Practice Relating to Rule 155. Defence of Superior Orders

IMT Charter (Nuremberg)
Article 8 of the 1945 IMT Charter (Nuremberg) provides:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 8.
Additional Protocol I (draft)
Article 77(2) of the draft Additional Protocol I submitted to the CDDH by the ICRC provided:
The fact of having acted pursuant to an order of his government or of a superior does not absolve an accused person from penal responsibility if it be established that, in the circumstances at the time, he should have reasonably known that he was committing a grave breach of the Conventions or of the present Protocol and that he had the possibility of refusing to obey the order. 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 25.
This proposal was subject to amendments and referred to Working Group A of Committee I, where it was adopted by 38 votes in favour, 22 against and 15 abstentions. 
CDDH, Official Records, Vol. X, CDDH/234/Rev.1, 21 April–11 June 1976, p. 120, §§ 26–27; Official Records, Vol. X, CDDH/405/Rev. 1, 17 March–10 June 1977, p. 188, § 38, and p. 262; Official Records, Vol. IX, CDDH/I/SR.65, 9 June 1976, p. 332, § 30.
The approved text provided:
The mere fact of having acted pursuant to an order of an authority or a superior does not absolve an accused person from penal responsibility, if it be established that in the circumstances at the time he knew or should have known that he was committing a grave breach of the Conventions or of this Protocol. It may, however, be taken into account in mitigation of punishment. 
CDDH, Official Records, Vol. X, CDDH/405/Rev. 1, 17 March–10 June 1977, p. 262.
Eventually, however, the whole Article was deleted in the plenary, because it failed to obtain the necessary two-thirds majority (36 in favour, 25 against and 25 abstentions). 
CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 308.
Convention against Torture
Article 2 of the 1984 Convention against Torture provides: “An order from a superior officer or a public authority may not be invoked as a justification of torture.” 
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly, Res. 39/46, 10 December 1984, Article 2.
Inter-American Convention on the Forced Disappearance of Persons
Article VIII of the 1994 Inter-American Convention on the Forced Disappearance of Persons provides: “The defense of due obedience to superior orders or instructions that stipulate, authorize, or encourage forced disappearance shall not be admitted.” However, Article XV excludes its application in international armed conflicts governed by the 1949 Geneva Conventions and their 1977 Additional Protocols. 
Inter-American Convention on the Forced Disappearance of Persons, adopted by the Twenty-fourth Regular Session of the OAS General Assembly, Res. 1256 (XXIV-O/94), Belém do Pará, 9 June 1994, Articles VIII and XV.
ICC Statute
Article 33 of the 1998 ICC Statute provides:
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 33.
Statute of the Special Court for Sierra Leone
Article 6(4) of the 2002 Statute of the Special Court for Sierra Leone, dealing with “Individual criminal responsibility”, provides:
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 6(4).
Convention on Enforced Disappearance
Article 6(2) of the 2006 Convention on Enforced Disappearance provides: “No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance.” 
International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Article 6(2).
Statute of the Special Tribunal for Lebanon
Article 3(3) of the 2007 Statute of the Special Tribunal for Lebanon provides:
The fact that the person acted pursuant to an order of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Tribunal determines that justice so requires. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 3(3).
Allied Control Council Law No. 10
Article II, Section 4(b), of the 1945 Allied Control Council Law No. 10 provides: “The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.” 
Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, enacted by the Allied Control Council of Germany, composed of the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and the Union of Soviet Socialist Republics, Berlin, 20 December 1945, Article II, Section 4(b).
IMT Charter (Tokyo)
Article 6 of the 1946 IMT Charter (Tokyo), entitled “Responsibility of Accused”, provides:
Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.  
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 6.
Nuremberg Principles
Principle IV of the 1950 Nuremberg Principles provides: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle IV.
ILC Draft Code of Offences against the Peace and Security of Mankind (1954)
Article 4 of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind provides:
The fact that a person charged with an offence defined in this Code acted pursuant to an order of his Government or of a superior does not relieve him of responsibility in international law if, in the circumstances at the time, it was possible for him not to comply with that order. 
Draft Code of Offences against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its sixth session, UN Doc. A/2693, 1954, Article 4.
Code of Conduct for Law Enforcement Officials
Article 5 of the 1979 Code of Conduct for Law Enforcement Officials provides:
No law enforcement official may invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment. 
Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly, Res. 34/169, 17 December 1979, Article 5.
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
Paragraph 26 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides:
Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. 
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, UN Doc. A/CONF.144/28/Rev.1, 1990, p. 112, § 26.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 11 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Order of a Government or a superior”, provides:
The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility if, in the circumstances at the time, it was possible for him not to comply with that order. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 11.
ICTY Statute
Article 7(4) of the 1993 ICTY Statute provides:
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 7(4).
ICTR Statute
Article 6(4) of the 1994 ICTR Statute provides:
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 6(4).
CSCE Code of Conduct
Paragraph 31 of the 1994 CSCE Code of Conduct states: “The responsibility of superiors does not exempt subordinates from any of their individual responsibilities.” 
The Code of Conduct on Politico-Military Aspects of Security, adopted at the 91st Plenary Meeting of the Special Committee of the CSCE Forum for Security Co-operation, Budapest, 3 December 1994, incorporated as Decision IV in the CSCE Budapest Document, Towards a Genuine Partnership in a New Era, Doc. RC/1/95, corrected version of 21 December 1994, § 31.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 5 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Order of a Government or a superior”, provides:
The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if justice so requires. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 5.
UNTAET Regulation No. 2000/15
Section 21 of the UNTAET Regulation No. 2000/15 provides:
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if a panel determines that justice so requires. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 21.
Australia
Australia’s Defence Force Manual (1994) provides:
ADF [Australian Defence Force] members are open to prosecution for breaches of LOAC. Individual responsibility for compliance cannot be avoided and ignorance is not a justifiable excuse. ADF members will be held to account for any unlawful action that leads to a serious breach of LOAC. If such acts are committed, compliance with unlawful orders of a superior officer is not a justifiable excuse. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1306; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1207.
Australia
Australia’s LOAC Manual (2006) states:
13.7 ADF [Australian Defence Force] members are open to prosecution for breaches of LOAC. Individual responsibility for compliance cannot be avoided and ignorance is not a justifiable excuse. ADF members will be held to account for any unlawful action that leads to a serious breach of LOAC. If such acts are committed, compliance with unlawful orders of a superior officer is not a justifiable excuse …
13.42 The fact that a subordinate was ordered to do an act, or make an omission, which was illegal does not, of itself, absolve the subordinate from criminal responsibility. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.7 and 13.42.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Cameroon
Cameroon’s Disciplinary Regulations (1975) provides: “The subordinate is relieved from his penal responsibility when he obeys his commander’s orders and in conformity with the provisions of Article 83-1 of the Penal Code.” 
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 21(I).
The Regulations adds, however: “If the order is manifestly illegal … the subordinate engages his penal responsibility according to the provisions of Articles 82-b and 83-2 of the Penal Code.” 
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 21(II).
The Regulations further states: “If the subordinate is constrained by force or physical threat, he shall be totally relieved of his penal responsibility.” 
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 21(III).
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 21: Penal responsibility
The subordinate is released from his penal responsibility when he obeys orders of his superior, in conformity with Article 83-1 of the Penal Code.
If the order is manifestly illegal or stipulates the commission of an illegal act, in the meaning of Article 17 of the present Regulations, the subordinate engages his penal responsibility, according to the provisions of Articles 82-b and 83-2 of the Penal Code.
The subordinate who believes he is being presented with an illegal order has the duty to communicate his objections to the authority which has given them; he expressly indicates the illegal signification he gives to the disputed order. He receives any useful explication and necessary interpretation from his commander.
If the order is maintained:
- concerning acts contrary to the laws and customs of war, the subordinate has the absolute right not to execute the order.
In case of error, the subordinate cannot be exonerated of the sanctions which are implied in the non-execution of the order and its consequences.
If the subordinate is compelled by force or physical threat, he shall be completely relieved of his penal responsibility. 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 21.
Canada
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
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
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
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.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “The serviceman executing an order commanding the accomplishment of a manifestly unlawful act, particularly an act against the life, integrity and liberty of persons … fully engages his disciplinary and criminal responsibility”. 
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 11(1); see also Article 38(12).
Colombia
Colombia’s Basic Military Manual (1995) states:
Under the terms of Chapter IX of the First Geneva Convention relative to the repression of abuses and infractions, IHL establishes the principle of individual responsibility, that is to say, that acting pursuant to superior orders does not relieve the person of his responsibility for the grave breaches he may commit. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 37.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) notes in Book I (Basic instruction):
NB: Although observation of IHL in the theatre of operations is mainly incumbent on the military leader, the soldier is responsible for the acts he commits even if they are ordered by the leader. As such, he can be prosecuted for acts ordered by the military leader if they constitute violations of the rules of IHL. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 30.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
III.2 Individual responsibility
International humanitarian law has also established individual and criminal responsibility for the respect of humanitarian obligations.
This responsibility lies with all; everyone must answer for his conduct in this way. …
In the penal procedures after World War II, numerous accused invoked superior orders. However, the agreement signed by the four Powers in London on 8 August 1945, and which created the International Military Tribunal for the trial of the major war criminals, established that even persons having acted pursuant to an order are responsible for their acts on the criminal law level.
The judgements of the Nuremberg Tribunal have given birth to a rule of customary law which, as an unwritten legal principle, until today influences national legal orders. According to that rule, everyone is personally responsible for his acts, even if he acted under an order. The subordinate can, however, presume that the order given by his superior is in conformity with the law. He must know, however, that it is his duty to resist an order which could lead to a crime, but only in the case where this is possible for him. If he nevertheless executes the order and thereby commits a breach of international humanitarian law, he will have to accept the consequences but, as the case may be, will benefit from mitigating circumstances.
It is clear that the superior who gives an order contravening the law is responsible on the criminal law level. …
Every member of the armed forces, whatever his rank, is personally responsible to respect the law of armed conflicts, to ensure that others respect it, and to act in case of a violation. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 38–39; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 68.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states: “No law enforcement official may … invoke superior orders … in order to justify torture or cruel, inhuman or degrading treatment or punishment.” 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 35.
Dominican Republic
The Dominican Republic’s Military Manual (1980) tells soldiers: “Even if you had orders to commit the act, it is no defence if it was a manifestly criminal act.” 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 12.
France
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, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 113.
Germany
Germany’s Military Manual (1992) provides:
A plea of superior orders shall not be acknowledged if the subordinate realized or, according to the circumstances known to him, obviously could have realized that the action ordered was a crime (§ 5 of the Military Penal Code). 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 144.
Greece
The Hellenic Navy’s International Law Manual (1995) states:
The basic rules regulating the need for distinction between military and non-military targets and the obligation to restrict attacks only against the former create relevant duties and obligations incumbent not only on those responsible for the planning of the operations but also on those carrying them out. Therefore, a special international responsibility under international law is created for persons obeying unlawful orders or orders whose execution entails an illegitimate effect. Of course this attitude regarding individual criminal responsibility is not conventionally clear and bears a customary character, its legal justification being shaped from the jurisprudence of the Special Military Tribunal in Nuremberg which in 1945, in the context of the adjudication of the Einsatzgruppen case, applying the discretionary power vested upon it by art. 8 of its Statute, found that the existence of a disciplinary or criminally enforced obligation under national military codes for members of the armed forces to obey superior orders does not absolve them from criminal responsibility in cases they ought to have been aware of the criminal character of the orders received. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 7, Part I, § 3.
Guinea
Guinea’s Code of Conduct (2011) states: “Defence forces personnel, in particular commanders, shall be held responsible for acts committed in violation of human rights and international humanitarian law in the execution of illegal orders.” 
Guinea, Code de Conduite des Forces de Défense (Code of Conduct of the Defence Forces), 2011, Ministère de la Défense Nationale, approved by Presidential Decree No. D 289/PRG/SGG/2011, 28 November 2011, Article 28.
Guinea
Guinea’s Disciplinary Regulations (2012) states:
[A]ny person carrying out an order which requires the performance of a flagrantly illegal act, an act which involves notably an offence against the life, integrity or the freedom of persons or the right to property, fully engages his disciplinary and criminal responsibility.
That latter responsibility is assessed in accordance with the rules of criminal law. Especially, the grounds for absence of responsibility, such as coercion, can exonerate a subordinate from any responsibility. 
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Article 10(3)–(4).
Guinea
Guinea’s Code of Conduct (2014) states: “Defence forces personnel, in particular commanders, shall be held responsible for acts committed in violation of human rights and international humanitarian law in the execution of illegal orders.” 
Guinea, Code de Conduite des Forces de Défense (Code of Conduct of the Defence Forces), 2014 edition, Ministère de la Défense Nationale, 28 November 2011, Article 28.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
[U]nder Israeli law … a soldier who has carried out an unlawful order will not be charged with an offence. Only if the order itself is patently unlawful is he required not to perform it, and indeed, under Israeli law, he would have no defence if he did execute it. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 46.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Netherlands
The Military Manual (2005) of the Netherlands provides:
Section 7 - Legal defence in relation to war crimes
1159. Defence in matters of war crimes
When war crimes come to trial, the accused may be defended. Some defences are included in the Statute of the International Criminal Court (Rome Statute); there are also provisions in the WIM [the International Criminal Offences Act] concerning grounds of immunity from punishment. It can be expected that a number of defences may be proposed and dealt with: invocation of an official order; of military necessity; of force majeure; of self-defence; and of participating in a lawful reprisal.
1160. Official order
Article 11 of the WIM governs the question of whether, and how far, the suspect may invoke a statutory provision or official order which may exculpate a perpetrator or cancel a de facto sentence. Article 11 closely follows Article 33 of the Statute on the International Criminal Court. The first paragraph contains the rule that a statutory provision (marginal note: deriving from the Dutch or a foreign lawgiver) and official order may never justify the offence concerned. The second paragraph cites grounds of exculpation where an official order was given without authority. This provision derives largely from Article 43.2 of the Dutch Penal Code, except that the fourth paragraph expands on this, by equating an official order with an order given by a person in the public service of a foreign State or organization in international law. This is especially important if a foreigner, for example a member of the military, is brought to justice before a Dutch judge, and invokes an order given to him by his superior. Such an order, based on foreign law, may in principle have exculpatory effect.
1161. Article 11.3 derives from Article 33.2 of the Rome Statute and deals with the important legal fiction that an order to commit genocide or a crime against humanity is known to have been given without authority, so that it is no longer possible successfully to invoke “good faith” as per the second paragraph. Such crimes are of such a nature, and so grave, unlike the other variety of war crimes, that it is inconceivable that someone has fulfilled all the elements of such an offence and yet can claim in good faith to have understood that he was executing an order given with due authority. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1159–1161.
[emphasis in original]
New Zealand
New Zealand’s Military Manual (1992) states: “It is no defence to a war crimes charge that the act was committed in compliance with an order.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1710(1).
The manual further states:
An act which is performed in compliance with an unlawful order which, to a reasonable member of the armed forces in the circumstances prevailing at the time of the order, is obviously, palpably or manifestly unlawful, does not constitute a defence to a war crimes charge: nor can it be pleaded in mitigation of punishment. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1710(2).
The manual then states:
If the order involves the commission of an act which is unlawful, though not manifestly so, the fact that it was committed in compliance with an order may be taken into consideration for the purpose of mitigation of punishment. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1710(3).
The manual adds:
If it is obvious that an order is unlawful, then it should not be obeyed. Orders which are obviously unlawful are extremely rare. An order to torture or kill prisoners of war or innocent civilians or to loot civilian property would be obviously unlawful. This kind of order should never be obeyed and it should never be assumed that it will provide a defence if a charge results from its obedience. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, Annex C, § C14(4).
In one of its annexes, the manual also states: “If a command is unlawful and is obeyed, the person who obeys it could find himself charged with a criminal offence or a war crime.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, Annex C, § C14(2).
Nigeria
Nigeria’s Manual on the Laws of War provides:
Obedience to an order of a government or of a superior, whether military or civil, or to a municipal law or regulation, affords no defence to a charge of committing a war-crime but may be considered in mitigation of punishment. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 9.
Peru
Peru’s Human Rights Charter of the Security Forces (1994) provides: “The execution of a manifestly illegal order is no exemption from penal responsibility.” 
Peru, Derechos Humanos: Principios, Normas y Procedimientos, MFA 09-1, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, Lima, Peru, May 1994, p. 13.
Philippines
The Philippine National Police (PNP) Manual on Ethical Doctrine (1995) provides:
Respect for Human Rights – In the performance of duty, PNP members shall respect and protect human dignity and uphold the human rights of all persons. No member shall inflict, instigate or tolerate extrajudicial killings, arbitrary arrests, any act of torture or other cruel, inhuman or degrading treatment or punishment, and shall not invoke superior orders or exceptional circumstances such as a state-of-war, a threat to national security, internal political instability or any public emergency as a justification for committing such human rights violations. 
Philippines, Manual on Ethical Doctrine, PNPM-0-0-8-95 (DHRDD), Directorate for Human Resource and Doctrine Development, National Headquarters, Philippine National Police, Revised, August 1995 Edition, Section 2.9.
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) states that the fact that a soldier obeyed an unlawful order cannot relieve him of responsibility. 
Republic of Korea, Operational Law Manual, 1996, p. 189, § 3.
South Africa
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, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 44.
South Africa
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, Medical Services Military Manual – Humanitarian Law, South African Medical Service Academy in Voortrekkerhoogte, s.d, p. 5.
South Africa
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, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 59–60.
Spain
Spain’s LOAC Manual (2007) states
[C]ombatants are not bound to obey orders if they involve carrying out acts that are manifestly contrary to the laws and customs of war or constitute a crime. In all such cases, combatants are fully responsible for their acts and omissions and cannot plead obedience to superior orders as a valid defence. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.2; see also § 7.6.b.(1).(c).
The manual also states: “Obedience to superior orders is not a valid defence for members of the armed forces who commit acts that are manifestly contrary to the laws and customs of war. They are responsible for their acts.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, 7.6.b.(1).(c).
Sweden
Sweden’s IHL Manual (1991) recalls:
According to the so-called Nuremberg principles, the fact that a person has acted upon the orders of a government or a superior shall not free him from liability in international law, provided that he had a genuine possibility of avoiding the act in question. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.2, p. 95.
Switzerland
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, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 199(2).
Switzerland
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. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 243–245. The German language version of the first sentence of § 245 notes: “If a violation of the law of armed conflict is knowingly wissentlich committed, …”.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “Obedience to the order of a government or of a superior, whether military or civil, or to a national law or regulation, affords no defence to a charge of committing a war crime but may be considered in mitigation of punishment.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 627.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “There is no defence of ‘superior orders’. If a soldier carries out an illegal order, both he and the person giving that order are responsible.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 10, p. 38, § 1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “The fact that a subordinate was ordered to do an act, or make an omission, which was illegal does not, of itself, absolve the subordinate from criminal responsibility.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.35.3.
The manual further states: “The defence of mistake of fact cannot succeed where the accused was ordered to do something which was manifestly illegal, such as killing prisoners of war.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.45.2.
In addition, the manual provides:
16.47. The Statute of the International Criminal Court states that superior orders do not relieve a person of criminal responsibility unless:
a. “The person was under a legal obligation to obey orders of the Government or the superior in question”;
b. “The person did not know that the order was unlawful”; and
c. “The order was not manifestly unlawful”.
16.47.1. The reference to a legal obligation to obey orders is a reference to the requirements of national law, for example, military law, which, in many countries, makes it an offence for soldiers not to obey orders. However, orders to commit genocide or crimes against humanity are considered to be manifestly unlawful.
16.47.2. Even where superior orders do not in themselves provide a defence to war crimes charges, they may be relevant to other defences such as lack of mens rea, mistake of fact or duress and may be taken into account in mitigation of punishment.
16.47.3. Orders from a superior in this context include those of a government, a superior – military or civilian – or a national law or regulation. A serviceman is under a duty not to obey a manifestly unlawful order. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 16.47–16.47.3.
[emphasis in original]
United States of America
The US Field Manual (1956) provides:
The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 509(a).
United States of America
The US Air Force Pamphlet (1976) provides:
The fact that an act was committed pursuant to military orders is an acceptable defense only if the accused did not know or could not reasonably have been expected to know that the act ordered was unlawful … Nevertheless, in all cases, the fact that an individual was acting pursuant to orders may be considered a mitigating factor in determining punishment. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-4(d).
The manual gives the example of the Manual for Courts-Martial, which states:
An order requiring the performance of a military duty may be inferred to be legal. An act performed manifestly beyond the scope of authority, or pursuant to an order that a man of ordinary sense and understanding would know to be illegal, or in a wanton manner discharge of a lawful duty, is not excusable. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-4(d).
United States of America
The US Soldier’s Manual (1984) tells soldiers:
Even if you had orders to commit the act, you are personally responsible. Orders are not a defense.
Soldiers who kill captives or detainees cannot excuse themselves from the acts by claiming that an order to “take care of” a captive or detainee was understood to mean “execution”. Common sense and the laws of war will help you recognize what is clearly criminal. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 26.
United States of America
The US Naval Handbook (1995) states:
Under both international law and US law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict. Only if the unlawfulness of an order is not known by the individual, and he could not reasonably be expected under the circumstances to recognize the order as unlawful, will the defense of obedience of an order protect a subordinate from the consequences of violation of the law of armed conflict. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.4.
[emphasis in original]
The manual further states:
The fact that a person committed a war crime under orders of his military or civilian superior does not relieve him from responsibility under international law. It may be considered in mitigation of punishment. To establish responsibility, the person must know (or have reason to know) that an act he is ordered to perform is unlawful under international law. Such an order must be manifestly illegal. The standard is whether under the same or similar circumstances a person of ordinary sense and understanding would know the order to be unlawful. If the person knows the act is unlawful and only does it under duress, this circumstance may be taken into consideration either by way of defense or in mitigation of punishment. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.5.1.
United States of America
The Annotated Supplement to the US Naval Handbook (1997) states: “Under both international law and U.S. law, an order to commit an obviously criminal act … is an unlawful order and will not relieve the subordinate of his responsibility to comply with the law of armed conflict.” It specifies: “The order may be direct or indirect, explicit or implied.” 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 6.1.4 and footnote 16.
United States of America
The US Manual for Military Commissions (2007) states:
Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 916 (d), p. IV-1.
United States of America
The US Naval Handbook (2007) states:
Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing or torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict. Only if the unlawfulness of an order is not known by the individual, and he could not reasonably be expected under the circumstances to recognize the order as unlawful, will the defense of obedience to an order protect a subordinate from the consequences of violating the law of armed conflict. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.1.4.
[emphasis in original]
The Handbook also states:
The fact that a person committed a war crime under orders of his military or civilian superior does not by itself relieve him of criminal responsibility under international law. It may, however, be considered in mitigation of punishment. To establish responsibility, the person must know (or have reason to know) that an act he is ordered to perform is unlawful under international law. Such an order must be manifestly illegal. The standard is whether under the same or similar circumstances a person of ordinary sense and understanding would know the order to be unlawful. If the person knows the act is unlawful and only does it under duress, this circumstance may be taken into consideration either by way of defense or in mitigation of punishment. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.4.1.
United States of America
The US Manual for Military Commissions (2010) states: “Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 916, p. II-113.
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Military Manual (1988), a member of the armed forces is responsible if he commits a violation of the laws of war in execution of a superior order if he knew that such order involved the commission of a criminal act. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 22.
Albania
Under Albania’s Military Penal Code (1995), a person is not relieved from personal criminal responsibility if the act was committed pursuant to a manifestly unlawful order. 
Albania, Military Penal Code, 1995, Article 21.
Argentina
Under Argentina’s Code of Military Justice (1951), as amended in 1984, in the event that a crime is committed through the execution of a military order, only the superior officer who gave the order shall be held responsible for the crime, and the subordinate shall only be considered an accomplice to the crime if the order is carried out to excess. 
Argentina, Code of Military Justice, 1951, as amended in 1984, Article 514.
Argentina
Argentina’s Decree on Trial before the Supreme Council of the Armed Forces (1983), issued in connection with the trial of the military junta, stated:
The existence of plans for orders renders the members of the military junta in office at the time, as well as the officers of the armed forces at the decision-making level, responsible in their capacity as indirect perpetrators for the criminal acts committed in compliance with the plans drawn up and overseen by the superiors (Article 514 of the Code of Military Justice). The text of this rule mitigates the responsibility of the subordinates, in particular because in many cases the subordinates may well have failed to understand the moral and legal significance of their acts owing to the psychological tactics used and the coercive context in which they found themselves. 
Argentina, Decree on Trial before the Supreme Council of the Armed Forces, 1983, preamble.
Australia
Australia’s War Crimes Act (1945), as amended in 2001, provides:
The fact that, in doing an act alleged to be an offence against this Act, a person acted under orders of his or her government or of a superior is not a defence in a proceeding for the offence, but may, if the person is convicted of the offence, be taken into account in determining the proper sentence. 
Australia, War Crimes Act, 1945, as amended in 2001, Section 16.
Australia
Australia’s Crimes (Torture) Act (1988), as amended to 2001, states:
11 No defence of exceptional circumstances or superior orders
It is not a defence in a proceeding for an offence against this Act that:
(a) the act constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or
(b) in doing the act constituting the offence the accused acted under orders of a superior officer or public authority;
but the circumstances referred to in paragraphs (a) and (b) may, if the accused is convicted of the offence, be taken into account in determining the proper sentence. 
Australia, Crimes (Torture) Act, 1988, as amended to 2001, § 11, pp. 5–6.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states:
Defence of superior orders
(1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(2) Subject to subsection (3), the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(3) It is a defence to a war crime that:
(a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
(b) the person was under a legal obligation to obey the order; and
(c) the person did not know that the order was unlawful; and
(d) the order was not manifestly unlawful.
Note: A defendant bears an evidential burden in establishing the elements in subsection (3). 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.116, p. 380.
Austria
Austria’s Military Penal Code (1970), as amended, provides that a soldier is responsible for punishable acts even if he committed them in execution of an order. 
Austria, Military Penal Code, 1970, as amended, Article 3(1).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973), which provides for individual responsibility for, inter alia, crimes against humanity, crimes against peace, genocide, war crimes and “violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Convention of 1949”, as well as “any other crimes under international law”, states:
The fact that [the] accused acted pursuant to his domestic law or to order of his Government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the Tribunal deems that justice so requires. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Sections 3(2) and 5(2).
Belarus
Under Belarus’s Criminal Code (1999), a person who intentionally commits an offence pursuant to an order that he/she knows to be illegal is criminally responsible. 
Belarus, Criminal Code, 1999, Article 40.
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
The fact that the accused has acted pursuant to the order of his government or of a superior does not exempt him from his responsibility if, under the given circumstances, the order could have clearly led to the commission of one of the offences set forth in Articles 136 bis, 136 ter, and 136 quater [grave breaches of IHL]. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 octies, § 2.
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides:
The fact that the defendant acted on the order of his/her government or a superior shall not absolve him/her from responsibility where, in the prevailing circumstances, the order could clearly result in the commission of a crime of genocide or of a crime against humanity … or a grave breach of the Geneva Conventions … and their Additional Protocol I. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 5(2).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states: “The fact that a person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the court determines that justice so requires.” 
Bosnia and Herzegovina, Criminal Code, 2003, Article 180(3).
The Criminal Code, as amended in 2006, also states:
There shall be no criminal offence if its legal elements are met by a subordinate pursuant to an order from his superior and that order is given in the line of official duty, except if such an order relates to the perpetration of genocide, war crimes, crimes against humanity or another criminal offence for which a punishment of imprisonment for a term of ten years or a more severe punishment may be imposed, or if it is obvious that by obeying such an order a criminal offence would be perpetrated. 
Bosnia and Herzegovina, Criminal Code, 2003, as amended on 13 June 2006, Article 246ww.
Brazil
Under Brazil’s Military Penal Code (1969), obedience to a manifestly unlawful order is not a valid defence. 
Brazil, Military Penal Code, 1969, Article 38.
Burundi
Burundi’s Penal Code (2009) states:
A superior order shall never be used as a defence argument regarding genocide, crimes against humanity, war crimes and other crimes provided for under international law; it might only be taken into consideration for a reduction of the penalty. 
Burundi, Penal Code, 2009, Article 31(1o).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), in the provision dealing with individual responsibility, states: “The fact that a Suspect acted pursuant to an order of the Government of Democratic Kampuchea or of a superior shall not relieve the Suspect of individual criminal responsibility.” 
Cambodia, Law on the Establishment of the ECCC, 2001, Article 29.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, states in its provision dealing with individual responsibility: “The fact that a Suspect acted pursuant to an order of the Government of Democratic Kampuchea or of a superior shall not relieve the Suspect of individual criminal responsibility.” 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 29.
Cameroon
Cameroon’s Penal Code (1967) provides:
Article 83 – Obedience to lawful authority
(1) Criminal responsibility cannot be incurred for an act carried out pursuant to the orders of a competent authority to which obedience is legitimately due.
(2) The provisions of the preceding paragraph are, however, not applicable if the order is manifestly illegal. 
Cameroon, Penal Code, 1967, Article 83.
Central African Republic
The Central African Republic’s Penal Code (2010) states:
Killing, injuries and blows are justified and do not result in sentencing:
1. When they were ordered by the law and by the legitimate authority;
2. When there is a state of necessity.
Nevertheless, the above-mentioned provisions are not applicable to the crime of genocide, crimes against humanity and war crimes. 
Central African Republic, Penal Code, 2010, Article 48(1–2).
The Code also states:
The author or accomplice of an offence included in this chapter [on genocide, crimes against humanity and war crimes] cannot be exonerated solely because he has committed an act prescribed or authorized by legislative or statutory clauses or by the legitimate authority.
Nevertheless, the court will consider this circumstance when it determines the sentence and its scope. 
Central African Republic, Penal Code, 2010, Article 161.
Chile
Chile’s Code of Military Justice (1925) provides that a subordinate who receives an illegal order and who does not follow a special procedure of questioning it before performing it will receive mitigation of punishment. 
Chile, Code of Military Justice, 1925, Articles 214(2) and 335.
The Code also gives as a general rule, except the case mentioned above, that the commission of a criminal act in complying with the order of a superior in rank can be taken into account in mitigation of punishment. 
Chile, Code of Military Justice, 1925, Article 211.
Colombia
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states: “The order of a superior does not exempt the person who … carries out the order from individual criminal responsibility for violations of international humanitarian law.” 
Colombia, Directive No. 10, 2007, § VI(3).
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) states:
The author or accomplice of a crime hereunder cannot be exonerated of his/her responsibility only because he/she has executed an act … ordered by the legal authority. However, the court will take these circumstances into consideration when determining the punishment and its duration. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 13.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Law Relative to Sexual Violence (2006), modifying and completing the Congolese Penal Code, provides:
Legislative background
Until now, Congolese penal law did not contain all the incriminations international law, since 1946, has established as offences, as a dissuasive bulwark against those who, big or small, violate international law, in particular humanitarian law, thereby denying the civilian population the quality and the values of humanity.
Thus, the present law modifies and completes the Congolese penal code by integrating rules of international humanitarian law relative to offences of sexual violence. Thereby, it largely takes into account the protection of the most vulnerable persons, notably women, children and men victims of offences of sexual violence.
Law
First Article:
A section X is added to Book 1 of the Penal Code, formulated as follows:
Section X: Irrelevance of official capacity and hierarchy in the matter of offences relative to sexual violence
Article 42(ter)
The hierarchy or the order of a legitimate civilian or military authority in no way exempts the perpetrator of an offence relative to sexual violence from his responsibility. 
Democratic Republic of the Congo, Law relative to sexual violence, 2006, Legislative background and Law, Article 1.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Egypt
Egypt’s Penal Code (1937) provides that a public officer is not liable for acts committed pursuant to the order of a superior if he/she could reasonably believe that the order was lawful and if he has made necessary investigations and assured himself of the legitimacy of the order. 
Egypt, Penal Code, 1937, Article 63.
Egypt
Egypt’s Military Criminal Code (1966), which is silent on the defence of superior orders, provides that in case of silence, general rules should be applied. 
Egypt, Military Criminal Code, 1966, Article 10.
Estonia
Estonia’s Penal Code (2001) provides:
The fact that the offence provided for in the present chapter [i.e. crimes against humanity, crimes against peace and war crimes] was committed pursuant to the order of a representative of public administration or of a military commander shall not preclude the punishment of the author of the crime. 
Estonia, Penal Code, 2001, § 88(2).
Ethiopia
Ethiopia’s Penal Code (1957) provides:
The subordinate who has carried out an order to commit an offence … shall be liable to punishment if he was aware of the illegal nature of the order or knew that the order was given without authority or knew the criminal nature of the act ordered, such as in cases of homicide, arson or any other grave offence against persons or property, essential public interests or international law.
The Court may, without restriction, reduce the penalty when the person who performed the act ordered was moved by a sense of duty dictated by discipline or obedience; the Court shall take into account the compelling nature of the duty.
The Court may impose no punishment where, having regard to all the circumstances and in particular to the stringent exigencies of State or military discipline, the person concerned could not discuss the order received and act otherwise than he did. 
Ethiopia, Penal Code, 1957, Article 70.
Ethiopia’s Criminal Code (2004) states:
Article 74.- Responsibility of the Subordinate.
(1) The subordinate shall be liable to punishment if he was aware of the illegal nature of the order, in particular if he knew that the order was given without authority or knew the criminal nature of the act ordered, such as in cases of homicide, arson or any other grave crime against persons, or national security or property, essential public interests or international law.
(2) The Court may, without restriction, reduce the penalty when the person who performed the act ordered was moved by a sense of duty dictated by discipline or obedience; in particular where the duty is of a compelling nature the Court shall reduce the penalty without restriction (Art. 180).
The Court may impose no punishment where, having regard to all the circumstances and in particular to the stringent exigencies of State or military discipline, the person concerned could not discuss the order received and act otherwise than he did. 
Ethiopia, Criminal Code, 2004, Articles 74(1)–(2).
The Criminal Code of 2004 repealed Ethiopia’s Penal Code (1957).
Finland
Finland’s Criminal Code (1889), as amended in 2008, states:
Section 14 – Order by the Government and command of a superior
A person who has committed or attempted a war crime, an aggravated war crime or a petty war crime on the order of an authority exercising governmental power or of an entity exercising other public power or on the command of a superior is free of penal liability only if:
1) he or she had had a legal obligation to obey the orders of the Government or the commands of his or her superior,
2) he or she did not know that the order or command is against the law, and
3) the order or command was not clearly against the law. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 14.
France
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, Ordinance on Repression of War Crimes, 1944, Article 3.
France
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. 
France, Penal Code, 1992, Article 122-4.
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, Penal Code, 1992, Article 213-4.
France
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. 
France, Penal Code, 1992, as amended in 2010, Article 462-8.
Germany
Under Germany’s Military Penal Code (1957), as amended in 2001, a person acting pursuant to an order of a superior is not relieved of criminal responsibility if he/she realized or, according to the circumstances known to him, should have realized that the order was a crime. The court can mitigate punishment if, taking circumstances into account, the personal liability of the subordinate is limited. 
Germany, Military Penal Code, 1957, as amended in 2001, Section 5.
Germany
Germany’s Law on the Legal Status of Military Personnel (1995) provides:
An order may not be complied with if, by that, a criminal act would be committed. If the subordinate nevertheless complies with the order, he/she is guilty only if he/she realizes or if, under the circumstances known to him/her, it is obvious to him/her, that, by that, a criminal act would be committed. 
Germany, Law on the Legal Status of Military Personnel, 1995, § 11(2).
Germany
Germany’s Law Introducing the International Crimes Code (2002) provides:
Whoever commits an offence [consisting of a war crime, a violation of the duty of supervision or the omission to report a crime] in execution of a military order or of an order comparable in its actual binding effect shall have acted without guilt in so far as the perpetrator does not realize that the order is unlawful and in so far as it is also not manifestly unlawful. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1(3).
Guinea
Guinea’s Constitution (2010) states:
Having received an order or instruction cannot be used as justification for acts of torture, abuse or cruel, inhuman or degrading treatment committed in the course of or in the connection with carrying out one’s duties. 
Guinea, Constitution, 2010, Article 6.
Iraq
Under Iraq’s Military Penal Code (1940), a person remains criminally responsible if he/she knew the order he/she received aims at committing a crime. 
Iraq, Military Penal Code, 1940, Articles 43 and 98.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
The fact that an accused person acted pursuant to an order of the Government or of his superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 15(5).
Israel
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) excludes certain defences otherwise existing under the Israeli Criminal Code of the time, inter alia, for cases dealing with crimes against the Jewish people, war crimes and crimes against humanity. 
Israel, Nazis and Nazi Collaborators (Punishment) Law, 1950, Section 8, excluding the applicability of Articles 16–19 of the Israeli Criminal Code of the time.
However, the Law also states:
In determining the punishment of a person convicted of an offence under this Law, the court may take into account, as grounds for mitigating the punishment, the following circumstances:
(a) that the person committed the offence under conditions which, but for section 8, would have exempted him from criminal responsibility or constituted a reason for pardoning the offence, and that he did his best to reduce the gravity of the consequences of the offence;
(b) that the offence was committed with intent to avert, and was indeed calculated to avert, consequences more serious than those which resulted from the offence;
however, in the case of an offence under section 1 [a crime against the Jewish people, a crime against humanity or a war crime], the court shall not impose on the offender a lighter punishment than imprisonment for a term of ten years. 
Israel, Nazis and Nazi Collaborators (Punishment) Law, 1950, Sections 10 and 11.
Israel
Israel’s Penal Law (1977), as amended in 1994, states:
(a) A person is not criminally responsible for an act or omission done or made either -
(1) in execution of the law or
(2) in obedience to the order of a competent authority, which he is bound by law to obey, unless the order is manifestly unlawful.
(b) Whether an order is manifestly unlawful is a question of law. 
Israel, Penal Law, 1977, as amended in 1994, Section 24.
Luxembourg
Luxembourg’s Law on the Punishment of Grave Breaches (1985) provides:
The fact that the accused has acted under the order of his Government or of a superior in rank does not relieve him of his responsibility if, under the circumstances at the time, he should have realized the criminal character of the order and had the possibility not to comply with it. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 8.
Morocco
Morocco’s Penal Code (1962) provides:
Article 124
There is neither a crime nor a minor offence:
1. If the act was commanded by the law and ordered by the lawful authority;
2. If the perpetrator was materially forced to accomplish, or was materially placed in the impossibility to avoid, the offence, by an event stemming from an outside cause which he could not resist;
Article 225
Any magistrate, public official, agent or holder of public authority or power who orders or commits any arbitrary act attacking either the individual liberty or civil rights of one or more citizens, is punished with the loss of his civil rights.
If he justifies his act by an order of his hierarchical superiors in an area of their competence, for which he owed them obedience, he benefits from an absolving excuse. In that case, the penalty is only applied to the superiors who have given the order. 
Morocco, Penal Code, 1962, Articles 124 and 225.
Netherlands
Article 42 of the Penal Code (1881), as amended in 1984, provides that a person performing an act in execution of a legal requirement shall not be liable to punishment. Article 43 provides that a person shall not be liable to punishment “for acts committed in performance of an official order issued by an authorized authority” and that “an official order that has been given without authority does not relieve from punishment, unless the subordinate believes in good faith that the order is authorized and obedience to the order is inherent to his or her subordinate position”. 
Netherlands, Penal Code, 1881, as amended in 1984, Articles 42 and 43.
Netherlands
The International Crimes Act (2003) of the Netherlands provides:
1. The fact that a crime as defined in this Act [genocide, crimes against humanity, war crimes, torture] was committed pursuant to a regulation issued by the legal power of a State or pursuant to an order of a superior does not make that act lawful.
2. A subordinate who commits a crime referred to in this Act in pursuance of an order by a superior shall not be criminally responsible if the order was believed by the subordinate in good faith to have been given lawfully and the execution of the order came within the scope of his competence as a subordinate.
3. For the purposes of subsection 2, an order to commit genocide or a crime against humanity is deemed to be manifestly unlawful. 
Netherlands, International Crimes Act, 2003, Article 11.
According to this Act, “superior” means:
(i) a military commander, or a person effectively acting as such, who has effective command or authority over or exercises effective control over one or more subordinates; (ii) a person who exercises effective authority, in a civilian capacity, over or exercises effective control over one or more subordinates. 
Netherlands, International Crimes Act, 2003, Article 1(1)(b).
Niger
Niger’s Penal Code (1961), as amended in 2003, under a chapter entitled “Crimes against humanity and war crimes” providing for the punishment of a list of offences such as genocide, crimes against humanity and war crimes in the meaning of the 1949 Geneva Conventions and the 1977 Additional Protocols, provides:
The author or accomplice of one of the crimes set out in this chapter cannot be exonerated from his or her responsibility for the only reason that he or she committed an act stipulated or authorized by legal provisions or an act ordered by the legal authority. However, the court shall take these circumstances into consideration at the determination of the punishment. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.6.
Peru
Under Peru’s Code of Military Justice (1980), obedience to a superior’s order is a valid defence, if the order is not manifestly unlawful. 
Peru, Code of Military Justice, 1980, Article 19(7).
Peru
Peru’s Code of Military and Police Justice (2006) states:
Regarding genocide and crimes against humanity, any person who acts pursuant to an order by a government, authority or superior, whether military or civilian, shall not be relieved from criminal responsibility.
In the cases of crimes against international humanitarian law, any person who acts pursuant to an order of a government, authority or superior, whether civilian or military, shall have his/her penalty reduced, as long as:
a) the person was under a legal obligation to obey orders by the respective government or the superior;
b) the persons did not know that the order was unlawful, and
c) the order was not manifestly unlawful. 
Peru, Code of Military and Police Justice, 2006, Article 85.
Philippines
The Revised Penal Code (1930) of the Philippines, in a provision entitled “Justifying circumstances”, states: “The following do not incur any criminal liability: … any person who acts in obedience to an order issued by a superior for some lawful purpose.” 
Philippines, Revised Penal Code, 1930, Article 11(6).
Poland
Poland’s Penal Code (1997) provides: “A member of the armed forces who commits a prohibited act in carrying out an order does not commit an offence unless, while carrying out the order, he commits an offence intentionally.” 
Poland, Penal Code, 1997, Article 318.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides:
Article 4 (Superior Orders)
(1) Whoever commits [genocide, crimes against humanity or war crimes] in execution of an order by the Government or a superior without realizing that the order is unlawful shall not be punished so far as there is a justifiable cause in not realizing the unlawfulness of the order.
(2) Orders to commit crimes under Article 8 [genocide] or Article 9 [crimes against humanity] are manifestly unlawful for the purposes of paragraph (1). 
Republic of Korea, ICC Act, 2007, Article 4.
Russian Federation
The Russian Federation’s Criminal Code (1996) provides:
Article 42. Execution of Order or Instruction
1. Infliction of harm to legally protected interests shall not be qualified as an act of crime provided it was caused by a person acting in execution of an order or instruction binding on him. Criminal responsibility for infliction of such harm shall be borne by a person who gave the illegal order or instruction.
2. A person who committed intentional offence in execution of an order or instruction known to be illegal shall be liable under the usual terms. Failure to execute the order or instruction known to be illegal shall preclude criminal liability.
Article 332. Failure to Execute an Order
1. Failure to execute a superior’s lawful order by a subordinate, if it has caused substantial harm to the interests of military service, shall be punishable by restriction in military service for a term of up to two years or by arrest, for a term of six months, or by custody in a disciplinary military unit for a term of up to two years.
2. The same deed, committed by a group of persons, a group of persons in a preliminary conspiracy, or by an organized group, and also entailing severe consequences, shall be punishable by deprivation of liberty for a term of up to five years.
3. Failure to execute an order, due to a careless or dishonest attitude to military service, if it has involved serious consequences, shall be punishable by restriction in military service for a term of up to one year, or by arrest for a term of three to six months, or by custody in a disciplinary military unit for a term of up to two years. 
Russian Federation, Criminal Code, 1996, edition 2008, Articles 42 and 332.
Rwanda
Rwanda’s Penal Code (1977) provides, as a general rule, that an illegal act done in pursuance of the law or of a superior’s order does not entail liability. The Code further provides, however, that the execution of a manifestly illegal order does not relieve the subordinate of responsibility. 
Rwanda, Penal Code, 1977, Articles 70 and 229.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
The fact that the accused acted upon the order of his government or of an authority superior in hierarchy does not relieve him from his criminal responsibility if, manifestly, the order could lead to the commission of one of the crimes addressed by this law. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 18.
Senegal
Senegal’s Penal Code (1965), as amended in 1996, states:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture. 
Senegal, Penal Code, 1965, as amended in 1996, Article 295-1.
Slovenia
Slovenia’s Penal Code (1994) provides:
A subordinate shall not be punished if he commits a criminal offence by order or command of a superior issued in the course of military service, unless he has committed a war crime or any other grave criminal offence or if he knew that the carrying out of the order or command constituted a criminal offence. 
Slovenia, Penal Code, 1994, Article 283.
South Africa
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, ICC Act, 2002, § 4(2).
Spain
Spain’s Royal Ordinance for the Armed Forces (1978) provides:
Where an order would entail the execution of acts which are manifestly contrary to the laws and customs of war or constitute a crime … no soldier is bound to obey it; in any case, he must assume serious responsibility for his act or omission. 
Spain, Royal Ordinance for the Armed Forces, 1978, Article 34.
Spain
Spain’s Military Criminal Code (1985) states that obeying any order involving the commission of acts manifestly contrary to the laws or customs of war does not constitute an exonerating or mitigating circumstance. 
Spain, Military Criminal Code, 1985, Article 21.
Spain
Spain’s Law on Security Forces (1986) provides that under no circumstances may a defence of due obedience be applied to orders involving the execution of acts that manifestly constitute offences or are contrary to Spain’s Constitution or laws. 
Spain, Law on Security Forces, 1986, Article 5.1(d).
Spain
Spain’s Royal Ordinances for the Armed Forces (2009) states:
In any case, [the member of the armed forces] will assume the grave responsibility for his or her acts or omissions [if he or she follows orders that are expected to result in the execution of acts constituting an offence, in particular against protected persons and objects in the context of an armed conflict]. 
Spain, Royal Ordinances for the Armed Forces, 2009, Article 48.
Sri Lanka
Sri Lanka’s Convention against Torture Act (1994) states:
For the avoidance of doubts it is hereby declared that the fact that any act constituting an offence under this Act was committed –
(a) at a time when there was a state of war, threat of war, internal political instability or any public emergency;
(b) on an order of a superior officer or a public authority,
shall not be a defence to such offence. 
Sri Lanka, Convention against Torture Act, 1994, Section 3.
Sweden
Sweden’s Penal Code (1962), as amended in 1998, provides:
An act committed by a person on the order of someone to whom he owes obedience shall not result in his being liable to punishment, if in view of the nature of obedience due, the nature of the act and the circumstances in general, it was his duty to obey the order. 
Sweden, Penal Code, 1962, as amended in 1998, Chapter 24, § 8.
Switzerland
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, Military Criminal Code, 1927, as amended, Article 18(2).
Switzerland
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, Military Criminal Code, 1927, as amended in 2007, Article 20(2).
Switzerland
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:
Art. 20
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. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 20.
[footnotes in original omitted]
Switzerland
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:
Art. 264l
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. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 264l.
Tajikistan
Tajikistan’s Criminal Code (1998) provides:
It does not constitute a crime … if a person acts in execution of an order or an instruction which was obligatory for him/her and which was duly made.
A person who committed a wilful crime in executing an unlawful order or instruction shall be criminally liable on general grounds. 
Tajikistan, Criminal Code, 1998, Article 45(1)–(2).
United States of America
The US Detainee Treatment Act (2005) states:
Sec. 1004. Protection of United States Government Personnel Engaged in Authorized Interrogations.
(a) Protection of United States Government Personnel – In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. 
United States, Detainee Treatment Act, 2005, Title X of Public Law 109-148 (the 2006 Department of Defense Appropriations Act), 119 Stat 2680, 30 December 2005, § 1004(a).
Uruguay
Uruguay’s Penal Code (1933), as amended in 1978, in a provision referring to compliance with the law, provides: “Anyone who performs an act, ordered or permitted by law, on account of his public functions, his profession, [or] his authority … shall be exempt from liability.” 
Uruguay, Penal Code, 1933, as amended in 1978, Article 28.
The Code further provides:
Anyone performing an act out of due obedience shall not be liable for it.
A determination of due obedience requires the following:
(a) The order comes from an authority.
(b) Said authority is competent to issue it.
(c) The agent has the obligation to carry it out.
The agent’s error as to the existence of this requirement shall be determined by the judge, taking into account his position in the administrative hierarchy, his level of education, and the seriousness of the act. 
Uruguay, Penal Code, 1933, as amended in 1978, Article 29.
Uruguay
Uruguay’s Military Penal Code (1943), as amended, states: “When a soldier commits an offence in the course of duty on orders from a superior, the conditions specified in Article 29 of the ordinary Penal Code [as amended] are presumed to apply in the absence of proof of the contrary.” 
Uruguay, Military Penal Code, 1943, as amended, Article 17.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
Superior orders … may not be invoked as justification for the crimes set out in Titles I to II of Part II of the present law [i.e. genocide, crimes against humanity and war crimes].
Consequently, having acted under superior orders … does not exempt from criminal responsibility the persons who commit … the aforementioned crimes or offences. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 9.
Venezuela
Venezuela’s Constitution (2009) states:
Any act issued in the exercise of public authority that breaches or impairs the rights guaranteed by the Constitution and the laws is null and void, and public officials ordering or implementing it incur criminal, civil or administrative liability, depending on the case, and may not avail themselves of the excuse of superior orders. 
Venezuela, Constitution, 2009, Article 25.
Yemen
Yemen’s Military Criminal Code (1998) states:
In the case of the commission of any of the crimes set out under this chapter [i.e. war crimes], … the subordinate will be held responsible for the crime and will not be released from the punishment provided for, except if the acts have been committed against [his] choice, or without [his] knowledge, or if [he] did not have the possibility to prevent them. 
Yemen, Military Criminal Code, 1998, Article 23.
Yugoslavia, Socialist Federal Republic of
Under the provision of the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, entitled “Responsibility for criminal acts committed under superior orders”, the commission of a war crime is treated as an exception to the general rule that a subordinate will not be punished for a criminal act committed under superior order in execution of official duties, if he/she knew that such an act was a crime. 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 239.
Zimbabwe
Zimbabwe’s Criminal Law (Codification and Reform) Act (2004), as amended to 2008, states:
PART XVIII
OBEDIENCE TO ORDERS
267 Interpretation in Part XVIII of Chapter XIV
In this Part–
“active operations” means–
(a) active service during any war in which Zimbabwe is engaged; or
(b) counterinsurgency operations; or
(c) the suppression of a riot or public disturbance or public violence; or
(d) the prevention of a disturbance within or escape from a prison;
“disciplined force” means–
(a) the Defence Forces; or
(b) the Police Force; or
(c) the Prison Service; or
(d) any other force organised by the State which has as its sole or main object the preservation of public security and of law and order in Zimbabwe;
“lawful order” means any command, direction or order–
(a) of a routine, permanent or continuing nature that is properly made for any disciplined force by or under any enactment or in terms of any authority given by or under any enactment; or
(b) given on a particular occasion or for a particular purpose by a member of rank of a disciplined force within the ordinary and lawful scope of that member’s authority;
268 Requirements for obedience to lawful orders to be complete defence
The fact that a person charged with a crime was obeying a lawful order when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if
(a) when he or she did or omitted to do the thing he or she was a member of a disciplined force; and
(b) the order was given to him or her by a member of rank of a disciplined force, whether or not that person was a member of the same disciplined force.
269 When obedience to illegal orders affords complete defence
(1) Subject to this section, the fact that a person charged with a crime was obeying an illegal order when the person did or omitted to do anything that is an essential element of the crime shall not be a complete defence to the charge unless the following requirements are satisfied in addition to those specified in paragraphs (a) and (b) of section two hundred and sixty-eight
(a) when he or she did or omitted to do the thing he or she was a member of a disciplined force engaged on active operations; and
(b) he or she would have been liable, or believed on reasonable grounds that he or she would have been liable, to disciplinary action if he or she had refused to obey the order; and
(c) the order was not so manifestly illegal that a reasonable person in his or her position would have refused to obey it; and
(2) If the requirements specified in subsection (1) are satisfied, a person shall be entitled to a complete defence to a charge even if he or she realised that the order concerned was illegal. 
Zimbabwe, Criminal Law (Codification and Reform) Act, 2004, as amended to 2008, Sections 267–269.
[emphasis in original]
Argentina
In its judgment in the Military Junta case in 1985, Argentina’s National Court of Appeals held that the legal rule that exempted subordinates from responsibility for the crimes they committed on military orders was none other than the application of the “duty to obey” principle (Article 514, Code of Military Justice, according to which only the superior bears criminal responsibility in the event that a crime is committed through the execution of an order, supra). It found that the unlawful orders had been given by the accused for the purpose of carrying out military acts to combat terrorist subversion, an activity that was part of the functions they performed. Under the terms of Article 11 of Law 23.049, which provides a genuine interpretation of the text contained in Article 514, the subordinate shall be held responsible for the crime committed if he had decision-making powers, knew the order was illegal, or if the order involved committing atrocities or aberrant acts. The Court found that, owing to their position in the chain of command, some individuals knew of the unlawfulness of the system, and that others had committed atrocities. It also stated that some subordinates would not be covered by the defence of duty to obey, and that they were responsible for the acts committed, together with those who had given the orders. 
Argentina, National Court of Appeals, Military Junta case, Judgment, 9 December 1985.
Argentina
In the Military Junta case in 1986, Argentina’s Supreme Court found, however, that, where a crime is committed through its execution, the relevant regulation (Article 514 of the Code of Military Justice) transferred responsibility for the crime to the superior, on the principle that responsibility lay in the allocation of duties for the purpose of ensuring discipline. This was not a transfer of the capacity of the perpetrator, but a transfer of penal responsibility for the purpose of imposing discipline. Consequently, the Court found that in peacetime only Article 514 of the Code of Military Justice applied within the framework of military orders, and that the object of the trial was the unlawful acts committed outside the scope of military operations, and that therefore the rules of the Penal Code (Article 45) should apply. According to the Court, those who gave the orders and made the material means available participated as necessary collaborators and not as perpetrators under the terms of Article 45 of the Penal Code, since the subordinates had ample opportunity to determine the fate of the detainees. The Court questioned the degree of “subjugation” to which, according to the Court of Appeals, those executing the acts were subjected. It distinguished perpetrators or co-perpetrators “who took part in the execution of the act” from other types of involvement entailing cooperation, aid or assistance. For this reason, the Court modified the Court of Appeals’ designation of the perpetrators’ commanders, referring to them instead as “participating as necessary collaborators”. 
Argentina, Supreme Court, Military Junta case, Judgment, 30 December 1986.
Australia
In 2003, in the SHCB case, the Federal Court of Australia noted: “The defence of obedience to higher orders will normally apply only where there are imminent real and inevitable threats to a subordinate’s life. There is an element of moral choice in relation to the defence …”. 
Australia, Federal Court, SHCB case, Judgment, 22 December 2003, § 31.
Australia
In 2005, in the SRYYY case, the Federal Court of Australia noted:
57 It is therefore difficult to discern a clear rule of customary international law with regard to the defence of superior orders …
77 Article 33 of the Rome Statute dealing with the defence of superior orders stands in a similar position [in being an appropriate definition for the Australian Administrative Appeals Tribunal to apply]. In providing for that defence in certain circumstances, albeit not for genocide or crimes against humanity, the article departs from the provisions made in previous instruments. While it may be an open question whether Art 33 accurately reflects customary international law, what is indisputable is that it reflects an international consensus in an international instrument that there is to be such a defence.
131 It is obvious that almost any offence can equally well be defined by including within its elements a negation of relevant defences, achieved in the case of murder by the use of the term “unlawful”, as by providing for separate and externally defined defences. In our view, there is no reason in principle for ignoring the possible availability of a defence of obedience to superior orders when determining whether there are serious reasons for believing that the person seeking refugee status has committed war crimes.  
Australia, Federal Court, SRYYY case, Judgment, 17 March 2005, §§ 57, 77 and 131.
Australia
In 2010, in the Habib case, the Full Court of Australia’s Federal Court unanimously held that the “act of state doctrine” did not bar a claim for damages based on the alleged complicity of Australian officials in the alleged acts of torture committed on the applicant by officials of the governments of the United States, Egypt and Pakistan. Black CJ stated:
[C]onsistently with Australia’s obligations under the [1984] Torture Convention, the parliament has spoken with clarity about the moral issues that may confront officials of governments, whether foreign or our own, and persons acting in an official capacity. It has proscribed torture in all circumstances, answering in the negative the moral and legal questions whether superior orders can absolve the torturer of individual criminal responsibility and whether, in extreme circumstances, torture may be permissible to prevent what may be apprehended as a larger wrong: see the Crimes (Torture) Act [1988], s 11; the Torture Convention, Art 2. 
Australia, Federal Court, Habib case, Judgment, 25 February 2010, § 10.
Austria
In its judgment in the Leopold case in 1967, in which the accused was convicted of the murder of several prisoners of war in Poland during the Second World War, Austria’s Supreme Court held that under the principles laid down in the Nuremberg judgment, obedience to an order of a superior neither justified an offence nor in general excused it. Only “absolute coercion” could constitute such an excuse. 
Austria, Supreme Court, Leopold case, Judgment, 10 May 1967.
Belgium
In the Sergeant W. case in 1966, Belgium’s Court-Martial of Brussels sentenced a sub-officer to three years’ imprisonment for the wilful killing of a civilian. The accused, who at the time of the event was chasing rebels, was serving in the Congolese army within the framework of military technical co-operation between Congo (Democratic Republic of the Congo) and Belgium. He invoked the defence of superior orders. The Court held that, the accused’s interpretation of the order he had received, i.e. to kill an unarmed person in his power, was manifestly unlawful; the accused therefore had a duty to disobey this order. 
Belgium, Court-Martial of Brussels, Sergeant W. case, Judgment, 18 May 1966.
Belgium
In its judgment in the V.C. case in 1983, in which the accused, a mercenary in Katanga (Congo/Democratic Republic of the Congo), was ordered to kill a wounded person, Belgium’s Court of Cassation held that there was no general principle of law that allowed the killing of a wounded person because he was “mortally wounded”. An order to kill a wounded person for that sole reason was manifestly criminal. Consequently, the justification of a superior’s order could not be raised. 
Belgium, Court of Cassation (Second Chamber), V.C. case, Judgment, 12 January 1983.
Belgium
In its judgment in the Kalid case in 1995, a Belgian Military Court, with respect to the requirements for relying on a superior’s order as grounds for justification, stated that in accordance with domestic and international law, to be able to claim a superior’s order as grounds for justification:
(a) the cited order must be given beforehand, and its implementation must correspond to the purpose of that order,
(b) the cited order must be issued by a legitimate superior acting within the limits of his authority,
(c) the order issued must be legitimate, i.e., in conformity with the law and regulations;
… in connection with this last point, it may generally be assumed that a soldier of the lowest rank may base his actions on the assumption that the order was legitimate. 
Belgium, Military Court, Kalid case, Judgment, 24 May 1995.
Bosnia and Herzegovina
In the Halilović case in 1998, the Doboj District Court (Republika Srpska of Bosnia and Herzegovina) upheld a Municipal Court decision to sentence Ferid Halilović, a member of the Croatian Defence Council (HVO), to 15 years’ imprisonment for war crimes committed in 1992 against the civilian population during his time as a prison guard at detention centres in Odzak, Novi Grad and Bosanski Brod, where mainly Serb civilians were held. In its findings concerning mitigating circumstances, the District Court noted: “One also has to keep in mind that the accused was working in camps as a guard, so he did some forbidden acts at orders of superiors and especially at orders of the camp warden.” 
Bosnia and Herzegovina, Republika Srpska, Modrića Municipal Court, Halilović case, Decision, 23 October 1997; Doboj District Court, Halilović case, Decision, 10 August 1998.
Canada
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.
Canada
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.
Canada
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.
Canada
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.
Canada
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]
Chile
In its judgment in the Guzmán and Others case in 1974, Chile’s Santiago Council of War stated:
The provisions of Article 335 of the Code of Military Justice [which provides that, under certain circumstances, a soldier disobeying an unlawful order is not punishable] require that: a) an order be received from a hierarchical superior; b) that this order be related to the military service; and c) that the subordinate has explained the illegality of the order to the superior, and that the latter has insisted on the order’s performance. Where this last formality is lacking, or where the subordinate has exceeded the requirements of the order in executing it, this shall be considered as mitigating. 
Chile, Santiago Council of War, Guzmán and Others case, Judgment, 30 July 1974.
Germany
In its judgment in the Dover Castle case in 1921, Germany’s Imperial Court held:
It is a military principle that the subordinate is bound to obey the orders of his superiors. This duty of obedience is of considerable importance from the point of view of criminal law. Its consequence is that, when the execution of a service order involves an offence against the criminal law, the superior giving the order is alone responsible. 
Germany, Imperial Court (Reichsgericht), Dover Castle case, Judgment, 4 June 1921.
The Court further held that the punishment of a subordinate, who had acted in conformity with his orders, could, under German military criminal law at the time, arise (1) if he had exceeded the order given to him, (2) he was aware that his superior’s orders directed action which involved a civil or military crime or misdemeanour. In the relevant case, the Court did not consider that either of these elements was present and the accused, the commander of a submarine from which a British hospital ship had been torpedoed, was acquitted. 
Germany, Imperial Court (Reichsgericht), Dover Castle case, Judgment, 4 June 1921.
Germany
In the Llandovery Castle case in 1921, in which a British hospital ship had been torpedoed and destroyed and her lifeboats fired on, Germany’s Imperial Court rejected the plea of superior orders forwarded by two of the accused. It stated that the accused should be deemed to have had knowledge of the unlawful character of the order they carried out and stated that the defence could not be brought forward
if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law … In the present case it was perfectly clear to the accused that killing defenceless people in the lifeboats could be nothing but a breach of law. 
Germany, Imperial Court (Reichsgericht), Llandovery Castle case, Judgment, 16 July 1921.
Germany
In its judgment in the Subordinate’s Responsibility case in 1986, Germany’s Federal Court of Justice held that a subordinate who had recognized an order as unlawful would not be relieved from his responsibility even if his superior was ignorant of the illegality of the order. 
Germany, Federal Court of Justice (Bundesgerichtshof), Subordinate’s Responsibility case, Judgment, 22 January 1986.
Germany
In 2003, in the Executions and Superior Orders case, Germany’s Higher Social Court Baden-Württemberg held:
1. It is contested between the parties whether, according to Section 1 a of the Federal War Victims Relief Act [Bundesversorgungsgesetz – BVG], the respondent can withdraw the injury-based maintenance benefits granted to the applicant.
29. Section 1 a of the Federal War Victims Relief Act, introduced by the Law of 14.01.1998 (Federal Law Gazette I p. 66) and in force since 28.01.1998, provides:
30.
(1) Benefits are to be denied if the entitled person …, during the regime of national socialism, has violated the principles of humanity or rule of law and has applied for benefits after 13 November 1997.
Indications which require a particularly intensive examination whether an entitled person has violated the principles of humanity or rule of law by his individual behaviour can in particular result from the entitled person’s voluntary SS membership.
33. On the basis of this provision, the respondent had the right to withdraw the applicant’s maintenance benefits starting on 01.01.2000.
35. The principles of humanity or rule of law are closely connected. The Federal Administrative Court Bundesverwaltungsgericht – BVerwG] does not differentiate between them. What is meant is the core content of inalienable rights of the individual person, which can never be materially removed or limited and which had validity also in the time of national socialism … In order to assess what belongs to this core of inalienable rights, the Federal Administrative Court turns to international human rights documents, such as the European Convention on Human Rights or the Universal Declaration of Human Rights of 10.12.1948. There, e.g. the right to life (Article 2 of the European Convention on Human Rights) is guaranteed. A “violation” of the principles mentioned requires a concrete, spatially and temporally defined behaviour, possible to prove, which goes against the content of the principles or which does not oppose their violation – although such opposition would be possible and could be reasonably expected …
36. The Senate takes as fact that the applicant, as a member of the 1st SS infantry brigade (mot.), which organizationally belonged to the command staff of the Reichsfuehrer SS, participated in an execution by shooting in a small town in the part of Poland earlier under Russian occupation in late summer/early autumn 1941, directed against all inhabitants of the locality (men, women and children), without previous combat operations. That the applicant thereby violated the principles of humanity and rule of law in a downright text book case is obvious and does not require a further substantiation. The killing of civilians not participating in war operations, in particular of women and children, has for a long time been prohibited under public international law (comp. Hague Regulations of 1907 as well as Geneva Convention of 1929). It further shall be recalled that after 1945 the principles of humanity were presented first in the Charter of the International Military Tribunal in Nuremberg of 08.08.1945 and later in Control Council Law No. 10 of 20.12.1945. Article 2 of Control Council Law No. 10 contained the penalization of crimes against humanity, to which belong, inter alia, murder, extermination and inhumane acts against the civilian population …
37. The applicant fulfills also the subjective requirements of Section 1 a of the Federal War Victims Relief Act. On the subjective side, a violation of the principles of humanity or rule of law requires behaviour which is attributable, reproachable and therefore culpable … This is not the criminal law notion of guilt, which would require a concrete intent related to a criminal act punishable according to the laws at that time … The exclusion of rights according to Section 1 a of the Federal War Victims Relief Act is not a penalty, but is based on the principle of forfeiture. For culpability according to this provision it is sufficient that the person in question ( compos mentis in the sense of Sections 104 no. 2, 827 of the German Civil Code) knew the facts which make his behaviour inhumane or contrary to the rule of law, and that he either was aware that his behaviour was inhumane or contrary to the rule of law, or would have needed to be aware of it, when testing his conscience in the way that could reasonably be expected from him … The Senate is convinced that the applicant was quite aware that the execution violated elemental principles of law, basic to all legal orders. This can be concluded from his statements that he and his fellow soldiers were all trembling and that he had not enjoyed his meals in the following two weeks[;] that he had been sick of the thing already before the shooting, i.e. he was terribly shocked.
38. The applicant wrongly invokes a so-called situation of necessity due to superior orders. Although the application of Section 1 of the Federal War Victims Relief Act, as described above, does not require guilt in the criminal law sense, and although the circumstances potentially exculpating the person in question therefore do not have to belong to the strictly limited reasons excluding guilt under criminal law, the latter could certainly also be exculpating reasons … A person cannot be blamed under Section 1 a of the Federal War Victims Relief Act for behaviour in the past, if today, under a criminal law assessment of the behaviour, guilt would be excluded. However, the view of the lower Social Court that the applicant was in a situation of necessity due to superior orders, making his acts lawful, cannot be contended and is beyond discussion. It may be debated in criminal law literature whether there can be an “unlawful binding order”, and whether for a subordinate a materially unlawful, but nevertheless binding order is a special ground excluding unlawfulness, or only a ground excluding guilt … This is however different in cases of manifestly unlawful and, in particular, criminal orders. Here only duress, excluding guilt, can be considered, as it is today regulated in Section 35 of the Criminal Code. However, also the requirements of that provision are not fulfilled. Already in 1967, Herbert Jäger, in his book “Crimes under totalitarian rule – Studies on national socialist violent crime”, to which the Senate was pointed by the Institute of Contemporary History in Munich, came to the conclusion that so far no case had been found in which a subordinate had suffered damage to life or limb in consequence of a refusal of, or non-compliance with, a criminal order. This was fully confirmed by the expert witness Dr. B in his opinion of 16.02.2003, based on the current state of research. The only potential basis excluding guilt remaining is therefore so-called subjective duress by coercion or putative duress. One needs to concede to the applicant that in the case law of the Federal Court of Justice the requirements of the duress provisions have been seen as fulfilled in isolated cases, in which criminal orders were to be executed. This was the case, for example, in the situation underlying the judgement of 14.01.1964, which concerned the participation in the mass shooting of Jewish inhabitants of a Belorussian town. On the other hand, the Federal Court of Justice underlined that the guilt of a person invoking duress by coercion can only be excluded if that person conscientiously did the utmost to escape the danger or putative danger in a way avoiding the commission of the crime, without having found such a way out. The graver the crime one is coerced to do, the stricter the requirements to be applied to that examination. The coerced person or putatively coerced person must have applied all mental and physical abilities … In the present case, the Senate is not convinced that the applicant did his utmost to avoid the unlawful act, without having found a way out. He not even thought about how to avoid the commission of the execution order. In view of the monstrosity of the order put to him, he at least would have been expected to ask his military leaders about the sense of the execution. He also would have had time for such considerations. Already when, early in the morning, it was ordered to drive the persons out of their houses and, if necessary, immediately shoot those who resisted this, it had to be clear to him that there was something going on which had nothing to do with regular conduct of war. That it was a case of shooting civilian persons was known to the applicant at the latest when he – already some time before – saw the graves excavated in the forest. Otherwise he would not have stated that they “had been sick of the thing already before the shooting”.
40. As the applicant himself stated during his questioning on 08.08.1961, in the case of the second group with women and children several shooters were no longer prepared to follow the shooting order. They missed intentionally. This affirms the conviction of the Senate that the applicant omitted to search for a way out, to avoid the commission of the order he had realized was criminal. 
Germany, Higher Social Court Baden-Württemberg, Executions and Superior Orders case, Judgment, 13 November 2003, §§ 1, 29–30, 33, 35–38 and 40.
In 2005, on the applicant’s revision, the Federal Social Court held:
In Section 1 a of the Federal War Victims Relief Act the legislator … has used a traditional pair of concepts already approved also by the Federal Constitutional Court, which combines self-evident ethical-moral fundamental values that are the basis of any human social life … The principles of humanity comprise the core content of human rights inalienable in any situation of life, which therefore can never be materially removed or limited … They are the elementary principles, indispensable for human social life and for a minimum of just state order, which belong to the inviolable area of the law … Among the generally accepted and inviolable human rights is, first of all, the right of every human being to life and physical integrity … It is a natural and always valid imperative of humanity to protect this right against State arbitrariness, also unlawful acts of war … In view of that, there is no need to determine in detail which are the sources of these principles … The Federal Administrative Court derives them from the moral law and the natural rights of the individual preset to every legal order … Ultimately, they are to be deduced from the order of existence, into which the human is put as a rational and sensitive being. He has to integrate himself into this order if he does not want to existentially and lastingly endanger himself and his species … Apart from that, the principles of humanity are reflected, e.g., in the Charter of the International Military Tribunal in Nuremberg of 8 August 1945, according to which crimes against humanity are war crimes in the narrower sense. The background of the regulation was to be able to punish as war crimes in particular enslavement, deportation, extermination and other inhumane acts, committed against any civilian population, especially the Jewish, and to be able to put to trial the perpetrators. Comparable provisions were contained in Control Council Law No. 10 of 20 December 1945 … Article 2 of the Law provided criminal punishment for crimes against humanity, inter alia for extermination, imprisonment, murder, persecution on political, racial or religious grounds, rape, deportation and inhumane treatment of the civilian population … The UN Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 …, Article 2 and Article 15, paragraph 2 of the [European] Convention on Human Rights of 4 November 1950 …, but also the order of values of the Basic Law of the Federal Republic of Germany, in particular Article 1, paragraph 1 of the Basic Law, can also be referred to. It is legally irrelevant in this context that the principles of humanity noted above, expressed in norms, were codified only after the violation in the concrete case in question was committed. The principles of humanity were and are valid independent of any recognition or codification by a state … By their nature they remained binding also during the regime of national socialism … and could be recognized through the voice of the conscience. Apart from that, the principles of humanity were partly codified also before 1945. The Hague Regulations … provided that no warring party is free in the choice of means of injuring the enemy (Article 22). Section 47 of the Military Criminal Code in the versions published on 16 June 1926 and 16 October 1940 provided: Not every order justifies the person executing it, at least not if the order involves a civilian or military crime … The legal consequence of withdrawal of benefits because of violations of the principles of humanity is – also due to the possible reference to pre-constitutional law – no violation of the principle “nulla poena sine lege, nullum crimen sine lege” … Section 1 a of the Federal War Victims Relief Act is not a criminal law norm. The provision rather contains an ethical accusation by the State; Article 103, paragraph 2 of the Basic Law, which regulates criminalization, does not apply …
(2) It can be objectively proven that the applicant has committed such a violation against the principles of humanity during the regime of national socialism (a). This violation is also attributable and reproachable to him (b). The withdrawal of benefits according to Section 1 a, paragraph 2 of the Federal War Victims Relief Act is only justified if in the concrete individual case a violation against the principles noted is objectively and subjectively proven, i.e. if the individual culpability can be established … The fact – given here – of voluntary SS membership alone does not suffice to assume such a violation … In a case of voluntary SS membership it shall, according to the compromise found in Parliament, rather be examined especially intensively whether an entitled person has violated the principles of humanity or rule of law by his individual behaviour (comp. Section 1 a, paragraph 1, sentence 2 of the Federal War Victims Relief Act). In consequence, a concrete, spatially and temporally defined behaviour must be proven, which is individually-personally attributable and reproachable, culpable … For this it is sufficient, however, if the illegality of his acts would at least have needed to become obvious to the perpetrator through an application of his conscience which could be reasonably expected from him … The refusal or withdrawal of benefits is not a criminal law sanction but an ethical accusation of the State reflected in the benefits law … It therefore neither requires a form of specific criminal law participation nor criminalization of the crime or offence. Decisive is rather whether the entitled person was involved in an inhumane act or an act against human dignity, whether he contributed – through his own acts – to its completion …
(a) The act of which the applicant is accused here contains a crass violation against the principles of humanity, sufficiently definable in space and time. It is to be regarded as proven that the applicant as a voluntary member of the Waffen-SS, carrying out an order of a superior, in a part of Poland earlier under Russian occupation, in late summer/early autumn 1941, together with other soldiers shot unarmed civilian persons – men, women and children –, who, with their backs to the shooters, stood at a pit dug before, and whom he had, with other fellow soldiers, already taken from their houses and rounded up on the market square of their town …
(b) In this objectively established violation of the principles of humanity the applicant was not justified by an order. The violation is also personally attributable and reproachable to him … It is true, according to the findings of the Higher Social Court the applicant here indeed acted on an order; this circumstance, however, does not justify his behaviour. The act ordered was not lawful; the shooting … was – as already clear from the way it was carried out – an obvious violation of the principles of humanity. Such behaviour also cannot be justified on the basis that it complied with national socialist ideology or formal national socialist law or had been exempt from prosecution at the time: time-related ideologies can neither exclude unlawfulness nor guilt. Acts committed on such a basis are reproachable and attributable if these sources demanded murder, displacement and violent acts or tried to justify them … Also as regards the subjective side, the acts of the [applicant] must retrospectively be measured by standards different from those common under the national socialist dictatorship … [It is not to be criticized] if the Higher Social Court finds that the applicant, by participating in the shooting of civilian persons in the summer of 1941, carried out an unlawful order in a reproachable, i.e. culpable, way. Contrary to the applicant’s view this finding does not require his prior conviction under criminal law. In a tiered system, the legal order knows numerous sanctions of differing intensity with which it can respond to behaviour hostile to the law or damaging to society. The provision on unworthiness in Section 1 a of the Federal War Victims Relief Act is embedded in this system of sanctions outside criminal law. The act violating the values of the principles of humanity and rule of law is to be assessed without regard to their criminalization as a crime or offence …
Nevertheless, it must be possible to individually blame the person in question for the act, as already apparent from the wording of Section 1 a, paragraph 1, sentence 2 of the Federal War Victims Relief Act. A personally culpable behaviour must be proven. Such an act is given whenever the person in question knew the facts which make his behaviour inhumane or contrary to the rule of law, if he was either aware that the behaviour was inhumane or contrary to the rule of law or would have needed to be aware of it when testing his conscience in the way that could reasonably be expected from him, and if there are no special grounds excluding culpability … Without legal fault, the Higher Social Court has found these characteristics here.
Insofar as the applicant opposes the accusation of culpability with the argument he had carried out an – albeit unlawful – order, this cannot excuse his acts. A criminal law accusation of guilt may not be required here. However, it does not cause effective legal concerns that the Higher Social Court has nevertheless examined the existence of a ground excluding guilt in the criminal law sense – here necessity due to superior orders (comp. Sections 32, 34 Criminal Code, Section 47 Military Criminal Code) – , which the applicant himself has raised in his favour. The principle of unity of the legal order needs to be taken into account here. Grounds which exclude unlawfulness of an act under criminal law, may not necessarily be decisive also in other areas of law … But special permissive rules, of criminal law origin, are valid also in these areas, because insofar an act cannot be permitted and prohibited at the same time … It is, however, always required that the prohibition in question, to which the permissive rule relates, is one and the same for the various sub-areas of the law. This is the case here, since an earlier behaviour cannot be reproachable according to Section 1 a of the Federal War Victims Relief Act if, assessed today under criminal law, guilt would be excluded …
The Senate leaves undecided whether a binding order, obviously unlawful because violating the principles of humanity, is dogmatically to be regarded as a justifying ground, excluding unlawfulness, … or as a ground excluding guilt … In any case, the applicant cannot free himself from the objectively committed and attributable violation by stating he had “only” carried out an order, and objectively had not had or subjectively had not seen a possibility not to carry it out. Objectively, according to the findings of the Higher Social Court – not attacked by the applicant with admissible objections, and based on the opinion of the expert witness – there was no situation of duress due to superior orders. Accordingly, the applicant would have had the possibility to refuse the order without direct danger for life or limb … It may be possible that the applicant was not aware of this or that he believed the refusal of an order brought with it a considerable danger for his own life. Insofar, he might have been in an error regarding the existence of a situation of duress (comp. Section 35, paragraph [2] of the Criminal Code). But also then there is – in view of an unlawful order – first of all an obligation to do everything that can be reasonably expected to avoid one’s own unlawful behaviour. Ultimately, the reason for committing the unlawful act must be that there is no way out of the situation … It is reasonably expected from the person in question to try to prevent the execution of the order, inhumane or contrary to the rule of law, or at least to keep himself out of the matter … In view of the particular reprehensibility and monstrosity of the action ordered, the applicant, as subordinate, if testing his conscience in the way reasonably to be expected from him, would have needed to realize that the execution of this order could never be lawful, that he at least needed to try to withdraw from its implementation. This applies independently from the level of education, from age or class, since the way these shootings were carried out had to form in any human being the conviction of the reprehensibility of the act … A person, however, who follows the order to such an inhumane act in blind obedience must be accused of having “blindly” followed orders, that is, without having tested his conscience … In such a case, also duress due to orders does not exclude the reproachability of the act, at least not if a perpetrator has not reflected on the point that the shooting of civilian persons in that form is an act morally to be condemned. It is this idea, to be allowed to destroy a human life arbitrarily, only because it was ordered, which speaks of the reprehensibility and therefore of the reproachability of the participation in such an act. 
Germany, Federal Social Court, Executions and Superior Orders case, Judgment, 24 November 2005.
Germany
In 2006, in the Service in a Concentration Camp and Superior Orders case, Germany’s Federal Social Court held:
13. The applicant’s appeal on points of law [Revision] is founded to the extent that the case is remanded to the Higher Social Court. Like the respondent and the lower instance courts, the Senate regards the applicant’s service as guard in the Auschwitz concentration camp as a continuous violation of the principles of humanity. The factual findings of the Higher Social Court are however not sufficient to exclude that the applicant was in a situation of duress due to superior orders.
23. The applicant’s behaviour in context with the violation of the principles of humanity, found above, was not justified by an order. The applicant may have acted upon orders as regards both the general service as guard and the “ramp service”. But this does not justify his behaviour, because the acts ordered were not lawful. General service as guard and “ramp service” obviously were, as work-sharing contributions to the destruction of human beings through forced labour and killing, a most grave wrong (comp. in this respect the exculpating ground “Acting upon order or instruction” regulated in Section 3 of the International Crimes Code).
24. On the basis of the findings of the Higher Social Court it cannot be conclusively decided whether the applicant is to be individually accused of this violation.
25. As the Senate explained in the leading judgement of 24 November 2005 [Federal Social Court, Judgement of 24 November 2005, B 9a/9 V 8/03 R, “Executions and superior orders”], establishing the subjective side of a violation of the principles of humanity does not require guilt in the criminal law sense. In a tiered system, the legal order knows numerous sanctions of differing intensity with which it can respond to behaviour hostile to the law or damaging to society. The provision on unworthiness in Section 1 a of the Federal War Victims Relief Act is embedded in this system of sanctions outside criminal law. The act violating the values of the principles of humanity is to be assessed without regard to their criminalization as crime or offence. Nevertheless, it must be possible individually to accuse the person in question of the act, as already apparent from the wording of Section 1 a, paragraph 1, sentence 2 of the Federal War Victims Relief Act. A personally culpable behaviour must be proven. Such an act is given whenever the person in question knew the facts which make his behaviour inhumane or contrary to the rule of law, if he was either aware that the behaviour was inhumane or contrary to the rule of law or would have needed to be aware of it when testing his conscience in the way that could reasonably be expected from him, and if there are no special grounds excluding culpability (comp. the Senate’s judgement [of 24 November 2005]). Except for the final one, the Higher Social Court has found these characteristics here, without legal fault.
26. According to the findings of the Higher Social Court, binding on the Senate …, the applicant knew that with his service as guard and his “ramp service” he contributed to the holding of detainees without legal ground, to detainees being made to do forced labour, and to the killing of detainees in large numbers.
27. Insofar as the applicant basically invokes “duress due to superior orders” (comp. in this context Section 35 of the Criminal Code), it is especially important whether he carried out the guard service out of fear for his life and limb and whether he did his utmost to evade the service ordered. Even in view of the monstrosity of the procedures in which he participated in Auschwitz it could in principle not reasonably be expected from him to give up his life. Rather, the gravity of the act is the standard against which the requirements to be asked of the applicant’s attempts to find a way out must be measured …
28. The belief, alleged by the applicant, that he would be executed if he refused to obey his orders, or that he would be taken to the SS penal camp Matzkau, can on its own not exculpate him. Even if open refusal to obey orders had been punished in the way he feared, he would have needed to do everything that could be reasonably expected from him to evade carrying out unlawful acts ordered. Only a situation from which there is no way out (actual or unavoidably erroneously assumed) could be exculpating. The Senate is not able to decide conclusively whether the applicant was in such a situation. 
Germany, Federal Social Court, Service in a Concentration Camp and Superior Orders case, Judgment, 6 July 2007, §§ 13 and 23–28.
Germany
In 2010, in the Boere case, Germany’s Regional Court of Aachen found Heinrich Boere, a German national, guilty of murder because he shot three Dutch nationals in 1941 during the German occupation of the Netherlands. The Court summarized the facts of the case as follows:
[A]t the beginning of the war between Germany and the Netherlands, the accused joined the Waffen-SS [Armed SS] and was a member of the Feldmeijer commando of the Germanic SS in the Netherlands when the crime was committed. … Together with other members of the Feldmeijer commando, the accused was tasked with the killing of [the three Dutch nationals] Fritz Hubert Ernst Bi., Teunis de G. and Frans Willem Ku. In the view of the accused, the killing of the pharmacist Bi. was an act of revenge and the individuals G. and Ku. were members of the resistance movement against whom countermeasures had to be taken because of a previous attack [against the German occupying forces]. 
Germany, Regional Court of Aachen, Boere case, Judgment, 23 March 2010, § 233.
The Court held:
237
The fact that the accused carried out orders does not stop his conviction [of murder].
238
Even if one considers that § 47 of the Military Criminal Code, as it stood at the time, was applicable to members of the commando Feldmeijer, § 47 para. 1 sentence 2 of the Military Criminal Code does not exempt the killings carried out by the accused from individual criminal responsibility.
239
According to this provision [of the Military Criminal Code], a subordinate carrying out an order can only be punished if he went beyond the order received in his official acts or if he was aware that his superior’s orders concerned an act whose objective was a general or military crime or misconduct.
241
However, it must be considered that the accused, contrary to his statement, knew during the insidious, arbitrary, abject, and cowardly killings of the victims that killing innocent civilians was unlawful and that he recognized the criminal character of the orders to carry out the killings. …
242
The facts as established by this Chamber do not include any clear indications that if the accused had not carried out the orders to shoot the victims, he would have had to fear for his life or would have experienced other serious disadvantages because of a refusal to carry out a superior order. The acts in question were thus not committed in fulfilment of the conditions for a state of emergency that would justify or excuse the commission of the crimes. 
Germany, Regional Court of Aachen, Boere case, Judgment, 23 March 2010, §§ 237–239 and 241–242.
Germany
In 2010, in the Italian Partisans case, Germany’s Federal Court of Justice was called upon to decide a case concerning the killing of nine Italian civilians in Tuscany in June 1944 by German troops. The Court summarized the facts of the case as follows:
2
… Two [German] soldiers, whom the accused had tasked with obtaining transport vehicles [as part of a mission to repair a bridge], were killed by partisans in an ambush. A third [German] soldier was injured. Since the partisans had absconded after the attack, the accused, motivated by rage and revenge, decided to take retaliatory measures against the male civilian population of the area. First, he reported the incident to the battalion commander and suggested to take action against the Italian civilians which he had already planned. Agreeing with the accused’s proposal, the battalion commander ordered the [retaliatory] measure and additionally provided logistic supported by making available an antiaircraft gun and explosives. The next day, the accused ordered the arrest of all male civilians in the area. In the end, the detainees comprised a group of nine men, the oldest of whom was 67 years old and which included two adolescents who were 15 and 16 years of age. None of them had participated in the attack or was suspected of supporting the partisans. They were locked into a house.
3
Although some detainees were afraid of being shot, others assumed that they would stay alive but would be deported to a concentration camp in Germany in order to work there. Soon, however, the house was destroyed by explosion. Subsequently, and also pursuant to the accused’s order, machine guns were fired at the debris in order to kill any surviving victims. In the end, only the fifteen-year-old survived with severe injuries. …
4
On this basis, the accused was convicted on ten counts of murder and attempted murder and sentenced to life imprisonment. 
Germany, Federal Court of Justice, Italian Partisans case, Decision, 25 October 2010, §§ 2–4.
The Court held: “The criminal chamber [of the lower court] rightly considered the killings of the Italian civilians ordered by the accused as murder.” 
Germany, Federal Court of Justice, Italian Partisans case, Decision, 25 October 2010, § 22.
The Court further held:
The present crime is not only based on the order by a superior but also corresponded to the accused’s plan to take revenge against the Italian civilian population, which he had already made prior to being given the order. It was solely for this reason that the accused proposed to the battalion commander to give the corresponding order. A person who has such a plan and who instigates the superior to lend his approval to the plan in the form of an order cannot be considered as having had to obey an order. This situation lacks the obligation to obey an order which would put the subordinate in a situation of conflict similar to a situation of necessity [that would relieve the subordinate from criminal responsibility]. 
Germany, Federal Court of Justice, Italian Partisans case, Decision, 25 October 2010, § 47.
Indonesia
In 2002, in the Abilio Soares case, the Ad Hoc Human Rights Tribunal for East Timor stated:
In considering, that from the above Statutes and tribunal judgments, and in development of legal principles that state that:
- orders from a superior are not grounds to exonerate a perpetrator from prosecution and punishment.
In considering, that ad hoc international criminal tribunal practices (ICTY and ICTR) and various international instruments have developed the above principles; through the description of individual responsibility parameters as follows:
- the excuse of superior’s orders shall not exonerate a person from criminal responsibility, but may be considered as a mitigating factor. 
Indonesia, Ad Hoc Human Rights Tribunal for East Timor, Abilio Soares case, 7 August 2002, pp. 54–55.
Iraq
In its judgment in the Al-Dujail case in 2006, the Iraqi High Tribunal stated:
When any defendant commits an act as a fulfilment of an order issued by the government or by his superior, this shall not exempt him from criminal responsibility, but it shall be permissible to take this into consideration for extenuating the punishment if the tribunal considers that administering justice requires it. 
Iraq, Iraqi High Tribunal, Trial Chamber, Al-Dujail case, Judgment, 5 November 2006, Part II, p. 43, based on a translation available at http://law.case.edu/saddamtrial/dujail/opinion.asp (last accessed on 1 April 2010).
Iraq
In its judgment in the Al-Anfal case in 2007, the Iraqi High Tribunal stated:
From analyzing the stipulation of clause (fifth) of the article (15), it is clear that the action which was carried out by the offender that caused the criminal result of any of the crimes within the jurisdictions of this tribunal will not be pardoned even if he was doing so complying with an order issued from the government or his designated leader either he is a military or civilian. 
Iraq, Iraqi High Tribunal, Al-Anfal case, Judgment, 24 June 2007, p. 140, based on a translation available at http://law.case.edu/grotian-moment-blog/anfal/opinion.asp (last accessed on 1 April 2010).
Israel
In its judgment in the Ofer, Malinki and Others case in 1958, Israel’s District Military Court for the Central Judicial District stated:
The rule is that obedience to an officer’s order, which by law a soldier is bound to obey, constitutes justification for the act, that is, exempts him from criminal responsibility. The exemption is that a manifestly illegal order does not constitute justification for the soldier’s actions; a soldier need not … obey a manifestly illegal order, and if he does obey it, he must bear … criminal responsibility for his actions. 
Israel, District Military Court for the Central Judicial District, Ofer, Malinki and Others case, Judgment, 13 October 1958.
Israel
In its judgment in the Ofer, Malinki and Others case in 1959, Israel’s Military Court of Appeal adopted these words and added:
These provisions are aimed at encouraging the moral and human conscience of our soldiers. A reasonable soldier can distinguish a manifestly illegal order on the face of it, without requiring legal counsel and without perusing the law books. These provisions impose moral and legal responsibility on every soldier, irrespective of rank. 
Israel, Military Court of Appeal, Ofer, Malinki and Others case, Judgment, 3 April 1959.
Israel
In its judgment in the Eichmann case in 1962, Israel’s Supreme Court, in response to the accused’s defence that it was “the oath of allegiance taken by [him] on joining the S.S. organization and the compelling force of Hitler’s order to destroy the Jews completely which guided him in acting as he did”, pointed to the distinction to be made between the defence of “obedience to superior orders” and “act of State” and stated:
The defence that the act was done in obedience to superior orders means ex hypothesi that the person who performed it had no alternative – either under the law or under the regulations of the disciplinary body (army etc.) of which he was a member – but to carry out the order he received from his superior … [This] makes it clear that the “superior orders” doctrine cannot, by its very nature, serve the appellant because, when we come to analyze the facts, it will be found that within the framework of the order to carry out the “Final Solution” the appellant acted independently and even exceeded the duties imposed on him through the service channels of the official chain of command …
The problem whether it is desirable to sanction this defence depends on the answer to the question whether, and to what extent, the mental state of the accused at the time of the offence ought to be taken into consideration – the fact that he did not then know that the order he carried out was contrary to the law. The via media solution provided by the general criminal law of this country … is that such defence is admissible where there was obedience to an order not manifestly unlawful … However, in Section 8 of the Nazis and Nazi Collaborators (Punishment) Law the legislature has provided that the defence of “superior orders” – and the same is true of the defences of “constraint” and “necessity” – shall not apply with respect to the offences covered by the Law, while in Section 11 it has provided that it is permissible, in certain circumstances, to take it into account as a factor in mitigation of sentence. We certainly agree with the District Court that even if it had to decide the case on the basis of the provisions of the general criminal law, it would also have had to reject that defence not only because the order for physical extermination was manifestly unlawful (and all the other orders to persecute the Jews were equally contrary to the “basic ideas of law and justice”), but also because the appellant was fully conscious at the same time that he was a party to the perpetration of the most grave and horrible crimes. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962.
As to the conformity of the relevant provision of Israel’s Nazis and Nazi Collaborators (Punishment) Law of 1950 with principles of international law, the Supreme Court ruled:
Our first answer to this question is that until the Second World War there was no agreed rule in the law of nations which recognized the defence of “superior orders”, not even with regard to the charge of committing an act contrary to “the laws of war” … There was … no departure from the provisions of international law – and this will be our second answer to the above question – when Article 8 of the [1945 IMT Charter (Nuremberg)] provided … that the fact that the accused acted pursuant to an order of a superior shall not free him from responsibility but that the Tribunal may take it into consideration in mitigation of punishment, should it find that justice so requires. It must be understood that this express provision was designed to defeat in advance any attempt by the Nazi criminals so to resort to the plea of respondeat superior as to reduce it to an absurdity, in view of the Fuehrerprinzip which dominated Nazi Germany and in the last analysis made it possible to identify Hitler alone as the source of the satanic orders in consequence of which the frightful Nazi crimes, including that of the “Final Solution”, were committed. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962.
Referring to the judgment of the International Military Tribunal for Germany in the case of the Major War Criminals, the Supreme Court went on to state:
It was there observed that the true test was not whether a superior order existed but “whether moral choice was in fact possible”. In other words, the mere plea of obedience to the order of a superior – as distinct from the plea that he could not avoid committing the crime because he had no “moral choice” to pursue any other course – will not avail the accused … As stated, the applicability of these defences as relieving from responsibility in respect of the offences the subject of the Law of 1950 has been excluded by Section 11 thereof. But even had the Law permitted the accused to rely on the defence that in carrying out the order to commit the crime he was acting in circumstances of “constraint” or “necessity”, he would still not succeed unless the following two facts were provided (1) that the danger to his life was imminent; (2) that he carried out the criminal assignment out of a desire to save his own life and because he found no other possibility of doing so … Neither of the said conditions has been met in this case. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962.
Italy
In its judgment in the Schintlholzer case in 1988, Italy’s Military Tribunal at Verona stated:
It is not possible to assert that [the accused’s] responsibility should be zero by simply transferring it to Schintlholzer’s superiors, such as the SS Major Rudolf Thyrolf or other officers in the hierarchy of the command chain, which if followed back would reach to the senior officer of the Joint Bolzano Command …
It is therefore hardly necessary to point out even in this connection that if it was ever possible to establish any collateral responsibility by known or unknown SS officials at an operating level, this would not in any way raise any questions about the responsibility of Schintlholzer, which has been proven at this level and in the context which has to be assessed here and now.
Thus, as far as criminal intent is concerned, evidence of awareness of the unlawful nature of the conduct involved in the barbaric images described in the preliminary reconstruction of the facts would appear to have been acquired.
Taking this together with the considerations just described concerning the possibility of collateral responsibility, it should be added that this awareness, and therefore awareness of the manifestly criminal nature of the massacre of non-combatants, cannot in fact be denied or justified through appeal to the orders of a superior. But this should in any event likewise be pursued if particulars emerge.
However, as things stand, the only order of which there is any trace in the documents relating to this case is the order for war against the partisans from the German Military Command in Bolzano, which in fact has nothing to do with the inhuman activities then engaged in by the “Schintlholzer” combat unit. 
Italy, Military Tribunal at Verona, Schintlholzer case, Judgment, 15 November 1988.
Italy
In its judgment in the Priebke case in 1996, Italy’s Military Tribunal of Rome stated that a subordinate who commits a crime acting on the basis of superior orders could not invoke it as a defence, except in the case of a real impending danger of losing his life. However, the Tribunal recalled that “the threat of exemplary and immediate punishment by death: in such a case, he could have stepped back from his refusal and participated in the execution only to save his own life relying upon the excuse of state of necessity which is foreseen in all legal systems”. Nevertheless, the Tribunal considered that superior orders could be considered in mitigation of punishment, pursuant to a provision of the 1930 Military Criminal Code. However, the Tribunal found that the accused could not be punished for reasons of statute of limitations. 
Italy, Military Tribunal of Rome, Priebke case, Judgment in Trial of First Instance, 1 August 1996.
On appeal, this judgment was annulled by the Supreme Court of Cassation and another trial ordered. 
Italy, Supreme Court of Cassation, Priebke case, Judgment in Trial of Second Instance, 15 October 1996.
Netherlands
In its judgment in the Zuhlke case in 1948, the Special Court at Amsterdam stated with regard to Article 8 of the 1945 IMT Charter (Nuremberg):
The accused has pleaded that official orders were given him by his superiors. The chief Prosecutor does not consider this plea to be admissible, himself referring to Art. 8 of the [1945 IMT] Charter whereby an official order was declared to be non-exculpatory. This provision, however, … has no direct application in the present case, but could apply indirectly if it were to be regarded as a rule concerning a special instance of an express general rule of international criminal law. It is the opinion of the Court that this is not so, and it cannot be understood why the exonerating effect of an official order, which is recognised in one form or another in practically all national legislations, should not be valid in the sphere of international criminal law. It must be assumed that its operation has been excluded with regard to the “major” criminals, because they were considered a priori to have wanted to take part in the criminal system of Germany and were, therefore, made individually responsible for the crimes they committed in this system. Consequently the accused has ground for his plea. 
Netherlands, Special Court at Amsterdam, Zuhlke case, Judgment, 3 August 1948.
However, in the case in question, the Court found that the plea of superior orders could not exonerate the accused from the charges. It based its findings on the opinion that subordinates were under an obligation not to carry out orders relating to “acts forbidden by international law” and that ignorance of the relevant rules did not “carry with it exclusion from penal liability” of the subordinates. 
Netherlands, Special Court at Amsterdam, Zuhlke case, Judgment, 3 August 1948.
Netherlands
In its judgment in the Zuhlke case in 1948, the Special Court of Cassation of the Netherlands stated:
If during the Second World War the doctrine “Befehl ist Befehl” (orders are orders) was sometimes carried out by the German forces to the extreme of its logical consequences for obviously criminal purposes, no longer compatible with the human dignity of the subordinates, there is no legal basis to do so, and an appeal to duress on the part of the subordinate concerned can at the most be admitted if actual requirements concerning such duress were present. The [appellant’s] plea of duress … is rejected on the sufficient grounds that it does not appear that any pressure was brought to bear upon him. 
Netherlands, Special Court of Cassation, Zuhlke case, Judgment, 6 December 1948.
Nigeria
In the Nwaoga case before Nigeria’s Supreme Court in 1972, the appellant and two officers of the rebel Biafran army disguised in civilian clothes went to a town under the control of federal troops and killed an unarmed person. The appellant was convicted of murder. With respect to the plea of superior orders, the Court quoted with approval another judgment, stating:
It was held that a soldier is responsible by military and civil law and it is monstrous to suppose that a soldier could be protected when the order is grossly and manifestly illegal. Of course, there is the other proposition that a soldier is only bound to obey lawful orders and is responsible if he obeys an order not strictly lawful.
In the case before me that order to eliminate the deceased was given by an officer of an illegal regime, his orders therefore are necessarily unlawful and obedience to them involves a violation of the law and the defence of superior orders is untenable. 
Nigeria, Supreme Court, Nwaoga case, Judgment, 3 March 1972.
The Court, however, chose to base its decision on the fact that the accused committed an offence under the Criminal Code, and was liable like any civilian would be, whether or not he was acting under orders. It held that, in the circumstances (operation in disguise, not in the rebel army uniform but in plain clothes, appearing to be members of the peaceful private population), he was liable to punishment since the “deliberate and intentional killing of an unarmed person living peacefully inside the Federal territory … is a crime against humanity, and even if committed during a civil war is in violation of the domestic law of the country, and must be punished”. 
Nigeria, Supreme Court, Nwaoga case, Judgment, 3 March 1972.
Norway
In its judgment in the Repak case in 2008, concerning crimes committed against civilian non-combatant Serbs in an internment camp in Bosnia-Herzegovina in 1992, resulting from which the defendant was convicted on 11 counts of the war crime of unlawfully confining a protected person, the District Court of Oslo held:
The circumstance that the defendant to a large extent acted on orders as regards arresting civilian Serbs and taking them to Dretelj [internment camp], is in the Court’s opinion not of significant importance as a mitigating circumstance. The Court considers that in war it is not extenuating to act on orders, and for others than soldiers of private rank the Court finds that orders will normally not be a significant mitigation circumstance. 
Norway, District Court of Oslo, Repak case, Judgment, 2 December 2008, § 264; see also § 126.
Peru
In 2007, in the Chuschi case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated regarding the crime of enforced disappearance that the “excuse of having followed orders shall not be admitted”. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 130.
The judgment by the National Criminal Chamber was partially appealed. On appeal, the Permanent Criminal Chamber stated in 2007:
[B]ecause of the evident unlawfulness of the acts which the accused committed, the seriousness of these acts and his obvious knowledge that superior orders must not be followed if they are aberrant or seriously violate human rights, the defence of superior orders is rejected. 
Peru, Supreme Court of Justice, Permanent Criminal Chamber, Chuschi case, Case No. 1598-2007, Judgment of 24 September 2007, p. 172.
Peru
In 2007, in the Valladares Olivares case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated:
[One of the accused] was performing military service under the orders of Valladares Olivares on the day of the events. Yet this does not mean that he is exempt from criminal responsibility on the basis of respect for the chain of command because of the evidently unlawful nature of the acts of torture and resulting death of the victim. 
Peru, Supreme Court of Justice, National Criminal Chamber, Valladares Olivares case, Case No. 039-06, Judgment of 23 November 2007, p. 59.
Peru
In 2009, in the Armed Forces case, 31 members of Peru’s Congress requested Peru’s Constitutional Court to declare unconstitutional Article 7(1)–(2) of Law No. 29166 of 20 December 2007, which establishes rules on the use of force by members of the armed forces on Peruvian territory. The Court declared the law partially unconstitutional and held:
International humanitarian law and international human rights law have established that compliance with superior orders does not exempt from responsibility the person who carries out the order if this order was manifestly unlawful. Both the [1945] Statute of the Nuremberg Tribunal (Article 8) and the [1998] Rome Statute of the International Criminal Court (Article 28) as well as other treaties have recognized this rule as a rule of customary international law. 
Peru, Constitutional Court, Armed Forces case, 9 September 2009, § 70.
Philippines
In its judgment in the Margen case in 1950, the Supreme Court of the Philippines held: “Obedience to an order of a superior gives rise to exemption from criminal liability only when the order is for some lawful purpose.” 
Philippines, Supreme Court, Margen case, Judgment, 30 March 1950.
South Africa
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.” 
South Africa, Appeal Division, Werner case, Judgment, 20 May 1947.
United Kingdom of Great Britain and Northern Ireland
In the Kramer case (Auschwitz and Belsen concentration camps case) in 1945, the British Military Court at Lüneberg rejected the defence of superior orders. It referred to Article 8 of the 1945 IMT Charter (Nuremberg) and quoted a comment of the International Military Tribunal (IMT), which stated: “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.” 
United Kingdom, Military Court at Lüneberg, Kramer case (Auschwitz and Belsen concentration camps case), Judgment, 17 November 1945.
United States of America
In its judgment in the Klein case (The Hadamar Trial) in 1945, the US Military Commission in Wiesbaden applied to the relationship of civilian employees to their superiors the doctrine that individuals who violate the laws and customs of war are criminally liable in spite of their acting under a superior order, if the order was illegal. 
United States, Military Commission in Wiesbaden, Klein case (The Hadamar Trial), Judgment, 8–15 October 1945.
United States of America
In the Krupp case in 1947/48, in which Alfried Krupp and eleven others were charged with having employed prisoners of war, forced labour and inmates of concentration camps in the German war industry, the US Military Tribunal at Nuremberg, in response to the argument of the defence that the accused had acted according to the Reich policies and to an order requiring certain production quota and that, if they had refused to do so, they would have suffered dire consequences, stated:
The real defense in this case … is that of necessity … Under the rule of necessity, the contemplated compulsion must actually operate upon the will of the accused to the extent he is thereby compelled to do what otherwise he would not have done … Here we are not dealing with necessity brought about by circumstances independent of human agencies or by circumstances due to accident or misadventure. On the contrary, the alleged compulsion relied upon is said to have been exclusively due to the certainty of loss or injury at the hands of an individual or individuals if their orders were not obeyed. In such cases, if, in the execution of the illegal act, the will of the accused be not thereby overpowered but instead coincides with the will of those from whom the alleged compulsion emanates, there is no necessity justifying the illegal act. 
United States, Military Tribunal at Nuremberg, Krupp case, Judgment, 17 November 1947–30 June 1948.
United States of America
In its judgment in the Krauch case (The I.G. Farben Trial) in 1947/48 in which leading German industrials were charged with employment of POWs, forced labour and concentration camp inmates in illegal work and under inhuman conditions, the US Military Tribunal at Nuremberg stated:
The IMT [International Military Tribunal] recognized that while an order emanating from a superior officer or from the government is not, of itself, a justification for the violation of an international law (though it may be considered in mitigation), nevertheless, such an order is a complete defense where it is given under such circumstances as to afford the one receiving it no other moral choice than to comply therewith. As applied to the facts here, we do not think there can be much uncertainty as to what the words “moral choice” mean. 
United States, Military Tribunal at Nuremberg, Krauch case (The I.G. Farben Trial), Judgment, 14 August 1947–29 July 1948.
United States of America
In the Griffen case in 1968, a US Army Board of Review approved the decision of the trial law officer who refused to give an instruction to the panel on the defence of obedience of orders, considering that an order to kill an unarmed and unresisting prisoner was “so palpably illegal on its face” that this defence was not an issue. 
United States, Army Board of Review, Griffen case, Judgment, 2 July 1968.
United States of America
In the Calley case in 1973, the US Army Court of Military Appeals approved the following instructions given to the panel by the trial judge in a case where the accused invoked an order to kill unresisting detainees:
The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful. 
United States, Army Court of Military Appeals, Calley case, Judgment, 21 December 1973.
[emphasis in original]
Citing a writer’s opinion, the Court stated:
For the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness
Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it can scarcely fail to be held justified by a military court. 
United States, Army Court of Military Appeals, Calley case, Judgment, 21 December 1973, referring to Col. William Winthrop, Military Law and Precedents, pp. 296–297, 2nd edition 1920 (reprint).
[emphasis in original]
United States of America
In his dissenting opinion in the Calley case in 1973, one of the judges stated:
My impression is that the weight of authority … supports a more liberal approach to the defense of superior orders. Under this approach, superior orders should constitute a defense except “in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal”.
While this test is phrased in language that now seems “somewhat archaic and ungrammatical”, the test recognizes that the essential ingredient of discipline in any armed force is obedience to orders and that this obedience is so important it should not be penalized unless the order would be recognized as illegal, not by what some hypothetical reasonable soldier would have known, but also by “those persons at the lowest end of the scale of intelligence and experience in service”. This is the real purpose in permitting superior orders to be a defense, and it ought not to be restricted by the concept of a fictional reasonable man so that, regardless of his personal characteristics, an accused judged after the fact may find himself punished for either obedience or disobedience, depending on whether the evidence will support the finding of simple negligence on his part …
Because the original case language is archaic and somewhat ungrammatical, I would rephrase it to require that the military jury be instructed that, despite his asserted defense of superior orders, an accused may be held criminally accountable for his acts, allegedly committed pursuant to such orders, if the court members are convinced beyond a reasonable doubt (1) that almost every member of the armed forces would have immediately recognized that the order was unlawful, and (2) that the accused should have recognized the order’s illegality as a consequence of his age, grade, intelligence, experience, and training. 
United States, Army Court of Military Appeals, Calley case, Dissenting opinion of Judge Darden, 21 December 1973.
United States of America
The Agent Orange case in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers, for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. With regard to the defence of necessity, the Court stated:
[T]he concerns of the United States about the terms of the Statute of the International Criminal Court, adopted in Rome on July 17, 1998, based on solicitude for soldiers who have to decide in the heat of battle whether to obey an order which may violate human rights, as suggested in the discussion of proportionality infra Part XI.D.3., is quite different from that of a corporation which can consult counsel and reflect before following an illegal order to supply products to be used to harm people in violation of international law. See, e.g., L. Doswald-Beck, The Value of the 1977 Geneva Protocols for the Protection of Civilians, in ARMED CONFLICT AND THE NEW LAW: ASPECTS OF THE 1977 GENEVA PROTOCOLS AND THE 1981 WEAPONS CONVENTION 137, 149-50 (Michael A. Meyer, ed., 1989) (discussing special problems in guerilla warfare where combatants may hide among civilians); Paola Gaeta, The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law, 10 EUR. J. INT’L L. 172 (1999); Charles Garraway, Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied, INT’L REV. OF THE RED CROSS, No. 836, at 785 (1999) …
Defendants in the case at bar were ordered by the government to produce as much Agent Orange as they could and to promptly deliver it to the government. Such a commercial order, even in wartime, hardly constitutes “necessity” under domestic or international law.
We are a nation of free men and women habituated to standing up to government when it exceeds its authority. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (holding that seizure of steel mill during a war on an order of the President “to avert a national catastrophe” in his position as Commander-in-Chief of the armed forces exceeded his constitutional power). Under the circumstances of the present case, necessity is no defense. If defendants were ordered to do an act illegal under international law they could have refused to do so, if necessary by abandoning their businesses.  
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, pp. 154–157.
[emphasis in original]
Argentina
At the CDDH, with respect to Article 77 of the draft Additional Protocol I submitted by the ICRC, Argentina explained its negative vote by referring to a great difficulty rooted in the determination of the degree of scrutiny of the orders required from the subordinate, which also varied according to his hierarchical rank. 
Argentina, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 329.
However, in the debates in Committee I of the CDDH, Argentina had stated that “on the whole, [it] supported the ICRC text of article 77, which retained [the principle of due obedience]” and that it “accepted what might be termed ‘the human function of due obedience’, in other words that in case of the flagrant breach of a fundamental humanitarian principle exoneration on account of due obedience did not apply”. 
Argentina, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.52, 6 May 1976, pp. 141–142, §§ 31 and 33.
Australia
At the CDDH, Australia submitted an amendment concerning Article 77 of the draft Additional Protocol I which read: “In paragraph 2 delete the words ‘and that he had the possibility of refusing to obey the order’”. 
Australia, Amendment submitted to the CDDH concerning Article 77 of the draft Additional Protocol I, Official Records, Vol. III, CDDH/I/255, 24 March 1975, p. 331.
Later at the CDDH, Australia stated that it “supported the objectives sought in the ICRC text of article 77 [of the draft Additional Protocol I]”. 
Australia, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.51, 5 May 1976, p. 128, § 26.
With respect to its amendment submitted in 1975, it also stated that in this text “there was no provision which would give immunity to a soldier if he had had no opportunity of refusing to obey an order”. 
Australia, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.51, 5 May 1976, p. 128, § 28.
Belgium
In an explanatory memorandum submitted to the Belgian Senate in the context of the adoption of the Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols in 1991, which excludes the defence of superior orders in cases “where, in the prevailing circumstances, the order could clearly result in the commission of a crime of genocide or of a crime against humanity … or a grave breach of the Geneva Conventions … and their Additional Protocol I”, it is stated that the words “if he had the option of not obeying” were omitted since this would necessarily be deduced from general principles of penal law regarding compulsion. 
Belgium, Senate, Explanatory Memorandum, Draft Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1990–1991 Session, Doc. 1317-1, 30 April 1991, p. 15.
Bosnia and Herzegovina
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “No regulation whatsoever prescribes that the orders of a superior officer or authority may be invoked as justification of torture.”  
Bosnia and Herzegovina, Initial report to the Committee against Torture, 29 July 2005, UN Doc. CAT/C/21/Add. 6, submitted 4 October 2004, § 151.
Cameroon
In 2003, in its third periodic report to the Committee against Torture, Cameroon stated:
121. Under article [8]3 of the Criminal Code [Penal Code (1967)], obeying an order from a legitimate authority constitutes grounds for absolute discharge. For such an excuse to be invoked, however, the order itself must be legal. Thus the carrying out of a manifestly illegal order is prohibited, as is the exercise of excessive zeal in enforcing the law; responsibility rests with the perpetrators, whether in normal times or in a state of emergency. The law in this regard applies to all and, in every case where it is reported that a manifestly illegal order has been carried out, the perpetrators have been prosecuted and convicted. …
127. Likewise, in strictly judicial terms, it is fully accepted that, for public officials or civil servants, obeying the orders of a superior can never constitute a justification or an excuse. As the Cameroon Supreme Court, in its authoritative ruling No. 4 of 7 October 1969, ruled in a leading case:
“It is neither justification nor excuse for civil servants or officials to claim that they were obeying the orders of their superiors. Likewise, an accused person cannot invoke the orders of his employers in an attempt to exonerate himself from responsibility for an offence. Such a situation, if it were to be established, would not absolve the accused from responsibility, since no defendant can escape the penal consequences of his own personal actions unless he was compelled to take them by a force which he was unable to withstand.”
128. In respect of members of the military and other law-enforcement officials, it is important to modify the principle established in article 83, paragraph 1, of the Criminal Code, according to which, “criminal liability cannot be incurred for an act carried out on the orders of a competent authority to whom obedience is legitimately due”. Such an excuse, which provides grounds for absolute discharge, may be invoked only if the order itself is not manifestly illegal. 
Cameroon, Third periodic report to the UN Committee against Torture, 21 May 2003, UN Doc. CAT/C/34/Add.17, submitted 19 December 2002, §§ 121 and 127–128.
Canada
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.
Chad
In 2007, in its initial report to the Committee against Torture, Chad stated:
Article 143 [of the Criminal Code] states that:
Where a public official, agent or employee has ordered or committed an arbitrary act or an act infringing either individual liberty or the Constitution, he shall be sentenced to six months’ to five years’ imprisonment and a fine …
… If, however, it is established that he acted on the orders of his superiors in matters within their competence and to whom he owed hierarchical obedience, he shall be exempted from the penalty, which in such cases shall be applied only to the superiors who gave the order. 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, §§ 225–226.
Chad
In 2009, during the consideration of Chad’s initial report to the Committee against Torture, a statement of the delegation of Chad was summarized by the Committee in its records as follows: “Under articles 143, 145 and 156 of the Criminal Code … orders from a superior officer could not be invoked to justify torture.” 
Chad, Statement of the delegation of Chad before the Committee against Torture during the consideration of the initial report of Chad, 30 April 2009, published in the summary record of the 873rd meeting, 25 September 2009, UN Doc. CAT/C/SR.873, § 8.
Colombia
In 1997, in reply to a report of the Special Rapporteur of the UN Commission on Human Rights on Torture, the Colombian Government referred to its decision to present to Congress the reform of the military criminal justice system beginning in March 1997. As to the defence of obedience to superior orders, it stated that it “could only be invoked when the act was the result of a legitimate order and did not infringe fundamental rights”. 
Colombia, Reply of the government to a report of the Special Rapporteur on Torture of the UN Commission on Human Rights, referred to in UN Commission on Human Rights, Special Rapporteur on Torture, Fifth report, UN Doc. E/CN.4/1998/38, 24 December 1997, § 66.
Croatia
The Report on the Practice of Croatia states:
The position of the Croatian criminal law is that the superior order is not a valid defence against violations of international humanitarian law nor any other crime in general. To be found guilty for the offence it is not required that [the] subordinate … knows that he has the right to disobey “unlawful” order[s], but that he has to know that an act committed constitutes a crime or that the criminal character of the act must be obvious from the circumstances. 
Report on the Practice of Croatia, 1997, Chapter 6.9.
Ethiopia
In 1994, in a statement before the UN Commission on Human Rights, the Chief Special Prosecutor of the Ethiopian Transitional Government stated: “The Ethiopian Government … was aware that democracy could not allow criminals to go unpunished on the pretext that they had acted on government orders.”  
Ethiopia, Transitional Government, Chief Special Prosecutor, Statement before the UN Commission on Human Rights, 17 February 1994, UN Doc. E/CN.4/1994/SR.28, 22 January 1996, § 3.
France
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).
Article 16
Paragraph 1
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. 
France, Third periodic report to the Committee against Torture, UN Doc. CAT/C/34/Add.19, 10 January 2005, submitted 7 November 2003, §§ 22–26 and 225.
Guatemala
In 2006, during the consideration of the fourth periodic report of Guatemala before the Committee against Torture, a representative of Guatemala stated:
[T]here … [is] no specific rule against invoking an order from a superior … However, in accordance with article 156 of the Constitution, no public official, civilian or member of the armed forces … [is] obliged to obey an order which … [is] clearly illegal or … [entails] the commission of an offence. 
Guatemala, Statement before the Committee against Torture during the consideration of the fourth periodic report of Guatemala, 12 May 2006, UN Doc. CAT/C/SR.701, § 33.
Hungary
In 2004, in its fourth periodic report to the Committee against Torture, Hungary stated:
109. Section 123 of the Criminal Code provides:
(1) A soldier may not be punishable for his act executed upon order, except for the case if he knew that he commits a crime by the execution of that order.
(2) The person giving the order shall be liable for the crime committed upon order as perpetrator.
This provision is to be found in the General Part of the Criminal Code (Act IV of 1978), in chapter VIII, which relates to soldiers. For the purposes of the Criminal Code current members of the armed forces (army, border guards) and the official members of the police, penitentiary institutions and civil security services are to be regarded as soldiers.
114. Section 69 [of Act XLIII of 1996] provides as follows:
“Subsection 1: In performing duties members of the armed forces shall comply with the orders and instructions of their superiors unless they would commit criminal offence by complying.
“Subsection 2: With the exception set forth in subsection 1, members of the armed forces shall not deny compliance with unlawful orders or instructions.
“If the unlawfulness of the order or instruction is evident for the member of the armed forces he shall promptly call his superior’s attention to this fact. If upon that the superior still insists on issuing his order he shall put it in writing upon request to this effect by the subordinate. For the execution of unlawful order or instruction that person who has issued the order or the instruction shall be liable.”
118. Soldiers (within the meaning of the Criminal Code) who do not comply with orders are in violation of section 354 of the Criminal Code governing disobedience to orders.
119. With the exceptions specified above, soldiers shall not deny unlawful orders.
120. From these legal provisions it follows that within the circle of persons qualifying as soldiers subordinates shall be under the obligation of complying with orders unless they positively know that compliance would constitute a criminal offence. They shall not be punishable if they do not know that by complying with the order they commit a criminal offence since section 123 of the Criminal Code excludes the punishment of such persons. In that case, the person who has issued the order shall be liable. If the subordinate has recognized that by complying with the order he would commit a criminal offence and nevertheless still complies with the order, he shall be liable for the offence as perpetrator. 
Hungary, Fourth periodic report to the Committee against Torture, 14 February 2005, UN Doc. CAT/C/55/Add.10, submitted 16 June 2004, §§ 109, 114 and 118–120.
India
The Report on the Practice of India states that, in cases where armed force is used:
The police action or action of the armed forces will be questioned before a court of law. During such proceedings the person charged will not be [held] liable if it is established that he obeyed the superior orders which were lawful. 
Report on the Practice of India, 1997, Chapter 6.8.
However, the report states:
In view of the right and duty to disobey illegal superior orders … it is possible to suggest that the defence of superior orders will not be available in cases where lawfulness of police and military action is challenged as violative of humanitarian standards. The defence will be available only when the superior orders were lawful. 
Report on the Practice of India, 1997, Chapter 6.9.
Iran
At the CDDH, Iran stated that it was opposed to the insertion of Article 77 of the draft Additional Protocol I. 
Iran, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 307, § 3.
Israel
In 1950, during a debate in the Sixth Committee of the UN General Assembly, Israel, with respect to the interpretation of the 1945 IMT Charter (Nuremberg), stated:
There did not, however, appear to be any justification for asserting that the fact of having acted under orders might lessen the responsibility of the defendant, instead of considering that factor as having a bearing only on the punishment, or in omitting any reference in principle IV [of the Nuremberg Principles] to the authority of the Court to mitigate punishment. 
Israel, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/SR.236, 9 November 1950, § 60.
Israel
During a debate in Committee I of the CDDH, Israel stated that it “favoured the inclusion of Article 77 of the draft Protocol I” and that:
Although refusal to obey an order might strike against military discipline, the choice was one between, on the one hand, carrying out a manifestly illegal order – in other words perpetrating a violation of humanitarian law – and, on the other hand, respect for military discipline. But since it was a question of grave breaches, any violation of humanitarian law was far more dangerous in its effects than a possible failure to observe military discipline. Article 77 reflected fairly faithfully international criminal law as defined by the international military tribunals at the end of the Second World War. 
Israel, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.52, 6 May 1976, p. 143, § 40.
Israel
At the CDDH, Israel stated that it had voted in favour of Article 77 of the draft Additional Protocol I and that:
The article is a reflection of existing customary international law clearly enunciated in the Nürnberg principles and embodied in [Israeli law].
We regret that Article 77 was not adopted … and wish to state that the rule continues to be governed by customary international law. 
Israel, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 336.
Israel
In 1994, in its first periodical report to the UN Committee against Torture, Israel stated:
Regarding article 2(3) of the [1984 Convention against Torture], we refer to section 24(1)(a) of the Penal Law, 5737-1977 which allows the defence of acting under superior orders only where the orders are lawful. Where an order is manifestly illegal, as would be the case with an order to commit acts of torture, acting under such order would clearly not constitute a defence for a person accused of committing such acts. On this, we would refer to the decision of the Supreme Court, sitting as High Court of Justice (27.12.89) to make absolute decree against the chief Military Advocate, the chief of the General Staff and others, requiring them to commit an army officer for trial before a court martial for committing acts of torture against residents of certain Arab villages in Samaria (administered territories) during the course of putting down the Arab uprising (intifada) at its inception in January 1988. According to the findings of an investigation instituted at the request of the International Red Cross, the residents had been bound and severely beaten by orders of the said army officer. The court characterized such acts as repugnant to civilized standards of behaviour and rejected the plea that they were carried out as a result of the “uncertainty” that prevailed as to orders for quelling the intifada. (High Court case No. 425/89 Piskei Din (Supreme Court Judgements), vol. 43, Part IV, p. 718).  
Israel, Initial report of 25 January 1994 submitted to the Committee against Torture under Article 19 of the 1984 Convention against Torture, UN Doc. CAT/C/16/Add.4, 4 February 1994, § 9.
Kuwait
In an article published in a military review, a member of the Kuwaiti armed forces stated that if a soldier received a clearly illegal order, he had the duty to disobey it,
otherwise, the soldier will be subject to penal and civil responsibility for his solidarity with the commander, unless the violation of the law is unclear, to the extent that the commanded is deceived by the same. Then, only the commander will be questioned. If the inferior knows the crime in advance, he shall be totally responsible. He would not be exempted unless it was indicated that he was in a state of moral obligation by a leader, or in case of necessity or force majeure. 
Fellah Awad Al-Anzi, “The accomplishment of duties and the execution of military orders, their limits and constraints”, Homat Al-Watan, No. 149, p. 61.
Mexico
At the CDDH, Mexico stated that it would abstain from the vote on Article 77 of the draft Additional Protocol I “because it considered that Article 77 should apply not merely to grave breaches, but to all breaches”. 
Mexico, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 308, § 7.
Mongolia
In 1982, during a debate in the Sixth Committee of the UN General Assembly on the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind, Mongolia stated:
In considering and improving the text of the 1954 draft, the International Law Commission should seek to eliminate the ambiguities in some provisions and to reflect more fully the principles of the [IMT] Charters and judgements of the Nürnberg and Tokyo Tribunals. In that connection, the wording of [article 4] of the draft Code should be brought into line with that of [article 8] of the Charter of the International Military Tribunal. 
Mongolia, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/37/SR.54, 24 November 1982, § 19.
Netherlands
According to the Report on the Practice of the Netherlands, Article 10 of the Criminal Law in Wartime Act as amended, Article 3 of the Genocide Convention Act and Article 3 of the Torture Convention Act (which have been repealed by the International Crimes Act) at first glance seem to provide that acting on superior orders can neither serve as a justification nor as an excuse. However, the report states that this certainly was not Parliament’s intention. Parliament only intended to provide that superior orders as such cannot justify a violation of the laws and customs of armed conflict, genocide or torture, thereby acknowledging the possibility of having complied with superior orders serving as an excuse. The report further states that, pursuant to Article 10(1) of the Criminal Law in Wartime Act as amended, violations of the laws and customs of armed conflict would have to be judged according to the general principles of criminal law, including the defences of compulsion and necessity. 
Report on the Practice of the Netherlands, 1997, Chapter 6.9.
Norway
At the CDDH, Norway considered that “the rejection of Article 77 [of the draft Additional Protocol I] did not weaken the validity of the Nürnberg principles and of the rules of international law”. 
Norway, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 309, § 13.
Poland
At the CDDH, Poland expressed its regret that Article 77 of the draft Additional Protocol I had not been adopted and stated that “despite the rejection of the article, the Nürnberg principles remained important norms of international law”. 
Poland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 309, § 12.
Poland
In 1982, during a debate in the Sixth Committee of the UN General Assembly on the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind, Poland stated:
[Its] delegation had serious objections to article 4 of the 1954 draft, and in particular to the words “if, in the circumstances at the time, it was possible for him not to comply with that order”. That formulation was a fundamental departure from the principle of article 8 of the [1945 IMT Charter (Nuremberg)] which stated that action taken pursuant to an order of a Government or of a superior did not free an individual from responsibility, but could be considered in mitigation of punishment if the Tribunal determined that justice so required. 
Poland, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/37/SR.52, 22 November 1982, § 6.
Rwanda
The Report on the Practice of Rwanda, referring to a paper drafted by a military writer, states that during the training of Rwandan military officers it is taught that “most of the countries support the effective application of the system of manifestly illegal orders according to which a subordinate cannot be justified in executing a manifestly illegal order”. 
Report on the Practice of Rwanda, 1997, Chapter 6.9, referring to 2 Lt. C. Bizimungu, Synthèse de l’exposé sur la justice militaire, E.S.M., 12–13 November 1996, pp. 11–12.
Senegal
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
II. Implementation of the conclusions and recommendations of the Committee
The State party should, during its current legislative reform, consider introducing explicitly in national legislation the following provisions:
(a) The definition of torture set forth in article 1 of the Convention and the classification of torture as a general offence, in accordance with article 4 of the Convention, which would, inter alia, permit the State party to exercise universal jurisdiction as provided in articles 5 et seq. of the Convention;
(b) A blanket prohibition of any act of torture, with the stipulation that no exceptional circumstance may be invoked to justify torture, in accordance with article 2, paragraph 2, of the Convention;
(c) An express provision stipulating that an order from a superior officer or from a public authority may not be invoked to justify torture, in accordance with article 2, paragraph 3, of the Convention;
228. Points (a), (b) and (c) of this recommendation have been fully implemented. The full text of article 295-1 of the [1965 Penal] Code [as amended in 1996] provides evidence of this:
229. “Acts of torture are injuries, blows, physical or mental violence or other forms of assault intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity either for the purpose of obtaining information or a confession, imposing punishment by way of a reprisal or making threats or for any reason based on discrimination of any kind.
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture”. 
Senegal, Third periodic report to the Committee against Torture, 5 October 2011, UN Doc. CAT/C/SEN/3, submitted 9 February 2011, §§ 228–229.
Spain
At the CDDH, Spain stated with respect to Article 77(2) of the draft Additional Protocol I:
Responsibility exists when the circumstances in which the penal offence takes place do not prevent the realization that the order received implies the commission of a grave offence, although the fact must be considered, as an attenuating circumstance, that it is rationally impossible to disobey orders received. For that reason the principle affirmed in paragraph 2 is a valid one. 
Spain, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 338.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
The Convention against Torture Act (1994) removes any doubt on the availability of a justification, or an excuse for torture when it stipulates that, “any act constituting an offence under this Act was committed (a) at the time when there was a State of war, internal political instability or any public emergency; (b) on an order of a superior officer or a public authority, shall not be defence to such offence.” Thus … the offence, once committed, remains an offence and cannot be justified or excused regardless of the circumstances of commission of torture. 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, Annex, § 38.
[footnote in original omitted]
Switzerland
At the CDDH, Switzerland proposed an amendment concerning Article 77 of the draft Additional Protocol I, which aimed at deleting the Article. 
Switzerland, Amendment submitted to the CDDH concerning Article 77 of the draft Additional Protocol I, CDDH, Official Records, Vol. III, CDDH/I/303, 27 April 1976, p. 331.
Syrian Arab Republic
At the CDDH, the Syrian Arab Republic submitted the following amendment concerning Article 77 of the draft Additional Protocol I submitted by the ICRC:
Amend Article 77 as follows:
2. The fact of having acted pursuant to an order does not absolve an accused from penal responsibility if it be established that, in the circumstances at the time, he should have reasonably known that he was committing a grave breach of the Conventions or of the present Protocol and that he had the possibility of not carrying out the order. 
Syrian Arab Republic, Amendment submitted to the CDDH concerning Article 77 of the draft Additional Protocol I, CDDH, Official Records, Vol. III, CDDH/I/74, 20 March 1974, p. 331.
Later at the CDDH, the Syrian Arab Republic stated that it had voted against Article 77 of the draft Additional Protocol I “because it contravened international law”. It added:
The article rules on a matter of discipline between the individual concerned and the Government or authority to which he was subordinate, a matter which came under exclusive competence of the internal laws of States. Moreover, Article 77 was based on the rather dubious hypothesis that any subordinate would be able, in delicate circumstances, to distinguish between a legal and an illegal act and to make a valid appreciation of the legality of the order received. That hypothesis was pure fiction, for it was rarely that subordinates were acquainted with the legal nuances of often very lengthy texts, while any elementary knowledge that they might have of them would not enable them to make a valid judgement. In addition, Article 77 might well give rise to abuses under the screen of humanitarian law. It entailed incitement to disobedience or orders, which ran counter to the military codes of most States. 
Syrian Arab Republic, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, pp. 308–309, § 9.
Sudan
At the CDDH, the Sudan stated that it had voted against Article 77 of the draft Additional Protocol I because of the provisions contained in its paragraph 1, but that “if the article had been put to the vote paragraph by paragraph, [Sudan] would have voted … in favour of paragraph 2”. 
Sudan, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 339.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom, which opposed Article 77 of the draft Additional Protocol I submitted by the ICRC, stated that it
could not accept that there ought to be one system of law which related to grave breaches of the Conventions and Protocols, while other breaches, including breaches of customary law and of other Conventions, were subjected to an entirely different system. That state of affairs would clearly lead only to confusion in an area where it was vital to have simple rules which could be readily understood by soldiers.
The words “or should have known” in paragraph 2 appeared capable of a least two interpretations. If those words were to be taken as meaning that a soldier was to be expected to carry out his own detailed investigation of the facts of a situation before complying with an order, the result would not merely be impracticable but totally impossible in a combat situation.
Much the best course would be the omission of the article, leaving the situation to be regulated by the existing rules of international law concerning superior orders. Those rules were well understood and clearly explained in existing manuals on the law of armed conflict. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, pp. 307–308, §§ 4 and 6.
United Kingdom of Great Britain and Northern Ireland
In 1991, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated:
Anyone who breaks the provisions of the Geneva conventions may be held liable. Thus, individual Iraqis now bear personal responsibility for breaches of them. That position was reaffirmed in Security Council resolutions 670 and 674. The superior orders defence will not be accepted as an excuse. Machinery already exists under [the Geneva Conventions Act as amended (1957)] for prosecuting grave breaches of them. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 28 March 1991, Vol. 188, col. 1100.
United Kingdom of Great Britain and Northern Ireland
In 1993, in a “Non-Paper” discussing the 1993 ICTY Statute and transmitted to the UN Legal Counsel, the UK Foreign and Commonwealth Office stated:
We do not believe one should depart from the principle in Article 8 of the [1945 IMT Charter (Nuremberg)] … A similar provision is found in Article 2(3) of the [1984 Convention against Torture]. These provisions are preferable to that in Article 11 of the [1991 ILC] draft Code of Crimes [against the Peace and Security of Mankind]. Under that an individual would not be relieved of criminal responsibility if “in the circumstances at the time, it was possible for him not to comply with an order of a superior”. This language, drawn from the 1954 Draft Code [of Offences against the Peace and Security of Mankind] would seem to make a large inroad into the Nuremberg rule and go against the general trend internationally towards the expansion of individual responsibility. 
United Kingdom, Foreign and Commonwealth Office, Non-Paper, Former Yugoslavia: War Crimes Implementation of Resolution 808, 22 March 1993, reprinted in BYIL, Vol. 64, 1993, p. 701.
United States of America
At the CDDH, the United States submitted an amendment relative to Article 77 of the draft Additional Protocol I which read:
Delete the word “grave” from paragraph 1.
Amend paragraph 2 to read:
“The fact of having acted pursuant to an order of his government or of a superior does not absolve an accused person from responsibility if it be established that, in the circumstances at the time, he knew or should have known that he was committing a breach of the Conventions or of the present Protocol. The fact that the individual was acting pursuant to orders may, however, be taken into account in mitigation of punishment.” 
United States, Amendment submitted to the CDDH concerning Article 77 of the draft Additional Protocol I, CDDH, Official Records, Vol. III, CDDH/I/308, 27 April 1976, p. 332.
United States of America
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the United States stated that under Article 7 of the 1993 ICTY Statute “it is, of course, a defence that the accused was acting pursuant to orders where he or she did not know the orders were unlawful and a person of ordinary sense and understanding would not have known the orders to be unlawful”. 
United States, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, p. 16.
Uruguay
During a debate in Committee I of the CDDH, Uruguay, although criticising Article 77 of the draft Additional Protocol I submitted by the ICRC, stated that it “supported the principles underlying Article 77, which undoubtedly had its place in the section of the draft Protocol I dealing with the repression of breaches”. 
Uruguay, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.52, 6 May 1976, p. 144, § 45.
Uruguay
A commentary relative to the Military Penal Code (as amended) of Uruguay states:
Article 29 exempts from liability anyone who executes an act of due obedience. The defence of due obedience is allowable for military personnel only under the following conditions: The illicit act must be the result of an order; the order must correspond to an act committed in the course of duty; it must have been issued by one who is competent to give it; and the subordinate must have a legal obligation to carry it out. It is considered that in the military system the subordinate must be fully protected when acting in accordance with due obedience, because in this way discipline is asserted and the prestige of the superior’s authority is strengthened … One of the problems [is], if the rule functions, when the order is clearly unlawful; in other words, if the subordinate agent of the offence has the obligation to analyse the order and determine its lawfulness or unlawfulness … The solution adopted by our law code therefore establishes a priori the presumption that all the elements required to absolve the agent of liability on grounds of due obedience are present, without prejudice to the judge’s authority to analyse the evidence in the light of the subordinate’s personal characteristics, the seriousness and appropriateness of the act, and whether it was carried out in peacetime or wartime, and, on the basis of this analysis, to decide whether liability may properly be transferred completely from the agent to the superior, or whether, on the contrary, there has been certain unlawful conduct on the agent’s part that would make him partially liable, or whether the order was twisted and the agent’s exoneration from liability is therefore unjustified. 
Néstor J. Bolentini, Commentary and Annotations on the Military Penal Code as amended (1943), Bibilioteca General Artigas, Vol. 57, Centro Militar, 1979, Article 17, pp. 25–26.
Venezuela
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
Similarly, article 25 of the Constitution, which sets out the liability of public officials who participate in or tolerate acts of torture, does not exonerate from blame officials who claim that they were carrying out superior orders: “Any act issued in the exercise of public authority that breaches or impairs the rights guaranteed by the Constitution and the laws is null and void and public officials ordering or implementing it incur criminal, civil or administrative liability, depending on the case, and may not avail themselves of the excuse of superior orders.” 
Venezuela, Combined third and fourth periodic reports to the Committee against Torture, 12 February 2013, UN Doc. CAT/C/VEN/3-4, submitted 11 September 2012, § 27.
[footnote in original omitted]
Venezuela
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
It should be noted that, since the reform of the Criminal Code in 2000, the offence of enforced disappearance has been included as an autonomous offence that does not allow exemptions of responsibility on grounds of higher orders or instructions issued by civil, military or other authorities. 
Venezuela, Fourth periodic report to the Human Rights Committee, 29 April 2013, UN Doc. CCPR/C/VEN/4, submitted 18 December 2012, § 89.
Yemen
At the CDDH, Yemen, which voted against Article 77 of the draft Additional Protocol I submitted by the ICRC, stated in its explanation of vote:
On juridical grounds, and also for practical reasons, my delegation voted in Committee I as well as in the plenary of the Conference against retaining Article 77. On juridical grounds, because in the article there is a certain imbalance between international humanitarian law and the internal law on which all military discipline is based. That principle is confirmed by the constitutional regulations of all countries and by the principles of international law. The relationship between citizens and the authority under whose jurisdiction they come in institutional matters is essentially a question of internal law of the State to which they belong.
The practical reasons are concerned with the contents of the article, which raises difficulties because of its exaggeration and ambiguity. According to the article, a mere subaltern bears an enormous responsibility, not only when he is fully aware that he is committing a breach of the Conventions of or the Protocol, but also – and to a very large degree – when the article assumes that the soldier knew, or should have known, that he was committing a breach. It is also an exaggeration to expect the soldier to grasp the nuances in dense legal texts so as to be able to make a suitable assessment of the orders he receives. There can be little doubt that such a situation might well shake the military discipline in force in the various States. 
Yemen, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, pp. 331–332.
Yugoslavia, Socialist Federal Republic of
In 1950, during a debate in the Sixth Committee of the UN General Assembly, the delegation of the Socialist Federal Republic of Yugoslavia commented on Principle IV of the 1950 Nuremberg Principles to the effect that:
It felt that the [International Law Commission] had departed here from the charter and judgement of Nürnberg. According to those instruments, the fact that a person who committed a criminal act had acted pursuant to an order of his government or of a superior, did not relieve him from responsibility but in exceptional cases might be considered in mitigation of punishment. If this position was supplemented by the criterion of “possible moral choice”, the number of cases in which the court could acquit the guilty would be increased. Moreover, the courts might consider that the very fact that a person was in a subordinate position limited the moral choice possible to him. It was to be feared that the modification of the principle would give rise to ambiguity, and prejudice in application. Apart from that, the Yugoslav delegation fully understood the feelings of the members of the [International Law Commission] which made them want to avoid having the penalty automatically applied to subordinates and to place the responsibility upon superiors. Even though the question was left to discretion of the court, it could give rise to abuse. 
Yugoslavia, Socialist Federal Republic of, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/SR.234 (1950), 6 November 1950, § 14.
Zimbabwe
The Report on the Practice of Zimbabwe states: “The defence of superior orders is recognized in Zimbabwean criminal law and would be applicable even where breaches of international humanitarian law are concerned but only if the orders given are not manifestly illegal.” 
Report on the Practice of Zimbabwe, 1998, Chapter 6.9.
UN Secretary-General
In 1993, in his report to the UN Security Council on the draft ICTY Statute, the UN Secretary-General stated:
Acting upon an order of a Government or a superior cannot relieve the perpetrator of the crime of his criminal responsibility and should not be a defence. Obedience to superior orders may, however, be considered a mitigating factor, should the [ICTY] determine that justice so requires. For example, the [ICTY] may consider the factor of superior orders in connection with other defences such as coercion or lack of moral choice. 
UN Secretary-General, Report pursuant to Paragraph 2 of Security Council Resolution 808 (1993), voting record: 15-0-0, UN Doc. S/25704, 3 May 1993, § 57.
UN Commission on Human Rights
In a resolution adopted in 2005 on impunity, the UN Commission on Human Rights:
Urges all States to ensure that all military commanders and other superiors are aware of the circumstances in which they may be criminally responsible under international law for genocide, crimes against humanity and war crimes, including, under certain circumstances, for these crimes when committed by subordinates under their effective authority and control, and to ensure that all relevant personnel are informed of the limitations that international law places on the defence of superior orders. 
UN Commission on Human Rights, Res. 2005/81, 21 April 2005, § 6, adopted without a vote.
UN Commission on Human Rights (Special Rapporteur)
In 1997, the Special Rapporteur of the UN Commission on Human Rights on Torture recommended to the Government of Colombia that a reform of the Code of Military Justice should include, inter alia, the “elimination of the principle of obedience to superior orders in connection with executions, torture and enforced disappearances”. 
UN Commission on Human Rights, Special Rapporteur on Torture, Fifth report, UN Doc. E/CN.4/1998/38, 24 December 1997, § 65.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) recalled that it had made the following statement in its first interim report:
A subordinate who has carried out an order of a superior or acted under government instructions and thereby has committed a war crime or a crime against humanity, may raise the so-called defence of superior orders, claiming that he cannot be held criminally liable for an act he was ordered to commit. The Commission notes that the applicable treaties unfortunately are silent on the matter. The Commission’s interpretation of the customary international law, particularly as stated in the Nuremberg principles, is that the fact that a person acted pursuant to an order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact available to him. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 61.
The Commission noted with satisfaction that Article 7(4) of the 1993 ICTY Statute had adopted an essentially similar approach on this subject. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 62.
With regard to the “type, range and duration of the violations” committed during the conflict in the former Yugoslavia, the Commission further noted:
[They] indicate that the absolute defence of obedience to superior orders is invalid and unfounded … This is particularly evident in view of the loose command and control structure where unlawful orders could have been disobeyed without individuals risking personal harm. Indeed, some did. A moral choice usually existed. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 318.
UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994)
In 1994, in its final report on grave violations of IHL in Rwanda, the UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994), referring to Article 8 of the 1945 IMT Charter (Nuremberg), noted:
Since the inception of the Nuremberg Charter it has been recognized that the existence of superior orders does not provide an individual with an exculpatory defence. Nevertheless, the existence of superior orders may be taken into account with respect to mitigation of punishment. 
UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994), Final report, UN Doc. S/1994/1405, 9 December 1994, § 175.
International Law Commission
In its Commentary on Article 11 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, the International Law Commission referred to the decisions of the military tribunals after the Second World War and stated:
It is … recognized that, if a superior order is also to entail the responsibility of the subordinate, he must have had a choice in the matter and a genuine possibility of not carrying out the order. Such circumstances would not exist in cases of irresistible moral or physical coercion, state of necessity and obvious and acceptable error. 
International Law Commission, Commentary on Article 11 of the 1991 Draft Code of Crimes against the Peace and Security of Mankind, included in Report of the International Law Commission on the work of its Forty-third Session, UN Doc. A/CN.4/SER.A/1991/Add.1 (Part 2), 1991, §§ 2 and 3.
International Law Commission
In its commentary on Article 5 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, the International Law Commission, referring to various international instruments and judgments, noted:
(3) Article 5 addresses the criminal responsibility of a subordinate who commits a crime while acting pursuant to an order of a Government or a superior … The culpability and the indispensable role of the subordinate who actually commits the criminal act cannot be ignored. Otherwise the legal force and effect of the prohibition of crimes under international law would be substantially weakened by the absence of any responsibility or punishment on the part of the actual perpetrators of the heinous crimes and thus of any deterrence on the part of the potential perpetrators thereof.
(4) The plea of superior orders is most frequently claimed as a defence by subordinates who are charged with the type of criminal conduct covered by the Code. Since the Second World War the fact that a subordinate acted pursuant to an order of a Government or a superior has been consistently rejected as a basis for relieving a subordinate of responsibility for a crime under international law …
(5) Notwithstanding the absence of any defence based on superior orders, the fact that a subordinate committed a crime while acting pursuant to an order of his superior was recognized as a possible mitigation factor which could result in a less severe punishment in the [1945 IMT Charter (Nuremberg] and the subsequent legal instruments … The mere existence of superior orders will not automatically result in the imposition of a lesser penalty. A subordinate is subject to a lesser punishment only when a superior order in fact lessens the degree of his culpability … A subordinate who unwillingly commits a crime pursuant to an order of a superior because of the fear of serious consequences for himself or his family resulting from a failure to carry out that order does not incur the same degree of culpability as a subordinate who willingly participates in the commission of a crime …
(6) Article 5 reaffirms the principle of individual criminal responsibility under which a subordinate is held accountable for a crime against the peace and security of mankind notwithstanding the fact that he committed such a crime while acting under the orders of a Government or a superior. 
ILC, Commentary on Article 5 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, included in Report of the International Law Commission on the work of its Forty-eighth Session, UN Doc. A/CN.4/SER.A/1996/Add.1 (Part 2), §§ 3–6.
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International Military Tribunal for Germany
In its judgment in the case of the Major War Criminals in 1946, the defence of superior orders was dismissed by the International Military Tribunal for Germany, which stated:
The provisions of this Article [i.e. Article 8 of the 1945 IMT Charter (Nuremberg)] are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. 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. 
International Military Tribunal for Germany, Case of the Major War Criminals, Judgment, 1 October 1946.
International Criminal Tribunal for the former Yugoslavia
In the Erdemović case in 1997, the ICTY Appeals Chamber found that “duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings”. 
ICTY, Erdemović case, Judgment on Appeal, 7 October 1997, Part IV, Disposition, § 4.
International Criminal Tribunal for the former Yugoslavia
In their joint separate opinion in the Erdemović case before the ICTY in 1997, Judge McDonald and Judge Vohrah stated:
Superior orders and duress are conceptually distinct and separate issues and often the same factual circumstances engage both notions, particularly in armed conflict situations. We subscribe to the view that obedience to superior orders does not amount to a defence per se but is a factual element which may be taken into consideration in conjunction with other circumstances of the case in assessing whether the defences of duress or mistake of fact are made out. 
ICTY, Erdemović case, Judgment on Appeal, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, § 34.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Erdemović case in 1998, the ICTY Trial Chamber accepted that “the accused committed the offence in question [i.e. a violation of the laws and customs of war] under threat of death”. However, it sentenced the accused for “the violation of the laws and customs of war” to which the accused himself had pleaded guilty. 
ICTY, Erdemović case, Sentencing Judgment bis, 5 March 1998, §§ 16 and 23.
The Trial Chamber applied the ruling of the Appeals Chamber in the same case and stated:
Duress may be taken into account only by way of mitigation … The evidence reveals the extremity of the situation faced by the accused. The Trial Chamber finds that there was a real risk that the accused would have been killed had he disobeyed the order. He voiced his feelings, but realised that he had no choice in the matter: he had to kill or be killed. 
ICTY, Erdemović case, Sentencing Judgment bis, 5 March 1998, § 17.
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered whether following superior orders would relieve an accused of individual criminal responsibility, stating.
551. Article 29(4) of the ECCC Law [Law on the Establishment of the ECCC (2001), as amended in 2004] provides:
The fact that a Suspect acted pursuant to an order of the Government of Democratic Kampuchea or of a superior shall not relieve the Suspect of individual criminal responsibility.
552. Other international legal instruments, such as the [1945] Nuremberg Charter and the ad hoc Tribunal Statutes, also provide that acting pursuant to superior orders does not constitute a legitimate defence to charges of crimes against humanity and war crimes. However, Article 33 of the [1998] Rome Statute excludes individual criminal responsibility for war crimes where the Accused did not know that the order was unlawful and the order was not manifestly unlawful. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 551–552.
[footnotes in original omitted]
Human Rights Committee
In its General Comment on the Nature of the General Legal Obligation Imposed on States Parties under the 1966 International Covenant on Civil and Political Rights in 2004, the Human Rights Committee held: “Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders.” 
Human Rights Committee, General Comment No. 31 [Nature of the General Legal Obligation Imposed on States Parties to the Covenant], 26 May 2004, § 18.
UN Committee against Torture
In 1994, in its concluding observations, the Committee against Torture, reacting against the recommendation of the Landau Commission that “psychological forms of pressure be used predominantly and that only ‘moderate physical pressure’ be sanctioned in limited cases where the degree of anticipated danger is considerable” considered that “it is a matter of deep concern that Israeli law pertaining to the defences of ‘superior orders’ and ‘necessity’ are in clear breach of that country’s obligations under Article 2 of the [1984 Convention against Torture]”. 
UN Committee against Torture, Report, UN Doc. A/49/44, 24 April 1994, § 167.
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