HUMAN RIGHTS: UN Studies Measure to Urge Military Court Ban

By Gustavo Capdevila Reprint | | Print |

Gustavo Capdevila

GENEVA, Aug 8 2002 (IPS) - United Nations experts are discussing a proposal to annul the authority of military tribunals to carry out trials involving human rights crimes, such as extra-judicial executions, forced disappearances and torture.

French jurist Luis Joinet, author of the recommendation presented to the UN Sub-Commission on the Promotion and Protection of Human Rights, said the number of civilians tried by military courts increases daily.

“Such tribunals have become less and less involved in judging military personnel and more often judge civilians or simply those who oppose the state,” he said.

Many of the independent experts that make up the Sub-Commission criticised what they said is a new trend to use military justice in the fight against international terrorism, and that this movement has been led by the United States since the Sep 11 terror attacks in New York and Washington.

Leila Zerrougui, the representative from Algeria who heads the working group on the administration of justice, told her fellow members of the Sub-Commission that since the events of Sep 11, the United States has “taken steps that violated fair-trial guarantees.”

The Sub-Commission, which serves as an advisory body to the UN Commission on Human Rights, the maximum authority for this area at the United Nations, is in the midst of its annual sessions in Geneva, Jul 29 to Aug 16.

The concerns expressed by the experts of the Sub-Commission are shared by non-governmental organisations (NGOs) dedicated to the issue.

Sergio Polifronti, of the International Commission of Jurists (ICJ), said that in the case of the United States extraordinary powers had been used to “create pseudo-judicial bodies which in fact were organs of the executive branch.”

Alejandro Teitelbaum if the American Association of Jurists (AAJ), maintains that “a presidential order had created secret military tribunals” in the United States.

The study carried out by Joinet at the request of the Sub- Commission confirms that there is growing consensus in the international human rights community “on the need to limit the role of military tribunals, or even abolish them,” he said.

However, he pointed out, in many countries it is common practice for military tribunals to try “members of the armed forces or the police accused of serious human rights violations that constitute crimes.”

This often is a source of impunity, said Joinet, adding, “This practice tests the effectiveness of the right to a fair hearing by an independent and impartial tribunal.”

The jurist proposes that, “in all circumstances, the competence of the military tribunal be abolished in favour of those of the ordinary courts for trying persons responsible for serious human right violations, such as extra-judicial executions, forced disappearances or torture.”

The AAJ called for even stricter criteria, saying military tribunal jurisdiction should be limited exclusively to cases involving military discipline.

Under no circumstances should military courts intervene in the trial of cases involving common crimes, said Teitelbaum.

The recommendations in Joinet’s report also include limiting military secrecy; making public hearings the rule, not the exception; encouraging access of victims to proceedings and strengthening the rights to defence, particularly through the abolition of military lawyers.

Joinet sees this separation as having become the rule “throughout the era of so-called ‘conventional’ wars, that is, wars fought by regular armies.”

In that context, “each military jurisdiction tried only its own personnel.”

But military justice gradually broadened its jurisdiction through colonial wars and wars of independence in Asia and Africa, and the proliferation of military dictatorships under in Latin America.

In that era, military tribunals tried not only their own soldiers, but also the opposition combatants, who were called “rebels”, “guerrillas” or “freedom fighters”.

The Sub-Commission, made up of 26 independent experts nominated by governments representing the world’s different regions, will continue its discussion of military tribunals during its next annual sessions in Geneva.