c. Their judgements must be validated by State courts in light of the
guarantees set out in the Covenant;
d. They can be challenged by the parties concerned in a procedure meeting
the requirements of Article 14 of the Covenant.675
Military Judges
97. The presence of serving military (and for that matter, police) on a tribunal will
compromise the independence of that tribunal if those service personnel are
appointed by and belong to the military and are subject to military discipline.
98. There are legitimate doubts as to independence because:
The military is subject to the orders of the executive; and
Therefore reappointment of the judge is also in the hands of the executive.
99. These concerns cannot be cured by an assurance that no instructions will be
given and the members of the tribunal are instructed to act independently from
the executive.676 In Ocalan (a case concerning the trial of the leader of the
Kurdish resistance movement in Turkey, the PKK) the last minute replacement
of a military judge was insufficient to remedy the lack of independence.
Courts Martial
100. The key to the compatibility of courts martial with fair trial rights is the
appointment process. Crucial to this is the involvement of civilians who are
unrelated to the military hierarchy.677
Military Tribunals
101. As far as military or special tribunals are concerned, the Human Rights
Committee has held that the basic requirements of Article 14 apply equally to
them as they do to ordinary tribunals.678 Of particular importance is that these
tribunals satisfy the obligations of independence and impartiality. As the
Siracusa Principles state ‘civilians shall normally be tried by the ordinary
courts; where it is found strictly necessary to establish military tribunals or
special courts to try civilians, their competence, independence and impartiality
shall be ensured and the need for them reviewed periodically by the
competent authority’.679
102. Such special or military courts can impact on the right to a fair trial in a number
of ways including:
- Limiting the public nature of the trial;
675
Human Rights Committee, General Comment No.32, CCPR/C/GC/32 (2007), para 24.
European Court, Incal v Turkey, 9 June 1998.
677
Cooper v UK, 16 December 2003; Grieves v UK, 16 December 2003.
678
Human Rights Committee, General Comment No.13, HRI/GEN/1/Rev.6 at 135 (2003).
679
See also Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights, UN Doc.E/CN.4/1985/4, Annex (1985). Concluding observations
of the Committee Against Torture: Yemen,CAT/C/CR/31/4. See also Concluding observations of the
Committee against Torture: Egypt, CAT/C/CR/29/4. See also Communication 1033/2001, Singarasa v
Sri Lanka, 21 July 2004.
676
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