January , 2018
Commander is not bound to obey the Illegal order of his Superior
23:51 pm

Dr. P K Agrawal

U.S. Air Force General John Hyten on April 4, 2017 said in Washington that he would refuse to carry out an illegal nuclear strike order saying “Mr. President, that’s illegal”. It tempered down fears about a reckless foray of US into war. On being asked as to what would be legal. He said, “We’ll come up (with) options.”....Although the President has ultimate authority to launch nuclear strike, he is tempered by layers of review and constraints by legal barriers depending on whether the strike is preemptive or responsive. This is in response to a threat by the autocrat and whimsical young dictator of North Korea Kim Jong-un. Both are bent upon destroying one another but repercussion of their wild actions will engulf the world. Therefore a debate has been going on around the world about whether the superior can give whatever order he likes and whether it is implementable.

The story dates back after the Second World War when in October, 1946, twelve high ranking Nazi commanders and minister were sentenced to death by a landmark judgment of the International War Crimes Tribunal at Nuremberg. Among those condemned to death by hanging were Joachim Von Ribbentrop, Nazi Minister of foreign affairs. The Tribunal held that a subordinate is bound to obey a lawful order of a superior only. 'Respondeat Superior' i.e. 'let the superior be responsible’; a legal principle is not admissible defence in law. Law has emerged from the 'dharma' and its end is justice. Therefore, if a person decides to do an unlawful act, he is answerable as if he has done so by his own hand with his volition.

The Nuremberg Charter and the Universal Declaration of Human Rights clearly lay down that it is illegal to follow an order to commit a war crime in utter violation of human rights and accordingly the person by committing war crimes will be held responsible for his actions irrespective of the fact that he was asked by his superior officer to do those highhandedness or illegal acts. The similar view was expressed at the Tokyo Trial for the war crimes committed mostly by the Japanese against the Chinese after World War II.

A similar situation arose in India in the year 1975-77 when excesses were committed during emergency in India under Indira Gandhi. The Shah Commission after hearing the perpetrators of excesses indicted them and suggested to take stringent actions against those bureaucrats and ministers who committed injustice and excesses beyond the call of their duties. Many officers were punished and their service careers were terminated. The finding of the Shah Commission has found an echo in many of the subsequent judgments of the Supreme Court, the latest being in the cases of allotment of coal blocks out of turn (2014), 9SCC614)) and allotment of spectrum without following just and reasonable principles popularly known as the 2G Case (2012)3SCC1). Thus Rule of Law is very sacrosanct and should be obeyed by all authorities whether in the army or in the bureaucracy. Both have to abide by well established principles of law and justice.

The above interesting episode surfaced when the newly elected President of America Donald Trump threatened to destroy North Korea as its President Kim Jong-un challenged the superiority of the USA. Both nations are equipped with nuclear arsenals which are much more powerful than the bombs dropped on Hiroshima and Nagasaki after the Second World War. However, there is a silver lining when the Chief of Air Force in charge of nuclear weaponry made a statement on the foregoing lines before the Senate Committee of USA. Democrats feared that Trump’s haphazard decision-making could have devastating consequences. Democrats were not satisfied with Donald Trump’s propensity for antagonizing US’s foes like North Korea. Their dictator says that he has a powerful hydrogen bomb with ballistic missile which can destroy many US cities. But USA, being the leader of the world should not commit the same mistake which they made in Iraq on the ground that Saddam Hussein, the dictator of Iraq had plans to use chemical weapons against their interests. It was proved as a false threat by Saddam Hussein to keep his men in good humour and loyal to him. Former Commander of US Strategic Command   Gen. C. Robert Kehler says that ‘this is a system controlled by human beings. Nothing happens automatically.’ But he noted that civilians would be able to vet those commands. Thus system of checks and balances is the ultimate review of any decision.  It does not mean that a constable or an army man can disobey or question the order or command of his superior because he has no power of decision –making. He is entrusted only to carry out the orders of his superior officer.

—  Dr. P. K. Agrawal is a renowned columnist. He has published about twenty five books in English. At present Dr. Agrawal is the Managing Partner of a New Delhi based firm ‘Vas Global’.

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