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The Defense of Superior Orders in International Law: Some Implications for the Codification of International Criminal Law

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The defense of obedience to superior orders has been one of the most controversial issues in international criminal law. Although the Nuremberg Trials put forth the “Nuremberg Principle” on the superior orders defense, the principle has remained unclear on the so-called moral choice test. Basically, the situation has not been changed throughout the subsequent international rule-making process. International society has apparently rejected automatic immunity by the superior orders defense; however, a consensus has not been achieved on the question of conditional immunity, particularly on the grounds of coercion. In tackling these remaining problems, it would be advisable to examine the legal and theoretical characteristics of each component of the relevant discussion. It would also be desirable to consider some essential difficulties incidental to international rule-making. This article, in conclusion, draws attention to the possibility of certain self-constraint with regard to international law, leaving the issue of the coercion defense to the respective national legal system.

Affiliations: 1: Associate Professor, National Defense Academy, Japan


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