“Our civilian courts are well respected internationally”, Attorney General Holder continued, reiterating what he had written to US Senators two months earlier when he said that “our partners overseas… have great faith in our criminal justice system”.10“Our allies are comfortable with the formal and informal mechanisms to transfer terrorism suspects to the United States for trial in civilian court.”11He expressed the “hope” that other governments would “grow more willing to cooperate with commission trials” as the USA provided proof of their “effectiveness and fairness”. Amnesty International does not believe that any such proof will come with practice and considers that no government should offer its cooperation with trials that do not meet international standards of fairness and which discriminate in the fairness of their procedures, on the basis of national origin alone and at the arbitrary discretion of the executive. All should be urging the USA to abandon its military commission system in favour of the same form of trials which the US government would be compelled to provide its own citizens in civilian federal courts.
Amnesty International opposes the use of military commissions to try the detainees currently held at Guantánamo Bay. The UN Basic Principles on the Independence of the Judiciary state:
“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”.12
The UN Human Rights Committee has stated, in its General Comment interpreting the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR), that the trial of civilians (anyone who is not a member of a state’s armed forces) by special or military courts must be strictly limited to exceptional and temporary cases where the government can show that resorting to such trials is “necessary and justified by objective and serious reasons”, and where “with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials”.13
In a speech in May 2009, President Barack Obama had said that, “where feasible”, Guantánamo detainees would be prosecuted in civilian federal courts.14The US government has pointed to no reason showing why trials of these five detainees in federal court would be unfeasible. Only domestic politics are getting in the way. Internal affairs of a state provide no justification for a state’s failure to abide by its international obligations.15