Related Rule
Australia
Practice Relating to Rule 100. Fair Trial Guarantees
Australia’s Commanders’ Guide (1994) provides that “wilfully depriving PWs [prisoners of war] or other protected persons of the right of a fair and regular trial as prescribed by the Geneva Conventions” is a grave breach of the 1949 Geneva Conventions. 
Australia, Law of Armed Conflict, Commanders Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(f).
Australia’s Defence Force Manual (1994) states that “wilfully depriving PWs [prisoners of war] or other protected persons of the right of a fair and regular trial as prescribed by the Geneva Conventions” is a grave breach of the 1949 Geneva Conventions. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315.
Australia’s LOAC Manual (2006) states:
13.25 Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant Convention:
• wilfully depriving a PW [prisoner of war] or other protected person of the rights of fair and regular trial.
13.26 G. P. I [1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts, when committed wilfully and in violation of the Conventions or the Protocol:
• depriving a protected person of the rights of fair and regular trial. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.25 and 13.26.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I] is guilty of an indictable offence.” 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to war crimes that are grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I:
268.31 War crime – denying a fair trial
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of a fair and regular trial by denying to the person any of the judicial guarantees referred to in paragraph (b); and
(b) the judicial guarantees are those defined in articles 84, 99 and 105 of the Third Geneva Convention and articles 66 and 71 of the Fourth Geneva Convention; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in paragraph (1)(a) that the judicial guarantees are those referred to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (c). 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.31, pp. 323–324.
The Criminal Code Act further states with respect to other serious war crimes that are committed in the course of an international armed conflict
268.52 War crime – depriving nationals of the adverse power of rights or actions
A person (the perpetrator) commits an offence if:
(a) the perpetrator effects the abolition, suspension or termination of admissibility in a court of law of certain rights or actions; and
(b) the abolition, suspension or termination is directed at the nationals of an adverse party; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years. 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.52, p. 335.
The Criminal Code Act also states with respect to war crimes that are serious violations of common Article 3 of the 1949 Geneva Conventions and are committed in the course of a non-international armed conflict:
268.76 War crime – sentencing … without due process
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator passes a sentence on one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees – those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant [1966 International Covenant on Civil and Political Rights]; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies – the absence of a previous judgment; or
(ii) if subparagraph (d)(ii) applies – the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 10 years.
(3) Strict liability applies to paragraphs (1)(e) …
(4) To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities. 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, §§ 268.76, pp. 352–354.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “denying a fair trial” in international armed conflicts and “sentencing … without due process” in non-international armed conflicts. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.31 and 268.76.
In the Ohashi case before the Australian Military Court at Rabaul in 1946, the Judge Advocate stated that the notion of “fair trial” supposed the following:
–consideration by a tribunal comprised of one or more persons who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of the accused or any prejudice against him/her;
–the accused should know the exact nature of the charge against him/her;
–the accused should know what is alleged against him/her by way of evidence;
–he should have full opportunity to give his own version of the case and produce evidence to support it;
–the court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty;
–the punishment should not be one which outrages the sentiments of humanity. 
Australia, Military Court at Rabaul, Ohashi case, Statement by the Judge Advocate, 23 March 1946.
On 8 February 2005, in response to a Question in Writing in the House of Representatives regarding the future trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, Australia’s Attorney-General stated that the United States had assured Australia that:
•conversations between Mr Hicks and his lawyers will not be monitored by the United States
•the prosecution in Mr Hicks’ case does not intend to rely on evidence in its case-in-chief requiring closed proceedings from which the accused could be excluded
•subject to any necessary security restrictions, Mr Hicks’ trial will be open, the media will be present and Australian officials may observe the proceedings
•the Government may make submissions to the Review Panel which would review either man’s military commission trial
•should Mr Hicks or Mr Habib [also an Australian citizen] choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with their client
•Mr Hicks may talk to his family via telephone, and two family members would be able to attend his trial, and
•an independent legal expert sanctioned by the Australian Government may observe a trial of Mr Hicks or Mr Habib.
•It was also agreed that Australia and the United States would work towards putting arrangements in place to transfer Mr Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and United States laws.
Matters relating to the military commission trial of Mr Hicks and Mr Habib were the subject of extensive Government to Government discussions. While recognising that military commissions are a part of United States law, we have sought to ensure that the fundamental principles of a fair trial are incorporated into the military commission process. As Mr Hicks’ trial progresses, the Government continues to raise matters of process and procedure with the United States authorities. 
Australia, House of Representatives, Attorney-General, Question in Writing: Military Detention – Mr David Hicks, Hansard, 8 February 2005, pp. 160–161.
On 7 November 2005, in response to a Question on Notice in the Senate regarding the impending trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, the Minister representing the Attorney-General responded, in part, to criticisms that Mr Hicks would not receive a fair trial:
The Government is satisfied that Mr Hicks will receive a full and fair trial. Military Commission trials possess fundamental procedural guarantees including the following:
• Each accused is presumed innocent. Evidence must have probative value to the reasonable person and meet full and fair trial standards.
• Evidence rules apply to both the prosecution and defence.
• Evidence is heard and decided upon by a panel of impartial, independent military officers, presided over by an experienced military jurist.
• Each accused is provided an opportunity to challenge members for cause. The defence may call witnesses and present evidence. Defence counsel may cross-examine witnesses.
• There is no adverse inference drawn against an accused who chooses to remain silent.
• Attorney/client communications are privileged.
• Accused are afforded representation by a military defence counsel free of charge.
• Accused may employ additional civilian defence counsel.
• Guilt must be proven beyond a reasonable doubt to sustain a conviction.
• The accused may be present at every stage of the trial, unless the accused engages in disruptive conduct which justifies exclusion.
• Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof.
• Each Military Commission record will be subject to review by a three-member Panel. Military Commission proceedings are open to the public. Each accused is assigned a military attorney possessing sufficient security clearances to have access to classified material. No evidence may be introduced that has not been made available to the Detailed Defense Counsel.
The Australian Government has discussed the Military Commission procedures with the United States. As a result of those discussions, the Government secured several additional commitments relating to Australian detainees, which include the following:
• Australia and the United States agreed to work towards putting arrangements in place to transfer Mr Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and United States laws.
• Conversations between Mr Hicks and his lawyers will not be monitored by the United States. Subject to any necessary security restrictions, Mr Hicks’ trial will be open, the media will be present and Australian officials may observe the proceedings.
• The Australian Government may make submissions to the Review Panel which would review Mr Hicks’ Military Commission trial.
• Should Mr Hicks choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with their client.
• Mr Hicks may talk to his family via telephone and two family members are permitted to attend his trial.
• An independent legal expert sanctioned by the Australian Government may observe the trial of Mr Hicks.
Subsequent to discussions with the United States Attorney General and a number of other senior executives in the United States Administration, a number of changes to the Military Commission system have recently been announced. Military Commission trials will move towards a judge and jury system. Changes include:
• Only the legally qualified and experienced Presiding Officer can make rulings on matters of law, as is the case with a judge.
• Only the panel members can make rulings on matters of fact, as is the case with juries.
• The amount of time allowed to the legally qualified Review Panel to review Commission decisions has doubled from 35 to 70 days. The Review Panel provides an independent assessment of the issues considered by the Military Commission.
• The number of members to sit on the panel has increased. In the case of Mr Hicks, the panel will be expanded from 3 to 4 members.
The steps taken by the United States Government address the Australian Government’s representations that the system should as far as possible reflect the general system of military justice. They also address concerns raised by Mr Hicks’ defence counsel about the size and roles of members of the Military Commission. 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Mr David Hicks, Hansard, 7 November 2005, pp. 202–203.
On 27 February 2006, in response to a Question in Writing in the House of Representatives regarding the trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, Australia’s Attorney-General stated:
The Government has consistently urged the United States to ensure Mr Hicks’ trial proceeds as expeditiously as possible. The Government has had discussions with the United States administration regarding the Military Commission system. The Government obtained additional commitments relating to Australian detainees which will apply to Mr Hicks’ case. Those commitments include the following:
- Australia and the United States agreed to work towards putting arrangements in place to transfer Mr Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and United States laws.
- Conversations between Mr Hicks and his lawyers will not be monitored by the United States.
- The prosecution in Mr Hicks’ case does not intend to rely on evidence in its case-in-chief requiring closed proceedings from which Mr Hicks could be excluded.
- Subject to any necessary security restrictions, Mr Hicks’ trial will be open, the media will be present and Australian officials may observe the proceedings.
- The Australian Government may make submissions to the Review Panel which would review Mr Hicks’ Military Commission trial.
- Should Mr Hicks choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with their client.
- Mr Hicks may talk to his family via telephone and two family members are permitted to attend his trial.
- An independent legal expert sanctioned by the Australian Government may observe the trial of Mr Hicks.
Following the preliminary hearing in August 2004, the Minister for Foreign Affairs and I instructed officials to seek some improvements to some operational and procedural aspects of the Military Commission process. A number of improvements, including to the rules of procedure, have occurred since then and the Government will continue to monitor the process. 
Australia, House of Representatives, Attorney-General, Question in Writing: Military Detention – Mr David Hicks, Hansard, 27 February 2006, p. 150.
On 29 November 2006, in response to a Question in Writing in the House of Representatives regarding the trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, Australia’s Attorney-General stated with respect to the new Military Commissions Act signed into law by the US President on 17 October 2006:
(5) The Act incorporates a number of fundamental due process safeguards for defendants, including a right to be present throughout the trial with limited exceptions, a right to see all the evidence against an accused, a right to cross-examine prosecution witnesses, a presumption of innocence and an extensive appeals process up to the Supreme Court. Whether or not the Act complies with the Geneva Convention and other legal principles will ultimately be a matter for the United States government and the courts.
(6) I have held several discussions with US Attorney-General Gonzales, in which I have emphasised the Australian Government’s desire to see Mr Hicks’ case dealt with expeditiously. I also reiterated the Government’s expectation that additional safeguards negotiated previously to apply to Mr Hicks’ case will apply to any new military commission trial of Mr Hicks. A number of issues which were the focus of those safeguards have been taken up in the new legislation. The additional safeguards previously negotiated included:
• Australia and the United States agreed to work towards putting arrangements in place to transfer Mr Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and United States laws.
• Conversations between Mr Hicks and his lawyers will not be monitored by the United States. Subject to any necessary security restrictions, Mr Hicks’ trial will be open, the media will be present and Australian officials may observe the proceedings.
• The Australian Government may make submissions to any review panel which would review Mr Hicks’ military commission trial.
• Should Mr Hicks choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with their client.
• Mr Hicks may talk to his family via telephone and two family members are permitted to attend his trial.
Attorney-General Gonzales has given an undertaking that the assurances previously negotiated will be honoured. 
Australia, House of Representatives, Attorney-General, Question in Writing: Mr David Hicks, Hansard, 29 November 2006, p. 210.
In 2010, in a statement before the UN Human Rights Council Periodic Review on Bosnia and Herzegovina, the representative of Australia stated:
We … note with concern the failure of [Bosnia and Herzegovina] authorities to provide adequate institutional support services for witnesses and victims of war crimes cases in courts. While we are pleased that the State Investigation and Protection Agency (SIPA) is able to provide some level of services and protection to witnesses, we note that no such services are provided at the entity level courts.
Australia recommends Bosnia and Herzegovina:
1. Ensure the relationship between the executive and the judiciary is based on mutual trust and respect for the non-interference in their respective prerogatives and functions. 
Australia, Statement before the UN Human Rights Council Periodic Review on Bosnia and Herzegovina, 17 February 2010.
In the Ohashi case in 1946 before the Australian Military Court at Rabaul, the judge advocate stated that one of the fundamental principles of justice was:
Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of [the] accused or any prejudice against him. 
Australia, Military Court at Rabaul, Ohashi case, Judgment, 23 March 1946.
In the Ohashi case in 1946 before the Australian Military Court at Rabaul, the judge advocate stated that the fundamental principles of justice included:
(a) Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of [the] accused or any prejudice against him.
(e) The court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty. 
Australia, Military Court at Rabaul, Ohashi case, Judgment, 23 March 1946.
Australia’s Defence Force Manual (1994) states: “Notice of proceedings must be given to … the accused notifying the particulars of the charges in good time before the trial.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1042(c).
Australia’s LOAC Manual (2006) states: “Notice of proceedings must be given to … the accused notifying the particulars of the charges in good time before the trial.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.54.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
In the Ohashi case before the Australian Military Court at Rabaul in 1946, the judge advocate stated that the notion of “fair trial” supposed, inter alia, that:
–the accused should know the exact nature of the charge against him/her;
–the accused should know what is alleged against him/her by way of evidence;
–he should have full opportunity to give his own version of the case and produce evidence to support it. 
Australia, Military Court at Rabaul, Ohashi case, Statement by the Judge Advocate, 23 March 1946.
Australia’s Defence Force Manual (1994) states that prisoners of war “are entitled to be represented by a qualified lawyer of their choice and assisted by another PW [prisoner of war]”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1042(d).
Australia’s LOAC Manual (2006) states that prisoners of war (PW) “are entitled to be represented by a qualified lawyer of their choice and assisted by another PW”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.54.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Defence Force Manual (1994) sets out a number of procedural rules which include, inter alia, that “investigations must be conducted as rapidly as possible”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1042(a).
Australia’s LOAC Manual (2006) sets out a number of procedural rules which include, inter alia, that “investigations must be conducted as rapidly as possible”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.54.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Crimes Act (1914), as amended to 2007, states:
23N Right to interpreter
Where an investigating official believes on reasonable grounds that a person who is under arrest or a protected suspect is unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in that language, the official must, before starting to question the person, arrange for the presence of an interpreter and defer the questioning or investigation until the interpreter is present. 
Australia, Crimes Act, 1914, as amended to 2007, Part IC, Division 3, s.23N, pp. 284–285.
Australia’s Crimes Act (1914), as amended to 2007, states:
23S Right to remain silent etc. not affected
Nothing in this Part affects:
(a) the right of a person to refuse to answer questions or to participate in an investigation except where required to do so by or under an Act; or
(b) any burden on the prosecution to prove the voluntariness of an admission or confession made by a person; or
(ba) any burden on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence. 
Australia, Crimes Act, 1914, as amended to 2007, Part IC, Division 3, s.23S, p. 285.
Australia’s Criminal Code Act (1995), as amended to 2007, states:
Double jeopardy
A person cannot be tried by a federal court or a court of a State or Territory for an offence under this Division if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct as constituted the offence under this Division. 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.118, p. 380.