United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions and Articles 102 and 108 of the 1949 Geneva Convention III.
With respect to occupied territories, the manual uses the same wording as Articles 5, 66 and 71 of the 1949 Geneva Convention IV.
The manual provides that “wilfully depriving a prisoner of war or a protected person of the rights of a fair and regular trial” is a grave breach of the 1949 Geneva Conventions.
The US Air Force Pamphlet (1976) states that the 1949 Geneva Convention III “provides specific safeguards and guarantees of fair judicial proceedings”.
The Pamphlet further states: “Protected persons in occupied territory who are detained for … sabotage … are guaranteed the right to a fair trial.”
The Pamphlet specifies that “deliberate deprivation of fair trial rights to any protected persons” is an act involving individual criminal responsibility.
The US Air Force Commander’s Handbook (1980) provides: “A prisoner of war must be tried by the same courts as try members of the armed forces of the detaining power, and must be given the same procedural rights as members of that state’s armed forces”.
The Handbook adds: “Even terrorists … and illegal partisans have the right to be tried”.
With respect to war crimes trials, the Handbook states that “these trials must meet certain minimum standards of fairness and due process, now set out in detail in the 1949 Geneva Conventions” and that the “failure to accord captured personnel the right to a fair trial is itself a serious violation of the law of armed conflict”.
The US Soldier’s Manual (1984) prohibits sentencing protected persons without a proper trial.
The US Naval Handbook (1995) provides that “the following acts are representative war crimes … denial of a fair trial” for prisoners of war and civilian inhabitants of an occupied territory.
The Handbook adds: “Failure to provide a fair trial for the alleged commission of a war crime is itself a war crime.”
The US Naval Handbook (2007) states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include:
1. Offenses against prisoners of war, including … denial of fair trial for offenses …
2. Offenses against civilian inhabitants of occupied territory, including … denial of fair trial for offenses.
The Handbook also states: “The law of armed conflict establishes minimum standards for the trial of foreign nationals charged with war crimes. Failure to provide a fair trial for the alleged commission of a war crime is itself a war crime.”
The Handbook further states: “Prisoners of war prosecuted for war crimes committed prior to capture, or for serious offenses committed after capture, are entitled to be tried by the courts that try the captor’s own forces and are to be accorded the same procedural rights.”
The Handbook further states:
[T]he following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control:
d. Passing sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples.
The US Manual on Detainee Operations (2008) states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “… the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples … ”.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949.
The US Manual for Military Commissions (2010) provides that “procedural and evidentiary rules that … extend to the accused all the judicial guarantees which are recognized as indispensable by civilized peoples as required by Common Article 3 of the Geneva Conventions of 1949”.
Under the US War Crimes Act (1996), as amended in 2006, violations of common Article 3 and grave breaches of the 1949 Geneva Conventions are war crimes.
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3.
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 4. Immediate Review of All Guantánamo Detentions.
(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
Sec. 7. Military Commissions.
The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.
In the Sawada case
before the US Military Commission at Shanghai in 1946, the accused was charged with “knowingly, unlawfully and wilfully” denying the status of prisoner of war to eight members of the US forces who were “tried and sentenced by a Japanese Military Tribunal in violation of the laws of war”. The Military Commission considered that “false and fraudulent charges” and “false and fraudulent evidence” contributed to the criminal character of the trial.
In the Isayama case
in 1946, the US Military Commission at Shanghai tried Lieutenant-General Harukei Isayama and other members of the Japanese Military Tribunal on charges that members of the Japanese Military Tribunal did “permit, authorize and direct an illegal, unfair, unwarranted and false trial [of prisoners of war] … upon false and fraudulent evidence and without affording said prisoners of war a fair hearing”. The Commission found that the accused had falsified the records of interrogation of 14 US airmen, that the US airmen were not afforded the opportunity to obtain evidence or to call witnesses on their own behalf, that they were not permitted to be represented by legal counsel and that they were executed in violation of international law. The Commission found Lieutenant-General Isayama and the seven other accused guilty of all counts alleged.
In its judgment in the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg held:
The trials of the accused … did not approach a semblance of fair trial or justice. The accused … were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses on their own behalf. They were tried secretly and denied the right of counsel of their own choice, and occasionally denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from the beginning to end were secret and no public record was allowed to be made of them.
The Tribunal concluded that the trial was “unfair”.
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf.
In 2008, in the Khadr case, a Guantánamo Military Commission considered a defence request that all charges and specifications be dismissed on the basis that the Military Commissions Act (2006) is a “Bill of Attainder”; described as “a legislative act which inflicts punishment without a judicial trial”. The Commission denied the defence motion, stating:
5. The defense characterization of the effect of the MCA [Military Commissions Act (2006)] on Mr. Khadr as “legislative punishment” is not supported by case law; nor by any logical interpretation of the historical reasons for the Bill of Attainder Clause.
a. The cases cited by the defense for the propositions which it asserts do not support characterization of a trial by military commission as punishment.
b. Insofar as the defense claims are based upon those portions of the MCA which regulate the access to civilian courts for purposes of habeas corpus, those portions are independent of those sections establishing the jurisdiction of and procedures for military commissions.
c. Insofar as the defense claims are based on procedures established by the MCA which differ from procedures in federal courts and military courts-martial, such variations. are not grounds for determining that punishment has been legislated before a trial. The commission notes that the Uniform Code of Military Justice has not been held to be a Bill of Attainder, even though certain provisions of military practice appear to be at variance with Constitutional requirements – compare place of trial under the Uniform Code with the 6th Amendment’s venue rule and Clause 2 of Section III.
6. Nothing in the MCA directs that any person or any subset of persons be punished without a trial. Nothing in the trial procedures established by the MCA can be properly viewed as “punishment,” as that term is used in the cases cited by the defense.
In 1987, the deputy legal adviser of the US Department of State affirmed:
We support the principle that … no sentence be passed and penalty executed except pursuant to conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.
The deputy legal adviser added:
The basic core of [the 1977 Additional] Protocol II is, of course, reflected in common article 3 of the 1949 [Geneva] Conventions and therefore is, and should be a part of generally accepted customary law. This specifically includes its prohibitions on … punishment without due process.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
I’m announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. … They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Applause.)
We’ll also seek to prosecute those believed to be responsible for the attack on the USS Cole, and an operative believed to be involved in the bombings of the American embassies in Kenya and Tanzania. With these prosecutions, we will send a clear message to those who kill Americans: No longer – how long it takes, we will find you and we will bring you to justice. (Applause.)
These men will be held in a high-security facility at Guantanamo. The International Committee of the Red Cross is being advised of their detention, and will have the opportunity to meet with them. Those charged with crimes will be given access to attorneys who will help them prepare their defense – and they will be presumed innocent. While at Guantanamo, they will have access to the same food, clothing, medical care, and opportunities for worship as other detainees. They will be questioned subject to the new U.S. Army Field Manual, which the Department of Defense is issuing today. And they will continue to be treated with the humanity that they denied others.
In May 2010, the US President issued the 2010 National Security Strategy, which stated: “Legal Aspects of Countering Terrorism
. … When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective.”