The Defence of Superior Orders in the Modern Law of Armed Conflict
AbstractThe Geneva Conventions of 1949 and their Additional Protocols refer to grave breaches of the laws of armed conflict and to punishment and prevention of such breaches. Every military system demands obedience by inferiors to the orders of superiors. A principle of customary law requires an inferior to disobey orders that are so manifestly illegal that he must or ought to have know that they were unlawful. Despite the silence of the Geneva Conventions and Protocol I on defences that might be raised by anyone charged with such breaches, the customary law regarding war crimes applies not only to offences against the laws and customs of war but to breaches of the Geneva Conventions and the Protocol. This situation has not changed substantially as a result of the Draft Code of Crimes Against the Peace and Security of Mankind as it reiterates the provisions established in customary law. If adopted, it would provide a treaty provision recognizing the limited validity of the defence of superior orders not for all war crimes but for those which are "exceptionally serious" and for other crimes against peace and security. War crimes in the traditional sense and "grave breaches" described in the Geneva Conventions and Protocol I are dealt with by customary law.
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