Injustice of military tribunals

Members of the armed forces are, in many if not most legal systems, accorded an inferior type of procedural justice. Charges are brought under the authority of the accused's commanding general or equivalent superior officer, and the same officer often appoints the members of the court and counsel for both prosecution and defence, all from among members of his own command, and also has the power to review the findings of the court. It is questionable whether the personnel mentioned can always exercise complete freedom of judgement and action if they are dependent on their commanding officer for their efficiency ratings, promotions, allocation of duties, and leave rights.

Military personnel accused before military tribunals often have no freedom of choice of counsel, even from among military personnel. They may face particular difficulties in securing evidence in their favour and in having access to all the evidence brought before the tribunal by the prosecution. Hearings by military tribunals are held in what may in some cases be an unnecessary degree of secrecy. Procedures followed by military tribunals tend to stress the importance of dealing with cases speedily, and this factor may also operate to the detriment of accused military personnel.

Military tribunals also have jurisdiction over civilians in a number of countries; and the offences which they are empowered to try are often of a political character.

Military courts contribute significantly to the problem of impunity. A recurrent theme in times of internal crisis or under the doctrine of national security is that military personnel attested to have engaged in gross misconduct against civilians hardly ever see their cases investigated in any rigorous manner. In the few cases which are brought to trial, they are almost invariably acquitted or given sentences that, by any standard, are grossly disproportionate to the crime committed. Subsequent promotions are even commonplace. One example is the trial by a Peruvian military court of those held responsible for the killing of more than 100 prisoners accused of terrorism who had surrendered at a prison in Lima. This reportedly end three years later with the acquittal of the majority of those involved; only two officers were found guilty and received light sentences. For such reasons, the UN Commission on Human Rights is concerned about the widespread tendency to grant jurisdiction over human rights abuses to military courts.