Practice Relating to Rule 155. Defence of Superior Orders
Côte d’Ivoire’s Teaching Manual (2007) notes in Book I (Basic instruction):
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.
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.