Military Commissions-Kangaroo Courts?

• Author: Charles H. B. Garraway
• Position: Senior Research Fellow, British Institute of International and Comparative Law
• Pages: 303-315

XIII

Military Commissions—Kangaroo Courts?

Charles H. B. Garraway*

Thedecision to use Military Commissions to try persons held at Guantanamo

has attracted massive worldwide opposition. 1Unfortunately, much of it has

been caught up in the increasing political vitriol that seems to be marking the

whole question of the so-called "war on terror." This is marring what should be a

genuine legal debate. The advent of the International Criminal Court (ICC) with

its emphasis on the doctrine of "complementarity"2should have encouraged States

to discuss how best crimes arising out of armed conflict should be dealt with on a

domestic level. Is it appropriate in the 21st century to use military justice in this

way or should "democracy" require acivilian response? Instead the issue has be-

come polarized so that people tend to be either "for" military commissions—and

support them without criticism—or alternatively "against"—in which case noth-

ing is good about them at all.

Part of the difficulty is the confusion over the term "war on terror." Is it an

"armed conflict" to which the laws of armed conflict apply? Is it amatter for law

enforcement, in which case the laws of armed conflict may be irrelevant? Or is it a

new form ofconflict to which the law ofarmed conflict can only be applied by anal-

ogy? Traditionally terrorism has been dealt with in the law enforcement para-

digm—and to alarge extent still is. 3In the view of most, Afghanistan was a

traditional armed conflict with the Taliban being the de facto Government of that

Senior Research Fellow, British Institute of International and Comparative Law.