41
defined and sanctioned exclusively by military laws.” 161 Moreover, the organization of military
courts in peacetime was handled, among others, by the Supreme Council of the Armed
Forces.162 More specifically, this Supreme Council reported to the Ministry of National
Defense163 and was made up of nine members appointed by the president of Argentina; 164 six
were general officers or the equivalent from the combat units or the command structures,
and three were professionals of the highest allowable rank from the audit corps of the armed
institutions.165
151. The Code of Military Justice was reformed in February 15, 1984 under law 23.049. Expert
witness Armando Bonadeo discussed the law, explaining that it was enacted two months after
democracy was established in Argentina and introduced two substantial changes to the
military code: (1) it placed boundaries on the competence of military courts to administer
justice during peacetime, limiting it to essentially military crimes, and (2) it required the
Federal Criminal Appeals Chamber (later renamed the National Chamber of Criminal
Cassation) to conduct a comprehensive review of the judgments of military courts. 166
152. On May 6, 2007, more than a decade after the National Chamber of Criminal Cassation
handed down its decision on the instant case (March 20, 1995, supra par. 94), the Argentine
Supreme Court delivered a judgment on a case involving the application of the Military Code
of Justice in force at the time, the “López, Ramón Ángel” case, and said:
“[n]o argument whatsoever can allow employees of the executive branch, subject to its
orders, to enforce criminal laws; they may act only in a situation of need within the strict
boundaries spelled out in the criminal code itself. If the jurisdiction of these courts derives
from the role of the president as commander in chief (art. 99, cl. 12 of the Constitution), it
is a question of administrative jurisdiction, and as such, has no criminal competence, which
the president of the republic expressly lacks (art. 23, 29 and 109 of the federal constitution):
if the head of the executive branch does not have this faculty, nor do the president's
subordinates. […] Further, the administrative courts cannot try crimes, and the military
jurisdiction, as established, is unconstitutional because it violates the American Convention,
the International Covenant and the Universal Declaration.”167
153. As a consequence of this line of reasoning, the Supreme Court admitted the appeal of
exception that had been lodged; it declared null and void all the proceedings thus far and
acquitted Mr. Ramón Ángel López,168 bearing in mind that Mr. López had no access to the
mandatory remedy of review provided in article 445-bis of the Code of Military Justice.
154. Later, on August 26, 2008, the Military Code of Justice was repealed under law 26.394,
and it was determined that the military jurisdiction was applicable only for disciplinary
charges, while the jurisdiction over crimes was transferred to the criminal courts in the general
jurisdiction. Along the same lines, expert witness Bonadeo stated, “crimes […] committed by
members of the Armed Forces should be tried by judges – jurisdictional principle – appointed
161
Cfr. Article 108 of the Code of Military Justice (evidence file, folio 683).
162
Cfr. Article 9 of the Code of Military Justice (evidence file, folio 674).
163
Cfr. Article 16 of the Code of Military Justice (evidence file, folio 675).
164
Cfr. Article 14 of the Code of Military Justice (evidence file, folio 675).
165
Cfr. Articles 11 and 12 of the Code of Military Justice (evidence file, folio 675).
166
Cfr. Statement by expert witness Armando Alberto Bonadeo (merits file, folio 1873).
167
Judgment by the Supreme Court of Argentina in the case of “López, Ramón Ángel,” May 6, 2007 (evidence
file, folios 5258 and 5259).
168
Cfr. Judgment by the Supreme Court of Argentina in the case of “López, Ramón Ángel,” May 6, 2007 (evidence
file, folio 5261).