Culpability Of Public Servants Acting Under Orders

By Somapala Gunadheera –March 3, 2016 

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:

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