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Article 33 of the International Criminal Court Statute allows low-ranking perpetrators to - in exceptional cases - rely on the defence of superior orders. By doing so, Article 33 might be seen as an acknowledgement that within a specific context orders to commit international crimes might not always be manifest unlawful. Article 33(2), however, restricts the possibility to rely on this defence to perpetrators of war crimes and denies perpetrators of crimes against humanity and genocide a similar defence, since according to Article 33(2), such orders are considered always to be manifestly unlawful. This contribution questions whether such a distinction should be made. Many low-ranking perpetrators involved in such crimes by following superior orders seem to genuinely believe that they were doing the 'right thing'. This article seeks to explain how these perpetrators might have come to such a belief, and the challenge this might represent to the core principles which underpin the concept of individual criminal responsibility.

Why Serious International Crimes Might Not Seem ‘Manifestly Unlawful’ to Low-level Perpetrators