Obeying Restraints: Applying the Plea of Superior Orders to Military Defendants before the International Criminal Court

This article addresses the content and ramifications of the unique plea of superior orders, illustrating the complexities of absolving wartime behaviour on this basis as well as the legitimate rationale for doing so in certain cases. The article discusses the general legal obligation for soldiers to obey commands; outlines the historical development and legal content of the corresponding plea of superior orders, including its incorporation into the Rome Statute of the International Criminal Court (ICC); and assesses the potential future application by the ICC of this specialized “mistake of law” doctrine. The author argues that in light of its moral and practical ramifications it should be considered by the court as both a full defence and a factor in mitigation of sentence, in a manner conceptually distinct from duress. However, the author cautions that the ICC must be careful to encourage, rather than discourage, individual moral autonomy, to the extent possible. A full defence should remain open to soldiers only when they have acted under a reasonable albeit mistaken belief in the legality of their orders. Especially on the modern battlefield, soldiers must continue to act and be judged as “reasoning agents” and not as mere automatons.