Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 84 : Courts
Text of the provision*
(1) A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
(2) In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3596  Article 84 forms part of the general provisions of the chapter on penal and disciplinary sanctions. It establishes the competence of military courts for the trial of prisoners of war. Consistent with the ‘principle of assimilation’,[1] Article 84 only permits the prosecution of prisoners of war before civilian courts if these courts have expressly been granted jurisdiction to try members of the armed forces of the Detaining Power for the same offence.
3597  Paragraph 2 qualifies the first paragraph by prohibiting, in absolute terms, the trial of prisoners of war in any court that does not comply with the requirements of independence and impartiality or the procedure of which fails to afford the accused the rights and means of defence. Article 84 thereby underscores that even in conflict situations, prisoners of war are entitled to the fair and impartial administration of justice.
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B. Historical background
3598  The 1899 and 1907 Hague Regulations authorize the Detaining Power to adopt ‘measures’ against prisoners of war for ‘any act of insubordination’,[2] implying that Detaining Powers are at liberty to bring accused prisoners before the courts or tribunals of their choice. Later, the 1929 Geneva Convention on Prisoners of War limited the Detaining Power’s latitude in this choice by prescribing, in Article 63, that a sentence may ‘only be pronounced on a prisoner of war by the same tribunals in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power’.[3] A similar provision can now be found in Article 102 of the Third Convention.
3599  Informed by the experience of the special military tribunals and commissions set up to prosecute prisoners of war during and immediately after the Second World War,[4] delegations at the Diplomatic Conference of 1949 wished to make explicit the normal jurisdiction of military courts for the trial of prisoners of war and to furthermore qualify the principle of assimilation by requiring compliance with the fundamental guarantees of independence and impartiality and the provision of the rights and means of defence. This resulted in the adoption of the present article, inserted at the beginning of the chapter on penal and disciplinary sanctions to signal its general importance.
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C. Paragraph 1: Competent courts
3600  Paragraph 1 lays down the general rule that prisoners of war accused of an offence must be tried by military courts. By virtue of Article 102, prisoners of war must moreover be tried by the same military courts that have competence to try members of the armed forces of the Detaining Power accused of the same offence. The presumption in favour of the jurisdiction of military courts is logical in view of Article 82(1), which requires that prisoners of war be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power.[5] Given that prisoners of war are subject to the military laws of the detaining State, it is the military courts of that State that possess the necessary expertise to deal with any alleged offence the prisoners might commit against those laws.[6]
3601  At the same time, the drafters of the Third Convention wanted prisoners of war to benefit from the principle of assimilation, whereby prisoners of war are not placed in a less favourable position than members of the Detaining Power’s own armed forces.[7] Article 84(1) thus allows for the rebuttal of the presumption in favour of the military justice system if civilian courts have ‘expressly’ been granted jurisdiction under the laws of the Detaining Power to try members of its own armed forces for the offence allegedly committed by the prisoner.[8] An express grant of jurisdiction not only includes where the relevant law providing jurisdiction for the civilian courts specifically refers to members of the armed forces, but also where the criminal law is of general application to all persons within the relevant civilian court’s jurisdiction and there are no exclusionary provisions applicable to members of the armed forces. The reference to an ‘express’ grant of jurisdiction should not be taken to exclude legal systems where such a grant of jurisdiction is implicit or based on the constitutional system or established judicial practice which must in all cases respect the principle of legality.
3602  If civilian courts have been vested with the competence to try members of the armed forces of the Detaining Power for a given offence, paragraph 1 does not explicitly state that the accused prisoner must be tried by a civilian court, only that the prisoner need not be tried by a military court. In this regard, Article 102 complements the present article by requiring that prisoners of war be tried by the same courts as members of the detaining State’s own forces. In other words, where a member of the armed forces would be prosecuted within the civilian justice system for a particular offence, a prisoner of war accused of the same offence must likewise be tried by a civilian court.
3603  Article 84(1) does not require that prisoners of war alleged to have committed an offence against the applicable legislation be tried by a court, be it military or civilian. Article 82(1) authorizes the Detaining Power to take judicial or disciplinary measures in respect of such offences.[9] Without prejudice to the competence of courts and superior military authorities, an officer vested with disciplinary powers pursuant to Article 96(2) may order the application of disciplinary measures.[10] It follows that Article 84(1) only becomes applicable if the competent authorities of the Detaining Power decide to bring judicial proceedings against a prisoner of war. However, in no circumstances may the requirements of Article 84 be circumvented by labelling proceedings as disciplinary when, in effect, the imposable punishments are penal in nature.[11]
3604  To comply with paragraph 1, States must ensure that the jurisdiction of their military or, as the case may be, civilian courts extends to prisoners of war. How this will be achieved in practice depends on the domestic legal system of each State but must in all cases respect the principle of legality.[12] This could, for example, be achieved through a law or regulation stating that prisoners of war are subject to the same courts as members of the State’s own forces.[13]
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D. Paragraph 2: Essential guarantees
3605  While paragraph 1 applies a relative standard, making the choice of jurisdictional forum contingent on which courts are competent to try members of the detaining State’s own forces according to its domestic law, Article 84(2) imposes absolute and minimum standards for the trial of prisoners of war. This is an important provision since military and civilian justice systems can vary considerably across national legal systems and a strict application of the principle of assimilation would not necessarily guarantee prisoners of war a fair trial.[14]
3606  Paragraph 2 thus provides that in no circumstances whatever may a prisoner of war be tried by any court that does not offer the essential guarantees of independence and impartiality and, in particular, the procedure of which does not afford the accused the rights and means of defence as set out in Article 105. The phrase ‘in no circumstances whatever’ underscores the absolute nature of this provision and its applicability regardless of whether the prisoner is accused of having committed an offence prior to or during captivity. Furthermore, the reference to ‘a court of any kind’ makes clear that the requirements of paragraph 2 apply irrespective of whether it is a military court or a civilian court that has jurisdiction, pursuant to paragraph 1, to try the accused prisoner.
3607  If the standards of due process provided for under the laws, regulations and orders in force in the armed forces of the Detaining Power fall below the minimum standards provided for in the present paragraph, and the constitutional system of the Detaining Power does not allow the direct application of this provision, that Power must either revise its rules or adopt special legislation affording prisoners of war these minimum standards in addition to the judicial guarantees available to members of its own armed forces.[15] Such legislation should preferably be enacted already in peacetime.
3608  As discussed in relation to Article 82, for civilian prisoners of war there may be challenges in the application of the principle of assimilation. In the case of Article 84 specifically, there may be constitutional or other limits in place that bar the trial of civilian persons by military court. The specific application of military law to civilian prisoners of war will therefore differ according to national legal systems.[16]
3609  There may be additional challenges in the case of children taken as prisoners of war. As in the case of civilian persons, the appropriateness of military courts and procedures when dealing with children is not beyond doubt.[17] In the ICRC’s view, norms and standards of the child justice system should inform the decision with regard to judicial forum and process for minors.[18] These include norms and standards recognizing that, in cases where a child prisoner of war has been unlawfully recruited by the armed forces of an opposing Party, such a child is a victim of a violation of international law and should be treated accordingly.[19]
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1. Independence and impartiality
3610  The first part of paragraph 2 requires that the competent court offer ‘the essential guarantees of independence and impartiality as generally recognized’. At the time Article 84 was drafted, certain delegations were concerned that this formulation was too general and could therefore be interpreted differently by States.[20]
3611  In 1949, the concepts of independence and impartiality were relatively new, having just been included in the 1948 Universal Declaration of Human Rights.[21] They have subsequently been incorporated into other international humanitarian law treaties,[22] in numerous human rights conventions[23] and legally non-binding instruments,[24] as well as in military manuals[25] and domestic laws.[26] There is now a wealth of jurisprudence by international and domestic courts clarifying the meaning of ‘independence’ and ‘impartiality’. Although conceptually distinct, the requirements of independence and impartiality both seek to guarantee fair trial by ensuring that the outcome is not predetermined.[27] Independence has been described as ‘a functional attribute which implies that the institution or individual possessing it is not subject to external authority and has complete freedom in decision-making’.[28] For a court to be independent, it must be able to perform its functions without interference from any other branch of government, especially the executive.[29] In addition to institutional independence, individual judges must also be and be seen to be independent. This requires that they be protected against inappropriate or unwarranted interference and that they be able to autonomously adjudicate cases by applying the law to the facts. Relevant criteria related to this aspect of independence may include the manner of appointment of judges, their tenure, security, conditions of service and remuneration.[30] The requirement of independence does not necessarily preclude the court from being composed of persons from the executive branch of government, for example members of the armed forces, so long as procedures are in place to ensure they perform their judicial functions independently and impartially.
3612  The requirement of impartiality has two aspects, one subjective and one objective. First, in order to be impartial, the judges composing the court must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the matter before them, nor act in ways that improperly promote the interests of one side.[31] Second, the court must be impartial from an objective viewpoint, i.e. it must appear to a reasonable observer to be impartial.[32] These two aspects of the requirement of impartiality have also been applied by the ICTY and the ICTR.[33]
3613  The requirements of independence of the judiciary, in particular from the executive, and of subjective and objective impartiality apply equally to civilian, military and special security courts.[34]
3614  There are specific challenges to the principles of independence and impartiality in the case of trials of prisoners of war. The simple fact that an armed conflict exists may itself affect the independence and impartiality of courts. Judges will be required to sit in judgment against enemy military personnel, and the Detaining Power must therefore take particular care to guard against any bias or conflict of interest that may arise, thereby ensuring that the courts, whether military or civilian, that try prisoners of war operate in a manner that guarantees their independence and impartiality.
3615  To satisfy the first part of Article 84(2), the Detaining Power must put in place procedures to ensure that members of the court can perform their judicial functions independently and impartially and that a reasonable observer, properly informed, would not reasonably apprehend bias.[35] Where prisoners of war are tried by a military court, it is important that the trial is conducted independently of the chain of command of the prisoner-of-war camp.[36]
3616  Certain features of traditional military justice systems have been reformed over the past few decades, as the requirements of independence and impartiality have been clarified through the jurisprudence of domestic and international courts.[37] As the understanding of these concepts has changed over time, several States have engaged in significant reforms of their military justice systems.[38] While these reforms have been undertaken to ensure that members of the State’s own forces receive a fair trial by an independent and impartial court, they also increase the likelihood of the State’s compliance with Article 84(2) in the event that it becomes a Detaining Power and decides to bring judicial proceedings against a prisoner of war.
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2. Rights and means of defence
3617  The requirements of independence and impartiality pertain to the structure and character of the court and its judges, while the second part of paragraph 2 relates to the trial process itself and the rights and means necessary for an accused prisoner to conduct a proper defence. The stipulation in Article 102 that prisoners of war must be tried in accordance with the same procedure as members of the armed forces of the Detaining Power means that a special procedure may not be set up for prisoners of war depriving them of the rights and means of defence enjoyed by members of the State’s own forces.[39]
3618  Paragraph 2 makes specific reference to the rights and means of defence set out in Article 105. Further safeguards can be found in Article 99, which proscribes the prosecution of a prisoner of war for an offence that was not unlawful under the domestic law of the Detaining Power or international law at the time the act was committed and prohibits the use of coerced confessions. Article 75(4) of Additional Protocol I contains some additional, generally recognized trial standards that also inform the interpretation of paragraph 2.[40]
3619  Although Article 84 does not spell out the right of prisoners of war to a fair trial, such right is implicit in paragraph 2. The trial of a prisoner of war before a military or civilian court that is not independent and impartial or that fails to afford the accused the necessary rights and means of defence would not be a fair trial.[41] To wilfully deprive a prisoner of war of the right to a fair and regular trial constitutes a grave breach of the Third Convention.[42]
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Select bibliography
Dahl, Arne Willy, ‘Military Justice and Self-Interest in Accountability’, in Morten Bergsmo and Song Tianying (eds), Military Self-Interest in Accountability for Core International Crimes, Torkel Opsahl Academic EPublisher, Brussels, 2015, pp. 21–34.
Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011.
Esgain, Albert J. and Solf, Waldemar A., ‘The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies’, North Carolina Law Review, Vol. 41, No. 3, 1963, pp. 537–596.
Hansen, Victor, ‘The Impact of Military Justice Reforms on the Law of Armed Conflict: How to Avoid Unintended Consequences’, Michigan State International Law Review, Vol. 21, 2013, pp. 229–272.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, www.icrc.org/customary-ihl/eng/docs/home.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Publications, Dobbs Ferry, 1982.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 371–417.
Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1976, reprinted 2005.
Rowe, Peter, ‘The trial of prisoners of war by military courts in modern armed conflicts’, in Caroline Harvey, James Summers and Nigel D. White (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, 2014, pp. 313–336.
– ‘Penal or Disciplinary Proceedings Brought against a Prisoner of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1025–1038.
Turkel Commission, Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law, The Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report, February 2013.
Vargas, Elizabeth Santalla, ‘Military or Civilian Jurisdiction for International Crimes? An Approach from Self-Interest in Accountability of Armed Forces in International Law’, in Morten Bergsmo and Song Tianying (eds), Military Self-Interest in Accountability for Core International Crimes, Torkel Opsahl Academic EPublisher, Brussels, 2015, pp. 401–425.
Weissbrodt, David S., ‘International Fair Trial Guarantees’, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, 2014, pp. 410–440.

1 - For a general discussion of the principle of assimilation, see Introduction, section A.3.c. For the principle of assimilation in penal and disciplinary matters specifically, see the commentary on Article 82(1), section C.
2 - Hague Regulations (1899), Article 8; Hague Regulations (1907), Article 8.
3 - For practice on the application of this provision during the Second World War, see Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, pp. 416–419.
4 - See e.g. Gary D. Solis, ‘Military Commissions’, in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice, Oxford University Press, 2009, pp. 416–417.
5 - See Rowe, 2015, p. 1028.
6 - See Vargas, p. 411–412.
7 - See Rosas, p. 454.
8 - States have not taken a uniform approach to the choice of jurisdictional forum for the trial of members of their own armed forces accused of an offence. See Turkel Commission, pp. 177–180, which provides a summary of some of the approaches, including that of the United States, where memorandums of understanding between the Department of Defense and the Department of Justice provide that prosecutions of federal crimes allegedly committed by a member of the armed forces will be pursued through the military justice system. In Canada, the report notes that there is no formal arrangement in place, and jurisdiction will be exercised by military or civilian officials depending on the circumstances and location of the incident, the interests of military discipline and whether the civil or military agencies have the better resources to prosecute the offence. In yet other countries, such as Denmark, Germany and the Netherlands, there is no distinct military justice system and members of the armed forces are prosecuted in the civil court system (although in the Netherlands by a distinct military chamber). For additional examples of practice, see also Argentina, Law Repealing the Military Justice Code, 2008, Annex II, Article 1; Bolivia, Constitution, 2009, Article 180; Colombia, Military Criminal Code, 2010, Article 3; Ecuador, Constitution, 2008, as amended, Article 188; Haiti, Constitution, 1987, as amended, Article 42; Paraguay, Constitution, 1992, Article 174; Peru, Law on Crimes against Humanity, 1998, Article 5; Uruguay, Law on Cooperation with the ICC, 2006, Article 11; and Venezuela, Constitution, 1999, Articles 29 and 261.
9 - See also Rowe, 2015, p. 1029.
10 - For a discussion of the authority to impose disciplinary sanctions, see the commentary on Article 96, section D.
11 - See Rowe, 2015, p. 1036. See also the commentary on Article 82, para. 3573.
12 - See Article 86.
13 - For example, the United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 3-7(b), states: Judicial proceedings against EPW [enemy prisoners of war] and RP [retained personnel] will be by courts-martial or by civil courts. When EPW are tried by courts-martial, pretrial, trial, and post-trial procedures will be according to the UCMJ [Uniform Code of Military Justice] and the U.S. Manual for Courts-Martial. An EWP will not be tried by a civil court for committing an offense unless a member of the U.S. Armed Forces would be so tried. See also Ireland, Prisoners of War and Enemy Aliens Act, 1956, as amended, section 7.
14 - In particular, in situations where a prisoner of war is transferred to another Power to face judicial proceedings, the Detaining Power must comply with Article 12, which requires the transferring State to assure itself of the willingness and ability of the receiving Power to apply the Convention. This includes the rules of the present chapter on penal and disciplinary sanctions. Thus, a Detaining Power may not transfer a prisoner of war if ‘there is a real risk that any trial in the receiving State would be before a court (whether military or not) lacking the necessary independence and impartiality, or where the treatment of the POW would infringe [Geneva Convention] III and/or its human rights obligations’; Rowe, 2015, pp. 1036–1037.
15 - See ibid. p. 1029.
16 - For a discussion of civilian prisoners of war, see the commentary on Article 4, section H.1. It should be noted that human rights bodies have expressed reservations over civilians being tried by military courts, although they have not addressed the specific issue of civilian prisoners of war. See the commentary on Article 3, para. 718.
17 - See the commentaries on Article 82, para. 3567, and on Article 102, section D. See also the commentary on Article 16, para. 1755.
18 - Examples of such norms and standards that may provide guidance include, at the international level: Convention on the Rights of the Child (1989), Article 40; UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, 18 September 2019; UN Guidelines for the Prevention of Juvenile Delinquency (1990); UN Rules for the Protection of Juveniles Deprived of Their Liberty (1990); Standard Minimum Rules for the Administration of Juvenile Justice (1985); and at the regional level: African Commission on Human and Peoples’ Rights, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (2014), Part 7, Guideline 31 (Children); Inter-American Commission on Human Rights, Juvenile Justice and Human Rights in the Americas, Doc. OEA/Ser.L/V/II., 13 July 2011; Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice (2010); Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child case, Advisory Opinion, 2002.
19 - See e.g. UN Committee on the Rights of the Child, General Comment No. 24: Children’s Rights in the Child Justice System, UN Doc. CRC/C/GC/24, 18 September 2019, para. 100; UN Security Council, Res. 2427, 9 July 2018, paras 21–22; UNICEF, Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (The Paris Principles), February 2007, paras 3.6 and 3.11; and Optional Protocol on the Involvement of Children in Armed Conflict (2000), Article 6(3).
20 - For example, France proposed to delete the words ‘that do not offer essential guarantees of independence and impartiality’ because ‘they appeared to … open the door to various interpretations’; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 485.
21 - Universal Declaration of Human Rights (1948), Article 10.
22 - See Additional Protocol I, Article 75(4), and Additional Protocol II, Article 6(2).
23 - See e.g. International Covenant on Civil and Political Rights (1966), Article 14(1); Convention on the Rights of the Child (1989), Article 40(2)(b)(iii); European Convention on Human Rights (1950), Article 6(1); EU Charter of Fundamental Rights (2000), Article 47; American Convention on Human Rights (1969), Article 8(1); and African Charter on Human and Peoples’ Rights (1981), Articles 7(1)(d) and 26.
24 - See e.g. American Declaration on the Rights and Duties of Man (1948), Article XXVI, and Basic Principles on the Independence of the Judiciary (1985), paras 1 and 2.
25 - See e.g. Argentina, Law of War Manual, 1969, para. 2.074; Belgium, Law of War Manual, 1983, p. 55; Canada, LOAC Manual, 2001, p. 10-9, para. 1039(4); Germany, Military Manual, 2013, para. 842; Netherlands, Military Manual, 2005, p. 134; New Zealand, Military Manual, Vol. 4, 2019, p. 12-60, para. 12.10.82; Spain, LOAC Manual, 1996, Vol. I, paras 8.7.c.(2) and 11.8.b.(1); Switzerland, Basic Military Manual, 1987, Article 153, commentary, and Article 175; United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 187–188, para. 8.118; and United States, Air Force Pamphlet, 1976, para. 13-8, and Law of War Manual, 2016, p. 617, para. 9.26.3.
26 - See e.g. Czech Republic, Criminal Code, 2009, as amended, section 413(2)(f); Georgia, Code of Criminal Procedure, 1998, as amended, Article 8; Germany, Law Introducing the International Crimes Code, 2002, Article 1, para. 8(1)(7); Kenya, Constitution, 1963, as amended, Article 77(1); Kuwait, Constitution, 1962, Articles 162–163; and Netherlands, International Crimes Act, 2003, Article 6(1)(d).
27 - See Weissbrodt, p. 421. It is increasingly recognized that the requirements of independence and impartiality apply not only to the trial stage and any appellate proceedings, but also to the investigation stage. See also the commentary on Article 103, para. 4027; Dahl, pp. 21–22; Rowe, 2014, p. 322; Turkel Commission, pp. 118 and 140; and European Court of Human Rights, Öcalan v. Turkey, Judgment, 2005, para. 114.
28 - ICTR, Nahimana Appeal Judgment, 2007, para. 19.
29 - See e.g. African Commission on Human and Peoples’ Rights, Centre for Free Speech v. Nigeria, Decision, 1999, paras 15–16; European Court of Human Rights, Belilos case, Judgment, 1988, para. 64; Findlay v. UK, Judgment, 1997, paras 73–77; and UN Human Rights Committee, Bahamonde v. Equatorial Guinea, Views, 1993, para. 9.4.
30 - See Basic Principles on the Independence of the Judiciary (1985), Principle 11. See also UN Human Rights Committee, General Comment 32, Article 14: Right to equality before courts and tribunals and to fair trial, UN Doc. CCPR/C/GC/32, 23 August 2007, paras 19 and 20.
31 - See UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32, 23 August 2007, para. 21, and Karttunen v. Finland, Views, 1992, para. 7.2; and European Court of Human Rights, İncal v. Turkey, Judgment, 1998, para. 65. See also Australia, Military Court at Rabaul, Ohashi case, Judgment, 1946.
32 - See UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32, 23 August 2007, para. 21. See also African Commission on Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria, Decision, 1995, para. 8, and Malawi African Association and others v. Mauritania, Decision, 2000, para. 98; European Court of Human Rights, Piersack v. Belgium, Judgment, 1982, paras 28–33, De Cubber v. Belgium, Judgment, 1984, paras 24–26, and Findlay v. UK, Judgment, 1997, para. 73; and Inter-American Commission on Human Rights, Case 10.970 (Peru), Report, 1996, section V(B)(3)(c).
33 - See e.g. ICTY, Furundžija Appeal Judgment, 2000, paras 189–191, Mucić Appeal Judgment, 2001, paras 682–684, and Galić Appeal Judgment, 2006, paras 37–41; and ICTR, Akayesu Appeal Judgment, 2001, paras 203–207, Rutaganda Appeal Judgment, 2003, paras 39–41, and Nahimana Appeal Judgment, 2007, paras 47–50.
34 - See also the commentary on Article 3, section G.5.b.
35 - See ibid. para. 717.
36 - See Rowe, 2014, p. 321, and 2015, p. 1035, and Turkel Commission, p. 140.
37 - These features include the lack of tenure of judges and the considerable authority exercised by the military commander in pretrial matters, such as the appointment of court members. See Hansen, pp. 231–232.
38 - Reforms include the introduction of fixed tenure for military judges (and removal for specific cause); the creation of independent bodies for the appointment of prosecutors and court members; prohibiting the use of the officer’s decisions as a member of the military court to determine qualification for promotion or pay levels; limiting summary court jurisdiction to minor offences; and the creation of appellate bodies for summary hearings. See e.g. Canada, National Defence Act, 1985, paras 164(1) and 165.11, and Généreux case, Judgment, 1992, pp. 313–314; United Kingdom, Armed Forces Act, 1955, as amended, Schedule I, and Armed Forces Discipline Act, 2000, Section 14; and United States, Uniform Code of Military Justice, 1950, as amended, paras 866 and 867. See also Dahl, p. 21; Hansen, pp. 231–272; and Turkel Commission, p. 124, fn. 225.
39 - See the commentary on Article 102, section C.2.
40 - See also the commentary on Article 130, paras 5281–5282, and Rowe, 2014, p. 328.
41 - In the context of international human rights law, see e.g. International Covenant on Civil and Political Rights (1966), Article 14; Convention on the Rights of the Child (1989), Article 40; European Convention on Human Rights (1950), Article 6; and American Convention on Human Rights (1969), Article 8.
42 - Article 130.