E/CN.4/1995/111
page 36
26 August to 6 September 1985, and endorsed by the General Assembly in
resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Thus,
an important step forward would be a substantial reform of the code of
military justice, along the lines suggested, inter alia, by the Procuraduría
General. These reforms would need to include the following elements:
(a)
Clear distinction between those carrying out operational activities
and personnel involved in the military judiciary, who should not be part of
the normal chain of command;
(b)
Recomposition of the military tribunals by a corps of legally
trained judges;
(c)
Ensuring that those responsible for the investigation and
prosecution of cases are also entirely independent of the normal military
hierarchy and professionally qualified, if not indeed a specialized branch of
the Fiscalía. They should be given sufficient human and material resources to
fulfil their functions;
(d)
Removal of the defence of obedience to superior orders in respect
of crimes under international law such as extrajudicial, summary or arbitrary
executions, torture and enforced disappearances;
(e)
Giving full effect to the recent Constitutional Court decision
requiring involvement of the parte civil; and
(f)
Explicitly excluding from military jurisdiction the crimes of
extrajudicial, summary or arbitrary execution, torture and enforced
disappearance.
Furthermore, the organ deciding in conflicts of competence between the
civilian and the military justice systems should be composed of independent,
impartial and competent judges.
121. Even if such reforms are speedily implemented, the backlog of historical
impunity will remain and must be addressed. The Special Rapporteurs would
consider opportune the establishment of a mechanism which could contribute to
providing justice for the past. Such a mechanism should be able to achieve
the following goals:
(a)
Give a full public accounting of the scope and extent of the crimes
committed in the name of the State and the political and institutional factors
that contributed to the impunity of their authors;
(b)
Formally identify the individual responsibility for such crimes,
including the direct perpetrators and those who may have given the explicit or
implicit orders for their commission;
(c)
Instigate the corresponding criminal and disciplinary proceedings,
to be carried out by the competent organs;
(d)
Ensure effective reparation to the victims or their dependants,
including adequate compensation and measures for their rehabilitation;
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