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
More than military courts
• Investigation and prosecution
• Summary punishment systems
• Extended sense: All courts that handle
military penal cases.
History
• The commanding officer’s need to maintain
discipline
• Practical obstacles
• Relationship between warlord and State
• Situation today different
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.
Evident solution?
• Independent courts
• Fully civilianized or some compromise
solution?
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.
Two groups
• “Anglo-American” systems based on
courts-martial convened for the individual
case, and
• “European continental” systems based on
standing courts.
Distribution along an axis
Courts- Standing Speciamartial
military lized
convened courts
civilian
for the
courts
ind. case
General
civilian
courts in
peace
General
civilian
courts in
peace
and war
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
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.
General distrust
UK media on Iraq prosecutions:
- Are cases covered up?
- Why are you trying to ruin a decorated senior officer’s
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?
Counter-arguments
• Extra-territorial jurisdiction and portability
• Jurisdiction over certain civilians
• Military expertise
The issue of independence
• Recent example from Norway: Staying the
emperor’s 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?
Judge Paavo Alkio’s 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?
Suggested conclusions
Trends toward:
• More independence to judges
• Standing courts
• Increased right to elect trial instead of
summary procedures
• Increased right to legal representation
Tendency to shift from military
to civilian jurisdiction
• Restricting the competence of military
courts
• Abolishing military courts
• Abolishing military prosecution
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?
Thank you for your attention