The Right to a Fair Trial in Times of Terrorism: A Method to Identify the Non-Derogable Aspects of Article 14 of the International Covenant on Civil and Political Rights

Contrary to what is often asserted in debates on the “war on terror”, international law provides specific rules on what is allowed in bringing suspected terrorists to trial. This article suggests a method to identify the minimum fair trial rights which have to be provided to every accused, irrespective of his or her status in international law and irrespective of whether the situation amounts to an armed conflict or not. This essay proceeds from the assertion that human rights law applies in peacetime as well as in times of emergency, including in armed conflict. Because the International Covenant on Civil and Political Rights prohibits any derogation measures inconsistent with the State’s other obligations under international law, the so-called principle of consistency lends itself as the tool to identify which aspects of Article 14 of the Covenant must be considered non-derogable. The article concludes that those aspects of fair trial which are common to the legal regimes dealing with both types of armed conflict – international and non-international – are also part of customary international law and provide the minimum yardstick from which no reduction is permissible.