Practice Relating to Rule 154. Obedience to Superior Orders
Spain’s LOAC Manual (2007) states that “combatants are not bound to obey orders if they involve carrying out acts that are manifestly contrary to the laws and customs of war or constitute a crime”.
Spain’s Royal Ordinance for the Armed Forces (1978) provides: “Where an order would entail the execution of acts which are manifestly contrary to the laws and customs of war or constitute a crime … no soldier is bound to obey it.”
Spain’s Penal Code (1995) provides that criminal liability is not incurred by authorities or public employees who do not comply with an order constituting a clear, manifest and definite breach of a precept of law or any other general provision.
Spain’s Law on the Military Career (2007) states: “If orders entail the commission of criminal acts, particularly those contrary to the Constitution or persons and objects protected in case of armed conflict, the serviceman or servicewoman shall not be bound to obey them.”
Spain’s Royal Ordinances for the Armed Forces (2009) states: “If the orders [given by a superior] are expected to result in the execution of acts constituting an offence, in particular … against protected persons and objects in the context of an armed conflict, the member of the armed forces will not be under the obligation to obey them.”
Spain’s Law on the Rights and Duties of Members of the Armed Forces (2011) states:
Article 2. Scope of application
1. This law applies to all members of the Armed Forces who acquire the status of military personnel in accordance with Law 39/2007, of 19 November, on Military Career. Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training.
2. This status applies to members of the reserves and aspirants when they are incorporated into the armed forces …
Article 6. Rules of conduct of military personnel
1. The essential rules governing the conduct of military personnel are the following:
Discipline, a factor of cohesion that imposes an obligation to give orders responsibly and to obey orders, will be practiced and required in the armed forces as a norm of conduct. It finds its collective expression in the observance of the constitution and its individual expression in obedience to orders received.
Responsibility in the exercise of military command cannot be renounced or shared. … All commanders have the duty to demand obedience from their subordinates and the right for their authority to be respected, but cannot order acts contrary to law or which constitute a crime.
To obey orders that, in accordance with the law, are related to service given by military personnel to a subordinate in an appropriate form and within their power, to carry out or omit to carry out a concrete action. Further, to fulfil the requests received from military personnel of higher rank with regard to the general norms and provisions of order and conduct.
If the orders entail the carrying out of acts constituting a crime, in particular against the Constitution or against persons or objects protected in armed conflict, military personnel are not obliged to obey and must inform the immediate superior commander of the person who gave the order to carry out the act, as fast and efficiently as possible. In any case military personnel shall assume the serious responsibility following from their acts or omissions.
The Report on the Practice of Spain states:
Since the subordinate is not protected [from penal responsibility under the Military Criminal Code] by the defence of hierarchical obedience, he is bound to disobey any order manifestly contrary to the laws and customs of war, a phrase that covers breaches of international humanitarian law.
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
The framework guaranteeing that members of the armed forces will conduct themselves in accordance with international humanitarian law is constituted by … article 48 of Title II on Discipline [of the Royal Ordinances for the Armed Forces (2009)] [which] provides that “if orders involve carrying out criminal acts, especially crimes against the Constitution and against protected persons and property in armed conflict, members of the armed forces shall be under no obligation to obey them”.