Independence, impartiality and competence of the judiciary, including military courts

1
Independence, impartiality and competence of the
judiciary, including military courts

• Presentation by Arne Willy Dahl at expert
  consultation organized by the Office of the UN
  High Commissioner for Human Rights
• Monday, 24 November 2014, Geneva
•  

2
More than military courts

• Investigation and prosecution
• Summary punishment systems
• Extended sense All courts that handle military
  penal cases.

3
History

• The commanding officers need to maintain
  discipline
• Practical obstacles
• Relationship between warlord and State
• Situation today different

4
Perceptions of the Armed Forces

• Branch of the executive?
• Experts?
• Heroes?
• Guardians of the State?
• In the long run The Armed Forces need the
  confidence of the population at large.

5
Evident solution?

• Independent courts
• Fully civilianized or some compromise solution?

6
Trends in Military Justice

• Numerous changes in a large number of national
  military justice systems in recent years or
  decades.
• Simplification necessary to see trends.

7
Two groups

• Anglo-American systems based on courts-martial
  convened for the individual case, and
• European continental systems based on standing
  courts.

8
Distribution along an axis
Courts-martial convened for the ind. case Standing military courts Specia-lized civilian courts General civilian courts in peace General civilian courts in peace and war
9
From left to right

• In more than a dozen countries
• Exeption Australia at status quo
• Minor exception Germany centralized cases from
  missions abroad to one court

10
Human rights influence

• ECHR Article 5 paragraph 1 (a)
• Everyone has the right to liberty and security
  of person. No one shall be deprived of his
  liberty save in the following cases and in
  accordance with a procedure prescribed by law
• ECHR Article 6 paragraph 1
• In the determination of his civil rights and
  obligations or of any criminal charge against
  him, everyone is entitled to a fair and public
  hearing within a reasonable time by an
  independent and impartial tribunal established by
  law.

11
General distrust

• UK media on Iraq prosecutions
• Are cases covered up?
• Why are you trying to ruin a decorated senior
  officers career by prosecuting him?
• Why have you prosecuted the poor soldier when it
  was the highly paid officer who should take
  responsibility?
• Why are you prosecuting anybody for doing a
  dangerous job in an operation we should never
  have embarked on in the first place?

12
Counter-arguments

• Extra-territorial jurisdiction and portability
• Jurisdiction over certain civilians
• Military expertise

13
The issue of independence

• Recent example from Norway Staying the emperors
  friend.
• Courts-martial and the jury system
• Members appointed or drawn by lot?
• Career after delivering verdict
• Anonymity?
• Standing courts Who decides the career of the
  judge?

14
Judge Paavo Alkios diary

• Division commander wants more capital
  punishments.
• The judge focuses on the guilt of the individual
  accused.
• Did he get his applications for leave granted? To
  whom were medals awarded?

15
Suggested conclusions

• Trends toward
• More independence to judges
• Standing courts
• Increased right to elect trial instead of summary
  procedures
• Increased right to legal representation

16
Tendency to shift from military to civilian
jurisdiction

• Restricting the competence of military courts
• Abolishing military courts
• Abolishing military prosecution

17
The important question

• Should military commanders give up their control
  of the military justice?
• However Should the process run to the other
  extreme?
• Or is there a golden middle way to be sought?

18
Thank you for your attention