Ricardo Pascoe Pierce
The new government, like the one that is ending, has not measured the significance of the militarization of political power in Mexico. Among other issues, the existence of the Fuero de Guerra (War Immunity) to protect military personnel from being prosecuted by civilian courts is a fact. From this issue comes the fact that the Armed Forces are resisting that their troops be tried for the Ayotzinapa events in civilian courts.
The military high command considers that the only immunity that has managed to resist the onslaught of history is War Immunity, as a jurisdictional and jurisdictional-competence jurisdiction.
The Spanish military ordinances are the primary source of our legislation on the Fuero de Guerra, practically to this day, despite some procedural modifications over time.
There have been three major stages of the Fuero de Guerra in Mexico: 1844 to 1929, 1929 to 1955, and 1955 to the present.
The Constitution of 1857 limited the jurisdiction of the military courts. During Maximilian’s reign, French military law criteria were applied. Francisco Múgica’s critical voice was heard in the debates surrounding the drafting and approval of the 1917 Constitution. He proposed the elimination of War Immunity, pointing out the convenience of abolishing it so that in its place, the ordinary courts would hear crimes of military discipline.
However, the new Political Constitution of the United Mexican States of 1917 recognized military law as a “new system of law immersed in the macro legal system”.
But the military system, separate from the country’s civilian judicial system, presents its own problems. For example, military judges are considered mere instructors. In addition, the Chief Justice of the Supreme Court is a general. Judges’ decisions are subordinated to the line of command within the Armed Forces. There is no protection for the accused and even less respect for their human rights. Civilian defendants are completely unprotected by the military chain of command. Military lawyers are prone to lack objectivity.
There is no doubt that gradual and responsible changes to Wartime Immunity are necessary. If the intention were to eliminate the military justice system altogether, the State would enter into a real crisis.
To protect civilian victims, it is necessary to professionalize judges’ actions. The ideal would be to convert the military courts into part of the Federal Judiciary.
Such changes would be congruent with the Inter-American Commission on Human Rights and the Pact of San José regarding respect for the human rights of victims of state violence against citizens exercised by the forces of law and order.
A comprehensive review of the military justice model is needed so that it corresponds to the humanist procedural guidelines that are progressively being instituted in democratic states governed by the rule of law. This would avoid the militarization of political power in Mexico.
In addition, there are four emblematic cases in which the State’s military forces perpetuated human rights violations against civilians. The cases of Radilla, Inés Fernández, Rosendo Cantú, Cabrera García, and Montiel Flores demonstrated the absence of respect for human rights by the military courts.
It is necessary to prohibit the extension of military immunity to crimes that are not typically military. This requires a gradual transition. A first step to avoid the harmful militarization of Mexican society would be to try military personnel in federal courts when civilians are involved.
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