Military Courts: report
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 realization 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 recognized 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 dedicated her 2013 thematic report to the General Assembly to the issue of military courts. The report considers the question of military justice and its compliance with internationally recognized 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 Special Rapporteur sent a note verbale to Member and Observer States requesting input related to the administration of justice through military tribunals. The questionnaire and responses from States are available below.
Background information on your national legal system, including personal and subject matter jurisdiction of the military justice system
- Does your country have a military justice system? If yes, please provide detailed information on the constitutional or legislative provisions establishing the military justice system.
- Do military courts form part of the judiciary as a specialised branch? Or is the military justice system autonomous from ordinary jurisdiction and/or attached to the executive power?
- Please provide detailed information on the composition of military courts. Are they made up solely of members of armed forces? Is there a legal requirement for military judges to have undergone a formal legal training? Please provide detailed information as to whether other entities of the military justice system, e.g. the prosecutor or the lawyer who defends the accused, are civilian or military.
- Does the military justice system have jurisdiction over military personnel only? Does the law that regulates military jurisdiction in your State consider any civilians as military personnel because of their functions? Or because of their presence on or near military facilities?
- Does the military justice system have jurisdiction to try civilians, other than in the cases provided for in the Geneva Conventions? If so, under what circumstances? Are the rules for exercising jurisdiction different in times of peace and times of war?
- Over what types of crimes does the military justice system have jurisdiction? Is jurisdiction exercised over a military person because of his or her military status, or only in cases where the conduct is considered service-related?
- Does military justice exercise jurisdiction over military personnel if the victim of the crime is a civilian?
- Please provide detailed information on the measures adopted by your country to ensure the independence of military judges, including procedures relating to their selection and appointment, security of tenure, and conditions of service, including performance review and promotion, accountability and professional discipline, and financial compensation.
- Is the prosecutor subject to the regular military chain of command in terms of receiving orders for his or her function, or does the prosecutor have a special status in the legal service of the armed forces that guarantees an independence to bring or not to bring a prosecution according to the interest of justice?
- May the person, be they military or civilian, have a civilian lawyer? When, after the time of arrest, may an accused person have access to his or her lawyer? May an accused invoke a right to remain silent if questioned? Can an accused have his or her lawyer present during questioning?
- What guarantees exist to provide that the decision to open an investigation into a criminal complaint, the investigation of the criminal complaint, and the decision regarding whether to prosecute are truly independent and not linked to the chain of command of the complainant in question?
- If a military or civilian is arrested for a crime that falls under the jurisdiction of the military justice system, would that person have all of the rights set out in article 9 of the International Covenant on Civil and Political Rights (ICCPR)? Would an accused person have all of the rights set out in the ICCPR regarding fair trial?
- In addition to the criminal aspects of military jurisdiction, can the victim of a criminal act bring an action for damages before a military court? Before a civilian court?
- Does an accused person have a right to appeal a verdict of guilt or the sentence imposed by a military court as provided for in the ICCPR? If so, is the court of appeal civilian or military? Is there any civilian judicial oversight of the military justice process (e.g. at the level of the court of appeals, the supreme or highest civilian court of the State)? What is the nature of the review of a verdict and sentence by an appeals court, military or civilian?
Independence of the military justice process and respect for human rights guarantees of the International Covenant on Civil and Political Rights