Practice Relating to Rule 155. Defence of Superior Orders
Yemen’s Military Criminal Code (1998) states:
In the case of the commission of any of the crimes set out under this chapter [i.e. war crimes], … the subordinate will be held responsible for the crime and will not be released from the punishment provided for, except if the acts have been committed against [his] choice, or without [his] knowledge, or if [he] did not have the possibility to prevent them.
At the CDDH, Yemen, which voted against Article 77 of the draft Additional Protocol I submitted by the ICRC, stated in its explanation of vote:
On juridical grounds, and also for practical reasons, my delegation voted in Committee I as well as in the plenary of the Conference against retaining Article 77. On juridical grounds, because in the article there is a certain imbalance between international humanitarian law and the internal law on which all military discipline is based. That principle is confirmed by the constitutional regulations of all countries and by the principles of international law. The relationship between citizens and the authority under whose jurisdiction they come in institutional matters is essentially a question of internal law of the State to which they belong.
The practical reasons are concerned with the contents of the article, which raises difficulties because of its exaggeration and ambiguity. According to the article, a mere subaltern bears an enormous responsibility, not only when he is fully aware that he is committing a breach of the Conventions of or the Protocol, but also – and to a very large degree – when the article assumes that the soldier knew, or should have known, that he was committing a breach. It is also an exaggeration to expect the soldier to grasp the nuances in dense legal texts so as to be able to make a suitable assessment of the orders he receives. There can be little doubt that such a situation might well shake the military discipline in force in the various States.