Practice Relating to Rule 155. Defence of Superior Orders
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.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
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.
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’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.
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.
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.
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.
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.
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.
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.
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.
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.
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).