Ricardo Pascoe Pierce
The hasty incorporation of the National Guard into the National Army has an explanation that resides in the fact that the National Guard members were granted the benefit of the War Jurisdiction. In essence, this means that the members of the National Guard and the members of the Army, Air Force, and Navy are not subject to civil authority. Neither judges, public prosecutors, justices, or magistrates can judge the military for acts performed during their activities. To judge a member of the Armed Forces for any disrespect to their instructions, there is the War Jurisdiction.
Article 13 of the Constitution extended the jurisdiction of war to the National Guard. It clarified: “When a civilian is involved in a military crime or misdemeanor, the corresponding civilian authority will hear the case”.
What can be inferred from this text is that civilians must submit to the civil authority to settle any controversy when they are involved in incidents with military personnel. However, there are mitigating factors or nuances to the case, so much so that even the Supreme Court of Justice of the Nation has resolved cases with different criteria. In some cases, it orders the handling of a case by the civil authority, and in others, it denies it.
There have been cases where civilians’ involvement in incidents with the military opened the discussion on the trial of the military in civilian courts. The underlying reason for the debate is that the military assaulted civilians’ human rights. The cases of Radilla, Inés Fernández, Rosendo Cantú, Cabrera García, and Montiel Flores were emblematic in questioning the validity of the existence of the War Jurisdiction as an instrument of protection for the military.
More recently, in the case of Ayotzinapa, the military accused of having assisted drug traffickers in the disappearance of the 43 students are being held in military barracks and tried by civilian authorities. It is clear that there is strong political pressure from the military authorities to prevent their members, even in retirement, from being tried by civilian authorities. Even the Presidency of the Republic has intervened confusingly, trying to appease the military anger over this case. The fact that the military prisoners have been released for the duration of their trial, defended by lawyers hired by the Army, is only the last stage of a process that has provoked a new conflict between the Army and the Presidency of the Republic against the Judicial Power.
This case reveals that the premise that civilian courts should try military personnel when civilians are involved, which is almost always the case, is weak and subject to political considerations and, therefore, to a case-by-case interpretation.
It does not obviate that what underlies the transfer of the National Guard to the Army is that acquiring the right to the military courts is a fundamental step toward militarizing the country. It reaffirms the exceptionality of the Armed Forces, including the National Guard, in the national legal and political order. Now, the National Guard, with its exceptionality, will be a supposed “national police force” but with military jurisdiction, like any Army. However, it will be the largest militarized body in the country, larger than the Army, the Air Force, and the Navy. A militarized police apparatus is being built, with jurisdiction that can be used to ensure public order but also for the repression of dissidents of any kind.
The military justice model must be revised to correspond to the humanist procedural guidelines progressively instituted in democratic states governed by the rule of law. Concretely, the War Jurisdiction should disappear. This would help to avoid the militarization of political power in Mexico.
It would be congruent with the Inter-American Commission on Human Rights and the Pact of San José on respect for the human rights of victims of state violence against citizens exercised by the forces of law and order.
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