Norma relacionada
Peru
Practice Relating to Rule 155. Defence of Superior Orders
Peru’s Human Rights Charter of the Security Forces (1994) provides: “The execution of a manifestly illegal order is no exemption from penal responsibility.”
Peru, Derechos Humanos: Principios, Normas y Procedimientos, MFA 09-1, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, Lima, Peru, May 1994, p. 13.
Under Peru’s Code of Military Justice (1980), obedience to a superior’s order is a valid defence, if the order is not manifestly unlawful.
Peru, Code of Military Justice, 1980, Article 19(7).
Peru’s Code of Military and Police Justice (2006) states:
Regarding genocide and crimes against humanity, any person who acts pursuant to an order by a government, authority or superior, whether military or civilian, shall not be relieved from criminal responsibility.
In the cases of crimes against international humanitarian law, any person who acts pursuant to an order of a government, authority or superior, whether civilian or military, shall have his/her penalty reduced, as long as:
a) the person was under a legal obligation to obey orders by the respective government or the superior;
b) the persons did not know that the order was unlawful, and
c) the order was not manifestly unlawful.
Peru, Code of Military and Police Justice, 2006, Article 85.
In 2007, in the Chuschi case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated regarding the crime of enforced disappearance that the “excuse of having followed orders shall not be admitted”.
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 130.
The judgment by the National Criminal Chamber was partially appealed. On appeal, the Permanent Criminal Chamber stated in 2007:
[B]ecause of the evident unlawfulness of the acts which the accused committed, the seriousness of these acts and his obvious knowledge that superior orders must not be followed if they are aberrant or seriously violate human rights, the defence of superior orders is rejected.
Peru, Supreme Court of Justice, Permanent Criminal Chamber, Chuschi case, Case No. 1598-2007, Judgment of 24 September 2007, p. 172.
In 2007, in the Valladares Olivares case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated:
[One of the accused] was performing military service under the orders of Valladares Olivares on the day of the events. Yet this does not mean that he is exempt from criminal responsibility on the basis of respect for the chain of command because of the evidently unlawful nature of the acts of torture and resulting death of the victim.
Peru, Supreme Court of Justice, National Criminal Chamber, Valladares Olivares case, Case No. 039-06, Judgment of 23 November 2007, p. 59.
In 2009, in the Armed Forces case, 31 members of Peru’s Congress requested Peru’s Constitutional Court to declare unconstitutional Article 7(1)–(2) of Law No. 29166 of 20 December 2007, which establishes rules on the use of force by members of the armed forces on Peruvian territory. The Court declared the law partially unconstitutional and held:
International humanitarian law and international human rights law have established that compliance with superior orders does not exempt from responsibility the person who carries out the order if this order was manifestly unlawful. Both the [1945] Statute of the Nuremberg Tribunal (Article 8) and the [1998] Rome Statute of the International Criminal Court (Article 28) as well as other treaties have recognized this rule as a rule of customary international law.
Peru, Constitutional Court, Armed Forces case, 9 September 2009, § 70.
