- Peace keeping — Armed forces — Humanitarian intervention — International criminal courts and tribunals — Armed conflict — Geneva Conventions 1949 — Gross violations
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 Military tribunals have existed in various forms since mankind first formed armies and commanders realized the necessity of exercising discipline over their soldiers. The degree of their compliance with international legal obligations of States has become of increasing relevance because there are currently few more pressing topics in international human rights and international criminal law than the avoidance of impunity, dealing with massive unresolved backlogs of cases in situations of transitional justice, and dealing with the past abuses of military regimes. But it also matters because military justice systems, properly constituted, play a crucial role in the preservation and promotion of the rule of law both domestically and in the context of international peacekeeping and peacemaking operations, and may be anticipated to do so to an even greater extent in the future.
B. Nature and Objectives of Military Tribunals
1. Types of Military Tribunals
2 State practice is heterogeneous as to what actually constitutes a military court, with military tribunals taking various forms in different States. In terms of personal, territorial, temporal, and subject-matter jurisdiction, national legislation regulates military justice systems in a wide variety of ways. The position of military tribunals within State structures and their relationship to the civilian justice system also vary widely. Although there will thus be a wide spectrum of the scope of jurisdiction ratione materiae, ratione personae, ratione loci, and ratione tempore, one distinction common to many military justice systems, particularly those which evolved from the British model, is between jurisdiction by officers in the chain of command to try relatively minor disciplinary-type offences by some form of summary trial or non-judicial procedure, and more formal military courts, more closely akin to civilian courts, which are presided over by a military or civilian judge, have more elaborate procedural and evidentiary rules, and which try more serious offences. In systems that possess some sort of summary trial mechanism, the bulk of minor disciplinary offences are tried therein. In many national systems, an accused person may be offered a choice between summary trial and court martial for certain offences.
3 A further broad distinction may be made between ‘Anglo-American’ systems based on courts martial convened for individual cases, and a ‘European continental’ type of system based on standing courts. Some (mostly European) States such as Belgium, France, and Germany have dispensed with military courts altogether, having military penal cases heard before civilian courts. Some such civilian courts possess some specialized military element or chamber, while others are fully civilian non-specialized courts. Some States also contemplate the creation of military courts only in time of armed conflict. The efficacy of such a system under the stresses of a major armed conflict remains open to question.
2. Purposes of a Military Justice System
The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military (at 293).
5 International humanitarian law requires States with armed forces to possess a disciplinary code and a functional military justice system if the State wishes members of its armed forces to have the benefit of being treated as prisoners of war if they are captured during armed conflicts: it is therefore a quid pro quo for prisoner of war status that individuals are susceptible to being tried and punished under the disciplinary system of their own forces for breaches of international humanitarian law or the laws of armed conflict, and that a superior officer is responsible for those under his or her command (Art 1 Hague Regulations; Art 4 (2) Geneva Convention III; and Art 43 Additional Protocol I).
3. Required Attributes of a Military Court
6 In order to meet the requirements of military justice and discipline of modern, effective armed forces of a democratic State, as well as adhere to international legal principles manifesting fundamental conceptions of fairness and the rule of law, military courts or service tribunals must possess certain functional attributes. How these attributes are manifested in national legislation and practice will have direct implications for the degree of compliance with international legal obligations of the State, and are relevant to the appropriate margin of appreciation that should be accorded States. First, military courts must possess the requisite legal jurisdiction to deal with matters pertaining to the maintenance of discipline and operational effectiveness. This means both that they must be established by law and form part of the regular justice system of the State, and that they must be ascribed sufficiently broad jurisdiction to deal effectively with the various categories of person whose conduct will have an impact on the discipline and operational effectiveness of the armed forces. Second, they must possess an understanding of the necessity for, and role of, discipline in an armed force, and an understanding of the specific requirements of discipline. This has implications for the military character or experience of the judiciary. Next, military courts and tribunals in a modern society must act in a manner that is both fair and perceived to be fair (see also Fair Trial, Right to, International Protection). In addition to legal requirements of fairness, this is very important both for the maintenance of broader societal support for the military justice system, and for maintaining the support of the members of the armed forces themselves, particularly in States with all-volunteer armed forces. A further criterion is that the operation of military justice systems should be compliant with the basic constitutional requisites of the law in that State. Other criteria arise from considerations of practical necessity. Military courts must be able to dispense justice promptly. If the primary raison d’être for military courts is the enforcement of discipline as a requisite of operational effectiveness, then discipline must be enforced proximate in time to the alleged offence. Extensive delays in dealing with offences that have disciplinary implications will result in the rapid erosion of discipline and a consequential negative impact on operational effectiveness of the force. Many States also consider that military courts must also be portable and deployable, both across the national State and abroad, and also sufficiently flexible to be capable of holding trials in operational theatres at all levels in the spectrum of conflict, from peacetime to combat operations (Gibson 1).
7 In the context of international law, this means that such systems should be compliant with the due process requirements and judicial guarantees of Art 14 International Covenant on Civil and Political Rights (ICCPR; International Covenant on Civil and Political Rights ) for those countries that are States Parties to the covenant. International humanitarian law also prescribes certain guarantees concerning the right to a fair trial, due process, and humane treatment of persons subject to military jurisdiction (Art 75 (4) Additional Protocol I; Art 6 (2) Additional Protocol II; Arts 82–108 Geneva Convention III and Arts 64–77 Geneva Convention IV). In respect of civilians in the power of a party to a conflict and who do not take a direct part in hostilities, as well as all persons who are hors de combat, State practice also arguably establishes as a norm of customary international law applicable in both international and non-international armed conflicts that no one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees (Henckaerts and Doswald-Beck 352).
C. Current International Legal Situation
1. Conventional Law
8 Neither the ICCPR nor other United Nations (UN) or regional human rights treaties, contain specific provisions on the subject of military courts; in particular, none of the treaties address the rationale for, or the nature of, military jurisdiction, specifically regulate the administration of justice by military tribunals, or prohibit the trial of civilians by military tribunals. Neither do they provide a definition of what should constitute a military offence, or prescribe what combination of criminal or disciplinary types of offences should fall within military jurisdiction.
9 As courts exercising jurisdiction over criminal offences, and possessed of powers of punishment incorporating true penal consequences, military courts are subject to the judicial guarantees provided for in Art 14 ICCPR for those States that are party to the covenant, in Art 6 European Convention on Human Rights and Fundamental Freedoms (ECHR; European Convention for the Protection of Human Rights and Fundamental Freedoms ) for States which are party to that instrument, or those in any other international treaty to which the State is a party. It should be noted that the rights provided for in Art 14 ICCPR are not amongst those specifically enumerated as non-derogable in Art 4 (2) ICCPR, and thus are notionally susceptible to some derogation ‘in time of public emergency which threatens the life of the nation’, and ‘to the extent strictly required by the exigencies of the situation’.
10 The widespread abuse of human rights by militaries in Latin America has generated a large number of cases in national courts, as well as several important cases in the Inter-American Court of Human Rights (see Durand and Ugarte v Peru [Judgment]; Castillo Petruzzi v Peru [Judgment]; Genie Lacayo v Nicaragua [Judgment]; and Velásquez Rodríguez Case [Judgment]).
11 The jurisprudence of the European Court of Human Rights (ECtHR) has concentrated on issues of the independence and impartiality of the tribunal and guarantees of a fair trial under Art 6 ECHR (amongst others: Engel v the Netherlands; Kalaç v Turkey; Incal v Turkey; Findlay v United Kingdom; Cooper v United Kingdom; and Martin v United Kingdom). The reason for the particularly strong engagement of the ECtHR may be linked to the direct access available to aggrieved individuals under the European system to obtain binding decisions of the court.
12 The African Commission on Human and Peoples’ Rights (African Commission on Human and Peoples’ Rights [ACommHPR]) has examined the question of the trial of civilians by military courts, analysing the practice in light of Arts 7 and 26 African Charter on Human and Peoples’ Rights (‘Banjul Charter’; African Charter on Human and Peoples’ Rights ), which concern the right to a fair trial and the obligation to ensure that courts are independent. Generally speaking, the ACommHPR has taken the view that ‘a military tribunal per se is not offensive to the rights in the Charter nor does it imply an unfair or unjust process … [however] … we make the point that military tribunals must be subject to the same requirements of fairness, openness, and justice, independence and due process as any other process’ (Civil Liberties Organisation v Nigeria [ACommHPR 7 Mai 2001]Comm No 218/98  African Human Rights Law Reports 75, para 44). Elsewhere, it has expressed its opposition to the trial of civilians by military courts (Principle L of Principles and Guidelines on the right to a fair trial and legal assistance in Africa).
D. Particular Legal Issues
13 Assessment of the compliance of military courts in a particular State with the requirements of international law will focus on a number of factors, including: whether they form an integral part of the general judicial system, established by law and compliant with the constitutional requirements of that State, or are brought into being by the executive on an ad hoc or exceptional basis; the guarantee of the right to habeas corpus; the right to be tried by a competent, independent, and impartial tribunal; the full application of the principles of international humanitarian law to the operation of military courts; the compliance of military prisons with international standards and their accessibility to domestic and international inspection bodies; the application of all principles relating to the administration of justice by military tribunals during times of emergency, and that military tribunals should not be substituted for ordinary courts in times of emergency, in derogation from ordinary law; non-imposition of the death penalty for offences committed by persons under the age of 18, pregnant women, or persons suffering from mental or intellectual disabilities; and the public nature of hearings.
2. Jurisdiction of Military Courts to Try Civilians
The provisions of Article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized, civilian or military. The Committee notes the existence, in many countries, of military or special courts which try civilians. While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of Article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in Article 14. Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials (UN HRC ‘General Comment No 32: Right to Equality before Courts and Tribunals and to Fair Trial (Art 14)’ para 22).
15 Given the long history of its abuse in many States, suspicion attends the exercise of jurisdiction by military tribunals over civilians. It would be an overstatement, however, to assert that an international legal norm has crystallized proscribing the exercise of such jurisdiction in all cases. There may remain circumstances in which it is appropriate that military courts should have jurisdiction over civilians, and in which the subject civilians would prefer that this be so. One such case relates to civilian dependants of military members posted abroad who accompany those members to live for a time in the territory of a different State. Such forces stationed on the territory of another State with the consent of that State are usually referred to as ‘visiting forces’ (Military Forces Abroad). The legal status of such civilian dependants will usually be governed by a Status of Forces Agreement (SOFA) between the various States Parties. Such a SOFA will address, amongst other issues, the question of which State would assume primary and secondary jurisdiction in relation to criminal or other offences allegedly committed by the civilian dependants on the territory of the receiving State. It will also commonly permit the sending State to hold military courts on the territory of the receiving State for the purpose of trying offences allegedly committed both by military members and by civilian dependants accompanying the armed forces of the sending State. Further, the existence of such jurisdiction may be required to prevent situations of de facto impunity arising in situations where civilian contractors accompany armed forces on extraterritorial deployments in States with weak or dysfunctional legal systems.
16 In certain circumstances international law may require States to have military tribunals exercise jurisdiction over civilians. The first of these relates to the prisoner of war status determination tribunals required by Art 5 Geneva Convention III. Certain categories of civilians specified in Art 4 (4)–(6) Geneva Convention III (persons who accompany the armed forces without actually being members thereof, members of crews of the merchant marine or of civil aircraft, and inhabitants of a non-occupied territory who on the approach of the enemy spontaneously take up arms to resist invading forces) are, pursuant to Art 5 Geneva Convention III, entitled to have their status determined by a competent tribunal which will almost inevitably be a form of military tribunal. Second, in respect of the duties of an occupying power under Geneva Convention IV, pursuant to Art 66 Geneva Convention IV, in the case of a breach of the penal provisions applying to civilians in the occupied territory promulgated by it by virtue of Art 64 (2) Geneva Convention IV, the occupying power may hand over the accused to its ‘properly constituted, non-political military courts, on condition that the said courts sit in the occupied country’. Third, Art 84 Geneva Convention III provides that a prisoner of war (who, as indicated above, may actually be a civilian) ‘shall be tried only by a military court’, unless the existing laws of the detaining power expressly permit the civil courts to try a member of the armed forces of the detaining power in respect of the particular offence alleged to have been committed by the prisoner of war. The consequence of these provisions of international humanitarian law is that the complete abolition of jurisdiction over civilians by military tribunals would actually be contrary to existing international law.
3. Judicial Guarantees Applicable to Military Personnel Tried in Military Courts
17 The necessity for full judicial guarantees for the trial of civilians is equally applicable to the trial of military personnel in military courts. The key issue in this context will be whether there are sufficient guarantees of the independence and impartiality of the military court. While military courts are sui generis, they must still satisfy these fundamental criteria. This will involve an objective assessment of the three key components of judicial independence: whether military judges are possessed of sufficient security of tenure, financial security, and institutional independence for the administrative functioning of the court, while still retaining their military character (see R v Généreux). The achievement of this requires a careful crafting of the legislative provisions for the selection, appointment, remuneration, and security of tenure of military judges, as well as diligence in safeguarding the legal and practical aspects of their relationship with the military chain of command and the executive branch of government.
4. Scope of Jurisdiction of Military Courts
18 One of the most contentious issues regarding military courts concerns the scope of their jurisdiction in terms of the type of offences that they may try. One view holds that the jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel, and has sought to promote the emergence of an international legal norm to that effect. The contrary view considers that the difficulty with confining the jurisdiction of military courts solely to purely ‘disciplinary’ types of military offences, rather than also including those of a criminal nature, is that a criminal offence committed by a soldier within a military context may be no less a breach of discipline than a purely military offence. The commission of a sexual assault or of a theft from comrades on board a military ship or aircraft or on operations detracts from discipline and operational effectiveness to no less a degree than the classically disciplinary offence of insubordination, as an example, as they have a clear nexus to the maintenance of military discipline. This concern is reflected in the concept found in many military justice systems of a ‘service offence’, which imports that jurisdiction of military courts will be established over not only purely military offences, but also criminal offences that have a disciplinary impact. The degree of nexus or service connection that should be required in this regard is one facet of continuing debate.
5. Trial by Military Courts of Persons Accused of Serious Human Rights Violations
19 One school of thought contends that, in all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary civilian courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances, and torture, and to prosecute and try persons accused of such crimes. The rationale advanced for this position is usually that military justice systems cannot be trusted to try such grave offences properly, and because the commission of such crimes is outside the scope of military duties. The counterargument is that while it is certainly true that the commission of human rights violations would not properly fall within the scope of the duties of military personnel, neither are the commission of such ‘ordinary’ crimes as murder, rape, fraud, or theft properly within the scope of military duties. They are crimes and breaches of discipline. That is why they are offences under military and criminal law, just as participation in extrajudicial executions, enforced disappearances, and torture would be, and they should therefore be susceptible to being tried by a military court as a court of law. This debate engages the fundamental raison d’être of military justice systems articulated previously: the maintenance of discipline. Whatever else they might be, offences involving the gross violation of human rights of other persons are breaches of discipline. There is no legitimate military utility in such actions. Military tribunals can also be effective tools for ending impunity. This principle may come to be of great importance in situations of transitional justice. Not infrequently, militaries may be one of the few institutions in States recovering from protracted periods of conflict possessed of sufficient resources and organizational ability to effectively and expeditiously deal with large numbers of persons accused of serious offences, many of whom may be imprisoned awaiting some sort of trial.
6. International Trends in Military Justice
20 Amongst the broad trends which may be observed in the evolution of military justice systems around the world are the granting of more independence to military judges, the regulation of military justice by standing courts rather than ad hoc tribunals, an increased right to elect between trial by court martial or by summary proceedings, an increase in rights of appeal from summary proceedings, and an increased right to legal representation before military tribunals (Dahl 2008).
21 Military courts undeniably constitute a salient feature of the legal landscape in many States, and will continue to do so. Their ability to fully comply with relevant principles of international human rights law and international humanitarian law will undoubtedly be the subject of continued scrutiny and vigorous debate. While some scepticism is prudent, regard must also be had for the exigencies of current and foreseeable military deployments in support of the principles of the UN and the international community. Humanitarian intervention for the protection of human rights—whether in the guise of peacekeeping, peacemaking, or more robust military humanitarian intervention in extreme situations of humanitarian emergency in failed or failing States—requires professional, effective, and well-disciplined military forces to accomplish, if they are not potentially to do more harm than good. The possession by States of an appropriate military justice system consonant with international legal norms is key to the creation and operation of such forces.
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