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Abstract
This article suggests an agenda for juridical civil–military relations by considering how recent developments in human rights law in Europe breed new forms of juridical civil–military relations. The argument is that the human right driven recasting of legal authority over military affairs from military justice systems to civilian justice systems entwines these systems. Furthermore, that in so far the theories and studies of civil–military relations have not yet addressed the juridical dimension of civil–military relations as a subject of its own right, this entwining calls for a new subject in the study of civil–military relations, straddling the institutional entwining as well as the sociological dimension of practical cooperation.
Acknowledgements
I would like to thank Lisa Karlborg, Chiara Ruffa, and Anne Ostrup for the critical and very helpful comments on previous drafts of this article.
Notes
1. The Supreme Court of Canada, Citation R v. Généreux , 293.
2. CitationHuntington, The Soldier and the State, 80–98, 163–93.
3. CitationEaston et al., Blurring Military and Police Roles.
4. For discussion of the historical and political backgrounds of the military justice systems in Europe, see CitationNolte and Kriger, ‘Comparison of European Military Law Systems’.
5. CitationDunlap, ‘Legal Issues in Coalition Warfare’.
6. See CitationBrand, Roman Military Law.
7. See CitationSchlueter, ‘The Court-Martial’.
8. See CitationLuban, ‘Military Lawyers’ and CitationKennedy, Of Law and War.
9. CitationSherril, Military Justice.
10. Luban, ‘Military Lawyers’.
11. CitationMaogoto and Sheehy, ‘Private Military Companies’, 108ff.
12. CitationVagts, ‘Which Courts Should Try Persons Accused of Terrorism?’
13. CitationUnited States Committee on Oversight and Government Reform, ‘Rise of the Drones II’.
14. CitationSherman, ‘The Civilization of Military Law’.
15. CitationDahl, ‘International Trends in Military Justice’; CitationFidell, ‘Worldwide Perspective on Changes in Military Justice’.
16. ECHR is one human rights regime in the broader field of IHRL.
17. CitationUnited Nations International Law Commission, ‘Draft Articles’, paras 47–51.
18. CitationUnited Nations International Law Commission, ‘Draft Articles’, paras 47–51, Article 3; CitationBird, ‘Third State Responsibility’.
19. Most cited is ICJ's 1996 Advisory Opinion on the ‘Legality of the Threat or Use of Nuclear Weapons’. In this opinion the Court affirmed that ‘the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.’ In other words, the ICCPR generally applies in times of armed conflict except if the specific right is derogable under Article 4 in times of national emergency.
20. International Court of Justice, ‘CitationCase Concerning Armed activities on the Territory of the Congo’.
21. International Court of Justice, ‘Legality of the Threat or Use of Nuclear Weapons’, para. 25. See also International Court of Justice, ‘CitationLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’; and CitationDennis. ‘ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory’.
22. CitationCoomans and Kamminga, ‘Extraterritorial Application of Human Rights Treaties’.
23. For a discussion of extraterritoriality and human rights, see e.g. CitationGibney and Skogly. Universal Human Rights and Extraterritorial Obligations.
24. In its Article 1, the ECHR stipulates that the member states ‘shall secure to everyone within their jurisdiction the rights and freedoms defined in… this Convention’. In other words, the material rights and freedoms of the convention are only applicable within the jurisdictions of the member states.
25. ECtHR, Banković v. Belgium.
26. ECtHR, Citation Issa v. Turkey .
27. ECtHR, Citation Öcalan v Turkey .
28. CitationMiller, ‘Revisiting Extraterritorial Jurisdiction’, 1233.
29. ECtHR, Al-Skeini & Ors v United Kingdom.
30. ECtHR, Citation Al–Jedda v United Kingdom , paras 149–50; author's emphases.
31. CitationMilanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’, 123.
32. CitationMilanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’, 123
33. For this argument, see CitationKessing, ‘Den Europæiske Menneskerettighedskonventions’, 309f.
34. See CitationDoswald-Beck. ‘The Right to Life in Armed Conflict’.
35. For instance, in the case of McCann vs. UK, the ECtHR found that death caused by a blunder in the application of lethal force does not necessarily constitute a breach of Article 2. McCann v. United Kingdom, para 97.
36. CitationGaggioli and Kolb, ‘A Right to Life in Armed Conflicts?’, 138; CitationGioia. ‘The Role of the European Court of Human Rights’.
37. Article 15 (1) of the ECHR reads: ‘In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law.’
38. See CitationChevalier-Watts, ‘Effective Investigations under Article 2’; CitationMowbray, ‘Duties of Investigation’. See also CitationUnited Nations. ‘Principles’; and CitationSchmitt. ‘Investigating Violations’, 49ff.
39. The apparent norm conflict between IHRL and IHL has often been dealt with by applying the international law principle of lex specialis. According to this principle, the provision that offers the most detailed regulation with regard to the specific situation is granted precedence. See CitationMilanovic. ‘A Norm Conflict Perspective’, 462f.
40. ECtHR Citation McKerr v. United Kingdom , para. 111.
41. ECtHR Citation McKerr v. United Kingdom , para. 111, para. 113.
42. ECtHR Citation McKerr v. United Kingdom , para. 111, para. 193.
43. ECtHR Citation Ergi v. Turkey ; Rod v. Croatia (cited from Chevalier-Watts, ‘Effective Investigations under Article 2’, 707 n.22, probably unpublished judgment); Citation Ulku Ekinci v. Turkey .
44. ECtHR McKerr v. United Kingdom, para. 111.
45. Milanovic, ‘A Norm Conflict Perspective’, 127.
46. CitationRosén, ‘Extremely Stealth’.