Practice Relating to Rule 155. Defence of Superior Orders
Uruguay’s Penal Code (1933), as amended in 1978, in a provision referring to compliance with the law, provides: “Anyone who performs an act, ordered or permitted by law, on account of his public functions, his profession, [or] his authority … shall be exempt from liability.”
The Code further provides:
Anyone performing an act out of due obedience shall not be liable for it.
A determination of due obedience requires the following:
(a) The order comes from an authority.
(b) Said authority is competent to issue it.
(c) The agent has the obligation to carry it out.
The agent’s error as to the existence of this requirement shall be determined by the judge, taking into account his position in the administrative hierarchy, his level of education, and the seriousness of the act.
Uruguay’s Military Penal Code (1943), as amended, states: “When a soldier commits an offence in the course of duty on orders from a superior, the conditions specified in Article 29 of the ordinary Penal Code [as amended] are presumed to apply in the absence of proof of the contrary.”
Uruguay’s Law on Cooperation with the ICC (2006) states:
Superior orders … may not be invoked as justification for the crimes set out in Titles I to II of Part II of the present law [i.e. genocide, crimes against humanity and war crimes].
Consequently, having acted under superior orders … does not exempt from criminal responsibility the persons who commit … the aforementioned crimes or offences.
During a debate in Committee I of the CDDH, Uruguay, although criticising Article 77 of the draft Additional Protocol I submitted by the ICRC, stated that it “supported the principles underlying Article 77, which undoubtedly had its place in the section of the draft Protocol I dealing with the repression of breaches”.
A commentary relative to the Military Penal Code (as amended) of Uruguay states:
Article 29 exempts from liability anyone who executes an act of due obedience. The defence of due obedience is allowable for military personnel only under the following conditions: The illicit act must be the result of an order; the order must correspond to an act committed in the course of duty; it must have been issued by one who is competent to give it; and the subordinate must have a legal obligation to carry it out. It is considered that in the military system the subordinate must be fully protected when acting in accordance with due obedience, because in this way discipline is asserted and the prestige of the superior’s authority is strengthened … One of the problems [is], if the rule functions, when the order is clearly unlawful; in other words, if the subordinate agent of the offence has the obligation to analyse the order and determine its lawfulness or unlawfulness … The solution adopted by our law code therefore establishes a priori
the presumption that all the elements required to absolve the agent of liability on grounds of due obedience are present, without prejudice to the judge’s authority to analyse the evidence in the light of the subordinate’s personal characteristics, the seriousness and appropriateness of the act, and whether it was carried out in peacetime or wartime, and, on the basis of this analysis, to decide whether liability may properly be transferred completely from the agent to the superior, or whether, on the contrary, there has been certain unlawful conduct on the agent’s part that would make him partially liable, or whether the order was twisted and the agent’s exoneration from liability is therefore unjustified.