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date: 20 January 2021

Abstract and Keywords

As a fundamental human right, the right to a fair trial ensures that no one is deprived of liberty without due process of law. The scope and meaning of fair trial guarantees, especially during periods of armed conflict, has become controversial in light of the United States’ use of military commissions for the trial of ‘unprivileged enemy belligerents’. This chapter explores fair trial guarantees as articulated in international humanitarian law (IHL) and international human rights law (IHRL). It first provides an overview of the principal treaty provisions that guarantee the right to a fair trial during armed conflict before turning to the concept of a ‘regularly constituted court’ as a vital element in fair trial guarantees. It then considers derogation from fair trial guarantees under IHL and IHRL, as well as the universal application of fair trial rights. Finally, it discusses how the normative standards of the fair trial guarantees apply in the practice of military commissions established by the United States in the context of the ‘War on Terror.’

Keywords: fair trial, armed conflict, United States, military commissions, unprivileged enemy belligerents, international humanitarian law, international human rights law, regularly constituted court, derogation, War on Terror

David Weissbrodt

David Weissbrodt is the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota, United States. He is also the Co-Director of the Human Rights Center and Human Rights Library at the University of Minnesota.

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