The Oxford handbook of international law in armed conflict
Oxford : Oxford University Press, 2014
The right to a fair trial is a fundamental human right. It ensures that no one is deprived of liberty without due process of law. The use of military commissions by the United States for the trial of ‘unprivileged enemy belligerents’ has initiated a new debate over the scope and meaning of fair trial guarantees, particularly during periods of armed conflict. The main purpose of this chapter is to chart the basic contours of fair trial guarantees as articulated in international humanitarian law (IHL) and international human rights law (IHRL). It first identifies the principal treaty provisions that guarantee the right to a fair trial during armed conflict; then it explores the concept of a "regularly constituted court" a vital element in fair trial guarantees, to move to examine the actual content of the fair trial guarantees as expressed in treaties and other instruments of international law. Finally, it explores how the normative standards of the fair trial guarantees apply in the practice of military commissions.