Paper : 10.

International Criminal Justice

Module : M-23 Defences under International Law (duress, obedience to superior orders)

International Criminal Justice

Human Rights and
Defences under International Law (duress, obedience to superior
Duties
orders)
 Description of Module

Subject Name Human Rights and Duties

Paper Name International Criminal Justice

Module Defences under International Law (duress, obedience to superior orders)

Name/Title

Module Id 23

Pre-requisites

Objectives

Keywords

International Criminal Justice

Human Rights and
Defences under International Law (duress, obedience to superior
Duties
orders)
 DEFENCES UNDER INTERNATIONAL LAW (DURESS, OBEDIENCE TO SUPERIOR ORDERS)

Learning Outcomes

1) To have knowledge about the defences under International Criminal Law

2) To have an insight on article 31-33 of the Rome Statute
3) To know about the defence of obedience to superior order

Outline

a. Introduction
b. Defences under article 31 to 33 under the Rome statute
a) Article 31
b) Article 32
c) Article 33
c. Elements of defence of duress
d. Jurisprudence from ICTY
e. History of the defence of obedience to superior order
f. Elements of defence of obedience to superior order
g. Three approaches for defence of obedience to superiors order
h. Further readings
i. Self-Assessment Questions

International Criminal Justice

Human Rights and
Defences under International Law (duress, obedience to superior
Duties
orders)
 I. INTRODUCTION OF DEFENCES IN INTERNATIONAL CRIMINAL LAW

In its simplest sense, a defence presents a claim submitted by the accused by which he or she seeks to
be acquitted of a criminal charge. It is an answer to a criminal charge and is used to denote ‘all grounds
which, for one reason or another, hinder the sanctioning of an offence-despite the fact that the offence
has fulfilled all definitional elements of a crime’.1 Since a criminal offence is constituted through the
existence of two cumulative elements, a physical act (actus reus) and mental element (mens rea), the
claim of defence would succeed if either of the two elements were disproved.2

Domestic criminal law systems tend to distinguish between defences that may be raised against any
criminal offence (general defences) and those that may be invoked against particular crimes (special
defences). Another point of distinction is that between substantive and procedural defences. The
former refers to the merits, as presented by the prosecutor, while the latter are used to demonstrate
that certain criminal procedure rules have been violated to the demerit of the accused, with the
consequence that the trial cannot proceed on its merits.3

1
‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, UN Doc. A/50/22, Annex II,
p. 58; ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’, UN Doc. A/51/22,
vol. I, p. 45; ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’, UN Doc.
A/51/22, vol. II, pp. 90–1; UN Doc. A/AC.249/1997/L.5, pp. 26–7; UN Doc. A/AC.249/1997/WG.2/CRP.5; UN Doc.
A/AC.249/1998/L.13, pp. 58–9; UN Doc. A/CONF.183/2/Add.1, pp. 54–5.

2
‘International Criminal Law (2nd ed.), Bantenkas and Nash, pp. 196.
3
Procedural defences of abuse of process, ne bis in idem, nulllum crimen nulla poena sine lege scripta, passing of statute of
limitations and radioactivity of criminal law.

International Criminal Justice

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 https://commons.wikimedia.org/wiki/File%3AGerman_War_Crimes_Trials._Nuernberg_%26_Dachau
_-_NARA_-_292601.tif

Caption: German War Crimes Trials. Nuernberg & Dachau. The prosecution charges the defendants
with conspiring to destroy the independence of other nations. Goering is in the defendant's box.

The defences to international crimes discussed in Articles 31-33 of the Rome Statute can be considered
an authoritative statement of defences presently accepted in international criminal law. Article 21 of
the Rome Statute allows a broader approach to be taken with respect to defences for international
crimes. As implied in the Security Council Resolution 808 (1993), this approach is in keeping with the
ICTY precedent whereby the United Nations Secretary General had advocated that silence in the
instrument did not mean that other defences could not be considered, ‘drawing upon general principles
of law recognized by all nations.’

The Rome Statute partially codifies available defences in Articles 31, 32 and 33. Article 31 deals with
four substantive “grounds for excluding criminal responsibility”: the defences of mental disease or
defect, intoxication, self-defence, duress/ necessity. This list is not exhaustive. Article 214 may be

4
Article 21 of the Rome Statute, “Applicable law” reads as follows: ‘1. The Court shall apply: (a) In the first place, this
Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable
treaties and the principles and rules of international law, including the established principles of the international law of armed
conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world
including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that
those principles are not inconsistent with this Statute and with international law and internationally recognized norms and
standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and
interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without
any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language,
religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

International Criminal Justice

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 referred to, in order to check other grounds for excluding criminal responsibility. Article 32 addresses
defence of mistake of fact or mistake of law while Article 33 deals with the defences of superior orders
and prescription of law.

II. DEFENCES UNDER ARTICLES 31-33 OF THE ROME STATUTE

a) Article 31
Article 31(1)(a) of the Rome Statute

Article 31(1) (a) deals with the defence of insanity and excludes criminal responsibility if the actor, due
to a mental disease or defect is not able to recognize the unlawfulness of his conduct and/or control it
according to the requirements of the law.

Article 31(1) (a) reads as follows: ‘a person shall not be criminally responsible if… (a) the person suffers
from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or
nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements
of the law’.

Despite several submissions by the defence5, mental diseases or defects as grounds for excluding
criminal responsibility have not yet played an important role in international jurisprudence. Based on
Rule 67 of the ICTY Rules of Procedure and Evidence6the ICTY distinguishes between insanity and

5
See Prosecutor v. Delalic et al., Case No. IT-96-21-T, TC II, Judgement, 16 November 1998, para. 1181.
6
Rules of Procedure and Evidence adopted on 11 February 1994 as amended on 10 December 2009, IT/32/Rev. 42. The
relevant part of the ICTY Rules, Rule 67 reads as follows: ‘(B) Within the time-limit prescribed by the Trial Chamber or by
the pre-trial judge…(i) the defenceshall notify the Prosecutor of its intent to offer…(b) any special defence, including that
of diminished or lack of mental responsibility.
6

International Criminal Justice

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orders)
 diminished mental responsibility. It is not a defence stricto sensu but accordingly, insanity requires that
the accused is, at the time of commission, unaware of what he is doing or incapable of forming a
rational judgment of right and wrong,7 while diminished mental responsibility is based on the premise
that, while recognizing the wrongful nature of his conduct, the accused, due to his mental abnormality,
is unable to control his actions.8

Thus, the exclusion of responsibility pursuant to article 31(1)(a) has two requirements:

1. There must be a more than momentary defective mental (not psychological or emotional) state.
2. The absence of the capacity to (cognitively) appreciate the unlawfulness of the conduct or to
control it (volitionally).

Article 31(1)(b) of the Rome Statute

Article 31(1)(b) deals with the defence of intoxication. Article 31(1)(b) reads as follows: ‘ a person shall
not be criminally responsible if…(b) the person is in a state of intoxication that destroys that person’s
capacity to appreciate the unlawfulness or nature of his or her conduct or capacity to control his or her
conduct to conform to the requirements of the law, unless the person has become voluntarily
intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of
the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction
of the Court.’

7
Research handbook on international criminal law by Kai Ambos, ed. Bertram S. Brown (Cheltenham et al.: Elgar, 2011),
p.302.
8
Prosecutor v. Delalic et al., note 4 supra, para. 1156.

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orders)
 It is known that intoxication can lead to a form of diminished mental responsibility.9 The Kvocka Trial
Chamber held that a state of intoxication could only constitute a mitigating circumstance if it was
brought about by force or coercion, but not if the defendant produced this situation voluntarily or
consciously. The Chamber further held that ‘particularly in the contexts where violence is the norm and
weapons are carried, intentionally consuming drugs or alcohol constitutes an aggravating rather than
a mitigating factor.10 An explanatory footnote states that ‘voluntary intoxication as a ground for
excluding criminal responsibility would generally not apply in cases of genocide or crimes against
humanity, but might apply to isolated acts constituting war crimes’.11

Thus, the defence of intoxication requires that the defendant’s ability to control and assess his conduct
should be completely destroyed due to the intoxication. A further limitation of action liberal in causa
(‘alic’) principle has been adopted by article 31(1) (b). This principle recognized in continental and
common law. The underlying rationale of this principle is to prevent a mala fide intoxication or rather
intentionally bringing about intoxication- as a ‘free act’ (actio libera) – with the preconceived intent to
commit a crime in the resulting state, all in order to then invoke this state as a ground for excluding
responsibility.12 In such a case, the actor is punished for the crime committed as though he committed
it with full responsibility and he was free and fully responsible in causa and thus, is blamed for
intentional and attributable ‘actio libera’ which brought about the state of non-responsibility.

9
Albin Eser, Article 31, para. 35.
10
See Prosecutor v. Kvocka et al., Case No. IT-98-30/1-T, TC 1 Judgment, 2 November 2002, para. 706.
11
UN Doc. A/CONF.183?C.1/WGGP/L.4/Add.1/Rev.1 (1998), 4, n. 8.
12
Eser, note 9 supra, para. 35.

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 Article 31(1)(c)

ICC Statute, article 31(1) (c) allows for proportionate and reasonable self-defence and defence
of others against an imminent and unlawful use of forces which endangers a person or
property of particular importance. Article 31(1) (c) reads as follows: ‘a person shall not be
criminally responsible if…the person acts reasonably to defend himself or herself or another
person or, in the case of war crimes, property which is essential for the survival of the person
or another person or property which is essential for the survival of the person or another
person or property which is essential for accomplishing a military mission, against an
imminent and unlawful use of force in a manner proportionate to the degree of danger to the
person or the other person or property protected. The fact that the person was involved in a
defensive operation conducted by forces shall not in itself constitute a ground for excluding
criminal responsibility under the subparagraph.’

Thus, the provision has two basic requirements:

1. The existence of a certain danger to a person or property brought about by the unlawful use
of force.
2. A proportionate reaction against it.

As to the defence situation- the ‘imminent and unlawful use of force’ producing ‘danger’ to a person
or property- the provision uses an objective ex ante test. According to this test, the situation must exist
objectively (not just in the actor’s mind) at the time of the counter-action. The ‘subjectification’ of
legitimate defence, as particularly known in some common law countries, is thereby rejected.

International Criminal Justice

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 The other part of the element of self-defence is ‘force’. ‘Force’ may be viewed as a broad term,
encompassing physical coercion and psychological threats; the ‘force’ must be ‘imminent’. ‘Danger’
brought about by the use of force restricts the scope of the application of self-defence.13

The defence must be reasonable. A reasonable reaction must create only such harm to the aggressor
as is absolutely necessary to repel the danger, and the means applied must not be inept or inefficient.14

Self-defence is also a subjective element as deduced by ‘to defend himself’ (a defender has to act) or
derived form general principles of comparative law (article 31(3) read with article 21(1)(c).) It is
generally recognized that the defender must at least know about the attack; whether he must also be
motivated by this knowledge, that is act with the will required to protect himself.

Article 31(1) (d) of the Rome Statute

Article 31(1) (d) of the Rome Statute deals with the defence of duress with an implied defence
of necessity. Article 31(1 d) reads as follows: ‘a person shall not be criminally responsible if…(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
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

13
Kai Ambos, Other Grounds for Excluding Criminal Responsibility, Antonio Cassesse, Paola Gaeta and Joh R.WD.
Jones , International Criminal Law (3rd edition, Oxford University Press 2013), The Rome Statute of the International
Criminal Court, A Commentary 1032-3 (New York, Oxford University Press, 2002)
14
Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-T, TC III, Judgment, 26 February 2001, para. 135.
10

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 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 the person’s control.’

b) Article 32
Article 32 or the Rome Statute is based on the defence of mistake of fact and mistake of law.
Distinction between mistake of fact and mistake of law is a traditional distinction still valid in
common law. Mistake of fact is relevant as a rule, but mistake of rule is not- it is expressed by
the old Roman Principle iuris nocet or ingrorantia iuris neminem excusat (ignorance of the law
is no excuse). A mistake of either type can be relevant only if it ‘negates the mental element’
(mens rea).

Article 32- ‘Mistake of fact or mistake of law: 1. A mistake of fact shall be a ground for
excluding criminal responsibility only if it negates the mental element required by the crime. 2.
A 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. A mistake of law may,
however, be a ground for excluding criminal responsibility if it negates the mental element
required by such a crime, or as provided for in article 33”15

https://commons.wikimedia.org/wiki/File%3AICC_can_into_handing_down_sentences.jpg

Caption: Poland ball comic on the news that the Inter Criminal Court hands down its first sentence; 14
years for Thomas Lubanga, a Congolese warlord.

15
See Art 33, Rome Statute of the International Criminal Court, 17 July, 1998, 117 2013.
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 The ICC had to deal with a possible mistake of law in its first confirmation of charges decision
in the Lubanga case.16Lubanga charged with war crime of enlisting and conscripting children
(Article 8 (2)(b)(xxvi) and (e)(vii)), argued that he could not have known the relevant acts were
prohibited since neither Uganda nor the Congo ‘brought to the knowledge of the inhabitants
of Ituri the fact that the Rome Statute had been ratified’. The Chamber rejected Lubanga’s
submission on factual grounds and thus, omitted any substantive discussion of article 32(2).

c) Article 33

This article deals with the defence of obedience to superior orders and lays down grounds for
defence of individual criminal responsibility. While the Nuremberg precedent and subsequent
law rejected the notion of superior orders as a ground excluding responsibility,17 ICC Statute,
Article 33 adopts an approach which on the one hand affirms the traditional rejection of the
defence but on the other hand, allow for its application under certain conditions.

Article 33 of the Rome Statute, “Superior orders and prescription of law” reads as follows: ‘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

16
Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-803, PTC I, Decision on the Confirmation of Charges, 29 January
2001.
17
See IMT Statute (82 UNTS 280), article 8; Tokyo Statute, article 6; ICTY Statute article 7(4) and ICTR article 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.’)
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 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.’

III. ELEMENTS OF THE DEFENCEOF DURESS

In article 31(1)(d) of the Rome Statute, necessity and duress are recognized in comparative criminal law
as two separate defences,18 but International Criminal Law, in the official codifications did not consider
it necessary to distinguish between the two.

While duress refers to the lack of freedom of will or choice in the face of an immediate
threat,19 necessity is based on a choice of evils with the decision taken in favour of the lesser
evil. Thus, in the case of necessity, the unlawfulness of the incriminating act is eliminated by
the higher legal interest that the actor purports to serve. When applied to the protection of a
higher legal interest, necessity permits an act that is usually prohibited and thus, is a
justification. The underlying rationale of duress is not the balancing of competing legal
interests but the criterion of Zumutbarkeit (i.e., could it be fairly expected that the person
concerned would resist the threat?)

18
G. P. Fletcher, Basic Concepts of Criminal Law (1998), at 138, 164; .Pradel, Droit penal compare (1995) at 287-288,
298-299.

19
Cherif M. Bassiouni, Crimes against Humanity in International Criminal Law (2nd Edition, The Hague, Kluver
International 1999), 484.
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 Article 31(1) (d) of the Rome Statute sets the following qualifiers for the use of this defence:

1. The presence of imminent death or continuing or imminent serious bodily harm against that
person or another person or by circumstances beyond that person’s control;
2. a necessary and reasonable action to avoid this threat;
3. the intent to not cause a greater harm than the one sought to be avoided.

The provision contains objective elements (element of actus reus) of both necessity and duress. The
element of ‘threat’ applies to both while ‘necessary and reasonable action’ element applies only to
necessity, thus, introducing a new a new subjective condition, which relates to the ‘choice of evils’
criterion.

The defence of duress only recognizes threat that entails physical acts or consequences such as
‘imminent death’ or bodily harm. The use of the word ‘imminent’ leads to the establishment of a time-
frame wherein the harm cannot lie too far in the future.

Article 31(1) (d) (ii) refers to ‘circumstances beyond the person’s control’, i.e., defence of duress cannot
be used if the circumstances are within the control of the person.

Article 31(1) (d) further classifies this threat as one which must be ‘made by other persons’ or
‘constituted by other circumstances’. Thus, it is made clear the causation of the serious force or threat
must not be the person (or actor) himself, but by another person or circumstances that are beyond the
control of the person.

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 The second qualifier is often seen as the point of contention with the phrase “necessary and
reasonable” encompassing both the defence of duress and necessity. This implies that the harm should
be limited to that which is absolutely necessary to avoid the threat and also the reaction of which
should not cause greater harm than that the one sought to be avoided. This element leads to a blurring
of lines between Article 31(1) (c) and Article 31(1) (d). Conceptually, the difference between self
defence and duress/ necessity is two-fold.

1. Self-defence requires an attack while duress/necessity requires only a ‘threat’.

2. As to the admissible reaction, self-defence usually allows any reaction to defend the invaded
good, while necessity (and not duress) only permits a reaction which protects the greater legal
interest involved.

The third qualifier is a subjective one and is based not on actus reus but on mens rea or mental intent.
The general requirement in comparative law is the actor’s knowledge that he is acting under duress,
has a solid basis in comparative law. This condition of mens rea is also connected with the second
element wherein the person is required to act necessarily and reasonably to avoid this threat. Thus,
the act is linked to and determined by the threat and the actor has to act with the knowledge of the
threat.

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 IV. JURISPRUDENCE FROM ICTY: Prosecutor v Erdemović (29 November, 1996)

https://commons.wikimedia.org/wiki/File%3AEmblem_of_the_Army_of_Republika_Srpska_Alternati
ve.png

Caption: Emblem for Army of Republika Srpska for which Dražen Erdemović fought for during the
Bosnian Civil War

On 29 November 1996, the International Criminal Tribunal for Yugoslavia (ICTY) made a landmark
decision and handed down the first sentence for crime against humanity since the trials at Nuremberg
and Tokyo. This was the first case wherein the defence of duress was used with Erdemović20pleading
guilty and full cognizance of the nature of the charge and its implications.

The case was based on the crime against humanity wherein the defendant Erdemović along with his
military unit was ordered by his superior to kill approximately 1200 men and boys who had surrendered
to the army near Srebrenica. While the accused admitted to the charges, he invoked the defence of
duress.

20
ICTY Trial Chamber I, Sentencing Judgment, Dražen Erdemovi ́c, IT-96-22-T, 29 November 1996. Crit. S. Yee, ‘The
Erdemovic ́ Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former
Yugoslavia’, 26 Georgia Journal of International and Comparative Law (1997) 291 et seq.; K. Oellers-Frahm and B.
Specht, ‘Die Erdemovi ́c Rechtsprechung des Jugoslawien tribunals: Problemebei der Entwick lungeines international en
Strafrechts, dargestellt am Beispiel des Notstands’, 58 Zaö RV (1998) 392 et seq.; D. Turns, ‘The International Criminal
Tribunal for the former Yugoslavia: The Erdemovi ́c Case’, ICLQ (1998) 466–467. See also the interesting solution of the
case according to US and German law by J. C. Nemitz and S. Wirth, ‘Der aktuelle Fall: Legal Aspects of the Appeals
Decision in the Erdemovi ́c- case: The Plea of Guilty and Duress in International Humanitarian Law’, 11 Humanitäres
Völkerrecht (1998) 43–53.

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 Thus, the substantive issue in the decision was whether the guilty plea of the accused could be
considered unequivocal despite the invocation of duress. While obedience to superior orders is
rejected21 as a defence by Article 7(4) of the ICTY Statute, the Statute is silent on duress. Trial Chamber
I, relying on the UNWCC case law, recognized duress as a defence if certain strict requirements are
fulfilled.22

In the end, the Chamber held that the circumstance which would fully exonerate the accused of the
responsibility had not been proven. Consequently, the guilty plea was considered valid.

https://commons.wikimedia.org/wiki/File%3AThe_Bosnian_Civil_War-
_British_Forces_With_the_United_Nations_Protection_Force_in_Bosnia_and_Croatia%2C_1992_-
_1995_BOS7.jpg

Caption: Bosnian Civil War- United Nations Protection Forces in Bosnia and Croatia 1992-1995

The Appeals Chamber by 3 to 2 majority rejected the Trial Chamber’s assessment of duress as a
defence. In the absence of a customary rule, the justices23 held that there is “a general principle of law
recognized by civilized nations that an accused person is less blameworthy and less deserving of the
full punishment when he performs a certain prohibited act under duress,” with the term “duress”
meaning “imminent threats to the life of an accused if he refuses to commit a crime.” However, the
justices held that “it is clear from the differing positions of the principal legal systems of the world that
there is no consistent concrete rule which answers the question whether or not duress is a defence to
the killing of innocent persons.” The justices expressed concern that “in relation to the most heinous
crimes known to humankind, the principles of law to which we (the ICTY) give credence have the

21
Preparatory Commission for the International Criminal Court, supra note 19.
22
Trial Chamber I, supra note 20, para. 16-20.
23
Appeals Chamber, Joint Separate Opinion of Judge McDonald and Judge Vohrah, supra note 20, para. 55, 66, 72, 75, 88.
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 appropriate normative effect upon soldiers bearing weapons of destruction and upon the commanders
who control them in armed conflict situations,” and concluded that “duress does not afford a complete
defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of
innocent human beings.”

Both the majority and the dissenting opinions agreed that acting on superior order must be
distinguished from duress. The majority of the Appeals Chambers did not share the Trial Chamber’s
conclusion that duress constitutes a complete defence.

The central conclusion of the majority opinion that current international criminal law does not contain
a rule about duress in the specific case of the killing of innocent persons is shared by the dissenting
opinions. The majority seeks a solution looking at the ‘broader normative purposes (of the law) in light
of its social, political and economic role’ and taking into account ‘considerations of social and economic
policy’.24 Duress must constitute a defence under four strict conditions:

(1) There must be an immediate threat of severe and irreparable harm to life or limb;
(2) There was no adequate means of averting such evil;
(3) The defence act was not disproportionate to the evil threatened (lesser of two evils);
(4) The duress situation was not voluntarily brought about by the person coerced.

In a Separate and Dissenting Opinion Judge Li looked into the Judgment of the International Military
Tribunal at Nuremberg, 1946, which held that while the defence of duress cannot be held as a complete
defence in cases involving the murder of innocent civilians, it can act as a mitigating circumstance in

24
McDonald and Vohrah, Appeals Chamber, supra note 20, para. 75, 78.

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 the consideration of the sentence. Judge Li found “as a general rule, duress can be a complete defence
if the following requirements are met, (a) the act was done to an immediate danger both serious and
irreparable, (b) there was no other adequate means of escape, and (c) the remedy was not
disproportionate to evil.” Judge Li also found an exception to the general rule “if the act was a heinous
crime, for instance, the killing of innocent civilians or prisoners of war, duress cannot be a complete
defence, but can only be a ground of mitigation of punishment if justice requires.”

The Trial Chamber II finally sentenced Erdemović to five years imprisonment. It considered his situation
as a subordinate receiving orders as a mitigating factor.

This case demonstrates that in the context of international crimes, a defence of duress will often arise
in connection with superior orders. It links two separate defences- the defence of duress and the
distinct defence of obedience to superior orders where an individual may be ordered by a superior to
commit an offence under a threat to his or her own life. Superior orders are a distinct defence and is
discussed below.

V. HISTORY OF THE DEFENCEOF OBEDIENCE TO SUPERIOR ORDER

Due to the strict requirement of discipline in the military doctrine, obedience to superior orders is
imperative. This led to the creation of a dilemma for soldiers who in case of an unlawful order have the
choice of submitting to the illegal order or to commit a crime by defying the order.

Thus, when prosecuted, the national authorities were often faced with a defence of ‘superior orders.’

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 This dilemma led to the creation of two schools of thought. The first based its arguments on the basis
of justice, such a defence being an ‘absolute defence’ while the second articulated a doctrine of
‘absolute liability’ which led to the claim of obedience being rendered null and void.

This debate rose to the international level wherein the 1845 Prussian Military Code the Leipzig trials
at the end of World War I recognized the relevance of ‘moral choice’. It was determined that a
subordinate would be punished if in the execution of an order, he or she went beyond its scope, or
executed it with the knowledge that it related to an act which aimed at the commission of a crime and
which the subordinate could avoid.

https://commons.wikimedia.org/wiki/File%3AD%C3%B6litz_(Leipzig)%2C_the_war_memorial_1870-
71.jpg

Caption: Leipzig War Memorial

Thus, the ‘moral choice’ principle encompassed an objective test. This is often called the ‘manifest
illegality’ principle.

After this the International Criminal Law with regard to the defence of obedience to superior has
evolved considerably, from its outright rejection as an absolute defence at the Nuremberg Tribunal to
a more balanced approach under the Rome Statute of the International Criminal Court.

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 Article 8 of the Nuremberg Charter established the following:

“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 more nuanced approach by the Rome Statute treats this defence in a separate article. Article 33(1)
of the Rome Statute reads as follows:

‘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 the orders of the Government or of a superior
in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.’

VI. ELEMENTS OF DEFENCEOF OBEDIENCE TO SUPERIOR ORDER

Article 33(1) of the Rome Statute places three conditions on the applicability of the defence of
obedience to superior orders: “(a) The person was under a legal obligation to obey the orders of the
Government or of a superior in question; (b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.”
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 The defence of obedience to superior order under Article 33 of the Rome Statute is subject to the
clauses (a), (b) and (c).

The first condition refers to the ‘legal obligation to obey orders’. This refers to orders in general which
must have existed at the time when the subordinate committed the crime. The clause expresses the
presumption that a superior has the right to expect obedience of the subordinate.

The second condition constitutes the subjective requirement of the superior orders defence and refers
to the subordinates’ knowledge of the legality of the order.

The third condition contains the manifest unlawfulness test, which constitutes the objective
requirement circumscribing the scope of application of the plea of superior orders. Article 33(2) further
clarifies the third condition with the inclusion of genocide or crimes against humanity in the category
of manifestly unlawful.

VII. THREE APPROACHES FOR DEFENCEOF OBEDIENCE TO SUPERIORS

Legal debates on superior orders has produced three main schools of thoughts:

1. The respondent superior doctrine.

2. The absolute liability or full responsibility doctrine.
3. The conditional liability or limited responsibility doctrine.

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 The respondent superior theory considers obedience to superior orders an automatic and complete
defence against criminal prosecution. The subordinate is exempted form criminal responsibility if he
committed a war crime. The subordinate is regarded as an instrument in the hands of the superior; it
was the superior who could be held responsible for the commission of the crime. The subordinate could
thus successfully invoke a defence of superior orders.

There are two different approaches on the international level, a conditional liability and an absolute
liability approach.

The conditional/ limited liability approach was proclaimed for the first time in a decision of the Austro-
Hungarian Military Court in 1915. It was further affirmed in the Llandovery Castle25 and Dover Castle26
cases that came before the Leipzig Court.

At Nuremberg, the limited/ conditional liability approach made room for the absolute liability
approach. Article 8 of the Nuremberg Statute reads: “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 provision on superior orders in the Charter of the Tokyo Tribunal, on the other hand, maintained
the clause in Article 6: “Neither the official position, at any time, of an accused, nor the fact that an
accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free
such accused from responsibility for any crime with which he is charged, but such circumstances may

25
16 July 1921, 16 AJIL 708 (1922), pp. 721-723.
26
4 June 1921, 16 AJIL 708 (1922), pp. 706-708.
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 be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

The ICTY and ICTR Statutes confirm the absolute liability approach i.e., the accused has absolute
responsibility without fault or negligence, where there is no defence or excuse whatsoever. The only
trial in which the defence played some role was Erdemovic. However, the plea of superior orders raised
by the accused was in reality a resort to the defence of duress and treated as such.

The Trial Chamber, however, would not accept a plea of superior orders to mitigate punishment where
the accused had carried out the order con amore, i.e. with the requisite mens rea. “If the order had no
influence on the unlawful behavior because the accused was already prepared to carry it out, no such
mitigating circumstances can be said to exist”.

The Appeals Chamber ruled that the concepts of superior orders and duress should be distinguished.
Superior orders were deemed to serve merely as a factual circumstance confirming (or not) the
existence of duress. The following statement of Judge McDonald and Judge Vohrah (the majority)
makes clear that superior orders is not considered a defence per se at the ICTY:

We subscribe to the view that obedience to superior orders does not amount to a defence per se but
is a factual element, which may be taken into consideration in conjunction with other circumstances of
the case in assessing whether the defences of duress or mistake of fact are made out.27

Article 33 of the Rome Statute is widely appreciated for two main contributions. The first being that it
has ruled out the possibility of the plea of superior orders for the most heinous of international crimes,
i.e., genocide and crimes against humanity. Secondly, Article 33 reverses the presumption of

27
Prosecutor v. Drazen Erdemovic (Sentencing Judgement) IT-96-22-Tbis (5 March, 1998)

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 conditional liability approach- wherein the defence is given a fair chance to prove the existence of the
requirements of the defence of obedience to superior orders.

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