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This principle has been reflected in the statutes of international criminal tribunals. 31718.22.4 Acting Pursuant to Orders Does Not Relieve a Person of Responsibility. The factthat a person acted pursuant to orders of his or her Government or of a superior does not relievethat person from responsibility under international law, provided it was possible in fact for thatperson to make a moral choice. 318 This principle has been reflected in the statutes ofinternational criminal tribunals. 319 It may also be understood as part of a broader principle thatmilitary personnel cannot justify committing unlawful acts by producing the order of theirsuperior. 320Although it is clear that merely the fact that the act at issue was committed pursuant tosuperior orders does not constitute a defense to criminal responsibility under international law,the precise extent to which superior orders may constitute a defense or excuse may varyaccording to the forum in which a violation is tried. 321317 Charter of the International Military Tribunal, art. 7, annexed to Agreement by the Government of the UnitedKingdom of Great Britain and Northern Ireland, the Government of the United States of America, the ProvisionalGovernment of the French Republic and the Government of the Union of Soviet Socialist Republics for theProsecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288(“The official position of defendants, whether as Heads of State or responsible officials in Government Departments,shall not be considered as freeing them from responsibility or mitigating punishment.”); ICTY STATUTE art. 7(2)(“The official position of any accused person, whether as Head of State or Government or as a responsibleGovernment official, shall not relieve such person of criminal responsibility nor mitigate punishment.”).318 See U.N. International Law Commission, Principles of International Law Recognized in the Charter of theNürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on itsSecond Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAWCOMMISSION 1950, 374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE IV The fact that aperson acted pursuant to order of his Government or of a superior does not relieve him from responsibility underinternational law, provided a moral choice was in fact possible to him.”).319 Charter of the International Military Tribunal, art. 8, annexed to Agreement by the Government of the UnitedKingdom of Great Britain and Northern Ireland, the Government of the United States of America, the ProvisionalGovernment of the French Republic and the Government of the Union of Soviet Socialist Republics for theProsecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288(“The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him fromresponsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice sorequires.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order of a Government orof a superior shall not relieve him of criminal responsibility, … .”); ICTR STATUTE art. 6(4) (“The fact that anaccused person acted pursuant to an order of a Government or of a superior shall not relieve him [or her] of criminalresponsibility … .”).320 See Mitchell v. Harmony, 54 U.S. 115, 137 (1851) (“Consequently the order given was an order to do an illegalact; to commit a trespass upon the property of another; and can afford no justification to the person by whom it wasexecuted. . . . And upon principle, independent of the weight of judicial decision, it can never be maintained that amilitary officer can justify himself for doing an unlawful act, by producing the order of his superior. The order maypalliate, but it cannot justify.”).321 LEVIE, POWS 389 (“The Commission of Experts convened by the ICRC in December 1948 in connection withthe grave-breaches provisions which had been approved and the Resolution which had been adopted by the 1948Stockholm Conference, drafted a proposed article relating solely to the defense of superior orders. The 1949Diplomatic Conference did not include such a provision in the Convention as finally approved. Accordingly, thisproblem will once again have to be resolved on a national basis. Efforts to solve it on an international basis inrelated areas have been undertaken by various organs of the United Nations, but those efforts have complicated,1120