2016 Joint Series on International Law and Armed Conflict: Nehal Bhuta on Fair Trial Guarantees in Armed Conflict

icrc-court-fair-trial

In the first installment of our Transatlantic Dialogue Series, Nehal Bhuta of the European University Institute discusses Fair Trial Guarantees in Armed Conflict.  Mr. Bhuta is Professor of Public International Law. He is also co-director of the Global Governance Program’s Global Governance by Indicators project. The views expressed in this article are the author's own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series.

Here's a taste:

The protection of fair trial rights during international and non-international armed conflicts might reasonably be seen as an area where the convergence between international humanitarian law (IHL) and international human rights law (IHR) is considerable, and in which the co-application of the two bodies of international law results in “interpretive complementarity” in respect of specific guarantees contained in both legal regimes. It should be noted at the outset that a person detained for the purposes of criminal prosecution during an international or non-international armed conflict is within the jurisdiction of the prosecuting state for the purposes of international human rights law whether the person is within the territory of the detaining state or not. At the same time,  that state may also be a detaining power, an occupying power or a party to a conflict on its own territory (even if part of that territory may be outside its effective control).

In this short post, I wish to raise for discussion areas of tension and uncertainty in the relationship between IHL and IHR in fair trial guarantees during an armed conflict. I first address the question of whether IHL countenances different understandings or interpretations of specific fair trial guarantees protected in both IHL and IHR. I then turn to the related question of whether derogation provisions can and should be invoked in order to give effect to IHL-based interpretations of a fair trial right over an IHR-based construction of the right. Finally, I examine some dilemmas associated with countenancing the possibility of courts constituted by armed groups as conducting fair trials under IHL.

Read his full post on EJIL: Talk!


Schedule of blog posts:

The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations (both directed by Dapo Akande), the Washington DC & London delegations of  International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).

Click here for the 2015 Series.

Click here for the 2014 Series. 

For ICRC's Customary IHL Database on Fair Trial Guarantees, click here

 


Comment

Nehal Bhuta

Nehal Bhuta is Professor of Public International Law. He is also co-director of the Global Governance Program’s Global Governance by Indicators project. He is a member of the editorial boards of the European Journal of International Law, the Journal of International Criminal Justice, Constellations, and Humanity. He is also a series editor of the soon to be established Oxford University Press series in the History and Theory of International Law. He came to the EUI from the New School for Social Research, and before that taught at the University of Toronto Faculty of Law. Before entering academia, he worked with Human Rights Watch and the International Center for Transitional Justice.