'Superior orders - national proceedings' in document 'Netherlands: International Crimes Act'

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RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

ยง 4. General provisions of criminal law and criminal procedure
Section 11
1. The fact that a crime as defined in this Act was committed pursuant to a regulation issued by the legal power of a State or pursuant to an order of a superior does not make that act lawful.
2. A subordinate who commits a crime referred to in this Act in pursuance of an order by a superior shall not be criminally responsible if the order was believed by the subordinate in good faith to have been given lawfully and the execution of the order came within the scope of his competence as a subordinate.
3. For the purposes of subsection 2, an order to commit genocide or a crime against humanity is deemed to be manifestly unlawful.

ANALYSIS

This provision follows the ICC Statute.

 

The International Crimes Act 2003, rather than referring to the legal obligation to obey orders, stresses that the execution of the order must be in the field of competence of the subordinate. This may allow the defence to be individually tailored to the individual competence of the subordinate.