|Hon. Gabriela Knaul|
One of the most complex aspects of military tribunals relates to their subject-matter jurisdiction, that is, to the types of offences that fall under their jurisdiction.The jurisprudence of human rights treaty bodies, special procedures mandate holders and regional human rights mechanisms on this issue tend to confine the jurisdiction of military tribunals to purely disciplinary types of military offences, rather than to offences of a criminal nature. However, many military justice systems do not make any distinction between a criminal offence and a breach of discipline. In these systems, which are based on the concept of “service offence”, military tribunals simultaneously exercise judicial functions and disciplinary authority over military personnel.
In my report, I recommend that the ratione materiae jurisdiction of military tribunals be limited to criminal offences of a strictly military nature; in other words, to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command. States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals.I am of the view that ordinary criminal offences committed by military personnel should be tried in ordinary courts, unless regular courts are unable to exercise jurisdiction owing to the particular circumstances in which the crime was committed (i.e. exclusively in cases of crimes committed outside the territory of the State). Such cases should be expressly provided for by the law.