Aim:
This article seeks to explain the superior order defence in criminal law. A defence which was widely relied upon during the Nuremberg and Tokyo Trials, after the World War II, has found place in the Indian Penal Code, 1860, as well. However, the application of this defence has been a bone of contention throughout, which shall be highlighted in this paper.
Introduction:
Section 76 of the Indian Penal Code (45 of 1860)[1] concerns itself with the “act done by a person who is bound, or by mistake of fact believing himself bound, by law”, and states:
“Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
Illustrations:
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.”
Illustration (a) of the section describes what the defence of superior orders would mean in practice. A fairly simple looking provision that it is, it has been met with a general negative stance from the courts all over the world. On analysis of the illustration, we realise that it says that the soldier would be having the defence of superior orders if the commands executed by him are in conformation with the law. This simple proviso is the core issue in this very defence of superior orders.
The law of war has had superior order defence for a very long while.[2] On the analysis of its development, we find that over the years, the application of this defence has become universal and hence, it is now dealt with in general terms. The defence requires a direct order from a superior to commit the crime in question, and it is characterised by two significant features.[3] Firstly, the defendant must have no knowledge of the illegality of the of the order, that is, the subordinate must in good faith and reasonably believe that the superior’s order did not violate the law, in order to claim the defence.[4] Secondly, this defence is not available to the subordinate if she could choose between one of two or more possible actions. Herein, it is examined if the whether the defendant had the moral choice in following the order.[5]
While, the jurisprudence around this defence has largely been developed through the case laws in India, with a very little literature available around it, it has been a topic of wide discussion in the international legal academia.[6] The scholars have traced back the history of this defence to a very long ago and have analysed the various issues around it.[7] It is, generally, not used as an absolute defence in criminal law rather, it is used to mitigate the punishments awarded.
Superior Order Defence Across the Globe:
There exists a popular belief that this defence had was first raised and litigated at the Nuremberg Trials.[8] Contrary to this belief, the origins of this defence could be traced back to Roman philosophers like Saint Augustine and Grotius. There were contradicting stances present around the defence from the very origin of it.[9]
In 1474, Peter von Hagenbach, a German governor tried for perpetrating a reign of terror in the name of Duke Charles and raised the defence that soldiers owe absolute obedience to their superiors, which was rejected and he was beheaded.[10] In 1660, in the Axtell’s case, the plea of superior defence was rejected with the court saying that if the superior is traitor then, all those who joined him shall be deemed to be traitors and their acts shall be considered traitorous.[11]
The ‘ought to know’ doctrine formed the normally recognized analysis of the defence of superior orders, before 1945, which was in consonance with the understanding of the defence as explained above.[12] If the order was such that the unlawfulness must have appeared obvious ab initio, then there would be no defence even though there might still be a plea in mitigation.[13] The nature and the inference of this doctrine can be drawn out from the international cases available around it from the early 19th century.
In 1816, in the case of R v Thomas[14]the defendant was convicted but, the jury added an appealing recommendation that he should be pardoned, as this was severely a case of an illegal superior order as one of an abstruse order which was, though to very badly, but not wholly unreasonably misinterpreted. In R v Smith (1900)[15] the defendant was acquitted on pleading this defence. It was stated:
“If a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known that they are unlawful, the private soldier would be protected by the orders of his superior office.”[16]
The ‘ought to know’ doctrine can be found in other jurisdictions, like in USA, in the cases of Riggs v State[17](1866) and in Commonwealth ex rel. Wadsworth v Shortall[18]. But, the most significant cases based on this defence was taken up after the First World War by the German Reichsgericht in the Dover Castle and Llandovery Castle cases. In the Dover Castle case[19] the defendant was given the plea of this defence because the information given to him by his superiors was erroneous and had it not been so, the actions of the defendant would have been lawful. In the Llandovery Castle case[20], it was held that the acts of the defendant of massacring shipwrecked survivors was so manifestly unlawful that it could not afford a defence and hence, they were convicted. Hence, the two cases set up comprehensive parameters of the ‘ought to know’ doctrine which was used till the Second World War and the Nuremberg Trails.
The end of Second World War brought the Allies to face with an unparalleled situation, both in terms of scale of mayhems uncovered and the entirety of the defeat of the Axis Powers. The major war criminals were tried before the International Military Tribunals at Nuremberg and Tokyo, and the lesser criminals were tried before the Allied Tribunals.[21] These trials contributed expressively to the progress of international criminal law.[22] The pre-1945, ‘ought to know’ doctrine was side lined and the defence was refused to be accepted by the tribunals and hence, the defendants taking this plea were convicted of the offences they were charged with.[23] In the Peleus case[24] which was similar in facts to the Llandovery Castle case, all the subordinates, along with the commanding officer, were convicted of the offence and awarded harsh punishments.
Why is this a problematic venture shall be discussed later in the course of paper. What remains to be considered is that there arose a view that these trials and the Nuremberg and the Tokyo Charters changed the legal position of the appeal of superior orders.[25] Several statutes that were enacted by countries across the globe after these trials, either raised the standard of the burden of proof on the defendant or completely excluded it as a defence.
This Nuremberg doctrine of superior orders is set away by the provisions of the Rome Statute of the International Criminal Court (ICC). It strictly phrased and brought back the principle of ‘ought to know’. The Rome Statute (1998) restored the status of the defence to its correct pre-1945 understanding, without in any way, conceding with what was held at the Nuremberg and the Tokyo Trials, thereby, clearing the defence from its 50 years of distortions.[26] Under Article 33, the Rome Statute states:
“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.”
There are three famous cases after the Nuremberg Trials where the defence of superior orders had been pleaded. The cases are that of Eichmann[27], Call[28]aeynd Lyndie England. The defendants had attempted to use the defence in all three cases, but eventually turned to other defences.[29] In Eichmann, the defence was rejected by the court. Calley was not able to provide proof of the existence of the order allegedly given by his superior, who was himself acquitted at his trial. In England’s trail, the defence team gave up on pleading superior order defence. The doctrine of ‘ought to know’ stands valid.
Superior Order Defence in India:
In India, the defence of superior orders finds home in Section 76 of the Indian Penal Code, 1860. According to the section, every act done under the orders of superior authorities is not protected under this section. Any illegal order by the superior authority shall not save the subordinate officer from liability.[30] The IPC does not recognise the mere duty of blind obedience by a soldier to his superior authority. He won’t be absolved from liability unless he shows that either the order was legal and binding on him or the circumstances made him believe in good faith, that he was bound by law to obey it.[31] The above principle as accepted in the International Law has also been accepted in the Indian jurisprudence.[32] In order to understand the jurisprudence around this defence in India, we shall delve into the case laws available.
In the case of Chaman Lal v Emperor[33], the non-admissibility of the plea of superior orders as a valid defence in criminal law was illustrated. The facts of the case involved the jail warders severely beating up the prisoners, which led to the death of two of the prisoners. Chaman Lal, along with other jail officials had been convicted and awarded sentence by the District Magistrate. Lahore High Court upheld these convictions. The Head Warder, Sawan Ram, raised a defence that he had been acting under the orders of his superior official, Chaman Lal. The Court did not accept this defence, stating that all of them knew that they were engaged in an illegal act and hence, there is no question of good faith, mistake of law or mistake of fact. Due to the fact that they had been jail officials for quite some time, the Court concluded that they must have known that mercilessly beating up the prisoners was contrary to law.
In the case of Charan Das Narain Singh v The State[34], the accused, Charan Singh, appealed in the East Punjab High Court, despite him firing the shot, it was done under the order of superior official, Harnam Singh. The Court held that the order issued by the superior was wholly unjustified and manifestly illegal. Hence, the accused did not have any duty to follow such an order. In fact, it was under his duty to defy any irrational and illegal order. Since, the order was wholly unjustified, the firing by Charan Das and the killing in obedience to the order was murder. Khosla, J. had held:
“To plead that he acted in obedience to the orders of Harnam Singh would not excuse him because the order was unlawful. Obedience of an unlawful order does not exonerate or excuse the person who commits an offence as a consequence of such an order. Therefore, Charan Das is clearly guilty of the offence of murder and his conviction must be upheld.”[35]
Subsequently, in case of State of West Bengal v Shew Mangal Singh & Ors,[36]the respondents were convicted and sentenced to life imprisonment by the trial court, under the charges of murder, read with joint liability. They were acquitted by High Court of Calcutta, asserting that the circumstances were such that the respondents were bound to obey the lawful orders of their superior officer. On appeal to Supreme Court, the Court opined that since the order was justified and hence, lawful, no supplementary question could stand as to whether the respondents, who acted in compliance to that order, believed or did not believe that order to be lawful. The Court further held that such a query becomes vital when the order of the superior officer is not in accordance with the law, and the respondent pleads superior order as a defence. In the immediate case, since the circumstances were such that the acts of the police officers to open fire was acceptable, they could not be held liable as they had been acting in conformity with the orders of the superior officer.
Another landmark case happens to be R.S. Nayak v A.R. Antulay,[37] the Supreme Court held:
“the superior’s direction is no defence in respect of criminal acts, as every officer is bound to act according to law and is not entitled to protection of a superior’s direction as a defence in the matter of commission of a crime.”
The case laws, thus, presented show that the standing of the defence of superior orders is in consonance of with the internationally accepted ‘ought to know’ doctrine. There is a general stance of inadmissibility of the defence, unless it could qualify the several strict conditions that have evolved through the judgements.
The Contentions around the Defence:
The case law and the legal literature have never clarified the content of the customary rule on this matter and there exist two contradicting approaches to the defence. The relevant international instruments, that were in force prior to the Rome Statute, have taken a view that obedience to superior orders can never be a defence in criminal law, and this approach is termed as the absolute liability approach. By contrast, there exists a conditional liability approach, which is generally adopted by nations around the world, which states that the plea is a complete defence, unless the subordinate knew or should have known the illegality of the order or unless the order was manifestly illegal.[38]
The principle of military obedience is reinforced in national legal systems through decrees of military law which impose upon soldiers a legal duty to obey orders and threaten them with the direst of the consequences in case of insubordination.[39] National legal systems have struggled to reconcile the contradictions between the principle of discipline and the principle of responsibility, and diametrically opposed doctrines have been advocated.[40]
There’s a need to explore the critique of the Nuremberg and the Tokyo Trials, the principles evolved from which have seeped in to the various statutes and guidelines around the world, including the British Manuals of Military Law[41], and forms the basis of the International Law with regard to this defence. It is imperative to look at the background of the participants and circumstances surrounding the trial to understand its true nature.
The defendants in the these trails were for most part political leaders of cabinet rank and military officers at very senior levels of command, hence, it was not quite plausible for them to plead the defence of superior orders, not for the reason of this particular defence being flawed, but for the simple reason that the defendants were the ones who had planned the acts and not received it as an order from their superiors.[42] Thus, the defence of superior orders was inadmissible due to the facts of these cases and not for the flaw in this defence.
Moreover, the leadership structure in the Axis Powers was such that ultimately all the responsibility would have been placed upon Hitler, who was dead upon the time of the trials.[43] Hence, the Allies needed to hold someone accountable for the barbaric crimes against the humanity, which made them reject the defence of superior orders. There has been a constant debate upon the fact that how justified it was to have a military tribunal composed of representatives of victorious powers to have jurisdiction to try individuals previously employed in the service of the defeated power.[44] The critics of the Nuremberg and the Tokyo trials[45] have also pointed out that the ‘due process of law’ had not been followed in these trials and it was marred with bias against the defendants.[46]
Article 8 of the Charter of the International Military Tribunals at Nuremberg stated:
“The fact that the Defendant acted pursuant to orders 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.”
Article 6 of the Charter of the International Military Tribunals at Tokyo stated the similar principle:
“Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”[47]
It, thus, becomes questionable: the wide spread acceptance and the applicability of the principles evolved from these trials when, they are themselves marred with so much of contentions. The principles evolving from these trials have been accepted as the International Law surrounding the defence of superior orders, the appropriateness of which is dubious.
The other contention which arises with regard to this defence is the presumption that the defendant soldier had sufficient knowledge of the law to decide the legality of the orders that are given to her by the superiors.[48] The principle that has been established is that the soldier can disobey the commands of her superior only when it is manifestly illegal. But the problem arises in cases where the commands of the superior officer are complex and it becomes difficult for the soldier to decide upon the legality of the commands. The soldiers do not have a perfect knowledge of the law.[49]
An order need not necessarily violate the core legal-moral norms for it to be illegal. An order is frequently unlawful because it disrupts a norm that is quite technical and the unlawfulness of such orders is obscure.[50] For example, international law forbids the making of booby-traps that look like innocuous moveable objects, like a camera, but allows the add-on of such booby-traps to standing harmless moveable objects, like attaching a bomb to a camera is allowable.[51] It is, thus, impractical to suppose all soldiers to always be able to differentiate between unlawful orders and lawful orders that closely look like each other, or even know all the diverse lawful norms that the orders can possibly be disrupted.[52] According to the Section 79 of the Indian Penal Code[53], a defendant cannot take the plea of not knowing the law and hence, this would end up in the defendant being liable for the offence, even without knowing the illegality of the orders of her superior officer.
In case of doubts over the legality of the order, it is only human for the soldier to trust the words of her superior who has been in service for longer than her. On the contrary, under the absolute liability norm, the soldier shall be prone to disobey the orders of the superior, in case of slightest doubt over the legality of the order, which shall eventually break down the fabric of discipline and command upon which the military structure rests.
Finally, the issue which ordinarily gets overlooked by the scholars is that the precarious situation in which the defendant soldiers find themselves when there is a general trend of inadmissibility of the defence of superior orders. Though, the judges in the obiter dicta of their judgements have recognised the perilous situation of the soldiers, little has been done to mitigate the perils. The judgements of the courts in India, concerning this particular defence, are ambiguously worded and hence, much of the legal principles established around this defence are based on scholarly views.
The Middle Path Solution:
There are two approaches to this defence, as has been already stated in this paper.
There is an approach wherein, it is believed that soldiers ought to obey only lawful orders and the fact that there has been a violation of the law by a soldier under the orders of her superior should never serve as a defence and is called the absolute liability approach.[54] There are some inherent flaws in this approach, which is not in the scope of this paper to explore them. It shall be sufficient to say that this method must not be totally abandoned but, it should not be stretched beyond appropriate boundaries and put on to all cases.
The other approach is that of conditional liability. Under this approach, obedience to illegal orders should serve as a defence, but only under certain conditions. It is further sub-divided into two approaches: ‘factual conditional liability approach’ and ‘normative conditional liability approach’.[55] According to the prior approach, a defendant shall be given this defence only if she did not have knowledge about the unlawfulness of the order and that unawareness should be reasonable. The latter approach states that a defendant should be given a superior orders defence even if she had knowledge that the order was unlawful, yet if the order is so blatantly immoral, then the defendant should disobey such orders, and the defence shall not be rendered to such a defendant.
The middle path approach seems to be a plausible solution to the two contradicting stances, where it is to be understood that such a defence should not be regulated based on a one-rule-fits-all premise. Each of the two camps cite the precedents which are supportive of their views, while it blatantly ignores the precedent which supports the stance of the opposing camps. This results in a large-scale legal uncertainty and inconsistency.[56]
In the case of Keighly v Bell[57], Justice Wills made a very unclear statement. Firstly, he made an early statement that seemed self-contradictory. The statement began with an assertion of backing toward always providing a defence to compliant soldiers. Midway through the judgement, the tone changes and the judgement, in turn, becomes supportive of an absolute liability approach. Then, the judge changes his stance altogether and states that the law is one supportive of a conditional liability approach. Hence, we realise that the attempt to coalesce the two stances is not something which is contemporary in nature. It has been attempted over the years, even in the 19th century.
There is a division evident in the British Manuals of Military Law, which were published in the early 20th century. The norms stated in these manuals seems to be supporting the view of the conditional liability.[58] But, the other sections examining war crimes support an absolute defence.[59] And then, there is a third kind of statement which states that the law is unclear as to whether, and to what extent, obedient soldiers would be afforded a defence.[60]
The judicial rulings and leading legal statements rendered in the early twentieth century, in fact, reveal the following division. Firstly, with regard to orders given during emergency activities, either an absolute defence[61] or a normative conditional liability approach was rendered.[62] Secondly, if the orders given makes the civilians the victims, or if the illegal act was a civilian offence, there has been a tendency to either supply a very narrow superior orders defence, or even to apply an absolute liability approach.[63] Thirdly, for violation of military law, and when the victim was a soldier, a conditional liability approach was applied.[64]
Hence, we see that the middle path approach, which encompasses all the approaches possible for the defence of superior orders and provides different considerations relevant to the issues that arise, has been applied and should be applied, in order to do justice to both, the defendant and the victim, for the orders which were given to the defendant by her superior officer.
Conclusion:
Section 76 of the Indian Penal Code, 1860, provides for the defence of superior orders by means of illustration (a), which has been a part of the law of war since a long time, but has become universal in its application over the years. In order to successfully plead this defence, the defendant must not have the knowledge of the illegality of the order of his superior, all in good faith and reasonably.
The evolution of the defence in International arena is divided into three phases: pre-1945, where the approach was that of conditional liability of the defendant; the principle of absolute liability of the defendant evolved at the Nuremberg and the Tokyo Trials and which continued thereafter; and finally, the restoration of the principle of conditional liability with the enactment of the Rome Statute in 1998.
The jurisprudence around this defence in India has been in consonance with the International Laws and hence, the general trend of inadmissibility of the defence has been followed, which is apparent through the case laws. The courts have given strict conditions which have to be complied with, in order to successfully plead the defence.
The Nuremberg and the Tokyo trials are laden with inherent controversy hence, following the absolute liability approach to this defence does not appear to be a prudent recourse. The complexity of the nuances of law makes it unrealistic to expect the soldiers to have absolute knowledge of the legality of the orders of her superior. Hence, there is a dire need of an approach which takes into consideration the true innocence of the complex laws in existence. There is also a need for mitigating the precarious situation in which the soldiers find themselves when there is a general trend of inadmissibility of this defence.
Hence, a plausible solution to the diametrically opposite stance to this defence is the middle path approach, where one does not try to use one-rule-fits-all policy. The absolute liability approach and the conditional liability approach, both, should be applied in relevant cases and the judges must try to seek a balance between the two approaches.
Edited by Vedanta Yadav
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
Reference:
[1] Pen. Code, §76 (India).
[2] Leslie C. Green, The Defence of Superior Orders in the Modem Law of Armed Conflict, 31 Alberta L. Rev. 320 (1993).
[3] James W. Grayson, The Defence of Superior Orders in the International Criminal Court, 64 Nordic J. Int’l L. 243 (1995).
[4] id at 244.
[5] id at 245.
[6] Christopher M. Henson, Superior Orders and Duress as Defenses in International Law and the International Criminal Tribunal for the Former Yugoslavia, available at: https://eaglefeather.honors.unt.edu/2004/article/3#.WunLx4iFPIV <last seen: May 2, 2018>.
[7] Alexander Zahar, Superior Orders in, The Oxford Companion to International Criminal Justice 525 (Oxford University Press 2009).
[8] D. H. N. Johnson, The Defence of Superior Orders, 9 Aust. YBIL 291 (1980).
[9] Aubrey M. Daniel III, The Defense of Superior Orders, 7 U. Rich. L. Rev. 477 (1973).
[10] Johnson, supra note 8.
[11] Daniel, supra note 9 at 481.
[12] Hilaire McCoubrey, From Nuremberg to Rome: Restoring the Defence of Superior Orders, 50 Int’l & Comp. L.Q. 386 (2001).
[13] id.
[14] (1816) 4 M&S, 41.
[15] (1990) 17 S.C.R., 561.
[16] id at 565.
[17] 3 Cold. 85 (1864).
[18] 206 Pa. 165, 171, 55 Atl. 952, 955 (I903).
[19] (1922) 16 American Journal of International Law, 704.
[20] (1922) 16 American Journal of International Law, 708.
[21] A. V. P. Rogers, War Crimes Trials under the Royal Warrant: British Practice 1945-1949, 39 I.C.L.Q. 780 (1990).
[22] McCoubrey, supra note 12.
[23] McCoubrey, supra note 12.
[24] William Hocky & Co, War Crimes Trials, Vol. I, (1948).
[25] McCoubrey, supra note 12.
[26] McCoubrey, supra note 12.
[27] Attorney General of the Government of Israel v. Adolf Eichmann (1961).
[28] United States v. William L. Calley Jr., 22 U.S.C.M.A. 534/26.875.
[29] Natalia M. Restivo, Defense of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England, 18 Cornell Law School Graduate Student paper. (2006).
[30] Haji Mahamoodkhan Dulathan v. Emperor, AIR 1942 Sind 106.
[31] K I Vibhute, P S A Pillai’s Criminal Law 75 (13th ed. 2017).
[32] Viplav Kumar Choudhry, Defence of Superior’s Order and Command Responsibility under the Criminal Laws in India, 60 Indian Journal of Public Administration (2014).
[33] Chaman Lal v. Emperor, AIR 1940 Lah 210
[34] Charan Das Narain Singh v. The State, AIR (37) 1950 East Punjab 321.
[35] id at ¶4.
[36] State of West Bengal v. Shew Mangal Singh, AIR 1981 SC 1917.
[37] R.S. Nayak v. A.R. Antulay, 1986 SCR (2) 621.
[38] Paola Gaeta, The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law, EJIL 172 (1999).
[39] Paul Eden, Criminal Liability and the Defence of Superior Orders, 108 S. African L.J. 640 (1991).
[40] id at 641.
[41] Great Britain War Office, Manual Of Military Law: War Office (6th ed. 1914).
[42] McCoubrey, supra note 9.
[43] McCoubrey, supra note 9.
[44] Alan M. Wilner, Superior Orders as a Defense to Violations of International Criminal Law, 26 Md. L. Rev. 127 (1966).
[45] Nakajima Takeshi, The Tokyo Tribunal, Justice Pal and the Revisionist Distortion of History, 9 the Asia-Pacific J. 3 (2011).
[46] Charles E. Wyzanski, Nuremberg: A Fair Trial? A Dangerous Precedent, The Atlantic (1946).
[47] International Military Tribunal for the Far East, Art. 6, available at: http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf <last seen: May 2, 2018>.
[48] Ziv Bohrer, England and the Superior Order Defence- Choosing the Middle Path, 12 Oxford U. Comm. L.J. 273 (2012).
[49] id at 273.
[50] id at 276.
[51] id at 276.
[52] id at 276.
[53] Pen. Code, §79 (India).
[54] Bohrer, supra note 48, at 275.
[55] Bohrer, supra note 48, at 280.
[56] Bohrer, supra note 48, at 291.
[57] Keighly v. Bell, (1866) 4 F. & F. 763.
[58] Manual of Military Law (n 112) 17 18.
[59] id at 302.
[60] id at 144.
[61] James F Stephen, A History of the Criminal Law of England, 2 Macmillan & Co 62, 63 (1883).
[62] NCH Dunbar, Some Aspects of the Problem of Superior Orders in the Law of War, 63 Juridical Review 234, 243 (1951).
[63] Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, 4 Sweet & Maxwell 126, 129 (1968).
[64] E Samuel, Historical Account of the British Army and Law Military, Clowes 283 (1816).
