This is a quick survey of what some constitutions have to say about Military Trials (or the lack of them) – the basis for selection of these 10 countries is very simple; they are the ten highest rated for standard of living.

 

1. Norway

Article 96. No one may be convicted except according to law, or be punished except after a court judgment. Interrogation by torture must not take place.

Article 99. No one may be taken into custody except in the cases determined by law and in the manner prescribed by law. For unwarranted arrest, or illegal detention, the officer concerned is accountable to the person imprisoned.

The Government is not entitled to employ military force against citizens of the State, except in accordance with the forms prescribed by law, unless any assembly disturbs the public peace and does not immediately disperse after the Articles of the Statute Book relating to riots have been read out clearly three times by the civil authority.

 

2. Australia

80. Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

 

3. USA

In Section 2

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

4. The Netherlands

Article 113.

1. The trial of offences shall also be the responsibility of the judiciary.

2. Disciplinary proceedings established by government bodies shall be regulated by Act of Parliament.

3. A sentence entailing deprivation of liberty may be imposed only by the judiciary.

4. Different rules may be established by Act of Parliament for the trial of cases outside the Netherlands and for martial law.

 

5. Germany

Article 101 – Ban on extraordinary courts

(1) Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his lawful judge.

(2) Courts for particular fields of law may be established only by a law.

Article 103 – Fair trial

(1) In the courts every person shall be entitled to a hearing in accordance with law.

(2) An act may be punished only if it was defined by a law as a criminal offence before the act was committed.

(3) No person may be punished for the same act more than once under the general criminal laws.

 

6. New Zealand

I couldn’t quite figure out New Zealand 🙂

 

7. Ireland

Article 38.

1. No person shall be tried on any criminal charge save in due course of law.

2. Minor offences may be tried by courts of summary jurisdiction.

3.

1. Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

2. The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.

4.

1. Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion.

2. A member of the Defence Forces not on active service shall not be tried by any courtmartial or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any courtmartial or other military tribunal under any law for the enforcement of military discipline.

5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.

 

8 – Sweden

Courts decide everything, but there’s ZERO mention of military courts or tribunals.

 

9 – Switzerland

Article 30. Judicial Proceedings

1. Every person whose case must be judged in judicial proceedings has the right to have this done by a court that is established by law, has jurisdiction, and is independent and impartial. Exceptional tribunals are prohibited.

 

10 – Japan

Article 37. In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal. He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense. At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.

Article 76. The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.

All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.

Article 82. Trials shall be conducted and judgment declared publicly. Where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in Chapter III of this Constitution are in question shall always be conducted publicly.

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Further reading & research:

1. Draft Principles Governing the Administration of Justice Through Military Tribunals, U.N. Doc. E/CN.4/2006/58 at 4 (2006).

and comments on that by Michael R. Gibson at –

2. International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility while Precluding Impunity.

and regarding the USA’s use of military tribunals –

3. Analysis: Military Tribunals (On George Bush and Guantanamo)

and

4. Military Tribunals: Historical Patterns & Lessons (CRS Report for Congress).