القاعدة ذات الصلة
Canada
Practice Relating to Rule 155. Defence of Superior Orders
Canada’s LOAC Manual (1999), referring to the Finta case, provides:
The fact that an accused person acted pursuant to an order of a Government or a superior does not relieve this person of criminal responsibility … However, in some cases the fact that an accused acted pursuant to a superior order may be considered in mitigation of punishment. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 28.
The manual further states: “It is no defence to a war crime that the act was committed in compliance with an order.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-5, § 33.
The manual adds: “An act … performed in compliance with an order which is manifestly unlawful to a reasonable soldier given the circumstances prevailing at the time does not constitute a defence and cannot be pleaded in mitigation of punishment.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-5, § 34.
Canada’s Code of Conduct (2001) provides:
It must be remembered that if you are charged for carrying out a manifestly unlawful order, it will not be a defence to say that you were only following orders. This is why leaders have an obligation to provide clear lawful commands. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, § 5.
The Code of Conduct adds:
Disciplined personnel do not commit war crimes or breach the Law of Armed Conflict. They understand the nature of a lawful command and are always conscious that they must carry out their orders in a manner consistent with the law and the goal of the overall mission. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, § 6.
Canada’s LOAC Manual (2001) states in its chapter on “War crimes, individual criminal liability and command responsibility”:
1610. Who can be prosecuted and punished for war crimes
5. The fact that an accused person acted pursuant to an order of a Government or a superior does not relieve this person of criminal responsibility. As Mr. Justice Cory stated in the Supreme Court of Canada case of R. v. Finta, “… it is the commander who gives the orders who must accept responsibility for the consequences that flow from the carrying out of his or her orders.” However, in some cases the fact that an accused acted pursuant to a superior order may be considered in mitigation of punishment.
1614. Duress
1. Persons accused of war crimes are entitled to plead that they acted under duress. It may be, for example, that such persons were under an immediate and real fear for their own lives. This would be the exception rather than the rule as it would be very difficult to prove. It would not be sufficient, however, that they were threatened with subsequent disciplinary or punitive action if they failed to commit the act in question, although in such circumstances the threat may be considered in mitigation of punishment.
1615. Superior orders
1. It is no defence to a war crime that the act was committed in compliance with an order.
2. An act is performed in compliance with an order which is manifestly unlawful to a reasonable soldier given the circumstances prevailing at the time does not constitute a defence and cannot be pleaded in mitigation of punishment. In R. v Finta the Supreme Court of Canada considered the question of when an order should be considered manifestly unlawful. Mr. Justice Cory stated, “It must be one that offends the conscience of every reasonable, right thinking person: it must be an order which is obviously and flagrantly wrong.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1610.5, 1614 and 1615.1-2.
Canada’s Code of Conduct (2005) provides:
It must be remembered that if you are charged for carrying out a manifestly unlawful order, it will not be a defence to say that you were only following orders. This is why leaders have an obligation to provide clear lawful commands. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 11, § 5.
The Code of Conduct adds:
Disciplined personnel do not commit war crimes or breach the Law of Armed Conflict. They understand the nature of a lawful command and are always conscious that they must carry out their orders in a manner consistent with the law and the goal of the overall mission. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 11, § 6.
In its judgment on appeal in the Finta case in 1994, Canada’s Supreme Court recognized that:
The defence of obedience to superior orders and the peace officer defence are available to members of the military or police forces in prosecutions for war crimes and crimes against humanity. Those defences are subject to the manifest illegality test: the defences are not available where the orders in question were manifestly unlawful. Even where the orders were manifestly unlawful, the defence of obedience to superior orders and the peace officer defence will be available in those circumstances where the accused had no moral choice as to whether to follow the orders. There can be no moral choice where there was such an air of compulsion and threat to the accused that he or she had no alternative but to obey the orders. 
Canada, Supreme Court, Finta case, Judgment on Appeal, 24 March 1994.
In his dissenting opinion in the Finta case in 1994, one of the judges referred to the judgment in the case of the Major War Criminals rendered by the International Military Tribunal for Germany which relied on Article 8 of the 1945 IMT Charter (Nuremberg) to quote a part of the judgment according to which “the true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible”. The judge added:
The element of moral choice was, I believe, added to the superior orders defence for those cases where, although it can readily be established that the orders were manifestly illegal and that the subordinate was aware of their illegality, nonetheless, due to the circumstances such as compulsion, there was no choice for the accused but to comply with the orders. In those circumstances the accused would not have the requisite culpable intent. 
Canada, Supreme Court, Finta case, Dissenting opinion of one of the judges, 24 March 1994.
In the Brocklebank case before the Canadian Court Martial Appeal Court in 1996 dealing with the criminal responsibility of a Canadian soldier serving on a peacekeeping mission in Somalia for the torture and death of a Somali prisoner, one of the judges, in her dissenting opinion, stated: “If the accused had been ordered to assist in abusing the prisoner, it would have been a manifestly unlawful order with the result that there was no evidentiary foundation for the defence of obedience to superior orders.” 
Canada, Court Martial Appeal Court, Brocklebank case, Judgment, Dissenting opinion of Judge Weiler, 2 April 1996.
In 2008, in the Carrasco Varela case, Canada’s Federal Court reviewed a decision by the Immigration and Refugee Board that had found the applicant inadmissible to Canada on grounds of war crimes or crimes against humanity. The Court stated:
Defences and mitigation
34. The defences of superior orders and duress do not apply. Section 14 of the Crimes Against Humanity and War Crimes Act repeats the long standing rule in international law that the defence of superior orders has no application if the order was manifestly unlawful. Cold blooded murder is always manifestly unlawful. Over time Mr. Carrasco also had to come to learn that the treatment of inmates at El Chipote Prison was manifestly unlawful.
35. Duress would only apply if Mr. Carrasco had reason to apprehend that he was in imminent physical peril, at least equivalent to the harm he was ordered to inflict … He testified that he had heard it said that a soldier who had disobeyed orders had been killed. More to the point is the fact that his own treatment in the past for disobeying orders was mild. He was not in physical danger, and he knew it. 
Canada, Federal Court, Carrasco Varela case, Judgment, 8 April 2008, §§ 34–35.
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the facts of the case as follows:
[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.
[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …
[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers - one of whom is a Canadian citizen - under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). Ribic was then residing in Germany. He was extradited and brought to Canada to stand trial. Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.
[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.
[5] Ribic appeals his convictions. He inter alia argues that the trial judge … erred in his instructions on certain of the defences left with the jury for its consideration. … For the reasons that follow, I would dismiss the appeal. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 1–5, per Cronk J.A.
The Court held:
[65] The trial judge provided the jury with a lengthy instruction on the defence of obedience to superior orders. In so doing, he described the elements of this defence in this fashion:
First, was Mr. Ribic a member of the Serb army organization or otherwise involved in it such as he was required to follow superior orders?
Second, was he ordered to do what he did … by someone he considered superior to him and felt required to obey?
Third, in doing so, did he act reasonably or were the acts he carried out under orders manifestly unreasonable and unlawful?
[66] The appellant mounts a two-pronged attack on the trial judge’s instruction on this defence. First, he argues that the jury should have been told that an honest but reasonably mistaken belief that the order was not manifestly illegal is sufficient to invoke this defence.
[67] R. v. Finta, [1994] 1 S.C.R. 701, the leading Canadian case on the defence of obedience to superior orders, is dispositive of this argument. Finta leaves no room for the proposition that an honest but mistaken belief about the manifest illegality of a superior’s order is sufficient to implicate the defence of superior orders. A subjective element to this defence was plainly rejected in Finta, at p. 844:
The trial judge correctly instructed the jury that the accused charged with an offence under s. 7(3.71) cannot claim that, although a reasonable person would in the circumstances have known that the actions allegedly performed had the factual quality of crimes against humanity or war crimes, he mistakenly thought that they were lawful and that therefore he was justified in following orders and performing the actions. If this were so then an accused could always claim the defence of obedience to military orders by stating that the illegality of the order simply did not occur to him or her at the time. This would be stretching the defence beyond all reasonable limits. If it were permitted it would require the Crown to establish that the accused knew the orders and his or her actions were manifestly unlawful.
[68] The second prong of the appellant’s challenge to the trial judge’s instruction on this defence is the submission that an order may not be manifestly unlawful if some justification for it was possible at the time that the order was carried out. The appellant relies on Witness A’s testimony that UNPROFOR [UN Protection Force], NATO and the UN military observers were regarded by the warring factions as part and parcel of the same enterprise. Both Witnesses A and B testified that once the UN and NATO began bombing, the Serbs considered them to be enemy combatants and parties to the Bosnian conflict, such that they became legitimate targets of hostile action. The appellant also stresses Witness A’s evidence that he had information from “direct [intelligence] sources” that the decision to take hostages came from a “very high level” of the Serbian leadership and points out that Witness A said that the appellant was a “very low-key player” who was not involved in command decisions, that he was following orders, and that he was not in a position to stop or prevent the hostage-taking.
[69] I would not accede to this argument. In Finta, a majority of the Supreme Court of Canada held, at pp. 845–46:
[The defence] will not be available where the orders in question were manifestly unlawful. Even where the orders were manifestly unlawful, the defence of obedience to superior orders … will be available in those circumstances where the accused had no moral choice as to whether to follow the orders. That is to say, there was such an air of compulsion and threat to the accused that the accused had no alternative but to obey the orders.
[70] These prerequisites to reliance on the defence of obedience to superior orders were not met here. In Finta, unlike this case, there was no question about the fact of a “military order” or that the accused was subject to the order. In contrast, there was no evidence in this case of any order concerning the hostage-taking that the appellant was obliged to follow.
[71] In particular, on the evidence, the appellant’s status and role with the Serbian forces was unclear. Witness A’s testimony concerning the existence of an order to take hostages that bound the appellant amounted to no more than an assumption. Witness A acknowledged that his evidence of an order was based on his “assessment” of the decision-making structure of the Serbian military and political leadership and his perception of the appellant’s role with the Serbian forces. He confirmed that he did not know where the alleged order or orders came from. Before this court, the appellant himself recognized the absence of evidence of an actual order when he indicated in his factum that an order may have been given.
[72] I conclude, therefore, that the appellant’s challenge to the trial judge’s instruction on the defence of obedience to superior orders must fail. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 65–72, per Cronk J.A.
[footnote in original omitted; emphasis in original]
At the CDDH, Canada, which voted against the deletion of Article 77 of the draft Additional Protocol I submitted by the ICRC, in its explanation of vote stated:
We agree that under customary international law an accused is unable to plead as a defence that the criminal act with which he was charged was in compliance with superior orders that had been given to him. While denying this avenue of defence, the Canadian delegation is aware that compliance with an order to commit an act which the accused knew or should have known was clearly unlawful may be taken into consideration by way of mitigation of punishment.
While we would have liked to see Article 77 adopted as part of the Protocol, we can console ourselves with the knowledge that the article was in fact broadly in accordance with existing international law, which continues to operate in so far as breaches of the Conventions and the Protocol are concerned. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, pp. 330–331.