68 Legal Digest of International Fair Trial Rights 3.3.4 Military tribunals Military tribunals may be used in two contexts, both of which require compliance with independence and impartiality. The first and most common use of military tribunals is for disciplinary procedures against military personnel that, depending on the nature of the charge and the purpose and severity of the applicable penalty, may amount to a criminal proceeding for the purposes of Article 14 of the ICCPR and Article 6 of the ECHR (See also 1.1).262 The second situation is where military tribunals are used to try military personnel, and sometimes civilians, in respect of special categories of offences, such as war crimes. In principle, a military tribunal is capable of constituting an independent and impartial tribunal, despite the fact that it functions within the framework of the armed forces and, therefore, the executive branch of government.263 This will only be the case so long as sufficient safeguards are in place to guarantee the independence and impartiality of the judicial officers concerned.264 Very often, problems will lie with the ability or otherwise of a military convening officer to dissolve a military tribunal, or to ratify or modify the sentence imposed by the court martial.265 The status of the judicial officers as serving members of the armed service who can themselves be subject to pressure from superiors or to disciplinary proceedings is also a matter of concern.266 This would create the danger that the military judge might allow him or herself to be unduly influenced by considerations that have nothing to do with the nature and merits of the case.267 In Cooper v United Kingdom, however, the European Court of Human Rights held that the Court Martial convened in that case was provided with sufficient guarantees to comply with Article 6 of the ECHR, by virtue of the fact that there was a civilian judge advocate dealing with questions of law and that, although the president was a senior serving officer in the Royal Air Force, his post was full-time and would be held for a number of years prior to his retirement, at a time when that officer had no effective hope of promotion and thus not capable of being influenced by such factors.268 As explained in the UN ECOSOC’s Siracusa Principles, the right to a fair and public hearing may be subject to legitimate restrictions that are strictly required by the exigencies of an emergency situation, i.e., an emergency declared under Article 4 of the ICCPR or Article 15 of the ECHR as one threatening the life of the nation. Even in such situations, however, the Siracusa Principles explain that the denial of certain rights can never occur, even in an 262 See, for example, Engel and Others v the Netherlands [1976] ECHR 3, paras 80–85. 263 Engel and Others v the Netherlands [1976] ECHR 3, paras 80–85; and Morris v the United Kingdom [2002] ECHR 162, para 59. 264 Morris v the United Kingdom [2002] ECHR 162, paras 59–77; and Cooper v the United Kingdom [2003] ECHR 686, paras 104–110. 265 Findlay v the United Kingdom [1997] ECHR 8, para 77. See also UN Human Rights Committee, CCPR General Comment 32 (2007), para 22. 266 See, for example: Grieves v the United Kingdom [2003] ECHR 688, paras 86–87; Findlay v the United Kingdom [1997] ECHR 8, para 76. See also UN Human Rights Committee, CCPR General Comment 32 (2007), para 22. 267 Incal v Turkey [1998] ECHR 48, para 72. 268 Cooper v the United Kingdom [2003] ECHR 686, para 118.