Monday, October 26, 2015

Do military courts violate international human rights law?

On November 20, 2014, the Inter-American Court of Human Rights rendered its judgment in the case of Arguelles et al. v. Argentina. (See my previous blog on the Court’s public hearing in this case of May 28, 2014.) Regrettably, due to lack of funds and the lack of any native English- speaking judges on the Court, the Court still has not issued an official English translation of this judgment.

This case is interesting because, for the first time, the Inter-American Court considered a fact situation in which military officers were judged for a crime that was appropriately tried in a military court given the law in Argentina at the time.  The military officials were tried for military fraud in proceedings that they alleged violated their human rights to liberty and a fair trial because they were held in preventive detention for approximately 7-8 years before being tried and they were defended by individuals who had no training in law.  The proceedings began in 1980 (while Argentina was still under military rule) and the plaintiffs (members of the military) alleged violation of their human rights in the judicial proceedings that were conducted before both military and civilian courts.

The Inter-American Court’s jurisprudence has traditionally involved cases where members of the military are judged in military courts instead of civilian courts for human rights crimes.  The Inter-American Court’s constant jurisprudence has repeatedly affirmed that military courts should be limited to dealing with offenses that affect military discipline and military interests and that only civilian courts should try members of the military for human rights crimes.

Consequently, the Arguelles case was the first case to question whether military trials, per se, violated international human rights law.  The judicial proceedings involved members of the military who were being judged for offenses that were appropriately before a military court.  The Commission argued that the special status of military courts was at issue, given their lack of independence and impartiality, and the fact that they did not form part of the Judicial branch of government.  When Argentina returned to democratic rule in 1984, however, a law was adopted whereby members of the military  were able to appeal their convictions to civilian courts.  In this case the plaintiffs appealed to the National Cassation Court and the Argentine Supreme Court, both civilian courts, which prevented the Inter-American Court from finding a violation of the American Convention based on the existence of military courts.  In para. 157 of the judgment the Court noted that the failure of the petitioners to question the independence of the military tribunal (the process of appointment, length of their mandate and the qualifications of the members) before the domestic courts rendered it incapable of issuing a decision on the matter.  The Court did set out, however, what needs to be done in a subsequent case.

The Inter-American Court did find a violation of the right to liberty due to the extensive preventive detention, as well as violation of the presumption of innocence, the right to a fair trial (due to the length of the proceedings) and the right to be assisted by legal counsel of one’s choosing.  Since the defender before the military court was not a lawyer, there is a certain contradiction in the Court’s reasoning (in para. 180 of the judgment) that it was not proven that the legal defense in the military court caused any prejudice to their rights (since they were afforded the obligatory civilian court review), when in para. 157 the Court noted that the petitioners failed to raise certain issues that one would assume would have been raised had they been afforded proper legal counsel.

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