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Issues in focus - Military Courts

Introduction

Issues relating to the establishment and functioning of military courts lie at the core of the mandate of the Special Rapporteur on the Independence of Judges and Lawyers. Both the current Special Rapporteur and her predecessor, Mr. Leandro Despouy, have focused considerable attention on the question of the military justice and the establishment of special courts, in particular for the trial of terrorism-related cases, in their reports to the Human Rights Council (A/HRC/20/19; A/HRC/11/41; A/HRC/8/4; E/CN.4/2005/60; E/CN.4/2004/60) and the General Assembly (A/63/271; A/62/207; A/61/384).

These reports show that the establishment and functioning of military courts and special tribunals may pose significant challenges with regard to the full and effective realisation of the fair trial rights and guarantees set out in the International Covenant on Civil and Political Rights and other international and regional human rights instruments. These concerns have also been voiced by several human rights judicial and quasi-judicial mechanisms, as well as by a number of Special Procedures mandate holders.

In a recent resolution on the integrity of the judicial system (A/HRC/RES/19/31), the Human Rights Council called upon States to integrate military courts or special tribunals for trying criminal offenders into the general judicial system, and to ensure that such courts apply internationally recognised fair trial standards. The Council also invited the Special Rapporteur on the Independence of Judges and Lawyers “to take full account of the present resolution in the discharge of her mandate.”

Pursuant to this resolution, the Special Rapporteur decided to dedicate her 2013 thematic report to the General Assembly on the issue of military courts. The purpose the report is to consider the question of military justice and its compliance with internationally recognised fair trial standards. In particular, the report focuses attention on four different issues, namely (1) the independence and impartiality of military courts; (2) the subject-matter jurisdiction of military courts, including the question of investigation and prosecution of allegations of gross human rights violations allegedly perpetrated by military personnel; (3) the personal jurisdiction of military courts, including the question of investigation and prosecution of civilians; and (4) judicial guarantees applicable during proceedings before military courts.

The GA report on military courts is available here...

The Special Rapporteur also sent a note verbale to Member and Observer States requesting responses to a set of questions related to the administration of justice through military tribunals.

State responses to the questionnaire on military courts

Summary table of issues in focus