CYIL vol. 12 (2021)

Katarína ŠmigovÁ

CYIL 12 (2021)

3.4 Superior Orders The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. The fourth Nuremberg principle is one of the principles that reflect, in particular, the specificities of World War II and the related particularities reflected in the Charter and the Judgment of the Nuremberg Tribunal, and in the formulation of the Nuremberg Principles by the UN International Law Commission. Despite the fact that casualties are an inherent part of armed conflicts and that soldiers are generally not criminally responsible for killing a human being, there are situations when it is necessary to examine the functioning of the armed forces and the execution of the orders of its superiors. It is important despite the fact that the essence of an effective functioning of an army is the fulfilment of orders. A good soldier does not examine an order but executes it. Already before World War II, there had been cases at the national level where the superior order defence was granted, 64 but only under certain conditions; it was therefore possible to classify the responsibility of soldiers as the so-called “conditional responsibility”. 65 However, the atrocities of World War II led to the adoption of the so-called absolute responsibility that barred the superior order defence as such, the relevant circumstances could only be considered as a mitigating circumstance. 66 First, it was related to the fact that even though the orders were in accordance with national law, they exceeded the norms of natural law. 67 Second, the Nuremberg Tribunal prosecuted only the top officials who had no superiors. However, the process of moral choice, the concept that became a part of the Nuremberg Judgment as well as the Nuremberg principles formulated by the ILC, was properly examined during the Nuremberg process. 68 In spite of various efforts, the issue of superior order defence did not achieve any codification milestones during the Cold War; therefore, the preparation of the status of ad hoc tribunals was based on Nuremberg’s experience. As a result, their statutes set out objective responsibility in relation to the superior order defence. 69 Nevertheless, in the ad hoc tribunals’ decision- making practice, efforts were made to make the content of this defence accessible through the duress. 70 64 Leipzig Court, Llandovery Castle , Judgment, 16 July 1921, reprinted in American Journal of International Law , 1922, vol. 16, p. 708 et seq. 65 GAETA, P., The Defence of Superior Orders; The Statute of the International Criminal Court versus Customary International Law”, in European Journal of International Law , 1999, vol. 10, p. 174. 66 Art. 8 of the Nuremberg Charter. 67 Main US Prosecutor Robert H. Jackson, Opening Statement before the International Military Tribunal, available at https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international- military-tribunal/, last accessed at 22 April 2021. 68 Nuremberg Judgment, see supra note 2, para. 447. 69 Art. 7 para. 4 of the ICTY Statute, art. 6 para. 4 of the ICTR Statute. 70 See e. g. ICTY, The Prosecutor v. Erdemović, case IT-96-22-T, T.Ch., sentencing judgment, 29 November 1996, para. 17. But see the result of the duress issue in Erdemović case in the sentencing judgment from 5 March 1998, para. 17 analysed in LIPOVSKÝ, M., Norimberské principy a jejich dopady v současnosti [Nuremberg Principles and their present impacts], in GERLOCH, A., ŽÁK KRZYŽANKOVÁ, K. (eds.), Právo v měnícím se světe [Law in a changing world] , Plzeň, Aleš Čeněk, 2021, p. 362.

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