A/HRC/13/30
B.
Military tribunals
66.
It is not the first time that the Working Group observes that the right to justice is
affected by military tribunals. It has already done so in its reports (E/CN.4/1994/27 (paras.
29, 34 and 35); E/CN.4/1995/31 (para. 44); E/CN.4/1996/40 (para. 107); E/CN.4/1999/63
(paras. 49, 79 and 80); E/CN.4/2001/14 (para. 36); E/CN.4/2004/3 (paras. 58, 59 and 67);
A/HRC/4/40 (para. 6); and A/HRC/7/4 (paras. 63 to 66, 78 and 82)). In 2009, the Working
Group once again found that the trial of civilians by military tribunals usually has an
adverse effect on the enjoyment of the right to liberty of person, the right to a fair and,
above all, prompt trial, the right to be brought before a judge without delay, to be released
pending trial, to appeal against detention and to be tried in public by a legally established,
independent, competent and impartial court, the right to a presumption of innocence, to
equality of arms and to access to evidence, the right to a free and adequate defence, the
right to be tried without delay, etc.
67.
It is important to ensure that the terms of article 14 of the Covenant are not violated,
either now or in the future. That the right to liberty of person embodied in article 9 of the
Covenant is taken up together with the right to security of person is not a minor detail. The
mere fact that a court which decides over a person’s liberty is in the hands of judicial
authorities, one of whose most characteristic principles is obedience of superiors, clearly
affects the right to security of person under article 9.
68.
In the above-mentioned report contained in E/CN.4/1999/63, the Working Group
was of the opinion that “if some form of military justice is to continue to exist, it should
observe four rules:
(a)
(b)
civilians;
It should be incompetent to try civilians;
It should be incompetent to try military personnel if the victims include
(c)
It should be incompetent to try civilians and military personnel in the event
of rebellion, sedition or any offence that jeopardizes or involves risk of jeopardizing a
democratic regime; and
(d)
It should be prohibited from imposing the death penalty under any
circumstances.”
69.
In general comments No. 13 on the administration of justice (para. 4) and No. 32 on
the right to equality before courts and tribunals and to a fair trial (para. 22), the Human
Rights Committee warned of the difficulties which military jurisdiction causes for the
enjoyment of human rights and pointed out “that the trial of civilians in military or special
courts may raise serious problems as far as the equitable, impartial and independent
administration of justice is concerned. Therefore, it is important to take all necessary
measures to ensure that such trials take place under conditions which genuinely afford the
full guarantees stipulated in article 14. Trials of civilians by military or special courts
should be exceptional, i.e. limited to cases where the State party can show that resorting to
such trials is necessary and justified by objective and serious reasons, and where with
regard to the specific class of individuals and offences at issue the regular civilian courts
are unable to undertake the trials” (general comment No. 32, para. 22).
70.
In general comment No. 8 on the right to liberty and security of persons, the Human
Rights Committee describes a very frequent situation that is implicitly linked to detention
ordered by military tribunals upon the entry into force of states of emergency: one of the
common effects of states of emergency is that offences relating to public security are
referred to military tribunals. Consequently, the Committee cautions that also if so-called
preventive detention is used, for reasons of public security, it must be controlled by these
GE.10-10294
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