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Argument: Guantanamo violates detainee rights to trial by competent, independent tribunal
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- "Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay". United Nations Economic and Social Council. February 15, 2006 - "Right to be tried by a competent and independent tribunal 30. Article 14 (1) of ICCPR states that in criminal proceedings “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.33 The Basic Principles on the Independence of the Judiciary also recognize that “everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”34. The Military Order provides that detainees must be tried by the Military Commission created ad hoc for Guantánamo detainees and denies them the well-established procedures of ordinary civilian courts or military tribunals.
- 31. The Human Rights Committee in general comment No. 13 (1984) interpreted article 14 of ICCPR to mean that the basic requirements for a fair trial within article 14 apply both to ordinary and specialized tribunals.35 In noting the existence in certain countries of military tribunals which try civilians, the Committee considered that “this could present serious problems as far as the equitable, impartial and independent administration of justice is concerned” and that “quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice”. The Committee concludes that “the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14”36. Military commissions should therefore also fully comply with the provisions set out in article 14 and respect the guarantees for a fair trial.
- 32. The proceedings before military commissions at Guantánamo Bay are hard to reconcile with article 14 of ICCPR. According to the military order, the judges of the commissions are appointed by the “Appointing Authority”, which is under the authority and the responsibility of the Department of Defense and ultimately of the President. Judges should be commissioned officers of the armed forces and may be removed by the Appointing Authority. Such provisions suggest not only interference by but full control over the commissions’ judges by the executive: the requirement of an independent judiciary is clearly violated. In addition, there appears to be no impartial judicial mechanism for resolving conflict of jurisdiction: decisions on issues of jurisdiction and competence are made by the Appointing Authority, leaving the military commissions outside the control of judicial authorities. 33. Finally, the Military Order requires only a minimum level of legal knowledge for appointment to the commissions. The inadequate qualifications of the members impede the regular and fair conduct of the hearings, violating the essential requirement that “persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law”. 37 The detainees’ right to be tried by judges sufficiently competent in law is violated although Revised Military Commission Order No.1 mitigates this by allocating responsibility for ruling on most questions of law to the presiding officer, who must be a judge advocate of any of the United States Armed Forces."