As a legal defense against war crime charges, the doctrine of superior orders holds that an individual cannot be held responsible for actions that were ordered by a superior officer. The doctrine was generally rejected by the Nuremberg Trials, but has been challenged since.
Article 8 of the Nuremberg Charter states " "The fact that the defendant acted pursuant to an 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."
In the statute authorizing the International Criminal Court, Article 33 reads :
- 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.”
- Charter of the International Military Tribunal
- Charles Garraway (31 December 1999), "Superior orders and the International Criminal Court: Justice delivered or justice denied", International Review of the Red Cross