The Defence of Superior Orders (and Related Defences) in Australian Military Law

The Defence of Superior Orders (and Related Defences) in Australian Military Law

A soldier ordered by a commanding officer to commit acts which may be unlawful is in an invidious position. If they fail to obey the command, they are liable to be convicted of a serious crime. If they obey, but their actions are subsequently found to be unlawful, they are also liable to be convicted of a serious crime. Not surprisingly, the law has struggled to grapple with this conundrum, at times protecting the obedient soldier, at other times punishing them. The relevant provision of the Rome Statute of the International Criminal Court (‘Rome Statute’), focusing on whether the order was ‘manifestly unlawful’, represents an uneasy compromise. This article charts the development of this concept in international law and its reception into Australian domestic law. It also critiques the doctrine for failing to reflect the realities of an obedience imperative within military ranks, its uncertain meaning and its embrace of negligence to effectively gauge criminality, before proposing improvements in this difficult area. The focus should be on a reasonable soldier, to take specific account of the peculiarities of a military environment, rather than a reasonable person. Specifically, this article proposes necessary clarification of the meaning of ‘manifest illegality’, with a specific list of factors to be considered. No other article of which the author is aware attempts such a list.

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