Terrorists and Fair Trial : The Right to a Fair Trial for Alleged Terrorists Detained in Guantánamo Bay 1

Alleged terrorists are being held by the US in Guantánamo Bay, at the Bagram Airbase in Afghanistan and in other unknown ‘black sites’.1 There have been trials against 30 persons so far.2 The first sentence was imposed in 2008.3 Do these persons enjoy the right to a fair trial? Does this right belong to the general principles of transnational criminal law? Our hypothesis is that general principles are those rules that cannot be suspended even in extraordinary situations. Thus, if the right to a fair trial even applies to the extraordinary prosecution and trials of alleged terrorists, it must also apply, a fortiori, to those of ordinary criminals thereby amounting to a general principle. To test our argument, we focus on alleged terrorists detained at Guantánamo Bay. In practical terms one may be inclined to say, following Geoffrey Robertson, that a trial can never be fair if the accused is labelled a ‘terrorist’ before it actually starts.4 Yet, we will demonstrate in this paper that, at least from a normative perspective, this statement is not true. We start with an explanation of the content of the right to a fair trial and its legal sources and will then give some examples of restrictions on this right during Guantánamo Bay proceedings. In our main part, we will then challenge these restrictions using inductive-comparative as well as teleological-deductive approaches. We will also discuss the relevant case law of the US Supreme Court and international courts and compare different human rights regimes and their rationale, especially international human rights law (IHRL) and international humanitarian law (IHL).


Introduction
Alleged terrorists are being held by the US in Guantánamo Bay, at the Bagram Airbase in Afghanistan and in other unknown 'black sites' . 1 There have been trials against 30 persons so far. 2 The first sentence was imposed in 2008. 3Do these persons enjoy the right to a fair trial?Does this right belong to the general principles of transnational criminal law?
Our hypothesis is that general principles are those rules that cannot be suspended even in extraordinary situations.Thus, if the right to a fair trial even applies to the extraordinary prosecution and trials of alleged terrorists, it must also apply, a fortiori, to those of ordinary criminals thereby amounting to a general principle.To test our argument, we focus on alleged terrorists detained at Guantánamo Bay.
In practical terms one may be inclined to say, following Geoffrey Robertson, that a trial can never be fair if the accused is labelled a 'terrorist' before it actually starts. 4Yet, we will demonstrate in this paper that, at least from a normative perspective, this statement is not true.We start with an explanation of the content of the right to a fair trial and its legal sources and will then give some examples of restrictions on this right during Guantánamo Bay proceedings.In our main part, we will then challenge these restrictions using inductive-comparative as well as teleological-deductive approaches.We will also discuss the relevant case law of the US Supreme Court and international courts and compare different human rights regimes and their rationale, especially international human rights law (IHRL) and international humanitarian law (IHL).

Sources
The right to a fair trial which is applicable to the detention and the subsequent prosecution of alleged terrorists can be inferred from different sources.First, on the international level, it is guaranteed in the Geneva Conventions (GC), especially in their Common Article 3, in Articles 84-108 Third Geneva Convention (GC III) and Articles 64-78 Fourth Geneva Convention (GC IV).Second, human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights5 (ACHR) and the American Declaration of the Rights and Duties of Man6 (ADRDM) or -here ratione loci not applicable -the European Convention for the Protection of Human Rights and Fundamental Freedoms 7 (ECHR), the Arab Charter on Human Rights 8 (AChHR) and the African Charter on Human and Peoples' Rights 9 (AChHPR) all make provision for fair trial guarantees.Third, the right to a fair trial is granted in national constitutions such as the United States Constitution (in particular the Fifth and Fourteenth Amendment).

Content
The right to a fair trial is an umbrella right encompassing several sub-rights of any person who is subjected to criminal proceedings, 10 such as: -the right to equality of arms before a court, which has to be competent, independent, impartial and established by law; 11 -the right to a public hearing and a public pronouncement of the judgment; 12 -the right to be presumed innocent until guilt is proven according to the law 13 and the right not to be compelled to testify against oneself; 14 -the right to be informed of the charge and to have adequate time and facilities to prepare one's defence including the right to have access to the proceedings and to the relevant documents supporting the charges, to choose a lawyer (if necessary, free of charge) and to communicate with him confidentially; 15 -the right to be tried without undue delay within a reasonable time; 16 -the right to be assisted by an interpreter if necessary; 17 -the right to have a convicting judgment reviewed by a higher court 18 and to demand compensation for miscarriages of justice; 19 -the right not to be tried twice for the same offence and the prohibition of retrospective legislation. 20osely related is the right to protection against arbitrary imprisonment and to challenge the lawfulness of one's detention as well as the right to be brought promptly before a judge. 21

Military commissions
In contrast to the trials of other persons detained during an armed conflict, the Guantánamo detainees are not tried before courts-martial following the procedure of the Uniform Code of Military Justice (UCMJ) but before military commissions. 22These military commissions consist of one military judge 23 and at least five military officers. 24They can be traced back to a military order of President Roosevelt issued during World War II. 25 Their most recent legal basis is the Military Commissions Act (MCA) 2009, enacted under the Obama Administration and replacing the previous MCA 2006.The MCA 2006 itself was amended several times due to a series of critical decisions by the Supreme Court. 26These laws, however, represent only one aspect of the legal bases regulating the detainees' status.

Fair trial restrictions
In any case, the venue of the trial -military commissions, courts-martial or civilian US courts -is not the crucial issue; rather it is its potentially negative consequences for fair trial rights. 27While historically the main difference between courts-martial and military commissions consisted of the latter's exclusive jurisdiction over enemy aliens, 28 today trials before military commissions entail serious rights restrictions. 29Thus, the Guantánamo detainees have only a restricted right to representation by counsel since a civilian (non-military) defence counsel is only allowed if he reaches the classified information level 'Secret' or higher. 30The detention of the majority of the detainees has never been subjected to a substantive review. 31The commission can change the rules on the admission of evidence as applied before general courts-martial.For instance, there is no exclusion of either evidence seized outside the US 'on the grounds that the evidence was not seized pursuant to a search warrant or authorization' 32 or of statements by the accused that are otherwise admissible 'on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r [the exclusion of torture evidence, self-incrimination, involuntary statements] of this title' . 33Hearsay evidence is also admitted. 34There is a rebuttable presumption in favour of the genuineness and accuracy of the Government's evidence. 35Moreover, disclosure rules are restricted: for example, classified information can be excluded from disclosure. 36Admittedly, however, the same rules apply in civilian federal courts. 37he military judge may exclude the accused from any part of the proceeding upon a determination that, following a warning from the military judge, the accused persists in conduct that justifies exclusion from the courtroom in order to ensure the physical safety of individuals, or to prevent any disruption of the proceedings by the accused. 38here are also doubts concerning the impartiality, independence and competence of the commission members since they are appointed by the Secretary of Defense (or another official designated by him for this purpose) and often lack judicial experience. 39lthough a good portion of the fair trial restrictions have been remedied in light of the Supreme Court's case law, 40 these remaining restrictions are still significant. 41

Approaches to 'justify' these restrictions
As we have seen above (Section 2) fair trial rights are granted in both armed conflict by IHL and in peacetime by IHRL.In both situations the question arises whether -and if so to what extent -fair trial rights may be restricted.In any case, given that the GC are only applicable in armed conflict, 42 first the legal nature of the 'war on terror' has to be determined.Then one can examine whether the applicable legal regime allows for fair trial restrictions.on terror' the official US position is that it is fighting in a global armed conflict against al Qaeda. 45As has been shown elsewhere 46 this is not a convincing assumption given that al Qaeda does not fulfil the requirements of an 'organised armed group' within the meaning of IHL and that the US is not at war with the states which allegedly host al Qaeda members.In any case, it is beyond dispute that the US, shortly after 11 September 2001, had been in an international armed conflict with Afghanistan which was, at that time, still governed by the Taliban. 47This armed conflict was, however, not initiated by the attacks of 11 September 2001 since the al Qaeda pilots acted as individual (terrorist) perpetrators. 48Instead, the Afghan conflict can be divided into three phases: 49 -With the US intervention in October 2001, the ongoing non-international conflict between the Taliban and dissident Afghan forces was turned into an international conflict with the US-led coalition fighting against the de facto Government of Afghanistan. 50After the fall of the Taliban, the armed conflict turned into a non-international one. 51This characterisation did not change with the support of the Karzai Government against the Taliban by the US-led ISAF mission in its fight against the Taliban since they acted on behalf of the Afghan Government. 52

IHL in general
For persons detained during, or in relation to, the armed conflict against the Taliban and/or in Afghanistan IHL is applicable: 53 specifically, the GC and their Additional Protocols (AP), although only the former have been ratified by both the US and Afghanistan 54 and only they are considered, beyond controversy, as customary international law. 55However, the GC, in particular GC III and IV, only apply, except their Common Article 3, to an international armed conflict, i.e., in this particular case until the fall of the Taliban.Afterwards, only Common Article 3 GC I-IV applies guaranteeing at least some minimal judicial guarantees.

'Prisoner of war' status for alleged terrorists (GC III) or protection as civilians (GC IV)?
Article 4A GC III grants rights -as prisoners of war -to the following persons: -'[m]embers 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'; -under certain conditions '[m]embers of other militias and members of other volunteer corps, (…) belonging to a Party to the conflict'; -'[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power'; -'[p]ersons who accompany the armed forces without actually being members thereof, (…) provided that they have received authorization, from the armed forces which they accompany, (…)'; as well as -'[i]nhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war' .
Do the Guantánamo detainees belong to one of these categories?In order to answer this question it is helpful to distinguish between al Qaeda and Taliban 56 detainees.As to the latter the Bush Administration originally took the position that they were not entitled to a prisoner of war status pursuant to GC III, since Afghanistan was a failed state and the Taliban could not be seen as a government but rather as a 'militant, terrorist-like group' . 57From Article 4A(3) GC III and Article 43(1) AP I ('not recognized') it follows, however, that the prisoner of war status does not depend on the recognition of the adverse party but on the reasonable interpretation of these regulations. 58If one considers the Taliban as the armed forces of the then de facto Afghan Government, 59 they clearly fall under Article 4A GC III, either as 'members of the armed forces of a Party to the conflict' (Paragraph 1) or 'members of regular armed forces (…) not recognized by the Detaining Power' (Paragraph 3), or under the more comprehensive provision of Article 43(1) AP I (albeit not ratified by the US). 60The prisoner of war status is granted irrespective of nationality. 61In fact, the Bush Administration changed its original position and recognized the Taliban's prisoner of war status at the beginning of 2002. 62s far as al Qaeda is concerned, one should first recall that it is an internationally organized terror organisation 63 which was founded in the late 1980s; its name meaning 'the base' . 64It developed out of the 'mujahedeen' movement against the Soviets in Afghanistan 65 and its members became travelling warriors in conflicts involving Muslim combatants such as Somalia or Bosnia. 66They also supported the Taliban's rise to power in the mid-1990s. 67Their members are connected via a transnational network, which allows transnational communication, information exchange or money transfers. 68After US interventions during the Gulf War in 1990 and Somalia in 1992, they attacked several American institutions such as the World Trade Center in 1993, US embassies in East Africa and the USS Cole in a port in Yemen, the attacks of September 11, 2001 being a kind of peak in this escalation of violence. 69gainst this background it is clear that al Qaeda as such cannot be party to the GC since it is not a state ('High Contracting Party'). 70Yet, this does not necessarily mean that its members are not entitled to a prisoner of war status pursuant to GC III 71 since this status is, as we have seen above, not only granted to the members of state armed forces but also to non-state actors (cf.Article 4A GC III).A non-state actor could belong to a party to the conflict for the purpose of GC III if there exists at least a factual link between it and the respective conflict party. 72However, as regards our case, neither a sufficient link between al Qaeda and the Taliban -despite some interdependencies 73 -could be identified, 74  Qaeda fight on behalf of and subject to the command of the Afghan state or its armed forces wearing a distinctive emblem to that effect. 75Thus, GC III is, as a rule, not applicable to al Qaeda members. 76his does not mean, however, that al Qaeda members or any other person belonging to nonstate actors who do not enjoy prisoner of war status are lacking any protection under IHL.Rather, the question arises whether they are to be considered civilians and as such protected by GC IV.To start with, Article 4(1) GC IV determines that '[p]ersons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals' .The ICRC Commentary seems to put the term 'in the hands of ' on an equal footing with 'in the territory of ' . 77It is for this reason that some authors claim that the persons have to be 'be captured either in occupied territory or in the home territory of [a] belligerent country' . 78This restriction, however, has no basis in the text of GC IV.The term 'in the hands of ' suggests a de facto rather than a legal status.It cannot make any difference if an alien civilian is captured on the detaining party's territory or on the one of the adversary.In particular, in times of conflict, the territorial control can vary and thus a territorial link cannot be decisive.
Article 4(3) GC IV excludes persons protected by GC III from the protection by GC IV.As the paragraph only excludes those persons from the protection of one instrument (GC IV), if they are protected by another (GC III), it implies that there is no gap in protection between GC III and IV. 79his is confirmed by an inversion of the argument following from Article 5 GC IV.The fact that this provision restricts the rights of individuals engaged in hostile acts against the territorial or occupying power (Paragraphs 1 and 2) implies, in turn, that even these 'hostile' persons are, in principle, protected by the Convention.Indeed, Article 5 GC IV speaks of 'an individual protected person' .In any case, even if this restriction applied to al Qaeda members, their fair trial rights would remain unaffected as explicitly stated by Article 5(3) GC IV ('(…) shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.').
Yet, while nationality is irrelevant for the application of GC III, 80 Article 4(2) GC IV provides for a so-called nationality exception.Accordingly, it excludes from protection, inter alia, civilians who are '[n] ationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a cobelligerent State, (…) while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.' This nationality exception applies to most Guantánamo detainees since they are nationals of 'neutral states' such as Yemen, Kuwait or Saudi Arabia with which the US have diplomatic relations. 81It is therefore argued by some scholars that these Al Qaeda members are not protected by GC IV. 82 This is not convincing, though.The rationale of the nationality exception is explained with the possible protection of the respective nationals of neutral states by treaties concerning the legal status of aliens and the consular support of their home states. 83This protection does not work effectively, however, if such nationals are detained by another power and the home states do not even know of this detention.Further, the nationality exception cannot reasonably be applied in times of occupation 84 since in this situation the diplomatic representatives are not accredited with the occupying power and therefore consular support cannot be granted. 85An occupation of Afghan territory by the US-led ISAF forces may at least have taken place in the short period between their intervention and the fall of the Taliban Government. 86But even if one fully applied the nationality exception to the detriment of the respective al Qaeda members at least the basic judicial rights 'which are recognized as indispensable by civilized peoples' (Common Article 3 GC) remain applicable.For if one accepts that these rights are granted in conflicts not covered by the GCs, one must, a fortiori, apply them to situations and cases where the Geneva Law is applicable in principle except for internal exceptions.
In a non-international conflict the just quoted Common Article 3 applies and affords a minimum standard of protection, that is, in our case, basic judicial rights 'which are recognized as indispensable by civilized peoples' .The Bush Administration took the opposite view arguing that Common Article 3 only applies to scenarios resembling civil war and not to (non-international) armed conflicts with international participation since this would broaden the scope of the GC and therefore amount to an amendment of the treaties without the approval of the parties. 87Thus, 'neither the Geneva Conventions nor the WCA [War Crimes Act] regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict' . 88his view is flawed, however.First of all, as we have already argued above, in times of an international armed conflict either GC III (for prisoners of war) or GC IV (for civilians) affords protection.It follows from the rationale of the GC that each person falls into one of these categories; there is no gap in protection. 89In particular, there can be no third category of unprotected persons during armed conflict, whatever qualifier is given to these persons (we will discuss the 'unlawful' , 'illegal' etc. combatants in a moment).In a non-international armed conflict Common Article 3 applies and it is by no means uncontroversial, as suggested by the Bush Administration, that the GC States Parties did not anticipate the situation of a non-international armed conflict with international participation, since in the drafting process reference was made to 'cases of civil war, colonial conflicts, or wars of religion' as special (but not conclusive) cases of a non-international armed conflict. 90Even if the Bush Administration's suggestion were, arguendo, correct one must not overlook the fact that the intention of the drafters only constitutes a supplementary means of interpretation. 91As a result, this means that both Taliban and al Qaeda members enjoy protection under IHL.The former are entitled to prisoner of war status pursuant to GC III, the latter enjoy the rights of Common Article 3 GC or GC IV. 92

Denial of rights by means of a third category: unlawful enemy combatants?
The Bush Administration tried to deprive the detainees in Guantánamo of their IHL rights by treating them as 'unlawful enemy combatants' or 'unprivileged enemy belligerents' . 93While this concept cannot be found in codified IHL, 94 it can be traced back to the US Supreme Court decision Ex parte Quirin in 1942 where the Court defined unlawful combatants as those who are, like lawful combatants, 'subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals' . 95e MCA 2006 defined an unlawful enemy combatant as either 'a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)' or 'a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal [CSRT 96 ] or another competent tribunal established under the authority of the President or the Secretary of Defense' . 97The decisions of the CSRT can be appealed before the District Court of Columbia. 98Since 2009, the MCA distinguishes between 'privileged belligerents' -individuals belonging to one of the eight categories enumerated in Article 4 GC III 99 -and 'unprivileged enemy belligerents' -individuals (other than privileged belligerents) who have 'engaged in hostilities against the United States or its coalition partners' , have 'purposefully and materially supported hostilities against the United States or its coalition partners' or were 'a part of al Qaeda at the time of the alleged offense under this chapter' . 100Unprivileged enemy belligerents may not invoke the Geneva Conventions. 101Although the MCA 2006 and 2009 employ different terminology -unlawful enemy combatants versus unprivileged enemy belligerents -the only notable difference can be seen in the fact that Taliban membership is no longer part of the more recent definition. 102iven that the Quirin decision was delivered prior to the enactment of the GC and the unlawful combatant concept has not been adopted in the subsequent codifications, it is doubtful whether the concept can be applied in current IHL. 103In any case, the Quirin case does not fit al Qaeda or Taliban cases at all since they are usually not accused of espionage. 104In essence, the concept sanctions a violation of a combatant's duty not to disguise his combatant activity by masquerading as a civilian: if he does so, he loses his prisoner of war status. 105Some scholars understand the concept more broadly, including within it those taking part in hostilities without having a right to do so, i.e. without being combatants. 106In any case, the concept may only, if at all, limit the rights of combatants; it does not apply to civilians. 107In addition, in a non-international armed conflict where the distinction between combatant and civilian does not legally exist but all persons are, as a matter of principle, civilians there is no room for the concept. 108n applying these definitions to al Qaeda and the Taliban only the former could possibly have behaved unlawfully by actively taking part in hostilities without having a formal combatant status and thus a right to do so.In contrast, the Taliban belonged to the armed forces of Afghanistan and were therefore lawful combatants. 109But even with regard to al Qaeda the exclusion of a person from prisoner of war status or any other IHL protection on the basis of mere membership of al Qaeda without taking into account the actual engagement, e.g. in hostilities, is too formalistic and arbitrary.Further, it is not compelling that everybody who 'purposefully and materially supported hostilities against the United States or its coalition partners' abuses the purposes of IHL and can therefore be treated as an unprivileged or unlawful combatant.Indeed, conduct violating IHL does not entail the loss of the status as a prisoner of war but only a criminal prosecution for the respective war crimes. 110n any case, the IHL protection cannot be removed in total.Even if one, arguendo, considers al Qaeda and Taliban members to be unlawful or unprivileged combatants, their detention has to end as soon as the hostilities are over. 111Even if one denies the application of GC III and IV, the basic rights embodied, for example, in Common Article 3 GC and the fundamental 'laws of humanity' in the sense of the Martens Clause 112 remain applicable to the detainees' situation. 113As to fair trial rights the US Supreme Court accepts some restrictions during armed conflict, e.g.acceptance of hearsay as proof or a presumption in favour of the Government's evidence. 114This view conflicts, however, with the view of the UN Human Rights Committee (HRC) that, pursuant to Article 14 ICCPR, even in an armed conflict the presumption of innocence and the right to defence are non-derogable rights. 115As to military commissions the Supreme Court demanded that 'some practical need explains deviations from courtmartial practice' . 116It further confirmed as 'judicial guarantees which are recognized as indispensable by civilized peoples' that 'an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him' . 117The Government's 'compelling interest' in restricting the disclosure is irrelevant as long as there is no express statutory provision. 118n conclusion, the Supreme Court's and the HRC's practice as well as the rationale of IHL, i.e., both inductive-comparative and teleological-deductive reasons, demand that even under a concept of unlawful enemy combatancy or unprivileged enemy belligerency, as a minimum, Common Article 3 GC and fundamental 'laws of humanity' in the sense of the Martens Clause apply.Thus, every person detained by US forces can invoke, as a minimum, the basic judicial guarantees including the right to a fair trial.

International human rights law
IHRL is not only applicable in times of peace but also during armed conflict.While IHL could be seen as lex specialis in the latter situation 119 this does not entail a complete suspension of human rights but, rather, that they remain applicable as 'fall-back' guarantees. 120For the ICJ there exists a complementarity of both regimes in the form of overlapping circles. 121Thus, the lex specialis rule is not to be understood as a rule of conflict of laws (repealing human rights law) but in terms of a hierarchy giving IHL priority but applying human rights law in a subsidiary, complementary sense. 122For instance, human rights law has to be consulted to interpret certain guarantees provided for by IHL, e.g. the scope of the judicial guarantees in the sense of Common Article 3 GC. 123Even if one were to give the lex specialis character of IHL a repealing effect the right to a fair trial would still be guaranteed by IHL itself, i.e., by Common Article 3 GC I-IV, Articles 84-108 GC III or Articles 64-78 GC IV. 124 In terms of human rights treaty law, first of all the ICCPR must be examined.On a regional level the American Declaration of the Rights and Duties of Man is applicable.

International Covenant on Civil and Political Rights
The US ratified the ICCPR in 1992, Cuba only signed it in 2008. 125While Guantánamo Bay formally belongs to Cuba, the US has full jurisdiction and control over it on the basis of a 1903 Lease Agreement with Cuba. 126While this agreement is in line with the applicable (customary) international law and is still in force, 127 it does not change the formal territorial sovereignty of Cuba over Guantánamo which, in turn, entails that the ICCPR does not apply to this territory.This leads us to the question of a possible extraterritorial application of the ICCPR.Article 2(1) ICCPR provides: 'Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.' 128 Although the text seems to suggest a conjunctive reading of the requirements 'within its territory' and 'subject to its jurisdiction' with the result that both have to be fulfilled, 129 the HRC affirmed the extraterritorial applicability in several cases, e.g., with regard to an Uruguayan detention on Argentinian territory, 130 Iraq's human rights obligations as the occupation power in Kuwait, 131 the Federal Republic of Yugoslavia's responsibility for crimes committed by Serbian nationalists on the territory of Croatia and Bosnia-Herzegovina 132 and, last but not least, Israel's responsibility for human rights violations occurring in the occupied Palestinian territories.This last case is especially noteworthy, since the HRC stressed 'the exercise of effective jurisdiction by Israeli security forces' 133 and thus relied on the principle of effective control. 134On this basis the HRC issued the following General Comment in 2004: 'States Parties are required (…) to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.(…) [T]he enjoyment of Covenant rights is not limited to citizens of States Parties (…).This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained (…).' 135 The criteria of jurisdiction136 and (effective) control for holding states responsible for extra-territorial human rights violations have also been confirmed within other Human Rights regimes, i.e., by the described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the united States shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.' (emphasis added).127 J.S. Lutz, Die behandlung von 'illegalen Kämpfern' im uS-Amerikanischen recht und Völkerrecht, 2011, pp.59-67.Subsequently there have been further agreements, especially the Relations with Cuba Treaty, providing that the leasing agreement will continue until both parties agree to an abrogation or modification (Art.III).128 Emphasis added.European Court of Human Rights (ECtHR) 137 and the Inter-American Human Rights Commission (IAHRC), 138 and by the ICJ in its Wall Opinion in 2004. 139n light of these precedents the will of the States Parties is of no importance 140 and following an inductive-comparative approach, the conjunctive reading of the two elements 'within its territory' and 'subject to its jurisdiction' must be rejected. 141Indeed, also from a teleological-deductive perspective, it would make little sense and undermine the effective human rights protection if states with effective control over extraterritorial human rights violations would be exempted from responsibility for the mere fact that these violations did not occur in their own territory.Effective control entails state responsibility because only the state which has effective control can prevent violations from occurring in the first place. 142The only remaining question then is to what extent the effective sovereign has to implement the Covenant abroad.This, of course, depends on the scope of its control.If the respective state lacks, for example, institutions outside its territory to comply with its human rights obligations it cannot be made responsible for a failure to comply. 143In any case, as far as the US control over Guantánamo is concerned there can be no doubt that it is effective and comprehensive as the running of the detention facility and the military commissions' trials show.Thus, the ICCPR applies extraterritorially by way of the US' effective control.
According to the wording of Article 4 ICCPR the right to a fair trial may, however, be derogated from 'in time of public emergency' .This requires, first of all, an exceptional threat, such as a war or other public emergency that threatens the life of the nation. 144Although it is accepted that a terrorist threat can also constitute such a threat, 145 this requirement has to be interpreted restrictively.For example, the HRC stressed that even during an armed conflict a threat to the nation's life does not follow automatically. 146nstead, the threat must present a certain gravity. 147With regard to the detention of suspected terrorists, it is therefore necessary that the terrorist threat is 'actual or imminent' , affecting the state as a whole and thereby threatening the 'continuance of the organised life of the community' so that ordinary countermeasures (permitted by the human rights treaties) are insufficient. 148Even if one suggests that these requirements have been satisfied immediately after 9/11, it is doubtful that this should still be considered true eleven years later. 149Apart from these doubts, the US has never notified, as required by Article 4(3) ICCPR, the UN Secretary-General of any state of emergency. 150It can therefore be concluded that no such state of emergency allowing for a derogation from the right to a fair trial existed at any time.
Even if one assumes, for the sake of argument, that such an emergency existed or still exists it does not completely suspend all fair trial guarantees even if Article 4 ICCPR suggests doing so.On the contrary, a minimum level of rights necessary to protect non-derogable rights (such as the prohibition of torture, 151 the presumption of innocence 152 or the right to challenge the lawfulness of one's detention by way of habeas corpus 153 ) remains in force.Also, trials which may result in the death penalty must comply with fair trial standards under all circumstances. 154What is more, the list of non-derogable rights mentioned in Article 4(2) ICCPR is not congruent with peremptory norms of international law which, given their character as 'peremptory norms' , can never be derogated from. 155Basic fair trial rights such as the presumption of innocence or the right to defence can also be counted among these peremptory norms. 156

Regional level: American Declaration of the Rights and Duties of Man
While neither the US nor Cuba are parties to the American Convention on Human Rights, 157 the right to a fair trial is provided for in the American Declaration of the Rights and Duties of Man to which both Cuba and the US are parties as members of the Organization of American States (OAS). 158hile the character and status of the Declaration are controversial -it was only adopted as a 'declaration' by the Ninth International Conference of American States together with the OAS Charter 159 and thus did not originally produce any legally binding effects 160 -the Inter-American Court of Human Rights (IACtHR) has given it a binding character being 'a source of international obligations related to the Charter of the Organization' . 161Notwithstanding this, the US denies its binding character and insists that it does not confer any obligations.162Despite the US' persistent objection, 163 the Inter-American Commission on Human Rights (IACHR) has found several violations of the Declaration by the US. 164If one agrees with the position of the IACHR and the Court, the Declaration would also bind the US and would thus oblige it to comply with minimum due process guarantees, even under a state of emergency. 165

US Constitution
On the basis of, inter alia, the due process clause of the Fifth and Fourteenth Amendment to the US Constitution (the latter binding upon state and local governments) 166 a person can challenge his detention by way of a writ of habeas corpus, an extraordinary legal action to be brought before a judge or court. 167 sentence can also be challenged on the ground that it was based on a violation of the Constitution. 168 suspension of the writ is only allowed when there is a 'Rebellion or Invasion' amounting to a danger to 'public safety' (the so-called Suspension Clause). 169he Bush Administration suggested, relying on the Supreme Court Decision in Johnson v Eisentrager, that the writ of habeas corpus is not applicable to alien detainees detained outside US territory. 170In this case, the respondents, 21 German prisoners of war, were captured by the US Army and tried and convicted by an American military commission in China for violations of the laws of war committed there.Afterwards they were imprisoned in the American military prison in Landsberg, located in a part of Germany occupied by the US.Without being within US territorial jurisdiction at any time, they petitioned the District Court of Columbia for a writ of habeas corpus because of a violation of, among other things, the Fifth Amendment and the GC 1929, in particular its Articles 60 and 63. 171 The majority of the Johnson Court denied the possibility of a writ of habeas corpus considering that the prisoners were 'at no relevant time (…) within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States' and that 'the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection' . 172y invoking the formal sovereignty of Cuba over Guantánamo, as already mentioned above, the Bush Administration argued that the Guantánamo detainees could not, for the same reasons as held by the Johnson Court, petition a writ of habeas corpus. 173Yet, while Johnson v Eisentrager certainly has precedential value, the facts of the case are different from the situation of the Guantánamo detainees. 174he Supreme Court stressed correctly the following relevant differences: 175 First, in Eisentrager, there was no dispute that the 21 German detainees were enemy combatants and thus prisoners of war.In the relevant Guantánamo case of Boumediene, however, the petitioners contested being enemy combatants in the first place -a status that was only verified by a procedure before the CSRT.In contrast to the 'rigorous adversarial process' testing the legality of Eisentrager's detention, the CSRT proceedings fell short of those basic procedural rights which would have eliminated the need for a habeas corpus review. 176econd, the Supreme Court could see no reason why the military mission in Guantánamo would be compromised if the petitioners' detention would be reviewed by an independent tribunal; in contrast, the allies' reconstruction and aid efforts in occupied Germany could be put at risk by such a control by US tribunals detached from the realities of the occupation. 177Third, perhaps the most relevant difference lies in the sovereignty situation: Whereas the Landsberg prison in Germany was under the joint control of the four Allied Forces, Guantánamo lies within the non-transient and 'constant jurisdiction' of the US. 178he Bush Administration's further argument to grant the habeas corpus right only to American citizens 179 is equally flawed, since 28 USC § 2241 also applies to foreign citizens. 180From the historical conception as a prerogative writ, 181 focusing on those who detain and not those who are detained, 182 it follows that the writ of habeas corpus also applies in cases of alien detainees if they are under the actual sovereignty of the United States.Thus, as a result, the right to a writ of habeas corpus has 'full effect at Guantanamo Bay' . 183This right has not been suspended.While 28 USC § 2241(5)(e) and the Detainee Treatment Act of 2005 (DTA) exclude 'enemy combatants' from the writ, the Government neither purported a formal suspension nor did it argue that it entails such a suspension automatically. 184f course, the exercise of a writ of habeas corpus is only a procedural means to exercise the underlying constitutional rights which have to exist in the first place. 185The Supreme Court left the question open which constitutional rights could ultimately be invoked by the detainees. 186To preserve the writ's effectiveness, however, the petitioner must have the possibility to invoke at least constitutional core rights, 187 e.g. the due process clause of the Fifth (and Fourteenth) Amendment. 188

Conclusion
The right to a fair trial is fully applicable with regard to alleged terrorists within the framework of the 'war on terror' .It constitutes a fundamental human right enshrined in several regimes that create an umbrella guaranteeing the basic judicial guarantees.
On the international level it is guaranteed by the GC during an armed conflict, notwithstanding its international or non-international character, for both the armed forces and for civilians.During detention, as a minimum, the fundamental 'laws of humanity' in the sense of the Martens Clause and Common Article 3 of the GC are applicable.This includes 'judicial guarantees which are recognized as indispensable by civilized peoples' (Article 3 (1)(d) GC).Even if one accepts the concept of unlawful combatants, the fair trial protection of the GC cannot be suspended.In times of peace the right to a fair trial is guaranteed by international human rights instruments.While they can be derogated from in times of emergency, certain minimum fair trial rights necessary to protect the non-derogable human rights continue to exist in all circumstances.Basic human rights also apply in armed conflict complementary to the IHL as lex specialis.
On the national level, the US Constitution and its Fifth Amendment are applicable even to alien citizens detained at Guantánamo Bay.
In sum, as one of the core principles of the law, the right to a fair trial can never be derogated from and must be respected in peace as well as in times of armed conflict.Thus, given its application even in extraordinary situations, it amounts to a general principle of transnational criminal law.¶ nor did al 'The Status of the Taliban: Their Obligations and Rights under International Law', 2002 Max Planck Yearbook of united nations law 6, pp.598-599; J. Toman, 'The Status of Al Qaeda/Taliban Detainees Under the Geneva Conventions', 2002 Israel Yearbook on Human rights 32, pp.285-286 (both applying Para.3); dissenting Y. Dinstein, 'Unlawful Combatancy', 2002 Israel Yearbook on Human rights 32, p. 267 applying the requirements of Para. 2 to Para. 3 and arguing that the Taliban do not fulfil the requirements of (a) to (d) since they do not wear any uniform at all; cf. also J. Callen, 'Unlawful Combatants and the Geneva Conventions', 2004 Virginia Journal of International law 44, p. 1027.Contra R. Wolfrum & C.E. Philipp, 'The Status of the Taliban: Their Obligations and Rights under International Law', 2002 Max Planck Yearbook of united nations law 6, p. 599 (stressing that the Taliban were 'distinguishable from the civilian population because they wore black turbans and had scarves indicating to which force they belonged').61 Art.16 GC III: 'Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.'(emphasis added).62 K.E.Dahlstrom, 'The Executive Policy Toward Detention and Trial of Foreign Citizens at Guantanamo Bay', 2003 berkeley Journal of International law 21, no. 3, p. 662; B. Kemper & N. Bendavid, 'U.S. grants POW status to Taliban, not Al Qaeda', Chicago Tribune, 129 M. Milanovic, Extraterritorial Application of Human rights Treaties, 2011, p. 222; M.J. Dennis, 'Application of Human Rights Treaties Extraterritorially in Time of Armed Conflict and Military Occupation', 2005 American Journal of International law 99, no. 1, p. 122 with examples in footnote 24.130 Delia Saldias de lopez v uruguay, Communication No. 52/1979, U.N. Doc.CCPR/C/OP/1(1984), p. 88, Para.12.1.131 HRC, Reports by States Parties submitted under Art.40 of the Covenant, Consideration of Reports, Iraq (1991), UN Doc.A/46/40, p. 158.132 HRC, Concluding observations: Yugoslavia (28 December 1992), UN Doc.CCPR/C/79/Add.16, pp.2-3.133 HRC, Concluding Observations: Israel (18 August 1998), UN Doc.CCPR/C/79/Add.93, p. 3.