Practice Relating to Rule 155. Defence of Superior Orders
France’s LOAC Manual (2001) states:
Each individual is responsible for the violations of the law of armed conflicts for which he/she has made himself/herself guilty, whatever the circumstances may be, and even if he/she acted in execution of an order emanating from a superior.
France’s Ordinance on Repression of War Crimes (1944) provided:
Laws, decrees and regulations emanating from the enemy authority, orders or authorizations given by this authority or by authorities depending thereupon or having depended thereupon cannot be invoked as justifying facts in the meaning of the [Penal Code], but only, if ever, as attenuating circumstances or as absolutory excuses.
France’s Penal Code (1992) provides that a person who executes an act pursuant to a command by a legitimate authority shall not be criminally responsible, provided the act was not manifestly illegal.
However, in the chapter dealing with crimes against humanity, the Code provides:
The author of or accomplice to a crime … cannot be released from his/her responsibility for the sole reason of having committed an act … ordered by the legitimate authority. However, [the court] will take into account such circumstance when determining the punishment.
France’s Penal Code (1992), as amended in 2010, states:
The perpetrator or accomplice of a war crime … shall not be relieved of criminal responsibility solely because he committed an act prescribed or authorized by legal or regulatory provisions or ordered by a legitimate authority. However, the court will take this circumstance into account when sentencing.
Furthermore, the perpetrator or accomplice is not criminally responsible if he or she did not know that the order issued by the legitimate authority was unlawful and the order was not manifestly unlawful.
In 2005, in its third periodic report to the Committee against Torture, France stated:
22. In French law, an order by a superior may be invoked in justification of an act that itself constitutes a crime or offence only under the conditions set forth in article 122-4 of the new Criminal Code, which stipulates:
“No criminal responsibility shall attach to a person who commits an act that is prescribed or authorized by a law or regulatory instrument.
No criminal responsibility shall attach to a person who commits an act ordered by a legitimate authority unless that act is manifestly unlawful.”
23. It follows from these provisions that a manifestly unlawful order from a lawful authority cannot in itself justify the commission of an offence by an obedient subordinate. The law cannot in any circumstances order torture, since it expressly prohibits torture. A person in a position of authority who ordered subordinates to commit torture would be giving them a manifestly unlawful order and, under the regulations defining their rights and duties, they would be bound not to obey it. Thus, article 28 of the Act of 13 July 1983 on the rights and obligations of civil servants states that all civil servants must comply with the instructions of their superiors, except where an order is manifestly unlawful and would seriously jeopardize the public interest.
24. Article 17 of the Decree of 18 March 1986 establishing the Code of Ethics of the National Police Force contains an identical provision and adds that “if the subordinate believes that he/she has been given an unlawful order, it is his/her duty to make his/her objections known to the issuing authority, indicating expressly why he/she believes the order to be illegal”.
Article 10 provides that “a civil servant who witnesses prohibited behaviour shall be liable to disciplinary measures if he/she does nothing to stop it or fails to inform the competent authority”.
25. Article 15 of Act No. 72-662 of 13 July 1972 establishing the general military regulations states that:
“Military personnel must obey the orders of their superior officers and are responsible for executing the missions entrusted to them.
However, they may not be ordered to perform and may not perform acts that are contrary to the law, the customs of war or international conventions or that constitute crimes or offences, in particular against the security and integrity of the State.
The personal responsibility of subordinates does not relieve superiors of any of their responsibilities.”
26. Similarly, the Decree of 28 July 1975 establishing the general disciplinary regulations for the armed forces requires obedience only to “orders received in conformity with the law” (art. 7) and stipulates that a subordinate shall not execute an order requiring him/her to perform an act that is manifestly unlawful or contrary to the rules of international law applicable in armed conflict or to duly ratified or approved international conventions (art. 8).
225. Other acts of cruel, inhuman or degrading treatment or punishment are covered in France by the charges applicable to torture. The information given above relating to torture generally thus also applies to them. The obligations set forth in connection with articles 10, 11, 12 and 13, in particular, are valid under the same conditions.