PART 2: HUMAN RIGHTS ISSUES IN THE PROSECUTION OF INDIVIDUALS BEFORE MILITARY COMMISSIONS 285. Formal military commissions were first established in the United States during the Mexican-American War (1846-48) and the American Civil War (1861-65), when they were used to try US soldiers, US civilians and foreign nationals.620 These commissions have historically been able to try offences designated by a statute or offences in violation of the laws of war.621 The Uniform Code of Military Justice (UCMJ) affirmed this jurisdiction when it came into force in 1950.622 286. On 13 November 2001, President Bush issued a military order that authorized the establishment of military commissions to try non-US citizen members of al Qaeda and others allegedly involved in international terrorism directed against the United States.623 Military commissions were subsequently convened at Guantánamo with the first charges laid in 2004, but were soon suspended after the United States Supreme Court determined that the President had exceeded his authority in creating the military commissions by executive order.624 In response, the MCA 2006 was enacted, and prosecutions of detainees before military commissions recommenced in 2007. 287. President Obama suspended all charges pending under the MCA for 120 days after taking office in 2009, resulting in the withdrawal of many cases.625 The MCA 2009 was enacted and military commission trials recommenced in 2010. The primary regulatory framework for military commissions at Guantánamo Bay is the MCA 2009, the Rules for Military Commissions (RMC) and the Military Commission Rules of Evidence (MCRE).626 288. Since the establishment of the Guantánamo Bay detention facility in 2002, only 30 of the 780 detainees have been charged.627 Of those 30, charges have been dropped without prejudice against 15 detainees. Eight detainees have been convicted through trial or through plea agreements. Proceedings are ongoing against a further seven detainees.628 Five of those convicted have now been released from Guantánamo.629 620 Major Michael O. Lacey, “Military Commissions: A Historical Survey”, March 2002, pp. 43-44, <https://www.hsdl.org/?view&did=445207>. 621 Jennifer K. Elsea, “The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues”, 4 August 2014, p. 6, <http://fas.org/sgp/crs/natsec/R41163.pdf>. 622 UCMJ, 6 May 1950, Art. 21, <http://www.ucmj.us/>: “[t]he provisions (…) conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals”. 623 George W. Bush, Military Order, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”, op. cit., note 47. 624 United States Supreme Court, Hamdan v. Rumsfeld, op. cit., note 11. 625 United States Military Commission, United States of America v. Mohammad et al., P-009, “Commission Ruling Regarding Government Motion for 120-Day Continuance”, 21 January 2009. 626 Manual for Military Commissions, United States, 2012. 627 Andy Worthington, “The Full List of Prisoners Charged in the Military Commissions at Guantánamo”, andyworthington.co.uk, March 2014, <http://www.andyworthington.co.uk/the-full-list-of-prisoners-charged-in-the-militarycommissions-at-guantanamo/>. 628 Rosenberg, “By the Numbers”, op. cit., note 88. 629 As addressed in more detail below, Omar Ahmed Khadr, Salim Ahmed Hamdan, David Hicks, Noor Uthman Muhammed and Ibrahim Ahmed Mahmoud al Qosi have been released. 124