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| Hon. Gabriela Knaul |
The October 28, 2013 statement of
Gabriela Knaul, UN Special Rapporteur on the Independence of Judges and Lawyers, summarizing
her report on the administration of justice through military tribunals (General Assembly, 68th Sess., 3d Comm., Agenda Item 70(b)), is now available
here. A sample:
One of the most complex aspects of military tribunals relates to their subject-matter jurisdiction, that is, to the types of offences that fall under their jurisdiction.
The jurisprudence of human rights treaty bodies, special procedures mandate holders and regional human rights mechanisms on this issue tend to confine the jurisdiction of military tribunals to purely disciplinary types of military offences, rather than to offences of a criminal nature. However, many military justice systems do not make any distinction between a criminal offence and a breach of discipline. In these systems, which are based on the concept of “service offence”, military tribunals simultaneously exercise judicial functions and disciplinary authority over military personnel.
In my report, I recommend that the ratione materiae jurisdiction of military tribunals be limited to criminal offences of a strictly military nature; in other words, to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command. States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals.
I am of the view that ordinary criminal offences committed by military personnel should be tried in ordinary courts, unless regular courts are unable to exercise jurisdiction owing to the particular circumstances in which the crime was committed (i.e. exclusively in cases of crimes committed outside the territory of the State). Such cases should be expressly provided for by the law.
I fully agree with the statement that ordinary criminal offences committed by members of military forces (in Canada the Canadian Armed Forces) should be tried by civilian tribunals. I also agree that in particular ( I would say exceptional) circumstances, when the offence was committed outside the jurisdiction of the state, military tribunals could try it. In Canadian law civilian tribunals retain jurisdiction over crimes committed abroad, even by members of the Canadian Forces. I can understand, however, that circumstances such as the availability of witnesses may render the trial in Canada difficult. However we have witnessed the holding of many trials in Canada before military tribunals for ordinary criminal law offences committed abroad. This is generally the rule.
ReplyDeleteMilitary trials entail for the accused the loss of fundamental, constitutional, procedural and sentencing rights such as the constitutional right to a trial by a jury for offences punishable by an imprisonment of five years or more. Moreover, under certain conditions, military law in Canada allows for the creation of a criminal record for purely disciplinary offences such as absence without leave, a false statement in respect of prolongation of a leave of absence, being in a state of drunkenness, insubordination, conduct prejudicial to good order and discipline and a conviction for failure to comply with regulations “in respect of payment of the just demands of the person on whom he or any officer or non-commissioned member under his command is or has been billeted or the occupant of premises on which material is or has been accommodated”.
The problem with many of the existing systems of military justice is the confusion of crimes and discipline. In Canada every crime contained in the Criminal Code of Canada or federal statutes becomes a service offence, i.e. a disciplinary offence triable by military courts. I can understand that the military would like to discipline those who breach military discipline. However disciplinary offences need to be related to discipline. Murder, sexual assault and crimes of the like per se have nothing to do with military discipline, except that they evidence a conduct prejudicial to good order and discipline. They should be prosecuted as such before military tribunals if necessary, but the offenders should be tried by civilian courts for their crimes. A conviction by a civilian court would likely entail the dismissal of the convict from the Forces and make the disciplinary hearing unnecessary. If one pushes to its full limit discipline as the justification of the military for the need to prosecute before military tribunals offences of murder, sexual assault and others of the kind, one would have to admit that an ordinary citizen who commits these offences shows a lack of self-discipline and, therefore, should be tried by military tribunals whose role is to enforce discipline! Soon a major reform of these systems.