E/CN.4/1998/38
page 15
organizations acknowledged the importance of this type of measure.
Nonetheless, in the dialogue begun with the Government they had declared that
these measures should be more far-reaching and more effective. Among the
measures suggested were confronting and eradicating illegal paramilitary
groups, dismissing those members of the public forces and other State
organizations involved in serious human rights violations, and implementing
strategies for prosecuting and punishing those responsible for threats and
attacks against human rights defenders.
65.
The Rapporteurs recommended, with regard to military justice, that a
reform of the Code should include the following elements: (a) a clear
distinction between those carrying out operational activities and members of
the military judiciary, who should not form part of the normal chain of
command; (b) reconstitution of the military tribunals with a corps of legally
trained judges; (c) ensuring that investigation and prosecution officials were
independent of the normal military hierarchy; (d) elimination of the principle
of obedience to superior orders in connection with executions, torture and
enforced disappearances; (e) involvement of the claimant for criminal
indemnification (parte civil); and (f) explicitly excluding from military
jurisdiction the crimes of execution, torture and enforced disappearance.
Furthermore, the body deciding on conflicts of jurisdiction between the civil
and military justice systems should be composed of independent judges.
66.
The Government referred to its decision to present to Congress the
reform of the Military Criminal Justice System beginning in March 1997. The
Government had an official position with regard to the two most relevant
points at issue: whether or not to limit the concept of service-related
crimes, and whether or not to restrict the concept that obedience to superior
orders conferred exemption from responsibility. In connection with the first
matter, the Government had opted not to include definitions or regulatory
details and to leave it to the discretion of the court to determine whether or
not the acts were connected with active service. As for obedience to superior
orders, this could only be invoked when the act was the result of a legitimate
order and did not infringe fundamental rights.
67.
Other important advances had also been achieved such as a clear
distinction drawn between those who carried out operational activities and
members of the military judiciary, who should not form part of the normal
chain of command; the technical training of investigation and trial personnel;
the introduction of the indictment system; the involvement of the claimant for
indemnification (parte civil) in legal proceedings, and the introduction of a
chapter in which the most relevant infringements of international humanitarian
law were characterized as offences.
68.
Non-governmental sources pointed out that the draft Military Criminal
Code submitted by the Government reproduced the content of article 221 of the
Constitution and, in connection with serious violations of human rights,
excluded application in the military courts. As to obedience to superior
orders, it established that an order should be carried out with the due legal
formalities and by a competent authority. Nevertheless, it was not explicit
about the duty not to carry out express orders which involved violations of
human rights. Action by the claimant for indemnification (parte civil) was
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