Martha L. Minow, Living Up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence, 52 McGill L.J. 1 (2007).
Abstract: Recent world events underscore the importance of the dilemma of the superior orders defence and the question of how to prevent soldiers from undertaking abusive conduct or committing atrocities. This article examines the degree to which holding individual soldiers legally responsible for their actions can be seen to be an effective strategy for the prevention of atrocities and explores complementary strategies aimed at the prevention of abusive conduct by soldiers. The article surveys historical and legal materials to illustrate the ongoing debate over the scope of the superior orders defence in U.S. and international law. The author then surveys a range of social science literature that suggests why some people participate in atrocities, and illuminates how difficult it would be for individuals to understand and comply with a rule expecting compliance with all superior orders except those that are illegal. The author concludes that the evidence undermines the likelihood that a norm establishing individual responsibility would succeed in changing conduct. The author argues that it is important to restrict the application of the superior orders defence in order to uphold a symbolic ideal of individual responsibility, but that real prospects for preventing atrocities by soldiers depend on changing the organizational design and resources surrounding the soldier and specifying new obligations for those in command. The author recommends changes to military incentives, culture, and practices. Proposed strategies include the provision of meaningful and effective training programs for both soldiers and officers, the establishment of a military culture in which soldiers understand their superiors to care about violations of law and morality, and the integration of legal analysis into the daily operations of all levels of the military hierarchy so that the burden of understanding lawfulness does not rest solely on the shoulders of the ordinary soldier. Presented as the Raoul Wallenberg Human Rights Lecture at McGill University (March 9, 2006).