Practice Relating to Rule 155. Defence of Superior Orders
Chile’s Code of Military Justice (1925) provides that a subordinate who receives an illegal order and who does not follow a special procedure of questioning it before performing it will receive mitigation of punishment.
The Code also gives as a general rule, except the case mentioned above, that the commission of a criminal act in complying with the order of a superior in rank can be taken into account in mitigation of punishment.
In its judgment in the Guzmán and Others case in 1974, Chile’s Santiago Council of War stated:
The provisions of Article 335 of the Code of Military Justice [which provides that, under certain circumstances, a soldier disobeying an unlawful order is not punishable] require that: a) an order be received from a hierarchical superior; b) that this order be related to the military service; and c) that the subordinate has explained the illegality of the order to the superior, and that the latter has insisted on the order’s performance. Where this last formality is lacking, or where the subordinate has exceeded the requirements of the order in executing it, this shall be considered as mitigating.