Human Rights First Statement on Military Commissions

THE U.S. SHOULD BUILD ON AN EXISTING INTERNATIONAL TRIBUNAL TO TRY POTENTIAL AL QAEDA OR TALIBAN SUSPECTS
Suspects in or extradited to U.S. should be tried in U.S. courts

As the U.S. Senate holds its hearing on the range of issues relating to aftermath of the brutal events of September 11, Human Rights First calls on the U.S. government and the international community to consider the range of options in trying crimes of the Taliban and al Qaeda members.

Human Rights First adamantly opposes the use of military commissions and urges the Bush Administration to revoke the executive order that established them (statement attached). However, we do recognize the urgent need to develop alternative approaches to deal with suspects. The following are our recommendations:

§         Suspects in or extradited to U.S. from Europe and elsewhere should be tried in U.S. courts.  In recent years, the U.S. federal courts have successfully prosecuted similar cases and obtained key information which has helped U.S. law enforcement efforts.

§         The international community should build on an existing international criminal tribunal – the International Criminal Tribunal for the Former Yugoslavia (ICTY) which is now trying Slobodan Milosevic -- to try al Qaeda or Taliban suspects.  An international criminal tribunal built upon existing structures is more practical and politically wise than other options (list below).

AN INTERNATIONAL TRIBUNAL TO TRY AL QAEDA OR TALIBAN SUSPECTS

To expand on the ICTY in this way, the international community would establish a trial chamber and prosecutor’s office in the Middle East or in South or Central Asia; this is what was done when the Rwanda Tribunal was established in Arusha, Tanzania.

Appeals would go to the Appeals Chamber in The Hague, where a supervising prosecutor would also be based.  A tribunal built on the ICTY has the following advantages:

§         Expertise.  The ICTY already includes Muslim and American judges. The expertise that resides in the ICTY would lend great efficiency to establishing a tribunal to try Al Qaeda members.

§         Protection of sensitive intelligence. ICTY indictments are regularly built upon intelligence information provided by NATO and the United States. Recognized procedures exist to balance the protection of such information with the need to respect the rights of the accused.

§         Provides an international, cooperative venue.  This tribunal could try suspects found in third countries, giving governments the option of transferring cases to international hands.  This avoids situations where cases might create security fears or rouse strong feelings among the public at home. This tribunal could try al Qaeda crimes in a number of countries and crimes in Afghanistan under the Taliban or during other conflicts. 

§         A foundation already exists.  Security Council resolutions already lay the foundation for such a tribunal by characterizing the activities of Al Qaeda and the Taliban as threats to international peace and security.  Security Council authority would require all UN member states to cooperate with such a tribunal. In addition, expanding on the ICTY would be faster and less expensive than setting up a fully autonomous Security Council tribunal. With political will and committed resources, such a tribunal could be up and running within months.

§         Jury safety not an issue.  The Bush Administration cited the safety of juries as one of the reasons for creating military commissions.  International tribunals do not use juries.  They use a panel of three judges.

Less Effective Options

§         A fully autonomous international tribunal outside of the existing structure of the tribunal for the former Yugoslavia poses great problems of delay and cost.

§         A Lockerbie-type Tribunal would be an exclusively U.S. court without the added legitimacy of an institution set up by the international community. The tribunal that tried suspects in the Pan Am 103 bombing over Lockerbie, Scotland was a Scottish court applying Scottish law while sitting in the ‘neutral third Country’ of the Netherlands.

§         A Nuremberg-type Tribunal like the one that tried Nazi leaders. This was tribunal was a joint military tribunal of the four powers occupying Germany after the Second World War; while Britain, the U.S. and others might agree to establish such a tribunal today, it would be perceived as dispensing the ‘victor’s justice’ of a limited group of states.

§ A Special Chamber of a UN transitional administration in Afghanistan could be established to try Al Qaeda and Taliban crimes as part of the long-term effort to establish the rule of law in Afghanistan; this option is premature.