THE HICKS PROJECT
Opinion on the Indispensable Judicial Guarantees Required by Common
Article 3 of the Geneva Conventions
by
OXFORD PRO BONO PUBLICO*
for
MAJOR DAN MORI
United States Marine Corps
Defense Counsel
Office of the Chief Defense Counsel, Office of the Military Commissions
March 2007
*
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EXECUTIVE SUMMARY
1.
This memorandum outlines four areas of substantial significance to the construction of the
‘judicial guarantees’ clause of Common Article III of the Geneva Conventions (CA3): 1)
the principles of international law relevant to interpreting international instruments, and
their specific application to CA3; 2) the judicial guarantees deemed customary and
afforded by international criminal tribunals; 3) the judicial guarantees deemed
indispensable under the European Charter of Human Rights; and, 4) selected U.S. law
provisions construing Common Article III and fundamental fairness in general.
2.
Chapter 1 addresses the Vienna Convention on the Law of Treaties, which has been
widely recognized as an expression of the customary international law of treaty
interpretation. It specifies that the ‘ordinary meaning’ of its text be the first and principal
guidepost in construing its application, followed by its object and purpose, state practice
pursuant to the treaty and the relevant customary law
3.
The overriding purpose of the Geneva Conventions, and CA3 in particular, is to ensure
‘humane treatment’ the protection of the innocent. In choosing between possible
interpretations of ‘judicial procedures’, therefore, the option that is less humane and/or
less reliable must be rejected. Subsequent international practice on what processes are
affirmatively guaranteed is contained both in Article 75 of Protocol I and the International
Covenant on Civil and Political Rights (‘ICCPR’). These sources gain authoritative
weight from the Hamdan plurality’s invocation of Protocol I and the UN Human Rights
Committee and Commission’s determinations that ICCPR Article 14 is applicable to
military tribunals. This substantial context of ‘general principles’ establishes such
judicial guarantees as the exclusion of evidence gathered through torture, the principle of
legality (ex post facto) and other rights that the MCA limits or denies. Finally, the
decisions of ICTs and other tribunals provide expert authority regarding when specific
judicial processes can be considered too unreliable to comply with the general principles
of the judicial guarantees clause; this practice is therefore central to a meaningful
interpretation of the MCA.
4.
Chapter 2 examines the judicial guarantees deemed customary and afforded by
international criminal tribunals (ICTs). ICTs apply a broad and flexible admissibility
standard to most evidence that is similar in form to the MCA. In substance, however,
fact-finding is conducted by panels of professional judges who provide written findings of
fact that are subject to review. The MCA practice of applying these same standards
before juries raises serious concerns of fundamental fairness. Additionally, ICTs have a
very low tolerance for evidence obtained through coercion and for permitting the
prosecution to withhold evidence from the accused.
5.
The MCA criminalizes a number of offenses that are unknown to ICTs. In particular, the
criminalization of fighting without ‘combatant immunity’ and ‘providing material support
for terror’ are crimes of such vague scope that they have very little basis in the customary
laws of war. Finally, ICTs provide a degree of judicial review in pre-trial reviews of
detention (habeas corpus) and post-trial appellate review that are substantially more
protective than that afforded by MCA commissions.
6.
Chapter 3 addresses the judicial guarantees deemed indispensable under the European
Convention on Human Rights With respect to admissibility, access to evidence is a
fundamental right and convictions cannot rest solely on evidence obtained from secret
witnesses or hearsay. Additionally, the European Court of Human Rights observes an
absolute prohibition on the use of evidence obtained through coercion, even falling short
of torture and even when that evidence was not dispositive to a conviction.
7.
Retroactive legislation is strictly forbidden under the European Convention, pursuant to
an overriding principle of reasonable certainty in the law. The MCA makes reference to
‘offence[s] made punishable by this chapter’, a phrase that seems to contradict its
assertion that is declaratory of existing law and highlights the substantial risk of
retroactivity.
8.
While the European Conventionr does not afford the right to appeal as such, it does
mandate that convictions be supported by a reasoned judgment. The right to appeal is,
nevertheless, contained in Protocol 7 and the Charter has been held to ensure the
fundamental fairness of appellate proceedings when available. The Charter guarantees
habeas corpus as well, though not called such, by ensuring the all detention is reviewed
for legality.
9.
Chapter 4 highlights select aspects of US law that are applicable to CA3, and thus may be
considered a supplemental source for interpretation under Article 32 of the Vienna
Convention. It notes the aspects of the Hamdan majority defining general evidentiary
principles considered guaranteed by CA3, and outlines the treatment of the judicial
guarantees clause in the legislative history of the Torture Victim’s Protection Act. It
demonstrates that in U.S. deportation proceedings, the phrase ‘fundamental fairness’ is
deemed to include the right to confront witnesses and view evidence, which could be
considered a US example of general principles. Finally, Chapter 4 also provides a brief
review of Congress’ constitutional authority to define war crimes, outlining that it is
constrained by the US’s repeated and voluntary acceptance of international obligations
that require the category to conform with international law.
THE OXFORD PRO BONO PUBLICO TEAM
The legal research on the questions addressed in this opinion was conducted by a group of
Oxford postgraduate students, supervised by Dapo Akande, Yamani Fellow, St Peter’s College
and University Lecturer in Public International Law under the auspices of the Oxford Pro Bono
Publico programme. The students are: Lydia-Maria Bolani, Michel Paradis and Alicia Triche. For
additional information please contact OPBP at opbp@law.ox.ac.uk.