Military tribunals and fair trial rights - a study of the Guantanamo Commission

Sammanfattning: The right to a fair trial is a vital component of the rule of law, but with the change in global conflicts, and particularly the rise of global terrorism, it has been presented with new challenges. Soldiers’ immunity for certain, normally illegal, actions has been established as a principle of international law since the adaptation of the Geneva Conventions. However, new conflicts, and especially the War on Terror, are not always fought by privileged combatants. Still, our worst enemies have the right to a fair trial. This thesis establishes the existence of a right to a fair trial in international statutory as well as customary law, including for non-privileged combatants, and examines the compatibility of military tribunals with it. To do this, the Guantanamo Commission is used as a case study and analyzed with special emphasis on three crucial aspects; competence, independence and impartiality. Space is given to scholarly works as well as legal reports, debate entries and jurisprudence, and several issues with the use of military courts are identified. This leads to the conclusion that, while the use of military courts is not outright prohibited, their use is problematic enough to be unadvisable. With this, as well as legal developments, in mind, it appears likely that the use of military courts to try civilian suspects will remain controversial and under heavy scrutiny, and that this might eventually lead to the discontinuing of this use altogether.