US Military Courts Breach International Obligations, UN Rights Expert Warns
New York, Oct 27 2006 10:00AM
The Military Commissions Act (MCA) signed into law by President George Bush earlier this month violates the
international obligations of the United States under human rights laws in several areas, including the right to
challenge detention and to see exculpatory evidence, a United Nations expert on terrorism said
“A number of provisions of the MCA appear to contradict the universal and fundamental principles of fair trial standards
and due process enshrined in Common Article 3 of the Geneva Conventions,” the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, said in a statement
issued in Geneva.
Special Rapporteurs are unpaid and serve in a personal capacity, reporting to the UN
Human Rights Council. Mr. Scheinin requested that the US Government invite him for a visit “in the very near future” to
discuss his concerns.
“One of the most serious aspects of this legislation is the power of the President to declare anyone, including US
citizens, without charge as an ‘unlawful enemy combatant’ – a term unknown in international humanitarian law – resulting
in these detainees being subject to the jurisdiction of a military commission composed of commissioned military
officers, he said.
At the same time, the material scope of crimes to be tried by these commissions is much broader than war crimes in the
meaning of the Geneva Conventions, he noted.
“Further, in manifest contradiction with article 9, paragraph 4 of the International Covenant on Civil and Political
Rights, the MCA denies non US citizens (including legal permanent residents) in US custody the right to challenge the
legality of their detention by filing a writ of habeas corpus, with retroactive effect,” he added
“Another concern is the denial of the right to see exculpatory evidence if it is deemed classified information which
severely impedes the right to a fair trial.”
An added concern is that some Governments may view certain aspects of this legislation as an example to be followed in
respect of their national counter-terrorism legislation, since the US has taken a lead role on countering terrorism
since the 11 September 2001 terrorist attacks on New York and Washington, he stressed.
Mr. Scheinin said that during a visit he would also like to discuss other rights concerns such as the Patriot Act,
immigration laws and policies, secret detention centres, rendition flights (to countries where detainees might face
torture), breaches of non-refoulement (deportation) and the Government’s denial of extra-territorial human rights
Last month, five other UN human rights rapporteurs rejected US denials that people were tortured at the Guantánamo
detention centre and reiterated calls that it be closed down.