The International Commission of Jurists is a non-governmental organization focused on promoting the rule of law. It was founded in 1952 to investigate Soviet human rights abuses, but has expanded its practice since that time. The commissioners are 60 eminent judges, attorneys and academics from around the world. Their work has won prestigious awards from the Council of Europe and the United Nations.
In a recent publication entitled “The Right to a Remedy and Reparation for Gross Human Rights Violations,” the Commission opined:
Experience has shown that the judgment of gross human rights violations by military tribunals has frequently led to impunity for those violations, denial of the right to an effective remedy (especially as leading to prosecution and punishment of those responsible) and the denial of reparation to victims. This recurring phenomenon has led international bodies to hold that gross violations of human rights should be tried by civilian and not by military courts.
The Right to a Remedy, at 246. In turn, the Commission of Jurists defines “gross human rights violations” as:
Violations that affect in qualitative and quantitative terms the most basic rights of human beings, notably the right to life and the right to physical and moral integrity of the human person.
The Right to a Remedy, at xii. Accordingly, in the Commission of Jurists’ eyes, “gross human rights violations” would include:
Genocide, slavery and slave trade, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population, and systematic racial discrimination[.] . . . Deliberate and systematic deprivation of essential foodstuffs, essential primary health care or basic shelter and housing may also amount to gross violations of human rights.
The Commission of Jurists also endorsed the view of the UN Commission on Human Rights, which has held:
The competence of military tribunals should be limited to strictly military offences committed by military personnel and should exclude military offenses committed against the civilian population.
The Right to a Remedy, at 247. The Commission of Jurists notes that several other prominent international organizations have similarly adopted the UN Commission on Human Rights’ position.
The Commission of Jurists concluded:
In sum, the competence of military justice should be defined by a functional criterion. Military courts should have competence over offences of a military nature committed by military personnel. Gross human rights violations cannot be understood to ever constitute offences of a military nature and therefore should not, in principle, be tried by military courts.
The Right to a Remedy, at 250.
Readers may wonder what impact the International Commission of Jurists’ opinions might have on actual practice.
Some answer to that question comes in India’s most recent oral argument before the International Court of Justice in the Jadhav case (India v. Pakistan). There, India invoked the opinions of the International Commission of Jurists, as well as those from the European Parliament and the United Nations Human Rights Committee, to assail the integrity of Pakistan’s military court system. India offered further specificity in its pleadings, where, in particular, it criticized Pakistan’s military courts for being presided over by military officers rather than a judicial officer “independent of the executive.” Reply at 7. India asserted that such an arrangement is a “manifest failing” and that a judiciary independent of the executive is one of the “indispensable elements of due process” at least “in present times with the evolution of human rights jurisprudence.” Reply at 52.
It is hard not to see some potential application of that criticism to the American military justice apparatus. American courts-martial are, after all, presided over by commissioned military officers rather than officers of the judicial branch of government. To be sure, the International Commission of Jurists’ publication suggests that the organization would see no problem with having military judges preside over the trial of offenses of a strictly military nature. But, as noted above, the Commission rejects the idea that serious human rights violations – like murder or rape (as an offense against the physical and moral integrity of the human person) – could ever be properly characterized as being “of a strictly military nature.”
For commanders pondering whether to try those sorts of serious offenses in the military justice system, it might be advisable to consider whether – as India put it – “the evolution of human rights jurisprudence” is such that it would be better to have trial in a forum where the presiding judge is independent of the executive branch. Indeed, paragraph 3.1 of the Secretary of Defense’s Non-Binding Disposition Guidance, published as Appendix 2.1 to the Manual for Courts-Martial, expressly requires convening authorities to consider the fact that an accused may be “subject to effective prosecution in another jurisdiction” when determining how to dispose of a case.