PROCEDURE AND DEFENCES
Defence of superior orders
14. (1) In proceedings for an offence under any of sections 4 to 7, it is not a
defence that the accused was ordered by a government or a superior -- whether
military or civilian -- to perform the act or omission that forms the subject-matter of the
offence, unless
(a) the accused was under a legal obligation to obey orders of the government or
superior;
(b) the accused did not know that the order was unlawful; and
(c) the order was not manifestly unlawful.
Interpretation -- manifestly unlawful
(2) For the purpose of paragraph (1)(c), orders to commit genocide or crimes
against humanity are manifestly unlawful.

PROCEDURE AND DEFENCES


14. Defence of superior orders

(1) In proceedings for an offence under any of sections 4 to 7, it is not a
defence that the accused was ordered by a government or a superior -- whether
military or civilian -- to perform the act or omission that forms the subject-matter of the
offence, unless

(a) the accused was under a legal obligation to obey orders of the government or
superior;
(b) the accused did not know that the order was unlawful; and
(c) the order was not manifestly unlawful.
Interpretation -- manifestly unlawful

(2) For the purpose of paragraph (1)(c), orders to commit genocide or crimes
against humanity are manifestly unlawful.

Crimes Against Humanity and War Crimes Act 2000

14. (1) In proceedings for an offence under any of sections 4 to, 7, it is not a defence that the accused was ordered by a government or a superior — whether military or civilian — to perform the act or omission that forms the subject-matter of the offence, unless

(a) the accused was under a legal obligation to obey orders of the government or superior;
(b) the accused did not know that the order was unlawful; and
(c) the order was not manifestly unlawful.

(2) For the purpose of paragraph (1)(c), orders to commit genocide or crimes against humanity are manifestly unlawful.

Article 33
Superior orders and prescription of law
1. 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:
(c) The order was not manifestly unlawful.

This provision follows the ICC Statute.

The language of the CAHWCA 2000 mirrors the restriction on the defence of superior orders found in the Rome Statute.