Selected Procedural Safeguards in Federal, Military, and International Courts
Released: 2006-09-18T00:00:00

Declaring it necessary to bring to justice those responsible for the terrorist attacks on the United States of September 11, 2001, President Bush signed a Military Order (M.O.) authorizing the trial by military commission of certain non-citizens. The order directed the Secretary of Defense to establish the procedural rules for the operation of the military commissions convened pursuant to the M.O. The Department of Defense implemented regulations and convened commissions; however, one of the accused petitioned for habeas corpus in federal district court and the Supreme Court invalidated the regulations as inconsistent with the Uniform Code of Military Justice (UCMJ ) and the Geneva Conventions.

This report provides a brief overview of procedural rules applicable in selected historical and contemporary tribunals for the trials of war crimes suspects. The chart that follows compares selected procedural safeguards employed in criminal trials in federal criminal court with parallel protective measures in military general courts-martial, international military tribunals used after World War II, including the International Military Tribunal (IMT or "Nuremberg Tribunal"), and the International Criminal Courts for the former Yugoslavia (ICTY) and Rwanda (ICTR). The chart identifies a selection of basic rights in rough order of the stage in the criminal justice process where they might become most important. The text of the chart indicates some of the procedural safeguards designed to protect these rights in different tribunals. Recognizing that fundamental fairness relies on the system of procedural safeguards as a whole rather than individual rules, the chart is intended only as an outline to compare some of the rules different courts and tribunals might use to safeguard certain rights.

U.S. Courts and Military Tribunals

The Constitution imposes on the government a system of restraints to provide that no unfair law is enforced and that no law is enforced unfairly. What is fundamentally fair in a given situation depends in part on the objectives of a given system of law weighed alongside the possible infringement of individual liberties that system might impose. In the criminal law system, some basic objectives are to discover the truth, punish the guilty proportionately with their crimes, acquit the innocent without unnecessary delay or expense, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the armed forces, serving the overall objective of providing an effective national defense. The equation for international criminal law may also consider foreign policy elements as well as international law and treaty obligations.

The Fifth Amendment to the Constitution provides that "no person shall be ... deprived of life, liberty, or property, without due process of law." Due process includes the opportunity to be heard whenever the government places any of these fundamental liberties at stake. The Constitution contains other explicit rights applicable to various stages of a criminal prosecution. Criminal proceedings provide both the opportunity to contest guilt and to challenge the government's conduct that may have violated the rights of the accused. The system of procedural rules used to conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional rights that take place outside the courtroom.

The Bill of Rights applies to all citizens of the United States and all aliens within the United States. However, the methods of application of constitutional rights, in particular the remedies available to those whose rights might have been violated, may differ depending on the severity of the punitive measure the government seeks to take and the entity deciding the case. The jurisdiction of various entities to try a person accused of a crime could have a profound effect on the procedural rights of the accused. The type of judicial review available also varies and may be crucial to the outcome.

International law also contains some basic guarantees of human rights, including rights of criminal defendants and prisoners. Treaties to which the United States is a party are expressly made a part of the law of the land by the Supremacy Clause of the Constitution, and may be codified through implementing legislation. International law is incorporated into U.S. law. The law of war, a subset of international law, applies to cases arising from armed conflicts (i.e., war crimes). It is unclear exactly how the law of war applies to the current hostilities involving non-state terrorists, and the nature of the rights due to accused terrorist/war criminals may depend in part on their status under the Geneva Conventions. The Supreme Court has ruled that Al Qaeda fighters are entitled at least to the baseline protections applicable under Common Article 3 of the Geneva Conventions, which includes protection from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Federal Court

The federal judiciary is established by Article III of the Constitution and consists of the Supreme Court and "inferior tribunals" established by Congress. It is a separate and co-equal branch of the federal government, independent of the executive and legislative branches, designed to be insulated from the public passions. Its function is not to make law but to interpret law and decide disputes arising under it. Federal criminal law and procedures are enacted by Congress and housed primarily in title 18 of the U.S. Code. The Supreme Court promulgates procedural rules for criminal trials at the federal district courts, subject to Congress's approval. These rules, namely the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of Evidence (Fed. R. Evid.), incorporate procedural rights that the Constitution and various statutes demand. The chart cites relevant rules or court decisions, but makes no effort to provide an exhaustive list of authorities.

General Courts-Martial

The Constitution, in order to provide for the common defense, gives Congress the power to raise, support, and regulate the armed forces, but makes the President Commander-in-Chief of the armed forces. Article III does not give the judiciary any explicit role in the military, and the Supreme Court has taken the view that Congress' power "[t]o Make Rules for the Government and Regulation of the land and naval Forces" is entirely separate from Article III. Therefore, courts-martial are not considered to be Article III courts and are not subject to all of the rules that apply in federal courts.

Although military personnel are "persons" to whom the Bill of Rights applies, in the military context it might be said that discipline is as important as liberty as objectives of military justice. Also, the Constitution specifically exempts military members accused of a crime from the Fifth Amendment right to a grand jury indictment, from which the Supreme Court has inferred there is no right to a civil jury in courts-martial. However, in part because of the different standards provided in courts-martial, their jurisdiction is limited to those persons and offenses the military has a legitimate interest in regulating. Courts-martial jurisdiction extends mainly to service members on active duty, prisoners of war, and persons accompanying the armed forces in time of declared war, as well as certain violators of the law of war.

Congress regulates the armed forces largely through title 10 of the U.S. Code, which contains as Chapter 47 the Uniform Code of Military Justice (UCMJ) regulating the system of military courts-martial. The Supreme Court has found the procedures Congress set through the UCMJ to provide adequate procedural safeguards to satisfy constitutional requirements and the interest in maintaining a strong national defense.

Congress has delegated to the President the authority to make procedural rules for the military justice system. The President created the Rules for Courts-Martial (R.C.M.) and the Military Rules of Evidence (Mil. R. Evid.) pursuant to that delegation. The comparison chart will cite provisions of the UCMJ and the applicable rules, as well as military appellate court opinions as applicable.

Defendants are not able to appeal their courts-martial directly to federal courts, but may seek relief in the form of a writ of habeas corpus, although review may be limited. However, Congress has provided for a separate system of reviewing convictions by court-martial, which includes a civilian appellate court. In cases in which the convening authority approves a sentence of death, or, unless the defendant waives review, approves a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement for one year or more, the Court of Criminal Appeals for the appropriate service must review the case for legal error, factual sufficiency, and appropriateness of the sentence.

The Court of Appeals for the Armed Forces (CAAF) exercises appellate jurisdiction over the services' Courts of Criminal Appeals, with respect to issues of law. The CAAF is an Article I court composed of five civilian judges appointed for 15-year terms by the President with the advice and consent of the Senate. Its jurisdiction is established in Article 67 of the UCMJ (10 U.S.C. § 867), and is discretionary except in death penalty cases.

Military Commissions

The Constitution empowers the Congress to declare war and "make rules concerning captures on land and water," to define and punish violations of the "Law of Nations," and to make regulations to govern the armed forces. The power of the President to convene military commissions flows from his authority as Commander in Chief of the Armed Forces and his responsibility to execute the laws of the nation. Under the Articles of War and subsequent statute, the President has at least implicit authority to convene military commissions to try offenses against the law of war. There is, therefore, somewhat of a distinction between the authority and objectives behind convening military courts-martial and commissions. Rather than serving the internally directed purpose of maintaining discipline and order of the troops, the military commission is externally directed at the enemy as a means of waging successful war by punishing and deterring offenses against the law of war.

Jurisdiction of military commissions is limited to time of war and to trying offenses recognized under the law of war or as designated by statute. While case law suggests that military commissions could try U.S. citizens as enemy belligerents, the Military Order of November 13, 2001 limits their jurisdiction to non-citizens.

As non-Article III courts, military commissions are not subject to the same constitutional requirements that are applied in Article III courts. Congress has delegated to the President the authority to set the rules of procedure and evidence for military tribunals, applying "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district court" insofar as he considers it practicable. The rules "may not be contrary to or inconsistent with the UCMJ" and must be uniform insofar as practicable with courts-martial.

The United States first used military commissions to try enemy belligerents accused of war crimes during the occupation of Mexico in 1847, and made heavy use of them in the Civil War. However, prior to the President's Military Order, no military commissions had been convened since the aftermath of World War II. Because of the lack of standards of procedure used by military commissions, it is difficult to draw a meaningful comparison with the other types of tribunals. For a comparison of the Department of Defense rules for military commissions that were struck down in Hamdan to recent legislative proposals, see CRS Report RL31600, The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice , by [author name scrubbed].

International War Crimes Tribunals

Prior to the twentieth century, war crimes were generally tried, if tried at all, by belligerent States in their own national courts or special military tribunals. After World War I, the Allies appointed a 15-member commission to inquire into the legal liability of those responsible for the war and the numerous breaches of the law of war that it occasioned. It recommended the establishment of an international military tribunal to prosecute those accused of war crimes and crimes against humanity. After Germany refused to comply with the locally unpopular provision of the peace treaty requiring it to turn over accused war criminals to the Allied forces for trial, a compromise was reached in which Germany agreed to prosecute those persons in its national courts. Of 901 cases referred to the German Supreme Court for trial at Leipzig, only 13 were convicted. Because German nationalism appeared to have hindered the earnest prosecution of war criminals, the results were largely seen as a failure.

International Military Tribunals

In the aftermath of World War II, the Allies applied lessons learned at Leipzig and formed special international tribunals for the European and Asian theaters. In an agreement concluded in London on August 8, 1945, the United States, France, Great Britain and the Soviet Union together established the International Military Tribunal (IMT) at Nuremberg for the trial of war criminals. The four occupying powers also established Control Council Law No. 10, authorizing military tribunals at the national level to try the less high-profile war crimes and crimes against humanity.

The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals were designed to be non-technical, allowing the expeditious admission of "all evidence [the Tribunal] deems to have probative value." This evidence included hearsay, coerced confessions, and the findings of prior mass trials. It has also been argued that the tribunals violated the principles of legality by establishing ex post facto crimes and dispensing victor's justice. However, while the historical consensus seems to have accepted that the Nuremberg Trials were conducted fairly, some observers argue that the malleability of the rules of procedure and evidence could and did have some unjust results, in particular as they were applied by the national military tribunals. The Tokyo tribunal decisions were subject to criticism by dissenters on the Supreme Court in the Yamashita case. Some argue that procedural safeguards considered sufficient for the World War II tribunals would not likely meet today's standards of justice.

Nuremberg

The jurisdiction of the Nuremberg Tribunal was based on universally applicable international law regulating armed conflict, and its authority was based on the combined sovereignty of the Allies and Germany's unconditional surrender. The Tribunal rejected the defendants' contention that the tribunal violated fundamental legal principles by trying them for conduct that was not prohibited by criminal law at the time it was committed. The Nuremberg Tribunal also adopted the doctrine of individual responsibility for war crimes, rejecting the idea that state sovereignty could protect those responsible from punishment for their misdeeds.

Twenty-four Nazi leaders were indicted and tried as war criminals by the International Military Tribunal (IMT). The indictments contained four counts: (1) crimes against the peace, (2) crimes against humanity, (3) war crimes, and (4) a common plan or conspiracy to commit the aforementioned acts. Nineteen of the defendants were found guilty, three were acquitted, one committed suicide before the sentence, and one was physically and mentally unfit for trial. Sentences ranged from death by hanging (twelve), life imprisonment (three), and imprisonment for ten to twenty years (four).

Tokyo

The International Military Tribunal for the Far East (IMTFE) in Tokyo was established by a Special Proclamation of General Douglas MacArthur as the Supreme Commander in the Far East for the Allied Powers. Many provisions of the IMTFE were adapted from the London Agreement. The Tokyo tribunal tried only the most serious crimes, crimes against peace. General MacArthur appointed eleven judges, one from each of the victorious Allied nations who signed the instrument of surrender and one each from India and the Philippines, to sit on the tribunal. General MacArthur also appointed the prosecutor. Of the twenty-five people indicted for crimes against peace, all were convicted, with seven executed, sixteen given life imprisonment, and two others serving lesser terms. Some 300,000 Japanese nationals were tried for conventional war crimes (primarily prisoner abuse) and crimes against humanity in national military tribunals.

Ad Hoc International Courts

The U.N. Security Council (UNSC), acting under its Chapter VII authority of the U.N. Charter, established two ad hoc criminal courts, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Both tribunals are still operating, and employ virtually identical procedural rules. Their jurisdiction is coexistent with that of national courts, but they also may assert primacy over national courts to prevent trials of the same individuals in more than one forum. Their jurisprudence may provide important precedent for the interpretation of Common Article 3.

Yugoslavia

Based in the Hague, Netherlands, the ICTY has jurisdiction to try crimes conducted within the territory of the former Yugoslavia, including the crime of "ethnic cleansing," whether committed in the context of an international war or a war of non-international character. It tries violations of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity when committed in the context of an armed conflict. It is composed of sixteen permanent independent judges, who are elected by the UN General Assembly from a list of nominations provided by the Security Council. It has an Appeals Chamber consisting of seven judges, five of whom sit on a panel in any given case.

The Prosecutor, an independent organ of the court appointed by the UN Security Council on the recommendation of the UN Secretary-General, investigates and prosecutes those responsible for covered offenses. When the Prosecutor finds that sufficient evidence exists to try an individual, he issues an indictment, subject to the approval of a judge from the Trial Chamber.

Rwanda

The ICTR, based in Arusha, Tanzania, was established by the UN Security Council in response to genocide and other systematic, widespread, and flagrant violations of humanitarian law applicable in the context of a non-international armed conflict, that is, Common Article 3 of the Geneva Conventions and Additional Protocol II, genocide, and crimes against humanity. Its structure and composition are similar to those of the ICTY. As of June 2006, the ICTR has tried 28 accused, convicting 25 and acquitting three. Twenty-seven defendants are undergoing trial, and another fourteen await trial.