Practice Relating to Rule 155. Defence of Superior Orders
Under Argentina’s Code of Military Justice (1951), as amended in 1984, in the event that a crime is committed through the execution of a military order, only the superior officer who gave the order shall be held responsible for the crime, and the subordinate shall only be considered an accomplice to the crime if the order is carried out to excess.
Argentina’s Decree on Trial before the Supreme Council of the Armed Forces (1983), issued in connection with the trial of the military junta, stated:
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 text of this rule mitigates the responsibility of the subordinates, in particular because in many cases the subordinates may well have failed to understand the moral and legal significance of their acts owing to the psychological tactics used and the coercive context in which they found themselves.
In its judgment in the Military Junta case
in 1985, Argentina’s National Court of Appeals held that the legal rule that exempted subordinates from responsibility for the crimes they committed on military orders was none other than the application of the “duty to obey” principle (Article 514, Code of Military Justice, according to which only the superior bears criminal responsibility in the event that a crime is committed through the execution of an order, supra
). It found that the unlawful orders had been given by the accused for the purpose of carrying out military acts to combat terrorist subversion, an activity that was part of the functions they performed. Under the terms of Article 11 of Law 23.049, which provides a genuine interpretation of the text contained in Article 514, the subordinate shall be held responsible for the crime committed if he had decision-making powers, knew the order was illegal, or if the order involved committing atrocities or aberrant acts. The Court found that, owing to their position in the chain of command, some individuals knew of the unlawfulness of the system, and that others had committed atrocities. It also stated that some subordinates would not be covered by the defence of duty to obey, and that they were responsible for the acts committed, together with those who had given the orders.
In the Military Junta case
in 1986, Argentina’s Supreme Court found, however, that, where a crime is committed through its execution, the relevant regulation (Article 514 of the Code of Military Justice) transferred responsibility for the crime to the superior, on the principle that responsibility lay in the allocation of duties for the purpose of ensuring discipline. This was not a transfer of the capacity of the perpetrator, but a transfer of penal responsibility for the purpose of imposing discipline. Consequently, the Court found that in peacetime only Article 514 of the Code of Military Justice applied within the framework of military orders, and that the object of the trial was the unlawful acts committed outside the scope of military operations, and that therefore the rules of the Penal Code (Article 45) should apply. According to the Court, those who gave the orders and made the material means available participated as necessary collaborators and not as perpetrators under the terms of Article 45 of the Penal Code, since the subordinates had ample opportunity to determine the fate of the detainees. The Court questioned the degree of “subjugation” to which, according to the Court of Appeals, those executing the acts were subjected. It distinguished perpetrators or co-perpetrators “who took part in the execution of the act” from other types of involvement entailing cooperation, aid or assistance. For this reason, the Court modified the Court of Appeals’ designation of the perpetrators’ commanders, referring to them instead as “participating as necessary collaborators”.
At the CDDH, with respect to Article 77 of the draft Additional Protocol I submitted by the ICRC, Argentina explained its negative vote by referring to a great difficulty rooted in the determination of the degree of scrutiny of the orders required from the subordinate, which also varied according to his hierarchical rank.
However, in the debates in Committee I of the CDDH, Argentina had stated that “on the whole, [it] supported the ICRC text of article 77, which retained [the principle of due obedience]” and that it “accepted what might be termed ‘the human function of due obedience’, in other words that in case of the flagrant breach of a fundamental humanitarian principle exoneration on account of due obedience did not apply”.