Security sector institutions and their employees must be accountable to an independent judiciary for their actions. Depending on the precise traditions of legal systems, relevant judicial activities can include:
- prospective, or retrospective, review and authorisation of specific security operations;
- judicial investigations into offenses committed by security institutions’ personnel;
- prosecuting security sector personnel for infringements of national civil and criminal law and applicable international laws;
- maintaining jurisprudence through the interpretation of laws affecting national security.
The judiciary needs to be sufficiently funded to perform its role independently.
Whilst most militaries have internal military courts to maintain internal discipline related to misdemeanours and breaches of internal rules and regulations, the authority of such courts is determined entirely by national legislation. By ensuring that military courts are subordinate to the civil justice system, national legal systems can prosecute felonies committed by the personnel of security institutions according to national law. Failure to maintain this delimitation can, potentially, lead to conflicts not only over the boundary between civilian and military jurisdictions, but to the development of a lack of accountability and a culture of impunity within the security sector, as well.
References
Related publications here.
UNODC, Resource Guide on Strengthening Judicial Integrity and Capacity, (New York: UN, 2011)
OHCHR, ‘Basic Principles on the Independence of the Judiciary’
INPROL, ‘International Standards for Judges’ here.
Ian Leigh, ‘Executive, Legislative and Judicial Oversight and Guidance over the Security Sector’, in Eden Cole, Kerstin Eppert and Katrin Kinzelbach (eds.), Public Oversight of the Security Sector, (Bratislava: Valeur for UNDP, 2008).