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A Few Comments on a Comment: The UN Human Rights Committee’s General Comment No. 32 on Article 14 of the ICCPR and the Question of Civilians Tried by Military Courts

International Journal of Human Rights, Vol. 14, No. 7, pp. 1058-1071, December 2010

14 Pages Posted: 7 May 2009 Last revised: 19 Nov 2013

Evelyne Schmid

University of Lausanne, Centre of Comparative, European and International Law

Date Written: April 6, 2009

Abstract

In its recent General Comment No. 32, the UN Human Rights Committee (‘the Committee’) has addressed the question as to when civilians may be tried by military tribunals. This article analyses the Committee’s statements on this contentious issue and traces the negotiation history of the relevant paragraph in General Comment No. 32 on Article 14 of the International Covenant on Civil and Political Rights. The Committee insisted on a two-pronged test. First, whenever a State tries a civilian before a military or another special tribunal, the State party needs to offer the due process standards contained in Article 14 of the Covenant. Second, States are moreover required to provide objective reasons to try a civilian in a military court and must show that ordinary courts could not be used. This second condition was one of the most controversial issues during the drafting of the General Comment. This article concludes that claims of a novel and unjustified departure from previous jurisprudence are exaggerated. While the Committee’s statements on the use of military tribunals to try civilians are legally well-founded, the article recommends how the Committee could explain and defend its stance in a more robust way if faced with subsequent individual communications.

Keywords: equality before courts and tribunals, fair trial, International Covenant on Civil and Political Rights, United Nations Human Rights Committee, military tribunals

Suggested Citation

Schmid, Evelyne, A Few Comments on a Comment: The UN Human Rights Committee’s General Comment No. 32 on Article 14 of the ICCPR and the Question of Civilians Tried by Military Courts (April 6, 2009). International Journal of Human Rights, Vol. 14, No. 7, pp. 1058-1071, December 2010. Available at SSRN: https://ssrn.com/abstract=1400000

Evelyne Schmid (Contact Author)

University of Lausanne, Centre of Comparative, European and International Law ( email )

Lausanne, Vaud CH-1015
Switzerland

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