Review of codes of military justice

Prof. Emmanuel Decaux

Considering the current reviews of American military justice, it is worth recalling the following from the Draft Principles Governing the Administration of Justice Through Military Tribunals, E/CN.4/2006/58 ("the Decaux Principles"), developed under the auspices of the UN Commission on Human Rights:

Principle No. 20 

Review of codes of military justice 

Codes of military justice should be subject to periodic systematic review, conducted in an independent and transparent manner, so as to ensure that the authority of military tribunals corresponds to strict functional necessity, without encroaching on the jurisdiction that can and should belong to ordinary civil courts. 

64. Since the sole justification for the existence of military tribunals has to do with practical eventualities, such as those related to peacekeeping operations or extraterritorial situations, there is a need to check periodically whether this functional requirement still prevails.

65. Each such review of codes of military justice should be carried out by an independent body, which should recommend legislative reforms designed to limit any unjustified residual authority and thus return, to the greatest extent possible, to the jurisdiction of the civil courts under ordinary law, while seeking to avoid double jeopardy.

66. More generally, this periodic review should ensure that military justice is appropriate and effective in relation to its practical justification. It would also embody the fully democratic nature of an institution that must be accountable for its operations to the authorities and all citizens. In this way, the fundamental discussion concerning the existence of military justice as such can be conducted in a completely transparent way in a democratic society.