forces.645 A prisoner of war may never be tried by any type of court that “does not offer the essential guarantees of independence and impartiality as generally recognized and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105”.646 294. As recognized by the Special Rapporteur on the independence of judges and lawyers, civilians charged with criminal offences are generally to be tried by civilian courts.647 International human rights law does not explicitly prohibit the trial of civilians by military courts. It does, however, require that these trials be fully compliant with Article 14 of the ICCPR and that the guarantees provided for in Article 14 are not “limited or modified because of the military or special character of the court”.648 Trials of civilians by military courts should only be conducted in exceptional cases and should be limited to trials that are “necessary and justified by objective and serious reasons” and where regular civilian courts are unable to conduct trials for the “specific class of individuals and offences”.649 The burden of proving the existence of such exceptional circumstances rests with the state in question, which must show that “regular civilian courts are unable to undertake the trials”, that other special or high-security civilian courts are inadequate, that the use of military courts is unavoidable and that the military courts guarantee the full protections of Article 14.650 Although military commissions can be used in exceptional cases, the Human Rights Committee has said that “the trial of civilians in military or special courts may raise serious problems, as far as the equitable, impartial and independent administration of justice is concerned”.651 Furthermore, international humanitarian law provides that where a civilian is definitely suspected of or has engaged in hostile activities, the state must treat the individual with humanity and provide the individual with the “rights of fair and regular trial”.652 645 Third Geneva Convention, Art. 102. Article 105 provides prisoners of war with the right to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his choice and other relevant rights when being tried. Third Geneva Convention, Arts. 84, 105. 647 The UN Special Rapporteur on the independence of judges and lawyers has said “a number of soft law instruments and the jurisprudence of international and regional mechanisms show that there is a strong trend against extending the criminal jurisdiction of military tribunals over civilians”. UN Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, Report to the General Assembly, A/68/285, 7 August 2013, paras. 47-51, 89, 101-102, <http://www.un.org/Docs/journal/asp/ws.asp?m=A/68/285>. See, also UN Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Emmanuel Decaux, “Civil and political rights, including the question of independence of the judiciary, administration of justice, impunity - Issue of the administration of justice through military tribunals”, Report to the Commission on Human Rights, E/CN.4/2006/58, 13 January 2006 (hereinafter, “Decaux Principles”), Principle 5, <http://www.un.org/Docs/journal/asp/ws.asp?m=E/CN.4/2006/58>: “[m]ilitary courts should, in principle, have no jurisdiction to try civilians”. 648 UN HRC, General Comment No. 32, “Article 14: Right to equality before courts and tribunals and to a fair trial”, CCPR/C/GC/32, 23 August 2007, para. 22, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2FGC%2F32&Lang=en>. 649 UN HRC, General Comment No. 32, ibid., para. 22. See, also, UN Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, A/68/285, op. cit., note 647, paras. 101-102. 650 UN HRC, Salim Abbassi v. Algeria, Communication No. 1172/2003, 21 June 2007, para. 8.7, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f89%2fD%2f1172%2f2003& Lang=en>. See, also, UN Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, A/68/285, ibid., para. 103. 651 UN HRC, General Comment No. 32, op. cit., note 648, para. 22. 652 Fourth Geneva Convention, Art. 5. See, also, Common Article 3. 646 128