Military Jurisdiction Research Articles

The Anatomical Institute at the University of Greifswald during National Socialism: The procurement of bodies and their use for anatomical purposes

This is the first comprehensive account of body procurement at the Anatomical Institute at Greifswald University during National Socialism (NS). As in all other German anatomical departments, the bodies received during this period included increasing numbers of victims of the NS regime. Prior to 1939, 90% of all bodies came from hospitals, state nursing homes and mental institutions (Heil- und Pflegeanstalten), but dropped to less than 30% after 1941. While the total catchment area for body procurement decreased, the number of suppliers increased and included prisons, POW camps, Gestapo offices and military jurisdiction authorities.Among the 432 documented bodies delivered to the institute, 132 came from state nursing homes and mental institutions, mainly from Ueckermünde. These were bodies of persons, who probably were victims of “euthanasia” crimes. The Anatomical Institute also procured 46 bodies of forced laborers, of whom at least twelve had been executed. Other groups of victims included 21 bodies of executed Wehrmacht soldiers and 16 Russian prisoners of war from the camp Stalag II C in Greifswald, who had died of starvation and exhaustion. From 1941 onwards, the number of bodies delivered from prisons and penitentiaries greatly increased. In total, 60 bodies of prisoners, mainly from the penitentiary in Gollnow, were delivered to the Anatomical Institute.Greifswald Anatomical Institute was not just a passive recipient of bodies from all of these sources, but the anatomists actively lobbied with the authorities for an increased body supply for teaching and research purposes.

Popular War: Gauchos and the Challenge to Elite Power in Northern Rio de la Plata in the Revolutionary Period

Abstract The War for Independence brought about popular mobilization in northern Argentina. As the war was waged in the provinces of Salta and Jujuy, rural population enlisted in militia battalions since 1814. Militia regulations in the Rio de la Plata area called for the extension of military jurisdiction (fuero) to all soldiers as well as for compensation when mobilized for combat. Popular mobilization in Northern Rio de la Plata posed a threat to elite power as it challenged long-held hierarchies and patterns of social deference dating from colonial times. Actions such as intimidation, seizure of livestock, and land occupations were commonly taken by gauchos and regarded by them as acts of social justice. The elite regarded them as arrogant and violent acts aimed at curtailing their power and strip them from their property and power.

La población miliciana ante la justicia militar en Buenos Aires (1810-1823). Una comparación entre la ciudad y la campaña

After the Revolution, ongoing wars required part of the male population of Buenos Aires to remain armed and serve in the militias. Although they had civilian status, these militiamen benefitted from a special military jurisdiction, inherited from the Laws of the Indies. The following article examines the application of military justice in these cases, using research based on an analysis of legal proceedings, paying particular attention to the ways in which the cases are substantiated, the use of judicial discretion and the differences between town and countryside.

Archaeology of State Terrorism: Exploring the Territorial Strategies of Clandestine Repression in Argentina (1976–1983)

In Latin America, the Archaeology of the Contemporary Past focuses on investigation of the massive human rights violations perpetrated by the authoritarian regimes that ruled the countries in this region between 1960s and 1980s. These military governments instituted terror regimes in order to achieve a de-politicization of civil society through fear. To ensure their success, they displayed the most extreme forms of repression, including imprisonment, forced exile, murder and the disappearance of thousands of political opponents. This paper examines the regional particularities of the clandestine repression in Argentina, specifically in the military jurisdiction known as Area 211, which was subordinated to the II Defense Zone Command. Taking an archaeological and territorial approach, I applied the analysis tools provided by Geographic Information Systems (GIS), combining historical and spatial information to investigate the modes by which repressive systems administered the bodies of their victims.

O sistema interamericano de direitos humanos e a justiça de transição no México

O objetivo deste artigo é analisar como e por que as normas do sistema interamericano de direitos humanos sobre justiça de transição presentes na sentença do caso Rosendo Radilla contra o Estado mexicano exerceram impacto em questões de direitos humanos no México, especialmente no que diz respeito à jurisdição militar e ao controle de convencionalidade. A partir da abordagem teórica emergente, segundo a qual os efeitos dos regimes internacionais de direitos humanos são condicionados por fatores domésticos dos países-alvo, nossa pesquisa busca delinear como a política interna influencia o impacto potencial dessas normas internacionais que integram a cascata de justiça, salientando para tanto o papel de organizações não governamentais (ONGs) e da Suprema Corte local.

The recent attempt at constitutional reform to Colombia’s military jurisdiction: Context, implications and perspectives for subsequent debates

espanolEn el ambito internacional se ha venido consolidando una tendencia consistente en restringir o incluso prohibir el uso de tribunales militares para la persecucion de miembros del ejercito o de las fuerzas de policia que han sido responsables por la comision de graves violaciones a los derechos humanos. Durante las ultimas decadas, Colombia habia hecho parte de esta tendencia, especialmente a traves de la jurisprudencia de la Corte Constitucional y de recientes reformas legislativas. Sin embargo, con la expedicion del Acto legislativo 02 de 2012, esta tendencia se vio interrumpida, ya que con el argumento de generar certeza en las labores de las fuerzas militares y de policia, se procedio a extender el ambito de aplicacion de la justicia militar en Colombia. A pesar que este intento de reforma constitucional fue rapidamente declarado inconstitucional por la Corte Constitucional por vicios en su proceso de aprobacion en el Congreso de la Republica, sus contenidos e implicaciones deberan ser tenidos en cuenta como punto de partida para futuras discusiones en el tema. EnglishFrom an international perspective, there has been a tendency to try and restrict or even avoid the use of military tribunals to prosecute members of the military or police responsible for serious human rights violations. Colombia has become a part of this trend over the past few decades, particularly through its Constitutional Court jurisprudence and a handful of legislative developments. However, Colombia’s Legislative Act 02 of 2012 interrupted this trend by attempting to amend the country’s Constitution and extend the scope of military jurisdiction in Colombia, arguing that more confidence should placed in Colombia’s military and police. Although Colombia’s Constitutional Court quickly declared this constitutional reform unconstitutional due to some flaws in the congressional approval process, the substantial content and implications of this attempt at reform must be the starting point for subsequent debates about the benefits and scope of military criminal justice reform. portuguesNo âmbito internacional vem se consolidando uma tendencia consistente em restringir ou inclusive proibir o uso de tribunais militares para a persecucao de membros do exercito ou das forcas de policia que tem sido responsaveis pela comissao de graves violacoes aos direitos humanos. Durante as ultimas decadas, a Colombia tinha feito parte desta tendencia, especialmente atraves da jurisprudencia da Corte Constitucional e de recentes reformas legislativas. Porem, com a expedicao do Ato Legislativo 02 de 2012, esta tendencia se viu interrompida, ja que com o argumento de gerar certeza nos trabalhos das forcas militares e de policia, se procedeu a estender o âmbito de aplicacao da justica militar na Colombia. Apesar que esta tentativa de reforma constitucional tenha sido rapidamente declarada inconstitucional pela Corte Constitucional por vicios em seu processo de aprovacao no Congresso da Republica, seus conteudos e implicacoes deverao ser levados em consideracao como ponto de partida para futuras discussoes no tema.

Communicative Interaction Between Mexico and Its International Critics Around the Issue of Military Jurisdiction: “Rhetorical Action” or “Truth Seeking Arguing”?

During the government of Felipe Calderón (2006–2012), international advocates showed particular concern about the issue of military jurisdiction. They persistently argued that violations of human rights by members of the armed forces should be prosecuted through the civil system of penal justice. The government responded by developing a clear and coherent human-rights-oriented discourse. This article studies this process of communicative interaction, recurring to the notions of “rhetorical action” and “truth seeking arguing.” Which one of these two modes of communicative interaction dominated? And, what does this tell us about the reach of the socialization process around the issue of military jurisdiction in Mexico? The article concludes that “rhetorical action” was the dominant mode of communicative interaction, suggesting that the Calderón government developed human-rights-oriented arguments in order to advance its previously defined preferences and interest, and that therefore the socialization process was rather limited.

El papel de la Sanidad Militar en la campaña de Marruecos (1859-1860)

In the Army and the Navy there was a lack of regulations and doctrine, sanitary material was inappropriate, non-homogeneous, outdated and, above all desperately scarce, sometimes even remaining from the previous Carlist wars; the chain of evacuation was capricious, at the mercy of the medical officer in charge, while the military doctor was a kind of civil servant subject to military jurisdiction when convenient, with no authority and extremely discredited, resented and handicapped, to that extent that young people no longer wanted to become military doctors. We intend to exhibit for the first time a series of circumstances that make this campaign a turning point for the Military Health Service. Results: we established the gradation of the sanitary formations and the chain of evacuation. The attention to casualties was exemplary: battalion aid stations were very close to the first line and almost always subjected to fire; however, all injuries were attended and all wounded soldiers ready for evacuation for the next treatment step during the very same day. The majority of the soldiers, who had participated in a battle and had been injured, were in the hospitals of Ceuta or the peninsula the next day or even the same night, most of them already having been operated and with their fractures reduced. For the first time The Spanish Military Health Service used a scientific breakthrough - chloroform anesthesia for surgery. The sanitary units, highly requested, were created. This was the first military campaign in which the soldiers were provided with tents for accommodations and for hospitals and the first campaign in which, embarrassing as it sounds, soldiers´ meals were including meat. Discussion: We lack points of reference to discuss our results since this campaign has not been treated in depth, as for the Military Health Services. Therefore, we present them in the following pages, expecting possible critics and discrepancies, but also consents. As the only exception, we praise the use of anesthesia for the first time on the battlefield. Conclusions: for The Military Health, the campaign of 1859-1860 represented: 1o. Use of the anesthesia for the first time in campaign. 2o. Records of the name, grade and destination of every participating military physician and of all causalities. 3o. before and an after in regards to campaign. 4o. A beginning of health doctrine as we know it. 5o Creation of the first medical units. 6o. Preferred approach practiced by Spanish surgeons is conservative. 7o. There are no uniform criteria in articles of military history on the types of casualties

Palestine: Children Laboring

Palestine: Children Laboring

The Peace Rhetoric of a War President: Barack Obama and the Just War Legacy

Abstract As a rejoinder to Robert Terrill's recent analysis of Barack Obama's 2009 Nobel lecture, this essay more closely examines that address vis-à-vis the historical foundations of just war philosophy. We argue that Obama's lecture rechannels traditional just war thought by diffusing the potential spatiotemporal reach of American military jurisdiction, praising the supposedly post-political decisions of elite individuals and institutions, and offering ever more inclusive definitions of originary hostile acts that demand the “retribution” of just war. We conclude by addressing the irony that, instead of harnessing that historic occasion for the cause of a renewed global peace, President Obama's lecture actually lays the moral foundation for future conflicts.

The Peace Rhetoric of a War President: Barack Obama and the Just War Legacy

As a rejoinder to Robert Terrill’s recent analysis of Barack Obama’s 2009 Nobel lecture, this essay more closely examines that address vis-à-vis the historical foundations of just war philosophy. We argue that Obama’s lecture rechannels traditional just war thought by diffusing the potential spatiotemporal reach of American military jurisdiction, praising the supposedly post-political decisions of elite individuals and institutions, and offering ever more inclusive definitions of originary hostile acts that demand the “retribution” of just war. We conclude by addressing the irony that, instead of harnessing that historic occasion for the cause of a renewed global peace, President Obama’s lecture actually lays the moral foundation for future conflicts.

Federalism and the Military Power of the United States

In contemporary debates about military power, the unquestioned assumption is that the federal government is supreme and the states are essentially irrelevant. This paper challenges that assumption. It argues that the Framers carefully divided the military power between the federal and state governments to provide a reciprocal system of checks on both federal and state-based oppression. These checks have been compromised by the acceptance of conscription into the national army, the creation of the U.S. Army Reserve, and dual enlistment of National Guard officers and soldiers — all of which have enhanced the federal military power beyond its original constitutional limits. Finally, the paper describes how the original framework of military federalism nonetheless remains relevant for contemporary debates, including over the Constitution’s division of war powers between the President and Congress, where a greater congressional role may be a legitimate compensating adjustment for the abolition of the originally contemplated vertical checks; the constitutional limits of military criminal jurisdiction; and occasional proposals to reinstate the draft.

Fair and Impartial? Military Jurisdiction and the Decision to Seek the Death Penalty

This paper argues that the military does not exercise jurisdiction in a fair and impartial manner over capital offenses not directly connected to the role of the armed services. The aim of this paper is to promote advocacy for the removal from the military’s jurisdiction of capital offenses not directly connected to the military.

Constitutional Courts as Mediators: Generals, Judges, and Democracy in Latin America

The legacy of military interventions and authoritarism in Latin America has produced the unstable democracies that characterize the region. A distinctive feature of this legacy is the prevalence of uncertainty surrounding civil-military relations. Specifically, civilian and military leaders are uncertain about the appropriate degree of autonomy for the military under a democratic regime. Moreover, civilian governments are unsure about the military’s willingness to build and sustain the democratic regime, and the armed forces doubt to what extent civilian leaders are willing to build a strong army respecting its institutional sprit de corps. This paper argues that unbiased, accesible, and powerful constitutional courts can credibly provide relevant information to reduce the uncertainty sorrounding civil-military relations, thus promoting cooperation between them. When these conditions are not met, it is more likely that constitutional courts update or even expand an old jurisprudence of lack of accountability of the military. The argument is illustrated in the case of constitutional jurisprudence on the scope of military jurisdiction in Colombia from 1958 to 2010.

Unconstitutionality of Article 57, Section II, Paragraph a) of the Code of Military Justice and Legitimation of the Injured Party and His Family to Present an Appeal for the Protection of Constitutional Rights

On August 21, 2012, the Mexican Supreme Court declared unconstitutional Article 57 of the Mexican Code of Military Justice (CMJ) and in doing so complied with several judgments of the Inter-American Court of Human Rights (I/A Court). From the point of view of Mexican law, the Supreme Court’s decision means that civilians who have suffered from the unconstitutional expansion of military jurisdiction in Mexico are, for the first time, protected by the federal judiciary. More significant from the perspective of international law, the decision to bring Mexican law into compliance with the judgments of the I/A Court reflects growing acceptance of that Court’s judgments, and international human rights law, by the states parties to the American Convention on Human Rights (American Convention), as well as the general decline of military jurisdiction and impunity in the region.

Transitional Justice, Democratization and the Politics of the Death Penalty in Argentina

This chapter locates the abolition of the death penalty in Argentina in the context of the country’s processes of transitional justice over the course of the last three decades. Following the transition to democratic government in 1983, the abolition of the death penalty took place during two different stages and in two connected but distinct political contexts. First, in the immediate aftermath of the democratic transition the death penalty was abolished for ordinary crimes as part of a broader set of institutional and legal reforms. Second, in 2008 the death penalty was fully abolished for all crimes for members of the armed forces in both peacetime and in war. The abolition was again part of a broader set of reforms of military jurisdiction that constituted the culmination of a drawn-out and contentious process since the early transitional period of imposing civilian control over the military in Argentina. In the case of Argentina therefore, the abolition of the death penalty took place over an extended period of time and was not the result of an explicit and sustained abolitionist government policy since the transition to democracy. Yet, as this chapter demonstrates the prolonged process of abolition of the death penalty for all crimes and in all circumstances in Argentina was deeply embedded in broader political dynamics of transitional justice and institutional reforms. The abolition of the death penalty in the immediate transition to democracy was intended to signal the commitment of the new civilian government to a break with the repressive laws and practices of previous political regimes. The reform of the military jurisdiction that brought about the full abolition of the death penalty in Argentina was a result of protracted efforts to strengthen civilian control over the military.This chapter is divided into three main parts. The first outlines the historical context of the death penalty in Argentina. The death penalty has been in force periodically in Argentina since independence, though applied very infrequently, and it has been legally abolished during prolonged periods. The second part examines the transitional justice policies adopted and criminal justice reforms implemented during the initial transitional period, including the abolition of the death penalty in 1984 for common crimes. The third part traces, on the one hand, the evolution of transitional justice over time as momentum is lost during the 1990s, and, on the other, more recent developments surrounding the prosecution of individuals for past human rights abuses in Argentine courts. It explicitly links these recent post-transitional justice trends with a detailed analysis of the reform of the military code of justice that eventually led to the abolition of the death penalty in military jurisdiction. The chapter concludes with some brief reflections on the broader socio-political context and its implications for the continuing repressive character of the Argentine criminal justice system and the current status of the death penalty in the country.

Hrvatsko-slovenska granica: pozadina određivanja i mijenjanja granica u Istri s obzirom na suvremene granične probleme

Boundary-making in Istria is an old undertaking. It has actually never ceasesed, not even today. Istrian peninsula has thus undergone substantial boundary shifts during the last couple of centuries (especially after the Venetian demise in 1797). But Istria carries its worldwide fame also due to one of probably the harshest disputes on the post-war European grounds – the Trieste territory dispute. In author's perspective, this dispute is one of the four main corner-stones of the current Slovenian-Croatian boundary dispute. The remaining three include the Kozler's boundary around Dragonja (Rokava) River, the ungraspable notions of Austrian censuses in Istria, and the narratives of partisan settlements on military jurisdiction. However, there are other very important aspects which significantly shaped the development of the dispute, but we will focus at assessing the importance of the aforementioned ones. In this sense, the analysis of the effects of the outcome of the Trieste dispute and its implications to the contemporary interstate dispute is set forth. By unveiling its material and consequently its psychological effects upon the contemporary bilateral relations, its analyses simultaneously reveals backgrounds of never answered question, why Kozler's proposed linguistic boundary around Dragonja (Rokava) River turned out to become a boundary of national character. Though nowadays disputed, there is absolutely no chance for both involved parties to substantially draw away from once decisively drawn line of a layman. Despite the fierce battle of words in Slovenian public media on whether should the interstate boundary be placed on Mirna (Quieto) or Dragonja Rivers, it will be argued here that the actual choice of the Valley of Dragonja as a boundary is by all means Slovenian. The arguments are based on extensive analyses of cartographic materials, relevant literature, documents, and statistical data.

Las Milicias de Aguascalientes

El trabajo historia, en síntesis, el origen de las milicias creados por Antonio Vivanco en la alcaldía mayor Juchipila-Aguascalientes, en 1781, y su evolución hasta convertirse en El regimiento de dragones provinciales de Nueva Galicia, en 1797. También trata la lucha que escenificaron cabildo y estamento militares por la supremacía del poder político. Ambas instituciones se enfrascaron en una tremenda lucha, argumentando el Cabildo autonomía por derecho real, mientras que los militares intentaron en todo momento el fuero militar, que estaba por encima de toda autoridad civil. Estos episodios tuvieron momentos dramáticos, al extremo de que derivaran en sublevación.

Les cours militaires russes : juridictions de droit commun, juridictions spécialisées ou juridictions d’exception ? [Russian Courts-Martial: Courts of General Jurisdiction, Specialised Courts or Extraordinary Courts?

According to the classical concept accepted in procedural doctrine of civil law countries, courts-martial, when they exist, are considered specialised or extraordinary courts, but never courts of general jurisdiction, even the criteria that distinguish specialised and extraordinary courts needs theoretical clarification. Beginning in 1992 the Russian military jurisdiction system, created in Soviet era and evolved from extraordinary to specialised justice, underwent several reforms, which reduced and even eliminated certain aspects of their specialisation. Thus the new law on courts-martial passed in 1999 was the culmination of this process: according to its surprising first Article, courts-martial are no longer considered specialised courts, but courts of general jurisdiction. However, the question arises that if courts-martial are considered courts of general jurisdiction, which is paradoxical enough, why does Russia need to preserve the system of courts-martial, if the latter have lost almost all their particularities? In other words, is there an internal rationale for the reforms of military justice in today’s Russia?

The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization

In Ex parte Milligan, decided a year after the end of the Civil War, the Supreme Court held that the U.S. military had lacked the constitutional authority during the war to try U.S. citizens living in Indiana before a military commission. Milligan is often cited as a rare and admirable instance in which the Supreme Court invalidated Executive action during wartime in order to protect civil liberties, and it is frequently invoked in challenges to government action in the current war on terrorism. The precedential effect of Milligan, however, is far from clear. Part of the uncertainty stems from the decision's apparent inconsistency with widespread military practices during and immediately after the Civil War, including most notably the use of military commissions to try thousands of individuals not formally associated with the Confederate army. Probably because of the particular way in which the government argued the Milligan case - focusing on the bounds of martial law rather than on military jurisdiction over violations of the laws of war - the Court in Milligan did not discuss this widespread military commission practice, and it is unclear to what extent the Court meant to repudiate it. The Supreme Court's subsequent treatments of Milligan only add to the uncertainty about its scope. The Court has construed Milligan as applying only to the military detention and trial of non-belligerents, but neither Milligan nor the subsequent decisions provide a clear line for distinguishing between belligerents and non-belligerents. One possible approach would be to limit military jurisdiction to individuals covered by the international laws of war, but one problem with this approach is that the petitioners in Milligan were in fact charged with and convicted of violating the laws of war. The difficult issues of military jurisdiction that were present during the Civil War turn out to be with us still today.