Practice Relating to Rule 154. Obedience to Superior Orders
In a case relating to conscientious objection in 1992, the Colombian Constitutional Court considered that a superior’s order that would consist of occasioning death outside combat would clearly lead to a violation of human rights and of the Constitution. As such it should be disobeyed.
In another case in 1995, in which the Court was examining the constitutionality of a military regulation that provided that a subaltern was obliged to obey a superior’s order that he/she thought unlawful, if the order was confirmed in writing, the Court took the same approach.
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
[T]he very progress achieved by the DSDP
[Democratic Security and Defence Policy] has created new scenarios and new challenges which require a more detailed breakdown of the Constitutional mandate. There are two aspects of this mandate. First, it establishes the rules of IHL as the framework for and the limits on the conduct of operations, as expressed by the Constitutional Court on various occasions when interpreting Article 91 of the Constitution: “the jurisprudence has limited this principle [the duty of obedience]
in the field of military discipline to compliance with the prohibitions enshrined in International Humanitarian Law”.
[footnote in original omitted]