New International Law

February 21, 2007

Civilian Courts vs. Military Courts in the Democratic State

An independent and impartial judiciary is an important factor in the republican concept of the separation of powers. A juridical system operating free from interference and pressure from other branches of government, guarantying the rule of law in all fields of statecraft, is vital for the democratic governance of a country.

The military establishment of a country serves as an instrument of politics and is part of the executive power bestowed with the specific authorization to use violence under the supremacy of policy. The special task of the military and its embodiment of force make it particularly necessary that the military operates within the boundaries of the constitutional and legal framework of the state. The principles for a juridical system in a democracy – independence, impartiality, and fairness – must be extended to military jurisdiction as an integral part of the overall juridical design of the nation.

It also has to be taken into account that the strict hierarchical order of the military organization makes the theoretical distinction between disciplinary and criminal offenses inevitable. Consequently, the nature of soldiering and military duty subjects military personnel, particularly soldiers, to a twofold jurisdiction: as citizens they are subjected to the civilian code of laws; as soldiers and defense personnel they are subjected to a disciplinary system that covers all the peculiarities of military duty (e.g. defection from the troops, abuse of leadership authority, etc.). As far as the distinction between disciplinary and criminal offenses is concerned, non-criminal behavior on a mere disciplinary level is normally relegated to the juridical authority of military commanders and leadership personnel and does not immediately influence the military jurisdiction in the sense of establishing military courts. However, in order to make the juridical system on the disciplinary level transparent and subject to fair treatment according to the constitutional principles, sanctioned individuals can appeal to higher levels of military authority, independent institutions such as a board of complaint or a military ombudsman, or civilian administrative courts. In some countries, like
Germany, the guarantee to appeal is given through the institution of an Independent Office of the Parliamentary Commissioner, charged also with the oversight of military disciplinary treatments.

On a conceptual level, the issue of military criminal courts can be resolved in two principle ways: a) Establishing a separate system of military courts and military justice; or b) Civilian courts as all-encompassing juridical institutions extending their jurisdiction also over the military sphere.

 A variety of implications impacts the decision which systematic to choose. Among the most prominent are: The size of the military organization along with the predominant tasks and missions (exterritorial deployments); the history and tradition of the juridical culture; the complexity of the military world and the need to establish a specified juridical expertise; the maturity of the political system and the quality of civil-military relations.

The nations of the Euro-Atlantic community have placed their systems of military justice appropriately in their normal jurisdiction, however, have structured their systems differently. For instance Austria, Denmark, Germany, the Netherlands do not have special military courts while Bulgaria, Belgium, France, Poland, Spain, the United Kingdom and the United States do. The countries decide upon the aforementioned criteria and also how they assess the utility of their juridical system within the national circumstances.

The heterogeneous picture in the domestic legislation shows a wide variety of personal, territorial, temporal and subject-matter jurisdiction and varies in terms of functions, composition, and operation from one country to another.

In several countries, nevertheless, military jurisdiction has not yet reached the levels of democratic governance. Military courts in some Latin American countries, for instance, are not independent but rather organizationally and operationally dependent on the executive. Military judges are often military personnel on active service who are subordinate to their respective commanders and subject to the principle of hierarchical obedience. The question if the military courts can observe the right to be tried and judged by an independent and impartial tribunal with full respect for judicial guarantees remains an open one. In some cases, military courts try juveniles under 18 years age and also the right to conscientious objection is often undermined. In several Latin American countries the military have such broad powers that any offence committed by a member of the military falls to their jurisdiction so that military privilege becomes a true class privilege.

In some countries military courts are authorized to try even civilians in peacetime for violations of national security or anti-terrorist laws. However, many countries like Spain, Brazil, and
Guatemala have eliminated military jurisdiction over civilians for political crimes. Military courts were and are still used to try members of the armed serves of their nations, for instance police members, who have committed human rights violations.

It is mostly for these reasons that some experts argue that in a democracy civilian courts should have the jurisdiction over all criminal acts committed by military personnel and civilians, including common crimes and violations of civil liberties. The primary task of military courts should be limited and only observed when enforcing the implementation of the military code of justice in regard to military discipline and the effective performance of a mission. The need for military discipline should only criminalize offenses against military discipline, such as the abandoning of one’s post.

The issue should, in any case, be approached from the perspective of whether or not military jurisdiction is compatible with the obligations incumbent under international human rights law with regard to both the administration of justice and gross violations of human rights.

In the European context, the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights, offers directive in this regard. According to Article 6, the military justice system should seek to minimize disparities between the treatment of armed forces’ members and civilians. Only original signatories to the European Convention may derogate from the provisions of Article 6 in their application of the military justice system while new signatories are obliged to meet the Court’s requirements.

Another important dimension regarding civilian and military justice in democracies is the issue of peacetime and wartime jurisdiction. While the constitutional design of most states does not allow for military courts in peacetime, it does so for wartime periods. However, the problem remains the same. How can the requirement that courts should be independent and impartial and guarantee due process and the observance of human rights be met under all circumstances?

It is for this reason that the idea of implementing the so controversially debated International Criminal Court was brought up. Fair and impartial jurisdiction should be upheld for cases where national military justice could not be guaranteed for reasons of domestic instabilities, civil wars, or other rogue circumstances.

Irrespectively of the way in which military jurisdiction is organized, it has to be supported by proper legal education of officers and leadership personnel. The legal provisions help every commander to observe the rule of law whenever issuing an order, and assist him in exercising appropriate command authority. It countries where military justice is built upon the legal heritage of occidental thinking, individual responsibility stands at the core of legal regulations. Servicemen have a duty to disobey illegal (criminal) orders or orders which clearly and obviously violate human dignity and cannot justify their actions by referring having committed them upon an order. The individual accountability of even servicemen and the rank and file in the military pose a tremendous responsibility on the shoulders of both officers and soldiers. Nevertheless, it is an important dimension in strengthening military jurisdiction and providing the highest possible level of lawful conduct of the military and defense personnel.

A strong and efficient system of military courts and military jurisdiction assuring impartial and objective enforcement of legal provisions also serve as an effective means to prevent professional misconduct and violations of international humanitarian law and human rights as they leave no doubt that such offenses will be persecuted by competent domestic and international judicial organs.

In a world of comprehensive security, the mingling of military and non-military threats and challenges, and increasing civil-military cooperation in terms of national and international security affairs, the issue of military justice plays an ever more important role. The moral and legal challenges in an environment that features asymmetric warfare and confronts regular soldiers and military establishments with adversaries neglecting virtually all provisions of international humanitarian law are immense. When soldiering are carrying out their missions, which demand flexibility and creative adjustment to rapidly changing conditions, legal protection as well as enforcing legally appropriate behavior under all possible circumstances are of utmost importance. 

In a democratic context, this can only be achieved if the system of military justice is a fully integrated and accepted part of national jurisdiction, irrespective of how the military legal scheme is detailed within the nation’s juridical power.

author: Viara Zaprianova Marshall, legal expert, International Law, International Relations, Civil-Military Relations, Humanitarian Law, Human Rights Law, Political Science, Political Philosophy.


1 Comment »

  1. mm.. interesting 🙂

    Comment by femdom mmf forced — July 19, 2009 @ 6:53 pm | Reply

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