By Somapala Gunadheera –

Somapala Gunadheera

As a retired public servant, I am concerned with actions being taken currently against some of my former colleagues in the Public Service. I make no bones if they are being dealt with for acts of commission or omission taken on their own. But some indictments appear to be on actions taken under superior orders. That context places their cases under the Nuremberg Principle: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

The legal defence to this charge is that the defendant was “only following orders” and is therefore not responsible for his or her crimes. This defence was put forward in the matter of Lieutenant Karl Neumann, a captain responsible for the sinking of a hospital ship.  Even though Neumann admitted to having sunk the ship, he stated that he had done so on orders given to him by the Admiralty and for that reason, he could not be held liable for his actions. Germany’s Supreme Court acquitted him, accepting the defence of superior orders as a grounds to escape criminal liability. Declaring, “… that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors.”

More recently, Article 33, titled “Superior orders and prescription of law” of the Rome Statute agreed upon in 1998, as the foundational document of the International Criminal Court states:

“ The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.

Both the Nuremburg Principle and the Rome Statute impliedly accept that a person acting under superior orders was covered by such orders, provided that

• A moral choice was in fact possible to him.
• The person did not know that the order was unlawful
• The order was not manifestly unlawful

The question is whether a ‘moral choice’ was possible for a person acting under the circumstances in which the above public servants acted. What remedy did they have even if the order was ‘unlawful’ or ‘manifestly unlawful’ if they were acting under orders of the President? Article 35. (1) Of the Constitution states, “While any person holds office as President, no proceedings shall he instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity”.

This immunity shuts out the officers concerned from all tribunals to which they could normally appeal for redress. That leaves a Hobson’s choice in their hands unless they were prepared to sacrifice their jobs in midstream. As a public servant who had to lose his employment thrice in his carrier, I can personally vouch for the shocking privations, humiliations and deprivations that such a premature termination of a man’s source of livelihood could bring upon him and his family.

Can any civilized legal system, obliged to recognize the fundamental right to employment and job security, impugn a decision to comply with erratic superior orders, regardless of a ‘moral choice’ to quit and the question whether the act was ‘unlawful’ or ‘manifestly unlawful’, in view of the background in which the said public servants have acted? Application of positive law to such real life situations calls for a deep appreciation of the compulsions of normal human behaviour.

“Even where the orders were manifestly unlawful, the defence of obedience to superior orders and the peace officer defence will be available in those circumstances where the accused had no moral choice as to whether to follow the orders. There can be no moral choice where there was such an air of compulsion and threat to the accused that he or she had no alternative but to obey the order” (R v. Finta [1994] 1 SCR [701], Supreme Court of Canada)