Hello natalya-ga,
This answer is based on your premise that ordering or participation in
an invasion that is not legally sanctioned is a war crime. If your
premise is incorrect, then the answer may in turn be incorrect.
(Also, please note that I am a Google Answers researcher, not an
international law expert.)
Article 23 of the Rome Statute of the International Criminal Court
provides that:
"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."
"Part 3. General Principles of Criminal Law"
United Nations: Rome Statute of the International Criminal Court
http://www.un.org/law/icc/statute/99_corr/3.htm
So, under this statute, "following orders" can be a defense only under
certain specific circumstances.
However, other tribunals established prior to the International
Criminal Court have had different rules. The International Criminal
Tribunal for the former Yugoslavia has the following rule, in Article
7 of its Statute:
"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 International Tribunal determines that justice so requires."
"Article 7 Individual criminal responsibility"
Amended Statute of the International Tribunal
United Nations: International Criminal Tribunal for the former
Yugoslavia
http://www.un.org/icty/basic/statut/stat2000.htm#7
A provision of Article 6 of the Statute of the International Criminal
Tribunal for Rwanda is practically identical.
"Statute of the International Criminal Tribunal -- Article 6:
Individual Criminal Responsibility"
International Criminal Tribunal for Rwanda [United Nations]
http://www.ictr.org/wwwroot/ENGLISH/basicdocs/statute.html
Under these rules, it seems clear that "superior orders" are not a
defense, but might mitigate the punishment.
A comparison and discussion of these rules can be found here.
"Superior orders and the International Criminal Court: Justice
delivered or justice denied" (31-12-1999 International Review of the
Red Cross No. 836, p. 785-794 by Charles Garraway)
International Committee of the Red Cross (ICRC)
http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList320/4F89CC080CE0E792C1256B66005DD767
You might wish to note that the United States currently opposes the
International Criminal Court, though its citizens might be subject to
it in certain circumstances.
"The United States and the International Criminal Court: A Briefing",
by Anthony Dworkin (May 15, 2002)
Crimes of War Project
http://www.crimesofwar.org/onnews/news-us-icc.html
- justaskscott-ga
Search terms used:
"just following orders" "international law"
"superior orders" "war crimes"
"united states" "international criminal court" |
Clarification of Answer by
justaskscott-ga
on
24 Mar 2003 20:47 PST
I think I should add this concluding paragraph: So, depending on the
court, and possibly on the circumstances, "just following orders"
might or might not be a defense to a "war crime". If ordering or
participation in an invasion that is not legally sanctioned is a war
crime, then following orders to participate in it might be defensible
in the International Criminal Court, but not in other tribunals since
the time of the Nuremberg tribunal.
Please let me know if you do need a specific precedent. My feeling is
that this would necessitate a new question, since it would require
proof of the premise that you indicated was definitely correct for
purposes of the current question. But if you feel differently, and
require a precedent, I would try to find one.
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