Does the Australian Defence Force have a compelling justification for the duty to obey orders?

Abstract

At the turn of the twentieth century the understanding of society was that the rights of the state to survive outweighed the rights of the individual. This communitarian understanding was reflected in military tactics such as the sacrifice of soldiers through the extensive use of trench warfare in the battle of the Somme in 1916. Over the past century there has been a shift in the understanding of society to the point where there is much more of a focus on the rights of individuals. Trench warfare tactics would be inconceivable for military commanders in 2016, where remote warfare tactics, such as the use of drones, are utilised in an attempt to reduce the number of casualties amongst soldiers.

The justification for the duty to obey all orders has previously been that the rights of the state to survive outweigh the rights of individual soldiers. Given the shift in the understanding of society with regards to the importance of the individual vis-à-vis the rights of the state, the question this thesis examines, is “Does the Australian Defence Force (ADF) have a compelling justification for the duty to obey orders”?

An examination of the “unlimited liability contract” is conducted in order to discern whether it is an outdated historical understanding of unrestricted service and the duty to obey orders in the ADF. After dismissing the position of Michael Walzer of soldiers as being mere servants of the state, a novel understanding of soldiers as supra civis, that is super citizens, who willingly take on the extra responsibilities of citizenship, is proposed.

Further justifications given by the ADF in regards to the duty to obey orders are also examined. Five potential options for how the ADF may understand the duty to obey orders are also analysed. In order to gain a deeper understanding of these options the F-111 deseal/reseal case study is examined in light of each of the five potential options. Finally, a recommendation for how the ADF might understand the doctrine of the duty to obey orders is given.