Main Issues in Contemporary global military justice by Eugene Fidell

of military courts
Eugene R. Fidell
Yale Law School
Expert Consultation, Geneva, November 24, 2014
goals of
military justice
• Advance national security by ensuring discipline
• Punish and deter crime -- fairly
• Respect human rights
• Support democratic institutions
• Minimize military-civil friction
• Engage and maintain public confidence
• Encourage recruitment and retention of personnel
public confidence
(who is the public?)
Military personnel, including commanders
Parents of conscripts or potential volunteers
Legal profession and scholarly community
Executive branch
Civilian courts (Constitutional Court)
UN Human Rights Council and Committee
Regional human rights treaty bodies
Foreign governments and citizens
Types of jurisdiction
• Over the force
• Over the person
• Over the offense
• Resolution of jurisdictional disputes
• Does the scope of one aspect of jurisdiction affect the
scope of other aspects? I.e., are they interactive?
Jurisdiction over
the force
• Regular and reserve forces
• Police and gendarmeries
• Border and Coast Guards
• Firefighters
• Active duty personnel
• Before enlistment
• After enlistment
• Reservists
• Former soldiers (retired, recently discharged)
• Civilians (conscription-resisters, government employees and
contractors, military dependents, persons with no relation to
the military)
• Rarely (exceptional cases, with strict standards, Martin v. United
• Never (Salvioli and Rivas Posada partial dissent in Musaev v.
Basic approaches
and potential tests
• Basic approaches
• Statutory categorical dividing lines
• Ad hoc, case-specific
• Potential tests
• Abuse of process
• Proportionality
• Availability of a civilian forum
• United States v. Ali
• R. v. Wehmeier
• R. v. Martin
Geographical and
systemic patterns
• Common law countries
• United States
• United Kingdom
• Canada
• Latin America
• Middle East
• Egypt
• Lebanon
• Morocco (until this year)
• Sub-Saharan Africa
Martin v. UK
44. . . .While it cannot be contended that the Convention absolutely excludes the jurisdiction of
military courts to try cases in which civilians are implicated, the existence of such jurisdiction
should be subjected to particularly careful scrutiny, since only in very exceptional circumstances
could the determination of criminal charges against civilians in such courts be held to be
compatible with Article 6. . . . The power of military criminal justice should not extend to
civilians unless there are compelling reasons justifying such a situation, and if so only on a clear
and foreseeable legal basis. The existence of such reasons must be substantiated in each specific
case. It is not sufficient for the national legislation to allocate certain categories of offence to
military courts in abstracto. . . .
45. In the present case, the power to try the applicant by court-martial had a clear and
foreseeable legal basis, namely section 209(2) of the 1955 Act. . . . Together with the Judge
Advocate at first instance and the Court Martial Appeal Court, the House of Lords examined in
detail whether such proceedings would be fair and appropriate, and found, generally, that the
law permitting for the civilian members of a military entourage stationed abroad to be tried by
court-martial was of utility. Moreover, the House of Lords found that in the applicant’s
particular case there were sound practical reasons militating, at the time the Director of Public
Prosecutions made his decision, in favour of his trial by court-martial in Germany. . . . While the
Court has considerable doubts whether such considerations were sufficiently “compelling” to
justify the trial of a civilian before a military tribunal, it is not necessary for it finally to decide
the point . . . .
R. v. wehmeier
[61] . . . [T]he issue is not whether the respondent should be prosecuted at all but
whether the interest in having him tried in the military justice system is
proportional to his loss of rights when tried in that system. The only evidence in the
record on this point is the letter from the Commander, Canadian Operational
Support Command, set out earlier in these reasons. When that letter is examined
under this aspect, it is once again insufficient because it fails to address the need
for prosecution in the military as opposed to the civilian justice system. In the
absence of such a justification, we can only conclude that the effects of prosecuting
the respondent in the military justice system are disproportionate. As a result, the
respondent’s prosecution is a breach of the respondent’s right not to be deprived of
his liberty except in accordance with the principles of fundamental justice contrary
to section 7 of the Charter.
[62] . . . We should not be taken as saying that all prosecutions of civilians before
the military courts necessarily result in a breach of their rights under s. 7 of the
Charter. Each case stands to be decided on its own facts. We would say however
that where a civilian makes a s. 7 argument based on the loss of procedural rights
before the military courts, the onus shifts to the prosecution to justify proceeding
before the military courts as opposed to the civilian criminal courts. It will then fall
to the court to decide if the state interest in proceeding in the military courts is
proportionate to the civilian’s loss of procedural rights.
ICCPR Art. 14(1)
. . . [E]veryone shall be entitled to a fair and public
hearing by a competent, independent and impartial
tribunal established by law. . . .
General comment 32
The provisions of article 14 apply to all courts and tribunals within the
scope of that article whether ordinary or specialized, civilian or military.
The Committee notes the existence, in many countries, of military or
special courts which try civilians. While the Covenant does not prohibit
the trial of civilians in military or special courts, it requires that such
trials are in full conformity with the requirements of article 14 and that
its guarantees cannot be limited or modified because of the military or
special character of the court concerned. The Committee also notes 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.
The Musaev dissent
3. A close reading of article 14 would indicate that the Covenant does not even go
so far as to suggest that military justice might be applied to civilians. Article 14,
which guarantees the right to justice and due process, does not contain a single
reference to military courts. On numerous occasions — and always with negative
consequences as far as human rights are concerned — States have empowered
military courts to try civilians, but the Covenant is completely silent on the subject.
4. It is true that the Covenant does not prohibit military jurisdiction, nor is it our
intention here to call for its abolition. However, the jurisdiction of the military
criminal justice system constitutes an exception which should be contained within
suitable limits if it is to be fully compatible with the Covenant: ratione personae,
military courts should try active military personnel, never civilians or retired
military personnel; and ratione materiae, military courts should never have
jurisdiction to hear cases involving alleged human rights violations. Only under
these conditions can the application of military justice, in our opinion, be considered
compatible with the Covenant.
Musaev v. Uzbekistan (partial dissent)
Resolution of
Jurisdictional issues
Preference of the accused?
By the attorney general or senior civilian prosecutor
By a commander
By ministerial-level officials
By a court (which one?)
By a host state under a SOFA
Additional issues
Is there a neutral principle that precludes military trial of civilians across the board?
Should a few “bad apples” preclude military trial of civilians for every State?
Which military offenses should apply to civilians?
Military offenses
Human rights offenses
If there is a nexus or service-connection requirement for military justice generally, how
should it apply to the prosecution of civilians in military courts?
Free speech issues
Application of summary trials or nonjudicial punishments to civilians
Should jury membership and right to counsel be different when the accused is a civilian?
Geneva Conventions provisions for military trials (GPW art. 84, GCIV art. 66)
© 2014 Eugene R. Fidell. All rights reserved.

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