1. Introduction
The operation of military courts is clearly contemplated by and allowed for in international humanitarian law (IHL).Footnote 1 Military justice has been sanctioned as part of proto- and modern IHL instruments for more than 150 years. Military courts have been employed thousands of times across the globe – in the midst of and in the aftermath of armed conflict, situations of occupation, civil unrest and periods of mass terrorism.Footnote 2 Nevertheless, the use of military courts has been one of the most controversial and hotly debated topics, dating back to the earliest days of the codification of IHL.Footnote 3
Issues raised by military courts include their use in peacetime, the interplay between military and civilian courts, the defining of crimes as violations of domestic law versus the laws of war, jurisdiction over ‘common’ crimes, jurisdiction over civilians, the scope of military necessity, competence and expertise, strategic role, and due process protection.Footnote 4 Despite the ostensibly exclusive military domain, given the civil and human rights concerns, many human rights bodies have registered significant scepticism towards this type of justice.Footnote 5 Consequently, they have sought actively to regulate this ‘IHL space’, confining the jurisdiction and workings of military courts. Yet many of these bodies significantly neglect IHL when undertaking these efforts.
The United Nations (UN) Human Rights Council, various working groups and special procedures, treaty bodies including the Human Rights Committee and the Committee Against Torture, the European Court of Human Rights (ECtHR), the Court of Justice of the Economic Community of West African States (ECOWAS), the African Commission on Human and Peoples’ Rights, and the Inter-American Commission and Court of Human Rights have all engaged in efforts to regulate military courts.
This article examines comments, cases, draft rules and other measures taken by two of these frameworks, one international and one regional: the UN Human Rights Council and the African Commission on Human and People's Rights.Footnote 6 The Human Rights Council was selected because it is a universal (and the most influential) framework for developing and disseminating human rights norms. A regional framework was chosen for comparison. While the Inter-American and European human rights systems are slightly more complex and developed in some ways, the African Commission is a fascinating and dynamic, albeit under-examined, human rights body. There exists extensive academic literature relating to the military courts and the role of IHL in the Inter-American and European human rights systems. In contrast, there is considerably less scholarly coverage of the African Commission's work, despite its recent innovative approaches to IHL and the regulation of military courts. These developments merit attention.
In looking at the Human Rights Council and the African Commission, the article will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and do they rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law (IHRL)? Additionally, the article will consider the validity, legality and effectiveness of these efforts, and concludes that there exists a substantial neglect of IHL in human rights frameworks. By overlooking IHL or relegating it to a sub-specialty of IHRL, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere.
2. Military Courts in IHL
Military courts, operating during times of both war and peace, are a feature of military justice – a legal system that developed historically distinct from the civilian justice system. The creation of military justice was based on the rationale that the civilian justice system does not possess the expertise to adjudicate military matters or understand the unique hierarchical character and discipline requirements of the military.Footnote 7
Military courts can be standing (typically found in civil law systems) or ad hoc (more predominant in common law countries).Footnote 8 The features of military courts vary widely and this area is rapidly changing, but there are several commonalities. Military court officials such as judges, prosecutors, juries, and even defence counsel come from military ranks. These courts establish their own rules of procedure and adjudicate violations of military codes, laws of war and crimes specially delegated to the military courts, including in times of civil unrest and emergencies. Military courts can be employed during the imposition of martial law. They are implemented in situations of occupation and in several countries may operate only during wartime.Footnote 9 Some countries have abolished military courts altogether.Footnote 10
While there are many variants of military court globally, and though they operate in distinct political environments, the following section provides the normative framework for the operation of these courts during armed conflict as prescribed by IHL.
The use of military courts is expressly allowed, and in several cases required, under IHL. IHL also embeds multiple protections for due process throughout the various legal instruments, and it rejects the idea of ‘summary justice’.Footnote 11 Common Article 3(d) of the Geneva Conventions, which regulates the treatment of ‘persons taking no active part in the hostilities’, prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, and affords ‘all the judicial guarantees which are recognized as indispensable by civilized peoples’.Footnote 12 Denial of fair trial standards is a grave breach under Article 130 of the Third Geneva Convention (GC III), Article 147 of the Fourth Geneva Convention (GC IV), and Article 85(4)(e) of Additional Protocol I (AP I).
Article 84 of GC III provides exclusive jurisdiction for the military courts for prisoners of war (POW) (‘a prisoner of war shall be tried only by a military court’), unless the laws of the Detaining Power ‘expressly permit the civil courts to try a member of the armed forces of the Detaining Power’ for the ‘offence alleged to have been committed’ (emphasis added). It also mandates that:
[i]n no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognised, and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105.
The use of military courts is not strictly limited to POWs or to violations of military law. IHL instruments explicitly endorse their use in situations of occupation and do not exclude jurisdiction over civilians.Footnote 13 For instance, in a 1998 report summarising a meeting of experts, the International Committee of the Red Cross (ICRC) notes that GC IV was crafted to ‘strike a balance’ between the occupying power's interests and the need to protect the civilian population.Footnote 14 Military courts are part of this balance. Under Article 27 of GC IV the occupying power ‘may take such measures of control and security in regard to protected persons as may be necessary as a result of the war’ and as such ‘has the right to constitute military courts to deal with offences jeopardizing its security’.
Articles 64 to 78 of GC IV provide multiple regulations for the operation of justice in an occupied territory. For instance, Article 66 explicitly states that ‘the Occupying Power may hand over the accused to its properly constituted, non-political military courts’. Article 68 mandates that the death penalty may be applied only in cases of ‘intentional death’ where the death penalty was part of the local law. Under Article 68 no ‘protected person’ under the age of 18 may be sentenced to death. No sentence for death may be carried out for at least six months (Article 75). Article 71 refers to ‘competent courts’ and ‘regular trial’. Under Article 73, however, there is not necessarily a guaranteed right of appeal. The Convention also distinguishes between the use of administrative detention (Articles 42, 78) – subject periodically to court or board review, with a right of appeal – and those convicted and imprisoned pursuant to a judicial procedure with the required due process guarantees (Article 64).Footnote 15 Children may also be subject to the military court process.Footnote 16
Additional Protocols I and II (AP I and AP II) enumerate multiple fair trial guarantees. Article 75(4) of AP I requires the use of an ‘impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure’ as well as multiple other due process protections. These guarantees include:
• the right to be informed of charges and all rights to a defence both before and during trial (Article 75(4)(a));
• no imposition of convictions or punishments ex post facto (Article 75(4)(c));
• the right to be presumed innocent (Article 75 (4)(d)) and the proscription of trials in absentia (Article 75(4)(e));
• the right against self-incrimination and the right to cross-examine witnesses (Articles 75(4)(f)–(g));
• prohibition against double jeopardy (Article 75(4)(h)); and
• the rights to public pronouncement of judgment as well as the right to be informed of post-conviction rights (Articles 75(4)(i)–(j)).
The 1987 Commentary on the Additional Protocols adds:Footnote 17
[Article 75(4)] represents an important step forward in humanitarian law by laying down several minimum rules of protection for the benefit of all those who find themselves in time of armed conflict in the power of a Party to the conflict, whereas in such circumstances provisions of human rights law are subject to possible derogations.
The Commentary also notes that this ‘article must therefore be seen as a victory for humanitarian law’.Footnote 18 Article 6(2) of AP II requires courts to offer ‘the essential guarantees of independence and impartiality’.Footnote 19
3. Critiques of Military Courts
Although military courts are expressly allowed under IHL and are required to embed due process protection, there has been substantial and long-standing criticism of their use even in times of armed conflict. The International Commission of Jurists exemplifies the dominant narrative in the human rights community: ‘[O]n the whole, as far as ensuring that justice is dispensed independently and impartially is concerned, military courts do not adhere to general principles and international standards and their procedures are in breach of due process’.Footnote 20 As noted by the UN Deputy Commissioner for Human Rights, however, there is a ‘wide variety of military justice systems’ making ‘generalizations about such institutions difficult, if not impossible’.Footnote 21 In addition, there are many states where military courts are ‘perceived as credible judicial institutions and subject to civilian judicial oversight’.Footnote 22 Nevertheless, the critiques of military courts do not date just from the international human rights era. For instance, towards the end of the United States Civil War, conspirators in the assassination of President Abraham Lincoln were tried by military court.Footnote 23 The use of a military court, as opposed to a civilian court, even though Washington DC was under martial law at the time, prompted outrage.Footnote 24 The US Attorney General was forced to issue an opinion as to why resort to a military court for the conspirators, as opposed to a civilian court, was acceptable as a matter of law.Footnote 25
The human rights critiques of military courts tend to fall into three categories. The first is whether military courts have the competence to try offences committed by service members that go beyond the scope of military duties, such as common crimes like drunk driving or burglary. This includes the more pressing concern of whether military courts have legitimacy to adjudicate gross human rights violations or crimes of mass atrocity. A second category of criticism relates to the trying of non-military actors – which includes civilians, police officers and security personnel – and juveniles. The last area of critique can be categorised as concerns relating to due process protections, including judicial independence and impartiality, qualifications and training of the judiciary, adherence to fair trial standards, severe punishments such as the death penalty, and whether there is a right of appeal to civilian authorities.Footnote 26
Critics of military courts almost exclusively measure their legitimacy and adequacy against standards proffered under IHRL, even when such courts are utilised in the context of armed conflict and even though IHL contains multiple, if not concomitant, due process protections. Rarely are the requirements of IHL discussed; nor do they wrestle with the issue of lex specialis and how the primacy of IHL might affect whether and how they can exercise competence to regulate military courts in situations of armed conflict. For instance, as mentioned, under IHL civilians may be tried by military courts, while most human rights advocates believe that this violates IHRL.Footnote 27 The death penalty is also allowed by IHL, albeit with limitations, but more strictly limited and disfavoured in the major international human rights instruments.Footnote 28
The interplay between IHL and IHRL remains a highly contested legal issue.Footnote 29 Specifically, how should courts, practitioners and scholars interpret the notion of IHL as the lex specialis or ‘specialty’ area of law? Sang describes three potential approaches that characterise the relationship: separation, complementarity and integration.Footnote 30 In other words, does IHL apply to fill in gaps of lex generalis (general law)? Can IHL apply alongside other bodies of law, or does it exist as a wholly separate law that supplants other bodies of law when it is applicable?Footnote 31 Another issue is how to characterise IHRL. What role, if any, does IHLR have to play in armed conflict? Is it considered the lex generalis or does it exist as a complementary body of law alongside IHL?
The International Court of Justice (ICJ) has issued three opinions (two of which are advisory) addressing this conflict. In the 1996 advisory opinion on the Legality of the Threat of Nuclear Weapons the Court noted that the International Covenant on Civil and Political Rights (ICCPR) ‘does not cease in times of war’. In determining the arbitrary deprivation of life, however, the Court said it must be ‘determined by the applicable lex specialis, namely, the law applicable in armed conflict’ and ‘not deduced from the terms of the Covenant itself’.Footnote 32 In a second advisory opinion, Construction of the Wall in the Occupied Palestinian Territories, the ICJ elaborated that there are ‘three possible solutions’ regarding the relationship between IHL and IHRL: ‘some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’. It further stated that the ‘the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law’.Footnote 33 Finally, in the contentious case of Democratic Republic of Congo v Uganda the ICJ found that ‘the rules of international human rights law and international humanitarian law … are relevant and applicable in the specific situation’.Footnote 34
While contending that IHRL and IHL both apply in situations of armed conflict, but also describing IHL as the lex specialis, the ICJ jurisprudence is difficult to parse. Legal scholar Françoise HampsonFootnote 35 interprets it as meaning ‘whereboth IHL and human rights law are applicable, priority should be given to IHL’, but she explains that in the Court's view IHRL ‘remains applicable at all times’ (a lex generalis?) and findings ‘based on IHL’ should be ‘expressed in the language of human rights law’.Footnote 36
Other factors that might shift the balance between IHL and IHRL and the duties owed by a state party are whether a conflict is classified as international or non-international and the status of particular combatants and civilians.
While human rights instruments often make cursory reference to the applicability of IHL, there appears also to be a misguided perception among human rights advocates that IHL is less protective than IHRL, based on the acceptance in IHL of military action and necessity, as well as (at least in prescribed circumstances) collateral damage.Footnote 37 As such, IHRL is generally privileged over IHL in the work of human rights bodies. Indeed, the International Commission of Jurists again presents the predominant attitude relating to review of military courts: ‘the issue should be approached from the perspective of whether or not military jurisdiction is compatible with the obligations incumbent under international human rights law’.Footnote 38
The remaining sections of this article will examine how one international framework, the UN Human Rights Council, and one regional body, the African Commission on Human and People's Rights, have sought to regulate the military courts and, in so doing, how they relate to IHL. As the primary and most influential international framework addressing human rights issues, the Human Rights Council provides an example of how, through a global platform, advocates have sought to implement universal change regarding military courts. Importantly, because the work of Council procedures can be officially endorsed subsequently by member states either at the Council or the UN General Assembly, there is the potential for greater state compliance. Examining the African Commission offers a local perspective on how a region that has experienced significant armed conflict and widespread use of military courts has sought to address the relevant human rights and legal issues.Footnote 39 Because the Commission's work is regionally focused, it can be tailored to issues specific to the African context which might otherwise be overlooked in a universal framework like the Human Rights Council.
4. UN Human Rights Council (formerly the Commission on Human Rights)Footnote 40
The issue of military courts has been on the agenda of the UN Human Rights CouncilFootnote 41 and its predecessor, the Commission on Human Rights,Footnote 42 for more than half a century.Footnote 43 Beginning in 2000, however, the Commission began to take significant steps to develop universal rules for military courts, building on several UN General Assembly resolutions and several international guidelines, which recommended extensive limitations on military court jurisdiction, but had not done so comprehensively.Footnote 44
The Council is assisted in its work by, among others, the Special Procedures and the Advisory Committee (formerly the Sub-Commission on Human Rights).Footnote 45 Both of these bodies have been involved in crafting military court standards.Footnote 46 This work led to the drafting and promotion of the Draft Principles Governing the Administration of Justice through Military Tribunals, issued in 2006, the first international attemptFootnote 47 to codify comprehensively rules relating to military courts.Footnote 48 These principles, however, have yet to be adopted by the member states of the Council.
4.1. The Joinet Report
In 2000–01, the Sub-Commission on Human Rights, the ‘think tank’Footnote 49 of the Commission on Human Rights, renewed intense study of the issue of military courts, building on its ‘pioneering role’ in this area.Footnote 50 The Sub-Commission, in 2001, asked Rapporteur Louis Joinet to draft a report, ‘Issue of the Administration of Justice through Military Tribunals’.Footnote 51 Joinet was a logical choice to undertake this study. In 1997 he drafted the original version of the United Nations Principles to Combat Impunity, containing Principle 38, which limits military court jurisdiction to military offences committed by military members, and transfers jurisdiction over human rights violations to ‘ordinary courts’.Footnote 52
Joinet's report was presented to the Sub-Commission in July 2002. The underlying narrative of the report is that ‘there is a growing consensus on the need to limit the role of military tribunals, or even abolish them’.Footnote 53
Joinet examined several issues in his report. First, he looked at three different categories of civilian and whether the individuals in each category could be tried by military courts (civil employees of the military, civilians committing offences alongside the military, and civilians with no military ties who have engaged in primarily ‘political’ or security offences).Footnote 54 Another highlight was examining whether military tribunals had competence to try members of the military for gross human rights violations, ‘frequently a source of impunity’.Footnote 55 Joinet's legal analysis was based solely on IHRL – namely, the ICCPR, the regional human rights instruments, decisions of oversight mechanisms and soft law declarations. He does not include reference to IHL, even though significant fair trial guarantees are contained in IHL,Footnote 56 and despite invoking in his report clear scenarios where IHL could apply (such as ‘civilians committing offences alongside the military’).Footnote 57
For example, Joinet claims that:Footnote 58
the broad interpretation of the various criteria for jurisdiction, particularly when a state of war or emergency is declared, extends the jurisdiction of military tribunals. In this situation, their activities consist less and less of trying military personnel and more and more of initially trying armed opponents and then gradually civilians who demonstrate their opposition by peacefully exercising the rights recognized and guaranteed by international standards and procedures, particularly in the areas of freedom of expression, association and demonstration.
While Joinet's observations may be accurate, he does not legally examine if, or to what extent, the expansion of such jurisdiction is allowed for in the context of armed conflict and the rules of IHL.
Joinet concludes his report with nine recommendations which he says are aimed at achieving the ‘long-term objective’ to ‘abolish military tribunals’.Footnote 59 As part of this goal he calls for ending all military tribunals in peacetime; banning military courts from trying children under the age of 18 (Recommendation 8), including child soldiers, members of armed opposition groups, and children with the legal status of civilian (all are references to situations of armed conflict governed by IHL); and outlawing the death penalty (Recommendation 9). Note that the latter two suggestions could conflict with IHL. Again, Joinet offers no mention of the governing law, the role between IHRL and IHL, or how his suggestions might have an impact on the legal framework of IHL.
4.2. The Decaux Reports and Draft Principles Governing the Administration of Justice through Military Tribunals (Decaux Principles)
The Sub-Commission asked Rapporteur Emmanuel Decaux to take over from Joinet in 2002 and update the report.Footnote 60 Decaux's ‘aim’ in the update was ‘to clarify the many issues contained in the [Joinet] study in order to structure the public debate that must be held’.Footnote 61 Decaux's report contained an ‘analysis of the special jurisdictions of military tribunals and of the judicial guarantees inherent in the concept of an independent and impartial tribunal’.Footnote 62 It revised Joinet's recommendations in accordance with the Commission on Human Rights Resolution 2003/39, finding that governments must ‘ensure that [military] courts are an integral part of the general judicial system’.Footnote 63
Decaux, like his predecessor (at least initially), viewed the issue of military justice solely within the framework of human rights law. He recognised that for historical reasons, military and ‘general’ justice became bifurcated, but asserted that today ‘the development of “military justice” must be situated within the framework of the general principles governing the proper administration of justice’.Footnote 64 In order to do so, he notes that ‘it is important to draw attention to legal consequences [of military courts] in the light of international human rights law’.Footnote 65 He also laments that the integration of military courts into the general justice system ‘has long been opposed by the logic of exceptions [such as sieges or states of emergency], which has often been used to justify the establishment of military courts’.Footnote 66 He does not mention, however, that the differing system not only relates to historical evolution, but also to the separate legal framework applicable to armed conflict and the notion of IHL as lex specialis.Footnote 67 Although his initial report is somewhat unclear as to his personal position,Footnote 68 it appears that Decaux takes a more moderate stance than that of his predecessor Joinet, who advocated full abolition of military courts.Footnote 69
Decaux acknowledges that military jurisdiction differs in peacetime from times of war, offering a cursory mention of relevant IHL principles.Footnote 70 He notes that IHL does apply in international and non-international armed conflicts and cites Article 84 of GC III, which requires prisoners of war to be tried by military courts, and the due process protections offered in Articles 102 and 105.Footnote 71 He offers no analysis, however, as to how these principles apply in relation to IHRL or how they will have an impact on his proposed recommendations.
While Decaux does not advocate abolition, he calls for significant restrictions on military court jurisdiction, concluding that military courts should not be competent to try civilians or gross violations of human rights, and that they should be employed only in limited cases relating to military personnel.Footnote 72
For example, Decaux raises the issue of minors in military courts, but relies on human rights instruments.Footnote 73 He mentions very briefly the military court trials of Palestinian minors charged with attacking Israeli soldiers (paragraph 19), but does not discuss how a situation of occupation and the attendant IHL rules might dictate which courts are employed. In some cases, during armed conflict, military courts might be the only available option, but he does not propose alternative solutions. He states in his recommendations that minors must be tried in accordance with the Convention on the Rights of the Child (CRC) and the Beijing juvenile justice principles (Beijing Rules),Footnote 74 and therefore claims that military courts do not have competence.Footnote 75 However, neither the CRC nor the Beijing Rules prohibit the use of military courts; nor are there requirements in these instruments that in principle could not be met by a military court.
In addition, Decaux asserts that ‘the idea that perpetrators of human rights violations cannot be tried before military tribunals is becoming increasingly accepted today’, citing the Declaration for Enforced Disappearances, Article IX of the 1994 Inter-American Convention on Forced Disappearance of Persons, and a couple of soft law instruments.Footnote 76 Therefore, he proposes that military courts should be barred from trying such cases. Again, he does not evaluate IHL, mention whether he considers human rights violations to include violations of IHL, or discuss if civilian courts have the competence to properly analyse violations of IHL.
Like Joinet, Decaux includes proposed recommendations. He expands the number of recommendations from 9 to 13, and re-orders them. For instance, Joinet's Recommendation 1 (that military courts should be prohibited from trying serious human rights violations) is Decaux's second proposal. In contrast, Decaux's first recommendation is that ‘military courts should, in principle, not have competence to try civilians, and their competence should be limited’.Footnote 77 Joinet does not include such a recommendation. Other differences include that Decaux separates the requirement of habeas into its own recommendation, adds a recommendation for independent and impartial hearings, and proposes that conscientious objectors should be tried solely by civilian courts.Footnote 78
Based on Decaux's report, in 2003 the Sub-Commission issued Resolution 2003/8, calling for the ‘composition, operation, and procedures’ of military courts to comply with ‘international standards and rules providing for a fair and just trial’.Footnote 79 The Sub-Commission also called for the drafting of ‘principles and guidelines’ relating to military courts, asking Decaux to continue with his work.Footnote 80 In preparation for compiling draft principles, the Sub-Commission also asked for input from governments, UN bodies, regional organisations, non-governmental organisations and ‘specialized institutions’.Footnote 81 It did not specifically include military sources in this list.Footnote 82 However, in a summary of its proceedings, the Sub-Commission did welcome the organisation of a seminar on the issue by the International Commission of Jurists and the Office of the High Commissioner for Human Rights, ‘including military experts’.Footnote 83
The Commission on Human Rights backed the work of the Sub-Commission, passing Resolution 2003/39.Footnote 84 Notably, the Commission endorsed the more moderate approach of Decaux, as opposed to an abolitionist stance: ‘9. Calls upon States that have military courts for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and use the duly established legal proceedings’.Footnote 85 In Resolution 2004/32 the Commission emphasised that military courts must ‘apply due process procedures that are internationally recognized as guarantees of a fair trial, including the right to appeal a conviction and a sentence’ but changed the earlier wording of 2003/39 to ‘that such courts, where required by applicable law, are an integral part of the general judicial system’.Footnote 86 Interestingly, Decaux expressed hesitation that the change ‘required by applicable law’ ‘loses the conciseness’.Footnote 87
Decaux prepared a follow-up report in 2004, based on the seminar of experts held jointly with the International Commission of Jurists.Footnote 88 His report also contained a set of 17 principles based upon his previous recommendations, which would form the foundation of his 2006 Draft Principles Governing the Administration of Justice through Military Tribunals (Decaux Principles).
Primarily, Decaux advocates that military courts must be wholly integrated into the general justice system rather than stand as a form of ‘exceptional justice’.Footnote 89 By doing so, he also notes that it protects such courts from being ‘sanctified’ or ‘demonized’.Footnote 90 He calls his work part of ‘the path of normalization – the process of “civilizing” military justice’.Footnote 91 He also emphasises the role of ‘military experts’ (perhaps to legitimise his work and obtain buy-in from member states, as his proposals would significantly constrain the exercise of military justice).Footnote 92 He notes, for example, the 17 new principles ‘revised in the light of the comments made by experts, particularly military experts’.Footnote 93 These new principles also give greater attention to IHL.
Decaux's revision includes a new Principle 1, which mandates the full integration of military courts into the general justice system. Under this provision, military courts must guarantee internationally recognised fair trial standards.Footnote 94 In his commentary on this principle Decaux explicitly references IHL. For example, he cites Article 75(4) of AP I and how it provides for due process protection, including an ‘impartial and regularly constituted court’.Footnote 95 He reiterates that Article 6 of AP II also guarantees ‘independence and impartiality’.Footnote 96 He notes that, if even in armed conflict the law requires due process safeguards, all the more so they are required in time of peace.Footnote 97
Principle 2 forbids military courts from taking jurisdiction over civilians. Interestingly, in this case, however, Decaux does not invoke IHL, despite it clearly allowing for such cases. He does remark, though, that ‘there is no doubt a grey area that deserves further investigation in order to clarify the meaning’ of ‘personnel treated as military personnel’, such as military contractors or paramilitary forces.Footnote 98 He invokes IHL again and the prohibition against holding prisoners incommunicado when discussing Principle 4, which sets out limitations on military secrecy.Footnote 99
Principle 8 delineates internationally recognised fair trial guarantees.Footnote 100 Here, too, Decaux mentions Article 75(4) of AP I. He also mentions that similar guarantees are provided for in Article 14 of the ICCPR. He cites General Comment No 29 of the Human Rights Committee according to which these guarantees are non-derogable. The Committee had noted that if fair trial rights are ‘explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations’.Footnote 101 Decaux does not discuss which standards would prevail should there be a conflict between the two.
With regard to military trials of minors (Principle 13), Decaux states that during ‘peacetime’ the CRC should be applicable.Footnote 102 He then notes that during armed conflict the CRC mentions that IHL should apply (Article 38). He then advises, however, albeit somewhat unclearly as to the specific case to which he is referring, that regarding child soldiers ‘in the case of war crimes or large-scale violations of human rights … [o]nly civilian courts would appear to be well placed to take into account all the requirements of the proper administration of justice’.Footnote 103
The most notable addition to Decaux's Principles is Principle 15: Application of humanitarian law.Footnote 104 It is interesting that towards the end of the Principles, rather than at the beginning, Decaux acknowledges the applicability of IHL. Although Principle 15 states expressly that IHL is ‘fully applicable to military courts’ in ‘times of armed conflict’, Decaux does not discuss the relationship between human rights law and IHL during armed conflict, the differences between the requirements of human rights law and IHL vis-à-vis military courts, or how some of his principles should be approached if they conflict with IHL. Also, he discusses the rules of GC III, but does not specify here the applicable rules from GC IV or the Additional Protocols.
Following the passage of two Commission Resolutions (2005/30, 2005/33), which continued to provide support for Decaux, he submitted a new report, following a ‘lively’ discussion with the Sub-Commission.Footnote 105 This new report revised the Draft Principles Governing the Administration of Justice through Military Tribunals, expanding them from 17 to 20 principles and re-ordering them. The draft was submitted to the Commission for review.Footnote 106
The ‘lively’ Sub-Commission discussion prompted significant additions to the Draft Principles. Sub-Commission member Françoise Hampson advocated the addition of a principle to allow military law to apply to civilians in times of martial law, as this was ‘preferable to no justice at all’.Footnote 107 This suggestion was added as Principle 3. Some Sub-Commission members expressed concerns about the criticisms of military courts. One noted that military justice could be ‘equal or even superior’ to civilian justice if administered by ‘competent individuals who have seen or been trained in combat and have a better understanding of what happens in wartime’.Footnote 108 He also advocated maintaining the death penalty. Another member questioned whether the Principles would be helpful in the context of failed states where ‘ordinary courts had ceased to function’.Footnote 109 This member noted that reform of the justice system in the Democratic Republic of Congo had actually begun with military justice reforms.Footnote 110 It does not appear that these criticisms were integrated.
Besides the addition of the martial law provision, several other notable changes appear in the revised draft. Principle 2 calls on military courts to observe international fair trial standards, ‘including the rules of international humanitarian law’. IHL is mentioned again in Principle 4, which was moved up from Principle 15. The commentary mirrors that of previous drafts except that a paragraph was added specifically to address situations of occupation, and noting that IHL clearly allows for military courts provided they ‘sit in the occupied territory’ and accord with ‘general principles of law’.Footnote 111 The commentary on Principle 9 (limiting military court jurisdiction for serious human rights violations) acknowledges that the draft treaty on enforced disappearances did not adopt the approach of the General Assembly Declaration on Enforced Disappearances or the approach of the 1994 Inter-American Convention on Forced Disappearance of Persons on the same topic.Footnote 112
After publication of the Decaux Principles, the text of the International Convention on Enforced Disappearances was adopted in December 2006.Footnote 113 As with the draft treaty, the final text of the Convention rejected the wording of the General Assembly Declaration, which had prohibited military courts from trying alleged perpetrators charged with enforced disappearance. Instead, Article 16 of the Convention states: ‘Any person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law’. In other words, Article 16 does not rule out the use of military courts in these cases so long as it is ‘competent, independent, and impartial’.Footnote 114
The Decaux Principles were never adopted by the Commission on Human Rights, nor to date by the Human Rights Council. The failure to endorse these Principles officially may have stemmed from the fact that they were submitted to the Commission shortly before it was disbanded and then fell off the agenda of the new Council. It is also possible that there was an absence of will on the part of member states to formally adopt these guidelines.Footnote 115
4.3. Special Rapporteur on the Independence of Judges and Lawyers
In March 2012 the issue of military courts re-emerged on the Human Rights Council agenda. The Council passed Resolution 19/31,Footnote 116 prompting a report on the administration of justice through military tribunals by the Special Rapporteur on the independence of judges and lawyers. The Rapporteur, Gabriela Knaul, presented her report to the UN General Assembly at its 2013 session.Footnote 117 The Special Procedures mandate of the Special Rapporteur on the Independence of Judges and Lawyers appears annually under the Human Rights Council Agenda Item 3.Footnote 118 Military courts and tribunals are at the ‘core’ of the Rapporteur's mandate.Footnote 119
Although Resolution 19/31 focused on the issue of fair trial standards, the Rapporteur expanded her review to include the issues of independence of military courts, competence to prosecute civilians, and competence to prosecute gross human rights violations – the latter two being the most contentious issues among member states.Footnote 120
The Rapporteur appears to depart somewhat from the more moderate approach of Decaux and indicates a return to the abolitionist stance advocated by Joinet. She questions the legitimacy of using military courts at all, claiming:Footnote 121
In many States, the primary purpose of military tribunals continues to be that of serving the interests of the military, rather than those of society, and military tribunals end up constituting a weapon for combating the so-called ‘enemy within’ rather than being a tool for disciplining the troops.
The Rapporteur set out in detail the international standards used to prepare her report. The benchmark for her evaluation was judged exclusively against the standards of international human rights law.Footnote 122 Her work in preparing the report also involved disseminating a questionnaire to states on military justice, which sought detailed responses regarding the jurisdiction and due process guarantees in the military courts and how its procedures comply with the requirements of the ICCPR.Footnote 123
Also, in contrast to the Decaux Principles – which, at least to some extent, addressed the context of armed conflict and made several references to IHL – the Rapporteur does not discuss armed conflicts or their relevance to the issue of military courts. She omits any discussion of IHL standards, even when raising particular cases where the existence of a non-international armed conflict (NIAC) is clear.Footnote 124 She does not evaluate the interplay between IHL and IHRL, or how to address conflicts between the two. She does not address the use of military courts during armed conflict, the issue of occupation (occurring in international armed conflict (IAC)), or the potential difference in how these courts should be utilised in an IAC as opposed to a NIAC. These questions should have been raised at the start of her legal analysis.
In a notable example the Rapporteur claims that ‘using military or emergency courts to try civilians in the name of national security, a state of emergency or counter-terrorism is a regrettably common practice that runs counter to all international and regional standards and established case law’.Footnote 125 She does not address whether these practices are taking place within the context of armed conflict, occupation or the concept of direct participation in hostilities. She also does not mention that IHL clearly contemplates the trial of civilians for such purposes. Surprisingly, she admits that ‘[i]nternational human rights treaties do not address the trial of civilians by military tribunals explicitly’, and acknowledges that the Human Rights Committee ‘does not prohibit the trial of civilians in military or special courts’.Footnote 126 In addition, while referencing the International Convention for the Protection of All Persons from Enforced Disappearance as a source of soft law, she does not mention that the Convention text differed markedly from the Declaration on Protection of All Persons from Enforced Disappearance, explicitly rejecting the bar on the use of military tribunals.Footnote 127
The Rapporteur concludes her report with several recommendations:
• integrating military tribunals into the general justice system;
• military courts ‘when they exist’ must meet Articles 9 and 14 of the ICCPR;Footnote 128
• ‘because they have the distinct objective of dealing with matters related to military service,Footnote 129 military tribunals should have jurisdiction only over military personnel who commit military offences or breaches of military discipline, and then only when those offences or breaches do not amount to serious human rights violations;’Footnote 130
• ‘military tribunals should be limited to criminal offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command’;Footnote 131
• ‘[t]he trial of civilians by military tribunals should be prohibited’.Footnote 132
She also calls on the Council and the General Assembly to adopt and endorse the Decaux Principles.Footnote 133
Following submission of the Report, the Council did not adopt the Decaux Principles but passed Resolution 25/4,Footnote 134 echoing the Special Rapporteur, stating that ‘military tribunals, when they exist, must be an integral part of the general justice system and operate in accordance with human rights standards, including by respecting the right to a fair trial and due process of law guarantees’. The Resolution calls on states to ensure that military courts ‘apply procedures that are recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence’.Footnote 135 It also charged the Office of the High Commissioner for Human Rights (OHCHR) to convene an ‘expert consultation’ for ‘an exchange of views on human rights considerations relating to the issues of administration of justice through military tribunals and the role of the integral judicial system in combating human rights violations’.Footnote 136
The consultation was held in November 2014 with 13 experts, predominantly experts on international human rights law.Footnote 137 Decaux was a notable participant. Only three presenters had been members of the military, though interestingly none of their presentations engaged extensively with IHL.Footnote 138 One participant, a scholar from Yale who briefly served in the US Coast Guard and was President of the National Institute for Military Justice for 20 years,Footnote 139 mentioned that the Geneva Conventions were an ‘additional issue’ to take into account.Footnote 140 Two of the military experts (Dahl and Jha) took highly critical views of military courts and favoured implementing extensive restrictions.Footnote 141 In fact, Arne Dahl, a former military official from Norway, noted that his country had abolished peacetime military courts in 1921. Patrick Gleeson, on the other hand, was the sole presenter to discuss the benefits of military courts as well as a substantive critique of the Draft Principles.Footnote 142 No ICRC representative appeared on the schedule.
Dahl offered the important point that military justice involves not only the court process, but also investigatory procedures. In other words, he notes that ‘one needs to consider the whole procedural chain from investigation via prosecution to adjudication before drawing conclusions about the qualities of a particular system of military justice’.Footnote 143 While it does not appear in his presentation, nor did it appear to be part of the overall discussion, this is another area where there is considerable divergence between the framework and requirements of IHL and human rights law.Footnote 144 Dahl acknowledges that the primary driving force for changes relating to military courts have stemmed from ‘human rights influence’.Footnote 145
Gleeson, while involved extensively in reforms of the Canadian military courts, opened his remarks ‘convinced that properly structured and empowered Military Courts play an important role in contributing to military effectiveness’, and that they can ‘minimize the risk of impunity’.Footnote 146 He also explained how they can ‘contribute to the preservation and promotion of the rule of law’ when operating in areas ‘where governmental institutions are weak or non-existent’.Footnote 147
Gleeson offered critique of the Decaux Principles, focusing primarily on Principles 8 (limiting jurisdiction to military offences committed by military personnel) and 9 (barring jurisdiction over serious human rights violations).Footnote 148 He expressed concern that ‘in some areas the principles are much too narrowly crafted’ and ‘reflect an unwarranted bias against military courts in favour of “ordinary courts or judicial tribunals”’.Footnote 149 He noted that military courts should be viewed as a ‘specialized court’ that is part of a state's justice system.Footnote 150 In addition, he points out that ‘properly constituted military courts within a nation are in no better or worse a position than civilian courts in delivering open, fair and unbiased justice’.Footnote 151
Regarding the proposal to exclude military courts from trying cases involving gross human rights violations, he rejects the approach of the Decaux Principles that ‘suggest that a non-compliant civilian court or justice system is a more acceptable option when dealing with such grave offences than would be a fully compliant military tribunal’.Footnote 152 Instead, he advocates the approach of the International Convention for the Protection of All Persons from Enforced Disappearances, which allows for ‘competent’ courts to take jurisdiction.Footnote 153 In his view ‘this is a principled approach that focuses on the attributes of the court or tribunal as opposed to its specialized function or character’.Footnote 154
He concludes his remarks by noting that in post-conflict zones, military forces are ‘frequently one of the few institutions operating in these environments that possess the resources and organisational ability to effectively and expeditiously deal with the evidence and alleged perpetrators’.Footnote 155 To exclude such actors from dealing with serious abuses ‘might well have the unintended effect of promoting impunity’.Footnote 156
During his presentation Decaux expressed the idea that, despite the disappointment with the final wording of Article 16 of the International Convention on Enforced Disappearances, he thought states could instead expand Principle 9 to include a prohibition against military investigations of serious human rights violations.Footnote 157 With regard to Principle 8 (limiting military court jurisdiction to trying military personnel for military offences), while he agreed there may be justification for using military courts in these circumstances, he did not think the same rationale should be applied to appellate jurisdiction.Footnote 158 Therefore, appeals should fall within civilian court jurisdiction.
He also mentions briefly the applicability of IHL but does not go into detail as to how these provisions should be viewed in relation to human rights law.Footnote 159 Instead, he invokes the following example, expressing concern regarding violations of the laws of war: ‘in particular violations of the “right to life” within the meaning of Article 2 of the European Convention on Human Rights. Should the use of lethal force by the armed forces be subject to the discretion of a specialized judge, a military judge?’Footnote 160 He does not elaborate on why a military judge would be less qualified to rule on ‘violations of the laws of war’ given that they would be significantly more familiar with the legal and factual context.Footnote 161
Although the Decaux Principles were yet to be adopted by the Council, and the International Covenant on Enforced Disappearances presented a setback for advocates of more stringent restrictions on military courts, Decaux did note that the European Court of Human Rights cited the Draft Principles in several cases. In Icen v Turkey, for example, the Court, citing Principle 5, found that military courts should try civilians only in ‘exceptional circumstances’ and only where there was a ‘compelling reason to justify such a situation’.Footnote 162
The renewed effort to address the issue of military courts did not result in the adoption of the Decaux Principles by the Council. Instead, the OHCHR invited states to ‘request technical assistance and advisory services’.Footnote 163
The drafting history of the Decaux Principles provides an interesting case study of how an international human rights framework, the UN Human Rights Council, sought to create a set of universal principles regulating military courts and how that body approached the issue of IHL during these efforts. Like the Council, the regional human rights systems have also taken on the issue of military courts. An examination of the approach of the African Commission on Human and People's Rights sheds light on how this regional body analyses the issue of military courts and addresses IHL within the specific context of Africa.
5. African Commission on Human and People's Rights
The African continent has been plagued by armed conflict and military rule.Footnote 164 Military courts are widespread and exercise extensive jurisdiction. Yet, as noted by legal scholar Ronald Naluwairo, ‘many military courts in African countries do not adhere to the internationally accepted principles for the administration of justice’ and instead mete out ‘injustice’.Footnote 165 As a result, the African human rights mechanisms, most notably the African Commission on Human and People's Rights, have been particularly active in seeking to regulate military courts and enforcing these regulations. In doing so, however, there is inconsistent engagement with IHL, as will be discussed below.
5.1. African Charter on Human and People's Rights
In its work the Commission relies on and interprets the African Charter on Human and People's Rights, which enshrines due process and fair trial rights.Footnote 166 Article 4 states that ‘[e]very human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right’. Article 6 forbids arbitrary arrest and detention. Article 7 addresses fair trial standards, which include the right of appeal to ‘competent national organs’ against rights violations (7a), the presumption of innocence by a ‘competent court or tribunal’ (7b), the right to be defended by one's counsel of choice 7(c), and the right to be tried within a reasonable time by an impartial court or tribunal (7d). Article 26, which provides that ‘States parties to the present Charter shall have the duty to guarantee the independence of the courts’, is also relevant to the issue of military courts.Footnote 167 Under Article 60 the Commission is authorised to ‘draw inspiration from international law’; under Article 61 the Commission shall take into consideration ‘customs generally accepted as law’, ‘general principles of international law’, and ‘legal precedents and doctrine’.Footnote 168 The Commission has interpreted these articles to allow for reference to IHL in its work.Footnote 169 The African Charter is unique in this respect as the Inter-American and European systems do not explicitly allow for reference to other areas of law.Footnote 170
5.2. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
As part of its work, the Commission, in 2003, issued the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, which directly addresses several issues related to military courts.Footnote 171 The Principles were drafted under its mandate in Article 45(c) of the Charter: ‘to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African states may base their legislation’.Footnote 172 The Principles have been used by the Commission as a benchmark in its cases and in other work.Footnote 173
The first part of the Principles sets out due process standards for ‘all legal proceedings’, which include the right to independent and impartial judges and a public hearing, and the right to be represented by counsel of one's choosing. They also include ‘equality of arms between the parties to proceedings, whether they be administrative, civil, criminal, or military’.Footnote 174 Another provision states that military courts ‘that do not use the duly established procedure of the legal process shall not be created to displace the jurisdiction belonging to the ordinary judicial bodies’.Footnote 175
Section L specifically addresses whether military courts may try civilians. The Principles note that ‘the only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel;’ military courts must respect the fair trial standards in the Charter as well as the Principles.Footnote 176 Importantly, ‘[m]ilitary courts should not in any circumstances whatsoever have jurisdiction over civilians. Similarly, Special Tribunals should not try offences which fall within the jurisdiction of regular courts’.Footnote 177 Notably, the Principles do not prohibit courts from imposing the death penalty. They also do not prohibit military courts from trying children. The Principles do, however, ban all states from fixing the age of criminal responsibility below 15, or arresting and detaining children who are younger than 15 years old.Footnote 178
The Principles conclude that ‘no circumstances whatsoever, whether a threat of war, a state of international or internal armed conflict, internal political instability or any other public emergency, may be invoked to justify derogations from the right to a fair trial’.Footnote 179 However, it does not specify what the contours of such a right might look like and the applicable law in each of these cases.
5.3. The African Commission and the Role of IHL
The African Commission on Human and Peoples’ Rights is tasked by Article 45 of the Charter to interpret the Charter upon request; to implement a communications procedure and state reporting; to facilitate dispute settlement; to appoint Special Rapporteurs; and to engage in the public promotion of human rights.Footnote 180 It has issued numerous comments on whether military court proceedings meet the requirements of Articles 4, 6 and 7 of the Charter.Footnote 181 Despite the fact that most of these cases relate to situations of armed conflict, the issue of IHL is rarely discussed.
One might conclude that because the Commission is a human rights body charged with ensuring state compliance with the rights guaranteed by the Charter, it does not view IHL as falling within its remit. Yet, the Commission is clearly cognisant of IHL and recognises its primacy in armed conflict. For instance, in the Commission's General Comment No 3 on the Right to Life, the Commission echoes the view of the ICJ in its advisory opinion in the Nuclear Weapons decisionFootnote 182 that IHL is the lex specialis and provides the benchmark for determining whether the deprivation of the right to life is ‘arbitrary’.Footnote 183
In addition, as mentioned, the Commission relies on Articles 60 and 61 as the basis upon which it can refer to applicable rules of IHL. In DRC v Burundi, the Commission cited Articles 60 and 61 to support its decision to apply the Geneva Conventions and Additional Protocols in the case, noting that they ‘constitute part of the general principles of law recognized by African States’.Footnote 184
In a 2018 Communication, Kwoyelo v Uganda,Footnote 185 regarding the case of a former child soldier who claimed to have been kidnapped, tortured and refused amnesty by the government,Footnote 186 the Commission provided, to date, the most extensive explanation of its approach to IHL. In examining the merits of the claim, the Commission first decided that the complainant had not been shot and kidnapped by Ugandan military intelligence, but rather had been shot and wounded during active combat duty.Footnote 187 The Commission then noted that because he was ‘wounded in the context of a conflict situation, while being a member of an armed rebel group’, and captured on a battlefield during active combat, it triggered the question of whether IHL was applicable.Footnote 188
The Commission began its analysis with a determination of whether the conflict at issue constituted an IAC or a NIAC in order to know which IHL rules applied.Footnote 189 The Commission determined that the conflict constituted a NIAC and because the complainant was a Lord's Resistance Army combatant rendered hors de combat, it had to analyse the law not only on the basis of the Charter, but also ‘the rules of IHL that govern the detention and treatment in detention of detainees in NIACs’.Footnote 190 The Commission clarified that ‘the provisions of the Charter persist even in times of armed conflict’ and that the ICJ has established that ‘in cases of armed conflicts human rights law and IHL rules apply complementarily’.Footnote 191 In other words, it found that both the Charter and IHL rules relating to NIAC apply concurrently and that because of this concurrence, there were various approaches the Commission could take.Footnote 192
Although both the Charter and IHL applied, the Commission noted it would ‘only make a finding of violations of the Charter’,Footnote 193 meaning that IHL rules are to ‘serve as standard by reference to which the rights of the Charter are interpreted’, rather than applied directly.Footnote 194 Therefore, in the case it would look to the standard of treatment specified in Common Article 3 relating to the treatment of detainees (noting that it had achieved the status of customary law)Footnote 195 and Articles 4 and 6 of AP II. In addition, because of the principle of lex specialis, in the event there is a tension between IHL and the Charter, the Commission would apply the rules of IHL.Footnote 196 Yet, where the alleged acts took place outside or unrelated to the conduct of hostilities, human rights law would prevail. The Commission thus determined that IHL applied until transfer to the police, and from that point the Charter would be applied directly.Footnote 197
In October 2019 the Commission reaffirmed the Kwoyelo analysis and strengthened its engagement with IHL, issuing the study ‘Addressing Human Rights Issues in Conflict Situations’.Footnote 198 The report, authorised by Commission Resolution 332, ‘presents … not only the Commission's authoritative view on human rights in conflict situations’.Footnote 199 The study emphasises the primacy of IHL, noting that while the ‘Commission does not directly apply IHL’, in situations where IHL applies the Commission uses ‘the applicable IHL rules’ rather than ‘normal human rights standards’ for assessing whether Charter rights have been violated.Footnote 200 It will be interesting to see if the Commission's future opinions will reflect the new study and if its resonance will expand beyond the Commission to the African Court on Human and People's Rights, the Court of Justice of the Economic Community of West African States (ECOWAS), and the soon to be operational African Court of Justice.Footnote 201 Yet, by applying IHL within the context of Charter rules as a gap filler, it raises the question of whether this approach weakens IHL as a separate body of law resting on far different theoretical underpinnings than IHRL, and instead subsumes IHL into IHRL as merely a specialised subset.
Despite the acknowledgement of the applicability of IHL, Commission jurisprudence addressing IHL issues in the context of military courts is scant.
5.4. Cases
The Commission has issued numerous decisions relating to the legitimacy of military courts occurring in situations of armed conflict. The following highlights several of these opinions.
5.4.1. Amnesty International v Sudan
At the end of 1999, the Commission issued a decision in the case of Amnesty International v Sudan.Footnote 202 In the midst of the armed conflict in Sudan, the government suspended the Constitution, established military courts, allowed the detention of anyone ‘suspected of being a threat to political or economic security’, allowed the President to order arrest, and suspended many fair trial guarantees.Footnote 203 With regard to the new military courts, the laws changed multiple times with increasingly draconian conditions, including limited rights of appeal and questionable standards for appointing judges.Footnote 204 Many arrested under these changes were taken at army checkpoints, military areas or conflict zones, and were subjected to the military courts. Some, including many rebels and unarmed civilians, were alleged to have been executed after summary and arbitrary trials.Footnote 205 Coupled with the new laws, more than 100 judges who opposed the establishment of these new courts were fired. The complainants challenged these new laws as violations of fair trial guarantees under the Charter. They also alleged that these dismissals were made in order to ‘systematically dismantle the judiciary’.Footnote 206
At the outset of its opinion the Commission states that even in the midst of a civil war, a state must act in ‘accordance with international humanitarian law’.Footnote 207 Nevertheless, the Commission did not refer to IHL in detail. For instance, it examined the conduct of the Sudanese government under Article 4 of the Charter regarding the right to life rather than the standard under IHL. It did not assess the status of those who were detained (POWs? Civilians? Civilians directly participating in hostilities?), the rights that their status afforded them, what constitutes a fair trial and acceptable punishments under IHL.Footnote 208 It also notes that ‘in cases of human rights violations, the burden of proof [to investigate] rests on the government’. It does not address the fact that the rule to investigate may be substantially different under IHL.Footnote 209
The Commission also examined whether Article 7 (fair trial standards) and Article 26 (guarantees of judicial independence) of the Charter had been infringed. It looked at the establishment of the special military courts and the claims that there was ‘extensive interference’ with due process, including denial of counsel, blocking the right to challenge the legal grounds for detention, and the appointment of incompetent judges.Footnote 210 The Commission highlighted the case of 28 executed army officers who were denied legal counsel.Footnote 211 The Commission found that allowing for three military officers to serve as judges on the courts violated Article 7(1)(d) (right to an impartial trial) and Article 26.Footnote 212 It also found that in dismissing the 100 or so judges the Sudanese government was depriving the courts of ‘personnel qualified to ensure they operate impartially’.Footnote 213 This action also constituted violations of Articles 7 and 26.Footnote 214 As with its analysis of Article 4, however, the Court never discussed IHL.
5.4.2. Forum of Conscience v Sierra Leone
The complainant in this caseFootnote 215 challenged, under Articles 4 and Article 7(1) of the Charter, the legitimacy of a military court that tried and sentenced to death 24 soldiers allegedly involved in a coup that overthrew the elected government of President Tijan Kabbah in the context of ongoing armed conflict in Sierra Leone.Footnote 216 The soldiers were executed in October 1998.Footnote 217 They had no right of appeal against the decision or their sentence.
The Commission opened by stating:Footnote 218
In many African countries Military Courts and Special Tribunals exist alongside regular judicial institutions. The purpose of Military Courts is to determine offences of a purely military nature committed by military personnel. While exercising this function, Military Courts are required to respect fair trial standards.
The Commission noted that because the case involved soldiers participating in a coup, it was of a purely military nature and was properly within the competence of a military court. Nevertheless, the court violated Article 7 of the Charter because it did not allow for a right of appeal. This was all the more egregious given that the punishment was irreversible.Footnote 219 It also found that this fundamental violation of due process (no right of appeal) was an arbitrary deprivation of life and violated Article 4.Footnote 220
Despite the context of armed conflict, the Commission did not refer to IHL in its analysis.Footnote 221
5.4.3. Koso v Democratic Republic of Congo (DRC)
In this 2008 decisionFootnote 222 the complainants (both civilians and soldiers) were sentenced to death by a five-judge military court after being caught stealing drums of oil. Only one of the judges of the court was a trained jurist and there was no right for review of or appeal against the sentence. The complainants alleged violations of Articles 7(a) and 26 of the Charter as well as a violation of Article 14 of the ICCPR. They sought a declaration from the Commission that a 1997 decree establishing the military court was a violation of the Charter and, specifically, the right to a fair trial. They also sought a declaration that a court having the majority of its members with no legal qualifications was a ‘flagrant violation’ of Article 26 of the Charter.Footnote 223
In its defence, the DRC government claimed that because it was involved in an armed conflict, it was empowered under its Constitution to utilise military courts.Footnote 224 It did not discuss whether its actions were in conformity with IHL.
The Commission, citing an earlier case involving the Sudan, found that ‘depriving courts of qualified staff to guarantee their impartiality, infringes on the right to have one's cause heard by competent organs … constitutes a violation of articles 7(1)(d) and 26 of the Charter’.Footnote 225 Nevertheless, although the Commission acknowledged that the decree to establish the military court was made during a situation of armed conflict, it did not discuss the relevance of this fact to the legal analysis, nor did it discuss IHL.
The Commission was critical that the military court convicted two civilians along with the three soldiers as ‘Military Courts or specialized courts … should in no case try civilians, military courts should not deal with offences which are under the preview of ordinary courts’.Footnote 226 It further reiterated that the ‘objective of the military tribunals is to adjudicate on offences of a purely military nature perpetrated by military personnel. In the dispatch of these duties, the military tribunals should abide by the norms governing a fair trial’.Footnote 227 However, it did not analyse whether the civilians were directly participating in hostilities and, if so, how the rules of IHL might alter this analysis.
5.4.4. Mgwangangume v Cameroon
In this case of 2009 the Commission examined whether the government of Cameroon had systematically violated the human rights of the peoples of Anglophone Southern Cameroon, including trying leaders of the Southern Cameroon separatist movement in the Francophone military courts of Northern Cameroon.Footnote 228 The petitioners referred repeatedly to their territory as occupied and the government of Northern Cameroon to be an occupying power.Footnote 229
Despite the claims of occupationFootnote 230 and the context of NIAC, the Commission did not invoke IHL in its analysis, although it did examine whether the government's actions complied with Article 7 of the Charter. In particular, the Commission examined the use of military courts to try the petitioners. It did not invalidate the use of military courts, noting that it had previously found that ‘[t]he military tribunals are not negated by the mere fact of being presided over by military officers. The critical factor is whether the process is fair, just and impartial’.Footnote 231 Nevertheless, the Commission also stressed that ‘very often, the military tribunals are an extension of the executive, rather than the judiciary. Military tribunals are not intended to try civilians. They are established to try military personnel under laws and regulations which govern the military’.Footnote 232
The Commission was troubled in this instance by the fact that Cameroon did not explain why the petitioners had been transferred to military courts and why those courts were located in a jurisdiction other than that in which the alleged offences had occurred.Footnote 233 While this language mirrors provisions of IHL relating to occupied territories, the Commission did not refer explicitly to it. In addition, it found that the accused were not members of the military. They should have been tried in ‘normal courts’ in the jurisdiction in which the alleged offences took place.Footnote 234 The Commission therefore found a violation of Article 7.Footnote 235
5.5. ECOWAS Community Court of Justice
As with the Commission, other courts charged with upholding the African Charter on Human and People's Rights have acknowledged the importance of IHL, but they too have not significantly engaged with it in their decisions relating to the use of military courts during armed conflict. For example, the African Community Court of Justice for the Economic Community of West African States (ECOWAS)Footnote 236 has the ability to interpret the African human rights charter and all other subsidiary legal instruments adopted by the Community. The ECOWAS Court can offer advisory opinions, hear contentious cases involving violations inflicted by legal bodies, and rule on cases involving human rights violations by member states.Footnote 237
Like the Commission, the Court recognises the importance of IHL to its work. In March 2019 the ICRC conducted a ‘first of its kind’ training for judges and staff of the Court to ‘develop the role and expertise of the judges in the application of IHL and improve the understanding of the staff of the legal framework to better support the judges’.Footnote 238
In June 2018, the Court, in Inyang v Nigeria, issued a notable opinion related to the use of military courts in Nigeria, and which is pertinent to the ECOWAS community more generally.Footnote 239 The case involved an appeal to the ECOWAS Court by two Nigerians who were arrested in 1989, convicted by a military tribunal in 1995 and sentenced to death. At the time of the arrest Nigeria had experienced a series of military coups and significant political instability, and was under military rule.Footnote 240 The complainants had been sitting on death row for 23 years and had suffered harsh conditions during their detention. They were denied access to lawyers and were unable to appeal against the decision because they were unable to obtain a certified copy of the judgment.Footnote 241 The complainants alleged that the military tribunal did not comply with the due process standards of the African Charter and that their offence fell within the jurisdiction of the regularly constituted courts and not a military court.Footnote 242 The Nigerian government responded that the military court was competent to hear the case, the defendants chose not to appeal to the appropriate body and failed to exhaust their local remedies.Footnote 243
The Court's analysis notes that the issue over the competence of the military court that sentenced the defendants in 1995 ‘was one of the most contentious issues presented by the applicant for resolution by this Court’.Footnote 244 It began its legal review by considering the requirements of Article 7 of the Charter, but did not evaluate IHL at all in the adjudication of the case. It made clear, however, that it is not enough simply to allege that a special tribunal heard the case, but that to show a violation of Article 7 there must be evidence that the tribunal was not impartial.Footnote 245
The Court found that the law that established the military court was improper on its face and in violation of Article 7, citing a decision of the Commission regarding the same law.Footnote 246 The Commission, in that decision, found that the law at issue did not allow for appeal and had placed members of the executive branch, who did not ‘necessarily possesses any legal experience’, to serve as judges on the tribunals.Footnote 247 It found that the composition of the tribunals created ‘the appearance, if not actual lack, of impartiality’, in violation of Article 7.1.d.Footnote 248 The Court ordered the prisoners’ immediate release.
6. Conclusion
As has been shown in the review of the work of the Human Rights Council and the African Commission on Human and People's Rights, it is clear that these bodies view the use of military courts as a significant human rights issue that requires extensive regulation based on IHRL, even where these courts are operating in the context of armed conflict and where IHL is applicable.
Areas where these bodies seek to limit the operation of the courts include strict limitations on the ability to try civilians and on the scope of crimes that can be adjudicated, improved access to appeal procedures, and greater integration into the general system of justice. Other issues of concern are jurisdiction over gross human rights violations, trials of minors, and the imposition of the death penalty. From a human rights perspective, officials working for these institutions would probably also endorse the abolition of military courts altogether.
Despite the fact that many of the contexts in which these institutions seek to regulate military courts involve armed conflict, there is nevertheless a significant lack of substantial and substantive engagement with IHL. When IHL is invoked, it is either usually discussed in a cursory fashion or selectively referenced (contradictory elements of IHL are ignored). In fact, although IHL is posited as the lex specialis, IHRL has often supplanted IHL as the applicable standard. In cases where IHL is applied, this is done through an IHRL lens, and therefore is approached more as a specialised subset of IHRL as opposed to a separate and independent body of law built on a different theoretical framework.
This diminishment of IHL appears to stem from several factors:
• IHL is complicated and technical and most human rights practitioners do not possess the necessary knowledge or expertise.Footnote 249
• Human rights officials view their role as limited to engaging with the relevant IHRL instruments.Footnote 250
• In some cases there may be a desire to marginalise IHL based on the misguided perception that IHL is less protective of human rights.Footnote 251
Nevertheless, given the predominant negative opinion held of military courts (not unjustifiably so given the historical record) and the often beneficial human rights safeguards developed by human rights bodies, this erosion of IHL at first glance may not appear to be of tremendous concern. For those who care about IHL, however, this development should be worrying. Similar attempts by human rights bodies to regulate areas in the IHL domain have been damaging.Footnote 252 In overlooking IHL or relegating it to a sub-specialty, these bodies ignore the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Disregarding the theoretical underpinnings of IHL may disrupt the careful balance it has struggled to achieve between humanity and military necessity, and this disruption could lead to less compliance overall with IHL (and even with human rights law). Instead, by integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions, it will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.
In contrast to the work described in this article by the Human Rights Council, the 2018 Kwoyelo decision of the African Commission on Human and People's Rights and the 2019 study on armed conflict and human rights point to a more positive direction by a major human rights institution to engage with and integrate IHL more fully into its activities and jurisprudence. Time will tell whether this takes place.Footnote 253 If it does, the work of the Commission could serve as a model not only for other regional bodies but for the Human Rights Council itself.
