Practice Relating to Rule 154. Obedience to Superior Orders
According to the Military Handbook (1995) of the Netherlands, an order issued in time of war that would lead to a war crime if complied with should be refused. It explains that soldiers have a duty to refuse to obey an order if they know or if it is manifest, given the facts known to them, that it constitutes a war crime.
The Military Manual (2005) of the Netherlands states that “compliance [with the humanitarian law of war] should take place at all times. No one may be ordered to break these rules. Such an order is unlawful and must not be obeyed.”
In its judgment in the Zuhlke case in 1948, the Special Court at Amsterdam stated with regard to the accused’s plea of superior orders:
The Court rejects this plea. Indeed … there was no need for him in the given circumstances to carry out such orders. An order to commit actions forbidden by international law may not be carried out, and a mistaken idea as to the validity or existence of such prohibitive provisions does not carry with it exclusion from penal liability. The detention in prison of persons who were incarcerated on the ground of their origin, or the ill-treatment and humiliation of prisoners, does not belong to the sphere of military subordination. The accused, who was not only a prison warder by occupation but had also been trained as a non-commissioned officer, must have known this.