An unnecessary convenience: The assertion of the uniform code of military justice ('ucmj') over civilians and the implications of international human rights law
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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Recently, Article 2 of the Uniform Code of Military Justice was amended to allow military commanders to assert jurisdiction over any person "accompanying the armed force" and "in a time of a declared war or a contingency operation" - an expansive grant of jurisdiction which allows military commanders to subject civilians to the military justice system. The prospect of submitting a civilian to a system of justice maintained, administered, and designed for military personnel raises a host of legal concerns at the domestic level. It also invokes concerns in international human rights law. This article briefly examines the nature of military jurisdiction and the military justice system and how that parallel legal universe compares to its civilian counterpart. It then examines the obligations of the United States under the International Covenant for Civil and Political Rights (ICCPR), the application of that treaty to the exercise of military jurisdiction over civilians, and relevant jurisprudence regarding parallel provisions in the European Convention on Human Rights. Ultimately, this article posits that the assertion of military jurisdiction over civilians violates the obligations of the United States under the ICCPR, which restricts the use of military trials for civilians and requires that such trials be not merely fair - but absolutely necessary. The availability of federal civilian jurisdiction under the Military Extraterritorial Jurisdiction Act makes the use of military jurisdiction over civilians an unnecessary convenience that military commanders should seek to avoid.
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