As noted yesterday, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The first post in the series is by Nehal Bhuta on fair trial guarantees in armed conflict.
The protection of fair trial rights during international and non-international armed conflicts might reasonably be seen as an area where the convergence between international humanitarian law (IHL) and international human rights law (IHR) is considerable, and in which the co-application of the two bodies of international law results in “interpretive complementarity” in respect of specific guarantees contained in both legal regimes. It should be noted at the outset that a person detained for the purposes of criminal prosecution during an international or non-international armed conflict is within the jurisdiction of the prosecuting state for the purposes of international human rights law whether the person is within the territory of the detaining state or not. At the same time, that state may also be a detaining power, an occupying power or a party to a conflict on its own territory (even if part of that territory may be outside its effective control).
In this short post, I wish to raise for discussion areas of tension and uncertainty in the relationship between IHL and IHR in fair trial guarantees during an armed conflict. I first address the question of whether IHL countenances different understandings or interpretations of specific fair trial guarantees protected in both IHL and IHR. I then turn to the related question of whether derogation provisions can and should be invoked in order to give effect to IHL-based interpretations of a fair trial right over an IHR-based construction of the right. Finally, I examine some dilemmas associated with countenancing the possibility of courts constituted by armed groups as conducting fair trials under IHL.
Fair Trial Guarantees under IHL and IHR
The fair trial guarantees contained in IHL are expressed in the following general formulations found in the Geneva Conventions (GC) and Additional Protocols (AP I and II): Read the rest of this entry…