The constitutional context of exceptional courts and state repression

Abstract

Does the adoption of constitutional provisions governing the administration of justice in exceptional courts have impact on states’ repressive behavior? Drawing on Draft Principles Governing the Administration of Justice through the Military Tribunals, I gather and code data on exceptional courts from the national constitutions of 140 countries between the years of 1990 and 2005. I show that provisions related to exceptional courts prohibiting the trial of human rights violations in exceptional courts, protecting the right to appeal exceptional courts’ decisions, prohibiting fair trial derogations during emergency are more likely to increase the cost of repression. These are the provisions that when activated, hold statesmen accountable for their violations of human rights in judicial venues that are less amenable to their control. Whereas provisions establishing exceptional courts, prohibiting the trial of civilians in exceptional courts, and protecting fair trial in exceptional courts are likely to increase repressive behavior. Such provisions provide states with the tools to respond to threat in a way that is difficult to be observed by the public.

Appendix: Examples of constitutional language regarding exceptional courts

Armenia 1978

***Right to fair trial is protected in state of emergency as of article 45. Article 39 guarantees the right to fair trial. Article 92 establishes military courts.

http://groong.usc.edu/constitution.html

***In Armenia’s constitution of 1995 the right to fair trial (art. 19) may be restricted in emergency.

CHAPTER 2ARTICLE 44

Special categories of human and civil rights, except for those stipulated in Articles 15, 17–22, and 42 of the Constitution, can be temporarily restricted as prescribed by law in case of martial law or a state of emergency within the scope of international commitments on deviating from commitments in cases of emergency.

Botswana 1966

***the high court hears all types of cases, including appeals from court martial. Art. 95, sub. 5

Brazil 1990–2005

An example for the explicit authorization of military courts to try human rights violations committed by personnel:

Article 125:

The state court judges in the military courts shall have jurisdiction to charge and to judge by themselves military crimes committed against civilians and judicial actions against acts of military discipline. It is the responsibility of the Council of Justice, under the presidency of a state court judge, to charge and to judge other military crimes.

Estonia 1992

***Fair trial provisions are protected even under emergency:

Art 130: During a state of emergency or a state of war, the rights and freedoms of a person may be restricted, and duties may be placed upon him or her in the interests of national security and public order, under conditions and pursuant to procedure prescribed by law. The rights and freedoms provided by Article 8, Article 11–18, paragraph 3 of Article 20, Article 22, Article 23, paragraphs 2 and 4 of Article 24, Article 25, Article 27, Article 28, paragraph 2 of Article 36, Article 40, Article 41, Article 49 and paragraph 1 of Article 51 of the Constitution shall not be restricted.

Germany constitution (1949-present)

****Military courts established only to try soldiers abroad for military crimes (violations of human rights not included).

Article 96 [Other federal courts] (1) The Federation may establish a federal court for matters concerning industrial property rights. (2) The Federation may establish federal military criminal courts for the Armed Forces. These courts may exercise criminal jurisdiction only during a state of defence or over members of the Armed Forces serving abroad or on board warships. Details shall be regulated by a federal law. These courts shall be under the aegis of the Federal Minister of Justice. Their full-time judges shall be persons qualified to hold judicial office. IX. The Judiciary 87 (3) The supreme court of review from the courts designated in paragraphs (1) and (2) of this Article shall be the Federal Court of Justice. (4) The Federation may establish federal courts for disciplinary proceedings against, and for proceedings on complaints by, persons in the federal public service.

(5) With the consent of the Bundesrat, a federal law may provide that courts of the Länder shall exercise federal jurisdiction over criminal proceedings in the following matters: 1. genocide; 2. crimes against humanity under international criminal law; 3. war crimes; 4. other acts tending to and undertaken with the intent to disturb the peaceful relations between nations (paragraph (1) of Article 26); 5. state security.

Greece 1975

Article 96: Special statutes provide for:

a) Military, naval and air force courts which shall have no jurisdiction over civilians.

Haiti 1987

***Trial of civilians and military personnel’s violations of human rights in exceptional courts are explicitly prohibited. Supreme Court hears appeals of military court decisions. Fair trial protections in military courts are mentioned but in a vague language:

ARTICLE 42–2

Military courts have jurisdiction only:

• a. In the case of violation by military personnel of regulations in the Manual of Military Justice;

• b. In the case of conflicts between members of the armed forces;

• c. In the case of war.

ARTICLE 42-3

Cases of conflicts between civilians and military personnel, abuses, violence and crimes perpetrated against a civilian by a member of the military in the performance of his duties are under the jurisdiction of courts for ordinary law.

ARTICLE 182-1

The Supreme Court rules on both fact and law in all cases of decisions handed down by military courts.

ARTICLE 42

No citizen, whether civilian or military, may be denied access to the courts open to him under the Constitution and the laws.

ARTICLE 173-2

No court and no jurisdiction in disputed matters may be established except by law. No special court may be established under any name whatever.

Iran 1979

***The constitution explicitly establishes military courts within the ordinary judiciary system. It establishes the types of cases these courts have jurisdiction over. It does not mention trying civilians nor explicitly prohibits trying civilians or human rights violations in those courts. Therefore I coded related variables as (1).

Article 172: Military courts will be established by law to investigate crimes committed in connection with military or security duties by members of the Army, the Gendarmerie, the police, and the Islamic Revolution Guards Corps. They will be tried in public courts, however, for common crimes or crimes committed while serving the department of justice in executive capacity. The office of military prosecutor and the military courts form part of the judiciary and are subject to the same principles that regulate the judiciary.

Paraguay 1967

***Provision 43 explicitly specifying the jurisdiction of military courts:

Article 43.- The military courts are organized to judge crimes and offenses of a military nature, classified as such by law. When in the case of a planned and made punishable by criminal law both common as the military criminal law, it will not be considered military, unless offense was committed by active duty military and their character as such. In case of doubt whether the offense is military or common, it is it considered as a common crime. Only in case of international war, and in the manner provided by law, these courts may have jurisdiction over civilians.