trials of civilians by the military commissions raise concerns regarding the equitable, impartial and independent administration of justice. 52. The military commissions’ jurisdiction over several offences that are not recognized as or defined in accordance with existing law of war offences at the time of the conduct violates the principle of legality which is protected under both international human rights law and international humanitarian law. Furthermore, the plea agreements and convictions by the military commissions of seven detainees for providing material support for terrorism, an offence that was neither a violation of the laws of war recognized at the international level nor an established offence under domestic law, violate international standards on the prohibition of retroactive offences. 53. Equality before the law and courts, equal protection of the law and nondiscrimination. The military commissions are a separate system of justice expressly designed to prosecute only certain non-citizens. No objective and reasonable criteria seem to justify that US citizens accused of terrorism-related offences are tried before ordinary courts whereas non-citizens are facing proceedings before the military commissions. While significantly improved, the current iteration of the military commissions continues to offer lower safeguards than ordinary courts. The legislative provision limiting military commission jurisdiction to non-US citizens and the differentiation in treatment appear to violate the prohibition of discrimination and the principle of equal protection of the law. Such principles are protected under international human rights law, and discrimination is prohibited as a norm of customary international humanitarian law applicable to both international and non-international armed conflicts. 54. The military commissions’ jurisdiction is not expressly limited on the basis of gender or religion. However, in practice, only Muslim men have been prosecuted, thus giving rise to concern that the treatment of the defendants may be discriminatory. Fair Trial Guarantees in Proceedings Before Military Commissions 55. Right to a public hearing before an independent and impartial tribunal established by law. Military commissions do not present sufficient guarantees of structural independence and of impartiality as required under the ICCPR, OSCE commitments and international humanitarian law. They remain an ad hoc system which has denied Guantánamo detainees the right to be tried by well-established legal procedures of ordinary federal courts or courts-martial. The broad powers of the Department of Defense Convening Authority, compounded by its proximity with the executive branch and its potential influence in the proceedings; the insecurity of tenure of judges who are selected directly or indirectly by the Convening Authority; the appointment of on active duty military officers as jurors, including potentially from the same chain of command, as well as prejudicial public statements by US high officials and elected politicians asserting the defendants’ guilt cast doubts on the independence and impartiality of the military commissions, or appearance thereof. Recent rulings in the military commissions have alleviated some of these concerns. 17