|Ours is not to question, ours is to do or die: Aziz with Bainimarama and Aseri Rokoura. Below with Ana Rokomokoti.|
“We need a new Fiji." That's the call from the RFMF's chief of staff, Brigadier General Mohammed Aziz.
And yet, Aziz could not answer directly in his own thesis a most critical question that continues to dog Fiji - why does the army allow itself to be used by coupmakers and can soldiers hide behind the Defence of Superior Orders?
Aziz addressed cadets during a passing-out parade at Navua a few days ago saying Fiji was at a time where we needed "total commitment to all that we pursue, particularly, when we sense a constraint in our social, political and economical structure.'
“Fiji needs a new spirit," he said. "We need sound judgment and understanding. We need clear hearts and minds. We need a new Fiji. Given the constant pressure and hardships we face, we the leaders of our societies, teachers and parents can expect the soaring demands at the end of the day.
"But it is not something we should all be pessimistic about. Rather it something that we should face up to and rise to the challenges, so that we can be confident that our future generations are best prepared to deal with whatever lies ahead.”
Yet in his 2008 thesis looking at why soldiers follows orders from superiors taking refuge behind the saying ‘Ours is not to reason why, ours is to do or die', Aziz fails to explore honestly the situation in Fiji, preferring instead to look at the conflict of other countries.
Aziz, one of the senior officers who planned the 2006 coup with Frank Bainimarama, cites international examples but avoids divulging anything about the RFMF experience, so fails to contribute anything to the 'future generations' that he speaks so passionately of.
This despite admitting he chose the controversial subject of soliders honour because it was too significant to ignore.
"I witnessed the confusion faced by military commanders and soldiers first hand in trying to differentiate and resolve impasses relating to orders, especially when there were grave concerns about the illegality of the same.
"Preparing to prosecute some one hundred fifty one officers and soldiers charged for mutiny, incitement to mutiny and treason related charges arising from the coup d’etat in Fiji in 2000; the mutiny at the Sukainivalu Barracks, Labasa; and the mutiny at the Queen Elizabeth Barracks, Nabua; it was of great concern to see these service personnel arguing obedience to superior orders as a defence."
Coupfourpointfive publishes here some of that 2008 thesis as part of the ongoing debate and information gathering into the treasonous acts of members of the Fiji military regime.
Military Culture, War Crimes and the Defence of Superior Orders.
Bond University, Gold Coast Australia, August 2008
Degree of Doctor of Legal Science
All military forces function according to the principles of discipline and obedience to orders. Soldiers are an effective instrument in the hands of military commanders, who are prepared to serve the interests of their nations regardless of the adversities. The saying: ‘Ours is not to reason why, ours is to do or die’ ever lingers in the memories of soldiers as they undertake missions.
With the growing number of soldiers charged and convicted for atrocities, there is growing concern especially when pleas are made regarding the defence of superior orders. In this thesis, I have tried to examine this concern, both in my capacity as a professional military officer as well as an academic.
In researching and writing this thesis, I have gained invaluable knowledge and understanding on matters like soldiering and the existing laws relating to warfare. All this has benefited me in my understanding and the application of the same in my defence forces.
In undertaking the research and writing of this thesis, I am indebted to so many people for their generous assistance and advice.
I am grateful to Professor Doctor Bee Chen Goh and the staff of BOND University Law Faculty for their continued encouragement, assistance and guidance. My appreciation also extends to Commodore Josaia Vorege Bainimarama, the Prime Minister of Fiji and the Commander of the Republic of Fiji Military Forces and Brigadier Ioane Naivalurua, the Commissioner of Prisons for their professional advice and comments regarding this thesis. My heartfelt appreciation to my wife, Dr Lubna Rizvia Mohammed for her continued assistance and support. Finally, I dedicate this thesis to my late dad, Pir Mohammed and late brother, Aslam Mohammed, who were the pillars of strength and encouragement in my endeavours.
Throughout recorded history, we seem to have been plagued with more wars than peace. Everyday more atrocities and gross crimes against humanity are committed. The reality of war has become a constant element in human and national affairs involving great suffering, destruction, and often catastrophic ravaging of entire societies. To mitigate this savagery, reciprocal restraints on the conduct of war and armed conflict became advantageous and common, as means and methods of warfare became more destructive and sophisticated.
‘I was only following orders’. This has become a common plea mouthed by the relative innocent junior soldiers and the dubious battlefield murderers. Is there a defence of obedience to superior orders? If so, to what extent can a soldier plead to such a defence?
Obedience to orders has taken such an important role in conflicts that soldiers are now left to argue and ponder when not to comply with an order. What is wrong? Why is this happening? Are the current laws inadequate and unclear? Are the current military doctrines and manuals inadequate and of no significant help? Is the defence, obedience to superior orders, raised as merely a smoke screen to camouflage the atrocities and shift blame to avoid punishment?
The military culture behind the obedience to orders, its standards and how they can be improved to resolve the impasse of atrocities being committed under the common plea of obedience to superior orders.
This thesis seeks to examine the military culture of obedience and the standards that exist relating to the defence of superior orders. It will explore laws and practices for this defence that have been adopted nationally and internationally. It will also propose guidelines for differentiating legal from illegal orders.
Finally, this thesis will reference a case study, which should provide a basis for testing the standards advocated. The case study should also serve as a lesson for our soldiers regarding their conduct on the battlefield, especially acts committed whilst obeying superior orders.
It is hoped that this thesis will provide some answers to the questions relating to the defence of superior orders and in turn help minimise innocent casualties.
“Warfare is a social practice the very nature of which places its practitioners momentarily beyond good and evil, making them partially exempt from normative regulation that exists in all other contexts. War, especially a just war, morally authorises people to engage in acts that would obviously be criminal under any other circumstances. The normal moral intuitions of peacetime about right and wrong offer little purchase on practical deliberation in combat. The law would be wrong to conclusively presume to the contrary.”
1.0. Armed conflicts and the law.
In modern times armed conflicts have become more complex in nature. The conduct of warfare has become blurred; long gone are the wars previously known where battle used to rage between opposing forces, with very limited involvement of civilians.
Modern armies have grown in number and technology; divisions after divisions are being poured onto a battlefield and activities are not confined to the ground, but air and sea as well. In all these developments, the states have increased their fighting equipment and logistics to a degree far beyond a normal capacity and ability ever before experienced.
More ships are built with capabilities to travel greater distance and carry more necessities. So much so that giant aircraft carriers glide the oceans, carrying the pride and hope of their nations. More fighter aircraft are produced, with designs improving everyday. No longer restricted to the common plane with limited ability; new aircraft are designed to carry people and ammunition in situations never previously experienced. Furthermore, their ability to provide fire support to ground troops is overwhelming.
With the growing demand due to modern armed conflicts, the main forces of the armies have grown. Servicemen are enlisted into the ranks, either serving as regular, territorial, reserve or auxiliary members. There is willingness amongst soldiers of the territorial, reserve and auxiliary units to assume regular duties when called upon; most leaving their work, business or normal life style.
The provision for soldiers today has advanced in technology. More sophisticated and reliable weapons are provided. They are equipped with better outfits for endurance and survival. From the time where a single pellet was being loaded into a rifle, technology has advanced into providing assault rifles with self loading capabilities of up to thirty rounds of ammunition.
Where machine guns were loaded with belts of ammunition, drum fed magazines are now used. Where hand grenades were tossed a few meters, they are now propelled from a launcher attached to a rifle with better precision and distance. Where soldiers had to run through open grounds for miles, they are now being carried in armoured personnel carriers to the battle front, minimising exposure and the likelihood of them being shot. These are a few developments experienced by armed forces when preparing for or when being engaged in battle.
As developments are made in the operational, administration and logistical capability of armed forces, there has been a growing need to revise and implement the laws of war. The urge to out manoeuver or gain an upper hand on the enemy is so overwhelming that armed forces resort to any tactics that give them the edge over the other.
Modification of ammunition, disguising soldiers as care providers, locating armed personnel in protected building, poisoning water sources, taking civilians as hostage to gain submission by the adversaries, and blowing up dams or dykes to cause destruction and chaos, are some of the many acts members of an armed force may adopt to eliminate their enemy. The fear of abuse is ever lingering in our minds that armed forces may resort to catastrophic acts especially with advanced and destructive ammunition.
The world has seen the development of scud missiles which not only deliver conventional munition rounds but are now fitted with chemical and biological agents for wider destruction. Surface to air missiles and vice versa are employed on designated targets with precision accuracy.
Nuclear bombs are released, not on soldiers, but in a designated area causing wide spread death and destruction. It is due to these developments, that have the potential for cruel and wide spread destruction, that, the need arises to put in place laws to restrict and control their employment.
In time, laws have been implemented to address the developing concerns related to warfare. As the concerns grew, so did the laws. Conditions were put in place regarding different aspects of warfare including laws relating to general conduct in a battle field and to the wounded and sick, shipwrecked personnel at sea, laws relating to the treatment of prisoners of war, laws relating to the protection of civilian persons in time of war, and the use of land mines.
In many instances, most of the laws that existed were regulated through domestic legislation and members made accountable for their acts depending on the provisions relating to such laws that existed within.
For many states, the laws existed, but the implementation, structure and prosecution was left in a vacuum. Very few service personnel were ever charged and punished for breaches of the law of war, and those that were charged concerned grave breaches which went far beyond the scope of the military operations.
Coupled with this is also the problem where political interferences which exist and at times fetter prosecution has also resulted in service personnel not charged or punished for crimes.
For the international community, the establishment of the International Criminal Court has brought about many changes in the way the laws of war were advocated, practiced and enforced amongst states.
There is a sudden surge amongst states to take the International Criminal Court seriously and many have been forced into implementing domestic legislation to ensure that their nationals are not caught in the web of the International Criminal Court. With the new evolving laws and structure; states, statesmen, nationals and service members are all held accountable in an armed conflict.
Their acts and conduct are now scrutinized, ensuring accountability for their actions. This issue is important because it involves servicepersons, their conduct in military operations and accountability for their actions in such operations.
No longer are officers and soldiers restricted to the scrutiny of their own legal system; accountability now extends to a broader international level. The standards required of states, leaders and members of the armed forces are no longer restricted to domestic standards, rather to those carried by the international community.
2.0. Obedience to superior orders and its defence.
In armed conflicts, too often there are gross violations of international humanitarian law, and atrocities are committed against civilians and members of the armed forces alike. On a large scale, ethnic cleansing, religious prosecution, and displacement of large communities of people have taken place.
Statistics show that some 76 million people lost their lives as a result of armed conflicts from 1945 up to 1987 alone. To illustrate some of these losses, for example, as early as 1900 to 1923, the Turkish, in the first known ethnic cleansing, exterminated some 2 million Armenians, Greeks, Nestorians and Christians. Similarly, millions of Germans were killed by the Polish during the German retreat in October of 1944.
Also, in East Pakistan (now Bangladesh), the Pakistani regime under General Agha Mohammed Yahya Khan in 1971 killed 1.5 million Bangali people, creating 10 million refugees who fled to India. The Japanese were alleged to have murdered some 3 million to 10 million prisoners of war from 1937 to the end of Second World War. During the Second World War, some 6 million Jews were exterminated by the Third Reich;12 and during 1975 and 1979, approximately 1.7 million Cambodians were killed by Pol Pot and his Khmer Rouge soldiers. In more recent years, thousands of people have been killed in Bosnia, Rwanda, Former Yugoslavia and many other countries: even to date, there are on going efforts to identify and correct records for all the deaths that may have occurred.
One of the most distinctive features about this unimaginable loss of lives is that most deaths have occurred as a result of atrocities committed under the disguise of obedience to superior orders. People have been massacred by military commanders and soldiers, who pleaded later that their act was in compliance with a superior order.
As Solis writes, “I was just following orders... has been used so often, in so many circumstances, that today, it is its own parody.” This phrase not only gives rise to concerns legally, morally and socially as to conduct whilst engaged in armed conflicts; more importantly, it questions whether such conduct is always legitimate.
There are serious legal questions that arise from soldier obedience to superior orders. Does a soldier’s obedience to superior orders afford a legitimate defence to any criminal liability? Is this defence legitimate for all orders issued by military commanders? Are there standards which exist that would enable a soldier to differentiate a legal from an illicit order?
Undoubtedly, the military is a profession where obedience has been classed as a “cardinal virtue” 18 and rightly, is seen as the backbone of any armed forces.19 This virtue is so pronounced that a good soldier is characterised by his obedience and discipline.
As Larocca writes: “The American idea of a good soldier, created by the military and fully absorbed by most civilians, is a wholly obedient soldier.” These thoughts hold true for all military commanders and the armed forces. They would prefer to have soldiers who simply follow directives and do all they can to defeat the enemy.
They are not concerned about the morality of the conflict, simply seeing themselves as soldiers under a directive to accomplish a mission under any circumstances. Nothing can be better for a commander than to see soldiers who are not concerned with ethics and moral issues, or the legality of the orders, but who perform and accomplish task as directed.
The more conflicts that are experienced, the more occasions where the defence of obedience to superior orders has been pleaded by soldiers in defence of criminal acts and atrocities.
Many scholars have argued that to a certain extent, there exists a legal defence to criminal acts or atrocities when committed in obedience to a superior. Soldiers have also believed that they are immune from criminal responsibility when they act in obedience to orders from a higher authority. To date, however, no soldier or person charged for atrocities or criminal offences relating to obedience to superior orders has been successful in using obedience to superior orders as the only defence; rather more success has been gained by advancing a defence of duress.
Despite soldiers finding no relief in arguing the obedience to superior orders as a defence, why is it that so many service personnel and civilians continue to plead and argue such a defence? Is there really a defence to criminal acts and atrocities arising from obedience to superior orders?
If there is such a defence, under what circumstances can it be invoked? Is it conditional and subject to any existing standards? Does this defence (if in existence), have similar applications both in national and international settings? Soldiers are a fighting machine, carrying on their shoulders the responsibility of defending not only their country, but in modern conflict, the international community at large. Despite the adversities, soldiers try to function and achieve the desired goals of their military commanders. We must not only identify what the current positions are regarding the defence to superior orders but also, importantly, soldiers must be made aware of the limitations that exist, especially concerning legal and illegal orders.
3.0. Scope and Outline.
Interest in researching the defence of superior orders started from my early days in the military, especially after being confronted with situations where the issue relating to obedience to superior orders and its defence became a critical factor in the performance of military duties.
I witnessed the confusion faced by military commanders and soldiers first hand in trying to differentiate and resolve impasses relating to orders, especially when there were grave concerns about the illegality of the same.
The desire to research in this area was finalised after I assumed the role of lead prosecutor in the military in Fiji. Preparing to prosecute some one hundred fifty one officers and soldiers charged for mutiny, incitement to mutiny and treason related charges arising from the coup d’etat in Fiji in 2000; the mutiny at the Sukainivalu Barracks, Labasa; and the mutiny at the Queen Elizabeth Barracks, Nabua; it was of great concern to see these service personnel arguing obedience to superior orders as a defence. What was of greater concern was that the majority of these service persons were from the elite forces unit of the Republic of Fiji Military Forces, a force not only highly trained but educated in all aspects of military professionalism.
Thinking more about the cases and the defence argued by the officers and soldiers, it occurred to me that there was much confusion when addressing the question about obedience to superior orders and its legalities. If this position existed in one particular unit, then there was a possibility of it being present amongst other units.
This was proven correct after questioning other soldiers about orders, especially relating to identifying and following illegal orders. As armies prepare to participate in more and more international peacekeeping, peace enforcement and observer missions, it is appropriate to research this topic which has become somewhat a major focus of many armed forces around the world.
The Fijian armed forces, and others, are not immune from experiences and events involving their nationals and members of the armed forces who have been cited for criminal acts and atrocities.
This concern is multiplied when the acts were done in compliance with illegal orders. This paper will draw out the current positions relating to the law, common law and their application, and at the least provide military commanders and soldiers some answers and guidelines when confronted with the issue of obedience to superior orders, especially when there is concern about their legality.
This thesis is purposely confined to discussing issues relating to the defence of superior orders. It does not address, except in passing, related issues such as command responsibility, rules of engagement and duress. Issues relating to the defence of superior orders will be analysed not only at command level but more importantly from a soldier’s perspective.
There are quite a number of texts which have been written on this topic, but not much has been dedicated purely to and based on an operational perspective as to the defence of superior orders.
Most writing on this subject has an academic approach, with little or no emphasis placed on addressing the current uncertainty that exists relating to this defence, especially now in identifying what the positions are for soldiers as to the defence of superior orders. This thesis makes reference to a lot of military incidents where the defence of superior orders was in issue.
No particular case has been highlighted to ridicule or bring disrepute to any individual or armed forces; on the contrary, these examples serve as a benchmark for armed forces and help soldiers in avoiding the same mistakes in the future.
This thesis also uses many examples from varying nations, all in an attempt to have a broader understanding of the subject. Unfortunately, not all countries have had equal mention, for the simple reason that some nations have participated in more conflicts and had more experience in incidents relating to defence of superior orders.
The primary aim of this thesis is to focus on military culture and its association with war crimes and the defence of superior orders, identifying the standards and application which will enable soldiers to distinguish and make determinations relating to legal and illegal orders. Such an insight will be better understood with reference to national and international developments relating to the defence of superior orders.
Part two to follow: Aziz's conclusion citing John Steinbeck. "War did not make a killer of me, although for a time I killed men."
Part two to follow: Aziz's conclusion citing John Steinbeck. "War did not make a killer of me, although for a time I killed men."