Indrek Tederi ettekanne relvajõudude ombudsmanide rahvusvahelisel konverentsil 13.-16.04. 2011 Belgradis
Speech on Panel 3 at 3rd ICOAF Conference in Belgrade
Dear ladies and gentlemen
My name is Indrek Teder. I am the Chancellor of Justice of Estonia. I will give you a brief overview of the topic asked. So I will firstly give an overview of a legal framework; secondly about the role of an Ombudsman and thirdly point out some difficulties we might face in the process of protecting the fundamental rights and freedoms of members of armed forces.
According to the Constitution of the Republic of Estonia (hereinafter Constitution) § 13 the Estonian State shall also protect its citizens abroad. So the obligation to protect its citizens does not end when the citizen leaves the territory of Estonia. States' obligation to protect its citizens includes also members of armed forces sent to participate in international military co-operation. In other words, the State must protect the fundamental rights and freedoms of members of armed forces even if they are not present in the territory of Estonia. The States' obligation to protect the members of armed forces in international military co-operation rises also from the fact that the decision to participate, for example, in international military operations is not made by members of armed forces, but by Parliament. According to Constitution § 128 the Parliament (Riigikogu) shall decide on the utilisation of the armed forces in the fulfillment of the international obligations of the Estonian state.
However, there can be some difficulties in fulfilling the obligation to protect the fundamental rights and freedoms of members of armed forces. Namely, from the practical consideration it is clear, that the Defense Forces of Estonia could not, for example, provide necessary logistical support for the military operation for the Estonian contingent. Therefore it has been decided in several cases to use the aid from allies. Using the aid from the allies sometimes means that a portion of authority may be transferred to a commander with the right of command of another state or international organisation. For example, according to International Military Co-operation Act § 4 (1) for the participation of the Republic of Estonia in international military co-operation, the Commander of the Defence Forces may transfer a portion of his or her authority to a commander with the right of command of another state or international organisation and he or she may receive a portion of the authority of a commander with the right of command of another state or international organisation.
It is also possible that during the international military operations the combined unit is created. In accordance with the legislation of the Republic of Estonia and the generally recognized principles and rules of international law, the use of units of the Defence Forces may be granted to an international organisation or the armed forces of another state, or a combined unit of the Republic of Estonia and of a foreign state or an international organisation may be formed (International Military Co-operation Act § 5 (1)).
It is clear that the contingent of the Estonian Defense Forces is not able to operate independently on international military operation (for example we could not cover all logistical needs) and therefore there is an urgent need for co-operation. Previously we have made co-operation with Denmark during the military operation in Croatia. During aforementioned mission Estonia and Denmark signed Memorandum of Understanding between Denmark and Estonia concerning the deployment, employment and redeployment of an Estonian Peacekeeping Platoon (ESTPLA1). In the memorandum the parties agreed upon for example authority issues and logistics issues.
The Defence Forces of Estonia are doing very close co-operation with the United Kingdom during the Afghanistan mission. This co-operation also includes, in addition to what is needed to carry out military operations, rehabilitation of wounded Estonian servicemen and –women in Headley Court Rehabilitation Centre in United Kingdom.
Due to the fact that the Estonian contingent in Afghanistan is subordinate to the United Kingdom forces, it may be difficult in some cases to eliminate the infringements of fundamental rights and freedoms of servicemen and – women simply because the issue does not fall under Estonian jurisdiction or Estonian officials have no authority in such cases.
To be honest, since I have not carried out any inspection visits to military units deployed overseas, I do not know exactly what kind of legal issues may rise in preparing or carrying out this kind of visits. But I have to add, that no member of armed forces has never filed a complaint against infringement of human rights or freedoms during the international military operation.
To conclude the issue of legal framework of protecting fundamental rights and freedoms of members of armed forces I must stress out once more that it is States' obligation to protect its citizens also abroad. From that obligation comes surely the need to protect the fundamental rights and freedoms of the members of armed forces. All legal, practical and other difficulties must be solved by the State.
The role of Ombudsman
Ombudsman can contribute to the protection of fundamental rights and freedoms of members of armed forces in many different ways. For example, the ombudsman should initiate proceedings on the basis of complaints and applications from members of armed forces and make recommendations and/or proposals in order to change the systematic failures in the system. We should not only fight against one time violation of human rights, but we must make an effort to minimize the systematic violation of human rights. In other words – we need to changes the system so it would fight violations itself.
One important task in fighting against violations is to raise level of awareness of personnel of armed forces and public about the rights and freedoms of personnel of armed forces. Since the Chancellor of Justice is also the designated NPM, it is my obligation to make an inspection visits to military units. During these visits I have found out, that considerable amount of maladministration or violation of human rights of personnel of the armed forces is caused by lack of legal knowledge of the members of the armed forces. It does not necessarily mean, that only military officials who have caused maladministration or violation lack legal knowledge, but it also means, that, for example conscript who has been or is being subjected to maladministration lack legal knowledge and sometimes he/she does not even realize that he/she has been or is being subjected to maladministration. Lack of sufficient legal knowledge is, from my point of view, serious obstacle which everyone must overcome to diminish maladministration in military organizations
As I said earlier, I have not made any inspection visits to military units deployed overseas. That does not necessary mean that my efforts in protecting fundamental rights and freedoms of members of armed forces participating multinational missions are altogether insufficient. I think the ombudsman can help a lot to ensure the fundamental rights and freedoms of members of armed forces deployed overseas even if he or she does not conduct investigating visits. I, for example, triggered an investigation, during which I examined whether the social guarantees of the soldiers and their loved ones are adequate and whether the incidents (situations in which the member of armed forces have been wounded or killed) are being investigated thoroughly enough to be able to draw conclusions to avoid incidents to occur in the future. On bases of the investigation, I made several recommendations either to change the practice of armed forces or to change legal framework.
I think that using aforementioned capabilities (investigating complaints, investigating in own initiative, raising level of awareness and conducting inspection visits) the Ombudsman should be able to fulfill its role – being a constructive critic, independent supervisor and, if necessary, a teacher and distributor of information.
From my point of view, the main obstacle for the effective protection of the rights of armed forces personnel in deployments abroad is getting the information about the fact of violation of human rights. As I said earlier, members of armed forces deployed abroad do not write to Chancellor of Justice very often (I can recall only one complaint and it was not related to the mission or human rights). So there seem to be a need for inspecting members of armed forces deployed abroad in sight in order to gather information.
I have not conducted any inspection visit to military units deployed overseas, but I have gathered some information about the possibilities to visit some military units stationed for example in Afghanistan. The main difficulty in conducting the investigating visit to Estonian soldiers deployed in Afghanistan is the logistical part of it. It is clear that I could not go there by myself. So I need the aid from the armed forces. And in our case it is not only the aid of the Defence Forces of Estonia that I need – I also need the aid (for example the clearance) of armed forces of United Kingdom. So far the logistical part of the inspection visit itself has proven to be the most difficult one to overcome.
I will conclude that from my point of view the main difficulty in protecting the human rights of personnel of armed forces deployed abroad is gathering the information about the fact of probable violation.