Abstract
The Military Commissions Act was significantly revised in 2009. Despite the undeniable improvements, questions remain as to whether the revised commissions comply with international law. Some critics assert that military commissions are not “regularly constituted courts” and therefore are not in compliance with the Geneva Convention, or that the military commissions do not meet international fair trial standards. On the other hand, the current Chief Prosecutor argues that the military commissions meet or exceed applicable fair trial standards under international humanitarian law. This Article addresses the question of whether military commissions under the MCA of 2009 meet applicable international rules of law and fair trial standards, using a two-pronged analysis. First, the Article describes what international laws apply to military commissions conducted by the United States at Guantanamo. Then, the specific fair trial requirements of these laws are identified and analyzed to determine whether the rules and procedures, both in theory and in practice, comply with these standards. The Article concludes that, while military commissions arguably now comply with international humanitarian law, they still fall short, at least on paper, of meeting the more robust fair trial standards found in international human rights law. While current military commission rules and procedures are in substantial compliance with these standards, significant concerns remain about the potential for the admissibility of evidence obtained by coercive means, the retroactive prosecution of non-war crimes in what is ostensibly a war crimes tribunal, and the openness of the process.
Recommended Citation
David J. Frakt,
Applying International Fair Trial Standards to the Military Commissions of Guantanamo,
37
S. Ill. U. L.J.
551
(2013).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol37/iss3/5