Sunday, October 18, 2015

Old News Department

Global Military Justice Reform began in January 2014, and obviously much happened before then. Once in a while the Editor comes across a pre-GMJR document that seems to have escaped attention. Here's one: Human Rights Watch's July 27, 2011 report, Righting Military Injustice: Addressing Uganda's Unlawful Prosecutions of Civilians in Military Courts. Excerpt (footnotes omitted):
Military courts should ideally serve as a disciplinary mechanism for military personnel, and their jurisdiction should be limited to offenses—provided for in law—committed by military personnel while they are subject to military law.
International legal standards deem the trial of civilians in military courts, in principle, to be incompatible with the right to a fair trial, and in particular the right to be tried before an independent and impartial tribunal. Trials before military courts are often incompatible with international standards due to the lack of independence of judges, who tend to be serving members of the military who remain in the military chain of command, and often offer reduced due process safeguards.

While international law does not prohibit limited use of military courts to try civilians in times of armed conflict, the United Nations Human Rights Committee, the expert body that monitors state compliance with the ICCPR [International Covenant on Civil and Political Rights], has held that “as certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations.”
UN human rights bodies have on numerous occasions studied the challenges that military justice raises, including the problem of trial of civilians before military courts. The “Draft Principles Governing the Administration of Justice Through Military Tribunals,” an expert document submitted to the UN in 2006, provides that “military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.” This principle reflects the practice of UN treaty bodies such as the Human Rights Committee and the Committee Against Torture, which have repeatedly called on states to ensure that military court jurisdiction is restricted to offenses of a strictly military nature committed by military personnel. In May 2011, the Human Rights Committee in a case involving Cameroon, explicitly affirmed that military tribunals should not in principle have jurisdiction to try civilians.

No comments:

Post a Comment

Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).