International Standards of Military Courts. European Experience

Most modern military justice systems were established many years ago and have changed significantly over time. It is well known that military justice systems operate in parallel with civilian ones, because civilian judges usually do not have the necessary expertise in military matters. The basis for the existence of a specialized judicial system is the unique nature of military life, where discipline, organization, and hierarchy play a decisive role. These principles are fundamental to maintaining the combat capability and combat readiness of the armed forces. Cases must be handled quickly, and punishments for certain offenses can be quite severe.

However, the question arises as to whether military justice systems meet human rights standards. The European Convention on Human Rights (ECHR) has significantly influenced the development of national military law systems in Europe, particularly regarding the independence of judicial bodies and the better application of fair trial guarantees by military courts. Changes in the combat environment, the expansion of the powers of modern armed forces, and the need for better combat capability may also contribute to the reform of military justice. National armies are increasingly being deployed abroad to ensure peace and security, as well as to combat terrorism at the domestic or international level. Armed forces may be deployed within countries to address long-term crises or intrastate armed conflicts. Units of a national army may be integrated into joint military forces. This may lead to the need to adapt military justice systems to the various challenges of the modern era.

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 (for example, the United States, Great Britain, Australia, New Zealand, and South Africa) have military tribunals that are convened on a case-by-case basis, while 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. Among the main drivers of this trend is the belief that it improves the flexibility of the military justice system and that it is compatible with international human rights standards.

One of the main 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 the proceedings. They may participate in the detection and investigation of offenses. Further powers may include the referral of charges and other functions at the judicial and post-judicial stages. In civil law systems, the role of the commander usually ends after the detection of an offense and the initial investigation.

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 as well).

In a large number of continental European countries, 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 a civilian supreme court as the highest appellate body. For example, in Canada, the civilian Supreme Court is the higher instance above the Court Martial Appeal Court. In Hungary, military judges of the Supreme Court act at both the first instance and appellate levels. One chamber of the Supreme Court of Poland specializes in military offenses. In accordance with Article 183, paragraph 1 of the Polish Constitution: “The Supreme Court shall exercise supervision over the decisions of general and military courts.”

Military courts versus civilian courts — a comparative overview.

Military courts offer certain advantages in terms of expertise: military judges have experience in military criminal law and service procedures and have a thorough understanding of the specifics of military life and culture. At the same time, a notable disadvantage on the civilian side is that civilian judges may lack specialized knowledge of military affairs and sufficient experience in applying military criminal law. Regarding independence, military courts face a potential drawback in that military judges, as servicemembers, may be subordinate to the chain of command and therefore inclined to defer to the opinion of the commander responsible for a given case — though this is mitigated by the enshrined principle of judicial independence. Civilian judges, by contrast, are not subject to military hierarchy, and incentives to comply with the decisions of military representatives may accordingly be weaker, which constitutes an advantage in terms of independence. In terms of efficiency, military courts benefit from accelerated procedures for handling minor offenses and disciplinary violations, while civilian courts offer no guarantee that minor offenses will be dealt with promptly.

At present, two main trends can be observed in military justice. The first is the transfer of judicial authority from military to civilian courts. The second is the restriction of military court jurisdiction to military personnel, with civilians excluded from its scope.

In addition, many national military justice systems are subject to review and reform aimed at improving efficiency 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 “modern trends in the development of international law aimed at prohibiting the trial of civilians before military tribunals.”

This issue should be examined 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 (ECtHR). In his report of 07.08.2013, the UN Special Rapporteur on the Independence of Judges and Lawyers identified certain restrictions on the trial of civilian cases in military courts: “The trial of civilian cases in military courts should be strictly limited to exceptional cases concerning civilians who are assimilated to military personnel by virtue of their functions and/or geographical presence, who are suspected of having committed an offense outside the territory of the state, as a result of which regular courts (local or of the state of origin) are unable to participate in the trial.”

The Paris Minimum Standards on Human Rights Norms in a State of Emergency of the International Law Association (1984) also indicate that: “… Civilian courts shall have and retain jurisdiction over all proceedings against civilians concerning security violations and related offenses; the institution of any such proceedings before 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 stated: “The provisions of Article 14 apply to all courts and tribunals within the scope of that article, whether of general jurisdiction or specialized, civilian or military. The Committee notes that in many countries there exist military or special courts which try civilians. While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials fully respect the requirements of Article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems with respect to the equitable, impartial, and independent administration of justice. Therefore, it is important to take all necessary measures to ensure that such trials genuinely provide full guarantees as envisaged in Article 14.

Trials of civilians by military or special courts should be exceptional, that is, limited to cases where the state party can show that recourse to such trials is necessary and justified by objective and serious reasons and concerns a specific category of individuals and offenses that ordinary civilian courts are unable to adjudicate.”

Thus, one possible justification for recourse to military courts is ensuring effective access to justice. However, this presupposes that the military justice system meets the basic requirements of judicial independence and fair trial.

One of the central challenges in 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 matter must be taken into account. The UN Human Rights Committee notes that the requirement of independence concerns: “… The procedure and qualifications for the appointment of judges, as well as guarantees in relation to their security of tenure, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch or the legislature.”

Many countries are modifying their military justice systems by incorporating civilian elements in order 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 way is to increase the number of replacements of military personnel by civilians. However, this does not mean that individual military justice systems cannot in principle satisfy the requirements of judicial independence. In some countries of Eastern and Central Europe, the guarantees applicable to civilian judges apply equally to military justice systems (for example, Bulgaria, Romania, and Poland).

If the military justice system is truly independent and satisfies all requirements of impartiality, it can be regarded as an important tool for combating impunity in military institutions. Such systems enjoy greater public trust and contribute to enhancing the combat capability of the armed forces.

International human rights obligations and the compliance of the military justice system with those obligations must always be taken into account. This applies to all possible reform contexts. Careful consideration should be given to what experience of other countries — with regard to reform processes and lessons learned — may be of greatest benefit to reformers. This may be particularly relevant when legal systems are closely related or belong to the same legal tradition (for example, Australia, Canada, Great Britain, and the United States belong to the common law tradition and have benefited significantly from each other’s reform experience). However, the local context and circumstances must be taken into account in each case. While a number of countries in a given region may share similar experiences of military justice reform (for example, in Latin America, Southeast Asia, or Central and Eastern Europe), the situation in some countries is quite specific — for example, in Ukraine, where judicial bodies face the need to establish disciplinary and criminal accountability for both military personnel and members of volunteer battalions.

International experience in European countries reflects various approaches to determining the place of military courts within the justice system; however, the majority of countries in which military justice institutions function have granted these courts the status of specialized courts. Thus, the Constitution of Belgium provides that the organization of military tribunals, their competence, and the rights and duties of their members shall be established by separate laws. In accordance with Article 93 of the Constitution of Greece, courts are divided into administrative, civil, and criminal courts, established pursuant to special laws. Special laws govern matters relating to juvenile courts as well as courts-martial, 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 within the judicial system: those of general and special jurisdiction. Courts of special jurisdiction include administrative and military courts. Under the Constitution of Poland, justice is administered by the Supreme Court, general, administrative, and military courts.

The jurisdiction of military courts in European countries is also very diverse. Thus, in Spain, whose judicial authority is based on the principle of unity, Article 117 of the Constitution provides for the regulation by law of military justice exclusively in the military sphere and under conditions of martial law, in accordance with the principles of the Constitution. Article 215 of the Basic Law of Portugal states that the competence of military tribunals includes the adjudication of offenses that are essentially military in nature. The same article provides that, where serious grounds exist, the law may extend the jurisdiction of military tribunals to offenses committed with particular cruelty that are equated with military offenses. In addition, the law may confer upon military tribunals competence with regard to the imposition of disciplinary sanctions. Germany takes a moderate position in this regard: military criminal courts for the armed forces operate under the authority of the Minister of Justice, with the Federal Supreme Court serving as the highest instance.

As regards the determination of the status of military judges, their composition is generally formed predominantly from military personnel. Thus, in Poland, only professional military servicemembers may serve as military judges. A military lawyer must hold the rank of officer. A judge who is not a professional lawyer (an assessor) and representatives of military personnel must hold a military rank no lower than that of the accused. In Greece, the composition of courts-martial, naval courts, and air force courts is formed from members of the legal service of the armed forces, to whom the relevant guarantees of independence apply. An important factor in determining the status of military courts in European countries is that in many of them, military courts function differently in peacetime and wartime, on the basis of different rules and, as a consequence, with different scopes of authority. Thus, in accordance with the Constitution of Poland, a simplified procedure of judicial proceedings may be established for the duration of war.

In Ukraine, the system of military courts was abolished in 2010 with the adoption of the Law of Ukraine “On the Judiciary and the Status of Judges.”