THE WEST BENGAL NATIONAL UNIVERSITY OJ JURIDICAL SCIENCES

The Defence of
Superior Orders and
the Rome Statute
International Criminal Law Project
Yashaswi Kant
210043

Contents

TABLE OF AUTHORITIES...........................................................................................................2
INTRODUCTION...........................................................................................................................3
INCEPTION AND DEVELOPMENT............................................................................................4
WORLD WAR II AND BEYOND..................................................................................................5
ROME STATUTE............................................................................................................................7
CONCLUSION..............................................................................................................................10

TABLE OF AUTHORITIES

Articles

[2]

Althea Jenkins Webber, International Morality and the Supreme International Crime: The
Precedent of.................................................................................................................................6
Charles Garraway, Superior Orders and the International Criminal Court: Justice Delivered or
Justice Denied?, International Review of the Red Cross, No. 836 (1999)..................................6
Edoardo Greppi, The Evolution of Individual Criminal Responsibility Under International Law,
International Review of the Red Cross, No. 835 (1999).............................................................3
Hilaire McCoubrey, From Nuremberg to Rome: Restoring the Defence of Superior Orders, The
International and Comparative Law Quarterly, Vol. 50, No. 2 (Apr., 2001), 386- 394...............4
Natalia M. Restivo, "Defense of Superior Orders in International Criminal Law as Portrayed in
Three Trials: Eichmann, Calley and England", Cornell Law School Graduate Student Papers
(2006). Paper 18...........................................................................................................................2
Paola Gaeta, The Defence of Superior Orders: The Statute of the International Criminal Court
versus Customary International Law, European Journal of International Law, Vol. 10 (1999),
190...............................................................................................................................................9
International Charters
Article 28, UN General Assembly, Rome Statute of the International Criminal Court...................8
Article 33 of the Charter of the International Military Tribunal......................................................8
Article 8, Charter of the International Military Tribunal.................................................................5

INTRODUCTION

The instant paper shall be an attempt to holistically analyse the defense of superior orders with
respect to the Rome Statute. The paper shall primarily be divided into two parts; the first part
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shall address the history, origin and development of this defense. It will also look at how the
London Charter along with the Nuremberg Trial altered the international legal attitude towards
this defence. The second part shall be a critical analysis of Article 33 of the Rome Statute and its
practical application.
Superior orders as a defence is a supplication in court that a subordinate should not be held liable
for his actions which were ordered by a superior. It can also be understood as the assertion that a
subordinate acted in accordance with the orders by a superior officer (or by his Government) and
that refusal to obey the order would result in dire consequences. 1 The defense has perpetually
been a point of contention in the International legal community. The problem arises as under
national law, a subordinate is bound to follow the commands of their superiors and certainly
cannot question the legality of such orders. Now, when a subordinate is ordered something that
violates international law, there originates a conflict between the duty of military obedience and
the demand and requirement to uphold principles of international law. Moreover, there has also
been a general lack of consistency in international law where the defence of superior orders is
concerned. Since the earliest times, cases permitted this defence to a large extent, but the London
Charter and the Nuremberg Tribunal introduced a paradigm shift in International law circles and
completely restricted this defence to only being allowed to mitigate sentences. Currently, Article
33 of the Rome Statute has permitted this defence subject to the fulfillment of criteria laid down
in the Article.

INCEPTION AND DEVELOPMENT

1Natalia M. Restivo, "Defense of Superior Orders in International Criminal Law as Portrayed in

Three Trials: Eichmann, Calley and England", Cornell Law School Graduate Student Papers
(2006). Paper 18
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The trial of Peter von Hagenbach in the year 1474 is considered the first ever recorded case
which deals with the defence of superior orders. 2 In that case, Von Hagenbach was produced
before a court constituting 28 judges from the states comprising the Roman Empire. Hagenbach
was facing charges which included murder, rape and perjury. During the trial, he pleaded, among
other defenses, that Is it not known that soldiers owe absolute obedience to their superiors? 3
However, all his pleas were declined and he was sentenced to death. This trial witnessed the
development of the concept of command responsibility 4 which is associated with the defense of
superior orders.
Moreover, in later times, the case of R v. Thomas,5 A Marine sentry serving on board had been
ordered by his superior to forestall crafts from nearing the ship. When an approaching craft
refused to identify itself, the sentry shot and killed one of the occupants. A trial ensued where the
sentry pleaded the defence of superior orders. The jury, found him guilty, but urged strongly that
he should be pardoned. A century later, in R v. Smith,6 during the Second Boer War, an officer
ordered his subordinate to shoot a civilian who refused to carry out the officers requests. In the
trial that followed, the subordinate was acquitted. In doing so, the court laid down the principle
of the ought to know doctrine that would go on to eclipse the international legal thought uptill
the Nuremberg Trials. The court explained that If a soldier honestly believes he is doing his
duty in obeying the commands of his superior, and if the orders are not so manifestly illegal that
2 Edoardo Greppi, The Evolution of Individual Criminal Responsibility Under International
Law, International Review of the Red Cross, No. 835 (1999)
3 Id.
4 Command Responsibility holds that a commanding officer, being aware of a human rights
violation or a war crime committed by troops in his charge, will be held criminally liable when
he does not take action to prevent such human rights violations or war crimes.
5 (1816) 4 M&S, 41 as cited in Hilaire McCoubrey, From Nuremberg to Rome: Restoring the
Defence of Superior Orders, The International and Comparative Law Quarterly, Vol. 50, No. 2
(Apr., 2001), 386- 394
6 (1900) 17 S.C.R., 561 as cited in Id.
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he must or ought to have known that they are unlawful, the private soldier would be protected by
the orders of his superior officer.7
Further decisions regarding superior orders came soon after World War I. In the Dover Castle
case,8 a British medical ship was torpedoed by a German U Boat. When the commander of the U
boat was brought before a court, he claimed that he had instructions that Allied medical ships
were illegally being used to transport troops. Thus, they were no longer in the protected status as
per the 1907 Hague Convention VIII. This contention was founded on a false identification of
personnel from the Canadian Military Medical Corps, The uniform of which resembles that of
British infantry officers.9 The verdict was not guilty. The court concluded that there existed no
sound reason for the commander to question the orders given. It highlighted the principle that a
subordinate who acts in accordance with an order is liable when he knows that his actions would
involve a civil or military crime. A similarly placed case was the Llandovery Castle case.10
Another Medical ship was sunk by a U Boat in June 1917. Furthermore, the submarine then shot
dead the survivors, in an attempt to conceal the sinking. The commander of the submarine fled.
The subordinates advanced the plea of superior order before the court. The court rejected this
contention. It held that the order to kill the survivors was so patently unlawful that the defence of
superior orders could not be allowed to stand.

WORLD WAR II AND BEYOND

The Second World War altered the international legal scene significantly. The world had
witnessed massacre and violence on an epic scale. The Allied Powers came together and
constituted two tribunals for the trial and punishment of war criminals; the International Military
7 Id.
8 (1922) 16 American Journal of International Law, 704
9 Hilaire McCoubrey, From Nuremberg to Rome: Restoring the Defence of Superior Orders, The
International and Comparative Law Quarterly, Vol. 50, No. 2 (Apr., 2001), 387
10 Supra note 8, 707-708
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Tribunal, which would address the war crimes perpetrated in Europe and the International
Military Tribunal for the Far East, for the trial and punishment of those who committed war
crimes in the Far East and Pacific. It must be remembered that the German Third Reich and the
Japanese Rulers were highly authoritarian states.11 The orders and instructions from superiors
were not, in theory, open to question.12 The Germans enshrined this idea under the formal
expression of Fuhrerprinzip, or Leadership Principle, a principle according to which each level
of the state setup was controlled by and directly accountable to the next level in the hierarchy
with the whole system culminating in subordination of the Fuhrer.13 Hence, it was predictable
that defendants might plead the defence of superior orders. 14 Allowing such a defence to hold
considering the German system, of inbuilt hierarchy all the way up to Hitler, would be fruitless
as Hitler had committed suicide by then. 15 Hence, Article 8 of the Charter of the International
Military Tribunal read, The fact that the Defendant acted pursuant to order of his Government
or of a superior shall not free him from responsibility, but may be considered in mitigation of
punishment if the Tribunal determines that justice so requires. 16 This effectively did away with
the plea of superior orders from being utilized by the accused at the Nuremberg Trials. The same
technique was optimally used in the International Military Tribunal for the Former Yugoslavia,
the International Military Tribunal for Rwanda and also of the Special Court for Sierra Leone. 17

11 Supra note 9, 389

12 Id.
13 Id.
14 Id.
15 Id.
16 Article 8, Charter of the International Military Tribunal, available at:
http://avalon.law.yale.edu/imt/imtconst.asp#art8, Last visited on October 15, 2012
17 As seen in http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule155, last
visited on October 15, 2012
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This defence was raised at the trials of Adolf Eichmann in Israel 18 and Alfredo Astiz in
Argentina.19 The defence was adjudicated as untenable.
The reason for the acceptance of the Nuremberg Principle with such a solid standing in
international law can be attributed to a variety of factors. Firstly, as back as December 1946, the
UN General Assembly adopted the Resolution 95 (I), entitled Affirmation of the Principles of
International Law Recognized by the Charter of the Nuremberg Tribunal which was passed by a
unanimous vote.20 Further, the UN General Assembly also affirmed to the principles of
international law recognized by and enshrined under both the Charter and the Judgment of the
Nuremberg Tribunal. This was a significant step as it stood for the General Assemblys view that
the Tribunal had taken into account the existing and correct principles of international law.21
However, it is pertinent to point out that, according to some commentators, when the London
Charter was signed; the international community has struggled to find a way of reconciling the
strict Nuremberg criterion with the harsh realities of a military life. 22 Examples of such difficulty
came across during the Vietnam War, where members of the United States Army were
responsible for the murder of up to five hundred Vietnamese civilians including women and
babies in the hamlet of My Lai. This My Lai Massacre caused a national and international
outrage and culminated in the charging of twenty six US soldiers. However, among them also,
only and only, Second Lieutenant William Calley, was tried and punished. All other soldiers who
were also charged with committing the heinous crimes but were under his command and
authority were acquitted.23 This was in clear violation to the Nuremberg Principles. The standars
observed by the United States were much more lenient and easy than the one accepted and
established at the trials of Nazi war criminals. It has been, since then, argued by some that this
18 Supra note 1
19 Id.
20 Supra note 2
21 Id.
22 Charles Garraway, Superior Orders and the International Criminal Court: Justice Delivered
or Justice Denied?, International Review of the Red Cross, No. 836 (1999)
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effectively weakened the position that was installed by the Allied Powers during the Nuremberg
Trials.

ROME STATUTE

When writing on the defence of superior orders with respect to the Rome Statute, two relevant
provisions are of extreme importance. One of them is Article 28 which lays down the concept of
Command Responsibility. Article 28 reads as follows,

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the
Court:
(a)

A military commander or person effectively acting as a military commander shall be criminally responsible

for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control,
or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over
such forces, where:
(i)

That military commander or person either knew or, owing to the circumstances at the time, should have

known that the forces were committing or about to commit such crimes; and

(ii)

That military commander or person failed to take all necessary and reasonable measures within his or her

power to prevent or repress their commission or to submit the matter to the competent authorities for investigation
and prosecution.
(b)

With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be

criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise control properly over such subordinates,
where:
(i)

The superior either knew, or consciously disregarded information which clearly indicated, that the

subordinates were committing or about to commit such crimes;

23 Althea Jenkins Webber, International Morality and the Supreme International Crime: The Precedent
ofNuremberg
and
American
Intervention
in
Vietnam,
April
2008,
available
at
dspace.nitle.org/bitstream/handle/10090/6456/s10hist2008webber.pdf , last visited on October 16, 2012

[9]

(ii)

The crimes concerned activities that were within the effective responsibility and control of the superior;

(iii)

The superior failed to take all necessary and reasonable measures within his or her power to prevent or

and

repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 24

Article 28 effectively ensures that where there is an instance of an unlawful order which is
innocently obeyed, the liability lies with the superior who issued the order. It also deals
efficaciously with the concern of command responsibility by providing that military commanders
for this purpose are people who functionally exercise such command and will normally be held
liable for violations committed within their area of jurisdiction. 25 It is important to add here that
even if the subordinate is held liable owing to the patent illegality of the order which was
complied with, the superior who issued the order will still be liable.26
The part of the Rome Statute that explicitly deals with the defence of superior orders is Article
33. Article 33 reads as follows,
1.The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility
unless:
(a)

The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)

The person did not know that the order was unlawful; and

(c)

The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. 27

24 Article 28, UN General Assembly, Rome Statute of the International Criminal Court (last
amended January 2002), 17 July 1998, A/CONF. 183/9, available at:
http://www.unhcr.org/refworld/docid/3ae6b3a84.html, last visited on October 16, 2012
25 Supra note 9, 393
26 Id.
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It can be ascertained that Article 33 provides for what could be inferred as a balanced approach
between the old ought to know doctrine followed earlier and the recent Nuremberg Principle.
The provision does not completely do away with the use of this defence and thereby protects
personnel who have been inadvertently led into illegal conduct which was neither comprehended
nor intended. In the Rome Statute, any defence against charges of genocide and crimes against
humanity have been withdrawn whereas a partial leeway seems to have been permitted against
charges of war crimes. The three requirements determined by Article 33 (1) are cumulative and
not disjunctive. This places a high standard of burden to prove even for the defence to even be
considered. In the beginning, the accused shall be under a legal duty to obey orders; a mere
moral obligation will not suffice. The principles of command responsibility were later extended
to civilians as well. Therefore, government or military people who carry out instructions which
amount to war crimes are not protected unless under some legal compulsion. 28 Even if this block
is surpassed, the defence is tenable only if the accused was unaware that the order was
illegitimate and that the order was also not patently illegal.29 In addition to this, Article 8 of the
Rome Statute also provides for a highly comprehensive list of the acts constituting war crimes.
This results in further limitation of the ambit of the defence of superior order as incorporated in
Article 33. Therefore, the inclusion of Article 33 in the Rome Statute can be seen as a more
balanced affirmation and in accordance with the spirit of the framers of the Charter of the
International Military Tribunal and also of the judgments which espoused this principle during
the Nuremberg trials.

CONCLUSION

Article 33 deserves appreciation for a variety of reasons. Primarily, the possibility of having the
defence of superior orders to the worst crimes like Genocide etc. has been done away with.
Moreover, it has inverted the presumption that is generally observed and followed in national
27 Supra note 19, Article 33 of the Charter of the International Military Tribunal
28 Supra note 17
29 Id.
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laws; the approach similar to the older ought to know doctrine. 30 National laws provide that, by
and large, that the plea of superior orders is a defence, after which the set out the requirements
given out are met. Consequently, it is for the prosecution to establish the absence of these
requirements.31 Contra wise, under Article 33, there is first the presumption that the plea of
superior orders is not a valid defence, and then further, the requirements, which have to be
fulfilled, are laid down for the plea to be accepted.32 Therefore, under the Statute, the onus has
been shifted to the defence to prove that those requirements existed and that the standards
imposed by them were also met. It is felt that the internalisation of Article 33 in letter and spirit
into the Rome Statute has been a step ahead in international law since it helped to effectuate the
general principles of international criminal law as much as possible into lex scripta, thereby
providing for a better safeguard to the rights of the accused. 33 It should be noted that the Statute
has been accused for being contradictory to the standards expressed by the Nuremberg Tribunal.
As on one hand, Article 33 provides for the validity of the defence in cases of war crimes, once
the standards set thereunder are met. On the other hand, Article 8 sets out an exhaustive list of
war crimes, which addressed acts that are unimpeachably and blatantly criminal. How is it
possible that an order to commit such crimes specifically been mentioned in the Rome Statute is
not patently illegal? How come subordinates are not required to recognize the illegality of
actions that have been specifically mentioned? This is a contradiction which remains
However, the Rome Statute has to be credited and the codification of the defence of superior
orders extracts centuries of evolving legal thought and discussions and developments into an
effective provision in international criminal law.

30 Paola Gaeta, The Defence of Superior Orders: The Statute of the International Criminal
Court versus Customary International Law, European Journal of International Law, Vol. 10
(1999), 190
31 Id.
32 Id.
33 Id.
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