The Execution of Illegal Orders and International Criminal Responsibility

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It is not only their environment which leads them to this belief but also their own inner psychological forces. They lose their capacity to see their behaviour in the same way outsiders would see it. The way perpetrators look back is diverse. Some will simply always deny their involvement, while others will point towards their superiors and the orders they received or try to convince anyone who cares to listen, that they did the right thing.

Some might feel that they are heroes, or feel proud of their role. Their testimonies show that they did not judge their behaviour at the time of commission the same way as they would now in hindsight:. But now you know what you did was wrong. The killing gets to you. The nightmares get to you. There are many examples like the one above which show how some perpetrators struggle.

Perpetrator trauma has been much neglected in studies on perpetrators; this is a pity since we can learn a lot from it. It shows that many — at the time — believed that the orders were legitimate. And it shows that taken out of this particular context some perpetrators realize the true nature of these orders: realize they were actually getting orders to commit horrendous crimes.

We prefer not to see and acknowledge this. We prefer to believe that we are ordinary people who, in their place, would instantly recognize the manifest illegality of what they did, and would refrain from doing it. The academic literature, however, suggests differently. One of the most important lessons we can learn from the research described in this article is that, within the very particular circumstances in which international crimes are usually committed, many low-level perpetrators do not necessarily recognize the manifest illegality of the orders they receive.

Quite the contrary, they may perceive orders to commit genocide and crimes against humanity as necessary or legitimate. This is a result of the deliberate creation of a social context which facilitates and promotes crimes, a social context in which they, as good people, fight bad and evil people who threaten their country. They believe they have to use force and violence in order to defend themselves.

Furthermore, they are trained to trust their superiors and the government to assess what is and what is not legitimate. They are often shocked by their first crimes but then quickly learn to rationalize and justify their own behaviour. They do this in order to sooth their conscience. They do so in order to psychologically survive. Hence, they come to sincerely believe their superiors in qualifying their behaviour read: their crimes as necessary and legitimate within the given circumstances.

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In short, the literature suggests that perpetrators often no longer recognize the manifest unlawfulness of such orders. The law acknowledges that orders to commit war crimes are not always manifestly illegal in Article 33 1 but does not do so in relation to crimes against humanity and genocide. The consequence is that the law might punish someone who is not fully aware of the manifest unlawfulness of the order that is given to him. One might wonder if in those cases one of the core principles of international criminal law is still met.

The law is meant to set standards to certain behaviour and to punish those who violate these standards and by doing so ideally prevents or at least limits future violations. I, however, doubt whether Article 33 2 is effective in changing the behaviour of foot soldiers since they often do not recognize the manifest illegality of the orders they get. It would make much more sense to punish not only those who order and instigate their subordinates to commit crimes, but also those who abuse their positions of authority and mislead low-ranking soldiers into believing their unlawful orders are in fact necessary and lawful.

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Volume Article Contents. The Political Context. The Institutional Context. A Crime of Obedience. How Do Perpetrators Look Back? Conclusion and Implications: Lessons to Be Learned. Oxford Academic. Google Scholar. Cite Citation. Permissions Icon Permissions. Abstract Article 33 of the International Criminal Court Statute allows low-ranking perpetrators to — in exceptional cases — rely on the defence of superior orders. Ambos, Treatise on International Criminal Law. Nouwen and W. Foster, P.

Haupt, and M. Carey and S. Smeulers and L. Smeulers, M. Weerdesteijn, and B. Greenberg and J. See also Suskind, supra note 6; J. Smeulers and S. Freeman and Company, Bilton and K.

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Crelinsten and A. Dubois, Torture and Truth Routledge, ; C. Dyer, War The Bodley Head, Gibson and M. See also E. Aronson and J. Kelman and V. Milgram, Obedience to Authority Harper and Row, Also, many different variations were conducted in order to see which factors affected the level of obedience.

See for an overview A. Smeulers and F. Only a very small percentage chose to give the maximum possible shock volts , and the others only gave slight or moderate shocks. Moreover, of those who delivered the maximum in the original experiment, most were clearly unhappy with the situation and showed signs of nervousness.

Caspar et al. Pedersen and E.

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Stephensen , Darley and B. See H. Knopf, , at In many cases, the perpetrators try to tackle these feelings and emotions with drinking large quantities of alcohol or using drugs. See A. Sallah and M. Cassese, P. Gaeta and J. See further also Ambos, supra note 2, at Published by Oxford University Press. Issue Section:. Download all figures. View Metrics. Email alerts New issue alert. Advance article alerts. Article activity alert. Receive exclusive offers and updates from Oxford Academic. It is contended that military disciple requires swift and unquestioning obedience to superior orders and in case of disobedience, stern punishment is inevitable.

Cherif Bassiouni. It is also acceptable in most jurisdictions as a factor in mitigation of a sentence. In our domestic criminal law, obedience to superior orders is a complete defence provided that a superior order in question is not manifestly and palpably unlawful.

The requirements of the defence are as follows:8 1. The order must emanate from a person lawfully placed in authority over the subordinate ; 2. The subordinate must have been under a duty to obey the given order; 3. The subordinate must have done no more harm than was necessary to carry out the order. This is so because that instruction will be invalid or illegitimate.

The subordinate on the other hand must be under a legal duty to obey orders made by that superior. This means that if a subordinate is not under any legal obligation to carry out the instruction, he cannot execute it lawfully. Furthermore, a subordinate must do only what is necessary and not go beyond the boundaries of the given instructions. This defence cannot manifestly excuse those who are terrorists.

This is so because no law athourises militant group leaders to issue lawful orders. What if the subordinate acting in good faith believed that all three requirements were met only to discover later that in fact the contrary is the case? In those circumstances, it is justifiable to acquit the accused not just because he was just a soldier or an officer duty-bound to execute an order, but because he lacked the necessary mens rea. This was the conclusion in the Andreas matter. Where, however, orders are manifestly beyond the scope of the authority of the officer issuing them, and are so manifestly and palpably illegal that a reasonable person who can issue lawful commands and there was, therefore, as a matter of law, no duty on accused no 1 to obey any command issued by Johnny Mutwa.

The defence of obedience to orders of a superior officer will not protect a soldier for acts committed pursuant to such manifestly and palpably illegal orders. If it appears to a reasonable person that the order is unlawful, a soldier should not obey such an order. If he obeys, personal responsibility will be demanded for the offence committed. My concern here is that the test considers what a reasonable person would do.

A reasonable person and a reasonable soldier may not act or make the same judgement. A soldier is someone laden with military knowledge and privy to a duty to execute superior orders. This will assist in ensuring that justice is carried out in a reasonable and fair manner. However, within the context of obedience to superior orders, if he genuinely believed an order has been lawfully made, he may plead putative obedience to orders possibly leading to his acquittal. Putative defence to obedience of superior orders. When a subordinate finally learns that the order he executed was in fact unlawful, they often plead that they honestly believed that it was a lawful order which imposed on them a duty to obey.

In our criminal law jurisprudence, the defence of mistake often excuses a criminal accused if it is proven that the perpetrator had a genuine belief that he was following a lawful order. Essential context: who can invoke this defence in the South African Criminal law? Smith17, during the Boer South African war, the defendant killed the internee following an order of his superior.

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