competent, independent and impartial tribunal established by law.” Article 14 is not concerned with the nature of the tribunals. It contains nothing which prohibits, or expresses a preference for, any particular type of tribunal. The only tribunals which may not be covered by article 14 are those which have nothing to do with the safeguards and procedures which it provides. No category of tribunal is inherently ruled out. In order to clarify the intent and the scope of article 14, in 1984, at its twenty-first session, the Committee adopted general comment No. 13. As of the present time, namely, the end of the eighty-ninth session, at which the present Views were adopted, this comment has never been amended or updated. Paragraph 4 of the general comment is concerned, in particular, with military courts. The general thrust of this paragraph may be summarized as follows: • The Covenant does not prohibit the setting up of military tribunals; • Only in exceptional circumstances may civilians be tried by military courts and such trials must be held in conditions which fully respect all the guarantees set out in article 14; • Derogations from the normal procedures required under article 14 in times of public emergency, as contemplated by article 4 of the Covenant, may not go beyond the extent strictly required by the exigencies of the situation. In other words, and taking due account of article 14, the Committee’s attention should be focused on guarantees of an equitable, impartial and independent administration of justice. It is in this context, and this context alone, that the question of the legal body—the courts—can be taken up or apprehended. The military tribunal which tried Abbassi Madani was set up under Algerian law. Its statutory jurisdiction covers military offences, as is the case in all countries which have military forces. In general, this jurisdiction also extends to non-military co-defendants or accomplices where military offences have been committed. In certain States it covers all matters in which members of the military are implicated. In Algeria, in addition to their statutory jurisdiction, military courts have assigned jurisdiction, specifically established by law. Thus, Ordinance No. 7128 of 22 April 1971 vests in military tribunals the authority to try offences against State security committed by civilians which incur penalties of more than six years’ imprisonment. In other words, their powers go beyond the normal competence of military courts. This represents an exception to the general rules regarding the jurisdiction of military courts. The Committee has always believed that, while the Convention may not actually prohibit the formation of military courts, these courts should only be used for the judgement of civilians in very exceptional circumstances and such trials should be conducted in conditions which 141 141 fully respect all the guarantees stipulated in article 14. Is it really necessary to go a step further and to impose yet more conditions, requiring the State party to demonstrate (where civilians are being tried in military courts) that “the ordinary civil courts are not in a position to take such steps and that alternative forms of special civil tribunals or high security courts have not been adapted to perform this task”? This new condition imposed by the Committee raises some difficult legal issues. It certainly does not fall within the scope of article 14 and is not covered by general comment No. 13. Submitting the State to conditions which have not been stipulated from the outset is not an acceptable way of applying the standards stipulated by or implicit in the Covenant. At the same time, this condition is questionable. It is questionable in that, save in the event of an arbitrary judgement or obvious error, the Committee may not replace the State in order to adjudicate on the merits of alternatives to military courts. By which reasoning is it possible for the Committee to adjudicate on the options before the State for special civil tribunals, high security tribunals or military tribunals? In accordance with which criteria can the Committee determine whether or not the special civil courts or high security courts have been suitably modified to try civilians prosecuted for breaching State security? The only possible yardsticks for the Committee, regardless which courts are under consideration, are and shall remain the procedures and guarantees provided in article 14. Only here is the Committee on firm ground, protected from shifting sands and unforeseen vicissitudes. Nor can the Committee arrogate to itself the role of adjudicating on the exceptional nature of circumstances or determining whether or not there is a public emergency. The Committee is not the right authority to be passing judgement on situations over the extent or severity of which it has no control. In this context it can only exercise a minimal monitoring function, looking out for arbitrary judgements and obvious errors. When states of emergency are declared on the basis of article 4 of the Covenant, the Committee must make sure that the declaration has complied with the rules and that any derogations from the provisions of article 14 remain within the bounds strictly required by the exigencies of the situation and respect the other conditions stipulated in that article. It is most regrettable that, in its analysis, the Committee has cast aside all these considerations. In proceeding as it has, the Committee has ventured into uncharted waters. Another fundamental issue, in addition to that of the nature of the trial body, has to do with respect for the guarantees and procedures stipulated in article 14 and clarified in general comment No. 13. When, in exceptional circumstances, civilians are tried by military courts, it is essential that the proceedings should take place in conditions conducive to an equitable, impartial and independent administration of justice. This is a key issue, which the Committee has skirted around, when it should have made it the focus of its attention and the goal of its endeavours. In this context, a number of questions have remained unanswered. Raising the issue of the composition of the military court, the author states that it is made up of military officers who report directly to the Ministry of Defence,