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During an outbreak of violence in July 2016, a South Sudanese journalist was killed and international aid workers were brutally raped by government soldiers at the Terrain compound in South Sudan. Following intense international pressure, 11 soldiers were found guilty of various crimes by a specially created military court martial in 2018. As the first widely reported case in which perpetrators of conflict-related sexual violence were held accountable in South Sudan, this verdict is an important milestone. However, for the other countless South Sudanese victims of rampant sexual violence, the path to justice remains uncertain. This article explores the current pursuits of accountability for sexual violence in South Sudan and why they have failed to advance justice. After considering the factors that led to the Terrain prosecution in a military court, this article explores the impact of this case on South Sudanese perceptions of justice. The trial intensified the desire of many South Sudanese for accountability and increased knowledge of conflict-related criminal prosecutions. The justice system also marginally built its capacity and independence. However, there were serious due process concerns that led many to question the impartiality and credibility of the proceedings. This article argues that this case set a precedent that shows the international community will demand accountability in the wake of attacks on international aid workers. The threat of accountability may deter perpetrators from committing violence against this group, but will not necessarily protect South Sudanese victims. Finally, the article identifies lessons learned from the Terrain case and provides recommendations on how South Sudanese and others impacted by sexual violence can benefit from accountability efforts in the future. [ABSTRACT FROM AUTHOR]

In October 2012, a panel of the D.C. Circuit dealt a blow to the United States’ post-September 11, 2001 decade-long experiment with military commissions as a forum for trying Guantanamo Bay detainees. Specifically, the court concluded that prior to the 2006 statutory reforms, military commission jurisdiction was limited to violations of internationally-recognized war crimes; that providing material support to terrorism was not an internationally-recognized war crime; and that the military commission conviction of Salim Hamdan for material support charges based on pre-2006 conduct was therefore invalid. Three months later, a panel of the D.C. Circuit reached the same conclusion with respect to conspiracy and solicitation charges, and vacated the conviction and life sentence of Guantanamo Bay detainee Ali Hamza Ahmad al Bahlul. That case is now on appeal to an en banc (full court) panel of the D.C. Circuit. This article analyses the D.C. Circuit’s ruling in Hamdan’s case, explaining why the ultimate holding is the right one, even though some of the reasoning is flawed, and why the ruling should be upheld on appeal. It also highlights the many unresolved questions and the implications for the future of military commissions at Guantanamo Bay. As the article explains, the D.C. Circuit’s rulings are a major victory for the rule of law and a major defeat for commissions. [ABSTRACT FROM PUBLISHER]

Major John Henry Gee was the commandant of the Confederate prison at Salisbury, North Carolina from 1864 until 1865. During his tenure, thousands of Union prisoners of war died of starvation and diseases or were shot when attempting to escape. Shortly after the end of hostilities, Major Gee was arrested, charged with two counts of violations of the laws of war and brought before a military commission to be tried. The trial of Major Gee is one of the first recorded trials for war crimes and a rare early example of domestic prosecution of an enemy fellow-national for what was effectively an international crime, in a war in which his side had been vanquished. Unlike the war crimes trial of Henry Wirz, commandant of Andersonville prison during the American Civil War, little attention has been paid to this important precedent. [ABSTRACT FROM PUBLISHER]

The military commissions at Guantdnamo Bay have properly been the subject of much legal scrutiny and criticism. Their use of military officers as triers of fact, however, merits further consideration. Salim Hamdan may have benefited from having military officers decide his case. His panel was composed of highly educated military professionals who have dedicated their lives in service of the law. Despite their enmity towards the accused, these officers were actually in a better position to be sympathetic and understanding to the Hamdan defence than a civilian jury. The unique aspects of militaryservice and combat experience will also make them excellent partners with professional jurists in future humanitarian law tribunals. [ABSTRACT FROM AUTHOR]

The author discusses a decision handed down in 2007 by an Italian military court concerning the firing by Italian troops on an Iraqi ambulance in 2004, at Nassiriyah, resulting in the killing of four civilians. The court held that the action was covered by the defence of putative `special military necessity' and consequently acquitted the two defendants. The author argues that the accurate basis on which to exclude criminal culpability, both under Italian law and international criminal law, could be the excuse of putative self-defence. He also raises the issue of whether in that case the servicemen behaved negligently in acting in the belief that the ambulance was likely to be a car-bomb. The author then discusses the question of compensation to civilians for violations of international humanitarian law, regardless of whether such violations entail the criminal liability of the perpetrators. [ABSTRACT FROM AUTHOR]

Both the International Criminal Tribunal for the former Yugoslavia and the US Military Commissions were set up to respond to extraordinary judicial challenges. But while the Yugoslav Tribunal has sought to uphold internationally-recognized standards of human rights, the 2006 Military Commissions have amputated many of these rights and created serious procedural impediments for defendants. In so doing, the drafters of the 2006 Act have ignored a long and respectable American legal tradition prevailing from Nuremberg to the ICTY. [ABSTRACT FROM AUTHOR]

The Military Commissions Act developed a judicial system based upon that of General Courts-Martial under the Uniform Code of Military Justice. The military commissions will use many of the same personnel and share some procedures with general courts-martial, but certain aspects show them to be very dissimilar. Specifically: the revised evidentiary rules on coerced statements, hearsay and classified evidence; the lack of speedy trial rights; the absence of a formal pre-trial investigation; and the failure to apply case law precedent. These differences will have significant secondary effects on the process that are not favourable to a defendant. As a result of both the primary and secondary effects of the differences, the commissions will provide significantly less due process to unlawful combatants than the general court-martial process will provide to their lawful combatant counterparts. [ABSTRACT FROM AUTHOR]

In three decisions in 2004 and 2006, the Supreme Court of the United States rejected the sweeping claims by President Bush that his role as Commander in Chief entitled him to detain persons indefinitely and, if he chose, to subject them to war crimes trials before military commissions that did not have all of the procedural protections of courts martial. The Court's rulings, however, left open the possibility that, notwithstanding the treaty obligations of the United States under the Geneva Conventions, Congress could authorize the President to take the steps that he could not take unilaterally. In the Military Commissions Act (MCA) of 2006, Congress did just that. However, despite its title, the MCA does far more than authorize military commissions. Most significantly, it eliminates the statutory right of aliens declared by the government to be ‘unlawful enemy combatants’ and detained indefinitely on that basis, to seek a writ of habeas corpus from a federal court. To be sure, the MCA provides some right of access to federal court for persons convicted of war crimes by military commissions or found to be unlawful enemy combatants by a military ‘combatant status review tribunal’ or equivalent body, but even then, it severely curtails opportunities for judicial relief. In this and other respects, the MCA purports to confer rights that, upon close inspection, prove illusory. For example, it uses the language of the Geneva Conventions, even while forbidding courts to look to international and foreign sources to construe that language. The MCA is, more broadly, an exercise in misdirection. It is, in a word, ‘Orwellian’. [ABSTRACT FROM AUTHOR]

One of the key reasons why the Bush Administration opted to create the military commissions for trying terrorism cases was the desire to use classified information without having to face the risk that in some instances the government might be faced with a dilemma — whether to reveal the classified information or drop the prosecution and free the defendant. The editorial comments published in this issue of the Journal challenge the provisions of the Military Commissions Act (MCA) 2006 under the law of war, international law, the Geneva Conventions as well as under US constitutional law. In the end, however, the legal status of the MCA will be finally determined by the US Supreme Court. It seems likely that a new majority of the Court would be formed that would uphold the constitutionality of many of the provisions of the MCA. The US approach to dealing with terrorism has consisted of a series of acts, both on the world stage and in the United States, in a continuing drama. If the events of the post-9/11 period are thought of in terms of high theatre, then the link between Hamdan and the MCA moves us into a state of dramatic tension — the Court first resolves a series of key issues, then Congress moves centre stage and on most of the issues takes contrary positions, but in a context where the Court itself has invited legislative action. The denouement will be reached when these issues return to the Supreme Court and it then decides whether the statutory provisions in question are constitutionally vulnerable. [ABSTRACT FROM AUTHOR]

The Military Commissions Act 2006 seems to have a much broader application than the 2003 Military Commission Instruction Number 2, or MCI2. None of the 28 specific crimes listed in § 95Ov(b) of the 2006 Act mentions a nexus with armed conflict. This Act raises a number of questions. In particular three issues are relevant: (i) Congress intended to act under its constitutional power ‘to define offenses against the law of nations’. In so far as some of these offences are not violations of the law of nations, they fall outside the field of legislative competence; (ii) the Military Commissions are given excessive discretion in the field of sentencing. There are no terms of imprisonment provided. In many cases the death penalty is allowed. Otherwise the Commissions may impose any sentence they wish. This degree of discretion arguably violates the Eighth Amendment against ‘cruel and unusual punishment’: (iii) there might be a violation of the principle of equal protection: is it constitutional to impose a special regime on suspects simply because they are ‘aliens’? [ABSTRACT FROM AUTHOR]

The Military Commissions Act codifies a wide range of provisions that are inconsistent with binding international humanitarian law standards. In spite of the Act's title, these inconsistencies go well beyond the rules and procedures governing the trail of terrorist suspects before military commissions. In addition to violating fundamental fair trial guarantees defined in international humanitarian law, the Act misapplies the Geneva Conventions by adopting a ‘one size fits all’ approach to the characterization of all counter-terrorist operations, provides for an overly broad definition of unlawful combatant status that effectively deprives terror suspects of applicable law of war protections, repudiates longstanding ‘elementary considerations of humanity’ contained in common Article 3 and entrenches a detention regime that does not comport with the terms of the Geneva Conventions. These departures from international humanitarian law are reinforced by provisions of the Act that purport to insulate US government personnel and their agents from contrary interpretation and judicial scrutiny. The Act is thus best described as a series of breaches rather than developments of international humanitarian law, and as such, signals a stark departure from the US's historical commitment to the laws of war. [ABSTRACT FROM AUTHOR]

The Military Commissions Act of 2006 represents the United States' most recent effort to establish a forum to try detainees captured in its ‘Global War on Terrorism’. This article briefly explores the Act's use of the term ‘unlawful enemy combatant’ to define both subject matter jurisdiction as well as the potential source of criminal liability. The article highlights the term's absence from the positive law of war as well as confusion over its legal significance in United States domestic law. Examining the relationship between status and protections under the law of war, the authors conclude the Act's use of the term ‘unlawful enemy combatant’ reflects legal convenience more than an objective assessment of the existing laws and customs of war. [ABSTRACT FROM AUTHOR]

Since the Nuremberg and Tokyo Trials, scant attention has been devoted to military tribunals. Only with the creation of the ICTY and the ICTR has civil society started reconsidering the question of which fora might be better suited for trying individuals responsible for war crimes and other gross human rights violations. The aim of this paper is to illustrate the Swiss military judicial system. It analyses, on the one hand, the judicial guarantees provided for in the Swiss Military Penal Code and the Code of Military Penal Procedure. On the other hand, it discusses the judicial guarantees afforded in the only two war-crimes trials held by the Swiss military justice — the G case and the Niyonteze case — which involved civilians with foreign nationality. Finally, the paper argues against the abolition of military judicial systems. [ABSTRACT FROM PUBLISHER]

An introduction is presented in which the editor-in-Chief discusses various reports within the issue on topics including the prosecution of former Liberian President Charles Taylor at the Special Court for Sierra Leone, the German Code of International Crimes, and Military Commissions in the U.S.

A foreword for the symposium "Hamdan: Is the Guantánamo Approach Falling Apart?" in the March 2009 issue of the "Journal of International Criminal Justice," is presented.