The rejection of the defence of superior orders in the Nuremberg trials of Nazi war criminals after the Second World War seemed definitive. “A soldier is not an automaton”, declared the United States Military Tribunal in Re Ohlendorf (Einsatzgruppen Trial) 15 ILR 656 (1948), but “a reasoning agent [who] is not expected to respond, like a piece of machinery”. It may be thought that these trials of the worst of criminality were the last word on the superior orders defence in criminal law, but things are not so clear cut.
Under both Australian and international criminal law, the superior orders defence remains available. The Criminal Code (Cth), s 268.116(3), even allows the defence for war crimes, stating:
It is a defence to a war crime that:
(a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
(b) the person was under a legal obligation to obey the order; and
(c) the person did not know that the order was unlawful; and
(d) the order was not manifestly unlawful.
Various international charters either allow for orders from a superior or government to be taken into account in mitigation of punishment, or, as with Article 33 of the Rome Statute of the International Criminal Court (Rome Statute) (1998), provide for a limited defence of superior orders. The Criminal Codes of the Northern Territory, Queensland, Tasmania, and Western Australia all provide for the defence.
There are restrictions on who can use the defence and when. Only persons legally obliged to comply with superior orders can avail themselves of it (eg soldiers), and provided the orders are not “manifestly unlawful” (“black flag” obvious). Still, the possible implications of a less than fundamental prohibition on the defence are worth contemplating. What to make, for example, of the availability of the defence to military personnel who suppress a riot under Tasmania’s Criminal Code?
Another criminal defence that suggests questions about its larger significance is the defence of marital coercion. This defence evolved through recognition that a wife may be vulnerable to a wider range of threats by her husband to force her to commit criminal acts, than the threats of physical violence encompassed by the defence of duress. Marital coercion recognised that, as well as physical threats, wives may be subjected to threats of a psychological, emotional, or economic nature by their husbands – their particular susceptibility apparently being due to the motherhood role.
How well does this approach conform to modern expectations and attitudes? Its recognition of a broader range of possibly threatening behaviour may suggest appropriate responsiveness to actual discrepancies in economic, social, and political power between men and women. However, one may wonder whether the defence also contributes to maintaining the status quo. This goes to the bigger question of the role the law should play in relation to social issues.
The limited availability of the defence to only a particular class of married women ‒ other relationships such as de facto partnerships and customary marriages being excluded ‒ may also raise doubts about its contemporary appropriateness.
The criminal law defences of superior orders and marital coercion are explored in updated Chapters 1 – 9 of The Laws of Australia Subtitle 9.3 “Defences and Responsibilities”. The Subtitle also examines a range of other available defences including duress, necessity and emergency, provocation, and defence of persons and property.