Report available on OHCHR expert consultation on administration of justice through military tribunals

On November 24, 2014, the Office of the High Commissioner for Human Rights convened "an expert consultation for an exchange of views on human rights considerations relating to the issues of administration of justice through military tribunals ands the role of the integral judicial system in combating human right violations." The discussion covered (a) the independence, impartiality and competence of the judiciary, including military courts; (b) the right to a fair trial before courts, including military courts, and other procedural protections; (c) personal jurisdiction of military courts; and (d) subject matter jurisdiction of military courts. A summary of the consultation, dated January 29, 2015, is now available as General Assembly document A/HRC/28/32 on the Human Rights Council's website here. The main observations and recommendations are as follows:

73. The importance of the independence, impartiality and competence of the judiciary in military justice was recognized by all experts and participants. In a number of presentations, it was noted that, in some States, issues of command interference and lack of institutional independence were still a source of concern. In States where these issues were present, appropriate legislative and institutional reform should be undertaken.

74. The experts’ presentations showed that, in some States, there were significant gaps in implementing the right to a fair trial. Questions were raised concerning the practice of summary proceedings for lesser offences, which in some States did not allow for the presence of legal counsel or the right of appeal. States were invited to take appropriate measures to ensure that the right to fair trial in military tribunals was in full conformity with the International Covenant on Civil and Political Rights.

75. Concerning personal jurisdiction of military tribunals, the Human Rights Committee had addressed this subject in its general comment No. 32, in which it stated that civilians should not be subject to the jurisdiction of military courts except in exceptional circumstances. The European Court of Human Rights had taken a similar position. It was also noted that international humanitarian law also provided limited circumstances for the trial of civilians in military courts. In some presentations, it was noted that some States tried civilians accompanying the military on overseas deployments, although it often depended on the specific situation.

76. With regard to subject matter jurisdiction, there was a difference of views among the experts. Some argued that military jurisdiction should be set aside in favour of civilian courts in cases where allegations of serious human rights violations were made against military personnel and that military jurisdiction should be limited to military offences, citing recommendations made by the Human Rights Committee and some special procedures. This view was, however, challenged by others at the expert consultation, who argued that, if a military tribunal was independent, impartial and competent, such crimes could be judged.

77. Given the detailed nature of the subject of military justice, and how human rights concerns could arise relative to many aspects of military jurisdiction, States were invited to request technical assistance and advisory services from OHCHR.