SUB-COMMISSION DISCUSSES REPORTS ON MILITARY TRIBUNALS AND WORKING GROUP ON ADMINISTRATION OF JUSTICE

11 August 2004


The Sub-Commission on the Promotion and Protection of Human Rights this morning discussed reports on the administration of justice through military tribunals, and on the latest session of the Working Group on the Administration of Justice as it continued with its debate on the administration of justice, rule of law and democracy.

Presenting the report on the administration of justice through military tribunals, Sub-Commission Expert Emmanuel Decaux said military justice was an integral part, and should be an integral part of the normal judicial system. There were difficulties in determining the basic competence of military justice, which should not judge civilians. The question was, he said, whether one should classify human rights violations and torture as a simple disciplinary fault in a military justice.

Commenting on the report, Experts raised issues such as the nature of military justice as an exception, the jurisdiction of military courts, the means of limiting this jurisdiction, whether these courts could possibly be considered truly independent, military justice as a breach of the universality of justice, the possible abolition of military courts, and the fundamental need for independent courts to which all could have recourse in a judicial context.

The Chairperson of the Working Group on the Administration of Justice, Sub-Commission Expert Antoanella-Iulia Motoc, presented the report of the Working Group’s latest session, saying two studies had been presented to the Working Group. The first analysed the issue of differences in the implementation of penal law in national courts, and concluded that this type of situation could have grave implications for the rights of the accused, the rights of the victim, and the efficiency of the international penal system. The other study on the prosecution, investigation and pursuit of acts of grave sexual violence including rape, sexual aggression and other forms of sexual violence had prompted the Working Group to conclude that there was a need for a better definition of the term of rape at national levels.

An expert commenting on the report asked about the issue of principles of traditional justice.

Sub-Commission Experts also taking the floor this morning included Francoise Jane Hampson, El-Hadji Guisse, Lee A. Casey, Mohamed Habib Cherif, Kalliopi Koufa, Halima Embarek Warzazi, and Chin Sung Chung.

The Sub-Commission also continued with its general debate on the administration of justice, rule of law and democracy, hearing from non-governmental organizations (NGOs) whose representatives addressed such issues as the situation of incarcerated women, the importance of the rule of law in democracy, and whether the judgements of military tribunals were a violation of human rights due to a lack of independence and impartiality.

NGOs speaking under this agenda item were Voluntary Action Network India; All for Reparations and Emancipation; World Peace Council; American Association of Jurists; Japanese Workers Committee for Human Rights; Himalayan Research and Cultural Foundation; Friends World Committee for Consultation; War Resisters International; International Commission of Jurists; South Asia Human Rights Documentation Centre; Friends World Committee for Consultation - Quakers; Atlas - Association tunisienne pour l'auto-développement et la solidarité; International Association of Democratic Lawyers; Association for World Education; and Japan Fellowship of Reconciliation.

When the Sub-Commission reconvenes at 3 p.m. this afternoon, it will conclude its discussion on the administration of justice, rule of law and democracy.

Statements on the Administration of Justice, Rule of Law and Democracy

VINOD SHANKAR, of Voluntary Action Network India, said the rule of law was the foundation of good governance and was inextricably intertwined with democracy. The very essence of the rule of law was that everyone was equal before the law and that justice should be dispensed to one and all without discrimination - the basic precepts of the administration of justice. Human rights, democracy and the rule of law were interdependent and indivisible. People’s rights could not be realized without deepening of democracy at local, national and international levels. The rule of law was a dynamic concept for the expansion and fulfilment of rights for which jurists and Governments were primarily responsible. It ought to be remembered that rights and duties were inseparable, and mass education of human rights through performance of duties was equally important.

MOHAMMAD AHSAN, of All for Reparations and Emancipation, said total impunity had been granted to the military in Pakistan. The ruling oligarchy of Pakistan also enjoyed impunity. There was infringement of the basic liberties and of privacy of citizens. There was a rising atmosphere of harassment of citizens, which was extremely alarming, and it was crucial to take action to protect the citizens in their daily lives, especially vulnerable groups such as women and non-Muslim citizens. The corrupt feudal lords had tried to crush dissent throughout Pakistan, denying people their rights. They made all administrative appointments in favour of their supporters. Pakistan needed to be freed from these practices, and this could only be achieved by replacing the feudal system with the middle-class system.

ABBAS BUTT, of World Peace Council, said the people of Gilgit and Baltistan were among the most unfortunate people in the world who did not have basic human rights in the twenty-first century. What added to their misery was a lack of elected and accountable administration and absence of identity. That area was legally part of the state of Jammu and Kashmir, but Pakistani authorities were bent upon annexing that area without giving it proper recognition and basic rights. Before the division of the state in 1947, those areas were known as Gilgit and Baltistan, and that was the official name of the area, but after taking control of those areas, Pakistan had started to call them the Northern Areas. Why were they called that when they had their own recognized name?

CECILIA TOLEDO, of American Association of Jurists, said there was deep concern for the way the Sub-Commission was dealing with the question of military courts, as these were not courts of justice since they did not meet the requirements of independence and impartiality. Violations of human rights committed by the military were concealed by these courts in quite a few countries. It was not difficult to see the absolutely negative role with regard to human rights that military courts had and continued to play. These courts, even though they could be dressed in the toga of law, would continue to be subject to the overview of politics and the military organization, and would therefore continue to be the instrument of repression and lack of justice. Their main objective was to criminalise popular protest, and it was part of a regressive trend that was becoming widespread.

AKIRA MAEDA, of Japanese Workers Committee for Human Rights, said one of the most egregious examples of human rights violations of women was the use of sexual violence as a weapon of war. As many as 200,000 women of Korean, Chinese, Filipino, Dutch, Indonesian and Malaysian origin were reportedly forced to serve as sexual slaves during the Second World War. The vast majority of those women did not survive their fate. They died of disease, inhuman treatment or mal-nourishment in the military barracks in which they were held. The Government of Japan had to fulfil its obligations and disclose all the true facts and the scope of the practice, recognize the crime and apologize. However, it had done nothing.

RIYAZ PUNJABI, of Himalayan Research and Cultural Foundation, said the strong institutions of democratic governance based on the rule of law, an accountable and transparent executive, elected legislature and an independent judiciary were the indicators of the health of a democratic system. Those benchmarks of a vibrant democracy were stressed in a seminar of experts organized by the Office of the High Commissioner for Human Rights in November 2002. However, in a survey of the countries claiming to be democracies, the experts concluded that out of 81 countries claiming to be democracies, only 47 could be considered fully democratic. On the issue of terrorism, the attack on the Indian Parliament and State Assembly in Jammu and Kashmir and the assassination of popular political leaders, even moderate religious leaders in Kashmir, provided an illustration of the newly emerging dreadful phenomenon of global terrorism. It was urgent to expose this dangerous nexus.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said with regard to the question of disappearances and the draft convention, some suggested that this was just a Latin American phenomenon, however historically this had been proved not to be the case. Disappearances had occurred recently or were occurring in Europe, North Africa, sub-Saharan Africa, central Asia, south Asia, east Asia, and south-east Asia. There were also those who had disappeared at the hands of American authorities, detained in one state and then transferred to who knew where. There was also the case of the detainees in Iraq, hidden from the International Committee of the Red Cross. There was no doubt that disappearances were a worldwide phenomenon.

With regard to the draft convention, agreeing on the right not to be disappeared was proving to be a problem, as was the right to know what had happened to a disappeared family member. There was a danger that the Working Group of the Commission on Human Rights drafting the convention had or would become prisoners of consensus. It was suggested that the responsibility of the Sub-Commission did not end when the text of a draft convention was sent to the Commission, and that it should not be forgotten following this. This was not an issue of state security or of international politics. Dealing with the scourge of disappearances was a matter of common humanity. The drafting process had to keep up its momentum, and at least a glimmer of light had to be given to the thousands of relatives of the disappeared worldwide by putting into place a measure that would try to reduce the risk that others would have to live through the hell that they were in.



Introduction of Report on the Administration of Justice through Military Tribunals

EMMANUEL DECAUX (Sub-Commission Expert) presenting his updated report on the issue of the administration of justice through military tribunals (E/CN.4/Sub.2/2004/7), said that his work had followed the path traced by his predecessor Mr. Luis Joinet, who was the former Special Rapporteur on the issue. The Commission on Human Rights, in its resolution 2004/32 had taken into consideration the study carried out by the present Rapporteur. It had also underlined that integrity of the judiciary should be observed and requested States that created military tribunals to judge the authors of the criminal offences. The Commission had provided the key part of the study: that military justice was an integral part and should be an integral part of the normal judicial system. In its resolution 2003/8, the Sub-Commission had welcomed the initiative of the International Commission of Jurists with the view to organize, under the auspices of the High Commissioner for Human Rights a seminar of experts, including military, devoted to the current study. The seminar had taken place. The seminar had been the occasion for a fruitful debate with experts, military judges and non-governmental organizations, representing the judicial systems.

There were difficulties in determining the basic competence of military justice, which would not judge civilians, and could not be assigned to become corporative justice, a caste justice or sacrificing the individual to an institution. The question was should one classify human rights violations and torture as a simple disciplinary fault in a military justice?

Statements on the Report on the Administration of Justice through Military Tribunals

EL-HADJI GUISSE (Sub-Commission Expert) said Mr. Decaux should be congratulated for seeking the basis of military justice. The problem was that military offences which were determined to fall under the jurisdiction of the military courts were not always defined clearly. Military justice being an exception system of justice should be limited as it was exceptional and had repercussions on the ordinary courts. It happened at times that civilians who were not members of the military participated in acts of war and acts of violence, and it was important to determine whether they could be judged in military courts, as they were not members of the military. The approach to this issue in the report was interesting, as it attempted to define what was a military offence. There was a need to ask military courts to remain within the traditional definition of such offences, but this should not undermine existing national or international law. Such military justice, being exceptional, should be questioned whenever it was invoked, and there was a need to ensure it was in line with the protection of human rights, and it should be analysed from the framework of these rights.

LEE A. CASEY (Sub-Commission Expert) said that while endorsing the excellent work by Mr. Decaux, he had disagreements with several of the proposed principles. Overall, a number of those appeared to suggest that military justice was inherently of a lesser quality than civilian justice. Much depended on the particular judicial system in question. However, merely because the military system was different from the civilian system and because it was often more harsh, and often appeared less favourable to the accused, did not mean that it was less fair, or that the military system provided sub-standard justice. The military and civilian systems were different, because they were designed for fundamentally different circumstances. The military system should take into account values, such as the imperative of good order and discipline that were not present in the civilian system. Although there might well be a trend towards abolishing the death penalty in some areas of the world, that trend was far from universal and the Sub-Commission should not take sides on the issue.

MOHAMED HABIB CHERIF (Sub-Commission Expert) said this was a sensitive and delicate topic, and the in-depth study was both exhaustive and suggestive. It provided a lot of food for thought and opened up horizons for greater reform of benefit to human rights with regard to this pressing issue. Military courts were a derogation to the right to be tried by ordinary courts, and in many countries were a breach of the integrity of the judicial system. Regular courts came under the Ministry of Justice, but military ones under the Ministry of Defense. Military authorities should have no influence on the administration of justice. Military justice was still a clear breach of the universality of justice. Looking at the disadvantages of military courts, it was clear that they could not protect human rights or the rights of the individual to a fair trial. If abolition of military courts was not possible in the immediate future for various reasons, it appeared to be preferable to restrict their competence to disciplinary issues which were of a strictly military character, and thus any offences involving civilians would fall to ordinary courts. Nevertheless, even for military defenders before military courts, it was essential that the standards of human rights be observed in terms of prosecution, trial, and implementation of penalties. Military justice should be purely exceptional, and focusing on a specialized aspect.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said she agreed with Mr. Casey that military justice was a question of judicial procedure. She had been one of the participants of the seminar of the International Commission of Jurists. Military justice was part of the common law system. The issue of the competence of military justice should be considered. There was no doubt that the infliction of the death penalty against children below 18 was unlawful. Because of the lack of impartiality in military courts, civilians should not be judged in such courts, as it was indicated in relevant treaties and law cases.

EL-HADJI GUISSE (Sub-Commission Expert) said in response to Mr. Casey, it had never been said that military justice was fundamentally unjust, but it had been said that in order to be more precise and acceptable, it should obey certain conditions, in particular respect of the right to a fair trial, which meant initially a public trial, a trial where the defendants could choose council, and the certainty that any confessions were not extracted under torture. Justice should be handed down by an independent court. If today the jurisprudence of the Nuremberg Tribunal was side-stepped, it was because this was partisan justice, justice that was permissive and handed down by the victors to the vanquished. Today there was concern for military justice as it was handed down in an environment that did not necessarily respect the Vienna Conventions and human rights. Human beings should benefit always from the protection of the law and justice. Nothing opposed military courts being presided over by civilian judges, and this was not the brunt of criticism.

LEE A. CASEY (Sub-Commission Expert) said it was significant that Ms. Hampson referred to Protocol One to the Geneva Conventions in her argument. However, in 1988, the United States had rejected Protocol One. He was interested to see what the European courts had said on the issue. With regard to Mr. Guissé, there were a number of tribunals established during war time and they followed the regular and basic rules in their practices.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said there were three separate issues with regard to Protocol One. Other States believed that the United States was confusing different issues with regard to the identification of those who were members of the military. Civilians who had participated in hostilities were not combatants, and should be tried by the ordinary courts. Article 75 represented customary law, and this had been recognized by the United States, which implied that they recognized it and were bound by it. This required that people be tried by independent and impartial tribunals and that military courts could not try civilians. With regard to the European Court of Human Rights, this had interpreted independent and impartial as had every other thematic body on human rights. All human rights bodies, whether treaty based or based on a Commission resolution had made it clear that it was not possible for civilians to be tried by military tribunals.
LEE A. CASEY (Sub-Commission Expert) said the current law recognized any group that constituted itself to behave as combatant and it would be an encouragement.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said far from it assisting those who were unlawfully taking up arms, it meant that they could not be tried as combatants, as they were not combatants.

ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said the principles of the report were agreed with. A question was connected to the problem of the prohibition of jurisdiction by military tribunals in respect of massive human rights violations, war crimes and crimes against humanity; this was a very interesting issue, as illustrated by events in the Democratic Republic of the Congo, as it had proved on occasion to be a window-dressing procedure. However, if military courts were prohibited, what happened then, she asked. Civil courts were one alternative, but in some cases they were in a state of disorganization and could not follow up procedures. With regard to the death penalty, there was a subtlety in the position in the paper which required explanation and clarification with regard to minors.

KALLIOPI KOUFA (Sub-Commission Expert) welcomed the report of Mr. Decaux, saying that he should consult the Montreal protocol. Principle Three on military tribunals said that tribunal courts should try only military personnel and not civilians. He should also contribute in his future work to the standard setting efforts of the Sub-Commission.

HALIMA EMBAREK WARZAZI (Sub-Commission Expert) said the debate should not be closed without another tribute to Mr. Decaux for his in-depth, comprehensive study which reflected the problems that a number of situations had prompted and proposed solutions to many of them. The sentence at the end of Principle One with regard to the protection of law in peacetime as equal if not superior to that in war was supported without any reservations.

RACHEL BRETT, of Friends World Committee for Consultation - Quakers, welcomed the report of Mr. Decaux, particularly the part concerning conscientious objectors. She said the problem of the objectors had been widespread in many countries. Once dismissed from the military, an individual should be considered as a civilian. Principle 14 on the recruitment of women should be seen in parallel with the situation of women in prison.

MICHEL MONOD, of War Resisters International, said there was concern for the fate of conscientious objectors to military service, as these were civilians and could not be judged by a military court and should be judged by an independent judge. Military courts did not always follow the developments of international law. Conscientious objectors should be added to the list of those who were exempt from the death penalty, and this irregardless of time of war or peace. In many countries the death penalty was also imposed upon deserters, and it was important to introduce this issue in a resolution on military tribunals.

CORDULA DROEGE, of International Commission of Jurists, said the report was welcomed, and it was important in it that military justice was not seen as inherently inferior to civilian justice. It should not be marginalized, and brought into the ambit of international human rights. If military tribunals were to be brought into the ambit of international human rights, then they had to comply with the requirement of being independent and impartial, not just subjectively but also objectively. These two elements were very much linked to the fact that justice could not be just impartial, but should also be seen to be so. Civilians should not be tried by military tribunals, unless in extreme circumstances when the civilian justice had collapsed. The argument of Ms. Hamspon on the execution of minors was also supported.

ADRIEN-CLAUDE ZOLLER, of South Asia Human Rights Documentation Centre, said in many conflicts and situations of grave human rights violations, the question of military justice and military courts became a sensitive issue for many non-governmental organizations (NGOs). Very often, in practice, these military courts permitted facsimiles of trials, and the continuation of impunity. The first option was to engage an international campaign to abolish these courts. The second was to develop minimal rules and the basic framework that needed to be respected. A greater effort on the part of the international community was necessary, and the Special Rapporteur’s approach was indispensable in integrating and providing a framework. NGOs in the field should re-read these principles and see how, in terms of practice and daily recurrence of human rights violations, these could be improved.

EMMANUEL DECAUX (Sub-Commission Expert) thanked all those who had reacted to his report. The options selected by Mr. Joinet had been taken into consideration and many States took them all. A great deal had been discussed about the Roman law during the expert seminar. The articulations had also been judicial and administrative laws in France. Some of the principles mentioned in the report were matters of discussion. The principle was to define military offences. What was the threshold to be defined with regard to war criminals? All military justice systems, whether in democratic States or not, should be addressed. The military justice was not only to maintain law and order but also to judge human rights violations by the army and to redress the prejudice inflicted against the victims. On the issue of conscientious objectors, he welcomed the comments made and would incorporate them into his future work.

Statements on the Administration of Justice, Rule of Law and Democracy

RACHEL BRETT, of Friends World Committee for Consultation - Quakers, said although both men and women were subjected to imprisonment, little consideration had been given to the different needs and problems of imprisoned women as opposed to men. The small number of women’s prisons and of female prisoners was even more marked in regard to juvenile females. The rate of imprisonment of women was increasing rapidly. The problems for women in general were compounded for some specific groups of women, including foreign women and women from indigenous populations. Women prisoners were often the sole or main carer for minor children, and this also caused problems. The imprisonment of the mother also had a significant impact on the lives of children. Standards of medical care within prisons also varied greatly, with women prisoners suffering from poor physical and mental health at rates and with a severity far exceeding those of male prisoners or of women in the general population. Women and juvenile female prisoners were also particularly at risk of sexual abuse and exploitation. The Sub-Commission should undertake further study of this subject in order to identify the general and specific issues affecting women prisoners.

MONCEF BALTI, of Atlas - Association tunisienne pour l'auto-développement et la solidarité, said that one could not talk of progress and development without talking of democracy, the rule of law, justice, freedom of expression and other civil and political values. Through economic structure, Tunisia had shown an effective and balanced approach that took into account the principles of human rights. A number of achievements in all spheres had been obtained. With regard to the work of the Sub-Commission, the rapid evolution of the means of communications and information had allowed people to observe the situation of human rights violations in the different parts of the world. However, despite those means, certain human rights violations had been hidden for years or never brought to light because of the lack of freedom of expression and the independence of the judiciary. International law and the rule of law were the only guarantees for the protection and promotion of human rights. Without their existence in ideas and facts, one would have lived in frustration, hatred and social instability.

HISAE SAITO, of International Association of Democratic Lawyers, said it appeared that the Iraqi Government had disbanded the Iraqi Bar Association without justifiable reasons. It would be deplorable if a newly-born Government, blessed by the United Nations, ignored the importance of the independence of lawyers or defenders of human rights. Regarding gross violations of human rights during World War II, the Japanese imperial Government had no sense of human rights, and freedom of speech, expression and even thought were oppressed, and many forms of atrocities were committed, including forced labour and sexual slavery. Many other Governments had taken steps to redress war victims, and it was only natural that the Government under the Constitution of Pacifism should also do so. These facts had already been exposed to the Sub-Commission several times, and the victims had still received no recognition or compensation, and it was hoped that this time they would be heard.

DAVID LITTMAN, of Association for World Education, said the Government of Egypt had not resolved some of the problems related to its justice system. Some individuals did not receive fair trial by the justice system. An individual had been executed without having a fair trial. The Government’s emergency law had allowed the military justice system to function and incriminate civilians. He appealed to the Government to redress the illegal incarceration of individuals in the country. The Sub-Commission should express justice with regard to victims of Darfur, which had been reported by Human Rights Watch.

Presentation of the Report of the Working Group on the Administration of Justice

ANTOANELLA-IULIA MOTOC (Sub-Commission Expert), Chairperson/Rapporteur of the Working Group on the Administration of Justice, said two studies had been presented to the Working Group, the first analysed the issue of differences in the implementation of penal law in national courts, and concluded that this type of situation could have grave implications for the rights of the accused, the rights of the victim, and the efficiency of the international penal system. The other study on the prosecution, investigation and pursuit of acts of grave sexual violence including rape, sexual aggression and other forms of sexual violence prompted the Working Group to conclude that there was a need for a better definition of the term “rape” at national levels. There had also been an analysis of the direct link between amnesty laws and impunity from prosecution for serious crimes.

The issue of the collection of proof had also been raised, and it had been noted that the absence of proof favoured impunity, and proof had to be precise, clear and coherent. Regarding sexual tourism and States who were opposed to the extradition of their citizens, a solution had been proposed. Paedophilia was an issue that was becoming ever more important, and States had difficulty in prosecuting acts committed on the Internet and the means for fighting this form of the crime were limited. With regard to the agenda of the next session, two general themes had been identified: the first would be the issue of women and the penal system; the second would be international penal justice.

Statement on the Report of the Working Group on the Administration of Justice

CHIN SUNG CHUNG (Sub-Commission Expert) said she appreciated Ms. Motoc’s work, particularly the part of about transitional justice, as seen in Sierra Leone, for example. The Sub-Commission was better placed to develop principles on transitional justice.

Statement on the Administration of Justice, Rule of Law and Democracy

YURILO YABU, of Japan Fellowship of Reconciliation, said large-scale trafficking in women had taken place during the Second World War, due to lack of democracy. As democracy became the fundamental law, there had been no obstacle for the investigation and prosecution of the crimes of military sexual slavery, but nothing had happened. Till today, the “democratic” Government of Japan had never admitted that military sexual slavery was in violation of any law. Real democracy could not be achieved overnight and the process was frustratingly slow. The war resulted in gross violations of human rights including military sexual slavery which still remained unresolved. It was imperative for the Japanese Government to take all possible actions for apologies in order to seek the forgiveness of the war victims.