Practice Relating to Rule 154. Obedience to Superior Orders
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 an intentional offence in execution of an order or instruction known to be illegal, shall be liable under the usual terms. Failure to execute an 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.
The Report on the Practice of the Russian Federation states: “No document of the CIS [Commonwealth of Independent States] countries [contains] a provision that a superior’s order can be omitted if it would mean a violation of the rules of IHL.” However, the report also notes: “The right of a subordinate to disobey a superior’s order violating the rules of IHL can be inferred from the provision that a violation of the rules of IHL is considered to be a war crime and is prosecuted as a penal offence.”
45. … Regarding respect of administrative hierarchy, article 48, paragraph 2, of the Constitution, provides that any citizen has the right to defy orders received from his or her superior authority if the orders constitute a serious and manifest violation of human rights and public freedom.
[footnote in original omitted]