CLA News / Report on the Commonwealth Military Justice Transformation Project by His Honour Judge Alan Large

The Commonwealth Military Justice Transformation Project was conceived in 2021.  In preparation to speak on military justice at a conference in the Caribbean, I made contact with lawyers serving in the local Defence Force to discuss issues of mutual interest.  They identified that their military justice system was in need of modernisation and reform, and that some neighbouring countries faced similar issues.   Realising that larger scale coordination was required, contact was made with Francisca Pretorius, the Head of the Office of Civil and Criminal Justice Reform in the Commonwealth Secretariat (ComSec), who appreciated this was an opportunity for ComSec to lead on a project to assist in military justice reform across the Commonwealth.  With strong support from the Secretary General of the Commonwealth, the Rt Hon Patricia Scotland KC, and the Assistant Secretary General, Professor Luis Franceschi, the project has made considerable ground, which this short paper will outline.

In many cases, the reason behind the need for reform stems back five or more decades, when countries which were former British colonies or dependencies gained independence and established their own legislation and government.   For understandable reasons, much of their legislation was based on that in force at the time in the United Kingdom, including Defence Acts which largely adopted the UK’s Army Act of 1955. During the 1980s, the UK’s military justice system was strongly criticised in a series of judgements of the European Court of Human Rights (ECHR), leading to major reforms culminating in the transformatory Armed Forces Act 2006.  Since that Act’s implementation in 2009, the military justice system in the UK has not faced further challenge in the ECHR.  Countries which inherited the UK’s legislation were not, of course, bound by the rulings of the ECHR, but many now accept that some or all of the major reforms made in the UK as a result of the ECHR rulings are overdue in their own jurisdiction.  Key issues include the real or apparent lack of independence of judges, prosecutors, jurors and court administrators, and the power for the Armed Forces to overturn decisions of military courts.

The first step in establishing the project was to determine its parameters.  These were determined to include the following actions:

1. To establish an expert working group of Judge Advocates General (or equivalent office holders) and other military justice experts to guide this project.
2. To conduct comprehensive empirical research and mapping on military justice in Commonwealth member states.
3. To establish a database of military justice systems in Commonwealth countries, setting out their broad procedures and principles.
4. To create regional working groups of experts and to provide a space for different working groups to share research and good practice in military justice.
5. To organise pan-Commonwealth military justice forums for Judge Advocates General (or equivalent office holders) and other stakeholders to raise issues, meet and discuss topics of interest, including sharing knowledge and experiences of the digitisation of judicial processes, and to ultimately put forward an agreed set of principles to guide Commonwealth countries’ military justice systems: The Commonwealth Military Justice Principles. Such principles may also serve as a foundation for a Commonwealth Model Law on Military Justice.
6. To draft and receive endorsement from Law Ministers for the Commonwealth Model Military Justice Principles and, potentially, a Commonwealth Model Law on Military Justice.
7. To provide awareness programmes for law professors in defence and other relevant experts and to support the updating of legal curricula based on the applicable standards identified in the agreed upon Commonwealth Model Military Justice Principles and Model Law.
8. To offer and provide training in military justice for judges, prosecutors, and advocates to effectively align practice with the standards set out in the Commonwealth Military Justice Principles and Model Law.
9. To provide tailored technical assistance to member states to support military justice transformation based upon each individual governance regime, as requested.

Next, it was necessary to consult with member states to assess support. The results were very positive, with 30 responses, the great majority supportively.  Following further consultation, it was decided that the initial focus of the project should be on Caribbean states, and a series of single and multi-national conferences were held to determine the best approach.  Three fundamental issues emerged: the need for reform; the need for a principle-based approach; and the need for model laws to assist in drafting new legislation.

Acknowledging the support across the Commonwealth, the 2022 meeting of Commonwealth Law Ministers agreed that the ComSec should progress the reform project and report back in due course.

A Committee of Experts on military justice was convened from across the Commonwealth, including judges, academics and practitioners from India, Canada, New Zealand, Singapore, Uganda, Nigeria, South Africa, the Bahamas, Barbados and the UK, together with a leading expert from the United States.  Building on work initially completed for the United Nations, ten fundamental principles were identified, refined during a series of online meetings, and agreed and signed at a conference in Stellenbosch, South Africa in November 2023.

This document, known as the Stellenbosch Draft, formed the basis for the consultation phase of the project.  In January 2024, ComSec invited all 56 member countries to nominate a representative to attend a Working Group to review, revise and, it is hoped, agree the Stellenbosch Draft.  ComSec received nominations from all 5 regions of the Commonwealth and the Working Group had their inaugural meeting at the end of February. There is a reassuring level of support for the Stellenbosch Draft, with some specific areas identified which require debate.   Francisca Pretorius reported to Law Ministers on progress at their Zanzibar meeting 4th-8th March, and we look forward to more countries nominating representatives to join the working group  to take part in the finalising of the principles which will form the basis for reform.

Meanwhile, an expert has been instructed to draft model laws, with a focus on legislation which is best suited to small nations such as those in the Caribbean.  Once this has been delivered, consideration will be given to providing assistance in other regions of the Commonwealth.

Alan Large

Judge Advocate General UK

This article was first published in the CMJA’s Journal and we thank the CMJA for their gracious permission to reproduce the article.