Practice Relating to Rule 155. Defence of Superior Orders
Poland’s Penal Code (1997) provides: “A member of the armed forces who commits a prohibited act in carrying out an order does not commit an offence unless, while carrying out the order, he commits an offence intentionally.”
At the CDDH, Poland expressed its regret that Article 77 of the draft Additional Protocol I had not been adopted and stated that “despite the rejection of the article, the Nürnberg principles remained important norms of international law”.
In 1982, during a debate in the Sixth Committee of the UN General Assembly on the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind, Poland stated:
[Its] delegation had serious objections to article 4 of the 1954 draft, and in particular to the words “if, in the circumstances at the time, it was possible for him not to comply with that order”. That formulation was a fundamental departure from the principle of article 8 of the [1945 IMT Charter (Nuremberg)] which stated that action taken pursuant to an order of a Government or of a superior did not free an individual from responsibility, but could be considered in mitigation of punishment if the Tribunal determined that justice so required.