This is something the GMJR Blog has not tried before...
A few weeks ago a discussion began on Twitter on what is the definition of a lawful order. The aim was to identify a definitive definition of what amounted to a lawful order. Brig. Anthony Paphiti (Rtd), esteemed member of this parish took part and...well I took notes.
I thought it might be a good idea to throw the discussion open to the esteemed readership of this blog to see if the definition can be expanded or refined to the point where it is a truly definitive definition of a lawful order within the jurisdictions which have grown out of the Georgian Articles of War.
The Twitter definition was:
A
direction to a subordinate to carry out an act or refrain from doing an act which
if followed will have a military purpose and which would not amount to a
criminal act, a service offence or civil wrong.
Hopefully, we can get some debate going and some left of field authorities in the comments and ultimately, the definitive definition. To get things going, here are some questions:
1) Must an order be nescessary? Can an unnescessary act have a military purpose?
2) Is a commander required to have a reasonable belief that the order is necessary?
3) Can that belief be a mistaken belief?
4) Is the military purpose judged by a subjective or an objective test?
1) Must an order be necessary? Can an unnecessary act have a military purpose?
ReplyDeleteThe answer seems simple at first glance. Commanders are given a particular kind of authority to give orders to military subordinates because the relationship between the superior and the subordinate has no direct counterpart in civilian law. Orders may be given in the context of other legal relationships, such as employment, and may entail legal consequences for non-compliance, but only the military command relationship carries with it penal consequences for disobedience. (Police discipline law arguably falls somewhere on the spectrum between military law and normal civil employment law.)
Therefore, it might seem that the order must be militarily necessary. Otherwise, what business does the superior have in giving the order? Also, how can an unnecessary act have a valid military purpose?
However, the objective necessity of the order is not something the prosecution would have to prove at the court martial of the subordinate who disobeyed the order. The subordinate might disagree with his superior’s opinion about the military necessity of the order. Reasonable observers might share the subordinate’s point of view. There may be much better ways of achieving the military objective than the one ordered by the superior officer. The subordinate must still obey the order, unless it is unlawful.
What is required, however, is that the order have a military purpose. To put it another way, it must be clearly related to a military duty. The order to clean the platoon’s vehicles after an exercise is lawful. An order to clean the platoon commander’s car is unlawful.
2) Is a commander required to have a reasonable belief that the order is necessary?
At first glance it might be hard to see how the answer could be anything but "yes". After all, how can the superior be justified in giving an order that he does not believe to be militarily necessary? However, if we think of a military order as something that must be obeyed as long as it is lawful, the legal inquiry has to focus on either: (a)whether the subordinate was justified in disobeying the order, or (b)whether the subordinate is criminally liable for obeying the order. In either case, the personal opinions of the giver of the order don't help to answer the question that the court must decide.
The objective reasonableness of the commander’s belief, however, could be relevant in determining whether the subordinate is criminally liable for obeying an unlawful order. As the Supreme Court of Canada held in R. v. Finta, [1994] 1 S.C.R. 701 a soldier cannot rely on the defence of superior orders where the order is manifestly unlawful, i.e. patently and obviously wrong.
3) Can that belief be a mistaken belief?
As long as the order is lawful in itself and directed to achieving a military purpose, the giver of the order can be mistaken as to whether the order is militarily necessary. The subordinate must still obey. It would be possible to imagine unusual situations in which the answer would have to be more nuanced, however. An order to take the platoon out for a five-mile run to increase physical fitness is prima facie a lawful order. Would the order still be lawful if the order came to do the run in the middle of the afternoon with the temperature at 40 degrees? Wouldn’t the obvious danger to the health and safety of the troops outweigh the military purpose of promoting physical fitness? Would the Lieutenant be justified in disobeying the Major’s order to take his troops for a run in those conditions?
4) Is the military purpose judged by a subjective or an objective test?
The test can only be objective. It is a question of fact whether the order has a military purpose. Disobedience of a lawful command is a disciplinary charge that must be proved beyond a reasonable doubt. The liability of the accused cannot depend on the subjective belief of the person who gave the order.
Thanks for the contribution Edmund.
ReplyDeleteUnless an order is prima faice unlawful then there is a clear duty to obey but what if it is the commander who is under investigation? In the UK the issuing of an unlawful order might be caught by s.19 AFA 2006 (Conduct prejudicial to good order and discipline) or s.22 AFA 2006 (Ill treatment of subordinates).
Taking the 40 degree run as an example. If the military purpose is to get the platoon experienced before deploying to the desert that might have a military purpose notwithstanding the risk. However, if the deployment was changed to a temperate region running at that specific time loses its military purpose. How far do we extend the reasonable belief? Is a reasonable but mistaken belief a defence to ordering an otherwise dangerous run? If so then our definition ought to explicityly include the requirement for a reasonable belief.
I compeltely agree that something cannot have a military purpose if it is unnescessary but if necessity is baked into military purpose it brings in the issue of proportionality doesn't it? If an order is not proportionate then it ceases to be necessary and is therefore unlawful. Obviously that's a LOAC principle but should that be in our definitve defintion?
Could the definition now be:
A direction to a subordinate to carry out an act or refrain from doing an act which the commander reasonably believes has a miltiary purpose and is proportionate to that purpose, and which if followed will not amount to a criminal act, a service offence or civil wrong?
(I am verbose, so this is offered in three parts...)
ReplyDeleteI'm glad that my colleague, Edmund Thomas, has responded. I was going to mention some of his previous scholarship on the subject, and his comments offer a useful segue.
I agree with much of what Edmund has written, but I do disagree with some aspects, perhaps in a nuanced manner.
First, while I agree than an order must be necessary, I would suggest that this is an extremely low threshold. And, perhaps, it muddies the true question. The true test is whether there is a military purpose to the order. An order that has a military purpose is necessary. That may seem tautological. But there are any number of reasons why an order may be issued, from a critical order to guard a reserve demolition on a bridge, to a banal order to tidy up an office before a VIP visit.
This is distinct from the issue (at least under Canadian law) whether the disobedience of that order rises to the level that requires punishment or sanction under the Code of Service Discipline. There is a risk that some people might conflate these two distinct issues. And I contend that those are two distinct issues. Whether something merits criminal/disciplinary sanction is a distinct test that applies to all offences. Similarly, whether it is in the public interest to prosecute an offence is a distinct test.
And, if I understand Edmund correctly, whether an order was ‘necessary’ – or perhaps, more directly, whether the order served a military purpose – would likely be characterized as a rebuttable presumption. The accused would be obliged to demonstrate, on a balance of probabilities, that the order did not serve a military purpose. This would not ‘reverse the onus’ (which would be improper under Canadian Law) regarding an element of the offence. The relevant elements of the offence are that an order was issued, and that is was issued by someone with the lawful authority to issue the order to the accused (and, presumably, that the accused is someone to whom the order would apply). It then falls to the accused to demonstrate why the order was unlawful.
Now, there is a difference between an unlawful order and a manifestly unlawful order. Edmund wrote an article a number of years ago on that subject. I have a copy, but I cannot find an open-source link that I can post here (perhaps Edmund can help out). If anyone is interested in how the Canadian Forces approaches this issue, Edmund’s article is worth a read. I disagree with some elements of what Edmund wrote. In particular, I contend that the notes to article 19.015 of the Queen’s Regulations and Orders (QR&O) for the Canadian Forces do not give rise to a ‘gap’ in a defence to unlawful orders. Rather, reflecting the jurisprudence discussed in R v Finta (which Edmond discusses above), the Notes create a positive obligation on CF personnel to refuse a manifestly unlawful order. Rather than presenting a defence to a charge of ‘disobedience to a lawful command’, these Notes (which are not technically part of the regulation) create a potential basis to charge a CF member who does not refuse a manifestly unlawful order.
(More to follow)
The issue of a commander’s ‘reasonable belief’ that an order serves a military purpose (and even the subsequent question about mistaken belief) may be a ‘rabbit hole too far’ (apologies for the analogy, but I couldn’t resist). By characterizing it as a ‘reasonable belief’ we are presumptively suggesting that it is an objective test. I contend that it could more accurately be characterized as follows:
ReplyDelete1. The person issuing the order must believe that the order served a military purpose (which is inherently subjective);
2. The person issuing the order must believe that he/she/they had the authority to issue the order to the person or persons to whom the order was issued (again, a subjective test);
3. And these beliefs must be reasonably held in the context (what in Canada, is a subjective-objective test).
The issue of ‘mistaken belief’ ventures further down the rabbit hole. This is not a case where consent is involved (i.e. allegations of sexual assault). I agree with Edmund (for the most part): the ultimate issue is whether the order served a military purpose and was issued by someone with the authority to issue the order (within the broad context in which the order was issued). If the order was manifestly unlawful, the soldier has a positive obligation to refuse the order. That exception is not a defence to a charge of disobedience to a lawful order because the order was not lawful in the first place (i.e. it “… amounts to a criminal act, a service offence or civil wrong”.) Rather, it is the basis for a separate charge if the soldier does not refuse the manifestly unlawful order.
(more to follow)
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ReplyDeleteThis comment has been removed by the author.
ReplyDeleteUsing the example given by Edmund (which is apt for this discussion), a soldier may choose to refuse the Lieutenant’s order to conduct PT under dangerous conditions. If the soldier was aware of, and could present evidence of, the Major’s contradictory order, that could be an absolute defence. The issue then becomes one of fact not law – it turns on whether the soldier was aware of the order.
ReplyDeleteIf the soldier were unaware of the Major’s order, but later learned of the Major’s order, then he could not advance the defence of conflicting orders (which is addressed in Canadian under article 19.02 of the QR&O), but it would be relevant in establishing the reasonableness of the Lieutenant's order.
Bear in mind as well that, where rights are constitutionally entrenched or even entrenched in statute (as they are in Canada, the US, the UK, …) the soldier could also advance an argument that (to use Canadian law as an example) the order infringed his/her/their right to security of the person under section 7 of the Charter, where the Lieutenant’s order could reasonably place the soldier’s physical well being in peril in a disproportionate manner (i.e. the benefit of the PT on that day would be outweighed by the risk to the soldier’s health). The soldier bears considerable risk in refusing the order (if the soldier cannot establish the rights infringement), but there is a potential defence to an unreasonable order separate from the definition of 'lawful order' under military law.
Which brings me to Matthew’s point. Proportionality is certainly part of any ‘human rights’ argument, but that will turn on a specific nation’s human rights laws (whether constitutionally entrenched or not, because we are looking at the actions of an executive actor, not legislation). But I don’t believe that proportionality is automatically part of the ‘lawful order’ equation. I believe that ‘military purpose’ is a threshold question, and a low one at that. Proportionality then factors in based upon a jurisdictions human rights laws.
Consider Smith v MoD, [2013] UKSC 41. Granted, that was on an interlocutory issue. However, notwithstanding that the court held that the traditional view of ‘Combat immunity’ (in terms of justiciability) should be more narrowly construed, it still distinguished between strategic decision-making that was subject to deliberation, and more immediate decision-making that did not afford such deliberation. A company commander making a decision in the midst of an assault is markedly distinct from that of a General Officer considering variables with the benefit of staff analysis and certainty of information. But the issue of proportionality is best left to the specific human rights regimes, and not the narrow confines of defining a ‘lawful order’.
Well, that’s my 2 cents, rounded up to $1.67 for inflation, offered on a (yet again) hot, humid day from the safety of my misanthropic bunker, in which I revel in my ‘social distancing’.
Thanks, Rory, for the reference to my earlier article. As far as I know it's the first time anybody has mentioned in writing! The article is a comment entitled "R. v. Liwyj: Can a Soldier be Punished for Disobeying an Unlawful Command?". It's published in the Criminal Reports at (2012) C.R. (6th) 352. I haven't been able to find an open source for it, but you can get it if you have access to Westlaw Canada.
ReplyDeleteThe point I wanted to make in that article is that there are two military obligations at play: the obligation to obey lawful orders and the obligation that Rory mentions, to disobey manifestly unlawful orders. It is important not to confuse the two concepts, as the trial judge and the Court Martial Appeal Court did in the Liwyj case (2010 CMAC 6), available on Canlii.org.
The charge is "disobedience of a lawful command of a superior officer". Full stop. It is not "disobedience of any command, lawful or unlawful, of a superior officer, provided that the order is not manifestly unlawful."
The note to QR&O article 19.015 that Rory refers to provides in part: "Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful." Therefore where the subordinate does know that the order is unlawful he is completely entitled to disobey it.
The CMAC and the trial judge in the Liwyj case both referred to R. v. Finta, which is the leading Canadian decision on the defence of obedience to orders. The SCC in Finta in turn relied on the Israeli Military Court of Appeal decision in Ofer v. Chief Military Prosecutor (1959) 2 Pal. Y.B. Int'L L. 69, in which the Court stated: "The commander, after all, is empowered to issue only legal orders and if his order is illegal, it was ipso facto issued without authority and the soldier need not obey it." The Court immediately noted, however, that this places the soldier in an intolerable situation. He cannot be expected to clarify for himself whether every order he receives from his commander is legal from every point of view. Therefore, the soldier who obeys an unlawful order is shielded from criminal liability unless the order is "manifestly unlawful" referring to "an unlawfulness that pierces and agitates the heart , if the eye be not blind not the heart closed or corrupt." The concept of manifest illegality is a defence for the soldier who obeys an order. It is not a weapon to be used against the soldier who disobeys an order.
Therefore, I disagree that the soldier is required to obey any order, as long as it is not manifestly unlawful. That is not the law, at least not in Canada.
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ReplyDeleteEdmund,
ReplyDeleteThanks for this.
Again, however, I disagree in part with your conclusion. I agree that the two prevailing cases in Canadian military law are R. v. Matusheskie, 2009 CMAC 3 and R. v. Liwyj, 2010 CMAC 6. Matisheskie is 'less applicable' as it turned primarily on art 19.02 of the QR&O because the accused had conflicting orders. (If I may be permitted to editorialize a bit - based upon the facts, it appears that the accused actively sought out the conflicting order because he did not like the order his immediate superior issued to him. He also failed to inform his immediate superior of the conflicting order he sought.)
I agree that there are two distinct obligations, and I believe that I distinguished between them in my comments. However, you cite Note (B) from QR&O art 19.015, but I contend that it is Note (C) that relates to the obligation to refuse a manifestly unlawful order: "An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child." Therefore, I disagree with your comment that 'The concept of manifest illegality is a defence for the soldier who obeys an order. It is not a weapon to be used against the soldier who disobeys an order.' I suggest that the intent of Note (C) is clear: it informs a CF member who does not refuse a manifestly unlawful order that he or she is liable to be prosecuted for failure to do so. While the CMAC in R v Liwyj did, arguably, examine Notes (B) and (C) in the context of a 'defence', that is because they were asked to do so. The court did not conclude that it did not impose a positive obligation on a soldier. It simply concluded that the order in question was not manifestly unlawful.
But, it did reinforce the objective standard: "It must be remembered that the lawfulness of a command is defined by an objective standard: orders must be obeyed unless they are manifestly unlawful in the eyes of a reasonable person put in the same circumstances.An honest belief that an order is manifestly unlawful will therefore amount to a mistake of law, and not of fact, when it is found that a reasonable person would come to the opposite conclusion." (Liwyj, para 42).
I disagree that the CMAC held that the soldier was placed in an intolerable situation. In fact, the court clearly held that it would be inappropriate to lower the threshold in order to permit soldiers to second-guess the orders they received. The trial judge and CMAC may have both referred to Finta and Ofer, but that did not change the accused's culpability. The trial judge did, however, consider the soldier's motive in sentencing.
So, respectfully, I disagree, in part, with your characterization of the prevailing law in Canada.
And, so that my position is clear:
ReplyDelete1. A CF member has a positive obligation to refuse to follow a manifestly unlawful order. Failure to refuse such an order exposes the CF member to disciplinary/criminal prosecution for failure to refuse the order. In practical effect, this means that the positive obligation to follow orders is not available as a defence to the impugned conduct where the order to commit the impugned conduct is manifestly unlawful.
2. A CF member has an obligation to follow lawful orders. Failure to follow an order that is not 'manifestly unlawful' exposes the CF member to disciplinary prosecution.
3. If a CF member believes that the order is unlawful, the CF member can choose to disobey the order. That is not a principle of law - that is the reality of free will. However, provided that the prosecution establishes the military purpose and authority of the impugned order, the CF member would then have to demonstrate the unlawful nature of the order. As we can see in R v Liwyj, that is not an easy threshold to meet. Demonstrating the unlawful nature of the order will, in Canada, likely arise in the context of a human rights infringement, as in R v Scott, 2004 CMAC 2. (R v Scott is not the best example of adjudication of human rights in this context, but it is the case upon which the CMAC relied in Liwyj - not suprisingly, as it is a CMAC decision as well).
While I'd like to expand on how R v Scott became increasingly ridiculous, I will limit my comments to these: (1) the full relevant facts are not captured in that judgment; (2) its amounted to a contest of wills between a CO and a junior officer who was not junior in age; and, (3) I think the court misconceived the characterization between removing head-dress and praying (i.e. an order to remove head-dress; and an order to pray). Granted, I am not the Supreme Court of Canada, so my views of the merit of the CMAC decision are not binding on anyone.
I would contend that it's not an infringement of one's freedom of religion to be ordered to remove head-dress if one is an atheist. It would be an infringement of religion if praying required the person to retain his/her/their head-dress while praying. However, R v Scott says what it says, and nothing I say will alter that. (And, no, I was not directly involved in that matter. My only 'dog in the fight' is the consistency of legal theory.)
I have my own problems with R. v. Scott (for those outside the extremely small circle of Canadian military lawyers, this involved a naval lieutenant who refused the order to "off caps" when the padre offered a short during a formal parade). I don't think the order offended Lt (N) Scott's freedom of religion. However, the case makes my point. Lt (N) Scott was quite sure that the order was unlawful, but it was not "manifestly unlawful". A lot of people thought it was lawful, including his CO and the trial judge. Presumably everybody else on parade, who did remove their head dress, thought the order was not manifestly unlawful. The CMAC, however, agreed with him and he was acquitted. Therefore, his CO, the judge, Rory and I are all wrong about the legality of the order.
ReplyDeleteThe illegality of the order doesn't even have to rise to the level of a breach of the Charter. The CMAC in Liwyj made it clear that if Cpl Liwyj could have presented admissible evidence that the mechanical procedure he objected to was actually dangerous, he would have been acquitted. The court did not engage in any Charter analysis. Since Cpl Liwyj had no such evidence he was, correctly in my view, convicted.
I think Rory may be fiercely agreeing with me. He writes "provided that the prosecution establishes the military purpose and authority of the impugned order, the CF member would then have to demonstrate the unlawful nature of the order." My point precisely.
Any soldier who disobeys an order that is not manifestly unlawful does so at his own risk. He has to be right. However, if he is right and if the order is unlawful, he has not committed the offence. I think the ultimate burden remains with the prosecution, but practically speaking, as Rory says, once the prosecution establishes the military purpose and the authority of the order, the defence had better be able to show that the order is in fact unlawful.