CRIMINAL LAW ā Defence of Superior Orders ā Lawful Orders ā Soldier Only Bound to Obey Lawful Instructions
Principle Statement
A soldier is responsible to both military and civil law, and it is monstrous to suppose that a soldier could be protected when the order he obeys is grossly and manifestly illegal. A soldier is only bound to obey lawful orders and is responsible if he obeys an order not strictly lawful.
Ratio Decidendi (Source)
Per Musdapher, JSC, in NAF v. Kamaldeen (2007) NLC-123-75-2001(SC) at p. 16; Paras CāD.
"A soldier is responsible to Military and Civil Law and it is monstrous to suppose that a soldier could be protected when the order is grossly and manifestly illegal. Of course, there is the other proposition that a soldier is only bound to obey lawful orders and is responsible if he obeys an order not strictly lawful."
Explanation / Scope
The defence of superior orders does not provide blanket immunity for military personnel. A soldier must exercise judgment and cannot hide behind orders that are plainly illegal or manifestly contrary to law. Where an order is grossly and manifestly illegal, obedience to it does not absolve the soldier of criminal or civil liability. The principle balances military discipline with individual accountability, ensuring that the armed forces operate within the bounds of the law.
