Why English Law Should Not Incorporate the Defence of Superior Orders

Criminal Law Review, Vol. 109, 2010

Oxford Legal Studies Research Paper No. 04/2010

Posted: 1 Feb 2010

See all articles by Shlomit Wallerstein

Shlomit Wallerstein

University of Oxford - Faculty of Law

Date Written: January 29, 2010

Abstract

English law does not recognise the defence of obedience to superior orders. Recent years have seen voices calling for reconsideration of the law and for the adoption of a defence in some form. One of the reasons for this stance is the fact that the defence is recognised in the Rome Statute constituting the International Criminal Court (ICC). This article examines whether the law should be changed and the defence of superior orders introduced into English law. As the title suggests, the article concludes that such a change is not desirable and that the current position of the law is correct. Over the years very little has been written on the defence of superior orders in the domestic context but, not surprisingly, the subject has been widely discussed in international law in the context of the laws of war. Thus, the article starts (Section I) with the debate in international law, presenting the two main approaches regarding the recognition of a defence of obedience to superior orders: the absolute liability approach adopted by the Nuremberg Tribunal and other ad hoc tribunals over the years, and the conditional liability approach adopted by the ICC in the Rome Statute. Section II goes on to examine the possible rationales that underlie each position. It argues that the defence can be justified either as a recognition of the dilemma faced by the soldier who is required to obey the order as per national law, and to disobey it as per international law, or as a claim of mistake of law or of fact. The question then is whether these rationales can be transformed into domestic English law and support a claim for an adoption of a qualified defence of superior orders. Section III argues that two differences between the stance of English law and international law need to be accounted for: the first is that though the soldier’s dilemma is still applicable, it exists in a somewhat different structure which results in a limitation of the dilemma to borderline cases only, and the second is the fact that English law does not recognise the defence of mistake of law. As a consequence, it is submitted that the defence of superior orders should not be recognised in English law. Nevertheless, a claim of obedience to superior orders often obscures the real defence which should be advanced, and while superior orders should not be recognised as an independent defence the facts may constitute a basis for a defence of duress or of a mistaken case of private defence, both of which are recognised in English law.

Keywords: defences, superior orders

Suggested Citation

Wallerstein, Shlomit, Why English Law Should Not Incorporate the Defence of Superior Orders (January 29, 2010). Criminal Law Review, Vol. 109, 2010, Oxford Legal Studies Research Paper No. 04/2010, Available at SSRN: https://ssrn.com/abstract=1544244

Shlomit Wallerstein (Contact Author)

University of Oxford - Faculty of Law ( email )

New Inn Hall St.
Oxford OX1 2DL, Oxfordshire
Great Britain
01865-278955 (Phone)

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