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):
- A “fair and regular trial” (GC IV art 5)
- “safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 [of GC III]”(GC I art 49(4), GC II art 50(4). Articles 102–108 of the 1949 Geneva Convention III contain detailed provisions to ensure a fair trial in any judicial proceedings against prisoners of war.)
- An “impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure…” (AP I, Art 75(4))
- A “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (Common Article 3).
- A “court offering the essential guarantees of independence and impartiality (AP II, Art 6)
- [Trial before] properly constituted, non-political military courts, on condition that the said courts sit in the occupied country [GC IV, Art 66].
- [No penalty except after] a “regular trial” before a “competent court” [GC IV Art 71].
Two key dimensions are noteworthy in these general formulations: first, a core element of the guarantees found in IHL concerns the nature of the trial mechanism (variously referred to as a non-political military court, a competent court, a regularly constituted court, or a simply ‘a court.’) Military courts are explicitly contemplated at least in GC III and GC IV, and not ruled out by any provision. Second, IHL refers to due process requirements of a trial (fair and regular, proper, regular, judicial guarantees, essential guarantees etc.) The guarantees that would qualify a trial as comporting with regular judicial procedure under Article 75(4) of Additional Protocol I have generally been taken to inform the meaning of phrases such as fair and regular trial, safeguards of proper trial and defence, and even Common Article 3’s judicial guarantees indispensable to civilized peoples (eg. plurality judgment in Hamdan v Rumsfeld, and also the ICRC Customary Law Study). The specific guarantees contained in Article 75(4) correspond quite closely in general terms to the fair trial requirements of Article 14 of the International Covenant of Civil and Political Rights (ICCPR).
In IHR, the trial mechanism required is usually qualified as some variation of a “competent, independent and impartial tribunal established by law” (ICCPR Art 14(1)) while Article 14(3) ICCPR establishes the minimum guarantees “required in the determination of any criminal charge.” Article 8(1) of the American Convention on Human Rights provides that “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent … tribunal, previously established by law.” Article 8(2) lists the minimum guarantees to which everyone is entitled “with full equality”. Article 6 of the European Convention on Human Rights (ECHR) requires an “independent and impartial tribunal established by law.” Article 6(2) and 6(3) ECHR set out “minimum rights” of “everyone charged with a criminal offence.” Article 7(1)(d) of the African Charter on Human and Peoples’ Rights requires an “impartial court or tribunal”, and Article 7(1)(a)-(c) establish minimum procedural guarantees in a somewhat more parsimonious manner than other human rights treaties. The substantive fair trial guarantees contained in these human rights treaties are, while not identical, very similar and include all of the guarantees set out in Article 75(4) of AP I. This leads Pejic, for example, to conclude that it is ‘generally accepted that article 75(4) of Additional Protocol I – which was drafted based on the corresponding provisions of the International Covenant on Civil and Political Rights – may be taken to reflect customary international law applicable in all types of conflict … [The] relevant international fair trial standards … may be deemed sufficiently clear and elaborate under both international humanitarian and human rights law.” [J.Pejic, “Conflict Classification and the Law Applicable to Detention and the Use of Force” in E. Wilmhurst, ed, International Law and the Classification of Conflicts (OUP, 2012)]
If, indeed, there is a fundamental identity between the form and substance of fair trial guarantees in IHL and IHR, questions of the lex specialis as to the meaning of a concept or rule may not arise, nor the question of whether and to what extent fair trial obligations under IHR may be derogated from during an armed conflict. While the treaty texts of the ICCPR, ECHR and ACHR each permit derogation from fair trial guarantees under circumstances of acute emergency (war, threat to the life of the nation, etc), all three also require that any measure in derogation not be inconsistent with the state’s other obligations under international law. Hence, if the protections of fair trial rights in IHL are essentially the same, derogation from the applicable IHR treaty provisions would serve no purpose.
Interpreting Fair Trial Guarantees
The difficulty, it seems to me, is that while human rights courts and human rights treaty bodies have developed considerable jurisprudence interpreting the meaning of specific fair trial guarantees as applied by treaty parties, no equivalent body of jurisprudence exists in relation to the interpretation and application of IHL fair trial guarantees during an armed conflict. Military manuals and the ICRC Customary Law Study recite the terms of these guarantees, but give us little guidance about how to give concrete meaning to these terms in an international or non-international armed conflict. One conclusion that could be drawn from this is that we ought simply transfer the interpretations developed by human rights bodies and human rights courts into IHL. One can appreciate arguments in favor of such view, in so far as it appears to promise (on paper at least) the highest level of protection to those charged with a criminal offence related to an armed conflict. Indeed, this would also be a fairly direct consequence of the jurisprudence concerning the concept of jurisdiction under human rights treaties, developed expansively over the last twenty years or so.
But, one could also reasonably observe that many of the legal concepts that constitute fair trial guarantees contain an inherent element of relativity, the concrete meaning of which may properly vary as between a time of peace and a time of war: notably, the right to present witnesses, the right to legal assistance, the associated right to counsel of one’s own choosing, the right to a public trial and the right to adequate time and facilities for the preparation of the defence. It does not seem unreasonable to me to recognize the force of GIAD Draper’s observation that the laws of war govern relations of hostility between belligerent parties of equal status, and protect individual war victims despite such relations of hostility, rather than as citizens or constitutional subjects governed directly by the party in whose hands they have fallen (Draper, ‘Humanitarian Law and Human Rights’, Acta Juridica (1979) 193.) Assuming the possibility that certain fair trial guarantees can be interpreted with some degree of relativity in light of the circumstances of an armed conflict, the question would then become how a state (or, an armed group?) might maintain that it is compliant with IHL even if a trial process or trial mechanism would not meet the requirements of IHR as interpreted and applied by human rights bodies. Here, the argument from lex specialis could conceivably be applied, contending for a special meaning given to certain fair trial guarantee concepts in the circumstances of an armed conflict; or, the state may well seek to derogate from its human rights treaty obligations while maintaining that it is upholding fair trial guarantees under another applicable body of international law rules.
An example of a potential conflict relates to the trial mechanism required under by IHR jurisprudence. While nothing in the IHR fair trial guarantees expressly prohibits the trial of civilians before military courts during an armed conflict (provided the court meets the requirements of independence and impartiality – See, eg, General Comment 32 of the HRC, para 22),human rights treaty bodies and courts have consistently rejected trials of civilians before military courts during a non-international armed conflict – often on the grounds that trying members of an armed group or their alleged collaborators before a court under the authority of the military forces participating in the conflict, does not meet the requirements of independence and impartiality. [ECthr, Incal v Turkey, paras 68 and 71-3; ACommHR, Constitutional Rights Project et al v Nigeria, Com 60/91, 3 November 1994. Becerra Barney v Colombia, UN Doc. CCPR/C/87/D/1298/2004 (2006) §§7.2, Castillo Petruzzi et al Case, IACHR (1999) (Judgment), in Annual Report of the Inter-American Court of Human Rights 1999, OEA/Ser.L./V/III.47, Doc 6, App IX, 211–300 (2000). I-A Court HR, Genie Lacayo Case, judgment of January 29, 1997, in OAS doc. OAS/Ser.L/V/III.39, doc. 5, Annual Report I-A Court HR 1997, p. 54, para. 84.] Yet IHL does not prohibit the use of military courts, even in a non-international armed conflict.
Fair trials by armed groups party to a non-international armed conflict
In a classic civil war, the armed rebel group aspires to seize state power, or revolutionize the legal order of the state and replace it with a new one (including by secession). In other words, at stake in the conflict is the status who or what can claim to be the proper holder of sovereign power. Unsurprisingly, IHL seeks to moderate these conflicts in part by accepting the public authority of the state, but also recognizing the effective de facto power of armed groups to control persons and territory when determining whether a group has duties and may exercise governance functions within the regulatory framework established by IHL.
We may say that IHL in respect of a non-international armed conflict does not authorize the exercise of public powers by armed groups, but does potentially legitimate them by establishing standards of conduct by which such exercise may be deemed to have been lawfully executed. The exercise of criminal justice functions, including claims of authority to prescribe legal obligations and adjudicate legal rights and duties, is a core function of sovereignty. Recognizing that armed groups can create “courts” or “tribunals” and that such trial mechanisms may be “regularly constituted” under IHL (the phrase being normally taken to mean constituted under regular, constitutional laws of the state), clearly sends a message that such groups exercise something like public authority, if only as a matter of effectivity. States are understandably loath to accept such an implication. At the same time, we might argue that the best incentive for an armed group to comply with IHL (a key to moderating and humanizing the conduct of hostilities) is precisely that IHL-compliant conduct carries with it a penumbra of legitimacy and a limited assimilation to the status of a governing authority directly regulated under international law. Such a status would be of cardinal importance to those groups whose political objectives entail the assumption of state power, or at the very least, an ambition to be included as relevant participants in mediated peace negotiations leading to inclusion in a post-conflict political and legal order.
Accepting for the sake of argument the in-principle possibility that armed groups can establish courts and aspire to comply with fair trial guarantees under Common Article 3 (CA 3) and or AP II Article 6, the question of the content of such guarantees solely under IHL becomes all the more urgent and problematic. Armed groups may not control much territory, but may still be bound by CA 3(1)(d). To what extent can fair trial guarantees that presuppose the effective control and extensive public administrative power characteristic of a sovereign state (such as those in IHR), be fulfilled by an armed group potentially operating in an irregular and clandestine manner and with modest territorial control?
A further dimension of relativity in the interpretation of the guarantees seems demanded by the circumstances, lest the exhortation to conduct fair trials appear nothing but a poisoned chalice to the armed group – simply another way in which it will be condemned for falling short of international legal standards with which it cannot possibly comply. The dilemma, of course, is that by relativizing further the standards of a fair trial to not only an armed conflict but also to the concrete situation of an armed group, we risk embarking upon a slippery slope that could erode the protection promised by the guarantees to vanishing point. Of course, merely insisting on strong “paper standards” may be equally ineffective.
Professor Sandesh Sivakumaran has adopted a nuanced and carefully balanced approach to these dilemmas in his work [The Law of Non-International Armed Conflict, Oxford, 2012, pp 549-562] and I cannot add much to his observation that:
Additional Protocol II applies in conflicts in which the armed group exercises such territorial control as to enable it to carry out sustained and concerted military operations; the Geneva Conventions and Additional Protocol I apply to conflicts usually fought between states; and human rights law traditionally regulates the relationship between the state and the individual. As such, the content of none of these instruments can be transported ipso facto and without more into a common Article 3 conflict simpliciter, for that would be to destroy the “intimate nexus” between the scope and content of that article. It would also be to import these standards rather than to use them as a guide in interpreting the requirements of common Article 3. […] they need to be interpreted in a manner which respects their substance while also making compliance with them possible.
Anything less sacrifices real protection for the sake of paper standards, proving correct that old adage, the best is the enemy of the good […] Sandesh Sivakumaran, “Courts of Armed Opposition Groups: Fair Trials or Summary Justice?”, Journal of International Criminal Justice, vol. 7, 489-513, at 503.
He also stated that “[…] decisions of rebel courts are neither universally invalid nor categorically legitimate. The question should not be whether decisions may be recognized as law but which decisions have legal effect. This, in turn, necessitates a much greater engagement with these entities in practice.” (p. 511, emphasis mine)
Another interesting question is whether any of the above considerations apply to armed groups which do not aspire to replace or stand in the shoes of the existing public authority, but to constitute an entirely different kind of political authority including through a rejection of existing territorial boundaries derived from colonial legacies. Such movements, like Da’esh, challenge aspects of the fundamental logic of the existing state system, such that it seems preferable to maintain certain categorical standards of civilian protection in respect of such groups and not endeavour to engage with their actual practice of governance (which undoubtedly exists).