Image source: Al Jazeera, “HRW urges Pakistan to not try civilians in military court” (31 May 2023, Al Jazeera) HRW urges Pakistan to not try civilians in military courts | Human Rights News | Al Jazeera accessed 16 February 2024.
Introduction
On May 9th of 2023, after the police arrested former Prime Minister Imran Khan on corruption charges, many of his supporters took to rioting all throughout Pakistan, which led to several clashes with both the police and the military, including attacks against military installations, such as headquarters in Rawalpindi and the houses of senior military officials.
During this course of events, the police arrested thousands of people on charges of criminal intimidation, rioting, and assault on government officials, eventually handing over dozens of civilian suspects to the army for trial in military court, a decision that has been widely criticized by international institutions.
Military jurisdiction over civilians is not a new concept for Pakistan, considering that both The Pakistan Army Act (1952)[1] and Official Secrets Act (1923)[2] allow civilians to be tried in military courts, but only in narrowly defined circumstances, raising questions regarding the protection of fundamental rights and civil liberties in the country. On that account, several petitions were filed separately requesting that the Supreme Court of Pakistan declare the military trials unconstitutional.
The primary concern lies in the fact that armed forces often follow their own proceedings that do not necessarily comply with the expected standards of justice, lacking the necessary safeguards and transparency for a fair trial, and leading to a higher probability of miscarriages of justice.
International Human Rights Law and International Humanitarian Law
Pakistan is a signatory to the Universal Declaration of Human Rights (1948) and various international treaties on the subject, including the International Covenant on Civil and Political Rights (1976). Both of the mentioned documents are key international law instruments that enshrine particular principles regarding the due process of law.
First and foremost, the Universal Declaration of Human Rights is a landmark document in world history that established, for the first time, common standards of protection for the rights of every person, to be followed by all people and all nations. According to Article 08, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Article 10 also states that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.[3]
Therefore, the presumption of innocence, the right to a fair and public trial and an independent and impartial tribunal are all judicial guarantees considered essential components of justice. Through international norms, pacts and conventions, the mentioned principles should apply to all courts and tribunals, whether ordinary, specialized, civil or military.
Additionally, the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty that ensures the protection of civil and political rights to all individuals, states in Article 14 that:
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law […].“[4]
Thus, Article 14 of the International Covenant on Civil and Political Rights addresses several aforementioned principles, such as: the right to presumed innocence, to be informed promptly and in detail of the charges, and the right to legal assistance and not to be compelled to confess guilt. Other guarantees include the right to a sentence being reviewed by a higher tribunal, and that any judgment rendered in a criminal case be made public, except when juveniles are involved or if such publicity would prejudice the interests of justice and public security.
Although the Universal Declaration of Human Rights and the ICCPR can be studied as the main norms applicable to this case, it is important to point out that other international documents reinforce the same principles, as well as The American Convention on Human Rights, more commonly known as the “Pact of San Jose” (articles 8.1, 8.5 and 25)[5]; the European Convention for the Protection of Human Rights and Fundamental Freedoms (articles 5, 6, 7 and 13)[6]; and the African Charter on Human and Peoples’ Rights, or “Banjul Charter” (article 7.1)[7].
In tandem, international human rights law and international humanitarian law recognizing a number of principles applicable to the administration of justice, including: equality before the courts; the right of every person to be tried by competent, independent, and impartial tribunals established by law; the right to an effective remedy; the principle of legality; and the right to an effective, equitable, and fair trial. The issue at hand pertains to the fact that Military Courts are independent and specialized in maintaining discipline within the armed forces, capable of bypassing the proper administration of justice. As such, there is no assurance the due process of law would be maintained. On that note, the Human Rights Committee states that military jurisdiction ought to be strictly confined to military offenses committed by military personnel.
The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. […][8]
The same conclusion was upheld by the Inter-American Commission on Human Rights (IACHR). Beyond the violations of judicial safeguards present in the procedures employed by various national military justice systems, the trial of civilians in military courts inherently violates the right to an independent and impartial tribunal, as well as the principle of having a competent and impartial judge[9]. In a democratic State governed by the rule of law, military jurisdiction must be restricted and applied in exceptional cases directly linked to activities pertaining to the armed forces, only trying active military personnel for crimes or offenses in the exercise of their duties and under specific circumstances.
Best case practices
As presented, it is clear that international law leans towards the restriction of military jurisdiction, to be applied only regarding military crimes and acts committed by active military personnel. Be that as it may, while the use of military courts to try civilians is generally considered controversial, some countries continue to employ this practice in certain circumstances. Military jurisdiction is ultimately a matter that depends on domestic legislation, though, nevertheless, there are certain standards that justice systems must observe to ensure fairness and protect the rights of individuals subject to trial by military courts.
- Latin America
Over the last thirty years, several best case practices can be studied throughout Latin America, including as: Cesti Hurtado Vs. Peru (1999); Durand e Ugarte Vs. Peru (2000); Mapiripán Massacre Vs. Colômbia (2005); Pueblo Bello Massacre Vs. Colômbia (2006); “La Rochela” Massacre Vs. Colômbia (2007); Arguelles Vs. Argentina (2014); Cruz Sánchez e outros Vs. Peru (2015). The mentioned cases constitute, as a whole, a resolve in Latin America to limit military jurisdiction, considering that all of the Courts involved pointed out that the Military is not competent to try and sentence civilians.
In Radilla Pacheco Vs. Mexico (2009)[10], the Court highlighted that military jurisdiction should be reduced or even eliminated in democratic states during peacetime, and if a State decides to maintain it, its use should be minimal and strictly necessary. The position was that human rights violations should always fall under the jurisdiction of civilian courts, and the perpetrators held responsible within the competence of ordinary justice, considering that even in such cases there would be a breach of the guarantees of a natural, independent and impartial judge.
Similarly, the case of Rosendo Cantú and Other Vs. México (2010)[11] and Cabrera García and Montiel Flores Vs. México (2010)[12], both reaffirmed the principle that military courts are not competent to investigate or prosecute human rights violations, and that such investigations should be entrusted to an independent body, separate from the police or military force, especially if involved in the incident.
Finally, in Brazil, 2022, the Attorney General’s Office filed the ADI 5032 (Ação Direta de Inconstitucionalidade n° 5032) before the Supreme Federal Court, arguing against the expansion of military jurisdiction in the country, and whether members of the armed forces that commit crimes against civilians during peacetime should be tried before civilian or military courts[13]. While the current Brazilian Constitution (1988) restricts the institutional role of the military, in the last twenty years, governments routinely employed the Armed Forces as a public security measure, from fighting organized crime to protecting the Amazon rainforest and surveillance of the 2016 Olympics and 2014 World Cup. Ergo, the presence of military authority over the years resulted in hundreds of civilian deaths and claims of excessive violence and civil rights violations. Many argue that military courts in Brazil do not meet the demands for accountability regarding crimes committed against civilians, and, therefore, the proceedings of these hearings would be fundamental in limiting military jurisdiction.
- United States of America
Although the U.S. justice system has historically allowed both military personnel and civilians to be tried by military courts, The Military Extraterritorial Jurisdiction Act (MEJA), a bill passed in 2000, significantly restricted such jurisdiction over civilians. It extends federal jurisdiction over certain offenses committed by civilians who are “employed by or accompanying the armed forces” overseas. Regardless, this bill also requires military court proceedings to provide substantial rights and protections similar to those in civilian courts, and, therefore, can be considered a good case practice.
Conclusion
Although it can be argued that the establishment of military courts for civilian trials is not inherently illegal under international human rights law, the transfer of competencies from the common justice system to military jurisdiction more often than not leads to restricted access to the due process of law.
Even if such courts are established and constituted by law, their compliance with fair trial standards must be rigorously assessed, considering specifically listed criteria that constitute the fundamental right to a fair trial. Additionally, military tribunals must remain impartial and independent, specifically regarding the military chain of command and other branches of government. The selection and appointment of judges must be based on their qualifications and integrity, and their tenure should be protected to prevent undue influence or interference. Moreover, these procedures ought to be transparent, to the extent possible, balancing national security concerns with the principle of publicity, considering that the public should be aware of affairs regarding government, civil and human rights, ensuring accountability. For that reason, establishing mechanisms for reviewing military court proceedings and decisions is crucial.
Military justice must comply with international human rights standards, with countries adhering to treaties and pacts such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR) and other relevant conventions. These instruments provide guidance on fair trial standards and protect the civil and political rights of all individuals. Considering that Pakistan is a signatory to both the mentioned documents, International Human Rights Law and International Humanitarian Law provide no basis for Pakistani authorities to try civilians in military courts, and the violations stemming from these procedures demonstrate a flagrant disregard for due process. Therefore, in this case, carrying out the administration of justice through a fair and transparent legal trial in ordinary court would serve Pakistan’s own interest, by assuring the people of the integrity of its legal system, protecting the civil liberties and fundamental rights of its citizens, and increasing public confidence in the State.
[1] Pakistan Army (Amendment) Act, 2015.
[2] Official Secrets Act, 1923, ACT NO. XIX OF 1923.
[3] United Nations. The Universal Declaration of Human Rights (UDHR). New York, 1948
[4] UN General Assembly. International Covenant on Civil and Political Rights. 16 December 1966. United Nations, Treaty Series, vol. 999, p. 171
[5] Organization of American States (OAS). American Convention on Human Rights, “Pact of San Jose”. Costa Rica, 1969.
[6] Council of Europe. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. 1950.
[7] Organization of African Unity (OAU). African Charter on Human and Peoples’ Rights (“Banjul Charter”). 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
[8] Human Rights Committee, General Comment No 13, “Equality before the courts and the right to a fair and public hearing by an independent court established by law” (article 14 of the Covenant), paragraph 4, ad opted at the 21s1 session, 1984, in United Nations document H R l/gen/l/R ev.3, p. 17
[9] Federico Andreu-Guzman. ‘Military Jurisdiction and International Law: International Jurisprudence and Doctrine on Human Rights.’ Vol.II, 2005, p. 37.
[10] IACHR. Radilla Pacheco v. Mexico, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 209, p. 121 (Nov. 23, 2009).
[11] IACHR. Rosendo Cantú et al. v. Mexico, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 216, p. 73 (Aug. 31, 2010).
[12] IACHR. Cabrera Garcia et al., Comm. 12449, “Case of Cabrera-García and Montiel-Flores v. Mexico”. 26 November 2010
[13] STF. ADI 5032 – Ação Direta de Inconstitucionalidade. Brazil, 2022.
Author
Sabrina Camille Carmen Fabbro – Senior year Law student, intern and research assistant at RCIL & HR.
LinkedIn: https://www.linkedin.com/in/sabrinafabbro/.