The military should be cautiously training soldiers to disobey unlawful superior's orders as a way of legally protecting them against a criminal conviction, according to QUT legal expert Dr Carmel O'Sullivan.
Dr O'Sullivan, who has completed her PhD examining The Legal Position of the Obedient Soldier: The Defence of Superior Orders as an Effective and Practical Standard, recommended a cautious approach be taken to introduce reality-based training that conditions soldiers to defy illegal orders.
"Obedience is a central element of military training," Dr O'Sullivan said.
"As such, military training conditions unquestioning obedience, which significantly increases the likelihood that the reasonable soldier in combat will obey the orders of his superior irrespective of the order being legal or illegal.
"While this conditioned response contributes to important military purposes, they also affect the application of the defence of superior orders."
Dr O'Sullivan's study looked at the legal liability of soldiers obeying the unlawful orders of their commander in combat.
Specifically, it focused on whether the current legal standard for determining a soldier's liability was an effective and practical standard, given the effects of military training and the realities of modern warfare.
"I wanted to see if the current standard we hold soldiers accountable to, is actually a practical one," she said.
Dr O'Sullivan focused her study on the Rome Statute of the International Criminal Court - which was set up as a permanent criminal court to try soldiers and civilians who engage in war crimes and crimes against humanity and genocide.
"From a legal perspective, what the ICC says is that a soldier can only raise a defence of superior orders to a war crime and that the defence can be used only if they didn't know the order was illegal or if it wasn't manifestly unlawful," she said.
"Military training that promotes obedience without question or delay is incompatible with the doctrine of superior orders, which requires soldiers to question the legality of orders.
"International law and the military aim to offset this incongruity by providing that soldiers are obliged to obey lawful orders only. Yet soldiers are generally not trained to disobey illegal orders.
"There does not appear to be simulated and scenario training where soldiers are issued illegal orders that they must identify and disobey."
Dr O'Sullivan said instead of merely informing soldiers of the legal duty to disobey, the identification and disobedience of illegal orders should be incorporated into daily training.
She said reality-based training, such as realistic scenario and situational training, had been very successful in improving soldiers "fighting performance and should be utilised to improve the soldiers" identification and disobedience of illegal orders.
But Dr O'Sullivan warned this had the potential to present its own challenges and dangers.
"Disobedience may breed a sense of uncertainty as the soldiers may feel that they cannot rely on the orders of their superiors," she said.
"It may also weaken the obedience of the soldier, which is a cornerstone of the military. For this reason, the military should implement this recommendation with caution and sensitivity.
"Therefore, it is recommended that the military uses reality-based training techniques to train soldiers to identify and disobey illegal orders. However, the military must implement this training with caution in order to prevent excessive disobedience or uncertainty."
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