Clear and Obvious? A Critical Examination of the Superior Order Defense in Israeli Case Law

Abstract

The question of what qualifies as a manifestly unlawful element is not purely academic. It is a practical, day-to-day dilemma for every subordinate in an executive body, who must decide forthwith whether or not to obey an illegal order. In the Israeli legal system there are, to date, four distinct approaches for identifying manifestly illegal orders. As such, the rationale for the superior order defense - the construction of a legal method to balance the principle of the rule of law and excuse and justification factors - is rendered meaningless. This Article examines the different approaches of the superior order defense in Israeli case law. Their examination shows that each one of them is unsuitable at one time for a specific set of circumstances when an appropriate balance between the rule of law and other public interests is not achieved. On the basis of the advantages of each of the four approaches, and in accordance with the central trends in Israeli case law concerning this legal issue, a new approach is suggested - the integrated approach.

Keywords: criminal law; superior order; manifestly unlawful