Fair Trial
Fair Trial
Fair Trial
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STEPHANOS STAVROS*
I. INTRODUCTION
343
12. See Lawless, supra n.8, paras.12-15 and 31-38 and Ireland v. UK, supra n.8, a
paras.194-201 and 212-221.
13. See Human Rights Committee, Com.66/80 Campora Schweizer v. Uruguay A/38/40
p.117: administrative detention under "prompt security measures" would be permissibl
only where "the person concerned constitutes a clear and serious threat to society which
cannot be contained in any other manner". Also General Comment on Art.9, whic
guarantees the right to liberty and security of persons: "preventive detention was acceptabl
when necessary for reasons of ... security and while surrounded by certain safeguards".
14. See I-AC's 1978 Report on Uruguay and I-A Court's advisory opinion on Habea
Corpus in Emergency Situations OC-8/87 Ser.A, No.8.
15. See I-A Court, idem, para.22: "Since Article 27(1) envisages different situations an
since, moreover, the measures that may be taken in any of these emergencies must be
tailored to the exigencies of the situation, it is clear that what might be permissible in one
type of emergency would not be lawful in another. The lawfulness of the measures taken t
deal with each of the special situations referred to in Article 27(1) will depend, moreover,
upon the character, intensity, pervasiveness and particular context of the emergency and
upon the corresponding proportionality and reasonableness of the measures."
16. See Sorensen's opinion in Lawless, supra n.ll, at para.107: "the Government in
question will generally be in the best position to decide what measures are necessary to cop
with an emergency situation, and a margin of appreciation must therefore be left to the
government." The position was endorsed by the Court implicitly in Lawless, supra n.8
para.28 and explicitly in Ireland v. UK, supra n.8, at para.207.
17. See Greek case, supra n.11, where no margin of appreciation was accorded to th
Greek military government by the European Commission. The purely retrospective exam-
ination of the emergency measures which was adopted in that case must be contrasted with
that in Ireland v. UK, where a similar approach was expressly repudiated; see Hartman, op
cit. supra n. 1, at p.29: "it was probably the Commission's distrust of the motivations of th
Greek military Government and revulsion against its anti-democratic character that
explained the difference in the majority opinions in the Greek and Lawless cases." A simila
practice has been established by the Human Rights Committee, which has often rejecte
claims by certain governments that the situation in their countries allowed for a derogation
under Art.4 "in the light of the scarcity of the information available, the generality of th
allegations of the respondent Governments and their uncooperative attitude" and regis
tered a violation of the right to a fair trial; see Com.8/77 Weismann and Perdomo v. Uruguay
CCPR/C/OP/1, p.45, Com.4/77 Ramirez v. Uruguay, idem, p.49, Com.6/77 Sequeira v.
Uruguay, idem, p.52, Com.11/77 Motta v. Uruguay, idem, p.54, Com.28/78 Weinberger v.
Uruguay, idem, p.57, Com.32/78 Turon v. Uruguay, idem, p.61, Com.33/78 Carballal v.
Uruguay, idem, p.63, Com.44/79 Pietraroia v. Uruguay, idem, p.76, Com.52/79 Lopez
Burgos v. Uruguay, idem, p.88 and Com.64/79 De Montejo v. Colombia, idem, p.127. Th
I-AC has also disregarded similar pleas and has quite often engaged in a more or less direc
examination of compliance of emergency measures with Art.8 of the American Conven
tion, see 1981 Report on Nicaragua and response of the Nicaraguan government denying
the Commission's competence to apply the exacting standards of Art.8, as the country was
in a situation of national emergency, OAS Doc. OAE/Ser.P, AG/Doc.1369/81, 27 Oct.
1981. In the words of the Commission, the "state of siege", originally conceived as a special
measure for dangerous or emergency situations, is established into a normal state of affairs
and often abused; see e.g. 1978 Report on Paraguay, Chap.V, p.66 and 1987 Report on
Paraguay, p.44.
18. Ser.B, p.124.
19. Ser.A, No.28, para.49. Although this was neither an Art.6 nor an Art.15 case, the
statement was cast in sufficiently general terms to permit the deduction of a general
principle applicable to the issue under examination.
20. I-A Court, op. cit. supra n.14, at para.24.
21. See 1968 Resolution on the Protection of Human Rights in Connection with the
Suspension of Constitutional Guarantees or "State of Siege", 1978 Report on Uruguay and
1980 Report on Argentina.
22. See E/CN.4/SR.126, pp.4 and 5. Faced with French and US proposals to include the
right to "a fair and public trial" in the list of non-derogable rights under the Covenant, the
UK delegate observed that respect for the right to a public trial might be impossible during
wartime.
case of the European Convention and the Covenant,23 the vote was taken
on the basis of a summary description of the fair trial guarantee, where
emphasis was placed on the right to a "fair and public trial",24 the right "in
full equality to a fair and public hearing by an independent and impartial
tribunal" and the right "to be presumed innocent until proved guilty
according to law in a public trial".25 Thus, it might be clear from the
travaux preparatoires that States parties were not prepared to accept an
obligation to afford a fully judicial procedure before a court of law sitting
in public. However, a common understanding does not emerge there-
from that there exist emergency situations where any obligation to afford
due process would be an unsustainable encumbrance.
This view is supported to a certain extent by the recent inclusion of one
fair trial guarantee, the non bis in idem principle, in the list of non-
derogable rights at the European level.26 The right is guaranteed under
Article 14 of the Covenant, a derogable provision which has been ratified
by a great number of European States.
These indications are, however, speculative. If it were not for the
corroborating evidence provided by a different but connected branch of
international law, humanitarian law, it could well be argued that a mini-
mum floor of due process acceptable to all States parties does not exist.
23. The position is different under the American Convention where a proposal by the US
to include Art.8, as it now stands, in the list of non-derogable rights was defeated; see T.
Buergenthal and R. Norris, Human Rights, The Inter-American System, Oceana 1982-, Part
II, Chap.I, p.137.
24. See French and US alternative proposals under the Covenant, UN Doc.E/CN.4/324
(1949) and 325 (1949).
25. Art.8(2) of Alternative B of the European Convention; see Council of Europe,
Collected Edition of the Travaux Preparatoires, Vol.2, pp.458, 459.
26. See Seventh Protocol Additional to the European Convention on Human Rights,
Art.4.
27. At 31 Dec. 1991 167 States had ratified the four Geneva Conventions.
28. 1949 Geneva Convention I for the Amelioration of the Condition of Wounded and
Sick in Armed Forces in the Field, 1949 Geneva Convention II for the Amelioration of the
Condition of Wounded and Sick and Shipwrecked Members of Armed Forces at Sea, 1949
Geneva Convention III Relating to the Treatment of Prisoners of War, 1949 Geneva
Convention IV Relating to the Protection of Civilian Persons in Times of War.
29. The remaining provisions of the Conventions apply to conflicts of an international
character. For a definition of the terms, see Art.2 of the four Geneva Conventions. See also
Schindler, "The Different Kinds of Armed Conflicts According to the Geneva Conventions
and Protocols" (1979) II Hag. Rec. 117-164.
30. The scope of applicability of common Art.3 was discussed extensively in the Diplo-
matic Conference which drafted the Conventions and continues to be a most contentious
issue, with States parties trying to restrict its operation as far as possible. Practice on the
matter is still very scant, Art.3 not having been recognised as functional in many non-
international armed conflicts which have occurred after the adoption of the Geneva Con-
ventions; see Bond, "Internal Conflicts and Article 3 of the Geneva Conventions" (1971) 48
Denver L.J. 263.
31. A similar argument is drawn by Jimenez de Arechaga, the former President of the
Inter-American Commission of Human Rights, from Art.75 of the 1977 Geneva Protocol I,
which guarantees fair trial rights in international conflicts; see I.C.J. study, supra n.6
However, the customary international law value of this instrument is not clear; see infra
n.40.
32. See Commentary on Geneva Convention IV (1952), p.36: "What Government would
dare to claim before the world, in a case of civil disturbances which could be described as
mere acts of banditry, that Article 3 not being applicable, it was entitled to leave the
wounded uncared for, to torture and mutilate prisoners and take hostages?"
33. Military and Paramilitary Activities in and against Nicaragua (Merits Judgment) I.C.J.
Rep. 1986, para.219.
34. See Meron, "The Geneva Conventions as Customary Law" (1987) 81 A.J.I.L. 348.
35. The exceptions are very few; see Part II of Geneva IV, Art.70 of Geneva IV and
Art.12 of Geneva I and II.
36. In any event it must be observed that the pronouncements of the Court in Nicaragua
v. US were made in respect of a factual situation which differed significantly from a situation
where a State involved in an international conflict decides to limit the due process rights of
its nationals. The Court convicted the US of a violation of humanitarian law in that it
disseminated a manual which induced the Contra fighters to violate the, fair trial rights of
fellow Nicaraguans; see idem, paras.255-256. The Court found that the relationship be-
tween the US and the Contras was such that the violations of humanitarian law committed
by the Contras in Nicaragua could not be attributed to the US; paras.l15-116 and 216. The
US at the most could be impugned for inducing the Contras to violate an obligation
incumbent on them by virtue of the rules applicable in non-international conflicts, i.e.
Art.3: para.220. However, even if we were to accept that the Contra forces acted on behalf
of the OS, the denial of due process rights to the Nicaraguans could be seen only as a
violation of the provisions of Geneva IV guaranteeing the right to a fair trial to protected
persons in occupied territories.
37. The Protocol applies in the situations referred to in Art.20 of the four Geneva
Conventions which, according to the Protocol, include "armed conflicts in which peoples
are fighting against colonial domination and alien occupation and against racist regimes in
the exercise of their right to self-determination"; see Art.1(3) and (4) of Protocol I.
38. Bothe, Partch and Solf, New Rules for Victims ofArmed Conflict (1982), pp.458-460.
What is, however, the content of this minimum floor of due process for
emergency situations? Common Article 3, on the basis of which the
existence of this minimum floor was inferred, is rather vague. It speaks of
the judicial guarantees which are recognised as "indispensable by civil-
ised people".
A rather more detailed non-derogable right to a fair trial is, on the
other hand, guaranteed by the Geneva Conventions for prisoners of
war,41 for certain aliens in the territory of a party to the conflict, and for
39. See Meron, "On the Inadequate Reach of Humanitarian and Human Rights Law and
the Need for a New Instrument" (1983) 77 A.J.I.L. 589, who argues that "the object of the
Diplomatic Conference that drew up Protocol I was not to revise the entire range of human
rights that would otherwise apply between a government and its people". The guarantee of
Art.75, according to its legislative history, applies "to certain categories of persons espe-
cially affected by the conflict such as collaborators, deserters and all the nationals of State A
who serve in the forces of adverse State B". Is not, however, the association of these persons
with the "enemy" analogous with the association with the IRA of the persons whose due
process rights were limited in Ireland v. UK?
40. At 31 Dec. 1991, 107 States had ratified Protocol I.
41. Geneva Convention III, Arts.86, 87, 99 and 103-107.
42. "Protected persons" is a term of art. It denotes individuals "who, at a given moment
and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the
hands of a Party to the conflict or Occupying Power of which they are not nationals"; see
Art.4 of Geneva IV.
43. See Arts.71-74 of Geneva IV, applying in the case of protected persons in occupied
territories, and Art.126 of Geneva IV, rendering these provisions applicable to aliens
interned in the national territory of the party to the conflict.
The case law of the Israeli courts is rich in examples where international standards have
been used to measure the adequacy of the protection afforded by national law to accuse
persons tried in the occupied territories. Although the Israelis claim that Geneva IV doe
not apply in these territories, they accord the Palestinians all the minimum rights set therein.
See e.g. HC 87/85 Arjov et al. v. Commander of IDF Forces in the Judaea and Samaria
Region et al. (1988) 18 Is. Y.H.R. 255, where an Israeli court found that the right of appeal
on judgments of military courts in occupied territories was guaranteed neither under
international human rights law nor under humanitarian law. It is noteworthy that the cour
referred to Lawless to draw a fortiori an argument in favour of the application of the
derogation clause in the situation applying in the occupied territories.
44. See Meron, op. cit. supra n.39, at p.592.
45. The Protocol applies in armed conflicts which are not governed by Art. 1 of Protocol I
and which "take place in the territory of a High Contracting Party between its armed force
and dissident armed forces or other organised armed groups which, under responsibl
command, exercise such control over a part of its territory as to enable them to carry ou
The first right which appears in both lists of safeguards is the right to a
hearing before an independent and impartial tribunal.46 According to
many of the non-governmental organisations and experts who support
the non-derogability of certain fair trial guarantees, the right is seriously
imperilled by the displacement of ordinary courts by special emergency
or military tribunals with competence over offences committed by
civilians.47 The view appears to be shared by both the Human Rights
Committee and the Inter-American Commission. As already noted,
these organs have been careful never to pronounce a blanket prohibition
on such proceedings. However, they have not failed to recognise the
potential for abuses involved in their establishment.
The Human Rights Committee has observed that "quite often the
reason for the establishment of such courts is to enable exceptional
sustained and concerted military operations and to implement Protocol II". However, it
does not "apply to situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence and other acts of a similar nature, as not being armed
conflicts"; see Art. 1 Protocol II. Although its field of application appears more restrictive
than that of common Art.3, this does not undermine the relevance of Art.6 of the Protocol
for all emergency situations. The a fortiori argument raised supra n.31, applies here as well.
At 31 Dec. 1991 Protocol II had been ratified by 97 States.
46. "Impartial and regularly constituted court" under Art.75 and "a court offering the
essential guarantees of independence and impartiality" under Art.6.
47. See I.C.J., op. cit. supra n.6, at Recom.7: "the trial of civilians in military courts is
never strictly required so long as civilian courts remain functioning. The reasons invoked for
transferring jurisdiction are never of sufficient gravity to preclude less onerous alternatives;
military trials are always accompanied by the infringement of a host of defence rights";
Syracuse Principles, supra n.6, at 70(f): "civilians shall normally be tried before the ordinary
courts; where it is found strictly necessary to establish military or special courts to try
civilians their competence, independence and impartiality shall be ensured and the need for
them reviewed periodically by the competent authority"; also Questiaux, op. cit. supra n.6,
at para. 192: "proceedings dominated in their entirety by the military might render the right
to a fair trial non-existent".
48. General Comment, para.4. In the everyday practice of the Committee the operation
of such courts is subjected to the closest scrutiny; see examination of the periodic reports of
Chile A/34/40, A/39/40 and A/40/40, El Salvador A/39/40, Madagascar A/33/44, Syria
A/34/40, Surinam A/35/40, Nicaragua A/38/40, Egypt A/39/40, Senegal A/35/40 and
A/42/40 and Zaire A/42/40.
49. See 1973 Annual Report.
50. See also I.C.J., I.L.A. and Syracuse Principles, all supra n.6.
51. A distinction is usually drawn between functional and personal independence. The
first refers to actual freedom in the exercise of judicial duties, while the latter refers to the
guarantees surrounding the professional security of a judge protecting him from external
influences; see Singvi, Study on the Independence of the Judiciary, commissioned by the UN
Sub-Commission on the Prevention of Discrimination and the Protection of Minorities,
E/CN4/Sub.2/1985/18.
52. See also I.C.J., op. cit. supra n.6, at Recom.8: "the use of emergency powers to
remove judges, alter the structure of the judicial branch, or otherwise restrict the indepen-
dence of the judiciary should be expressly prohibited in the Constitution".
53. The need for such guarantees is highlighted by the pattern of abuses recorded by ibid.
54. The right to "have the judgment pronounced publicly" is guaranteed under Art.75(4)
(j) of Protocol I.
55. Cf. Questiaux, op. cit. supra n.6, who considers the attendance of trials by relatives
and representatives of NGOs as one of the three minimum safeguards to be guaranteed in all
emergency situations.
56. See 1974 Report on Chile and 1981 Report on Colombia, p.143.
57. See, however, all op. cit. supra n.6, where this right is guaranteed.
58. App. Nos.7572/76, 7586/76 and 7587/76 Ensslin Baader and Raspe v. FRG 14 D. & R.
64.
59. Ibid. The need for professional assistance is particularly acute when the accused is
detained on remand; see Commission's opinion in Can v. Austria, Ser.A, No.96.
60. See Weismann and Perdomo, supra n.17, Com.110/81 Acosta v. Uruguay A/39/40,
p.154, Lopez, supra n.17, Com.73/80 Izquierdo v. Uruguay CCPR/C/OP/1, p.132,
Com.56/79 Celiberti de Caseriejo, idem, p.92, Com.63/79 Setelich v. Uruguay, idem, p.101,
Com.74/80 Estrella v. Uruguay A/38/40, p.150. See also I-AC's 1980 Report on Argentina,
p.223 and 1983 Report on Cuba.
61. See examination of the periodic report of the UK under the Covenant, A/40/40,
where the UK government maintained that the Diplock courts complied with Art.14(3)(g)
of the Covenant, which guarantees this freedom. For a different view see Korff, The
Diplock Courts in Northern Ireland, a Fair Trial?, study commissioned by Amnesty Inter-
national, S.I.M. Special No.3.
62. 1983 Report on Guatemala.
63. For the same line see GA Res.43/173, Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, Principle 21, and UN Convention
against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
Art. 15.
64. See Unterpertinger v. Austria Ser.A, No.110, Bricmont v. Belgium Ser.A, No.158,
and Delta v. France Ser.A, No.191.
65. Protocol I, on the other hand, provides in Art.75(4)(g) for the right of the accused "to
examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him".
66. See Report of the Commission to Consider Legal Procedures to Deal with Terrorist
Activities in Northern Ireland (Diplock Report), Dec. 1972, Cmnd.5185; for comment see
Twining, "Emergency Powers and Criminal Process: The Diplock Report" (1973)
Crim.L.R. 406.
67. Direct cross-examination of persons whose statements are used to convict th
accused is necessary to enable the defence to demonstrate prejudice, hostility or unreliabi
ity; see European Court of Human Rights in Bricmont, supra n.64, at para.81 and Kostovs
v. Netherlands Ser.A, No.166, paras.42-43.
68. See Sorensen's opinion, Commission's report on Lawless, supra n.ll.
69. See 1981 Report on Colombia, conclusion 3.
70. See 1983 Report on Guatemala, Recom.2, p.133, 1974 Report on Chile, Recom.2b
and 1981 Report on Nicaragua, Recom.5.
For a similar position see Protocol II, Art.6(5): "At the end of hostilities, the authorities
in power shall endeavour to grant the broadest possible amnesty to persons who have
participated in the armed conflict, or those deprived of their liberty for reasons related t
the armed conflict, whether they are interned or detained."
71. Arts.17 of the Convention and 5 of the Covenant provide in similar terms that
"Nothing in [the two instruments] may be interpreted as implying for any State ... any right
to engage in any activity or perform any act aimed at the destruction of any of the rights an
freedoms set forth [therein] or at their limitation to a greater extent than is provided for in
[the two instruments]."
72. Protocol No.6 Additional to the European Convention, which aims to outlaw the
death penalty, does not apply in times of war. Some limitations, however, on the use b
States of the death penalty have been imposed by the European Court in Soering v. UK
Ser.A, No.161. The Court found that the imposition of the death penalty under certain
circumstances could amount to inhuman or degrading treatment or punishment prohibite
under Art.3.
They must also retain the power to order the presence of the detainee
before them. Thus, in addition to providing a powerful disincentive
against abusive detentions, the non-derogable right to habeas corpus
proceedings could prove instrumental in ensuring effective respect for the
detainee's non-derogable rights to life and personal integrity.
The same aim appears to be served by the recognition of a right to legal
assistance for all detainees. The Inter-American Commission has made
significant steps towards the recognition of the non-derogable character
of this right. In its 1978 Report on Paraguay it affirmed the competence of
the court to enquire into whether a detainee had the benefit of legal
advice as part of his non-derogable right to habeas corpus. In its 1979
Report on Chile it called for access to counsel for all persons detained
during the emergency. The Human Rights Committee has also registered
violations in respect of incommunicado detention under specialemer-
gency measures.85
However, it can be assumed that governments, which regard secrecy as
indispensable for the success of some preliminary investigations, will
resist the recognition of a right of access to counsel upon arrest.86 Thi
84. Habeas Corpus in Emergency Situations, supra n.14, para.35. For an identical line
taken by the I-AC, see 1978 Report on Paraguay, p.68 and 1985-1986 Annual Report in
connection with the derogation of Nicaragua.
The I-A Court appears to take a stauncher stance than the Principles for the Protection of
All Detainees, supra n.63, which provide for the right to challenge the lawfulness of one's
detention "before a judicial or other authority"; see Principle 32(1). See also (all op. cit.
supra n.6) Questiaux, p.45, I.C.J., Recom.22 and I.L.A., Art.5(3).
85. See Ramirez, Sequeira and Carballal, all supra n.17, where the applicants had been
detained under "Prompt Security Measures" without charges. The fact, however, that the
Committee rejected the respondent government's defence of the existence of an emergency
situation could have coloured these findings.
Such a right is also guaranteed under the Principles for the Protection of All Detainees,
supra n.63, see Principles 17 and 18, and under Standard Minimum Rules for the Treatment
of Prisoners, ECOSOC Res.663(XXIV), see r.93. The two resolutions make no distinction
between normal and emergency situations.
86. See, however, I.C.J., op. cit. supra n.6, at Recom.23, and I.L.A., op. cit. supra n.6,
at Art.5(2)(b), where the recognition of such a right is advocated.
97. The European Court does not appear to consider the presence of judges as a
necessary prerequisite of the independence of a quasi-judicial body; see H. v. Belgium
Ser.A, No.127. However, it has never pronounced the independence of a body composed in
its entirety of civil servants, see Sramek and Ettl, ibid.
98. For a similar line see ICRC Commentary, op. cit. supra n.32, at p.39: "All civilised
nations surround the administration of justice with safeguards aimed at eliminating the
possibility of judicial errors. The Convention rightly proclaimed that it is essential to do this
even in time of war." However, "it is only summary justice which it is intended to prohibit,
there is nothing in [common Art.3] to prevent a person presumed to be guilty from being
arrested and so placed in a position where he can do no further harm".
99. See 1980 Report on Argentina.
100. 1981 Report on Nicaragua; see also 1976 Annual Report.