v. Legal issues – establishment of courts and fair trial
a) Can non-state actors establish courts?
26. It follows from CA [Common Article] 3 that a soldier captured during a non-international armed conflict may not be executed without a prior judgement, pronounced by a regularly constituted court, which in the administration of justice provides those guarantees considered indispensable by civilised people. The expression “regularly constituted court” could give the impression that only a state can establish a court of this nature. Such an interpretation would also be in line with both the principle of sovereignty and the principle of legality; nullum crimen sine lege; nulla poena sine lege (no crime or punishment without law). However, the previous commentary by the International Committee of the Red Cross (ICRC) on CA 3 specified that the scope of application of the article should be as broad as possible. For example, text limiting the article to civil, colonial and religious war was not included in the final version of CA3. More detailed guidance on how the requirement of a regularly constituted court is to be interpreted was, however, not provided in the previous commentary on CA 3. Even though the wording of the article and the associated commentary do not give exact answers, guidance on how to interpret the requirement can be sought in other sources. The meaning of this term has been clarified in developments subsequent to the adoption of the Geneva Conventions in 1949, for example in the context of the APs [Additional Protocols] I-II and the Rome Statute.
27. Article 75 of AP I sets out the requirement for a court to be impartial and regularly constituted. The ICRC Commentary specifies that the additional requirement in Article 75 AP I that the court must be “impartial” serves to emphasise the importance of an impartial court, even in situations of serious armed conflict. Even though AP I regulates international armed conflicts between states, it is the opinion of the District Court that the text of the article and the ICRC Commentary indicate a change in focus from the question of how a court is established to an assessment of whether a court respects fundamental guarantees of due process. Such a change in focus is confirmed in Article 6 of AP II, which states as the sole requirement that a court must offer the necessary guarantees of independence and impartiality. The ICRC Commentary provides that the requirement for the court to be regularly constituted has here been replaced by a requirement of independence and impartiality; it was considered improbable that a non-state actor could establish a regularly constituted court. Article 8.2.c.iv of the Rome Statute similarly contains a requirement for a regularly constituted court. In the "Elements of Crime" – a non-binding commentary for the interpretation and applicability of the Rome Statute’s articles – it is stated that the reference to a regularly constituted court means a court that fulfils the fundamental requirement of independence and impartiality, and moreover that the court can guarantee all other legal rights generally recognised as indispensable in international law.
28. In addition to the above, there is also reason to refer to applicable customary international law. The ICRC has undertaken a study of the rules of customary international law. In relation to Rule 100, the study specifies that no person may be convicted or sentenced other than by means of a fair trial, respecting fundamental legal rights. In the study the ICRC discusses the procedural requirements based on customary international law, stating that the requirement that a court be regularly constituted implies that it must be constituted and established in accordance with the laws and procedural rules which apply in a specific country. However, the emphasis in the proposed rule, as in its commentary, is on the requirement for the court to be independent and impartial.
29. In his hearing before the District Court, associate professor Mark Klamberg pointed out that there is an inherent contradiction in CA 3 in that the article clearly prohibits actions involving violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture. Since the article is applicable in non-international armed conflicts, this also implies that non-state actors are required to maintain discipline in their own armed units. If the requirement for a court to be regularly constituted were to be interpreted strictly in accordance with the principle of sovereignty, it would render such control of military units impossible. According to Mark Klamberg, the implication is that a non-state actor must be able to establish courts to maintain discipline among its own units. The District Court shares Mark Klamberg’s opinion in this regard.
31. The above leads the District Court to reach the same conclusion as expressed by Mark Klamberg in his testimony. In a non-international armed conflict a non-state actor can establish courts in order to (1) maintain discipline in the actor’s own armed units and (2) to maintain law and order in a given territory which the actor is controlling, provided that the courts are staffed by personnel who were, prior to the outbreak of the conflict, appointed in accordance with the applicable rules as judges or clerks in the judiciary, and that the court applies the law that was in force before the conflict began – or at least does not apply legislation that is significantly more severe than that which was in place before the outbreak of the conflict.
b) What is implied by the requirement for independence, impartiality and fair trial
33. An independent court partly presupposes that there is a separation of power; the decision-maker should be structurally independent of other state actors to prevent unjustified involvement in the judicial process. Its function and competences should be clearly specified in law, and it should also have exclusive jurisdiction over questions within its competence. The judges’ terms of employment must be such as to protect individual judges against threats or any other external influence. With respect to the requirement of impartiality, it aims at preventing bias and to ensure that the judge does not in any other way take extraneous factors into account. Although independence and impartiality are two separate legal principles, they are mutually dependent in that they aim to ensure that the accused receives a fair trial where the judgement is not a foregone conclusion.
34. CA 3 does not specify the requirements that must be met for a trial to be considered as fair under the Convention. The provision in CA 3 that the court’s administration of justice must offer those guarantees which are considered as indispensable by civilised people, can only be understood as a reference to the requirements of a fair trial that follow from customary international law. In the main, this implies the following requirements: (1) presumption of innocence; (2) right to defence before and after trial; (3) right not to have to testify against oneself; (4) right to a trial within a reasonable period of time; (5) right to call witnesses and to present on one’s own evidence; (6) right to a public trial and public judgment and (7) right to appeal. These principles are also set out in Article 75 of AP I and Article 6 (2) of the AP II.