Syrian Arab Republic
Practice Relating to Rule 155. Defence of Superior Orders
At the CDDH, the Syrian Arab Republic submitted the following amendment concerning Article 77 of the draft Additional Protocol I submitted by the ICRC:
Amend Article 77 as follows:
2. The fact of having acted pursuant to an order does not absolve an accused from penal responsibility if it be established that, in the circumstances at the time, he should have reasonably known that he was committing a grave breach of the Conventions or of the present Protocol and that he had the possibility of not carrying out the order.
Later at the CDDH, the Syrian Arab Republic stated that it had voted against Article 77 of the draft Additional Protocol I “because it contravened international law”. It added:
The article rules on a matter of discipline between the individual concerned and the Government or authority to which he was subordinate, a matter which came under exclusive competence of the internal laws of States. Moreover, Article 77 was based on the rather dubious hypothesis that any subordinate would be able, in delicate circumstances, to distinguish between a legal and an illegal act and to make a valid appreciation of the legality of the order received. That hypothesis was pure fiction, for it was rarely that subordinates were acquainted with the legal nuances of often very lengthy texts, while any elementary knowledge that they might have of them would not enable them to make a valid judgement. In addition, Article 77 might well give rise to abuses under the screen of humanitarian law. It entailed incitement to disobedience or orders, which ran counter to the military codes of most States.