Acquitted British Soldiers and the Defense of Superior Orders

by Kevin Jon Heller

Last month, a British military judge dismissed charges against five of seven British soldiers accused of mistreating an Iraqi prisoner who died in their custody. At the time, the judge refused to explain the reasoning behind his decision to take the case away from the seven-officer jury, saying only that the prosecution had failed to introduce evidence of the defendant’s guilt.

Yesterday, the judge finally explained his decision:

Three weeks ago Judge Stuart McKinnon ordered cases dropped against five of the soldiers, including the former commander of the Queen’s Lancashire Regiment Lieutenant Colonel Jorge Mendonca. They were part of a group charged with prisoner abuse that led to the death of one inmate in custody in 2003.

McKinnon did not allow his reasons for dropping the case to be published at the time, but alluded to them in court on Monday while summing up the case against two of the defendants.

“It is now effectively common ground that brigade did indeed sanction the use of hooding and stress positions,” he said.

“That obviously contributed to the favourable result for Colonel Mendonca.”

He added that placing prisoners in stress positions is “generally accepted to be contrary to the Geneva Conventions and the law of armed conflict,” and that hoods are permitted only when necessary for security reasons.

Hotel receptionist Baha Musa died in British custody after receiving 93 separate injuries during two days of relentless beatings in September 2003.

Other prisoners held with him testified that they too were beaten, but were unable to identify their attackers because they had been kept hooded.

One of the soldiers guarding Musa, Corporal Donald Payne, pleaded guilty at the start of the trial to abusing prisoners. His guilt under the 2001 law that backed the International Criminal Court made him officially Britain’s first war criminal.

But all other charges against Payne, including a charge of manslaughter, were dropped on McKinnon’s order, along with charges against Mendonca and three others.

The soldiers’ claim that the British Army approved the mistreatment was supported by an officer who had previously been in charge of the Iraqi detainees:

The court martial, sitting at Bulford Camp, Wilts., heard from Major Antony Royce, who was in charge of handling detainees before the role of internment review officer was taken on by one of the accused, Major Michael Peebles.

Major Royce said that he was instructed by those higher up the chain of command to use conditioning techniques, including stress positions and hooding, to prepare detainees for tactical questioning.

He said that after being put in charge of internment he was told by Major Mark Robinson, a brigade intelligence adviser, to condition prisoners.

However, fearing that this may contravene prisoner-handling tuition he had received in the UK, Major Royce said he checked with Major Russel Clifton, the brigade’s legal adviser, and was again told that conditioning and hooding were acceptable.

Major Clifton, a barrister formerly of the Army Legal Service, sent a statement to the court yesterday clarifying that he could not recall being asked about the use of conditioning. But he added that “in certain situations… the use of stress positions to maintain the shock of capture prior to tactical questioning would have been acceptable.”

The judge’s decision to acquit the five soldiers, three of whom were personally involved in Musa’s mistreatment, is troubling. The judge seems to have concluded that the Army’s instructions to use the hooding and stress positions provided the soldiers with a viable defense of superior orders. That conclusion, however, is far from obvious. Under British military law, soldiers are legally entitled to follow any order that is not “manifestly illegal” — an order that a reasonable soldier would know is illegal. There is little question that the Army’s orders were objectively illegal: the judge himself acknowledged that the use of stress positions and hooding is “generally accepted to be contrary to the Geneva Conventions and the law of armed conflict.” The question, then, is whether the acquitted soldiers should have known that the orders were illegal.

A strong case can be made that they should have. Here is the prosecution’s account of Musa’s “interrogation” — an account verified by Corporal Payne, the soldier who pleaded guilty to the inhumane treatment charge:

Julian Bevan QC, prosecuting, said the detainees had been arrested on 14 September 2003 at the Haitham Hotel, where the army had found weapons including rifles, bayonets and suspected bomb-making equipment.

They were subsequently taken to a temporary detention centre where they were held for 36 hours and repeatedly beaten while handcuffed and forced to wear sacks on their heads, Mr Bevan said.

He told the seven-man judging panel: “One civilian, Baha Mousa, died as a result, in part, from the multiple injuries he had received.

“There were no less than 93 injuries on his body at the post-mortem stage, including fractured ribs and a broken nose.”

Other prisoners received serious kidney injuries consistent with being kicked and punched, Mr Bevan added.

The court was not dealing with “robust or rough handling, which is bound to happen in the theatre that existed in Iraq” but with something “far more serious”, he said.

“We are not dealing with the actions of a soldier or soldiers in the heat of the moment whilst on patrol in a hostile environment whose conduct is questionable.

“We are dealing with systematic abuse against prisoners involving unacceptable violence against persons who were detained in custody, hooded and cuffed and wholly unable to protect themselves over a very long period of time.”

Either the soldiers believed that the Army’s orders required such treatment or they were simply freelancing. If they were freelancing, the orders did not lead to the mistreatment, making the defense of superior orders inapplicable. And if they honestly believed that they were simply carrying out the Army’s orders, it seems clear that a reasonable soldier would know he could not lawfully subject Musa to 36 hours of stress positions and hooding — to say nothing of whatever led to his 93 injuries, including “fractured ribs and a broken nose.” (Injuries that Judge McKinnon seems to have simply ignored.) Although the Congressional Research Service has concluded that the amount of suffering necessary for stress positioning to violate the Geneva Conventions “is not firmly established,” its analysis indicates that, by any standard, Musa’s treatment crossed the line:

The DOD Working Group did not define stress position, but suggested “prolonged standing” (not to exceed four hours in a 24-hour period), which it described as lengthy standing in a “normal” position (non-stress)… not enforced by physical restraints. Prolonged standing is explicitly prohibited against civilian internees as inhuman treatment. The use of stress positions has been found to constitute torture or cruel, inhumane and degrading treatment in the past. The KUBARK manual included prolonged standing in its discussion of “coercive interrogation” methods, recommending that a subject’s “resistance is likelier to be sapped by pain which he seems to inflict upon himself” rather than by direct torture, and suggests forcing the detainee to stand at attention for long periods of time.

Indeed, even General Sanchez’s infamous September 2003 memo approving the use of stress positions — approval that was rescinded a month later — made clear that the positions could only be used for a limited period of time:

Stress Positions. Use of physical postures (sitting, standing, kneeling, prone, etc.) for no more than one hour per use. Use of techniques will not exceed four hours and adequate rest between use of each position will be provided.

To be sure, it is not absolutely clear that a reasonable soldier would have known that the Army’s orders were manifestly illegal. But it is also not absolutely clear that a reasonable soldier would not have recognized their illegality — in which case Judge McKinnon should have let the issue go to the jury instead of simply dismissing the charges.

http://opiniojuris.org/2007/03/14/acquitted-british-soldiers-and-the-defense-of-superior-orders/

4 Responses

  1. Kevin,

    Good post, but I have to disagree with your ultimate conclusion. The burden under the U.S. system is that the prosecution has to prove beyond a reasonable doubt that the defense didn’t exist. In a case like this where the prosecution’s own witnesses (before the defense case even began) supplied the defense, I have to assume that the prosecution didn’t do enough to rebut that defense, in the form of some proof that a reasonable person would have known the actions violated the Geneva Conventions or other duties the soldiers knew or should have known about; it’s insufficient for the judge to assume those elements of the defense.

    The Manual for Courts-Martial, R.C.M. 916, “Defenses,” a very similar system to that of the Brits, lays out that it’s a complete defense to any offense if the perpetrator is acting pursuant to orders. Here, prosecution evidence suggested that both conditioning and hooding were authorized. Was there evidence that the strikes/punches did not fall under the “conditioning”? We may believe that it can’t, but I don’t know that from the articles. Also, note that I see nothing to indicate that the guilty plea’s facts were entered into evidence at the contested trials. You could be right, but it’s just as reasonable to assume that the prosecution failed to meet its burden. It happens, all too frequently.

    Here’s my post on the same.

    Lime

  2. Lime,

    I respectfully disagree. Your statement that “the prosecution has to prove beyond a reasonable doubt that the defense didn’t exist” is incorrect for the defense of superior orders. Superior orders is not a failure of proof “defense,” like mistake or impossibility, that the prosecution has to “disprove” in order to satisfy its burden of proving that the defendant committed all of the elements of the crime. On the contrary, superior orders is an affirmative defense — an excuse — for which the defendant has the burden of proof. See Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199 (1982)

    Moreover, your statement that “it’s a complete defense to any offense of the perpetrator is acting pursuant to orders” is incomplete — as you recognize in the post to which you link. Superior orders are a complete defense if they are not “manifestly illegal.” Is it really possible to argue that a reasonable soldier could never have known that the British Army’s authorization for hooding and stress positions was illegal — the standard necessary to justify a directed acquittal? That seems like the quintessential jury question to me.

    Kevin

  3. Kevin,

    I would agree with you but for the specific rules that govern U.S. (and — I’m presuming here — we know what that does) and British military jurisprudence. Case law, United States v. New, 55 M.J. 95 (C.A.A.F. 2001), the highest U.S. military court has affirmed the burden as on the prosecution. Looking to the U.S. Manual for Courts-Martial, 2005 ed., R.C.M. 916(b), “Burden of Proof” for the 916 “Defenses,” specifically states: “Except for the defense of lack of mental responsibility and the defense of mistake of fact . . . the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.” The subsections that follow, (c) through (k), enumerate the specific affirmative defenses in the U.S. military’s legal system. Two exceptions are recognized, obedience to orders is not one of them. So while you are generally correct, as applied to U.S. military law you’d clearly get a different result. (We have “rules,” you know).

    Your second point is well taken. The question is, what legal conclusions the military judge make about the lawfulness of the orders? He may simply have concluded that, although contrary to generally accepted Geneva Conventions, they were lawful orders — justifying the dismissal. He may also have decided that the orders were unlawful, but given the amount of evidence presented by the prosecution that higher-ups condoned many of the practices, the prosecution had negated the possibility of proving that a person of ordinary sense and understanding would have known the orders to be illegal.

    Quoting from New: “If the military judge rules that the order was unlawful, the judge so instructs the members and the members then decide whether the prosecution has proved beyond a reasonable doubt that the accused actually knew that the order was unlawful or that a person of ordinary sense would have known that the order was unlawful.” Thus if at the end of the prosecution’s case the government had presented noevidence as to either of those points, you’ve got a granted motion for finding of not guilty, R.C.M. 917.

    Although there’s much to sift through and lamentably it’s all via the press, the military judge informally alluding to prior reasoning post-acquittal, then commenting that the practices were “generally accepted to be contrary to the Geneva Conventions and the law of armed conflict,” doesn’t mean that he legally concluded that the orders were manifestly illegal — given the outcome, quite to the contrary.

    I’ll admit that I may be missing something in the reporting of the case, but given our own jurisprudence, it’s a tough slog proving — given the different “ordinary sense and understanding” test as applied to military men and women required to obey instantly, as our Sup Ct repeats every few years — that any order provided from above is manifestly illegal, particularly where our own country doesn’t buy into the G.C.’s wholesale.

    Lime

  4. Lime,

    You are absolutely right regarding U.S military law. I’m genuinely shocked by RCM 916, which flies in the face of decades of civilian criminal law.

    Kevin

    P.S. If any of our readers know to which party British military law assigns the burden of proof for the defense of superior orders, please leave a comment here.

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