ICC har ikke avsagt noen dommer - verken mot Israel (som ikke anerkjenner domstolen) eller mot Hamas.
Men vi trenger ikke gå til ICC – men bruke tidligere dommer i Israel eller f.eks. USA som gir presedens i saker hvor det dreier seg om å følge en ordre som er illegal:
“In its judgement in the Ofer, Malinki and Others case in 1959, Israel’s Military Court of Appeal adopted these words and added that:
The provisions are aimed at encouraging the moral and human conscience of our soldiers. A reasonable soldier can distinguish a manifestly illegal order on the face of it, without requiring legal counsel and without perusing the law books. These provisions impose moral and legal responsibility on every soldier, irrespective of rank.
Ref: Israel, Military Court of Appeal, Ofer , Malinki and Others case, Judgement, 3 April 1959.
Eller fra dommen over Eichmann:
“..– when Article 8 of the [1945 IMT Charter (Nuremberg)] provided…that the fact that the accused acted pursuant to and order of a superior shall not free him from responsibility.
.. It was there observed that the true test was not whether a superior order existed but “whether moral choice was in fact possible”.
But even had the law permitted the accused to rely on the defence that in carrying out the order to commit the crime he was acting in circumstances of “constraint” or “necessary”, he would still not succeed unless the following two facts were provided
- that the danger to his life was imminent;
- that he carried out the criminal assignment out of a desire to save his own life and because he found no other possibility of doing so…
Neither of the said conditions has been met in this case.
Ref: Israel, Supreme Court, Eichmann case, Judgement, 29 May 1962.
Men også fra liknende saker i USA finnes det dommer som ikke unnskylder handlinger utført etter ordre.
“Where the order is apparently regular and lawful in its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness…”
Ref: US, Army Court of Military Appeals, Calley* case, Judgement, 21 December 1973 referring to Col. William Winthrop, Military Law and Precedents, pp 296-297, 2nd edition 1920 (reprint).
*My Lai- massakren