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MILITARY JUSTICE IN
THE MODERN AGE
Edited by
ALISON DUXBURY
Melbourne Law School, University of Melbourne
MATTHEW GROVES
Faculty of Law, Monash University
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First published 2016
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Library of Congress Cataloguing in Publication data
Military justice in the modern age / edited by Alison Duxbury and Matthew Groves.
pages cm
Includes index.
ISBN 978-1-107-04237-7
1. Courts-martial and courts of inquiry. 2. Military courts. 3. Military law.
I. Duxbury, Alison, 1970–editor. II. Groves, Matthew, editor.
K4754.M555 2016
343′.01–dc23
2015036056
ISBN 978-1-107-04237-7 Hardback
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Trying civilian contractors in military courts: a
necessary evil?
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I Nature of the problem
Many states have established military courts to deal with offences com-
mitted by members of the armed forces. The allocation of jurisdiction
between such courts and ordinary civilian courts can be a precarious
constitutional law exercise as the reason for creating military courts has
often been the desire to place a premium on military expediency at the
expense of fair trial rights. Particularly problematic has been the choice
made by some states to subject civilians under some circumstances to the
jurisdiction of military courts.
During the last half a century, international human rights bodies have
been critical of military justice systems, leading many states to a process
of civilianisation. Some states have abolished military courts altogether.
Others have retained separate military justice systems but introduced
civilian elements, by appointing civilian judges or judge advocates, sub-
ordinating the prosecution service to civilian authorities, and creating
avenues of appeal to ordinary civilian courts. Some states have limited the
jurisdiction of military courts to purely disciplinary or duty-related
offences. This process has also entailed placing restraints on the exercise
of military jurisdiction over civilians. This trend has, however, been less
pronounced with respect to a particular group of civilians, namely those
deploying with or accompanying the armed forces overseas (associated
civilians). Some states have in fact sought to expand the competence of
their military justice systems to deal with associated civilians.
While the issue of subjecting associated civilians to military justice is
not new to military law, it has attracted special attention twice in modern
history. The first occasion was in the aftermath of World War II when the
Allied forces became quasi-permanently stationed abroad, accompanied
by their family members. Some states enacted legislation to bring these
81
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dependants within the jurisdictional reach of their military courts
because that was seen as preferable to trials in local courts. The increased
use of private military contractors by NATO countries in the Yugoslavian
conflict, and more recently by members of the ‘coalitions of the willing’in
Iraq and Afghanistan, has led to the re-emergence of this problem in
another guise. Sometimes fuelled by the impotence of civilian law enfor-
cement authorities to deal with serious crimes committed by contractor
personnel on military operations, legislators have sought to extend,
reiterate or consolidate the jurisdiction of military courts. In some states,
notably the United States, the possibility of trying civilians in military
courts has led to constitutional challenges. Such trials also raise issues
under international human rights law.
Although the criticisms levelled against military justice systems con-
cerning fair trial guarantees when dealing with military personnel also
apply in relation to any potential civilian defendant, there are additional
concerns. This chapter examines these concerns in the context of several
international human rights treaty regimes. The chapter begins by provid-
ing a sampling of national arrangements subjecting associated civilians to
military justice systems and considers the UN Draft Principles Governing
the Administration of Justice. The chapter argues that international
human rights law does not prohibit the trial of civilians in military
tribunals but it restricts the circumstances in which such trials can
occur and establishes the principles by which they may operate.
II Application of military law to associated civilians
Arrangements subjecting associated civilians to military law appear to be
more usual in common law countries. They can be traced back to a
common ancestor in the mid-eighteenth century English Articles of
War
1
and they have survived partly because common law countries
generally exercise very limited extraterritorial jurisdiction over their
nationals. That said, military jurisdiction over associated civilians is not
unknown in continental legal systems: in France, for example, ‘members
of the armed forces and persons who follow them on the basis of author-
isation’have been subject to military justice.
2
The following analysis
1
Articles of War 1747 (England), s. XIV, cited in Frederick Bernays Wiener, Civilians under
Military Justice: The British Practice since 1689, Especially in North America (Chicago, IL,
University of Chicago Press, 1967), p. 22.
2
Code de Justice Militaire (Noveau) [(New) Code of Military Justice] 8 July 1965 (France)
art. 121–1.
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examines the situation in three common law countries –the United States,
the United Kingdom and Australia. These examples illustrate well the
slight differences in the way in which military jurisdiction over civilians
can be established even among states that have a similar legal tradition and
common roots of military justice.
A United States
The Uniform Code of Military Justice (UCMJ), which governs all
American military personnel, was amended in 2006
3
so that it applied
‘[i]n time of declared war or a contingency operation, [to] persons
serving with or accompanying an armed force in the field’.
4
So far, only
one case, United States v. Ali, has made its way through the US military
justice system under this provision. In 2008, a military judge convicted
Mr Alaa ‘Alex’Mohammad Ali, a contractor to the US Army, of stabbing
a colleague in Iraq. The US Army Court of Criminal Appeals and the US
Court of Appeals for the Armed Forces upheld the conviction.
5
The central constitutional problem in such cases is that the Sixth
Amendment to the US Constitution guarantees a right to trial by a jury
of peers.
6
In the military justice system, cases of similar gravity are tried
by a court martial, with a military judge sitting alone or with a panel made
up of service members, rather than a traditional jury. While the
Constitution allows a trial without a jury in ‘cases arising in the land or
naval forces’,
7
the Supreme Court had previously held that cases con-
cerning associated civilians do not arise in the forces, and these civilians
cannot be denied a jury trial on that basis.
8
However, the Supreme Court
3
John Warner National Defense Authorization Act for Fiscal Year 2007, 17 October 2006
(US), Pub. L. 109–364, 120 Stat. 2083, s. 552.
4
Uniform Code of Military Justice, 10 USC §§ 801–946, art. 2(a)(10) (2010).
5
United States v. Ali 70 MJ 514 (Army Court of Criminal Appeals, 2011); United States v. Ali
71 MJ 256 (Court of Appeals for the Armed Forces, 2012).
6
United States Constitution amend VI art. III, § 2.
7
Ibid., amend VIII.
8
Reid v. Covert 354 US 1 (1960) (the wives of two service members convicted at court
martial of killing their husbands, stationed respectively in England and Japan); Kinsella v.
Singleton 361 US 234 (1960) (soldier’s wife stationed in peacetime Germany charged with
involuntary manslaughter in consequence of the death of one of her children); Grisham v.
Hagan 361 US 278 (1960) (army civilian employee attached to an army base in peacetime
France prosecuted for premeditated murder but found guilty of the lesser included offence
of unpremeditated murder); McElroy v. US ex rel. Guagliardo 361 US 281 (1960) (civilian
employee of the Air Force, performing the duties of an electrical lineman, convicted by
court martial at the Nouasseur Air Depot near Casablanca, Morocco, of larceny and
conspiracy to commit larceny from the Depot).
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had also accepted the possibility of trying by court martial civilians who
in time of war accompany the forces in the field.
9
That left an uncertainty
as to whether a ‘contingency operation’mentioned in the current text of
the UCMJ would satisfy this test.
In United States v. Ali, the US Court of Appeals for the Armed Forces
held that the Fifth and Sixth Amendments of the Constitution were
inapplicable to Ali, a non-citizen tried outside the United States, and
that whatever rights he had were met through the court-martial pro-
cess.
10
In May 2013, the US Supreme Court denied review.
11
That means
civilian non-citizens can be constitutionally subjected to trial by courts
martial overseas under the UCMJ.
B United Kingdom
In the United Kingdom, the Armed Forces Act 2006 (UK) (which entered
into force in 2009) applies to several categories of civilians who serve with
or accompany Her Majesty’s forces abroad.
12
A similar arrangement
existed under the three service discipline Acts that were adopted in the
1950s.
13
Additionally, the Armed Forces Act 2006 (UK) empowers cer-
tain military commanders under specific circumstances to make persons
identified by name or by description subject to the Act.
14
In the process
leading to the adoption of the Act, this section was viewed as a useful
device for dealing with contractor personnel.
Approximately two to three civilians are prosecuted every year in the
UK court martial system.
15
Toputthisinperspective,thetotalnumber
of court martial trials in the UK is just under 500 per year.
16
The cases
with civilian defendants tend to fall into two categories.
17
The first
involves offences that have become time-barred in the country where
9
Reid v. Covert 354 US 1 (1960) (Black J): ‘Article 2(10) of the UCMJ ... provides that in time
of war persons serving with or accompanying the armed forces in the field are subject to
court-martial and military law. We believe that Art. 2(10) sets forth the maximum historically
recognized extent of military jurisdiction over civilians under the concept of “in the field”.’
10
71 MJ 256 (Court of Appeals for the Armed Forces, 2012) at 268.
11
United States v. Ali 569 US __ (US Supreme Court, 13 May 2013).
12
Armed Forces Act 2006 (UK) c. 52, sch. 15, ss. 1–6, 8–10.
13
Army Act 1955 (UK) c. 18, s. 209; Air Force Act 1955 (UK) c. 19, s. 209; Naval Discipline
Act 1957 (UK) c. 53, ss. 117–18.
14
Armed Forces Act 2006 (UK) sch. 15, s. 7.
15
Personal communications from Judge Hunter, the Vice-Judge Advocate General, to the
author (23 April 2012 and 11 December 2015).
16
Service Prosecuting Authority, Annual Report 2014/2015 (2015), p. 13.
17
This information derives from personal communication from Judge Hunter, above n. 15.
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they were committed and in practice mostly involve allegations of rape
or sexual offences against children. The second category comprises
matters that could be tried by a court in the country where the offence
was committed but where it is considered more practical and sensible,
for example for language reasons, to try them in a British court.
The most notable trial of an associated civilian by court martial in
recent history was Rv. Martin.
18
Mr Alan Martin, the son of a British
service member stationed in Germany, was suspected of having mur-
dered a young woman working for the British Forces in Germany.
Germany waived jurisdiction and Mr Martin was convicted by a court
martial in May 1995. This case led to a challenge before the European
Court of Human Rights (ECtHR), ultimately leading to changes in the
composition of courts martial convened to deal with civilians. The court-
martial panel –though not quite a jury, as it may convict by simple
majority –is now made up of civil servants, and the only military
personnel involved in the trial are the court usher and the assistant
prosecutor.
19
A more recent case, Rv. McMahon and Kelly,
20
dealt with contractor
personnel. In August 2007, an incident occurred in a bar within the UK
Contingency Operating Base in Basrah, Iraq.
21
Messrs Sean McMahon
and James Kelly, employees of Turner Facilities Management, a contrac-
tor to the British Army, had to be physically restrained by other patrons
during an argument with the barman and were removed from the bar.
McMahon and Kelly later sought out one of the persons who had
restrained them, another employee of Turner, and brutally attacked
him with a baton and a knife. In October 2010, a court martial convicted
both men of unlawful and malicious wounding with intent to cause
bodily harm, and sentenced them to imprisonment.
C Australia
InAustralia,theDefenceForceDisciplineAct1982(Cth)appliesto
(and the jurisdiction of courts martial covers) service members and
18
[1998] AC 917 (HL).
19
Personal communication from Judge Hunter, above n. 15.
20
(Court Martial, Judge Hunter, 27–30 September, and 1 and 11 October 2010) (copy on file
with the author).
21
Transcript of Proceedings, Rv. McMahon and Kelly (Court Martial, Judge Hunter, 27–30
September, and 1 and 11 October 2010) (copy on file with the author); Ian Key, ‘Court
Martial Jails Two Scots Civilians over Attack in Iraq’The Express, 13 October 2010, p. 27.
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‘defence civilians’. The latter are persons who meet two criteria: first,
they must accompany, by due authorisation, a part of the defence force
outside Australia (or on operations against the enemy in Australia);
second, they must have consented, in writing, to subject themselves to
thedisciplineofthedefenceforce.
22
This mechanism for designating
personsasdefenceciviliansisusedroutinely.
23
Australian military
lawyers particularly like to mention a concert that was held in
December 1999 for Australian forces deployed to East Timor as part
of the INTERFET peacekeeping operation. The artists were made ‘defence
civilians’while in East Timor. Technicians from Telstra, a large Australian
telecommunications and media company, were also designated as defence
civilians on the same operation. Although a number of people have been
made defence civilians, none appears to have been prosecuted under the
Defence Force Discipline Act 1982 (Cth).
24
III Draft Principles Governing the Administration of Justice
through Military Tribunals
The question of whether military tribunals should have any jurisdiction
over civilians has been on the agenda of the UN Sub-Commission on the
Promotion and Protection of Human Rights for many years. In 2005, a
special rapporteur, Professor Emmanuel Decaux of the University
Pantheon-Assas Paris II, submitted his report on the matter to the Sub-
Commission.
25
At the core of this report were a set of Draft Principles
Governing the Administration of Justice through Military Tribunals.
Draft Principle 5 suggests 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.
22
Defence Force Discipline Act 1982 (Cth) s. 3(1) (definition of ‘defence civilian’).
23
Conversation of the author with Australian Department of Defence lawyers, 28 August,
13 September and 3 November 2011.”
24
MAJGEN Ian Westwood, Chief Judge Advocate of Australia, could not recall any trials of
defence civilians under the Act: personal communication to the author (9 December
2015).
25
Emmanuel Decaux, Special Rapporteur, ‘Issue of the Administration of Justice through
Military Tribunals’57th Sess, UN Doc. E/CN.4/Sub.2/2005/9 (16 June 2005); Emmanuel
Decaux, Special Rapporteur, ‘Issue of the Administration of Justice through Military
Tribunals’, 62nd Sess, UN Doc. E/CN.4/2006/58 (13 January 2006).
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Unless the words ‘in principle’can be read as a qualifier, this statement
does not accurately reflect international law.
26
The special rapporteur’s
commentary on Draft Principle 5 refers to the practice of the UN Human
Rights Committee, and notes that ‘[m]any thematic or country rappor-
teurs have also taken a very strong position in favour of military tribu-
nals’lack of authority to try civilians’.
27
The special rapporteur claims
that the jurisprudence of the European Court of Human Rights and the
Inter-American Court and Commission of Human Rights is ‘unanimous
on this point’.
28
However, the practice reveals no unanimity between
human rights bodies on a general principle that military tribunals are
absolutely precluded from exercising jurisdiction over civilians.
IV Human rights treaty regimes
Different human rights treaty bodies
29
hold divergent views on the
compatibility of military trials of civilians with their respective human
rights instruments. While there is a degree of convergence between the
practice of these bodies, particularly over the last decade, the different
rationales relied upon nonetheless create a somewhat disjointed picture.
The relevant conclusions of the treaty bodies are, moreover, intertwined
with their views on military justice more generally, which can make it
difficult to separate the part of the jurisprudence that pertains specifically
to the trial of civilians. In this section, I briefly explain the jurisprudence
of the American, European and UN systems on the human rights issues
involved in conducting trials of civilians before courts that have at least
one military member.
A American Convention on Human Rights
The strongest support for Draft Principle 5 can be found in the Inter-
American system. The Inter-American Court and Commission have
taken an unambiguous position that the trial of civilians by military
26
A number of other Draft Principles are similarly problematic. See Michael R. Gibson,
‘International Human Rights Law and the Administration of Justice through Military
Tribunals: Preserving Utility While Precluding Impunity’(2008) 4 Journal of
International Law & International Relations,p.1.
27
Decaux, above n. 25, at [20].
28
Ibid.
29
I use ‘treaty bodies’as a shorthand for international entities assigned to monitor the
application of particular treaties, including experts’committees and commissions, as well
as courts.
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courts is incompatible with the American Convention on Human
Rights.
30
The nail on which this jurisprudence hangs is art. 8(1) of the
Convention, which provides that:
Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation of a
criminal nature made against him or for the determination of his rights
and obligations of a civil, labor, fiscal, or any other nature.
While this starting point has remained unchanged, the manner in which
trials of civilians by military courts have been said to violate this right has
changed over time,
31
and the views of the Commission and the Court
have become more robust.
In 1982 the Commission recommended that Colombia adopt new
legislation to ‘either eliminate or, if this is not possible, limit military
trials of civilians to crimes that truly affect state security’.
32
In 1985 the
Commission noted somewhat more tersely that in Chile the ‘widespread
and virtually routine intervention of peacetime military courts in the
consideration of a very broad category of acts necessarily constitutes an
abuse of the purposes for which they are envisaged’.
33
In the 1990s, the Commission became more outspoken and secured the
support of the Court. Much of this occurred against the background of the
situation in Peru. In the 1980s and 1990s, the Túpac Amaru Revolutionary
Movement (Movimiento Revolucionario Túpac Amaru, MRTA) carried out
a series of terrorist acts in Peru. In 1992, President Fujimori executed a ‘self-
coup’. Among other things, he issued two decrees, criminalising, respec-
tively, ‘terrorism’and ‘treason’, the latter being a sort of an aggravated form
of terrorism.
34
The offence of ‘treason’fell exclusively within the jurisdic-
tion of military courts. In 1993, the constitution was amended to permit
military trials of civilians for the crimes of terrorism and treason.
35
30
American Convention on Human Rights, San José, 22 November 1969, in force 18 July
1978, 1144 UNTS 123 (ACHR).
31
See Jeanine Bucherer, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein faires
Verfahren gemäß Art. 6 Abs. 1 EMRK, Art. 8 Abs. 1 AMRK und Art. 14 Abs. 1 des UN-
Paktes über bürgerliche und politische Rechte (Berlin, Springer, 2005), pp. 82–91, 115–34.
32
Inter-American Commission of Human Rights, ‘Report on the Situation of Human
Rights in the Republic of Colombia’, OEA/Ser.L/V/II.53 doc. 22 (30 June 1981),
Recommendations, at [7(c)].
33
Inter-American Commission of Human Rights, ‘Report on the Situation of Human
Rights in Chile’, OEA/Ser.L/V/II.66 doc. 17 (9 September 1985), ch. VIII, at [143].
34
Decree Law No. 25,475 (5 May 1992) (terrorism) and Decree Law No. 25,659 (treason).
35
Constitution (Peru, 31 December 1993) art. 173.
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A number of individuals were arrested, detained, tried and punished in
accordance with this legal framework for various degrees of alleged
collaboration with MRTA. This raised several human rights issues
which were extensively litigated in the Inter-American Court and
Commission: the definition of the offences, and particularly the line
between them, was found to be so unclear as to violate the principle of
legality (art. 9); the procedure utilised by the military courts did not live
up to the Convention standards in terms of fair trial guarantees (art. 8);
and the conditions of detention violated the right to humane treatment
(art. 5).
36
Importantly for present purposes, the Commission also expressed its
views as to whether trial by a military court –quite aside from all its
specific procedural shortcomings –was compatible with the Convention.
In 1993, the Commission noted that:
[b]y placing civilians under the jurisdiction of the military courts, [the
Treason Law] is patently contrary to the rights and guarantees protected
under articles 8 [right to fair trial] and 25 [right to judicial protection] of
the American Convention, specifically the right to a hearing by a compe-
tent, independent and impartial tribunal. The military court is a special
and purely functional court designed to maintain discipline in the military
and police and ought therefore to apply exclusively to those forces.
37
The Commission explained further that:
It is the job of the Armed Forces to combat the terrorists by engaging the
irregular armed groups militarily, as is their primary role in the campaign
against subversion. The armed forces, however, overstep their natural role
when they prosecute civilians accused of belonging to subversive groups,
as this function is the proper purview of the judiciary. Furthermore, there
are some serious and legitimate doubts about the impartiality of a military
court in such cases, as the court would be both judge and prosecutor.
38
In its 1998 Annual Report, the Commission reminded all member states
that:
their citizens must be judged pursuant to ordinary law and justice and by
their natural judges. Thus, civilians should not be subject to Military
36
See, in particular, Castillo Petruzzi et al. v. Peru [1999] Inter-Am Court HR (ser C) No. 52;
Cantoral Benavides v. Peru [2000] Inter-Am Court HR (ser C) No. 69; Lori Berenson
Mejía v. Peru [2004] Inter-Am Court HR (ser C) No. 199.
37
Inter-American Commission of Human Rights, ‘Annual Report 1993’, OEA/Ser.L/V/
II.85 doc. 9 rev. (11 February 1994), ch. IV, Peru, s. IV.
38
Ibid.
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Tribunals. Military justice has merely a disciplinary nature and can only
be used to try armed forces personnel in active service for misdemeanors
or offenses pertaining to their function.
39
The Commission took a similar approach when arguing cases before the
Court, suggesting that the trial of civilians by military courts violated the
right to trial by a ‘natural and competent judge’(juez natural y competente)
40
or simply a ‘natural judge’(juez natural).
41
According to the Commission,
this principle ‘means that judicial competence can be neither derogated nor
removed; in other words, absolute adherence to the law is required and
judicial competence may not be arbitrarily altered’.
42
In the Commission’s
view, the term ‘treason’in Peru was used to ‘cloak this arbitrary mutation in
the guise of legality’and to displace the jurisdiction of the ‘natural judge’.
43
In the 2007 case of Loayza Tamayo, the Court did not see the need to engage
with this type of argument, as in that case the military tribunal had, in the
Court’s view, exceeded its competence as a matter of domestic law –acted
formally ultra vires –and was thus manifestly not a ‘competent court’.
44
However, two years later, in Castillo Petruzzi, the Court explicitly picked up
the Commission’s line of reasoning, holding that ‘allowing military courts to
try civilians accused of treason, means that the natural judge is precluded
from hearing these cases’.
45
This approach is not without problems. The concept of a natural judge
is not an invention of the Commission or the Court –it is recognised in
many domestic legal systems.
46
But it seems to have a particularly Ibero-
American pedigree. Indeed, in the (official) English versions of the judg-
ments cited, it gets lost in translation: in its place, one finds the rather
cumbersome phrase ‘competent, independent and impartial tribunal
previously established by law’.
47
Yet the notion of ‘natural judge’seems
39
Inter-American Commission of Human Rights, ‘Annual Report 1998’, OEA/Ser.L/V/
II.102 doc. 6 rev. (16 April 1999), ch. VII, at [1].
40
See the views of the Commission as cited by the Court in Loayza-Tamayo v. Peru [1997]
Inter-Am Court HR (ser C) No. 33 at [37(a)].
41
See the views of the Commission as cited by the Court in Castillo Petruzzi et al. v. Peru
[1999] Inter-Am Court HR (ser C) No. 52 at [125(f)]; Lori Berenson Mejía v. Peru [2004]
Inter-Am Court HR (ser C) No. 199 at [129.1(h)].
42
Cited in Castillo Petruzzi et al. v. Peru [1999] Inter-Am Court HR (ser C) No. 52 at [125(f)].
43
Ibid.
44
Loayza-Tamayo v. Peru [1997] Inter-Am Court HR (ser C) No. 33 at [61].
45
Castillo Petruzzi et al. v. Peru [1999] Inter-Am Court HR (ser C) No. 52 at [128]. See also
Lori Berenson Mejía v. Peru [2004] Inter-Am Court HR (ser C) No. 199 at [141] and
discussion in by Cerna in Chapter 16.
46
Cf. Bucherer above n. 31, pp. 119–20.
47
Castillo Petruzzi et al. v. Peru [1999] Inter-Am Court HR (ser C) No. 52 at [114(c)], [125(c)],
[128], [161].
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to transcend all these requirements: it is not about meeting certain
procedural criteria, or even the benchmarks of independence and impar-
tiality, but implies, for the lack of a better word, ‘appropriateness’.
Unsurprisingly, commentators have questioned whether this concept
can be readily transposed internationally, especially without discussion
as to its meaning.
48
Finally, mention should be made of an obiter dictum in Durand and
Ugarte,
49
a case that dealt with military jurisdiction over common crimes
committed by service members. The Court said:
In a democratic Government of Laws the penal military jurisdiction shall
have a restrictive and exceptional scope and shall lead to the protection of
special juridical interests, related to the functions assigned by law to the
military forces. Consequently, civilians must be excluded from the mili-
tary jurisdiction scope and only the military shall be judged by commis-
sion of crime or offenses that by its own nature attempt against legally
protected interests of military order.
50
Thus, the Court has not only grounded its views regarding the impermis-
sibility of military trials of civilians in the notion of ‘natural judge’but has
also considered such trials to be incompatible with the proper role of the
armed forces in a democratic society.
B International Covenant on Civil and Political Rights
Article 14(1) of the International Covenant on Civil and Political Rights
51
provides that:
All persons shall be equal before the courts and tribunals. In the determi-
nation of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.
In the 1970s and 1980s, in a series of cases against Uruguay, the Human
Rights Committee viewed military trials of civilians through the lens of
the requirements of independence and impartiality.
52
However, in the
48
Cf. Bucherer, above n. 31, pp. 119–20.
49
(2000) Inter-Am Court HR (ser C) No. 68.
50
Durand and Ugarte v. Peru (2000) Inter-Am Court HR (ser C) No. 68, at [117]. See also
Federico Andreu-Guzmán, Military Jurisdiction and International Law: Military Courts
and Gross Human Rights Violations (Geneva, International Commission of Jurists, 2004),
p. 118 et seq.
51
International Covenant on Civil and Political Rights, 16 December 1966, in force 23
March 1976, 999 UNTS 171 (ICCPR).
52
Bucherer, above n. 31, pp. 138–40.
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1982 case of Fals Borda, the Committee refused to find a violation of art.
14 on the basis of the military character of the tribunal alone.
53
The
Committee did not view trials of civilians by a military court to be in
violation of art. 14 as such, but resorted to an assessment of the features of
the particular tribunal.
54
One commentator has speculated that the
Committee’s approach might have been different had it not found a
violation of other provisions of the Covenant –in this instance arts
9(3) and 9(4) on the right to liberty and security of person –as it seems
to be the practice of the Committee ‘not to push’the analysis in cases
where it has found a violation on other grounds.
55
The Committee consolidated its views in General Comment No. 13
where it explained that although ‘the Covenant does not prohibit [mili-
tary or special courts], nevertheless the conditions which it lays down
clearly indicate that the trying of civilians by such courts should be very
exceptional and take place under conditions which genuinely afford the
full guarantees stipulated in article 14’.
56
While the Committee indicated
that military trials of civilians ought to be ‘very exceptional’, the gist of its
position was related to the particular procedural guarantees. A decade
later, in Polay Campos v. Peru, the Committee also turned to indepen-
dence and impartiality of a military court rather than the nature of the
court per se.
57
Similarly, when dealing with the country report of Peru in
1996, the Committee’s main concern was the independence and imparti-
ality of the court.
58
The approach appears to have changed somewhat in the following
year. While considering the report of Lebanon, the Committee noted the
procedural shortcomings of military courts. But its recommendation was
not primarily aimed at procedural improvements; rather it suggested
that:
53
Human Rights Committee, Views: Communication No 46/1978, UN Doc CCPR/C/16/D/
46/1979 (27 July 1982) at [13.3] (Fals Borda et al. v. Colombia)
54
Bucherer, above n. 31, p. 141; Sangeeta Shah, ‘The Human Rights Committee and Military
Trials of Civilians: Madani v Algeria’(2008) 8 Human Rights Law Review, p. 139, at 145.
55
Evelyne Schmid, ‘A Few Comments on a Comment: The UN Human Rights Committee’s
General Comment No. 32 on Article 14 of the ICCPR and the Question of Civilians Tried
by Military Courts’(2010) 14 International Journal of Human Rights, p. 1058, at 1062.
56
Human Rights Committee, General Comment No: 13 Equality before the Courts and the
Right to a Fair and Public Hearing by an Independent Court Established by Law (Article
14) UN Doc. HRI/GEN/1/Rev.9 (13 April 1984) 184 at [4].
57
Human Rights Committee, Views: Communication No 577/1994, 61st sess, UN Doc
CCPR/C/61/D/577/1994 (9 January 1998) (Polay Campos v. Peru).
58
Human Rights Committee, Preliminary Observations: Peru, UN Doc CCPR/C/79/Add.67
(25 July 1996) at [12].
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[t]he State party should review the jurisdiction of the military courts and
transfer the competence of military courts, in all trials concerning civilians
and in all cases concerning the violation of human rights by members of
the military, to the ordinary courts.
59
When considering the situation in other states later that year, the
Committee observed that in Slovenia ‘civilians may be tried by military
courts in certain cases’and, without much further analysis, recom-
mended a change in the law ‘so as to prohibit the trial of civilians by
military tribunals in any circumstances’.
60
In 1999, the wording became
stronger when the Committee observed that ‘the continuing jurisdiction
of Chilean military courts to try civilians does not comply with article 14
of the Covenant’.
61
The Committee also recommended that Poland
amend or repeal legislation which provided military courts jurisdiction
to try civilians, noting that ‘the Committee does not accept that this
practice is justified by the convenience of the military court dealing with
every person who may have taken some part in an offence primarily
committed by a member of the armed forces’.
62
Thus, the Committee
suggested that it was in a position to accept or reject arguments advanced
by states justifying the existence of military jurisdiction over civilians.
The Committee developed that position in further cases. The 2003
case of Kurbanov v. Tajikistan concerned a trial before the Military
Chamber of the Supreme Court of Tajikistan of a civilian for murder.
The Committee considered that ‘[i]n the absence of any information by
the State party to justify a trial before a military court ... the trial and
death sentence against ...a civilian ...did not meet the requirements of
article 14, paragraph 1’.
63
The Committee took a broadly similar
approach in a pair of cases decided in 2007, Madani v.Algeria
64
and
Benhadj v. Algeria.
65
Madani and Benhadj were the leaders of the Islamic
59
Human Rights Committee, Concluding Observations: Lebanon, UN Doc CCPR/C/79/
Add.78 (1 April 1997) at [14].
60
Human Rights Committee, Concluding Observations: Slovakia, UN Doc CCPR/C/79/
Add.79 (4 August 1997) at [20].
61
Human Rights Committee, Concluding Observations: Chile, UN Doc CCPR/C/79/
Add.104 (30 March 1999) at [9].
62
Human Rights Committee, Concluding Observations: Poland, UN Doc. CCPR/C/79/
Add.110 (29 July 1999), [21].
63
Human Rights Committee, Views: Communication No 1096/2002, 79th sess, UN Doc
CCPR/C/79/D/1096/2002 (12 November 2003) (Kurbanov v. Tajikistan) at [2.2]–[2.3].
64
Human Rights Committee, Views: Communication No 1172/2003, 89th sess, UN Doc
CCPR/C/89/D/1172/2003 (21 June 2007) (Madani v. Algeria).
65
Human Rights Committee, Views: Communication No 1173/2003, 90th sess, UN Doc.
CCPR/C/90/D/1173/2003 (20 July 2007) (Benhadj v. Algeria).
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Salvation Front (Front Islamique du Salut, FIS), which in 1991 had
organised demonstrations against the new electoral laws in Algeria
and called for a general strike. Both men were charged with ‘jeopardising
State security and the smooth operation of the national economy’,tried
by a military court, and sentenced to twelve years of ‘rigorous imprison-
ment’.
66
In Madani, the Committee held that
It is incumbent on a State party that does try civilians before military
courts to justify the practice. The Committee considers that the State party
must demonstrate, with regard to the specific class of individuals at issue,
that the regular civilian courts are unable to undertake the trials, that
other alternative forms of special or high-security civilian courts are
inadequate to the task and that recourse to military courts is unavoidable.
The State party must further demonstrate how military courts ensure the
full protection of the rights of the accused pursuant to article 14.
67
The language in Benhadj was almost identical.
68
The Committee appears to have extrapolated from the phrase ‘very
exceptional’contained in General Comment No. 13 an obligation on
the state to prove the necessity of resorting to military courts.
69
Moreover, in Madani and Benhadj, the Committee took the view that
astate’s failure to demonstrate the need to rely on a military court for
the trial of a civilian discloses a violation of article 14, such that the
Committee ‘need not examine whether the military court, as a matter of
fact, afforded the full guarantees of article 14’.
70
Two members of the
Committee disagreed, however, arguing that the Committee had over-
stepped its authority by requiring the state to justify its choice of courts,
and conversely neglected to do what it was supposed to do, namely to
examine on the facts whether the tribunal in question afforded the
guarantees stipulated in art. 14.
71
66
Human Rights Committee, Views: Communication No 1172/2003, 89th sess, UN Doc
CCPR/C/89/D/1172/2003 (21 June 2007) (Madani v. Algeria).
67
Madani v. Algeria, UN Doc CCPR/C/89/D/1172/2003 at [8.7].
68
Benhadj v. Algeria, UN Doc. CCPR/C/90/D/1173/2003 at [8.8].
69
Schmid, above n. 55, at 1063.
70
Madani v. Algeria, UN Doc CCPR/C/89/D/1172/2003 at [8.7]; Benhadj v. Algeria,UN
Doc. CCPR/C/90/D/1173/2003 at [8.8].
71
Madani v. Algeria, UN Doc CCPR/C/89/D/1172/2003, Dissenting Opinion by
Committee Member Mr. Abdelfattah Amor, and Individual Opinion of Committee
Member Mr. Ahmed T. Khalil; Benhadj v. Algeria, UN Doc. CCPR/C/90/D/1173/2003,
Individual Opinion of Committee Member Mr. Abdelfattah Amor, and Individual
Opinion of Committee Member Mr. Ahmed T. Khalil.
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In 2007 the Committee adopted General Comment No. 32, replacing
General Comment No. 13. The trial of civilians in military courts was
reportedly ‘one of the most contentious issues confronted in the negotia-
tion of the [new General Comment]’.
72
In the text of the new document,
the Committee admits that the Covenant ‘does not prohibit the trial of
civilians in military or special courts’, as long as such trials comply with
the fair trial guarantees of the Covenant.
73
Nonetheless, the Committee
‘notes that the trial of civilians in military or special courts may raise
serious problems as far as the equitable, impartial and independent
administration of justice is concerned’.
74
In its subsequent practice, the Committee has not faltered from the
approach developed in Madani and Benhadj.Thus,inAkwanga v.
Cameroon, which concerned the serious mistreatment of a political
activist by the Cameroonian military authorities and his subsequent
trial by a military court, the Committee again found a violation of
article 14 because the state had ‘not shown why recourse to a military
court was required’; an examination of any actual fair trial guarantees
afforded by the court was deemed unnecessary.
75
In this instance,
however, there was some disagreement within the Committee as to
whether there was a need to go further. One member took the view
that ‘the Committee should take steps to correct the notion that military
courts may try civilians; its current position [being] completely out of
step with modern standards of international human rights protection
and with the most enlightened doctrine on the subject’.
76
A group of six
members, for their part, deemed it necessary to reaffirm that ‘military
courts should not in principle have jurisdiction to try civilians’,thus
echoing Draft Principle 5, and that states must explain ‘the compelling
reasons or exceptional circumstances’that force them to depart from
that principle.
77
72
Schmid, above n. 55, at 1058.
73
Human Rights Committee, General Comment No 32 Right to Equality before Courts and
Tribunals and to a Fair Trial (Article 14) UN Doc CCPR/C/GC/32 (23 August 2007) at
[22] (footnotes omitted).
74
Ibid., (footnotes omitted).
75
Human Rights Committee, Views: Communication No 1813/2008, 101st sess, UN Doc
CCPR/C/101/D/1831/2008 (22 March 2011) (Akwanga v. Cameroon) at [7.5]
76
Ibid., Indvidual Opinion of Committee Member Mr. Fabián Omar Salvioli at [9].
77
Ibid., Individual Opinion of Committee Members Ms. Christine Chanet, Mr. Ahmad
Amin Fathalla, Ms. Zonke Zanele Majodina, Ms. Iulia Motoc, Sir Nigel Rodley and Ms.
Margo Waterval.
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C European Convention on Human Rights
In Europe military trials of civilians have been evaluated in the light of
Article 6(1) of the European Convention on Human Rights,
78
which
provides that:
In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established
by law.
The bulk of the relevant case law –with one particularly noteworthy
exception to be discussed below –consists of cases brought against
Turkey. Under the 1982 Constitution, Turkey introduced a system of
National Security Courts to try persons for crimes against the security of
the state and certain other offences. These courts sat as a panel of three
judges, one of them a serving military officer.
In 1994, the Commission noted in Mitap and Müftüoglu v. Turkey that
‘[t]his type of procedure is ... likely to raise questions regarding the
concept of an impartial and independent tribunal within the meaning of
Article 6 of the Convention’.
79
The Court did not, however, pronounce
on this point as it deemed this aspect of the particular application to be
outside its jurisdiction ratione temporis.
80
However, in 1998, the Court freely ventilated its views on the matter.
In Incal v. Turkey,
81
the Grand Chamber examined the status of the sole
military judge and noted a number of constitutional safeguards designed
to secure his or her independence and impartiality.
82
However, it also
noted that (a) the judge remained a member of the armed forces, which in
turn took its orders from the executive; (b) the judge remained subject to
military discipline and assessment reports; (c) decisions pertaining to the
appointment of the judge were to a great extent taken by the executive;
(d) the judge did not have tenure.
83
Assessing, in this light, the position of
the National Security Court as a whole, the Grand Chamber turned its
attention to appearance: whether there was ‘a legitimate reason to fear’
78
Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4
November 1950, in force 3 September 1953, 213 UNTS 222 (ECHR).
79
Mitap and Müftüoglu v. Turkey (European Court of Human Rights, Chamber,
Application No. 15530/89 and 15531/89, 8 December 1994 [1996] II Reports of
Judgments and Decisions 415, at [94].
80
Ibid., at [26].
81
Incal v. Turkey (European Court of Human Rights, Grand Chamber, Application No.
22678/93, 9 June 1998).
82
Ibid., at [67].
83
Ibid., at [68].
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that the court lacked independence or impartiality.
84
In this respect, the
Grand Chamber thought that ‘the standpoint of the accused is important
without being decisive’and ‘[w]hat is decisive is whether his doubts can
be held to be objectively justified’.
85
Applying this test to the particular
case, the Grand Chamber concluded that, because of the participation of
a military judge, ‘the applicant could legitimately fear that ... [the court]
might allow itself to be unduly influenced by considerations which had
nothing to do with the nature of the case’.
86
On that basis the Grand
Chamber held that the applicant had ‘legitimate cause to doubt the
independence and impartiality’of the court, resulting in a violation of
art. 6(1).
87
The logic of Incal is not without difficulties. The Grand Chamber
found a violation of art. 6(1) by 12 votes to 8. The judges in the minority
expressed doubts as to the inferior standing of the military judge as
compared to the civilian counterparts. Moreover, as regards ‘appear-
ances’, they noted that ‘in view of the constitutional safeguards enjoyed
by military judges, doubts about their independence and impartiality
cannot be regarded as objectively justified’.
88
But, for better or for worse, the Court followed the reasons of Incal in a
large number of subsequent cases.
89
And, in the 2005 case of Öcalan –
well known in international law circles for its jurisdictional implications –
the Court found that the replacement of the military judge mid-way
through the proceedings was insufficient to cure the deficiency.
90
84
Ibid., at [71].
85
Ibid.
86
Ibid., at [72].
87
Ibid., at [73].
88
Ibid., Joint Partly Dissenting Opinion of Judges Thór Vilhjálmsson, Gölcüklü, Matscher,
Foighel, Sir John Freeland, Lopes Rocha, Wildhaber and Gotchev.
89
Çiraklar v. Turkey (European Court of Human Rights, Chamber, Application No. 19601/
92, 28 October 1998), at [40]; Gerger v. Turkey (European Court of Human Rights, Grand
Chamber, Application No. 2419/94, 8 July 1999); Sürek and Özdemir v. Turkey (European
Court of Human Rights, Grand Chamber, Application No. 23927/94 and 24277/94, 8 July
1999); Sürek v. Turkey (No. 1) (European Court of Human Rights, Grand Chamber,
Application No. 26682/95, 8 July 1999); Sürek v. Turkey (No. 2) (European Court of
Human Rights, Grand Chamber, Application No. 24122/94, 8 July 1999), Sürek v. Turkey
(No. 3) (European Court of Human Rights, Grand Chamber, Application No. 24735/94, 8
July 1999); Sürek v. Turkey (No. 4) (European Court of Human Rights, Grand Chamber,
Application No. 24762/94, 8 July 1999); Okçuoğlu v. Turkey (European Court of Human
Rights, Grand Chamber, Application No. 24246/94, 8 July 1999); Başkaya and Okçuoğlu
v. Turkey (European Court of Human Rights, Grand Chamber, Application No. 23536/94
and 24408/94, 8 July 1999); Karataşv. Turkey (European Court of Human Rights, Grand
Chamber, Application No. 23168/94, 8 July 1999); Ülger v. Turkey (European Court of
Human Rights, Application No. 57250/00, 29 July 2004).
90
Öcalan v. Turkey (European Court of Human Rights, Grand Chamber, Application No.
46221/99, 12 May 2005) at [117]–[118].
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In the 2006 case of Ergin v. Turkey, concerning the trial of a civilian for
incitement to evade military service before a full-fledged military court,
the Court recalled its earlier case law and noted that the arguments made
in connection with courts having a single military judge applied a fortiori
in case of a court made up entirely of military personnel.
91
Curiously,
however, the Court admitted ‘that it cannot be contended that the
Convention absolutely excludes the jurisdiction of military courts to try
cases in which civilians are implicated’but ‘only in very exceptional
circumstances could the determination of criminal charges against civi-
lians in such courts be held to be compatible with Article 6’.
92
The Court drew support from case law of the Inter-American Court
and the Human Rights Committee, as well as Principle 5 in the Draft
Principles Governing the Administration of Justice through Military
Tribunals.
93
It then made three relevant observations. First, the Court
noted ‘the particular position occupied by the army in the constitutional
order of democratic States, which must be limited to the field of national
security’and that ‘judicial power is in principle an attribute of civil
society’.
94
This is similar to references made by the Inter-American
Court in Durand and Ugarte to ‘a democratic Government of Laws’
and ‘the functions assigned by law to the military forces’.
95
Second, the
Court held that ‘[t]he power of military criminal justice should not
extend to civilians unless there are compelling reasons justifying such a
situation, and if so only on a clear and foreseeable legal basis’and that ‘the
existence of such reasons must be substantiated in each specific case’.
96
This echoes the recent thinking of the Human Rights Committee, as
expressed in General Comment No. 32.
97
Finally, the Court observed that
‘situations in which a military court has jurisdiction to try a civilian for
acts against the armed forces may give rise to reasonable doubts about
such a court’s objective impartiality’in that there may be insufficient
distance between one party to the proceedings and the court itself.
98
The
Court clearly had in mind some kind of a violation of the nemo iudex in
causa sua principle –the armed forces would act, as it were, both as the
91
Ergin v. Turkey (No. 6) (European Court of Human Rights, Application No. 47533/99, 4
May 2006), at [43]–[44].
92
Ibid., at [44].
93
Ibid., at [45] read in conjunction with [20]–[25].
94
Ibid., at [46].
95
Durand and Ugarte v. Peru (2000) Inter-Am Court HR (ser C) No. 68, at [117].
96
Ergin v. Turkey (No. 6) (Application No. 47533/99), at [47].
97
See text accompanying n. 73 above.
98
Ergin v. Turkey (No. 6) (Application No. 47533/99), at [49].
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judge and the prosecutor in a particular case. A similar point was made by
the inter-American Commission in its 1993 Annual Report.
99
Thus, the Court hedged its bets. It no longer relied exclusively on the
‘appearance’of independence and impartiality, but also made use of the
functional and equality of arms arguments found in the case law of the
inter-American system and, like the Human Rights Committee, insisted
on a justification. While a comparative approach is commendable in
principle, the plausibility of the outcome depends on the merits of the
jurisprudence examined by the Court. As has been briefly noted above,
the approaches of the inter-American system and the Human Rights
Committee have problems of their own.
One final case from the European Court of Human Rights, Martin v.
UK,
100
bears mentioning in this context. Indeed it is the only instance, as
far as I am aware, where a human rights treaty body has considered the
position of an ‘associated civilian’, that is, a civilian deployed with or
otherwise accompanying the armed forces abroad. Chronologically,
Martin is also the most recent of the European Court’s judgments
considered here, having been handed down some six months after
Ergin. This case arose from the military trial of the son of a British service
member in Germany. What made the case particularly troubling was that
Mr Martin was seventeen years old at the time and, having been tem-
porarily detained in the United Kingdom, was returned to Germany to
stand trial before a court martial. The Court found a violation of art. 6(1)
of the ECHR as a result of an assessment of the composition, structure
and procedure of the court martial.
101
While the Court had ‘considerable
doubts’as to whether the circumstances ‘were sufficiently “compelling”
to justify the trial of a civilian before a military tribunal’, it did not
pronounce upon the point.
102
D Synthesis
Assessing the compatibility of military trials of associated civilians with
human rights law in the light of the foregoing is a difficult exercise.
Human rights treaty bodies have seldom been faced with that category
of civilians and their approach to civilians more generally has hardly been
uniform.
99
See text accompanying n. 38 above.
100
Martin v. United Kingdom (European Court of Human Rights, Application No. 40426/
98, 24 October 2006).
101
Ibid., at [46]–[54].
102
Ibid., at [45].
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It is clear that a state party to the American Convention is completely
precluded from trying civilians before military courts. As regards states
that have to face the ECtHR and/or the Human Rights Committee, the
situation is somewhat different. Broadly speaking, a two-pronged test has
been established. A military trial of a civilian is only permitted if (a) it is
necessary and justified in the particular case by ‘objective and serious
reasons’(HRCtte) or ‘compelling reasons’(ECtHR) (commentators have
referred to this as the ‘justification test’), and (b) the court and the trial
meet all the fair trial guarantees established by the relevant human rights
treaty (standards test).
103
Moreover, with respect to the justification test,
the burden of proof lies squarely with the state.
The standards test is, of course, beyond reproach as a matter of princi-
ple. It is at the core of the rightto a fair trial as guaranteed by human rights
instruments. In the context of military courts, however, two points are
worth making. First, treaty bodies arguably apply stricter requirements of
independence and impartiality on military courts than civilian courts,
104
whether in the context of trying service members or civilians. For example,
the eight dissenting judges in Incal seemed concerned with the Court’suse
of such standards to discredit the military judge that even the civilian
judges might not necessarily meet.
105
Second, the heavy reliance on mere
appearance and the readiness to see the presence of a military judge,
without further, as a legitimate threat, appears to be grounded more in
preconceived ideas than in an objective assessment. There have been
instances in the practice of the Turkish National Security Court where
the military judge has either joined one of the civilian colleagues to form a
majority in an acquittal, or voted for a more lenient sentence than either of
the civilian colleagues,
106
suggesting that there is little basis for the quasi-
presumption that a military judge is more likely to convict.
The justification test is a far more complicated matter. Eminent scho-
lars have suggested that the determining factor should be the standards
test as ‘there is no reason in principle why, if [sufficient] safeguards are
taken ... a military court ... cannot be an independent and impartial
tribunal’.
107
Others, however, argue that while the clear enunciation of
103
Shah, above n. 54, at 146; Schmid, above n. 55, at 1062.
104
Ann Lyon, ‘Two Swords and Two Standards’(2005) Criminal Law Review, p. 850.
105
Ibid., Joint Partly Dissenting Opinion of Judges Thór Vilhjálmsson, Gölcüklü, Matscher,
Foighel, Sir John Freeland, Lopes Rocha, Wildhaber and Gotchev.
106
Bucherer, above n. 31, pp. 71–72.
107
Peter Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge, Cambridge
University Press, 2006), p. 101.
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the justification test by the Human Rights Committee is a novel devel-
opment, it is one that is in line with its previous practice.
108
The problem is not so much the justification test itself but the failure to
articulate its legal basis. The ECtHR has only fleetingly touched upon a
potential rationale for the test, noting that civilians ‘might find them-
selves in a significantly different position from that of citizens tried by the
ordinary courts’.
109
But the Court has failed to substantiate this argument
by any references to the non-discrimination clause in art. 14 of the
Convention.
The situation with respect to the ICCPR is even more peculiar. Article
14(1) begins with a statement that ‘[a]ll persons shall be equal before the
courts and tribunals’. General Comment No. 32 explains that:
equality before courts and tribunals ...requires that similar cases are dealt
with in similar proceedings. If, for example, exceptional criminal proce-
dures or specially constituted courts or tribunals apply in the determina-
tion of certain categories of cases, objective and reasonable grounds must
be provided to justify the distinction.
110
Yet, the problem of civilians before military courts remains disconnected
from this principle in both the case law and the General Comment. The
few commentators who have critically examined the jurisprudence of the
treaty bodies have also noted the role potentially played by the principle
of equality, and some have scolded the treaty bodies for not being clearer
that their views are partially based on concerns for equal treatment.
111
V Assessment
What then of trials of associated civilians before military courts? Are
there any reasons for such trials that would outweigh the potential
deviation from the principle of equality before courts? There appear to
be a number of practical and policy considerations that, in combination,
may be sufficiently compelling.
108
Shah, above n. 54, at 146; Schmid, above n. 55, at 1063–64.
109
Ergin v. Turkey (No. 6) (Application No. 47533/99), at [48].
110
Human Rights Committee, General Comment No 32, UN Doc CCPR/C/GC/32, at [14].
111
Daniel Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’(Oxford,
Oxford University Press, 2008), p. 134; Shah, above n. 54, at 149 (noting that, in Madani,
‘the Committee failed to justify its approach in terms of both equality before the courts
and the equitable, impartial and independent administration of justice’). Schmid, above
n. 55, at 1064–65.
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(a) Military courts may have broader competence to deal with
offences committed abroad. Especially in common law countries, the
broad extraterritorial jurisdiction that might be necessary to deal with the
misconduct of associated civilians may be lacking under ordinary crim-
inal law. Even for continental law countries that generally claim jurisdic-
tion over the conduct of their nationals abroad, associated civilians may
be a challenge as they may not be nationals of that state, or there might be
procedural impediments for exercising jurisdiction that do not exist with
respect to military personnel. Extraterritorial jurisdiction over associated
civilians as a matter of international law is an extension of extraterritorial
jurisdiction over military personnel,
112
rather than nationals in general.
That said, there is nothing in principle to prevent such jurisdiction from
being conferred on civilian courts.
(b) Military criminal law often provides for offences that do not
exist under civilian law. Admittedly, not all of offences under military
law are capable of being committed by civilians. However, some provi-
sions prove invaluable in dealing with the misconduct of associated
civilians abroad. In particular, military law generally allows for the
prosecution of acts that contravene standing orders (general orders).
113
Such orders permit, for example, the commander of a forward operating
base to tailor the military code of conduct to the circumstances prevailing
on the ground.
114
But again there is nothing that would prevent the
violation of such orders from being proscribed under civilian crim-
inal law.
(c) Military courts can be more easily deployed. The courts of
common law countries rely to a greater extent on oral testimony than
their counterparts in countries with a continental tradition. In common
law countries, it may therefore be seen as imperative to hold the trial of
an associated civilian overseas and a military court would be better
suited for that purpose. While this is a crucial argument for many
proponents of military courts, there are a few points that can be made
in opposition. First, it is not impossible for a civilian court to sit
112
Rain Liivoja, ‘Service Jurisdiction in International Law’(2010) 11 Melbourne Journal of
International Law at 309.
113
Armed Forces Act 2006 (UK) s. 13; Defence Force Discipline Act 1982 (Cth) s. 29.
114
In some states, it might be possible to charge an associated civilian with conduct
prejudicial to the discipline of, or bring discredit on, the armed forces. This provision
captures disciplinary violations that other provisions cannot. It can also be used to
prosecute conduct that has seriously violated local law. Civilians cannot be prosecuted
for prejudicial conduct under UK or Australian law: Armed Forces Act 2006 (UK) s. 19;
Defence Force Discipline Act 1982 (Cth) s. 60.
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overseas,
115
although the host state may have more serious concerns
with that possibility than with military courts. Second, even military
courts are often prevented from sitting in zones of operations because of
security concerns. Thus, several courts martial relating to the conduct of
UK forces in Iraq have been held in the United Kingdom. Third, given
the availability of audio-visual communication technology, the need to
hold hearings overseas may not be as pressing as is sometimes suggested.
Fourth, for more serious offences, in the time it takes for a case to reach
the trial stage, the defendant may already be rotated back to the sending
state. To then transfer him or her back overseas to stand trial may be
unreasonable.
(d) The military justice system often contains a policing and inves-
tigative capacity that can be utilised for the purposes of trials before
military courts. For example, the three countries I mentioned at the
beginning have dedicated military investigation services that can be
deployed on the same basis as the military courts.
116
They also have
military police units to deal with preliminary matters such as pre-trial
detention. That said, the internal investigative capacities may often lack
the ability to conduct investigations into serious offences, which would
necessitate the deployment of civilian law enforcement officials in any
event.
In sum, there appear to be several reasons why states may wish to place
associated civilians under the jurisdiction of military tribunals. While
none of the difficulties appears to be insurmountable, they may, taken as
together, lead to the conclusion that it is more efficient to try civilians
alongside military personnel, and that this would also ensure a higher
degree of accountability among associated civilians.
115
See, for example, ‘War Crimes Jury Relives History’BBC News, 16 February 1999 http://
news.bbc.co.uk/2/hi/uk_news/280999.stm (British court visiting the alleged scene of
WWII-era war crimes in Belarus); Rain Liivoja, ‘Dish of the Day: Justice sans frontiers
àlafinlandaise’(2010) 1 Helsinki Review of Global Governance, p. 20 (a Finnish court
holding hearings in a genocide trial in Rwanda).
116
In the United States, every branch of the armed forces has its own investigative service,
which is independent of the military police (and, at least as concerns the Navy, largely
civilianised): Army Criminal Investigation Command (USACIDC or CID), Air Force
Office of Special Investigations (AFOSI or OSI), Naval Criminal Investigative Service
(NCIS), United States Marine Corps Criminal Investigation Division (CID), and Coast
Guard Investigative Service (CGIS). In the UK, there is a Special Investigation Branch
(SIB) in all three service police arms –the Royal Navy Police, the Royal Military Police
and the Royal Air Force Police. In Australia, there is a uniform Australian Defence Force
Investigative Service (ADFIS), whose commanding officer reports directly to the Chief of
the Defence Force.
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To return, once more, to the question of equality, a question arises as
to who the associated civilians should be equal with. Indeed, it can be
argued that the main reference point for equality should not be other
civilians back home, but rather service members deployed on an opera-
tion abroad. In particular, given that private contractors increasingly
perform tasks of a highly military character, which previously were
undertaken by uniformed personnel, should they not be held accountable
in a manner similar to the military personnel?
117
From this perspective,
accompanying family members may be distinguishable from military
contractors. Dependants often have little choice but to accompany a
service member abroad –Mr Martin probably had no say in his father’s
deployment to Germany. Private contractors, on the other hand, will-
ingly seek employment in the armed forces abroad. In some respects, they
have become functionally (if not legally) equivalent to soldiers.
In her 2013 report, the UN Special Rapporteur on the independence of
judges and lawyers, Ms Gabriela Knaul, carefully considered the broad
question of the administration of justice through military courts and the
trial of civilians in particular.
118
While the Special Rapporteur took the view
that the jurisdiction of military courts should be restricted to the military
offences of military personnel,
119
she conceded that more extensive jurisdic-
tion ‘may be required to prevent situations of de facto impunity arising in
cases where civilians accompany the armed forces on extraterritorial deploy-
mentsinStateswithweakordysfunctionallegalsystems’.
120
Consequently,
the Special Rapporteur made the following recommendation:
The trial of civilians in military courts should be limited strictly to
exceptional cases concerning civilians assimilated to military personnel
by virtue of their function and/or geographical presence who have alleg-
edly perpetrated an offence outside the territory of the State and where
regular courts, whether local or those of the State of origin, are unable to
undertake the trial.
121
While this approach may not satisfy those looking for a straightforward
ban on the military trials of civilians, the Special Rapporteur’s recom-
mendation appears to be far more consistent with the current human
117
Ian Baldwin, ‘Comrades in Arms: Using the Uniform Code of Military Justice and the
Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct’
(2008) 94 Iowa Law Review, p. 287, at 312.
118
Gabriela Knaul, Special Rapporteur, ‘Independence of Judges and Lawyers’68th Sess,
UN Doc. A/68/285 (7 August 2013).
119
Ibid., at [54], [100].
120
Ibid., at [55].
121
Ibid., at [102].
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rights law standards than the rather absolute Principle 5 of the Draft
Principles Governing the Administration of Justice.
VI Concluding remarks
As a general rule, international human rights law does not prohibit
military trials of civilians, but places strict requirements of fairness on
such trials, coupled with an obligation on states to justify the use of
special courts. There may be good reasons for placing associated civilians
deployed on overseas operations, particularly military contractors, under
military law. Some of these factors may, in the light of the traditions of
particular legal systems, create a strong preference for allowing military
courts to try associated civilians and amount to sufficiently compelling
reasons for human rights purposes. In recent years there have been
serious difficulties in ensuring the accountability of military contractors.
Therefore, it seems useful to explore what military justice has to offer. To
mitigate some of the human rights concerns, it may be possible to make
procedural adjustments: as noted, the United Kingdom now has court-
martial panels made up entirely of civilians to try associated civilians
under military law. In any event, a knee-jerk reaction to military justice in
this context is not the answer.
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