Related Rule
United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
The US Field Manual (1956) reproduces Article 84 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 160.
The US Air Force Pamphlet (1976) emphasizes: “In no event may [a prisoner of war] be tried by any court not offering the [generally recognized] essential guarantees of independence and impartiality.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The US Manual for Military Commissions (2007) states:
Requisites of military commission jurisdiction.
(1) Jurisdiction of military commissions generally. A military commission shall have jurisdiction to try any offense made punishable by the M.C.A. [Military Commissions Act of 2006] or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(2) Lawful enemy combatants. Military commissions under the M.C.A. shall not have jurisdiction over lawful enemy combatants.
(3) Specific requisites for military commission jurisdiction. A military commission always has jurisdiction to determine whether it has jurisdiction. Otherwise for a military commission to have jurisdiction:
(A) The military commission must be convened by an official empowered to convene it;
(B) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here “personnel” includes only the military judge and the members;
(C) Each charge before the military commission must be referred to it by a competent authority;
The accused must be a person subject to military commission jurisdiction; and The offense must be subject to military commission jurisdiction. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 201 (b), pp. II-12 and II-13.
The manual also states:
Persons subject to the jurisdiction of the military commissions
(a) In general. The military commissions may try any person when authorized to do so under the M.C.A.
(b) Determination of unlawful enemy combatant status by Combatant Status Review Tribunal or other competent tribunal dispositive. A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by a military commission under the M.C.A. The determination by the tribunal shall apply for purposes of military commission jurisdiction without regard to any pending petitions for review or other appeals. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 202(a) and (b), p. II-13.
The manual further states:
Disqualification of military judge
(a) In general. Except as provided in section (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 902(a) and (b)(1), p. II-80.
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 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”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
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 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(d) 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 people. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The US Manual for Military Commissions (2010) states:
Jurisdiction in general
(b) Requisites of military commission jurisdiction. A military commission always has jurisdiction to determine whether it has jurisdiction. Otherwise for a military commission to have jurisdiction:
(1) The military commission must be convened by an official empowered to convene it;
(2) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here “personnel” includes only the military judge and the members;
(3) Each charge before the military commission must be referred to it by a competent authority;
(4) The accused must be a person subject to military commission jurisdiction; and
(5) The offense must be subject to military commission jurisdiction. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 201(b), p. II-14.
The manual also states:
Persons subject to the jurisdiction of the military commissions
(a) In general. Any alien unprivileged enemy belligerent is subject to trial by military commission under chapter 47A of title 10, United States Code.
(b) Privileged belligerents. Military commissions under chapter 47A of title 10, United States Code, shall not have jurisdiction over privileged belligerents.
(c) Competent Tribunal. A military commission is a competent tribunal to make a finding sufficient for jurisdiction. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 202, p. II-15.
The manual further states:
Disqualification of military judge
(a) In general. Except as provided in section (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 902(a) and (b)(1), p. II-86.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.— A military commission established under this chapter is a regularly constituted court, affording all the necessary “judicial guarantees which are recognized as indispensable by civilized peoples” for purposes of common Article 3 of the Geneva Conventions.
(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.—No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights. 
United States, Military Dictatorship, 2007, Article 2(1). Spain, Law on the Victims of the Civil War and the Dictatorship Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2602, § 948b(a), (f) and (g).
The Military Commissions Act further states:
§ 948d. Jurisdiction of military commissions
(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(b) LAWFUL ENEMY COMBATANTS.—Military commissions under this chapter shall not have jurisdiction over lawful enemy combat ants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE.—A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
(d) PUNISHMENTS.—A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2603, § 948d.
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base in Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions:
[T]there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by … detention.” Id., at 3318. One such provision prohibits “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.” Ibid.
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F.3d at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U.S.T., at 3318 (Art. 2, P 1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-a-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, P 3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).
Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII [1949 Geneva Convention III] Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36. In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42–43.
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U.S.T., at 3320 (Art. 3, P 1(d)). While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV [1949 Geneva Convention IV] Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”); see also Yamashita, 327 U.S., at 44, 66 S. Ct. 340, 90 L. Ed. 499 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”). 
United States, Supreme Court, Hamdan case, Judgment, Part VI D, 29 June 2006.
Omar Khadr, a Canadian citizen born on 19 September 1986, had been captured in Afghanistan in July 2002 and detained at the US naval base in Guantanamo Bay, Cuba, since October 2002. In September 2007, the Khadr case (US Court of Military Commission Review) resulted from an appeal by the Government after the military judge presiding over Khadr’s military commission trial had dismissed all charges against him without prejudice – a ruling based upon the judge’s determination that the military commission lacked personal jurisdiction over Khadr. The basis for that ruling had been the Appellant’s failure to properly determine Khadr’s status as an “alien unlawful enemy combatant” before his Combatant Status Review Tribunal (CSRT). The judge ruled that this was an indispensable prerequisite to the military commission’s ability to exercise personal jurisdiction under the Military Commissions Act 2006 (MCA), further stating that “the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr”.
In a judgment that affirmed the military judge’s conclusion that Khadr’s CSRT classification in 2004 as an “enemy combatant” was insufficient to establish the military commission’s criminal jurisdiction over him but reversed the military commission’s ruling that it lacked authority to hear evidence on, and ultimately decide, the matter of Khadr’s “unlawful enemy combatant status”, the Court stated:
[T]he 2002 White House memorandum [“Humane Treatment of Al Qaeda and Taliban Detainees”, signed by President G.W. Bush, 7 February 2002] concluded that Common Article 3 of the Geneva Conventions “does not apply to either al Qaeda or Taliban detainees.” Id. at ¶ 2c. The Supreme Court subsequently determined that legal conclusion was erroneous. See Hamdan, 126 S.Ct. at 2795–96, 165 L. Ed. 2d 776–78. Congress, clearly aware of the Hamdan decision when it drafted the M.C.A., appears to have embraced the minimal safeguards guaranteed by Common Article 3 requiring that even “unlawful enemy combatants” be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” See § 948b(f), M.C.A. (quoting Common Article 3 – “A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of Common Article 3 of the Geneva Conventions”); see also Art. III, GPW III, ¶ 1(d). No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an opportunity to be heard in regard to allegations which might result in criminal sanctions. The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of “enemy combatant” status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum [Deputy Secretary for Defense, Memorandum for the Secretary of the Navy, “Order Establishing Combatant Status Review Tribunal”, 7 July 2004], could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an “unlawful enemy combatant”. 
United States, Court of Military Commission Review, Khadr case, Judgment, 24 September 2007.
Country reports on human rights practices issued by the US Department of State in 1983 and 1996 stress that the right to be tried by a trained, impartial and independent judge may not be suspended, even during an emergency situation. 
United States, Department of State, Country reports on human rights practices for 1983, Nicaragua, United States Government Printing Office, Washington, D.C., 1984, p. 637; Country reports on human rights practices for 1996, Cambodia, United States Government Printing Office, Washington, D.C., 1997, p. 611.
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”. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 427–428.
The Report on US Practice states that “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].” 
Report on US Practice, 1997, Chapter 5.3.
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the US State Department’s legal adviser stated: “As the President noted in his National Archives speech, lawfully constituted military commissions are also appropriate venues for trying persons for violations of the laws of war”. 
United States, “The Obama Administration and International Law”, Speech given by the legal adviser of the US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.