In This Article Expand or collapse the "in this article" section Superior Orders

  • Introduction
  • History of the Defense
  • Commentaries on (the Drafting History of) Article 33 ICC Statute
  • Defense Per Se or Factual Element Relevant to other Defenses
  • Superior Orders and the Defenses of Mistake and Duress
  • Superior Orders in National (Case) Law
  • Case Law
  • Case Law Commentaries
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International Law Superior Orders
by
Annemieke van Verseveld
  • LAST REVIEWED: 28 April 2016
  • LAST MODIFIED: 28 April 2016
  • DOI: 10.1093/obo/9780199796953-0133

Introduction

“Superior orders” refers to a defense in International Criminal Law (ICL). The gist of this defense is that a subordinate is not criminally liable for the crimes he or she committed in obedience to the orders of a superior. To have a separate defense available to subordinates may be justified on the basis of the fact that military discipline and hierarchy are essential features of any military organization. Furthermore, a subordinate may be faced with a difficult dilemma if uncertain about the lawfulness of the order received: the subordinate may be disciplined or even incur criminal responsibility for disobeying a lawful order, but if an unlawful order is obeyed that subordinate may be held criminally liable for the crimes therewith committed. On the other hand, when the crimes the superior order induces are so serious that anyone should know about their unlawfulness, it could be argued that the subordinate should not be able to invoke the defense of superior orders. Throughout the legal history of this defense, three different approaches have been developed: the respondeat superior doctrine, the absolute liability doctrine, and the conditional liability doctrine. According to the respondeat superior doctrine, only the superior is accountable for the commission of the crime and not the subordinate who could successfully invoke a defense of superior orders because of a general duty to obey the orders of superiors. In the second approach, the absolute liability doctrine, superior orders are no defense; superior orders can only be considered in mitigation of punishment. The rationale of this doctrine is that the obligation to obey superior orders is generally limited to lawful orders only. According to the third approach, the conditional liability doctrine, acting on superior orders does not relieve the subordinate of criminal responsibility unless he or she did not know and could not reasonably have been expected to know that the order was unlawful. The first approach, the respondeat superior doctrine, can be found in the 1914 editions of the British Manual of Military Law and the United States Rules of Land Warfare. At Nuremberg this doctrine was rejected since—reductio ad absurdum—it would lead to the result that the only person who could be held criminally liable for the crimes committed by the Nazi regime would be Hitler himself. Instead, in the statute of the Nuremberg Tribunal the absolute liability doctrine was adopted. The absolute liability doctrine can also be found in the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The codification of the superior orders defense in Article 33(1) of the Rome Statute of the International Criminal Court (ICC) is based on the conditional liability doctrine. It provides that acting on superior orders does not relieve a person from criminal responsibility unless that person was under a legal obligation to obey, he or she did not know the order to be unlawful, and the order was not manifestly unlawful. Paragraph 2 of Article 33 excludes, however, the possibility of invoking the defense of superior orders when the acts ordered constitute genocide or crimes against humanity; in that case a rule of absolute liability applies.

General Overviews

Throughout its legal history, the superior orders defense has either been treated as a complete defense per se (under the respondeat superior doctrine), as a ground for mitigation of punishment (under the absolute liability doctrine), or as a complete defense under certain conditions (under the conditional liability doctrine). One of the most debated issues in the legal discourse is whether or not Article 33 of the Rome Statute of the International Criminal Court (ICC), which provides for a superior orders defense in case of war crimes, forms a departure from customary international law. An important question raised in this debate is whether superior orders constitute a separate defense or should be treated as a factual element relevant to other defenses, specifically duress and mistake (of fact or law). Besides its alleged departure from customary international law a source of criticism has been the requirement of the order not to have been “manifestly unlawful” in Article 33(1)(c) ICC. The question is how the manifestness of the unlawfulness should be determined and whether this is an objective or a subjective criterion. The citations under the current heading all cover these issues from the legal debate on superior orders, either comprehensively or more succinctly. The first category of general overviews contains Classic Works devoted to this subject. The second category contains materials that give a Comprehensive Survey of the subject either in the form of an in-depth article on superior orders or as part of a monograph on a broader subject but in which much attention is also being devoted to the superior orders defense. And in the third category there are materials that deal with superior orders in a brief and succinct way, providing the reader with a Brief Introduction to the main issues involved.

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