{"id":158546,"date":"2016-03-03T15:01:55","date_gmt":"2016-03-03T09:31:55","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=158546"},"modified":"2016-03-08T01:44:19","modified_gmt":"2016-03-07T20:14:19","slug":"culpability-of-public-servants-acting-under-orders","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/culpability-of-public-servants-acting-under-orders\/","title":{"rendered":"Culpability Of Public Servants Acting Under Orders"},"content":{"rendered":"

By Somapala Gunadheera<\/span><\/a> \u2013<\/strong><\/p>\n

\"Somapala<\/a>

Somapala Gunadheera<\/p><\/div>\n

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.”<\/p>\n

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. \u00a0Even though Neumann admitted to having sunk the ship, he stated that he had done so on orders given to him by the\u00a0Admiralty 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.\u201d\"Lalith<\/a><\/p>\n

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:<\/p>\n

\u201c 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:<\/p>\n

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

Both the Nuremburg Principle and the Rome Statute impliedly accept that a person acting under superior orders was covered by such orders, provided that<\/p>\n