The right to challenge detention before a court primarily contemplates recourse to the ordinary civilian courts. If a state chooses to provide military courts with some role in proceedings for challenging deprivation of liberty, it must not displace the existing role of the ordinary civilian courts, and the military courts’ role should be strictly limited to proceedings against members of the military forces charged with breaches of internal rules of military discipline.
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The following key issues concern recourse to military courts and tribunals and are relevant to the question of their potential use to determine the legality of detention:
1. Although the ICCPR does not explicitly prohibit the establishment or use of military courts and tribunals (or special courts or tribunals constituted outside the ordinary court system for particular purposes), the Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers have reaffirmed that human rights standards apply fully to any cases that are disposed of by military or other special courts.
2. Whatever their institutional arrangements, military and special courts must fully adhere with the requirements of independence and impartiality, and fair trial rights must be guaranteed. Military tribunals that are attached to the executive branch rather than forming a part of the ordinary judiciary heighten concerns about lack of independence and impartiality.
3. Military courts that do not use the duly established procedures of the legal process must not be created (or given jurisdiction) to displace the jurisdiction of the ordinary civilian courts.
4. Where recourse to military courts is provided for under national law, such courts should have jurisdiction only over military personnel accused of military offences or breaches of military discipline. A number of instruments and the jurisprudence of international and regional mechanisms demonstrate a trend against extending the criminal jurisdiction of military tribunals over civilians.
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5. In a report focussed on military tribunals, the Special Rapporteur on the independence of judges and lawyers concluded that the trial of civilians by military tribunals should be prohibited, save in strictly exceptional cases concerning civilians assimilated to the military who have allegedly perpetrated a criminal offence outside the territory of the State and where regular courts are unable to undertake the trial.
6. Although the ICCPR does not expressly address the issue, the Human Rights Committee has underscored that the use of military courts to try civilians would be inconsistent with the ICCPR, unless the state could demonstrate in relation to a given individual and situation that recourse to military courts was “unavoidable” – that in the particular circumstances the regular civilian courts were wholly unable to undertake the trials and no other alternative forms of special or high-security civilian courts could do so. The ICJ is not aware of any situation where the Human RightsCommittee found the requirements that it said might hypothetically allow for such an exception, to have been satisfied in practice. [Footnotes omitted.]