 362 (July 16, 1946) (Final plea for Defendant Dönitz by defense counsel Kranzbühler).

[FN25]. 22 Military Tribunal, supra note 24, at 46 (Aug. 27, 1946) (Final plea for the High Command by defense counsel Laternser).

[FN26]. See 19 Military Tribunal, supra note 24, at 44 (July 19, 1946) (Final plea for defendant Jodl by defense counsel Exner); 18 Military Tribunal, supra note 24, at 362 (July 16, 1946) (Final plea for Defendant Dönitz by defense counsel Kranzbühler).

[FN27]. 19 Military Tribunal, supra note 24, at 21 (July 19, 1946) (Final plea for Defendant Jodl by defense counsel Exner).

[FN28]. KELMAN & HAMILTON, supra note 4, at 47.

[FN29]. R. HAMMER, THE COURT-MARTIAL OF LT. CALLEY 143 (1971).

[FN30]. See id. at 150.

[FN31]. J.W. GARNER, INTERNATIONAL LAW AND THE WORLD WAR § 588 (1920).

[FN32]. L. OPPENHEIM, INTERNATIONAL LAW § 253 n. 3 (Roxburgh Rev. 3d ed. 1921).

[FN33]. Wasserstrom, supra note 19, at 59.

[FN34]. DINSTEIN, supra note 8, at 51.

[FN35]. Wasserstrom, supra note 19, at 59.

[FN36]. See generally 22 Military Tribunal, supra note 24, at 45-46, 64-65, 83, 85-86 (Aug. 27, 1946) (Final Plea for the High Command by defense counsel Laternser); 18 Military Tribunal, supra note 24, at 2 (July 9, 1946) (Final plea for Defendant Keitel by defense counsel Nelte).

[FN37]. 22 Military Tribunal, supra note 24, at 45 (Aug. 27, 1946) (Final Plea for the High Command by defense counsel Laternser quoting Carlyle).

[FN38]. The Einsatzgruppen Case, 4 Trials of War Criminals [hereinafter War Criminals] 470-71 (1948). Defense counsel for the Gestapo realized that the Tribunal would probably not accept such an absolute compulsion argument and therefore asked the Tribunal to recognize what they were asking of the defendants--to martyr themselves. As Merkel put it: It is true that cowardice is not a virtue; but it is equally true that heroism and martyrdom in the world of human beings are the exception. Should the Gestapo members form this exception? 21 Military Tribunal, supra note 24, at 537 (Aug 23, 1946) (Final Plea for the Gestapo by defense counsel Merkel). Defense counsel Exner went so far as to argue that the international community could not expect anything more of soldiers unless and until an international authority exists to safeguard soldiers who disobey orders for reasons of conscience. 19 Military Tribunal, supra note 24, at 22 (July 9, 1946) (Final Plea for Defendant Jodl by defense counsel Exner).

[FN39]. Shannon, Finding a Niche for the Gung-ho Personality, Boston Globe, July 15, 1987, at 15.

[FN40]. DINSTEIN, supra note 8, at 53.

[FN41]. J.A. APPLEMAN, MILITARY TRIBUNALS AND INTERNATIONAL CRIMES 56 (1954).

[FN42]. Mitchell v. Harmony, 13 How. 115, 137 (1851). Chief Justice Taney's decision in Mitchell is an early recognition of the absolute liability doctrine. Specifically, Chief Justice Taney observed, "[I]t can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. The order may palliate, but it cannot justify."' Id. (emphasis added).

[FN43]. Pollock, Liability for Official War Crimes, 35 L.Q. REV. 193, 198 (1919).

[FN44]. DINSTEIN, supra note 8, at 74.

[FN45]. Bartlett, Liability for Official War Crimes, 35 L.Q. REV. 177, 189 (1919).

[FN46]. The Einsatzgruppen Case, 4 War Criminals, supra note 38, at 470-471 (1958).

[FN47]. Id.

[FN48]. DINSTEIN, supra note 8, at 70.

[FN49]. Finch, Superior Orders and War Crimes, 15 AM. J. INT'L L. 440, 445 (1921).

[FN50]. Jackson, Nuremberg in Retrospect: Legal Answer to International Lawlessness, 35 A.B.A. J. 813 (1949).

[FN51]. The United States originally proposed that obedience to superior orders "'shall not constitute an absolute defense, but may be considered either in defense or in mitigation of punishment if the tribunal before which the charges are being tried determines that justice so requires."' American Draft of Definitive Proposal, International Conference, 22,

24 (quoted in DINSTEIN, supra note 8, at 109). The Soviet proposal rejected any possibility of regarding obedience to orders as a justification. They also rejected any possible mitigation in their very succinct proposal: "The fact that the accused acted under orders of his superior or his government will not be considered as justifying the guilt circumstance."' Aide - Mémoire from the Soviet Government, International Conference, 61, 62 (quoted in DINSTEIN, supra note 8, at 113). The Soviet formulation expresses the doctrine of absolute liability. Eventually a compromise was reached. The United States capitulated in their efforts to allow some sort of a defense of obedience to superior orders and the Soviets finally agreed to the mitigation provision. The Soviets may have agreed to the mitigation language "solely because the Agreement in question related to the major war criminals only . . . . " DINSTEIN, supra note 8, at 116. The fact that Article 8 of the IMT Charter embraced absolute liability is not necessarily telling of the state of international law at that time. Absolute liability never again received the stamp of four nations or of the international community, as it did in Nuremberg in 1946. Rather, Article 8 should be viewed as a political tradeoff incumbent upon the Allied powers given the circumstances surrounding the Trial of the Major War Criminals.

[FN52]. Charter of the International Military Tribunal § 8 (Aug. 8, 1945).

[FN53]. Despite the language of Article 8, the Final Judgment of the Tribunal and the arguments presented by both the prosecution and the defense demonstrate that the defense did have a role to play at the trial.

[FN54]. DINSTEIN, supra note 8, at 26 n. 59.

[FN55]. GREENSPAN, supra note 5, at 441.

[FN56]. V. MAUGHAM, U.N.O. AND WAR CRIMES, 48 (1951); GREENSPAN, supra note 5, at 441.

[FN57]. DINSTEIN, supra note 8, at 27.

[FN58]. PEARLMAN, supra note 15, at 610. As even General Telford Taylor admits, "'[s]ome orders are so atrocious, or so plainly unlawful, that the subordinate must know, or can reasonably be held to know, that they should not be obeyed."' TAYLOR, supra note 14, at 384.

[FN59]. Lippman, The Trial of Adolf Eichman and the Protection of Universal Human Rights Under International Law, 5 HOUS. J. INT'L L. 1, 27 (1982). Eichman admitted so much in court: "I already realized at the time that this solution by the use of force was something unlawful, something terrible. . . . " Id.

[FN60]. Keighly v. Bell, 4 F. & F. 763, 790, 176 E.R. 781, 793 (1866). But see Franks v. Smith, 134 S.W. 484, 490-91 (Ky. 1911), where in an action arising from the arrest of a suspected "night rider,"' Justice Carroll stated: "It may be and doubtless is true that, looking at the matter from a military standpoint, the order to act as Franks did was not such an unreasonable command as that a soldier of common sense would feel authorized to refuse to obey. But . . . conduct like this is such an intolerable invasion of private rights, . . . that we cannot consent that all military orders, however reasonable they may appear, will afford protection in the civil or criminal courts of the state."' (emphasis added).

[FN61]. Riggs v. State, 91 Am. Dec. 272, 273 (1866).

[FN62]. The High Command Case, 11 War Criminals, supra note 38, at 511 (1950).

[FN63]. DINSTEIN, supra note 8, at 29.

[FN64]. Id. at 30.

[FN65]. Even under German military law, superior orders are no defense when a subordinate obeys orders knowing "that his superiors have ordered him to do acts which involve a civil or military crime or misdemeanor."' GREENSPAN, supra note 5, at 440.

[FN66]. S. GLUECK, WAR CRIMINALS - THEIR PROSECUTION AND PUNISHMENT 244 n. 49 (1944).

[FN67]. Id.

[FN68]. Furthermore, ignorance of fact may excuse if the original intention was lawful. GREENSPAN, supra note 5, at 486. For example, General Andrew Jackson's attack on New Orleans at the end of the war of 1812 was unlawful because an armistice had already been signed. However, General Jackson was unaware of this fact so his intent in attacking the port city was lawful.

[FN69]. TAYLOR, supra note 14, at 387.

[FN70]. Id.

[FN71]. GREENSPAN, supra note 5, at 407-408.

[FN72]. 2 L. OPPENHEIM, INTERNATIONAL LAW § 253 (Lauterpacht Rev. 7th ed. 1952). Dunbar is of the same opinion. Dunbar, Some Aspects of the Problem of Superior Orders in the Law of War, 63 JURID. REV. 234, 256 (1951).

[FN73]. DINSTEIN, supra note 8, at 85.

[FN74]. GREENSPAN, supra note 5, at 408. Hitler's famous "Commando"' order, the Führerbefehl of October 18, 1942 was a "blatantly illegal order which required the summary execution of soldiers in uniform taken prisoner on commando operations."' Hitler justified the order by saying "For some time now our opponents have been using in the prosecution of war, methods which do not conform with the international agreements of Geneva."' Id. at 409. Glueck was therefore justified in saying, "'punishment' of States for unlawful acts by means of reprisals alone leads inevitably to competition in brutality, in which the most ruthless States have all the advantage."' GLUECK, supra note 66, at 135.

[FN75]. DINSTEIN, supra note 8, at 85.

[FN76]. H. KELSEN, PEACE THROUGH LAW 107 (1944).

[FN77]. GLUECK, supra note 66, at 242 n. 45.

[FN78]. April, An Inquiry into the Juridical Basis for the Nuremberg War Crimes Trial, 30 MINN. L. REV. 313, 325 (1946).

[FN79]. DINSTEIN, supra note 8, at 78.

[FN80]. The Einsatzgruppen Case, 4 War Criminals, supra note 38, at 480 (1951). In this case, criminal proceedings were instituted against the principal extermination commanders. The Tribunal actually rejected the plea of the defense based on a combination of obedience to superior orders and compulsion, as it found that the accused had committed their monstrous crimes willingly and zealously. Id.

[FN81]. Id. at 587-589.

[FN82]. Id. at 480.

[FN83]. Id.

[FN84]. 22 Military Tribunal, supra note 24, at 42 (Judgment, Command No. 6964). This impressive statement of law resounded throughout the international legal world and was widely quoted in subsequent cases as well as within the writing of the jurists. See The Einsatzgruppen Case, 4 War Criminals, supra note 38, at 471 (1951); The Farben Case, 8 War Criminals, supra note 38, at 1176 (1952); The High Command Case, 11 War Criminals, supra note 38, at 475- 476 (1950); The Roechling Case, 14 War Criminals, supra note 38, at 1104 (1950). But cf. J.A. APPLEMAN, MILITARY TRIBUNALS AND INTERNATIONAL CRIMES 56 (1954); W.E. BENTON & G. GRIMM, NUREMBERG, GERMAN VIEWS OF THE WAR TRIALS 23 (1955); M. GREENSPAN, THE MODERN LAW OF LAND WARFARE 493 (1959); Wasserstrom, supra note 19, at 57. The International Military Tribunal was not the first to recognize the role "'morality"' had to play when dealing with superior orders. Goebbels summarized the German attitude when he wrote in 1944, "The pilots cannot say that they as soldiers acted upon orders. It is not provided in any military law that a soldier in the case of a despicable crime is exempt from punishment because he blames his superior, especially if the orders of the latter are in evident contradiction to all human morality[.]" "A Word on the Enemy Air Terror,"' Voelkischer Beobachter, May 28 and 29, 1944, quoted in The High Command Cases, 11 War Criminals, supra note 38, at 168 (1950). Goebbels may not have realized that soon the victorious Allies would quote his words and use them to convict the surviving leaders of the Nazi military machine.

[FN85]. W.E. BENTON & G. GRIMM, NUREMBERG, GERMAN VIEWS OF THE WAR TRIALS 23 (1955).

[FN86]. GREENSPAN, supra note 5, at 493.

[FN87]. Id. at 494.

[FN88]. Greenspan is not even willing to exonerate a soldier faced with the choice of committing an illegal act not involving human life or losing his life for disobedience. Greenspan is only willing to reflect the soldier's dilemma in the sentence. Id.

[FN89]. Id. at 493-94.

[FN90]. The Medical Case, 2 War Criminals, supra note 38, at 227 (1947).

[FN91]. The High Command Case, 11 War Criminals, supra note 38, at 373 (1950). General Telford Taylor argued to the tribunal in the High Command Case that the International Military Tribunal's real purpose in creating the "moral choice"' test was to protect those "whose opportunity for reflection, choice, and the exercise of responsibility is non-existent or limited."' Id. That is, it is meant to protect the private soldier of whom it would be unreasonable to expect anything but obedience to orders. High ranking personnel who would have a moral choice would be those "whose responsibility it is to ensure the preservation of honorable military traditions."' Id. at 374.

[FN92]. The Einsatzgruppen Case, 4 War Criminals, supra note 38, at 134 (1951).

[FN93]. Id. at 303.

[FN94]. Id.

[FN95]. Id. at 470, 473.

[FN96]. State of Israel v. Ivan (John) Demjanjuk, Crim. No. 373/86, 170-84 (Jerusalem D.C. 1988).

[FN97]. Id. at 170.

[FN98]. Id. at 172.

[FN99]. Dinstein refuses to make this distinction. He argues, "[n]o amount of compulsion, be it as imminent, real and inevitable as events may prove it to be, can relieve the perpetrators of heinous and diabolical crimes of responsibility; hence the commanders of the extermination squads could not enjoy this defense in any way, shape or form."' DINSTEIN, supra note 8, at 80. Surprisingly, defense counsel Kauffmann at the Trial of the Major War Criminals acknowledged this limitation on a plea of compulsion but argued that anyone refusing to comply with an order in the Third Reich, particularly during the last years of the war, had been in peril of his life and therefore should have the plea of compulsion available to him if only for the purpose of mitigation of punishment. Trial of the Major War Criminals, 8 Military Tribunal, supra note 24, at 67-68 (July 9, 1946) (Final plea for Defendant Kaltenbrunner by defense counsel Kauffmann).

[FN100]. TAYLOR, supra note 14, at 385. General Taylor argues that threats of stern punishment would be enough to justify the defense notwithstanding the nature of the orders. Id.

[FN101]. GREEN, supra note 3, at 72.

[FN102]. Id. at 71.

[FN103]. For example, where subordinates commit war crimes pursuant to superior orders and the commander who issued the order does not personally supervise the performance of the actions ordered, the subordinates may be acting of their own free will and therefore cannot claim compulsion. 2 J. W. GARNER, INTERNATIONAL LAW AND THE WORLD WAR § 588 (1920).

[FN104]. N.Y. Times, May 5, 1989, at 11, col. 5.

[FN105]. N.Y. Times, May 5, 1989, at 11, col. 1.

[FN106]. North's associates were Richard B. Secord, a former Air Force major general and Albert Hakim, an Iranian-born arms dealer.

[FN107]. N.Y. Times, May 5, 1989, at 11, col. 1.

[FN108]. Id.

[FN109]. Id.

[FN110]. Id.

[FN111]. Id.

[FN112]. N.Y. Times, May 5, 1989, at 11, col. 1.

[FN113]. Id.

[FN114]. Id.

[FN115]. Id.

[FN116]. N.Y. Times. April 7, 1989, at 1, col. 1.

[FN117]. N.Y. Times. April 13, 1989, at 11, col. 1.

[FN118]. N.Y. Times. April 9, 1989, at 1, col. 1.

[FN119]. N.Y. Times. March 11, 1989, at 9, col. 1.

[FN120]. N.Y. Times. March 20, 1989, at 12, col. 4.

[FN121]. N.Y. Times. March 16, 1989, at 10, col. 1; N.Y. Times, March 31, 1989, at 8, col. 4.

[FN122]. N.Y. Times, March 17, 1989, at 1, col. 1.

[FN123]. N.Y. Times, March 25, 1989, at 1, col. 2. Judge Gesell rejected this move by defense attorneys to force former President Reagan to testify because he found no written evidence to suggest that Reagan authorized any of the activities that were the subject of the charges against Mr. North.

[FN124]. N.Y. Times, May 5, 1989, at 11, col. 5.

[FN125]. Id.

[FN126]. N.Y. Times, April 21, 1989, at 8, col. 1.

[FN127]. Id.

[FN128]. No written evidence was presented at trial to satisfy Judge Gesell that Reagan authorized any of the activities that were the subject of the charges against North. N.Y. Times, April 1, 1989, at 8, col. 2. However, in order to evaluate North's state of mind, I am assuming that North received superior orders from either Mr. McFarlane, Adm. Poindexter, or President Reagan.

[FN129]. N.Y. Times, March 20, 1989, at 12, col. 4.

[FN130]. N.Y. Times, March 17, 1989, at 1, col. 1.

[FN131]. N.Y. Times, March 2, 1989, at 12, col. 1.

[FN132]. N.Y. Times, March 20, 1989, at 12, col. 4.

[FN133]. N.Y. Times, March 17, 1989, at 1, col. 1.

[FN134]. The High Command Case, 11 War Criminals, supra note 38, at 373 (1950).END OF DOCUMENT