" The Decaux Principles on the Administration of Justice by Military Tribunals and the Guantanamo Bay Trials " (original) (raw)
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One of the most important questions in the current Guantanamo detainee litigation is whether the United States may prosecute individuals in military commissions for offenses that are not recognized as war crimes under international law. The United States maintains that such offenses—particularly, material support for terrorism and conspiracy—are violations of the " U.S. common law of war, " a form of customary domestic liability in armed conflict distinct from international law. This paper offers a critique of the U.S. theory from the perspective of international criminal law practice and theory. In particular, it explains how the U.S. position unduly expands the conception of war crimes liability, thereby distorting the meaning of a war crime and undermining the value of prosecuting conduct on that basis.
Imperial Injustice: On the Imperial Features of the Guantanamo Military Commissions
Washington University Global Studies Law Review (forthcoming), 2024
Over the 20 years since the 9/11 attacks, the Guantánamo military commissions transitioned from exceptional wartime tribunals to regularly constituted courts, defying familiar legal doctrines. This article argues for an imperial turn, both empirical and theoretical, in analyzing the Guantánamo commissions. By comparatively analyzing the emergency military courts of the courts of the late British Empire and the US military commissions, I show how the United States ultimately reproduced an imperial model of emergency military courts. Emergency courts are a hybrid between wartime tribunals and criminal courts, three models that comprise a new comprehensive framework for the study of military courts. The article analyzes the hybridity of the military commissions as manifested in their territorial, temporal, personal, and organizational features: operating beyond sovereign borders, beyond wartime, over “enemy aliens”, combining civilian and military institutions. Shifting from a state-centered perspective to an imperial one demonstrates the relevance of empire as a transnational category of analysis for contemporary law and security, extending beyond domestic law and sovereign borders. Just like the threats against empire, the war on terror transcended sovereign borders, combining the danger of organized violence with fear of a racialized Other.
Human Rights Review, 2021
The article critically considers the role of NGOs at the US naval base in Guantanamo Bay, Cuba. On the basis of observation of pre-trial hearings for the case against Khalid Sheik Mohammed et al.—those allegedly responsible for the September 11 attacks—the article analyses NGOs as trial monitors of the US military commissions set up to deal with ‘alien unprivileged enemy belligerents’. In spite of continued efforts by human rights NGOs and incremental improvements in the military commissions’ institutional arrangements and practice, the article shows how NGOs have become so much a part of the everyday operation of justice at ‘Gitmo’ that they legitimate the military commissions’ claim to be delivering fair and transparent justice.
The Case of the Guantanamo Bay Detainees In United States (and Other) Courts
2004
The power of the executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers, is in the highest degree odious, and is the foundation of all totalitarian government 1 11 (n 2) s 1(a) and (b). 12 (n 2) s 1(d). 13 (n 2) s 1(e). 14 (n 2) s 1(f). 15 (n 2) s 2(a) 16 (n 2) s 3. 17 (n 2) s 7(b). 18 (n 2) s 7(c).
how to restore the credibility of a country whose foundations and self-understanding are based on the universality of freedom and human rights, but that has violated precisely those rights by practicing torture in guantánamo and other prisons around the world? the image of the united states as a role model of liberal democracy has suffered tremendously over the last eight years. in the name of the global war on terror, former President bush suspended the law for those detained as possible terrorists. even though President Obama's promise to close guantánamo is recognized by the international community as a first step towards restoring u.s. credibility, several problems require comprehensive policy solutions: how to proceed with detainees that are considered to be dangerous? What to do with detainees who are cleared of suspicion, but might face torture in their country of origin? how to cope with evidence that is derived from torture? thomas c. hilde outlines several post-guantánamo detainee policy proposals -and their difficulties -that address these distinctive sets of issues, such as military commission trials, continued preventive detention, a national security court or u.s. criminal court trials. in the long run, however, restoring credibility through a reformed detainee policy is only one component of post-guantánamo credibility; the second indispensable element is accountability. Prof. hilde discusses the functions of different forms of accountability in the process of reestablishing u.s. credibility on human rights. Whereas legal accountability requires the formal investigations of human rights violations, public-moral and pragmatic accountability refer to the need to address the norms on which international society is based. Moreover, a public discourse is needed that confronts the stories of those who have suffered human rights violations and the empathetic aspect of human rights. A more comprehensive form of accountability can serve as both a means towards regaining u.s. credibility and a strengthening of human rights culture.
The Restriction of Military Jurisdiction in International Human Rights Protection Systems
The essay deals with some cases within the international, Inter-American, African and European systems for the protection of human rights. It views the subject of military jurisdiction from a regional perspective, using norms, jurisprudence and other sources of the law to understand and act accordingly in those cases in which the military jurisdiction is applied extensively on civilians, either as active or passive subjects. It focuses especially on sentencing in the cases of Rosendo Radilla Pacheco v. United Mexican States, issued by the Inter-American Court of Human Rights in November, 2009, and Öcalan v. Turkey, issued by the European Court of Human Rights in May, 2005. Original in Spanish. Translated by Maité Llanos. Revised by Benjamin Freeman. Online version available here: http://www.surjournal.org/eng/conteudos/getArtigo13.php?artigo=13,artigo\_04.htm