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LL.M IHRL/IL 2020/21
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LAW 7123
Module Title
International Criminal Law
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1
Marking criteria – please study these carefully
0 – 39%
40 – 49%
50 – 59%
60 – 69%
70 – 79%
80 – 100%
Fail
Fail
Pass
Strong pass
Very strong pass
(merit)
(distinction)
Exceptionally strong
pass
(distinction)
1. Identify and distinguish at the level of detail the key concepts, principles, and institutions of international criminal law,
including their origins, limits and potential.
Very little evidence of
the ability to identify
the key concepts,
principles, and
institutions of
international criminal
law
Evidence of some
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Evidence of
satisfactory ability to
identify the key
concepts, principles,
and institutions of
international criminal
law
Evidence of
reasonably good ability
to identify the key
concepts, principles,
and institutions of
international criminal
law
Evidence of very good
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Little to no ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Limited ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Satisfactory ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Good ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Very good ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Evidence of
exceptionally good
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Exceptionally good
ability to distinguish at
the level of detail
between different
issues pertaining to
international criminal
law
Many substantial
Mistakes and/or
Few substantial
Very few substantial
Absence of any
mistakes and/or
omissions are present, mistakes or omissions mistakes or omissions substantial mistakes or Absence of any
omissions are present some of which are
omissions
mistakes or omissions
substantial
2. Critically analyse issues pertaining to international criminal law, and to develop and sustain a convincing argument.
Very little attention to
the question asked
Unsatisfactory
attention to the
question asked
Little to no evidence of
skills of critical
Evidence of limited
analysis, synthesis and skills of critical
evaluation
analysis, synthesis and
evaluation
No evidence of ability
to develop a
convincing argument
including a critique of a
rival position
No attempt at
originality in
approaching the topic,
and no personal
contribution to debate
on the topic
Satisfactory attention
to the question asked
Good attention to the
question asked
Very good attention to Exceptional attention
the question asked
to the question asked
Evidence of
reasonable skills of
critical analysis,
synthesis and
evaluation
Evidence of good skills
of critical analysis,
synthesis and
evaluation
Evidence of very good
skills of critical
analysis, synthesis and
evaluation
Evidence of good
ability to develop a
convincing argument
including a critique of a
rival position
Little to no evidence of
ability to develop a
convincing argument
including a critique of a
rival position
Evidence of limited
ability to develop a
convincing argument
including a critique of a
rival position
Evidence of
reasonably good ability
to develop a
convincing argument
including a critique of a
rival position
Little to no attempt at
originality in
approaching the topic,
and no personal
contribution to debate
on the topic
Limited attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
Reasonable attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
Good attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
Evidence of
exceptionally good
skills of critical
analysis, synthesis
and evaluation
Evidence of very good
ability to develop a
convincing argument
including a critique of
a rival position
Very good attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
3. Conduct an independent and advanced legal and academic research in international criminal law, drawing from a wide array
of sources including case law, other primary materials, and scholarly critique.
No evidence of reading No evidence of reading Reading and research Evidence of
and research beyond and research beyond is largely confined to
reasonably wide
basic texts
basic texts
basic texts
reading and research
Majority of the key
sources are omitted
Unsatisfactory
competence in the
selection and use of
sources
Little to no evidence of
ability to evaluate and
engage with current
Evidence of limited
legal research and
ability to evaluate and
theoretical arguments engage with current
Satisfactory
competence in the
selection and use of
sources
Good competence in
the selection and use
of sources
Evidence of good
ability to evaluate and
engage with current
legal research and
Evidence of
reasonable ability to
evaluate and engage
2
Evidence of wide
reading and research
Evidence of
particularly wide
reading and research
Very good competence
in the selection and
Exceptionally good
use of sources
competence in the
selection and use of
sources
Evidence of very good
ability to evaluate and
engage with current
Evidence of
legal research and
exceptional ability to
theoretical arguments evaluate and engage
on the subject
legal research and
theoretical arguments
on the subject
with current legal
research and
theoretical arguments
on the subject
theoretical arguments
on the subject
on the subject
with current legal
research and
theoretical arguments
on the subject
4. Communicate complex ideas clearly and effectively in writing, maintaining coherent structure and a balanced organisation of
information and argument, and paying close attention to professional legal and academic standards of style and presentation.
Discussion is very
unclear, with
repetitions and
sentences that make
little sense
Very confusing
structure and
organisation of
information
Clarity of discussion is Satisfactory clarity of
inconsistent, confusion discussion
or repetitions may be
present
Acceptable structure
and organisation of
Largely confusing
information
structure and
organisation of
Satisfactory
information
grammatical accuracy
Unsatisfactory
Grammatical accuracy grammatical accuracy
is particularly poor
Limited attention to
Little to no attention to providing clear and
providing clear and
consistent referencing
consistent referencing and appropriate
and appropriate
bibliography
bibliography
Good clarity of
discussion
Very good clarity of
discussion
Excellent clarity of
discussion
Reasonably clear and
appropriate structure
and organisation of
information
Very clear and
appropriate structure
and logical
organisation of
information
Particularly clear and
appropriate structure
and logical
organisation of
information
Good grammatical
accuracy
Reasonable attention
to providing clear and
consistent referencing
and appropriate
bibliography
Good attention to
providing clear and
consistent referencing
and appropriate
bibliography
3
Very good grammatical Excellent grammatical
accuracy
accuracy
Very good attention to
providing clear and
consistent referencing
and appropriate
bibliography
Acute attention to
providing clear and
consistent referencing
and appropriate
bibliography
Should superior orders ever be a defence to an International Crime?
Research Memorandum
Question: Should superior orders ever be a defence to an International Crime?
Argument: Superior Orders Defence must exist in International Criminal Law as a ‘defence’
because it is not a singular independent defence but a collection of multiple valid defences
(Duress, Necessity, Mistake of Law and Fact, etc.) striving to strike a perfect balance between
Military Discipline, Supremacy of Law, and Individual Accountability. It is also the only defence in
International Criminal Law that weighs the burden of a Soldier’s Dilemma during battle.
In absence the of the Defence of Superior Orders, the alternative diametrically opposite doctrine
of ‘Absolute Liability’, becomes overinclusive and disregards the fundamental principles of
discipline and compliance in the military.
Structure of the Argument
This Research Memorandum will first explore the reasons for the formation of the Superior
Orders Defence in International Criminal Law. This Memorandum will attempt to identify the
current position of the Superior Orders Defence in International Criminal Law by studying the
evolution of it from being in the extreme of ‘respondent superior’ to moving towards the other
end of the spectrum to Absolute Liability during the Nuremberg Trials. The final section of the
Memorandum will explain the necessity of an assurance for soldiers to obediently follow orders.
In conclusion, it will be proven that the Superior Orders Defence is the only defence that takes
the ‘Soldier's Dilemma’ into consideration, thereby, proving the significance of this defence in
striking a balance between Military Discipline, Individual Accountability and Supremacy of Law
Justification Behind the Origin of Superior Orders Defence:
One of the most fundamental pillars of an efficient Military is hinged upon the rigorous
enforcement of a strict ‘Chain of Command’ allowing commanding officers to issue orders to be
unquestionably complied with by their subordinates. In a military context, the soldier is regarded
as an ‘automaton’ whose only function is to execute the orders given by their high-ranking
officers without hesitation. As mentioned in the Kafr Kassem Case, a soldier is expected to
provide “total and unqualified obedience [to orders] without hesitation or doubt”1. A soldier
questioning the orders of a superior will threaten the very existence of the most fundamental
principles on which a military chain of command is built upon.
To add on to that, soldiers are almost always placed in imminent danger and are expected to
make quick decisions in life and death scenarios. This ‘Superior Orders Defence’ provides an
assurance to soldiers, releasing them from accountability for the consequences arising from
their actions executed under the orders of their superiors subject to certain conditions. This legal
1
James B Insco, 'Defense of Superior Orders before Military Commissions' (2003) 13 Duke J Comp & Int'l L 389
4
practice has encouraged subordinate officers to maintain obedience and follow orders given by
their commanding officers without question and hesitation.
Superior Orders Pre-World War I
Although, the argument requires the Superior Orders Defence to be evaluated in an
international context, it is instrumental to consider the national application of this legal practice
prior to the First and Second World Wars.
This was almost a black-and-white issue for most of the 19th century jurists. Both, the 1914
British Manual of Military Law and the US Rules of Land Warfare2 established that subordinate
officers following the orders of their superiors are not war criminals and that they cannot be
held liable for the consequences of their actions in the course executing orders. If at all, only the
commanders, who issued the orders, could be held liable.
As observed by Alan M. Wilner, J. W. Garner explains in ‘Punishment of Offenders against the
Laws and Customs of War’ that the French jurists were of the view that every person in the Chain
of Command responsible for “the commission of a criminal act during war” are likely to be “tried
and punished if found guilty”3.
Since most of these orders emanated from high-ranking officials, almost none were punished
and held liable for their actions despite the prescription of ‘respondeat superior’ by the law.
Superior Orders Post-World War I
The First World War did not trigger much change in the pre-existing law related to Superior
Orders Defence, however, there were a few notable international applications of the pre-existing
defence in several milestone cases.
The Dover Castle Case (Karl Neumann Case) is one such instance where the commanding officer
of a German Submarine, Lieutenant Commander Karl Neumann was tried for committing war
crimes by sinking the British Hospital Ship named “Dover Castle” used to transport injured
soldiers in 1917. He successfully pleaded the defence of superior orders. He had simply followed
orders issued by the German Government who suspected that the British were using Hospital
Ships to transport4.
In Llandovery Castle Case, the defendants were convicted despite their attempt to plead the
defence of superior orders. Lieutenant Ludwig and Lieutenant John Boldt were officers in a Uboat that sank the Llandovery Castle Hospital Ship and consequently shot and sank the survivors
Alan M Wilner, 'Superior Orders as a Defense to Violations of International Criminal Law' (1966) 26 Md L Rev 127
Alan M Wilner, 'Superior Orders as a Defense to Violations of International Criminal Law' (1966) 26 Md L Rev 127
4
Dover Castle Case (1922) BGHSt 4 16 TAJIL 704-708 <https://ihl-databases.icrc.org/applic/ihl/ihlnat.nsf/0/96DF2648814F51BBC1257641004FB6C7> accessed 01 October 2021
2
3
5
in lifeboats.5 It must be noted that the decision in Llandovery Castle Case also condemns the
orders issued by the U-boats commander First-Lieutenant Patzig, whose whereabouts were
unknown at the time of the trial, declaring him as the primary defendant guilty of the war crimes
in question.
Following the end of the First World War, the Allied Powers agreed to allow the Imperial Court
of Justice (Reichsgericht) in Germany to carry out the Leipzig Trials (German Government’s
obligation under Article 228 of the Treaty of Versailles) to prosecute War Criminals of the First
World War6.
From an extensive list of 900 names presented by the Allied Powers, only a list of 45 alleged war
criminals were submitted to the Imperial Court of Justice at Leipzig and due to various reasons
only 12 of the submitted alleged war criminals were tried by the Reichsgericht 7. The sentences
given to the few who were convicted were outrageously brief.
The Treaty of Versailles was silent on the matter of Superior Orders being utilized as a Defence
against War Crimes, but J. W. Garner argues that the attitude of the Allied Powers had
suggested that it was “not intended to be considered as an absolute defence” but a defence
applicable on a case specific consideration8.
Superior Orders Post-World War II
Two International Military Tribunals were formed in Nuremberg and Tokyo to prosecute those
responsible for the commission of gross violations of laws of armed conflict and the rest of the
other horrendous crimes committed by the Nazi Forces and the Japanese Forces.
The Allied Powers appointed the International Law Commission to codify the defences available
for war criminals under the Nuremberg Charter. The Nuremberg Charter explicitly rejected the
absolute application of the superior orders defence. This approach is widely referred to as the
‘Absolute Liability’ approach to the superior orders defence, however, the Charter mentions that
this defence can be considered to mitigate the punishment given to the defendants based on a
case-by-case analysis of facts by the tribunal.
Subsequent trials in Tokyo and Yamashita further established that commanders who were
ignorant to the atrocities committed by their subordinate officers were also liable to the crimes
committed by them if they had not taken action to prevent such crimes from taking place9.
The tribunals innovatively introduced novel standards to evaluate the intention and knowledge
of the defendants. As a result, standards such as the ‘should have known’, ‘had reason to know’
Llandovery Castle Case (1922) BGHSt 4 16 TAJIL 708-724 <https://ihl-databases.icrc.org/applic/ihl/ihlnat.nsf/0/F65D9C91417F3A9FC1257641004FD447> accessed 01 October 2021
6
Alan M Wilner, 'Superior Orders as a Defense to Violations of International Criminal Law' (1966) 26 Md L Rev 127
7
Claud Mullins, ‘Leipzig Trials’ (1921 H.F. & G. Witherby)
8
Alan M Wilner, 'Superior Orders as a Defense to Violations of International Criminal Law' (1966) 26 Md L Rev 127
9
Koji Kudo, 'Command Responsibility and the Defence of Superior Orders' (DPhil thesis, University of Leicester 2007)
5
6
and ‘must have known’ were introduced by the judges to assess the ‘mens rea’ element of the
criminals. These standards were subsequently utilized by the International Criminal Tribunals for
Former Yugoslavia and Rwanda.
It must be understood that although the approach towards the superior orders defence has
changed significantly through time, the objective behind the existence of the defence remains
the same. The defence still seeks to strike a perfect balance between Military Discipline and
Supremacy of Law which would impossible with any other defences.
Other defences covered under the umbrella of Superior Orders Defence:
A. Duress and Necessity
As was discussed at the very beginning of this memorandum, soldiers are constantly under
significant pressure and the structure of the military is such that anyone who dares to question
the authority of a senior officer will be punished for their actions. There is always a natural
inclination in the minds of subordinate officers to comply with the orders emanating from their
seniors. This maybe because they are trained and brainwashed to comply with orders when they
are recruited. It could also be the fear of facing the consequences of non-compliance (severe
physical punishments or in some extreme cases; death).
It could also be out of necessity. A soldier might be willing to follow an order to commit a
criminal act during an armed conflict if the outcome is to protect his fellow comrades. Whatever
the motivation maybe, it must be understood that a decision made by a soldier is rarely
autonomous and free from duress, especially when the orders stem from high-ranking officers.
The Einsatzgruppen Case10 where the death squad members were put on trial, the US Military
Courts allowed the defence of superior orders as a consideration for mitigation, but it was not
available to the defendants because they condoned their criminal acts and there was no need
for any senior officers to compel them to commit these crimes. The Einsatzgruppen Case
introduced the element of “malice” as a component to be considered when evaluating the
validity of a Superior Orders Defence11.
In another trial involving a death squad member Dražen Erdemović, the International Criminal
Tribunal for Former Yugoslavia, a more detailed analysis of the defence of duress was provided.
A majority of the tribunal judges agreed that the Defence of Duress should not be available in
trials of war criminals12, however, Judge Cassese and Judge Stephen viewed the defence in a
new light.13
Einsatzgruppen case - Appleman, John Alan. Military Tribunals and International Crimes. Westport, Conn:
Greenwood Press, 1971; Indianapolis, Bobbs-Merrill Co.
11
Alan M Wilner, 'Superior Orders as a Defense to Violations of International Criminal Law' (1966) 26 Md L Rev 127
12
Koji Kudo, 'Command Responsibility and the Defence of Superior Orders' (DPhil thesis, University of Leicester
2007)
13
The Prosecutor v. Dražen Erdemović 7 October (ICTY 1997) <https://www.icty.org/en/press/erdemovic-caseappeals-chamber-rules-drazen-erdemovic-should-enter-new-plea> accessed 01 October 2021
10
7
Judge Cassese presented a 4-step test to determine the validity of the Defence of Duress which
is instrumental in proving the influence of military discipline in executing orders (especially
under the flag of vicious armed groups such as the Nazi Forces and the Army of Republika
Srpska (VRS) that led the Holocaust and the Srebrenica Genocide). For the soldiers of these
armed forces, it is a matter of ‘do or die’.
Judge Stephen partially agreed with the system introduced by Judge Cassese but looked at the
proportionality requirement in an innovative manner14. He argued that the proportionality
requirement in Cassese’s 4-step test must be viewed in a different light. In his point of view, it is
not a balance of the accused’s life versus the lives of the victims, but it is a balance of the
victims’ lives and the accused’s life itself.15
The defence of duress and necessity, recognized by the ICC Statute Article 31(1)(d) is a vital
component in proving the validity of the Superior Orders Defence. The article introduces a
systematic assessment to identify whether the superior orders given to a subordinate officer
constitutes adequate duress to be considered as a defence against their criminal charges 16.
B. Mistake of Law and Fact
The existence of Mistake of Law (ICC Art. 32(2)) and Mistake of Fact (ICC Art. 32(1)) Defences
implicitly justify the availability of a Superior Orders Defence in International Criminal Law. These
Defences are closely intertwined and compliments the existence of each other.
a. Mistake of Fact
Subordinate Officers are often expected to put the orders of their senior officers into action. The
orders are formulated by the Commanding Officers and they inherently have access to
information material to the execution of the master plan – ‘on demand’ as opposed to the
subordinates. They do not have the facts to decide what the course of action should be, and
they heavily rely on their commanders to guide them through the correct course of action.
If a commanding officer issues an order based on inaccurate intelligence, the subordinate officer
executing the command has no alternative but to trust that command. The commanding officer
in this hypothetical scenario can raise a Mistake of Fact Defence but the subordinate officer
would be expected to depend on the Commanding Officer’s Defence. He will not receive the
opportunity to express his occupational predicament and would be left without a feasible
recourse if the Superior Orders Defence was not available.
b. Mistake of Law
Dr Douglas Guilfoyle, 'Defences in International Criminal Law' (14 Sept 2018)
<https://www.youtube.com/watch?v=u3FUT76Rutsis> accessed 01 October 2021
15
The Prosecutor v. Dražen Erdemović 7 October (ICTY 1997) <https://www.icty.org/en/press/erdemovic-caseappeals-chamber-rules-drazen-erdemovic-should-enter-new-plea> accessed 01 October 2021
16
Rome Statute, 17 July 1998, Art. 31(1)(d), 2187 U.N.T.S. 3, 107
14
8
International Jurists have struggled with numerous unsettled questions related to this defence
for many years. The dispute lies on whether a soldier should be expected to decide the legality
of an order, and, if yes, what method should they use to identify lawfulness.
Understanding what is lawful and what is not is a tedious task. This can be understood from the
comment made by a high-ranking military officer in the US Army soon after a training
programme when he said, "I know that if I ever go to war again, the first person I'm taking is my
lawyer."17
Soldiers are continuously faced with two extreme choices and are left between a rock and a hard
place. According to Dicey, “[a soldier] may be liable to be shot by a court-martial if he disobeys an
order, and to be hanged by a judge and a jury if he obeys it.” 18
What makes it harder for a soldier to make such a decision in the ‘Fog of War’ are the practical
implications that accompany the decision-making process. The Battlefield is undoubtedly a
dangerous resting place, it is difficult to decide the lawfulness of an order due to the heavy time
constraints since it is a constant struggle for survival. The officers may not have adequate
information to make a rational decision and when it is already difficult to decide the legality of
an action in the best of circumstances, it should be almost impossible for a soldier to decide the
lawfulness of his orders in the heat of battle.
Several Judges have attempted to come up with a successful method of evaluating the legality
of an order but almost all these solutions are vague or does not encompass all forms of unlawful
orders. The most famous test is Manifest illegality. However, what is manifest is virtually
immeasurable and therefore too vague to be considered as a metric of evaluating the legality
but courts have attempted to remedy this issue by adopting varied definitions for the term.
In Riggs v State19, the US courts have attempted to provide an objective definition for Manifest
illegality:
“In its substance being clearly illegal, so that a man of ordinary sense and understanding would
know as soon as he heard the order read or given that such order was illegal” 20
A subjective definition for Manifest Illegality was provided in United States v Calley where courts
added the phrase “…under the circumstances” to the previous objective approach.
In recent years, new approaches have been introduced to measure the lawfulness of an order. In
Chief Military Prosecutor v. Malinki and Others (the Kaffr Qassem case) the judges coined a test
referred to as the ‘Black Flag’ metaphor suggesting that the unlawful characteristics of the order
must be extremely palpable for the soldiers to not be allowed to resort to Superior Orders
Colonel Patrick Finnegan, "Operational Law: Plan and Execute" (1996) 76:2 Military Review 29 at 32.
A. V. Dicey, Introduction to The Study of The Law of the Constitution, 10 ed. (1959), 303.
19
Riggs v State of Indiana [1956] Ind. <https://law.justia.com/cases/indiana/supreme-court/1956/29-372-2.html >
accessed 01 October 2021
20
Paul Eden, 'Criminal Liability and the Defence of Superior Orders' (1991) 108 S African LJ 640
17
18
9
Defence. It is a moral measurement rather than a tangible metric system of legality, but it is still
considered a successful approach. The judgement of the Military Court of Appeal of Israel reads
as follows:
“[t]he identifying mark of ‘manifestly unlawful’ order must wave like a black flag above the
order given, as a warning saying ‘forbidden’…an overt and salient violation of the law, a certain
and obvious unlawfulness that stems from the order itself, the criminal character of the order itself
or of the acts it demands to be committed, an unlawfulness that pierces the eye and agitates the
heart, if the eye be not blind nor the heart closed or corrupt.”21
In 1994, the judges in the Canadian Case R. v. Finta22 stated that “essentially obedience to a
superior order provides a valid defence unless the act is so outrageous as to be manifestly
unlawful” suggesting that the order must be so outrageous to be manifestly illegal.
In the High Command Case the judges stated that “…the order must be one that is criminal upon
its face…"23 for such order to be considered manifestly illegal.
From all the above, what must be understood is that there are varying definitions ascribed to
the term ‘manifest’ by judges. The use of this approach is far more reasonable than the previous
approaches of ‘absolute liability’ and ‘absolute defence’. It is almost the middle ground defence.
1. Soldier’s Dilemma
A soldier has no time to think when taking decisions in the battlefield due to the urgency
demanded by the surrounding circumstances and the imminent danger that they are placed in.
They would be risking the lives of their comrades if they hesitate even for a second. Their small
tasks add up to the success of the ultimate master strategy and any mishaps they make would
make it unsuccessful. The functionality of the military is heavily dependent upon obedience and
disobedience comes with a heavy price.
On the opposite side of the same spectrum, complying with an unlawful order would make
them liable for criminal action. Therefore, being in the shoes of a soldier is not an easy task and
the only defence capable of taking this harsh predicament into consideration is the Superior
Orders Defence because it allows the judges the opportunity to strike a perfect balance between
military discipline, individual responsibility and supremacy of law.
Striking the Perfect Balance: Finding the Middle Ground
Danny Orbach, 'Black Flag at a Crossroads' [1957-58] 45 IJMES
<https://www.jstor.org/stable/pdf/43303033.pdf?refreqid=excelsior%3A49c3cacebe2ef125b3d6bf0a308d58fe>
accessed 01 October 2021
22
Her Majesty The Queen v. Imre Finta [1994] 1 RCS 701 <http://www.derechos.org/intlaw/doc/finta.html>
accessed 01 October 2021
23
JOHN JAY DOUGLASS, 'High Command Case: A Study in Staff and Command Responsibility' [1972] 6 TIL
<https://www.jstor.org/stable/40704795> accessed 01 October 2021
21
10
To this end, courts have tried to formulate successful tests to find an approach grounded in the
middle of ‘respondeat superior’ and ‘Absolute Liability’. The Nuremberg Tribunal was of the view
that “the true test, …is not the existence of the order, but whether moral choice was in fact
possible.24" The issue is that anybody at any given point in time has the ability to make a moral
choice, the real problem lies with the outcomes of making the correct moral choice. This
approach also ascribes all soldiers to possess a model moral compass.
In recent years, experts such as Prof. Mark J. Osiel have proposed the use of a reasonableness
standard for the evaluation of accountability under the Superior Orders Defence, it is however,
moving away from the idea of military necessity and favours individualism.
Although, jurists have still not found the quintessential standard that strikes the perfect balance
between the need for military discipline, supremacy of law and individual accountability, they
have been able to address the matter of the defence of superior orders with care and caution so
as to prudently ascribe punishment to defendants seeking such recourse through standards
such as the ‘manifest illegality’ standard.
Other Arguments Against the Existence of the Superior Orders Defence
Severity of International Crime - There are still questions that can be asked to challenge the
existence of Superior Orders Defence in International Criminal Law such as ‘should persons
accused of international crimes be allowed the luxury of waiving their responsibility for their
actions by transferring liability to their superiors?’. For this, it must be observed that it is not the
responsibility of the law to presume or ascribe guilt to the accused prior to a fair hearing,
whatever the crime they are accused of committing.
Mitigating Punishment Instead of Complete Defence - Restricting the Superior Orders Defence
to a consideration for mitigation is an unfair restraint that is grounded on the presumption of
guilt of the defendants based on the severity of the crimes they are accused of.
It must also be observed that the invocation of other established defences (Duress, Necessity,
Mistake of Law and Fact, etc.) is not always tantamount to the evocation of the Superior Orders
Defence, however, the Superior Orders Defence is a unique all-encompassing recourse that
always inevitably invokes the foregoing established defences and it is the only defence that
considers the predicament of subordinate officers under the Soldier’s Dilemma.
Argument on Modern Military Practices – It is accurate to observe that soldiers are no longer
considered to be automatons but it is important to understand that International Criminal Law
tends to deal with the actions of rogue regimes and their Armed Forces and these officers are
still brainwashed and under duress. It is essential to preserve this defence to address the plight
of those officers.
Trials of War Criminals before the Nuremberg Military Tribunals under Allied Control Council (ACC) 1945/6. Vol. I,
pp. 223/4.
24
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