Democratic countries have to strike the right balance between giving the military enough leeway to successfully accomplish their mission while simultaneously restricting them to the rule of law. In his very convincing and well-crafted book, Julio Ríos-Figueroa rightly argues that finding a solution to this civil–military relations problem is even more important ‘in contemporary democracies with a history of military intervention in politics and where the armed forces’ role is not confined to external defense but rather involves national security’ (p. 4). It is crucial for these countries to harmonise diverging legal preferences regarding internal security missions: are abuses of soldiers to be judged by military or civilian courts? Should international humanitarian law or human rights law be the guiding principle?
Connecting the study of judicial politics and civil–military relations, Ríos-Figueroa sheds light on the conditions under which constitutional courts can play an important role in solving conflicts between governments and armed forces. He argues that by producing ‘informative jurisprudence’ (p. 35), constitutional courts can help clarify uncertainties over possible legal consequences of military actions, the remit of military jurisdiction and the clash between constitutional rights and military principles – all of which are crucial issues in situations where the military is deployed internally. Ideally, ‘mediator-like jurisprudence … is creative, forward looking, nonshaming, and transparent in its argumentation’ (p. 34) and therefore eases tensions between military and government. According to the author's Theory of Constitutional Courts as Mediators, constitutional courts that are highly independent and accessible and have broad powers of judicial review are more likely to become such third-party mediators.
Ríos-Figueroa tests his theory by means of a quantitative and qualitative analysis of constitutional jurisprudence on military autonomy across different periods of time in Colombia, Peru and Mexico. Colombia stands out as only case where the constitutional court has come close to the ideal of a third-party mediator. The author convincingly shows how the new Constitution of 1991 and radical reforms in the justice system have made the Colombian court highly independent and easily accessible to citizens, and have granted it sufficient powers to make its jurisprudence effective. Chapter 3 thus presents the most convincing case study in this book, not least due to the fact that Ríos-Figueroa was able to draw on existing data on ideological diversity of judges, which allowed him to discuss the importance of individual agency. The book's other case studies would certainly have benefited from similar additions to a structuralist argument.
The following chapters provide an overview of how changes in the constitutional framework have affected jurisprudence on military autonomy in Peru and Mexico. While Ríos-Figueroa detects clear improvements in the Peruvian case – where the court has managed to reduce uncertainties and has addressed issues of military autonomy – he identifies a lack of independence as the main reason why the constitutional court is not fulfilling a role as mediator. Development in Mexico is less straightforward, as the Supreme Court merely acted as a ‘representative’ of government for more than half of the twentieth century, when the hegemonic party regime severely restricted judges’ independence. Despite reforms in the 1990s that increased powers of judicial review and made the Supreme Court more independent, its jurisprudence remains negatively affected by low levels of access. The court has fulfilled only the role of ‘arbitrator’ and has not contributed to reducing uncertainties that affect civil–military relations, Ríos-Figueroa finds. The Supreme Court has therefore barely clarified the legal framework for military deployment, which is particularly problematic as the armed forces have become regularly involved in Mexico's internal security crises.
A useful comparative chapter is dedicated to the role of supreme courts in regulating the military's use of force in Colombia, Mexico and Peru. The challenge of leaving the armed forces enough leeway to fulfil their internal role while also limiting them to ‘the bounds of the democratic rule of law’ (p. 151) essentially boils down to questions of when soldiers should be allowed to use lethal force and if or by whom violent deaths caused by troops should be investigated. In line with findings of the case study chapters, Ríos-Figueroa argues that ‘only in Colombia has the constitutional court been involved in regulating the use of lethal force’ (p. 164). Moreover, it has done so in a role as mediator. The court has thus achieved the reconciliation of different legal frameworks for the internal use of military force – international humanitarian law and human rights law – and has established a constant dialogue between the relevant actors (military, government, citizens and victims of military violence).
While being clearly aware of the limitations of his research design, Ríos-Figueroa finally applies his theory to non-Latin American democratic governments that use the military in internal security. Despite lacking the depth of previous chapters, the author makes an intriguing comparison of jurisprudence in Israel, Turkey and Pakistan. He argues that only the Israeli court enjoys sufficient levels of independence, access and judicial review to act in a way that resembles the ideal of mediator. By contrast, the military's political meddling in Turkey and Pakistan restricts courts to roles as mere representatives of the respective regime.
Constitutional Courts as Mediators is an innovative, clearly structured, meticulously researched and accessible book that will be of great interest for students and scholars of judicial politics as well as of civil–military relations. Minor criticism must be made of the relative lack of attention paid to the political motivation and behaviour of judges. Illustrating ways in which their (informal) relationships with decision-makers eventually help build trust between generals and politicians would have surely increased the explanatory power of Ríos-Figueroa's book. It would nonetheless be worthwhile to test his very compelling theory in a larger number of cases and, as the author himself suggests, in other policy areas.
