International human rights law and the administration of justice through military tribunals: preserving utility while precluding impunity.

• Author: Gibson, Michael R.
• Position: Report

Table of Contents 1. Introduction 2. Military Courts 2.1 What constitutes a military court? 2.2 Purposes of a military justice system 2.3 Required attributes of a military court 3. International Human Rights Legal Framework 3.1 Conventional Law 3.2 Jurisprudence 4. The Draft Principles 4.1 Positive developments 4.2 Jurisdiction of military courts to try civilians 4.3 Judicial guarantees applicable to military personnel tried in military courts 4.4 Scope of jurisdiction of military courts 4.5 Trial by military courts of persons accused of serious human rights violations 4.6 Role of victims in proceedings 4.7 Periodic review of codes of military justice 5. Military Commissions 6. Conclusion 1. Introduction

One of the hallmarks of the discussion and practice of international human rights law and of international criminal law in this decade has been a keen desire to preclude impunity for the commission of gross violations of international human rights and breaches of international humanitarian law. (1) This desire underpinned much of the impetus for the creation of the Rome Statute of the International Criminal Court (2) and continues to energize much of the enormous volume of state practice, academic commentary and internal discussion within the Court. A corollary of this desire has been an understandable visceral antipathy on the part of academics and advocates in the field of international human rights (many of whom have witnessed their abuses in Latin America in particular) towards military tribunals. Sometimes, however, even when motivated by the best of intentions, striving to advance the yardsticks of international law can overshoot the mark and produce a real-world effect contrary to that intended.

Animated by a desire to avoid impunity for the commission of gross violations of human rights and for breaches of international humanitarian law, the Special Rapporteur of the United Nations Sub-Commission on the Promotion and Protection of Human Rights, with the support of the Office of the High Commissioner for Human Rights and of the International Commission of Jurists, has produced a set of Draft Principles Governing the Administration of Justice through Military Tribunals, (3) with the intention that it be considered and adopted by the Human Rights Council. (4) More than merely an exercise in international standard-setting, its proponents aspire for the Draft Principles to constitute an important form of 'soft law' which would stand as a bulwark against barbarism and impunity. Significant effort by many eminent international legal scholars has gone into their drafting and refinement. The principles are said to be intended to become a 'minimum system of universally applicable rules' (5) to govern the administration of justice by military tribunals.

And there is the rub. For while the Draft Principles are a commendable effort and may make a significant contribution to informing debate and improving national practice in this important area of law, they remain significantly flawed in several respects. It is the contention of this article that, in an effort to be universal, the Draft Principles seek to capture too broad and varied a spectrum of phenomena and subject them to the same unjustifiably dismissive assessment. In doing so, they distort the reality of many legitimate military justice systems which currently exist and risk demonizing a necessary, valuable and sometimes irreplaceable species of court whose full potential has yet to be realized. It is a truism that in human affairs, 'where one stands depends on where one sits.' Therefore, it is not surprising that the outlook of the Draft Principles document reflects the perspectives arising from the experiences of its primary drafters and proponents, who are predominantly civilian legal academics schooled in civil law traditions. (6) While there are instances of tribunals promoting impunity and perverting military justice, such as Latin American junta-appointed military tribunals, these should not be taken as representative of military courts as a whole. One should not extrapolate from these unfortunate examples a universal proposition that military courts cannot try soldiers and civilians fairly and should be done away with, especially those subject to constitutional restraints and the supervisory jurisdiction of civilian appellate courts as in Canada, the United Kingdom, Australia, New Zealand, and the United States. Moreover, it is important to avoid the risk of creating or perpetuating situations of de facto impunity with respect to certain increasingly important categories of person, such as civilian contractors and other persons accompanying armed forces on international deployments, an outcome which would be perversely contrary to the intent which animates the creation and expression of such principles.

In order to offer a useful critique of the Draft Principles, it will be necessary to first set the frame of reference by examining more broadly the issues of what constitute military courts, what are the legitimate purposes of military justice systems and what attributes need to be possessed by military courts. Further, one needs to examine what principles should guide their operation. In this, particular attention should be paid to the issue of sentencing. It will also be necessary to examine the international legal framework to ascertain what conventional and customary law is applicable. This will be followed by a discussion of the jurisprudence of various courts and human rights treaty bodies concerning military tribunals in respect of international human rights law. In light of these considerations, the intent of this article will then be to examine what principles should guide the exercise of jurisdiction by military tribunals and how these principles interact with the legal framework of international human rights law, particularly concerning the judicial guarantees in article 14 of the International Covenant on Civil and Political Rights. (7)

The conclusions reached in this global analysis will differ significantly from some of those which underpin the Draft Principles as they are currently presented for consideration by the Human Rights Council and will lead to a specific examination of three important areas where the author differs from the conclusions of the Special Rapporteur concerning the human rights dimensions of military justice systems: (a) the question of civilians being tried by military judges, especially contractors and persons accompanying the force on United Nations peacekeeping missions or other extraterritorial deployments; (b) the question of the rights and judicial guarantees afforded to military personnel who are brought to trial in military courts; and (c) the vexed question of military personnel who are alleged to have committed human rights violations being tried by military courts. (8) A number of subsidiary issues will also be briefly examined.

Why does this matter? It matters now in particular because there are currently few more 'hot topics' in international human rights and international criminal law than the avoidance of impunity, dealing with massive unresolved backlogs of cases in situations of transitional justice such as the Democratic Republic of the Congo (DRC) and dealing with the past abuses of military regimes. But it also matters because military justice systems, when properly constituted, play a crucial role in the preservation and promotion of the rule of law, both domestically and in the context of international peacekeeping and peacemaking operations, and may be anticipated to do so to an even greater extent in the future. There is a global outcry calling for increased intervention by the international community in places such as the Darfur region of Sudan, the DRC, as well as in myriad other hotspots. To do so effectively, without adding to the misery of the unfortunate inhabitants of such places who have already been victimized, or suffering humiliating and debilitating harm to their own national reputations and the operational effectiveness of their armed forces, states will require increasingly effective military justice systems both to discipline their own armed forces and to regulate the civilians who accompany them.

2. Military Courts

   2.1. What constitutes a Military Court?

   Before embarking on this analysis, it is necessary for the purposes of the present discussion to specify with some precision what is meant by 'military court'. State practice is heterogeneous as to what actually constitutes a military court, with military tribunals taking various forms in different states. As noted by one prominent commentator,

   Looked at from the point of view of domestic legislation, military jurisdiction as an institution presents a rich and heterogeneous panorama. In terms of personal, territorial, temporal and subject-matter jurisdiction, national legislation regulates military justice in a wide variety of ways. Military jurisdiction varies in terms of functions, composition and operation from one country to another. The position of military courts within the structures of the state and their relationship to the judiciary also vary. (9) Although there will thus be a wide spectrum of the scope of jurisdiction ratione materiae, ratione personae, ratione loci and ratione tempore, one distinction common to many military justice systems, particularly those which evolved from the British model, is between jurisdiction by officers in the chain of command to try relatively minor disciplinary-type offences by some form of summary trial and more formal courts martial (akin to civilian courts), which are presided over by a military judge, have more elaborate procedural and evidentiary rules, and try more serious offences. (10)

   While both summary trials and courts martial are key elements of a fully functional military justice system, for the purposes of the present article, the term 'military court'...