A/HRC/28/32
12.
Umesh Chandra Jha, a retired Wing Commander in the Indian Air Force, gave an
overview of military justice in South Asian States, including Bangladesh, Bhutan, India,
Maldives, Nepal, Pakistan and Sri Lanka, where 2.4 million military personnel and 1.6
para-military personnel were subject to military justice. The British Indian military law of
1911 was the progenitor of military legal systems in South Asia. The types of trials were,
broadly speaking, summary court martial; summary/field general court martial; district
court martial; and general court martial.
13.
With regard to summary trials, Mr. Jha noted that, for officers up to the rank of
major and lower ranks, the accused was not entitled to legal assistance, the rules of
evidence were not applicable, proceedings were not open to the public, and there was no
right to appeal. Summary punishments for officers and junior commissioned officers could
include forfeiture of service/seniority up to 12 months, stoppage of pay and allowances, and
reprimand. For personnel below the rank of junior commissioned officer, summary
punishment could include detention up to 28 (and in some cases 42 days), field punishment,
extra duties, a fine, deprivation of rank, and reprimand.
14.
The other types of court martial were based on the convening authority system. Mr.
Jha explained that the power of the convening officer included the persons to tried; the
charges to be brought; the composition of the court; command over the prosecutor and the
officer for the defence, as well as the Judge Advocate General, whose role is to provide
advice on legal questions but who does not function as an advocate or a judge; confirmation
of the findings and sentence or sending back the proceeding for revision; and deciding on
post-confirmation petitions. There was no right to appeal against the decision of the
convening authority, although in India, an armed forces tribunal had appellate jurisdiction
over courts martial.
15.
Mr. Jha pointed out that the armed forces in many South Asian countries, such as
Bangladesh, India, Nepal, Pakistan and Sri Lanka, had been mandated by security and antiterrorism laws to aid the civilian authorities to address terrorism and militancy. In this
context, members of the armed forces in a number of the said States had been accused of
serious human rights violations, such as enforced disappearances, extrajudicial executions,
rape, arbitrary detention and torture. To summarize, military law in South Asian countries
did not include war crimes as defined under the Rome Statue; the concept of command
responsibility had not been incorporated into military law; the right to fair trial as defined in
article 14 of the International Covenant on Civil and Political Rights was not observed;
there was a need for manuals on the laws of war; and that civil society doubted the fairness
of military trials. Mr. Jha recommended, inter alia, the abolition of summary courts;
rationalizing the powers of the convening authority; insulating the Judge Advocate General
from the military chain of command; the abolition of degrading or humiliating forms of
punishment; legal aid for accused persons during trial and appeal; the establishment of
courts of appeals; and updating military legal systems by including the crimes contained in
the Rome Statute and the concept of command responsibility.
16.
During the discussion, the representative of Belarus stated that, to better ensure fair
trial guarantees, States should not use closed or specialized tribunals for suspected
terrorists. The representative of Mexico explained that the State had undertaken a reform in
2014 to transfer jurisdiction over alleged human rights violations by military persons to
civilian courts. The representative of the Centre for Legal Studies stated that military justice
had been used in Argentina and other Latin America countries to secure impunity for
military personnel who had committed serious human rights violations.
5
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