Concerning The Refusal To Implement The Superior Order By Soldier And The Exemptions

At present, the provisions of international law and the domestic law of the individual criminal responsibility is not perfect. From the superior responsibility, responsibility to the subordinate commander to the inferior responsibility-to execute the principle of non-exemption from criminal liability, established the accountability mechanisms of individual criminal responsibility. From the preliminary execution of the principle of exemption from criminal liability to the current execution of the principle of non-exemption from criminal liability, the principle had experienced a long and complex process on the international law. The basic meaning of the principle of exemption from criminal liability is that enforcement of superior order cannot be regarded as a cause of exempting from criminal punishment. Rome Statute stipulates an exception, that is, when the parties are unaware that the command is illegal or the illegality of the command is not that obvious, the junior officers or soldiers exempt from assuming responsibility. That is to say, when the doer who knows the command is illegal, or illegality of the command is evident in the case commands the order, the doer is to undertake the responsibility. In that way, the underlying rules:if the perpetrator is aware of command from superior officer was illegal before the command is executed, there is no doubt that he has the right to make a choice。Endowing the soldiers’refusal to implement the right is to give junior officers or soldiers the right to refuse implementing the right in the face of the illegal command. The construction of refusal to implement the right by soldier is of great theoretical and practical significance. As for the soldier, it not only makes up for the duty injustice of the soldiers who only bear the rights and possess no right, but also boosts the initiative of commanding the order. Meanwhile, it respects the independent personality of soldiers and ensures that the orders can be preferably implemented. As for the army, the rational value judgment of the soldiers is more conducive to enhancing the vitality of the military forces, to ensure the authority and maintain order. In terms of society, in case that a commander whose illegality is quite evident is rejected to enforcement, it might be revoked or modified, so as to avoid the innocent victims.The thesis illustrates the establishment and concrete implement of the principle of non-exemption from criminal liability on the international law by primarily explaining three junior officers or soldiers cases related to obey or not obey the order, thereby leading to cause of proposing the concept of soldiers’refusal to implement. And then dissects and puts forward the necessity and significance of soldiers’refusal to implement from theory to reality analysis. Then the thesis analyzes the feasibility of carrying out the soldiers’ refusal to implement from the practical point of view.This chapter mainly tells about the application of the refusal to carry out the superior order. That is the conditions that limits soldiers’exercise power of refusal to enforcement and the scopes, the dispose of refusal to enforcement as well from the point of view of related legislation in which in some areas or countries soldiers do not obey the orders, and then regulate junior officers or soldiers from abusing the power. Of course, certain problems are to occur in the application of the refusal to implement, which need to be taken into account and investigated. The chapter four is to discuss these issues, and propose solutions. Finally, the thesis probes into the current situation of legislations of executing superior military order and eliminating guilty in and puts forward some optimized suggestions.