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Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.33 Superior orders and prescription of law/Ordre hiérarchique et ordre de la loi

William A. Schabas

From: The International Criminal Court: A Commentary on the Rome Statute (2nd Edition)

William A Schabas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 26 January 2021

Subject(s):
Elements of crimes — International criminal law, conduct of proceedings — Evidence

This chapter comments on Article 33 of the Rome Statute of the International Criminal Court. Prior to the adoption of article 33 of the Rome Statute, those who established international criminal tribunals contented themselves with a blanket prohibition on the defence of superior orders. However, article 33 declared that superior orders is a defence when three conditions are met: the accused must be under a legal obligation to obey orders of a government or superior; the accused must not know that the order was unlawful; and the order must not be manifestly unlawful. To date, the defence of superior orders appears to have been invoked in proceedings at the International Criminal Court only once, in a case involving charges under article 70 relating to the administration of justice and not to one of the core crimes listed in article 5 of the Statute.

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