CHAPTER
ONE
GENERAL
INTRODUCTION
1.0.0 Introduction
Doctrine of Superior
orders refers to a defense under International Humanitarian Law (IHL). The essence
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[1].
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[2].
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[3].
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.
Under international
humanitarian law (IHL) commanders have a duty to ensure that their troops
respect that body of law during armed conflict and hostilities. Failure to do
so may give rise to liability. A mere ‘‘breach of duty’’, whereby the commander
has not fulfilled the responsibilities expected of his rank, is usually dealt
with through disciplinary action[4].
However, where a commander fails to
prevent or punish violations of IHL by subordinates, criminal proceedings are
likely, and the punishment to be meted out will reflect the gravity and nature
of the crime committed by the subordinate[5].
Indeed,
because of their position of command over troops and subordinates and their
influence and responsibilities as superiors, military commanders and other
superiors have an affirmative duty to act in preventing violations of IHL by
their subordinates. In essence, the commander acquires liability by default or
omission. Having evaded his responsibility as a superior to intervene in
ensuring the respect of IHL, he will be seen as accountable for his
subordinates and, in certain circumstances, as even more culpable than them.
This does not mean that subordinates are absolved from all blame: they too as
individuals are bound to respect IHL and will be held personally accountable
for breaches.
1.1.0 Background to the Study
Throughout its legal
history, the doctrine of superior orders 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 regard 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.
In
armed conflicts, too often there are gross violations of international
humanitarian law, and atrocities are committed against civilians and members of
the armed forces alike. On a large scale, ethnic cleansing, religious
prosecution, and displacement of large communities of people have taken place.
Statistics show that some 76 million people lost in armed conflicts.
To illustrate some of these losses, for
example, as early as 1900 to 1923, the Turkish, in the first known ethnic
cleansing, exterminated some 2 million Armenians, Greeks, Nestorians and
Christians. Similarly, millions of
Germans were killed by the Polish during the German retreat in October of
1944.10 Also, in East Pakistan (now Bangladesh), the Pakistani regime under
General Agha Mohammed Yahya Khan in 1971 killed 1.5 million Bangali people,
creating 10 million refugees who fled to India[6].
The Japanese were alleged to have
murdered some 3 million to 10 million prisoners of war from 1937 to the end of
Second World War. During the Second World War, some 6 million Jews were
exterminated by the Third Reich; and during 1975 and 1979, approximately 1.7
million Cambodians were killed by Pol Pot and his Khmer Rouge soldiers[7].
In more recent years, thousands of
people have been killed in Bosnia, Rwanda, Former Yugoslavia and many other countries: even to date, there
are ongoing efforts to identify and correct records for all the deaths that may
have occurred.
These are wholly carried out by obedient soldiers and
the thoughts hold true for all military commanders and the armed forces. They
would prefer to have soldiers who simply follow directives and do all they can
to defeat the enemy[8]. They are not concerned about the morality of the
conflict, simply seeing themselves as soldiers under a directive to accomplish
a mission under any circumstances.
Nothing can be better for a commander than to see
soldiers who are not concerned with ethics and moral issues, or the legality of
the orders, but who perform and accomplish task as directed.
The
more conflicts that are experienced, the more occasions where the defence of
obedience to superior orders has been pleaded by soldiers in defence of
criminal acts and atrocities.
Many
scholars have argued that to a certain extent, there exists a legal defence to
criminal acts or atrocities when committed in obedience to a superior. Soldiers
have also believed that they are immune from criminal responsibility when they
act in obedience to orders from a higher authority. To date, however, no
soldier or person charged for atrocities or criminal offences relating to obedience
to superior orders has been successful in using obedience to superior orders as
the only defence, rather more success has been gained by advancing a defence of
duress and it is on this ground that this study examines the legal framework of
the doctrine of superior order under international humanitarian law.
1.2.0 Objectives of the Study
The main objective of this study is to examine
the legal framework of the doctrine of superior order under international
humanitarian law.
The specific objectives of the study are;
1. To discuss the key legal elements established under
the doctrine of superior order
2. To
question the rationale behind the doctrine of Superior Order.
3. To determine some of the challenges faced in the
application and interpretation of the Doctrine of Superior Order.
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[1]
Garner, James W (2015) “Punishment of Offenders Against the Laws and Customs of
War, 14 American Journal of
International Law, 70, 80 - 85.
[2]
Gaeta, Paola (2009)“The Defence of Superior Orders: The Statute of the
International Criminal Court verses Customary
International Law” 10 European Journal
of International Law, 172.
[3]
Dormann K (2003) Elements of War Crimes under the Rome Statute of the
International Criminal Court Cape Town: Cambridge University Press
[4]
Beckman, O. (2015) Armed Intervention. Pursuing Legitimacy and the Pragmatic
Use of Legal Argument, Lund: Lund University
[5] Ibid
[6] Nye, J. S.
(2003) Understanding International Conflicts. An Introduction to Theory and
History, 4PthP ed., New York, London: Pearson Education
[7] Kalshoven F
(2007) Reflections on the Law of War: Collected Essays The Netherlands: Martinus
Nijhoff Publishers
[8] Ibid
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