have a direct interest, a pre-established position or a preference for one or other party, and
that they are not involved in the dispute.”254
186. Based on the foregoing considerations, the Court must determine whether, in this
case, the State has violated the rights to judicial guarantees and to judicial protection
established in Articles 2, 8, and 25 of the Convention, in relation to Article 1(1) of this
instrument, taking into account that the investigation of the facts and the final decision to
acquit those presumably responsible was carried out exclusively by organs of the military
jurisdiction.
1. The military justice system cannot be the competent jurisdiction for human
rights matters
187. Under democratic rule of law, military criminal justice must be restrictive and
exceptional so that it is only applied to protect special juridical rights of a military nature
that have been violated by members of the armed forces in the exercise of their functions.255
In addition, it has been tis Court’s consistent case law that the military justice system is not
the competent jurisdiction to investigate and, as appropriate, prosecute and punish the
authors of human rights violations, but rather the prosecution of those responsible always
corresponds to the ordinary justice system.256 This conclusion applies to all human rights
violations.
188. This consistent case law of the Court has also indicated that the military jurisdiction
does not meet the requirements of independence and impartiality established in the
Convention.257 In particular, the Court has noted that when officials of the military criminal
jurisdiction responsible for investigating the facts are members of the armed forces on active
duty, they are not able to issue an independent and impartial ruling.258
189. Similarly, the Court has established that remedies before the military courts are not
effective to decide cases of serious human rights violations, much less to establish the truth,
prosecute those responsible, and make reparation to the victims, because those remedies
that, for different reasons, result illusory cannot be considered effective, such as when the
judicial organ lacks independence and impartiality.
190. In this case, the arbitrary deprivation of life, the extrajudicial executions, and the
injuries to the Haitian survivors perpetrated by military personnel are acts that, under no
circumstances, bear any relationship to the military mission or discipline. On the contrary,
such acts affected rights protected by domestic criminal law and the American Convention,
such as life and personal integrity (supra paras. 97 and 98). It is evident that such conducts
are clearly contrary to the obligations to respect and protect human rights and, therefore,
are excluded from the competence of the military jurisdiction.
254
Cf. Case of Palamara Iribarne v. Chile, supra, para. 146, and Case of Usón Ramírez v. Venezuela, supra,
para. 117.
255
Cf. Case of Durand and Ugarte v. Peru. Merits. Judgment of August 16, 2000. Series C No. 68. Para. 117,
and Case of Vélez Restrepo and family members v. Colombia, supra, para. 240.
256
Cf. Case of La Cantuta v. Peru, supra, para. 142, and Case of Vélez Restrepo and family members v. Colombia,
supra, para. 240.
257
Cf. Case of Castillo Petruzzi et al. v. Peru, supra, para. 132, and Case of Cabrera García and Montiel Flores
v. Mexico, supra, para. 198.
258
Cf. Case of Durand and Ugarte v. Peru. Merits, supra, para. 125.
52
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