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Published online by Cambridge University Press: 17 January 2008
Of the thousands of Taliban and al Qaida fighters captured in the recent conflict in Afghanistan, just under 500 are held by US forces, including some 300 at the Guantanamo Bay base, Cuba.1
1 Associated Press release of 26 Feb 2002.
2 The Department of Defence Military Commission Order No 1 of 21 Mar 2002, however, requires a unanimous decision by a seven-member commission for a death sentence.
3 It seems that this does not preclude judicial review in civilian courts: Alberto R Gonzales, Martial Justice, Full and Fair, US Department of State web-site, 30 Nov 2001.
4 Law of the Constitution (10th edn), 424.
5 Manchester Corporation v Manchester Palace of Varieties Ltd [1955] p 153.
6 Hansard, vol 95, col 880.
7 Judgment of 19 Dec 2001. This case concerned the deaths in 1999 at the Radio-Television Serbia headquarters in Belgrade as a result of NATO bombing. The court took the view that the convention did not apply extra-territorially in the absence of effective control of territory and its inhabitants abroad.
8 Geneva Convention III of 1949, Art 84.
9 Geneva Convention IV of 1949, Arts 64–76.
10 In this section heavy reliance has been placed on Heuston, RFV, Essays in Constitutional Law, 2nd edn (London: Stevens, 1964).Google Scholar
11 The Case of Wolfe Tone (1798) 27 St Tr 614.Google Scholar
12 [1902] AC 109.
13 [1921] 2 LR 241.
14 [1921] 1LR265.
15 Rogers, APV, War crimes trials under the Royal Warrant: British practice, 1945–1949, 39 (1990) ICLQ, 780, at 787.CrossRefGoogle Scholar
16 [1947] KB 41.
17 Rogers, op cit, 788–91.
18 Ibid,789–90.
19 Geneva Conventions Act 1957, s 1A, as inserted by the International Criminal Court Act 2001, s 70(2).
20 Successive statutory measures, mainly Emergency Powers or Emergency Provisions Acts, over the years have now been replaced by the Terrorism Act 2000. Also relevant perhaps in this context is the Regulation of Investigatory Powers Act 2000.
21 This is drawn from D Hughes-Morgan, Compliments, vodka and base motives, to be published in the Military Law Journal, the in-house journal of Army Legal Services, in 2002.
22 In Article of War 15 and later in Art 21 of the Uniform Code of Military Justice.
23 Report and recommendations on military commissions of the American Bar Association Task Force on Terrorism and the Law, 4 Jan 2002.
24 317 US 1 (1942). In the Civil War case of Ex Parte Milligan, 71 US 2 (1866), it was held that a military commission could not exercise law of war jurisdiction over a citizen of Indiana, where the courts were open and their process unobstructed, who was not a resident of one of the rebellious states and had never served in military or naval forces.
25 Unfavourable comparisons being made in this context with International Criminal Tribunal for the former Yugoslavia.
26 See, eg, Gonzales, op cit; Ruth Wedgwood, Prosecuting Al Qaeda, 7 Dec 2001, on the American University Crimes of War web site.
27 11 Apr 2002.
28 Independent, London, 13 Mar 2002 on the battle of Shah-i-Kot; BBC news report of 9 Apr 2002 about a force of 1700 Royal Marines being assembled for a full-scale mission against al Qaida.
29 Joel B Grossman, Careless with the Constitution? The problem with military tribunals, 29 Nov 2001, on the FindLaw's Writ web site.
30 Jordan J Paust, Military commissions: some perhaps legal, but most unwise, 14 Nov 2001, on the Jurist web site.
31 Tried at Yokohama on 18 July 1947.
32 Evan J Wallach, Prosecuting Al Qaeda, 21 Dec 2001 on the Crimes of War web site.
33 Michael Ratner, Prosecuting Al Qaeda, 13 Dec 2001 on the Crimes of War web site.
34 Geneva Convention III of 1949, Arts 84, 102, and 106.
35 This accords prisoner of war status, inter alia, to (1) members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces and (2) members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognisable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.
36 GC III, Arts 21 & 118.
37 See GC III, Art 119.
38 Aryeh Neier, ‘The military tribunals on trial’, New York Review of Books, 14 Feb 2002.
39 Jeffrey K Walker, Prosecuting Al Qaeda, 14 Dec 2001 on the Crimes of War web site. See also Jordan J Paust, op cit, on this point.
40 American Bar Association Task Force report, op cit.
41 There is at present no international tribunal that could deal with the crimes committed on 11 September. On the day of writing, 11 Apr 2002, the Rome Statute for the International Criminal Court was expected to receive its sixtieth deposit of ratification and to enter into force on 1 July 2002. However, the statute will not apply to acts committed prior to its entry into force and the United States is not a party. It would be open to the UN Security Council to establish a tribunal to give effect to existing international law with respect to such crimes, as it did for the former Yugoslavia and Rwanda.
42 With certain exceptions for morals, public order, national security, or to avoid prejudice.
43 European Court of Human Rights Judgment of 21 Jan 1997, case number 110/1995/616/706. The reforms mentioned below were put in place prior to the judgment.
44 Corresponding changes were made in the other services.
45 In fact, this was done shortly after the author took office as Director of Army Legal Services.
46 Before 1997, appeal to this court could only be against finding, not sentence.
47 European Court of Human Rights, Chamber Judgment of 26 Feb 2002.
48 The experience of the author as a military prosecutor tends to suggest, however, captains like nothing better than to avail themselves of an opportunity to out-vote the colonel!
49 Accused may retain the services of a civilian attorney of their choosing at their own expense.
50 Including commissioned civilians.
