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Islamic Human Rights Commission
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17th November 2001

BRIEFING: USA – MILITARY TRIBUNALS VIOLATE BASIC RIGHTS (part 1 of 2)

1. Introduction
2. Main points of concern
3. Lack of Legal Precedent
4. Comparative History
5. Various Legal Standards Relating to War Crimes and Tribunals
   (i) Geneva Conventions and the International Covenant on Civil and Political Rights
   (ii) Other

A. Introduction

IHRC is deeply concerned at the Executive Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism issued by President George W. Bush on 13th November 2001.

This order removes the distinction between executive and judiciary, by creating a system of military tribunals to try those suspected by the Executive of being terrorists. In essence the Executive has become investigator, prosecutor, judge, jury and executioner in its own court, of those non-citizens (and possibly citizens) it “has reason to believe” are a threat to national security.

IHRC notes that not only is this highly discriminatory to foreign nationals, but mimicks the very behaviour of an executive out of control that has previously led nations to be made pariahs in the international order. The exclusion of Nigeria from international acceptability after the execution of Ken Sara Wiwo in ***, is just one germane example. President Bush’s admission that he is dismissing “the principles of law and the rules of evidence” that underpin the justice system by creating military tribunals is a final blow to the pretence that the USA respects international standards and norms at least in its own territory. With the anti-Muslim backlash in the USA still in full swing, and reports of an immigrant prisoner being tortured to death in a New jersey lockup, international opinion makers, politicians and civil society need to make a serious stance against this deadly assault on civil liberties.

B. Main points of concern

1. Violation of the Right to a Fair Trial

IHRC notes that the Executive Order violates a defendant’s right to a fair trial. The order:

1. Would authorise secret trials without a jury. There are no guarantees that judgements let alone trials will be made public;
2. Does away with the requirement for a unanimous verdict. Even if one third of the officers on the tribunal were to find a suspect not guilty , s/he can still be found guilty and executed;
3. Would limit access of the Defendant to evidence used against him / her on the basis that revealing it would breach national security;
4. Would impact on the ability of a defendant to choose his / her own legal representatives.

The Order further does not:

1. Necessarily require that there is a presumption of innocence;
2. Require that an adequate amount of time be given to prepare a defence
3. Indicate whether a defendant would be able to communicate with their legal representatives;
4. Provide protection against forced confessions

2. Denial of Due Process and the Right to Liberty

The Order does not require:

1. That persons detained be told the reason for their arrest;
2. That detainees be promptly informed of the charges against them;
3. That detainees be afforded the right to bring their detention before a judicial authority to review the legality of that detention;
4. That those unlawfully detained have an automatic right of redress or enforceable right to compensation;

The Order allows:

1. For the arrest and indefinite detention of suspects without charge.

C. Lack of Legal Precedent

IHRC notes that there is a lack of legal precedent for this Order within the US context. In particular, the USA’s derogation from its ICCPR obligations are so wide and ambiguous as to be beyond the extent that the exigencies, or emergency of the situation requires. This lack of adherence to ICCPR standards and norms is compounded by: procedural irregularity in the USA’s declaration of a state of emergency (no formal notice of this state has been given to the UN-Secretary General); no formal declaration of war has beenmade; the various statements by the Attorney General and senior Presidential figures that terrorists do not deserve the protection of the US Constitution. This type of language and this form of procedural irregularity or contempt indicate that satisfying the criteria that allow an article 4 derogation from some ICCPR obligations was not a serious consideration when this Order was being drafted and executed.

As regards the American context, it is acknowledged that the establishment of a military tribunal when war has not been formally declared is unprecedented. It is yet more evidence that the American government is trying to circumvent the bill of Rights. As pointed out by ACLU the government has already announced it intends to eavesdrop on attorney client conversations and interview foreign visitors.

Such precedents that have been cited date back to the assassination of President Lincoln, and the Second World War. After Abraham Lincoln was assassinated habeas corpus was suspended. During the civil war Lincoln also suspended habeas corpus, however to this day this remains controversial, and is widely held to have been unconstitutional. Article 1 of the Constitution requires Congress to at least ratify the suspension. The Executive Order of 13th November also bypasses this. Further, by denying a right to appeal it violates precedent further as the right to review was available during the civil war and since.

During the second world war German defendants were given the death penalty and hung by a military court, and this has been cited as precedent for the power to hand down the death penalty given under the Order of 13th November 2001. However even former military figures have challenged the validity of this order. Firstly recent legal precedent in the international arena has seen both the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda incorporate wide ranging treaty based standards and norms based in particular but not solely ICCPR.

Secondly recent American military history also indicates that proposed military commissions that were less draconian than this one were rejected as setting up a continual violation of international law by the United States. Proposals to set up a military commission to try ex-servicepersons for war crimes during the Vietnam war were scrapped on this basis, despite making concessions to try and obviate any possible challenge to its procedures and findings based on the development of due process guarantees since the second world war. In particular the commission proposed to follow the Federal Rules of Criminal Procedure and have federal judges. The proposal also stated that precedent indicated that the specific provisions of the Bill of Rights applied to military commissions, and any lesser standard (As the current Executive Order exemplifies) would violate the American constitution. American case law indicates that trials must occur in federal district courts where such courts are available.

Part 2 to follow