ISSUE 3

TRIAL BEFORE MILITARY COURT

1. Human Rights Watch, people who have stood trial at a military court describe a pattern
of serious human rights abuses and due process concerns including ill-treatment
and torture, incommunicado detention, the use of confessions extracted under torture,
verdicts issued without an explanation, seemingly arbitrary sentences, and a limited ability
to appeal
2. the Sub-Commissionon Prevention of Discrimination and Protection of Minorities
commissioneda study into the question of equality in the administration of justice. In his
final report in 1969, the Special Rapporteur in charge of the study,
Mr. Mohammed Ahmed Abu Rannat, recommended that civilians accused of
political offences should not be tried by military courts and that members of
the military responsible for ordinary offences should be tried by the ordinary criminal
courts.(United Nations Document E/CN.4/Sub.2/296, 10 June 1969, paragraphs 538
and 552).
3. There is international consensus that trials of civilians by military tribunals
contravene the non-derogable right to a fair trial by a competent, independent
and impartial court to the extent that they violate rights guaranteed by Universal
Declaration of Human Rights (UDHR)[1] and the United Nations (UN)
International Covenant on Civil and Political Rights (ICCPR).[2] Regional courts
and treaty bodies, including the European Court of Human Rights (ECtHR), the
Inter-American Court of Human Rights (IACtHR), the Inter-American
Commission on Human Rights (IACHR) and the African Commission on
Human and Peoples’ Rights (ACHPR) are unanimous that military tribunals lack
authority to try civilians.[3]
Citation (Draft Principles Governing the Administration of Justice Through Military
Tribunals, U.N. Doc. E/CN.4/2006/58 at 4 (2006), Report submitted by the Special
Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights,
Emmanuel Decaux to the UN Commission on Human Rights in 2006 [Decaux
Principles])

4. Basic Principles on the Independence of the Judiciary, endorsed in 1985 by the

General Assembly,[4] state:

Everyone has the right to be tried by ordinary courts or tribunals using

established legal procedures. Tribunals that do not use the duly established
procedures of the legal process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals (para. 5).
Citation Basic Principles on the Independence of the Judiciary, Adopted by the Seventh
United Nations Congress on the Prevention of Crime and the Treatment of Offenders
held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly
resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, Principle 5,
para 21,

5. In 1948, the UDHR set out basic principles of the right of everyone to a fair trial in
Article 10, which provides:
 Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of this rights and obligations and of
any criminal charge against him.

6. Article 14 ICCPR

1. All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of justice; but
any judgement rendered in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to
the following minimum guarantees, in full equality: (a) To be informed promptly and in
detail in a language which he understands of the nature and cause of the charge against
him;

(b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing; (in our case she was not allowed)

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

 7. The UN Human Rights Committee (HR Committee), through Concluding
Observations on States’ reports, General Comments interpreting the ICCPR and
Views regarding complaints, has concluded that “the jurisdiction of military
tribunals is restricted to offences of a strictly military nature committed by
military personnel.”
CITATION Decaux Principles, supra note 3.

ISSUE 1
Breach of The Principle Of Territorial Integrity
Article 2(4) of the UN Charter refrains all UN members in their International Relations, from
resorting to the threat or use of force against the Territorial Integrity or Political Independence of
any State. (UN, Charter of the United Nations, Article 2(4), Oct. 24, 1945, 1945 ATS 1)

1. In Lotus Case, the court observed

that the first and foremost restriction imposed by international law upon a state is that a state
may not exercise its power in any form in the territory of another state S.S. Lotus Case
(France v. Turkey), (1927) 18 PCIJ Series A/No. 10.

Extradition
There is no rule of International Law, which prevents States from extraditing in the absence
of a treaty. P. MALANCZUK, AKEHURST, MODERN INTRODUCTION TO
INTERNATIONAL LAW, p. 117 (7th revised edition, Routledge, 1997)