Journal of International Law & International Relations

Journal of International Law & International Relations
Winter, 2008 *1 International Human Rights Law and the Administration of Justice through
Military Tribunals: Preserving Utility While Precluding Impunity Michael R. Gibson [FNa1] Copyright © 2008 by Journal of International Law & International Relations;
Michael R. Gibson | Table of | | |
|Contents | | |
| | | |
| 1. | Introduction. | 1 |
| | | |
| 2. |Military Courts. | 6 |
| | | |
| |2.1 What constitutes a| 6 |
| |military court?. | |
| | | |
| | 2.2 Purposes | 6 |
| |of a military justice | |
| |system. | |
| | | |
| | 2.3 Required | 13 |
| |attributes of a | |
| |military court. | |
| | | |
| 3. | International | 17 |
| |Human Rights Legal | |
| |Framework. | |
| | | |
| | 3.1 | 17 |
| |Conventional Law. | |
| | | |
| | 3.2 | 15 |
| |Jurisprudence. | |
| | | |
| 4. | The Draft | 16 |
| |Principles. | |
| | | |
| | 4.1 Positive | 16 |
| |developments. | |
| | | |
| | 4.2 | 19 |
| |Jurisdiction of | |
| |military courts to try| |
| |civilians. | |
| | | |
| | 4.3 Judicial | 36 |
| |guarantees applicable | |
| |to military personnel | |
| |tried in military | |
| |courts. | |
| | | |
| | 4.4 Scope of | 36 |
| |jurisdiction of | |
| |military courts. | |
| | | |
| | 4.5 Trial by | 38 |
| |military courts of | |
| |persons accused of | |
| |serious human rights | |
| |violations. | |
| | | |
| | 4.6 Role of | 42 |
| |victims in | |
| |proceedings. | |
| | | |
| | 4.7 Periodic | 45 |
| |review of codes of | |
| |military justice. | |
| | | |
| 5. | Military | 45 |
| |Commissions. | |
| | | |
| 6. | Conclusion. | 47 |
| | | | 1. Introduction One of the hallmarks of the discussion and practice of international
human rights law and of international criminal law in this decade has been
a keen desire to preclude impunity for the commission of gross *2
violations of international human rights and breaches of international
humanitarian law. [FN1] This desire underpinned much of the impetus for the
creation of the Rome Statute of the International Criminal Court[FN2] and
continues to energize much of the enormous volume of state practice,
academic commentary and internal discussion within the Court. A corollary
of this desire has been an understandable visceral antipathy on the part of
academics and advocates in the field of international human rights (many of
whom have witnessed their abuses in Latin America in particular) towards
military tribunals. Sometimes, however, even when motivated by the best of
intentions, striving to advance the yardsticks of international law can
overshoot the mark and produce a real-world effect contrary to that
intended. Animated by a desire to avoid impunity for the commission of gross
violations of human rights and for breaches of international humanitarian
law, the Special Rapporteur of the United Nations Sub-Commission on the
Promotion and Protection of Human Rights, with the support of the Office of
the High Commissioner for Human Rights and of the International Commission
of Jurists, has produced a set of Draft Principles Governing the
Administration of Justice through Military Tribunals, [FN3] with the
intention that it be considered and *3 adopted by the Human Rights Council.
[FN4] More than merely an exercise in international standard-setting, its
proponents aspire for the Draft Principles to constitute an important form
of 'soft law' which would stand as a bulwark against barbarism and
impunity. Significant effort by many eminent international legal scholars
has gone into their drafting and refinement. The principles are said to be
intended to become a 'minimum system of universally applicable rules' [FN5]
to govern the administration of justice by military tribunals. And there is the rub. For while the Draft Principles are a
commendable effort and may make a significant contribution to informing
debate and improving national practice in this important area of law, they
remain significantly flawed in several respects. It is the contention of
this article that, in an effort to be universal, the Draft Principles seek
to capture too broad and varied a spectrum of phenomena and subject them to
the same unjustifiably dismissive assessment. In doing so, they distort the
reality of many legitimate military justice systems which currently exist
and risk demonizing a necessary, valuable and sometimes irreplaceable
species of court whose full potential has yet to be realized. It is a
truism that in human affairs, 'where one stands depends on where one sits.'
Therefore, it is not surprising that the outlook of the Draft Principles
document *4 reflects the perspectives arising from the experiences of its
primary drafters and proponents, who are predominantly civilian legal
academics schooled in civil law traditions. [FN6] While there are instances
of tribunals promoting impunity and perverting military justice, such as
Latin American junta-appointed military tribunals, these should not be
taken as representative of military courts as a whole. One should not
extrapolate from these unfortunate examples a universal proposition that
military courts cannot try soldiers and civilians fairly and should be done
away with, especially those subject to constitutional restraints and the
supervisory jurisdiction of civilian appellate courts as in Canada, the
United Kingdom, Australia, New Zealand, and the United States. Moreover, it
is important to avoid the risk of creating or perpetuating situations of de
facto impunity with respect to certain increasingly important categories of
person, such as civilian contractors and other persons accompanying armed
forces on international deployments, an outcome which would be perversely
contrary to the intent which animates the creation and expression of such
principles. In order to offer a useful critique of the Draft Principles, it will
be necessary to first set the frame of reference by examining more broadly
the issues of what constitute military courts, what are the legitimate
purposes of military justice systems and what attributes need to be
possessed by mili