Practice Relating to Rule 155. Defence of Superior Orders
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’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.
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.
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.