Edited by Ben Saul
Chapter 16: Terrorism and military trials
The geography of military commissions is curious. The most prominent state using military commissions is the United States (US), which is the focus of this chapter. They are also used in various dictatorial and authoritarian regimes around the world. At times military tribunals have been active in Israel, particularly in the occupied territories. Military courts were also notoriously used by various Latin American military governments in suppressing domestic opponents. While England also established special courts for Northern Ireland (the Diplock courts) in response to (peacetime) IRA terrorism from 1973 to 2007, these courts were staffed with civilian judges and were designed only to ensure that jurors were not endangered.1 In general, governments are tempted to use military courts because of their perceived procedural advantages: governments may be able to exercise a greater degree of executive control over the judicial process, from the appointment of judges to the rules of procedure and evidence. However, as this chapter will show, over time both international law and domestic constitutional guarantees have increasingly imposed significant constraints on a state’s freedom of action to design and utilize military trials of suspected terrorists, including because of human rights-based concerns. This chapter begins with a survey of the restrictions on military commissions imposed by international treaties and, in the case of the US, by its Constitution.
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