The Right to a Fair Trial in States of Emergencies: Non-Derogable Aspects of Article 14 of the International Covenant on Civil and Political Rights
Schmid, Evelyne
2008
- Submitted in partial fulfillment of the degree of Master of Arts in Law and Diplomacy at the Fletcher School of Law and Diplomacy. Abstract: This thesis examines international norms of fair trial in states of emergency. It identifies the list of judicial safeguards which have to be provided to every accused individual, irrespective of his or her status in international law and irrespective of ... read morewhether the situation amounts to an armed conflict or not. It shows that current legal discussions about the applicable law in the war on terror do not sufficiently recognize that a minimum floor of due process must be provided to all accused; regardless of whether humanitarian treaty law applies or not. Specifically, this thesis proceeds from the assertion that human rights law applies in peacetime as well as in times of emergency, including in armed conflict. Building on two Advisory Opinions of the International Court of Justice, the International Covenant on Civil and Political Rights applies as long as a State party has not made a valid derogation from its provisions. The Covenant prohibits any derogations that would be inconsistent with the states other obligations under international law. Applying this principle of consistency to the administration of justice, it is possible to identify which aspects fair trial (article 14 of the Covenant) must be considered non-derogable. This thesis argues that those aspects of fair trial which are common to the legal regimes dealing with international armed conflict on the one hand and internal armed conflicts on the other must be provided in all types of emergencies, including those which fall short of the legal threshold of an armed conflict. The author finds that at least twelve aspects of fair trial constitute the minimum floor of due process. Any derogation from these aspects would be inconsistent with customary law which is binding on all states and therefore be invalid. This framework provides a strong contention against arguments that certain individuals are situated in legal gray zones between human rights law and international humanitarian law where the current framework of international law does not apply. The twelve non-derogable aspects of fair trial are the minimum yardstick from which no reduction is permissible. It's time that we end the infinite quarrels about the legal norms applicable to detainees in the war on terror and hold our governments accountable for the protection of, at the very least, the non-derogable rights of the detainees under their authority.read less
- ID:
- j6731f751
- Component ID:
- tufts:UA015.012.074.00012
- To Cite:
- TARC Citation Guide EndNote
- Usage:
- Detailed Rights
