International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility While Precluding Impunity
Gibson, Michael R., Journal of International Law & International Relations
Table of Contents 1. Introduction 2. Military Courts 2.1 What constitutes a military court? 2.2 Purposes of a military justice system 2.3 Required attributes of a military court 3. International Human Rights Legal Framework 3.1 Conventional Law 3.2 Jurisprudence 4. The Draft Principles 4.1 Positive developments 4.2 Jurisdiction of military courts to try civilians 4.3 Judicial guarantees applicable to military personnel tried in military courts 4.4 Scope of jurisdiction of military courts 4.5 Trial by military courts of persons accused of serious human rights violations 4.6 Role of victims in proceedings 4.7 Periodic review of codes of military justice 5. Military Commissions 6. Conclusion
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 violations of international human rights and breaches of international humanitarian law. (1) This desire underpinned much of the impetus for the creation of the Rome Statute of the International Criminal Court (2) 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, (3) with the intention that it be considered and adopted by the Human Rights Council. (4) 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' (5) 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 reflects the perspectives arising from the experiences of its primary drafters and proponents, who are predominantly civilian legal academics schooled in civil law traditions. (6) 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. …