Related Rule
Netherlands
Practice Relating to Rule 100. Fair Trial Guarantees
The Military Manual (1993) of the Netherlands prohibits punishments “without a previous judgment … through a fair trial”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VII-2.
The manual further states that “wilfully depriving a protected person of the rights of a fair and regular trial” is a grave breach of the 1949 Geneva Conventions and their 1977 Additional Protocols. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. IX-5 and IX-6.
With respect to non-international armed conflicts, the manual restates the fundamental requirement of fair trial found in common Article 3 of the 1949 Geneva Conventions and Article 6 of the 1977 Additional Protocol II. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-1 and XI-5.
The Military Manual (2005) of the Netherlands states:
0708. Fundamental guarantees
What is the right to protection of persons not deemed prisoners of war? Primarily, these are civilians who play a direct part in hostilities, but also to mercenaries. Such persons may not be convicted or punished without prior judgment of an unbiased tribunal and due process. The same applies to persons accused of war crimes. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0708.
In its chapter on non-international armed conflict, the manual states:
Section 11 - Prosecutions and procedural guarantees
1071. The prosecution and punishment of offences relating to the armed conflict should be subject to the following conditions (this relates to the bearing of arms and the committing of offences and war crimes during the internal armed conflict):
- for each conviction and imposition of punishment, prior judgment by a judicial authority that meets the essential guarantees of independence and impartiality is required;
- no one may be convicted of an offence that was not punishable by law at the time it was committed;
- penal proceedings must be conducted in accordance with the internationally accepted procedural guarantees of fair and due process;
- for parties which still maintain capital punishment, the death penalty must not be imposed on persons who were younger than 18 years old at the time of committing the offence, on pregnant women or on women who are mothers of young children. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1071.
In its chapter on peace operations, the manual states: “A detainee may not be condemned or punished without prior judgment by an impartial court and due process.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1226.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit in an international armed conflict one of the following: grave breaches of the 1949 Geneva Conventions, including “intentionally depriving a prisoner of war or other protected person of the right to a fair and regular trial” and “intentionally … depriving a person protected by the Geneva Conventions or Article 85, paragraph 2, of Additional Protocol (I) of the right to a fair and regular trial”. 
Netherlands, International Crimes Act, 2003, Articles 5(1)(f) and 5(2)(d)(v).
Furthermore, under the Act, it is also a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all the Geneva Conventions”, including “the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable”. 
Netherlands, International Crimes Act, 2003, Article 6(1)(d).
The Military Manual (1993) of the Netherlands prohibits punishments “without a previous judgment by an impartial tribunal”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VII-2.
The manual also provides with regard to protected persons: “No one may be sentenced and punished without a previous judgment by an impartial and independent tribunal.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VIII-3.
With respect to non-international armed conflicts, the manual prohibits sentences pronounced by a tribunal that does not fulfil “the essential requirements of independence and impartiality”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-54.
The Military Manual (2005) of the Netherlands states: “Where applicable, an independent and impartial tribunal alone may conduct a trial. As a rule, this will be a court martial.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0745.
In its chapter on the protection of the civilian population, the manual states:
There are also extensive rules on the treatment of prisoners and concerning criminal prosecution and punishment. Thus no one may be convicted and punished without a prior judgment, given by an impartial and independent judicial body. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0811.
In its chapter on non-international armed conflict, the manual states:
Section 11 - Prosecutions and procedural guarantees
1071. The prosecution and punishment of offences relating to the armed conflict should be subject to the following conditions (this relates to the bearing of arms and the committing of offences and war crimes during the internal armed conflict):
- for each conviction and imposition of punishment, prior judgment by a judicial authority that meets the essential guarantees of independence and impartiality is required. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1071.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all the Geneva Conventions”, including “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable”. 
Netherlands, International Crimes Act, 2003, Article 6(1)(d).
The Military Manual (1993) of the Netherlands provides with respect to non-international armed conflict: “The suspect must be informed without delay of the particulars of the offences alleged.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-5.
The Military Manual (1993) of the Netherlands provides, with regard to non-international armed conflicts, that a suspect “must be given the necessary rights and means of defence”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-5.
The Military Manual (2005) of the Netherlands states: “A prisoner of war may not … renounce the right of defence by authorized counsel if he is subject to criminal prosecution.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0237.
In its chapter on the protection of prisoners of war, the manual states: “A prisoner of war may not be convicted without having had an opportunity to present his defence … The prisoner of war is entitled to defence by an authorized counsel of his own choice, and to the calling of witnesses”. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.
In its chapter on the protection of the civilian population, the manual states: “The occupying power may institute courts martial in the occupied territory. No judgment may be delivered without prior, due process in which the accused is entitled to the assistance of legal counsel.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0838.
In its judgment in the Hesammudin case in 2005, the Hague District Court of the Netherlands stated:
The right to fair trial, as laid down in Article 6 ECHR [1950 European Convention on Human Rights], implies that in criminal cases each party is given reasonable opportunity to state its view without falling substantially behind. Both parties must be given the possibility to bring forward items of evidence to support their own point of view and they must be able to learn about and to take a position concerning everything presented as items of evidence, in order to be able to influence the judgment of the Court. 
Netherlands, Hague District Court, Hesammudin case, Judgment, 14 October 2005.
In its judgment in the Van Anraat case in 2005, the Hague District Court of the Netherlands stated:
In general, with respect to the “equality of arms” principle the court has the following considerations. The equality between prosecution and defense basically has a procedural character and implies that counsel for the defense should not find itself in an unreasonably unequal position as opposed to the prosecuting authorities. Equality of arms is also protected in international administration of criminal justice (ICTY, Tadic, case number IT-94-1-A, sentence of appeal proceedings, 15 July 1999, paragraph 52). Just like the Tadic case, the court recognizes the problems facing the defense in criminal cases of such complexity and international magnitude. However it should be considered that in comparison with Dutch criminal procedures, international criminal procedures are of a totally different nature.
Just like the legal practice of common law, international criminal lawsuits focus on the collection of evidence by the suit litigants, largely or exclusively in support of their own point of view. The fact that in Dutch criminal proceedings the litigants really occupy different positions in respect of each other and that this positioning by the prosecution as well as by the judicial authorities should lead to the gathering of evidence, also taking into consideration the interest of the defense, undeniably has its consequences for the contents and the meaning of the “equality of arms” principle. In as far as the defense asserts that the efforts of the prosecuting and judicial authorities have not met their own investigation requirements, the Code of Criminal Procedure allows for sufficient possibilities for additional inquiries (see Article 36a C.C.P.). Moreover the court has demonstrated the willingness, also from a practical point of view, to satisfy reasonable requests made by the defense, like the assignment of more than one lawyer and the allowance of an amount of money to the defense lawyers in order to seek specialist advice.
During the court hearing counsel pleaded a violation of the equality of arms principle, because the defense allegedly has not been able to access certain sources or source collections in the same way as the public prosecution service. The defense has not been able to exert an influence on the selection of documents obtained from Human Rights Watch and the United Nations and therefore counsel has not been able to establish whether disculpatory sources were excluded from the case file.
The court refuses this plea, arguing that is has not become evident that those documents could be of any interest to the decision to be taken by the court.
Finally the defense pleaded a violation of the equality of arms principle, because counsel was allegedly not able to carry out its own investigations abroad, including countries in the Middle East, because the defense counsel assists the accused on an assignment basis and consequently does not have sufficient financial means to order/carry out such an inquiry. Furthermore the defense asserts that it has not been able to carry out its own fact finding nor any investigation into the finding of possible disculpatory witnesses.
The court cannot see why the defense should not have been able to carry out independent investigations. After all the defense itself can make trips to that end and can also request the examining magistrate and the public prosecutor to institute a similar inquiry. Moreover the defense had the opportunity to hire its own expert. For lack of funds, the defense could have applied for an advance payment pursuant to the Tariffs in Criminal Proceedings Act. Furthermore the defense was provided with an advance payment to find its own expertise. 
Netherlands, Hague District Court, Van Anraat case, Judgment, 23 December 2005, § 5.4.
In its judgment in the Hesammudin case in 2005, the Hague District Court of the Netherlands stated:
According to previous judgments of the European Court of Human Rights it must be possible at some stage in the proceedings to exercise the defence’s right to examination. However, using as evidence a statement for the prosecution, laid down in an official report, of a witness who has not been examined by the defence, is not unreservedly disallowed. In any case there is no unauthorized use when at some stage of the proceedings the defence has been given the opportunity to examine this witness … If the defence has not had this opportunity referred to and this statement is not supported in other items of evidence either, it is not allowed to use this statement for evidence pursuant to Article 6 ECHR [1950 European Convention on Human Rights]. 
Netherlands, Hague District Court, Hesammudin case, Judgment, 14 October 2005.
The Military Manual (2005) of the Netherlands states: “The prisoner of war is entitled to … the services of an authorized interpreter”. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.
The Military Manual (2005) of the Netherlands states: “No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.
The Military Manual (1993) of the Netherlands provides with respect to non-international armed conflicts: “A person who is convicted must be informed about the judicial remedies available to him.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-5.
The Military Manual (2005) of the Netherlands states: “Every prisoner of war has, in the same manner as the members of the armed forces of the detaining power, the right of appeal quashing or revising a judgment delivered against him.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.