Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES  

Division 268 - Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court  

Subdivision K - Miscellaneous  

SECTION 268.116   Defence of superior orders  

(1)  
The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.

(2)  
Subject to subsection (3) , the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.

(3)  
It is a defence to a war crime that:


(a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and


(b) the person was under a legal obligation to obey the order; and


(c) the person did not know that the order was unlawful; and


(d) the order was not manifestly unlawful.

Note:

A defendant bears an evidential burden in establishing the elements in subsection (3) . See subsection 13.3(3) .


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