In a continuing series on human rights, Roger Smith questions the legitimacy of the forthcoming US military tribunals for suspected al-Qaeda and Taliban fighters

The 'war on terror' keeps throwing up human rights issues.

First, we have the core question of the legality of the Iraq war.

Then, we have a range of subsidiary issues and, in particular, the military commissions that the US has in mind for the trial of Guantanamo Bay detainees.

Attorney-General Lord Goldsmith is commuting to the US to bat for acceptable standards, but progress seems slow.

US President George W Bush began with the military order of 13 November 2001 on the detention, treatment and trial of certain non-citizens in the war against terrorism.

This states uncompromisingly: 'Given the danger to the safety of the United States and the nature of international terrorism ...

it is not practicable to apply in military commissions ...

the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the US district courts.'

A battery of additional orders has set out some elements of the proposed procedure for the commissions.

Lord Goldsmith clearly remains to be convinced that the sum total will amount to the 'fair and public hearing by a competent, independent and impartial tribunal established by law'.

This, reasonably enough, is the accepted standard, set out in article 14 of the International Covenant on Civil and Political Rights and reflected in the almost similar words of article 6 of the European Convention on Human Rights.

Arguments have been raised asking whether military commissions could ever be the right venue for the trial of the Guantanamo Bay detainees.

This may be right but, if military commissions are to be established, then they should comply with international standards.

The minimum position is surely that, whether alleged Taliban or al-Qaeda fighters, detainees should be treated as prisoners of war 'until such time as their status has been determined by a competent tribunal' under article 5 of the 3rd Geneva Convention 1949.

Since the US has established no such tribunals, the minimum entitlement of the detainees is to be treated as prisoners of war.

As such, they must not be tried by 'a court of any kind which does not offer the essential guarantees of indepen-dence and impartiality as generally recognised' under article 84 of the 3rd convention.

The US has established tribunals to adjudicate status in Iraq where, composed of three military officers, they began sitting in April.

Afghanistan was regarded as different.

The US courts have been pusillanimous in their treatment of challenges.

A federal court of appeals disdained to intervene, equating the detainee's position with that in earlier cases that agreed - more reasonably - that German POWs held in Germany were not susceptible to jurisdiction by the US courts.

Britain's Court of Appeal expressed surprise that 'the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long-term treaty'.

Of course, if not the US, then Cuba itself might have a claim of jurisdictional control.

After all, the US occupies the base on the basis of a dodgy deal in 1938 with General Batista guaranteeing it a world-class harbour and surrounding territory for a reasonable $4,000 a year which Castro sends back - suggesting repudiation of the contract.

Nevertheless, Cuba has had the sense not to push a claim for jurisdiction over the detainees and long ago planted a wall of cacti - the so-called 'cactus curtain' - to insulate the base from the rest of the island.

So, the detainees are in a jurisdictional black hole.

Six venerable US institutions across the political spectrum have filed a brief arguing that their courts really cannot give up so easily.

The appropriate test in our own or European law would be whether the US government had 'effective control' of the territory.

There seems little doubt of that.

The commission procedures retain some vestiges of due process.

There is, at least, a presumption of innocence, a right against self-incrimination, some elements of a public hearing, and provision for the presentation of evidence and the cross-examination of witnesses.

However, US Defence Secretary Donald Rumsfeld has made himself the court of appeal against tribunal decisions, there are restrictions on the role of counsel (including exclusion where confidentiality is required 'to protect the interests' of the US), and 'unreasonable delay' will not be tolerated.

Military counsel will be supplied and any additional civilian counsel will have to answer to the chief defence counsel in addition to the court.

Well may Lord Goldsmith, one-time chairman of the Human Rights Institute of the International Bar Association, have doubts.

These commissions fall so short of international human rights standards that their lack of legitimacy will surely impugn their propaganda.

The US does not make it easy to be its ally.

- The issue of the legality of the Iraq war will be explored in the annual Justice lecture at the Law Society on 14 October 2003.

Roger Smith is the director of the human rights campaigning group Justice