Trying Terrorists as War Criminals Page: 6 of 6
6 p.View a full description of this report.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
CRS-6
On no other basis can the trials be regarded as judicial proceedings, as distinguished
from political inquisitions.32
There is some historical precedent from which an international norm regarding
procedural rights for accused war criminals might be derived. The Nuremberg Tribunals
provide a good starting point,33 as further refined by the International Criminal Tribunals
for Yugoslavia and Rwanda.34 Perhaps the most recent embodiment of the requirements
of the international law of war is to be found in the procedures of the not-yet-operational
International Criminal Court established by the Rome Statute.
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."35 This evidence included hearsay, coerced
confessions, and the findings of prior mass trials.36 While the historical consensus seems
to have accepted that the war crimes commissions were conducted fairly,37 some observers
argue that the malleability of the rules of procedure and evidence could and did have some
unjust results.38 For some, the perception is that "victors' justice" was all that was sought.
Possible Challenges. Although federal courts do not necessarily have jurisdiction
to review the decisions of non-Article III courts, a defendant sentenced by a military
commission may file a writ of habeas corpus39 challenging the jurisdiction of the
commission under of the law of war, the Constitution, relevant statutes, or military
regulations. Because of Congress' power to define and punish violations of international
law, and due to national security implication, courts are likely to defer to the political
branches for an interpretation of the law of war. A defendant might also challenge a
conviction based on an alleged violation of his right to due process, but case law
demonstrates the difficulties such a challenge would face.40
32 Telford Taylor, An Outline of the Research and Publication Possibilities of the War Crimes
Trials, 9 LA. L. REV. 496, 507 (1948-49) (cited in Wallach, supra note 30, at 852.)
33 See Wallach, supra note 30, at 860 (noting that the rules formulated in accordance with the
London Agreement of August 8, 1945, by the Allies setting trial procedures for German war
criminals, served as a model for subsequent tribunals). The rules used at the Nuremberg trials
were, in turn, largely modeled after American military commissions. See id. at 851.34 See Major Marsha V. Mills, War Crimes in the 21st Century, 3 HOFSTRA L. & POL'Y SYMP.
47, 55-56 (1999)(describing due process and evidentiary rules of the tribunals).
35 See Wallach, supra note 30, at 860.
36 See id. at 871-72.
37 See id. at 852 (citing VIRGINIA MORRIS & MICHAEL SCHARF, 1 AN INSIDER'S GUIDE TO THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 9-10 (1995)).
38 See Wallach, supra note 30, at 869; Application of Homma, 327 U.S. 759,760 (1946) (Murphy,
J. dissenting).
39 Ex Parte Quirin at 24-25; Colepaugh v. Looney, 235 F.2d 429 (1956). But see Eisentrager v.
Johnson, 339 U.S. 763, 777-781 (1950)(alien captured overseas not entitled to habeas corpus
review).
40 See, e.g., Burns v. Wilson, 346 U.S. 137 (1953)(declining to review merits of habeas corpus
challenges to convictions by court-martial).
Search Inside
This report can be searched. Note: Results may vary based on the legibility of text within the document.
Matching Search Results
View one place within this report that match your search.Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Report.
Elsea, Jennifer K. Trying Terrorists as War Criminals, report, November 28, 2001; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs6980/m1/6/?q=RS21056: accessed May 13, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.