It may be thought that the Nuremberg trials of Nazi war criminals were of the worst of criminality and the last word on the superior orders defence in criminal law, but things are not so clear cut.
The rejection of the defence of superior orders in the Nuremberg trials of Nazi war criminals after the Second World War seemed definitive. “A soldier is not an automaton”, declared the United States Military Tribunal in Re Ohlendorf (Einsatzgruppen Trial) 15 ILR 656 (1948), but “a reasoning agent [who] is not expected to respond, like a piece of machinery”.
Under both Australian criminal law and international criminal law, the superior orders defence remains available. The Criminal Code (Cth), s 268.116(3), even allows the defence for war crimes, stating:
It is a defence to a war crime that:
- the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
- the person was under a legal obligation to obey the order; and
- the person did not know that the order was unlawful; and
- the order was not manifestly unlawful.
Various international charters either allow for orders from a superior or government to be taken into account in mitigation of punishment, or, as with Article 33 of the Rome Statute of the International Criminal Court (Rome Statute) (1998), provide for a limited defence of superior orders. The Criminal Codes of the Northern Territory, Queensland, Tasmania, and Western Australia all provide for the defence.
There are restrictions on who can use the defence and when. Only persons legally obliged to comply with superior orders can avail themselves of it (eg soldiers), and provided the orders are not “manifestly unlawful” (“black flag” obvious). Still, the possible implications of a less than fundamental prohibition on the defence are worth contemplating. What to make, for example, of the availability of the defence to military personnel who suppress a riot under Tasmania’s Criminal Code?