Justice and the faithless: The demand for disobedience in international criminal law

Introduction

How is disobedience required under international criminal law? How do war crimes trials demand and seek to cultivate disobedience as a response to atrocity? For scholars of international criminal law, a central concern has been the question of how international legal institutions secure obedience or compliance from domestic authorities. It is widely recognized that international law may require disobedience as a response to domestic authorities that order or legalize war crimes. However, scholars, activists, and courts tend to conceptualize this demand for disobedience as a kind of byproduct of obedience, suggesting that the same strategies that are thought to secure compliance with international law should compel people to disobey abusive domestic authorities or render disobedience unnecessary.

A striking rejoinder to this logic may be located in well-known works by Primo Levi and Stanley Milgram. Levi urged readers to pay more attention to the problem of complicity — to the “subordinates who sign everything because a signature costs little, those who shake their heads but acquiesce, those who say ‘If I did not do it, someone worse than I would’” (Levi, 1988: 68). The Milgram experiments are still routinely cited as a warning regarding the dark side of obedience and a reminder that even those who are deeply reluctant to carry out orders may feel incapable of saying “no.” Disobedience, reflected Milgram (1974: 164), can generate profound feelings of doubt, internal tension, and the “gnawing sense that one has been faithless.” The capacity to disobey abusive authorities, these authors suggest, is a vital response to organized atrocity and one that does not follow logically from a stance of obedience, but seems to require an entirely different set of strengths.

Taking these insights as a point of departure, this article examines international law’s demand for disobedience as a response to war crimes and crimes against humanity. It argues that disobedience and resistance are vital to strengthening the role of international law as a basis for confronting the authorization of abuses under domestic laws and institutions, as well as the rationalization of abuse through manipulative interpretations of international legal standards. However, the capacity to disobey abusive authorities does not follow logically or inevitably from a commitment to obey the laws that criminalize their abuses. Prominent approaches to strengthening international criminal law through measures aimed at securing compliance downplay the importance of resistance as a response to organized atrocity and denigrate disobedience as a response to abusive authority. The role of international legal institutions as a basis for accountability and as interventions in the politics of memory might be strengthened, I suggest, by developing the pedagogical role of exemplary disobedience.

This analysis builds on the work of scholars that have been concerned with theorizing accountability for bystanders, beneficiaries, “complex political perpetrators,” and others in what Levi referred to as “the gray zone” (Baines, 2011; Crawford, 2013; Drumbl, 2007; Esquith, 2010; Meister, 2011). It also engages with scholarly critiques of legalism as a response to political violence (Asmal et al., 1997; Drumbl, 2007; Howse and Teitel, 2010; Koskenniemi, 2011; McEvoy, 2007; Shklar, 1964: 1–2). Strengthening the role of legal institutions as a resource for cultivating the exercise of principled disobedience, I suggest, might offer an important avenue for exposing and addressing the limitations of legalism. In developing this argument, I also build on the work of scholars that have analyzed the pedagogical role of war crimes trials and their role as interventions in public history and memory (Bilsky, 2001; Crawford, 2013; Douglas, 2001, 2016; Mihai, 2016; Osiel, 1997; Rothberg, 2009; Savelsberg and King, 2011; Wilson, 2011).

The first section locates a common set of concerns raised by scholars that have analyzed “crimes of obedience” as a feature of systematic atrocity (Arendt, 1963; Browning, 1992; Fujii, 2009; Kelman and Hamilton, 1989; Milgram, 1974; Straus, 2006; Zimbardo, 2007) and considers their relevance for debates on war crimes trials and international criminal law. These works challenge core assumptions associated with deterrence, socialization, and acculturation theories by alerting readers to the ways in which transactional bargaining, habitual obedience, and conformity can become powerful barriers to resistance, thereby empowering abusive authorities. The following section examines the demand for disobedience that is articulated in international criminal law and in war crimes trials for lower-level soldiers and civilian functionaries. International conventions and war crimes tribunals now demand disobedience as a response to certain kinds of abusive orders, yet they conceptualize disobedience as a kind of byproduct of obedience. This logic, I suggest, reinforces the stigmatization of disobedience and resistance, obfuscates the systemic factors that undermine the capacity for disobedience, and shifts attention away from institutional and political forms of responsibility. The third section proposes that international law’s demand for disobedience might be better developed through the pedagogical role of legal institutions, with critical attention to exemplary accounts of disobedience that influence the legal reasoning of war crimes trials.

The dark sides of obedience

Some scholars emphasize the regulative potential of international law, while others underscore the productive, legitimating, or socializing role of international norms. Most, however, evaluate the role of international criminal law in relation to the goal of cultivating obedience or compliance. Here, I consider a common set of assumptions animating three prominent theoretical explanations for compliance: deterrence, socialization, and acculturation. These theories offer distinctive explanations for the influence of international criminal justice, yet share an emphasis on its role in altering the behavior of elites and a common view that the general population can and should be compelled to follow the lead of authorities. I locate a challenge to this logic in the work of an eclectic array of scholars that share a concern with investigating the dark sides of obedience. Instead of assuming a passive population, scholars such as Arendt, Milgram, Kelman, Zimbardo, Fujii, and Browning investigate why seemingly ordinary people come to participate in extraordinary brutalities. Although these scholars offer unique and varied explanations for participation in systematic atrocity, they share the view that confronting atrocity must entail an effort to alter the behavior of would-be followers — not by exploiting and redirecting, but rather by challenging, their tendencies to deference, compromise, and conformity.

Deterrence theory is predicated on the claim that a given policy succeeds by altering the cost–benefit calculations associated with a given action. If the decision to participate in a crime is influenced by cost–benefit calculations, in this view, crime can be prevented when anticipated costs of crime are unacceptably high. Critics contend that it is difficult to sustain the claim that would-be war criminals will expect to pay a price for their actions in light of the unpredictabilities and asymmetries of war crimes prosecutions (Mendeloff, 2012; Wippman, 1999 ). Even international tribunals remain dependent upon the support and cooperation of reluctant state leaders, governments, and militaries to secure defendants and evidence (Peskin, 2008; Subotic, 2009). In response to such concerns, some scholars have focused on the symbolic role of war crimes trials as a response to cultures of impunity (Akhavan, 2001). Others propose a modified approach to the cost–benefit logic of deterrence. Sikkink, for example, suggests that war crimes tribunals may deter abuse by raising the potential, if not predictable, costs of war crimes (Kim and Sikkink, 2010; Sikkink, 2011).

Socialization theories posit that war crimes trials secure compliance through a process of persuasion. Sikkink’s socialization theory proposes that war crimes trials operate to instill a “logic of appropriateness” that cultivates conformity with international norms through the public shaming and stigmatization of those that violate them (Sikkink, 2011: 236). Stigmatization may be another method of altering the cost–benefit calculations associated with abuse but can play an even more powerful role, argues Sikkink, as a basis for persuading people to accept and internalize international norms. This internalization of norms, such that they acquire a “taken for granted quality” and no longer appear as the subject of public debate, deepens the influence of international norms by making compliance habitual (Sikkink, 2011: 11–12). Socialization theory emphasizes the initial role of persuasion through framing, narrative, information, and dramatization, while suggesting that the ultimate success of such persuasion is manifested in unconscious and habitual accommodation to norms (Brysk, 2013; Finnemore and Sikkink, 1998; Koh, 1997; Risse et al., 2013). Participants in the Milgram experiments who applied the electric shocks were not motivated by cost–benefit calculations, according to Sikkink (2011; 172), but by a “logic of appropriateness.” War crimes trials might influence change, she suggests, by offering a competing “logic of appropriateness.”

Acculturation theory, as outlined by Goodman and Jinks (2013: 22), contends that compliance with international norms may be secured even without successful persuasion through the mobilization of unconscious or habitual tendencies that reinforce social conformity, such as mimicry, status maximization, and the desire to “minimize cognitive discomfort.” Outlined thus, acculturation theory and socialization theory resonate with the core argument of Charles Duhigg’s (2012) bestseller, The Power of Habit, which contends that movements for radical social change are generated by “social habits” and “social peer pressure” that encourage people to conform to group expectations. “If you ignore the social obligations of your neighborhood, if you shrug off the expected patterns of your community,” writes Duhigg (2012: 225), “you risk losing your social standing.” From this starting point, Duhigg posits that the best strategy for success in launching radical challenges to racial injustice and inequality is one that we might adopt in our efforts to floss regularly: make it a habit. Habitual conformity and peer pressure, suggest such authors, are powerful forces, and ones that can be usefully mobilized as responses to abuse and injustice.

Deterrence, socialization, and acculturation theories offer different explanations for the influence of international law, yet share the basic premise that the critical force of international law depends on the success of efforts to secure compliance with international legal standards. These theories share a common focus on the agency of leaders and organizers of abuse, while conceptualizing followers as essentially lacking in agency. They also share a common emphasis on the power of shaming and stigmatization as a basis for securing compliance. Deterrence theorists have cited the stigmatization associated with prosecution as a potential cost that may weaken leaders by damaging their reputations. Socialization theorists identify shaming as a strategy for “moral consciousness raising” that constructs categories of “us” and “them” in order to persuade people that their behavior is “inconsistent with an identity to which they aspire” (Risse and Sikkink, 1999: 11, 15).

Proponents of these theories generally recognize that such strategies are limited and potentially double-edged. Deterrence strategies incentivize calculating behavior, while forgoing efforts to inspire moral transformation. Acculturation theorists recognize that abusive authorities often succeed in manipulating social conformity (Goodman and Jinks, 2013: 28). Socialization theory might appear somewhat more ambitious in proposing that international legal institutions might socialize people in ways that alter how they understand themselves, their communities, and their moral commitments. However, socialization theory is less ambitious when it comes to confronting the potential dangers of habitual obedience and passivity.

These distinctive theories share the premise that the best way to mitigate the dangers of conformity, habitual obedience, or calculating self-interested behavior is to harness and exploit these tendencies for better ends. An important challenge to this logic can be found in the work of prominent scholars that have analyzed “crimes of obedience.” Conformity, calculating compromises, habitual obedience, and passivity leave people vulnerable to various forms of manipulation and prevent people from resisting authorized abuse. Instead of pursuing strategies for capitalizing on or redirecting such tendencies, these authors suggest, we ought to investigate what it would mean to cultivate the capacity to disobey and resist abusive authorities.

In her reflections on the Eichmann Trial, for example, Arendt articulated a sharply worded challenge to the logic animating socialization theory. The trouble with habitual obedience, she wrote, is that it teaches people “to hold fast to whatever the prescribed rules of conduct may be at a given time in society” (Arendt, 1978: 177). By internalizing rules or codes of conduct, she argued, people relinquish their capacity for critical thinking and judgment in ways that leave them vulnerable to manipulation. “If somebody should show up, who, for whatever reasons and purposes, wishes to abolish the old ‘values’ or virtues,” as she puts it, “he will find it easy enough provided he offers a new code” (Arendt, 1978: 177). The more people become accustomed to depending on one moral code for guidance, she added, the “more eager will they be to assimilate themselves to a new one” (Arendt, 1978: 177). Arendt was not alone in her call for efforts to challenge, rather than redirect, habitual obedience. Quoting Harold Laski, Milgram (1974: 189) concludes his seminal work, Obedience to Authority, with the message that “the condition of freedom in any state is always a widespread and consistent skepticism of the canons upon which power consists.” Kelman and Hamilton (1989: 326) conclude their widely cited volume, Crimes of Obedience, with a chapter entitled “On breaking the habit of unquestioning obedience,” citing Paolo Freire’s Pedagogy of the Oppressed (2017) as a model for establishing education for “critical consciousness.”

By portraying Eichmann as monstrous, Arendt contends, the prosecution implicitly endorsed a central premise of Eichmann’s defense — that if he had been a passive, obedient follower with benign intentions, this would have been a valid excuse for participating in atrocity. She proposes an alternative verdict that would offer an emphatic public refutation of this logic:

Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder … there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. (Arendt, 1963: 279)

Questions regarding Eichmann’s actual identity and his genuine intentions, Arendt (1963: 279) suggests, too easily distract us from recognizing that “in politics obedience and support are the same.” When we assume that evil intentions are what are most shameful in complicity, we allow those who feel convinced of their own good intentions to avoid feeling shame or responsibility for having participated in organized atrocity.

To cultivate the capacity for disobedience and resistance as responses to abusive authority, then, requires strategies that challenge, rather than redirect, conformist and transactional tendencies, as well as habitual obedience. Instead of emphasizing the absurdity of Eichmann’s claim that he was little more than a “small cog” in the machinery of atrocity, Arendt suggests, it is important to challenge the very idea that anyone is bound to accept the role of a “small cog” in a bureaucratic system. “You also said that your role in the Final Solution was an accident and that almost anybody could have taken your place,” she writes in her imagined verdict, but “What you meant to say was that where all, or most all, are guilty, nobody is”; this is “indeed a quite common conclusion,” she adds, “but one we are not willing to grant you” (Arendt, 1963: 277; see also Owens, 2012). Arendt contests the “small cog” theory by insisting on the importance of small acts of refusal and disobedience, as well as those that might appear at the time to be futile (Arendt, 1963: 212; Robin, 2015). Arendt also warns that transactional, calculating responses to organized atrocity can legitimate abusive regimes and draw people into complicity in ways that are so gradual that it is difficult to perceive when the line has been crossed (Robin, 2015).

Conformity is driven by the desire to imitate the behavior of peers, Milgram (1974: 113–114) argued, while the tendency to obey authority is animated by notions of hierarchy and perceptions of duty. For Milgram, obedience and conformity are mutually reinforcing tendencies that drive a potentially dangerous abdication of judgment and agency. Browning’s (1992) Ordinary Men echoes this message, citing the pressure to conform — “the strong urge not to separate themselves from the group” — as a major factor behind the participation of ordinary middle-aged men in the mass killings of Jews in Poland. Fujii (2009: 156) contends that social ties, rather than ethnic affiliation, were the driving force behind the killings. Those who joined in the killings might have initially felt powerless in the face of the coercion and threats that they encountered, she writes, but once they had joined in the violence, the group dynamic took on a new logic, providing a sense of meaning and security in the face of radical uncertainty. A number of scholars have examined militarized masculinity as a major dimension of compliance with orders to commit crimes against humanity (Baines, 2011; Carpenter, 2006; Kinsella, 2011; Lifton, 1973; Ní Aoláin et al., 2011; Sjoberg, 2013; Theidon, 2013).

Those who resisted pressure to participate in the Rwandan genocide had maintained a sense of efficacy in their own agency, writes Fujii (2009), while the “joiners” lacked this sense of efficacy and tended to locate agency in “external forces beyond their control.” Cultivating a critical response to abusive authority, according to Kelman and Hamilton (1989: 323), requires efforts to counteract the reality or perception of powerlessness among a citizenry. At the same time, possibilities for disobedience and resistance are shaped by social and institutional contexts. Milgram found that when he included “defiant peers” in the experiment, an overwhelming majority defied orders to administer shocks. While some might interpret this as the redirection of conformity, Milgram did not see it this way. Rather, he suggested that the example of the “defiant peers” served as a catalyst that enabled subjects to begin to think for themselves, while simultaneously allowing them to share the burden of disrupting an established order (Milgram, 1974: 120). Kelman and Hamilton (1989: 327) develop this point by suggesting that a sense of membership and social connection may be critical to the political expression of disobedience and “reinforces the belief that a challenge to authority is feasible.” While social pressures to conform, such as fear of stigmatization, undermine a sense of agency, these authors suggest, social support is vital to the exercise of agency.

Scholars that investigate the dark sides of obedience do not generally challenge the empirical claim that strategies associated with deterrence, socialization, and acculturation theories might succeed in producing obedience to international law. Instead, this literature suggests that such strategies are double-edged in ways that may undermine, rather than strengthen, the critical role of international criminal law as a response to abusive authority. Habitual obedience, whether to authorities or to moral and legal orders, can leave people vulnerable to those who are effective at manipulating laws to legitimate and rationalize abuse. When norms are internalized to a degree that they are no longer questioned, it is difficult to critically assess the way in which such norms are invoked, interpreted, and applied by authorities. Deterrence strategies may prevent abuses in some contexts. However, those who are motivated primarily by cost–benefit calculations are also likely to be deterred from taking the costly risks required to resist abusive authorities.

A number of scholars, writing from a range of disciplinary perspectives, have proposed a common strategy for addressing the dark sides of obedience, which is to pay more attention to the pedagogical potential of exemplary disobedience. One reason that exemplary disobedience may be important has to do with the role of exemplars as a basis for guidance in the exercise of practical judgment and agency. Arendt (1982: 77; see also Ferrara, 2008) argues that exemplars facilitate the exercise of practical judgment in contexts characterized by the breakdown or inadequacy of prevailing standards and norms as a basis for illuminating the general with reference to the particular. She invokes the example of Socrates to demonstrate a practice of critical thinking that does not depend on deference to authoritative moral norms or codes (Arendt, 1971: 434). Arendt (1963) also suggests that Anton Schmidt’s resistance to the Nazi regime exemplifies the possibility of agency in a context characterized by conformity and passivity. Milgram interpreted the outcome of his “defiant peer” study as evidence that individual exemplars can have a potentially powerful political impact. In all cases of systematic torture and abuse, there were a few who stood firm in resisting. “The time has come to expand their numbers,” writes Zimbardo, “by thinking about how they were able to resist (2007: 446).

A second reason that exemplary accounts of disobedience may be important has to do with their role in de-stigmatizing resistance. Such accounts may be recovered as a strategy for contesting the assumption that disobedience is always shameful, as well as the assumption that there is nothing shameful about obedience to authorities and institutions that authorize abuses (Asmal et al., 1997). Some Americans may remember the trials of US soldiers Charles Graner and Lynndie England for their role in the torture of detainees at Abu Ghraib prison. Very few, however, are likely to be familiar with the story of Joe Darby, the sergeant who revealed the abuses at Abu Ghraib. Darby was forced to live under armed protection for several months after he spoke out about the abuses that he had witnessed, and his role in the affair is largely forgotten (Luban, 2014a). The fact that Joe Darby was never really recognized for his actions, writes David Luban (2014a), represents a missed opportunity for “positive accountability.” Jane Mayer (2013) similarly observes that it would be instructive for Americans to learn more about the widespread opposition to torture within the Central Intelligence Agency (CIA).

Accounts of exemplary disobedience tend to be politically controversial, however. To invoke such accounts is likely to inspire backlash, not only from those who continue to deny or rationalize abuses, but also from those who are unsettled by challenges to authority in general. When public, heroic, individual acts of disobedience are held up as “exemplary,” private, everyday, anonymous, or morally ambiguous forms of resistance are more likely to be forgotten, denigrated, or seen as unimportant. This also has gendered implications, especially where heroic resistance is identified with masculinity and public sacrifice. An emphasis on exemplary accounts of disobedience may also obfuscate the systemic factors and conditions that contribute to the erosion of agency or to a fragmented sense of self, making it more difficult to understand the logics and legacies of atrocity (Langer, 1991). Such objections alert us to the problematic implications of efforts to identify exemplars to serve as inspiring heroes and “role models” that focus attention on individual deeds and idealized forms of agency. A response might be to consider how exemplary disobedience illuminates the limitations and ambiguities of agency and the political and institutional dynamics of atrocity, as well as neglected possibilities for the exercise of agency and judgment.

Demanding disobedience

International criminal law now demands disobedience from lower-level soldiers and functionaries who are ordered to participate in crimes against humanity. This was not always the case. The defense of superior orders traditionally relieved soldiers from responsibility for their involvement in wartime atrocities (May, 2005). As Oppenheim (1912) put it, members of armed forces should not be punished for violations ordered by their commanders, “for the commanders alone are responsible.” If military authorities must act swiftly, decisively, and efficiently, in this view, they must be able to count on the unquestioning obedience of their soldiers. In the 1915 Llandovery Castle Case, however, an Austro-Hungarian military court held that subordinates may be held responsible for war crimes that are manifestly illegal (Gaeta, 1999: 175).

The spectacle of major Nazi war criminals invoking the defense of superior orders over the course of the Nuremberg trials influenced prominent thinkers to reject it altogether in cases of war crimes and crimes against humanity (Gaeta, 1999). Article 8 of the London Charter, which established the International Military Tribunal at Nuremberg, articulated a principle of absolute liability for war crimes, rejecting obedience to orders as a defense and allowing it only as a mitigating factor in sentencing. This obligation to disobey abusive orders has been applied to jus in bello prohibitions within international law (McMahan, 2011: 98) and is generally recognized as a challenge to the state’s interest in cultivating obedience to military hierarchy and legal authority.

If people are trained to internalize habits of obedience, then how are they to recognize when the time has come to disobey? Moreover, if people are encouraged to fear and avoid the costs of disobedience, then how should they respond when confronted with the high costs of disobedience? Courts have addressed the first question with reference to the variations on what is known as the “manifest illegality” test and debated the second question in evaluating the defense of duress and the charges pertaining to complicity in a criminal order. Both approaches distinguish obligatory disobedience from criminal disobedience by conceptualizing the former as a byproduct of obedience.

According to the principle of “manifest illegality,” soldiers can be held accountable for their failure to disobey unlawful orders but only in cases where the illegality of the orders was extremely obvious or clearly “manifest” to the soldier (Osiel, 1998). National courts define “manifest illegality” in a range of ways but generally require the illegality of the order to be so egregious and shocking that there could be no doubt that it is illegal (Gaeta, 1999; Osiel, 1998). Thus, they tend to associate “manifest illegality” with the kind of actions that inspire an immediate and physical reaction or shock. Courts have suggested that the wrongness of such acts must be “palpable,” “indisputable,” “clear and unequivocal,” “universally known to everyone,” and so evident that the soldier would “know as soon as he heard the order that it was illegal” (Osiel, 1998: 951). As articulated somewhat dramatically in the Eichmann Trial, “[t]he mark of an order which is ‘manifestly illegal’ flies like a black flag over orders given as a warning sign, saying ‘forbidden’” (Osiel, 1998: 973). Statutes of the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) specify that all egregious abuses under investigation by these courts are presumed to be “manifestly unlawful.” The manifest illegality test appears more explicitly in Article 33 of the Rome Statute of the International Criminal Court (United Nations, 1998), which specifies that genocide and crimes against humanity are always manifestly unlawful according to contemporary international criminal law.

The “manifest illegality” test, then, is a basis for circumscribing the demand for disobedience to abusive orders by conceptualizing it as a byproduct of obedience. The very idea of “manifest illegality” implies that soldiers should not have to think or to make a habit of questioning authority in order to comply with the obligation to disobey a subset of uniquely abusive orders. The appropriate time for disobedience should, according to this premise, be blatantly obvious — even to those who are not accustomed to questioning authority — due to the shocking character of the orders. Training for obedience, according to this logic, should prepare people to recognize when and how they ought to disobey.

The scholarship on “crimes of obedience” discussed earlier underscores a major limitation of the “manifest illegality” test, which is that habitual obedience does not offer a basis for recognizing or refusing illegal orders. Given that war itself is a shock to the conscience by those that endure it, it seems unlikely that the feeling of “shock” will offer a useful basis for distinguishing between lawful and unlawful killings. Many orders that are legal under international law would potentially involve shocking forms of violence and devastation. Thus, training soldiers to obey the orders of their commanders has involved desensitization exercises aimed at teaching them to overcome their instinctive shock and override the voice of conscience in order to carry out commands that are deemed necessary and legal, even though they result in horrific and shocking forms of violence (see Grossman, 1995; Lifton, 1973; May, 2005; Osiel, 1998). Counterinsurgency warfare has been associated with intensive efforts to desensitize troops to violence against civilian populations (Crawford, 2013) and commanders have utilized dehumanizing and racist propaganda in training as a way of achieving this result (Grossman, 1995; Lifton, 1973).

Is it a viable defense under international humanitarian law, then, to claim that intensive indoctrination, desensitization, or propaganda made the illegality of an order less “manifest”? Courts have addressed this question in very different ways. An Italian court presiding over the 1997 trial of Erich Priebke for participating in a reprisal massacre ordered by the Nazis held that his actions were criminal but not “manifestly so” in light of the “ideological pervasiveness” of the “Führer principle” (Osiel, 1998: 947). However, the European Court of Human Rights insisted that German Democratic Republic border guards ought to have been able to see beyond the propaganda and indoctrination associated with their training. It is difficult to imagine how the illegality of Bush Administration counterterror policies could have been blatant or “manifest” to those tasked with carrying them out after highly placed law professors, such as John Yoo, had articulated a legal rationale for such policies (see Luban, 2014b).

As Larry May (2005: 181) puts it, the Nuremberg Charter assumes a soldier that would not blindly obey authority, but “subject his or her superior orders to critical moral scrutiny.” The liability that the Charter imposes on soldiers, adds Gaeta (1999: 178), advances the principle that “the soldier is a reasoning agent, and therefore capable of appraising the orders he receives.” International law requires that soldiers engage in a “dynamic alternation” between norms that call for potentially contradictory behavior, writes Osiel (1998: 965), which can only be attained through their capacity for practical judgment. Yet, the reliance on tests of “manifest illegality” sends precisely the opposite message, implying that it is only appropriate to disobey the orders of those in authority at such times that their illegality is so obvious that no such critical judgment is required.

War crimes tribunals have also articulated an obligation to disobey abusive authority by rejecting or radically restricting the availability of duress as a defense in cases dealing with crimes against humanity. Defendants that claim to have been acting under duress may have recognized the illegality of their orders at the time, yet insist that they were threatened or coerced into compliance and thereby lack the criminal intent needed for conviction. Claims of duress are difficult to evaluate because it is not always clear what alternatives might have been available or perceived. Evaluating claims regarding duress also requires courts to make judgments regarding the price that defendants should be prepared to pay in order to avoid participating in abuse. However, the recent jurisprudence of war crimes trials makes it difficult, if not impossible, to claim duress as a defense for crimes against humanity.

The ICTY addressed the defense of duress in one of its first cases. The defendant, Drazen Erdemovic, had voluntarily confessed to participating in the Srebrenica massacre that took place in July 1995 and estimated that he had personally killed about 70 people. “I knew I could not hide this,” he told the court in his confession, “that this would be burning at my conscience” (Prosecutor v. Drazen Erdemovic, 1996). Erdemovic told the trial court that he had initially refused orders to participate in the massacre and even attempted to disobey. However, he complied after having been told that if he continued to refuse, he would be killed. The trial court concluded that Erdemovic was correct to assume that he would have been killed for disobeying these orders. However, a divided appeals chamber still rejected the validity of duress as a defense for his participation in the killings. In her opinion for the plurality, Gabrielle Kirk McDonald quoted Lauterpacht’s assertion that “no principle of law permits the individual person to avoid suffering or even to save his life at the expense of the lives of others” (Prosecutor v. Drazen Erdemovic, 1997a). In many domestic jurisdictions, she added, duress is invalid as a defense for the crime of murder. Finally, McDonald added that the court’s determinations regarding duress should not be “the product or slave of logic,” but serve a “broader normative purpose” by encouraging soldiers to play a role in stopping violations of humanitarian law by resisting the orders of their commanders.

In an influential dissenting opinion, Antonio Cassese rejected much of MacDonald’s reasoning. Law, he argued, “should not require mankind to perform acts of martyrdom and brand as criminal any behavior falling below these standards” (Prosecutor v. Drazen Erdemovic, 1997b). Drawing on his own review of customary international law, Cassese proposed a proportionality test that would allow duress as a defense in cases where the harm caused was less than the harm averted. Cassese’s cost–benefit logic prevailed in the Rome Statute of the International Criminal Court, which allows the defense of duress “resulting from a threat of imminent death or of continuing imminent serious bodily harm against that person,” provided that “the person does not intend to cause greater harm than the one sought to be avoided” (United Nations, 1998). Erdemovic, who claimed to have killed dozens of people to save his own life, would have found it difficult to meet this standard.

In cases dealing with criminal complicity, international criminal tribunals have gone further, insisting that soldiers and civilian authorities have not only an obligation to refuse participation in crimes against humanity, but also a duty to take action to prevent such atrocities if they are able to exercise some kind of authority. In the Furundzija case, the ICTY concluded that an “approving spectator” held in esteem by perpetrators may be guilty of complicity in genocide or crimes against humanity (Prosecutor v. Anto Furundzija, 1998). The ICTR invoked this standard in its case against Rutaganira, who had been a counseilleur in Mubuya during the genocide. Several witnesses had testified that Rutaganira had saved the lives of a number of Tutsis, yet the court found him guilty of “complicity by omission” for having failed to prevent the massacre of Tutsis gathered in the local church. Taking action to stop the massacre would have required Rutaganira to oppose his superior, the local Bourgremestre. The court found that Rutaganira enjoyed a degree of moral authority and political support that he could have exercised to that effect and held him accountable for his failure to do so (Prosecutor v. Vincent Rutaganira, 2005). As articulated here, the obligation to prevent atrocity applies only to those with some degree of authority, whether civilian or military, yet it is not restricted to the logic associated with command and control.

Trials of lower-level soldiers are particularly controversial. Some view such trials as unfair because of the way in which they punish people for being “good soldiers.” Others worry that such trials will scapegoat those with little authority, shift the blame away from commanders and political leaders, or exacerbate political volatility (Crawford, 2013). Standard rationales for criminal prosecution and punishment do not apply as readily to lower-level soldiers as they do in cases dealing with the “big fish.” Furthermore, if the prosecution of leaders, such as Milosevic, appears to many as a satisfying vindication of international criminal law, figures such as Erdemovic and Rutaganira are more likely to inspire feelings of ambivalence and pity among onlookers, raising questions regarding the purpose of such an exercise. As Kamari Clarke (2009: 63) puts it, such trials appear as a “ritualized articulation of guilt,” which assert the power of the court, yet do little to establish justice or accountability.

In her opinion for the Erdemovic case, Justice McDonald articulated an alternative rationale for insisting upon his legal obligation to disobey — one that alluded to the pedagogical potential of his trial as a response to abuses of international humanitarian law. Making an example of Erdemovic, suggested McDonald, would be a way of teaching others an important lesson about the importance of disobedience and resistance as responses to mass atrocity. Yet, it is not entirely clear what lessons are to be learned from the sentencing of individuals such as Erdemovic. Such cases establish a legal obligation to disobey abusive orders, yet conceptualize that obligation as following logically from obedience to international criminal law. This logic reinforces the stigmatization of disobedience and strengthens the position of those who wish to instill fear and self-doubt in people who might otherwise challenge abusive authority. When responsibility is identified with individual choice and intent, as Arendt observes, people who feel confident in their own good intentions are encouraged to remain unashamed about their role as bystanders or supporters of abuse. This logic is in tension with the goal of confronting complicity to the extent that it obfuscates institutional and political responsibility, suggests Neta Crawford (2013), or exculpates those who support war policies that produce catastrophic and foreseeable forms of “collateral damage.” To the extent that they place the shaming of individual perpetrators at the center of the politics of memory, such cases may render other forms of systemic violence, including sexual violence, racial injustice, or colonial legacies, peripheral to public memory (Clarke, 2009; Nagy, 2008).

Exemplary disobedience and legal pedagogy

If efforts to make an example of those who fail to disobey abusive authorities have been problematic as a response to complicity, then an alternative approach might be to make an example of those who did disobey or resist. Building on the discussion of exemplary disobedience earlier, I consider how exemplary accounts of disobedience might usefully inform the legal pedagogy of war crimes tribunals, as well as alternatives to prosecution. Like scholarship on the socializing role of legal institutions, scholarship on legal pedagogy identifies the influence of legal institutions with their power to teach and persuade. However, scholarship on legal pedagogy is not primarily concerned with whether people can be taught to internalize specific facts or ideas, but rather with the question as to how those ideas and facts are conveyed. The pedagogical role of legal institutions depends on how the legal process imparts skills in judgment, adjudication, or investigation that empower people to apply lessons learned from one context to another and to critically evaluate conclusions drawn by various authorities.

The idea that war crimes trials might play a pedagogical role takes a number of distinct forms. Some emphasize their role in establishing a historical record of systematic atrocity in a way that persuasively models the adjudication of competing factual and interpretive claims (Bass, 2000; Savelsberg and King, 2011; Shklar, 1964; Wilson, 2011). A second way of locating the pedagogical potential of war crimes trials has been to focus on their role in modeling the interpretation of meaning in testimony and narrative (Chakravarti, 2014; Douglas, 2001). Others focus on the pedagogical role of war crimes tribunals as a form of public drama that displays, mediates, and constructively channels tensions between conflicting claims (Bilsky, 2001; Mihai, 2016; Osiel, 1998; Shklar, 1964). In their use of precedents, judges also model avenues for drawing guidance from the past in ways that allow room for creative reinterpretation and revision (Teitel, 2014).

A number of concerns have been raised regarding efforts to pursue a pedagogical role for war crimes tribunals. If courts become involved in teaching history lessons, some argue, this will compromise the quality of the judicial process and risk turning trials into “show trials.” Arendt famously took issue with the way in which Eichmann’s prosecutor, Gideon Hausner, used the trial as a platform for publicizing a propagandistic history of the Holocaust: “[T]he purpose of a trial is to render justice and nothing else,” she wrote (Arendt, 1963: 253). Others stress that international legal institutions are simply not in a position to produce useful or accurate lessons about the past. Lawyers and historians work with two “entirely different and incompatible notions of causality,” observed Shklar (1964: 194). Legal reasoning may be in tension with historical analysis and legal criteria for the admission of evidence can profoundly distort the historical record.

In developing a case for an approach to legal pedagogy that incorporates exemplary disobedience, I offer three responses to such concerns. First, legal judgments regarding politically authorized abuses imply historical and political judgment and cannot avoid drawing upon and engaging in historical analysis (Wilson, 2011). Second, war crimes trials need not abandon criteria required for good legal judgment in order to develop a pedagogical contribution to public history and the politics of memory (see Douglas, 2001; Mihai, 2016; Wilson, 2011). Third, I define legal pedagogy broadly as a long-term interactive relationship between a trial and its interpreters (see Wilson, 2011). The pedagogical potential of international criminal justice is informed by the decisions of court officials, yet also shaped by the work of scholars, policymakers, and activists that draw attention to the limitations of war crimes investigations, push officials to expand them in new directions, or pursue new policies and protests in response to legal judgments. Conceptualized in this manner, legal pedagogy does not require courts or individual judges to take on contradictory roles and does not depend on the work of a single institution, but shifts our focus to the constellation of actors that shape the influence of war crimes trials and to how their interactions might change with the passage of time.

Examples of those who disobeyed abusive authorities, I suggest, are already an important dimension of legal judgments in war crimes cases. Courts commonly invoke exemplary accounts of disobedience in order to establish that the defendant had a choice as to whether or not to obey authority: if this person was able to disobey, escape, or somehow avoid participating in abuse, they suggest, then you could also have disobeyed. Such exemplars are typically invoked as a strategy for dismissing the salience of systemic and political factors or the psychological impact of trauma in order to evaluate complicity by focusing narrowly on intentional choices made by individuals. I want to suggest that such exemplars might alternatively be recognized as a neglected resource that could offer a basis for de-stigmatizing resistance and demonstrating the importance of practical judgment. Such accounts might be investigated for insight into the ambiguities of accountability, the limitations of criminal justice binaries, and the distinctive logics of repression and political violence. Here, I develop this set of ideas by examining several distinctive forms of disobedience that have been invoked in the prosecution or verdicts of major war crimes trials.

Conclusion

Those who disobey abusive authorities tend to be forgotten, stigmatized as traitors, or accused of lacking faith in their own authorities and institutions. Others, such as Chelsea Manning and Edward Snowden, are well known but widely condemned for having disobeyed in the wrong way. Even when disobedience is recognized as a potentially appropriate course of action, then, there is a sense that it can and should be pursued in a manner that follows logically from the habits or training for obedience. Manning and Snowden are said to have disobeyed recklessly because their actions are seen as jeopardizing national security and endangering lives. In the context of war, however, nearly all forms of disobedience, including those that are now obligatory under international criminal law, are denigrated and condemned on the same grounds.

The obligation to disobey abusive authority, as articulated in international criminal law, cannot easily be met by those who are unwilling to challenge official interpretations of what actions are necessary in the face of security threats. Under international criminal law, soldiers and civilian authorities are now required to refuse compliance with domestic laws and commands that might implicate them in crimes against humanity and to risk their own lives in order to prevent mass killings. International criminal law also demands disobedience from those who are likely to find this demand most challenging — soldiers with training aimed at producing habitual obedience, conformity, and desensitization to the shock of violence. War crimes trials have analyzed and justified this stringent demand for disobedience to abusive authorities as a byproduct of obedience to international criminal law. Such trials have relied upon the principle of “manifest illegality” to insist that obligatory forms of disobedience should follow logically from the habits, training, and incentives aimed at producing obedience and should not require the exercise of critical judgment or agency.

Paradoxically, however, international criminal law also insists that individuals must remain capable of setting aside self-interest, resisting the pull of conformity, and breaking free of habitual deference to authority in order to avoid becoming complicit in crimes against humanity. In trials of lower-level soldiers and functionaries, accounts of exemplary disobedience are commonly cited as evidence of the possibility that even those who have been subjected to extraordinary coercion, those who have endured shattering trauma, and those subjected to desensitization should remain capable of recognizing “manifest illegality” and exercising individual agency. Exemplary accounts of disobedience are also invoked to justify the shaming of individuals that might inspire too much pity or ambivalence to be easily recognizable as “perpetrators.” Courts have invoked such exemplars to assert that what matters are the choices that individuals make, and to insist that individuals can always make choices. Although the goal of such efforts has been to address the problem of complicity in atrocity, this emphasis on individual choice and intent obfuscates the systemic logics of atrocity, and makes it easier for bystanders and beneficiaries to avoid confronting their own responsibilities for abuse.

I have suggested an approach to developing the pedagogical role of international criminal law that would reverse this logic. Instead of invoking stigmatizing exemplars of “criminal obedience,” an alternative pedagogical approach might investigate exemplary accounts of disobedience as a strategy for cultivating critical judgment and agency. Moreover, instead of mobilizing exemplary accounts of disobedience in order to decontextualize analyses of individual agency, an alternative approach might consider how such exemplars reveal the ambiguities and limitations of agency, the systemic logics of violence, the shame of passivity, and the possibility of political responsibility.

If we recognize that disobedience and resistance are essential to the critical role of international criminal law, then this also suggests that policymakers, activists, and scholars ought to reconsider the emphasis that they have placed on strategies aimed at generating elite compliance. Such strategies emphasize the cultivation of professional legal expertise, privileging legalism and enforcement as frameworks for addressing and analyzing atrocity. In confronting the problem of complicity, however, international criminal laws and institutions also confront the limitations of legalism and reveal possibilities for addressing those limitations through institutional reform and political mobilization. To pursue such possibilities would not only require strategies for de-stigmatizing principled disobedience and critical judgment, but also a move to mobilize political support and responsibility for resistance as a response to authorized atrocities.