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Cassese's International Criminal Law

Cassese's International Criminal Law (3rd edn)

Antonio Cassese and Paola Gaeta
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date: 20 August 2022

13. Obedience to superior orders and official capacitylocked

13. Obedience to superior orders and official capacitylocked

  • Antonio Cassese,
  • Paola Gaeta,
  • Laurel Baig,
  • Mary Fan,
  • Christopher Gosnell
  •  and Alex Whiting

Abstract

Individuals who committed international crimes were once able to rely on the expansive doctrines of superior orders, or acting in an official capacity, to excuse their liability. These doctrines, at least in their widest versions, were firmly repudiated in the London Charter. This chapter discusses the two circumstances where superior orders may still have some vitality as an excuse: mistake of law or duress. The overall position appears to be, however, that there is now little scope for mistake of law even in respect to superior orders, and that while duress certainly is a well-founded defence in principle, it is very rarely accepted in practice. Mistake of fact involves a different issue: non-awareness of certain facts that show the absence of mens rea. Superior orders may indeed be the source of such misleading information, but then the proper claim is properly the absence of mens rea that negates criminal liability, not excuse.

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