COMMAND RESPONSIBILITY AND THE DEFENCE OF
SUPERIOR ORDERS
Lecture April 20, 2015 by Arne Willy Dahl
Introduction
It has been told that the French emperor Napoleon Bonaparte once summoned one of his
generals to answer for a lost battle. The general pointed out that the cause of the defeat was
some more or less random events completely beyond the control of the general. The defeat
was therefore to be considered as the result of bad luck, not to be attributed to any fault by the
general. The emperor answered: I cannot afford to have generals with bad luck. You are
relieved from your command.
Napoleons reaction may not have been an example of good legal reasoning, but it illustrates
the fact that from a military commander results are demanded, and that excuses for failure are
not easily accepted.
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If the commander tells his superiors that his mission failed because of insufficient
training of his troops, he will be asked why he did not provide sufficient training for
them.
If the cause was insufficient supplies of ammunition or other essential supplies, he will
have to explain what he did in order to provide the supplies to the troops at the
frontline.
And if he says that the soldiers were not prepared when the enemy attacked, because
they had been drinking beer and amusing themselves with the village girls instead of
fortifying their positions and watching the movements of the enemy, he will have to
answer to why he permitted such behaviour. If he then answers that he did not know
what the soldiers were doing, he will be asked why didn’t he inspect them.
In other words, a commander must generally be prepared to be held responsible for acts or
omissions by his subordinates, if he could have corrected matters by his own activity.
Criminal responsibility
Such responsibility may also be criminal. In this country we have peacetime examples of
accidents caused by junior officers, the commanding officer having to answer in court for his
passivity.
- Commanders have been asked whether they have entrusted vital tasks to persons with
sufficient qualifications.
- They have been asked whether operations have been properly organised, ensuring that
each man knows his tasks.
- Has there been sufficient control of what the subordinates were doing?
- Has the commander inspired the subordinates by his presence, showing that he is
interested in what is going on?
- Has he reacted on information, which should have raised his suspicion that some
problem might be developing?
I think that every developed army has to demand from its officers that they keep themselves
informed, stay active and ahead of events, and take corrective action if something seems to be
developing in an undesirable direction. The passive commander may lose his command, or in
the more serious cases, face a trial.
Responsibility for criminal actions commited by the subordinates.
If a commander is to be held responsible for losing battles by not controlling his men, it is
obvious that he should also be held responsible for spoiling the good reputation of his army or
even his country, by his omission to control his men. And when one is speaking of grave
crimes against innocent people, it is not only a matter of spoiling a good reputation, but a
concern for all men of good will: How could this commander permit such things to happen?
Thus, command responsibility is not a recent development, but is flows from the nature of a
military organisation. It is a general principle of military organization that military
commanders are responsible for their subordinates (Hague IV art. 1, Protocol I art. 43).
This principle of responsibility, taken together with the authority to give orders and to punish
disobedience or other undisciplined behavior, makes the difference between a military unit of
lawful combatants and a collection of individual franc-tireurs. Without going into details, it
can generally be said that it is this principle of organization and responsibility which absolves
the individual soldier from criminal responsibility for the use of deadly force against other
human beings, when he acts according to his orders and within the rules for armed conflict.
Command responsibility has been practised in well-known criminal cases after the World War
II. One is the case against the Japanese general Yamashita, who was held responsible for the
conduct of his troops towards the civilian population in the Philippines. The charge was that
he
between October 9, 1944 and September 2, 1945, in the Philippine islands, “while
commander of armed forces of Japan at war with the United States of America and its
allies, unlawfully disregarded and failed to discharge his duty as commander to control
the operations of the members of his command, permitting them to commit brutal
atrocities and other high crimes against people of the United States and its
dependencies, particularly the Philippines; and he * * * thereby violated the laws of
war.” The number of victims ran up into tens of thousands.
Another was Hirota, former Foreign Minister of Japan, who was convicted of atrocities including mass rape - committed in the "rape of Nanking", under a count which charged that
he had " recklessly disregarded their legal duty by virtue of their offices to take adequate steps
to secure the observance and prevent breaches of the law and customs of war". The Tokyo
Tribunal held that:
"Hirota was derelict in his duty in not insisting before the Cabinet that immediate
action be taken to put an end to the atrocities, failing any other action open to him to
bring about the same result. He was content to rely on assurances which he knew were
not being implemented while hundreds of murders, violations of women, and other
atrocities were being committed daily. His inaction amounted to criminal negligence".
Codification
Codification in international treaties of the responsibility of commanders, is however
comparatively recent.
The Protocol 1 of 1977 to the Geneva conventions lays down in article 86 that the fact that a
breach of the Conventions or of this Protocol was committed by a subordinate does not
absolve his superiors from penal or disciplinary responsibility, as the case may be, if they
knew, or had information which should have enabled them to conclude in the circumstances at
the time, that he was committing or was going to commit such a breach and if they did not
take all feasible measures within their power to prevent or repress the breach.
It furthermore lays down in article 87, that the High Contracting Parties and the Parties to the
conflict shall require military commanders, with respect to members of the armed forces
under their command and other persons under their control, to prevent and, where necessary,
to suppress and report to competent authorities breaches of the Conventions and of this
Protocol.
The Geneva Conventions and Additional Protocols are, however, neither written nor
negotiated as criminal law texts. They give substantial guidance, but the final assessment of
the guilt of an accused, should preferably be made with reference to a national or an
international criminal legal text, and in the absence of applicable texts, with reference to
international customary law according to the best assessment of the court or tribunal having
jurisdiction, for instance the Yugoslavia and Rwanda tribunals.
Command responsibility was included in the ICTY Statute
ICTY Art. 7
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was
committed by a subordinate does not relieve his or her superior of criminal
responsibility if he or she knew or had reason to know that the subordinate was about
to commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.
A similar provision is included in the 1994 ICTR Statute.
In the negotiation of the 1998 ICC Statute, the provision was refined somewhat. To put it
short, the article 28 makes a distinction between military commanders on the one hand, and
civilian administrative or political leaders on the other. The article, however, equates a person
effectively acting as a military commander, with military commanders. The reason is that in
some cases a person can have the same functions and command authority as a military
commander, without having a military rank, and should therefore have the same
responsibility.
From these persons – military commanders and civilians effectively acting as military
commanders, the statute expects that they keep themselves informed of what is going on in
the field. A military commander will have resources to obtain such information, and good
military reasons to do so. He can therefore not be heard with that he did not know.
From superiors “not described in paragraph 1” – which means ordinary civilian leaders, the
statute expects that they act on the knowledge that they actually possess, equating positive
knowledge with the conscious disregarding of information that is at hand.
The Law expects from both the military commanders and ordinary civilian leaders that they
“take all necessary and reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for investigation and
prosecution”.
One may ask how action after the event can absolve the commander from responsibility for a
crime that has taken place.
- One answer may be that crimes that are likely to invoke command responsibility will
be of some duration, and that early punitive action will be the best way to stop actual
and potential future perpetrators.
- Another answer may be that punishing crimes or submitting the matter to competent
authorities will be the only possible alternative to inaction, if the crime has already
taken place. Inaction can easily be interpreted as condoning the crimes, which will
implicate the military commander much in the same way as a state may be held
responsible for act by private individuals, if and to the extent that the State
acknowledges and adopts the conduct in question as its own.1
- A third answer may simply be that command responsibility is a crime of omission.
What the commander essentially is held responsible for is his or her lack of action
with regard to the criminal activity of the subordinates.
Let us now turn to some matters of interpretation.
Level of negligence
Jean Pictet says in his commentary to the 1977 AP/I to the 1949 Geneva conventions:
[...] the negligence must be so serious that it is tantamount to malicious intent, apart
from any link between the conduct in question and the damage that took place. This
element in criminal law is far from being clarified, but it is essential, since it is
precisely on the question of intent that the system of penal sanctions in the
Conventions is based.
Command responsibility was discussed by the ICTR in the Akayesu judgement. In paragraph
488 of the judgement it says that there are varying views regarding the Mens rea required for
command responsibility.
- According to one view it derives from a legal rule of strict liability, that is, the
superior is criminally responsible for acts committed by his subordinate, without it
being necessary to prove the criminal intent of the superior.
- Another view holds that negligence which is so serious as to be tantamount to consent
or criminal intent, is a lesser requirement. The ICTR then cites Pictet’s commentary.
489. The Chamber holds that it is necessary to recall that criminal intent is the moral
element required for any crime and that, where the objective is to ascertain the
individual criminal responsibility of a person Accused of crimes falling within the
1
2001 ILC Draft Articles Responsibility of States for Internationally Wrongful Acts, Article 11
jurisdiction of the Chamber, such as genocide, crimes against humanity and violations
of Article 3 Common to the Geneva Conventions and of Additional Protocol II thereto,
it is certainly proper to ensure that there has been malicious intent, or, at least, ensure
that negligence was so serious as to be tantamount to acquiescence or even malicious
intent.
490. As to whether the form of individual criminal responsibility referred to Article 6
(3) of the Statute applies to persons in positions of both military and civilian authority,
it should be noted that during the Tokyo trials, certain civilian authorities were
convicted of war crimes under this principle. Hirota, former Foreign Minister of Japan,
was convicted of atrocities - including mass rape - committed in the "rape of
Nanking", under a count which charged that he had " recklessly disregarded their legal
duty by virtue of their offices to take adequate steps to secure the observance and
prevent breaches of the law and customs of war".
The ICTR Tribunal then cites the Tokyo Tribunal
The ICTR continues: It should, however, be noted that Judge Röling (in the Tokyo
Tribunal) strongly dissented from this finding, and held that Hirota should have been
acquitted. Concerning the principle of command responsibility as applied to a civilian
leader, Judge Röling stated that:
"Generally speaking, a Tribunal should be very careful in holding civil
government officials responsible for the behaviour of the army in the
field. Moreover, the Tribunal is here to apply the general principles of
law as they exist with relation to the responsibility for omissions'.
Considerations of both law and policy, of both justice and expediency,
indicate that this responsibility should only be recognized in a very
restricted sense".
491. The Chamber therefore finds that in the case of civilians, the application of the
principle of individual criminal responsibility, enshrined in Article 6 (3), to civilians
remains contentious. Against this background, the Chamber holds that it is
appropriate to assess on a case by case basis the power of authority actually devolved
upon the Accused in order to determine whether or not he had the power to take all
necessary and reasonable measures to prevent the commission of the alleged crimes or
to punish the perpetrators thereof.
To me, it seems that the Rwanda tribunal in this judgement is somewhat more conservative
than the ICC statute.
The responsibility of civilians is today no more contentious, although it has its limitations.
When it comes to military commanders, I am not sure whether the Rwanda tribunals’ words
saying that it is “proper to ensure that there has been malicious intent, or, at least, ensure that
negligence was so serious as to be tantamount to acquiescence or even malicious intent” will
be the last. It must be remembered what is at stake: the lives and well-being of large numbers
of people. Even if the risk of widespread or systematic atrocities seems relatively remote, it
should be a task of high priority to ensure that such events do not take place, for the person in
position to avert them. On the other hand, even if the commander is acquitted from a charge
of crimes against humanity, he might be held responsible for a lesser crime, such as omission
of military duties. In this context it may be a weakness to have a specialized court having
jurisdiction over the most serious crimes only. That is my opinion.
Some particular questions related to military commanders
Who is a military commander?
A traditional military organization is hierarchical – a pyramid of commanders on different
levels. Each commander has a number of subordinates. Each subordinate has one immediate
commander, who has one immediately above him or her, and so on up to the supreme
commander.
A subordinate may have a number of superiors, who have a higher military rank, but are not
his commanders, because they are not in the chain of command between him and the supreme
commander. It is the commanders in the particular chain of command, who have command
responsibility, not every superior that may have knowledge of crimes and who might have
influenced events to the better, but did not.2
Where in the chain of command do we find command responsibility?
In principle, commanders on all levels may incur command responsibility. How far up the
chain of command the responsibility can go, must depend on the scale of the crimes and the
distance of the particular commander from the events. The test must be whether the
commander “owing to the circumstances at the time, should have known that the forces were
committing or about to commit such crimes”.
Outline of the organisation of a brigade
Commanding Officer
Colonel
1st Platoon
Platoon leader
Lieutenant
2
Battalion 1
CO
LtCol
Battalion 2
CO
LtCol
Company A
CO
Captain
Company B
CO
Captain
Company C
CO
Captain
2nd Platoon
Platoon leader
Lieutenant
3rd Platoon
Platoon leader
Lieutenant
Battalion 3
CO
LtCol
The difference between commanders and superiors is not visible in the French text, because there is only one
term in the French language, covering both.
Outline of the organisation of a brigade
Commanding Officer
Colonel
Second in command/
Deputy Commander/
Executive Officer
Battalion 1
CO
LtCol
1st Platoon
Platoon leader
Lieutenant
Company A
CO
Captain
Companyi B
CO
Captain
2nd Platoon
Platoon leader
Lieutenant
3rd Platoon
Platoon leader
Lieutenant
Battalion 2
CO
LtCol
Battalion 3
CO
LtCol
Company C
CO
Captain
Is the second in command a commander?
The prevailing view seems to be that a Deputy Commander or Executive Officer are not
commanders and cannot incur command responsibility. The actual function of a DC may,
however, be different in different military traditions, even between individual units depending
on the style of leadership of the Commanding Officer. The DC may be in better touch with
what goes on at lower levels, and if he does not alert the Commanding Officer, one may ask
why he should not be held responsible.
Brigade
CO
Colonel
COS
Lt col
G-1
Personnel
Major
G-2
Intelligence
Major
G-3
Operations
Major
G-4
Logistics
Major
Battalion 1
CO
Lt Col
What is the responsibility of the staff members?
Battalion 2
CO
Lt Col
Battalion 3
CO
Lt Col
At least from battalion level and upwards, the commanding officer will be surrounded by
officers with special functions covering personnel matters, intelligence, operations, logistics
and other functions. There may be a Chief of Staff coordinating the work, possibly also
doubling as Deputy Commander. These officers will man the operations room, tent or vehicle,
prepare plans for upcoming operations and execute the orders of the commanding officer. In
practice, officers on lower levels will more often interact with the members of the superior
staff, than with the commanding officer himself. The prevailing view is that staff members
cannot incur command responsibility.
Brigade
CO
NORBATT
CO
FINBATT
CO
SWEBATT
CO
Who has command responsibility in multinational operations?
In multinational operations national contingents are put under operational command or
operational control of a supreme force commander appointed by for instance the NATO or the
UN. The authority of the supreme force commander over the troops will depend on national
restrictions, that will manifest themselves in the Transfer of Authority document, in national
caveats to Rules of Engagement or otherwise. It may be noted that disciplinary and penal
authority will always be retained and exercised on national channels. The troop-contributing
state will be represented in the theatre of operation by a National Contingent Commander,
who will take care of national functions and follow up national interests without exercising
operational command over the troops.
The relationship between the supreme force commander and national contingent commanders
can be complicated, and it has, to my knowledge, never been tested before a court where
command responsibility lies in case of crimes committed by troops.
One may, however, foresee two alternative developments. One is that a supreme force
commander on trial successfully maintains in his defence that his authority over the national
contingents under his command was so limited that he was not “effectively acting as a
military commander”. This may not in itself be sufficient, but his situation may put a
limitation on what were the “reasonable measures within his or her power” that he should
have undertaken. This would be likely to undermine the authority of future international
commanders over national contingents, which is likely to have repercussions on the
possibility to invoke the defence of obedience to superior orders, which we shall have a look
at shortly. On the other hand, if his is found to carry command responsibility, this will be a
strong argument for future international commanders to assert effective authority over
national contingents.
One may also foresee a bottom-up development in that a subordinate successfully invokes the
defence of obedience to superior orders issued by an international supreme force commander.
He thereby implies that he was “under a legal obligation to obey orders of the (Government or
the) superior in question”, which is likely to strengthen the position of future international
force commanders.
The Defence of obedience to superior orders
What is the problem about?
In the military, soldiers have to obey orders. If he is ordered to do something unlawful, he
might be caught in a dilemma, risking prosecution for disobedience if he declines, or criminal
responsibility if he obeys. If he even does not know whether the order is lawful or not, what is
he to do?
In the history of international trials for war crimes and related crimes, the defence of superior
orders has generally not been admitted, but there has been an opening to consider it in
mitigation.
Nuremberg statute
Art. 8. The fact that the Defendant acted pursuant to order of his Government or of a superior
shall not free him from responsibility, but may be considered in mitigation of punishment if the
Tribunal determines that justice so requires.
The Nuremberg statute was, however, not uncontested. There have been several viewpoints
around:
- The traditional theory was that subordinates in the army could not decide, if the order
was lawful or unlawful, since they do not know the relevant circumstances. Moreover,
it would not be possible for them to refuse to obey.
- The opposite theory favours absolute liability, arguing that only lawful orders can
create an obligation to obey.
- Against the traditional theory it could be said that orders should not relieve from
responsibility if they are “manifestly unlawful”.
- Against the opposite theory it could be said that the mental element may be lacking if
the subordinate thinks by mistake that the order was lawful.
- A third opinion holds superior orders generally irrelevant, but concedes that there may
be mitigating circumstances.
The ICTY statute was, with regard to this matter, drafted according to the Nuremberg charter,
since the aim was to formulate generally accepted international criminal law, and the
discussions had not led to a widely accepted result.
ICTY statute
Art. 7
4. The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him or her of criminal responsibility, but may be considered
in mitigation of punishment if the International Tribunal determines that justice so
requires.
Sierra Leone 2002
Art. 6
4. The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him or her of criminal responsibility, but may be considered
in mitigation of punishment if the Special Court determines that justice so requires.
Iraq 2003
Art. 15
e)
The fact that an accused person acted pursuant to an order of a Government or
of a superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment if the Tribunal determines that justice so requires.
Neither the 2000 Indonesia Act on Human Rights Courts nor the 2003 Agreement on the
Khmer Rouge trials address the issue.
On the other hand, in many national laws, this defense is admitted if the person did not know
that the order was unlawful, and it was not manifestly unlawful – much like the corresponding
rule of the ICC Statute.
1998 ICC Statute
Article 33
Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been committed by a
person pursuant to an order of a Government or of a superior, whether military or
civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the
superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against
humanity are manifestly unlawful.
Cassese seems to be of the opinion that article 33 is at odds with international customary law
and should be interpreted restrictively (p. 241). Others share his opinion.
The difference between national legislations and international customary law can, according
to Cassese, be explained by reference to the fact that the national provisions has to cover any
violation of military law, whether or not it amounts to an international crime. International
rules, instead, only regulate the more limited question of international crimes.
There are, however, other possible explanations to this discrepancy. One is clearly visible for
those who are familiar with Norwegian Law. The 1946 Act on Punishment of alien war
criminals did not accept the defense of superior orders, while the 1902 Military Penal Act
does. If we take a closer look at the various international tribunals, we can see that they are all
dealing with trying “someone else”. When it comes to national legislation, it is about trying
“our own” people. The same applies to the Indonesia trials and the Khmer Rouge trials.
The ICC Statute reflects what states are willing to concede with a view to cases that may
affect their own nationals as defendants. The ICC Statute has also a strong indirect influence
on national legislation, in the sense that if national legislation would deviate significantly, one
could find oneself in a situation where ICC takes a case because the State having the primary
jurisdiction is not able to genuinely prosecute the case. In other words, if States had adopted
stricter rules in the ICC Statute on this matter than they actually did, they could easily have
found themselves under pressure to modify their national legislation accordingly.
My interpretation is, therefore, that when facing the prospect of trials where their own soldiers
might be found in the dock, States become more cautious.
However: In common law countries national jurisprudence can be more strict. It seems that
the defence of obedience to superior orders is accepted in the USA and in Canada, but not in
the UK and Australia. This blurs both Cassese’s explanation and my own interpretation.
So, is the ICC statute wrong? As treaty law, it prevails over customary law. Between states
parties it is, by definition, right. The question is whether it will be interpreted restrictively, as
Cassese had suggested, whether customary law will yield to the statute, or whether you will
have two parallel rules co-existing for a long time: One for parties to the ICC statute and
another for non-parties.
My view is that the ICC statute is right in at least one particular sense: You should use the
same yardstick when judging foreigners as you use for judging your own people. This view
can be supported by GC III art. 82, whish says in the third sentence:
“If any law, regulation or order of the Detaining Power shall declare acts committed
by a prisoner of war to be punishable, whereas the same acts would not be punishable
if committed by a member of the forces of the Detaining Power, such acts shall entail
disciplinary punishments only.”
Under this provision, it would be highly questionable to deny an accused that has POW status
the defense of superior orders, when you admit it to your own personnel.
I do also believe that history will prove it right. It seems ot very likely that many new ad hoc
tribunals will be established in the future. The preferred solution will more likely be to refer
situations to the ICC. The ICC statute will rule and the defence of obedience to superior
ordres will become the norm.
Some matters of interpretation
Now, let us turn to some matters of interpretation.
What is an “order”?
Orders in the sense of article 33 are all oral or written or otherwise expressed demands.
Orders may be addressed to individuals or to groups of persons. An order may be general or
relate to a particular act or omission. An order implies a legal duty to obey.
Who can issue orders?
The order can be issued by a Government, a branch of Government or persons belonging to
the Government and in charge of specific functions, which permit them to act on behalf or in
the name of a Government or one of its branches.
The order can be issued by a military or a civilian. What is important is that the person issuing
the order has to have the formal authority to issue the order in question, or else there would be
no legal obligation to obey.
Connection between order and conduct
The crime has to be committed pursuant to an order. This implies that the subordinate must
have intended to act or omit to act out of concern to obey and hence to execute the order, or
else article 33 will not apply.
Mistake of law
In general, mistake of law as to whether a particular type of conduct is a crime within the
jurisdiction of the Court shall not be a ground for excluding criminal responsibility (Article
32). This rule is found in most national legal systems, too.
Article 33 is an exception, as a person acting pursuant to an order will be relieved of criminal
responsibility if he did not know that the order was unlawful, unless it was manifestly
unlawful. Why this difference? As we have seen, an order implies a duty to do something. If
there is no order, the person can chose to remain passive if he is not certain about what the
relevant law says. This option is not open to the soldier who has been given an order.
Manifestly unlawful
What does “manifestly unlawful” mean? In the Kafr Kassem case before the Israeli District
Military Court it was put like this:
“The distinguishing mark of a “manifestly unlawful” order should be displayed like a
black flag over the order given, as a warning reading “Prohibited!”.”
To Cassese, orders to commit war crimes are just as “manifestly unlawful” as orders to
commit genocide or crimes against humanity, in particular since war crimes are spelled out in
the ICC Statute and explained in the Elements of Crime. In this light, Cassese finds the ICC
Statute to be at odds with international customary law, and calls for a strict interpretation of
Article 33, so as to make it as consonant as possible with international customary law.
Is Cassese right, when he assumes that orders to commit war crimes will always be
“manifestly unlawful?
In many cases, maybe in most cases, such orders will be manifestly unlawful. Generally
speaking, war crimes, as enumerated in the ICC statute, constitute grave and obvious breaches
of International law, breaches that would be shocking to most people witnessing such acts.
Bur there are also more subtle crimes, crimes that are indeed serious, but where there is a
complicated chain of circumstances, facts, decisions and law that lead to the conclusion that a
particular act is a crime.
Let us take the crime of excessive attacks:
ICC Art. 8, 2, b
(iv) Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military advantage anticipated;
The person or persons who execute an attack may or may not have some ideas about the risk
of collateral damage, but what about the military advantage?
The military advantage of bombing a bridge may depend on the intentions of the commander
– what will his next move be? These intentions will not be known to the pilots.
Subjectively, they may be guilty of launching an attack, causing “incidental loss of life or
injury to civilians or damage to civilian objects” for no apparent military advantage.
Objectively, there may be an overwhelming military advantage, provided the commander
sticks with his plans. In the meantime, the enemy may have made a move, forcing the
commander to revise his plans, and in the event, the bombing of the bridges were of no
military value. Will this make the pilots (or others involved in the chain of target acquisition
and passing of orders) guilty of war crimes?
Furthermore, the attack must be seen in context, which may be hidden for the subordinate.
This situation is not hypothetical, but was very real in 1944, when targets in the Pas de Calais
area was bombed in order to induce Hitler to believe that the invasion was to take place there,
and not in Normandy.
The answer is obviously no. The pilot will have to follow orders, and be free from criminal
responsibility as long as his orders are not manifestly unlawful. It will in most situations be
impossible to him to judge the military advantage of an attack and he would therefore have to
execute the orders no matter what he thinks about the military value of the operation. There is
no reason for restrictive interpretation of article 33 in this case.
Let us also onsider the crime of starvation:
ICC Art. 8, 2, b
(xxv) Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including wilfully
impeding relief supplies as provided for under the Geneva Conventions;
A squad of infantrymen is manning a checkpoint. Two are operating the gate, two are
manning a machine gun covering the checkpoint, a sergeant is in supervision and the
remaining four are at rest. They have been ordered to deny a particular convoy passage
through the checkpoint. This convoy is carrying relief supplies as provided for under the
Geneva Conventions.
G IV Art. 23
Each High Contracting Party shall allow the free passage of all consignments of
medical and hospital stores and objects necessary for religious worship intended only
for civilians of another High Contracting Party, even if the latter is its adversary. It
shall likewise permit the free passage of all consignments of essential foodstuffs,
clothing and tonics intended for children under fifteen, expectant mothers and
maternity cases.
Let us suppose that the sergeant in charge of the checkpoint happens to know that that the
civilian population on the other side is starving, that the convoy contains essential foodstuffs
intended for children and that he knows the relevant provision in the Geneva Conventions. Is
he supposed to take matters in his own hands and admit the convoy? Can it be expected that
he puts his own judgement above the supreme commander’s? If the order was unlawful, it
would hardly be manifest to the sergeant at the checkpoint. There could be a multitude for
reasons behind the order: Maybe some condition for a permission had not yet been met by the
enemy, maybe there were plans for an offensive, demanding that the road had to be reserved
for military traffic for some time, maybe there was only a delay in procedures, and that the
convoy would be admitted the next day.
The examples show that in some cases, where the situation itself or the norm structure is
complicated, it will not make much sense to go after individual soldiers that have put illegal
orders into effect, deep down in the military structure. This does not mean that persons that
have followed manifestly unlawful orders should not be held responsible. But it may be to go
one step too far to declare that all orders to commit war crimes are, by definition, manifestly
unlawful, a step that the ICC statute has not taken.
Let us consider another aspect of article 33.
In the early discussions, one element was that there had to be a “moral choice”. If there is a
legal obligation to obey orders, there is also a risk of punishment for disobedience. In extreme
circumstances, there could be a risk of capital punishment. Such risk could also be incurred
independently of whether the person is under a legal obligation to obey an order. This takes us
to the rule on duress:
ICC Art. 31
Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility provided for in
this Statute, a person shall not be criminally responsible if, at the time of that person's
conduct:
…
(d) The conduct which is alleged to constitute a crime within the jurisdiction of the
Court has been caused by duress resulting from a threat of imminent death or of
continuing or imminent serious bodily harm against that person or another person, and
the person acts necessarily and reasonably to avoid this threat, provided that the person
does not intend to cause a greater harm than the one sought to be avoided. Such a
threat may either be:
(i)
Made by other persons; or
(ii)
Constituted by other circumstances beyond that person's control.
The rule implies that you can sacrifice an innocent in order to save yourself. This is not an
uncontroversial rule, and is another matter in which the ICC statute parts company with
customary law.
Duress has been covered in a previous lecture, which shall not be repeated here. For our
purposes, it is sufficient to note that duress is an independent defence that may be invoked
although the defence of superior orders fails, and vice versa.
Thank you for your attention.
AWD