COMMAND RESPONSIBILITY AND THE DEFENCE OF

Lecture April 20, 2015 by Arne Willy Dahl

Introduction It has been told that the French emperor Napoleon Bonaparte once summoned one of his generals to answer for a lost battle. The general pointed out that the cause of the defeat was some more or less random events completely beyond the control of the general. The defeat was therefore to be considered as the result of bad luck, not to be attributed to any fault by the general. The emperor answered: I cannot afford to have generals with bad luck. You are relieved from your command.

Napoleons reaction may not have been an example of good legal reasoning, but it illustrates the fact that from a military commander results are demanded, and that excuses for failure are not easily accepted.

- If the commander tells his superiors that his mission failed because of insufficient training of his troops, he will be asked why he did not provide sufficient training for them. - If the cause was insufficient supplies of ammunition or other essential supplies, he will have to explain what he did in order to provide the supplies to the troops at the frontline. - And if he says that the soldiers were not prepared when the enemy attacked, because they had been drinking beer and amusing themselves with the village girls instead of fortifying their positions and watching the movements of the enemy, he will have to answer to why he permitted such behaviour. If he then answers that he did not know what the soldiers were doing, he will be asked why didn’t he inspect them.

In other words, a commander must generally be prepared to be held responsible for acts or omissions by his subordinates, if he could have corrected matters by his own activity.

Criminal responsibility Such responsibility may also be criminal. In this country we have peacetime examples of accidents caused by junior officers, the commanding officer having to answer in court for his passivity. - Commanders have been asked whether they have entrusted vital tasks to persons with sufficient qualifications. - They have been asked whether operations have been properly organised, ensuring that each man knows his tasks. - Has there been sufficient control of what the subordinates were doing? - Has the commander inspired the subordinates by his presence, showing that he is interested in what is going on? - Has he reacted on information, which should have raised his suspicion that some problem might be developing?

I think that every developed army has to demand from its officers that they keep themselves informed, stay active and ahead of events, and take corrective action if something seems to be developing in an undesirable direction. The passive commander may lose his command, or in the more serious cases, face a trial.

Responsibility for criminal actions commited by the subordinates. If a commander is to be held responsible for losing battles by not controlling his men, it is obvious that he should also be held responsible for spoiling the good reputation of his army or even his country, by his to control his men. And when one is speaking of grave against innocent people, it is not only a matter of spoiling a good reputation, but a concern for all men of good will: How could this commander permit such things to happen?

Thus, command responsibility is not a recent development, but is flows from the nature of a military organisation. It is a general principle of military organization that military commanders are responsible for their subordinates (Hague IV art. 1, art. 43).

This principle of responsibility, taken together with the authority to give orders and to punish disobedience or other undisciplined behavior, makes the difference between a military unit of lawful combatants and a collection of individual franc-tireurs. Without going into details, it can generally be said that it is this principle of organization and responsibility which absolves the individual soldier from criminal responsibility for the use of deadly force against other human beings, when he acts according to his orders and within the rules for armed conflict.

Command responsibility has been practised in well-known criminal cases after the World War II. One is the case against the Japanese general Yamashita, who was held responsible for the conduct of his troops towards the population in the . The charge was that he between October 9, 1944 and September 2, 1945, in the Philippine islands, “while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and its dependencies, particularly the Philippines; and he * * * thereby violated the laws of war.” The number of victims ran up into tens of thousands.

Another was Hirota, former Foreign Minister of Japan, who was convicted of atrocities - including mass - committed in the "rape of Nanking", under a count which charged that he had " recklessly disregarded their legal duty by virtue of their offices to take adequate steps to secure the observance and prevent breaches of the law and customs of war". The Tokyo Tribunal held that:

"Hirota was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of , violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence".

Codification Codification in international treaties of the responsibility of commanders, is however comparatively recent.

The Protocol 1 of 1977 to the lays down in article 86 that the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

It furthermore lays down in article 87, that the High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and report to competent authorities breaches of the Conventions and of this Protocol.

The Geneva Conventions and Additional Protocols are, however, neither written nor negotiated as texts. They give substantial guidance, but the final assessment of the guilt of an accused, should preferably be made with reference to a national or an international criminal legal text, and in the absence of applicable texts, with reference to international customary law according to the best assessment of the court or tribunal having jurisdiction, for instance the Yugoslavia and tribunals.

Command responsibility was included in the ICTY Statute

ICTY Art. 7 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

A similar provision is included in the 1994 ICTR Statute.

In the negotiation of the 1998 ICC Statute, the provision was refined somewhat. To put it short, the article 28 makes a distinction between military commanders on the one hand, and civilian administrative or political leaders on the other. The article, however, equates a person effectively acting as a military commander, with military commanders. The reason is that in some cases a person can have the same functions and command authority as a military commander, without having a military rank, and should therefore have the same responsibility.

From these persons – military commanders and effectively acting as military commanders, the statute expects that they keep themselves informed of what is going on in the field. A military commander will have resources to obtain such information, and good military reasons to do so. He can therefore not be heard with that he did not know.

From superiors “not described in paragraph 1” – which means ordinary civilian leaders, the statute expects that they act on the knowledge that they actually possess, equating positive knowledge with the conscious disregarding of information that is at hand.

The Law expects from both the military commanders and ordinary civilian leaders that they “take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”.

One may ask how action after the event can absolve the commander from responsibility for a that has taken place. - One answer may be that crimes that are likely to invoke command responsibility will be of some duration, and that early punitive action will be the best way to stop actual and potential future perpetrators. - Another answer may be that punishing crimes or submitting the matter to competent authorities will be the only possible alternative to inaction, if the crime has already taken place. Inaction can easily be interpreted as condoning the crimes, which will implicate the military commander much in the same way as a state may be held responsible for act by private individuals, if and to the extent that the State acknowledges and adopts the conduct in question as its own.1 - A third answer may simply be that command responsibility is a crime of omission. What the commander essentially is held responsible for is his or her lack of action with regard to the criminal activity of the subordinates.

Let us now turn to some matters of interpretation.

Level of negligence Jean Pictet says in his commentary to the 1977 AP/I to the 1949 Geneva conventions:

[...] the negligence must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place. This element in criminal law is far from being clarified, but it is essential, since it is precisely on the question of intent that the system of penal sanctions in the Conventions is based.

Command responsibility was discussed by the ICTR in the Akayesu judgement. In paragraph 488 of the judgement it says that there are varying views regarding the required for command responsibility. - According to one view it derives from a legal rule of strict liability, that is, the superior is criminally responsible for acts committed by his subordinate, without it being necessary to prove the criminal intent of the superior. - Another view holds that negligence which is so serious as to be tantamount to consent or criminal intent, is a lesser requirement. The ICTR then cites Pictet’s commentary.

489. The Chamber holds that it is necessary to recall that criminal intent is the moral element required for any crime and that, where the objective is to ascertain the individual criminal responsibility of a person Accused of crimes falling within the

1 2001 ILC Draft Articles Responsibility of States for Internationally Wrongful Acts, Article 11 jurisdiction of the Chamber, such as , and violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II thereto, it is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.

490. As to whether the form of individual criminal responsibility referred to Article 6 (3) of the Statute applies to persons in positions of both military and civilian authority, it should be noted that during the Tokyo trials, certain civilian authorities were convicted of war crimes under this principle. Hirota, former Foreign Minister of Japan, was convicted of atrocities - including mass rape - committed in the "rape of Nanking", under a count which charged that he had " recklessly disregarded their legal duty by virtue of their offices to take adequate steps to secure the observance and prevent breaches of the law and customs of war".

The ICTR Tribunal then cites the Tokyo Tribunal

The ICTR continues: It should, however, be noted that Judge Röling (in the Tokyo Tribunal) strongly dissented from this finding, and held that Hirota should have been acquitted. Concerning the principle of command responsibility as applied to a civilian leader, Judge Röling stated that:

"Generally speaking, a Tribunal should be very careful in holding civil officials responsible for the behaviour of the army in the field. Moreover, the Tribunal is here to apply the general principles of law as they exist with relation to the responsibility for omissions'. Considerations of both law and policy, of both justice and expediency, indicate that this responsibility should only be recognized in a very restricted sense".

491. The Chamber therefore finds that in the case of civilians, the application of the principle of individual criminal responsibility, enshrined in Article 6 (3), to civilians remains contentious. Against this background, the Chamber holds that it is appropriate to assess on a case by case basis the power of authority actually devolved upon the Accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof.

To me, it seems that the Rwanda tribunal in this judgement is somewhat more conservative than the ICC statute.

The responsibility of civilians is today no more contentious, although it has its limitations.

When it comes to military commanders, I am not sure whether the Rwanda tribunals’ words saying that it is “proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent” will be the last. It must be remembered what is at stake: the lives and well-being of large numbers of people. Even if the risk of widespread or systematic atrocities seems relatively remote, it should be a task of high priority to ensure that such events do not take place, for the person in position to avert them. On the other hand, even if the commander is acquitted from a charge of crimes against humanity, he might be held responsible for a lesser crime, such as omission of military duties. In this context it may be a weakness to have a specialized court having jurisdiction over the most serious crimes only. That is my opinion.

Some particular questions related to military commanders

Who is a military commander? A traditional military organization is hierarchical – a pyramid of commanders on different levels. Each commander has a number of subordinates. Each subordinate has one immediate commander, who has one immediately above him or her, and so on up to the supreme commander.

A subordinate may have a number of superiors, who have a higher military rank, but are not his commanders, because they are not in the chain of command between him and the supreme commander. It is the commanders in the particular chain of command, who have command responsibility, not every superior that may have knowledge of crimes and who might have influenced events to the better, but did not.2

Where in the chain of command do we find command responsibility? In principle, commanders on all levels may incur command responsibility. How far up the chain of command the responsibility can go, must depend on the scale of the crimes and the distance of the particular commander from the events. The test must be whether the commander “owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”.

Outline of the organisation of a brigade

Commanding Officer Colonel

Battalion 1 Battalion 2 Battalion 3 CO CO CO LtCol LtCol LtCol

Company A Company B Company C CO CO CO Captain Captain Captain

1st Platoon 2nd Platoon 3rd Platoon Platoon leader Platoon leader Platoon leader Lieutenant Lieutenant Lieutenant

2 The difference between commanders and superiors is not visible in the French text, because there is only one term in the French language, covering both.

Outline of the organisation of a brigade

Commanding Officer Colonel

Second in command/ Deputy Commander/ Executive Officer

Battalion 1 Battalion 2 Battalion 3 CO CO CO LtCol LtCol LtCol

Company A Companyi B Company C CO CO CO Captain Captain Captain

1st Platoon 2nd Platoon 3rd Platoon Platoon leader Platoon leader Platoon leader Lieutenant Lieutenant Lieutenant

Is the second in command a commander? The prevailing view seems to be that a Deputy Commander or Executive Officer are not commanders and cannot incur command responsibility. The actual function of a DC may, however, be different in different military traditions, even between individual units depending on the style of leadership of the Commanding Officer. The DC may be in better touch with what goes on at lower levels, and if he does not alert the Commanding Officer, one may ask why he should not be held responsible.

Brigade CO Colonel

COS Lt col

G-1 G-2 G-3 G-4 Personnel Intelligence Operations Logistics Major Major Major Major

Battalion 1 Battalion 2 Battalion 3 CO CO CO Lt Col Lt Col Lt Col

What is the responsibility of the staff members? At least from battalion level and upwards, the commanding officer will be surrounded by officers with special functions covering personnel matters, intelligence, operations, logistics and other functions. There may be a Chief of Staff coordinating the work, possibly also doubling as Deputy Commander. These officers will man the operations room, tent or vehicle, prepare plans for upcoming operations and execute the orders of the commanding officer. In practice, officers on lower levels will more often interact with the members of the superior staff, than with the commanding officer himself. The prevailing view is that staff members cannot incur command responsibility.

Brigade CO

NORBATT FINBATT SWEBATT CO CO CO

Who has command responsibility in multinational operations? In multinational operations national contingents are put under operational command or operational control of a supreme force commander appointed by for instance the NATO or the UN. The authority of the supreme force commander over the troops will depend on national restrictions, that will manifest themselves in the Transfer of Authority document, in national caveats to Rules of Engagement or otherwise. It may be noted that disciplinary and penal authority will always be retained and exercised on national channels. The troop-contributing state will be represented in the theatre of operation by a National Contingent Commander, who will take care of national functions and follow up national interests without exercising operational command over the troops.

The relationship between the supreme force commander and national contingent commanders can be complicated, and it has, to my knowledge, never been tested before a court where command responsibility lies in case of crimes committed by troops.

One may, however, foresee two alternative developments. One is that a supreme force commander on trial successfully maintains in his defence that his authority over the national contingents under his command was so limited that he was not “effectively acting as a military commander”. This may not in itself be sufficient, but his situation may put a limitation on what were the “reasonable measures within his or her power” that he should have undertaken. This would be likely to undermine the authority of future international commanders over national contingents, which is likely to have repercussions on the possibility to invoke the defence of obedience to superior orders, which we shall have a look at shortly. On the other hand, if his is found to carry command responsibility, this will be a strong argument for future international commanders to assert effective authority over national contingents.

One may also foresee a bottom-up development in that a subordinate successfully invokes the defence of obedience to superior orders issued by an international supreme force commander. He thereby implies that he was “under a legal obligation to obey orders of the (Government or the) superior in question”, which is likely to strengthen the position of future international force commanders.

The Defence of obedience to superior orders

What is the problem about?

In the military, soldiers have to obey orders. If he is ordered to do something unlawful, he might be caught in a dilemma, risking prosecution for disobedience if he declines, or criminal responsibility if he obeys. If he even does not know whether the order is lawful or not, what is he to do?

In the history of international trials for war crimes and related crimes, the defence of superior orders has generally not been admitted, but there has been an opening to consider it in mitigation.

Nuremberg statute

Art. 8. 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 Nuremberg statute was, however, not uncontested. There have been several viewpoints around: - The traditional theory was that subordinates in the army could not decide, if the order was lawful or unlawful, since they do not know the relevant circumstances. Moreover, it would not be possible for them to refuse to obey. - The opposite theory favours absolute liability, arguing that only lawful orders can create an obligation to obey. - Against the traditional theory it could be said that orders should not relieve from responsibility if they are “manifestly unlawful”. - Against the opposite theory it could be said that the mental element may be lacking if the subordinate thinks by mistake that the order was lawful. - A third opinion holds superior orders generally irrelevant, but concedes that there may be mitigating circumstances.

The ICTY statute was, with regard to this matter, drafted according to the , since the aim was to formulate generally accepted international criminal law, and the discussions had not led to a widely accepted result.

ICTY statute

Art. 7 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 if the International Tribunal determines that justice so requires.

Sierra Leone 2002

Art. 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 if the Special Court determines that justice so requires.

Iraq 2003

Art. 15 e) The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Neither the 2000 Indonesia Act on Courts nor the 2003 Agreement on the trials address the issue.

On the other hand, in many national laws, this defense is admitted if the person did not know that the order was unlawful, and it was not manifestly unlawful – much like the corresponding rule of the ICC Statute.

1998 ICC Statute

Article 33 Superior orders and prescription of law

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.

Cassese seems to be of the opinion that article 33 is at odds with international customary law and should be interpreted restrictively (p. 241). Others share his opinion.

The difference between national legislations and international customary law can, according to Cassese, be explained by reference to the fact that the national provisions has to cover any violation of military law, whether or not it amounts to an international crime. International rules, instead, only regulate the more limited question of international crimes.

There are, however, other possible explanations to this discrepancy. One is clearly visible for those who are familiar with Norwegian Law. The 1946 Act on Punishment of alien war criminals did not accept the defense of superior orders, while the 1902 Military Penal Act does. If we take a closer look at the various international tribunals, we can see that they are all dealing with trying “someone else”. When it comes to national legislation, it is about trying “our own” people. The same applies to the Indonesia trials and the Khmer Rouge trials.

The ICC Statute reflects what states are willing to concede with a view to cases that may affect their own nationals as defendants. The ICC Statute has also a strong indirect influence on national legislation, in the sense that if national legislation would deviate significantly, one could find oneself in a situation where ICC takes a case because the State having the primary jurisdiction is not able to genuinely prosecute the case. In other words, if States had adopted stricter rules in the ICC Statute on this matter than they actually did, they could easily have found themselves under pressure to modify their national legislation accordingly.

My interpretation is, therefore, that when facing the prospect of trials where their own soldiers might be found in the dock, States become more cautious.

However: In common law countries national jurisprudence can be more strict. It seems that the defence of obedience to superior orders is accepted in the USA and in Canada, but not in the UK and Australia. This blurs both Cassese’s explanation and my own interpretation.

So, is the ICC statute wrong? As treaty law, it prevails over customary law. Between states parties it is, by definition, right. The question is whether it will be interpreted restrictively, as Cassese had suggested, whether customary law will yield to the statute, or whether you will have two parallel rules co-existing for a long time: One for parties to the ICC statute and another for non-parties.

My view is that the ICC statute is right in at least one particular sense: You should use the same yardstick when judging foreigners as you use for judging your own people. This view can be supported by GC III art. 82, whish says in the third sentence:

“If any law, regulation or order of the Detaining Power shall declare acts committed by a to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.”

Under this provision, it would be highly questionable to deny an accused that has POW status the defense of superior orders, when you admit it to your own personnel.

I do also believe that history will prove it right. It seems ot very likely that many new ad hoc tribunals will be established in the future. The preferred solution will more likely be to refer situations to the ICC. The ICC statute will rule and the defence of obedience to superior ordres will become the norm.

Some matters of interpretation Now, let us turn to some matters of interpretation.

What is an “order”? Orders in the sense of article 33 are all oral or written or otherwise expressed demands. Orders may be addressed to individuals or to groups of persons. An order may be general or relate to a particular act or omission. An order implies a legal duty to obey.

Who can issue orders? The order can be issued by a Government, a branch of Government or persons belonging to the Government and in charge of specific functions, which permit them to act on behalf or in the name of a Government or one of its branches.

The order can be issued by a military or a civilian. What is important is that the person issuing the order has to have the formal authority to issue the order in question, or else there would be no legal obligation to obey.

Connection between order and conduct The crime has to be committed pursuant to an order. This implies that the subordinate must have intended to act or omit to act out of concern to obey and hence to execute the order, or else article 33 will not apply.

Mistake of law In general, 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 (Article 32). This rule is found in most national legal systems, too.

Article 33 is an exception, as a person acting pursuant to an order will be relieved of criminal responsibility if he did not know that the order was unlawful, unless it was manifestly unlawful. Why this difference? As we have seen, an order implies a duty to do something. If there is no order, the person can chose to remain passive if he is not certain about what the relevant law says. This option is not open to the soldier who has been given an order.

Manifestly unlawful What does “manifestly unlawful” mean? In the Kafr Kassem case before the Israeli District Military Court it was put like this:

“The distinguishing mark of a “manifestly unlawful” order should be displayed like a black flag over the order given, as a warning reading “Prohibited!”.”

To Cassese, orders to commit war crimes are just as “manifestly unlawful” as orders to commit genocide or crimes against humanity, in particular since war crimes are spelled out in the ICC Statute and explained in the Elements of Crime. In this light, Cassese finds the ICC Statute to be at odds with international customary law, and calls for a strict interpretation of Article 33, so as to make it as consonant as possible with international customary law.

Is Cassese right, when he assumes that orders to commit war crimes will always be “manifestly unlawful?

In many cases, maybe in most cases, such orders will be manifestly unlawful. Generally speaking, war crimes, as enumerated in the ICC statute, constitute grave and obvious breaches of , breaches that would be shocking to most people witnessing such acts. Bur there are also more subtle crimes, crimes that are indeed serious, but where there is a complicated chain of circumstances, facts, decisions and law that lead to the conclusion that a particular act is a crime.

Let us take the crime of excessive attacks:

ICC Art. 8, 2, b (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long•term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

The person or persons who execute an attack may or may not have some ideas about the risk of collateral damage, but what about the military advantage?

The military advantage of bombing a bridge may depend on the intentions of the commander – what will his next move be? These intentions will not be known to the pilots.

Subjectively, they may be guilty of launching an attack, causing “incidental loss of life or injury to civilians or damage to civilian objects” for no apparent military advantage.

Objectively, there may be an overwhelming military advantage, provided the commander sticks with his plans. In the meantime, the enemy may have made a move, forcing the commander to revise his plans, and in the event, the bombing of the bridges were of no military value. Will this make the pilots (or others involved in the chain of target acquisition and passing of orders) guilty of war crimes?

Furthermore, the attack must be seen in context, which may be hidden for the subordinate. This situation is not hypothetical, but was very real in 1944, when targets in the Pas de Calais area was bombed in order to induce Hitler to believe that the invasion was to take place there, and not in Normandy.

The answer is obviously no. The pilot will have to follow orders, and be free from criminal responsibility as long as his orders are not manifestly unlawful. It will in most situations be impossible to him to judge the military advantage of an attack and he would therefore have to execute the orders no matter what he thinks about the military value of the operation. There is no reason for restrictive interpretation of article 33 in this case.

Let us also onsider the crime of starvation:

ICC Art. 8, 2, b (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

A squad of infantrymen is manning a checkpoint. Two are operating the gate, two are manning a machine gun covering the checkpoint, a sergeant is in supervision and the remaining four are at rest. They have been ordered to deny a particular convoy passage through the checkpoint. This convoy is carrying relief supplies as provided for under the Geneva Conventions.

G IV Art. 23 Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

Let us suppose that the sergeant in charge of the checkpoint happens to know that that the civilian population on the other side is starving, that the convoy contains essential foodstuffs intended for children and that he knows the relevant provision in the Geneva Conventions. Is he supposed to take matters in his own hands and admit the convoy? Can it be expected that he puts his own judgement above the supreme commander’s? If the order was unlawful, it would hardly be manifest to the sergeant at the checkpoint. There could be a multitude for reasons behind the order: Maybe some condition for a permission had not yet been met by the enemy, maybe there were plans for an offensive, demanding that the road had to be reserved for military traffic for some time, maybe there was only a delay in procedures, and that the convoy would be admitted the next day.

The examples show that in some cases, where the situation itself or the norm structure is complicated, it will not make much sense to go after individual soldiers that have put illegal orders into effect, deep down in the military structure. This does not mean that persons that have followed manifestly unlawful orders should not be held responsible. But it may be to go one step too far to declare that all orders to commit war crimes are, by definition, manifestly unlawful, a step that the ICC statute has not taken.

Let us consider another aspect of article 33.

In the early discussions, one element was that there had to be a “moral choice”. If there is a legal obligation to obey orders, there is also a risk of punishment for disobedience. In extreme circumstances, there could be a risk of . Such risk could also be incurred independently of whether the person is under a legal obligation to obey an order. This takes us to the rule on duress:

ICC Art. 31 Grounds for excluding criminal responsibility

1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:

…

(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 serious 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 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 that person's control.

The rule implies that you can sacrifice an innocent in order to save yourself. This is not an uncontroversial rule, and is another matter in which the ICC statute parts company with customary law.

Duress has been covered in a previous lecture, which shall not be repeated here. For our purposes, it is sufficient to note that duress is an independent defence that may be invoked although the defence of superior orders fails, and vice versa.

Thank you for your attention.

AWD