courts. Indeed, military courts remain necessary in democracies because military codes of justice and laws that govern the armed forces often have no equivalent in the civilian legal system. Military and security institutions operate their own courts to uphold the codes of law that are necessary to maintain an efficient and well-functioning military.74 The standards of fairness, independence and impartiality that govern ordinary civilian courts, however, must apply to these special courts.75 The African Commission of Human and Peoples’ Rights has held that while “a military tribunal per se is not offensive to the rights in the Charter nor does it imply an unfair or unjust process”, military tribunals must be subject “to the same requirements of fairness, openness, and justice, independence, and due process” as any other court.76 By contrast, the view of the Special Rapporteur on the Independence of Judges and Lawyers is that the use of military courts to try civilians should be prohibited or at least drastically restricted.77 This line is also taken by the InterAmerican Commission on Human Rights, which has stated that civilians should never be subject to military tribunals,78 and the Inter-American Court of Human Rights, which has held that the “basic principle of the independence of the judiciary is that every person has the right to be heard by regular courts, following procedures previously established by law.”79 In order to address the concerns that military and special courts pose, the Special Rapporteur has recommended the adoption of Draft Principles on Military Tribunals prepared by the Special Rapporteur to the Sub-commission on the Promotion and Protection of Human Rights.80 These draft principles explicitly avoid the question of the legitimacy of military courts, focusing instead on ensuring that those courts comply with the international law of judicial independence.81 The draft principles provide, however, that military courts must not try civilians, that military courts may try only military personnel for military offences, and that the jurisdiction of the ordinary courts should be preferred over military courts in specific circumstances.82 74 Brett J. Kyle and Andrew G. Reiter, Militarized Justice in New Democracies, Law and Society Review (2013), 375. 75 UN Human Rights Committee, General Comment No. 32, para 22. African Commission in Human and Peoples’ Rights, decision of May 2001, Communication 218/98 (Nigeria), para 44. 77 Special Rapporteur’s Mission to Peru, 1998, E/CN.4/1998/39/Add.1, 19 February 1998, para. 78 78 Annual Report of the Inter-American Commission on Human Rights, 1997, Chapter VII, Recommendation 1, para. 4 79 Castillo Petruzzi et al v Peru, Inter-American Court of Human Rights, judgment of 30 May 1999, Series C No. 52, para 129. 80 Report of the Special Rapporteur on the Independence of Judges and Lawyers, 2007, A/HRC/4/25, 18 January 2007, para 29; Draft Principles Governing the Administration of Justice through Military Tribunals, Report submitted by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/2006/58, 13 January 2006. 81 Draft Principles Governing the Administration of Justice through Military Tribunals, 2006, para 14. 82 Draft Principles Governing the Administration of Justice through Military Tribunals, 2006, Principles 5, 8 and 9, paras 20-21 and 29-35. 76 11 While the 1971 Egyptian Constitution did not include a prohibition on the trial of civilians in military courts, the 2012 Egyptian Constitution provided that civilians could not be tried in military courts except where their actions harmed the military (Art. 198). That provision was not only vague, but it also left open the possibility of trying civilians in military courts. The Tunisian June 2013 draft Constitution provides (Art. 107): Courts shall be classified by virtue of a law. No exceptional courts or procedures that may prejudice the principles of fair trial may be established or adopted. Military courts are responsible for military crimes. A law shall regulate the mandate, structure, and organization of the military courts, their applicable procedures and the statue of military judges. In Tunisia, existing law allows the trial of civilians in military courts. These provisions of the June 2013 draft Constitution do not change this position, and, as in Egypt, maintain the status quo under which civilians can be tried “for military crimes” in military courts. 3.3. THE NETWORK OF INSTITUTIONS SUPPORTING JUDICIAL INDEPENDENCE 3.3.1. PROSECUTING AUTHORITIES International law is clear about the need for domestic arrangements to ensure the impartiality of the prosecuting authority. The United Nations Guidelines on the Role of Prosecutors are intended to assist states in ensuring the effectiveness, impartiality and fairness of prosecutors, and should be taken into account and reflected in national legislation and practice.83 It is important to note that international law does not require that prosecuting authorities be independent, since in many cases the institutions responsible for prosecution are under the control of or form part of the executive or judiciary. Many civil law systems today have a mixed prosecutorial system, or a “soft” inquisitorial system, with a two-stage criminal process. In the first stage, a “prosecuting judge” directs prosecutors in the investigation of possible crimes and the collection of evidence. At the end of the investigation and on the basis of the evidence, the prosecuting judge will decide whether to formally institute criminal charges. The second stage involves the criminal trial. If the prosecuting judge decides to institute charges, a new judge is appointed to preside over the criminal trial, which then proceeds in a largely adversarial setting with prosecutors and defence lawyers appearing before the impartial judge. In civil law systems, the impartiality of prosecuting judges is important because they play a role in directing criminal prosecutions. As long as the impartiality of judges is assured, 83 United Nations Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.