September 23, 2016

Joint Series on International Law and Armed Conflict: Monica Hakimi on Fair Trial Guarantees in Armed Conflict

Written by Helen McDermott

The second post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Fair Trial Guarantees in Armed Conflict’- by Monica Hakimi (Michigan Law) is now available on Lawfare.

Here’s a taste:

The fair trial protections that apply in non-international armed conflicts (NIACs) have received much less attention in recent years than have the protections on targeting and security detention. No doubt, this is because the basic contours of a fair criminal trial are generally not in dispute. Still, they raise a number of interesting questions. Here, I describe the current legal landscape and identify some issues that warrant further study.

A. The Regulatory Framework

The relevant treaty law can be laid out succinctly. The four Geneva Conventions, the two Additional Protocols, and human rights law all require that criminal trials be fair. The specific language and requirements of each instrument vary, but the key parameters are similar. (The relevant provisions are GCI art. 49; GCII, art. 50; GCIII arts. 84, 86, 99, 102–08; GCIV arts. 5, 64, 66–75, 117; common art. 3; API art. 75; APII art. 6; and ICCPR art. 14.) In short, a court must: (1) be independent, (2) be impartial, and (3) afford defendants basic guarantees. A court is independent if it has the ability to conduct its business without undue external interference. It is impartial if its decisions rest on the evidence before it, without any predisposition toward one side or the other.

Common Article 3 does not list specific guarantees for criminal defendants in NIACs; it simply requires that defendants be afforded “all the judicial guarantees which are recognized as indispensable by civilized people.” Other treaty provisions identify what these guarantees might be. The provisions that apply in international conflicts, Additional Protocol II (which governs a subset of NIACs), and human rights law all require: (a) a presumption of innocence, (b) prompt notification of the offenses, (c) charges based on individual responsibility and offenses prescribed in law, (d) means to present a defense, (e) presence at trial, (f) a right against self-incrimination, and (g) notification of remedies. Three other guarantees are listed in the treaty provisions for international conflicts and in human rights law—but not in the provisions that specifically govern NIACs: (h) trial without undue delay, (i) open proceedings, and (j) no double jeopardy.