The Defense of Superior Orders - Article 33 of the ICC statute: a departure from customary international law?
Sammanfattning: The defence of superior orders is the answer to what is called the soldier’s dilemma. This is so called since on the one hand, a soldier is bound by national legislation, military practice, and often psychological pressure to unquestioningly follow the orders of his superior. On the other hand, when this order is illegal, he is bound by international law to refuse to follow the order. There are three schools of thought on how to solve this dilemma. For a long time, lower level soldiers were always excused for crimes committed pursuant to orders (i.e. respondeat superior). In the late 19th century and early 20th century this changed to an approach where soldiers could be excused, but only if they did not know, or should not have known, that the order was illegal (i.e. conditional liability). With the creation of the Nuremberg tribunal after the second world war, this theory was abandoned in favour of an approach where following orders never could amount to a complete defence for a breach of International Criminal Law (ICL) (i.e. absolute liability). The absolute liability approach was thereafter used in the ad hoc tribunals created to hold war-criminals responsible for the crimes in Yugoslavia and Rwanda (the ICTY and the ICTR). Then the International Criminal Court (ICC) was established, and in its treaty the defence of superior orders was once again partially recognised in accordance with the theory of conditional liability. According to Article 33 of its statute, the defence of superior orders can be considered as a full defence, but only in cases where the defendant did not know the order was illegal, and the order was not manifestly illegal. Furthermore, the crimes of genocide and crimes against humanity are presumed to be manifestly illegal (leaving the other two “core crimes”, war crimes and the crime of aggression, as the only crimes covered by the provision). This has been criticised as a departure from customary international law, and redundant in that no crime as expressed in the ICC statute ever could be anything but manifestly illegal. It has also been criticised for making a distinction between the different core crimes without basis in law. The aim of this thesis to assess this critique and reach my own conclusions as to whether a departure was made from customary international law with the drafting of Article 33 of the ICC statute, whether the defence should exist in ICL, and if so, how it should be formulated. The theory of respondeat superior is rooted in national law and in the idea of military discipline. It is argued that since soldiers are trained to carry out orders without question, they should be excused if one of these orders amounts to a crime, and only the one issuing the order may be held accountable. As has been convincingly argued by both legal scholars and judges in the tribunals however, this is not tenable. A soldier is not a machine but a thinking human being. Furthermore, reductio ad absurdum, this approach would lead to only Hitler being accountable for the crimes of the holocaust. Therefore, it was rightly abandoned, and has to my knowledge no supporters within the legal debate today. The theory of absolute liability was adopted by the Nuremberg Tribunal, which brought some of the highest-level officials from the Nazi regime to justice. Thereafter it was used in the subsequent proceedings and the ICTY and the ICTR. The rationale behind this theory is that it is irrelevant whether someone was ordered to commit a crime or not. He is equally blameworthy if he commits a crime of his own volition as if he commits it pursuant to an order. If a soldier is threatened at gun-point, or do not know the order is illegal, he could instead rely on defences of duress or mistake. The theory of conditional liability acknowledges that in some cases, especially on the field of battle, it is not always readily apparent to a soldier whether the order received was legal or not. Therefore, it states that a soldier is excused from crimes committed under order, but not if these orders were obviously illegal (sometimes phrased as whether the soldier should have known that the order was illegal), or if he knew that the order was illegal. This approach has been used in the Leipzig trials, and in national military tribunals. In the ICC, this approach is accepted for war crimes and for the crime of aggression, but for the crimes of genocide and crimes against humanity the strict liability approach still reigns. Here, the test is whether the soldier knew the order was illegal, or whether it was manifestly illegal. As to whether this is a departure from customary international law, my answer is in the negative. This is because the Nuremberg charter was created for a very specific and extreme situation, and therefore cannot be considered an expression of customary international law. Rather, I read the provision as excluding the defence for the purposes of trying these high-level officials, for these heinous crimes. As to the argument that the defence should be excluded since no crime within the jurisdiction of the ICC ever could be anything but manifestly unlawful, my answer is once again in the negative. Some of the war crimes outlined in the statute require a complicated set of events, and hypothetically it is not impossible to find some example of when an act constituting the objective elements of these crimes would not be manifestly illegal. Furthermore, to exclude a defence based on an assumption that it “will not be used anyway” seems unnecessary and incompatible with the theory of individual criminal responsibility. For the same reason as above, I do agree with the criticism regarding excluding the crimes of genocide and crimes against humanity from the defence. As to whether the manifest illegality test should be objective or subjective, I believe that it is right to set an objective standard. This is due to the fact that in some cases, especially when it comes to these serious crimes, ignorance should not be an excuse.
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