Remarks of the Deputy Judge Advocate General Military Justice – University of Ottawa Military Law Conference – 13 November 2015

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Speaking Notes for:

Colonel R.F. Holman
Deputy Judge Advocate General – Military Justice

Military Law Conference

Fauteux Building, Faculty of Law, University of Ottawa, ON
13 November 2015, 1010 hours

Military Justice, International Humanitarian Law Accountability and International Human Rights Law Standards

I don’t intend to give a Canadian perspective; rather I will give the perspective of a Canadian.

As Deputy Judge Advocate General for Military Justice, I assist the Judge Advocate General in carrying out the duties and functions related to military justice that he described to you in his address. 

I have often found it regrettable that those of us who work in this area in uniform – with the exception of counsel for the Director of Defence Counsel Services – seem to have become a personification of the military justice system and whatever evils or shortcomings critics perceive in that system.

Given that my role involves the provision of legal advice and development of policy options related to the Canadian military justice system, I will neither judge nor advocate.

Rather I will limit myself – in the brief time allotted to me – to setting out some propositions as to the state of international law relating to military justice; perhaps as a framework within which we might think about the presentations of my distinguished fellow panellists.

Generally, in international discourses, military justice systems – at least those that involve military tribunals – tend to be seen in a negative light.

  • Instruments of Impunity: a closed system that protects its own (or at least its leaders).
  • Instruments of Oppression: extends the control of the military over civilian populations and/or exposes military personnel to processes that are not fair (kangaroo courts).

There is no doubt that there have been – indeed there continue to be – countries and systems where these negative impressions are entirely valid.

But my theme is that analysis of any particular system must be rational and evidence-based.

  • No military justice system exists in a vacuum – each is unique in terms of its particular purposes and the social, political, legal and constitutional factors that have influenced its evolution.
  • As scholars and practitioners in this area, it behooves us to avoid simplistic comparisons and, instead to engage in a nuanced and contextual analysis.
  • To be – to borrow a phrase from the Supreme Court of Canada – reasonable, fully-informed persons.

Critiques of military justice systems tend to revolve around three axes:

  • The form and composition of tribunals – military or civilian, protections of independence, etc.
  • The subject matter jurisdiction of the tribunals – purely military offences, criminal offences of general application, war crimes.
  • The personal jurisdiction of the tribunals [who is subject to the system] – only military (exclusive jurisdiction over military?), civilians (under what, if any circumstances?).

International Humanitarian Law (or the Law of Armed Conflict) requires that, in both international and non-international armed conflict, states create accountability mechanisms – internal disciplinary systems – as a means of ensuring respect for its rules and to prevent and repress violations.

International Humanitarian Law is silent as to the form of those tribunals – it prohibits neither civilian nor military tribunals.  Although there are some cases where it clearly anticipates military tribunals.

International Human Rights Law – at least that which is applicable to Canada (which is not a party to any regional human rights treaty nor subject to any regional human rights court), is silent as to what form a tribunal with jurisdiction to impose criminal or penal consequences must take.  It does not prohibit military tribunals nor purport to limit their personal or subject-matter jurisdiction.

The international law standard is that set out in article 14 of the International Covenant on Civil and Political Rights (a standard that is mirrored in our Charter in section 11(d):

  • a fair and public hearing” 
  • by a competent” 
  • independent”   
  • and impartial tribunal” 
  • established by law” 

Within the limits set by applicable International Human Rights Law (and certainly their constitutions), states may implement military justice policy over a broad spectrum of possible forms of tribunal and exercises of jurisdiction in order to ensure compliance with and the repression of violations of International Humanitarian Law. And, more broadly, ensuring compliance with domestic law and promoting discipline, efficiency and morale within the armed forces.

These policy options could range from complete abolition of any military tribunals and any military offences under any circumstances…

…through systems that look more like those of Canada…

…and perhaps to systems that are even more “militarized”.

In that context, I submit that there may exist sound policy-based reasons for countries to consider retaining military tribunals with relatively broad subject-matter and personal jurisdiction.  This may be particularly true among countries whose operations are primarily expeditionary:

  • Counter-insurgency or peace support missions where the credibility of the deployed force and the confidence of the local population are keys to success.  A standing and deployable (and article 14 compliant) military justice capability allows the local population to see justice being done – especially where victims are local.  Think allegations of sexual abuses by peacekeepers deployed in Central Africa, for instance.
  • Increased deployment of civilians as integral parts of a military force.  Other Government Departments, Private Military Security Companies, those flying drones, etc (particularly in a “three block” war), whose acts and omissions would result in state responsibility, including the responsibility to investigate and repress.

And so I return to my theme:

The fact that a military justice system is different from other systems does not imply that it is deficient.

This is a point I would urge you to keep in mind when considering both comparisons between different countries’ approaches to military justice, and comparisons between a country’s military justice system and its civilian counterpart.

Any comparative law approach needs to take account of the social, political, legal and constitutional histories of the legal systems that you are comparing.

What works for one country will not necessarily work for another.

Thank you for your attention; I look forward to the day’s discussions.

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