conspiracy to the jurisdiction of the Guantánamo military commissions.730 As noted by one of the judges in his concurrence, “as a result of [this] decision, Congress will be unable to vest military commissions with jurisdiction over crimes that do not violate the international law of war”.731 319. Despite the fact that the charge of providing material support for terrorism violates the prohibition of retroactive offences, seven detainees have either agreed to plead guilty to, or been convicted by a military commission of, providing material support for terrorism.732 These convictions are not only violations of the Ex Post Facto Clause of the US Constitution, as established in al Bahlul’s case, but they also constitute violations of international standards regarding the principle of legality. d. Recommendations • • • • To disestablish the Guantánamo military commissions; To ensure that Guantánamo detainees suspected of a criminal offence are prosecuted before ordinary civilian courts which are established and operate in accordance with international fair trial standards; To immediately vacate all convictions (whether by guilty verdicts following a trial by a military commission or the result of a plea agreement) for providing material support for terrorism, solicitation, and inchoate conspiracy; To ensure that all other past convictions before the military commissions (whether by guilty verdicts following a trial by military commission or the result of a plea agreement) are vacated in respect of other offences that did not exist at the time of the alleged conduct. B. EQUALITY BEFORE THE LAW AND COURTS, EQUAL PROTECTION OF THE LAW AND NON-DISCRIMINATION a. International Standards 320. The principles of equality before the law and courts, equal protection of the law and nondiscrimination are protected under numerous international instruments, including under Articles 2, 14 and 26 of the ICCPR733 and OSCE commitments.734 730 United States Court of Appeals for the District of Columbia Circuit, al Bahlul v. United States of America, 12 June 2015, ibid. As previously mentioned, the United States has petitioned for a rehearing en banc of this decision. 731 Ibid. 732 Ali Hamza al Bahlul and Salim Hamdan were convicted by military commissions of providing material support for terrorism. Both convictions have been overturned. David Hicks, Ibrahim al Qosi, Omar Khadr, Noor Uthman Muhammed and Majid Khan agreed to plead guilty to the charge of providing material support for terrorism. As previously mentioned, David Hicks’ conviction for material support for terrorism was vacated in February 2015 and the Convening Authority disapproved the findings and sentence in the case of Noor Uthman Muhammed and therefore decided to dismiss the charges against him in January 2015. 733 Whereas Article 2(1) of the ICCPR can be violated only in conjunction with other rights guaranteed under the Covenant, Article 26 provides an autonomous right. Article 14(1) of the ICCPR provides for a “specific manifestation of the general right to equality” (Art. 26). Nowak, CCPR Commentary, op. cit., note 93, pp. 35, 45, 307; UN HRC, General Comment No. 18: Nondiscrimination, HRI/GEN/1/Rev.6 at 146, 10 November 1989, paras. 3, 12, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11>. See, also, ACHR, Arts. 1, 24; UDHR, Arts. 2, 7; ADRDM, Art. II; International Convention on the Elimination of All Forms of Racial Discrimination, New York, 21 December 1965, <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx>. 140