The Defence of Superior Orders in International Criminal Law: The Eichmann Trial and Kant's Philosophy

Abstract

Obedience to superior orders was frequently put forward as a defence in the “war crimes trials galore” conducted by national and international courts and tribunals following World War II. This paper provides an exposition of the history and development of the theory and application of the defence in international criminal law. Particularly, the “manifest illegality” standard is discussed in a rejection of the absolute form of the defence. The 1961-1962 Eichmann trial in Jerusalem is provided by way of example. Adolf Eichmann used Kantian philosophy to conceptualise his reliance on the superior orders defence. This paper contends that Eichmann distorted Kant’s philosophy on duties and the Categorical Imperative. The paper concludes with an analysis on how the Eichmann trial contributed to the development of the defence in international criminal law.