The soldier's dilemma: A look at the development and scope of the superior orders defense and its potential to resolve the dilemma
For centuries soldiers have been faced with a dilemma. They are trained and obliged to obey the orders of their superior officers, and face being court-martialed for disobedience, on the one hand. On the other hand, if soldiers obey their orders and ultimately commit an international crime, they face prosecution at an international level. This is referred to as the soldier's dilemma. The defence of superior orders is one soldiers are permitted to raise in order to mitigate liability, to some degree, when being prosecuted. The defence of superior orders has been raised throughout history, with varying outcomes. There has been a considerable amount of research done on the defence, with polarised opinions on the legitimacy of the defence. The purpose of this paper is to determine whether the defence of superior orders has the potential to resolve, in whole or in part, the soldier's dilemma. In answering this question this paper will look at the history of the application of the defence, and how it has been developed over time. It will then look at the different approaches that have been developed and made use of in the prosecution of soldiers accused of committing international crimes. These approaches are the doctrine of respondeat superior, absolute liability and conditional liability. In looking at these different approaches this paper will consider whether any of the approaches have the ability to resolve the soldier's dilemma. This paper will show that there is considerable support and reason for the proposition that the conditional liability approach, constituting a middle ground between the polarised respondeat superior and absolute liability approaches, is best placed to resolve the soldier's dilemma.
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