Practice Relating to Rule 154. Obedience to Superior Orders
South Africa’s LOAC Manual (1996) states:
Every soldier has a duty to obey lawful orders of superiors. Failure to do so is a serious offence. However, an order to commit a war crime is an unlawful order. A person who commits a war crime pursuant to an order is guilty of a war crime if that person knew or should have known that the order was unlawful.
The manual further states: “The Constitution of the Republic of South Africa, 1996, provides that ‘no member of any security service may obey a manifestly illegal order’ [Section 199(6)].”
South Africa’s Medical Services Military Manual provides: “When an order is manifestly illegal the subordinate has the duty to refuse to obey.”
South Africa’s Revised Civic Education Manual (2004) states: “[A]n order to commit a war crime is an illegal order. … The Constitution of the Republic of South Africa, 1996,
provides that ‘no member of any security service may obey a manifestly illegal order’ (Section 199(6)).”
South Africa’s LOAC Teaching Manual (2008) states:
- When issuing orders to subordinates, commanders must ensure that:
- Subordinates are only issued with orders that are realistic and that can be executed legally in accordance with the LOAC [law of armed conflict];
- Orders contain all the necessary information needed to ensure respect for the LOAC;
- No subordinates are allowed to obey a manifestly unlawful order[.]
South Africa’s Code of Military Discipline (1957), as amended in 1995, in a provision entitled “Disobeying lawful commands or orders”, provides:
Any person who in wilful defiance of authority disobeys any lawful command given personally by his superior officer in execution of his duty, whether orally, in writing or by signal, shall be guilty of an offence and liable on conviction.
South Africa’s Constitution (1996) provides: “No member of any security service [i.e. defence force, police force and intelligence services] may obey a manifestly illegal order.”
South Africa’s Defence Act (2002) provides: “No member of the Defence Force may obey a manifestly illegal order.”
South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:
Offences and penalties
(3) Despite any other law to the contrary, including customary international law, the fact that an accused person –
(b) was under a legal obligation to obey a manifestly unlawful order of a government or superior,
is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence.
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.
(5) No one shall be punished for disobeying an order to commit torture.