In Honor of Yoram Dinstein – Superior Orders and the International Criminal Court: Custom or Compromise?
Editors’ note: This post is part of a series to honor Professor Yoram Dinstein, who passed away on Saturday February 10, 2024. These posts recognize Professor Dinstein’s work and the significant contribution his scholarship has made to our understanding of international law.
Superior orders were always a matter of great importance to Professor Dinstein from his earliest years. He remained to the end a staunch defender of the “no defence” school, initiated by the Nuremberg Tribunal. This piece is based on research carried out for a debate with Professor Dinstein on Article 33 of the Rome Statute of the International Criminal Court (ICC), a debate which actually took place in Court 600 in Nuremberg, the historic site of the Nuremberg trials.
History
The seeds of the controversy over the defence of superior orders go back centuries. However, I will start the story at the beginning of the twentieth century. When Oppenheim was writing his great treatise on international law in 1906, he stated,
In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.
Soldiers at that time were not seen as thinking beings. They were tools to be used by commanders. To have held them responsible for the orders they were given would have been seen as ridiculous as holding a gun, rather than its firer, responsible. Military manuals reflected this position and Oppenheim’s observation merely reflected the tradition calling for unquestioning obedience to orders.
At the end of the First World War, at the war crimes trials that took place before the Reichsgericht (the German Imperial Court of Justice) in Leipzig, defendants cited the German Manual, which took a similar view to Oppenheim. However, in the Llandovery Castle case, where members of a submarine crew were charged with machine gunning survivors following the sinking of a hospital ship, the Reichsgericht held,
It is true that according to the [German] Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible. However, the subordinate obeying an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law. . . . It is certainly to be urged in favour of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of the law. As naval officers by profession they were well aware, that one is not legally authorised to kill defenceless people. They knew well that this was the case here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They could only have gathered, from the order given by Patzig that he wished to make use of his subordinates to carry out a breach of the law. They should, therefore, have refused to obey. As they did not do so, they must be punished.
This passage has been cited at length because it shows the development in legal reasoning that would later result in Article 33 of the Rome Statute. First, it stresses the need for subordinates to be able to count upon the legality of orders. Without that, no military hierarchy could operate. Yet, as the court makes clear, there could be an exception in the case of manifest illegality when that illegality was known to everyone, including the accused.
The Second World War reversed the Oppenheim position completely. By now Lauterpacht had taken over the editing of Oppenheim’s treatise on international law, and in the 6th edition, in 1940. Whilst acknowledging that other views existed, he began to veer towards the removal “in principle” of the defence of superior orders. By the 7th edition, dated 1952, the last that Lauterpacht edited, his views had further evolved and the following rule is set forth:
The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. A different view has occasionally been adopted in military manuals, and by writers, but it is difficult to regard it as expressing a sound legal principle. Undoubtedly, a Court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously, the legal merits of the order received; that rules of warfare are often controversial; and that an act otherwise amounting to a war crime may have been executed in obedience to orders conceived as a measure of reprisals. Such circumstances are probably in themselves sufficient to divest the act of the stigma of a war crime. . . . However, subject to these qualifications, the question is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.
To understand how Lauterpacht reached this more nuanced position, it is necessary to examine the history of the defence of superior orders in the Nuremberg trials and the subsequent war crimes trials conducted under Control Council Law No. 10.
As early as 1941, the Allies had set up a committee to prepare for possible war crimes trials at the end of the Second World War. A sub-committee was tasked to look at the issue of superior orders. Their conclusion was essentially that superior orders were a defence provided the order was not “blatantly illegal.” However, “each case must be considered on its own merits[.]” But the position was far from clear.
The Legal Committee of the United Nations Commission for the Investigation of War Crimes, established in 1943, in considering the question of superior orders as a legal defence, reached a similar position to that adopted by the sub-committee. However, this did not meet with unanimous support and by 1945, the Commission had to accept that it “does not consider that it can usefully propound any principle or rule.” It did nonetheless state “that the mere fact of having acted in obedience to the orders of a superior does not of itself relieve a person who has committed a war crime from responsibility.”
There were then further discussions, with the United States suggesting that superior orders should not constitute a defence “but may be considered either in defense or in mitigation of punishment if the tribunal determines that justice so requires.” This left the question entirely to judicial discretion.
However, it was the Russians who cut the Gordian knot with Major General Iona Nikitchenko asking, “Would it be proper really in speaking of major criminals to speak of them as carrying out some order of a superior? This [is] not a question of principle really, but I wonder if that is necessary when speaking of major criminals.” As a result, Article 8 of the Nuremberg Charter was adopted in the following terms:
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.
A similar provision was subsequently inserted in Allied Control Council Law No. 10 providing for the trials in Germany of lesser war criminals. However, superior orders as a defence had not gone away; it merely led to defence counsel reconstructing their arguments in a different manner. For example, in the Hostage Case (United States v. Wilhelm List et al.), the U.S. Military Tribunal introduced the double test of manifest illegality accompanied by the individual lack of knowledge by the accused. The Einsatzgruppen Case (United States v. Otto Ohlendorf et al.), considered superior orders as a form of duress. There was an apparent view that, whilst the bluntness of Article 8’s wording dealt with the issue satisfactorily in the vast majority of cases, it was possible, in exceptional circumstances, for it to cause injustice.
After 1945, the international community continued to struggle with this conundrum. The International Law Commission, in seeking to encapsulate the principles of international law flowing from the Nuremberg Tribunal, suggested the test of whether “a moral choice was in fact possible.” The International Committee of the Red Cross put forward a draft text to the 1949 Diplomatic Conference which produced the Geneva Conventions, but States rejected it. The Diplomatic Conference which produced the 1977 Protocols had similar difficulties with a text that, although attracting a majority, did not reach the two-thirds required for inclusion in Additional Protocol I and thus failed.
The International Criminal Court
Academic opinion remained divided between two main schools. The first, led by Professor Dinstein, rejected any suggestion of superior orders as a defence and the second allowed the defence if the orders were not manifestly illegal. It fell to the Diplomatic Conference on the Establishment of an International Criminal Court to try to resolve the matter.
The arguments on both sides were well supported. Many cited the Statutes of the ad hoc Tribunals for the former Yugoslavia and Rwanda where the Article 8 formulation had been repeated. It was argued strongly that the nature of the charges that would be dealt with before the International Criminal Court made the issue of superior orders irrelevant. Whilst this can certainly be argued in relation to crimes against humanity and genocide, the position is not so clear with regard to war crimes.
Under Article 8(1) of the Rome Statute, individual war crimes remain within the jurisdiction of the Court and certainly within the jurisdiction of domestic tribunals which seek to implement the Statute based on the principle of complementarity. It followed that any provision that dealt with superior orders needed to deal with the most senior commanders, as at Nuremberg, but also much more junior operatives. Whilst it might have been possible to dodge the issue and rely on questions of intent or other defences such as duress, this was in some ways the easy option and might still cause injustice. The result is Article 33 of the Rome Statute, which reads:
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.
This provision is very carefully worded. Initial drafts provided for a default position that superior orders were a defence unless certain requirements were met. This was resisted so that the default position is the opposite: that superior orders are not a defence unless certain requirements are met. It is important to note that the three sub-paragraphs are cumulative, not alternative. This has cadences back to the Llandovery Castle case from the First World War. Similarly, it is limited to war crimes. The defence is simply inappropriate and therefore not available in cases of crimes against humanity and genocide.
Conclusion
At the time of the Rome Statute negotiations and after the provision was adopted, there was much objection to the text from those outside the negotiations. The drafters were seen as undermining customary international law. However, the drafters were seeking to resolve a debate that had been current—and unresolved—for almost a century. The test is tight and it is unlikely that any of the cases decided under the strict Nuremberg terminology would have been decided differently under the terms of Article 33. Even the famous Dražen Erdemovic case at the International Criminal Tribunal for the former Yugoslavia would be the same. The order to execute the prisoners from Srebrenica was both manifestly illegal and known to be unlawful by Erdemovic himself. He remained free to run the defence of duress, which he did.
The text of Article 33 of the Rome Statute is indeed a compromise but one which reflects past jurisprudence. Only time will tell whether this will gain acceptance, but time has already muted the criticism that it first received.
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Charles Garraway is a former Stockton Professor at the U.S. Naval War College. He was a member of the UK Delegation at the Rome Diplomatic Conference on the International Criminal Court Statute.
Photo credit: Airman 1st Class Matthew Garcia
