A/HRC/28/32
guarantees to protect the statutory independence of military judges vis-à-vis the executive
branch and the military hierarchy and to enhance the confidence of the public, the legal
profession and litigants in the impartiality of the judge and of the judiciary; and the status
of military judges, including their security of tenure, adequate remuneration, conditions of
service, pensions and age of retirement, should be determined by law, and military judges
have guaranteed tenure until a mandatory retirement age or the expiry of their term of
office, and be dismissed only on serious grounds of misconduct or incompetence, in
accordance with fair procedures set out in the law.
7.
The Special Rapporteur also recommended that the role and functions of convening
officers should be clearly defined by legislation so that they could act independently of
external pressure and be prevented from acting in ways that might hinder the independent
and impartial administration of justice, and that domestic law should identify objective
criteria for the selection of military judges on the basis oftheir integrity, ability,
qualifications and training. Lastly, she reiterated her position that States should consider
adopting the draft principles governing the administration of justice through military
tribunals.1
8.
The former Attorney General for the Armed Forces in Norway, Arne Willy Dahl,
stated that there had been significant changes in national military justice systems in recent
years. The systems could be divided broadly into “Anglo-American” systems based on
courts martial convened for the individual case, and “European continental” systems based
on standing courts; some States had even dispensed with military courts altogether, having
military penal cases heard before civilian courts. This might be a civilian court with
specialized military expertise, or a fully civilian non-specialized court. The systems could
also be different in peacetime and in wartime.
9.
Mr. Dahl concluded that the various military justice systems could be arranged along
an axis, with the traditional fully military courts martial system at the one end, and the fully
“civilianized” system at the other. The general trend for changes in military justice systems
was to move from the left to the right of the table below.
Courts martial
convened for
individual cases
Standing
military
courts
Specialized
General civilian General civilian
civilian courts courts in
courts in peace
peacetime
and war
10.
Mr. Dahl observed, however, that what might be relevant in a peacetime perspective
could prove dysfunctional when troops were deployed abroad. When soldiers committed
crimes against local civilians whom they were supposed to protect, putting the accused on
an airplane for prosecution at home did not make a good impression. Affected civilians
needed to see that justice was done, and this was best demonstrated by having deployable
courts. Status of Forces Agreements typically allowed for exercise of jurisdiction by
military courts of the sending State, while the exercise by civilian courts of jurisdiction on
foreign territory was an anomaly.
11.
According to Mr. Dahl, issues relating to the convening authority system and for the
imposition of punishment by summary procedures raised human rights concerns. He
concluded by highlighting the clear trends in military justice with regard to the rights of the
accused: more independence of judges; increased use of standing courts; increased rights to
elect trial instead of summary procedures; and increased right to legal representation.
1
4
E/CN.4/2006/58.
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