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International Criminal Tribunal for Yugoslavia, The essay is related to excusing of the liabilities before the court due to acting on the orders of the superiors. The question that is raised is the fact that whether an individual can be excused for committing a crime just because of the fact that he was acting on the orders of the superiors.
Article 47 indicates that the sub-ordinates are not responsible for carrying out any actions that are in accordance with the orders of their superiors. Moreover, the answer, in this case, has been presented with the help of the case laws that are relevant to the case that has been presented above.
It has been found that an individual who has been involved in committing crime can be exempted in certain circumstances when obeying the orders of the superiors. One such example of this case is the soldier obeying the orders of his superior military official. However, it is stated that it is a dilemma that is being faced by the military personnel regarding what they should do when they have to fulfil the orders of the superiors when they clearly know that the order is unlawful and illegal.
The answer to this question has been presented in the case law, where the case has been presented in the book “International Criminal Law Cases” written by Antonio Cassese and Alex Whiting. The case related to the given scenario and involved the case of Germany, Llandovery castle case in the year 1921. The superior authority was Patzig, who although was aware of the protected nature of the ship still ordered it to be attacked and drowned. When the case was brought to the court of law, the court rejected the defendant’s plea and sentenced them for four year and also discharged them from their services.
This decision of the court was taken despite the fact that Article 47 of the Military Penal Code stated that if the execution of the order while carrying out ordinary course of duties involved a punishable violation, only the officer issuing the illegal or unlawful orders will be held responsible. This case reflects that despite orders from superiors, the defendants were held liable. This dismisses the excuse of not being liable due to the control exercised by superiors for ordering the execution of punishable work.
Therefore, according to this Act, the individuals carrying out the orders will not be held responsible for doing so. However, in accordance to the sub-article 2 of Military Penal Code in Germany, the defendant in this case can only be considered as innocent if they were not aware of the illegal nature of the act. Here in this case, it is evident that firing at the helpless individuals at the lifeboat cannot be justified in any circumstances. The decision of this case is relevant to the discussion due to the fact that it included commitment of the crime on the straight orders that were delivered from the superior authority to the sub-ordinates.
Moreover, the decision was related to the major question that was raised which is related to whether the criminal liability can be escaped in case of orders from the superiors. The decision in the light of the Act and its exception seemed to be a fair decision as it is related to International Humanitarian Law and the crimes that were committed were against the humanity. Therefore, it is believed that killing of innocent individuals should not be justified in any case.
The other case that has been presented regarding this scenario is related to ICTY, namely Prosecutor v Erdemovic 1997 and related to Appeals Chamber, Judgment. The case was related to Drazen Erdemovic, who was a member of the Bosnian Serb Army that had executed 1,200 unarmed Muslims in 1995. According to the book “International Criminal Law Cases” written by Antonio Cassesse and Alex Whiting, the defendant used the word duress to mean that his own life would have been put under threat if he had not executed the orders.
The arguments leading to the final decision by the court was related to the option of presenting duress as the excuse by defendant, which was also questionable and debatable as it did not relate to all the cases and scenarios. One argument that has been presented in this case is if duress should be presented as an excuse of killing innocent individuals, where it depends upon what the other individual would have done if he would have been ordered to execute the same orders as were executed by the defendant.
However, it has been argued that the presentation of duress as a defence of killing the innocent individuals cannot be presented as an excuse to kill the innocent individuals considering the international humanitarian law. In the light of the International Humanitarian Act and considering the circumstances that were presented in the case, it can be stated that duress cannot be presented as a fully legal and valid evidence for the crimes committed against the humanity.
Consequently, taking all the circumstances into consideration, the court provided the verdict that any defence presented in the name of duress which is against the international humanitarian law and against the innocent individuals is not acceptable. Therefore, the court gave the decision against the defendant although they did offer him an option of appeal.
The case is again related to the essay in the question as it discusses about a criminal act committed on the orders of the superior authority. The court however did take a long hard look at the element of duress which was a key point being raised by the defendant during the proceedings of the case. Yet it is believed that the court offered a reasonable decision as there was clear violation of humanitarian law. Hence, once again liability could not be excused even when there were orders received from a superior authority and that even under duress and pressure.
The other case relevant to the present scenario is associated with US Millatary Tribunal Sitting in Nuremburg, namely US v. Flick et al 1947. The decision in this case was linked to two aspects, the first one is related to Reich Labor Program; whereas, the second one was associated with determining whether the four defendants were guilty of employing conscripted foreign workers, inmates of the concentration camps and the prisoners of war that were allocated to them in the circumstances of compulsion through the Reich Labor Program through which the employment came about.
Paragraph 2 of Article II and paragraph 4 of Article II have been related to the decision given by the court. Paragraph 2 stated that the person acting in a certain capacity is deemed to have committed the crime if he was the principal or ordered the execution of such crime. Moreover, it has been highlighted that the individual would also be considered guilty if he had consented to the crime or was involved in the planning undertaken to commit such crime.
Paragraph 4 of Article II however highlighted that the defendant acting in pursuance of the order of his Government or any other regulatory authority does not relieve him from the responsibility of the crime; however, it may be considered as mitigation. The other element concerned with the discussion in the case is related to the issue of necessity, which states that a person may commit act to avoid an evil of any serious nature unless there was no way of escaping other than committing that evil.
However, the court rejected that plea on the ground that this is applied mostly in the case of military cases and the four defendants in this case were not military personnel. Therefore, once again the court did not excuse the defendants, who till then stood liable despite them having followed the orders of their superiors.
However, the other such scenario was related to discussion about the coercion and duress. The evidence from the aforementioned case did highlight the presence of the element of coercion and duress in committing the act that was undertaken by the four defendants as they were acting in accordance with the Reich agreement, which is considered as one that is dangerous and threatening for the defendants.
Therefore, considering these arguments, the court gave the verdict that the defendants were not held accountable for their actions as they acted in self-defence and it was necessary for them to perform that act to save themselves. However, the other defendants such as Flick and Weiss were considered as guilty on the ground that they ordered the act to be committed.
Therefore, it can be concluded that acting criminally in accordance with the orders of the superiors can only be justified if the executors are not aware of the illegal nature of the act. The court recognized Flick and Weiss as the chief planners of the execution of the criminal activities and, therefore, punishments were awarded to them.
However, the four defendants were relieved on the ground that they were under severe pressure to perform the criminal act and had no other option available to them. Therefore the case and the verdict given in this respect are related to the issue of acting on the advice and orders of the superior authority and pleading guilty on the basis of it. Consequently it can be stated that the case therefore is associated with the major question of the essay related to getting excused on the basis of acting on the superior authority. The decision was also reasonable considering that the four defendants were under pressure to perform the act.
In conclusion, it can be stated that where there is sufficient evidence to believe that the executor knew about the illegal nature of the act that he committed, the excuse of acting on the orders of the superior authority will not be valid. Also, the different case laws used explain that in most of the situations courts do not allow the acceptance of superior orders to be used as an excuse against liability for punishable work done, where it is expected that subordinate will take all the reasonable steps to avoid such punishable work.
This is also the case where there is duress and, that, only in highly unavoidable circumstance does the court allow subordinates to be free of liability such as in the case of US v. Flick et al 1947, depicting the very rare circumstance in which the orders followed by superiors become an excuse for avoiding liability.
Answer 2
Genocide is considered as a crime which includes the involvement of the double mental component. One of the elements in this case is the general intention of committing a genocide; whereas, the other intention is related to the definite and decisive objective of destroying a group.
The term “intent to destroy” is a special intention which stresses upon the requirement of stressing upon the purpose-based propensity. As stated in the article “Critical evaluation of the ICTY and ICTR definitions for ‘intent’ and ‘protected groups’ within the crime of genocide, with relevance to the Darfur conflict” written by Leader and Sankey, the protected group is a kind of group that is provided by law or the legal and the regulatory authorities of the country. Moreover, the essay has highlighted about the aspect of written plan as the main evidence of proving the element of genocidal intent. However, the major issue that has been raised is concerned with the situation when there is an absence of any written plan of genocide.
The importance of a written plan in proving the element of genocide can be presented through the article “The Genocide Convention: A Commentary” of Nehemiah Robinson in which he stated that any act of destruction would not be termed as a genocide until and unless the intention is present to destroy that group completely that existed before the genocide occurred or could be proven irrespective of the results that were achieved. Moreover, it has also been highlighted that destruction caused to any group without any intention cannot be termed as genocide. Furthermore, it has been argued in the Genocide convention that the perpetrator must have specific intent of undertaking the activity of genocide.
However, it has been argued, that there is always an ambiguity with respect to the clear indication and specification behind the destruction of a group. Furthermore, it was argued in the convention that the presence of motive is often a minor issue and the act of destruction is the major thing that needs to be taken into consideration. Nonetheless…
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