Practice Relating to Rule 155. Defence of Superior Orders
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.
[emphasis in original]
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”.
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.
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.
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.
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.
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.
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.