Opening remarks by Ms. Flavia Pansieri, United Nations Deputy High Commissioner for Human Rights, at the Expert Consultation on the administration of justice through military tribunals and role of the integral judicial system in combating human rights violations

24 November 2014

Excellencies,
Ladies and Gentlemen,

I wish you a warm welcome to this expert consultation on the administration of justice through military tribunals and the role of the integral judicial system in combating human rights violations.

The wide variety of military justice systems makes generalizations about such institutions difficult, if not impossible. These systems have developed over time as a result of each country’s unique history, legal tradition and choices, including on the integration of the military into State structures and allocation of jurisdiction between civilian and military courts.

In a significant number of States, military tribunals are perceived as credible judicial institutions that try crimes perpetrated by military personnel and are subject to civilian judicial oversight. However, in other States, governments have used military justice to persecute and punish political opposition figures, and to secure impunity to military personnel who had committed gross human rights violations.

Neither the International Covenant on Civil and Political Rights nor the other eight binding international human rights treaties specifically refer to military courts. However, these international human rights treaties, and in particular the ICCPR, are of great relevance to our discussion today. The Human Rights Committee, in its General Comment 32, has indicated that the Covenant does not prohibit trials by military courts. However, it has also noted that the full range of protections of the Covenant, in particular those provided at article 14, is applicable whether a trial is held before a civilian or military court, and that these rights cannot be in anyway compromised because of the military character of the court.

Bearing this in mind, today’s expert consultation has been organized around four broad themes: the Independence of the judiciary; fair trial guarantees; issues related to Personal jurisdiction; and issues regarding subject matter (material) jurisdiction. For each of these thematic areas, I would like to suggest some issues for discussion:

Regarding the independence of military courts:
It may be interesting, as a basis for your discussions, to consider what defines a military court. Is the main criterion whether judges are civilian or military? Should it be defined by the types of offences that are subject to its jurisdiction? Is it possible to broadly categorize the different types of military courts and indicate how these choices impact the independence of military courts?

What should be the institutional framework to prevent command interference in the judgments of military tribunals? What steps should States take to ensure that judges of military courts have security of tenure and are selected for their competence, ability, experience and integrity? Should military courts be integrated into the structure of the civilian judicial system? What are the consequences if military courts are subjected to the authority of the Ministry of Defence of a State?

Concerning the second theme relating to fair trial before military courts:

Do accused persons have the right to a civilian counsel in military courts, rather than being obliged to accept appointed military counsel? Do summary court martials contravene article 14 of the ICCPR if the accused must waive his or her right to counsel or the right to appeal?

May an accused in military detention ask a civilian court to review and order his or her release if the civilian court finds that the detention by military authorities is unlawful or arbitrary? What are the limits of detention pursuant to non-judicial punishment for a disciplinary offence? At what point should civilian judicial oversight of military courts be introduced? Is a military court of appeals considered civilian or military if all of the judges are civilian? What should be the scope of review of civilian appellate courts of military court judgments and sentences?

Let me now turn to the third theme: personal jurisdiction by military courts.

Should personal jurisdiction over military personnel be defined uniquely in relation to their status as a person on active service in the armed forces? Or should this include persons who serve in the military reserves? Or those who have retired from the military? Could it include persons who have left military service but who allegedly committed a criminal offence when in the military?

Although the Human Rights Committee has indicated in its General Comment 32 that civilians in principle should not be tried by military tribunals, subject to narrowly defined exceptional circumstances, a question which remains is who is a civilian? Can certain civilians be assimilated to military personnel and tried in military court? Do the circumstances of an overseas deployment militate in favor of jurisdiction over civilians accompanying troops sent abroad? Would it matter whether the deployment was to a foreign base in peace time or to a zone of active armed conflict? What does international humanitarian law say about trial of civilians in military courts?

Fourth and last, concerning subject matter jurisdiction of military courts:

What are the different types of subject matter jurisdiction of military courts? States have approached this subject differently. Some State maintain military jurisdiction over all criminal offences committed by military personnel, whereas other States have limited subject matter jurisdiction to those acts that are service-related, a type of subject matter jurisdiction that is also sometimes referred to as jurisdiction over offences that have a nexus to the military or where a significant military interest is present.

Other States have prohibited jurisdiction by military courts over serious human rights violations, while yet other States have limited jurisdiction to offences that are unique to the military and have no counterpart in criminal law applicable to civilians. What are the consequences of these choices? Are these choice affected by whether the military personnel are on the domestic territory of the State or on foreign deployment? Are these choices affected whether a State is in a state of war or at peace? What have the Human Rights Committee and special procedures said about limitations on the subject matter jurisdiction of military courts?

Excellencies,
Ladies and Gentlemen,

I would now like to welcome the distinguished group of experts that will address you today, including several Special Procedure Mandate holders, members of Treaty Bodies and civil society representatives. I trust that their presentations regarding the four themes that will be the focus of your deliberations today will shed some light on the complex questions which I have briefly outlined. I wish you a fruitful and constructive debate.

Thank you.