Norsk deltakelse i internasjonale operasjoner: Soldatens ansvar for en rettsstridig ordre
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This study addresses the classic question of the tension between military discipline and individual responsibility; and whether and to what extent following superior orders may constitute a circumstance excluding criminal liability. Unlawful acts performed pursuant to superior orders can be regarded as a question of necessity – “I was forced to act” – or as a question of mistake of law – “I did not know it was wrong”. Unlike in international criminal law, in Norwegian law necessity can justify an otherwise criminal act but not all actions are justifiable: for example, sacrificing innocent lives to save another life will never be a lawful act of necessity. This may in the author’s view lead to the unreasonably strict enforcement of the law and a soldier could thus be found guilty of manslaughter for failing to be a hero in an impossible situation. Though mitigation of sentence is granted, the label of guilt remains. There is no criminal responsibility without subjective guilt, but to plead ignorance of the law – “mistake of law” – has in Norwegian general criminal law very rarely led to the exclusion of criminal liability. In the Norwegian military criminal code, however, the subordinate is relieved of criminal responsibility for acts performed in compliance with an order unless the subordinate knew or should have known that the order was unlawful. It is the author’s view that soldiers and officers who comply with superior orders are thus treated more leniently than people in general. Furthermore, this may imply the – much contested – possibility of being acquitted for certain war crimes when these are not manifestly unlawful. One example is when a soldier mistakenly considers certain civilian conduct to be direct participation in hostilities, which would temporarily make the civilian a lawful target. This mistake would result in a direct attack on protected persons – a war crime.