Fair Trial Manual

Amnesty International's Fair Trial Manual (2d ed. 2014) is available here. The following portions (pp. 221-26) (footnotes omitted) bear on military courts:

29.3 SPECIALIZED COURTS

Specialized criminal courts may not be created to try people on the basis of their race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status. Such courts would contravene the principle of equality before the courts and the prohibition of discrimination. (See Chapter 11, Right to equality before the law and courts.)

However, the creation of specialized courts to try certain groups of people may be permissible if justified on objective and reasonable grounds. For example, juvenile courts should be established for criminal proceedings against people who were under 18 at the time of the alleged crime (see Chapter 27). Specialized criminal courts staffed by specially trained prosecutors and judges may be established to try those accused of gender-based violence as a temporary measure to redress the barriers to justice faced by victims of such violence. Military courts should only try members of the armed forces for breaches of military discipline (see 29.4 below). Such courts must be established by law, competent, independent and impartial and must ensure respect for fair trial rights.

29.4 MILITARY COURTS

Military courts have been established in many countries to try military personnel for breaches of military discipline. Worryingly, in some countries their jurisdiction has been extended to try civilians, or to try military personnel for "ordinary criminal offences", human rights violations and crimes under international law. Limitations on the scope of military courts' jurisdiction under human rights law have been developed in view of the true purpose of such courts, the right to a fair trial by a competent, independent and impartial tribunal and the duty of states to ensure accountability and prevent impunity for human rights violations and crimes under international law.

The Inter-American Court has stated: "When a military court takes jurisdiction over a matter that regular courts should hear, the individual's right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated." 

The African Commission concluded that a trial of journalists before a military court violated Article 7(1) of the African Charter and was inconsistent with Principle 5 of the Basic Principles on the Independence of the Judiciary. In addition, the accused were denied access to counsel and the right to be represented by lawyers of their choice.

Fair trial standards must be respected when individuals are tried in military courts. This includes proceedings against members of the military for those breaches of military discipline that, due to the nature of the offence or the seriousness of the potential penalty, are considered as "criminal" offences under international human rights law.

Analysis of whether a criminal proceeding in a military court is fair should include whether: the court's jurisdiction is consistent with domestic law and international standards (see 29.4.2- 29.4.4 below); the tribunal is free from interference by superiors or outside influence; the tribunal has the judicial capacity for the proper administration of justice; the judges are, and are seen to be, competent, independent and impartial; and the accused is afforded at least the minimum guarantees set out in international fair trial standards.

29.4.1 COMPETENCE, INDEPENDENCE AND IMPARTIALITY OF MILITARY COURTS

In assessing the independence of a military court, questions include whether the judges, who are often members of the military, have appropriate training and qualifications in law; whether the procedure for their appointment, their conditions of service and their tenure guarantee their independence; whether, in exercising their duties as judges, they are independent of their superiors; and whether there are any hierarchical links between the prosecution and the judges sitting on a military tribunal.

Military courts, like ordinary courts, must be, and must be seen to be, independent and impartial. (See Chapter 12.)

A number of human rights mechanisms expressed concern about the military commissions established to try people detained by the USA at Guantánamo Bay. Concerns have included: the appointment of the judges by the US Department of Defense and ultimately the President; the power of an appointee of the executive to remove judges from the Commissions; and the determination of conflicts of jurisdiction by an appointee of the executive rather than the judiciary. The Special Rapporteur on extrajudicial executions stated in 2009 that the provisions governing the trials of people detained at Guantánamo Bay constituted a gross infringement on the right to a fair trial and that it would violate international law to execute anyone after such a trial. The UN High Commissioner for Human Rights, among others, called on the USA to ensure that trials of those detained at Guantánamo Bay were heard by regular courts. 

The African Commission found violations of the African Charter in cases from countries including Mauritania, Nigeria and Sudan where civilians and members of the military were convicted by military courts which were not independent or impartial. For example, a military tribunal that tried 26 civilians in Sudan was made up of serving members of the military who were in active service and subject to military regulations. In Nigeria, members of the military and a civilian were tried for alleged involvement in a coup plot before a Special Military Tribunal. It failed the independence test as it was chaired by a member of the military who sat on the Provisional Ruling Council of the country. 

Human rights mechanisms have stated categorically that military courts should not have the authority to impose the death penalty. (See Chapter 28.6.)

29.4.2 TRIALS OF MILITARY PERSONNEL BY MILITARY COURTS

Trials by military courts of serving military personnel for alleged breaches of military discipline are not considered incompatible with international human rights standards as long as the courts are independent and impartial and the alleged breaches are not "ordinary crimes", violations of human rights or crimes under international law. If the offence is "criminal" in nature under human rights law, fair trial rights must be respected.

The jurisdiction of military courts over criminal cases should be limited to trials of military personnel for breaches of military discipline.

The Human Rights Committee, the Committee against Torture, the Inter-American Court, the African Commission, and the Commission on Human Rights have said, in similar language, that the jurisdiction of military courts should be restricted to trials of members of the military for offences against military discipline proscribed by law. 

A number of human rights bodies have called for military personnel charged with ordinary criminal offences to be tried before an ordinary (civilian) rather than a military court.

The Human Rights Committee expressed concern about the absence of fair trial guarantees in proceedings before military courts in the Democratic Republic of the Congo and called on the authorities to abolish the jurisdiction of military courts for ordinary offences.  

The African Commission concluded that the trial by a military court of members of the military and civilians charged with a civilian offence (theft) was a violation of African regional standards and of "good justice". 

The European Convention does not exclude the trial of members of the military by military courts on criminal charges. However, the CoE Guidelines on human rights of members of the armed forces, which largely summarize the European Court's jurisprudence, state that fair trial guarantees apply to all proceedings against members of the military which qualify as criminal under the European Convention, regardless of their classification in domestic law. They emphasize the importance of: the independence of the court at every stage of the proceedings; a clear separation between the prosecuting authorities and the decisionmakers; the right to a public hearing; respect for the rights of the defence; and the right to appeal to an independent, impartial and competent higher tribunal.

29.4.3 TRIALS IN MILITARY COURTS FOR HUMAN RIGHTS VIOLATIONS AND CRIMES UNDER INTERNATIONAL LAW

There is a growing acceptance that military courts should not have jurisdiction to try members of the military and security forces for human rights violations or other crimes under  international law. Because most military courts are composed of members of the military, respect for the right to trial by an independent and impartial tribunal, both in fact and appearance, is threatened.

The Special Rapporteur on extrajudicial executions expressed concern about "trials of members of the security forces before military courts where it is alleged, they evade punishment because of an ill-conceived esprit de corps, which generally results in impunity". He cited countries such as Colombia, Indonesia and Peru as well-known examples. 

The Inter-American Court clarified that military courts cannot have jurisdiction over cases concerning human rights violations against civilians. 

The Human Rights Committee and the Committee against Torture called on countries including Lebanon, Brazil, Mexico and Colombia to transfer competence from military courts to ordinary (civilian) courts in all cases concerning the violation of human rights by members of the military, including military police.

International standards prohibit trials in military or special courts of members of the security forces or other officials accused of participating in enforced disappearances.

The Committee against Torture and the Special Rapporteur on torture have clarified that individuals accused of torture should not be tried before military courts.

Amnesty International calls for trials of human rights violations and crimes under international law to take place before civilian - not military - courts, given concerns about lack of independence and impartiality of military courts and concerns about impunity.

29.4.4 TRIALS OF CIVILIANS BY MILITARY COURTS

In some countries, military courts have jurisdiction to try civilians charged with committing offences on military property or with crimes against state security.

Updated Impunity Principles, Principle 29 "The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court." 

Declaration on Disappearance, Article 16(2) "They [people alleged to have committed acts of enforced disappearance] shall be ... tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts."

There is growing acceptance that military courts should not have jurisdiction to try civilians, owing to the nature of these courts and because of concerns about their independence and impartiality.

The Principles on Fair Trial in Africa prohibit the use of military courts to try civilians.

The Inter-American Court has declared that military jurisdiction should be limited to trying military personnel for offences which, by their nature, are damaging to the military system and that civilians should in no circumstances be tried before military courts. The Court has also clarified that retired members of the military should be considered civilians and should be tried for criminal offences by civilian rather than military courts.

Furthermore, the Draft Principles Governing the Administration of Justice through Military Tribunals set out the principle that military courts should have no jurisdiction to try civilians.

While the Human Rights Committee and the European Court have not yet held that trials of civilians before military courts are altogether prohibited, they have said that they should be exceptional and that the courts must be independent, impartial and competent and must respect minimum guarantees of fairness. Furthermore, states permitting such trials must show that they are necessary and justified and that the regular civilian courts are unable to undertake such trials, or that they are authorized by international humanitarian law. The European Court requires justification for the trial of a civilian before a military court in each individual case. It stated that laws allocating certain categories of offence to military courts were not sufficient justification.

Nonetheless, in Concluding Observations, the Human Rights Committee has called on governments in several countries, including for example Slovakia, to prohibit the trials of civilians before military courts. The Committee has also called on Israel to refrain from holding criminal proceedings against Palestinian children in military courts.

Trials of civilians before military courts have raised a number of fair trial issues including: the lack of independence, impartiality and competence of such courts; violations of the right to equality before the courts; and violations of a range of guarantees including the right to counsel of choice and the right to appeal.

For example, examining two sets of criminal proceedings held in military courts, the European Court held that the accused's concerns about the independence and impartiality of the tribunal were objectively justified. In one UK case, the military court comprised two civilians and six serving military officers, one of whom - the senior officer - was the convening officer, with a civilian judge-advocate advising. In the case of an editor tried before a Turkish military court on charges relating to his publication of an article, the European Court noted that the military court was composed only of military officers, and given the charges against him, the individual could legitimately fear that the court would be influenced by partial considerations. 

The Inter-American Court and African Commission have found in numerous cases that trials of civilians in military courts violated fair trial rights.

The Working Group on Arbitrary Detention has called for states in legal transition that permit trials of civilians before military courts to provide a procedure through which civilians are able to challenge the competence of the military court before an independent civilian judicial authority.

(See also Chapter 32.4.1 on fair trial rights under international humanitarian law.)