Military Justice

It is necessary first to distinguish two spheres in the military jurisdiction: on one hand, the military disciplinary

jurisdiction and on the other the military criminal jurisdiction.

The former, referred to in the Military Code of Justice as the "executive competence" is a function inherent to command and is therefore exercised by the whole hierarchical structure starting from its maximum authority, the

President of the Nation in his capacity as Commander in Chief of the Armed Forces.

The exercise of this function implies the penalizing of any disciplinary faults committed by military personnel, consisting in any violations of military duties that the law of the regulations penalizes with the disciplinary measures provided for in such Code.

Contrary to the above, the military criminal jurisdiction applies to offenses and penalties that, according to the relevant sections of the Military Code of Justice, can only be applied by the intervention of a Court Martial.

This jurisdiction is not derived from the power exercised by the President of the Nation over the Services but from the legislative power to issue regulations governing the organization and

management of such Services, which derives from the National Constitution.

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Ultimately, the military

jurisdiction provides legal support to the discipline concept which, as we have seen, is one of the main characteristics of any military organization.

The Code consists in a triple conceptual unit: its provisions are

common to all three Services, it contains the regulations for peacetime and

wartime, and contains, in a single body, the regulations concerning the

organization of military courts, their procedures and the penalties.

Amendments to the Military Code of Justice

Up to the amendment introduced into the MCJ by Act No. 23039, the military jurisdiction exercised by military courts was separated from the Judiciary.

Its judgments were final and there was no possibility of appealing, save through an extraordinary appeal before the Supreme Court of Justice of the Nation.

Basically, such jurisdiction

comprised primarily military offenses and faults and all those offenses committed by the military in acts of military service or in places exclusively subjected to military authority that affected the rights and interests of the Government or of persons in general.

After such amendment to the MCJ, which took place in 1984 and which includes a new criterion adopted by the Supreme Court¹, a judicial review is required for military court judgments.

Such review is implemented through a motion filed before the National

Appellate Court for Law Interpretation in Criminal Matters with the mandatory participation of the Government prosecutor in all cases, which is an indispensable requirement for the judgment to remain firm.

On the other hand, such amendments to the MCJ limited the military penal jurisdiction in peacetime only to essentially military offenses and faults, that is, to offenses affecting the existence of the military institution, which are provided for and penalized in such code. All other offenses fall within the competence of civilian justice.

The mandatory review and the

restriction imposed on military

jurisdiction are not applicable in wartime.

Further to the described conceptual policy, and with a view to strengthen the adaptation of Military justice to the new circumstances of the country and current times, the Minister of Defense and the General Auditing Office of the Armed Forces started to

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Part VIII - Human Resources

develop in 1997 a review of the regulations contained in the MCJ.

The major changes included in such proposal are the following:

. Incorporation of the regime contemplating penalties for violations against Armed Conflict International Law.

• The scope of mandatory obedience is clarified. In brief, this issue may not be invoked when the order issued by a senior officer

manifestly implies the commission of a felony.

• In the case of offenses against protected persons and property in armed conflict situations, the responsibility of the offenses committed by the subordinates, in certain circumstances, extends to the senior officer.

. Military jurisdiction is limited to acts committed by military personnel which are included in the MCJ, regardless of whether they are included in other penal legislation. On the other hand, it extends to all the offenses that

military personnel may commit during peacekeeping operations in other countries.

. Assistant Attorneys are

incorporated into Court Martial.

. Prosecutors are to be selected from military judicial entities.

• The proposal provides for the possibility to voluntarily select a defender (who should be a lawyer) from the time a person becomes a defendant, as well as the

mandatory selection of such a defender when the person must testify at the inquiry.

• Freedom on parole is incorporated.

The enactment of these

amendments as a national law will bring about a significant modernization of the military justice regime. This policy

adequately reflects the changes that social and legal evolution has caused in the national and international context and incorporates the experiences gathered since 1984. The aim is contributing to strengthen the republican principles as well as the principles established by Human Rights.

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CHAPTER 21

/^•i y 'he modernization of the Defense f V-«v Education System derives from

^-^ the lessons learned and from combat experiences (such as the South Atlantic conflict), which have influenced the updating of doctrine and of

operational and training aspects, among other factors.

On the other hand, the

transformation of conflict characteristics after the Cold War and the appearance of new challenges brought about the

redefinition of the missions entrusted to the military instrument as well as a significant impact on education for Defense.

In particular, the Argentine involvement in the Gulf War allowed employing new political-strategic and operational-technological concepts. This contributed to significant improvements in educational organizations by imposing innovations in all areas —from mental attitudes through technical aspects—, and made clear the need to educate the personnel in the understanding of the nature of change, its requirements and its future consequences, in line with the specific functions of each Service.

These factors form the context surrounding the change in the educational systems within the sphere of Defense.