Carmel O’Sullivan: Killing on Command: The Defence of Superior Orders in Modern Warfare

Today at QUT Law School’s lunchtime research seminars, Dr Carmel O’Sullivan presents her PhD research, which examines the extent to which a soldier is liable when following orders. O’Sullivan notes that there are three main answers to this old question:

  • Respondeat superior: a soldier is never liable for illegal acts; the commander is solely responsible. The rationale behind this is to uphold military discipline – and even a view that soldier is a mere tool at the hands of his or her commanders.

  • Absolute liability: at the other end of the spectrum, soldiers are only bound to obey lawful orders. This approach aims to uphold the supremacy of the law. A criticism of this approach is that it might weaken military efficiency and diminish the requirement of mens rea.

  • Conditional liability: soldiers are only liable where a person with an ‘ordinary sense and understanding’ would have known that the order was unlawful; or where the order was ‘manifestly unlawful’; or not liable where the soldier has an honest but mistaken belief. This middle-ground approach attempts to draw a more just line than the other two, but suffers from a great lack of clarity and conflicting standards when applied by different jurisdictions and at different times.

O’Sullivan’s research examines these standards and the psychological literature about a soldier’s state of mind in battle. The major problem is that the reasonable person test that courts might apply does not take into account the situated experience of soldiers – the impact of military training, the loss of sensory perception in stressful combat environments, and so on. One of the major outcomes of O’Sullivan’s research suggests that if conditional liability is to be used, more certainty needs to be developed about how it operates, and the standard of reasonableness should really be that of a reasonable soldier, not a reasonable person.

There’s also a lot of really difficult balancing between competing interests that goes on here at all levels, and there is no real agreement on the principles to apply. States and international courts need to balance the importance of deterring and limiting breaches of international law; of punishing wrongdoing; of having justice done and seen to be done; of healing for affected countries; and of protecting military efficiency.

This is a fascinating area; keep an eye out for O’Sullivan’s upcoming book.