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Lex Generalis Derogat Legi Speciali: IHL in Human Rights Regulation of Military Courts Operating in Situations of Armed Conflict
Published online by Cambridge University Press: 14 January 2021
Abstract
The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.
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- Copyright © The Author(s), 2021. Published by Cambridge University Press in association with The Faculty of Law, The Hebrew University of Jerusalem
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Anne Herzberg is Legal Adviser to NGO Monitor (Israel) and the United Nations Representative for the Institute for NGO Research, a non-governmental organisation in special consultative status with the United Nations Economic and Social Council (ECOSOC) since 2013; [email protected].
References
1 See, eg, Geneva (III) Convention relative to the Treatment of Prisoners of War, 12 August 1949 (entered into force 21 October 1950) 75 UNTS 135 (GC III), arts 84, 87; Geneva (IV) Convention relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), art 66.
2 eg, Bob, Yonah Jeremy, Justice in the West Bank? The Israeli-Palestinian Conflict Goes to Court (Gefen 2019)Google Scholar; International Commission of Jurists, ‘Fuero militar y Derecho internacional: Los civiles ante los tribunales militares Volumen II’, 2018, https://www.icj.org/wp-content/uploads/2018/05/Universal-Tribunales-Militares-Vol-II-Publications-Reports-Thematic-reports-2018-SPA.pdf; Naluwairo, Ronald, ‘The Development of Uganda's Military Justice System and the Right to a Fair Trial: Old Wine in New Bottles?’ (2018) 2 Global Campus Human Rights Journal 59Google Scholar; Jason Burke, ‘Secret Trials of Thousands of Boko Haram Suspects To Start in Nigeria’, The Guardian (UK), 9 October 2017, https://www.theguardian.com/world/2017/oct/09/nigeria-begin-secret-trials-thousands-boko-haram-suspects; UN General Assembly, Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy (12 September 2006), UN Doc A/61/384, paras 18–47.
3 See, eg, Martin Lederman, ‘The Law(?) of the Lincoln Assassination’ (2018) 118 Columbia Law Review 323 (examining controversy over use of military commissions in the United States post-Civil War); Ex Parte Quirin, 317 U.S. 1, 27–36 (1942) (discussing history dating back to the Lieber Code in the US and European countries relating to the use of military commissions to try violations of the laws of war).
4 For instance, military courts may fail to be sufficiently independent from the military chain of command and therefore subject to interference; they may impose secrecy regulations or operate in closed proceedings; military judges may lack legal training or expertise on a par with that of civilian judges; see, eg, Duxbury, Alison and Groves, Matthew (eds), Military Justice in the Modern Age (Cambridge 2016)CrossRefGoogle Scholar; Dan Maurer, ‘Are Military Courts Really Just Like Civilian Criminal Courts?’ Lawfare, 13 July 2018, https://www.lawfareblog.com/are-military-courts-really-just-civilian-criminal-courts.
5 In Mustafa v Bulgaria, for example, the European Court of Human Rights (ECtHR) found that the military courts did not meet the requirements for a fair trial (specifically independence and impartiality) over a civilian (tried for committing a crime alongside a service member) on the ground that both the judges and jurors were members of the military, and that there was no ‘compelling’ reason to try a civilian in a military court: ECtHR, Mustafa v Bulgaria, App no 1230/17, 28 Nov 2019; see also ECtHR, Incal v Turkey, App no 22678/93, 9 June 1998. In Durand y Ugarte v Peru, the Inter-American Court of Human Rights (Inter-AmCtHR) found that military courts could not adequately investigate and punish military members for human rights violations as such crimes could not be considered to be of a ‘military’ nature and did not meet the requirements of an independent or impartial court as laid out in the American Convention on Human Rights: Case of Durand y Ugarte v Peru (2000) Inter-AmCtHR (ser C) No 68. In Castillo Petruzzi et al v Peru, it was found that military courts could not be established to supplant the jurisdiction of the ordinary courts: Case of Castillo Petruzzi et al v Peru (1999) Inter-AmCtHR, Judgment of 30 May 1999 (ser C) No 52.
6 See n 39 and accompanying text.
7 Mindia Vashakmadze, Understanding Military Justice Guidebook (The Geneva Centre for the Democratic Control of Armed Forces 2010) 10, https://www.dcaf.ch/sites/default/files/publications/documents/Milit.Justice_Guidebook_ENG.pdf. There is an advancing trend, however, to integrate the military justice system into the civilian system and to greatly constrain its jurisdiction: see nn 54–63.
8 ibid 11.
9 ibid 11–13 (providing a good description of the differences in various military courts). See also UN General Assembly, Office of the High Commissioner for Human Rights (OHCHR), Expert Consultation on the Administration of Justice Through Military Tribunals, 24 November 2014, Contribution of Arne Dahl, https://www.ohchr.org/EN/Issues/AdministrationJustice/Pages/ExpertConsultationonAdministrationofJusticeNovember2014.aspx.
10 Vashakmadze (n 7) 14.
11 eg, Jean S Pictet (ed), The Geneva Conventions of 12 August 1949 – Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (International Committee of the Red Cross (ICRC) 1952) 54; Lindsey Cameron and others, ‘Commentary of 2016 Article 3: Conflicts Not of an International Character’, in ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2nd edn, ICRC and Cambridge University Press 2016) 126, paras 674–88.
12 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (AP I); GC III (n 1); GC IV (n 1).
13 GC IV (n 1) art 70 refers to prosecution of ‘protected persons’.
14 ICRC, ‘General Problems in Implementing the Fourth Geneva Convention: 27-10-1998 Report – Meeting of Experts’, October 1998, https://www.icrc.org/en/doc/resources/documents/report/57jpf6.htm.
15 Dinstein, Yoram, Law of Belligerent Occupation (Cambridge 2009) 138–39CrossRefGoogle Scholar.
16 GC IV (n 1) art 68 bars the death penalty for ‘protected persons’ under the age of 18; art 76 discusses preferential treatment for child detainees. The Convention would not need to include such provisions were children excluded from the judicial process.
17 See Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC and Martinus Nijhoff 1987) para 3006Google Scholar.
18 ibid.
19 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (AP II).
20 Andreu-Guzmán, Fredrico, Military Courts and International Law (International Commission of Jurists 2004) 10Google Scholar.
21 UN General Assembly, OHCHR, Summary of the Discussions held during the Expert Consultation on the Administration of Justice through Military Tribunals and the Role of the Integral Judicial System in Combating Human Rights Violations (29 January 2015), UN Doc A/HRC/28/32, para 2.
22 ibid para 3.
23 Leonard, Elizabeth, Lincoln's Avengers: Justice, Revenge, and Reunion after the Civil War (Norton 2004) 67Google Scholar.
24 ibid 72–3; Lederman (n 3) 401.
25 In his opinion, Attorney General James Speed explained: ‘the question is one of great importance – important, because it involves the constitutional guarantees thrown about the rights of the citizen, and because the security of the army and government in time of war is involved; important as it involves a seeming conflict between the law of peace and of war’: ‘Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President’, July 1865, http://media.virbcdn.com/files/12/878e06e3f448699b-Bplact16.pdf. See also Leonard (n 23) 73; Witt, John Fabian, Lincoln's Code: The Laws of War in American History (Free Press 2012) 289–98Google Scholar.
26 eg, Duxbury and Groves (n 4); Andreu-Guzman (n 20); Aoláin, Fionnuala D Ní, ‘Principle 29: Restrictions on the Jurisdiction of Military Courts’ in Haldemann, Frank and Unger, Thomas (eds), The United Nations Principles to Combat Impunity: A Commentary (Oxford University Press 2018) 315Google Scholar (commenting that ‘[n]ormative development in international law, as well as the jurisprudence of international courts and tribunals, has increasingly stymied the operation of military courts, and affirmed that such courts must be human rights and specifically fair-trial compliant’).
27 See, eg, Ní Aoláin (n 26); Vargas, Elizabeth Santalla, ‘Military or Civilian Jurisdiction for International Crimes? An Approach from Self-Interest in Accountability of Armed Forces in International Law’ in Bergsmo, Morten and Song, Tianying (eds), Military Self-Interest in Accountability for Core International Crimes, FICHL Publication Series No. 25 (Torkel Opsahl Academic Publisher 2015) 397Google Scholar. In general, these critiques evaluate military trials of civilians that are not taking place in the context of armed conflict. These analyses rarely address the issue of civilians directly participating in hostilities and how that might have an impact on the competence of a military court or its legitimacy to try such civilians. Another issue that requires more attention is how civilian courts can manage the necessity of IHL expertise, a difficult and highly technical area of law; see Weill, Sharon, The Role of National Courts in Applying International Humanitarian Law (Oxford University Press 2014)CrossRefGoogle Scholar (taking a Gramscian approach in analysing the application of IHL by national courts, and instead advocating the use of international courts). It is unclear, however, whether international courts are necessarily more competent in addressing IHL issues (as is discussed below) or are freer from the politics and structural deficiencies she challenges; see, eg, Jinks, Derek, Maogoto, Jackson Nyamuya and Solomon, Solon, ‘Introducing International Humanitarian Law to Judicial and Quasi-Judicial Bodies’ in Jinks, Derek, Maogoto, Jackson Nyamuya and Solomon, Solon (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects (TMC Asser Press 2014) 1, 1–2Google Scholar (noting that international courts have not always adequately addressed IHL).
28 See, eg, GC IV (n 1) arts 68, 75. Contrast with the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 6, and its Second Optional Protocol.
29 Jinks, Maogoto and Solomon (n 27) 11; Shana Tabak, ‘Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law?’ in Jinks, Maogoto and Solomon (n 27) 219, 222–25; Oona Hathaway and others, ‘Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law’ (2012) 96 Minnesota Law Review 1883, 1893–94; Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310, 311CrossRefGoogle Scholar.
30 YK, Brian Sang, ‘International Humanitarian Law in the Jurisprudence of African Human Rights Treaty Bodies’ (2016) 29 Hague Yearbook International Law 1, 8Google Scholar (citing Heintze, Hans-Joachim, ‘Theories on the Relationship between International Humanitarian Law and Human Rights Law’ in Kolb, Robert and Gaggioli, Gloria (eds), Research Handbook on Human Rights and Humanitarian Law (Edward Elgar 2013) 53Google Scholar).
31 International Law Commission, ‘Fragmentation of International Law: A Study of Lex Specialis and Special Regimes in International Law’ (2003), https://legal.un.org/ilc/sessions/55/pdfs/fragmentation_outline.pdf.
32 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion [1996] ICJ Rep 226, [25].
33 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion [2004] ICJ Rep 136, [105]–[106].
34 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment [2005] ICJ Rep 168, [179].
35 Hampson, Françoise, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 549, 558–59CrossRefGoogle Scholar.
36 ibid 558. Many of these issues hinge on whether IHRL is considered to apply extraterritorially. Several states reject this proposition, while most international human rights bodies and the ICJ disagree.
37 See, eg, Wright, Quincy, The Role of International Law in the Elimination of War (Manchester University Press 1961)Google Scholar; Samuel Hartridge, ‘The European Court of Human Right's Engagement with International Humanitarian Law’ in Jinks, Maogoto and Solomon (n 27) 257, 260 (quoting Doswald-Beck, Louise and Vité, Sylvain, ‘International Humanitarian Law and Human Rights Law’ (1993) 33 International Review of the Red Cross 94, 101CrossRefGoogle Scholar: ‘[IHL] indicates how a party to a conflict is to behave in relation to people at its mercy, whereas human rights law concentrates on the rights of the recipients of a certain treatment’); Schmitt, Michael, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 795, 822Google Scholar.
38 Andreu-Guzmán (n 20) 12.
39 The Inter-American and European regional systems also have a considerable body of output on military courts, but they have been analysed extensively in the academic literature. In contrast, the African human rights bodies have been less a topic of focus, but no less deserving of study and analysis; see, eg, Sang (30) 2 and n 2 (commenting that examination of the African system has ‘not received as much, as detailed, or as sustained attention as that given to the same questions in the practice of other human rights treaty mechanisms’).
40 It is important to note that almost all of the policy work of the Human Rights Council and the Commission is conducted under the auspices of the OHCHR, and the special procedures mandate holders, advisers and other rapporteurs are engaged by the OHCHR. Although this section discusses initiatives that take place under the auspices of the Council, it is the OHCHR staff, mandate holders and consultants who engage in the actual work. In some cases these individuals are appointed and approved by the member states of the Council; in others they are selected and hired by the OHCHR.
41 The Human Rights Council began operating in June 2006.
42 The Commission was disbanded in 2005.
43 eg, Mohammed Ahmed Abu Rannat, Equality in the Administration of Justice (1969), UN Doc E/CN.4/Sub.2/296/Rev.1. In 1994 the Sub-Commission on Prevention of Discrimination and Protection of Minorities presented draft principles on fair trials and remedies. One provision sought to greatly narrow the scope of when civilians could be tried by military courts (‘Military courts do not have legal authority over civilians except in narrowly defined circumstances, for example, when the civilian has committed an offence in a military facility’: UN Economic and Social Council, Commission on Human Rights, Draft Body of Principles on the Right to a Fair Trial and Remedy (3 June 1994), UN Doc E/CN.4/Sub.2/1994/24, Annex II, para 44).
44 eg, Principle 38 of the 1997 version of the United Nations Principles to Combat Impunity includes the following: ‘Because military courts do not have sufficient statutory independence, their jurisdiction must be limited to specifically military infractions committed by members of the military, to the exclusion of human rights violations, which must come within the jurisdiction of the ordinary courts’: Louis Joinet, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political) (2 October 1997), UN Doc E/CN.4/Sub.2/1997/20/Rev.1, 38; the 1992 Declaration of the Protection of all Persons from Enforced Disappearance, art 16, states that persons charged with acts of enforced disappearances ‘shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts’: UN General Assembly, Declaration on the Protection of All Persons from Enforced Disappearance (12 February 1993), UN Doc A/RES/47/133; Principle 5 of the 1985 Singhvi Basic Principles on the independence of the judiciary (adopted by the Commission in 1989) limited military court jurisdiction solely to ‘military offences’: UN Economic and Social Council, Commission on Human Rights, Final Report by the Special Rapporteur, Mr L.M. Singhvi: Draft Universal Declaration on the Independence of Justice (24 August 1987), UN Doc E/CN.4/Sub.2/1985/18/Add.5/Rev; Principle 22(b) of the Johannesburg Principles forbids military courts from trying civilians for ‘security related crimes’: UN Economic and Social Council, Commission on Human Rights, Johannesburg Principles on National Security, Freedom of Expression and Access to Information (2 March 1996), UN Doc E/CN.4/1996/39, Annex; see Andreu-Guzmán (n 20) for more information on these instruments. Similarly, the UN Working Group on Arbitrary Detention commented that the legitimacy of military courts hinges on the observance of four rules: ‘(a) It should be incompetent to try civilians; (b) It should be incompetent to try military personnel if the victims include civilians; (c) It should be incompetent to try civilians and military personnel in the event of rebellion, sedition or any offence that jeopardizes or involves risk of jeopardizing a democratic regime; and (d) It should be prohibited from imposing the death penalty under any circumstances’; see Andreu-Guzmán (n 20) 92, 95.
45 OHCHR, ‘Special Procedures’, https://www.ohchr.org/EN/HRBodies/HRC/Pages/SpecialProcedures.aspx; OHCHR, ‘Advisory Committee’, https://www.ohchr.org/EN/HRBodies/HRC/AdvisoryCommittee/Pages/HRCACIndex.aspx.
46 The Special Procedures involved in this work have included the Working Group on Arbitrary Detention, the Committee on Enforced Disappearances, and the Special Rapporteur on the independence of judges and lawyers.
47 Other international guidelines such as those mentioned in n 46 briefly address the issue of military courts as part of broader issues (eg, judicial independence, enforced disappearances, impunity) but did not do so in a comprehensive way.
48 This section covers in considerable detail the process leading to the creation of the Draft Principles and their later promotion. This is not only because of the insight it provides into how the Human Rights Council and subsidiary bodies view military courts but also because it provides an interesting case study of how an issue works its way through the UN human rights system. It also demonstrates how the choice of drafter and his or her personal experiences affect and shape the creation of human rights instruments. As noted by Haldemann and Unger, ‘[w]hile the Principles figure prominently in contemporary human rights discourse, their drafting history is often unknown. This has much to do with the fact that there are no travaux préparatoires documenting multilateral work of the UN in the arena of human rights. The knowledge of who was behind a particular initiative is therefore often lost or transferred within a very small circle of experts. Some information can be found in sources such as decisions, requests, resolutions by the different multilateral human rights entities, but a systematic review of the drafting history is rarely provided. This leaves room for misinterpretation and distortion of the real meaning, ideas, and dynamics behind this initiative’: Frank Haldemann and Thomas Unger, ‘Introduction’ in Haldemann and Unger (n 26) 4, 6. So, too, a summary of the proceedings relating to the Decaux Principles (Section 4.2 below) is useful.
49 OHCHR, ‘The Sub-Commission on the Promotion and Protection of Human Rights 2005’, https://www.ohchr.org/Documents/HRBodies/SC/Leaflet2005_En.pdf.
50 The Sub-Commission ‘since the 1960s, … has played a pioneering role in drawing the attention of the Commission on Human Rights to the risks of human rights violations arising when the justice is administered by military tribunals’: Louis Joinet, ‘Issue of the Administration of Justice through Military Tribunals’ (9 July 2002), UN Doc E/CN.4/Sub.2/2002/4, para 1 (Joinet Report).
51 ibid.
52 Diane Orentlicher, ‘Prologue’ in Haldemann and Unger (n 26) 1. According to Ní Aoláin, ‘[t]he phrasing of Principle 38 is somewhat more tenuous than its revised form in the Orentlicher 2005 Updated Set of Principles. In the 1997 version, the provision qualifies the exclusion of military courts exclusively because they “do not have sufficient statutory independence”. By 2005, the ouster is definitive and without qualification: “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel”’: Ní Aoláin (n 26) 316.
53 Joinet Report (n 50) para 13. Joinet's examples to reflect the ‘growing consensus’ are ‘the positions of the Special Rapporteur on the independence of judges and lawyers, the Working Group on Arbitrary Detention, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Representative of the Commission on Human Rights to monitor the situation of human rights in Equatorial Guinea’: ibid para 37. It should be noted that Joinet's history linking the broadening of military jurisdiction over civilians to ‘colonial wars’, decolonisation and ‘dictatorships in Latin America’ as opposed to ‘conventional wars’ is lacking. However, according to a former Sub-Commission member interviewed by the author, Joinet was particularly affected by his experiences in monitoring military courts in Latin America and this substantially influenced his approach to the issue. Nevertheless, his rhetoric that military jurisdiction has been expanded to target ‘peaceful civil society’ cannot be universally applied, given the very real contexts of civil unrest, terrorism and violent insurgencies that surrounds much use of military courts.
54 Joinet Report (n 50) para 5.
55 ibid 4, paras 4, 17.
56 It could be argued that Joinet relied on the ICCPR (n 28) as it is the primary source of such protection in IHRL. However, IHL instruments from the outset have also embedded concepts of due process. See, eg, arts 12 (death sentences issued by military courts must be reviewed by a higher authority before being carried out), 13 (limits the jurisdiction of military courts), and 148 (prohibition of summary execution of captives) of the Lieber Code: Francis Lieber, ‘General Orders No 100: Instructions for the Government of Armies of the United States in the Field’, 24 April 1863, https://ihl-databases.icrc.org/ihl/INTRO/110.
57 Joinet Report (n 50) para 5.
58 ibid para 6.
59 ibid para 29.
60 The reason for this change is not apparent from the record.
61 Emmanuel Decaux, ‘Issue of the Administration of Justice through Military Tribunals’ (27 June 2003), UN Doc E/CN.4/Sub.2/2003/4, para 5.
62 ibid para 7.
63 ibid. UN Commission on Human Rights, Resolution 2003/39, Integrity of the Judicial System (23 April 2003), UN Doc E/CN.4/RES/2003/39.
64 ibid.
65 ibid.
66 ibid.
67 See nn 29–36 and accompanying text.
68 Decaux states: ‘In the light of this situation, two solutions are possible, without being incompatible: one can recommend the abolition …’ (Decaux (n 61) para 9). Perhaps as a result of an editing error, he does not provide the second solution in the text, creating confusion as to whether he supports abolition as an ultimate goal. Nevertheless, his recommendations appear to support permanent integration rather than abolition.
69 It appears that his more moderate stance was affected by a working paper prepared by Sub-Commission member Françoise Hampson, pursuant to Sub-Commission Decision 2002/104, on the scope of the activities and accountability of armed forces, UN civilian police, international civil servants and experts taking part in peace support operations: UN Economic and Social Council, Commission on Human Rights, Working Paper on the Scope of Activities and Accountability in Peace Support Operations submitted by Françoise Hampson (7 July 2005), UN Doc E/CN.4/Sub.2/2005/42. Hampson notes that members of the armed forces could be held accountable via courts martial conducted by the sending states and recommends that the issue is discussed further in the process spearheaded by Decaux (n 61) paras 10, 32.
70 Decaux (n 61) paras 24–34.
71 ibid para 31.
72 ibid para 23.
73 ibid para 19.
74 Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3 (CRC); UN Standard Minimum Rules for the Administration of Juvenile Justice (adopted by General Assembly Resolution 40/33 of 29 November 1985).
75 Decaux (n 61) para 85.
76 As will be discussed, this provision was explicitly rejected in the Convention.
77 Decaux (n 61) para 74.
78 ibid paras 77, 78, 84.
79 UN Economic and Social Council, Sub-Commission on the Promotion and Protection of Human Rights, Resolution 2003/8 (3 August 2003), UN Doc E/CN.4/Sub.2/RES/2003/8, chapeaux.
80 ibid para 2.
81 ibid para 4.
82 ibid.
83 ibid para 5.
84 UN Commission on Human Rights, Resolution 2003/39 (n 63).
85 ibid.
86 UN Commission on Human Rights, Resolution 2004/32, Integrity of the Judicial System (19 April 2004), UN Doc E/CN.4/RES/2004/32. Neither resolution mentions IHL.
87 Emmanuel Decaux, ‘Issue of the Administration of Justice through Military Tribunals’ (14 June 2004), UN Doc. E/CN.4/Sub.2/2004/7, para 6 (Decaux II). He does not explain exactly his concern but it appears that the new wording could be used to exclude some military courts from the requirements of being integrated and employing the same due process standards.
88 ibid. Interestingly, his report, as did previous Sub-Commission reports and resolutions, made a point of referring to this seminar as ‘the seminar of experts, including military experts’, as opposed to just ‘the seminar of experts’.
89 ibid para 7.
90 ibid.
91 ibid.
92 ibid para 8.
93 ibid.
94 ibid. ‘Principle No. 1: Establishment of military tribunals by the constitution or the law. Military jurisdictions, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. Military tribunals should be an integral part of the general judicial system and apply due process procedures that are internationally recognized as guarantees of a fair trial’.
95 ibid para 13.
96 ibid.
97 ibid.
98 ibid para 16.
99 Decaux cites GC III (n 1) section V, and AP I (n 12) art 32.
100 Decaux II (n 87) 14.
101 ibid para 34.
102 ibid para 50; CRC (n 74).
103 ibid para 50. It is unclear if Decaux is saying that it would be acceptable for a military court to try child soldiers who were not involved in war crimes or mass human rights violations.
104 Decaux writes: ‘In time of armed conflict, the principles of humanitarian law, and in particular the provisions of the Geneva Convention relative to the Treatment of Prisoners of War, are fully applicable to military courts’, and quotes GC III (n 1) arts 5, 84, 102.
105 Emmanuel Decaux, Draft Principles Governing the Administration of Justice through Military Tribunals (13 January 2006), UN Doc E/CN.4/2006/58, para 7 (Decaux Principles).
106 ibid.
107 ibid para 7.
108 ibid.
109 ibid para 8.
110 ibid.
111 ibid para 19.
112 ibid para 33.
113 International Convention for the Protection of All Persons from Enforced Disappearance (entered into force 23 December 2010) 2716 UNTS 3.
114 Gabriela Knaul, Report of the Special Rapporteur on the Independence of Judges and Lawyers (7 August 2013), UN Doc A/68/285, para 72.
115 According to ICRC officials interviewed by the author, the Decaux Principles were deemed non-workable and, as a result, do not appear on the ICRC website.
116 UN General Assembly, Human Rights Council, Resolution 19/31, Integrity of the Judicial System (23 March 2012), UN Doc. A/HRC/RES/19/31, para 8: ‘Calls upon States that have military courts or special tribunals for trying criminal offenders to ensure that such bodies are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence’.
117 Knaul (n 114).
118 UN OHCHR, ‘About the Mandate of the Special Rapporteur on the Independence of Judges and Lawyers, https://www.ohchr.org/EN/Issues/Judiciary/Pages/Mandate.aspx.
119 Knaul (n 114) para 13. The webpage for the mandate listing relevant international standards does not include any IHL instruments: OHCHR, ‘International Standards’, https://www.ohchr.org/EN/Issues/Judiciary/Pages/Standards.aspx.
120 Knaul (n 114) para 4.
121 ibid para 24.
122 ibid paras 16–19.
123 UN OHCHR, ‘Questionnaire on Military Justice’, https://www.ohchr.org/EN/Issues/Judiciary/Pages/QuestionnaireMilitaryJustice.aspx.
124 For instance, she mentions Colombia, Russia (Chechnya), Peru and Central African Republic – all accepted, or at least arguably, situations of NIAC: Knaul (n 114)) para 68.
125 ibid para 46.
126 ibid paras 46–47, 51 (citing General Comment 32).
127 ibid para 58.
128 ibid para 88.
129 This is not necessarily the case – particularly in post-conflict or peacekeeping situations, or in the context of occupation.
130 ibid para 89.
131 ibid para 98.
132 ibid para 101.
133 ibid para 92.
134 UN General Assembly, Human Rights Council, Resolution 25/4, Integrity of the Judicial System (10 April 2014), UN Doc. A/HRC/RES/25/4.
135 ibid para 10. Notably, the countries in favour of the resolution have almost all been charged with employing military courts that do not comply with any of these standards and engage in serious abuses: Algeria, Argentina, Botswana, Brazil, Burkina Faso, Chile, China, Congo, Costa Rica, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kuwait, Mexico, Morocco, Namibia, Pakistan, Peru, Philippines, Russia, Sierra Leone, South Africa, United Arab Emirates, Venezuela and Vietnam. The US voted against, while all other western countries abstained: Austria, Benin, Côte d'Ivoire, Czech Republic, Estonia, France, Gabon, Germany, Ireland, Italy, Japan, Kenya, Macedonia, Maldives, Montenegro, Romania, Saudi Arabia, South Korea, and the United Kingdom.
136 The Council called for the ‘participation of representatives of States, the special procedures, including the Special Rapporteur on the independence of judges and lawyers, the chairperson-rapporteurs of the Working Group on Enforced or Involuntary Disappearances, and the Working Group on Arbitrary Detention, the treaty bodies and regional human rights mechanisms, as well as non-governmental organizations and national human rights institutions’: ibid para 12. Surprisingly, the Council did not call explicitly for the participation of military officials or IHL experts.
137 Expert Consultation (n 9); OHCHR, ‘Agenda’, https://www.ohchr.org/Documents/Issues/AdministrationJustice/Consultation2014/Agenda.doc.
138 The three military experts were Mr Arne Willy Dahl, former Norwegian Attorney General for the Armed Forces, and former President, International Society for Military Law and the Law of War; Wing Commander (Dr) Umesh Chandra Jha (ret.), Indian Air Force; and Colonel Patrick Gleeson (ret.), former Deputy Judge Advocate General/Operations, Canadian Armed Forces Office of the Judge Advocate General.
139 Eugene R Fidell, Yale Law School Faculty, https://law.yale.edu/eugene-r-fidell.
140 Expert Consultation (n 9) Contribution of Eugene Fidell.
141 ibid Contribution of Arne Dahl.
142 ibid Contribution of Patrick Gleeson.
143 ibid Contribution of Arne Dahl.
144 Under international human rights law there is a presumptive requirement to investigate every death caused by state action. The same is not found under IHL: Schmitt, Michael N, ‘Investigating Violations of International Law in Armed Conflict’ (2011) 2 Harvard Security Law Journal 31, 51Google Scholar.
145 Expert Consultation (n 9) Contribution of Arne Dahl.
146 ibid Contribution of Patrick Gleeson, 1.
147 ibid.
148 ibid 1–2.
149 ibid.
150 ibid 2.
151 ibid (emphasis in original).
152 ibid 6.
153 ibid.
154 ibid.
155 ibid 7.
156 ibid.
157 ibid Contribution of Emmanuel Decaux, 2.
158 ibid 4.
159 ibid 5. The UN summary of the meeting includes a footnote to GC III, arts 84 and 102, as well as to GC IV, art 66: UN High Commissioner for Human Rights, Summary of the Discussions held during the Expert Consultation on the Administration of Justice through Military Tribunals and the Role of the Integral Judicial System in Combating Human Rights Violations (29 January 2015), UN Doc A/HRC/28/32 (Summary of Expert Consultation), para 63. Decaux's written remarks, however, do not mention these items and the reference to IHL in his remarks is quite tangential in the final paragraph. It is unknown if his oral presentation included this information.
160 Expert Consultation (n 9) Contribution of Decaux, 4.
161 ibid.
162 Summary of Expert Consultation (n 159) para 62. The European Court of Human Rights also referred to Principles 1, 2 and 5 in Ergin v Turkey, App no 47533/99, 9 May 2006, para 24; and Maszni v Romania, App no 59892/00, 21 September 2006, para 31.
163 Summary of Expert Consultation (n 159) para 77. In March 2018 and November 2019, Yale Law School hosted a group of legal experts to revise the Decaux Principles such that they would gain more international acceptance. That process is still ongoing, though a draft of their proposed revisions can be found at: Global Military Justice Reform, ‘Decaux Principles Workshop’, http://globalmjreform.blogspot.com/2018/04/decaux-principles-workshop.html. As noted by Naluwairo (one of the experts at the Yale conference), the Yale version offers a more nuanced approach than Decaux on the issue of whether military courts may try civilians, and it clearly acknowledges the role of IHL: Naluwairo, Ronald, ‘Improving the Administration of Justice by Military Courts in Africa: An Appraisal of the Jurisprudence of the African Commission on Human and Peoples’ Rights’ (2019) 19 African Human Rights Law Journal 43, 60CrossRefGoogle Scholar.
164 See, eg, Meredith, Martin, The State of Africa (Simon & Schuster 2013)Google Scholar; Solomon Ayele Dersso, ‘Addressing Human Rights Issues in Conflict Situations’, African Commission on Human and People's Rights (AComHPR), October 2019, 13–20.
165 Naluwairo (n 163) 44.
166 African Charter on Human and Peoples’ Rights (entered into force 21 October 1986), OAU Doc. CAB/LEG/67/3 rev. 5, (1982) 21 International Legal Materials 58. The only African country not to have ratified the Charter is Morocco; this is because of the African Union position on Western Sahara admitting it as a member state: International Justice Resource Center, ‘Following Three Decades of Isolation, Morocco Rejoins the African Union’, 6 February 2017, https://ijrcenter.org/2017/02/06/following-three-decades-of-isolation-morocco-rejoins-african-union/#:~:text=As%20a%20party%20to%20specific,monitored%20by%20UN%20treaty%20bodies.&text=All%20AU%20members%2C%20except%20South,on%20Morocco%20to%20follow%20suit.
167 ibid.
168 ibid.
169 See nn 193–212 and accompanying text; Dersso (n 164) 28.
170 Sang (n 30) 23; Hailbronner, Michaela ‘Laws in Conflict: The Relationship between Human Rights and International Humanitarian Law under the African Charter on Human and Peoples’ Rights’ (2016) 16 African Human Rights Law Journal 339, 346CrossRefGoogle Scholar.
171 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), African Union Doc DOC/OS(XXX)247 (Fair Trial Principles). The Commission issued a resolution in 1999 calling for the drafting of these guidelines. In 2018 the Commission passed a resolution relating to Somalia which referred to the Principles, noting it was ‘disturbed by the continued imposition of the death penalty’ by military courts: AComHPR, Resolution 410 (13 November 2018), Doc ACHPR/Res. 410 (LXIII). In its 2006 and 2009 Concluding Observations on the Periodic Report of Uganda, the Commission refers to the Principles, noting that it ‘clearly prohibits the trial of civilians by military tribunals’: AComHPR, ‘Concluding Observations and Recommendations on the Second Periodic Report of the Republic of Uganda’, 40th Session, 15–29 November 2006; AComHPR, ‘Concluding Observations and Recommendations on the Second Periodic Report of the Republic of Uganda’, 45th Session, 13–27 May 2009.
172 Fair Trial Principles (n 171).
173 University of Pretoria Human Rights Centre, A Guide to the African Human Rights System (Pretoria University Law Press 2016) 9Google Scholar.
174 Fair Trial Principles (n 171) A.2.a.
175 ibid A.4.e.
176 ibid section L.
177 ibid.
178 ibid section O.
179 ibid section R.
180 AComHPR, ‘Mandate of the Commission’, https://www.achpr.org/mandateofthecommission.
181 Naluwairo (n 163) section 3.
182 Nuclear Weapons (n 32).
183 At the same time the Commission recognises IHL, it recommends fundamental changes to the framework of IHL such as advocating the capture of combatants; proscribing that the use of weaponry that does not strengthen the right to life; and that new technologies should conform to ‘international law’ but not specifically to IHL; see AComHPR, General Comment No 3 on the African Charter on Human And Peoples’ Rights: The Right To Life (Article 4), 57th Session, 4–18 November 2015 (General Comment No 3): ‘F. The use of force in armed conflict … In armed conflict, what constitutes an “arbitrary” deprivation of life during the conduct of hostilities is to be determined by reference to international humanitarian law’.
184 AComHPR, Democratic Republic of Congo v Republics of Burundi, Rwanda and Uganda, Communication No 227/99, 29 May 2003, January–June 2006, paras 64, 69–70.
185 AComHPR, Communication No 431/12, 17 October 2018.
186 ibid para 93. The government denied that the claimant was a child soldier and claimed he was a war criminal charged with committing multiple grave breaches under the Geneva Conventions.
187 ibid para 141.
188 ibid para 142–43.
189 ibid para 143.
190 ibid para 148.
191 ibid para 148.
192 ibid para 149.
193 ibid para 150.
194 ibid para 151.
195 ibid para 151.
196 ibid para 152.
197 ibid para 154.
198 Dersso (n 164) 23–29.
199 ibid vi. According to Sang, however, apart from a couple of isolated decisions from the Inter-American Court of Human Rights, ‘none of the international or regional courts and tribunals have used lex specialis to analyse and elaborate how and to what extent IHL interacts with human rights law’: Sang (n 30) 8. The in-depth Commission study and its characterisation as the authoritative view of the Commission going forward appears to mark an important milestone in the regional human rights systems.
200 Dersso (n 164) xi, 23–29.
201 Sang (n 30) 38–43; Naluwairo (n 2).
202 AComHPR, Amnesty International v Sudan, Communication Nos 48/90-50/91-52/91-89/9315, 1–15 November 1999.
203 ibid para 3.
204 ibid paras 11–16.
205 ibid para 48.
206 ibid para 16.
207 ibid para 50. It does not appear that the government raised the issue of the applicability of IHL in its responses to the Commission.
208 This is not to say that the outcome of the decision was incorrect but, given that the Commission explicitly noted the applicability of IHL, it should at least have analysed what IHL required.
209 Schmitt (n 144) 51.
210 Amnesty v Sudan (n 202) paras 62–64.
211 ibid para 66.
212 ibid para 68.
213 ibid para 69.
214 ibid.
215 AComHPR, Forum of Conscience v Sierra Leone, Communication No 223/98, 6 November 2000.
216 ibid para 2; ‘Sierra Leone War-Time Leader Ahmad Tejan Kabbah Dies’, BBC News, 13 March 2014, https://www.bbc.com/news/world-africa-26563820.
217 Forum of Conscience v Sierra Leone (n 215) para 1.
218 ibid para 16.
219 ibid para 17.
220 ibid para 17, 20. Sierra Leone amended its law shortly after the complaint was brought.
221 ibid para 2.
222 AComHPR, Koso v Democratic Republic of Congo, Communication No 281/2003, 24 November 2008.
223 ibid para 9.
224 ibid para 66.
225 ibid para 79.
226 ibid para 84.
227 ibid para 85.
228 AComHPR, Mgwangangume v Cameroon, Communication No 266/2003, 27 May 2009, paras 121–22 (‘tried for various criminal offences by the Yaoundé Military Tribunal. These offences include unlawful incitement, disturbances of public peace, destruction of public property, assassination of gendarmes and civilian individuals, illegal possession of weapons and ammunition, and the illegal declaration of the independence of Anglophone Cameroon on 30 December 1999’).
229 ibid paras 16, 152, 163. The Commission did not overtly address the occupation claims but found that the Southern Cameroonians, while constituting a people, did not have the right to engage in secessionism.
230 A situation of occupation exists only in IAC. It does not appear that the claimants were legally precise in the use of their language, but the Commission also did not analyse whether the conflict at hand was an IAC or a NIAC.
231 ibid para 127 (citing AComHPR, Civil Liberties Organisation v Nigeria, Communication No 151/96, 15 November 1999).
232 ibid.
233 ibid paras 127, 209.
234 ibid para 128. The complainants alleged that Southern Cameroon is occupied by Northern Cameroon: ibid para 16. Although the Commission did not refer to IHL or ‘occupation’, it is interesting that it found that transferring outside the jurisdiction was a violation of fair trial guarantees, but it also mirrors a similar provision in IHL: GC IV, art 66 (military courts may try the accused ‘on condition that the said courts sit in the occupied territory’).
235 ibid.
236 The member states of ECOWAS are Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal and Togo: ECOWAS, ‘Basic Information’, https://www.ecowas.int/about-ecowas/basic-information.
237 ECOWAS, ‘Mandate and Jurisdiction’, http://prod.courtecowas.org/mandate-and-jurisdiction-2. Art 9(4) of the ECOWAS Community Court of Justice confers upon the court the ‘jurisdiction to determine cases of violation of human rights that occurs in member states’; art 10(c) states that ‘access to the court is open to … individuals for relief for violation of their human rights’.
238 ICRC, ‘Nigeria: Judges, Staff of ECOWAS Community Court of Justice Focus on IHL at Workshop’, 6 March 2019, https://www.icrc.org/en/document/nigeria-judges-staff-ecowas-community-court-justice-focus-international-humanitarian-law. This training raises the issue that IHL was not previously addressed in decisions of the ECOWAS Court because of a lack of expertise and competence.
239 ECOWAS Court of Justice, Inyang v Nigeria, ECW/CCJ/JUD/20/18, 29 June 2018.
240 Kenneth Noble, ‘Economic Riots are Spreading in Nigeria’, New York Times, 4 June 1989, https://www.nytimes.com/1989/06/04/world/economic-riots-are-spreading-in-nigeria.html.
241 Inyang (n 239) para 3.3.
242 ibid para 3.6.
243 ibid para 3.10. The Court, in rejecting the government's claim of failure to exhaust local remedies, dryly commented that if the charges were indeed true that the military tribunal was not impartial and the defendants were denied the right of appeal, ‘what local remedies are available for the applicants to take advantage of in the local arena?’: ibid para 6.2.3.
244 ibid para 6.1.12. The Court rejected claims regarding ill-treatment or denial of family visits for lack of proof.
245 ibid para 6.1.14.
246 ibid para 7.1–7.2.
247 ibid para 6.3.27.14.
248 ibid.
249 Kaye, David, ‘Complexity in the Law of War’ in Miller, Russell A and Bratspies, Rebecca (eds), Progress in International Law (Brill 2008) 681Google Scholar; Tabak (n 29).
250 For example, in the Las Palmeras case, the Inter-American Court of Human Rights noted that under the American Convention on Human Rights, it only has ‘competence to determine whether the acts or norms of the State are compatible with the Convention itself, and not with the 1949 Geneva Conventions’: Case of Las Palmeras v Colombia, Inter-AmCtHR, Judgment of 4 February 2000, (Ser C) No 67, [28]–[33].
251 This perception is misguided because IHL contains almost identical due process protections as IHRL and, unlike many aspects of human rights law, cannot be derogated from during armed conflict.
252 See, eg, critiques on the rise of ‘effects-based’ analysis of targeting as opposed to the intent-based framework established under IHL: Corn, Geoffrey S, ‘Targeting, Distinction, and the Long War: Guarding Against Conflation of Cause and Responsibility’ (2016) 46 Israel Yearbook of Human Rights 135Google Scholar.
253 One notable example where this is taking place is in a European Union-sponsored project in the DRC to create ‘prosecution support units’. The goal of these units is to help civil and military authorities in bringing ‘perpetrators of serious offences, such as war crimes, crimes against humanity, homicide and sexual violence, to justice’. The programme has improved rule of law and respect for human rights. According to the programme manager, ‘one of the benefits has been the link between the military and civil justice systems’. He explains that this work has fostered a ‘culture of cooperation’ rather than ‘competition’: ‘Military justice was more developed in the Democratic Republic of the Congo in the past, but we have reinforced the strength of civil justice’: European Commission, ‘Service for Foreign Policy Instruments’, https://ec.europa.eu/fpi/showcases/restoring-faith-justice-democratic-republic-congo_en.