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Military Jurisdiction and International Law INTERNATIONAL COMMISSION OF JURISTS Military Jurisdiction and International Law International Jurisprudence and Doctrine on Human Rights (Vol.II) Advanced edition (Chapters 1-7) Federico Andreu-Guzman 1 Part I, Military Jurisdiction and International Law - Section II, International Jurisprudence and Doctrine on Human Rights Chapter 1 - The United Nations Treaty Bodies 1- Introduction The International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child do not contain any specific provisions concerning the trial of civilians by military courts. Nevertheless, the Human Rights Committee, the Committee against Torture and the Committee on the Rights of the Child have repeatedly taken the view that civilians should not be tried in military courts. 2. The Human Rights Committee Article 14, paragraph 1, of the International Covenant on Civil and Political Rights states that "[a]ll persons shall be equal before the courts and tribunals [and] [i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". Article 14 also lists the judicial guarantees to which anyone subject to the criminal jurisdiction of a State is entitled. Although the Covenant does not explicitly refer to military courts, article 14 nevertheless constitutes the mainstay of the Human Rights Committee's doctrine on military courts. Human Rights Committee doctrine on the trial of civilians by military courts has developed significantly over the past fifteen years. Traditionally, the Committee did not believe that doing so was incompatible per se with the provisions of the International Covenant on Civil and Political Rights and article 14 in particular. Thus in 1984, in General Comment N° 13, "Equality before the courts and the right to a fair and public hearing by an independent court established by law", the Human Rights Committee had said the following on the subject of article 14 of the Covenant: "The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. [...] In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights. If States parties decide in circumstances of a public emergency as contemplated by article 4 to derogate from normal procedures required under article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions 2 .- Part I, Military Jurisdiction and International Law - Section II, International Jurisprudence and Doctrine on Human Rights in paragraph 1 of article 14".1 However, this position has been abandoned and the Human Rights Committee now takes the view that the practice of trying civilians in military courts is not compatible with obligations under the International Covenant on Civil and Political Rights and, in particular, those arising from article 14. Examination of the periodic reports submitted by the States Parties on their implementation of the Covenant, as well as individual communications, gradually led the Human Rights Committee to change its position. In several of its observations and recommendations to countries, the Human Rights Committee has taken the general view that the jurisdiction of military courts should be confined to strictly military offences committed by military personnel. In its observations to Egypt, the Human Rights Committee believed that "military courts should not have the faculty to try cases which do not refer to offences committed by members of the armed forces in the course of their duties".2 Nine years later, the Committee would reiterate this view, stating that there were no guarantees that Egyptian military courts were independent and their decisions could not be the subject of appeal to a higher court.3 In its concluding observations to the Russian Federation, the Human Rights Committee expressed concern "over the jurisdiction of the military courts in civil cases".4 The Committee also expressed concern "that such a situation may cause miscarriages of justice, particularly in the light of the Government's acknowledgement that the army, even at the highest levels, is not familiar with international human rights law, including the Covenant".5 In its concluding observations to K uwait, the Human Rights Committee expressed concern "about the number of persons still detained under prison sentences handed down in 1991 by the Martial Law Courts in trials which did not meet the minimum standards set by article 14 of the Covenant, in particular the principles of equality before the courts, the impartiality of the tribunal, the presumption of innocence, the right to have adequate time and facilities for the preparation of the defence, and other rights of due process under article 14, paragraphs 3 and 5, of the Covenant".6 The Committee recommended that "[t]he cases of persons still held under sentences [of that kind] should be reviewed by an independent and impartial body, and compensation should be paid pursuant to articles 9, paragraph 5, and 14, paragraph 6, of the Covenant, where appropriate".7 In its concluding observations to Slovakia, the Human Rights Committee expressed 1 Human Rights Committee, General Comment No 13, "Equality before the courts and the right to a fair and public hearing by an independent court established by law" (article 14 of the Covenant), paragraph 4, adopted at the 21s1 session, 1984, in United Nations document H Rl/gen/l/Rev.3, p. 17. 2 United Nations document CCPR/C/79/Add.23, 9 August 1993, paragraph 9. 3 Concluding observations of the Human Rights Committee : Egypt, United Nations document CCPR/CO/76/EGY, 1 November 2002, paragraph 16. 4 Concluding observations of the Human Rights Committee : Russian Federation, United Nations document CCPR/C/79/Add.54, 26 July 1995, paragraph 25. 5 Ibidem. 6 Concluding observations of the Human Rights Committee : Kuwait, United Nations document CCPR/CO/69/KWT, 27July 2000, paragraph 17. 7 Ibid., paragraph 18. 3 Part I, Military Jurisdiction and International Law - Section II, International Jurisprudence and Doctrine on Human Rights concern "that civilians may be tried by military courts in certain cases, including betrayal of State secrets, espionage and State security".8 The Committee therefore recommended "that the Criminal Code be amended so as to prohibit the trial of civilians by military tribunals in any circumstances".9 In its concluding observations to Uzbekistan, the Human Rights Committee noted "with concern that military courts have broad jurisdiction. It is not confined to criminal cases involving members of the armed forces but also covers civil and criminal cases when, in the opinion of the executive, the exceptional circumstances of a particular case do not allow the operation of the courts of general jurisdiction. The Committee notes that the State party has not provided information on the definition of 'exceptional circumstances' and is concerned that these courts have jurisdiction to deal with civil and criminal cases involving non-military persons, in contravention of articles 14 and 26 of the Covenant".10 The Committee urged the Uzbek authorities to "adopt the necessary legislative measures to restrict the jurisdiction of the military courts to trial of members of the military accused of military offences".11 In its concluding observations to Venezuela, the Human Rights Committee expressed concern at the possibility that, under that country's legal system, "civilians may be tried by military courts".12 In its concluding observations to Cameroon, the Human Rights Committee expressed concern about "the jurisdiction of military courts over civilians and about the extension of that jurisdiction to offences which are not per se of a military nature, for example all offences involving fire-arms. The Committee is further concerned about reports whereby a person who was discharged by civilian judicial authorities may be brought before a different tribunal for trial, in contravention of article 14 paragraph 7".13 The Committee urged the State Party to "ensure that the jurisdiction of military tribunals be limited to military offences committed by military personnel. It must also avoid that any person be liable to be tried or punished again for an offence for which he/she has already been finally convicted or acquitted of".14 In its concluding observations to Algeria, the Human Rights Committee expressed
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