Circumstance, Choice and the Denial of a Superior Orders Defence in International and Comparative Criminal Justice

Claims that an actor who followed orders issued by a superior should be granted a defence to a criminal offence are largely rejected in international and domestic criminal law. Various justifications have been offered: such a defence would often excuse participants in the gravest forms of criminal activity; a degree of choice remains and so some culpability is present; and deterrence would be compromised if the defence could be invoked too readily. This article will assess these claims with particular regard to the notions of 'circumstantial luck' and choice. It will be argued that the rejection of a superior order defence is justifiable, even though some of the orthodox rationales for rejection appear weak. Instead, the relevance (if any) of a superior order claim should be considered at the sentencing stage as part of an overall assessment of individual culpability.