Yale releases the "Yale Draft"- Principles for Governing Administration of Justice through Military Tribunals

The Yale University has released the draft principles for ‘governing administration of justice through military tribunals’, an updated and amended version of the “Decaux Principles” on the same subject circulated by the United Nations Commission on Human Rights in 2006. The principles, titled the “The Yale Draft” have attempted to resolve a few contentious issues and have taken into account intervening developments and have been drafted in a manner to clear the path for formal approval by the UN Human Rights Council and the General Assembly.

A comprehensive report by ‘Bar and Bench’ is linked herein.

In recent years, the system of military justice has remained in the news, from issues related to command influence and independence to the recent trial of civilians by secret military courts in nations such as Pakistan without affording full rights to the accused. Kulbhushan Jadhav of India was also tried by one such secret military tribunal in Pakistan, and sentenced to death, which became an international flashpoint.

The Yale Draft opens with the principle that military tribunals (courts) must be established keeping in view the principle of separation of powers and should be a part of the regular judicial system and should not function under the executive branch. The draft also states that the guarantees of fair trial offered by Article 14 of the International Covenant of Civil and Political Rights (ICCPR) must be adhered by military courts further stating that military courts must be ‘independent, impartial and competent’ with necessary legal training and qualification. It has also been asserted that Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances justifying such a trial. The principles also reiterate respect of humanitarian law, public hearings and transparency in military trials and recourse to civil courts as guaranteed to civilians. The principles also call for periodic review of codes of military justice by an independent body.