Scholarship Saturday: Whether courts-martial are suitable forums for the trial of serious offenses

By Isaac Kennen

Scholarship Editor
www.caaflog.org

The International Commission of Jurists is a non-governmental organization focused on promoting the rule of law. It was founded in 1952 to investigate Soviet human rights abuses, but has expanded its practice since that time. The commissioners are 60 eminent judges, attorneys, and academicians from around the world. Their work has won prestigious awards from the Council of Europe and the United Nations.

In a recent publication entitled “The Right to a Remedy and Reparation for Gross Human Rights Violations,” the Commission opined:

Experience has shown that the judgment of gross human rights violations by military tribunals has frequently led to impunity for those violations, denial of the right to an effective remedy (especially as leading to prosecution and punishment of those responsible) and the denial of reparation to victims. This recurring phenomenon has led international bodies to hold that gross violations of human rights should be tried by civilian and not by military courts.

The Right to a Remedy, at 246. In turn, the Commission of Jurists defines “gross human rights violations” as:

Violations that affect in qualitative and quantitative terms the most basic rights of human beings, notably the right to life and the right to physical and moral integrity of the human person.

The Right to a Remedy, at xii. Accordingly, in the Commission of Jurists’ eyes, “gross human rights violations” would include:

Genocide, slavery and slave trade, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population, and systematic racial discrimination[.] . . . Deliberate and systematic deprivation of essential foodstuffs, essential primary health care or basic shelter and housing may also amount to gross violations of human rights.

Id.

The Commission of Jurists also endorsed the view of the UN Commission on Human Rights, which has held:

The competence of military tribunals should be limited to strictly military offences committed by military personnel and should exclude military offenses committed against the civilian population.

Id. at 247. The Commission of Jurists notes that several other prominent international organizations have similarly adopted the UN Commission on Human Rights’ position.

The Commission of Jurists concluded:

In sum, the competence of military justice should be defined by a functional criterion. Military courts should have competence over offences of a military nature committed by military personnel. Gross human rights violations cannot be understood to ever constitute offences of a military nature and therefore should not, in principle, be tried by military courts.

Id. at 250.

Readers may wonder what impact the International Commission of Jurists’ opinions might have on actual practice.

Some answer to that question comes in India’s most recent oral argument before the International Court of Justice in the Jadhav case (India v. Pakistan). There, India invoked the opinions of the International Commission of Jurists, as well as those from the European Parliament and the United Nations Human Rights Committee, to assail the integrity of Pakistan’s military court system. India offered further specificity in its pleadings, where, in particular, it criticized Pakistan’s military courts for being presided over by military officers rather than a judicial officer “independent of the executive.” India's Reply at 7. India asserted that Pakistan's practice of having military officers preside as judges in military trials was a “manifest failing” and that a judiciary independent of the executive is one of the “indispensable elements of due process” at least “in present times with the evolution of human rights jurisprudence.” Id. at 52.

It is hard not to see some potential application of that criticism to the American military justice apparatus. American courts-martial are, after all, presided over by commissioned military officers rather than officers of the judicial branch of government. To be sure, the International Commission of Jurists’ publication suggests that the organization would see no problem with having military judges preside over the trial of offenses of a strictly military nature. But, as noted above, the Commission rejects the idea that serious human rights violations – like murder or rape (as an offense against the physical and moral integrity of the human person) – could ever be properly characterized as being “of a strictly military nature.”

For commanders pondering whether to try those sorts of serious offenses in the military justice system, it might be advisable to consider whether – as India put it – “the evolution of human rights jurisprudence” is such that it would be better to have trial in a forum where the presiding judge is independent of the executive branch. Indeed, paragraph 3.1 of the Secretary of Defense’s Non-Binding Disposition Guidance, published as Appendix 2.1 to the Manual for Courts-Martial, expressly requires convening authorities to consider the fact that an accused may be “subject to effective prosecution in another jurisdiction” when determining how to dispose of a case.

- Originally published on February 23, 2019 on www.caaflog.com. Preserved by archive.org, here. In the CAAFLog archive, without attribution, here.


Subsequent commentary:

stewie says:

February 23, 2019 at 2:03 PM

Doesn’t seem like this is talking about the American military justice system at all. It’s a much more overall view that takes into account a whole lot of military “tribunals” that are pale shadows of anything we would call justice. Doesn’t mean one cannot have valid criticisms of and improvement for our current MJ system. There’s plenty to consider for sure, and plenty that should be implemented.

But this is focused more on human rights violations and at any rate it seems more focused on problems with alleged victims getting justice, not about concern for the rights of the accused, which is the opposite of the criticisms many on here are focused on.

Isaac Kennen says:

February 23, 2019 at 5:58 PM

stewie,

You are correct, the United States is not a party to the Jadhav case. That has not, however, prevented the parties to that dispute from invoking the specter of the United States’ practices in the context of whether those practices (and Pakistan’s corresponding practices) comply with human rights norms. Specifically, in oral argument a few days ago (on February 19th), Pakistan asserted:

Because if it is good enough for the United States, why is it not good enough for Pakistan? Does India want Pakistan treated differently? Why? Is it not a Member of the United Nations? Is it not subject to the rule of law?

India responded:

The final submission that the relief should be the same as in the LaGrand and the Avena cases with the exception that the word “Pakistan”, should be substituted for “United States”. Fortunately no representative of the United States Government was present here; he may not have been amused. The substitution would require rewriting the Pakistan Constitution by removing the constitutional protection from a challenge on due process grounds. It would require, in Pakistan, substituting a trial by a grand jury with a trial by a Pakistani military officer and if the reverse was to be done, I do not know if military officers in the United States would be comfortable trying their own civilians and generously awarding death sentences to them on extracted confessions. This submission is hopeless. When the two legal systems are so, so far apart, you cannot say “substitute my name for that of the United States and give the same relief.”

You are also correct that the International Commission of Jurists is primarily concerned with human rights issues. They just consider having serious offenses tried by judges independent of the Executive Branch to be a human rights issue. And, they would consider murder and rape to be the sort of serious offenses (among others) that trip that trigger.

You are also correct that the Commission’s publication is primarily concerned with, in their words, the “impunity” that military courts may tend to give to serious human rights offenders – such as those who commit rape or murder. (There is, of course, a very vocal contingent of American lawmakers and victim advocates who, right or not, would agree with that contention – hence the drastic changes to the UCMJ in the past decade.) Yet, the Jadhav case shows that the Commission’s work can also be used to challenge whether aspects of the military justice system violate the right of the accused. Or, at least, India believes the Commission’s work can be used that way to assault Pakistan’s use of Executive Branch rather than Judicial Branch judges in its military tribunals.

As for what criticisms readers of this column are focused on, I couldn’t say. In my experience, the views of the vocal are not always representative. Those who speak out most readily often do not speak for the majority. That may be a truism in many contexts – online and off.