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Military Court Jurisdiction Over Civilians: Can the UCMJ Be Squared with the Principle of Equality Before Courts and Tribunals?
Vester, William
Vester, William
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Abstract
International human rights bodies have long condemned the use of military courts to try civilians. But they have yet to define precisely what it means to have civilian versus military status or to reach a consensus as to why the exercise of military jurisdiction over civilians offends international legal principles. Notwithstanding this doctrinal confusion, these international bodies tend to be more skeptical about the exercise of military jurisdiction than the United States, where contractors, military retirees, and other non-active-duty personnel with markers of both civilian and military status are subject to trial by courts martial.
This Note evaluates these various international frameworks and compares them with the U.S. framework. In the process, it helps to resolve the international legal doctrinal deadlock and suggests lessons for the United States. Through careful examination of international human rights and humanitarian law, this Note argues that international law defines military status narrowly and contends that most military trials of military-civilian hybrids offend the International Covenant on Civil and Political Rights’s guarantee of equality before courts and tribunals. It then demonstrates that U.S. courts employ a far broader definition of military status and permit courts martial that would likely be prohibited under international law. It concludes by sounding a note of caution about the U.S. approach.