I do not read Art. 21 of the ICCSt. as permitting the ICC to ignore Art. 33 in favor of Art. 2(3) of the CAT. If the offence is pursued in the ICC, I believe the ICC must apply its own statute “first” per Art. 21(1)(a). Art. 21(1)(b) appears to be primarily designed for lacunae. All of the clever arguments of the Committee and Commentary notwithstanding, we do no justice to the rule of law by counseling a court to ignore its statute, particularly when that statute declares it must follow it “first”.

Further, as to Art. 33(2), I think a reasonable mistake of fact might render an order to commit genocide or crimes against humanity subject to the superior orders defence. In other words, if there is a reasonable lack of knowledge regarding the contextual element for those offences (meaning either the specific intent requirements of genocide or the widespread or systemic attacks of crimes against humanity), the superior orders defence might still be available. (Admittedly this will apply only in cases at the margins.) Such a mistake of fact would certainly seem to negate the specific intent element of genocide. Less certain is whether the contextual requirement of crimes against humanity requires knowledge of the context, meaning of the widespread or systemic attack against a civilian population, as such. It is certainly arguable, meaning that a mistake of fact would also negate a mental element of those offences. In both cases then, a reasonable mistake of fact might subject those offences to the superior orders defence as knowledge of the context appears to be implicitly (perhaps even necessarily) required by Art. 33(2).

Rob is right that the practice of the Committee Against Torture suggests that the defence of superior orders is never available under the Torture Convention. But the question is whether the Committee is right to rule out a mistake of law/superior orders type defence if that defence is available under customary international law. As I indicate in my post, I think the treaty may be read in line with customary international law (to the extent that Art. 33 of the ICC Statute represents custom) by restricting Art. 2(3) to cover reliance merely on superior orders. Rob’s way of making the two fit together takes an approach similar to that which the ICC Statute takes with genocide and crimes against humanity. Which is to say an order to commit acts amounting to such crimes is ALWAYS manifestly unlawful. Many have commented (I think Rob included) that this is problematic with respect to crimes against humanity. For example, is it always manifestly unlawful to take part in deportations when the very definition includes a proviso that the deportation or forcible transfer must be without grounds permitted in international law? Presumably there can be some dispute as to which grounds international law permits for deportation.

Although I agree that in the majority of cases it will be clear that causing serious pain or suffering is torture and thus illegal, I think it would be wrong to say that it is always clear that causing such pain is unlawful. For example, the definition of torture in Art. 1 of the Torture Convention excludes pain or which are inherent in or incidental to lawful sanctions. I don’t think that the meaning of that provision is so manifest or clearly obvious such as to rule out any reasonable mistakes as to what it means. Indeed it has been suggested that this provision is meaningless. But given that it is included in the definition in the Convention is that not a ground for some confusion. CIA officials will not be relying on that provision in any potential prosecution but to me this just shows one cannot absolutely say that an order to commit torture will ALWAYS be manifestly illegal.

The drafting history of Article 2(3) (at least as it is recounted in Nowak and McArthur’s excellent commentary) seems to show that the drafters were intending to exclude superior orders as a defence along the Nuremberg lines. It is, of course, true that Dapo’s comment differentiates this from a mistake of law type defence (which Article 33 is). However, in its practice the Committee Against Torture has criticised a number of States for having defences relating to manifest illegality, which implies it covers mistake of law type defences too. (Nowak and McArthur, p.105). In relation to Columbia, a law that permitted reliance on superior orders if the person was unaware of the illegality of their action, the Committee considered this was “inconsistent with the convention” (Ibid., p.104)
In relation to Poland the Committee “recommended that the State party amend the Penal Code to ensure that orders of superiors cannot be invoked in any circumstances, as a justification of torture” (ibid. p.105). This seems to support Nowak and McArthur’s conclusion that 2(3) “is primarily directed at criminal courts not to accept any defence by the accused based on a superior order” (p.121)

If this is the case, the way to read them consistently, to me, is that orders to commit torture are, simply, manifestly unlawful.

This is consistent with Israel’s position before the CAT that “where an order was considered manifestly illegal, as would be the case with an order to commit acts of torture, acting under such an order would clearly not constitute a defence for a person accused of committing such acts” (as recounted, again, in Nowak and McArthur, p.104)

Indeed, given that the Rome Statute permits reference to other applicable treaty law in Article 21, that is what I would argue the ICC ought to do in interpreting Article 33.

Outside of that context as well, it seems clear to me that a State party to the Torture Convention, at least, would not have much room to argue that superior orders could do any work here, other than going to mitigation.

That said, I am not convinced that the Justice Case provides much support for that proposition. Readers who are interested are invited to check out my long post on that issue at Balkinization:

http://balkin.blogspot.com/2008/05/john-yoo-and-justice-case.html

Comments on the post would be most welcome!