The Superior Orders Defense — A Principal-Agent Analysis
65 Pages Posted: 19 Feb 2013
Date Written: April 18, 2012
The superior orders defense is a criminal law defense which allows a subordinate soldier to avoid a finding of culpability if she committed the illegal act under orders. Despite the core significance of this issue for international criminal law as well as for domestic military law, the law on the subject is unclear. Jurists fail to agree under what conditions, if any, a soldier should be allowed to enjoy such a defense. Jurists are only able to agree that the issue should be regulated by a ‘one-rule-fits-all policy,’ i.e. that the same legal rule should regulate the issue without regard to the subordinate’s rank or the activity in which the order is given. Yet the specifics of such a policy are still disputed, and it is this disagreement that leads the relevant law to be unclear and unjust in application.
Therefore, this Article suggests that the issue be examined from a new perspective — a microeconomic Principal-Agent Analysis. The use of this analysis has several benefits: First, this framework helps us to parse the relationship between the lawmaker (principal) and the commander and subordinate soldier (agents). Second, it shows how various policies, which differ in the extent that the superior orders defense shields the subordinate, influence the subordinate’s and commander’s behaviors. Third, it illustrates the benefits and disadvantages to lawmakers of implementing each of these policies. The Article’s main conclusion is that the current support for the application of a one-rule-fits-all policy is flawed. Instead, different legal solutions should be adopted to accommodate those varied situations in which military orders are given. Moreover, based upon the analysis’ conclusions, core norms for a new, fragmented legal policy are suggested for both domestic and international law.
Keywords: Superior Orders Defense, Principal Agent, Manifestly Unlawful Order, Criminal Law, International Law
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