Trying civilian contractors in military courts: a necessary evil?

Abstract

Nature of the problem Many states have established military courts to deal with offences committed by members of the armed forces. The allocation of jurisdiction between such courts and ordinary civilian courts can be a precarious constitutional law exercise as the reason for creating military courts has often been the desire to place a premium on military expediency at the expense of fair trial rights. Particularly problematic has been the choice made by some states to subject civilians under some circumstances to the jurisdiction of military courts. During the last half a century, international human rights bodies have been critical of military justice systems, leading many states to a process of civilianisation. Some states have abolished military courts altogether. Others have retained separate military justice systems but introduced civilian elements, by appointing civilian judges or judge advocates, subordinating the prosecution service to civilian authorities, and creating avenues of appeal to ordinary civilian courts. Some states have limited the jurisdiction of military courts to purely disciplinary or duty-related offences. This process has also entailed placing restraints on the exercise of military jurisdiction over civilians. This trend has, however, been less pronounced with respect to a particular group of civilians, namely those deploying with or accompanying the armed forces overseas (associated civilians). Some states have in fact sought to expand the competence of their military justice systems to deal with associated civilians. While the issue of subjecting associated civilians to military justice is not new to military law, it has attracted special attention twice in modern history. The first occasion was in the aftermath of World War II when the Allied forces became quasi-permanently stationed abroad, accompanied by their family members. Some states enacted legislation to bring these dependants within the jurisdictional reach of their military courts because that was seen as preferable to trials in local courts. The increased use of private military contractors by NATO countries in the Yugoslavian conflict, and more recently by members of the ‘coalitions of the willing’ in Iraq and Afghanistan, has led to the re-emergence of this problem in another guise. Sometimes fuelled by the impotence of civilian law enforcement authorities to deal with serious crimes committed by contractor personnel on military operations, legislators have sought to extend, reiterate or consolidate the jurisdiction of military courts.