Part 3 Defences, 11 Superior Orders

Abstract

Superior orders is probably the best known defence in ICL; in case law as well as in scholarly debates. As the UN War Crimes Commission observed, ‘the plea of superior orders has been raised by the Defence in war crime trials more frequently than any other’. The legal debate on superior orders has produced three main schools of thought: the respondeat superior doctrine; the absolute liability or full responsibility doctrine; and the conditional liability or limited responsibility doctrine that exists in different versions. These three views are central to the analysis in this chapter of superior orders. Much has been written on the defence of superior orders. The discussion is limited to the main points in the superior orders debate.