the jus in bello,
and were subsequently faced with claims of ‘superior orders’, they themselves first
encountered the aforementioned dilemma of the military subordinate. As a result,
two schools of thought emerged on the subject. The first, premising its argument
primarily on notions of justice, opined the invocation of superior orders to constitute
a complete defence,
19
while the second articulated a doctrine of ‘absolute liability’
which gave no merit to claims of obedience.
20
Amidst these two extremes a more
conciliatory position was adopted at both a national and international level. From
the 1845 Prussian Military Code to the
Leipzig
trials at the close of the First World
War a consistent principle has emerged recognising the relevance of ‘moral choice’
in such circumstances. In accordance with the ‘moral choice’ principle, a subordinate
would be punished, if in the execution of an order, he or she went beyond its scope,
or executed it in the knowledge that it related to an act which aimed at the commission
16
ICC Rules of Procedure and Evidence, r 80(1).
17
Ibid,
r 80(2) and (3).
18
Y Dinstein,
The Defence of Obedience to Superior Orders in International Law,
1965, Leiden: Stjthoff, pp
5–7. See generally MJ Osiel, ‘Obeying Orders: Atrocity, Military Discipline, and the Law of War’, 86
California Law Review
(1998), 939; MJ Osiel,
Obeying Orders,
1999, Brunswick: Transaction.
19
1845 Prussian Military Code; see also the adoption of the doctrine of
‘respondeat superior’
by
Oppenheim in his early treatises: L Oppenheim,
International Law: Disputes, War and Neutrality,
1912,
pp 264–70; H Kelsen, ‘Collective and Individual Responsibility in International Law with Particular
Regard to the Punishment of War Criminals’, 31
California Law Review
(1943), 556–58.
20
R v Howe and Others
[1987] 1 AC 417,
per
Lord Hailsham, p 427. See also
op cit,
Dinstein, note 18, pp
68–70. Contemporary expressions of this doctrine, but for the varying reasons described below, are
also the Charter of the International Military Tribunal at Nuremberg, Art 8, Control Council Law No
10, Art II(4)(b), as well as the ICTY and ICTR Statutes, Arts 7(4) and 6(4), respectively. In all these
instruments, a successful plea of superior orders could serve to mitigate punishment.
International Criminal Law
132
of a crime and which the subordinate could avoid.
21
The German Supreme Court
affirmed this principle at the
Leipzig
trials, on the basis of Art 47 of the 1872 German
Military Penal Code, which provided that superior orders were of no avail where
subordinates went beyond the given order or were aware of its illegality.
22
In the
Dover Castle
case, the defendant Karl Neuman, the commander of a German
submarine, claimed he was acting pursuant to superior orders when he torpedoed
the
Dover Castle,
a British hospital ship, according to which orders the Germans
believed that Allied hospital ships were being used for military purposes in violation
of the laws of war. The accused was acquitted because he was not found to have
known that the
Dover Castle
was not used for purposes other than as a hospital ship.
23
In the
Llandovery Castle
case, however, involving the torpedoing of a British hospital
ship and subsequent murder of its survivors, the Supreme Court did not readily
accept a defence of superior orders. It emphatically pointed out that although
subordinates are under no obligation to question the order of their superior officer,
this is not the case where the ‘order is universally known to everybody, including
also the accused, to be without any doubt whatever against the law’.
24
Thus, the ‘moral choice’ principle encompassed an objective test, whereby an
order whose illegality was not obvious to the reasonable man and was executed in
good faith could be invoked as a viable defence. This was later also termed ‘manifest
illegality’ principle. Where the subordinate is aware of the unlawfulness of the order,
although the order itself is not manifestly illegal, the subjective knowledge of the
accused is relevant in the attribution of liability, as any other conclusion would lead
to absurdity. It would, moreover, disregard the significance of
mens rea
in the definition
of crimes. Similarly, no unrebuttable presumption exists in this field of law suggesting
that universal knowledge of the order’s illegality will automatically prove the
accused’s awareness of it.
25
Following the end of the Second World War, both the
‘moral choice’ and the ‘manifest illegality’ test were abandoned by the Allies in their
quest for swift military justice. As already mentioned, the doctrine of absolute liability
prevailed in the Nuremberg Charter, Control Council Law No 10, and did not feature
either in the Genocide Convention
26
or the 1949 Geneva Conventions.
27
On this basis
alone, it has wrongly been asserted that since 1945 the defence of superior orders
has been abrogated.
28
The fallacy of this argument will be proven shortly. For one
thing, international tribunals constitute self-contained systems, whose sources of
law do not necessarily follow the evolution of law outside of that system; rather,
21
USA v Ohlendorfand Others
(
Einsatzgruppen
case) (1949) 15 ILR 656; 15 ILR 376.
22
Cited in
USA v Von Leeb and Others
(
High Command
case) (1949) 15 ILR 376.
23
Dover Castle
case, 16
AJIL
(1921), 704.
24
Llandovery Castle
case, 16
AJIL
(1922), 708.
25
Op cit,
Dinstein, note 18, p 28.
26
1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.
27
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field (No I), 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick,
and Ship-Wrecked Members of Armed Forces at Sea (No II), 75 UNTS 85; Convention Relative to the
Treatment of Prisoners of War (No III), 75 UNTS 135; Convention Relative to the Protection of Civilian
Persons in Time of War (No IV), 75 UNTS 287.
28
P Gaeta, The Defence of Superior Orders: The Statute of the International Criminal Court Versus
Customary International Law’, 10
EJIL
(1999), 172. For the better view that the ICC Statute provision
on superior orders is in conformity with customary law, see C Garraway, ‘Superior Orders and the
International Criminal Court: Justice Delivered or Justice Denied’, 836
IRRC
(1999), 785.
Chapter 6: Defences in International Criminal Law
133
their legal route is drawn by their drafters. The Nuremberg Tribunal was not an
exception to this rule, since the Allies did not want to be faced with mass claims of
superior orders, all leading back to Hitler. However, the Tribunal took it for granted
that all of the accused were fully aware of the orders received, and stated:
The true test, which is found in varying degrees in the criminal law of most nations,
is not the existence of the order, but whether
moral choice
was in fact possible [emphasis
added].
29
Similarly, subsequent Second World War military tribunals, especially those applying
Control Council Law No 10 while upholding the validity of Art II(4)(b), did not also
fail to mention that to plead superior orders one must show an excusable ignorance
of their illegality.
30
The tribunals in these cases made it clear that if a defence was
available to an accused under such circumstances, that would be the defence of
duress, which would be brought about as a direct consequence of the severity and
force of the order. The concept of duress will be examined below in another section.
Further evidence of the existence of the duress-related ‘moral choice’ doctrine re-
emerged in 1950, when the International Law Commission (ILC) codified, after a
request by the General Assembly, the Principles of the Nuremberg Charter and
Tribunal.
31
Principle IV provided, or more importantly, reaffirmed, that obedience
to superior orders did not relieve the subordinate from responsibility, provided a
‘moral choice’ was in fact available. The concept of ‘moral choice’ in Principle IV is
somewhat removed from the defence of superior orders, constituting as it does a
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