Practice Relating to Rule 100. Fair Trial Guarantees

Note: For practice concerning summary executions in general, see Rule 89. For practice concerning the status of spies and their right to a fair trial and for practice relating to summary execution of spies, see Rule 107, Section B. For practice concerning the status of mercenaries, see Rule 108, Section B.
IMT Charter (Nuremberg)
Article 16 of the 1945 IMT Charter (Nuremberg), entitled “Fair trial for defendants”, provides a list of procedures to be followed “in order to ensure fair trial for the Defendants”. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 16.
Geneva Conventions (1949)
Common Article 3 of the 1949 Geneva Conventions prohibits “the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 3; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 3; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 3; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 3.
Geneva Convention I
Article 49, fourth paragraph, of the 1949 Geneva Convention I provides:
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 49, fourth para.
Geneva Convention II
Article 50, fourth paragraph, of the 1949 Geneva Convention II provides:
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 50, fourth para.
Geneva Convention III
Articles 102–108 of the 1949 Geneva Convention III contain detailed provisions to ensure a fair trial in any judicial proceedings against prisoners of war. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Articles 102–108.
Geneva Convention III
According to Article 130 of the 1949 Geneva Convention III, “if committed against persons or property protected by the Convention … wilfully depriving a prisoner of war of the rights of fair and regular trial” is a grave breach of the Convention. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 130.
Geneva Convention IV
Article 5 of the 1949 Geneva Convention IV provides:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, … [or]
Where in occupied territory an individual protected person is detained as a … saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, …
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 5.
Geneva Convention IV
Article 66 of the 1949 Geneva Convention IV provides:
In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 66.
Articles 67–75 of the 1949 Geneva Convention IV contain more detailed provisions concerning the procedure which must be followed. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Articles 67–75.
Geneva Convention IV
Article 71, first paragraph, of the 1949 Geneva Convention IV provides: “No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 71.
Geneva Convention IV
Article 78, second paragraph, of the 1949 Geneva Convention IV provides: “Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 78, second para.
Geneva Convention IV
According to Article 147 of the 1949 Geneva Convention IV “wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention” is a grave breach of the Convention. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 147.
European Convention on Human Rights
Article 6(1) of the 1950 European Convention on Human Rights provides: “In the determination of his civil rights and obligations or for any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 6(3) lists the minimum rights to which everyone charged with a criminal offence is entitled. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 6(1) and (3).
International Covenant on Civil and Political Rights
Article 14(1) of the 1966 International Covenant on Civil and Political Rights provides: “In the determination of any criminal charge … or … rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Article 14(3) then lists the minimum guarantees to which everyone charged with a criminal offence is entitled “in full equality”.  
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(1) and (3).
American Convention on Human Rights
Article 8(1) of the 1969 American Convention on Human Rights provides: “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent … tribunal, previously established by law.” Article 8(2) lists the minimum guarantees to which everyone is entitled “with full equality”. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(1) and (2).
Additional Protocol I
Article 75(4) of the 1977 Additional Protocol I provides:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(4). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol I
Article 85(4)(e) of the 1977 Additional Protocol I states that “depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial” is a grave breach of the Protocol. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 85(4)(e). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
African Charter on Human and Peoples’ Rights
Article 7 of the 1981 African Charter on Human and Peoples’ Rights provides: “Every individual shall have the right to have his cause heard.” 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 7.
Convention on the Rights of the Child
Article 40(2)(b)(iii) of the 1989 Convention on the Rights of the Child states: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (iii) to have the matter determined without delay by a competent … authority or judicial body in a fair hearing according to law”. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b)(iii).
ICC Statute
Under Article 8(2)(a)(vi) of the 1998 ICC Statute, “[w]ilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” constitutes a war crime in international armed conflicts. Under Article 8(2)(c)(iv), “[t]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable,” constitutes a war crime in non-international armed conflicts. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(a)(vi) and (c)(iv).
ICC Statute
Article 64(2) of the 1998 ICC Statute provides: “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused.” Article 64(3)(a) adds: “The Trial Chamber assigned to deal with the case shall … confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings.” Article 64(8)(b) states: “At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner.” 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 64(2), (3)(a) and (8)(b).
ICC Statute
Article 67(1) of the 1998 ICC Statute provides: “In the determination of any charge, the accused shall be entitled to a … fair hearing conducted impartially”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 67(1).
ICC Statute
Article 69 of the 1998 ICC Statute states with regard to evidence:
The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 69.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 17(2) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides:
Any person … shall be guaranteed … a fair trial in accordance with domestic law and international law at all stages of the proceedings, and in no cases shall be provided guarantees less favorable to such person than those provided by international law. 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 17(2).
Statute of the Special Court for Sierra Leone
Article 3(g) of the 2002 Statute of the Special Court for Sierra Leone states:
The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.
These violations include “[t]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 3(g).
Statute of the Special Court for Sierra Leone
Article 17(2) of the 2002 Statute of the Special Court for Sierra Leone, entitled “Rights of the accused”, provides: “The accused shall be entitled to a fair and public hearing.” 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(2).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 9 of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 9.
With regard to the Extraordinary Chambers’ own proceedings, the Agreement provides:
Article 12
Procedure
2. The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party …
Article 13
Rights of the accused
1. The rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected throughout the trial process. Such rights shall, in particular, include the right: to a fair and public hearing … 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Articles 12(2)–13(1).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Article 16 of the 2007 Statute of the Special Tribunal for Lebanon provides:
1. All accused shall be equal before the Special Tribunal.
2. The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Tribunal for the protection of victims and witnesses. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 16(1)–(2).
IMT Charter (Tokyo)
Article 9 of the 1946 IMT Charter (Tokyo), entitled “Fair trial for accused”, provides a list of procedures to be followed “in order to insure fair trial for the accused”. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 9.
Universal Declaration of Human Rights
Article 10 of the 1948 Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a fair and public hearing.” 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 10.
American Declaration on the Rights and Duties of Man
Article XVIII of the 1948 American Declaration on the Rights and Duties of Man, entitled “Right to a fair trial”, states: “Every person may resort to the courts to ensure respect for his legal rights.” 
American Declaration on the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Res. XXX, Bogotá, 2 May 1948, Article XVIII.
Nuremberg Principles
Principle V of the 1950 Nuremberg Principles adopted by the International Law Commission provides: “Any person charged with a crime under international law has the right to a fair trial on the facts and law.” 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle V.
New Delhi Draft Rules
Article 19 of the 1956 New Delhi Draft Rules provides:
The accused persons shall be tried only by a regular civil or military court; they shall, in all circumstances, benefit by the safeguards of proper trial and defence at least equal to those provided under Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 19.
Basic Principles on the Independence of the Judiciary
Paragraph 6 of the 1985 Basic Principles on the Independence of the Judiciary states: “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.” 
Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August–6 September 1985, UN Doc. A/CONF.121/22/Rev.1, 1985, p. 59, endorsed by the UN General Assembly, Res. 40/32, 29 November 1985, and Res. 40/146, 13 December 1985, § 6.
Cairo Declaration on Human Rights in Islam
Article 19(e) of the 1990 Cairo Declaration on Human Rights in Islam provides: “A defendant is innocent until his guilt is proven in a fair trial in which he shall be given all the guarantees of defence.” 
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 19(e).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8(a) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right, “in the determination of any charge against him, to have a fair and public hearing”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 8(a).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 1 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina provides that the parties commit themselves to respect and ensure respect for common Article 3 of the 1949 Geneva Conventions. Paragraph 2.3 requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, §§ 1 and 2.3.
ICTY Statute
Under Article 2(f) of the 1993 ICTY Statute, the Tribunal is competent to prosecute wilful deprivation of a prisoner of war or a civilian of the rights of fair and regular trial. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 2(f).
ICTY Statute
Article 20(1) of the 1993 ICTY Statute provides: “the Trial Chambers shall ensure that a trial is fair”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article (20(1).
ICTY Statute
Article 21(2) of the 1993 ICTY Statute provides: “In the determination of charges against him, the accused shall be entitled to a fair and public hearing.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 21(2).
ICTR Statute
Under Article 4(g) of the 1994 ICTR Statute, the Tribunal is competent to prosecute violations of common Article 3 of the 1949 Geneva Conventions, including “[t]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 4(g).
ICTR Statute
Article 19(1) of the 1994 ICTR Statute states: “The Trial Chambers shall ensure that a trial is fair.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 19(1).
ICTR Statute
Article 20(2) of the 1994 ICTR Statute provides: “In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 20(2).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1)(a) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right, “in the determination of any charge against him, to have a fair and public hearing”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 11(1)(a).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(a)(vi) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “[w]ilfully depriving a protected person or other protected persons of the rights of fair and regular trial” is a war crime. Article 20(f)(vii) states that “[t]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable”, committed in violation of international humanitarian law applicable in armed conflict not of an international character, is a war crime. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(a)(vi) and (f)(vii).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(9) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that the Agreement seeks to protect and promote “the right to substantive and procedural due process”. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(9).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 3(2) of Part IV of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that “punishing anyone without complying with all the requisites of due process” shall remain prohibited at any time and in any place whatsoever with respect to persons hors de combat. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part IV, Article 3(2).
EU Charter of Fundamental Rights
Article 47 of the 2000 EU Charter of Fundamental Rights provides: “Everyone is entitled to a fair and public hearing within a reasonable period of time by … [a] tribunal previously established by law.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 47.
ICC Elements of Crimes
According to Article 8(2)(a)(vi) and (c)(iv) of the 2000 ICC Elements of Crimes, “denying a fair trial” is defined by reference to the 1949 Geneva Conventions (III and IV in particular), while “sentencing … without due process” is defined by reference to the requirements of independence and impartiality and to “all other judicial guarantees generally recognized as indispensable under international law”. 
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the ICC, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, Article 8(2)(a)(vi) and (c)(iv).
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(a)(vi), “[w]ilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” constitutes a war crime in international armed conflicts. According to Section 6(1)(c)(iv), “[t]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable,” constitutes a war crime in non-international armed conflicts.  
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(a)(vi) and (c)(iv).
Argentina
Argentina’s Law of War Manual (1969) provides that protected persons arrested on suspicion of performing acts prejudicial to the occupying power cannot be “deprived … of a fair and regular trial”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 4.003.
The manual further states that a “competent tribunal of the Occupying Power cannot impose any sentence without having proceeded to a regular trial”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 5.029(5).
With respect to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 8.001.
Argentina
Argentina’s Law of War Manual (1989) states that “depriving [a protected person] of his right to a regular and impartial trial” is a grave breach of the 1949 Geneva Conventions. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.03.
Australia
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
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
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).
Belgium
Belgium’s Law of War Manual (1983) refers to common Article 3 of the 1949 Geneva Conventions and prohibits the conviction of protected persons without a prior fair trial. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 17.
The manual further states that depriving a prisoner of war or other protected persons of the right to be tried by a regular court is a grave breach of the 1949 Geneva Conventions. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 55.
Benin
Benin’s Military Manual (1995) provides that every person shall benefit from fundamental judicial guarantees. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 5.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) states that it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists the “deprivation of the rights of a fair and regular trial” as a “grave breach” of IHL. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 67; see also Part I bis, pp. 27, 46 and 115.
Cameroon
Under Cameroon’s Disciplinary Regulations (1975), it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 32: Prohibitions
It is prohibited to soldiers in combat:
- to convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law. 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999) provides:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognised principles of regular judicial procedure. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-8, § 65.
The manual also provides: “Sentences may be pronounced only after a regular trial.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 54.
The manual further specifies that it is a grave breach of the 1949 Geneva Convention III to “deprive a PW [prisoner of war] of the right to a fair and regular trial” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 13.
and that it is a grave breach to “wilfully deprive a protected person of the rights of a fair and regular trial prescribed by [the 1949 Geneva Convention IV]”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 14.
According to the manual, “denial of a fair and regular trial to any person protected by the Geneva Conventions or [Additional Protocol I]” is a grave breach of the 1977 Additional Protocol I. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 17.
The manual further states that the “Geneva Conventions provide that all persons accused of grave breaches enjoy the safeguards of a proper trial and defence in accordance with international standards”. With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-2, § 10(a)(iv) and p. 17-4, § 28.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status” that civilians who take a direct part in hostilities may be “punished as unlawful combatants but only following a fair trial affording all judicial guarantees”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 318.2.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Additional Protocol I”, the manual states:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.4.
In its chapter on rights and duties of occupying powers, the manual states: “Sentences may be pronounced only after a regular trial.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.1.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “It is also a grave breach … to deprive a PW [prisoner of war] of the right to a fair and regular trial as prescribed in [the 1949 Geneva Convention III]”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.5.
The manual further states: “In the case of civilians in the hands of the adverse party, it is also a grave breach: … d. to wilfully deprive a protected person of the rights of a fair and regular trial prescribed by the Geneva Convention for Civilians [the 1949 Geneva Convention IV]”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.6.d.
The manual adds that “denial of a fair and regular trial to any person protected by the Geneva Conventions or [the 1977 Additional Protocol I]” is a grave breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.3.e.
In the same chapter, the manual further states:
1618. Pretrial considerations
2. If an alleged war criminal is a PW, that person is entitled to be treated, until conviction, in the same way as any other PW. The PW must be tried by the same tribunal and in accordance with the same rules and procedures as members of the armed forces of the state having custody of the PW.
3. The Geneva Conventions provide that all persons accused of grave breaches enjoy the safeguards of a proper trial and defence in accordance with international standards.
1620. Trials of foreign civilians for war crimes
1. Where civilians accused of war crimes are held for trial by a power of which they are not nationals, they are entitled to the safeguards of a proper trial and defence, which shall be not less than those provided for PWs. In addition, they must always be submitted for prosecution and trial in accordance with the applicable rules of International Law. If they do not enjoy more favourable treatment under the Geneva Conventions and [the 1977 Additional Protocol I], they are to be afforded the fundamental guarantees embodied in Article 75 of the Protocol.  
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1618.2–3 and 1620.1.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
iv the passing of sentences … without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.1.
In the same chapter, the manual also states: “No sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.1.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Grave breaches of the [1949 Geneva Conventions] and [the 1977 Additional Protocol I] include any of the following actions[:] … Wilfully depriving PW [prisoners of war] or other protected persons of the rights of a fair trial as set out in the [1949 Geneva Conventions] and [the 1977 Additional Protocol I]. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.2.d.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Everyone must be entitled to benefit from fundamental judicial guarantees.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 5.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen to … convict persons without the prior judgment of a regularly constituted court affording the judicial guarantees provided by the Law”. 
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(11).
Chad
Chad’s Instructor’s Manual (2006) states that “denial of a fair trial” is a grave breach of the 1949 Geneva Conventions and thus a war crime. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 108.
Colombia
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Each person shall benefit from the fundamental judicial guarantees.” 
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 5.
Colombia
Colombia’s Basic Military Manual (1995) states: “To protect [non-combatants] means … to offer the necessary conditions for a fair trial before a competent tribunal, so that the requirement of due process is guaranteed.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 21.
Colombia
Colombia’s Instructors’ Manual (1999) provides: “Whoever is deprived of his liberty has the right to a legal trial.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 9.
The manual adds: “Nobody can be tried except in conformity with laws in force before the imputed act and by a judge or a competent tribunal, and in full compliance with all rules for each trial.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 10.
Colombia
Colombia’s Soldiers’ Manual (1999) provides: “Whoever is deprived of liberty has the right to a legal trial.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Congo
Under the Congo’s Disciplinary Regulations (1986), it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
I.3. War crimes
This is by far the breach which can take the most varied forms. It relates to the grave breaches of the 1949 Geneva Conventions, namely the following acts directed against the persons or objects protected by these acts:
- wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 44–45.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … convict anyone without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees established by law”. 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(3).
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states that the following “are currently considered as war crimes … if committed against any person not or no longer participating in hostilities: … depriving a prisoner of war or a civilian of the rights of fair and regular trial”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 50.
Ecuador
Ecuador’s Naval Manual (1989) provides that “offences against prisoners of war, including … denying the right to a fair trial for committed offences” and “offences against civilian inhabitants of the occupied territory, including … denying the right to a fair trial for committed offences” constitute war crimes. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5(1)–(2).
The manual further provides that “individuals captured as … illegal combatants … have the right to be fairly tried for violations of the law of armed conflict”. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.8.
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces lists as one of the ten basic rules that “any person has the right to be heard” in trial. 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, undated, pp. 3 and 15.
El Salvador
El Salvador’s Soldiers’ Manual provides: “Only a fairly constituted tribunal can pronounce and impose a judgment or a sentence against captured enemy combatants.” 
El Salvador, Manual del Combatiente, undated, p. 10.
France
France’s Disciplinary Regulations (1975), as amended, provides that it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
France
France’s LOAC Summary Note (1992) provides: “Every person, whether combatant or non-combatant, shall benefit from the fundamental judicial guarantees.” 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § III.
The Summary Note further states that “deprivation of the fundamental judicial guarantees” is a grave breach of the 1949 Geneva Convention III. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 3.4.
France
France’s LOAC Teaching Note (2000) states that “violations of the fundamental judicial guarantees” are grave breaches of the law of armed conflict. 
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 7.
France
France’s LOAC Manual (2001) states that one of the three main principles common to IHL and human rights is the “principle of inviolability” which guarantees to every human being the fundamental judicial guarantees.  
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 52.
The manual refers to common Article 3 of the 1949 Geneva Conventions and stipulates that the “passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” is prohibited. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 101.
Germany
Germany’s Military Manual (1992) provides that civilians “shall have the right to a regular and fair judicial procedure”. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 518.
The manual further states that “prevention of a fair and regular trial” is a grave breach of IHL. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1209.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To convict persons without trial before a properly constituted court, according to the legal guarantees in force.” 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 15(f).
Guinea
Guinea’s Disciplinary Regulations (2012) states: “Military personnel in combat are prohibited from … passing sentences on individuals without previous judgment pronounced by a regularly constituted court affording the judicial guarantees provided by the law”. 
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Article 12(b).
Indonesia
According to Indonesia’s Directive on Human Rights (1995) in Trikora, “the protection of personal integrity consists of: the protection of the civil and political rights of citizens from cruel treatment and punishment without judicial procedure” and “due process of law … and fair trial guarantees”. 
Indonesia, Directive concerning the Respect of Human Rights in Military Operations, issued by the Commander of the Regional Military Command of Trikora, No. Skep/96/XII/1995, 1 November 1995, §§ 1(b) and 4(a).
Ireland
Ireland’s Basic LOAC Guide (2005) states: “The following acts are specified as grave breaches under the convention for the treatment of PWs [prisoners of war] [1949 Geneva Convention III]: – … wilfully depriving a PW of the rights of fair trial”. 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 10.
The manual further states that “wilful deprivation of the rights of a fair trial” is a grave breach of the 1949 Geneva Convention IV relating to the treatment of civilians. 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 12.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
The population of occupied areas
International law governs the duty of the army and its authority over populations in occupied areas or in zones under military occupation during battle. The Fourth Geneva Convention includes a complete list of instructions that is binding upon the army in its dealings with the civilian population in an occupied area and regulate the army’s authority (for example … how the martial courts should be conducted in the area … and more).
The State of Israel claimed in the past that the Convention, at least in part, does not constitute customary international law, however, for political reasons it applies the humanitarian provisions of the Convention de facto, with respect to everything concerning the Occupied Territories. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s IHL Manual (1991) provides that the violation of “the right to a regular and impartial trial for acts committed in connection with an armed conflict” constitutes a grave breach of the 1949 Geneva Conventions and their 1977 Additional Protocols. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 85.
Kenya
Kenya’s LOAC Manual (1997) refers to common Article 3 of the 1949 Geneva Conventions and states that persons hors de combat “may not be sentenced without proper trial”. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 6.
Madagascar
Madagascar’s Military Manual (1994) refers to one of the “seven fundamental rules of IHL”, which states: “Every person shall benefit from the fundamental judicial guarantees.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, p. 91, Rule 5.
Mali
Mali’s Army Regulations (1979) provides that it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Procedural guarantees form part of the fundamental guarantees, which means that they must be accorded to all prisoners even if their prisoner-of-war status has not been recognized.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 190.
In a section on the obligations of the occupying power under the 1949 Geneva Convention IV, the manual states:
B. In order to ensure that justice is observed, the courts can apply only those provisions of law … which are in accordance with general principles of law, in particular the principle that the penalty must be proportionate to the offence. They must also take into consideration the fact that the accused is not a national of the occupying power.
C. Judicial procedure must be regular. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(B)–(C).
The manual also states that Article 3 common to the 1949 Geneva Conventions prohibits “the passing of sentences … without previous judgment”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 85(B); see also § 107(B).
Morocco
Morocco’s Disciplinary Regulations (1974) provides that it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25.
Netherlands
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.
Netherlands
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.
New Zealand
New Zealand’s Military Manual (1992) states:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court, respecting the generally recognized principles of regular judicial procedure. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4).
The manual further provides that it is a grave breach “to deprive [a prisoner of war] of his rights to a fair and regular trial” and to “wilfully deprive a protected civilian of the rights of fair and regular trial”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 1702(2) and 1702(3)(d).
The manual also states that depriving “any person protected by the [1949 Geneva] Conventions or the [1977 Additional] Protocol [I] of a fair and regular trial” is a grave breach of the 1977 Additional Protocol I. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1703(4)(e).
With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1807(1)(d).
Nigeria
Nigeria’s Manual on the Laws of War provides that “wilfully depriving prisoners of war and civilians of the rights to a fair and regular trial” is a grave breach of the 1949 Geneva Conventions and is considered as a serious war crime. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6(b) and (c).
The manual further states: “In any case, it must be ensured that no punishment is imposed on a prisoner of war without a fair trial.” 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 44.
Peru
Peru’s Human Rights Charter of the Security Forces (1991) lists the right of a detainee to a fair trial as one of the ten basic rules. 
Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, 1991, Rule 8.
Peru
Peru’s Human Rights Charter of the Armed Forces (1994) states that the right to judicial guarantees is one of the main civil rights which must be respected by armed forces. 
Peru, Derechos Humanos: Principios, Normas y Procedimientos, MFA 09-1, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, Lima, Peru, May 1994, § 27(4).
Peru
Peru’s IHL Manual (2004) states: “Sentences may not be passed or penalties executed in relation to a person found guilty of a criminal offence under international humanitarian law unless a trial has been held.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.n.
The provision continues with the statement that a person charged with a criminal offence has a “right to a fair trial”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.n.(1).
In situations of non-international armed conflict, the manual states that the following acts committed against persons taking no active part in hostilities, or placed hors de combat, are prohibited:
[T]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 71.a.(4).
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Sentences may not be passed or penalties executed in relation to a person found guilty of a criminal offence under international humanitarian law unless a trial has been held.”  
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(n), p. 251.
The provision continues with the statement that a person charged with a criminal offence has a “right to a fair trial”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(n)(1), p. 251.
In situations of non-international armed conflict, the manual states that the following acts committed against persons taking no active part in hostilities, or placed hors de combat, are prohibited: “[T]he passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 72(a)(4), p. 270.
Russian Federation
The Russian Federation’s Military Manual (1990) prohibits the punishment of war victims, namely the wounded, sick and shipwrecked, prisoners of war and civilian population, “without a previous judgment pronounced by a regularly constituted court, with all the judicial guarantees which are recognized as indispensable by civilized nations”. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, §§ 7 and 8(e).
Senegal
Senegal’s Disciplinary Regulations (1990) provides that it is prohibited to “convict persons without a previous judgment pronounced by a regularly constituted tribunal affording judicial guarantees provided by law”. 
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(2).
Senegal
Senegal’s IHL Manual (1999) restates common Article 3 of the 1949 Geneva Conventions. 
Senegal, Le DIH adapté au contexte des opérations de maintien de l’ordre, République du Sénégal, Ministère des Forces Armées, Haut Commandement de la Gendarmerie et Direction de la Justice Militaire, Cabinet, 1999, p. 4.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
[T]here are certain human rights that can never be suspended no matter the situation. These are referred to as hard-core rights and they include … [the] right to a fair trial … Hard core rights are protected under the LoAC as well. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 18.
[emphasis in original]
South Africa
South Africa’s LOAC Manual (1996) provides that depriving a “protected person of the rights to a fair and regular trial” constitutes a grave breach of the 1949 Geneva Conventions. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 40. This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
Spain
Spain’s LOAC Manual (1996) provides that “the guarantee of judicial proceedings” is one of the minimum guarantees provided to prisoners of war. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.2.c.
Spain
Spain’s LOAC Manual (2007) states: “Any person detained for actions related to the armed conflict is entitled to legal, procedural and judicial guarantees.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.4; see also § 8.2.c.
The manual also states with regard to combatants without prisoner-of-war status: “Although they are not entitled to prisoner-of-war status, they do have the right to a fair trial and all the generally recognized procedural guarantees.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.3.a.(8).
Sweden
Sweden’s Military Manual (1976) provides that in occupied territories, prisoners of war or civilians shall be granted all fundamental judicial guarantees. 
Sweden, Folkrätten – Internationella regler i krig, Blhang Svensk soldat, 1976, pp. 16 and 26.
Sweden
Sweden’s IHL Manual (1991) considers that the principle of the right to have a sentence pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure as contained in Article 75 of the 1977 Additional Protocol I is part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
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. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.2, p. 93.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that, when captured, “saboteurs … cannot be punished without prior judgment”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 46.
The manual notes: “In judicial proceedings, some minimum guarantees in accordance with the regime of the rule of law shall be granted to those accused of possible war crimes and who no longer benefit from prisoner-of-war status.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 66.
The manual adds: “Article 75 [of the 1977 Additional Protocol I] contains a series of provisions that guarantee to the accused a fair trial.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 153.
The manual further provides:
A person found guilty of a criminal offence committed in connection with the armed conflict shall be sentenced only in accordance with a judgment … This judgment shall be rendered by an impartial and regularly constituted tribunal which follows the generally recognised principles of a regular judicial procedure. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 175.
According to the manual, it is a grave breach of the 1949 Geneva Conventions to deprive prisoners of war and civilians of “their right to be tried by an impartial and regularly constituted tribunal, in accordance with the conventions”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 192(b); see also § 193(2)(e).
In an article entitled “Judicial guarantees”, the manual states: “Prisoners of war prosecuted for war crimes shall benefit from the rights prescribed by [the 1949 Geneva Convention III].” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 201.
Togo
Togo’s Military Manual (1996) provides that every person shall benefit from fundamental judicial guarantees. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 5.
Ukraine
Ukraine’s IHL Manual (2004) states: “Serious violations of international humanitarian law directed against people include: … deprivation of the rights of a fair and regular trial.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.5.
The manual further states that, in non-international armed conflicts, “the passing of sentences … without previous judgment [duly] delivered”, or threats of such actions, against the following persons are prohibited:
- persons taking no active part in the hostilities;
- members of armed forces who have laid down their arms;
- those placed hors de combat by sickness, wounds, detention, or any other cause. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.4.10.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides that if civil inhabitants “commit or attempt to commit hostile acts, they are liable to punishment, after a proper trial”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 88.
The manual further provides that “the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples” is prohibited at any time. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 131(1)(d).
The manual specifies that “wilfully depriving a prisoner of war of the rights to a fair and regular trial prescribed in the Convention” is a grave breach of the 1949 Geneva Convention III. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 282.
In cases of occupation, the manual states: “Sentences may be pronounced only after a regular trial.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 570.
The manual further emphasizes that wilfully depriving a prisoner of war or persons protected under the 1949 Geneva Convention IV of the rights of fair and regular trial required by the 1949 Geneva Conventions III and IV is a grave breach of those instruments. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 625(b)–(c).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) recalls: “[The 1977 Additional] Protocol I contains fundamental guarantees to … ensure that persons are not punished without properly conducted trials.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 9, p. 35, § 10.
With respect to non-international armed conflicts, the Pamphlet refers to common Article 3 of the 1949 Geneva Conventions and states that persons hors de combat “may not be sentenced without proper trial”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 12, p. 42, § 2(a)(4).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed. No sentence may be passed and no penalty executed “except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on punishment of prisoners of war, the manual states:
Where there are to be judicial proceedings, prisoners of war are normally to be tried by military courts. If the law of the detaining power permits the trial by civil court of members of its own armed forces for particular offences, the civil courts may try prisoners of war under the same conditions. However, trial may only take place if the court is independent and impartial and the accused is given due rights of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.118.
In its chapter on internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(d) the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.4.
In the same chapter, the manual specifies:
Indispensable judicial guarantees include as a minimum:
a. individual criminal responsibility (so that collective punishments would be unlawful);
b. the right of the accused not to be compelled to testify against himself;
c. the presumption of innocence until proved guilty;
d. notification to the accused of the charges against him;
e. adequate time and opportunity for the accused to prepare his defence;
f. the attendance of both prosecution and defence witnesses and, if necessary, an interpreter;
g. trial in person and public judgment. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
In its chapter on enforcement of the law of armed conflict, the manual states:
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:
f. wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.24.
The manual further states:
Additional Protocol I extends the definition of grave breaches to include the following:
c. the following, when committed wilfully and in violation of the Conventions or the protocol:
(5) depriving a protected person of the rights of fair and regular trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.25.
Lastly, the manual provides:
Prisoners of war charged with war crimes must be tried by the same courts, applying the same procedures, as would be applicable to members of the armed forces of the detaining power. Civilians so charged may be tried either by the ordinary courts of the state concerned or in courts set up by an occupying power. Persons accused of war crimes are entitled to a proper trial and have rights of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.30.1.
United States of America
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions and Articles 102 and 108 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 11, 178 and 184.
With respect to occupied territories, the manual uses the same wording as Articles 5, 66 and 71 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 248, 436 and § 441.
The manual provides that “wilfully depriving a prisoner of war or a protected person of the rights of a fair and regular trial” is a grave breach of the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
United States of America
The US Air Force Pamphlet (1976) states that the 1949 Geneva Convention III “provides specific safeguards and guarantees of fair judicial proceedings”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet further states: “Protected persons in occupied territory who are detained for … sabotage … are guaranteed the right to a fair trial.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-2.
The Pamphlet specifies that “deliberate deprivation of fair trial rights to any protected persons” is an act involving individual criminal responsibility. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(11).
United States of America
The US Air Force Commander’s Handbook (1980) provides: “A prisoner of war must be tried by the same courts as try members of the armed forces of the detaining power, and must be given the same procedural rights as members of that state’s armed forces”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
The Handbook adds: “Even terrorists … and illegal partisans have the right to be tried”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(e).
With respect to war crimes trials, the Handbook states that “these trials must meet certain minimum standards of fairness and due process, now set out in detail in the 1949 Geneva Conventions” and that the “failure to accord captured personnel the right to a fair trial is itself a serious violation of the law of armed conflict”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, §§ 8–3(a) and(b).
United States of America
The US Soldier’s Manual (1984) prohibits sentencing protected persons without a proper trial. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, pp. 5 and 20.
United States of America
The US Naval Handbook (1995) provides that “the following acts are representative war crimes … denial of a fair trial” for prisoners of war and civilian inhabitants of an occupied territory. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(1) and (2).
The Handbook adds: “Failure to provide a fair trial for the alleged commission of a war crime is itself a war crime.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(2) and (3).
United States of America
The US Naval Handbook (2007) states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include:
1. Offenses against prisoners of war, including … denial of fair trial for offenses …
2. Offenses against civilian inhabitants of occupied territory, including … denial of fair trial for offenses. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6(1)–(2).
The Handbook also states: “The law of armed conflict establishes minimum standards for the trial of foreign nationals charged with war crimes. Failure to provide a fair trial for the alleged commission of a war crime is itself a war crime.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.3.
The Handbook further states: “Prisoners of war prosecuted for war crimes committed prior to capture, or for serious offenses committed after capture, are entitled to be tried by the courts that try the captor’s own forces and are to be accorded the same procedural rights.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.1.
The Handbook further states:
[T]he following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control:
d. Passing sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2(d).
United States of America
The US Manual on Detainee Operations (2008) states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “… the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples … ”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
United States of America
The US Manual for Military Commissions (2010) provides that “procedural and evidentiary rules that … extend to the accused all the judicial guarantees which are recognized as indispensable by civilized peoples as required by Common Article 3 of the Geneva Conventions of 1949”. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Preamble, § 2, p. I-1.
Zimbabwe
Zimbabwe’s Code of Conduct for Combatants (1993) states: “As a State party to the [1949] Geneva Conventions … your country is bound by these treaties … Article 3 common to all four Geneva Conventions, which regulates non-international armed conflicts, … stipulates that trials have to afford all judicial guarantees.” 
Zimbabwe, Code of Conduct for Combatants, Joint publication of the Zimbabwe Defence Forces and the International Committee of the Red Cross Regional Delegation in Harare, 1993, pp. 14–15.
Afghanistan
Afghanistan’s Law against Terrorist Offences (2008) states:
Article 6. Rights of the Suspect and Accused.
During investigation and trial, [those] suspect[ed] [or] accused of terrorist offences [including offences against persons protected under international treaties as provided for in article 13 of the same law] shall have the same legal rights as th[os]e suspect[ed] [or] accused of other offences.
Article 21. Observing Provisions of [the] Criminal Procedure Code.
The discovery, investigation and trial of [those] suspect[ed] [or] accused of terrorist offences shall be carried out according to the provisions of the Criminal Procedure Code and this law. 
Afghanistan, Law against Terrorist Offences, 2008, Articles 6 and 21.
Argentina
Argentina’s Law on the Protection of Children’s and Adolescents’ Rights (2005) states:
Article 27 (Minimum procedural guarantees. Guarantees in judicial or administrative proceedings)
In any judicial or administrative proceedings affecting children and adolescents, the governmental bodies shall guarantee [that children and adolescents enjoy] … all those rights provided for in the National Constitution [of Argentina], in the Convention on the Rights of the Child, in international treaties ratified by the Argentine Nation and any laws promulgated in consequence of such treaties. 
Argentina, Law on the Protection of Children’s and Adolescents’ Rights, 2005, Article 27.
Armenia
Under Armenia’s Penal Code (2003), “depriving a protected person or a prisoner of war of the right to a fair and regular trial”, during an armed conflict, constitutes a crime against the peace and security of mankind. 
Armenia, Penal Code, 2003, Article 390.2(3).
Australia
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
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
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.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) prohibits, with regard to civilian persons and prisoners of war, the “passing of sentences … without a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees provided by international law”.  
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Articles 17(9) and 21(4).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bangladesh
Bangladesh’s International Crimes (Tribunals) Act (1973), as amended in 2009, states:
3. (1) A Tribunal shall have the power to try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act any of the crimes mentioned in sub-section (2) [including war crimes].
6. …
(2A) The Tribunal … shall ensure fair trial. 
Bangladesh, International Crimes (Tribunals) Act, 1973, as amended in 2009, Articles 3(1) and 6(2A).
Belarus
Belarus’s Criminal Code (1999) provides that depriving persons who have laid down their arms or are defenceless, the wounded, sick and shipwrecked, sanitary and religious personnel, prisoners of war, civilian population in an occupied territory or in the conflict zone, or other persons enjoying international protection of their right to be judged by a regular and impartial tribunal is a violation of the laws and customs of war. 
Belarus, Criminal Code, 1999, Article 135(1).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
8. depriving a prisoner of war, a civilian protected by the [1949 Geneva] Convention [IV] on the protection of civilians in times of armed conflict, or a person protected by [the 1977] Additional Protocols I and II to the … 1949 Geneva Conventions of his right to a fair and regular trial under the provisions of those instruments. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(8).
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides that “denying a prisoner of war [or] a protected civilian person the right to a fair and impartial trial” constitutes a crime under international law. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(3)(5).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
5. depriving a prisoner of war, a civilian protected by the [1949 Geneva] Convention [IV] on the protection of civilians in times of armed conflict, or a person protected by [the 1977] Additional Protocols I and II to the … 1949 Geneva Conventions of his right to a fair and regular trial under the provisions of those instruments. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(5).
Bosnia and Herzegovina
The Criminal Code (1998) of the Federation of Bosnia and Herzegovina provides that “depriving civilians and prisoners of war of their right to a fair and impartial trial” is a war crime. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Articles 154(1) and 156.
The Criminal Code (2000) of the Republika Srpska contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Articles 433(1) and 435.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states that, in time of war, armed conflict or occupation, ordering or permitting the “deprivation of rights to a fair and impartial trial”, in violation of international law, constitutes a war crime. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(1)(e); see also Article 175(c).
Botswana
Botswana’s Geneva Conventions Act (1970) punishes “any person, whatever his nationality, who, whether in or outside Botswana, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the [1949 Geneva] conventions”. 
Botswana, Geneva Conventions Act, 1970, Section 3(1).
Bulgaria
Bulgaria’s Penal Code (1968), as amended in 1999, provides that depriving a captive or a civilian person of his or her “right to be tried by a regular court and under a regular procedure” is a war crime. 
Bulgaria, Penal Code, 1968, as amended in 1999, Articles 411(c) and 412(e).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
A. Grave breaches of the Geneva Conventions of 8 August 1949, namely, any of the following acts aimed at persons or objects protected by the provisions of the Geneva Conventions
f) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(A)(f).
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
1. Any of the following grave breaches of the 1949 Geneva Conventions … :
6°. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
3. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four 1949 Geneva Conventions … , namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
4°. The passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. 
Burundi, Penal Code, 2009, Article 198(1)(6o) and 3(4o).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001) provides:
The Extraordinary Chambers shall have the power to bring to trial all suspects who committed or ordered the commission of grave breaches of the Geneva Convention[s] of 12 August 1949 … which were committed during the period from 17 April 1975 to 6 January 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, Article 6.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its Article 6:
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of grave breaches of the Geneva Conventions of 12 August 1949, such as the following acts against persons or property protected under provisions of these Conventions, and which were committed during the period 17 April 1975 to 6 January 1979:
• …
• wilfully depriving a prisoner of war or civilian the rights of fair and regular trial. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 6.
With regard to the Extraordinary Chambers’ own proceedings, Article 33 new of the Law provides:
The Extraordinary Chambers of the trial court shall ensure that trials are fair and expeditious and are conducted in accordance with existing procedures in force, with full respect for the rights of the accused and for the protection of victims and witnesses. If these existing procedure do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard, guidance may be sought in procedural rules established at the international level.
The Extraordinary Chambers of the trial court shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights.  
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 33 new.
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1949 Geneva Conventions or of the 1977 Additional Protocol I] is guilty of an indictable offence.” 
Canada, Geneva Conventions Act as amended, 1985, Section 3(1).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
China
China’s Criminal Law (1979), as amended in 1997, states:
Article 4 The law shall be equally applied to anyone who commits a crime. No one shall have the privilege of transcending the law.
Article 399 Any judicial officer who, bending the law for selfish ends or twisting the law for a favor, subjects to investigation for criminal responsibility a person he knows to be innocent or intentionally protects from investigation for criminal responsibility a person he knows to be guilty or, intentionally running counter to the facts and law, twists the law when rendering judgments or orders in criminal proceedings shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years. 
China, Criminal Law, 1979, as amended in 1997, Articles 4 and 399.
A 2002 amendment to Article 399 of China’s Criminal Law (1979) restates:
Any judicial officer who, bending the law for selfish ends or twisting the law for a favor, subjects to investigation for criminal responsibility a person he knows to be innocent or intentionally protects from investigation for criminal responsibility a person he knows to be guilty or, intentionally running counter to the facts and law, twists the law when rendering judgments or orders in criminal proceedings shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than ten years. 
China, Criminal Law, 1979, as amended in 2002, Article 399.
China
China’s Organic Law of the People’s Courts (1979), as amended in 2006, states:
In judicial proceedings in the people’s courts, the law is applied equally to all citizens, regardless of ethnic status, race, sex, occupation, family background, religious belief, education, property status or length of residence. No privilege whatsoever is allowed. 
China, Organic Law of the Peoples Courts, 1979, as amended in 2006, Article 5.
Colombia
Colombia’s Penal Code (2000) provides for the punishment of anyone who during an armed conflict “orders or deprives protected persons of their right to a fair and regular trial”. 
Colombia, Penal Code, 2000, Article 149.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I]”. 
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Croatia
Croatia’s Criminal Code (1997) provides that denying the civilian population and prisoners of war their “rights to a fair and impartial trial” is a war crime. 
Croatia, Criminal Code, 1997, Articles 158 and 160.
Cyprus
Cyprus’s Geneva Conventions Act (1966) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic, any grave breach or takes part, or assists or incites another person in the commission of grave breaches of the Geneva Conventions”. 
Cyprus, Geneva Conventions Act, 1966, Section 4(1).
Cyprus
Cyprus’s Additional Protocol I Act (1979) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic any grave breach of the provisions of the Protocol, or takes part or assists or incites another person in the commission of such a breach”. 
Cyprus, Additional Protocol I Act, 1979, Section 4(1).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 165
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
Article 166
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:
4. Depriving a prisoner of war or a civilian person protected by the Conventions or Additional Protocols relative to the protection of persons in time of war of the rights of a fair and regular trial according to the regulations of those provisions;
Article 167
The offences contained in the preceding article are punished with penal servitude for life.
If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 165–167.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Estonia
Estonia’s Penal Code (2001) provides, with respect to civilians, prisoners of war and interned civilians, that the “deprivation of the right to a fair trial” is a war crime. 
Estonia, Penal Code, 2001, §§ 97 and 99.
Ethiopia
Ethiopia’s Penal Code (1957) provides that denying civilians, wounded and sick, prisoners of war or internees of their “right to a fair trial” constitutes a crime. 
Ethiopia, Penal Code, 1957, Article 292.
Ethiopia’s Criminal Code (2004) states:
Article 270.- War Crimes against the Civilian Population.
Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:
(p) passing of sentences … without previous judgment pronounced by a regularly constituted Court which affords all the judicial guarantees,
is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death.
Article 280.- Denial of Justice.
Whoever, in time of war or occupation and in violation of the rules of public international law, deprives a civilian, a wounded person, a prisoner or an internee, of his right to be tried according to law guaranteeing him human treatment and the free exercise of his right to defend himself, or orders such deprival,
is punishable with simple imprisonment from three years to five years. 
Ethiopia, Criminal Code, 2004, Articles 270 and 280.
The Criminal Code of 2004 replaced Ethiopia’s Penal Code of 1957.
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “denies a prisoner of war or another protected person the rights to a fair and lawful trial or in another manner denies him or her legal guarantees” shall be “sentenced for a war crime to imprisonment for at least one year or for life”. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(7).
(emphasis in original)
France
France’s Code of Defence (2004), as amended in 2008, states: “Members of the military shall respect the right to a fair trial of those persons suspected of committing crimes or offences.” 
France, Code of Defence, 2004, as amended in 2008, Article D4122-9.
Georgia
Under Georgia’s Criminal Code (1999), it is a crime in both international and non-international armed conflicts to “wilfully deprive a prisoner of war or any other protected person of their right to a fair trial”. 
Georgia, Criminal Code, 1999, Article 411(2)(e).
Georgia
Georgia’s Organic Law on Common Law Courts (2009) states:
Equality before the Law and the Court.
1. Justice is administered on the basis of equality before the law of all persons participating in the case.
2. The legal proceedings are conducted on the basis of [e]quality and competition of the parties. 
Georgia, Organic Law on Common Law Courts, 2009, Article 6.
Germany
Germany’s Law Introducing the International Crimes Code (2002) provides a punishment for anyone who, in connection with an international or non-international armed conflict:
imposes on or enforces against a person protected under international humanitarian law a severe punishment, particularly the death penalty or imprisonment, without such person having been convicted by an impartial and regularly constituted court affording the judicial guarantees required under international law. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 8(1)(7).
Hungary
Under Hungary’s Criminal Code (1978), as amended in 1998, the person who deprives “the civilian population and prisoners of war of their right to be tried in a regular and impartial procedure” is guilty, upon conviction, of a war crime. 
Hungary, Criminal Code, 1978, as amended in 1998, Article 158(3)(b).
India
India’s Geneva Conventions Act (1960) provides: “If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] Conventions he shall be punished.” 
India, Geneva Conventions Act, 1960, Section 3(1).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies “[w]illfully denying the right of a fair regular trial to a prisoner of war or other protected person” as a grave breach of the 1949 Geneva Conventions. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(1)(F).
The Law characterizes the “passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all recognized and indispensable judicial guarantees” as a war crime in any armed conflict when “committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, injury, detention or any other cause”. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(3)(D).
With regard to trial proceedings, the Law states:
The Trial Chamber shall ensure a fair and expeditious trial conducted in accordance with this Law and the Rules of Procedure and Evidence annexed to it, with full respect for the rights of the accused and due regard for the protection of victims or their relatives, and witnesses. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 20(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3(1).
In addition, any “minor breach” of the 1949 Geneva Conventions, including violations of common Article 3, Article 49 of the Geneva Convention I, Article 50 of the Geneva Convention II, Articles 102–108 of the Geneva Convention III and Article 5 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Articles 71(1), 75(4) and 78(2), are also punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order on Security Regulations (2009), which established a juvenile court in the West Bank for a period of one year, states:
a. No child shall be subjected to trial with an adult unless the consent of the military prosecutor is provided or the consent of any person given this power by the military prosecutor.
b. Any child charged with an adult in the same case and appears in court other than a juvenile court, the court has the jurisdiction to proceed with this case. If so, the court must act as if it were a juvenile court and shall have all the jurisdictions granted to the juvenile court. Should the court decide not to examine this case; it must transfer it to the military juvenile court. 
Israel, Order on Security Regulations, 2009, Article 46.D.
The Order defines a “child” as “anyone under 16 years, and a suspect or accused who has not attained 16 at the time of submitting the list of charges”. 
Israel, Order on Security Regulations, 2009, Article 46.A.
Jordan
Jordan’s Military Penal Code (2002) states that the following shall be deemed a war crime when committed in the event of armed conflict: “Wilfully depriving protected persons of the rights of fair and regular trial”. 
Jordan, Military Penal Code, 2002, Article 41(a)(19).
Kenya
Kenya’s Geneva Conventions Act (1968) punishes “any person, whatever his nationality, who, whether within or outside Kenya commits, or aids, abets or procures the commission by any other person of any grave breach of any of the [1949 Geneva] Conventions”. 
Kenya, Geneva Conventions Act, 1968, Section 3(1).
Kenya
Kenya’s Constitution (1992) provides: “If a person is charged with a criminal offence, the case shall be afforded a fair hearing.” 
Kenya, Constitution, 1992, Article 77(1).
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, the imposition of “criminal penalties without a previous judgment by an independent court or guarantees of defence during the trial” constitutes a war crime. 
Lithuania, Criminal Code, 1961, as amended in 1998, Article 336.
Luxembourg
Under Luxembourg’s Law on the Punishment of Grave Breaches (1985), depriving a person protected by the 1949 Geneva Conventions III and IV of the right to a fair and regular trial is a grave breach of these instruments. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 1(5).
Malawi
Malawi’s Geneva Conventions Act (1967) punishes “any person, whatever his nationality, who, whether within or without Malawi commits or aids, abets or procures the commission by any other person of any such grave breach of any of the [1949 Geneva] Conventions”. 
Malawi, Geneva Conventions Act, 1967, Section 4(1).
Malaysia
Malaysia’s Geneva Conventions Act (1962) punishes “any person, whatever his citizenship or nationality, who, whether in or outside the Federation, commits, or aids, abets or procures the commission by any other person of any such grave breach of any of the … [1949 Geneva] conventions”. 
Malaysia, Geneva Conventions Act, 1962, Section 3(1).
Mali
Mali’s Penal Code (2001) provides that “wilfully depriving a prisoner of war or any other protected person of his/her right to a fair and impartial trial” is a war crime. 
Mali, Penal Code, 2001, Article 31(f).
Mauritius
The Geneva Conventions Act (1970) of Mauritius punishes “any person who in Mauritius or elsewhere commits, or is an accomplice in the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions”. 
Mauritius, Geneva Conventions Act, 1970, Section 3(1).
Netherlands
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).
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides:
Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I] is guilty of an indictable offence. 
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(a)(vi) and (c)(iv) of the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Nicaragua
Nicaragua’s Military Penal Code (1996) provides for the punishment of denying prisoners of war and civilians their right to a regular and impartial trial. 
Nicaragua, Military Penal Code, 1996, Articles 55(5) and 58.
Niger
According to Niger’s Penal Code (1961), as amended in 2003, depriving a prisoner of war, a civilian person protected by the 1949 Geneva Convention IV or a person protected by the 1977 Additional Protocols of “the right to a regular and impartial trial” constitutes a war crime. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.3(5).
Nigeria
Nigeria’s Geneva Conventions Act (1960) punishes any person who “whether in or outside the Federation, … whatever his nationality, commits, or aids, abets or procures any other person to commit any such grave breach of any of the [1949 Geneva] Conventions”. 
Nigeria, Geneva Conventions Act, 1960, Section 3(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … imposes or implements a penalty in respect of a protected person without that person first being given a fair trial in accordance with international law.” 
Norway, Penal Code, 1902, as amended in 2008, § 103(i).
The Penal Code further states: “A protected person is a person who does not take, or who no longer takes, active part in hostilities, or who is otherwise protected under international law.” 
Norway, Penal Code, 1902, as amended in 2008, § 103.
Papua New Guinea
Papua New Guinea’s Geneva Conventions Act (1976) punishes any “person who, in Papua New Guinea or elsewhere, commits a grave breach of any of the Geneva Conventions”. 
Papua New Guinea, Geneva Conventions Act, 1976, Section 7(2).
Peru
Peru’s Code of Military and Police Justice (2006) states: “The principles of adversarial, immediate, simple and expedient proceedings shall be observed during the entire process.” 
Peru, Code of Military and Police Justice, 2006, Article 151.
Peru
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
With respect to the persons mentioned above [i.e. persons not directly participating in hostilities or who have laid down their arms as well as persons placed hors de combat by illness, wounds, detention or any other reason], the following actions are prohibited anytime and anywhere:
e. The passing of sentences … without previous judgment by a regularly constituted court, affording all the judicial guarantees.
f. Threats to carry out any of the aforementioned acts. 
Peru, Decree on the Use of Force by the Armed Forces, 2010, Article 8.1.e–f.
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in a chapter entitled “Procedural principles and guarantees”: “Judicial decisions, except for those that merely concern procedure, must express the factual and legal reasons on which they are based.” 
Peru, Military and Police Criminal Code, 2010, Article 156.
In a chapter entitled “Proceedings in times of armed conflict”, the Code states:
Article 416. - Proceedings
The procedure to be followed in proceedings during international armed conflicts shall be subject to the rules established for ordinary proceedings to the extent that they apply.
Article 417. - Rules
In these proceedings, the following rules shall be observed:
2. The statements of the accused persons shall be received without any delay, as soon as possible, and separately;
3. The declarations of the witnesses and the identification by witnesses of detainees shall be recorded in the minutes which shall be signed by the witnesses in order to declare that they are authentic, and eventually also by the judge, prosecutor and registrar;
4. If various witnesses who are present concur, only the most important statements shall be registered;
5. The military or police prosecutor may confront witnesses with one another or with the accused if he or she considers this necessary. 
Peru, Military and Police Criminal Code, 2010, Article 416 and 417(1)–(5).
Poland
Poland’s Constitution (1997) states: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” 
Poland, Constitution, 1997, Article 45(1).
Poland
Poland’s Penal Code (1997) provides for the punishment of “any person who, in violation of international law, deprives persons hors de combat, protected persons and persons enjoying international protection of their right to a fair and impartial trial”. 
Poland, Penal Code, 1997, Article 124.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who in both international and non-international armed conflicts commits the war crime of “[i]mposition on or execution of a sentence in respect of a person who is to be protected under international humanitarian law without that person having been sentenced in a fair and regular trial”. 
Republic of Korea, ICC Act, 2007, Article 10(3)(2).
Republic of Moldova
The Republic of Moldova’s Penal Code (2002) punishes the “passing of sentences without a trial by a regularly constituted court not affording all the judicial guarantees provided by law”. 
Republic of Moldova, Penal Code, 2002, Article 137(2)(d).
Romania
Under Romania’s Penal Code (1968), the “imposition of sanctions on wounded, sick and shipwrecked, members of civil medical services, Red Cross or similar organizations, prisoners of war, or all persons in the hands of the adverse party without a previous judgment by a regular court affording all judicial guarantees” constitutes a crime. 
Romania, Penal Code, 1968, Article 358(e).
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 8
A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:
6° wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
15° the passing of sentences … without previous judgment pronounced by a competent court, and without respecting the rights of the accused;
Article: 9
Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:
2° imprisonment for ten (10) to twenty (20) years where he has committed a crime provided for in point 6°, 7°, 8°, 10° or 12° of Article 8 of this law;
3° imprisonment for five (5) to ten (10) years where he has committed a crime provided for in point 4°, 5°, 13°, 14° or 15° of Article 8 of this law. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 8–9.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from other States (2007) provides:
Article: 13 Guarantee of rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree Law n° 08/75 of February 12, 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda] to Rwanda is guaranteed the following rights:
1° the accused shall be entitled to a fair and public hearing. 
Rwanda, Organic law concerning transfer of cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from other States, 2007, Article 13.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007), as amended in 2009, states:
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda … (2003) as amended to date or [l]aws relating to the Code of Criminal Procedure [(2004)] … and the [1966] International Covenant on Civil and Political Rights, as ratified by the Decree Law No. 08/75 of February 12, 1975, the accused person in the case transferred by [the] ICTR to Rwanda shall be guaranteed the following rights:
1º a fair … hearing. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, as amended in 2009, Article 13(1º).
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states:
[a)] Any of the following acts constitutes a war crime if it concerns members of the armed forces, the wounded, sick or shipwrecked, prisoners of war or civilians or objects protected by the provisions of the Geneva Conventions of 12 August 1949:
5. depriving a prisoner of war or other protected person of the rights of fair and regular trial. 
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(a)(5).
Senegal
Senegal’s Law Authorizing Ratification of the 2012 Agreement on the Establishment of the African Extraordinary Chambers (2012) states:
Desiring to fully demonstrate the respect it has consistently shown for its international commitments since independence, Senegal has undertaken to organize the trial of crimes and serious violations of international law committed on the territory of Chad during the period 7 June 1982 to 1 December 1990.
In order to assemble the right conditions for organizing the trial, and taking into account the decision on this matter of the ECOWAS [Economic Community of West African States] Court of Justice on 18 November 2010, the Government of the Republic of Senegal and the African Union signed an Agreement in Dakar on 22 August 2012 concerning the creation of the Extraordinary African Chambers within the Senegalese court system.
This legal instrument should enable our country to tangibly honour our international commitments by facilitating the prosecution of the alleged perpetrators of the aforementioned violations, within the framework of a just and fair trial, taking duly into account the concerns of victims, with strict respect for the right of defence, in accordance with relevant international requirements.
The Government is therefore committed, within the framework of this Agreement, to adopt the necessary laws, regulations and administrative measures for the purpose of putting in place the aforementioned judicial institutions. 
Senegal, Law Authorizing Ratification of the 2012 Agreement on the Establishment of the African Extraordinary Chambers, 2012, preamble, p. 1.
Serbia
Serbia’s Criminal Code (2005) states that, in time of war, armed conflict or occupation, ordering or committing the “deprivation of the rights to a fair and impartial trial” for members of the civilian population, in violation of international law, constitutes a war crime. 
Serbia, Criminal Code, 2005, Article 372(1).
The Criminal Code also states that depriving prisoners of war of “the rights to a fair and regular trial” constitutes a war crime. 
Serbia, Criminal Code, 2005, Article 374(1).
Seychelles
The Geneva Conventions Act (1985) of the Seychelles punishes “any person, whatever his nationality, who whether in or outside Seychelles, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the [1949 Geneva] Conventions”. 
Seychelles, Geneva Conventions Act, 1985, Section 3(1).
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(1) Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section … to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency.
29. Public emergency.
(2) The President may issue a Proclamation of a state of public emergency only when –
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof. 
Sierra Leone, Constitution, 1991, Sections 23(1) and (10) and 29(2) and (5).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol.
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –
(c) article 130 of the Third Geneva Convention [on, inter alia, the grave breach of wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the Convention];
(d) article 147 of the Fourth Geneva Convention [on, inter alia, the grave breach of wilfully depriving a protected person of the rights of fair and regular trial prescribed in the Convention];
(e) paragraph … 4 of Article 85 of the First Protocol [on, inter alia, the grave breach of depriving a person protected by the Conventions or referred to in Article 85(2) of the Protocol of the rights of fair and regular trial]. 
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)(c)–(e).
The Act also states: “The Minister [of Foreign Affairs] may make regulations to … protect the fundamental and procedural guarantees during time of armed conflict.” 
Sierra Leone, Geneva Conventions Act, 2012, Section 12(b).
Singapore
Singapore’s Geneva Conventions Act (1973) punishes “any person, whatever his citizenship or nationality, who, whether in or outside Singapore, commits, aids, abets or procures the commission by any other person of any such grave breach of any [1949 Geneva] Convention”. 
Singapore, Geneva Conventions Act, 1973, Section 3(1).
Slovenia
Slovenia’s Penal Code (1994) provides that “depriving civilians, the wounded, sick and shipwrecked, prisoners of war and medical and religious personnel of their right to a fair and regular trial” is a war crime. 
Slovenia, Penal Code, 1994, Articles 374(1, 375 and 376.
Somalia
Somalia’s Military Criminal Code (1963) states:
A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 
Somalia, Military Criminal Code, 1963, Article 382.
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including “wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” in international armed conflicts and “the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable” in non-international armed conflicts. 
South Africa, ICC Act, 2002, Schedule 1, Part 3, §§ (a)(vi) and (c)(iv).
Spain
Spain’s Military Criminal Code (1985) provides for the punishment of military personnel who deprive prisoners of war and civilians of their right to a regular and impartial trial. 
Spain, Military Criminal Code, 1985, Article 77(5)–(6).
Spain
Under Spain’s Penal Code (1995), depriving a prisoner of war or a civilian person of his/her right to a regular and impartial trial is an offence. 
Spain, Penal Code, 1995, Article 611(3).
Sri Lanka
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
15. (1) Every person who commits an offence under this Act shall be triable without a preliminary inquiry, on an indictment before a Judge of the High Court sitting alone without a jury or before the High Court at Bar by three Judges without a jury, as may be decided by the Chief Justice. The provisions of sections 450 and 451 of the Code of Criminal Procedure Act, No. 15 of 1979, shall, mutatis mutandis, apply to the trial of offences under this Act by the High Court at Bar and to appeals from judgments, sentences and orders pronounced at any such trial held by the High Court at Bar. …
15A. (1) Where any person is on remand under the provisions of subsection (2) of section 15, or section 19 (a), notwithstanding any other provision of this Act or any other law, the Secretary to the Ministry of the Minister in charge of the subject of Defense may, if he is of [the] opinion that it is necessary or expedient … to do [so], in the interests of national security or public order, make Order, subject to such directions as may be given by the High Court to ensure a fair trial of such person, that such person be kept in the custody of any authority, in such place and subject to such conditions as may be determined by him having regard to such interests. 
Sri Lanka, Prevention of Terrorism (Temporary Provisions) Act, 1979, as amended to 1988, Sections 15(1) and 15A(1).
Sri Lanka
Sri Lanka’s Geneva Conventions Act (2006) reproduces the following provision from the 1949 Geneva Conventions I, II and IV:
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. 
Sri Lanka, Geneva Conventions Act, 2006, Schedule I: Article 29, Schedule II: Article 50 and Schedule IV: Article 146; see also Schedule III: Article 129.
The grave breach of “wilfully depriving a protected person of the rights of fair and regular trial” is also included as an indictable offence. 
Sri Lanka, Geneva Conventions Act, 2006, Schedule IV: Article 147; see also Schedule III: Article 130.
Sudan
Sudan’s Armed Forces Act (2007) provides:
Subject to the provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding twenty years, or with any lighter penalty, whoever … deprives [any of the persons mentioned hereinafter] of a just and orderly trial:
(a) civilians, as long as they enjoy such capacity;
(b) journalists who perform professional missions;
(c) personnel of the medical and religious service of the enemy, unless they turn into combatants;
(d) personnel of enemy civil defense, unless they turn into combatants;
(e) a prisoner of war, as long as he/she enjoys such capacity;
(f) international monitors;
(g) officials belonging to international agencies and organizations, protected by international treaties and agreements ratified by the Sudan. 
Sudan, Armed Forces Act, 2007, Article 152.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Article 3
1. The criminal justice authorities shall respect the dignity of the persons affected by the proceedings at all stages of the proceedings.
2. They shall in particular comply with:
c. the requirement to treat all persons involved in the proceedings equally and fairly and to grant them the right to be heard. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 3(1) and (2)(c).
Tajikistan
Tajikistan’s Criminal Code (1998) provides for the punishment of “wilfully depriving a prisoner of war or any other protected person of the rights of a fair and regular trial”. 
Tajikistan, Criminal Code, 1998, Article 403(2)(e).
Thailand
Thailand’s Prisoners of War Act (1955) punishes whoever deprives a prisoner of war of “an impartial trial or a trial according to the rules set up in the Convention” in both international and non-international armed conflicts. 
Thailand, Prisoners of War Act, 1955, Sections 16 and 18.
Uganda
Uganda’s Geneva Conventions Act (1964) punishes “any person, whatever his nationality, who, whether within or without Uganda commits or aids, abets or procures the commission by any other person of any grave breach of the [1949 Geneva] Conventions”. 
Uganda, Geneva Conventions Act, 1964, Section 1(1).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions or of [the 1977 Additional Protocol I]”. 
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(a)(vi) and (c)(iv) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
Under the US War Crimes Act (1996), as amended in 2006, violations of common Article 3 and grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, as amended in 2006, Section 2441(c).
United States of America
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
United States of America
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 4. Immediate Review of All Guantánamo Detentions.
(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. 
United States, Executive Order 13492, Closure of Guantánamo Detention Facilities, 2009, Sections 4(a) and 7.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
6. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; or subjecting him or her to punishments ... without previous judgment by a regularly constituted court affording all the judicial guarantees which are generally recognized as indispensable. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.6.
Vanuatu
Vanuatu’s Geneva Conventions Act (1982) provides:
Any grave breach of the Geneva Conventions that would, if committed in Vanuatu, be an offence under any provision of the Penal Code Act Cap. 135 or any other law shall be an offence under such provision of the Penal Code or any other law if committed outside Vanuatu. 
Vanuatu, Geneva Conventions Act, 1982, Section 4(1).
Venezuela
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
Article 7. In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee of the [following] rights must not be restricted:
11. The [right to] due process. 
Venezuela, Law on the State of Emergency, 2001, Article 7(11).
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right … to request the immediate presence of his or her parents, representatives or guardians”. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
Venezuela
Venezuela’s Constitution (2009) states:
The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. … In such cases, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the … right to due process. 
Venezuela, Constitution, 2009, Article 337.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.” 
Venezuela, Constitution, 2009, Article 338.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
No one may be sentenced without a trial … that is in accordance with the provisions of this Code and safeguards the rights and guarantees of due process enshrined in the Constitution of the Republic, laws, treaties, conventions and international agreements to which the Republic is a party. 
Venezuela, Penal Procedure Code, 2009, Article 1.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
No one may be sentenced without a trial … that is in accordance with the provisions of this code and safeguards the rights and guarantees of due process enshrined in the Constitution of the Republic, laws, treaties, conventions and international agreements to which the Republic is a party. 
Venezuela, Penal Procedure Code, 2012, Article 1.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, states that “depriving civilians and prisoners of war of their right to a regular and fair trial” is a war crime. 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Articles 142(1) and 144.
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of [any of the 1949 Geneva] Conventions or [the 1977 Additional Protocol I]”. 
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 3(1).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 86(2)(b) and (3)(e) and 87(1) and (4).
Australia
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.
Bosnia and Herzegovina
In 2006, in the Samardžić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that “the principle of equality of arms [is] one of the requirements for a fair trial”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžić case, Judgment, 13 December 2006, p. 7.
Canada
In 2010, in the Khadr case, the Supreme Court of Canada was called upon to decide whether the Canadian Government must request the United States of America to return a Canadian national detained at Guantanamo Bay to Canada. The Supreme Court stated:
[2] For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.
II. Background
[3] Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay. He was placed in adult detention facilities.
[4] On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with war crimes and held for trial before a military commission. In light of a number of procedural delays and setbacks, that trial is still pending.
[5] In February and September 2003, agents from the Canadian Security Intelligence Service (“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr. Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505, at para. 46. In 2008, this Court ordered the Canadian government to disclose to Mr. Khadr the transcripts of the interviews he had given to CSIS and DFAIT in Guantanamo Bay, under s. 7 of the Charter: Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 (“Khadr 2008”).
[6] Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada …
[7] The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008 …
[8] On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the government’s “ongoing decision and policy” not to seek his repatriation … He alleged that the decision and policy infringed his rights under s. 7 of the Charter, which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
3. Does the Deprivation Accord With the Principles of Fundamental Justice?
[22] We have concluded that the conduct of the Canadian government is sufficiently connected to the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice.
[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23–25; Hamdan v. Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews … Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11–12). The purpose of the interviews was for intelligence gathering and not criminal investigation. While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).
[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[48] … This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003–2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. 
Canada, Supreme Court, Khadr case, Judgment, 29 January 2010, §§ 2–8, 22, 24–25 and 48.
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Chile
In its judgment in the Videla case in 1994, which concerned the abduction, torture and murder of Lumi Videla in 1974, Chile’s Appeal Court of Santiago held that the 1949 Geneva Conventions “protect the human rights of the contestants in the event of external war or a conflict between organized armed forces within the State, which latter situation effectively prevailed in the country in 1974”. The Court stated that common Article 3 of the 1949 Geneva Conventions obliged parties to non-international armed conflicts “to extend humanitarian treatment to persons taking no active part in the hostilities or who have placed themselves hors de combat for various reasons, and prohibits at any time and in any place … the passing of summary sentences”. The Court found that the acts charged constituted grave breaches under Article 147 of the 1949 Geneva Convention IV and upheld the prison order issued against the accused. 
Chile, Appeal Court of Santiago (Third Criminal Chamber), Videla case, Judgment, 26 September 1994, §§ 6–20.
Chile
In its judgment in the Pedro Poblete Córdova case in 1998, Chile’s Supreme Court stated that “at all times, the accused persons shall be entitled to fair trial guarantees and a free defence, which shall be no less than what is provided by Article 105 et seq. of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949”. 
Chile, Supreme Court, Pedro Poblete Córdova case, Judgment, 9 September 1998, § 9.
Chile
In its judgment in the Contreras Sepúlveda case in 2004, Chile’s Supreme Court stated that “at all times, the accused persons shall be entitled to fair trial guarantees and a free defence, which shall be no less than what is provided by Article 105 et seq. of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949”. 
Chile, Supreme Court, Second Chamber, Contreras Sepúlveda case, Judgment, 17 November 2004, § 34.
Chile
In its judgment in the Víctor Raúl Pinto case in 2007, Chile’s Supreme Court stated: that “at all times, the accused persons shall be entitled to fair trial guarantees and a free defence, which shall be no less than what is provided by Article 105 et seq. of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949”. 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Decision on Annulment, 13 March 2007, § 16.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to the presence of a parent or guardian … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.1.12.
The Court further held:
Rule 14 [of the “Beijing Rules”] sets forth in general terms the obligation to respect the right to due process and the principle of best interests of the child in any criminal prosecution of minors by stating:
Any minor who is prosecuted for violating criminal law must be granted all basic procedural guarantees that are afforded to any person in light of the right to due process. The fact that he or she is a minor does not justify limiting such rights but rather is the reason for placing stricter requirement on the authorities so that they ensure the effective exercise of such rights. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.
India
In 2008, in the Noor Aga case, India’s Supreme Court allowed an appeal against the decision of the Additional Sessions Judge, who convicted an Afghan national of illegal import of narcotic drugs and psychotropic substances to India. While addressing the appellant’s right to fair trial, the Court stated:
Application of international law in a case involving war crime[s] was considered by the Constitutional Court of South Africa in State v. Basson … [Basson case, 2004] opining:
When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the contrary, both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom. 
India, Supreme Court, Noor Aga case, Judgment, 9 July 2008, p. 8.
New Zealand
In its judgment in the X v Refugee Status Appeals Authority in 2006, New Zealand’s High Court in Auckland stated:
[42] I am satisfied that the right to a fair ultimate trial is absolute and that New Zealand law will not permit conduct in this country which will imperil such right, whether the trial is to take place here or elsewhere. There are a number of pointers, all to the same conclusion.
International law
[43] On 11 December 1946 the General Assembly of the United Nations, having affirmed the principles of international law recognised by the “Charter of the Nurnberg Tribunal”, directed the formulation of such principles. In 1950 the International Law Commission of the United Nations did so. The principles formulated included:
Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and the law.
[44] In R v Bow Street Magistrate, ex parte Pinochet (No 3) [2000] 1 AC 147, 197 Lord Browne-Wilkinson cited the Nuremberg principles of international law. He observed that while the concept of personal liability under international law for international crimes is of comparatively recent growth, at least from the date of the General Assembly’s affirmation, the concept of personal liability for a crime under international law must have been part of international law.
[45] The same must apply to the principles formulated as to the rights of an accused. The Lords’ approach in Pinochet is consistent, for present purposes, with the recent recognition of the Geneva Conventions as part of the domestic law of the United States of America in Hamdan v Rumsfeld 126 S Ct 2749 (2006) (case 05-184). The discussion of Pinochet in Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (the Kingdom of Saudi Arabia) [2006] 2 WLR 1424 (HL) leaves the present point unaffected.
[46] Article 11(1) of the Universal Declaration of Human Rights requires that:
Everyone charged with a penal offence has the right to … a public trial at which he has had all the guarantees necessary for his defence
and art 14 of the International Covenant on Civil and Political Rights requires that:
… everyone shall be entitled to a fair and public hearing …
and is entitled:
… not to be compelled to testify against himself …
As expressions of the right to a fair trial these must be regarded not merely as undertakings by the states which, like New Zealand, have acceded to the treaties but as rules of international law.
[47] It is true that international law does not, as such, become part of New Zealand domestic law. But as Scarman LJ observed in Thai-Europe Tapioca Service Ltd v Government of Pakistan [1975] 1 WLR 1485, 1495 (CA):
… a rule of international law, once incorporated into our law by decisions of a competent Court, is not an inference of fact but a rule of law. It therefore becomes part of our municipal law …
Given the status of the Nuremberg principles and the decisions in Pinochet and Hamdan, I accept Mr Illingworth’s submission that the right to a fair trial must be accepted via international law as a rule of New Zealand law.
[48] The importance of that conclusion is that it relieves X from having to rely on either rules of the common law or the New Zealand Bill of Rights Act to establish his right in New Zealand to ensure that nothing occurring in this state will impede a fair trial of any genocide charges, if pursued. But I am satisfied that both the common law and the Bill of Rights require the same conclusion. 
New Zealand, High Court Auckland, X v Refugee Status Appeals Authority, Judgment, 14 July 2006, §§ 42–48.
Pakistan
In its judgment in the Mirani case in 1998, the Supreme Court of Pakistan stated:
12. … It may be observed that by now it is a well settled proposition that a person cannot be condemned without providing him a fair opportunity to meet the allegation. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v Azizullah Memmon and 16 others (PLD 1993 SC 341), wherein after referring certain case law the following conclusion was recorded by this Court as to the right of access to Courts and justice:–
“12 Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faridi v Islamic Republic of Pakistan … as follows:–
The right of “access to justice to all” is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of “due process of law”. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term “due process of law” has been summarised as follows:
(1) He shall have due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction.”
13. The above extract indicates what are the basic requirements of the doctrine “due process of law”, which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice, which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him. 
Pakistan, Supreme Court, Mirani case, Judgment, 26 June 1998, §§ 12–13.
South Africa
In 2004, in the Basson case before the Constitutional Court of South Africa, Justice Sachs stated in his concurring opinion:
In conclusion, it should be emphasised that none of the above should be taken as suggesting that because war crimes might be involved, the rights to a fair trial of the respondent as constitutionally protected are in any way attenuated. When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the contrary, both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom. 
South Africa, Constitutional Court, Basson case¸ Judgment, 10 March 2004, § 126.
Spain
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
… Article 17 of the [1998] … ICC Statute … offers certain criteria on the admissibility and inadmissibility to hear situations referred to it when certain circumstances are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by International Law, whether … [the proceedings] were or are being conducted in a manner which, in the circumstances, is inconsistent with the intention to bring the concerned person to justice. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 4–5.
In determining whether there had been a judicial process with the necessary guarantees, the court held:
[Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence …
It cannot be claimed that an effective criminal investigation did not take place in the State of Israel based on the documentation provided by the Israeli authorities. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Quinto, p. 10.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations … [that] constitute a set of guarantees that must inform the proceedings of the judicial bodies in a State respecting the rule of law …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section II, Primero, (B)–(C), p. 2.
Uganda
In the Kotido Field Court Martial case in 2008, Uganda’s Constitutional Court unanimously ruled that accused persons in Field Court Martials were entitled, as of right, to appeal through the Military Courts system up to the Supreme Court. In the lead judgment, Twinomujuni J stated:
On the afternoon of the 25th March 2002, at exactly 12.50 pm they [the two accused soldiers] were indicted before a Field Court Martial presided over by Col. Sula Semakula and eight other soldiers. They were tried, convicted and three hours after their indictment, they were sentenced to death and executed by a firing squad. The issue is whether this was the FAIR AND SPEEDY HEARING envisaged in article 28(1) of the Constitution. In order to understand the meaning of this mandatory requirement, we have to look at relevant provisions in the whole Constitution, but also the entire provisions of articles 22 [Protection of right to life], 28 [Right to a fair hearing] and 44(c) [Right to fair hearing] of the Constitution. Can what is required to be done under those articles be accomplished in a matter of just three hours? Surely when considering the requirement of a speedy trial, speed must be measured against the requirement that the trial must be fair in all other aspects spelt out by the Constitution.
Speed must be “reasonable” speed measured against the overall objective of achieving a fair trial. In my opinion, this trial was not conducted in accordance with article 28(1) of the Constitution. The process was a clear contravention of that article. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, pp. 22–23.
[emphasis in original]
Twinomujuni J further stated:
I have discussed in this judgment at length whether the accused were accorded protections provided for under articles 28(1), 28(3) and 44 (c) of the Constitution. I came to the conclusion that the accused were denied those protections and that they were not accorded a fair hearing at all. It follows, therefore, that the answer as to whether they had a fair trial is in the negative. They did not receive a fair trial as required by articles 28, 22 and 44(c) of the Constitution. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, p. 29.
United States of America
In the Sawada case before the US Military Commission at Shanghai in 1946, the accused was charged with “knowingly, unlawfully and wilfully” denying the status of prisoner of war to eight members of the US forces who were “tried and sentenced by a Japanese Military Tribunal in violation of the laws of war”. The Military Commission considered that “false and fraudulent charges” and “false and fraudulent evidence” contributed to the criminal character of the trial. 
United States, Military Commission at Shanghai, Sawada case, Judgment, 15 April 1946.
United States of America
In the Isayama case in 1946, the US Military Commission at Shanghai tried Lieutenant-General Harukei Isayama and other members of the Japanese Military Tribunal on charges that members of the Japanese Military Tribunal did “permit, authorize and direct an illegal, unfair, unwarranted and false trial [of prisoners of war] … upon false and fraudulent evidence and without affording said prisoners of war a fair hearing”. The Commission found that the accused had falsified the records of interrogation of 14 US airmen, that the US airmen were not afforded the opportunity to obtain evidence or to call witnesses on their own behalf, that they were not permitted to be represented by legal counsel and that they were executed in violation of international law. The Commission found Lieutenant-General Isayama and the seven other accused guilty of all counts alleged. 
United States, Military Commission at Shanghai, Isayama case, Judgment, 25 July 1946.
United States of America
In its judgment in the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg held:
The trials of the accused … did not approach a semblance of fair trial or justice. The accused … were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses on their own behalf. They were tried secretly and denied the right of counsel of their own choice, and occasionally denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from the beginning to end were secret and no public record was allowed to be made of them.
The Tribunal concluded that the trial was “unfair”. 
United States, Military Tribunal at Nuremberg, Altstötter case (The Justice Trial), Judgment, 4 December 1947.
United States of America
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
United States of America
In 2008, in the Khadr case, a Guantánamo Military Commission considered a defence request that all charges and specifications be dismissed on the basis that the Military Commissions Act (2006) is a “Bill of Attainder”; described as “a legislative act which inflicts punishment without a judicial trial”. The Commission denied the defence motion, stating:
5. The defense characterization of the effect of the MCA [Military Commissions Act (2006)] on Mr. Khadr as “legislative punishment” is not supported by case law; nor by any logical interpretation of the historical reasons for the Bill of Attainder Clause.
a. The cases cited by the defense for the propositions which it asserts do not support characterization of a trial by military commission as punishment.
b. Insofar as the defense claims are based upon those portions of the MCA which regulate the access to civilian courts for purposes of habeas corpus, those portions are independent of those sections establishing the jurisdiction of and procedures for military commissions.
c. Insofar as the defense claims are based on procedures established by the MCA which differ from procedures in federal courts and military courts-martial, such variations. are not grounds for determining that punishment has been legislated before a trial. The commission notes that the Uniform Code of Military Justice has not been held to be a Bill of Attainder, even though certain provisions of military practice appear to be at variance with Constitutional requirements – compare place of trial under the Uniform Code with the 6th Amendment’s venue rule and Clause 2 of Section III.
6. Nothing in the MCA directs that any person or any subset of persons be punished without a trial. Nothing in the trial procedures established by the MCA can be properly viewed as “punishment,” as that term is used in the cases cited by the defense. 
United States, Guantánamo Military Commission, Khadr case, Ruling, 20 February 2008, §§ 5–6.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
[A]rticle 271 of the Constitution provides:
The proceeding for the offences of [international organized crimes, acts against the public heritage of other States and against human rights] … will be oral, [and with guarantees of] … due process. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 13.
[emphasis in original]
Afghanistan
In 2012, the Office of the President of Afghanistan issued a press release entitled “Afghan Human Rights Commission and ICRC can have regular access to Bagram prison inmates”, which stated:
[T]he chief of the [Afghan] military police, responsible for the handover[,] briefed the President on the proceedings of the handover from the American forces to the Afghans that took place on Monday as per the government’s decision.
The President has tasked all the justice and judicial authorities to speed up the processing of the prisoners cases and to provide the grounds for a fair trial, so that the innocent and the guilty be distinguished. 
Afghanistan, Office of the President, “Afghan Human Rights Commission and ICRC can have regular access to Bagram prison inmates”, Press Release, 11 September 2012.
Australia
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.
Australia
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.
Australia
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.
Australia
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.
Australia
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.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
Under the provisions of article 22 of the Code of Criminal Procedure, the authorities conducting criminal proceedings must uphold the right of everyone to a fair and open trial on the charges brought by the prosecution or in connection with the procedural enforcement measures applied against them. There may be no derogation on any grounds from the right to stand trial. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, § 356.
Belgium
At the CDDH, Belgium stated that the guarantees contained in Article 6 of the 1977 Additional Protocol II were based on customary international law and human rights law. 
Belgium, Statement at the CDDH, Official Records, Vol. VIII, CDDH/I/SR.33, 19 March 1975, p. 323, § 41.
Canada
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated:
84. In order to ensure that those accused through the military justice system with a service offence are afforded guarantees provided to other members of Canadian society, amendments were brought to the National Defence Act. Consequently, the prosecutorial and defence services of the Canadian Forces have undergone extensive changes. Separate offices have been established under the Director of Military Prosecutions and the Director of Defence Counsel Services. The Director of Military Prosecutions is responsible for all court martial prosecutions and decides which type of court martial should be held and whether there should be one. The Director of Defence Counsel Services is responsible for the provision of legal services to accused persons subject to the Code of Service Discipline. The Director of Defence Counsel Services is appointed by the Minister for National Defence for renewable terms of up to four years and so would enjoy a certain autonomy from the Judge Advocate General as well as from prosecuting counsel.
85. An independent commission has also been established to make recommendations concerning the remuneration of military judges, in order to ensure the financial independence aspect of judicial independence. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, §§ 84–85.
Djibouti
In 2010, in its initial report to the Committee against Torture, Djibouti stated:
82. Article 40 of the 1992 Constitution provides that
when the institutions of the Republic, the independence of the nation, the integrity of its territory or the fulfilment of its international commitments are threatened and the regular functioning of the governmental authorities is interrupted, the President of the Republic may, after consulting the President of the National Assembly and the President of the Constitutional Council and after informing the nation in a message, take any measure, except for a constitutional amendment, designed to restore the regular functioning of the governmental authorities and ensure the safeguarding of the nation.
Within 15 days of their promulgation, the National Assembly, convening as of right, is seized of the legislative measures put into effect by the President, with a view to their ratification.
83. These exceptional measures cannot justify violations of … the judicial safeguards accorded to individuals. In theory, their application must be in keeping with administrative legality and human rights. 
Djibouti, Initial report to the Committee against Torture, 18 January 2011, UN Doc. CAT/C/DJI/1, submitted 21 July 2010, §§ 82–83.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Treatment”, stated: “Everyone has a right to a fair trial.ˮ 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.
Finland
In 2003, in its fifth periodic report to the Human Rights Committee, Finland stated:
203. Section 21 of the Finnish Constitution provides for the right of everyone to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.
206. Section 21 further requires that the guarantees of a fair trial and good governance be laid down by law. The provision sets forth, inter alia, the most important elements of a fair trial, including the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal. This list is nevertheless not exhaustive. Such guarantees as the right to an oral hearing, the right to legal counselling and the right to choose one’s legal counsel are not explicitly mentioned in the provision. However, these elements of protection under the law are as such part of the other guarantees of a fair trial within the meaning of the Constitution. 
Finland, Fifth periodic report to the Human Rights Committee, 24 July 2003, UN Doc. CCPR/C/FIN/2003/5, submitted 17 June 2003, §§ 203 and 206.
Finland
In 2004, in a report to Parliament on Finland’s human rights policy, Finland stated:
Persons guilty of war crimes must be prosecuted before an independent and impartial tribunal or court established by law. The basic principles of international law protecting individuals are applicable to any armed conflict irrespective of whether there are specific treaty provisions on a particular type of conflict and independently of the adherence of the parties to the conflict to them. 
Finland, Government report to Parliament on the human rights policy of Finland 2004, Publications of Ministry of Foreign Affairs, Helsinki, 2004, p. 99.
France
The instructions given to the French armed forces for the conduct of Opération Mistral, simulating a military operation under the right of self-defence or a mandate of the UN Security Council, state: “Every person has the right to a fair trial by a regularly constituted tribunal respecting the fundamental judicial guarantees.” 
France, Etat-major de la Force d’Action Rapide, Ordres pour l’Opération Mistral, 1995, Section 6, § 64.
Georgia
In 2014, in its fourth periodic report to the Committee on the Rights of the Child, Georgia stated:
Due to Russia’s occupation of Tskhinvali Region/South Ossetia and Abkhazia[,] Georgia has been prevented from the opportunity to ensure protection of human rights, including children’s rights in th[ose] parts of the country. Serious facts of discriminations and human rights violations have been reported by numerous … reputable international organizations, committed predominantly against population of Georgian origin. People of Georgian ethnicity, including children, have been deprived of fundamental rights, such as … [the] right to [a] fair trial[.] 
Georgia, Fourth periodic report to the Committee on the Rights of the Child, 28 June 2016, UN Doc. CRC/C/GEO/4, submitted 11 December 2014, § 47.
Germany
In 2005, in a reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, wrote:
How does the Federal Government assess the legal view of the United States that so-called unlawful combatants are not entitled to the rights according to the Additional Protocols to the Geneva Convention?
As is known, the status of the detainees of the United States in Guantanamo and at other places is contentious. The Federal Government is still of the view that, independent of a subsequent status definition, these detainees are to be treated like prisoners of war, i.e. in compliance with international humanitarian law. This comprises: humane treatment, respect for their persons and their honour, protection against acts of violence and intimidation, the right to medical treatment and, as regards trials, guarantees in line with the rules of law. The Federal Government also adheres to its view that the status of the detainees, contentious under international law, requires clarification and an expeditious solution. 
Germany, Bundestag, Stenographic Report, 7th Sitting, Berlin, Wednesday, 14 December 2005, Written reply by Minister of State, Federal Foreign Office, Plenarprotokoll 16/7, 14 December 2005, Anlage 21, p. 407.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997, Chapter 5.
Nepal
In 2007, in its comments to the conclusions and recommendations of the Committee against Torture, Nepal wrote:
Recommendation, paragraph 16 [in which the Committee against Torture, having noted the difficult situation of armed conflict faced by Nepal, expressed concern about the non-compliance with court orders by members of security forces, reportedly including re-arrests, including on the premises of the Supreme Court]
Independence of judiciary
5. The State has adhered to the principle of judicial supremacy and all security agencies have been issued appropriate instructions to abide by the judicial orders of the courts. They have also been instructed not to arrest the individuals who have been released by the order of the court. The[re] have [been] no instances of such arrest[s] by the security personnel after April 2006. …
36. The historic Comprehensive [Peace] Agreement [CPA] signed between the Government of Nepal Communist Party (Maoist) on 21 November 2006 has effectively ended the ten year long conflict. This has resulted in the fundamental improvement in the overall human rights situation in Nepal. 
Nepal, Comments by the Government of Nepal to the conclusions and recommendations of the Committee against Torture, 29 January 2008, UN Doc. CAT/C/NPL/CO/2/Add.1, submitted 1 June 2007, §§ 5 and 36.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated:
Pursuant to article 45 paragraph 1 of the Constitution of the Republic of Poland “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court”. This norm is supplemented with the provision under article 77 paragraph 2 of the Constitution, stipulating that laws shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of rights. 
Poland, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/POL/2004/5, 26 January 2004, § 264.
Senegal
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
120. As mentioned above, the only known case concerning an alleged perpetrator of acts of torture residing in Senegalese territory is the case of Hissène Habré, former President of the Republic of Chad. In this case, the State of Senegal has undertaken, in conformity with the mandate entrusted to it by the African Union, to conduct a trial, to be heard by Senegalese judges, in compliance with the universally recognized fundamental legal principle of a just and fair trial. To make the trial possible, the State of Senegal has made important amendments to its constitutional and legal provisions, set up bodies to organize the trial, appointed an expert accounting and auditing body in order to draft the provisional budget, and included in its 2008 budget the amount of CFAF 1 billion for the purpose of beginning the investigation. Nevertheless, the organization of such a trial, which must be “flawless and exemplary”, requires the mobilization of exceptional resources. A contribution by the international community will be required. Further developments in the Habré case are detailed below.
251. … Senegal referred the case to the African Union, which, on 2 July 2006, pursuant to the recommendations of a committee of eminent African jurists appointed in January 2006, requested Senegal to try Mr. Hissène Habré on behalf of Africa.
252. The request of the African Union was set forth in its decision 127(VII) (Doc.Assembly/AU/3), which states that it:
- “Consider[ed] the Hissène Habré case as falling within the competence of the African Union
- Mandates the Republic of Senegal to prosecute and ensure that Mr. Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for [a] fair trial
269. All the necessary substantive and procedural legislative amendments have now been made to … ensure that Mr. Hissène Habré can have a just, fair and speedy trial in Senegalese courts presided over by Senegalese judges. 
Senegal, Third periodic report to the Committee against Torture, 5 October 2011, UN Doc. CAT/C/SEN/3, submitted 9 February 2011, §§ 120, 251–252 and 269.
[square brackets in original]
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … right to a fair trial. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, § 153.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated in relation to persons alleged to have committed torture:
Article 7 [of the 1984 Convention against Torture] states that the standard of evidence required for the prosecution and conviction should be non discriminative and each person should be guaranteed of fair treatment at all stages of the proceedings. In Sri Lanka the standard of evidence required for the prosecution is governed by the Evidence Ordinance No. 14 of 1895 and the procedure to be followed in prosecution is laid out in the Code of Criminal Procedure No. 15 of 1979 of Sri Lanka. This legislation applied across the board for all persons, regardless of their nationality, race, religion or gender. This right to equality and equal protection before the law is guaranteed under article 12(1) of the Constitution. Further, the right to a fair trial is also guaranteed under article 13(3) of the Constitution. 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, Annex, § 49.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states: “International humanitarian law provides fundamental guarantees to persons who do not benefit from more favourable treatment on the basis of the Geneva Conventions of 1949. This minimal protection includes for example … a number of judicial guarantees.” 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 20.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
Syrian Arab Republic
The Report on the Practice of Syrian Arab Republic asserts that Syrian Arab Republic considers Article 85 of the 1977 Additional Protocol I to be part of customary international law. 
Report on the Practice of Syrian Arab Republic, 1997, Chapter 5.6.
Uganda
In 2003, in its initial report to the Human Rights Committee, Uganda stated that there are “certain Rights that cannot be derogated from and these include … the right to fair hearing”. 
Uganda, Initial report to the Human Rights Committee, 14 February 2003, UN Doc. CCPR/C/UGA/2003/1, 25 February 2003, § 108; see also §§ 119, 137 and 385–407.
The report further stated:
473. It is important to note that … there are areas where derogation is not acceptable under whatever circumstances. They are under article 44.
474. Article 44 of the Constitution of the Republic of Uganda (1995) states that:
Notwithstanding anything in this Constitution, there shall not be derogation from the enjoyment of the following rights and freedoms:
(a) freedom from torture, cruel, inhuman or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) right to fair hearing;
(d) right to an order of habeas corpus. 
Uganda, Initial report to the Human Rights Committee, 14 February 2003, UN Doc. CCPR/C/UGA/2003/1, 25 February 2003, § 108; see also §§ 473–474.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Commons asking whether the UK Foreign Secretary had “called for the status of the prisoners held at Guantanamo Bay to be decided by a tribunal”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:
Although the Foreign Secretary has not called for a tribunal to decide the detainees’ status, he has raised the issue of the detainees with Colin Powell several times, most recently on 23 January. Officials are in frequent contact.
We have made clear that whatever their status the detainees are entitled to humane treatment and, if prosecuted, a fair trial. We have been encouraging the US to move forward with the process of determining the future of the British detainees. We shall continue to do so. 
United Kingdom, House of Commons, Written answer by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 2 April 2003, Vol. 402, Written Answers, cols. 741W–742W.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
So far, neither of the detainees has been charged. However, we have made it clear to the US that we expect the process to fulfil internationally accepted standards of a fair trial. We will follow the process carefully.
The right hon. and learned Gentleman asked under what law the men would be charged. We understand that “designation” means that the persons concerned are subject to the order that governs military commissions and can now be charged and prosecuted. However, that is not automatic and we understand that matters will proceed on a case-by-case basis.
We are still seeking information about the conduct of any trial. Indeed, we continue to express strong views about the way in which we hope that a trial will be conducted. The same applies to the right of appeal.
We understand that the Americans will nominate the defence lawyers in some way. We are seeking further information about that, too. The right hon. and learned Gentleman will forgive me if I do not go into much detail, but many aspects are a cause of concern to us and we intend to pursue them all.
The precise way in which the trials will be conducted is not yet clear, and we are taking a close interest in that issue. Many of the questions that the right hon. Gentleman asks relate to matters that we are pursuing with the United States, and I can endorse his last point about our concern that the trials be conducted within the rule of law.
One concern that we are pursuing with the Americans is that in our view, all the evidence concerning the case against these people must clearly be made available to them, so that they are in a position to rebut it.
We understand that the detainee does have the right to choose his own defence lawyer – if he meets the security requirements laid down by the Americans. However, it is clear that this matter will have to be checked out.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
As the right hon. Gentleman knows, the United States is now talking about the right method by which to try anybody against whom charges would be brought. We will make active representations to the United States – indeed, we are already doing so – to make absolutely sure that any such trial will take place in accordance with proper international law.
It is of course important that the commission that tries these people is conducted according to proper rules. Those rules have not yet been drawn up, and it is precisely for that reason that we are making active representations …
What my hon. Friend says must be right. If charges are brought, they must be proved in accordance with proper rules of evidence. As he rightly says, the charges are serious. It is worth remembering that the allegations revolve around what happened in Afghanistan some time ago, when British and American troops were putting their lives at risk there. However, I entirely agree with my hon. Friend – there must be no question about this at all. Any commission or tribunal that tries these men must be conducted in accordance with proper canons of law so that a fair trial takes place and is seen to take place. 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 9 July 2003, Vol. 408, Debates, cols. 1152–1153.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Commons, the UK Solicitor-General wrote:
The Attorney-General has been involved in discussions within Government about the position of UK nationals detained in Guantanamo Bay. He has also raised the matter with those responsible in the United States Administration, to express the Government’s profound concern that if the UK detainees are to be tried they should have a fair trial with all proper safeguards. 
United Kingdom, House of Commons, Written answer by the Solicitor-General, Hansard, 10 July 2003, Vol. 408, Written Answers, col. 959W.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
The assessment of the status of the detainees is a matter for the US, as the detaining power. We have, however, discussed the detainees’ status with the US authorities. They have told us that they do not consider any of the British detainees to be entitled to prisoner of war status. The US authorities have assured us that the detainees are being treated humanely and consistently with the principles of the Geneva Conventions.
Whatever their status, the detainees are entitled to humane treatment and if prosecuted, a fair trial. 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 14 July 2003, Vol. 651, Written Answers, cols. WA74–WA75.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, as I indicated in my original Answer, the issue of the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland is still a matter under discussion, although, as I am sure all noble Lords are aware, it is not possible for the United Kingdom of Great Britain and Northern Ireland Government to give any guarantees even about a trial taking place because of the separation of powers – rightly – between the Government in the form of Government Ministers and the Crown Prosecution Service as the body which would decide whether there is sufficient evidence to go to trial.
However, the noble Lord is quite right to remark that the issues adduced by him of due process and the right to a fair trial still arise. Further, there are widely recognised international norms covering the various elements that constitute a fair trial which my right honourable friend will be addressing with the President of the United States.
My Lords, the question raised by the noble Lord may be premature at this stage; we are still discussing what those procedures should be. If the trials as originally formulated by the United States authorities do go ahead, I think that there would be grave difficulties as regards any observers feeling that those trials would be fair on the basis that we have already discussed. There is no secret about this issue. The United Kingdom of Great Britain and Northern Ireland Government have very strong reservations about what is being proposed at the moment. However, to take the point that were some of those issues to be resolved and the trials to go ahead, I can agree with the noble Lord that the presence of international observers would provide something of a confidence boost to the international community. As my noble friend Lord Judd pointed out, this is a question not just for the United Kingdom of Great Britain and Northern Ireland but also for the international community.
However, we must recognise that some of the issues which may be brought up at those trials may have to be dealt with in camera, for very obvious security reasons.
My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held – for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
As my right honourable friend the Prime Minister said during Prime Minister’s Questions on 9 July, Official Report, Commons, col. 1152-3, “Any commission or tribunal must be conducted in accordance with the proper canons of law so that a fair trial takes place and is seen to take place”.
The UK has made this view clear to the US. On 18 July the US announced that they would not commence any military commission proceedings against UK nationals, pending discussions between American and British legal experts …
The US announced on 18 July that they would not commence any military commission proceedings against UK nationals detained at Guantanamo Bay, pending discussions between American and British legal experts. We understand from the US authorities that medical facilities, including psychiatric care, at Guantanamo Bay available to the detainees are of a high standard and are the same as those for US military personnel. We firmly believe that a fair judicial process should take account of a person’s fitness to stand trial. This is one of the specific issues we have raised with the US authorities, and continue to discuss with them. 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 8 September 2003, Vol. 651, Written Answers, col. WA17.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
Over the past few months, my noble and learned friend the Attorney-General has vigorously expressed to the United States Administration our strong reservations about the military commission’s procedures. Our objective has been to ensure that if any British nationals are detained at Guantanamo Bay and prosecuted, a fair trial takes place in accordance with generally recognised principles. Discussions continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 15 October 2003, Vol. 653, Debates, col. 936.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Solicitor-General stated:
The Attorney-General has held meetings with his counterpart, the Attorney-General of the United States, and with officials from the Department of Defence. As the Prime Minister, the Foreign Secretary and others have placed it on record, I take this opportunity to remind the House that the Attorney-General has been holding discussions with the US authorities and has been seeking undertakings that if UK citizens are put on trial in the US they will have a fair trial. We have made it clear that if the Attorney-General is not satisfied that those citizens would receive a fair trial under the United States’ procedures they will be returned to the UK. The hon. Gentleman can be satisfied that either they will have a fair trial or they will be returned to the UK. As negotiations are continuing, I am afraid that I can say nothing further about timing. 
United Kingdom, House of Commons, Statement by the Solicitor-General, Hansard, 30 October 2003, Vol. 412, Debates, col. 434.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
On Iraq, the US Secretary of State is correct: Saddam Hussein will be treated with all the rights of a prisoner of war. The trial process should be determined by the Iraqi Government and the Iraqi people. It should be left to them. Of course we must ensure that the process is proper, independent and fair, but I am sure that the Iraqis have the capability to achieve that. We and other countries will work with them to ensure that that is correct. 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 15 December 2003, Vol. 415, Debates, col. 1323.
United Kingdom of Great Britain and Northern Ireland
In 2004, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated the following on the trial of UK citizens detained by US authorities in Guantanamo Bay:
The Government’s position, reported frequently to Parliament, has been that the detainees should either be tried fairly in accordance with international standards or be returned to the UK. Last July, we expressed publicly our reservations about the US military commissions and the US Government suspended legal proceedings against two of the British detainees who had been designated for trial by the commissions. Those proceedings remain suspended. Subsequently, after a lengthy series of discussions with the US, led for the British side by the Attorney-General, we concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. Therefore, we requested that the nine British detainees be returned to the UK. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 1 July 2004, Vol. 423, Debates, cols. 528–529.
United Kingdom of Great Britain and Northern Ireland
In 2004, during a debate in the House of Commons, the UK Solicitor-General stated the following on the trial of UK citizens before a US military commission:
We have strongly stood behind the rights of those detainees either to have a fair trial or be brought home. We have made that position clear. That is why the military commissions that were proposed by the US authorities in respect of those particular UK detainees have been suspended. 
United Kingdom, House of Commons, Statement by the Solicitor-General, Hansard, 9 September 2004, Vol. 424, Debates, col. 858.
United Kingdom of Great Britain and Northern Ireland
In 2006, during a debate in the House of Commons, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The British Government’s view is that, whatever the status of the so-called global war on terror, the detainees at Guantanamo are entitled to humane treatment and, if prosecuted, to a fair trial. We have made that clear to the United States authorities … In private diplomatic discussions, at both ministerial and official levels, the UK has made its views known to the US Government and has made representations to them about the circumstances in which, and conditions under which, detainees are held at Guantanamo.
After a lengthy series of discussions with the US, which were led for the Government by the Attorney-General, in 2004 the Government concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. That eventually led to the release and return of the British detainees at Guantanamo. 
United Kingdom, House of Commons, Written answer by the Minister of State for Trade, Foreign and Commonwealth Office, Hansard, 22 May 2006, Vol. 446, Debates, col. 1307.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.
United States of America
In 1987, the deputy legal adviser of the US Department of State affirmed:
We support the principle that … no sentence be passed and penalty executed except pursuant to conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 427–428.
The deputy legal adviser added:
The basic core of [the 1977 Additional] Protocol II is, of course, reflected in common article 3 of the 1949 [Geneva] Conventions and therefore is, and should be a part of generally accepted customary law. This specifically includes its prohibitions on … punishment without due process. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 430–431.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
United States of America
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
I’m announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. … They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Applause.)
We’ll also seek to prosecute those believed to be responsible for the attack on the USS Cole, and an operative believed to be involved in the bombings of the American embassies in Kenya and Tanzania. With these prosecutions, we will send a clear message to those who kill Americans: No longer – how long it takes, we will find you and we will bring you to justice. (Applause.)
These men will be held in a high-security facility at Guantanamo. The International Committee of the Red Cross is being advised of their detention, and will have the opportunity to meet with them. Those charged with crimes will be given access to attorneys who will help them prepare their defense – and they will be presumed innocent. While at Guantanamo, they will have access to the same food, clothing, medical care, and opportunities for worship as other detainees. They will be questioned subject to the new U.S. Army Field Manual, which the Department of Defense is issuing today. And they will continue to be treated with the humanity that they denied others. 
United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.
United States of America
In May 2010, the US President issued the 2010 National Security Strategy, which stated: “Legal Aspects of Countering Terrorism. … When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective.” 
United States, Report by the President of the United States, 2010 National Security Strategy, The White House, Washington DC, 26 May 2010, p. 36.
Venezuela
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
55. With regard to the protection of rights enshrined in the Constitution of the Bolivarian Republic of Venezuela in states of emergency, articles 337 to 339 provide that guarantees contained in the Constitution may be temporarily suspended, with the exception of “those relating to the right to life, the prohibition of the holding of persons incommunicado or torture, the right to due process, the right to information and other intangible human rights”.
56. On the question of legislative action to give effect to this constitutional provision, it is important to note that, under the present Government, no state of emergency has been decreed, notwithstanding the fuel shortage during the 2002 oil strike or coup d’état.
57. The Venezuelan State legislated on the matter and in 2001 the States of Emergency Act entered into force, setting out in its article 7 the relevant guiding principles. Under that article, and in accordance with article 339 of the Constitution of the Bolivarian Republic of Venezuela, article 4, paragraph 2, of the International Covenant on Civil and Political Rights and article 27, paragraph 2, of the American Convention on Human Rights, no restrictions can be placed on guarantees relating [ inter alia to … due process …
58. Continuing with the interpretation of constitutional precepts, article 338 covers the three kinds of states of emergency and establishes, in accordance with the principle of gradualism, factual circumstances that may justify them and their limitation in time … [A] state of internal or external disturbance may be declared in the event of internal or external conflict that seriously endangers the security of the nation, its citizens or institutions, for a period of up to 90 days, renewable for the same period of time. 
Venezuela, Fourth periodic report to the Human Rights Committee, 29 April 2013, UN Doc. CCPR/C/VEN/4, submitted 18 December 2012, §§ 55–58.
[footnotes in original omitted]
UN General Assembly
In a resolution adopted in 1998 on the situation of human rights in Kosovo, the UN General Assembly: “Calls upon the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to respect all human rights and fundamental freedoms fully … especially in regard to respect for … free and fair trials.” 
UN General Assembly, Res. 53/164, 9 December 1998, § 5, voting record: 122-3-34-26.
UN General Assembly
In a resolution adopted in 2000 on the situation of human rights in the Sudan, the UN General Assembly called upon the Government of Sudan “to ensure that all accused persons are held in ordinary custody and receive prompt, just and fair trials under internationally recognized standards”. 
UN General Assembly, Res. 55/116, 4 December 2000, § 4(d) , voting record: 85-32-49-23.
UN General Assembly
In a resolution adopted in 2003 on the situation of human rights in Myanmar, the UN General Assembly urged “the Government of Myanmar, as stated in its resolution 57/231 and in Commission on Human Rights resolution 2003/12 … [t]o ensure the independence of the judiciary and due process of law”. 
UN General Assembly, Res. 58/247, 23 December 2003, § 6(a), adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the protection of human rights and fundamental freedoms while countering terrorism, the UN General Assembly:
Also urges States, while countering terrorism, to ensure due process guarantees, consistent with all relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Geneva Conventions of 1949, in their respective fields of applicability. 
UN General Assembly, Res. 61/171, 19 December 2006, § 7, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on extrajudicial, summary or arbitrary executions, the UN General Assembly:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law. 
UN General Assembly, Res. 61/173, 19 December 2006, § 3, voting record: 137-0-43-12.
UN General Assembly
In a resolution adopted in 2007 on the protection of human rights and fundamental freedoms while countering terrorism, the UN General Assembly:
Urges States, while countering terrorism, to ensure due process guarantees, consistent with all relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Geneva Conventions of 1949, in their respective fields of applicability. 
UN General Assembly, Res. 62/159, 18 December 2007, § 9, adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2007 on international cooperation for the improvement of access to legal aid in criminal justice systems, particularly in Africa, ECOSOC:
Recalling the Universal Declaration of Human Rights, which enshrines the key principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal, along with all the guarantees necessary for the defence of anyone charged with a penal offence,
Recalling also the International Covenant on Civil and Political Rights, in particular article 14, which states that everyone charged with a criminal offence shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law and to minimum guarantees, including to be tried without undue delay. 
ECOSOC, Res. 2007/24, 26 July 2007, preamble, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1996, the UN Commission on Human Rights called upon the Government of Croatia “to pursue vigorously prosecutions against those suspected of past violations of international humanitarian law and human rights, while ensuring that the rights to a fair trial … are afforded to all persons suspected of such crimes”. 
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, § 22, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN Commission on Human Rights:
Noting that the Democratic Republic of the Congo is a party to several international and regional human rights instruments and to several instruments pertaining to international humanitarian law,
5. Calls upon the Government of the Democratic Republic of the Congo to take specific measures:
(c) To put an end to impunity and ensure, as it is duty-bound to do, that those responsible for human rights violations and grave breaches of international humanitarian law are brought to justice in accordance with due process. 
UN Commission on Human Rights, Res. 2003/15, 17 April 2003, preamble and § 5(c), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of the death penalty, the UN Commission on Human Rights urged all States that still maintain the death penalty:
(b) Not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;
(c) To ensure that all legal proceedings, including those before special tribunals or jurisdictions, and particularly those related to capital offences, conform to the minimum procedural guarantees contained in article 14 of the International Covenant on Civil and Political Rights. 
UN Commission on Human Rights, Res. 2003/67, 24 April 2003, § 4(b)–(c), voting record: 23-18-10.
UN Commission on Human Rights
In a resolution adopted in 2003 on impunity, the UN Commission on Human Rights:
6. Calls upon States to continue to support the work of the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, and to consider supporting other initiatives to establish judicial mechanisms in cooperation with the United Nations, in accordance with international standards of justice, fairness and due process of law, including at the regional and national levels;
13. Encourages States in their efforts to strengthen their domestic capacity to combat impunity and requests the High Commissioner for Human Rights to provide, upon request, technical and legal assistance in developing national legislation and institutions to combat impunity in accordance with international standards of justice, fairness and due process of law. 
UN Commission on Human Rights, Res. 2003/72, 25 April 2003, §§ 6 and 13, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on assistance to Somalia in the field of human rights, the UN Commission on Human Rights expressed its deep concern “at the absence of an effective judicial system, essential to ensure the right to a fair trial in accordance with international standards”. 
UN Commission on Human Rights, Res. 2003/78, 25 April 2003, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
2. Reiterates that, as declared in article 14 of the International Covenant on Civil and Political Rights, every person is entitled, in full equality, to a fair and public hearing by a competent, independent and impartial tribunal duly established by law, in the determination of his/her rights and obligations and of any criminal charge against him/her, and that he/she is entitled to the presumption of innocence until proved guilty according to law;
7. Calls upon States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts, where required by applicable law, are an integral part of the general judicial system and that such courts apply due process procedures that are internationally recognized as guarantees of a fair trial, including the right to appeal a conviction and a sentence. 
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and §§ 2 and 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on extrajudicial, summary or arbitrary executions, the UN Commission on Human Rights:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law.  
UN Commission on Human Rights, Res. 2004/37, 19 April 2004, § 5, voting record: 39-0-12.
UN Commission on Human Rights
In a resolution adopted in 2004 on the question of the death penalty, the UN Commission on Human Rights urged all States that still maintain the death penalty:
(d) Not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;
(e) To ensure that all legal proceedings, including those before special tribunals or jurisdictions, and particularly those related to capital offences, conform to the minimum procedural guarantees contained in article 14 of the International Covenant on Civil and Political Rights. 
UN Commission on Human Rights, Res. 2004/67, 21 April 2004, § 4(d)–(e), voting record: 29-19-5.
UN Commission on Human Rights
In a resolution adopted in 2004 on impunity, the UN Commission on Human Rights:
10. Calls upon States to continue to support the work of the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, and to consider supporting other initiatives to establish judicial mechanisms in cooperation with the United Nations, in accordance with international standards of justice, fairness and due process of law, including at the regional and national levels;
11. Urges States to provide the victims of violations of human rights and international humanitarian law that constitute crimes, with a fair and equitable process through which these violations can be investigated and made public in the interest of the victims and to encourage victims to participate in such a process, including by taking measures to ensure the protection of, and support and assistance to, victims and witnesses, that are appropriate and sensitive to their needs, including contact points and child and gendersensitive procedures and attention to crimes of sexual violence, in judicial and truth and reconciliation processes;
12. Welcomes in this regard the establishment in some States of judicial proceedings and commissions of truth and reconciliation, including those with international participation, to address violations of human rights and international humanitarian law, welcomes the publication in those States of the reports of such investigations and commissions, urges all States to make their reports accessible to the public and to implement, and monitor implementation of, their recommendations, and encourages other States where such violations have occurred in the past to establish appropriate processes to address them, consistent with international standards of justice, fairness, and due process of law;
13. Calls upon all States to ensure that criminal proceedings are conducted in accordance with the right to a fair and public hearing by a competent, independent, impartial and duly constituted tribunal in accordance with applicable international law, and to ensure that penalties are appropriate and proportionate to the gravity of the crime committed. 
UN Commission on Human Rights, Res. 2004/72, 21 April 2004, preamble and §§ 10–13, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on assistance to Somalia in the field of human rights, the UN Commission on Human Rights expressed its deep concern “at the absence of an effective judicial system, essential to ensure the right to a fair trial in accordance with international standards”. 
UN Commission on Human Rights, Res. 2004/80, 21 April 2004, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judiciary should be observed at all times,
2. Reiterates that, as declared in article 14 of the International Covenant on Civil and Political Rights, every person is entitled, in full equality, to a fair and public hearing by a competent, independent and impartial tribunal duly established by law, in the determination of his/her rights and obligations and of any criminal charge against him/her, and that he/she is entitled to the presumption of innocence until proved guilty according to law;
3. Also reiterates that according to paragraph 5 of the Basic Principles on the Independence of the Judiciary, everyone has the right to be tried by ordinary courts or tribunals using established legal procedures and that tribunals that do not use such duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals;
8. Calls upon States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and §§ 2–3 and 8, voting record: 52-0-1.
UN Secretary-General
In 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated that common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II “have long been considered customary international law”. 
UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, § 14.
UN Commission on the Truth for El Salvador
In its report in 1993, the UN Commission on the Truth for El Salvador stated:
When punishing persons accused of crimes, it is necessary to observe the basic elements of due process. International humanitarian law does not in any way exempt the parties to a conflict from that obligation, and international human rights law does not exempt the party which has effective control of a territory from that obligation with respect to persons within its jurisdiction. On the contrary, those two sources of law expressly prohibit the passing of sentences … without previous judgement pronounced by a regularly constituted independent and impartial tribunal attaching all the judicial guarantees generally recognized as indispensable. 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, Annex, pp. 152–153.
Council of Europe Committee of Experts
With respect to the drafting of the 1950 European Convention on Human Rights, the Committee of Experts of the Council of Europe stated that the right to recognition before the law could be deduced from the other Articles and therefore did not need to be expressly indicated. 
Council of Europe, Committee of Experts, CE Doc. H(70)7, § 41.f.
International Conference of the Red Cross (1965)
The 20th International Conference of the Red Cross in 1965 adopted a resolution on the treatment of prisoners of war in which it called upon all authorities involved in armed conflicts “to ensure that every prisoner of war is given the treatment and full measure of protection prescribed by the Geneva Convention of 1949 on the protection of prisoners of war, including the judicial safeguards afforded to every prisoner of war charged with any offence”. 
20th International Conference of the Red Cross, Vienna, 2–9 October 1965, Res. XXIV.
International Court of Justice
In its judgment in the Nicaragua case (Merits) in 1986, the ICJ held that the rules contained in common Article 3 of the 1949 Geneva Conventions reflected what the Court in 1949 in the Corfu Channel case (Merits) had called “elementary considerations of humanity”. 
ICJ, Nicaragua case (Merits), Judgment, 27 June 1986, § 218.
International Criminal Tribunal for Rwanda
In its judgment in the Kayishema and Ruzindana case in 2001, the ICTR Appeals Chamber stated:
51. … [T]he principle of the right to a fair trial is part of customary international law. It is embodied in several international instruments, including Article 3 common to the Geneva Conventions which, among other things, prohibits:
“the passing of sentences (…) without previous Judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
The Appeals Chamber notes that the [1994 ICTR] Statute sets forth provisions guaranteeing the rights of the accused. According to Article 19(1) of the Statute, the Trial Chamber shall ensure that the trial is fair and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused. Article 20 and various provisions of the Rules set forth the rights of the accused by echoing the guarantees contained in international and regional instruments.
55. As a rule, a fair trial requires that a set of procedural rules be established to ensure equality between the parties to the case and guarantee the independence of the Tribunal and the impartiality of the judges …
67. The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and the Defence. The Appeals Chamber finds that the Trial Chamber rightly held that:
The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, “… the accused shall be entitled to a fair and public hearing…” Article 20(4) also provides, “…the accused shall be entitled to the following minimum guarantees, in full equality…,” then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence.
69. The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources. In deciding on the scope of the principle of equality of arms, ICTY Appeals Chamber in Tadić held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”.
70. The Appeals Chamber endorses the Trial Chamber’s ruling. This is to ensure that the guarantees set forth in Article 20(2) and (4) of the [1994 ICTR] Statute are respected. 
ICTR, Kayishema and Ruzindana case, Judgment on Appeal, 1 June 2001, §§ 51, 55, 67 and 69–70.
International Criminal Tribunal for the former Yugoslavia
In its decision on the defence motion for interlocutory appeal on jurisdiction in the Tadić case in 1995, the ICTY Appeals Chamber held that Article 3 of the 1993 ICTY Statute also covered violations of common Article 3 of the 1949 Geneva Conventions. 
ICTY, Tadić case, Interlocutory Appeal, 2 October 1995, p. 51, § 89 and p. 73, §§ 134 and 136.
International Criminal Tribunal for the former Yugoslavia
In its Reasons for Decision on Assignment of Defence Counsel in the Slobodan Milošević case in 2004, the ICTY Trial Chamber stated:
It is a universally recognised fundamental principle that no person accused of a crime should be convicted without trial. It is equally fundamental that the trial should be fair. This is as true of the common law adversarial system as it is of the civil law inquisitorial system. The principle that any accused is entitled to a fair trial is also reflected in all the major human rights treaties, including the one which, by reason of its global, non-regional coverage and the vast number (152) of ratifying States, ought to have the greatest influence on the work of the Tribunal – the International Covenant on Civil and Political Rights (“ICCPR”). Within the ambit of fairness fall a number of rights, all intended to achieve for the accused a fair trial. For the work of this Tribunal, they are enshrined in Article 21(4) of [1993 ICTY] Statute. The Trial Chamber reads Article 21(4) of the Statute as setting out a bundle of rights, which are embraced within the principle that the accused must have a fair trial, which is itself set out in Article 21(2) of the Statute. The concept of fairness not only includes these specific rights but also has a much wider ambit, requiring that in all aspects the conduct of the trial must be fair to the accused. Hence, the specific rights are described as “minimum guarantees”. Fairness is thus the overarching requirement of criminal proceedings. 
ICTY, Slobodan Milošević case, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, § 29.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Simić case in 2003, the ICTY Trial Chamber stated:
These rights [to a fair trial] are encompassed in Common Article 3 of the Geneva Conventions of 1949, paragraph (d) … Such rights include the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power and to trial within a reasonable time or to release; the right for a court to decide without delay on the lawfulness of detention; the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law; to be presumed innocent until proved guilty according to law; to be informed promptly of the nature and cause of the accusation against him or her; to have adequate time and facilities for the preparation of his or her defence; to have legal assistance; to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her, amongst others. 
ICTY, Simić case, Judgment, 17 October 2003, § 678.
International Criminal Tribunal for the former Yugoslavia
In the Strugar case, the accused, a commander in the Yugoslav People’s Army (JNA), was convicted of, inter alia, the crime of attacks on civilians as a violation of the laws or customs of war (Article 3 of the 1993 ICTY Statute), for his role in conducting a military campaign against the Dubrovnik region of Croatia. In its judgment in the case in 2008, the ICTY Appeals Chamber set out the legal standard to establish an accused’s fitness to stand trial, stating:
41. The Trial Chamber noted that, while there were no statutory provisions regulating the matter of fitness to stand trial, a certain number of capacities required for the effective exercise of procedural rights are implicit in Articles 20 and 21 of the [1993 ICTY] Statute. The Trial Chamber found that the exercise of such rights would “presuppose that an accused has a level of mental and physical capacity” Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 21] and that such exercise “may be hindered, or even precluded, if an accused’s mental or bodily capacities, especially the ability to understand, i.e. to comprehend, is [sic affected by mental or somatic disorder”. Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 23] On the basis of this analysis as well as consideration of some examples from other international and national jurisdictions and instruments, the Trial Chamber concluded that “fitness or competence to stand trial is a matter which, although undoubtedly connected with the physical and mental condition of an accused person, is not confined to establishing whether a given disorder is present […] but rather is better approached by determining whether he is able to exercise effectively his rights in the proceedings against him”. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 35] Therefore, the Trial Chamber set out a non-exhaustive list of the capacities to be evaluated when assessing an accused’s fitness to stand trial:
- to plead,
- to understand the nature of the charges,
- to understand the course of the proceedings,
- to understand the details of the evidence,
- to instruct counsel,
- to understand the consequences of the proceedings, and
- to testify. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 36]
42. With respect to the scope of such capacities, the Trial Chamber noted that “what is required is a minimum standard of overall capacity below which an accused cannot be tried without unfairness or injustice”. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 37] More specifically, the Trial Chamber held that
In the context of the [1993] Statute of the Tribunal, it may be said that the threshold is met when an accused has those capacities, viewed overall and in a reasonable and commonsense manner, at such a level that it is possible for the accused to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights, i.e. to make his or her defence. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 37]
The Trial Chamber also emphasized that
the issue of fitness to stand trial is not determined merely by the diagnosis of the mental and somatic disorder from which the Accused suffers, or by identifying which of those conditions can affect the functioning of the Accused’s mind. These are but possible steps along the path to the material issue; which is the competence of the Accused, notwithstanding any physical or mental disorders from which he might suffer, to conduct his defence in the sense set out earlier in these reasons. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 46]
43. The Trial Chamber further concluded that an accused should bear the burden of proof that he or she is unfit to stand trial and that the standard of such proof should be “merely ‘the balance of probabilities’”. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 38]
55. In light of the discussion above, the Appeals Chamber is satisfied that, in assessing Strugar’s fitness to stand trial, the Trial Chamber correctly identified the non-exhaustive list of rights which are essential for determination of an accused’s fitness to stand trial. The Appeals Chamber is further satisfied that, on this basis, the Trial Chamber applied the correct legal standard. This is not changed by the Trial Chamber’s reference to a “minimum standard of overall capacity” which the Appeals Chamber finds is not the best way of enumerating the correct standard. As noted above, the applicable standard is that of meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings. In this regard, the Trial Chamber applied the standard correctly, as evidenced by its conclusion that an accused’s fitness to stand trial should turn on whether his capacities, “viewed overall and in a reasonable and commonsense manner, at such a level that it is possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”. [Strugar case, Decision re the Defence Motion to Terminate Proceedings, § 37]
56. Finally, the Appeals Chamber notes its agreement with the Trial Chamber’s finding that an accused claiming to be unfit to stand trial bears the burden of so proving by a preponderance of the evidence. In this regard, the Appeals Chamber notes that this approach is consistent with the one used in common law jurisdictions where the burden of proof generally lies on the party which alleges the accused’s unfitness to stand trial and is considered to be discharged if this party can show its claim on the balance of probabilities. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, §§ 41–43 and 55–56.
[emphasis in original; footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In the Martić case, the accused, who had held various leadership positions in the so-called “Serbian Autonomous District (SAO) Krajina” and the “Republic of Serbian Krajina (RSK)”, was convicted of, inter alia, murder and torture as violations of the laws and customs of war and as crimes against humanity. In its judgment in the case in 2008, the ICTY Appeals Chamber clarified the principle that like cases should be treated alike, specifically in relation to sentencing. The Appeals Chamber stated:
[T]he Appeals Chamber recalls that sentences of like individuals in like cases should be comparable. While similar cases do not provide a binding assessment of the appropriate sentence, they can be of assistance if they involve the commission of the same offences in substantially similar circumstances. However, the relevance of previous sentences is often limited to a number of elements relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances. These elements dictate different results in different cases, such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another. Thus, on appeal, a disparity between an impugned sentence and another sentence rendered in a like case can constitute an error only if the former is out of reasonable proportion with the latter. Such a disparity is not in itself erroneous, but rather may give rise to an inference that the Trial Chamber failed to exercise its discretion properly in applying the law on sentencing. 
ICTY, Martić case, Judgment on Appeal, 8 October 2008, § 330.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In the Haradinaj case, two of the three accused, who had allegedly been co-perpetrators in a joint criminal enterprise to consolidate the Kosovo Liberation Army’s control over the Dukagjin Operational Zone, were found not guilty by the Trial Chamber on all counts of the indictment. The third accused was found guilty of cruel treatment and torture as a violation of the laws or customs of war under Article 3 of the 1993 ICTY Statute. In its judgment in 2008, the ICTY Appeals Chamber considered the measures which a Trial Chamber must take to ensure that a fair trial is carried out, specifically in the context of witness intimidation. The Appeals Chamber stated:
34. The central factual context of the Prosecution’s appeal is the unprecedented atmosphere of widespread and serious witness intimidation that surrounded the trial. The Trial Chamber acknowledged this in the Trial Judgement, observing that:
[…] throughout the trial, the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult. The parties themselves agreed that an unstable security situation existed in Kosovo/Kosova that was particularly unfavourable to witnesses. [ Haradinaj case, Judgement, § 6]
35. In circumstances of witness intimidation such as this, it is incumbent upon a Trial Chamber to do its utmost to ensure that a fair trial is possible. Witness intimidation of the type described by the Trial Chamber undermines the fundamental objective of the Tribunal, enshrined in Article 20(1) of the [1993 ICTY] Statute: to ensure that trials are fair, expeditious, and conducted with due regard for the protection of victims and witnesses. Countering witness intimidation is a primary and necessary function of a Trial Chamber. While a Trial Chamber is always required to “provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”, [Tadić case, Judgement on Appeal, § 52] this obligation is especially pressing when outside forces seek to undermine the ability of a party to present its evidence at trial. For the Tribunal to function effectively, Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.
36. A Trial Chamber possesses broad powers with which to assure the fairness of a trial. Under Rule 54 of the Rules, a Trial Chamber has the power to issue such orders, subpoenas, warrants, and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial, which includes the power to: adopt witness protection measures; take evidence by video-conference link or by way of deposition; and summon witnesses and order their attendance. In addition, if such measures fail, upon the request of a party or proprio motu, a Trial Chamber can order that proceedings be adjourned or stayed. 
ICTY, Haradinaj case, Judgment on Appeal, 19 July 2010, §§ 34–36.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, considering whether certain forms of evidence could fairly be admitted before the court, stated:
2.4. Hearsay Evidence
495. The Chamber followed the operative principle in the sphere of international criminal adjudication that hearsay evidence is admissible. The Chamber is aware that hearsay evidence has inherent deficiencies. It cannot be tested by cross-examination, its reliability may be affected by compounded errors of perception and memory, its source and content can neither be confirmed nor is it subject to solemn declaration. We are conscious of the fact that where such evidence is admitted to prove the truth of its contents, a tribunal ought to be satisfied that it is reliable for that purpose, in the sense of its being voluntary, truthful, and trustworthy, and that both its context and the circumstances under which it arose should be considered.
496. Consistent with the [2002] Statute [of the Special Court for Sierra Leone], the Rules of Procedure and Evidence [of the Special Court for Sierra Leone] and established international criminal jurisprudence, we acknowledge the fact that evidence which is hearsay in character does not necessarily deprive it of its probative value. In general, however, the weight or the probative value to be attached to such evidence will usually be less than that attributed to the testimony under oath of a witness who has been subjected to cross-examination. Factors that influence the probative value of hearsay evidence include whether the evidence given was first-hand or further removed, the opportunity to cross-examine the person who made the statement, the potential for errors of perception and memory and the circumstantial guarantees of trustworthiness surrounding the statements.
2.6. Circumstantial Evidence
499. Circumstantial evidence is evidence of circumstances surrounding an event or incident from which a fact at issue may be reasonably inferred. Although the individual ingredients of circumstantial evidence may be insufficient to establish a fact, taken conjunctively and cumulatively their effect may be revealing and sometimes decisive. As a matter of law, where the Prosecution’s case is substantially based on circumstantial evidence, it must be such as to satisfy the Chamber that it is consistent only with the guilt of the Accused and that there is no reasonable innocent explanation. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 495–496 and 499.
[footnotes in original omitted]
Extraordinary Chambers in the Courts of Cambodia
In the Nuon case before the ECCC in 2007, the accused, a former Cambodian acting prime minister, chairman of the Democratic Kampuchea People’s Assembly and senior member of the Central and Standing Committees of the Communist Party of Kampuchea (CPK), was charged, inter alia, with “wilful deprivation of rights to a fair trial” as a grave breach of the 1949 Geneva Conventions. 
ECCC, Nuon case, Provisional Detention Order, 19 September 2007, § 1.
The basis for this charge was the role alleged to the accused in
exercising authority and effective control over the internal security apparatus of Democratic Kampuchea (detention centres) and by directing, implementing and enforcing Party policy characterised by forcible transfers of the population, enslavement, forced labour and other inhumane acts. 
ECCC, Nuon case, Provisional Detention Order, 19 September 2007, § 2.
Extraordinary Chambers in the Courts of Cambodia
In the Ieng Sary case before the ECCC in 2007, the accused, a former Cambodian Minister of Foreign Affairs and senior leader of the Central and Standing Committees of the Communist Party of Kampuchea (CPK), was charged, inter alia, with “wilful deprivation of rights to a fair trial of prisoners of war or civilians” as a grave breach of the 1949 Geneva Conventions. 
ECCC, Ieng Sary case, Provisional Detention Order, 14 November 2007, § 1.
The basis for this charge was the role alleged to the accused in
directing, encouraging, enforcing, or otherwise rendering support to CPK policy and practice which was characterised by murder, extermination, imprisonment, persecution on political grounds and other inhumane acts such as forcible transfers of the population, enslavement, and forced labour. 
ECCC, Ieng Sary case, Provisional Detention Order, 14 November 2007, § 2.
Extraordinary Chambers in the Courts of Cambodia
In the Khieu case before the ECCC in 2007, the accused, a former Cambodian head of State and senior leader of the Communist Party of Kampuchea (CPK), was charged, inter alia, with “wilful deprivation of rights to a fair trial of prisoners of war or civilians” as a grave breach of the 1949 Geneva Conventions. 
ECCC, Khieu case, Provisional Detention Order, 19 November 2007, § 1.
The basis for this charge was the role alleged to the accused in
directing, encouraging, enforcing, or otherwise rendering support to CPK policy and practice which was characterised by murder, extermination, imprisonment, persecution on political grounds and other inhumane acts such as forcible transfers of the population, enslavement, and forced labour. 
ECCC, Khieu case, Provisional Detention Order, 19 November 2007, § 2.
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber stated:
458. The offence of wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial is expressly prohibited as a grave breach in [the 1949] Geneva Convention IV and Geneva Convention III, respectively.
459. The perpetrator must have deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in Geneva Convention IV and Geneva Convention III. These judicial guarantees include the right to be judged by an independent and impartial court, to be promptly informed of the charges, the protection against collective penalty, protection under the principle of legality, the right not to be punished more than once for the same act or on the same count, to be informed of the right to appeal, and the right not to be sentenced or executed without a previous judgement pronounced by a regularly constituted court.
460. The jurisprudence of the ICTY has established that the requisite mental element for this offence includes both culpable intent and recklessness. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 458–460.
[footnotes in original omitted]
Human Rights Committee
In its General Comment on Article 4 of the 1966 International Covenant on Civil and Political Rights in 2001, the Human Rights Committee stated:
11. … States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … by deviating from fundamental principles of fair trial.
16. Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. 
Human Rights Committee, General Comment No. 29 (Article 4 of the 1966 International Covenant on Civil and Political Rights), 24 July 2001, §§ 11 and 16.
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee stated:
2. The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law. Article 14 of the Covenant aims at ensuring the proper administration of justice, and to this end guarantees a series of specific rights.
5. While reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would be incompatible with the object and purpose of the Covenant.
6. While article 14 is not included in the list of non-derogable rights of article 4, paragraph 2 of the Covenant, States derogating from normal procedures required under article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. …
7. … This guarantee [of equality before courts and tribunals] not only applies to courts and tribunals addressed in the second sentence of this paragraph of article 14, but must also be respected whenever domestic law entrusts a judicial body with a judicial task.
8. The right to equality before courts and tribunals, in general terms, guarantees, in addition to the principles mentioned in the second sentence of Article 14, paragraph 1, those of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 2 and 5–8.
Human Rights Committee
In its concluding observations on the fifth periodic report of Canada in 2006, the Human Rights Committee stated:
The Committee notes with concern that the amendments to the Canada Evidence Act introduced by the Anti-Terrorism Act (sect. 38), relating to the non-disclosure of information in connection with or during the course of proceedings, including criminal proceedings, which could cause injury to international relations, national defence or national security, do not fully abide by the requirements of article 14 of the [1966 International Covenant on Civil and Political Rights].
The State party should review the Canada Evidence Act so as to guarantee the right of all persons to a fair trial, and in particular, to ensure that individuals cannot be condemned on the basis of evidence to which they, or those representing them, do not have full access. The State party, bearing in mind the Committees general comment No. 29 (2001) on states of emergency, should in no case invoke exceptional circumstances as justification for deviating from fundamental principles of fair trial. 
Human Rights Committee, Concluding observations on the fifth periodic report of Canada, UN Doc. CCPR/C/CAN/CO/5, 20 April 2006, § 13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the third periodic report of the Democratic Republic of the Congo in 2006, the Human Rights Committee stated:
The Committee is concerned at the continued existence of military courts and at the absence of guarantees of a fair trial in proceedings before these courts …
The State party should abolish military courts for ordinary offences. 
Human Rights Committee, Concluding observations on the third periodic report of the Democratic Republic of the Congo, UN Doc. CCPR/C/COD/CO/3, 26 April 2006, § 21.
[emphasis in original]
Human Rights Committee
In its concluding observations on the combined second and third periodic reports of the United States in 2006, the Human Rights Committee stated:
The Committee notes that the decision of the Supreme Court in Hamdan v. Rumsfeld, according to which Guantanamo Bay detainees accused of terrorism offences are to be judged by a regularly constituted court affording all the judicial guarantees required by common article 3 of the Geneva Conventions of 12 August 1949, remains to be implemented. (article 14 [of the 1966 International Covenant on Civil and Political Rights])
The State party should provide the Committee with information on its implementation of the decision. 
Human Rights Committee, Concluding observations on the combined second and third periodic reports of the United States of America, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, § 20.
[emphasis in original]
Human Rights Committee
In its views in Bahamonde v. Equatorial Guinea in 1993, the Human Rights Committee stated that one of the guarantees contained in Article 14(1) of the 1966 International Covenant on Civil and Political Rights was the general right of the accused to be granted access to a court. 
Human Rights Committee, Bahamonde v. Equatorial Guinea, Views, 20 October 1993, § 9.4.
Human Rights Committee
In Äärelä and Näkkäläjärvi v. Finland in 2001, the Human Rights Committee stated:
It is the fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the argument and evidence adduced by the other party. … These circumstances disclose a failure of the Court of Appeal to provide full opportunity to each party to challenge the submissions of the other, thereby violating the principles of equality before the courts and of fair trial contained in article 14, paragraph 1, of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Äärelä and Näkkäläjärvi v. Finland, Views, 24 October 2001, § 7.4; see also Wolf v. Panama, Views, 26 March 1992, § 6.6 (equality of arms requires an adversarial procedure).
Human Rights Committee
In Vargas Más v. Peru in 2005, the Human Rights Committee stated:
With regard to the author’s complaints under article 14 of the [1966 International Covenant on Civil and Political Rights], the Committee takes note of the author’s allegations that his trial was conducted by a court comprising faceless judges, that he did not have an opportunity to question witnesses and that his lawyer received threats. Given the circumstances of the case, the Committee, recalling all its previous jurisprudence in similar cases, considers that article 14 of the Covenant, which refers to the right to a fair hearing, taken as a whole, was violated. 
Human Rights Committee, Vargas Más v. Peru, Views, 16 November 2005, § 6.4.
Human Rights Committee
In Alegre v. Peru in 2005, the Human Rights Committee stated:
With regard to the author’s complaints in relation to article 14 [of the 1966 International Covenant on Civil and Political Rights], the Committee takes note of her allegations that the hearings at her trial were held in private and that the court comprised faceless judges who could not be challenged; that she was unable to communicate with her lawyer during the seven days she was held incommunicado; that the police officers involved in the investigation were not called as witnesses since this was not permitted under Decree-Law No. 25475; and that her lawyer was not able to challenge witnesses who had made statements during the police investigation. In the circumstances, the Committee concludes that article 14 of the Covenant, which refers to the right to a fair trial, was breached as a whole. 
Human Rights Committee, Alegre v. Peru, Views, 17 November 2005, § 7.5.
Human Rights Committee
In Quispe Roque v. Peru in 2005, the Human Rights Committee stated:
With regard to the author’s complaints in relation to article 14 [of the 1966 International Covenant on Civil and Political Rights], the Committee takes note of his allegations that his trial was conducted by a court composed of faceless judges, that the interrogation of witnesses was not permitted and that his lawyer had only 30 minutes to examine the case file. In the circumstances, the Committee, recalling all of its previous jurisprudence in similar cases, concludes that article 14 of the Covenant as a whole was violated. 
Human Rights Committee, Quispe Roque v. Peru, Views, 17 November 2005, § 7.3.
African Commission for Human and Peoples’ Rights
In a resolution adopted in 1992 on the right to recourse and fair trial, the African Commission for Human and Peoples’ Rights considered that the right to fair trial included, inter alia, the following: “All persons shall have the right to have their cause heard and shall be equal before the courts and tribunals in the determination of their rights and obligations.” 
African Commission for Human and Peoples’ Rights, Eleventh Session, Tunis, 2–9 March 1992, Resolution on the Right to Recourse and Fair Trial, § 2(a).
African Commission for Human and Peoples’ Rights
In its decision in Union Inter-Africaine des Droits de lHomme et al. v Angola in 1997, concerning deportations of “illegal immigrants”, the African Commission for Human and Peoples’ Rights stated:
It is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the [1981 African Charter on Human and Peoples’ Rights] and international law. 
African Commission for Human and Peoples’ Rights, Union Inter-Africaine des Droits de lHomme and Others v. Angola, Decision, 11 November 1997, § 20.
African Commission for Human and Peoples’ Rights
In its decision in Media Rights Agenda v. Nigeria (224/98) in 2000, the African Commission for Human and Peoples’ Rights, referring to Article 7(1)(d) of the 1981 African Charter on Human and Peoples’ Rights, stated:
60. … The Commission finds the selection of serving military officers, with little or no knowledge of law, as members of the Tribunal in contravention of Principle 10 of the Basic Principles on the Independence of Judges. The said Principle states: “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law”.
61. In the same vein, the Commission considers the arraignment, trial and conviction of Malaolu [i.e. the editor of an independent Nigerian newspaper], a civilian, by a Special Military Tribunal, presided over by serving military officers, who are still subject to military commands, without more, prejudicial to the basic principles of fair hearing guaranteed by Article 7 of the [1981 African Charter on Human and Peoples’ Rights].
62. … [Military tribunals] should not, in any circumstances whatsoever, have jurisdiction over civilians. Similarly, Special Tribunals should not try offences that fall within the jurisdiction of regular courts. 
African Commission for Human and Peoples’ Rights, Media Rights Agenda v. Nigeria (224/98), Decision, 23 October–6 November 2000, §§ 60–62.
African Commission for Human and Peoples’ Rights
In its decision in Civil Liberties Organisation v. Nigeria (129/94) in 1995, concerning the revocation of the jurisdiction of the Court to review the legality of decrees, the African Commission for Human and Peoples’ Rights stated:
13. The ousting of jurisdiction of the courts … constitutes an attack of incalculable proportions on Article 7 [of the 1981 African Charter on Human and Peoples’ Rights] … An attack of this sort is especially invidious, because, while it is a violation of human rights in itself, it permits other violations of rights to go unredressed.
14. Article 26 [of the 1981 African Charter on Human and Peoples’ Rights] … clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual’s rights against the abuses of State power. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisation v. Nigeria (129/94), Decision, 13–22 March 1995, §§ 13–14.
African Commission for Human and Peoples’ Rights
In its decision in Civil Liberties Organisation v. Nigeria (151/96) in 1999, relating to the setting up of special military tribunals by decree to try persons accused of plotting to overthrow the government and thereby excluding ordinary courts from taking up cases placed before the special tribunals (“ouster clauses”), the African Commission for Human and Peoples’ Rights stated:
17. … The ouster clauses … were found to constitute violations of Article 7 [of the 1981 African Charter on Human and Peoples’ Rights]. The Commission must take this opportunity, not only to reiterate the conclusions made before, that the constitution and procedures of the special tribunals violate Articles 7(1)(a) and (c) and 26, but to recommend an end to the practice of removing entire areas of law from the jurisdiction of the ordinary courts.
21. [A] Commission’s previous decisions found that the special tribunals violated the Charter because their judges were specially appointed for each case by the executive branch, and would include on the panel at least one, and often a majority, of military or law enforcement officers, in addition to a sitting or retired judge. The Commission here reiterates its previous decisions and declares that the trial of these persons before a special tribunal violates Article 7(1)(d) and Article 26.
23. … The setting up of a parallel system has the danger of undermining the court system and creates the likelihood of unequal application of the laws. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisation v. Nigeria (151/96), Decision, 15 November 1999, §§ 17, 21 and 23.
African Commission for Human and Peoples’ Rights
In its decision in Avocats Sans Frontières v. Burundi (231/99) in 2000, the African Commission for Human and Peoples’ Rights stated:
The right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial. Simply put, they should argue their cases before the jurisdiction on an equal footing. Secondly it entails the equal treatment of all accused persons by jurisdictions charged with trying them. This does not mean that identical treatment should be meted to all accused. The idea here is the principle that when objective facts are alike, the response of the judiciary should also be similar. There is a breach of the principle of equality if judicial or administrative decisions are applied in a discriminatory manner. 
African Commission for Human and Peoples’ Rights, Avocats sans Frontières v. Burundi (231/99), Decision, 23 October–6 November 2000, § 27.
African Commission for Human and Peoples’ Rights
In its decision in Civil Liberties Organisation and Others v. Nigeria in 2001, the African Commission for Human and Peoples’ Rights stated:
It is our view that the provisions of Article 7 [of the 1981 African Charter on Human and Peoples’ Rights] should be considered non-derogable providing as they do the minimum protection to citizens and military officers alike … The military tribunals are not negated by the mere fact of being presided over by military officers. The critical factor is whether the process is fair, just and impartial. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (218/98), Decision, 23 April–7 May 2001, § 27.
European Commission of Human Rights
In its report in Ofner and Hopfinger v. Austria in 1962, the European Commission of Human Rights stated:
Article 6 of the [1950 European Convention on Human Rights] does not define the notion of a “fair trial” in a criminal case. Paragraph 3 of the Article enumerates certain specific rights which constitute essential elements of that general notion, and paragraph 2 may be considered to add another element. The words “minimum rights”, however, clearly indicate that the five rights specifically enumerated in paragraph (3) are not exhaustive … The Commission is of the opinion that what is generally called “the equality of arms”, that is the procedural equality of the accused with the public prosecutor, is an inherent element of a “fair trial”. 
European Commission of Human Rights, Ofner and Hopfinger v. Austria, Report, 23 November 1962, § 46.
European Court of Human Rights
In its judgment in the Golder v. UK case, the European Court of Human Rights stated that Article 6(1) of the 1950 European Convention on Human Rights:
28. … does not state a right of access to the courts or tribunals in express terms. It enunciates rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term. It is the duty of the Court to ascertain, by means of interpretation, whether access to the courts constitutes one factor or aspect of this right.
31. The terms of [Article 6(1)] of the European Convention, taken in their context, provide reason to think that this right is included among the guarantees set forth.
35. … It would be inconceivable, in the opinion of the Court, that [Article 6(1)] should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
36. Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by [Article 6(1)] … The Court thus reaches the conclusion … that [Article 6(1)] secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 (art. 6-1) as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing. 
European Court of Human Rights, Golder v. UK, Judgment, 21 February 1975, §§ 28, 31 and 35–36.
European Court of Human Rights
In its judgment in Engel v. Netherlands in 1976, concerning procedures for breaches of military discipline, the European Court of Human Rights stated that the right to fair trial is not limited to cases categorized as “criminal” by the State. It added:
If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal … the operation of the fundamental clauses of Articles 6 and 7 [of the 1950 European Convention on Human Rights] would be subordinated to their sovereign will. A latitude extending this far might lead to results incompatible with the purpose and object of the Convention.
The Court further stated: “The criteria to be taken into account when deciding whether a ‘disciplinary accusation’ is in fact a criminal matter are: ‘the very nature of the offence’ and ‘the degree of severity of the penalty that the person concerned risks incurring’”. 
European Court of Human Rights, Engel v. Netherlands, Judgment, 8 June 1976, §§ 81–82.
European Court of Human Rights
In its judgment in the Deweer case in 1980, the European Court of Human Rights stated that one of the elements contained in Article 6(1) of the 1950 European Convention on Human Rights was the general right of persons to access a court. 
European Court of Human Rights, Deweer case, Judgment, 27 February 1980, § 49.
European Court of Human Rights
In its judgment in Borgers v. Belgium in 1991, the European Court of Human Rights found:
27. In the present case the hearing on 18 June 1985 before the Court of Cassation concluded with the avocat général’s submissions to the effect that Mr Borger’s appeal should not be allowed … At no time could the latter reply to those submissions: before hearing them, he was unaware of their contents because they had not been communicated to him in advance; thereafter he was prevented from doing so by statute …
The Court cannot see the justification for such restrictions on the rights of the defence. Once the avocat général had made submissions unfavourable to the applicant, the latter had a clear interest in being able to submit his observations on them before argument was closed. The fact that the Court of Cassation’s jurisdiction is confined to questions of law makes no difference in this respect.
28. Further and above all, the inequality was increased even more by the avocat général’s participation, in an advisory capacity, in the Court’s deliberations. Assistance of this nature, given with total objectivity, may be of some use in drafting judgments, although this task falls in the first place to the Court of Cassation itself. It is however hard to see how such assistance can remain limited to stylistic considerations, which are in any case often indissociable from substantive matters, if it is in addition intended … to contribute towards maintaining the consistency of the case-law …
29. In conclusion, having regard to the requirements of the rights of the defence and of the principle of the equality of arms and to the role of appearances in determining whether they have been complied with, the Court finds a violation of Article 6 para. 1 [1950 European Convention on Human Rights]. 
European Court of Human Rights, Borgers v. Belgium, Judgment, 30 October 1991, §§ 27–29.
European Court of Human Rights
In its judgment in Bulut v. Austria in 1996, the European Court of Human Rights stated:
Under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. 
European Court of Human Rights, Bulut v. Austria, Judgment, 22 February 1996, § 47.
European Court of Human Rights
In its judgment in Belziuk v. Poland in 1998, the European Court of Human Rights, recalling “the fundamental principles which emerge from its jurisprudence relating to Article 6 § 1 in conjunction with paragraph 3 (c)” of the 1950 European Convention on Human Rights, stated:
The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may secure that this requirement is met. However, whatever method is chosen, it should ensure that the other party is aware that observations have been filed and gets a real opportunity to comment thereon. 
European Court of Human Rights, Belziuk v. Poland, Judgment, 25 March 1998, § 37.
European Court of Human Rights
In its judgment in McElhinney v. Ireland in 2001, relating to non-access because of the principle of sovereign immunity, the European Court of Human Rights stated:
The right of access to court is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation … [The European Court of Human Rights] must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 [of the 1950 European Convention on Human Rights] if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 
European Court of Human Rights, McElhinney v. Ireland, Judgment, 21 November 2001, § 34.
Inter-American Commission on Human Rights
In a resolution adopted in 1968 on the law applicable to emergency situations, the Inter-American Commission on Human Rights declared:
The suspension of constitutional guarantees or state of siege is compatible with the system of representative democratic government only if enacted under the following conditions:
e. When it does not in any manner presuppose the suspension of … the right to due process of law. 
Inter-American Commission on Human Rights, Resolution adopted at the 1968 Session, Doc. OEA/Ser.L/V/II.19 Doc. 32, Inter-American Yearbook on Human Rights, 1968, pp. 59–61.
Inter-American Commission on Human Rights
In 1981, in a report on the situation of human rights in Colombia, the Inter-American Commission on Human Rights recommended that Colombia issue legal regulations so that persons arrested or detained were guaranteed the right to a fair trial. 
Inter-American Commission on Human Rights, Report on the situation of human rights in Colombia, Doc. OEA/Ser.L/V/II.53 Doc. 22, 30 June 1981, p. 221.
Inter-American Commission on Human Rights
In its doctrine concerning judicial guarantees and the right to personal liberty and security published in 1982, the Inter-American Commission on Human Rights stated that replacing regular courts with military courts, the judges in which are beholden to the political power and less well trained in law, undermines the guarantees to which all accused persons are entitled. 
Inter-American Commission on Human Rights, Doctrine concerning judicial guarantees and the right to personal liberty and security, reprinted in Ten years of activities (1971–1981), General Secretariat of the IACiHR, Washington, D.C., 1982, p. 331.
Inter-American Commission on Human Rights
In 2002, in its report on terrorism and human rights, the Inter-American Commission on Human Rights stated:
Where an emergency situation is involved that threatens the independence or security of a state, the fundamental components of the right to due process and to a fair trial must nevertheless be respected … The basic components of the right to a fair trial cannot be justifiably suspended. These protections include, in particular, the right to a fair trial by a competent, independent and impartial court for persons charged with criminal offenses, the presumption of innocence, the right to be informed promptly and intelligibly of any criminal charge, the right to adequate time and facilities to prepare a defense, the right to legal assistance of one’s choice for free legal counsel where the interests of justice require, the right not to testify against oneself and protection against coerced confessions, the right to attendance of witnesses, the right of appeal, as well as respect for the principle of non-retroactive application of penal laws. 
Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc. OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002, §§ 245 and 247.
Inter-American Commission on Human Rights
In its judgment in several cases concerning Argentina in 1992, the Inter-American Commission on Human Rights, referring to the judgment of the Inter-American Court of Human Rights in the Velásquez Rodríguez case of 1988, stated:
36. Under Article 1.1 of the [1969 American Convention on Human Rights], the States Parties are obliged “to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms …”.
37. The laws and the Decree [granting general amnesty] sought to, and effectively did obstruct the exercise of the petitioners’ right under Article 8.1 [of the 1969 American Convention on Human Rights] cited earlier. With enactment and enforcement of the laws and the Decree, Argentina has failed to comply with its duty to guarantee the rights to which Article 8.1 [of the 1969 American Convention on Human Rights] refers, has abused those rights and has violated the Convention. 
Inter-American Commission on Human Rights, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311 (Argentina), Report, 2 October 1992, §§ 36–37.
Inter-American Court of Human Rights
In its advisory opinion in the Judicial Guarantees case in 1987, the Inter-American Court of Human Rights stressed that the “concept of due process” in Article 8 of the 1969 American Convention on Human Rights “should be understood as applicable, in the main, to all judicial guarantees referred to in the American Convention”, even where there had been legitimate derogations from certain rights under Article 27 of the 1969 American Convention on Human Rights. It further noted:
Reading Article 8 together with Articles 7(6), 25, and 27(2) of the [1969 American Convention on Human Rights] leads to the conclusion that the principles of due process of law cannot be suspended in states of exception insofar as they are necessary conditions for the procedural institutions regulated by the Convention to be considered judicial guarantees. 
Inter-American Court of Human Rights, Judicial Guarantees case, Advisory Opinion, 6 October 1987, §§ 29–30.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict without trial. The conviction must be pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include … the right to fair trial. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(a).
Delegates also teach that depriving a person of the rights of fair and regular trial constitutes a grave breach of the law of war. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 776(h).
ICRC
The ICRC Commentary on the Additional Protocols underlines the relevance of Article 6(2) of the 1977 Additional Protocol II for the interpretation of common Article 3(1)(d) of the 1949 Geneva Conventions, stating:
Article 6 lays down some principles of universal application which every responsibly organized body must, and can, respect. It supplements and develops common Article 3, paragraph 1, subparagraph (1) (d), which prohibits “the passing of sentences … without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This very general rule required clarification to strengthen the prohibition of summary justice and of convictions without trial, which it already covers. Article 6 reiterates the principles contained in the Third and Fourth Conventions, and for the rest is largely based on the International Covenant on Civil and Political Rights, particularly Article 15, from which no derogation is permitted, even in the case of a public emergency threatening the life of the nation. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4597.
ICRC
In a Memorandum on the Applicability of International Humanitarian Law sent in 1990 to all States party to the 1949 Geneva Conventions in the context of the Gulf War, the ICRC stated: “The following principles in particular must be respected … the passing of sentences … without fair trial are specifically prohibited”. 
ICRC, Memorandum on the Applicability of International Humanitarian Law, 14 December 1990, § I, IRRC, No. 280, 1991, p. 24.
ICRC
In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated, in relation to civilians, that “sentencing without a fair trial” is prohibited. 
ICRC, Memorandum on Respect for International Humanitarian Law in Angola, 8 June 1994, § I, IRRC, No. 320, 1997, p. 503.
ICRC
In 1994, in a Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise in the Great Lakes region, the ICRC emphasized, in relation to civilian persons who refrain from acts of hostility, that “the passing of sentences without a fair trial in particular” is prohibited. 
ICRC, Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise, 23 June 1994, § I, reprinted in Marco Sassòli and Antoine A. Bouvier, How Does Law Protect in War?, ICRC, Geneva, 1999, p. 1308.
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC proposed that the following war crime, when committed in an international armed conflict, be subject to the jurisdiction of the Court: “wilfully depriving a prisoner of war or another protected person of the rights to fair and regular trial.” The working paper also proposed that the crime of “passing sentences … without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees recognized as indispensable”, as a serious violation of IHL applicable in non-international armed conflicts, be subject to the jurisdiction of the Court. 
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, §§ 1(a)(v) and 3(v).
Federación Médica Peruana Asociación Pro Derechos Humanos
In 1994, in a report entitled “Medical Practice in the Context of Internal Armed Conflict”, the Federación Médica Peruana Asociación Pro Derechos Humanos documented the practice of trying civilian persons accused of being involved in insurgent activities by military courts, and alleged that the trials were frequently conducted by “faceless judges” and that the courts were not impartial. 
Federación Médica Peruana Asociación Pro Derechos Humanos, Medical Practice in the Context of Internal Armed Conflict, August 1994.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states:
No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by the community of nations. 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9, IRRC, No. 282, 1991, p. 333.