Orders on Trial: The Doctrine of Superior Orders

In the shadow of ongoing events in Syria, the age-old debate over the defense of superior orders has surged back into the spotlight. The legal doctrine, colloquially known as the "Nuremberg Defense," entails a critical dilema: Should individuals be held accountable for actions they took under the command of superiors?

The doctrine of superior orders is a legal defense wherein an individual defendant claims they were merely following orders from higher authority and should therefore not be held fully accountable for those actions [1].

A- Pre-WWIII: Absolute Defense Theory

The doctrine of absolute defense, which historically protected soldiers from liability for actions taken under superior orders, is rooted in the necessity of maintaining strict military discipline. This legal doctrine justified obedience within military ranks, based on the acknowledgement that the liability for unlawful actions rests primarily with the superior issuing the orders. Legal theorists at that time have argued that strict military discipline relies on absolute obedience.[2]

The shift in the back-then contemporary legal discourse away for a more pragmatic approach within the Nuremberg trials, recognizing this doctrine as inadequate for ensuring accountability and deterrence in modern warfare where personal accountability is crucial, reflected a broader move towards a stiffer legal framework that addresses military discipline and the need for individual soldiers to make lawful and ethical decisions.

B- Nuremburg trials: Absolute Liability Theory

During the Nuremberg Trials, the doctrine of absolute defense in the context of superior orders was reshaped. The trials famously rejected the notion that merely following orders could absolve defendants of responsibility for the atrocities committed. The Nuremberg Trials established that individuals have a legal and moral obligation to refuse orders that involve the commission of unlawful acts. This principle asserted that the defense of superior orders could only be considered as a mitigating factor, not an exculpatory one. This position articulated that the defense of superior orders could be considered only as a mitigating factor in sentencing, not as grounds for exoneration.[3]

Principle IV of the Nuremberg Principles:

"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."

C- Rome Statute: Conditional Defense

Under the Rome Statute, the doctrine of conditional defense as delineated in Article 33 introduces a nuanced approach to the defense of superior orders, emphasizing the conditions under which such a defense might mitigate or negate criminal responsibility. Specifically, Article 33 stipulates:

Article 33: Superior orders and prescription of law

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.

For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

This places a burden of proof on the defendant to demonstrate ignorance of the unlawful nature of the act, which must be convincingly established within the constraints of what is considered "manifestly unlawful", and not within a course of an act of genocidal or crimes againt humanity. Despite the ambiguity or vagueness of this doctrine, it ensures that mere submission to authority is insufficient for exoneration, thereby reinforcing the imperative that individuals within military and governmental structures are expected to exercise judgment and uphold moral and legal standards.

"The distinguishing mark of a 'manifestly unlawful order' should fly like a black flag above the given order, as a warning reading "Prohibited!". Not mere formal illegality, hidden or half-hidden, not the kind of illegality discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself; the clearly criminal character of the order or of the acts ordered, an illegality clearly visible and repulsive to the heart, provided the eye is not blind and the heart is not stony and corrupt - that is the extent of 'manifest illegality' required to release a soldier from the duty of obedience upon him and make him criminally responsible for his acts."

Judge Benjamin Halevi on the doctrine of superior orders during the Adolf Eichmann trial (1961) [4].

Special Tribunal for Lebanon (STL)

Under the framework of the Special Tribunal for Lebanon (STL), established by an agreement between the United Nations and the Lebanese government, the doctrine of Absolute Liability is addressed in Article 3(3) of the STL's Statute.

Article 3(3) of the STL Statute:

"The fact that the person acted pursuant to an order of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Tribunal determines that justice so requires."

This article provides that acting on the order of a superior does not relieve an individual from criminal responsibility but may be considered in the mitigation of punishment if deemed just by the tribunal. Unlike Article 33 of the Rome Statute, which specifies conditions under which obedience to superior orders might entirely exempt a person from criminal responsibility, the STL statute does not offer a complete exoneration under the defense of superior orders; instead, it focuses solely on the potential for reduced sentencing.

It is clear that the doctrine of superior orders does not just challenge the chain of command, but the very fiber of international justice. As legal docrtines and theories evolve from the Nuremberg Trials to the Rome Statue, and as all legal theories may be applied within courts’ premises although the Rome Statue trajectory is the most followed, we're forced to ask: Can the scales of justice truly balance the weight of commands against the measure of individual conscience? The issue is not merely about legal technicalities; it is about whether our global society can hold true to the moral compass in times of war.

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[1] Icrc.org. (2025). Available at: https://ihl-databases.icrc.org/zh/customary-ihl/v2/rule155.

[2] Liang, J. (2010). Defending the Emergence of the Superior Orders Defense in the Contemporary Context. Goettingen Journal of International Law, [online] 2, pp.871–892. Available at: https://www.gojil.eu/issues/23/23_article_liang.pdf.

[3] Abrahamsson, M. (n.d.). The Defense of Superior Orders. [online] Available at: https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8972884&fileOId=8973744.

[4] Abrahamsson, M. (n.d.). The Defense of Superior Orders. [online] Available at: https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8972884&fileOId=8973744.