The Development of the Defence of Superior Orders

Abstract

The defence of superior orders has long been a subject of strong debate and controversy. Understanding the tumultuous history of the defence serves many purposes and has numerous benefits. It gives a much more comprehensive and nuanced appreciation of both the defence of superior orders generally and the defence of superior orders as set out in the Rome Statute. The history of the defence also highlights that at various stages the international community and individual nations have adopted different standards or approaches with respect to the defence. The legal standard adopted can be the product of its environment. Environmental factors such as politics, international relations, historical events and the dominance of particular academic or philosophical thought have influenced what legal standard is accepted. The law evolves and changes. However, a very important prerequisite to understanding whether the current standard is the most appropriate and just and whether and how the law should develop or evolve is to understand why the law adopts a particular standard and the rationale for other standards. The history of the defence of superior orders sets this foundational knowledge.