Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
Argentina’s Law of War Manual (1989) provides: “The persons accused of having committed or ordered the commission of [grave] violations, including those resulting from an omission rather than an action, must be searched for.”
Argentina’s Decree on Trial before the Supreme Council of the Armed Forces (1983), issued in connection with the situation in Argentina under the military juntas, states:
The existence of plans for orders renders the members of the military junta in office at the time, as well as the officers of the armed forces at the decision-making level, responsible in their capacity as indirect perpetrators for the criminal acts committed in compliance with the plans drawn up and overseen by the superiors (Article 514 of the Code of Military Justice) … [The] responsibility of these perpetrators does not exclude the responsibility that devolves upon the authors of the operative plan.
Accordingly, the decree states that the members of the first three military juntas be examined by pre-trial proceedings before the Supreme Court of the Armed Forces.
In its judgment in the Military Junta case
in 1985, Argentina’s Court of Appeal found that the responsibility of the accused stemmed from the orders they gave, in their capacity as commanders-in-chief of the various forces, both to seize the victims and to keep the clandestine system of detention in operation, rather than from the fact that they failed to put a halt to the illegal restrictions of freedom organized by other parties. It found that subordinates of the accused arrested a large number of people, detained them clandestinely in military barracks, held them in captivity under inhumane conditions, turned them over to the Executive Branch or physically eliminated them. These procedures were undertaken in accordance with plans approved and ordered by the military commanders. Since it was proven that the acts were committed by members of the armed and security forces, which were organized in a hierarchical and disciplinary fashion, the Court ruled out the possibility that such acts could have occurred without the express orders of the supervisors. Since the members of these forces never denounced acts they must have known about, such acts could only be explained by the fact that the members knew that the acts, though illegal, had been ordered by their superiors.