5cjxburmr

In cases in which the illegality of the order is not apparent, the subordinate might lack thewrongful intent necessary to the commission of the crime. 322 Subordinates, absent specificknowledge to the contrary, may presume orders to be lawful. 323 The acts of a subordinate donein compliance with an unlawful order given by a superior are generally excused unless thesuperior’s order is one that a person of ordinary sense and understanding would, under thecircumstances, know to be unlawful (e.g., to torture or murder a detainee), or if the order inquestion is actually known to the accused to be unlawful. 324On the other hand, subordinates must refuse to comply with clearly illegal orders tocommit violations of the law of war. 325That an offense was committed pursuant to superior orders may be considered inmitigation of punishment. 326 The degree to which superior orders should mitigate punishmentwould depend on the specific circumstances of the case. 327rather than clarified, the problem. It is obvious that there is no clear and well-defined rule which will be applied tothe defense of superior orders when it is advanced, as it undoubtedly will be, in future trials for violations of thegrave breaches and other provisions of the 1949 Convention. However, it is believed that it may be safely statedthat, as after World War II, the mere fact that the act complained of was committed pursuant to superior orders willnot suffice as a defense.”).322 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (“We areof the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonablyhave been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists andthe interior [sic] will be protected. But the general rule is that members of the armed forces are bound to obey onlythe lawful orders of their commanding officers and they cannot escape criminal liability by obeying a commandwhich violates international law and outrages fundamental concepts of justice.”).323 Refer to § 18.3.2.1 (Clearly Illegal Orders to Commit Law of War Violations).324 United States v. Calley, 22 U.S.C.M.A. 534, 542 (C.M.A. 1973) (“The acts of a subordinate done in compliancewith an unlawful order given him by his superior are excused and impose no criminal liability upon him unless thesuperior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know tobe unlawful, or if the order in question is actually know to the accused to be unlawful.”).325 Refer to § 18.3.2 (Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations).326 See, e.g., 1956 FM 27-10 (Change No. 1 1976) 509a (“In all cases where the order is held not to constitute adefense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered inmitigation of punishment.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order ofa Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigationof punishment if the International Tribunal determines that justice so requires.”); ICTR STATUTE art. 6(4).327 For example, Trial of Lieutenant-General Shigeru Sawada and Three Others, V U.N. LAW REPORTS 1, 7 (U.S.Military Commission, Shanghai, Feb. 27-Apr. 15, 1946) (“The offences of each of the accused resulted largely fromobedience to the laws and instructions of their Government and their Military Superiors. They exercised noinitiative to any marked degree. The preponderance of evidence shows beyond reasonable doubt that other officers,including high governmental and military officials, were responsible for the enactment of the Ex Post Facto ‘EnemyAirmen’s Law’ and the issuance of special instructions as to how these American prisoners were to be treated, tried,sentenced and punished. The circumstances set forth above do not entirely absolve the accused from guilt.However, they do compel unusually strong mitigating consideration, applicable to each accused in variousdegrees.”).1121