Practice Relating to Rule 155. Defence of Superior Orders
Switzerland’s Basic Military Manual (1987) provides:
The subordinate or inferior is also punishable if he realized while executing the order that he was participating in the perpetration of a crime. The fact that the subordinate or inferior acted pursuant to an order can constitute a mitigating circumstance.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
243 For criminal offences committed under official orders, the superiors or persons who issued the order are punishable, even though they have not personally committed the offence. The subordinates are liable as well if they were aware that executing the order would lead to a criminal offence.
244 Therefore subordinates and superiors are criminally liable.
245 If a violation of the law of armed conflict is deliberately committed, subordinates can therefore not invoke the existence of an order. They thus do not execute any order of which they know that it violates the law of armed conflict. If in doubt, they request further information from their superiors.
[emphasis in original]
Under Switzerland’s Military Criminal Code (1927), as amended, a subordinate who participates in the commission of a punishable offence while carrying out a superior’s order is not relieved of responsibility if he/she knew that the act was a punishable offence. However, the judge may mitigate or exempt from punishment.
Switzerland’s Military Criminal Code (1927), as amended in 2007, states: “A subordinate or lower ranking official is also criminally liable if he was aware that by executing the order received, he was participating in the commission of a crime or offence.”
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, which also contains a chapter on war crimes, states in the part on general provisions:
1 If carrying out an official order constitutes an offence, the commander or the superior who has given that order is punishable as author of the offence.
2 The subordinate who commits an act on order from a superior or in obeying instructions that bind him in a similar manner is also punishable if he is aware, at the time of the facts, of the punishable character of his act. The judge can reduce the penalty.
[footnotes in original omitted]
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states in the common provisions for the titles on genocide and crimes against humanity and on war crimes:
The subordinate who commits one of the acts under … Title Twelve ter
[war crimes] on order from a superior or by obeying instructions that bind him in a similar manner is punishable if he is aware, at the time of the facts, of the punishable character of his act.
At the CDDH, Switzerland proposed an amendment concerning Article 77 of the draft Additional Protocol I, which aimed at deleting the Article.