Human RIghts and Military Courts : Stakes and Challenges
By international commission of Jurists

05 August 2003

The ICJ is dedicated "to the primacy, coherence and implementation of international law and principles that advance human rights." During this conference, a new book was presented: Fuero militar y derecho internacional (Military Court and International law), by Federico Andreu Guzman. A rich debate developed around the relationship between the exercise of justice by the military body, and the respect of human rights, themes addressed by the author.

The meeting was a rehearsal for the presentation of Professor Emmanuel Decaux's report at the 10th meeting of the Sub-Commission. Mr Decaux, an expert of the Working Group on Arbitrary Detention, insisted on the urgency of bringing the matter of military courts to the attention of the Sub-Commission. He repeated the importance of the Acquis on this subject thanks to the work of his predecessor, Professor Louis Joinet (see the resolution 2003/39 of the Sub-Commission).

He repaired the juridical frame in which military justice should be administered and the limits of military courts' competences. He highlighted three main points: civilians cannot appear before military courts, the necessity to abolish military courts in peace time, and the need to have a common definition of military jurisdiction. At the end of his intervention, he called for the primacy of common law, especially for the cases involving human rights.

Mr. Andreu, juridical adviser of ICJ, explained that the subject is extremely complex because of the relationship between military courts, political power, and human rights. He brought up, as an example, the case of Peru, a state where (under Fujimori's dictatorship) the military court could judge a child under 18 for stealing cars. He agrees with the restriction of military courts' competency, especially with respect to child-soldiers and those who object to serving in the army. He then underlined the different tendencies of national practices in relation with the military courts' jurisdiction in the 1990s: in South America, the competency has been limited, in Europe, military justice works only in wartime, etc.

He concluded, stressing the need for greater international regulation of military justice in order to protect human rights. Thus, he wished that the recommendations adopted by the Sub-Commission would be brought to the attention of the General Assembly.

Madame Zerrougui took the floor, arguing that the international community's attitude about the need of military courts' suppression had shifted since September 11th. She invited the assembly to think over the alternatives to military justice. Subsequently, the representative of World Education asked how the UN mechanism could play an effective role in cases of military jurisdiction abuse. The UN expert, Mr. Decaux, answered, saying that the Commission on Human Rights can only put governments under pressure.

A representative of indigenous peoples declared that military courts were actually persecuting human rights defenders; he used the examples of the "opponents in South America dictatorships" and "the imprisonment of José Bové" in France.

The debate ended with the International Red Cross Review requesting technical humanitarian considerations.


By: Clément Therme and Amanda Azzali

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