However, the question arises: do military justice systems meet human rights standards? The European Convention on Human Rights (ECHR) has significantly influenced the development of national military justice systems in Europe, particularly regarding the independence of judicial bodies and the improved application of fair trial guarantees by military courts. Changes in the combat environment, the expansion of modern armed forces’ powers, and the need for greater combat effectiveness may also contribute to the reform of military justice. National armies are increasingly deployed abroad to ensure peace and security, as well as to combat terrorism at the domestic or international levels. Armed forces may be deployed within countries to address long-term crises or internal armed conflicts. Units of a national army may be integrated into joint military forces. This may necessitate adapting military justice systems to meet various contemporary challenges.
Legal Traditions of Military Justice
There are significant differences between military justice systems based on common law (the Anglo-Saxon tradition) and those based on civil law (the continental European tradition).
Common law systems (e.g., the United States, the United Kingdom, Australia, New Zealand, South Africa) have military tribunals that convene on a case-by-case basis, whereas permanent military courts (or civilian courts with specialized judges) operate in civil law systems.
However, common law countries are increasingly moving toward establishing a system of permanent military courts. One of the main drivers of this trend is the belief that it enhances the flexibility of the military justice system and is compatible with international human rights standards.
One of the key differences between these two legal traditions relates to the role of commanders in the military justice system. In common law countries, commanders play an important, even central, role at various stages of a case. They may be involved in the detection and investigation of offenses. Further powers may include the referral of charges and other functions during the trial and post-trial stages. In civil law systems, the commander’s role typically ends after the offense is detected and the initial investigation is completed.
Military justice systems in common law countries are based on the exclusive jurisdiction of military courts over offenses committed by military personnel (sometimes their jurisdiction extends to certain categories of civilians).
In a large number of countries in continental Europe, military offenses fall under the jurisdiction of civilian courts. For example, Germany has no permanent military courts. Administrative (disciplinary) tribunals handle offenses committed during military service, while civilian courts focus on criminal offenses.
In many military justice systems, legislation establishes civilian appellate courts, and sometimes relies on the civilian Supreme Court as the highest appellate body. For example, in Canada, the civilian Supreme Court is the highest court of appeal after the Court Martial Appeal Court. In Hungary, military judges of the Supreme Court serve at the first and appellate levels. One of the chambers of the Supreme Court of Poland specializes in military offenses. According to Article 183(1) of the Polish Constitution: “The Supreme Court exercises oversight over the decisions of general and military courts.”
Military courts
Civil courts
Experience
Advantages:
Military judges have experience in the field of military criminal law and service procedures. They have a good understanding of the specifics of military life and culture.
Disadvantages:
Civilian judges may lack specialized knowledge of military affairs and sufficient experience in applying military criminal law.
Independence
Disadvantages:
As military personnel, military judges may be subject to the chain of command. Therefore, they may defer to the opinion of the commander responsible for a particular case (this is offset by the established principle of judicial independence).
Advantages:
Civilian judges are not subject to the military hierarchy. Therefore, incentives to defer to the decisions of military representatives may be weaker.
Efficiency
Advantages:
Expedited procedures for hearing minor offenses and disciplinary violations.
Disadvantages:
No guarantees that minor offenses will be heard quickly.
Currently, two main trends are evident in military justice. The first is the transfer of judicial authority from military to civilian courts. The second is the restriction of military courts’ jurisdiction to military personnel, excluding civilians from their scope.
In addition, many national military justice systems are undergoing review and reform to enhance their effectiveness and compatibility with international human rights guarantees.
The UN Special Rapporteur on the Independence of the Judiciary and the UN Working Group on Arbitrary Detention recommend limiting military jurisdiction. Their recommendation is based on “current trends in the development of international law aimed at prohibiting the trial of civilians by military tribunals.”
This issue should be considered in the context of recent developments in international human rights law, particularly in light of the practice of the UN Human Rights Committee and the practice of the European Court of Human Rights (ECHR). In his report dated August 7, 2013, the UN Special Rapporteur on the Independence of Judges and Lawyers identified certain limitations on the adjudication of civil cases in military courts: “The adjudication of civil cases in military courts should be strictly limited to exceptional cases involving civilians who are treated as military personnel by virtue of their functions and/or geographical presence, and who are suspected of committing an offense outside the territory of the state, as a result of which regular courts (local or of the state of origin) cannot participate in the proceedings.”
The Paris Minimum Standards on Human Rights Norms in States of Emergency
of the International Law Association (1984) also state that: “… Civil courts must have and retain jurisdiction over all proceedings against civilians concerning security breaches and related offenses; the initiation of any such proceedings prior to their transfer to a military court or tribunal is prohibited. Such prohibitions are contained in the Basic Principles on the Independence of the Judiciary, adopted by the UN General Assembly.”
In General Comment No. 32 on Article 14 of the International Covenant on Civil and Political Rights (1966), the UN Human Rights Committee noted: “The provisions of Article 14 apply to all courts and tribunals falling within the scope of this article, whether of general jurisdiction or specialized, civil, or military. The Committee notes that in many countries there are military or special courts that try civilians. Although the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such courts fully comply with the requirements of Article 14 and that its guarantees may not be restricted or altered by the military or special nature of the court in question. The Committee also notes that the trial of civilians in military or special courts may pose serious obstacles to the fair, impartial, and independent administration of justice. It is therefore important to take all necessary measures to ensure that such trials are conducted under conditions that genuinely provide the full guarantees set forth in Article 14.
Trials of civilians conducted by military or special courts must be exceptional, that is, limited to cases where the State Party can demonstrate that such a trial is necessary and justified by objective and serious reasons and concerns a specific class of persons and offenses that ordinary civil courts are unable to hear.”
Thus, one possible justification for resorting to military courts is ensuring effective access to justice. However, this presupposes that the military justice system meets the fundamental requirements of judicial independence and fair trial.
One of the main challenges facing military justice is finding ways to enhance the independence of military courts. When analyzing the effectiveness and reform of the military justice system, international standards on this issue must be taken into account. The UN Human Rights Committee notes that the requirement for independence concerns: “… the procedures and qualifications for the appointment of judges, as well as guarantees regarding the security of their tenure, the conditions governing the extension, transfer, suspension, and termination of their functions, and the actual independence of the judiciary from political interference by the executive or legislative branches.”
Many countries are modifying their military justice systems by incorporating civilian elements to ensure a higher degree of judicial independence. For example, cases involving military personnel are increasingly being handled by prosecutors rather than military investigators. The independence of military judges can be strengthened in various ways. One such method is to increase the number of military personnel replaced by civilians. However, this does not mean that certain military justice systems cannot, in principle, meet the requirements of judicial independence. In some countries of Eastern and Central Europe, the safeguards applicable to civilian judges are equally applicable to military justice systems (for example, Bulgaria, Romania, and Poland).
If a military justice system is truly independent and meets all requirements for impartiality, it can be viewed as an important tool for combating impunity within military institutions. Such systems enjoy greater public trust and contribute to strengthening the combat effectiveness of the armed forces.
International human rights obligations and the military justice system’s compliance with these obligations must always be taken into account. This applies to all possible reform contexts. Careful consideration should be given to which experiences from other countries (regarding reform processes and lessons learned) could be most beneficial to reformers. This may be particularly relevant when legal systems are closely related or belong to the same legal tradition (for example, Australia, Canada, the United Kingdom, and the United States belong to the common law tradition and have benefited significantly from each other’s reform experiences). However, in every case, the local context and circumstances should be taken into account. Although a number of countries in a given region may have similar experiences with military justice reform (for example, in Latin America, Southeast Asia, or Central and Eastern Europe), the situation in some countries is quite specific, such as in Ukraine, where judicial authorities face the need to impose disciplinary and criminal liability on both military personnel and members of volunteer battalions.
International experience in European countries reflects various approaches to defining the role of military courts within the justice system; however, most countries with a military justice system have designated these courts as specialized. For example, the Constitution of Belgium provides that the structure of military tribunals, their jurisdiction, as well as the rights and duties of their members, are established by separate laws. According to Article 93 of the Constitution of Greece, courts are divided into administrative, civil, and criminal courts, which are established in accordance with special laws. Special laws regulate matters concerning juvenile courts, as well as military field tribunals, naval courts, and air force courts. Under the Constitution of Luxembourg, the organization of military courts and the status of judges of these courts are determined by a special law. The Basic Law of the Netherlands provides for two categories of courts in the judicial system: those of general and special jurisdiction. Courts of special jurisdiction include administrative and military courts. Under the Polish Constitution, justice is administered by the Supreme Court, general courts, administrative courts, and military courts.
The jurisdiction of military courts in European countries is also highly diverse. For example, in Spain, where the judicial system is based on the principle of unity, Article 117 of the Constitution provides that the administration of military justice shall be regulated by law exclusively in the military sphere and under conditions of siege, in accordance with the principles of the Constitution. Article 215 of the Portuguese Constitution states that military tribunals have jurisdiction over cases involving crimes that are, in essence, military in nature. The same article provides that, where there are serious grounds, the law may extend the jurisdiction of military tribunals to crimes committed with particular cruelty that are equated with military offenses. In addition, the law may grant military tribunals the authority to impose disciplinary sanctions. Germany takes a moderate stance in this regard: it has military criminal courts for the armed forces, which are subordinate to the Minister of Justice, with the Federal Supreme Court serving as their highest appellate court.
As for the status of military judges, their composition is generally made up primarily of military personnel. For example, in Poland, only professional military personnel may serve as military judges. A military lawyer must hold the rank of officer. A judge who is not a professional lawyer (a lay judge) and representatives of military personnel must hold a military rank no lower than that of the defendant. In Greece, the composition of military field, naval, and air force courts consists of members of the armed forces’ legal service, who are subject to appropriate guarantees of independence. An important factor in determining the status of military courts in European countries is that in many of them, military courts operate differently in peacetime and wartime, based on different rules and, as a result, have different scopes of authority. For example, under the Polish Constitution, a simplified procedure for judicial proceedings may be established during wartime.
In Ukraine, the system of military courts was abolished in 2010 with the adoption of the Law of Ukraine “On the Judicial System and the Status of Judges.”