Rule 100. No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Several trials held after the Second World War, but before the adoption of the Geneva Conventions in 1949, found the defendants guilty of denying fair trial to prisoners of war or civilians.[1] The right to fair trial is provided for in all four Geneva Conventions and in Additional Protocols I and II.[2] Depriving a protected person of a fair and regular trial is a grave breach under the Third and Fourth Geneva Conventions and under Additional Protocol I.[3] Common Article 3 of the Geneva Conventions prohibits the sentencing of persons or the carrying out of executions without previous judgment pronounced by a regularly constituted court.[4] Depriving a person of the right to a fair trial is listed as a war crime in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[5]
The right to fair trial is set forth in numerous military manuals.[6] The denial of fair trial is a criminal offence under the legislation of a very large number of States, most being applicable in both international and non-international armed conflicts.[7] The right to fair trial is also supported by official statements and other practice in relation to non-international armed conflicts.[8] There is also national case-law to the effect that a violation of this rule in non-international armed conflicts amounts to a war crime.[9]
The right to fair trial is also included in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone for accused persons appearing before them.[10]
The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights conventions provide for the right to fair trial.[11] This right is also set forth in other international instruments.[12] In its General Comment on Article 4 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that “fundamental principles of fair trial” may never be derogated from.[13] This conclusion is supported by the practice of regional human rights bodies.[14]
Both international humanitarian law and human rights law incorporate a series of judicial guarantees aimed at ensuring that accused persons receive a fair trial.
Trial by an independent, impartial and regularly constituted court
Pursuant to common Article 3 of the Geneva Conventions, only a “regularly constituted court” may pass judgment on an accused person.[15] The Third Geneva Convention requires that courts judging prisoners of war offer the essential guarantees of “independence” and “impartiality”.[16] This requirement is also set forth in Additional Protocol II.[17] Additional Protocol I requires an “impartial and regularly constituted court”.[18]
The requirements that courts be independent, impartial and regularly constituted are set forth in a number of military manuals.[19] These requirements are also contained in national legislation and are supported by official statements and reported practice.[20] Several of these sources stress that these requirements may not be suspended during emergencies.[21]
Whereas common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol I require a “regularly constituted” court, human rights treaties require a “competent” tribunal,[22] and/or a tribunal “established by law”.[23] A court is regularly constituted if it has been established and organized in accordance with the laws and procedures already in force in a country.
The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights conventions specify that for a trial to be fair it must be conducted by a court that is “independent” and “impartial”.[24] The requirements of independence and impartiality are also to be found in a number of other international instruments.[25] Both the UN Human Rights Committee and the Inter-American Commission on Human Rights have indicated that the requirement for courts to be independent and impartial can never be dispensed with.[26]
The meaning of an independent and impartial tribunal has been considered in case-law. In order to be independent, a court must be able to perform its functions independently of any other branch of the government, especially the executive.[27] In order to be impartial, the judges composing the court must not harbour preconceptions about the matter before them, nor act in a way that promotes the interests of one side.[28] In addition to this requirement of subjective impartiality, regional human rights bodies have pointed out that a court must also be impartial from an objective viewpoint, i.e., it must offer sufficient guarantees to exclude any legitimate doubt about its impartiality.[29]
The need for independence of the judiciary from the executive, as well as subjective and objective impartiality, has meant that in a number of cases, military tribunals and special security courts have been found not to be independent and impartial. While none of these cases concluded that military tribunals inherently violate these requirements, they all stressed that military tribunals and special security courts must respect the same requirements of independence and impartiality as civilian tribunals.[30]
In this context, it should also be noted that the Third Geneva Convention provides that prisoners of war are to be tried by a military court, unless the laws of the detaining power would allow civilian courts to try its own soldiers for the same type of offence. However, this provision is conditioned by the requirement that “in no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality”.[31]
Furthermore, the Fourth Geneva Convention provides that the occupying power may hand over persons who violate penal provisions promulgated by it to “its properly constituted, non-political military courts, on condition that the said courts sit in the occupied territory. Courts of appeal shall preferably sit in the occupied territory.”[32] Regional human rights bodies have found, however, that the trial of civilians by military courts constitutes a violation of the right to be tried by an independent and impartial tribunal.[33]
Presumption of innocence
The presumption of innocence is provided for in Additional Protocols I and II.[34] It is also included in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone for accused persons appearing before these tribunals.[35]
The presumption of innocence is included in several military manuals and is part of most, if not all, national legal systems.[36] In the Ohashi case, a war crimes trial in 1946, the judge advocate stressed the need for no preconceived notions on the part of the judges and that the court must satisfy itself that the accused was guilty.[37]
The presumption of innocence is set forth in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights conventions provide for the presumption of innocence.[38] It is also contained in several other international instruments.[39] Both the UN Human Rights Committee and the Inter-American Commission on Human Rights have indicated that the presumption of innocence can never be dispensed with.[40]
The presumption of innocence means that any person subject to penal proceedings must be presumed to be not guilty of the act he or she is charged with until proven otherwise. This means that the burden of proof lies on the prosecution, while the defendant has the benefit of the doubt.[41] It also means that guilt must be proven according to a determined standard: “beyond a reasonable doubt” (in common law countries) or “to the intimate conviction of the trier of fact” (in civil law countries). It is, moreover, the duty of all officials involved in a case, as well as of public authorities, to refrain from prejudging the outcome of a trial.[42] The African Commission on Human and Peoples’ Rights found a violation of the presumption of innocence in a case where a court presumed the guilt of the defendants because they refused to defend themselves. [43]
Information on the nature and cause of the accusation
The obligation to inform the accused of the nature and cause of the accusation is provided for in the Third and Fourth Geneva Conventions, as well as in Additional Protocols I and II.[44] This obligation is also included in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone for accused persons appearing before these tribunals.[45]
The obligation to inform the accused of the nature and cause of the accusation is set forth in several military manuals and is part of most, if not all, national legal systems.[46] This obligation was recalled in war crimes trials after the Second World War.[47]
The obligation to inform the accused of the nature and cause of the charges is also contained in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European and American Conventions on Human Rights.[48] The African Commission on Human and Peoples’ Rights held that compliance with this obligation was indispensable for the enjoyment of the right to fair trial.[49] This obligation is also set forth in other international instruments.[50] Both the UN Human Rights Committee and the Inter-American Commission on Human Rights have indicated that the obligation to inform the accused of the nature and cause of the charges can never be dispensed with.[51]
Most of the treaty provisions specify that information on the nature and cause of the charge must be given to the accused “without delay” or “promptly” and that the information must be provided in a language the accused understands.[52]
Necessary rights and means of defence
The requirement that an accused must have the necessary rights and means of defence is contained in all four Geneva Conventions, as well as in Additional Protocols I and II.[53]
This requirement is also provided for in a number of military manuals and is part of most, if not all, national legal systems.[54]
The right to defence is also set forth in the International Covenant on Civil and Political Rights and the regional human rights conventions.[55] It is also contained in other international instruments.[56] The UN Human Rights Committee has indicated that the right of an accused to necessary rights and means of defence can never be dispensed with.[57]
These sources specify that the necessary rights and means of defence include the following:
(i) Right to defend oneself or to be assisted by a lawyer of one’s own choice. The right to have the assistance of counsel was set forth in the Charters of the International Military Tribunals at Nuremberg and at Tokyo.[58] This right is also set forth in the Third and Fourth Geneva Conventions.[59] The Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone provide that accused persons appearing before the tribunals are entitled to defend themselves or to be assisted by counsel of their own choice and to be informed of this right if they have no legal assistance.[60]
Denial of the right to counsel of one’s own choice or to counsel altogether was one of the bases for the finding of a violation of the right to fair trial in several war crimes trials after the Second World War.[61] In a resolution on the human rights situation in the former Yugoslavia adopted in 1996, the UN Commission on Human Rights called upon Croatia “to pursue vigorously prosecutions against those suspected of past violations of international humanitarian law and human rights, while ensuring that the rights … to legal representation are afforded to all persons suspected of such crimes”.[62]
The right to defence, including the right to be defended by a lawyer of one’s own choice is also contained in the International Covenant on Civil and Political Rights and the regional human rights conventions.[63] The Inter-American Commission on Human Rights has indicated that the right to be defended by a lawyer of one’s own choice can never be dispensed with.[64] Human rights case-law has held that this requirement means that an accused cannot be forced to accept a government’s choice of lawyer.[65]
The Geneva Conventions do not indicate how soon a person has the right to a lawyer except to specify that a lawyer must be had, not only during the trial, but before it as well.[66] The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly without a vote, specifies that communication with counsel may not be denied for more than “a matter of days”.[67] The Basic Principles on the Role of Lawyers specifies that this must be the case “not later than forty-eight hours from the time of arrest or detention”.[68] The need for early access to a lawyer before the trial, as well as at all important stages of the trial, has been stated in the case-law of the UN Human Rights Committee and regional human rights bodies.[69]
(ii) Right to free legal assistance if the interests of justice so require. This right is implicitly recognized in the Third and Fourth Geneva Conventions.[70] It is also provided for in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[71]
The right to the services of a lawyer free of charge if the interests of justice so require is also set forth in the International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights.[72] This right is also contained in other international instruments.[73] The Inter-American Commission on Human Rights has indicated that the right to free legal assistance if the interests of justice so require can never be dispensed with.[74] A number of criteria have been identified in human rights case-law on the basis of which it must be determined whether the interests of justice require the free services of a lawyer, in particular the complexity of the case, the seriousness of the offence and the severity of the sentence the accused risks.[75]
(iii) Right to sufficient time and facilities to prepare the defence. The Third and Fourth Geneva Conventions specify that the necessary means of defence include sufficient time and facilities before the trial to prepare the defence.[76] This requirement is also set forth in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[77]
The right to sufficient time and facilities to prepare the defence is contained in the International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights.[78] It is also included in other international instruments.[79] The Inter-American Commission on Human Rights has indicated that the right to sufficient time and facilities to prepare the defence can never be dispensed with.[80]
As specified in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly without a vote, this right requires that “a detained person shall be allowed adequate time and facilities for consultation with his legal counsel”.[81]
(iv) Right of the accused to communicate freely with counsel. The right of counsel to visit the accused freely is provided for in the Third and Fourth Geneva Conventions.[82] The right of the accused to communicate freely with counsel is also provided for in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[83]
The right of the accused to communicate freely with counsel is provided for in the American Convention on Human Rights and in other international instruments.[84] The UN Human Rights Committee and regional human rights bodies have stressed the importance of the right of the accused to communicate freely with counsel in order to have a fair trial.[85]
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly without a vote, specifies that “interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within hearing, of a law enforcement official”.[86]
Trial without undue delay
The right to a trial without undue delay is provided for in the Third and Fourth Geneva Conventions.[87] This right is also set forth in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[88]
The right to trial without delay is set forth in several military manuals and is part of most, if not all, national legal systems.[89]
The right to a trial without undue delay (or within a reasonable time) is provided for in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights conventions. [90] It is also provided for in other international instruments.[91]
The actual length of time is not specified in any instrument and must be judged on a case-by-case basis taking into account factors such as the complexity of the case, the behaviour of the accused and the diligence of the authorities.[92] The proceedings subject to this requirement are those from the time of the charge to the final trial on the merits, including appeal.[93]
Examination of witnesses
The right of the accused to examine and to have examined witnesses is provided for by the Third and Fourth Geneva Conventions and Additional Protocol I.[94] This right is also set forth in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[95]
Several military manuals specify this right, and it is part of most, if not all, national legal systems.[96] The inability to examine and to have examined witnesses for the prosecution was one of the bases of the finding of a violation of the right to fair trial in war crimes trials after the Second World War.[97]
The right to examine and to have examined witnesses is provided for by the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European and American Conventions on Human Rights.[98] While the African Charter on Human and Peoples’ Rights does not explicitly provide for this right, the African Commission on Human and Peoples’ Rights has specified that it is part and parcel of the right to fair trial.[99] Both the UN Human Rights Committee and the Inter-American Commission on Human Rights have indicated that the right to examine and to have examined witnesses can never be dispensed with.[100]
Assistance of an interpreter
The right to the assistance of an interpreter, if the accused cannot understand the language used in the proceedings, is provided for in the Third and Fourth Geneva Conventions.[101] It is included in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone for accused persons appearing before these tribunals.[102]
The right to the assistance of an interpreter, if the accused cannot understand the language used in the proceedings, is set forth in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European and American Conventions on Human Rights.[103] While the African Charter on Human and Peoples’ Rights does not explicitly provide for this right, the African Commission on Human and Peoples’ Rights has specified that it is part and parcel of the right to fair trial.[104] The European Court of Human Rights has held that this right includes the obligation of the authorities to have translated or interpreted not only oral statements, but also documents used as evidence.[105]
Presence of the accused at the trial
Additional Protocols I and II provide that accused persons have the right to be tried in their presence.[106] Upon ratification of the Additional Protocols, several States made a reservation to this right to the effect that this provision is subject to the power of a judge to exclude the accused from the courtroom, in exceptional circumstances, when the accused causes a disturbance and thereby impedes the progress of the trial.[107] The right of an accused to be present at his or her trial is provided for in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[108]
The right of the accused to be present at the trial is contained in several military manuals and is part of most, if not all, national legal systems.[109]
The International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights provide that an accused has the right to be present at the trial.[110] The UN Human Rights Committee and the European Court of Human Rights have stated that a hearing in absentia is possible if the State has given effective notice of the hearing and the accused chooses not to appear.[111] Both have also stated that the right to be present in person is also required in appeal proceedings if the appeal hears questions of both fact and law, and not only of law.[112] There is clearly a trend, however, against trials in absentia, as evidenced by the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone, which do not allow such trials.[113]
Compelling accused persons to testify against themselves or to confess guilt
The prohibition on compelling accused persons to testify against themselves or to confess guilt is set forth in the Third Geneva Convention, as well as in Additional Protocols I and II.[114] This prohibition is provided for in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[115]
This prohibition is contained in several military manuals and is part of most, if not all, national legal systems.[116] In the Ward case in 1942, the US Supreme Court held that the use of a confession obtained under compulsion constituted a denial of due process.[117]
The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the American Convention on Human Rights prohibit compelling accused persons to testify against themselves or to confess guilt.[118] This prohibition is also to be found in several other international instruments.[119] Both the UN Human Rights Committee and the Inter-American Commission on Human Rights have indicated that the prohibition against compelling accused persons to testify against themselves or to confess guilt can never be dispensed with.[120]
The UN Human Rights Committee has underlined that “the law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable”.[121] The UN Convention against Torture provides that statements which have been made as a result of torture may not be invoked as evidence in any proceedings.[122] This view is confirmed in national and international case-law.[123]
Public proceedings
The Third and Fourth Geneva Conventions provide that representatives of the protecting power are entitled to attend the trial, unless, exceptionally, it is held in camera in the interests of security, whereas Additional Protocol I states that the judgment must be pronounced publicly.[124] The Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone similarly lay down the principle of a public hearing, subject to narrow exceptions, and the requirement of a public pronouncement of the judgment.[125]
The requirement of public proceedings is set forth in several military manuals and is part of most, if not all, national legal systems.[126] In the war crimes trial of Altstötter (The Justice Trial) case in 1947, the US Military Tribunal at Nuremberg found a violation of the right to fair trial because proceedings were held in secret and no public record was kept.[127]
The requirement that the trial be held in public and judgment pronounced publicly, unless this would prejudice the interests of justice, is set forth in the International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights.[128] Although the right to public proceedings is not mentioned in the African Charter on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights has stated that this is required for a trial to be fair.[129] The principle of a public trial is to be found in several other international instruments.[130]
Advising convicted persons of available remedies and of their time-limits
The Third and Fourth Geneva Conventions and both Additional Protocols provide that convicted persons are to be advised of their judicial or other remedies and the time-limits within which they may be exercised.[131] Article 106 of the Third Geneva Convention states that convicted persons shall have a right to appeal in the same manner as members of the armed forces of the detaining power.[132] Article 73 of the Fourth Geneva Convention states that a convicted person shall have the right to appeal provided for by the law applied by the court.[133]
The ICRC Commentary on the Additional Protocols states that at the time of the adoption of the Protocols in 1977 not enough national legislation provided for the right to appeal in order to make this an absolute requirement – even though no one should be denied the right to appeal where it exists.[134] However, there have been significant developments since that time in both national and international law. The majority of States now have constitutions or legislation providing for the right to appeal, especially those adopted or amended since the adoption of the Additional Protocols.[135] In addition, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights conventions all provide for the right to appeal to a higher tribunal. [136] The Inter-American Commission on Human Rights has stated that the right of appeal can never be dispensed with and must be provided in situations of non-international armed conflict.[137]
In conclusion, the influence of human rights law on this issue is such that it can be argued that the right of appeal proper – and not only the right to be informed whether appeal is available – has become a basic component of fair trial rights in the context of armed conflict.
Non bis in idem
The Third and Fourth Geneva Conventions provide that a prisoner of war and civilian internee, respectively, must not be punished more than once for the same act or on the same charge.[138] Additional Protocol I provides that no one shall be prosecuted or punished by the same party for an offence in respect of which a final judgment has been pronounced.[139] The same rule is set forth in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[140]
The principle of non bis in idem is also set forth in several military manuals and is part of most, if not all, national legal systems.[141]
The International Covenant on Civil and Political Rights, the American Convention on Human Rights and Protocol 7 to the European Convention on Human Rights include the principle of non bis in idem.[142] This principle is also included in other international instruments.[143]
It should be noted that the principle of non bis in idem does not prohibit the reopening of a trial in exceptional circumstances, and several States made a reservation to this effect upon ratification of Additional Protocol I.[144] The UN Human Rights Committee has stated that most States make a clear distinction between a resumption of a trial justified by exceptional circumstances and a re-trial prohibited pursuant to the principle of non bis in idem and has held that the principle of non bis in idem does not exclude prosecutions for the same offence in different States.[145] Protocol 7 to the European Convention on Human Rights provides that a case may be reopened if there is evidence of new facts or if there has been a fundamental defect in the previous proceedings which could affect the outcome of the case.[146]
[1] See, e.g., Australia, Military Court at Rabaul, Ohashi case (cited in Vol. II, Ch. 32, § 2957); United Kingdom, Military Court at Almelo, Almelo case (ibid., § 2959); United States, Military Commission at Rome, Dostler case (ibid., § 2960); United States, Military Commission at Shanghai, Sawada case (ibid., § 2961) and Isayama case (ibid., § 2962); United States, Military Court at Wuppertal, Rhode case (ibid., § 2963); United States, Military Tribunal at Nuremberg, Altstötter case (ibid., § 2964).
[2] First Geneva Convention, Article 49, fourth paragraph (ibid., § 2788); Second Geneva Convention, Article 50, fourth paragraph (ibid., § 2788); Third Geneva Convention, Articles 102–108 (ibid., § 2789); Fourth Geneva Convention, Articles 5 and 66–75 (ibid., §§ 2791–2792); Additional Protocol I, Article 75(4) (adopted by consensus) (ibid., § 2799); Additional Protocol II, Article 6(2) (adopted by consensus) (ibid., § 3045). The principle of the right to fair trial is also provided for in Article 17(2) of the Second Protocol to the Hague Convention for the Protection of Cultural Property (ibid., § 2807).
[3] Third Geneva Convention, Article 130 (ibid., § 2790); Fourth Geneva Convention, Article 147 (ibid., § 2794); Additional Protocol I, Article 85(4)(e) (adopted by consensus) (ibid., § 2800).
[4] Geneva Conventions, common Article 3 (ibid., § 2787).
[5] ICC Statute, Article 8(2)(a)(vi) and (c)(iv) (ibid., § 2803); ICTY Statute, Article 2(f) (ibid., § 2822); ICTR Statute, Article 4(g) (ibid., § 2825); Statute of the Special Court for Sierra Leone, Article 3(g) (ibid., § 2808).
[6] See, e.g., the military manuals of Argentina (ibid., §§ 2836–2837), Australia (ibid., §§ 2838–2839), Belgium (ibid., § 2840), Benin (ibid., § 2841), Burkina Faso (ibid., § 2842), Cameroon (ibid., § 2843), Canada (ibid., § 2844), Colombia (ibid., §§ 2845–2848), Congo (ibid., § 2849), Ecuador (ibid., § 2850), El Salvador (ibid., § 2852), France (ibid., §§ 2853–2856), Germany (ibid., § 2857), Indonesia (ibid., § 2858), Italy (ibid., § 2859), Kenya (ibid., § 2860), Republic of Korea (ibid., § 2861), Madagascar (ibid., § 2862), Mali (ibid., § 2863), Morocco (ibid., § 2864), Netherlands (ibid., § 2865), New Zealand (ibid., § 2866), Nigeria (ibid., § 2868), Peru (ibid., §§ 2869–2870), Russian Federation (ibid., § 2871), Senegal (ibid., §§ 2872–2873), South Africa (ibid., § 2874), Spain (ibid., § 2875), Sweden (ibid., §§ 2876–2877), Switzerland (ibid., § 2878), Togo (ibid., § 2879), United Kingdom (ibid., §§ 2880–2881) and United States (ibid., §§ 2882–2887).
[7] See in general the legislation (ibid., §§ 2888–2956) and in particular the legislation of Armenia (ibid., § 2889), Australia (ibid., § 2891), Azerbaijan (ibid., § 2892), Bangladesh (ibid., § 2893), Belarus (ibid., § 2895), Belgium (ibid., § 2896), Bosnia and Herzegovina (ibid., § 2897), Cambodia (ibid., § 2901), Canada (ibid., § 2903), Colombia (ibid., § 2904), Congo (ibid., § 2905), Croatia (ibid., § 2907), Estonia (ibid., § 2911), Ethiopia (ibid., § 2912), Georgia (ibid., § 2913), Germany (ibid., § 2914), Ireland (ibid., § 2917), Lithuania (ibid., § 2923), Moldova (ibid., § 2929), Netherlands (ibid., § 2930), New Zealand (ibid., § 2932), Nicaragua (ibid., § 2933), Niger (ibid., § 2935), Norway (ibid., § 2937), Poland (ibid., § 2939), Slovenia (ibid., § 2943), Spain (ibid., §§ 2944–2945), Tajikistan (ibid., § 2947), Thailand (ibid., § 2948), United Kingdom (ibid., § 2952), United States (ibid., § 2953) and Yugoslavia (ibid., § 2955); see also the legislation of Bulgaria (ibid., § 2899), Hungary (ibid., § 2915), Italy (ibid., § 2918) and Romania (ibid., § 2940), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 2888), Burundi (ibid., § 2900), El Salvador (ibid., § 2910), Jordan (ibid., § 2919), Nicaragua (ibid., § 2934) and Trinidad and Tobago (ibid., § 2949).
[8] See, e.g., the statements of Belgium (ibid., § 2966) and United States (ibid., § 2971) and the practice of China (ibid., § 2967).
[9] See, e.g., Chile, Appeal Court of Santiago, Videla case (ibid., § 2958).
[10] ICC Statute, Article 67(1) (ibid., § 2805); ICTY Statute, Article 21(2) (ibid., § 2824); ICTR Statute, Article 20(2) (ibid., § 2827); Statute of the Special Court for Sierra Leone, Article 17(2) (ibid., § 2809).
[11] International Covenant on Civil and Political Rights, Article 14(1) (ibid., § 2796); Convention on the Rights of the Child, Article 40(2)(b)(iii) (ibid., § 2802); European Convention on Human Rights, Article 6(1) (ibid., § 2795); American Convention on Human Rights, Article 8(1) (ibid., § 2797); African Charter on Human and Peoples’ Rights, Article 7 (ibid., § 2801).
[12] See, e.g., Universal Declaration on Human Rights, Article 10 (ibid., § 2812); American Declaration on the Rights and Duties of Man, Article XVIII (ibid., § 2813); Cairo Declaration on Human Rights in Islam, Article 19(e) (ibid., § 2818); EU Charter on Fundamental Rights, Article 47 (ibid., § 2833).
[13] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998).
[14] See, e.g., African Commission on Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (ibid., § 3007); Inter-American Commission on Human Rights, Resolution concerning the law applicable to emergency situations (ibid., § 3016) and Report on Terrorism and Human Rights (ibid., § 3019); Inter-American Court of Human Rights, Judicial Guarantees case (ibid., § 3020).
[15] Geneva Conventions, common Article 3 (ibid., § 3038).
[16] Third Geneva Convention, Article 84, second paragraph (ibid., § 3039).
[17] Additional Protocol II, Article 6(2) (adopted by consensus) (ibid., § 3045).
[18] Additional Protocol I, Article 75(4) (adopted by consensus) (ibid., § 3044).
[19] See, e.g., the military manuals of Argentina (ibid., §§ 3058–3059), Belgium (ibid., § 3060), Canada (ibid., § 3061), Croatia (ibid., § 3062), Netherlands (ibid., § 3063), New Zealand (ibid., § 3064), Spain (ibid., § 3065), Sweden (ibid., § 3066), Switzerland (ibid., § 3067), United Kingdom (ibid., § 3068) and United States (ibid., §§ 3069–3070).
[20] See, e.g., the legislation of Bangladesh (ibid., § 3071), Czech republic (ibid., § 3072), Georgia (ibid., § 3073), Germany (ibid., § 3074), Ireland (ibid., § 3075), Kenya (ibid., § 3076), Kuwait (ibid., § 3077), Kyrgyzstan (ibid., § 3078), Lithuania (ibid., § 3079), Norway (ibid., § 3081), Netherlands (ibid., § 3080) and Slovakia (ibid., § 3082), the statements of the United States (ibid., §§ 3085–3086) and the reported practice of Nicaragua (ibid., § 3085) and Cambodia (ibid., § 3085).
[21] See, e.g., the military manual of Croatia (ibid., § 3062) and the legislation of Georgia (ibid., § 3073), Kuwait (ibid., § 3077) and Kyrgyzstan (ibid., § 3078).
[22] International Covenant on Civil and Political Rights, Article 14(1) (ibid., § 3042); American Convention on Human Rights, Article 8(1) (ibid., § 3043); Convention on the Rights of the Child, Article 40(2)(b)(iii) (ibid., § 3048).
[23] International Covenant on Civil and Political Rights, Article 14(1) (ibid., § 2796); European Convention on Human Rights, Article 6(1) (ibid., § 2795); American Convention on Human Rights, Article 8(1) (ibid., § 2797).
[24] International Covenant on Civil and Political Rights, Article 14(1) (ibid., § 3042); Convention on the Rights of the Child, Article 40(2)(b)(iii) (ibid., § 3048); European Convention on Human Rights, Article 6(1) (ibid., § 3041); American Convention on Human Rights, Article 8(1) (ibid., § 3043); African Charter on Human and Peoples’ Rights, Article 7(1)(d) (ibid., § 3046) and Article 26 (ibid., § 3047).
[25] See, e.g., Universal Declaration on Human Rights, Article 10 (ibid., § 3050); American Declaration on the Rights and Duties of Man, Article XXVI (ibid., § 3051); Basic Principles on the Independence of the Judiciary, §§ 1 and 2 (ibid., § 3052); EU Charter of Fundamental Rights, Article 47 (ibid., § 3057).
[26] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998); Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[27] UN Human Rights Committee, Bahamonde v. Equatorial Guinea (ibid., § 3091); African Commission on Human and Peoples’ Rights, Centre For Free Speech v. Nigeria (206/97) (ibid., § 3094); European Court of Human Rights, Belilos case (ibid., § 3098) and Findlay v. UK (ibid., § 3100). The Inter-American Commission on Human Rights underlined the need for freedom from interference from the executive and security of tenure of the judges in its Annual Report 1992–1993 (ibid., § 3104) and Case 11.006 (Peru) (ibid., § 3106).
[28] See Australia, Military Court at Rabaul, Ohashi case (ibid., § 3083); UN Human Rights Committee, Karttunen v. Finland (ibid., § 3090).
[29] See African Commission on Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria (60/91) (ibid., § 3093) and Malawi African Association and Others v. Mauritania (ibid., § 3095); European Court of Human Rights, Piersack case (ibid., § 3097) and Findlay case (ibid., § 3100); Inter-American Commission on Human Rights, Case 10.970 (Peru) (ibid., § 3107).
[30] See African Commission on Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria (60/91) (ibid., § 3093) and Civil Liberties Organisation and Others v. Nigeria (ibid., § 3096); European Court of Human Rights, Findlay v. UK (ibid., § 3100), Ciraklar v. Turkey (ibid., § 3101) and Sahiner v. Turkey (ibid., § 3103); Inter-American Commission on Human Rights, Case 11.084 (Peru) (ibid., § 3105).
[31] Third Geneva Convention, Article 84 (ibid., § 3039).
[32] Fourth Geneva Convention, Article 66 (ibid., § 3040).
[33] African Commission on Human and Peoples’ Rights, Media Rights Agenda v. Nigeria (224/98) (trial of a civilian “by a Special Military Tribunal, presided over by serving military officers, who are still subject to military commands, without more, [is] prejudicial to the basic principles of fair hearing”) (ibid., § 3003) and Civil Liberties Organisation and Others v. Nigeria (“the military tribunal fails the independence test”) (ibid., § 3096); European Court of Human Rights, Cyprus case (because of “the close structural links between the executive power and the military officers serving on the ‘TRNC’ military courts”) (ibid., § 3102); Inter-American Commission on Human Rights, Doctrine concerning judicial guarantees and the right to personal liberty and security (ibid., § 3019).
[34] Additional Protocol I, Article 75(4)(d) (adopted by consensus) (ibid., § 3115); Additional Protocol II, Article 6(2)(d) (adopted by consensus) (ibid., § 3116).
[35] ICC Statute, Article 66 (ibid., § 3119); ICTY Statute, Article 21(3) (ibid., § 3128); ICTR Statute, Article 20(3) (ibid., § 3129); Statute of the Special Court for Sierra Leone, Article 17(3) (ibid., § 3120).
[36] See, e.g., the military manuals of Argentina (ibid., § 3133), Canada (ibid., § 3134), Colombia (ibid., §§ 3135–3136), New Zealand (ibid., § 3137) and Sweden (ibid., § 3138) and the legislation of Bangladesh (ibid., § 3140), Ethiopia (ibid., § 3139), Georgia (ibid., § 3139), Ireland (ibid., § 3141), Kenya (ibid., § 3139), Kyrgyzstan (ibid., § 3139), Norway (ibid., § 3142) and Russian Federation (ibid., § 3139).
[37] Australia, Military Court at Rabaul, Ohashi case (ibid., § 3143).
[38] International Covenant on Civil and Political Rights, Article 14(2) (ibid., § 3113); Convention on the Rights of the Child, Article 40(2)(b)(i) (ibid., § 3118); European Convention on Human Rights, Article 6(2) (ibid., § 3112); American Convention on Human Rights, Article 8(2) (ibid., § 3114); African Charter on Human and Peoples’ Rights, Article 7(1) (ibid., § 3117).
[39] See, e.g., Universal Declaration on Human Rights, Article 11 (ibid., § 3121); American Declaration on the Rights and Duties of Man, Article XXVI (ibid., § 3122); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 36 (ibid., § 3123); Cairo Declaration on Human Rights in Islam, Article 19 (ibid., § 3124); EU Charter of Fundamental Rights, Article 48(1) (ibid., § 3132).
[40] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998); Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[41] See, e.g., UN Human Rights Committee, General Comment No. 13 (Article 14 of the International Covenant on Civil and Political Rights) (ibid., § 3147).
[42] See, e.g., UN Human Rights Committee, General Comment No. 13 (Article 14 of the International Covenant on Civil and Political Rights) (ibid., § 3147) and Gridin v. Russia (ibid., § 3148); European Court of Human Rights, Allenet de Ribemont v. France (ibid., § 3153).
[43] African Commission on Human and Peoples’ Rights, Malawi African Association and Others v. Mauritania (54/91) (ibid., § 3151).
[44] Third Geneva Convention, Article 96, fourth paragraph (ibid., § 3161) and Article 105, fourth paragraph (ibid., § 3162); Fourth Geneva Convention, Article 71, second paragraph (ibid., § 3163) and Article 123, second paragraph (ibid., § 3164); Additional Protocol I, Article 75(4)(a) (adopted by consensus) (ibid., § 3168); Additional Protocol II, Article 6(2)(a) (adopted by consensus) (ibid., § 3169).
[45] ICC Statute, Article 67(1)(a) (ibid., § 3173); ICTY Statute, Article 21(4)(a) (ibid., § 3180); ICTR Statute, Article 20(4)(a) (ibid., § 3181); Statute of the Special Court for Sierra Leone, Article 17(4)(a) (ibid., § 3174).
[46] See, e.g., the military manuals of Argentina (ibid., §§ 3183–3184), Australia (ibid., § 3185), Canada (ibid., § 3186), Indonesia (ibid., § 3187), Netherlands (ibid., § 3188), New Zealand (ibid., § 3189), Spain (ibid., § 3190), Sweden (ibid., § 3191), Switzerland (ibid., § 3192), United Kingdom (ibid., § 3193) and United States (ibid., §§ 3194–3196) and the legislation of Bangladesh (ibid., § 3198), Ethiopia (ibid., § 3197), Georgia (ibid., § 3197), India (ibid., § 3197), Ireland (ibid., § 3199), Kenya (ibid., § 3197), Kyrgyzstan (ibid., § 3197), Mexico (ibid., § 3197) and Norway (ibid., § 3200).
[47] See, e.g., Australia, Military Court at Rabaul, Ohashi case (ibid., § 3201); United States, Military Tribunal at Nuremberg, Altstötter (The Justice Trial) case (ibid., § 2964).
[48] International Covenant on Civil and Political Rights, Article 14(3)(a) (ibid., § 3166); Convention on the Rights of the Child, Article 40(2)(b)(ii) (ibid., § 3170); European Convention on Human Rights, Article 6(3)(a) (ibid., § 3165); American Convention on Human Rights, Article 8(2)(b) (ibid., § 3167).
[49] African Commission on Human and Peoples’ Rights, Malawi African Association and Others v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, Decision, 27th Session, Algiers, 11 May 2000, § 97.
[50] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 10 (cited in Vol. II, Ch. 32, § 3176).
[51] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998); Inter-American Commission on Human Rights, Report on Terrorism and Human Rights ( ibid., § 3019).
[52] See Third Geneva Convention, Article 105, fourth paragraph (ibid., § 3162); Fourth Geneva Convention, Article 71, second paragraph (ibid., § 3163); Additional Protocol I, Article 75(4)(a) (adopted by consensus) (ibid., § 3168); Additional Protocol II, Article 6(2)(a) (adopted by consensus) (ibid., § 3169).
[53] First Geneva Convention, Article 49, fourth paragraph (ibid., § 3209); Second Geneva Convention, Article 50, fourth paragraph (ibid., § 3210); Third Geneva Convention, Article 84, second paragraph (ibid., § 3211) and Article 96, fourth paragraph (ibid., § 3212); Fourth Geneva Convention, Article 72, first paragraph (ibid., § 3215) and Article 123, first paragraph (ibid., § 3216); Additional Protocol I, Article 75(4)(a) (adopted by consensus) (ibid., § 3220); Additional Protocol II, Article 6(2)(a) (adopted by consensus) (ibid., § 3221).
[54] See, e.g., the military manuals of Argentina (ibid., §§ 3244–3245), Australia (ibid., § 3246), Canada (ibid., § 3247), Colombia (ibid., § 3248), Ecuador (ibid., § 3249), Germany (ibid., § 3250), Hungary (ibid., § 3251), Netherlands (ibid., § 3252), New Zealand (ibid., § 3253), Spain (ibid., § 3255), Sweden (ibid., § 3256), Switzerland (ibid., § 3257), United Kingdom (ibid., § 3258) and United States (ibid., §§ 3259–3262) and the legislation of Argentina (ibid., § 3264), Bangladesh (ibid., § 3265), Ethiopia (ibid., § 3263), Georgia (ibid., § 3263), India (ibid., § 3263), Ireland (ibid., § 3266), Kenya (ibid., § 3263), Kuwait (ibid., § 3263), Kyrgyzstan (ibid., § 3263), Mexico (ibid., § 3263), Norway (ibid., § 3267) and Russian Federation (ibid., § 3263).
[55] International Covenant on Civil and Political Rights, Article 14(3) (ibid., § 3218); European Convention on Human Rights, Article 6(3) (ibid., § 3217); American Convention on Human Rights, Article 8(2) (ibid., § 3219); African Charter on Human and Peoples’ Rights, Article 7(1) (ibid., § 3222). Article 14(3) of the International Covenant on Civil and Political Rights and Article 8(2) of the American Convention on Human Rights state that during the proceedings the defendant must benefit with “full equality” from the judicial guarantees listed in these articles.
[56] See, e.g., Universal Declaration on Human Rights, Article 11 (ibid., § 3228); Cairo Declaration on Human Rights in Islam, Article 19(e) (ibid., § 3232); EU Charter of Fundamental Rights, Article 48(2) (ibid., § 3221).
[57] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998).
[58] IMT Charter (Nuremberg), Article 16(d) (ibid., § 3208); IMT Charter (Tokyo), Article 9(c) (ibid., § 3227).
[59] Third Geneva Convention, Article 99, third paragraph (“assistance of a qualified advocate or counsel”) (ibid., § 3213) and Article 105, first paragraph (“defence by a qualified advocate or counsel of his own choice”) (ibid., § 3214); Fourth Geneva Convention, Article 72, first paragraph (“right to be assisted by a qualified advocate or counsel of their own choice”) (ibid., § 3215).
[60] ICC Statute, Article 67(1) (ibid., § 3225); ICTY Statute, Article 21(4) (ibid., § 3237); ICTR Statute, Article 20(4) (ibid., § 3239); Statute of the Special Court for Sierra Leone, Article 17(4) (ibid., § 3226).
[61] See United States, Military Commission at Shanghai, Isayama case (ibid., § 2962), Military Tribunal at Nuremberg, Altstötter (The Justice Trial) case (ibid., § 2964) and Supreme Court, Ward case (ibid., § 3268).
[62] UN Commission on Human Rights, Res. 1996/71 (ibid., § 3272).
[63] International Covenant on Civil and Political Rights, Article 14(3)(d) (ibid., § 3218); European Convention on Human Rights, Article 6(3)(c) (ibid., § 3217); American Convention on Human Rights, Article 8(2)(d) (ibid., § 3219); African Charter on Human and Peoples’ Rights, Article 7(1)(c) (ibid., § 3222). With the exception of the European Convention, these treaties also provide that the accused must be informed of the right to counsel if they do not have legal assistance.
[64] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[65] See, e.g., UN Human Rights Committee, Saldías López v. Uruguay (ibid., § 3280); African Commission on Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (218/98) (ibid., § 3284).
[66] Third Geneva Convention, Article 105, third paragraph (counsel must have at least two weeks to prepare before the opening of the trial) (ibid., § 3214); Fourth Geneva Convention, Article 72, first paragraph (counsel must enjoy the necessary facilities for preparing the defence) (ibid., § 3215).
[67] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 15 (ibid., § 3229).
[68] Basic Principles on the Role of Lawyers, Principle 7 (ibid., § 3241).
[69] See, e.g., UN Human Rights Committee, Sala de Tourón v. Uruguay, Pietraroia v. Uruguay, Wight v. Madagascar, Lafuente Peñarrieta and Others v. Bolivia (ibid., § 3277) and Little v. Jamaica (ibid., § 3279); African Commission on Human and Peoples’ Rights, Avocats Sans Frontières v. Burundi (231/99) (ibid., § 3283); European Court of Human Rights, Campbell and Fell case (ibid., § 3287), Imbrioscia v. Switzerland (ibid., § 3290) and Averill v. UK (ibid., § 3291); European Commission of Human Rights, Can case (ibid., § 3288); Inter-American Commission on Human Rights, Case 10.198 (Nicaragua) (ibid., § 3292).
[70] Third Geneva Convention, Article 105, second paragraph (“failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel” or if that fails “the Detaining Power shall appoint a competent advocate or counsel to conduct the defence”); Fourth Geneva Convention, Article 72, second paragraph (“failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel” or if that fails “the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel”).
[71] ICC Statute, Article 67(1)(d) (cited in Vol. II, Ch. 32, § 3225); ICTY Statute, Article 21(4)(d) (ibid., § 3237); ICTR Statute, Article 20(4)(d) (ibid., § 3239); Statute of the Special Court for Sierra Leone, Article 17(4)(d) (ibid., § 3226).
[72] International Covenant on Civil and Political Rights, Article 14(3)(d) (ibid., § 3218); European Convention on Human Rights, Article 6(3)(c) (ibid., § 3217); American Convention on Human Rights, Article 8(2)(e) (ibid., § 3219). The American Convention actually refers to payment depending on the requirement of domestic law, but the Inter-American Court of Human Rights has interpreted this as requiring the free services of a lawyer if the accused cannot afford one and if the fairness of the hearing would be affected by the lack of such a lawyer; see Inter-American Court of Human Rights, Exceptions to the Exhaustion of Domestic Remedies case (ibid., § 3293).
[73] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 17 (ibid., § 3230); Basic Principles on the Role of Lawyers, Principle 6 (ibid., § 3241).
[74] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[75] See, e.g., UN Human Rights Committee, Currie v. Jamaica and Thomas v. Jamaica (ibid., § 3278); African Commission on Human and Peoples’ Rights, Avocats Sans Frontières v. Burundi (231/99) (ibid., § 3283); European Court of Human Rights, Pakelli case (ibid., § 3286) and Quaranta v. Switzerland (ibid., § 3289).
[76] Third Geneva Convention, Article 105, third paragraph (ibid., § 3214); Fourth Geneva Convention, Article 72, first paragraph (ibid., § 3215).
[77] ICC Statute, Article 67(1)(b) (ibid., § 3225); ICTY Statute, Article 21(4)(b) (ibid., § 3237); ICTR Statute, Article 20(4)(b) (ibid., § 3239); Statute of the Special Court for Sierra Leone, Article 17(4)(b) (ibid., § 3226).
[78] International Covenant on Civil and Political Rights, Article 14(3)(b) (ibid., § 3218); European Convention on Human Rights, Article 6(3)(b) (ibid., § 3217); American Convention on Human Rights, Article 8(2)(c) (ibid., § 3219).
[79] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 17–18 (ibid., §§ 3230–3231); Basic Principles on the Role of Lawyers, Principle 8 (ibid., § 3241).
[80] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[81] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 18(2) (ibid., § 3231).
[82] Third Geneva Convention, Article 105, third paragraph (ibid., § 3214); Fourth Geneva Convention, Article 72, first paragraph (ibid. , § 3215).
[83] ICC Statute, Article 67(1)(b) (ibid., § 3225); ICTY Statute, Article 21(4)(b) (ibid., § 3237); ICTR Statute, Article 20(4)(b) (ibid., § 3239); Statute of the Special Court for Sierra Leone, Article 17(4)(b) (ibid., § 3226).
[84] American Convention on Human Rights, Article 8(2)(d) (ibid., § 3219); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 18 (ibid., § 3231); Basic Principles on the Role of Lawyers, Principle 8 (ibid., § 3241).
[85] See, e.g., UN Human Rights Committee, General Comment No. 13 (Article 14 of the International Covenant on Civil and Political Rights) (ibid., § 3275); African Commission on Human and Peoples’ Rights, Resolution on the Right to Recourse and Fair Trial (ibid., § 3281) and Civil Liberties Organisation and Others v. Nigeria (218/98) (ibid., § 3284); European Commission of Human Rights, Can case (ibid., § 3288).
[86] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 18(4) (ibid., § 3231).
[87] Third Geneva Convention, Article 103, first paragraph (“as soon as possible”) (ibid., § 3296); Fourth Geneva Convention, Article 71, second paragraph (“as rapidly as possible”) (ibid., § 3297).
[88] ICC Statute, Article 64(2) and (3) (“expeditious”) (ibid., § 3305) and Article 67(1)(c) (“without undue delay”) (ibid., § 3306); ICTY Statute, Article 20(1) (“expeditious”) (ibid., § 3310) and Article 21(4)(c) (“without undue delay”) (ibid., § 3311); ICTR Statute, Article 19(1) (“expeditious”) (ibid., § 3312) and Article 20(4)(c) (“without undue delay”) (ibid., § 3313); Statute of the Special Court for Sierra Leone, Article 17(4)(c) (“without undue delay”) (ibid., § 3307).
[89] See, e.g., the military manuals of Argentina (ibid., § 3316), Australia (ibid., § 3317), Canada (ibid., § 3318), Colombia (ibid., § 3319), New Zealand (ibid., § 3320), Spain (ibid., § 3321), United Kingdom (ibid., § 3322) and United States (ibid., § 3323) and the legislation of Bangladesh (ibid., § 3325), Ireland (ibid., § 3326), Kenya (ibid., § 3324) and Norway (ibid., § 3327).
[90] International Covenant on Civil and Political Rights, Article 9(3) (“within a reasonable time”) (ibid., § 3300) and Article 14(3)(c) (“without undue delay”) (ibid., § 3301); Convention on the Rights of the Child, Article 40(2)(b)(iii) (“without delay”) (ibid., § 3305); European Convention on Human Rights, Article 5(3) (ibid., § 3298) and Article 6(1) (“within a reasonable time”) (ibid., § 3299); American Convention on Human Rights, Article 8(1) (“within a reasonable time”) (ibid., § 3302); African Charter on Human and Peoples’ Rights, Article 7(1)(d) (“within a reasonable time”) (ibid., § 3303).
[91] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 38 (ibid., § 3308); EU Charter of Fundamental Rights, Article 47 (ibid., § 3315).
[92] See European Court of Human Rights, Wemhoff case, Matznetter v. Austria, Stögmüller case, König v. Germany, Letellier v. France, Kemmache v. France, Tomasi v. France, Olsson v. Sweden and Scopelliti v. Italy (ibid., § 3338); Inter-American Commission on Human Rights, Case 11.245 (Argentina) (ibid., § 3341).
[93] See UN Human Rights Committee, General Comment No. 13 (Article 14 of the International Covenant on Civil and Political Rights) (ibid., § 3334).
[94] Third Geneva Convention, Article 96, fourth paragraph (ibid., § 3345) and Article 105, first paragraph (ibid., § 3346); Fourth Geneva Convention, Article 72, first paragraph (ibid., § 3347) and Article 123, second paragraph (ibid., § 3348); Additional Protocol I, Article 75(4)(g) (adopted by consensus) (ibid., § 3352).
[95] ICC Statute, Article 67(1)(e) (ibid., § 3354); ICTY Statute, Article 21(4)(e) (ibid., § 3360); ICTR Statute, Article 20(4)(e) (ibid., § 3361); Statute of the Special Court for Sierra Leone, Article 17(4)(e) (ibid., § 3355).
[96] See, e.g., the military manuals of Argentina (ibid., §§ 3363–3364), Canada (ibid., § 3365), New Zealand (ibid., § 3366), Spain (ibid., § 3367), Sweden (ibid., § 3368), United Kingdom (ibid., § 3369) and United States (ibid., §§ 3370–3372) and the legislation of Bangladesh (ibid., § 3374), Ethiopia (ibid., § 3373), Georgia (ibid., § 3373), Ireland (ibid., § 3375), Kenya (ibid., § 3373), Mexico (ibid., § 3373) and Norway (ibid., § 3376).
[97] See, e.g., United States, Military Commission at Shanghai, Isayama case (ibid., § 2962) and Military Tribunal at Nuremberg, Altstötter (The Justice Trial) case (ibid., § 2964).
[98] International Covenant on Civil and Political Rights, Article 14(3)(e) (ibid., § 3350); European Convention on Human Rights, Article 6(3)(d) (ibid., § 3349); American Convention on Human Rights, Article 8(2)(f) (ibid., § 3351).
[99] African Commission on Human and Peoples’ Rights, Resolution on the Right to Recourse and Fair Trial (ibid., § 3382).
[100] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998); Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[101] Third Geneva Convention, Article 96, fourth paragraph (ibid., § 3388) and Article 105, first paragraph (ibid., § 3389); Fourth Geneva Convention, Article 72, third paragraph (ibid., § 3390) and Article 123, second paragraph (ibid., § 3391).
[102] ICC Statute, Article 67(1)(f) (ibid., § 3397); ICTY Statute, Article 21(4)(f) (ibid., § 3400); ICTR Statute, Article 20(4)(f) (ibid., § 3401); Statute of the Special Court for Sierra Leone, Article 17(4)(f) (ibid., § 3398).
[103] International Covenant on Civil and Political Rights, Article 14(3)(f) (ibid., § 3394); Convention on the Rights of the Child, Article 40(2)(b)(vi) (ibid., § 3395); European Convention on Human Rights, Article 6(3)(e) (ibid., § 3392); American Convention on Human Rights, Article 8(2)(a) (ibid., § 3394).
[104] African Commission on Human and Peoples’ Rights, Resolution on the Right to Recourse and Fair Trial (ibid., § 3422).
[105] See, e.g., European Court of Human Rights, Luedicke, Belkacem and Koç case (ibid., § 3424) and Kamasinski case (ibid., § 3425).
[106] Additional Protocol I, Article 75(4)(e) (adopted by consensus) (ibid., § 3433); Additional Protocol II, Article 6(2)(e) (adopted by consensus) (ibid., § 3439).
[107] See the reservations made upon ratification of the Additional Protocols by Austria (ibid., §§ 3434 and 3440), Germany (ibid., §§ 3435 and 3441), Ireland (ibid., §§ 3436 and 3442), Liechtenstein (ibid., §§ 3437 and 3443) and Malta (ibid., §§ 3438 and 3444).
[108] ICC Statute, Article 63(1) (ibid., § 3445) and Article 67(1)(d) (ibid., § 3446); ICTY Statute, Article 21(4)(d) (ibid., § 3452); ICTR Statute, Article 20(4)(d) (ibid., § 3453); Statute of the Special Court for Sierra Leone, Article 17(4)(d) (ibid., § 3447).
[109] See, e.g., the military manuals of Argentina (ibid., § 3455), Canada (ibid., § 3456), New Zealand (ibid., § 3457) and Sweden (ibid., § 3458) and the legislation of Bangladesh (ibid., § 3460), Georgia (ibid., § 3459), Ireland (ibid., § 3461), Kenya (ibid., § 3459), Kyrgyzstan (ibid., § 3459), Norway (ibid., § 3462) and Russian Federation (ibid., § 3459).
[110] International Covenant on Civil and Political Rights, Article 14(3)(d) (ibid., § 3431); European Convention on Human Rights, Article 6(3)(c) (ibid., § 3430); American Convention on Human Rights, Article 8(2)(d) (ibid., § 3432). The last two Articles in fact provide for the right to defend oneself, which implies the right to be present at the trial.
[111] UN Human Rights Committee, Daniel Monguya Mbenge v. Zaire (ibid., § 3469); European Court of Human Rights, Colozza case (ibid., § 3471).
[112] UN Human Rights Committee, Karttunen v. Finland (ibid., § 3470); European Court of Human Rights, Ekbatani v. Sweden (ibid., § 3472) and Kremzow v. Austria (ibid., § 3472).
[113] ICC Statute, Article 63(1) (ibid., § 3445) and Article 67(1)(d) (ibid., § 3446); ICTY Statute, Article 21(4)(d) (ibid., § 3452); ICTR Statute, Article 20(4)(d) (ibid., § 3453); Statute of the Special Court for Sierra Leone, Article 17(4)(d) (ibid., § 3447).
[114] Third Geneva Convention, Article 99, second paragraph (ibid., § 3476); Additional Protocol I, Article 75(4)(f) (adopted by consensus) (ibid., § 3479); Additional Protocol II, Article 6(2)(f) (adopted by consensus) (ibid., § 3480).
[115] ICC Statute, Article 55(1)(a) (ibid., § 3482) and Article 67(1)(g) (ibid., § 3483); ICTY Statute, Article 21(4)(g) (ibid., § 3489); ICTR Statute, Article 20(4)(g) (ibid., § 3490); Statute of the Special Court for Sierra Leone, Article 17(4)(g) (ibid., § 3484).
[116] See, e.g., the military manuals of Argentina (ibid., §§ 3493–3494), Canada (ibid., § 3495), Colombia (ibid., § 3496), New Zealand (ibid., § 3497), Sweden (ibid., § 3498), Switzerland (ibid., § 3499) and United States (ibid., § 3500) and the legislation of Bangladesh (ibid., § 3502), Georgia (ibid., § 3501), India (ibid., § 3501), Ireland (ibid., § 3503), Kenya (ibid., § 3501), Mexico (ibid., § 3501), Norway (ibid., § 3504) and Russian Federation (ibid., § 3501).
[117] United States, Supreme Court, Ward case (ibid., § 3505).
[118] International Covenant on Civil and Political Rights, Article 14(3)(g) (ibid., § 3477); Convention on the Rights of the Child, Article 40(2)(b)(iv) (ibid., § 3481); American Convention on Human Rights, Article 8(2)(g) (ibid., § 3478).
[119] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 21 (ibid., § 3485).
[120] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2998); Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (ibid., § 3019).
[121] UN Human Rights Committee, General Comment No. 13 (Article 14 of the International Covenant on Civil and Political Rights) (ibid., § 3509).
[122] Convention against Torture, Article 15.
[123] See, e.g., United States, Supreme Court, Ward case (cited in Vol. II, Ch. 32, § 3505); European Court of Human Rights, Coëme and Others v. Belgium (ibid., § 3511).
[124] Third Geneva Convention, Article 105, fifth paragraph (ibid., § 3517); Fourth Geneva Convention, Article 74, first paragraph (ibid., § 3518); Additional Protocol I, Article 75(4)(i) (adopted by consensus) (ibid., § 3522).
[125] ICC Statute, Article 64(7) (ibid., § 3525), Article 67(1) (ibid., § 3526), Article 68(2) (ibid., § 3527) and Article 76(4) (ibid., § 3528); ICTY Statute, Article 20(4) (ibid., § 3537) and Article 23(2) (ibid., § 3538); ICTR Statute, Article 19(4) (ibid., § 3539) and Article 22(2) (ibid., § 3540); Statute of the Special Court for Sierra Leone, Article 17(2) (ibid., § 3529) and Article 18 (ibid., § 3530).
[126] See, e.g., the military manuals of Argentina (ibid., § 3543), Colombia (ibid., § 3544), New Zealand (ibid., § 3545) and Sweden (ibid., § 3546) and the legislation of Bangladesh (ibid., § 3549), Ethiopia (ibid., § 3548), Ireland (ibid., § 3550), Kenya (ibid., § 3548), Kuwait (ibid., § 3548), Mexico (ibid., § 3548), Norway (ibid., § 3551) and Russian Federation (ibid., § 3548).
[127] United States, Military Tribunal at Nuremberg, Altstötter (The Justice Trial) case (ibid., § 3552).
[128] International Covenant on Civil and Political Rights, Article 14(1) (ibid., § 3520); European Convention on Human Rights, Article 6(1) (ibid., § 3519); American Convention on Human Rights, Article 8(5) (ibid., § 3521).
[129] African Commission on Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (218/98) (ibid., § 3557).
[130] See, e.g., Universal Declaration on Human Rights, Articles 10–11 (ibid., §§ 3531–3532); American Declaration on the Rights and Duties of Man, Article XXVI (ibid., § 3533); EU Charter of Fundamental Rights, Article 47(2) (ibid., § 3542).
[131] Third Geneva Convention, Article 106 (ibid., § 3562); Fourth Geneva Convention, Article 73, first paragraph (ibid., § 3563); Additional Protocol I, Article 75(4)(j) (adopted by consensus) (ibid., § 3564); Additional Protocol II, Article 6(3) (adopted by consensus) (ibid., § 3565).
[132] Third Geneva Convention, Article 106 (ibid., § 3562).
[133] Fourth Geneva Convention, Article 73, first paragraph (ibid., § 3563).
[134] Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols (ibid., § 3587).
[135] See, e.g., the legislation of Colombia (ibid., § 3605), Estonia (ibid., § 3606), Ethiopia (ibid., § 3604), Georgia (ibid., § 3604), Hungary (ibid., § 3607), Kuwait (ibid., § 3604) and Russian Federation (ibid., § 3604).
[136] International Covenant on Civil and Political Rights, Article 14(5) (ibid., § 3591); Convention on the Rights of the Child, Article 40(2)(b)(v) (ibid., § 3594); Protocol 7 to the European Convention on Human Rights, Article 2(1) (ibid., § 3595); American Convention on Human Rights, Article 8(2)(h) (ibid., § 3592); African Charter on Human and Peoples’ Rights, Article 7(1)(a) (ibid., § 3593).
[137] Inter-American Commission on Human Rights, Case 11.137 (Argentina) (ibid., § 3621) and Report on Terrorism and Human Rights (ibid., § 3622).
[138] Third Geneva Convention, Article 86 (ibid., § 3625); Fourth Geneva Convention, Article 117, third paragraph (ibid., § 3626).
[139] Additional Protocol I, Article 75(4)(h) (adopted by consensus) (ibid., § 3629).
[140] ICC Statute, Article 20(2) (ibid., § 3639); ICTY Statute, Article 10(1) (ibid., § 3644); ICTR Statute, Article 9(1) (ibid., § 3645); Statute of the Special Court for Sierra Leone, Article 9(1) (ibid., § 3640).
[141] See, e.g., the military manuals of Argentina (ibid., §§ 3648–3649), Canada (ibid., § 3650), Colombia (ibid., § 3651), Germany (ibid., § 3652), New Zealand (ibid., § 3653), Spain (ibid., § 3654), Sweden (ibid., § 3655), Switzerland (ibid., § 3656), United Kingdom (ibid., § 3657) and United States (ibid., §§ 3658–3659) and the legislation of Bangladesh (ibid., § 3661), Ethiopia (ibid., § 3660), Georgia (ibid., § 3660), India (ibid., § 3660), Ireland (ibid., § 3662), Kenya (ibid., § 3660), Kyrgyzstan (ibid., § 3660), Mexico (ibid., § 3660), Norway (ibid., § 3663) and Russian Federation (ibid., § 3660).
[142] International Covenant on Civil and Political Rights, Article 14(7) (ibid., § 3627); American Convention on Human Rights, Article 8(4) (ibid., § 3628); Protocol 7 to the European Convention on Human Rights, Article 4 (ibid., § 3638).
[143] See, e.g., EU Charter of Fundamental Rights, Article 50 (ibid., § 3647).
[144] See the reservations made upon ratification of the Additional Protocols by Austria (ibid., § 3630), Denmark (ibid., § 3631), Finland (ibid., § 3632), Germany (ibid., § 3633), Iceland (ibid., § 3634), Liechtenstein (ibid., § 3635), Malta (ibid., § 3636) and Sweden (ibid., § 3637).
[145] UN Human Rights Committee, General Comment No. 13 (Article 14 of the International Covenant on Civil and Political Rights) (ibid., § 3668) and A. P. v. Italy (ibid., § 3669).
[146] Protocol 7 to the European Convention on Human Rights, Article 4 (ibid., § 3638).