L’applicazione (indiretta e diretta) del diritto internazionale dei diritti umani ai fini della determinazione della (il)legittimità di un ordine

Abstract

The chapter examines the role of international human rights law in determining the ‘legitimacy’ of an order and, consequently, the need to implement it and the possibility of invoking the defence of fulfilling a duty in case of commission of crimes. It notes that, to this end, the contribution of international law is primarily indirect, since it often constitutes the basis for the choice to adopt criminal offences or regulatory provisions, which must be interpreted in accordance with the respective international obligations, the violation of which determines the illegality of the order. However, there are also possible cases of direct application of international norms, with the aim of supplementing the rule imposing a criminal command or the rule enshrining the defence of fulfilment of a duty.