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

Date

2016-12

Advisors

Journal Title

Journal ISSN

ISSN

2313-3775

DOI

Volume Title

Publisher

Journal of International and Comparative Law

Type

Article

Peer reviewed

Yes

Abstract

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.

Description

Keywords

Superior orders, comparative approaches, international criminal justice, defences, mitigation

Citation

Dingwall, G. (2016) Circumstance, Choice and the Denial of a Superior Orders Defence in International and Comparative Criminal Justice. Journal of International and Comparative Law, 3 (2), pp. 375-409

Rights

Research Institute

Centre for Law, Justice and Society