The use of military courts to try suspects

International and Comparative Law Quarterly

Volumn 51, Issue 4, 2002, Pages 967-979

  Rogers, Apv ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 84925168968     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/51.4.967     Document Type: Article

References (40)

1. The Department of Defence Military Commission Order No 1 of 21 Mar 2002, however, requires a unanimous decision by a seven-member commission for a death sentence.
2. It seems that this does not preclude judicial review in civilian courts: Alberto R Gonzales, Martial Justice, Full and Fair, US Department of State web-site, 30 Nov 2001.
3. Law of the Constitution (10th edn), 424.
4. Manchester Corporation v Manchester Palace of Varieties Ltd [1955] p 153.
5. Hansard, vol 95, col 880.
6. Judgment of 19 Dec 2001. This case concerned the deaths in 1999 at the Radio-Television Serbia headquarters in Belgrade as a result of NATO bombing. The court took the view that the convention did not apply extra-territorially in the absence of effective control of territory and its inhabitants abroad.
7. Geneva Convention III of 1949, Art 84.
8. Geneva Convention IV of 1949, Arts 64–76.
9. In this section heavy reliance has been placed on RFV Heuston, Essays in Constitutional Law, 2nd edn (London: Stevens, 1964).
10. The Case of Wolfe Tone (1798) 27 St Tr 614.
11. [1902] AC 109.
12. [1921] 2 LR 241.
13. [1921] 1 LR 265.
14. A.P.V. Rogers, War crimes trials under the Royal Warrant: British practice, 1945–1949, 39 (1990) ICLQ, 780, at 787.
15. [1947] KB 41.
16. Rogers, KB, 788–91.
17. KB,789–90.
18. Geneva Conventions Act 1957, s 1A
19. as inserted by the International Criminal Court Act 2001, s 70(2).
20. This is drawn from D Hughes-Morgan, Compliments, vodka and base motives, to be published in the Military Law Journal, the in-house journal of Army Legal Services, in 2002.
21. In Article of War 15 and later in Art 21 of the Uniform Code of Military Justice.
22. Report and recommendations on military commissions of the American Bar Association Task Force on Terrorism and the Law, 4 Jan 2002.
23. In the Civil War case of Ex Parte Milligan, 71 US 2 (1866), it was held that a military commission could not exercise law of war jurisdiction over a citizen of Indiana, where the courts were open and their process unobstructed, who was not a resident of one of the rebellious states and had never served in military or naval forces.
24. See, eg, Gonzales, US
25. Ruth Wedgwood, Prosecuting Al Qaeda, 7 Dec 2001, on the American University Crimes of War web site.
26. Independent, London, 13 Mar 2002 on the battle of Shah-i-Kot; BBC news report of 9 Apr 2002 about a force of 1700 Royal Marines being assembled for a full-scale mission against al Qaida.
27. Joel B Grossman, Careless with the Constitution? The problem with military tribunals, 29 Nov 2001, on the FindLaw's Writ web site.
28. Jordan J Paust, Military commissions: some perhaps legal, but most unwise, 14 Nov 2001, on the Jurist web site.
29. Tried at Yokohama on 18 July 1947.
30. Evan J Wallach, Prosecuting Al Qaeda, 21 Dec 2001 on the Crimes of War web site.
31. Michael Ratner, Prosecuting Al Qaeda, 13 Dec 2001 on the Crimes of War web site.
32. Geneva Convention III of 1949, Arts 84, 102, and 106.
33. GC III, Arts 21 & 118.
34. See GC III, Art 119.
35. Aryeh Neier, ‘The military tribunals on trial’, New York Review of Books, 14 Feb 2002.
36. Jeffrey K Walker, Prosecuting Al Qaeda, 14 Dec 2001 on the Crimes of War web site.
37. See also Jordan J Paust, Prosecuting Al Qaeda, on this point.
38. American Bar Association Task Force report, Prosecuting Al Qaeda.
39. European Court of Human Rights Judgment of 21 Jan 1997, case number 110/1995/616/706. The reforms mentioned below were put in place prior to the judgment.
40. European Court of Human Rights, Chamber Judgment of 26 Feb 2002.