Food for thought 05-2021 The Role of Military Courts Across Europe A Comparative Understanding of Military Justice Systems Written by Daniela Cotelea, Alberto Pineda Alcántara, AN EXPERTISE FORUM CONTRIBUTING TO EUROPEAN CONTRIBUTING TO FORUM AN EXPERTISE SINCE 1953 ARMIES INTEROPERABILITY Cristina Tempera, Medeleine Brach, European Army Interoperability Center Cedric Foisseau, Giuseppe A. Ira This paper was drawn up by Daniela Cotelea, Alberto Pineda Alcántara, Cristina Tempera, Medeleine Brach, Cedric Foisseau and Giuseppe A. Ira under the super- vision and guidance of Mr Mario Blokken, Director of the Permanent Secretariat. This Food for Thought paper is a document that gives an initial reflection on the theme. The content is not reflecting the positions of the member states but consists of elements that can initiate and feed the discussions and analyses in the domain of the theme. All our studies are available on www.finabel.org TABLE OF CONTENTS Introduction 3 European armies as supporters of of the Sahel stabilisation 5 TABLE OF CONTENTS France: an unavoidable partner in the Sahel 5 The European Union as a regional stabiliser 8 Introduction 3 MINUSMA and Europe’s strategical implication 10 10 The particularities of Military Courts 3 Deterioration of Sahelian security A) Historic review about the creations of Military Courts 3 and challenges to securitisation 11 B) Distinction between military criminal law and disciplinary law 6 Large-scale guerrilla environment 11 C) An expanding field of competence following the circumstances 8 Exactions against civilians 13 Public denunciation of foreign intervention 14 A significant diversity in Military Courts throughout the EU 10 A) Various models of court jurisdiction and organisation 10 Greater multilateralism and cooperation: B) Stark differences between exclusively military The Coalition for the Sahel 16 and civilian court systems 11 The dawn of a newsecurity framework 16 C) The composition of different court systems in relation The coalition’s four pillars 17 to the assorted levels of appeal 12 The Coalition for The Sahel: a game-changer for the region and stakeholders? 22 The progressive disappearing of Military Courts 13 A) Disappearance of military courts 13 From French-led cooperation to a European joint force: B) Submitting the military justice systems to the case of Task Force Takuba 24 global juridical standards 16 Post-intervention strategy 24 C) The multiplication of recent reforms of the military courts 18 Setting up Task Force Takuba 25 D) A remaining importance of specific jurisdictions in “War times” 19 Geo-strategic implications for European defence 26 Conclusion 21 Concluding remarks 27 Bibliography 22 Bibliography 29 2 INTRODUCTION In the last decades, military justice systems Military justice and civil justice are consid- have been subject to numerous reforms ered two separate systems because they en- in different European states. The push for tail different procedures and different trials. modernisation processes stems from the fact However, in some countries, an overlap be- that military justice in some states needs to tween the two justices can be found, resulting increase its fair trial guarantees within their from either the victim’s identity or even the legal framework. Recently, the existence of location of the offence. many traditional military tribunals has been In addition to the domestic sphere, military put at stake. Many critics consider military justice shall also comply with International justice is being called into question due to Human Rights Law (IHRL). Therefore, the the alleged non-impartiality of military courts European Court of Human Rights (ECtHR) and international law developments. Some jurisprudence and the practice of the United military courts no longer exist on their own, Nations Human Rights Committee (HRC) military judicial competences have been em- will be presented. bedded into or transferred to civilian courts Exploring the nexus between military justice (Andreu-Guzmán, 2004, 161). A few stand- systems and civilian justice systems is para- ing military courts have been abolished, while mount to ensure the rule of law is respected others still exist, albeit their roles and respon- and enforced. By using a comparative trans- sibilities during peacetimes are very modest. versal analysis of military law systems, this pa- Some states, such as Germany and France, per aims to highlight how military justice sys- allow the creation of ad hoc tribunals to face tems in selected European states have evolved, extraordinary situations such as the case of a what their differences and commonalities are, war, and this is provided for by their respec- as well as the challenges they will face in the tive constitutions. future. THE PARTICULARITIES OF MILITARY COURTS A) Historic review about the creations military law systems (Nolte & Krieger, 2003, of Military Courts 23). This study draws inspiration from Prof. Heike Krieger and Prof. Georg Nolte’s anal- As presented in this paper, it is not unprob- ysis of European Military Law Systems to help lematic to declutter and classify the historical us determine the right framework and prop- and political picture which impacted various erly organise their respective commonalities The Role of Military Courts across Europe 3 and differences. Since the late 1990s and early has never embodied an independent political 2000s, many multinational units have been role (ibid.). That is to say that traditionally, created and presented numerous legal hur- these constitutions do not foresee special rules dles when inner disputes arise. This has led to which are thought to guarantee the democrat- inefficiencies and difficulties in their smooth ic legitimacy of the armed forces or a reserved operationalisation. To address these issues, role for the single soldier (ibid.). the German Ministry of Defence entrusted research to the University of Göttingen and 2. Large Traditional Democracies various academics from other European states At first sight, the two large traditional de- aimed at “comparing various European sys- mocracies seem to be very different concern- tems of military law.” (ibid., V) According to ing the historical and political circumstances Nolte, military traditions in Europe can be which have influenced their armed forces divided into three main categories mirroring and their military law system. It is import- their state organisation: small traditional de- ant to acknowledge that France, bound to its mocracies (Belgium, Denmark, Luxembourg, French Revolution, “traditionally conceives and the Netherlands); large traditional de- the armed forces as an emanation of the na- mocracies (France, United Kingdom); and tion, while the United Kingdom, for the most “post-authoritarian” democracies (Germany, part, relied on professional soldiers and not Italy, Poland, Spain). on conscripts” (ibid., 25). France traditionally is a land power in Europe, whereas the Unit- 1. Small Traditional Democracies ed Kingdom is conceived as the classical sea An important commonality can be found in power (ibid.). all four small traditional democracies. Each of Traditionally, in both countries, there are no these systems of government are constitution- legal restrictions for the government, consid- al monarchies with a parliamentary system ering that both states traditionally lack legal whose traditions are rooted in the first half of restraints for the executive regarding the ad- the 19th century (ibid., 23). ministration of the armed forces (ibid.). In The main development which came about France, the role of the parliament is quite re- was that the royal prerogative, which also in- duced and is only in control of the military cluded the military field, was no longer per- budget, whereas the presidential prerogative ceived as a personal prerogative of the mon- in military issues is foreseen by the consti- arch but that it has to be subordinate to the tution since 1958 (ibid.) Conversely, in the agreement of the government (ibid.). Later, at United Kingdom, the parliament has more least until World War II, all these democra- autonomy in military matters and appears cies pursued a policy of neutrality which was to influence and supervise governmental de- then discarded to be compatible with alliance cisions (ibid.). Nevertheless, the prerogative within NATO. In all four countries, the con- which detains the governments in military stitutional loyalty of the armed forces towards questions is acknowledged and unchallenged the nation is implicit and time-honoured and in both states. This determinative role of the 4 executive is probably attributable to the tradi- itarian system (ibid., 27). The communist re- tional leaders of both nations as world powers gime was perceived as a foreign dominion, in with global military significance. fact, this is still a point of public debate how the Polish armed forces would have reacted in 3. Post-authoritarian Democracies the case of Soviet intervention (ibid.). Since The historical and political setting of the 1953, Polish military troops have operated as four post-authoritarian democracies has sub- UN peacekeepers. Consequently, the estab- stantial differences regarding the democratic lishment of the role of the armed forces was accountability of the armed forces and the not a key issue to resolve for the new Polish establishment of a dignified role of the indi- democracy. Furthermore, all the attention was vidual soldier (ibid., 26). To comprehend the given to guaranteeing the neutrality