Principle 29: Restrictions on the Jurisdiction of Military Courts
The United Nations Principles to Combat Impunity: A Commentary, (Oxford University Press 2018).
Posted: 10 Jun 2018
Date Written: May 1, 2018
International human rights and international humanitarian law broadly agree on the framework principles applicable to the administration of justice, including military jurisdiction. Among these general principles are included the notion of equality before courts; the right of every person to be neutrally judged by competent, independent and impartial courts; the requirement of legality; and the right to an effective and fair trial. Principle 29 of the United Nations Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity broadly affirms the exceptionality of military courts but not their complete ouster. Principle 29 explicitly excludes the adjudication of human rights’ violations by military courts, mandating ordinary domestic courts as the only appropriate venue of judicial oversight. Nonetheless, military courts remain functionally important for the routine and uncontroversial deployment of military law consistent with international law. This chapter explores contemporary challenges emerging in determining whether military courts have any legal authority to judge civilians (functionality principle), whether new wars and the increasingly legalized exceptionality of military jurisdiction is rewriting hitherto accepted practice on restrictive and exceptional competence for such bodies and the obstacles that military tribunals pose for victims seeking justice for human rights and humanitarian law violations. I argue that incompatibility may be more pronounced in fragile, transitional and conflict affected states where prior histories of human rights violations create greater sensitivity to the use of exceptional procedure and exceptional courts. Nonetheless, normative development in international law as well as the jurisprudence of international courts and tribunals have increasingly stymied the operation of military courts, and affirmed that such courts must be human rights and specifically fair trial compliant.
Full Article not available due to Publisher Restrictions.
Keywords: Military Commissions, Guantanamo, Military Law, Due Process, Human Rights Violations, Fair Trial
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