England and the Superior Orders Defence — Choosing the Middle Path

Abstract

The superior orders defence is a criminal law defence which allows soldiers to avoid conviction for illegal acts committed under orders. Recently the debate regarding this defence in England has intensified. Most jurists are divided between two positions: one asserts that this defence should be rejected and that English law does in fact reject it; the other argues that this defence is already the law, and further that it should continue to be so. The article argues that both sides are incorrect. It shows that current law is unclear and unjust and argues that this is due to a premise, held by both camps, regarding the need to regulate the issue based on a one-rule-fits-all policy. The article thus opines that, instead, a law should be adopted that differentiates between situation-specific categories; mainly between high-ranking and low-ranking subordinates, as well as between emergency and non-emergency situations.

Keywords: Superior Orders Defence, English law