Practice Relating to Rule 155. Defence of Superior Orders
Spain’s LOAC Manual (2007) states
[C]ombatants 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. In all such cases, combatants are fully responsible for their acts and omissions and cannot plead obedience to superior orders as a valid defence.
The manual also states: “Obedience to superior orders is not a valid defence for members of the armed forces who commit acts that are manifestly contrary to the laws and customs of war. They are responsible for their acts.”
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; in any case, he must assume serious responsibility for his act or omission.
Spain’s Military Criminal Code (1985) states that obeying any order involving the commission of acts manifestly contrary to the laws or customs of war does not constitute an exonerating or mitigating circumstance.
Spain’s Law on Security Forces (1986) provides that under no circumstances may a defence of due obedience be applied to orders involving the execution of acts that manifestly constitute offences or are contrary to Spain’s Constitution or laws.
Spain’s Royal Ordinances for the Armed Forces (2009) states:
In any case, [the member of the armed forces] will assume the grave responsibility for his or her acts or omissions [if he or she follows orders that 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].
At the CDDH, Spain stated with respect to Article 77(2) of the draft Additional Protocol I:
Responsibility exists when the circumstances in which the penal offence takes place do not prevent the realization that the order received implies the commission of a grave offence, although the fact must be considered, as an attenuating circumstance, that it is rationally impossible to disobey orders received. For that reason the principle affirmed in paragraph 2 is a valid one.