A/HRC/7/4
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arrest. Some have been held incommunicado at undisclosed places of detention, where they are
at risk of ill-treatment. The Working Group was further informed of cases in which military laws
had been amended by executive decree during a state of emergency in order to give power to
military courts to try civilians for a wide range of offences and in some cases with retroactive
effect.
2. Concerns
64. The Working Group reiterates its concerns and recalls that it has continuously considered
that states of emergency are a root cause of arbitrary detentions and cautioned against their
promulgation. Given the frequency of arbitrary detentions occurring in such situations, it would
like to remind Governments that they may only be imposed in strict compliance with the
principle of proportionality. Each measure taken thereunder, including the suspension of and
restrictions on derogable fundamental rights and freedoms, must also pursue a legitimate goal, be
necessary and appropriate to the goal to be achieved.20 Whatever the threat, under no
circumstances may detention based on emergency legislation last indefinitely. The Working
Group attaches particular importance to the existence of effective internal control mechanisms
over the legality of detention. It considers the remedy of habeas corpus as one of the most
effective means of preventing and combating arbitrary detention. It must not be suspended or
rendered impracticable in states of emergency.
65. Broadening military jurisdiction in order to try civilians with retroactive effect during
states of emergency inevitably touches upon the right to fair trial guarantees entrenched in
article 14 of the International Covenant on Civil and Political Rights (ICCPR) and article 10 of
the Universal Declaration of Human Rights. In the light of its experience, the Working Group
has always taken a cautious approach regarding military or special jurisdictions in general and
extending such jurisdiction to civilians in particular. It has done so since, in almost all cases,
military courts involve serious risks of arbitrariness, because of the applicable procedure and the
corporative nature of their membership. They all too often give the impression of applying a
double standard, depending on whether the person on trial is a civilian or a member of the
military.
66. The Working Group understands that article 14 of the ICCPR does not rule out trials
before military courts as long as all fair trial standards set out in article 14 are guaranteed.
However, it is of the opinion that States must provide objective and serious justification for
trying civilians before military courts. Such trials may only be conducted if civilian courts are
unable to deal with a specific class of individuals or offences. Trials of civilians before military
or special courts must be the exception.21
20
Human Rights Committee general comment No. 29 (2001) on derogations during a state of
emergency, in particular paragraphs 4 and 5.
21
Human Rights Committee general comment No. 32 (2007) on article 14: Right to equality
before courts and tribunals and to a fair trial, paragraph 22.
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