Published in the 01 July 2006 issue of The Nation
Guantanamo Bay military commissions constituted for the trail of the detainees have continued to come under heavy world criticism for the past many years. The US Supreme Court delivered its much awaited verdict on the legality of trials under military commissions on June 29 and took the bold step of sidelining the abridged model of justice manifested through them. The verdict repudiates the military commissions and declares that they violate both US law and the Geneva Conventions.
Guantanamo Bay military commissions can be viewed as an exception to the general rule namely the respect for the international rule of law that is reflective of the desire of the majority of the international community. Alternatively, they can be viewed as the setting of a dangerous precedent by the sole superpower in the world in its unique war against a hidden enemy. It is this later aspect that is deeply troubling.
This article is structured around discussing the following: legal flaws in the military commissions in terms of their constitution and within the context of the June 29 verdict of the US Supreme Court and international humanitarian law (IHL). The article also concludes with the cumulative effect of military commissions in unsettling some crucial rules and principles of international law.
Military commissions were created by a November 13, 2001 Military Order issued by President Bush, which authorized the trial of persons suspected of terrorism. The U.S. Department of Defence has issued a series of orders and instructions governing most aspects of the military commissions. These include crimes to be prosecuted, rules governing defence counsel and appellate review. Imperative as they as they may be, these provisions compromise justice and fairness and fall short of guaranteeing rights available to the accused in national and international courts.
To name a few, military commissions are immune from review by an independent court. Review, if any, is limited to a few legal issues. This aspect compromises on the principle of separation of the judiciary from the executive.
The military commissions also impose restrictions on attorney-client privilege. The ability to communicate unequivocally with one’s attorney is intrinsic in the right to counsel. On the contrary, communications between the attorneys and clients are monitored for security and intelligence purposes.
In certain circumstances, the accused may not see classified or protected information that is used against him. Moreover, if the defendant has military counsel assigned, he is not allowed to discuss protected evidence with his client, which in turn prevents the accused from confronting the evidence against him-the denial of another fundamental trial right.
Military commissions’ rules allow for important legal issues occurring during the trial to be decided by the executive branch official who brought the charges against the accused. Important legal questions raised by the defence counsel regarding matters such as the jurisdiction of the commission, evidentiary rulings or the elements of the crime are decided by the very same executive officer who initiated the charges and approved the prosecution. This is clearly violative of the principle of separation of judicial and prosecutorial roles recognized by all civilized nations of the world.
Military commissions violate established rules of international humanitarian law (IHL) – a subset of international law that applies only in times of armed conflict. Briefly, IHL confers protection and assistance on the wounded and sick, details treatment of prisoners of war and lists the lawful and unlawful methods and means of warfare. The purpose of IHL is to mitigate suffering and to afford a delicate compromise between humanity and necessity in times of war. Geneva Conventions of 1949 are one of the major instruments of IHL.
One of the biggest flaws in military commissions is that they blur the distinction between the two categories recognized under IHL: combatants and civilians. IHL allows the creation of creation of military commissions within the context of armed conflict. However, IHL does not allow prosecution of civilians before military commissions. The Guantanamo Bay military commissions, on the other hand, are designed to prosecute civilians who had a remote connection or no connection with an armed conflict.
The definition of the term armed conflict is so broadly coined under the rules of the military commissions that virtually any person anywhere in the world could be tried before them. It is mentioned that the defendant’s conduct need only be distantly or vaguely related to a traditional armed conflict. The nexus between the defendant and the armed conflict “…could involve, but is not limited to, time, location, or purpose of the conduct in relation to the armed hostilities…This element does not require a declaration of war, ongoing mutual hostilities, or confrontation involving a regular national armed force.” In short, under the jurisdiction of military commissions includes acts that are normally considered civilian crimes and lack the required nexus with armed conflict.
Military commissions are also incompatible with Third Geneva Convention relative to the treatment of prisoners of war (POWs). There have been instances of improper determination of the status of captured persons who took part in hostilities. While it may be possible legal to deny POW status to members of al-Qaeda who fail to satisfy the criterion required for enjoying POW status. It is argued that the same status should never have been denied to Taliban combatants who formed part of the armed forces of Afghanistan. Detained Taliban combatants should consequently have been designated as POWs under the Third Geneva Convention.
Moreover, as required by Article 5 of the Third Geneva Convention, the captured combatants should have been treated as POWs unless a competent tribunal determined otherwise. In other words, unless detainees are accorded prisoner of war status, international law requires that they are brought before ordinary civilian courts providing all guarantees of a fair trial. It should be borne in mind that willfully depriving a POW of a fair and regular trial is also a grave breach of the Third Geneva Convention andconstitutes a war crime as well.
In the July 29 judgment, the U.S. Supreme Court held that certain guarantees under IHL would nevertheless apply to combatants whose status is not clear. It would include al-Qaeda combatants. The Supreme Court held that as a minimum, Article 3 of Geneva Conventions would apply which provides that all detainees, whether prisoners of war, civilians or so-called unlawful combatants, be treated humanely “in all circumstances”. Article 3 of the Geneva Conventions also requires that detainees may not be subject to “cruel treatment and torture” or “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
The Supreme Court ruled that by setting up the military commissions, carefully guarded doctrine of separation of powers, under which the executive branch may not usurp the authority of either the judiciary was also violated. In unequivocal terms the US Supreme Court held that “the procedures adopted” in the tribunals “violate the Geneva Conventions”. The ruling of the Supreme Court only addressed the legality of the military tribunals. It left out the important question of whether detainees can be held indefinitely or whether Guantanamo Bay should be closed.
Responses to September 11 in the form of military commissions have had shattering consequences for IHL. Military commissions threaten the established principles of international law that have been accepted for years. Impact through military commissions on vital principles of IHL is more worrisome than the September 11 tragedy itself.
Response to events such as international terrorism which take into account the existing law would lead to a far greater legitimacy and credibility for the US in the world. The disastrous changes introduced by the September 11 attacks necessitate the following: pursuing peace and refraining as much from armed violence; respecting IHL and human rights; sparing innocent civilians from hostile action; resolving crisis within a multilateral framework; and repressing crimes by allowing terrorists access to ordinary courts of the land.
Military commissions were always outside the legal ambit of international law and IHL. In its June 29 judgment, the US Supreme Court as the guardian of the legality of the country has reiterated just that.