Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
Spain’s LOAC Manual (1996) states:
The law of war provides that governments take all legislative measures necessary to determine the penal and disciplinary sanctions for the persons who commit or who give the order to commit violations of the laws and customs of war.
Spain’s LOAC Manual (2007) states: “The law of armed conflict provides that governments must take all necessary legislative measures to establish the penal and disciplinary sanctions to be applied to those who … order others to commit violations of the laws and customs of war.”
Spain’s Penal Code (1995), as amended in 2003, states: “Anyone who in the event of an armed conflict … orders the employment of means or methods of combat that are prohibited … shall be punished with ten to 15 years’ imprisonment, without prejudice to the penalty for the results of such acts.”
Spain’s Penal Code (1995), as amended in 2010, states:
Anyone who, in the event of an armed conflict, … orders the commission of any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, regulation of the means and methods of war, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment.
Spain’s Royal Ordinances for the Armed Forces (2009), which contains a chapter on the duties with regard to international humanitarian law, states in the general provisions on the commanders’ obligations: “Every commander has the duty to require the obedience of his or her subordinates, and the right to have his or her authority respected, but may not order acts contrary to the laws or that constitute an offence.”
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. …
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.
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 55 of the Title on Actions of Commanders [of the Royal Ordinances for the Armed Forces (2009)], which provides that “no commander … may issue orders contrary to law or that constitute a crime”.