Practice Relating to Rule 155. Defence of Superior Orders
South Africa’s LOAC Manual (1996), referring to the South African Constitution (1996), provides: “A person who commits a war crime pursuant to an order is guilty of a war crime if that person knew or should have known that the order was unlawful.”
South Africa’s Medical Services Military Manual provides: “When an order is manifestly illegal the subordinate has the duty to refuse to obey. The order will not be a ground of justification in such a case, it will not justify his/her acts.”
South Africa’s Revised Civic Education Manual (2004) states:
59. … A person who commits a war crime pursuant to an order is guilty of a war crime if that person knew or should have known that the order was unlawful. …
60. When problems arise in this regard, it is usually because orders are unclear. Commanders at all levels should strive to give clear, easily understood orders. This is vital in combat. Soldiers should be encouraged to ask for clarification if in doubt as to the legality of an order. Commanders should not put soldiers in a difficult position of trying to decide whether an order is lawful or not.
South Africa’s ICC Act (2002) provides with regard to genocide, crimes against humanity and war crimes:
Despite any other law to the contrary, including customary and conventional international law, the fact that a person –
(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior,
is neither –
(i) a defence to a crime; nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime.
South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:
Offences and penalties
(3) Despite any other law to the contrary, including customary international law, the fact that an accused person –
(b) was under a legal obligation to obey a manifestly unlawful order of a government or superior,
is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence.
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.
(5) No one shall be punished for disobeying an order to commit torture.
In the Werner case
in 1947, a South African Court of Appeal rejected a plea of superior orders in a case in which the accused, himself a prisoner of war, was convicted for the murder of another prisoner. It held: “[The German officer] had no authority to give orders, and the appellants were under no duty to obey them, even if those orders had not been so obviously illegal that they should have known them to be illegal.”