{"id":11444,"date":"2020-12-18T09:00:26","date_gmt":"2020-12-18T08:00:26","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=11444"},"modified":"2021-01-08T09:46:20","modified_gmt":"2021-01-08T08:46:20","slug":"excluding-enforced-disappearances-from-military-jurisdiction","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/excluding-enforced-disappearances-from-military-jurisdiction\/","title":{"rendered":"Excluding enforced disappearances from military jurisdiction"},"content":{"rendered":"

Enforced disappearances\u00a0often result in impunity, which is a \u201cdistinctive trait\u201d of such crimes (UN Working Group on Enforced or Involuntary Disappearances,\u00a02020\u00a0Annual Report<\/em><\/a>, paras. 1, 93).\u00a0A range of factors can contribute to States\u2019 unwillingness and\/or inability to bring perpetrators to justice. This can include the jurisdiction of military authorities to investigate, prosecute and punish gross human rights violations. This post outlines the approaches of the\u00a0UN Working Group on Enforced or Involuntary Disappearances<\/a><\/u>\u00a0(WGEID or the Working Group)\u00a0and the\u00a0UN Committee on Enforced Disappearances<\/a><\/u>\u00a0(CED or the Committee) to military jurisdiction over enforced disappearances in the context of States\u2019 obligations to investigate and prosecute such crimes.<\/p>\n

Military jurisdiction as a pretext for impunity<\/strong><\/p>\n

Military jurisdiction can obstruct investigation and prosecution of gross human rights violations, thereby preventing accountability and denying victims\u2019 right to justice. Numerous\u00a0UN Special Rapporteurs on Extrajudicial, Summary or Arbitrary Executions<\/em>\u00a0have raised concerns that members of the armed forces may evade punishment before military courts due to an ill-conceived\u00a0esprit de corps<\/em>\u00a0(e.g.,\u00a01997\u00a0Annual Report<\/em><\/a>, para. 97;\u00a02004\u00a0Annual Report<\/em><\/a>, para. 49). Indeed, said UN Special Rapporteur noted in his\u00a02008\u00a0Annual Report<\/em><\/a>:<\/p>\n

\u201cWhen extrajudicial executions are committed by military personnel it usually falls to the national system of military justice to investigate, prosecute and punish. Yet, historically, the human rights track record of military justice has been dismal\u2026At its best, military justice has been a separate and inferior system of justice. At its worst, it has provided a pretext for impunity…\u201d (para. 48).<\/p><\/blockquote>\n

Several\u00a0UN Special Rapporteurs on the Independence of Judges and Lawyers<\/em>\u00a0have also raised concerns regarding the independence and impartiality of military justice, noting that the military judicial system \u201cis subject to pressure and interference by the military hierarchy\u201d (2007\u00a0Report on the Mission to the Democratic Republic of the Congo<\/em><\/a>, para. 15). Examples include military judges being \u201cthreatened or attacked by members of armed forces as an intimidation tactic to ensure impunity\u201d (ibid<\/em><\/a><\/u>, para. 38) or active-duty officers trying their own subordinates for human rights violations (1996Report on the Mission to Colombia<\/em><\/a>, para. 140).<\/p>\n

Examples of military jurisdiction under national legislation<\/strong><\/p>\n

The Committee\u2019s\u00a0Concluding Observations<\/a><\/u>\u00a0contain numerous examples of States where military authorities have jurisdiction under national legislation \u2013 either expressly or due to a lack of specific exclusion \u2013 to investigate and prosecute enforced disappearances. Regarding investigations on the one hand, there are examples of military police forces being competent to investigate enforced disappearances committed in a military context (CED\u00a02014\u00a0Concluding Observations on the Netherlands<\/em><\/a>, para. 18). On the other hand, regarding prosecutions, some national legal systems provide\u00a0military courts with the jurisdiction to try enforced disappearances committed by military personnel in the exercise of their duties\u00a0(CED\u00a02017\u00a0Concluding Observations on Gabon<\/em><\/a>, para. 23), in war time (CED\u00a02014\u00a0Concluding Observations on Belgium<\/em><\/a>, para. 21) or where members of the armed forces are accused of an offence under ordinary or military law (CED\u00a02016\u00a0Concluding Observations on Tunisia<\/em><\/a>, para. 20).<\/p>\n

Regional and international human rights instruments and standards<\/strong><\/p>\n

At the regional level, Article 9-1 of the\u00a01994 Inter-American Convention on Forced Disappearances of Persons<\/a><\/u>\u00a0(Inter-American Convention) asserts that \u201cPersons alleged to be responsible for the acts constituting the offense of forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions\u201d. Furthermore, under\u00a0Article 9-2<\/a><\/u>\u00a0of the Inter-American Convention, enforced disappearances \u201cshall not be deemed to have been committed in the course of military duties\u201d.<\/p>\n

At the international level,\u00a0no treaty-based international instrument contains specific provisions on military jurisdiction over gross human rights violations, such as enforced disappearances. However, Article 16-2 of the\u00a01992\u00a0Declaration on the Protection of All Persons from Enforced Disappearance<\/em><\/a>\u00a0(the 1992 Declaration) stipulates that persons allegedly responsible for enforced disappearances\u00a0\u201cshall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts\u201d.\u00a0Article 14<\/a><\/u>\u00a0of the 1992 Declaration requires the prosecution and trial to be conducted by the \u201ccompetent civil authorities of that State\u201d.<\/p>\n

Notable principles that also address this issue include Principle 29 of the\u00a02005\u00a0Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity<\/em><\/a>\u00a0and Principles 8-9 of the\u00a02006\u00a0Draft Principles Governing the Administration of Justice through Military Tribunals<\/em><\/a>\u00a0(Decaux Principles).<\/p>\n

UN Working Group on enforced or involuntary disappearances<\/strong><\/p>\n

Under,\u00a0inter alia<\/em>, Articles 13 and 14 of the\u00a01992 Declaration<\/a><\/u>, States shall investigate and prosecute enforced disappearances.\u00a0In line with Article 16-2 of the\u00a01992 Declaration<\/a><\/u>, the Working Group has recommended that ordinary courts\u2019 jurisdiction should be guaranteed for human rights violations, regardless of whether the perpetrator was a member of the armed forces (e.g. WGEID\u00a02007\u00a0Mission to Honduras<\/em><\/a>, paras. 38, 66(a)(iv);\u00a02012\u00a0Mission to Pakistan<\/em><\/a>, para. 74). This should be codified in domestic criminal legislation (WGEID\u00a0Best practices in national criminal law on enforced disappearances<\/em><\/a><\/u>, para. 57). The Working Group has also highlighted that bringing perpetrators to justice before competent civilian courts is a crucial preventive measure (see, e.g. WGEID\u00a02005\u00a0Annual Report<\/em><\/a>, para. 599).<\/p>\n

Regarding investigations, the Working Group has recommended that civil prosecution services conduct serious and prompt investigations into all complaints of human rights violations and that military prosecution services must be legally prevented from initiating or continuing investigations (e.g. WGEID\u00a02011\u00a0Mission to Mexico<\/em><\/a>, para. 98). The Working Group elaborated on investigations in its recent\u00a02020\u00a0Report on standards and public policies for an effective investigation of enforced disappearances<\/em><\/a>, holding:<\/p>\n

\u201cunder certain circumstances, some States, such as those in post-conflict situations or States transitioning to democracy, should consider extending the prohibition of trial by any special tribunal, including a military tribunal, to include pretrial investigations, in order to restrict the participation of institutions and agencies that are suspected of committing or having committed enforced disappearances.\u201d (para. 40).<\/p><\/blockquote>\n

The Working Group\u2019s rationale is reflected in its assertion that victims and their relatives are denied access to justice where military justice systems lack the necessary independence and impartiality to address human rights violations, making it \u201cextremely difficult to end impunity\u201d (WGEID\u00a02011\u00a0Mission to Mexico<\/em><\/a>,\u00a0para. 38).<\/p>\n

UN Committee on enforced disappearances<\/strong><\/p>\n

Under,\u00a0inter alia<\/em>, Articles 6 and 12 of the\u00a02006 International Convention for the Protection of All Persons from Enforced Disappearance<\/a><\/u>\u00a0(ICPPED or the Convention), State Parties are obliged to investigate and prosecute enforced disappearances. The Convention does not contain an explicit prohibition on military jurisdiction over enforced disappearances. This is due to diplomatic negotiations aimed at adopting the text by consensus (CED\u00a02014 Report on 5th<\/sup>and 6th<\/sup>\u00a0Session<\/em><\/a>, para. 16).<\/p>\n

However, in 2015, the Committee issued a\u00a0Statement on enforced disappearances and military jurisdiction<\/em><\/a><\/u>\u00a0(2015\u00a0Statement<\/em>).\u00a0Noting\u00a0its opinion that \u201cmilitary jurisdiction could limit the effectiveness of investigations, prosecutions and trials of enforced disappearances\u201d (2015\u00a0Statement<\/em><\/a>, para. 2), the Committee reaffirmed military jurisdiction\u2019s exclusion for gross human rights violations, including enforced disappearances (2015\u00a0Statement<\/em><\/a>, para. 10). In doing so, the Committee took\u00a0into account \u201cthe provisions of the Convention and the progressive development of international law in order to assure the consistency in the implementation of international standards\u201d (2015\u00a0Statement<\/em><\/a>, para. 10).<\/p>\n

The Committee\u2019s position is underpinned by the notion that the \u201cright to justice for victims implies respect for the principle of independence and impartiality of the courts\u201d (2015\u00a0Statement<\/em><\/a>, para. 1). Indeed, when addressing military jurisdiction in its\u00a0Concluding Observations<\/a><\/u>, the Committee has relied almost exclusively on\u00a0Article 11 ICPPED<\/a><\/u>, subsection\u00a0(3) of which reads: \u201c[a]ny person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law\u201d.<\/p>\n

The Committee has repeatedly held that,\u00a0as a matter of principle, military courts cannot provide the independence and impartiality required by the Convention to hear cases of human rights violations, such as enforced disappearance. It has therefore consistently recommended that State parties \u201ctake the necessary legislative or other measures to ensure that all cases of enforced disappearance remain expressly outside military jurisdiction and can be tried only by ordinary courts\u201d (e.g. CED\u00a02014\u00a0Concluding Observations on Belgium<\/em><\/a>, para. 22).<\/p>\n

It has made the same recommendation regarding investigations (e.g.\u00a02013\u00a0Concluding Observations on Spain<\/em><\/a>, para. 16). The Committee recently elaborated on the requirement of independence in the context of national legislation that did not specifically exclude military courts\u2019 jurisdiction to \u201cinvestigate allegations of enforced disappearances committed by military personnel\u201d (CED\u00a02019\u00a0Concluding Observations on Bolivia<\/em><\/a>, para. 18). It recommended that \u201ccrimes of enforced disappearance allegedly committed by members of the armed forces are investigated and prosecuted by competent, independent and impartial prosecutors and judges\u00a0who have no institutional ties to the entity to which the individual under investigation belongs\u201d (ibid<\/em><\/a><\/u>,<\/em>\u00a0para. 19).<\/p>\n

Conclusion<\/strong><\/p>\n

While the\u00a01992 Declaration<\/a><\/u>\u00a0explicitly prohibits military jurisdiction to prosecute enforced disappearances, the Convention is silent on the matter. Nonetheless, both the Working Group and the Committee have excluded military jurisdiction over gross human rights violations, including enforced disappearances. In doing so, both bodies draw on administration of justice principles, notably the requirement of an independent and impartial court or tribunal. This responds to the fact that military jurisdiction can hinder investigation and prosecution of gross human rights violations, thereby preventing accountability and denying victims\u2019 right to justice. By excluding enforced disappearances from military jurisdiction, the Working Group and the Committee address a contributing factor of concern in the fight against impunity.<\/p>\n

 <\/p>\n

The author would like to thank Mahdev Singh Sachdev, IBAHRI Legal Intern, for his research assistance for this post.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Enforced disappearances\u00a0often result in impunity, which is a \u201cdistinctive trait\u201d of such crimes (UN Working Group on Enforced or Involuntary Disappearances,\u00a02020\u00a0Annual Report, paras. 1, 93).\u00a0A range of factors can contribute to States\u2019 unwillingness and\/or inability to bring perpetrators to justice. This can include the jurisdiction of military authorities to investigate, prosecute and punish gross human […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5485],"authors":[6651],"article-categories":[3572],"doi":[],"class_list":["post-11444","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-enforced-disappearance","authors-catherine-kent","article-categories-symposium"],"acf":{"subline":"A step forward in the fight against impunity"},"meta_box":{"doi":"10.17176\/20210107-182429-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/11444","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=11444"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/11444\/revisions"}],"predecessor-version":[{"id":11449,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/11444\/revisions\/11449"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=11444"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=11444"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=11444"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=11444"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=11444"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=11444"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}