Trying civiians in military courts -- notes from Pakistan

On November 19, 2023, Islamabad-based columnist Dr. Farrukh Saleem wrote in The News International:

Here’s a partial list of countries that try civilians in military courts: United States, Turkey, India, Egypt, Russia, Columbia, South Korea, Bangladesh, Iran, Israel, Syria, Saudi Arabia, North Korea, China, Myanmar, Afghanistan, Iraq, Libya, Sudan, Yeman, Bahrain, United Arab Emirates, Oman, Qatar, Ukraine, Algeria, Nigeria, Venezuela, Brazil, Mexico, Philippines, Indonesia, Malaysia, Brunei, Singapore, Sri Lanka, Vietnam, Laos, Cambodia, Zimbabwe and Uganda.

In the US, the trial of civilians in military tribunals is regulated by the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ). The US has military commissions designed to try civilians involved in terrorism or violations of the laws of war. Lincoln conspirators, all civilians, were tried by a military commission. President Bush established military commissions through an executive order to try civilians suspected of terrorism-related offenses.

In 2016, Turkish military courts tried civilians, including journalists, academics, and activists. The legal basis for trying civilians in military courts was the ‘Decree Law No 667,’ which granted the military judiciary jurisdiction over civilians accused of crimes related to the coup attempt. This decree, along with subsequent amendments, empowered military courts to hear cases that would typically fall under civilian jurisdiction.

In India, the Armed Forces Special Powers Act (AFSPA) grants special powers to the armed forces allowing for the trial of civilians in military courts. In 1993, the government invoked the Terrorist and Disruptive Activities (Prevention) Act (TADA) to try civilians accused in the 1993 Bombay Bombings Case.

In 2007, some three-dozen civilians, all members of the Muslim Brotherhood, were tried in military courts in Egypt. Three Al Jazeera journalists, who were arrested on charges of spreading false news were also tried in a military court. In 2018, a top auditor, who was arrested on the charge of spreading false news harmful to the military, was tried in a military court. The same year, an Egyptian journalist was tried in a military court for charges that included spreading false news and joining an outlawed group. Civilians in Egypt can be tried in military courts under Law No. 25 of 1966, commonly known as the ‘Law on the Protection of the Armed Forces’.

Russia employs military courts to try civilians under the ‘Federal Law on Countering Terrorism.’ Similarly, Bangladesh utilizes the Bangladesh Army Act for trying civilians in military courts. In Myanmar, the president holds the authority to sanction the trial of civilians in military courts. Bahrain, in 2017, amended its constitution to confer powers upon military courts for the trial of civilians. Singapore has the Internal Security Act (ISA), which allows for the trial of civilians in military courts. In Iran, the ‘Law of the Establishment and Jurisdiction of Revolutionary Courts,’ allows civilians to be tried in military courts.

On October 29, 2023, Dr. Saleem wrote this in another column with a similar title:

. . . Civilian cases have been tried in military courts in Bangladesh, where most cases were noted for their adherence to ‘due process’. Nigeria has used military courts to try civilians. While some trials faced criticism most were considered ‘fair’. Colombia has had civilian cases tried in military courts. A number of these cases came under international scrutiny and were declared ‘fair’.

The Philippines has held civilian trials in military courts. Some cases have been criticized for being ‘unfair’, while a majority have adhered to ‘legal standards’. India has seen civilian trials in military courts, where a large number of cases were considered ‘fair’ and in accordance with ‘legal principles’. Peru held civilian trials in military courts. Some have been criticized, while a large majority have been considered ‘fair’. Sri Lanka has used military courts for civilian cases where a large number of these cases ‘met legal standards’.

Ukraine has utilized military courts for civilian cases. A number of these trials have been recognized for adhering to ‘due process’. Venezuela has tried civilians in military courts, with varying degrees of ‘fairness’, depending on the case and the political context. Indonesia has conducted civilian trials in military courts. In most of these cases, these trials were considered ‘fair and just’. Thailand has used military courts for civilian trials, whereby a large number of these cases were regarded as ‘fair’, particularly during periods of political unrest.

In Britain, as a response to the 2011 England Riots, ‘summary courts’ were established. In the US, ‘summary courts’ were established under the Federal Riots Act. Italy implemented ‘fast-track courts,’ Japan established ‘summary courts,’ and Canada invoked the Emergency Measures Act to create ‘special courts.’ France, under the State of Emergency Act, and Spain, through the Organic Law on Public Security, also instituted ‘special courts’.

Here’s a partial list of countries that have tried civilians in military courts: United States, Egypt, China, Turkey, Algeria, Bahrain, Bangladesh, Myanmar, India, Thailand, South Korea, Philippines, Iran, Syria, Russia, Colombia, Peru, Guatemala, El Salvador, Honduras, Argentina, Chile, Venezuela, Paraguay, Uruguay, Brazil, Mexico, Cuba, Lebanon, Jordan, Iraq, Libya, Tunisia, Morocco, Saudi Arabia and Iran. . . .

 Yesterday, the Editor emailed Dr. Farrukh:

. . . I read with interest two recent articles in which you list a number of countries, including the US, as trying civilians in military courts. I believe that list is misleading in several respects and gives a mistaken impression of the state of human rights law and practice. As I am sure you will agree, for example, a number of the States whose practice you cite -- e.g., Myanmar -- cannot by any stretch of the imagination be called democratic or governed by the Rule of Law.

You wrote that US "summary courts" can try civilians for rioting, and cite the federal riot statute. But that statute does not refer to summary courts or military courts. As for our military commissions, these can try only enemy combatants, and our Supreme Court held in Ex parte Milligan in 1866 that civilians could not be tried by military commission if the civilian courts are open. Our courts-martial can try civilians only in time of a declared war or a "contingency operation" if the accused serves with or accompanies an armed force in the field. The US Supreme Court has not ruled on whether even that highly restricted provision is constitutional.*

In Martin v. United Kingdom, the European Court of Human Rights materially limited the circumstances in which a State can try a civilian in a military court under the European Convention.

Turkey used to try civilians by military courts, but that was disapproved by the European Court in Oçalan v. Turkey. I have read the 2016 Decree-Law to which you have referred; I did not find in it any provision for the military criminal trial of civilians, and no such provision is mentioned in the Venice Commission's report on it, which can be found at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-ad(2016)037-e. A 2008 article indicates that Turkish military courts no longer have jurisdiction over civilians. https://dergipark.org.tr/tr/download/article-file/627016. You refer to further legislation after the 2016 Decree-Law. Can you point me to something specific on this question?

In Uganda, the Constitutional Court has held that the statutory provision conferring court-martial jurisdiction over civilians is unconstitutional. An appeal has been pending before the Supreme Court for a long time.

For its many signatories, the African Charter has been interpreted to forbid any exercise of military jurisdiction over civilians.

The Inter-American Court of Human Rights, which applies to, among other States, Colombia, Mexico, Venezuela and Brazil (each of which you cite), has repeatedly disapproved the use of military courts to try anyone other than serving personnel.

Ukraine does not currently have military courts.

I do not believe India's Armed Forces (Special Powers) Act confers criminal jurisdiction over civilians on that country's military courts.

If I am missing something on this important question, I'll welcome further information.

* My email could also have noted that the US continues to prosecute military retirees in courts-martial on the notion that they remain part of the armed forces. [Footnote added.]

So far, the Editor has not received any response. For readers who are following the current controversy in Pakistan, this Dawn op-ed by Reema Omer of the International Commission of Jurists is a useful antidote to some of the misinformation being tossed about.