About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

50 Int'l & Comp. L.Q. 386 (2001)
From Nuremberg to Rome: Restoring the Defence of Superior Orders

handle is hein.journals/incolq50 and id is 396 raw text is: SHORTER ARTICLES, COMMENTS AND NOTES FROM NUREMBERG TO ROME: RESTORING THE DEFENCE OF SUPERIOR ORDERS A plea of superior orders in response to charges founded upon violations of the international laws of armed conflict has since 1945 been treated as a plea in mitigation of sentence rather than as a defence, a position founded upon article 8 of the 1945 Charter of the International Military Tribunal at Nuremberg. In 1998 the draft Statute of the proposed permanent International Criminal Court appeared, by article 33, to restore superior orders as a defence, a move deprecated by some as an apparent softening of the international legal approach to war crimes in an age in which such violations are all too prominently before the world's scrutiny. In fact both the formerly received Nuremberg doctrine and the appearance of a radical change, or reversion, in the 1998 Statute can be argued to be erroneous. It is the contention of this paper that far from advancing a new and stricter doctrine, the Charter of the IMT at Nuremberg correctly applied pre-existing doctrine in extreme and unusual circumstances but was mistakenly taken to have developed a new approach which was then applied with potentially distorting effect for the generality of circumstances. In this view the 1998 Statute has merely recognised the essential doctrine of superior orders as it existed prior to 1945 and which, properly understood, should not have been thought essentially to have been changed even in 1945. 1. SUPERIOR ORDERS BEFORE NUREMBERG Before 1945 the generally accepted analysis of the defence of superior orders was founded upon what might fairly be considered an ought to know doctrine. The position was broadly that a soldier who obeyed an order issued by a superior to perform an act which later proved to have been unlawful would have a defence in any consequent legal proceedings if, and only if, the order was one which could credibly have appeared lawful at the time when it was received. If the order was such that the illegality must have appeared manifest ab initio, then there would be no defence although there might still be a plea in mitigation founded upon respondeat superior. The nature and implication of this doctrine may readily be traced through a series of municipal and international cases going back to the early 19th century. An early example may be seen in R v. Thomas in 1816' in which a Marine sentry serving on board HMS Achilles, then at anchor at a home port, had been ordered by the officer of the watch to keep small boats and harbour craft from approaching. After repeatedly warning off one persistently approaching boat he finally fired upon it. killing one of the occupants. At his subsequent trial for murder, apparently before a civilian court, Thomas was convicted but the jury added a strongly worded recommendation that he be pardoned. This was not 1. (1816) 4 M&S, 41.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most