Al Hassan Symposium – Superior Orders: A (Hopefully) Overlooked Afterthought

Editors’ note: This post is part of a joint symposium hosted by the Armed Groups and International Law and Articles of War blogs. The symposium addresses the ICC’s judgment in the Al Hassan case. The introductory post is available here.

In its 822-page judgment in the Al Hassan case, the International Criminal Court (ICC)’s Trial Chamber X waited until page 815 to mention the defence of superior orders. One might question, therefore, whether it reflects a genuine issue in the case. Unfortunately, the answer is yes. These three meagre pages of the judgment mark the first occasion on which the ICC has engaged with the defence of superior orders. And Trial Chamber X sent the Court off to a rocky start.

Article 33 of the Rome Statute – A Contested Compromise

The defence of superior orders in Article 33 of the Rome Statute excuses an accused from legal responsibility if they acted pursuant to an order they were legally obliged to obey, without knowing that the order was unlawful and without that order being manifestly unlawful.

Article 33 was highly contested during negotiations in Rome. Roughly speaking, two camps played tug of war. The absolute liability camp denied that superior orders could excuse international crimes. Orders to commit such crimes would always be unlawful, thus incapable of producing a legal obligation to obey. Only if the order amounted to duress, necessity, or gave rise to a relevant mistake of fact or law could a person legitimately be spared legal responsibility. The conditional liability camp, on the other hand, was keen to allow the defence under limited circumstances. For a military to function, soldiers would need to obey orders with little to no questioning. If in doubt, soldiers would face a dilemma between their legal obligation to obey an order and their obligation not to commit international crimes. Especially when the legality of an order is difficult to assess in the fog of war, soldiers should not be subjected to such a situation.

Tough negotiations over these incompatible positions ultimately managed to hammer a square peg through a round hole. Article 33(1) embraces the conditional liability approach, allowing the defence of superior orders under strict conditions and under a presumption that the defence does not apply. In a plot twist, Article 33(2) reintroduces the strict liability approach for crimes against humanity and genocide. This compromise highlights that the champions of the conditional liability approach, chiefly the United States, were first and foremost concerned about the fate of their own soldiers.

From this contested drafting history thus arose a norm that only superficially masks its own inconsistency. Hence, it was interesting to anticipate how ICC judges would deal with Article 33.

Superior Orders in the Al Hassan Trial Judgment

Unexpectedly, Trial Chamber X engaged with Article 33 of the Rome Statute without really being challenged to do so. The Chamber leaves no doubt that the defence team failed to substantiate its superior orders claim even a little, so that it “ought to be dismissed on this basis alone” (para. 1782). Still, Trial Chamber X felt compelled to carry on, running through two existing controversies, and opening a new one obiter dictum.

Trial Chamber X resolved the first controversy in line with the approach of most commentators (see arguments and sources here). As Article 33 requires a “legal obligation to obey” an order, some commentators argue that the defence only applies to orders by a State official; non-State actors being unable to produce a legal obligation to obey. By engaging with Article 33 in the case of Al Hassan, Trial Chamber X implicitly rebuked that position. This makes sense, given that the Trial Chamber showed throughout the judgment that de facto governments, such as the one Ansar Dine set up in Timbuktu, act with the full force of their “law,” meting out severe punishments. For individuals, it is irrelevant whether the law in question is recognized in The Hague – they are placed in a hierarchy and face punishment for disobeying. Thus, the raison d’être of the defence applies. Also, both international humanitarian law and international criminal law recognize the quasi-legislative function that certain non-State actors perform. This is evidenced not least by the war crimes in Article 8(2)(c)(iv) that Al Hassan was convicted of, requiring a tacit acknowledgment that non-State actors can set up “regularly constituted” courts.

It is the other two controversies that should give rise to more disagreement. First, Trial Chamber X held that the superior orders defence only applies to the commission of a crime under Article 25(3)(a) of the Rome Statute, excluding conduct that facilitates or contributes to the commission of the crime, as enumerated in Article 25(3)(c)-(d). Second, it held that orders to commit war crimes are always manifestly unlawful if the conduct ordered also constitutes a crime against humanity. By taking this position, Trial Chamber X severely diminished Article 33’s scope of application. One would expect an interpretation that severely disadvantages an accused to be well-reasoned. Lamentably, that is not the case.

Non-Application to Aiding, Abetting, Assisting, and Contributing

Trial Chamber X argues that the superior orders defence only applies to the “commission” of crimes as per Article 25(3)(a) of the Rome Statute. It thereby distinguishes “commission” from the offences of facilitating or contributing towards a crime outlined in sub-paragraphs 3(c) and (d). As a supporting argument, the Chamber refers to Article 31, which speaks more of “conduct” instead of “commission” (para. 1776).

To rely only on the wording of the Statute for a determination of such wide-ranging consequence seems an overly narrow approach. After all, the Trial Chamber’s interpretation means that the defence becomes unavailable for much of the conduct that the Statute criminalizes. This without a hint in the travaux preparatoires that such an exclusion was ever intended.

To the contrary, during much of the drafting process, Article 33 applied the defence to a person’s “conduct” or to persons that “acted” pursuant to superior orders. The wording “commit” entered the drafting at a late stage without a recorded reason for the change. Surely, had the drafters intended to limit the defence’s application to such an extent, this would have left some traces in the travaux preparatoires or other works dedicated to the negotiations. Denying the defence to the actions outlined in Article 25(3)(c) and (d) also does not make much sense. The soldier’s dilemma does not become any less pressing when being ordered to aid a crime instead of to commit it directly. Soldiers remain obliged to obey and potentially unable to assess the legality of the order. The soldier’s assessment might be even more difficult in such cases as the conduct ordered might be far removed factually and geographically from the actual commission of the crime. Consider, for example, orders to organize logistical support to a crime which the perpetrator can fulfill in a command center far away from the theatre.

These doubts aside, even the wording-based argument is less than convincing. While it is true that “commit” in Article 25(3)(a) relates to a specific form of perpetration, there is simply no indication that that narrow meaning is intended anywhere but in Article 25(3)(a). The distinction is already blurred in the Spanish version in which the chapeau of Article 25(3) holds that a person can be punished “por la comisión de un crimen,” thus putting every type of conduct outlined in paragraph 3 under the heading of “commission” (emphasis added). Article 25(2) does the same. It acts as a general precursor stating the individual responsibility of “a person who commits a crime.” The specific forms of “commission” are then detailed in paragraph 3.

Employing the narrow reading of “commission” outside of Article 25(3)(a) of the Rome Statute would lead to manifestly absurd results. Take Article 55(2), which sets out the right of those suspected of committing a crime to stay silent and to be questioned in the presence of legal counsel. Surely, the same rights should be open to persons accused of having instigated a crime? Consider also that under Article 58, the Pre-Trial Chamber should issue an arrest warrant only if there are reasonable grounds to believe that someone “committed” a crime. It remains an open question whether Trial Chamber X thinks that there cannot be an arrest warrant for abetting or whether there are simply no requirements for such a warrant – the latter being a sure way to speed up such proceedings. The same question arises in connection with the confirmation of charges, for which the Prosecutor must establish sufficient evidence that the person “committed” a crime, under Article 61. Sure enough, following Trial Chamber X, State referrals would cost the Office of the Prosecutor significantly fewer resources, because these only have the purpose to establish, whether a person should be charged with the “commission” of a crime, Article 14.

These examples show that the sharp line Trial Chamber X tries to draw between the “commission” of offences and the types of conduct outlined in Article 25(3)(b)-(c) does not exist. I will leave readers to explore the other 76 references to “commit,” “committed,” or “commission” within the Rome Statute, similar results being promised. In sum, only in Article 25(2)(a) does “commit” denote a specific form of perpetration to the exclusion of the modes enumerated in sub-paragraphs 3(b) and (c). Beyond that specific, narrow use, “commission” should be read as encompassing all forms of perpetration covered by Article 25, also in Article 33.

Non-Application to Certain International Crimes

Turning to the relationship between Articles 33(1) and 33(2), it appears compelling at first glance that Trial Chamber X found that an order calling for conduct constituting both a crime against humanity and a war crime would be manifestly unlawful in both aspects. After all, the Rome Statute does not require an accused to analyse whether they are committing a war crime or another crime (art. 30). Under Article 33, the accused should only be required to assess whether the ordered conduct is manifestly unlawful, not whether it is manifestly unlawful because it orders a war crime or a crime against humanity.

While intuitively convincing, the Trial Chamber’s argument relies on a completely ahistoric reading of Article 33. Article 33(2) came into being to appease proponents of strict liability after the conditional liability approach was enshrined in Article 33(1). It should not be taken to affirm, as a matter of fact, that orders to commit crimes against humanity and genocide are always manifestly unlawful. Certain crimes against humanity require elaborate factual knowledge and legal assessments. For example, orders to commit “other severe deprivations of liberty in violation of fundamental rules of international law” as per Article 7(1)(e) will not always have their manifest unlawfulness “fly like a black flag above the order given,” as the District Court of Jerusalem vividly described the standard in the Eichmann Case. Article 33 follows a diplomatic logic and a diplomatic logic only. As such, other logical deductions do not follow naturally from its wording. Expanding Article 33(2) in this way disregards the will of those States, which were adamant during the drafting process that the defence of superior orders should apply to all war crimes.

Conclusion

Any restriction of the defences open to individuals accused of a crime should be well-reasoned. After all, this curtails the individuals’ ability to argue their innocence, even though they may have acted under enormous pressure when committing the relevant acts. Yet, the extent to which Trial Chamber X restricts the scope of the superior orders defence is not matched by the depth and quality of its arguments. This is even more problematic as it is the Court’s first engagement with the defence, and one not warranted by the facts. In the end, it is to be hoped that lawyers engaging with the judgment are sufficiently tired once they reach page 815 that the following three pages will not draw too much attention.

This post represents the private views of the author and not those of the Federal Foreign Office of the Federal Republic of Germany.

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Fin-Jasper Langmack is a Desk Officer in the legal department of the Foreign Office of the Federal Republic of Germany.

Photo credit: U.S. Air Force, Master Sgt. Ken Bergmann