21 98. The Office of the Supreme Council of Military Justice submitted a jurisdictional challenge to the Supreme Court of Justice, which was settled by the Transitory Criminal Law Chamber of the 98 Supreme Court of Justice on August 16, 2002. The Court settled the matter in favor of the military jurisdiction in relation to the military personnel involved in the operation and ordered the investigative phase to proceed in the civilian jurisdiction in relation to anyone “other than the commandos”, namely, Vladimiro Montesinos Torres, Nicolás de Bari Hermosa Ríos, Roberto Huamán Ascurra and Jesús Zamudio Aliaga. The Court’s reasoning was as follows: The military operation […] was planned and carried out under orders from then President of the Republic Alberto Fujimori Fujimori, Supreme Chief of the Armed Forces, to preserve internal order and national security, which had been severely undermined by the armed attack of a terrorist group […] the intervention by the Military Commandos therefore qualifies as an action that took place in a zone that had been declared to be in a state of emergency and is therefore subject to article ten of Law twenty-four thousand one hundred fifty, which provides that members of the Armed Forces who serve in zones declared to be under a state of exception are subject to the Code of Military Justice and any infractions they may commit in the discharge of their duties as set out in that Code fall under Exclusive Military Jurisdiction [Fuero Privativo Militar], save those that are unrelated to the service which is, in effect, the case of the persons not included in the order to initiate proceedings issued by the military justice system; The military group formed and trained for the hostage rescue operation was obeying a superior order in a situation of clear military confrontation, and therefore any punishable infractions or excesses set out in the Code of Military Justice must be considered as having taken place in the discharge of duties and the perpetrators must be subject to military jurisdiction in accordance with the regulations contained in the Code of Military Justice; another essential argument derives from the strict application of article one hundred seventy-three of the Political Constitution of the State, which provides that in case of a duty-related crime, members of the Armed Forces and the National Police are subject to the respective jurisdiction and to the Code of Military Justice, and this provision is also applicable to civilians for the crimes of Treason against the Fatherland and Terrorism; it is also the case that the punishable acts in question are set out in the Code of Military Justice as violations of international law [jus gentium] […] The provisions of article three hundred twenty-four of the Code of Military Justice must be interpreted in light of the provisions of article one hundred seventy-three of the Political Constitution of the State inasmuch as those who were allegedly wronged acted as an armed group belonging to the “Túpac Amaru” terrorist organization […] and it is therefore improper to regard them as civilians. The determination of jurisdiction over the investigation and trial of any excesses that may have occurred, the hostage rescue having been concluded, in which military personnel, members of the group of commandos and personnel not belonging to that corps could have been involved, must be undertaken in strict adherence to the provisions of articles three hundred forty-two and three hundred forty-three of the Code of Military Justice, to the effect that each jurisdiction, the military and the civilian, must independently take up the crime under its purview in accordance with the relevant criminal law. The […] members of the corps of commandos acted in a military operation pursuant to an order issued in accordance with the Constitution and by an authority empowered to do so, and any criminal infractions they may have committed should therefore be taken up by the military justice system, which is not the case of anyone other than those commandos, who would have acted, as the case may be, as offenders or perpetrators of crimes established under civilian law and therefore must remain subject to the civilian jurisdiction. …continuation On the other hand, the file of the IACHR does not show that the next of kin had access to the military process. 98 Petitioners’ communication of February 3, 2003.