Schedule 1—Amendment of the Criminal Code Act 1995
Chapter 8—Offences against humanity and related offences
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court
Subdivision K—Miscellaneous
268.116 Defence of superior orders
(1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(2) Subject to subsection (3), the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(3) It is a defence to a war crime that:
(a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
(b) the person was under a legal obligation to obey the order; and
(c) the person did not know that the order was unlawful; and
(d) the order was not manifestly unlawful.
Note: A defendant bears an evidential burden in establishing the elements in subsection (3). See subsection 13.3(3).
Superior / subordinate relationship (military) - national proceedings
Superior / subordinate relationship (civilian) - national proceedings
Superior orders - national proceedings
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