INTRODUCTION
War crimes are among the most serious and heinous offences under international law, necessitating rigorous judicial proceedings to ensure accountability. Military courts play a crucial role in prosecuting these crimes, operating in complex legal and political environments. However, concerns regarding their impartiality persist, particularly in cases where national interests, political pressures, or military hierarchies may influence judicial decisions. This blog explains how military courts maintain fairness during war crime trials and states’ solutions to ensure fairness.
MILITARY COURTS AND THEIR LEGITIMACY:
Military courts derive their legitimacy from both domestic and international legal instruments. The Geneva Convention and its Additional Protocols set crucial legal standards for the trial of military personnel convicted of war crimes. Article 84 of the Third Geneva Convention stipulates that “A prisoner of war shall be tried only by a military court unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.” [1]
The Rome Statute of the International Criminal Court also provides a framework for prosecuting war crimes when domestic mechanisms fail to act impartially. As per Article 17, “Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State that has jurisdiction over it unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State that has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct that the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.”[2]
STRUCTURAL SEPARATION OF JUDICIARY AND EXECUTIVE
An important aspect of governance that Rousseau focused on was the separation of powers between the legislature, executive, and judiciary. Similarly, a crucial safeguard of uniformity and justice in some military courts is the structural separation between the judiciary of the forces and the executive or military command. While military courts can and should operate within the ambit of the armed forces, they must function independently of undue influence. In the case of Findley v. United Kingdom [3], The court held that senior executive officers must not act as judges in a military trial, as their influence can significantly alter the verdict. Hence, it is crucial to have a separation between the executive command (mostly higher-ranking officers) and the judiciary to ensure a much more comprehensive justice system.
COMPOSITION OF MILITARY COURTS
The composition of military courts also influences their impartiality. Several countries allow civilian advocates to represent the accused in military courts such as India. [4]This prevents undue military command influence to ensure that those with expertise in military operations contribute to the adjudication process. Additionally, some countries establish separate appellate bodies such as the United States Court of Appeals for the Armed Forces, which reviews military convictions to ensure legal accuracy and fairness. In contrast, military courts and authoritarian regimes often lack such safeguards. For instance, trials conducted by ad hoc military tribunals have been criticised for their opaque procedures and lack of external oversight. [5]The principle of ‘equality of arms’, Fundamental to fair trials under Article 6 of the European Convention on Human Rights, demands that defendants in military courts have access to efficient legal representation and the ability to challenge the prosecution’s evidence effectively.
DUE PROCESS PROTECTIONS IN MILITARY TRIBUNALS.
The principle of ‘innocent until proven guilty’ also holds immense significance in military trials as well. This principle is enshrined in both domestic and military justice courts and international instruments such as Article 66(2) of the Rome Statute, which states, “Everyone shall be presumed innocent until proven guilty before the court, following the applicable law.” [6] It was also upheld in Coffin v. United States.[7]“The principle that there is a presumption of innocence in favour of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” To uphold the principle of “innocent until proven guilty”, military courts must ensure that the pre-trial detention and investigative processes do not prejudice the accused’s right to a fair hearing. In cases such as Prosecutor vs Delalic[8], The International Criminal Tribunal for the former Yugoslavia emphasised the importance of procedural fairness and the prohibition of coerced confessions. Effective legal representation is also essential for impartial trials. Military courts must provide the accused with competent defence counsel, ideally from outside the military command structure. In Prosecutor vs Akayesu[9], The International Criminal Tribunal for Rwanda highlighted the necessity of legal assistance for defendants accused of war crimes, pronouncing that the complexity of international humanitarian law demands robust legal support. Moreover, international human rights embody have criticised military courts that deny defendants access to civilian defence lawyers. The UN Human Rights Committee has stressed that military courts must respect the International Covenant on Civil and Political Rights (ICCPR), particularly Article 14, which guarantees the right to legal representation. [10]
TRANSPARENCY, OVERSIGHT MECHANISMS AND CRITICISMS.
Transparency is a fundamental component of judicial impartiality. Public trials ensure that military courts are subject to scrutiny, deterring potential bias and misconduct. While national security concerns may justify some restrictions on public access, excessive secrecy undermines confidence in military justice.[11] Courts such as the Special Court for Sierra Leone have set important precedents by allowing media access and publishing trial records to enhance transparency. [12]Appeals mechanisms serve as an additional safeguard against unfair military trials. Many jurisdictions allow military court decisions to be reviewed by civilian appellate courts or specialized military appellate bodies. For example, in the United Kingdom, military court decisions can be appealed to the Court Martial Appeal Court, composed of judges from the Court of Appeal. In contrast, systems lacking independent mechanisms risk perpetuating impunity. The African Commission on Human and Peoples’ Rights has criticized military courts that operate without appeal or oversight, stating that such practices violate due process guaranteed under the African Charter on Human and Peoples’ Rights[13]. Despite these safeguards, military courts remain controversial. Critics argue that military personnel may be reluctant to convict fellow soldiers due to esprit de corps or institutional loyalty. Additionally, the principle of command responsibility, which holds superior officers accountable for crimes committed by subordinates, has been inconsistently applied in military trials. One notable example is the My Lai Massacre during the Vietnam War in 1968, where only one officer, Lieutenant William Calley[14], was convicted despite overwhelming evidence of systematic wrongdoing. Similar concerns arose in the Abu Ghraib prisoner abuse scandal[15], where lower-ranking personnel were prosecuted while senior officers escaped accountability. These cases highlight the difficulty of ensuring truly impartial military trials involving institutional complicity.
Author(s) Name: Ananya Manvi (BMS College of Law, Bengaluru)
References:
[1] The Third Geneva Convention, art.84
[2] The Rome Statute of International Criminal Court 2002, art.17
[3] Findley v. United Kingdom (1997) 24 EHRR 51
[4] PTI, “Army Personnel Entitled for Legal Representation under Summary Court Martial: Supreme Court” Economic Times (December 21, 2018) <https://economictimes.indiatimes.com/news/politics-and-nation/army-personnel-entitled-for-legal-representation-under-summary-court-martial-supreme-court/articleshow/67197832.cms?from=mdr> accessed March 27, 2025
[5] Elena Naughton, “Committing to Justice for Serious Human Rights Violations” (2018).
[6] The Rome Statute of International Criminal Court 2002, art. 66(2)
[7] Coffin v United States (1895) 156 US 432, 453.
[8] Prosecutor v. Delalic (2007) IT-96-21-A
[9] Prosecutor v. Akayesu (2001) ICTR-96-4-A
[10] International Covenant on Civil and Political Rights 1976, art.14
[11] Rose M, “New Pentagon Rules Keep Many Military Court Records Secret” (ProPublica, February 1, 2023) <https://www.propublica.org/article/navy-records-defense-department-bonhomme> accessed March 27, 2025
[12] Ibid 5
[13] Makau w. Mutua, “The African Human Rights System: A Critical Evaluation” (United Nations Development Programme, Human Development Report (2000)
[14] Yousif N, “William Calley, Face of My Lai Massacre, Dead at 80” (BBC News, July 30, 2024) <https://www.bbc.com/news/articles/c9wv9l7pe9po> accessed March 27, 2025
[15] Hersh SM, “Torture at Abu Ghraib” The New Yorker (April 30, 2004) <https://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib> accessed March 27, 2025
