that the order was unlawful; and
3. the order was not manifestly unlawful.
These three conditions are cumulative, and the Statute specifies that any order to commit genocide or a crime against humanity is manifestly unlawful at all times. This ground of defence is thus probably only applicable to persons who were ordered to commit war crimes or, when it will be defined, a crime of aggression. Otherwise, the defence of superior orders can only be used as an attenuating circumstance, for example, to reduce the penalty.
This means of defence has always been controversial. The Charters of the Nuremberg and the Tokyo Tribunals, as well as the Statutes of the ICTY and the ICTR state that the defence of superior orders is not admissible in any situation. It was believed that as the order to commit a crime was in itself unlawful, it could not be used as a justification for the behaviour of a subordinate.
Yet national law in many States has adopted the opposite point of view with regard to the defence of superior orders, and so is in overall conformity with article 33. This means that in most States this ground of defence exists as such and a subordinate cannot be found guilty of the crime unless he or she knew that the order was unlawful or if the order given by the superior was manifestly unlawful. This rule is contained in the codes of military discipline of Germany, the United States, Italy and Switzerland, and the notion of conditional responsibility has been enshrined by the jurisprudence of national tribunals on war crimes. Only a handful of States prohibits the defence of superior orders in their national legislation. Other States take a two-pronged approach: they permit use of the superior orders defence when one of their nationals has been charged, but prohibit it when the accused person was in combat against an enemy or bases their plea on the law of a foreign country.
Complementarity Requirements
It would be prudent for States Parties to make some changes to their national law if this is required to ensure that any such defence is no broader than article 33. If a national judicial system were to acquit an individual because it had a significantly lower threshold for superior orders, this could be seen as a means of shielding the person from the appropriate criminal responsibility. For example, the defence of superior orders may not be used in cases where there was an order to commit a crime against humanity or genocide.
Implementation
States Parties to the Statute do not have to change their national legislation if it does not provide this ground of defence to an accused person. In States where the national law provides this ground of defence, an amendment may need to be made making it inadmissible when the order in question concerned the commission of a crime against humanity or genocide.
Still, States Parties desiring to harmonize criminal procedures could adapt their national law to the Statute's provisions. In this case, the following adjustments may need to be made:
- declare the defence of superior orders generally inadmissible;
- declare it admissible only when the accused person could show that his or her case conformed to these three cumulative conditions:
1. the legal obligation to obey the order;
2. he or she did not know the order was unlawful;
3. the order was not manifestly unlawful;
- declare the defence of superior orders as inadmissible when the accused person received an order to commit a crime against humanity or genocide;
- declare that the defence of superior orders should be subject to the same rules, whether the order in question was given by a military or a civilian authority.
4.5 Individual Criminal Responsibility and Inchoate
Offences Provided Under the Statute
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