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The standard of ‘reasonable soldier’, and not the standard of ‘reasonable person’ informed from a civilian perspective, should be the legal standard applied to soldiers that obey unlawful orders. The military and combat environments mean that the soldier is subjected to a multitude of experiences, such as military training and war, which the reasonable person does not experience. While the reasonable person is exposed to the effects of authority figures, the group, the broader culture and stress, these environmental factors can be substantially intensified for the soldier.

Military training breaks down the civilian and builds a soldier. It can condition obedience, heighten their aggression and teach them situational awareness and to regard their environment as dangerous. A soldier’s body and mind can be trained to fight, their resilience cultivated, group unity fostered and their identities embedded in the military. Combat can be a dangerous, complex, dynamic and often brutal environment. These characteristics are amplified significantly in a live contact with the enemy. Live contacts with the enemy can also be loud, chaotic, distracting and perceptually corrupt. This can affect the soldier’s ability to accurately assess the situation and to cognitively process relevant information, and it can negatively affect the soldier’s moral functioning. War generates an exceptionally high level of violence and suffering. Playing witness to and participating in this level of violence and suffering can lead to brutalisation, desensitisation and moral drift. When this is combined with moral and physical distance from the enemy and the dehumanisation and demonisation of the enemy, the perceptions, standards and morals of the soldier can become considerably altered. During combat, soldiers can also experience stress, anxiety and strong feelings of fear, confusion, anger and frustration, and the level of stress and anxiety is likely to far exceed the level of stress and anxiety experienced by the reasonable person in civilian society. Physiological, biological and psychological responses to high levels of stress can affect the soldier’s decision-making ability. It can also alter their perceptions, cognitive function, mood and attitude. This can lead to a soldier freezing, overreacting or behaving irrationally. Recognising the physiological, biological and psychological effects of stress can often lend insights into behaviour and decisions that would otherwise appear irrational.

Military training can be designed to build resilience and to offset the effects of war and stress on the soldier. This means that a soldier is likely to be able to withstand the stresses of war to a much greater degree than a civilian. However, the stress of combat may exceed the soldier’s resilience training in some circumstances. The average civilian also does not generally encounter the same type or degree of stress as a soldier in combat and correspondingly would not automatically fully appreciate or understand the stress of combat. Importantly, the effects of the military and combat environments operate in a wider context of common environmental or social factors that influence all our decisions, standards and behaviour. Our cultural environment affects our values, perceptions and standards, and the separation of the military from wider society creates a separate culture and a corresponding divergence between the soldier’s and the civilian’s values, perceptions and standards. Authority figures and group pressure influence a person’s obedience and conformity. These environmental factors help shape the person’s ideals and standards and influence one’s behaviour. They can even cause a person to agree with a clearly incorrect conclusion and to obey an order that they know is wrong and goes against their morals. While the influence of the authority figure and the group affect everyone, the effects can be significantly heightened for soldiers in military organisations or in combat. This means that they are even more likely to obey, conform and adopt the ideals and standards of the military.

Each of these environmental factors—military training, combat, military culture, authority figures and the group—independently affect the soldier’s perceptions, standards and behaviour. When these environmental factors combine, then the effects are substantially compounded. The result is a divergence between the reasonable soldier’s perceptions, standards and behaviour and the reasonable civilian’s perceptions, standards and behaviour. The central argument of this book is that the courts need to recognise this divergence and adopt the standard of a ‘reasonable soldier’ and not the standard of a ‘reasonable person’ informed from a civilian perspective. That is, ambiguities and inconsistencies that exist in international and national law on what standard should be implemented and what circumstances should be considered when determining the legal liability of the obedient soldier should be settled by adopting a ‘reasonable soldier under the circumstances’ standard.

This book argues for the ‘reasonable soldier under the circumstances’ standard. It is not an argument to lower the legal liability of the soldier or that the military and combat environments should excuse the soldier of guilt . Instead, it argues that to be a just and appropriate standard that represents the realities of the soldier’s experience, the legal standard needs to be reflective of the military and combat environments. The legal standard should be a tailored standard that represents the ‘reasonable soldier’ and not the ‘reasonable civilian’. Some environmental factors, such as the soldier’s resilience training, should raise the soldier’s standard above a civilian’s while other factors, such as the intensified influence of the group, should lower the standard below a civilian’s standard. The legal standard should be adapted to match the specific and unique environments of the military, combat and the soldier’s experiences and not the generic environment of society. Moreover, adopting a ‘reasonable soldier under the circumstances’ standard has the potential to justify raising the legal standard that soldiers are currently held accountable to under the Rome Statute. When the environmental factors, the soldier’s experiences and all relevant circumstances are incorporated into the legal standard, it would be just to hold the soldier accountable to the higher standard of a ‘reasonable soldier under the circumstances would have known that the order was unlawful ’ as opposed to a ‘reasonable soldier would have known that the order was manifestly unlawful ’. This would hold soldiers accountable to a higher standard while setting a more practical and realistic standard that incorporates the soldiers’ experiences and environment.

Including the effects of the military and combat environments in the legal standard imposed also means that the law will be more closely aligned to the environment within which it will operate. This will enhance the ability of the law to guide the actions of soldiers. On the other hand, to ignore these environmental factors and to implement a law, informed from a predominately civilian perspective, into the unique and exceptional circumstances of war is likely to create a divergence between the law and actual practice. That is, a law that does not reflect its environment is at greater risk of not being adhered to in practice. This is especially so if soldiers feel the law not only does not reflect their experiences but is generally implemented to their detriment. In such circumstances, there is a notable possibility of generating lip-service to the law rather than genuine respect. For the courts to incorporate these environmental factors into the legal standard to a greater degree, the courts need to have a more comprehensive understanding of the soldiers’ experiences and the military and combat environments. In turn, we need more research, especially more empirical research with those who have first-hand experience of war. In order to provide the courts with the most comprehensive and complete understanding, this research also should be interdisciplinary and include a spectrum of disciplines such as criminology, law, sociology, psychology, behavioural science and anthropology.

Recognising the effects of the military and combat environments serves the important function of illustrating the limits of the law. The power of legitimate and respected authority figures can combine with the admiration and interdependence within the group, group pressures, group absolution, diffusion of responsibility, the ideals of the military and the brutality of repeated exposure to the sights and sounds of combat to make it very difficult to disobey orders to commit crimes, to prevent others from committing serious crimes and facilitate the commission of crimes. These environmental factors can have greater influence over the soldier’s decision to obey illegal orders to commit serious crimes than the law does itself. Acknowledging this limitation of the law offers the opportunity for change. While the law plays a central role in governing conduct in war and punishing violations of the laws of war, the imposition of high legal standards and the threat of punishment are not enough to prevent serious breaches of the law. The impact of the combat and military environments, group loyalties and pressures, the influence and attitude of military leaders and culture and techniques such as ‘othering’ and dehumanising the enemy in order to enable killing need to be addressed.

This is not to say that all of these environmental factors should be eliminated. The role of these environmental factors is illustrated by the fact that loyalty and respect for leaders and the group has been crucial to soldiers being willing to fight and to military success and has even lead to heroic and honourable acts. A certain level of desensitisation is also often necessary to overcome the innate human resistance to killing. These environmental factors can serve important military purposes. They can also be a force for upholding the law as well as breaching the law. Any changes to military culture, military leadership roles, the soldier’s group and military training methods need to be approached with sensitivity and caution and with open collaboration with the military. This would be a difficult but important step. The central point is that instead of relying on high legal standards and the threat of punishment alone as methods for deterring crimes, we also need to look at the social production of criminality. As well as the law, we should address the environmental factors that facilitate the commission of crimes and develop policies and strategies to balance humanity against military success. Merely enacting laws prohibiting such behaviour is not enough. In addition, examining military and combat environments brings to the fore the potential role and responsibility of the state in the social production of crime in war. The state should not be able to distance itself from state-imposed training techniques, state policies or actions and behaviour that the state tacitly approves. The state’s responsibility is especially relevant where it has implemented policies or propaganda that promote the ‘othering’ and/or dehumanisation of a group.

A predominantly civilian-informed ‘reasonable person’ standard fails to recognise the military and combat environments’ substantial effects on the perceptions, standards and behaviour of the soldier. This is unjust and it creates a division between the law as on the books and the lived experience of the soldier on the ground. The appropriate standard is a ‘reasonable soldier’ and all relevant surrounding circumstances that influenced the soldier’s decision to obey the illegal order should be considered when determining the liability of the soldier. This requires us to understand the military and combat environments and the soldier’s experiences. This understanding is crucial in not only implementing a just legal standard but also developing and implementing legal, social and political policies to prevent or curtail the social production of crime in war.