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The need for comprehensive justice across the former Yugoslavia

Fri, 29 Aug 2008 14:30:46 +0100

Written by Nicola Duckworth, Director of Amnesty International's Europe and Central Asia Programme

As the trial of Radovan Karadzic at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague resumes, his prosecution is undoubtedly a huge step forward towards bringing justice to the tens of thousands of victims of Bosnia and Herzegovina. But are a small number of high profile trials in The Hague enough to heal the wounds caused by the horrific violations of human rights committed by all sides to the conflict?

Amnesty International has repeatedly called for the work of the Tribunal to be complemented by comprehensive national efforts in the region to investigate and prosecute the tens thousands of other crimes, involving middle and lower ranking suspects that the Tribunal does not have the capacity to deal with.

While the resumption of the trial of Radovan Karadzic has thrown the spotlight back onto The Hague Tribunal, for which the UN Security Council has recommended an arbitrary 2010 deadline for closure, we have serious concerns about whether enough work is being done to enable local criminal justice systems to administer justice in the region. Victims of crimes like murder, rape and forcible deportation have been waiting for justice for almost 13 years since the war ended and continue to suffer without truth or reparations.

We are not saying that there have not been some efforts at a national level to investigate and prosecute crimes of the 1990s conflict. But the reality is that they have been impeded by a wavering political will, coupled with limited judicial capacity and a lack of co-operation between countries on the sharing of evidence as well as the arrest and extradition of the accused. In addition, only a handful of suspects are being tried.

In Croatia, Amnesty International has criticised the failure to investigate and prosecute crimes committed by the Croatian army and police forces, including the murder and disappearance of more than 100 Croatian Serbs in the Sisak area during the 1991-1995 war.

Montenegrin cases have been the subject of political obstruction and there are concerns about the effectiveness of national proceedings. No progress has been made in the criminal case of the disappearance of 83 Bosniaks, while civil claims brought by the families have been rejected by the National Appeals Court.

In Serbia, the pace of investigations is slow and the independence of the judiciary is questionable. Sixteen years after the forced exodus of hundreds of Vojvodina Croats which left 14 people dead, no investigative action has been taken. Furthermore, in those cases that are being prosecuted, national prosecutors involved in cases have been regularly threatened and there are concerns about the effectiveness of national witness protection systems.

In Kosovo there is a lack of effective investigations and prosecutions, particularly of crimes of sexual violence, an absence of witness protection and a declining number of international judges and prosecutors. Impunity remains in over 3,000 cases of enforced disappearances and abductions.

And while a War Crimes Chamber has been established with international support in Bosnia and Herzegovina, Amnesty International is concerned that the planned withdrawal of international staff could undermine its effectiveness, unless sufficient resources and training programmes are established for local judges, prosecutors and staff. While other cases have been prosecuted by cantonal and district courts, serious doubts remain about their capacity to deal with such complex cases.

As pressure mounts for the closure of the ICTY, more work must be done to deliver the longer-lasting benefits of strengthened national justice systems. Likewise international monitoring of local war crimes trials must continue until we witness the political commitment and comprehensive reform required to equip them to deliver justice.

The international community should use its influence in relations with these countries to call for an end to impunity for all cases of genocide, crimes against humanity and war crimes. In doing so, we also have to make sure that national justice systems in the region receive the necessary support for training national staff, capacity-building of local judicial systems and establishing effective witness protection programmes and truth and reparation mechanisms.

While the trial of Radovan Karadzic is likely to be completed before the Tribunal closes, trials at the ICTY are not enough for the victims of the Balkans conflict. We have a duty to make sure their rights to justice, truth and reparations are realised. If not, the dispensation of justice across the former Yugoslavia may remain an unfinished task. And it is the thousands of victims of the crimes who will pay the price.

Sudan holds hundreds without charge after 10 May attack

Wed, 20 Aug 2008 17:41:31 +0100

The Sudanese government is holding hundreds of people without charge or access to lawyers, following the armed attack on Khartoum by the Justice and Equality Movement (JEM) on 10 May. The government is preparing to try another 109 individuals arrested in relation to the 10 May attack.

The fate and whereabouts of most of those still detained remain unknown. There have also been reports of torture and other ill-treatment from people who were released. Amnesty International fears that those people still detained are at high risk of torture. According to reports received by Amnesty International, those still held include women and a nine-month-old child.

These fears come after eight alleged JEM members were sentenced to death by hanging by Sudan's Anti-Terrorism Special Courts on Sunday 17 August. Amongst the eight is a senior JEM commander. Another 12 alleged members of the same group were given the same sentence on 20 August 2008. This last verdict takes the numbers of individuals sentenced to death in relation to the 10 May attack to 50.

"Sudan's Anti-terrorism Special Courts are nothing but a travesty of justice," said Tawanda Hondora, Deputy Programme Director for Africa at Amnesty International. "Some of the people sentenced only met their lawyers for the first time during the trial, while several said they suffered torture when they were held incommunicado and that they were forced to confess to crimes.”

"Those trials were clearly unfair and now Sudan is preparing to try yet more people with this system. How is that justice?"

One of the lawyers of those convicted on 17 August told Amnesty International that his request for an investigation into the allegations of torture and other ill-treatment by his client was rejected by the court. This included an appeal for a medical examination despite the fact that, according to the lawyer (?) marks of ill-treatment were still clearly visible on their bodies when the accused were facing the judge.

The defence lawyers have appealed all the 38 verdicts within the limited period allowed by the Special Courts. The final decision – expected in the next few weeks – has to be taken by the Special Court of Appeal. Thereafter, the President will have to sign the decision for the executions to be carried out.

"The Sudanese government has the duty to investigate crimes and bring the perpetrators to justice but they must do it in accordance with international law and the Sudanese constitution, which guarantees fair trials," said Tawanda Hondora.

"We urge the Sudanese authorities not to execute these men and to review their cases immediately."

Amnesty International has also urged the Sudanese authorities to reveal the whereabouts of all individuals held in the context of the 10 May investigation, and to either promptly charge them or release them immediately.

The organization has also called for all detainees to be given regular access to lawyers and family and to be provided with the appropriate medical attention.

Background

The 10 May attack marked the first time a Darfur-based armed opposition group had reached the capital since the start of the conflict in 2003.

In the weeks following the attack, hundreds of individuals were arrested by Sudanese police and security forces. The majority of those arrested are of Darfurian origin. Amnesty International received reports that extra-judicial executions occurred during the waves of arrests.

In July, the Sudanese president, Omar Hassam El Bashir, announced that he was releasing 87 alleged child soldiers who were accused of having taken part in the attack.

At the end of July, the Special Courts convicted and sentenced another 30 individuals to death. They were found guilty of criminal offences in relation to the 10 May attack.

The Anti-Terrorism Special Courts were established on 29 May specifically to try individuals accused of participating in the 10 May attack.

The articles under which individuals have been charged and convicted include articles of the 1991 Penal Code, the 2001 Anti-Terrorism Act and 1993 Weapons and Ammunition ordinance.

The 17 August verdict is the fourth issued by the Special Courts.

Video: End stoning in Iran

Fri, 15 Aug 2008 15:58:35 +0100

The spokesperson for Iran’s Judiciary announced on Tuesday 5 August that execution by stoning has been suspended and that several unnamed women who were facing the punishment have had their sentences commuted. Drewery Dyke of Amnesty International’s Middle East and North Africa Programme, discusses the announcement:

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Shadi Sadr of the Stop Stoning Forever Campaign discusses their work:

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Army’s so-called inquiry into cameraman's killing in Gaza a scandal

Fri, 15 Aug 2008 18:31:53 +0100

Amnesty International has described as scandalous the Israeli army's account of firing a tank shell that killed Reuters cameraman Fadel Shana as a "sound" decision. The army reached the conclusion as part of a so-called investigation into the killing of the journalist and three other unarmed civilians, including 2 children, on 16 April 2008.

The army’s so-called investigation lacked any semblance of impartiality and Amnesty International called for an independent and impartial investigation into the killing. The organization said that the army's conclusion can only reinforce the culture of impunity that has led to so many reckless and disproportionate killings of children and other unarmed civilians by Israeli forces in Gaza.

Fadel Shana worked for Reuters press agency and was in a car clearly marked as Press. He and his colleague left the car, wearing visible Press flak-jackets and he was killed by an Israeli tank he was filming. The tank fired a shell at Shana, which also hit the civilians, including children, and injured his colleague and others around him.

Shana and two children, Ahmad Farajallah and Ghassan Khaled Abu ‘Ataiwi, were killed by flechettes. Amnesty International has said that that flechette shells, which are notoriously imprecise and filled with up to 5,000 5cm-long steel darts or flechettes that spread over an area as big as a football pitch and are lethal, should never be used in or around populated areas.

The letter sent to Reuters by the Israeli Military Advocate General says that the tank crew did not spot any markings on the car and thought Fadel Shana was a militant aiming a rocket.

"Given the sophisticated optical systems in the two Israeli tanks less than a mile away, and the fact that the area is open and visibility was very good in full day light, it is extremely difficult to believe that the soldiers would not have seen the clear TV-Press marking on both Fadel Shana’s blue flak-jacket and the Reuter Mitsubishi Truck nearby " said Donatella Rovera of Amnesty International's Middle East and North Africa Programme.

Independent investigations into killings of unarmed civilians by Israeli forces are virtually never carried out. Even in cases where international outcry forces the Military Advocate General’s office to look into the cases, the process is limited and lacks any independence and impartiality. In this case, as in virtually all such cases, witnesses were not interviewed.

No proper investigation was carried out into the cases of the 13 other unarmed civilians, including eight children, killed that day after Palestinians had ambushed and killed three Israeli soldiers.

The failure to investigate and to hold accountable those responsible for unlawful killings denies justice to victims and encourages further abuses. It ultimately also impedes prospects for a peaceful solution to the conflict, as it gives a message to Palestinians that there is no justice for them. .

“The need for a fully independent and impartial investigation into this killing is beyond question.” said Donatella Rovera

Amnesty International has repeatedly condemned and called for an end to rocket and other attacks on Israeli civilians by Palestinian armed groups, and for those who commit such attacks to be brought to justice. However, the organization has pointed out that these attacks by armed groups cannot justify the culture of impunity towards the killing of Palestinian civilians in the Israeli army.

In the first six months of 2008, some 400 Palestinians, including more than 50 children, were killed by Israeli forces. Most were killed in Gaza and at least half of them were unarmed civilians.

In the same period, 25 Israelis, including 17 civilians, were killed in attacks by Palestinian armed groups.

Suspension of stoning executions a welcome step if carried out

Fri, 15 Aug 2008 14:38:04 +0100

Amnesty International has welcomed last week's announcement by the spokesperson for Iran’s Judiciary that execution by stoning has been suspended and that several unnamed women who were facing the punishment have had their sentences commuted.

"Stoning is a horrific practice, designed to increase the suffering of those facing execution, and it has no place in the modern world," Amnesty International said. "We look to the Iranian authorities to ensure that this dreadful punishment is never again used."

The majority of those sentenced to death by stoning have been women. Women do not receive equal treatment with men under Iranian law and before Iranian courts. Also, because illiteracy is higher among women they may be more likely to sign confessions to crimes they did not commit and to receive unfair trials.

"The suspension of stoning is a welcome, if long overdue step, and a tribute to the courageous efforts of Iranian Human rights defenders," said Drewery Dyke of Amnesty International’s Middle East and North Africa Programme. "However, an earlier moratorium on stoning executions was breached, so we shall be watching closely to see that this does not happen again."

In 2002, the Head of Iran’s Judiciary announced that the use of stoning as a method of execution had been halted. However, in May 2006, a woman and a man were reported to have been stoned to death in Mashad. A further stoning execution was carried out on 5 July 2007 when a man, Ja'far Kiani was executed in Qazvin province after being convicted of adultery.

"It is really over to parliament [which is currently considering proposed new penal legislation] to reform the law and ensure that stoning executions are never again permitted," Drewery Dyke added.

The announced suspension of stoning follows concerted action by Iranian human rights defenders, who have mounted a Stop Stoning Campaign since October 2006. Their efforts, together with the local and international publicity they have generated and the support of Amnesty International and other organisations, is believed to have helped save at least five people from stoning.

While welcoming the announcement on stoning, Amnesty International continues to call on the Iranian authorities to end other cruel and inhuman punishments, such as flogging and albeit rarely used provisions prescribing the amputation of limbs, and to take other steps to reduce use of the death penalty.

Iran's existing Penal Code provides for the execution by stoning as the penalty for adultery by married persons. It even states that the stones be large enough to cause pain, but not so large as to kill the victim immediately.

Iranian human rights defenders continue to face arrest, harassment and intimidation at the hands of the authorities. Thirty-three women, including members of the Stop Stoning Forever campaign, were arrested while protesting in March 2007 about the trial of five women's rights activists in Tehran.

Solidarity with Zimbabwe ahead of SADC meeting

Fri, 15 Aug 2008 15:03:15 +0100

Nearly 80 organisations, including a number of Amnesty International's African sections, have come together to show solidarity with the people of Zimbabwe. In a statement to the Southern African Development Community (SADC), which is meeting this weekend in South Africa, the organizations voiced their concern about the continuing violations of Zimbabweans' human rights.

In the statement, the organisations recognised that attempts are being made by Zimbabwean political parties, SADC, the African Union and the United Nations to address the political and economic situation.
However, the organizations, also including HURINET based in Uganda, the Southern Africa Human Rights NGO Network (SAHRiNGON) from Tanzania and the Legal Assistance Centre from Namibia pointed to violations that have persisted since the signing of the Memorandum of Understanding (MoU) by political parties on 21 July. They highlighted the continuation of torture and other ill-treatment, and harassment and intimidation, of political and human rights activists.

"We are also concerned that important questions of justice and impunity were not explicitly tackled in the MoU, suggesting that these issues will not be dealt with in the talks between the political parties," the statement continues.

"We add our voices to the increasing number of civic and political leaders, activists and ordinary citizens in condemning the events in Zimbabwe which have brought untold suffering to its people. The ongoing political violence, suppression of fundamental human rights and the failure of governance which has directly contributed to the impoverishment of the people of Zimbabwe must be addressed now.

"The present government has brutally suppressed democratic dissent and persecuted political and human rights activists in callous disregard of the rights enshrined in the African Charter on Human and People’s Rights."

The letter calls on African leaders at all levels – pan-African, regional and national – and their institutions to urge the Government of Zimbabwe to immediately end serious human rights violations in the country and publicly denounce and call for the cessation of all political violence.

Eight Bahraini nationals released

Wed, 13 Aug 2008 17:48:56 +0100

Eight Bahraini men were released without charge in Saudi Arabia on 12 July 2008, after over four months’ detention.

The men had travelled from Bahrain to Riyadh, Saudi Arabia, and were arrested by security forces when they arrived on 28 February. Their families had no contact with them and were not aware of their exact whereabouts for weeks.

The eight men are teachers Sayyid Ahmad ‘Alawi, Majeed al-Ghasra, Muhammad ‘Abdullah al-Mu’man, ‘Abbas Ahmad Ibrahim, ‘Isa ‘Abdul-Hassan Ahmad, Muhammad Hassan ‘Ali Marhoun, and Ibrahim Marzam al-Haddad, and engineer Muhammad Mahdi Khalil. They were held in solitary confinement throughout their detention, without charge or trial.

Amnesty International welcomes their release and their return home. However, the Saudi Arabian authorities continue to hold detainees incommunicado, and torture and otherwise ill-treat them.

In 2007, the Ministry of Interior announced that there were at least 3,000 alleged political opponents then being held without charge or trial. The Ministry was reported to have disclosed that it detained 9,000 people between 2003 and 2007 as part of the “war on terror”.

No moving backwards for Myanmar

Fri, 08 Aug 2008 13:08:22 +0100

By Benjamin Zawacki, Amnesty International's Researcher on Myanmar

"We must move forward, forward in Myanmar. There is no backwards for us." These words were spoken to me by a participant in the "8888" uprising in Myanmar who was forced to flee his country. Twenty years after the brief flowering of people power in Myanmar, however, little has improved for the millions of people still suffering under repressive rule.

If the future is to be better, the UN Security Council and Myanmar’s Asian neighbours must cease turning a blind eye to human rights violations in Myanmar and begin to take bold and effective measures toward stopping them.

On 8 August 1988, students took to the streets in Yangon (then still Rangoon) to demand democracy and human rights from their government. Over the next six weeks, the demonstrations grew in number and popular support and spread across the country, before the security forces moved in and violently suppressed the uprising. They killed more than 3,000 people and caused the enforced disappearance of an unknown number of others.

The massacre so shocked the world that many people both inside and outside the country believed that it marked "the end" in Myanmar; human rights violations on such an egregious scale would no longer be tolerated by the international community. Sadly for the people of Myanmar, however, they were wrong.

Daw Aung San Suu Kyi, leader of the main opposition party, Nobel Peace laureate, and icon of the Burmese human rights movement, has been under some form of detention for nearly 13 of the last 19 years. U Win Tin, a senior member of her party and 78 years-old, has been imprisoned for all of those 19 years, the longest-serving prisoner of conscience in Myanmar. Thousands of other political prisoners have been detained since 1988; 137 have died in custody, some from torture or lack of medical attention.

More than 2,000 people are now behind bars, more than a third of whom the government detained during its violent crackdown on the monk-led demonstrations last fall — the third major demonstration since 8888 through which the Burmese have tried, against ruthless and heart-rending odds, to demand their rights. Just days after the crackdown, monks and dissidents on the Thai-Myanmar border told me harrowing accounts of the recent violence and their narrow escape from the country.

Outside of the cities — and the international spotlight — the Myanmar army has continued to wage war over the past twenty years against the country’s ethnic minorities as well, among them the Karen. Campaigns against the Karen National Liberation Army (KNLA) have been relentless since the early 1990s. Three years ago the army commenced another major offensive against the Karen, which continues to this day, though this time the army is actively avoiding the KNLA and instead targeting defenseless villagers.

On a widespread and systematic basis, the army is perpetrating a catalogue of serious human rights violations against the Karen, including extrajudicial killings, torture, enforced disappearances, arbitrary arrests, forced labour, crop destruction and confiscation, restrictions on movement, arbitrary levies and fines and anti-personnel land mines.

Another effect of both the 8888 uprising and the ethnic persecution is that hundreds of thousands of people in the past two decades have been forced to flee their homes to seek shelter elsewhere in Myanmar or in neighbouring countries. No fewer than half a million people in a nation of approximately 51 million are internally displaced within Myanmar. As I have witnessed myself, most live in deplorable conditions and constant fear, wondering if the world even knows about them.

Just under half that number are officially recognized as refugees in the surrounding countries, though several times more are not officially recognized and thus have even fewer rights. Many refugees have become some of the world’s most committed and courageous human rights activists — members of Myanmar’s "88 Generation" — as another entire generation of children has been born in exile.

Three months ago, the government wilfully neglected its people when Cyclone Nargis struck Myanmar. Relief workers, diplomats, journalists, and Burmese survivors told me again and again with horror and disbelief how the government violated its own citizens’ human rights to food, shelter, health, and to life itself on a massive scale.

The government refused to deploy its own much-touted army of 400,000 soldiers to the affected areas and rejected international assistance. Instead, the authorities saw fit to frog-march traumatized, bereaved, and hungry people to "vote" for a new constitution that both fails to protect human rights and codifies impunity for officials who violate them.

The exodus of refugees from Myanmar and the government’s response to the cyclone have generated the kind of human suffering that the UN system was designed to address. The UN has sent numerous official and unofficial missions to Myanmar since 1988 — with two more taking place this month — and has a large humanitarian presence there now, but with little or no impact on human rights.

But the one UN body with real power, the Security Council, has been unable or unwilling to take effective action. It has neither visited Myanmar to obtain first-hand information on the situation on the ground nor imposed a comprehensive mandatory arms embargo on the country. The only resolution condemning Myanmar’s human rights record was vetoed in January 2007 by permanent members China and Russia, while Indonesia, a non-permanent member at the time, abstained.

Since then, the Council has managed only two Presidential Statements on Myanmar, one in October 2007 that "strongly deplored" last fall’s crackdown, and another in May 2008 that "underlin[ed] the need" for Myanmar to ensure inclusiveness and credibility in its constitutional referendum later that month. Stronger language was objected to by, among others, China, Indonesia, and Vietnam.

While ASEAN’s statements critical of the crackdown last fall and the continued detention of Daw Aung San Suu Kyi have been welcome, the organization—and its member countries—have been inexcusably forgiving of Myanmar’s human rights record over the past twenty years. India, a powerful neighbouring state and the world’s largest democracy, has also been disturbingly compliant.

Just as with the 8888 uprising, many people hope that the government’s response to Cyclone Nargis signals the "the end" of such enormous human rights violations in Myanmar. Whether it really does this time, however, depends not only on the Burmese — whose "88 Generation" continues to courageously lead the way — but on the political will of the UN Security Council and Myanmar’s Asian neighbours as well. Twenty years is a long time, but it is not too late.

This article originally appeared in the Bangkok Post in Thailand on 8 August 2008.

Hamdan sentenced by military commission

Fri, 08 Aug 2008 15:06:31 +0100

Salim Hamdan was sentenced on 7 August to five and a half years in prison at the first US military commission trial in Guantánamo Bay. The prosecution had asked for a sentence of not less than 30 years.

The day before, a panel of six US military officers had convicted Hamdan of “providing material support for terrorism” and acquitted him of “conspiracy”.

His sentence includes credit for the 61 months and eight days he has spent in detention at Guantánamo since he was first made eligible for trial in 2003. This was under the previous military commission system authorized by presidential order but subsequently ruled unlawful by the US Supreme Court in 2006.

In an ordinary justice system, this would mean that he would be released in less than five months time. On 5 August, however, the Pentagon suggested that Salim Hamdan would remain in indefinite detention as an “enemy combatant” regardless of the verdict.

Matt Pollard, legal adviser for Amnesty International, said Hamdan's conviction was based on a proceeding that "fundamentally failed to meet international fair trial standards."

"To impose any penalty based on it therefore could only aggravate the injustice of the trial and the other human rights violations during his many years of unlawful detention," he said.

The framework of laws and rules within which the military commissions operate is fundamentally at odds with international law, and has been criticized around the world. Nevertheless, it appears that the US authorities plan to press on, subjecting numerous more Guantánamo detainees to these unlawful procedures.

Amnesty International considers that the military commission system is fundamentally flawed and should be abandoned. The organization continues to campaign for any trials of Guantánamo detainees to be held in ordinary civilian courts in the USA, without resort to the death penalty, and for the Guantánamo detention facility to be shut down.

Observing Guantánamo's military commission hearings (Part 2)

Wed, 06 Aug 2008 12:33:58 +0100

On 21 July 2008, the first trial to take place before a military commission convened under the Military Commissions Act of 2006 opened at the US Naval Base in Guantánamo Bay, Cuba. Matthew Pollard, Amnesty International's legal advisor, was present to observe the proceedings.

In the second part of a two-part series, he describes the hearings and discusses the reasons for his being in Guantánamo.

Tell us more about your role as an observer at the hearings. Why is it important that you are there?

My primary role as an observer at the hearings is to document any aspects of the actual proceedings that may affect their fairness. The framework of legislation (Military Commissions Act 2006) and rules (the “Manual for Military Commissions”) under which the commissions operate mean that no matter what happens at the actual trial, subjecting detainees to the process clearly violates their human rights.

However, what actually happens at the trial is still important. For instance, rulings by the military judge have the potential either to mitigate somewhat the fundamental unfairness inherent in the system or to make it far worse. It is important for Amnesty International to be here to see which direction, within the available room for manoeuvre, the rulings go.

Actions or reactions on the part of the commission members, witnesses, and lawyers at the trial, as well as the physical and psychological environment in which it takes place, may also either render it even more unfair or mitigate the unfairness written into the system.

The evidence that is presented at the hearing of an accused also has the potential to reveal both violations of human rights or humanitarian law committed by persons acting on behalf of states, and abuses of human rights or violations of humanitarian law committed by non-state actors including armed groups.

However, in the latter respect, Amnesty International must exercise extra caution as some of the unfair aspects of these proceedings allow the admission of evidence that is itself obtained in violation of human rights, which would not therefore form a sound or acceptable basis for reaching any conclusions.

Where are the hearings being held?

The room where the hearings I am observing are held is designed to resemble an ordinary courtroom in the United States. Of course, it still looks somewhat different, as the people providing security are all in military uniform, as are the members of the jury and some of the lawyers.

I understand, however, that the second courtroom, which was purpose-built for hearings involving "high value detainees" is somewhat more unusual, in that it isolates the audience physically in a sound-proof chamber, and all audio is delayed in order to allow the military judge or national security official to cut the sound if they consider something covered by national security secrecy has been said.

Is the way in which the military commission hearings are held different from the way in which other hearings, both in the USA and in other countries, are held?

Yes, the military commission hearings are very different from ordinary civilian and military hearings in the US, in that many of the fundamental guarantees needed for a trial to be truly fair are missing or undermined. While certain improvements have been won over the last few years, the current military commission system still allows the effects of much of the lawlessness and abuse that forms the overall context within which the commissions operate to remain concealed from the public and to go without remedy or redress.

For instance, the rules of evidence are very different. Statements that were obtained through coercion can be used in the military commissions, including some obtained through cruel, inhuman or degrading treatment and perhaps even (depending on how the legislation and rules are ultimately interpreted) conduct considered under international law to amount to torture.

Evidence is also admitted in these proceedings even from periods during which the person was denied access to counsel for weeks or months at a time and was not advised of their right to remain silent. Second- and third-hand statements (‘hearsay evidence’) are also admissible in these proceedings in circumstances that would be prohibited in ordinary criminal or military courts in the US.

Further, the circumstances in which such statements were obtained can be kept secret on national security grounds, precluding proper assessment of the acceptability and reliability of such statements. Indeed, generally, the military commissions allow for much more use of classified or otherwise secret evidence than might normally be permitted in an ordinary criminal trial.

Further, only non-US nationals can be prosecuted by these military commissions. If a US national committed exactly the same acts as those alleged in the prosecutions taking place in this court, they could only be tried in the ordinary US civilian courts (or if they were members of the armed forces, in ordinary courts-martial), where far greater protections and safeguards are available.

Discrimination on the basis of national origin in the fairness of criminal trial procedures is prohibited by international law.

The military judge and "members of the military commission" (essentially the jury) are all part of the US armed forces and therefore part of the executive branch of government rather than members of an independent judiciary and randomly selected members of the public. The standard for conviction is also lower than that typically required for a criminal trial.

Only two-thirds of the commission members must agree to a vote of "guilty" in order to convict. Crucially, even if a particular accused is found not guilty by a military commission, this does not guarantee that they will be released as would be required after an ordinary criminal trial. Even if someone is acquitted after a trial by military commission, the US administration maintains that it can continue to detain them indefinitely – perhaps for life.

What are the 'rules of conduct' for external observers at the hearings?

The "ground rules" that NGOs and their observers must agree to abide by are mainly:

to not publish, release, discuss or share information identified as protected from disclosure, even if it is inadvertently disclosed during a session;
to follow the instructions of the military judge;
not to record or document electronically the proceedings or their participants from the courtroom;
not to reveal the identities of individuals beyond those already released to the public, including the judge, commission members, prosecutors and defence lawyers, and witnesses, and staff;
not to disclose routes or movements of detainees.

Breaches of those rules could result in the NGO’s access to hearings being removed or restricted, or even to prosecution of the individual observer.

In the trial I have been observing, some witnesses testify under pseudonyms (such as "witness #1") to protect their identity, and some evidence is clearly treated as "secret" and protected from the outset. The defence in the trial appeared to be careful to avoid asking questions in public that would be likely to reveal or elicit classified information.

Technological means are used to ensure that some photos or documents that the witness, military judge, lawyers and commission members can see is not seen by the audience. However, the commissions do have the power to exclude the observers from the hearing room if they consider it necessary to do so, though that was not done in the week of observations I just completed.

These "ground rules" posed no particular problem to me so far, though one can imagine that if, in the future, information revealing grave violations of human rights were inadvertently revealed in a hearing at which an NGO observer was in attendance, and the military judge ordered non-disclosure, the situation could weigh very heavily on the conscience of that observer.

What would you say is the hardest thing about being there?

For me as an NGO observer, I have suffered few hardships here. The military and civilian personnel with whom I have come into contact have on the whole been courteous and professional and our minders in particular helped ensure that we NGO observers could participate in some social activities so that we are not left in our tents all the time.

The hearings have been intentionally designed to look as much as possible like an ordinary criminal trial. The only detainee I have seen is the person being tried in the proceedings and then only while he is in the courtroom and so my immediate sense of the hardships he and others face when they are isolated in the detention facilities is very limited.

Any complaints I might have about being here seem wholly insignificant when compared to the treatment and conditions under which the detainees must live.

The hardest thing about being here, for me, then, is to keep in the forefront of my mind some cold hard facts about the other reality that lies just behind all of this – the past and continuing violations of the human rights of the detainees that has taken place not only before they arrived here at Guantánamo Bay, but somewhere possibly just around the corner from a restaurant, shop or ice cream parlour I have visited.

Some of that is the physical and mental abuse to which detainees have been subjected –which I have come to understand some, perhaps many, people on the Base do not support.

But also, observing the trial, it is all too easy to get caught up in the narrative of the merits of the case against an individual detainee, to slip into thinking "is he guilty or innocent" as if we as observers were ourselves the triers of fact in a fair and lawful hearing.

The mission of Amnesty International observers is not in any way related to the guilt or innocence of a particular accused – a question irrelevant to the rights to which they are entitled in their detention and trial here.

In other words, the fiction that what is taking place at Guantánamo is a form of justice has indeed been artfully and seductively constructed – so one of the main challenges facing any observer is to continue to look past the superficial ways in which the process visually resembles an ‘ordinary’ trial so as to keep in clear focus the extreme unfairness by which the entire process, and the detention of these people here, is fundamentally tainted.