Article

Equality before the law ? : some reflections on the defence of obedience to superior orders

by Arne Willy Dahl

• Israel yearbook on human rights, Vol. 50, 2020, p. 81-96

English

The defense of obedience to superior orders has been disputed for more than a century. To simplify and compress the history of that debate, it can be said that in international trials for war crimes and related crimes since the Nuremberg tribunal of 1945, the defense of obedience to superior orders has generally not been admitted, but that there has been an opening to consider it in mitigation. However, the 1998 Rome Statute for the International Criminal Court re-introduces in Article 33 the defence of obedience to superior orders. This has been criticized by several eminent academics, who hold that the provision is at odds with customary international law and should be interpreted restrictively. One may wonder why we have got this departure from a principle laid down in the statutes of international courts and tribunals from 1945 onwards, and which is considered to be of a customary nature. It is submitted that the underlying reason is that the question is viewed differently when one's own people are in the dock. This differential treatment can be traced both in national and international legislation, as well as in some case law.

• Full text (restricted access : ICRC)

• Israel yearbook on human rights / publ. under the auspices of the Faculty of Law, Tel Aviv University
• Israel yearbook on human rights [Vol. 50, 2020] / publ. under the auspices of the Faculty of Law, Tel Aviv University