UN Special Rapporteur comments on military courts and military justice

Diego García-Sayán

Diego García-Sayán, the new UN Special Rapporteur on the Independence of Judges and Lawyers, submitted a report to the Human Rights Council earlier this summer. Here is what he wrote about military justice:

Military justice and special courts

57. As early as the first report, the Special Rapporteur expressed concerns regarding military courts, revolutionary courts or similar special courts, noting that the criterion of independence was not always assured (see E/CN.4/1995/39, para. 57).

58. The setting up of parallel courts to deal with terrorist-related offences has been mentioned as a matter of concern (see E/CN.4/2003/65, para. 39), since in several circumstances these courts’ composition and procedures are often far from complying with the requirements of article 14 of the International Covenant on Civil and Political Rights (see E/CN.4/2004/60, para. 54). 

59. The successive mandate holders have focused considerable attention on the question of the military justice system and the establishment of special courts, in particular for the trial of terrorism-related cases, in their reports to the Commission on Human Rights and the Human Rights Council (E/CN.4/2004/60, E/CN.4/2005/60, A/HRC/8/4, A/HRC/11/41 and A/HRC/20/19) and the General Assembly (A/61/384, A/62/207, A/63/271, A/68/285 and A/70/263).

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Military courts and the right to a fair trial

100. Military courts tend to be structured within a hierarchical system of command and control. This creates a difficulty in conducting a fair and impartial trial. Military procedures carried out or influenced by corrupt officers create a general distrust in military courts on the part of civilian populations, as stated by [former Judge Advocate General of Norway] Arne Willy Dahl at an expert consultation organized by the Office of the United Nations High Commissioner for Human Rights in 2014 (A/HRC/28/32). Such situations of bias and corruption result in a violation of article 14 of the International Covenant, which stipulates that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

101. The Special Rapporteur calls on States to adopt specific norms that expressly exclude civilians from investigation and prosecution by military tribunals, ensure that their jurisdiction is limited to military offences committed by active members of the military and protect the rights to fair trial and due process.

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112. Issues relating to the establishment and functioning of military courts lie at the core of the mandate of the Special Rapporteur on the independence of judges and lawyers.