The Limits of the Superior Orders Defence in the Context of Acts Committed in Gaza from the Perspective of Domestic and International Criminal Law

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Dursun S.

Justice for Palestine: Perspectives from International Criminal and Human Rights Law, Valencia, İspanya, 10 - 11 Aralık 2025, ss.12, (Özet Bildiri)

  • Yayın Türü: Bildiri / Özet Bildiri
  • Basıldığı Şehir: Valencia
  • Basıldığı Ülke: İspanya
  • Sayfa Sayıları: ss.12
  • Açık Arşiv Koleksiyonu: AVESİS Açık Erişim Koleksiyonu
  • İstanbul Üniversitesi Adresli: Evet

Özet

This presentation examines the limits of the superior orders defence under domestic and international criminal law in relation to acts committed in Gaza. Although the defence of obeying orders appears in various legal systems, its doctrinal structure and admissibility thresholds differ significantly between national criminal law formulations and international criminal jurisprudence. In particular, the Nuremberg legacy, subsequently the ICTY/ICTR case-law, and finally the Rome Statute (Article 33) have consistently rejected superior orders as a ground for excluding criminal responsibility, especially where the unlawfulness of the order is manifest. This historical trajectory can also be conceptualized in doctrinal terms as a shift from absolute obedience to absolute responsibility, and ultimately to the contemporary conditional responsibility model.

In this context, the allegations concerning international crimes such as genocide, crimes against humanity and war crimes arising from the recent military operations in Gaza provide a concrete and contemporary framework to test the application of this doctrine. This presentation argues that, both in international criminal law and in many domestic formulations, the decisive criterion is the manifest unlawfulness of the order and the real possibility of making a moral or legal choice by the subordinate.