It is the aim of this thesis to analyse the framework and relevant case law on requirements of independence and impartiality under Article 14 (1) ICCPR, Article 8 (1) IACHR and Article 6 (1) ECHR in relation to military courts.
One has to bear in mind that most of the judgments discussed were not solely concerned with questions of impartiality and independence, but also with other fundamental rights, thus the paper has to be read in a context and framework of rights entrenched in the respective Convention or Covenant.
Military Courts are not a new phenomenon, they were (and are) a feature of the military system and were originally intended as a tool to uphold a structure which is rooted in vertical influence, thus they have a direct nexus to the executive branch of the state which makes them relatively easy to set up and control on the other hand however, due to their proximity to other branches of the state they can blur the line of the underlying principle – separation of powers -. Several problems spring from the latter aspect[…]. Another problem, which will be also discussed below is that of scrutiny, open courts are subject to public scrutiny whereas military or even partly military courts often lack any form of control. This line of reasoning leads to two characteristical groups of cases, firstly cases involving civilians which are trialled by a military court often in relation to state security issues, the other problem is that of impunity where members of the military sit trial over comrades often resulting in an impunity verdict.
Bearing these two groups of cases in mind an approach was taken, first to set out the relevant international legal framework and principles on independence and impartiality, the next part will then, building on the former, analyse the state reports and case law. In doing so it will be shown, in how far the different controlling bodies have developed
the requirements of independence and impartiality up to the current date and have found consensus in areas i.e. trial of civilians before military courts but differ in their approach to prevent the latter.
After a first overview of the case law it became clear that the gravest interference with the fair trial right has occurred in South America, having said this, at the core of this paper is the analysis of case law before the Inter American Commission of Human Rights and the Inter American Court.
Inhaltsverzeichnis (Table of Contents)
- Introduction
- Structure
- A. International Legal Framework
- I. Binding Instruments
- II. Non-Binding Instruments
- B. Impartiality & Independence (Preliminary thoughts)
- I. Introduction
- II. Impartiality
- III. Independence
- IV. Summary
- C. Application of trial guarantees (impartiality & independence)
- I. Military Tribunals –distinguished
- 1. ICCPR
- 2. IACHR/ECHR
- II. ICCPR
- 1. Introduction
- 2. State reports / General Comment Nr. 13 + 32
- 3. Individual complaints
- a. Bazzano v Uruguay
- b. Little v Jamaica
- c. Campos v Peru
- d. Kurbanova v Tajikistan
- 4. Summary
- III. IACHR
- 1. Introduction
- 2. State Reports Annual Reports (Commission)
- a. Uruguay
- b. Colombia (first)
- c. Guatemala / Chile
- d. Peru
- e. Columbia (second)
- f. Summary
- 3. Individual complaints (Commission)
- a. Introduction
- b. Alexis Fuentes Guerro et al. v Columbia
- c. Santos Mendivelso Coconubo v Columbia
- d. Lindo and Concha v Peru
- e Diniz Bento da Silva v Brazil
- f. Summary
- 4. Individual complaints (Court)
- a. Introduction
- b. Loayza-Tamayo v Peru
- c. Petruzzi et al. v Peru
- d. Case of 19 merchants v Columbia
- e. Lori Berenson-Mejía v Peru
- f. Summary
- IV ECHR
- 1. Introduction
- 2. Independence & Impartiality
- a. England
- aa. Findlay v The United Kingdom
- bb. Steel and Morris v The United Kingdom
- cc. Bell v The United Kingdom
- b. Turkey
- aa. Introduction
- bb. Incal v Turkey
- cc. Çıraklar v Turkey
- c. Summary
- a. England
- D. Conclusions & Summary
- E. Primary/Secondary Literature
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This thesis aims to analyze the framework and relevant case law concerning the requirements of independence and impartiality under Article 14 (1) ICCPR, Article 8 (1) IACHR, and Article 6 (1) ECHR in relation to military courts. The paper focuses on the application of these international legal instruments to military tribunals, exploring the challenges and complexities of ensuring fair trials in such contexts.- The international legal framework for fair trials, particularly the requirements of impartiality and independence, as enshrined in the ICCPR, IACHR, and ECHR.
- The specific challenges and complexities posed by military courts in upholding the principles of impartiality and independence.
- The analysis of relevant case law, examining how these international instruments have been applied in cases involving military tribunals.
- The potential for bias and lack of scrutiny in military courts, particularly in cases involving civilians or members of the military.
- The implications of military courts for the separation of powers and the protection of fundamental rights.
Zusammenfassung der Kapitel (Chapter Summaries)
- The introduction provides an overview of the thesis's objectives, focusing on the analysis of the international legal framework for fair trials and its application to military courts. It highlights the importance of impartiality and independence in ensuring a fair trial and the challenges posed by military courts in upholding these principles.
- The chapter on the international legal framework analyzes relevant binding and non-binding instruments, highlighting the key provisions related to the right to a fair trial, particularly the requirements of impartiality and independence, as enshrined in the ICCPR, IACHR, and ECHR.
- The chapter on impartiality and independence provides a preliminary discussion of these concepts, outlining their significance in the context of fair trials. The chapter explores the potential for bias and lack of scrutiny in military courts, examining the challenges of ensuring impartiality and independence in such contexts.
- The chapter on the application of trial guarantees (impartiality and independence) delves into the specific challenges posed by military tribunals in upholding the principles of impartiality and independence. It analyzes relevant case law under the ICCPR, IACHR, and ECHR, examining how these international instruments have been applied in cases involving military courts.
Schlüsselwörter (Keywords)
This thesis explores the intersection of international law and military justice, focusing on the fundamental principles of impartiality and independence in the context of fair trials. The research examines the application of these principles to military courts, analyzing relevant case law and exploring the challenges and complexities of ensuring fair trials in such contexts. Key concepts include the ICCPR, IACHR, ECHR, military tribunals, impartiality, independence, separation of powers, and human rights. - I. Military Tribunals –distinguished
- Arbeit zitieren
- Volker Schleiff (Autor:in), 2008, The right to a fair trial - Requirements of impartiality and independence under Articles 14 (1) ICCPR, 8 (1) IACHR and 6 (1) ECHR in relation to military courts, München, GRIN Verlag, https://www.grin.com/document/118534
