The military commissions as established by Military Commission Order No.1 and the Military Commissions Act of 2006 depart from international law in the aspects of procedure and purpose. Whereas the military tribunals established therein by the executive branch of the United States serve the purpose of trying “illegal enemy combatants” in simply determining guilt or innocence and operates in a way equitable for such a purpose, tribunals as interpreted and established by the International Covenant on Civil and Political Rights (henceforth abbreviated as ICCPR) and the Geneva Conventions attempt to provide its accused with a non-partisan, humanitarian trial with fairness and justice in mind and in procedure. In determining how these courts depart from one another, it is first necessary to examine how they operate and also the circumstances in which these courts are called into convention; as it is my conviction that international law should be given more recognition and credit than it has received in the course, I will focus first on the supremacy of the humanitarian commissions as established under international law, then move on to elaborate on the failures and inadequacies of the military commissions established by the executive branch of the U.S. to counteract what has now developed into a legal crisis at Guantanamo Bay.
The United Nations, as a humanitarian organization, operates under the obligation of promoting universal human rights, and thus recognizes that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”[1] and ensures to all individuals (at the least those associated with the signatories of the ICCPR) the said inalienable rights, without distinction to “colour (sic), sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[2] Thus the United Nations leaves no doubt as to their positioning when it comes to matters of justice; as they are solely concerned with affording to each and every individual under their influence inalienable human rights regardless of who they are and to what circumstance they may have befallen onto, the United Nations will always opt to provide an apolitical, unbiased solution toward exigent problems.
One thing to note however, is that the these inalienable human rights apply not only to those who are simply observing and inhabiting within the just social order that the United Nation endeavors to create on earth, but also to those who are violating or are committing acts that are in violation of the said human rights. Although it is a given that the guilty are naturally not afforded the same broad spectrum of rights that the innocent enjoy, the UN acknowledges the fact that wrongdoers are also entitled to human rights, and therefore ensures that “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”[3] an idea (anachronistically) echoed by the infamous Common Article 3 of the Geneva Conventions which state that “ the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples [are prohibited at all times].”[4]
The ICCPR, which can perhaps be seen as the international corollary to the American Bill of Rights, also details procedures that should be taken in assessing violators of human rights of their guilt while at the same time affording them the maximum—if not the same—amount of freedoms and rights that are bestowed upon non-law-violating individuals. A good example which illustrates the UN’s impartiality against the guilty (or at least until they are proven so) is found within the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War (henceforth abbreviated as Geneva III) which strictly mandate that captors of Prisoners of War, whom by virtue of being Prisoners of War are “guilty” for aggrandizing war against the captors’ nation, ensure that their captives are “at all times humanely treated,” prohibiting any unlawful act or the “omission of acts” which may result in “causing death or seriously endangering the health of a prisoner of war in its custody,”[5] a statement which is (anachronistically) echoed by the United Nations Convention Against Torture, (henceforth abbreviated as UNCAT) which prohibit any acts of injustice in the form of torture being performed upon any individual under any circumstances regardless of whether “a state of war or a threat of war, internal political stability or any other public emergency” is at stake.[6]
Not only does international law provide for the safety of the accused, it offers many of the same judicial rights afforded to a citizen in the United States: the guilty is afforded with an equivalent of the Miranda Rights through provisions which ensure that “the accused shall be given precise information regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending himself”[7]; self-incrimination of the 5th Amendment sort is banned as per provisions which maintain that “any statement which is established to have been made a result of torture shall not be invoked as evidence in any proceedings”[8]; and also within the spectrum of the 5th Amendment, double jeopardy is also prohibited under provisions which guarantee that the guilty “shall [not] be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law.”[9]
But most importantly, international law provides the ever important right of being able to address oneself in front of a court of law. Article 14 of the ICCPR states that “all persons shall be equal before the courts and tribunals… everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” thereby granting all citizens of the humanitarian world the ability to address and redress injustices before a panel of arbiters. The same article goes on further to ensure that the accused shall have the “right to be presumed innocent until proved guilty according to law,” and also in what may seem a corollary to the landmark decision reached in the 2008 Supreme Court ruling of Boumediene v. Bush: “everyone shall be entitled… to be tried without undue delay.”
While Kelsen would be generally approving of the above provisions of international law and recognize them to be solid examples of normative law based on a Grundnorm of sorts, Schmitt and perhaps Agamben would note that while the above provisions may provide useful guidelines of conduct during peacetime, social order tends to from time to time, fall into a state of emergency (or under the mercy of the Schmittian Exception, if you will) in which said normative processes will hinder the progress of the social contract, specifically the part where the citizens let the proverbial Leviathan[10] perform its due role. International law, however, also makes sufficient provisions to satisfy this notion, specifically by allowing signatories to “take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”[11] Furthermore, it should be noted that the provisions of the Geneva Conventions come with a kill switch which states that its signatories (or its High Contracting Parties) “shall be at liberty to denounce the present Convention,”[12] thus allowing the (hopefully) temporary halt standstill of normative law and process during states of emergency, albeit notwithstanding the fact that certain conditions need to be met before signatories can actually denounce the provisions of the conventions.
The question that needs to be addressed at this point then is quite clear: firstly that of (1) what rights and privileges are then afforded by civilians and partisans alike during a state of emergency under international law, and that of (2) with whom rests the authority during the said state of emergency.
While international law maintains that state of emergencies are inevitable and allows for the suspension of law to accommodate for such situations, it also maintains that certain humanitarian guarantees and rights cannot be compromised regardless of space and time. International law states that at no time shall the inherent right to life be deprived; the act of torture be sanctioned; any individual be held in servitude; held guilty of any criminal offence on account of any act or omission which does not constitute a criminal offence; be deprived of the right to be recognized as a person before the law; or have their freedom of thought, conscience, and religion taken away from them.[13]
On the question of whether Grundnorm or the Hyper-legitimate Sovereign rules supreme during times of exigencies, however, the answer seems to be solidly in favor of the normative legal process. As the namesake implies, international law pertains to law and conduct between and regarding nations, and even the derogation of international law provisions during states of emergency are contingent to this schema of the “law of nations”; although members of the United Nations are allowed to denounce and/or derogate certain provisions of international law, they are mandated to “immediately inform the other States [that are also signatories].”[14] States which have foregone the aforementioned derogation of provisions also may not interpret the provision as being that which allows the state to “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein,”[15] an idea also echoed in the Geneva Conventions which also states that the application of provisions “shall not affect the legal status”[16] of the conflicting parties.
Thus it can be contended that any tribunal or commission that is created under international law must follow the provisions mentioned above in settling the ever-important issue (at least for our purposes) of how to deal with a new category of individuals whom do not fall under the Geneva-provided categories of the wounded (Geneva I and II), prisoners of war (Geneva III) or civilians during time of war (Geneva IV). Although critics of the conventions will ascertain that Geneva Conventions legally do not apply to the illegal enemy combatants due to the fact that they do not identify themselves as being members of a specific nation-states and have not signed the treaties; and furthermore ascertain that they are “violating the fundamental principle that war is waged only against combatants.”[17]Although this logic is not flawed in sustaining that applications of international law can be suspended given circumstances, it does not account for the fact that the “legal status of conflicting parties” remains unchanged no matter what provisions are called into duty or used against an individual; so long as an individual is born human, the individual cannot be deprived of “his right to be recognized as a person before the law”[18] nor can this legal status be changed by any act of state, including those that changes one’s legal designation so that he/she may not be tried under the law as an individual (i.e. Military Commissions Order No. 1).
In terms of extralegal military commissions and tribunals which serve in lieu of civil courts and higher courts during wartime, international law provides both general and specific alternatives to civil and domestic courts which are designed to serve the humanitarian interests of individuals during peacetime. Insofar as general provisions are considered, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (henceforth abbreviated as Geneva IV) states the following about enemy combatants or belligerents’ rights:
“when in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communications under the present Convention,”[19]
thereby ascertaining that hostile military and/or enemy combatants during a state of emergency can be deprived, or is seen as being deprived of their would-be rights of conduct under international law. Although the militant’s right of conduct may be deprived by the occupying state, international law still maintains that with or without the right of conduct a human can never be found without his alienable rights as ascribed (anachronistically) by the ICCPR:
“In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention”
and thus the convention in brief maintains that no matter what exigent circumstances may arise, an individual may never be found without or deprived of his right to Habeas Corpus. Although critics of the Convention, as previously referenced to, have argued in the past that “illegal enemy combatants” do not fit under the categories listed under the conventions and therefore can be indefinitely deprived of their Geneva rights, the inherent fact that each Geneva Convention guarantees the same inherent right of trial to different categories of individuals (i.e. the wounded, civilians, prisoners of war, etc.) coupled with Geneva III’s provision which guarantees the same rights to individuals whose status is in doubt “until such time as their status has been determined by a competent tribunal,”[20] clearly shows that the right to access the writ of Habeas Corpus is intended for each and every individual, regardless of their status, under international law.
But as Socrates found out with Thrasymachus in the debate on justice, it is sometimes more beneficial for one to the sake of an argument to provide examples of what is right, as opposed to relying on ad absurdum proof to eventually reveal the right answer, and accordingly international law provides two outstanding examples of what a “model tribunal” or a “model committee” should resemble: the Human Rights Committee as detailed in Articles 28 through 45 in the ICCPR, and the Committee against Torture as detailed in articles 17 through 24 in the UNCAT.
Although these two model committees are structured for different purposes with the Human Rights Committee resembling a peacetime court dedicated to safeguarding individual human rights and the Committee against Torture resembling a wartime court dedicated to determining whether violations of the laws of war have actually taken place, it would be in the best interest for the purpose of determining what a model committee commissioned during states of emergency should be incorporated with to examine the procedures and protocol currently associated with the Committee against Torture (henceforth abbreviated as “the Committee.”)
The UNCAT mandates that an adequate Committee be consisted of 10 “experts of high moral standing and recognized competence in the field of human rights” whom will serve as the arbiters of the issues brought before the committee, elected in a manner impartial to nationality, religion, sex, etc. by way of secret ballot.[21] The Committee’s members are also subject to a term limit, and may only remain incumbent for a period of two-years (pending re-election); all decisions made by the Committee is pending a quorum of six, and a majority of the members present.[22] The Committee also allows for the admission of “reliable information which appears to it to contain well-founded indications that [violations are] being systematically practiced in the territory of a State Party,”[23] but restricts the admission of any evidence “which is anonymous, or considers it to be an abuse of the right of submission of such communications,”[24] thereby eliminating hearsay evidence as a player in the arbitration process. Further safeguards against the admission of hearsay admission is found outside the provisions of the Committee, where the UNCAT explicitly states that all signatories must ensure that competent authorities “proceed to a prompt and impartial investigation”[25] where an “impartial investigation” is taken to mean an investigation “free of bias”, which if the word “hearsay” were to officially be registered with an antonym, would rise to the top of the list of the likely candidates.
As the basis of comparison has now been established on the subject of the legitimacy of military committees and tribunals, the illegitimacy of committees and tribunals can now be brought to attention. The specific committees and tribunals that are to be put under the scope of investigation, as formerly mentioned, are (1) those that were created by Military Commissions Order No. 1 and subsequently dismissed in Hamdan v. Rumsfeld and (2) the committee and tribunal setup through the Military Commissions Act of 2006, and subsequently questioned in Boumediene v. Bush.
Military Commissions Order No.1 was an executive order issued forth by the President of the United States in the aftermath of the 9/11 attacks which was issued to provide judicial ruling over those accused of violating the laws of war, and also to ensure that any such individual “receives a full and fair trial before a military commission.”[26] The commissions created therein do not stray away from the likes of the humanitarian courts established by the ICCPR and the Geneva Conventions in that it provides the right to counsel through appointing to the accused counsel who is to “defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused.”[27] The order goes further to give the accused the benefit of presumed innocent until proven guilty, reasonable doubt, self-counsel, and even double jeopardy.[28] There are however, two crucial factors which tip the committees thus formed as inadequate which both revolve around the role of the “Presiding Officer”: the first of these deals with the admission of evidence in that the criteria for the legitimacy of evidence admissible in court lies solely with the discretion of the Presiding Officer. Paragraph D of Article 6 clearly states: “evidence shall be admitted if, in the opinion of the Presiding Officer, the evidence would have probative value to a reasonable person,” thus clearly stating the eligibility of hearsay evidence. The second of these inadequacy lies with the Presiding Officer’s executive ability to “close” the court proceedings and opt to review all sentences and evidence against the accused in camera,[29] thus rendering the accused completely oblivious of the charges and evidence brought before him in court.
Given the above inadequacies, the commissions established under the Military Commissions Order No. 1 were ruled to be inadequate and an act in which congress “unconstitutionally suspended the writ of Habeas Corpus” in Hamdan v. Rumsfeld[30], which prompted the government to establish a new system of military commissions established under the Military Commissions Act of 2006 (henceforth abbreviated as HR-2166). It would be an understatement to say that HR-2166 is the biggest departure from the procedural rights afforded to an individual in judicial processes by international law, as HR-2166 denies to all courts “jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant[31] or is awaiting such determination.”[32] HR-2166 further encroaches upon the rights of the accused by denying them the procedural rights afforded to them under the Unified Code of Military Justice, specifically those referenced in Articles 10 (relating to speedy trial, including any rule of courts-martial relating to speedy trial,) 31 (relating to compulsory self-incrimination,) and 32 (relating to pretrial investigation.)[33] These blatant encroachments against procedural rights were deemed unconstitutional in the Supreme Court ruling of Boumediene v. Bush which claimed that HR-2166 effectively “eliminated the statutory habeas jurisdiction” and also contended that such liberal application/removal of the Habeas writ is akin to “switch[ing] the constitution on or off.”[34]
As apparent as the legitimacy of the humanitarian provisions of international law seems to be, the fallacy of international law lies within its identity as a system of agreements which bind its signatory nations together. Given that the very same people to whom the laws and provisions are applied to are the ones who enforce the law as well, it is hard to justify or formally accepted as legal and binding contracts, as much as the idea Lockean idea of the social contract—although it is now taken to be a natural process observed by any political society—can be taken as a legitimate and legal order or process within the state. But if the words of Hugo Krabbe can be marked to be true where the shape of modern society has come to be in that “it is not the state, but the law, that is sovereign,”[35] there may yet be hope for international law to rise as the humanitarian sovereign order that is so badly needed in current times where the state of exception is no longer an exception, but a recognized rule of society itself.
[1]International Covenant on Civil and Political Rights, preamble
[2]Ibid., Article 2, paragraph 2
[3]Ibid., Article 9, paragraph 3
[4]Geneva Conventions Common Article 3 paragraph 1d
[5]Geneva Convention Relative to the Treatment of Prisoners of War, Article 12
[6]United Nations Convention Against Torture, Article 2, paragraph 2
[7]Geneva Convention Relative to the Treatment of Prisoners of War, Article 96
[8]United Nations Convention Against Torture, Article 15
[9]International Covenant on Civil and Political Rights, Article 14
[10]In reference to Hobbes’ Leviathan, a metaphorical analogy to the government, which according to Hobbes is “but an Artificial Man; though of greater stature and strength than the [individual possessing] Natural [rights], for whose protection and defense it was intended…” (Hobbes, The Leviathan, Chapter 1)
[11]International Covenant on Civil and Political Rights, Article 4, paragraph 1
[12]Geneva I, Article 63; Geneva II, Article 62; Geneva III, Article 142; Geneva IV, Article 158
[13]International Covenant on Civil and Political Rights, Article 4, paragraph 2
[14]Ibid., Article 4, paragraph 3
[15]Ibid., Article 5
[16]Geneva Common Article 3
[17]John Yoo, UC Berkeley News “Commentary: Behind the ‘torture memos’ ”, 4 January 2005
[18]International Covenant on Civil and Political Rights, Article 16
[19]Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 5
[20]Geneva Convention Relative to the Treatment of Prisoners of War, Article 5
[21]United Nations Convention Against Torture, Article 17
[22]Ibid., Article 18
[23]Ibid., Article 20; Although the original wording of the text pertains to the act of torture, since torture is a violation of the laws of war as established by international law, it is interpreted here to apply to “violations of the laws of war.”
[24]Ibid., Article 22
[25]Ibid., Article 12
[26]Military Commission Order No.1, Article 1
[27]Ibid., Article 4, Paragraph C
[28]Ibid., Article 5
[29]Ibid., Article 6, Paragraph D, §5
[30]548 U.S. 557 (2006)
[31]A status which is assessed by a separate tribunal known as the Combatant Status Review Tribunal, which is corollary to tribunals mentioned in Geneva III, Article 5
[32]HR-2166, §7a
[33]Ibid., §948b.
[34]553 U.S. ___ (2008)
[35]The Modern Idea of the State, trans. George H. Sabine and Walter J. Sheperd (New York and London, 1927)
