Independence, impartiality and competence of the judiciary,

including military courts

Presentation by Arne Willy Dahl at expert consultation organized by the Office of the UN

High Commissioner for Human Rights

Monday, 24 November 2014, Geneva

 

More than military courts

• Investigation and prosecution

• Summary punishment systems

• Extended sense: All courts that handle military penal cases.

History

• The commanding officer’s need to maintain discipline

• Practical obstacles

• Relationship between warlord and State

• Situation today different

Perceptions of the Armed Forces

• Branch of the executive?

• Experts?

• Heroes?

• Guardians of the State?

• In the long run: The Armed Forces need the confidence of the population at large.

Evident solution?

• Independent courts

• Fully civilianized or some compromise solution?

Trends in Military Justice

• Numerous changes in a large number of national military justice systems in recent years or decades.

• Simplification necessary to see trends.

Two groups

• “Anglo-American” systems based on courts-martial convened for the individual case, and

• “European continental” systems based on standing courts.

Distribution along an axis

Courts-martial convened for the ind. case

Standing military courts

Specia-lized civilian courts

General civilian courts in peace

General civilian courts in peace and war

From left to right

• In more than a dozen countries

• Exeption: Australia at status quo

• Minor exception: Germany centralized cases from missions abroad to one court

Human rights influence

• ECHR Article 5 paragraph 1 (a):Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law; …

• ECHR Article 6 paragraph 1:In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

General distrust

UK media on Iraq prosecutions:

- Are cases covered up?

- Why are you trying to ruin a decorated senior officer’s career by prosecuting him?

- Why have you prosecuted the poor soldier when it was the highly paid officer who should take responsibility?

- Why are you prosecuting anybody for doing a dangerous job in an operation we should never have embarked on in the first place?

Counter-arguments

• Extra-territorial jurisdiction and portability

• Jurisdiction over certain civilians

• Military expertise

The issue of independence

• Recent example from Norway: Staying the emperor’s friend.

• Courts-martial and the jury system– Members appointed or drawn by lot?– Career after delivering verdict– Anonymity?

• Standing courts: Who decides the career of the judge?

Judge Paavo Alkio’s diary

• Division commander wants more capital punishments.

• The judge focuses on the guilt of the individual accused.

• Did he get his applications for leave granted? To whom were medals awarded?

Suggested conclusions

Trends toward:

•More independence to judges

•Standing courts

•Increased right to elect trial instead of summary procedures

•Increased right to legal representation

Tendency to shift from military to civilian jurisdiction

• Restricting the competence of military courts

• Abolishing military courts

• Abolishing military prosecution

The important question

• Should military commanders give up their control of the military justice?

• However: Should the process run to the other extreme?

• Or is there a «golden middle way» to be sought?

Thank you for your attention