THE DEFENSE OF SUBORDINATES COMMITTED TORTURE DUE TO SUPERIOR ORDERS

Abstract

This article examines the issue of ‘The Defense of Subordinates Committed Torture due to Superior Orders’. The act of torture frequently occurs within the criminal justice process. This phenomenon is partly attributed to the belief that torturing the accused or defendant in a criminal case is permissible, often framed as a good torture. Although government officials are now aware that torture cannot be justified under any circumstances, incidents of torture continue to persist. This is particularly evident among subordinates, especially police officers, who often feel compelled to follow orders from their superiors. This creates a conflict between criminal responsibility and disciplinary responsibility for police officers, resulting in a dilemma in which subordinates may fear disciplinary repercussions more than criminal consequences. The Criminal Code allows subordinates to assert the defense of superior orders to evade punishment, even when those orders are illegal. This provision creates an loophole in which acts of torture can occur, as subordinates may claim ignorance of the manifestly illegal orders to avoid criminal liability as well, even they may not claim that as a defense.

In light of the aforementioned issue, this article will examine the background of the defense of superior orders, alongside a comparative legal analysis. It will compare the provisions related to such defenses to assess how they address cases of manifestly unlawful orders, as well as investigate the comparative structure of criminal liability. The aim is to analyze the shortcomings of the relevant provisions within Thai criminal law and to propose solutions to these problems. This analysis will be a critical component in the effort to eliminate torture from the Thai criminal justice system.

The study revealed that Thai criminal law needs revisions in two key areas. First, the Criminal Code, Section 70, should be amended to address exclusion in cases of manifestly illegal orders and the provision of orders to commit torture as manifestly unlawful orders. Second, the aspects of disciplinary liability that remain unclear and problematic in practice.