Practice Relating to Rule 100. Fair Trial Guarantees

Geneva Conventions (1949)
Common Article 3 of the 1949 Geneva Conventions provides that, in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties:
(1) … the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [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]:
(d) the passing of sentences and the carrying out of executions without previous judgement 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(1)(d); 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(1)(d); Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 3(1)(d); Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 3(1)(d).
Geneva Convention III
Article 84, second paragraph, of the 1949 Geneva Convention III provides: “In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 84, second para.
Geneva Convention IV
Article 66 of the 1949 Geneva Convention IV provides:
In case of 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. Courts of appeal shall preferably sit in the occupied country. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 66.
European Convention on Human Rights
Article 6(1) of the 1950 European Convention on Human Rights provides: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.” 
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).
International Covenant on Civil and Political Rights
Article 14(1) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone shall be entitled to a … hearing by a competent, independent and impartial tribunal.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(1).
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 … by a competent, independent, and impartial tribunal.” 
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).
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. 
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 II
Article 6(2) of the 1977 Additional Protocol II provides:
No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 6(2). Article 6 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 97.
African Charter on Human and Peoples’ Rights
Article 7(1)(d) of the 1981 African Charter on Human and Peoples’ Rights provides: “Every individual shall have the right to have his cause heard. This comprises: … (d) the right to be tried within a reasonable time by an impartial court or tribunal.” 
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(1)(d).
African Charter on Human and Peoples’ Rights
Article 26 of the 1981 African Charter on Human and Peoples’ Rights provides: “States parties to the present Charter shall have the duty to guarantee the independence of the Courts.” 
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 26.
Convention on the Rights of the Child
Article 40(2)(b)(iii) of the 1989 Convention on the Rights of the Child provides: “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, independent and impartial authority or judicial body”. 
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
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).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
The 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian law of Crimes Committed During the Period of Democratic Kampuchea provides:
Article 3
Judges
3. The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.
7. The judges shall be appointed for the duration of the proceedings.
Article 5
Investigating judges
2. The co-investigating judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to such a judicial office.
3. The co-investigating judges shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source …
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. 
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 3(3) and (7), 5(2)–(3) and 12(2).
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.
Convention on Enforced Disappearance
Article 11(3) of the 2006 Convention on Enforced Disappearance provides:
Any person against whom proceedings are brought in connection with an offence of enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. Any person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law. 
International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Article 11(3).
UN-Lebanon Agreement on the Establishment of a Special Tribunal for Lebanon
Article 2(4) of the 2007 UN-Lebanon Agreement on the Establishment of a Special Tribunal for Lebanon provides:
The judges of the Tribunal shall be persons of high moral character, impartiality and integrity, with extensive judicial experience. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source. 
Agreement between the UN 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 2(4).
Statute of the Special Tribunal for Lebanon
Article 9 of the 2007 Statute of the Special Tribunal for Lebanon provides:
1. The judges shall be persons of high moral character, impartiality and integrity, with extensive judicial experience. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.
2. In the overall composition of the Chambers, due account shall be taken of the established competence of the judges in criminal law and procedure and international law.
3. The judges shall be appointed by the Secretary-General, as set forth in article 2 of the Agreement, for a three-year period and may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN 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 9.
American Declaration on the Rights and Duties of Man
Article XXVI of the 1948 American Declaration on the Rights and Duties of Man provides: “Every person accused of an offense has the right to be given an impartial … hearing”. 
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 XXVI.
Universal Declaration of Human Rights
Article 10 of the 1948 Universal Declaration of Human Rights states: “Everyone is entitled in full equality to a … hearing by an independent and impartial tribunal”. 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 10.
Basic Principles on the Independence of the Judiciary
The 1985 Basic Principles on the Independence of the Judiciary provide:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, based on facts and according to law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. 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.
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must a national of the country concerned, shall not be considered discriminatory. 
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, §§ 1–6 and 10.
Paragraphs 11–12 and 17–20 of the Basic Principles add conditions that ensure security of tenure of judges so that they will not be under pressure to decide a case in a way that is not impartial. 
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, §§ 11–12 and 17–20.
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 by a competent, independent and impartial tribunal duly established by law or by treaty”. 
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 IHL 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 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina 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, § 2.3.
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Power-Sharing
The 1992 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Power-Sharing provides:
Article 26
The following ordinary jurisdictions shall be recognized:
- Canton Courts, Courts of First Instance, Courts of Appeal and the Supreme Court.
The following military jurisdictions shall also [be] recognized:
- Court Martials and the Military Court.
The law may establish any other specialized courts. However, no special courts may be established. 
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Power-Sharing within the Framework of a Broad-Based Transitional Government, signed at Arusha respectively on 30 October 1992 and on 9 January 1993, Article 26, as annexed to the Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, Arusha, 4 August 1993.
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 states 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 by a competent, independent and impartial tribunal duly established by law”. 
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).
EU Charter of Fundamental Rights
Article 47 of the 2000 EU Charter of Fundamental Rights provides: “Everyone is entitled to a … hearing by an independent and impartial tribunal”. 
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.
Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo
The 2002 Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo provides:
We, the elements and entities of the Inter-Congolese Dialogue, Parties to this Agreement: the Government of the Democratic Republic of the Congo, the Congolese Rally for Democracy (RCD), the Movement for the Liberation of the Congo (MLC), the political opposition, civil society, the Congolese Rally for Democracy/Liberation Movement (RCD/ML), the Congolese Rally for Democracy/National (RCD/N), the Mai-Mai;
Conclude the present Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo, by agreeing as follows:
III. Principles of the transition
4. The institutions of the transition will be based on the principle of separation of powers between the executive, the legislative and the judiciary.
V. Institutions of the transition
3 – The Judicial Power
a. The Parties reaffirm the need for an independent judiciary. The superior magistrates’ council is the disciplinary jurisdiction for judges. It watches over the career of judges and on the safeguarding of their independence. 
Accord global et inclusif sur la transition en République Démocratique du Congo, conclu entre les composantes et entités du dialogue intercongolais, parties à l’accord: le Gouvernement de la République Démocratique du Congo, le Rassemblement Congolais pour la Démocratie (RCD), le Mouvement de Libération du Congo (MLC), l’Opposition politique, les Forces vives, le Rassemblement Congolais pour la Démocratie/Mouvement de Libération (RCD/ML), le Rassemblement Congolais pour la Démocratie/National (RCD/N), les Mai-Mai, Pretoria, 16 December 2002, Articles III.4 and V.3.a.
Argentina
Argentina’s Law of War Manual (1969) provides: “In any case, a prisoner of war shall not appear in front of a tribunal, whatever its nature, if it does not offer essential guarantees of independence and impartiality.” 
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, § 2.074.
Argentina
Argentina’s Law of War Manual (1989) provides that in non-international armed conflicts, “only a tribunal offering the essential guarantees of independence and impartiality can pronounce a sentence”. 
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, § 7.10.
Belgium
Belgium’s Law of War Manual (1983) provides that depriving a prisoner of war or other protected persons of the right to be judged by an impartial 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.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “the deprivation of the rights of fair and regular trial” constitutes a grave breach of IHL. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 295, § 661.
Canada
Canada’s LOAC Manual (1999) provides for the necessity that “the tribunal offers the essential guarantees of independence and impartiality generally recognized as compatible with the rule of law”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 56.
The manual also contains the requirement of “an impartial and regularly constituted tribunal” for internees in occupied territories. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-8, § 65.
With respect to non-international armed conflicts, the manual 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 Level, Office of the Judge Advocate General, 1999, p. 17-3, § 28.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
2. PWs are also subject to the laws, regulations and orders in force in the armed forces of the Detaining Power and may only be tried by the same courts and under the same procedures applicable to those armed forces.
4. … PWs may only be tried by a civil court if the Detaining Power’s forces may also be so tried for the offence involved, and provided the tribunal offers the essential guarantees of independence and impartiality generally recognized as compatible with the rule of law. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1039.2 and 4.
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 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 and the carrying out of executions 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.
Chad
Chad’s Instructor’s Manual (2006) states: “No sentence shall be passed on [a person] unless he is tried by an impartial, regularly constituted court.” 
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. 92.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
I.2. Protection of combatants and associated personnel
A person hors de combat must be collected and protected in conformity with the provisions of Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick. In this respect, they must not be the object:
- of the passing of sentences and the carrying out of a penalty without previous judgement pronounced by a regularly constituted court. 
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. 23–24.
Croatia
Croatia’s Instructions on Basic Rules of IHL (1993) states that judicial independence and impartiality are essential guarantees that may not be suspended even in situations of armed conflict. 
Croatia, Instructions Basic Rules of International Humanitarian Law Applicable in Armed Conflicts, Republic of Croatia, Ministry of Defence, 1993, Instruction No. 4.
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).
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the obligations of the occupying power under the 1949 Geneva Convention IV, states:
Magistrates and public officials are protected against political pressures. The occupying power may not alter the status of public officials or judges in the occupied territory or apply sanctions or take measures of coercion or discrimination of any kind against them in the event that they abstain from fulfilling their functions for reasons of conscience. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 237(E).
Netherlands
The Military Manual (1993) of the Netherlands prohibits punishments “without a previous judgment by an impartial tribunal”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VII-2.
The manual also provides with regard to protected persons: “No one may be sentenced and punished without a previous judgment by an impartial and independent tribunal.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VIII-3.
With respect to non-international armed conflicts, the manual prohibits sentences pronounced by a tribunal that does not fulfil “the essential requirements of independence and impartiality”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-54.
Netherlands
The Military Manual (2005) of the Netherlands states: “Where applicable, an independent and impartial tribunal alone may conduct a trial. As a rule, this will be a court martial.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0745.
In its chapter on the protection of the civilian population, the manual states:
There are also extensive rules on the treatment of prisoners and concerning criminal prosecution and punishment. Thus no one may be convicted and punished without a prior judgment, given by an impartial and independent judicial body. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0811.
In its chapter on non-international armed conflict, the manual states:
Section 11 - Prosecutions and procedural guarantees
1071. The prosecution and punishment of offences relating to the armed conflict should be subject to the following conditions (this relates to the bearing of arms and the committing of offences and war crimes during the internal armed conflict):
- for each conviction and imposition of punishment, prior judgment by a judicial authority that meets the essential guarantees of independence and impartiality is required. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1071.
New Zealand
New Zealand’s Military Manual (1992) provides:
Prisoners may only be tried by a civil court if the Detaining Power’s Forces may be so tried for the offence involved, and provided the tribunal offers the essential guarantees of independence and impartiality generally recognised as compatible with the rule of law. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 930(1).
The manual further specifies: “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.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4); see also § 1815(1).
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. The judgment must be delivered by an impartial, duly constituted court, which respects generally accepted principles of due process. 
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.
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.
The judgment must be delivered by an impartial, duly constituted court, which respects generally accepted principles of due process. 
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.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Under any circumstances international humanitarian law ensures humane treatment during an armed conflict, of persons not directly involved in combat operations … In particular, the following shall be prohibited with regard to such persons: … the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 4.
With regard to internal armed conflict, the Regulations states:
Penal prosecution of persons who have committed war and other crimes during an armed conflict shall be exercised on the basis of the Russian legislation via investigation and conviction pronounced by a court offering the essential guarantees of independence and impartiality. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 86.
Spain
Spain’s LOAC Manual (1996) states that “any tribunal shall offer guarantees of independence and impartiality” and that “depriving a person of his right to be tried impartially” is a grave breach of the 1949 Geneva Conventions. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, §§ 8.7.c.(2) and 11.8.b.(1).
Spain
Spain’s LOAC Manual (2007) states: “All courts must offer guarantees of independence and impartiality … [as] provided for under the Third Geneva Convention [1949 Geneva Convention III]”. 
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, § 8.7.c.(2).
The manual also states that “sentences may only be passed and penalties may only be executed pursuant to a judgment delivered by an impartial court”. 
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.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a 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.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Only an impartial and regularly constituted tribunal can judge and sentence an accused person.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 153, commentary.
The manual further states:
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 pronounced by an impartial and regularly constituted tribunal. 
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).
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “In no circumstances whatsoever may [prisoners of war] be tried by a court which does not afford the essential guarantees of independence and impartiality.” It explains that prisoners of war, under certain conditions, may be tried by civil courts and that “such courts must in any case comply with the requirement of independence and impartiality”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 202.
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:
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 … 
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 and the carrying out of executions 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.
United States of America
The US Field Manual (1956) reproduces Article 84 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, § 160.
United States of America
The US Air Force Pamphlet (1976) emphasizes: “In no event may [a prisoner of war] be tried by any court not offering the [generally recognized] essential guarantees of independence and impartiality.” 
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.
United States of America
The US Manual for Military Commissions (2007) states:
Requisites of military commission jurisdiction.
(1) Jurisdiction of military commissions generally. A military commission shall have jurisdiction to try any offense made punishable by the M.C.A. [Military Commissions Act of 2006] or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(2) Lawful enemy combatants. Military commissions under the M.C.A. shall not have jurisdiction over lawful enemy combatants.
(3) Specific requisites for military commission jurisdiction. A military commission always has jurisdiction to determine whether it has jurisdiction. Otherwise for a military commission to have jurisdiction:
(A) The military commission must be convened by an official empowered to convene it;
(B) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here “personnel” includes only the military judge and the members;
(C) Each charge before the military commission must be referred to it by a competent authority;
The accused must be a person subject to military commission jurisdiction; and The offense must be subject to military commission jurisdiction. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 201 (b), pp. II-12 and II-13.
The manual also states:
Persons subject to the jurisdiction of the military commissions
(a) In general. The military commissions may try any person when authorized to do so under the M.C.A.
(b) Determination of unlawful enemy combatant status by Combatant Status Review Tribunal or other competent tribunal dispositive. A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by a military commission under the M.C.A. The determination by the tribunal shall apply for purposes of military commission jurisdiction without regard to any pending petitions for review or other appeals. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 202(a) and (b), p. II-13.
The manual further states:
Disqualification of military judge
(a) In general. Except as provided in section (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 902(a) and (b)(1), p. II-80.
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 and the carrying out of executions 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 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
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 people. 
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) states:
Jurisdiction in general
(b) Requisites of military commission jurisdiction. A military commission always has jurisdiction to determine whether it has jurisdiction. Otherwise for a military commission to have jurisdiction:
(1) The military commission must be convened by an official empowered to convene it;
(2) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here “personnel” includes only the military judge and the members;
(3) Each charge before the military commission must be referred to it by a competent authority;
(4) The accused must be a person subject to military commission jurisdiction; and
(5) The offense must be subject to military commission jurisdiction. 
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, Rule 201(b), p. II-14.
The manual also states:
Persons subject to the jurisdiction of the military commissions
(a) In general. Any alien unprivileged enemy belligerent is subject to trial by military commission under chapter 47A of title 10, United States Code.
(b) Privileged belligerents. Military commissions under chapter 47A of title 10, United States Code, shall not have jurisdiction over privileged belligerents.
(c) Competent Tribunal. A military commission is a competent tribunal to make a finding sufficient for jurisdiction. 
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, Rule 202, p. II-15.
The manual further states:
Disqualification of military judge
(a) In general. Except as provided in section (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. 
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, Rule 902(a) and (b)(1), p. II-86.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Article 11. Abstention of the Judge.
1. A judge cannot handle the case if:
a. the crime was committed against him or his relatives;
b. he has performed the duties of the judicial police, of the Saranwal [prosecutor] or has given witness or functioned as an expert in the same case;
c. he has been defence counsel of the accused.
Article 12. Disqualification of the Judge.
1. The accused or the Saranwal can request the disqualification of a judge or a President when he [or] she [believes] that one of the [situations] indicated in paragraph 1 of art[icle] 11 has occurred. 
Afghanistan, Interim Criminal Procedure Code, 2004, Articles 11(1) and 12(1).
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Article 29. Abstention of the Judge.
(1) A judge cannot make a judgment in [the following] case[s] … :
1 – In case[s where] … the crime was committed against him or his relatives up to a third degree.
2 – In case[s where] … [the] judge has [previously] participated in the case as [either] a judicial police, military police, interrogator, prosecutor, defence counsel, witness or expert witness.
(2) When the cases indicated in Paragraph (1) of this article occur, the judge is required to present his abstention in written form to the chief judge of the basic military court.
Article 30. Disqualification of Judges.
The accused, defence counsel and prosecutor [involved] in case[s] … [referred to] in Paragraph (1) of Article 29 of this code [may make application to the authorized authority to] reject a judge or the chief of the court. 
Afghanistan, Military Criminal Procedure Code, 2010, Articles 29(1)–(2) and 30.
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or [who are] serv[ing] a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
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 be independent in the exercise of its judicial functions. 
Bangladesh, International Crimes (Tribunals) Act, 1973, as amended in 2009, Articles 3(1) and 6(2A).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
In the case of an armed conflict as defined in … Article 3 common [to the (1949) Geneva Conventions], the grave breaches of [common] Article 3, … listed below, shall constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, persons protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence:
4. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording the judicial guarantees which are generally recognized as indispensable. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 2(4).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
In the case of an armed conflict as defined in … Article 3 common [to the (1949) Geneva Conventions], the grave breaches of [common] Article 3, … listed below, shall constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, persons protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence:
4. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording the judicial guarantees which are generally recognized as indispensable. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 2(4).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
C. In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no direct part in hostilities, including members of armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause:
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(C)(d).
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:
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 and the carrying out of executions without previous judgment pronounced by a regularly constituted court. 
Burundi, Penal Code, 2009, Article 198 3(4o).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, provides for the punishment of anyone who deprives civilians or prisoners of war of their right to be tried by an impartial tribunal. 
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 263(a)(2)(c).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the appointment of judges:
The judges of the Extraordinary Chambers shall be appointed from among the currently practising judges or are additionally appointed in accordance with the existing procedures for appointment of judges; all of whom shall have high moral character, a spirit of impartiality and integrity, and experience …
Judges shall be independent in the performance of their functions, and shall not accept or seek any instructions from any government or any other source. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 10 new.
The Law’s chapter on investigations provides:
The Co-Investigating Judges shall be appointed from among the currently practising judges or are additionally appointed in accordance with the existing procedures for appointment of judges; all of whom shall have high moral character, a spirit of impartiality and integrity, and experience. They shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 25 new.
China
China’s Criminal Procedure Law (1979), as amended in 1996, states:
The People’s Courts shall exercise judicial power independently in accordance with law and the People’s Procuratorates shall exercise procuratorial power independently in accordance with law, and they shall be free from interference by any administrative organ, public organization or individual. 
China, Criminal Procedure Law, 1979, as amended in 1996, Article 5.
China
China’s Organic Law of the People’s Courts (1979), as amended in 2006, states:
Article 4. The people’s courts shall exercise judicial power independently, in accordance with the provisions of law, and shall not be subject to interference by any administrative organ, public organization or individual.
Article 15. If a party to a case considers that a member of the judicial personnel has an interest in the case or, for any other reason, cannot administer justice impartially, he has the right to request that member to withdraw. The president of the court shall decide whether the member should withdraw.
If a member of the judicial personnel considers that he should withdraw because he has an interest in the case or for any other reason, he should report the matter to the president of the court for decision. 
China, Organic Law of the People’s Courts, 1979, as amended in 2006, Articles 4 and 15.
China
China’s Organic Law of the People’s Procuratorates (1979), as amended in 1983, states:
The people’s procuratorates shall exercise procuratorial authority independently, in accordance with the provisions of law, and shall not be subject to interference by any administrative organ, public organization or individual. 
China, Organic Law of the People’s Procuratorates, 1979, as amended in 1983, Article 9.
China
China’s Constitution (1982), as amended in 2004, states: “The people’s courts exercise judicial power independently, in accordance with the provisions of law, and not subject to interference by any administrative organ, public organization or individual”. 
China, Constitution, 1982, as amended in 2004, Article 126.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 106:
Subject to military jurisdiction are the soldiers of the Congolese Armed Forces and equivalent persons.
Equivalent persons means members of the National Police and the Builders of the Nation [bâtisseurs de la Nation] for acts committed during training and at the occasion of the exercise of their functions within the National Service.
Article 112:
Subject to military jurisdiction equally are:
5. Prisoners of war.
6. Members of insurrection groups. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 106 and 112.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 112:
Any soldier or equivalent person who, outside the cases provided for by the present Code, establishes and maintains a repressive jurisdiction, is punished with ten to twenty years of penal servitude, without prejudice to more severe penalties which can be incurred because of the execution of the sentences pronounced. 
Democratic Republic of the Congo, Military Penal Code, 2002, Article 112.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Constitution (2006) provides:
Article 156
The military jurisdictions adjudge offences committed by members of the Armed Forces and the National Police.
In time of war or when a state of siege or emergency has been proclaimed, the President of the Republic, by a decision deliberated in the Council of Ministers, can suspend, in the whole or a part of the Republic and for the duration and the offences he designates, the penal law actions of the ordinary law courts and tribunals, in favour of the military jurisdictions.
An organic law designates the rules regarding the competence, organization and functioning of the military jurisdictions. 
Democratic Republic of the Congo, Constitution, 2006, Article 156.
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).
France
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes related to international armed conflict:
Hindering the right of a person protected by the international law of armed conflict to be regularly and impartially tried, in accordance with the provisions of the applicable international conventions, is punishable by 20 years’ imprisonment. 
France, Penal Code, 1992, as amended in 2010, Article 461-21.
In its section on war crimes related to non-international armed conflict, the Penal Code states:
Passing sentences and carrying out executions without previous judgment pronounced by a regularly constituted court, affording all judicial guaranties provided for under the 1949 Geneva Conventions and their [1977] Additional Protocols is punishable by 20 years’ imprisonment. 
France, Penal Code, 1992, as amended in 2010, Article 461-31.
Georgia
Georgia’s Code of Criminal Procedure (1998) states that the right of the accused to be tried by an independent and impartial tribunal cannot be suspended in situations of emergency. 
Georgia, Code of Criminal Procedure, 1998, Article 8.
Georgia
Georgia’s Organic Law on Common Law Courts (2009) states:
Article 7. Independence of a Judge.
1. A judge is independent in his activities, obeys only the Constitution of Georgia, international treaties, agreements and [the] law. No one has the right to require from a judge a report on [a] concrete case.
Article 8. Inadmissibility of Interference with a Court’s Activities.
1. State and local executive bodies, enterprises, social and political associations, officials [and] legal or natural persons are prohibited from violating a court’s independence.
2. Any influence on a judge or interference with his activities for the purpose of affecting decision-making is prohibited and is punishable under … law. 
Georgia, Organic Law on Common Law Courts, 2009, Articles 7 and 8.
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, imposes a severe punishment, particularly the death penalty or imprisonment, without such person having been convicted by an impartial and regularly constituted court. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 8(1)(7).
Guinea
Guinea’s Code of Military Justice (2011) states:
Article 8: …
Under threat of nullity, a person cannot serve as chairman or judge or carry out the duties of a military examining magistrate in a case subject to the military justice system of the armed forces:
1- if he is a relative of or related by marriage to the accused up to and including first cousin;
2- if he has lodged a complaint, issued the order to initiate legal proceedings or has given testimony, or, with respect to chairs and judges only, if he has officially taken part in the investigation;
3- if he has been previously been involved in a lawsuit against the accused;
4- if he has previously been involved in the case as administrator, chair or as examining magistrate.
Relatives and persons related by marriage, up to and including uncle and nephew, cannot, under threat of nullity, be members of the same military court.
Article 9: Every accused or defendant has the right to object to the members of the military court.
Likewise, every member of the court who has a reason to object shall make a declaration to that effect.
In all cases, the court shall provide reasons for its decision.
Article 15: In times of war, permanent Military Courts can be set up at the level of every military region.
Article 17: … A military court has jurisdiction to try prisoners of war.
Article 30: In times of war, the jurisdiction of [military courts] includes:
- offences committed by prisoners of war;
- offences against the legislation on arms and ammunition;
- all offences involving a serviceman or affiliated personnel;
- related offences as defined by the Criminal Code. 
Guinea, Code of Military Justice, 2011, Articles 8–9, 15, 17 and 30.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states: “The Tribunal shall enjoy complete independence.” 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 1(1).
The Law identifies the “passing of sentences and the carrying out of executions 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).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 84 of the Geneva Convention III, and of the 1977 Additional Protocol I, including violations of Article 75(5), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Kenya
Kenya’s Constitution (1992) provides that, if a person is charged with a criminal offence, the case shall be tried by an independent and impartial court established by law. 
Kenya, Constitution, 1992, Article 77(1).
Kuwait
Kuwait’s Constitution (1962) specifies that the right to be tried by an independent judge is both fundamental and non-derogable. 
Kuwait, Constitution, 1962, Articles 162–163.
Kyrgyzstan
Kyrgyzstan’s Criminal Code (1997) states that emergency situations do not abrogate the right of the accused to be tried by an independent and impartial tribunal. 
Kyrgyzstan, Criminal Code, 1997, Article 17.
Lithuania
Lithuania’s Criminal Code (1961), as amended in 1998, punishes the imposition of criminal penalties without a previous judgment by an independent court.  
Lithuania, Criminal Code, 1961, as amended in 1998, Article 336.
Morocco
Morocco’s Constitution (1996) provides:
Article 82:
The Judiciary shall be independent from the legislative and executive branches.
Article 85:
Magistrates in the bench shall be irremovable. 
Morocco, Constitution, 1996, Articles 82 and 85.
Netherlands
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all the Geneva Conventions”, including “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable”. 
Netherlands, International Crimes Act, 2003, Article 6(1)(d).
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.
Peru
Peru’s Code of Military and Police Justice (2006) states: “Judges shall be impartial in their decisions and during all stages of the proceedings. Their independence from any external interference shall be guaranteed.” 
Peru, Code of Military and Police Justice, 2006, Article 152.
The Code further states:
Any member of the military or police who in the context of an international or non-international armed conflict:
8. Imposes a penalty on or executes a penalty against a person protected by international humanitarian law without a conviction that results from an impartial judicial process and without the due process guarantees established by international law shall be imprisoned for a period of no less than six and no more than 12 years. 
Peru, Code of Military and Police Justice, 2006, Article 90(8).
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
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”:
Nobody may be condemned except without previous judgment which is based on a law … which respects the rights and guarantees established by the Political Constitution of the State, international treaties on the protection of human rights and the rules set out by the present Code. 
Peru, Military and Police Criminal Code, 2010, Article 143.
The Code also states:
The judges must act impartially in their decisions and at all stages of the proceedings.
The law guarantees the autonomy and independence of the judges against any interference in the exercise of their functions. 
Peru, Military and Police Criminal Code, 2010, Article 145.
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(h) To have a speedy, impartial and public trial. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(h).
Philippines
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile.– In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
h) To have speedy and impartial trial, with legal or other appropriate assistance and preferably in the presence of his parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his age or other peculiar circumstances. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26(h).
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 and the carrying out of executions 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 Determining the Organization, Functioning and Jurisdiction of Courts (2004) provides:
Title 1. Organization and functioning
Article: 64
Courts shall be independent and separate from other State institutions.
However, due to complementarity with other State institutions, the President of each court is responsible for ensuring better collaboration between the court for which he or she is the President and other government institutions. In that regard, he or she shall inform leaders of government institutions within the jurisdictions of the court all necessary and relevant issues for the accomplishment of their responsibilities, if such information does not prejudice professional secrecy and the principle of judicial independence.
Title 2. Jurisdiction of courts
Chapter 2: Competence of specialized jurisdictions
Section 3. General provisions related to Military Courts
Article: 143
The Judges of Military Courts shall, in the exercise of their judicial duties, be fully independent. They shall have unfettered discretion in the trial of cases before them and shall decide them without any pressure. 
Rwanda, Organic Law Determining the Organization, Functioning and Jurisdiction of Courts, 2004, Articles 64 and 143.
Article 3: Laws governing the prosecution and punishment of acts constituting the crime of Genocide perpetrated against Tutsi and other crimes against humanity
The prosecution and punishment of acts constituting the crime of genocide perpetrated against Tutsi and other crimes against humanity which were committed between October 1, 1990 and December 31, 1994 in the jurisdiction of Gacaca Courts shall be exercised by competent organs according to laws in force applicable in these matters.
Article 8: Trial of an extradited person sentenced by Gacaca Courts
A person extradited to be tried in Rwanda and who has been sentenced by Gacaca Courts shall be tried by a competent court as provided by this Organic Law.
However, the decision of the Gacaca Court shall first be nullified by that court. 
Rwanda, Organic Law terminating Gacaca Courts and determining mechanisms for solving issues which were under their jurisdiction, 2012, Articles 3 and 8.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
in case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no direct part in hostilities, including members of the armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause:
4. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court of law, affording all judicial guarantees which are generally recognized as indispensable. 
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(c)(4).
Sierra Leone
Sierra Leone’s Constitution (1991) states:
CHAPTER III – THE RECOGNITION AND PROTECTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS OF THE INDIVIDUAL
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.
(6) Without derogating from the generality of the powers conferred by subsection (5) and notwithstanding the provisions of this Chapter, the regulations or measures may, so far as appears to the President to be necessary or expedient for any of the purposes mentioned in that subsection –
g. provide for the apprehension, trial and punishment of persons offending against the regulations;
Provided that nothing in this subsection shall authorise the making of regulations during a period of public emergency for the trial of persons who are not members of defence forces by military courts. 
Sierra Leone, Constitution, 1991, Sections 23(1) and (10) and 29(2), (5) and (6)(g).
Slovakia
Slovakia’s Criminal Code (1961), as amended, provides for the punishment of anyone who deprives civilians or prisoners of war of their right to be tried by an impartial tribunal. 
Slovakia, Criminal Code, 1961, as amended, Article 263(a)(2)(c).
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.
Spain
Spain’s Law on the Victims of the Civil War and the Dictatorship (2007) states:
As an expression of all citizens’ right to moral reparation and to the restoration of personal and family memory, the radically unjust nature of all convictions [and] sanctions … suffered for political, ideological or religious reasons during the Civil War as well as during the Dictatorship is hereby acknowledged and declared. 
Spain, Law on the Victims of the Civil War and the Dictatorship, 2007, Article 2(1).
The Law further states:
1. Tribunals, juries and every other criminal or administrative body established during the Civil War for the purpose of imposing personal convictions or sanctions for political, ideological or religious reasons and their decisions are hereby declared illegitimate.
2. Since they were unlawful and violated the most elementary rules enshrined in the right to a fair trial, the Tribunal for the Repression of Masonry and Communism, the Tribunal for Public Order, as well as the Tribunals for Political Responsibilities and Court Marshalls established for political, ideological or religious reasons in accordance with Article 2 of this law are hereby declared illegitimate.
3. Convictions and sanctions handed down for political, ideological or religious reasons by whichever criminal or administrative tribunal or body during the Dictatorship against those who defended the legality of the previous institutional framework and who strove to re-establish a democratic regime in Spain or who attempted to live in accordance with the rights and liberties recognised today by the Constitution are hereby declared illegitimate. 
Spain, Law on the Victims of the Civil War and the Dictatorship, 2007, Article 3.
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 111
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
g. denying a regular and fair judgment before the imposition or execution of a severe penalty.
2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 111(1)(g) and (2).
[footnote in original omitted]
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264c
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
g. denying a regular and fair judgment before the imposition or execution of a severe penalty.
2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 264c (1)(g) and (2).
[footnote in original omitted]
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: “The criminal justice authorities are independent in applying the law and bound solely by the law.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 4(1).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.— A military commission established under this chapter is a regularly constituted court, affording all the necessary “judicial guarantees which are recognized as indispensable by civilized peoples” for purposes of common Article 3 of the Geneva Conventions.
(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.—No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights. 
United States, Military Dictatorship, 2007, Article 2(1). Spain, Law on the Victims of the Civil War and the Dictatorship Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2602, § 948b(a), (f) and (g).
The Military Commissions Act further states:
§ 948d. Jurisdiction of military commissions
(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(b) LAWFUL ENEMY COMBATANTS.—Military commissions under this chapter shall not have jurisdiction over lawful enemy combat ants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE.—A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
(d) PUNISHMENTS.—A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2603, § 948d.
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 … carried out … before a judge or impartial tribunal”. 
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 … carried out … before a judge or impartial tribunal”. 
Venezuela, Penal Procedure Code, 2012, Article 1; see also Explanatory Notes, p. 2.
Viet Nam
Viet Nam’s Judicature Law (2001) states: “In the exercise of judicial power, judges and people’s assessors are independent and subject only to the law.” 
Viet Nam, Judicature Law, 2001, § 5.
Viet Nam
Viet Nam’s Ordinance on Organization of the Military Courts (2002) states: “When conducting trials, judges and army men’s jurors are independent and only abide by laws.” 
Viet Nam, Ordinance on Organization of the Military Courts, 2002, § 8.
Viet Nam
Viet Nam’s Criminal Procedure Code (2003) states: “During trial, judges and jurors are independent and abide by the law only.” 
Viet Nam, Criminal Procedure Code, 2003, § 16.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(2) If any person is charged with a criminal offence … the case shall be afforded a fair hearing … by an independent and impartial court established by law.
….
(15) For the purposes of this section, a local court shall not be regarded as not being independent and impartial court by reason of –
(a) the fact that a member of the court has an interest in the proceedings because of his position in the tribal society; or
(b) the traditional or customary tribal practices and procedures.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 18(2) and (15) and 26(7).
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.
164. Independence of judiciary
(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice. 
Zimbabwe, Constitution, 2013, Sections 69(1), 86(2)(b) and (3)(e), 87(1) and (4) and 164(1).
Australia
In the Ohashi case in 1946 before the Australian Military Court at Rabaul, the judge advocate stated that one of the fundamental principles of justice was:
Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of [the] accused or any prejudice against him. 
Australia, Military Court at Rabaul, Ohashi case, Judgment, 23 March 1946.
Bosnia and Herzegovina
In 2007, in the Šimšić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[A]ccording to the [European Convention on Human Rights] and the case law of the [European Court of Human Rights] … , the primary institutional guarantee for a fair trial is that decisions shall not be taken by political institutions, but by impartial and independent courts established by law …
Given that this court is established by law and that the legislator defined the terms of office of the international judges … , the independence and impartiality of the court are not called into question nor is the right of the Accused to a fair trial, as guaranteed by Article 6 of the [European Convention on Human Rights], violated. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Šimšić case, Judgment, 7 August 2007, pp. 13–14.
Canada
In 2003, in Ell v. Alberta, the Supreme Court of Canada noted with regard to the meaning of judicial independence:
18 Judicial independence has been recognized as “the lifeblood of constitutionalism in democratic societies”: see Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 70, per Dickson C.J. It requires objective conditions that ensure the judiciary’s freedom to act without interference from any other entity. The principle finds explicit constitutional reference in ss. 96 to 100 of the Constitution Act, 1867 and s. 11(d) of the Canadian Charter of Rights and Freedoms. The application of these provisions is limited: the former to judges of superior courts, and the latter to courts and tribunals that determine the guilt of those charged with criminal offences: see Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”), at para. 84, per Lamer C.J. The respondents do not fall into either of these categories. Nonetheless, as this Court has recognized, the principle of judicial independence extends beyond the limited scope of the above provisions.
19 Judicial independence has been a cornerstone of the United Kingdom’s constitutional structure back to the Act of Settlement of 1700, 12 & 13 Will. 3, c. 2. See the comments of Lord Lane, cited in Beauregard, supra, at p. 71:
Few constitutional precepts are more generally accepted there in England, the land which boasts no written constitution, than the necessity for the judiciary to be secure from undue influence and autonomous within its own field (“Judicial Independence and the Increasing Executive Role in Judicial Administration”, in S. Shetreet and J. Deschênes (eds.), Judicial Independence: The Contemporary Debate (1985), at p. 525).
The preamble to the Constitution Act, 1867 provides for Canada to have “a Constitution similar in Principle to that of the United Kingdom”. These words, by their adoption of the basic principles of the United Kingdom’s Constitution, serve as textual affirmation of an unwritten principle of judicial independence in Canada. Lamer C.J. concluded as follows in Provincial Court Judges Reference, supra, at para. 109:
… it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.
The preamble acknowledges judicial independence to be one of the pillars upon which our constitutional democracy rests.
20 Historically, the principle of judicial independence was confined to the superior courts. As a result of the expansion of judicial duties beyond that realm, it is now accepted that all courts fall within the principle’s embrace. See Provincial Court Judges Reference, supra, at para. 106:
… our Constitution has evolved over time. In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982, so too has judicial independence grown into a principle that now extends to all courts, not just the superior courts of this country.
The scope of the unwritten principle of independence must be interpreted in accordance with its underlying purposes. In this appeal, its extension to the office held by the respondents depends on whether they exercise judicial functions that relate to the bases upon which the principle is founded.
21 The historical rationale for independence was to ensure that judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference: see Beauregard, supra, at p. 69. The integrity of judicial decision making depends on an adjudicative process that is untainted by outside pressures. This gives rise to the individual dimension of judicial independence, that is, the need to ensure that a particular judge is free to decide upon a case without influence from others.
22 In modern times, it has been recognized that the basis for judicial independence extends far beyond the need for impartiality in individual cases. The judiciary occupies an indispensable role in upholding the integrity of our constitutional structure: see Provincial Court Judges Reference, supra, at para. 108. In Canada, like other federal states, courts adjudicate on disputes between the federal and provincial governments, and serve to safeguard the constitutional distribution of powers. Courts also ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals. Dickson C.J. described this role in Beauregard, supra, at p. 70:
[Courts act as] protector of the Constitution and the fundamental values embodied in it — rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important.
This constitutional mandate gives rise to the principle’s institutional dimension: the need to maintain the independence of a court or tribunal as a whole from the executive and legislative branches of government.
23 Accordingly, the judiciary’s role as arbiter of disputes and guardian of the Constitution require that it be independent from all other bodies. A separate, but related, basis for independence is the need to uphold public confidence in the administration of justice. Confidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry. Without the perception of independence, the judiciary is unable to “claim any legitimacy or command the respect and acceptance that are essential to it”: see Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, at para. 38, per Gonthier J. The principle requires the judiciary to be independent both in fact and perception.
B. The Essential Conditions of Independence
28 As stated, judicial independence encompasses both an individual and institutional dimension. The former relates to the independence of a particular judge, and the latter to the independence of the court to which the judge is a member. Each of these dimensions depends on objective conditions or guarantees that ensure the judiciary’s freedom from influence or any interference by others: see Valente, supra, at p. 685. The requisite guarantees are security of tenure, financial security and administrative independence: see Provincial Court Judges Reference, supra, at para. 115.
32 The ultimate question in each case is whether a reasonable and informed person, viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent: Valente, supra, at p. 689. The perception of independence will be upheld if the essence of each condition of independence is met … 
Canada, Supreme Court, Ell v. Alberta, Judgment, 26 June 2003, §§ 18–23, 28 and 32.
[emphasis in original]
Canada
In 2004, in Application under s. 83.28 of the Criminal Code (Re), the Supreme Court of Canada noted:
80 Judicial independence is the “lifeblood of constitutionalism in democratic societies”: Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 70. The importance of judicial independence to the promotion and preservation of the rule of law cannot be overstated. In this respect, as the late Professor Lederman noted, judicial independence is one of the original principles of the English Constitution: W. R. Lederman, “The Independence of the Judiciary”, in A. M. Linden, ed., The Canadian Judiciary (1976), 1, at p. 2. An independent judiciary is absolutely necessary to “ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals”: Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at para. 22, per Major J.
81 This principle exists in Canadian law in a number of forms. In the Constitution, it is explicitly referenced in ss. 96 to 100 of the Constitution Act, 1867 and in s. 11(d) of the Charter. The application of these provisions, however, is limited. The former applies to judges of superior courts, and the latter to courts and tribunals charged with trying the guilt of persons charged with criminal offences: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 84; Ell, supra, at para. 18. Judicial independence has also been implicitly recognized as a residual right protected under s. 7, as it, along with the remaining protections in ss. 8 to 14, are specific examples of broader principles of fundamental justice: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Moreover, the commitment to the “foundational principle” of judicial independence has also been referenced by way of the Preamble to the Constitution Act, 1867: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 109; see also Ell, at para. 19. Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution.
82 The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciary function independently from the executive and legislative branches of government: Beauregard, supra, at pp. 72-73. The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13. The relationship between judicial independence and impartiality was considered by the Court in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139:
The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.
83 In this respect, we must ultimately consider whether a reasonable and informed person would conclude that the court under s. 83.28 is independent: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689; Ell, supra, at para. 32. 
Canada, Supreme Court, Application under s. 83.28 of the Criminal Code (Re), Judgment, 23 June 2004, §§ 80–83.
Canada
In 2005, in the Judges Associations case, the Supreme Court of Canada noted:
2 The concept of judicial independence has evolved over time. Indeed, “[c]onceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence . … Opinions differ on what is necessary or desirable, or feasible”: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 692, per Le Dain J.
II. General Principles
A. The Principle of Judicial Independence
4 The basis for the principle of judicial independence can be found in both our common law and the Canadian Constitution; see Beauregard v. Canada, [1986] 2 S.C.R. 56, at pp. 70-73; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at paras. 18–23. Judicial independence has been called “the lifeblood of constitutionalism in democratic societies” (Beauregard, at p. 70), and has been said to exist “for the benefit of the judged, not the judges” (Ell, at para. 29). Independence is necessary because of the judiciary’s role as protector of the Constitution and the fundamental values embodied in it, including the rule of law, fundamental justice, equality and preservation of the democratic process; Beauregard, at p. 70.
5 There are two dimensions to judicial independence, one individual and the other institutional. The individual dimension relates to the independence of a particular judge. The institutional dimension relates to the independence of the court the judge sits on. Both dimensions depend upon objective standards that protect the judiciary’s role: Valente, at p. 687; Beauregard, at p. 70; Ell, at para. 28.
6 The judiciary must both be and be seen to be independent. Public confidence depends on both these requirements being met: Valente, at p. 689. “Judicial independence serves not as an end in itself, but as a means to safeguard our constitutional order and to maintain public confidence in the administration of justice”: Ell, at para. 29.
7 The components of judicial independence are: security of tenure, administrative independence and financial security; see Valente, at pp. 694, 704 and 708; the Reference, at para. 115; Ell, at para. 28. 
Canada, Supreme Court, Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), Judgment, 22 July 2005, §§ 2 and 4–7.
[emphasis in original]
Canada
In the Lia case before a Canadian Federal Court in 2007, the applicants challenged a Pre-Removal Risk Assessment (PRRA) decision which held, inter alia, that diplomatic assurance against the risk of torture was sufficient to allow for their deportation. In its analysis relating to reasonable apprehension of bias, the Federal Court stated: “There is no doubt that the independence of the judiciary and the impartiality of its members are the cornerstones of our judicial system and essential characteristics of a state governed by the rule of law.” 
Canada, Federal Court, Lia case, Reasons for Order and Order, 5 April 2007, § 63.
Chad
In 2001, in the Hissène Habré case, Chad’s Constitutional Council was called upon to decide on the constitutionality of Ordinance No. 004/PR/MJ/93 of 27 February 1993, which established a special criminal court for the trial of the former president Hissène Habré, his co-perpetrators and accomplices, as well as former agents and persons in charge of the Documentation and Security Directorate (DDS), and members of the public forces. The Constitutional Council stated:
1. Regarding the violation of articles 147 and 148 of the Constitution
… [T]he civil parties argue that article 147 [of the Constitution], which provides for a court system … , was violated by Ordinance No. 004/PR/MJ/93 of 27 February 1993; as well as article 148 [of the Constitution], which states that: “In Chad, the Judiciary Power is exercised by the Supreme Court, the Courts of Appeal, the Tribunals and Justices of the Peace [Justices de Paix]. It is the guardian of liberties … and ensures the respect for fundamental rights.” … [I]ndeed, the Constitution of 31 March 1996 acknowledges, through the above-mentioned articles, that only the Supreme Court, Courts of Appeal, Tribunals and Justices of the Peace, which were expressly mentioned in article 148, have Judiciary Power. Therefore, no judicial body which is not based on such provision can be part of the Judiciary Power … Article 148 of the Constitution, as amended by Law No. 004/PR/98 of 28 May 1998 … , states even more clearly that: “In Chad, justice is rendered by an order from a judicial body, including: the Supreme Court, Courts of Appeal, Criminal Courts, Tribunals of First Instance, Labour Tribunals, Commercial Tribunals and Justices of the Peace” … Neither the Constitution of 31 March 1996 nor Law No. 004/PR/MJ/98 of 28 May 1998 makes any reference to [the existence] of a Special Criminal Court in Chad’s judicial system … Thus, Ordinance No. 004/PR/MJ/93 of 27 February 1993 is unconstitutional.
2. Regarding the violation of article 239 of the Constitution
… [T]he civil parties argue that the fact that Ordinance No. 004/PR/MJ/93 of 27 February 1993 remains in force is a violation of article 239 of the Constitution, as it should have been … repealed by the promulgation of the Constitution of 31 March 1996. In this regard, article 239 of the Constitution provides that: “The present Constitution abrogates, since its promulgation, the Charter of the Transition and all previous provisions contrary [to the provisions of this Constitution]”. Thus, the Special Criminal Court established by the National Charter of 28 February 1991 is automatically abrogated since the promulgation of the Constitution of 31 March 1996 … In view of the above, it must be said that Ordinance No. 004/PR/MJ/93 of 27 February 1993 is unconstitutional, and that it shall be removed … from the legal system. 
Chad, Constitutional Council, Hissène Habré case , Decision on exception of unconstitutionality, 6 April 2001, pp. 1–2.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
As members of the civilian population affected by internal armed conflicts, children and adolescents have the right to respect for the fundamental guarantees granted to all persons not actively participating in hostilities, as established by Article 3 common to the [1949] Geneva Conventions … In accordance with this Article, in cases of non-international armed conflicts in the territory of one of the Parties, each party to the conflict shall be bound to apply certain minimum guarantees without affecting their legal status as parties to the conflict, including: (1) Persons taking no active part in the hostilities shall be treated humanely in all circumstances without adverse distinction based on discriminatory criteria; (2) To this end, the following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (including children): ... (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the essential judicial guarantees. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 5.4.2.2.
Germany
In 2003, in the Al-Moayad case, Germany’s Federal Constitutional Court held:
The constitutional complaint is rejected as unfounded.
Grounds:
A.
1
By way of his constitutional complaint, the complainant challenges orders of the Frankfurt am Main Higher Regional Court … that declared the complainant’s extradition to the United States of America for criminal prosecution admissible and rejected the remonstrances that the complainant made against the orders as unfounded.
I.
2
1. According to his own statement, the complainant is an adviser of the Yemeni Minister for Religious Foundations in the rank of an undersecretary of state and imam of the Al-Ihsan Mosque in Sanaa/Yemen.
3
He was arrested in Frankfurt am Main on 10 January 2003, together with his secretary. The arrest was based on an arrest warrant of 5 January 2003 issued by the United States District Court for the Eastern District of New York. The United States prosecution authorities charge the complainant with having provided money, weapons and communications equipment to terrorist groups, in particular Al-Qaeda and Hamas, and with having recruited new members for these groups, between October 1997 and his arrest.
4
Instrumental in making the complainant travel to Germany were conversations that a Yemeni citizen maintained with the complainant in Yemen in an undercover mission of the United States investigation and prosecution authorities. The confidential informant convinced the complainant that he could bring him into contact with another person abroad who was willing to make a major financial contribution. In this context, it is controversial for what purposes the money was supposed to be donated. According to the statement made by the complainant’s secretary in his interrogation by the German investigation authorities in which he was heard as a person charged with a criminal offence, the decision to travel to Germany was based on the complainant’s voluntary decision.
5
2. On the basis of the order of the Frankfurt am Main Higher Regional Court of 14 January 2003, the complainant was placed under provisional arrest pending extradition. On 24 January 2003, the Embassy of the United States sent a request for the complainant’s extradition for criminal prosecution to the federal government. The request for extradition was based on the extradition treaty between the Federal Republic of Germany and the United States of America of 20 June 1978 … in conjunction with the supplementary treaty of 21 October 1986 …
9
5. In a verbal note of 22 May 2003, the United States Embassy assured that the complainant would not be prosecuted by a military tribunal pursuant to the Presidential Military Order of 13 November 2001 (U.S. Federal Register of 16 November 2001, Vol. 66 No. 222, pp. 57831 et seq.) or by any other extraordinary court. The assurance was given preserving the United States’ legal opinion that the military commissions provided in the Presidential Military Order are no extraordinary courts within the meaning of Article 13 of the extradition treaty between Germany and the United States of America.
II.
22
By way of his constitutional complaint, the complainant challenges a violation of Article 101.1 sentence 2 in conjunction with Article 100.2, Article 2.2 in conjunction with Article 25, Article 2.1, Article 2.1 in conjunction with Article 1.1 and Article 19.4, Article 103.1 and 103.2 of the Basic Law and of his right to a fair trial.
B.
31
The admissible constitutional complaint is unfounded.
V.
74
The complainant’s rights under Article 2.1 in conjunction with Article 1.1 of the Basic Law and Article 19.4 of the Basic Law have not been violated. The Higher Regional Court declared the extradition admissible in accordance with the constitutional preconditions. This also applies to the extent that the complainant had applied for a further investigation into the facts of the case as concerns methods of interrogation in the United States that are allegedly contrary to due process of law. The Higher Regional Court had rejected this submission with reference to a lack of indications to this effect in the United States’ practice. This reasoning is constitutionally unobjectionable.
75
On the one hand, the reasoning is consistent with the Federal Constitutional Court’s recent case-law, pursuant to which in mutual assistance concerning extradition, especially if it is rendered on the basis of treaties under international law, the requesting state is, in principle, to be shown trust as concerns its compliance with the principles of due process of law and of the protection of human rights. This principle can claim validity as long as it is not shaken by facts to the contrary (Order of the Second Senate of the Federal Constitutional Court of 24 June 2003 - 2 BvR 685/03 -, Extradition to India). Such facts did not exist at the point in time of the Higher Regional Court’s decision.
76
On the other hand, decisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.
77
Moreover, it is to be taken into consideration that the relations of mutual judicial assistance that exist between Germany and the United States on the basis of treaties under international law have been intensified even more by the signing of the Agreement on Mutual Judicial Assistance in Criminal Matters on 14 October 2003. This circumstance confirms the assumption that, in principle, the United States will comply with their obligations vis-à-vis Germany (on this, cf. the Order of the Second Senate of the Federal Constitutional Court of 24 June 2003 - 2 BvR 685/03 -, III 2.b).
78
Moreover, it can be assumed that the federal government itself will observe the further proceedings in the United States through its diplomatic missions. 
Germany, Federal Constitutional Court, Al-Moayad case, Order, 5 November 2003, §§ 1–5, 9, 22, 31 and 74–78.
Pakistan
In the Liaqat Hussain case in 1999, the Supreme Court of Pakistan stated:
33. The learned counsel for the petitioners have vehemently contended that since the Armed Forces by virtue of clause (1) of Article 243 of the Constitution are under the control and command of the Federal Government, and as under the Army Act the power to dismiss, remove and reduce in rank vests in the Executive, the personnel of the Armed Forces, who are to man the above four types of Courts are under the direct administrative control of the Executive and that the above Courts and personnel do not qualify for holding a judicial office in terms of the law enunciated by this Court in the case of Mehram Ali [Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445)]. They have invited our attention to Chapters III and IV of the Army Act. The former deals with the termination of service and the latter provides for summary reduction and punishment otherwise than by sentence of Court Martial. They have particularly invited our attention to section 16 contained in Chapter III of the Army Act, which provides that the Federal Government may dismiss or remove from service any person subject to this Act. There is no doubt that the cumulative effect of the above Constitutional provision, namely, Article 243 and of the Constitution is that the personnel of Armed Forces are under the final administrative control of the Federal Government.
It may further be observed that section 3 of the impugned Ordinance [Ordinance XII of 1998] provides that as directed by the Federal Government, the Chiefs of the Staff of the Armed Forces or an officer not below the rank of Brigadier or equivalent rank in Pakistan Navy, or Pakistan Air Force authorised by the concerned Chief of the Armed Forces in this behalf, may convene as many Courts as may be necessary to try offences triable under the Ordinance including the convening of Courts of appeals to hear appeals arising out of the decisions made and sentences passed by the Courts so convened. The above provision also indicates that the Federal Government has full control as to the convening of the Courts under the Army Act for the trial of the offences under the impugned Ordinance, though the personnel to man such Courts are to be nominated by the Army Authorities. The impugned Ordinance does not envisage the establishment of permanent Military Courts but it provides for the trial of civilians for the offences mentioned in the Ordinance by any of the four types of Courts mentioned in section 80 of the Army Act to be convened for each case comprising different Army personnel. In pith and substance the above types of Courts cannot be equated with the normal Courts envisaged under the Constitution as enunciated by this Court in the case of Mehram Ali v. Federation of Pakistan (supra). It may be pointed out that, this Court … has held that the right to have access to justice through independent Courts is a Fundamental Right and, therefore, any law which makes a civilian triable for a civil offence, which has no nexus with the Armed Forces or defence of the country, by a forum which does not qualify as a Court in terms of the law enunciated particularly in Mehram Ali’s case (supra) will be violative of Articles 9, 25, 175 and 203 of the Constitution.
41. It was further contended by the learned Attorney-General that no one has any vested right in a particular forum for trial specially when procedure provided under the Army Act for holding trial is not violative of any principle of fair trial as held by this Court inter alia in the case of Brig. (Retd.) F.B. Ali (supra). The above contention is also devoid of any force. It may again be observed that this Court has held … that the right to have access to justice through the forums as envisaged by the Constitution is a Fundamental Right. The above view was reiterated by this Court in the case of Al-Jehad Trust v. Federation of Pakistan and others (PLD 1996 SC 324) … If the forum provided under the impugned Ordinance would have been within the parameters laid down by this Court in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra), the above contention would have force, but since I have held that the Military Courts do not fall within the compass of the law enunciated in the above case, the trial by such Military Courts of civilians for civil offences which have no nexus with the Armed Forces or defence of Pakistan would be violative of the Constitution.
43. As regards the violation of Article 25 of the Constitution, it may be observed that the contention of the learned counsel for the petitioners was that the impugned Ordinance contravenes the above Article, inasmuch as it gives discretion to the Federal Government to pick and choose cases which may be referred to the Military Courts. On the other hand, the learned Attorney-General has urged that the offences triable under the impugned Ordinance are those which are mentioned in section 6 and the Schedule to the impugned Ordinance and that this Court has already held in more than one case that different laws can be enacted for different sexes, persons of different age group, persons having different financial standards and persons accused of heinous crimes. No doubt, that this Court … has held so, which has been reiterated in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra). However, in the present case the basic question is as to the vires of the impugned Ordinance on the ground of providing parallel judicial system, but at the same time the impugned Ordinance is also violative of Article 25 of the Constitution, inasmuch as it gives discretion to the Federal Government under section 3 thereof to pick and choose cases for referring to the Military Courts as has been held by this Court in the case of Brig. (Retd.) F.B. Ali. 
Pakistan, Supreme Court, Liaqat Hussain case, Judgment, 22 February 1999, §§ 33, 41 and 43.
In his separate opinion, Judge Irshad Hasan Khan concurred:
Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance, no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor their functioning and supervision have been made subordinate to it. Thus visualized, they do not fulfil the criteria of a “Court” exercising judicial functions within the purview of the guidelines provided in the case of Mehram Ali. The establishment of Military Courts is, therefore, unwarranted by any Constitutional provision. Viewed from this angle as well, the impugned legislation does not fall within the category of reasonable classification. Thus visualised, notwithstanding the bona fides and the noble object of the Federal Government to suppress/curb terrorism and punish the persons/accused mentioned in the Ordinance, the same cannot be called intra vires of the Constitution.
53. Viewed from whatever angle, the impugned Ordinance is ultra vires of the Constitution in so far as it takes away the adjudicatory powers of the Judiciary. 
Pakistan, Supreme Court, Liaqat Hussain case, Separate opinion of Judge Irshad Hasan Khan, 22 February 1999, §§ 51 and 53.
In his separate opinion, Judge Raja Afrasiab Khan concurred:
In my considered view, the establishment of Military Courts for trial of civilians amounts to [a] parallel system for all intents and purposes which is wholly contrary to the known existing judicial system having been set up under the Constitution and the law. 
Pakistan, Supreme Court, Liaqat Hussain case, Separate opinion of Judge Raja Afrasiab Khan, 22 February 1999.
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 … lays down certain criteria on the admissibility and inadmissibility of hearing situations referred to it when certain conditions 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 one or more of the following exist, as applicable: … [t]he proceedings were not or are not being conducted independently or impartially. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 4–5.
In determining whether there has been a judicial process with the necessary guarantees, the court noted:
[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 …
In addition, calling into question the impartiality and the organic and functional separation of the Executive Power that the Israeli Military Prosecution Service, Israel’s State Prosecutor and the Investigative Commission named by the Government of Israel have, would be to ignore the evidence of the existence of the rule of law. 
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: the right to an impartial judge predetermined by 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.
United States of America
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base in Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions:
[T]there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons 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 … detention.” Id., at 3318. One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Ibid.
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F.3d at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U.S.T., at 3318 (Art. 2, P 1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-a-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, P 3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).
Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII [1949 Geneva Convention III] Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36. In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42–43.
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U.S.T., at 3320 (Art. 3, P 1(d)). While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV [1949 Geneva Convention IV] Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”); see also Yamashita, 327 U.S., at 44, 66 S. Ct. 340, 90 L. Ed. 499 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”). 
United States, Supreme Court, Hamdan case, Judgment, Part VI D, 29 June 2006.
United States of America
Omar Khadr, a Canadian citizen born on 19 September 1986, had been captured in Afghanistan in July 2002 and detained at the US naval base in Guantanamo Bay, Cuba, since October 2002. In September 2007, the Khadr case (US Court of Military Commission Review) resulted from an appeal by the Government after the military judge presiding over Khadr’s military commission trial had dismissed all charges against him without prejudice – a ruling based upon the judge’s determination that the military commission lacked personal jurisdiction over Khadr. The basis for that ruling had been the Appellant’s failure to properly determine Khadr’s status as an “alien unlawful enemy combatant” before his Combatant Status Review Tribunal (CSRT). The judge ruled that this was an indispensable prerequisite to the military commission’s ability to exercise personal jurisdiction under the Military Commissions Act 2006 (MCA), further stating that “the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr”.
In a judgment that affirmed the military judge’s conclusion that Khadr’s CSRT classification in 2004 as an “enemy combatant” was insufficient to establish the military commission’s criminal jurisdiction over him but reversed the military commission’s ruling that it lacked authority to hear evidence on, and ultimately decide, the matter of Khadr’s “unlawful enemy combatant status”, the Court stated:
[T]he 2002 White House memorandum [“Humane Treatment of Al Qaeda and Taliban Detainees”, signed by President G.W. Bush, 7 February 2002] concluded that Common Article 3 of the Geneva Conventions “does not apply to either al Qaeda or Taliban detainees.” Id. at ¶ 2c. The Supreme Court subsequently determined that legal conclusion was erroneous. See Hamdan, 126 S.Ct. at 2795–96, 165 L. Ed. 2d 776–78. Congress, clearly aware of the Hamdan decision when it drafted the M.C.A., appears to have embraced the minimal safeguards guaranteed by Common Article 3 requiring that even “unlawful enemy combatants” be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” See § 948b(f), M.C.A. (quoting Common Article 3 – “A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of Common Article 3 of the Geneva Conventions”); see also Art. III, GPW III, ¶ 1(d). No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an opportunity to be heard in regard to allegations which might result in criminal sanctions. The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of “enemy combatant” status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum [Deputy Secretary for Defense, Memorandum for the Secretary of the Navy, “Order Establishing Combatant Status Review Tribunal”, 7 July 2004], could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an “unlawful enemy combatant”. 
United States, Court of Military Commission Review, Khadr case, Judgment, 24 September 2007.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
360. Under the provisions of article 25 of the Code of Criminal Procedure, judges and jurors are independent and subject only to the laws of the Republic of Azerbaijan.
361. Judges and jurors may not be associated with the findings of the authorities conducting criminal proceedings, issued during the preliminary investigation.
362. Judges and jurors reach decisions on criminal cases or other matters relating to criminal prosecutions, in accordance with their own inner convictions and knowledge of the law, which are based on a study of the evidence presented in court by the parties to the proceedings.
363. The courts of the Republic of Azerbaijan administer justice under conditions that preclude the exertion of any unlawful pressure on the independence and will of judges and jurors. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, §§ 360–363.
Côte d’Ivoire
In 2013, in its initial report to the Human Rights Committee, Côte d’Ivoire stated:
Special jurisdictions
1. The Abidjan Military Tribunal
451. There is only one military tribunal in Côte d’Ivoire. This is a special court for members of the Armed Forces whose prosecuting magistrate and four jurors are also military personnel. Only the President is a civilian magistrate, seconded from the Abidjan Court of Appeal.
453. In peacetime it is competent, when the accused are all military personnel, to try:
– Military offences defined by the Criminal Code when they are unconnected with any infractions falling within the purview of other courts;
– National security offences;
– Any offence committed either during service or whilst in service (this does not apply to non-military offences committed by the military personnel of the gendarmerie while discharging their functions as a civilian judicial police force or administrative police force), or whilst maintaining order, or within a military establishment.
454. If even one civilian is suspected of having committed an infraction with a group of military personnel, the ordinary courts will have exclusive competence.
455. In wartime, this rule is reversed and the military tribunal becomes competent to try civilians, even when no military personnel are involved. The military tribunal becomes a court of first and last instance: no appeal is possible against its rulings, as with assize court judgements. 
Côte d’Ivoire, Initial report to the Human Rights Committee, 21 May 2013, UN Doc. CCPR/C/CIV/1, submitted 19 March 2013, §§ 451 and 453–455.
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 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “The accused shall have the right to be tried in the court that has all the attributes for conducting free and fair proceedings within a reasonable period of time in accordance with law.” 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 7.
Code determining the organization, functioning and jurisdiction of Courts
40. Organic Law n° 51/2008 determines the organization, functioning and jurisdiction of courts.
41. Article 9 specifies that each Intermediate Court shall be comprised of a Juvenile Chamber. Article 75 specifies also that “Minors accused of any offence shall be tried on the first instance only by a specialized Juvenile Chamber of Intermediate Court», when article 76 stipulates that “The juvenile chamber shall, in addition to passed sentence, ensure appropriate safety supervision and education measures.”
Code of Criminal Procedure
42. A new law relating to the code of criminal procedure has also been enacted. It is Law n° 13/200[4] of 17 May 2004 that, unlike the law of 1963 February that was aimed at the same purpose, contains specific procedure provisions for children, namely:
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. …
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 and 269.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
427. Military courts and military prosecutors’ offices, of which there are three in Serbia and Montenegro (in Belgrade, Nis and Podgorica), as well as the Supreme Military Court and the Supreme Military Prosecutor (both based in Belgrade), conduct proceedings according to the same process and substantive laws applied by the regular courts in time of peace or war alike.
428. Article 138 of the Constitution of the Federal Republic of Yugoslavia is the legal basis for the existence of military judicial authorities as federal legal institutions. This Article stipulates that military courts and military prosecutors are established under federal statute. This constitutional provision resulted in the passing of two laws: one on the Military Courts … and the other on the Military Prosecutor … These laws specifically regulate the organization, competence and activity of military courts and military prosecutors.
429. The President of the Federal Republic of Yugoslavia appoints military court judges and military prosecutors. In the performance of their duties they are independent and autonomous, with their term of office not being limited. However, they are expected to be knowledgeable about and to study issues of interest to the unification of court practices and to the uniform application of the law.
430. Military courts put military personnel on trial on all criminal charges, civilian personnel employed in the Yugoslav Army on charges of criminal acts committed in the performance of their official duty and other civilians on charges of criminal acts against the Yugoslav Army that are enunciated in the Law on Military Courts. They also try prisoners of war [PoW]. In case of dispute these courts are competent to determine who may be considered a PoW. Furthermore, they perform other duties as set out in the federal law and resulting from the nature of the court procedure. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, §§ 427–430.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
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]
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 for Foreign and Commonwealth Affairs stated regarding the trial of UK citizens before a US military commission:
[T]he view of the Attorney-General was that the military commission, as constituted, would not provide the type of process that we would afford to British nationals. We have been attempting to ensure that the legal process will respect the human rights of the detainees, including the right to a fair and public hearing by a competent, independent and impartial tribunal, established by law. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 24 March 2004, Vol. 419, Debates, col. 307WH.
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
Country reports on human rights practices issued by the US Department of State in 1983 and 1996 stress that the right to be tried by a trained, impartial and independent judge may not be suspended, even during an emergency situation. 
United States, Department of State, Country reports on human rights practices for 1983, Nicaragua, United States Government Printing Office, Washington, D.C., 1984, p. 637; Country reports on human rights practices for 1996, Cambodia, United States Government Printing Office, Washington, D.C., 1997, p. 611.
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”. 
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.
United States of America
The Report on US Practice states that “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 March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the US State Department’s legal adviser stated: “As the President noted in his National Archives speech, lawfully constituted military commissions are also appropriate venues for trying persons for violations of the laws of war”. 
United States, “The Obama Administration and International Law”, Speech given by the legal adviser of the US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
UN General Assembly
In a resolution adopted in 2003 on human rights in the administration of justice, the UN General Assembly:
Convinced that the independence and impartiality of the judiciary are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice and should therefore be respected in all circumstances,
1. Reaffirms the importance of the full and effective implementation of all United Nations standards on human rights in the administration of justice. 
UN General Assembly, Res. 58/183, 22 December 2003, preamble and § 1, adopted without a vote.
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 2005 on human rights in the administration of justice, the UN General Assembly:
Convinced that the independence and impartiality of the judiciary are essential prerequisites for the protection of human rights, good governance and democracy as well as for ensuring that there is no discrimination in the administration of justice, and should therefore be respected in all circumstances,
1. Reaffirms the importance of the full and effective implementation of all United Nations standards on human rights in the administration of justice. 
UN General Assembly, Res. 60/159, 16 December 2005, preamble and § 1, 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, [and] 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 2006 on the situation of human rights in Myanmar, the UN General Assembly called upon the Government of Myanmar to “fulfil its obligations to restore the independence of the judiciary and due process of law, and to take further steps to reform the system of administration of justice”. 
UN General Assembly, Res. 61/232, 22 December 2006, § 4(c), voting record: 82-25-45-40.
UN General Assembly
In a resolution adopted in 2007 on the situation of human rights in Myanmar, the UN General Assembly called upon the Government of Myanmar to “fulfil its obligations to restore the independence of the judiciary and due process of law, and to take further steps to reform the system of administration of justice”. 
UN General Assembly, Res. 62/222, 22 December 2007, § 5(c), voting record: 83-22-47-40.
UN Economic and Social Council
In a resolution adopted in 2007 on the strengthening of basic principles of judicial conduct, ECOSOC:
Recalling … the Universal Declaration of Human Rights, which enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal,
Recalling further that the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights both guarantee the exercise of those rights and that the International Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,
Convinced also that the integrity, independence and impartiality of the judiciary are prerequisites for the effective protection of human rights and economic development,
Recalling General Assembly resolution 40/32 of 29 November 1985, in which the Assembly endorsed the resolutions adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan, Italy, from 26 August to 6 September 1985, including the resolution containing the Basic Principles on the Independence of the Judiciary,
Recalling also General Assembly resolution 40/146 of 13 December 1985, in which the Assembly welcomed the Basic Principles on the Independence of the Judiciary,
Recalling further the recommendations adopted by the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Cairo from 29 April to 8 May 1995, concerning the independence and impartiality of the judiciary and the proper functioning of prosecutorial and legal services in the field of criminal justice,
Recalling Commission on Human Rights resolution 2003/43 of 23 April 2003, on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, in which the Commission took note of the Bangalore Principles of Judicial Conduct and brought those principles to the attention of Member States, relevant United Nations organs and intergovernmental and non-governmental organizations for their consideration,
Recalling also Economic and Social Council resolution 2006/23 of 27 July 2006, on strengthening basic principles of judicial conduct, in which the Council emphasized that the Bangalore Principles of Judicial Conduct represented a further development and were complementary to the Basic Principles on the Independence of the Judiciary, and invited Member States, consistent with their domestic legal systems, to encourage their judiciaries to take the Bangalore Principles into consideration when reviewing or developing rules with respect to the professional and ethical conduct of members of the judiciary,
2. Invites Member States, consistent with their domestic legal systems, to continue to encourage their judiciaries to take into consideration the Bangalore Principles of Judicial Conduct when reviewing or developing rules with respect to the professional and ethical conduct of members of the judiciary. 
ECOSOC, Res. 2007/22, 26 July 2007, preamble and § 2, 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 2003 on the situation of human rights in Myanmar, the UN Commission on Human Rights expressed its grave concern at “wide disrespect for the rule of law and lack of independence of the judiciary” and called upon the Government of Myanmar to “fulfil its obligations to restore the independence of the judiciary and due process of law, and to take further steps to reform the system of the administration of justice”. 
UN Commission on Human Rights, Res. 2003/12, 16 April 2003, §§ 3(c) and 4(a), 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:
(e) To continue to reform the judicial system and, in this connection, to give immediate effect to its decisions to abolish the Military Court, and notes the entry into force of the presidential decrees on the reform of the military justice system. 
UN Commission on Human Rights, Res. 2003/15, 17 April 2003, preamble and § 5(e), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 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,
1. Reiterates that every person is entitled, in full equality, to a fair and public hearing by an independent and impartial tribunal, in the determination of his/her rights and obligations and of any criminal charge against him/her;
2. Also reiterates that 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;
3. Further reiterates that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law;
6. Underlines that any court trying a person charged with a criminal offence should be based on the principles of independence and impartiality;
9. Calls upon States that have military courts for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and use the duly established legal proceedings. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and §§ 1–3, 6 and 9, voting record: 31-1-21.
UN Commission on Human Rights
In a resolution adopted in 2003 on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, the UN Commission on Human Rights:
Guided by articles 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 14 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action (A/CONF.157/23), in particular Part I, paragraph 27, and Part II, paragraphs 88, 90 and 95, thereof,
Convinced that an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice,
Recalling further General Assembly resolution 40/32 of 29 November 1985, as well as Assembly resolution 40/146 of 13 December 1985, in which the Assembly endorsed the 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,
Recalling General Assembly resolution 45/166 of 18 December 1990, in which the Assembly welcomed the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and invited Governments to respect them and to take them into account within the framework of their national legislation and practice,
Noting the Bangalore Principles of Judicial Conduct (E/CN.4/2003/65, annex) adopted at the Round Table Meeting of Chief Justices held in The Hague on 25 and 26 November 2002 and bringing those principles to the attention of Member States, relevant United Nations organs and intergovernmental and non-governmental organizations for their consideration,
Recalling the recommendations adopted by the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders regarding, among other things, the invitation addressed to Member States to ensure the independence and impartiality of the judiciary and the proper functioning of prosecutorial and legal services in the field of penal justice and police affairs, taking into account the Basic Principles on the Independence of the Judiciary,
Recalling also the Statement of Principles on the Independence of the Judiciary adopted in Beijing in August 1995 by the Sixth Conference of Chief Justices of Asia and the Pacific, and the Cairo Declaration, adopted in November 1995 by the Third Conference of Francophone Ministers of Justice,
Noting with concern the increasingly frequent attacks on their independence suffered by judges, lawyers and court officers, and aware of the close link between the weakening of safeguards for judges, lawyers and court officers and the frequency and gravity of violations of human rights,
2. Notes the Special Rapporteur’s concern that the situation of the independence of the judiciary, which is the bedrock of the rule of law, remains delicate in many parts of the world. 
UN Commission on Human Rights, Res. 2003/43, 23 April 2003, preamble and § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on extrajudicial, summary or arbitrary executions, the UN Commission Human Rights:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, [and] 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. 2003/53, 24 April 2003, § 4, voting record: 37-0-16.
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 the situation of human rights in Afghanistan, the UN Commission on Human Rights recognized “the fundamental role of an independent judiciary in ensuring the protection of human rights and fundamental freedoms, with a view to combating impunity”. 
UN Commission on Human Rights, Res. 2003/77, 25 April 2003, preamble, 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;
3. Underlines that any court trying a person charged with a criminal offence should be competent, independent and impartial;
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 §§ 2–3 and 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, the UN Commission on Human Rights:
Guided by articles 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 14 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action (A/CONF.157/23), in particular Part I, paragraph 27, and Part II, paragraphs 88, 90 and 95, thereof,
Convinced that an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice,
Recalling further General Assembly resolution 40/32 of 29 November 1985, as well as Assembly resolution 40/146 of 13 December 1985, in which the Assembly endorsed the 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,
Recalling General Assembly resolution 45/166 of 18 December 1990, in which the Assembly welcomed the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and invited Governments to respect them and to take them into account within the framework of their national legislation and practice,
Noting the Bangalore Principles of Judicial Conduct (E/CN.4/2003/65, annex) adopted at the Round Table Meeting of Chief Justices held in The Hague on 25 and 26 November 2002 and bringing those principles to the attention of Member States, relevant United Nations organs and intergovernmental and nongovernmental organizations for their consideration,
Recalling the recommendations adopted by the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders regarding, among other things, the invitation addressed to Member States to ensure the independence and impartiality of the judiciary and the proper functioning of prosecutorial and legal services in the field of penal justice and police affairs, taking into account the Basic Principles on the Independence of the Judiciary,
Recalling also the Statement of Principles on the Independence of the Judiciary adopted in Beijing in August 1995 by the Sixth Conference of Chief Justices of Asia and the Pacific, and the Cairo Declaration, adopted in November 1995 by the Third Conference of Francophone Ministers of Justice,
Noting with concern the increasingly frequent attacks on their independence suffered by judges, lawyers and court officers, and aware of the close link between the weakening of safeguards for judges, lawyers and court officers and the frequency and gravity of violations of human rights,
2. Notes the Special Rapporteur’s concern that the situation of the independence of judges and lawyers, which is the bedrock of the rule of law, remains delicate in many parts of the world;
7. Calls upon all Governments to respect and uphold the independence of judges and lawyers and, to that end, to take effective legislative, law enforcement and other appropriate measures that will enable them to carry out their professional duties without harassment or intimidation of any kind. 
UN Commission on Human Rights, Res. 2004/33, 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:
5. 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 …
6. Reaffirms the obligation of States to protect the inherent right to life of all persons under their jurisdiction and calls upon concerned States to investigate promptly and thoroughly all killings committed in the name of passion or in the name of honour, all killings committed for any discriminatory reason, including sexual orientation; racially motivated violence leading to the death of the victim; killings of members of national, ethnic, religious or linguistic minorities, of refugees, of internally displaced persons, of street children or of members of indigenous communities; killings of persons for reasons related to their activities as human rights defenders, lawyers, journalists or as demonstrators, in particular as a consequence of their exercise of the right to freedom of opinion and expression; as well as other cases where a person’s right to life has been violated, all of which are being committed in various parts of the world, and to bring those responsible to justice before a competent, independent and impartial judiciary, and to ensure that such killings, including those committed by security forces, police and law enforcement agents, paramilitary groups or private forces, are neither condoned nor sanctioned by government officials or personnel. 
UN Commission on Human Rights, Res. 2004/37, 19 April 2004, §§ 5–6, voting record: 39-0-12.
UN Commission on Human Rights
In a resolution adopted in 2004 on the situation of human rights in Myanmar, the UN Commission on Human Rights expressed its grave concern at “wide disrespect for the rule of law and lack of independence of the judiciary” and called upon the Government of Myanmar to “fulfil its obligations to restore the independence of the judiciary and due process of law, and to take further steps to reform the system of the administration of justice”. 
UN Commission on Human Rights, Res. 2004/61, 21 April 2004, §§ 3(d) and 4(a), adopted without a vote.
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:
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, § 13, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the situation of human rights in Myanmar, the UN Commission on Human Rights expressed its grave concern at “wide disrespect for the rule of law and lack of independence of the judiciary” and called upon the Government of Myanmar to “fulfil its obligations to restore the independence of the judiciary and due process of law, and to take further steps to reform the system of the administration of justice”. 
UN Commission on Human Rights, Res. 2005/10, 14 April 2005, §§ 3(f) and 4(g), 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;
4. Underlines that any court trying a person charged with a criminal offence should be competent, independent and impartial;
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 §§ 2–4 and 8, voting record: 52-0-1.
UN Commission on Human Rights
In a resolution adopted in 2005 on democracy and the rule of law, the UN Commission on Human Rights:
14. Calls upon States to make continuous efforts to strengthen the rule of law and promote democracy by:
(b) Guaranteeing that no individual or public or private institution is above the law, by ensuring that:
(v) A sufficient degree of legal certainty and predictability is provided in the application of the law, in order to avoid any arbitrariness;
(vi) Comprehensive anti-corruption strategies and measures are adequately developed and applied in order to maintain the independence and impartiality of the judiciary, and to ensure the accountability of the members of the judiciary, legislative and executive systems;
(viii) Military courts or special tribunals are independent, competent and impartial, and that such courts or tribunals apply established procedures of due process of law and guarantees of a fair trial, in accordance with international obligations.
(c) Respecting equal protection under the law, by:
(iv) Promoting continuously the independence and impartiality of a judiciary free from unlawful or corrupt outside influence. 
UN Commission on Human Rights, Res. 2005/32, 19 April 2005, § 14(b)(v)–(vi) and (c)(iv), voting record: 46-0-7.
UN Commission on Human Rights
In a resolution adopted in 2005 on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, the UN Commission on Human Rights:
Guided by articles 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 14 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action (A/CONF.157/23), in particular Part I, paragraph 27, and Part II, paragraphs 88, 90 and 95, thereof,
Convinced that an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice,
Recalling further General Assembly resolution 40/32 of 29 November 1985, as well as Assembly resolution 40/146 of 13 December 1985, in which the Assembly endorsed the 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,
Recalling General Assembly resolution 45/166 of 18 December 1990, in which the Assembly welcomed the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and invited Governments to respect them and to take them into account within the framework of their national legislation and practice,
Recalling also the Bangalore Principles of Judicial Conduct (E/CN.4/2003/65, annex), adopted at the Round Table Meeting of Chief Justices held in The Hague on 25 and 26 November 2002 and bringing those principles to the attention of Member States, relevant United Nations organs and intergovernmental and nongovernmental organizations for their consideration,
Recalling further the recommendations adopted by the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders regarding, among other things, the invitation addressed to Member States to ensure the independence and impartiality of the judiciary and the proper functioning of prosecutorial and legal services in the field of penal justice and police affairs, taking into account the Basic Principles on the Independence of the Judiciary,
Recalling the Statement of Principles on the Independence of the Judiciary adopted in Beijing in August 1995 by the Sixth Conference of Chief Justices of Asia and the Pacific, and the Cairo Declaration, adopted in November 1995 by the Third Conference of Francophone Ministers of Justice,
Noting with concern the increasingly frequent attacks on their independence suffered by judges, lawyers and court officers, and aware of the close link between the weakening of safeguards for judges, lawyers and court officers and the frequency and gravity of violations of human rights,
2. Notes the Special Rapporteur’s concern that the situation of the independence of judges and lawyers, which is the bedrock of the rule of law, remains delicate in many parts of the world;
7. Calls upon all Governments to respect and uphold the independence of judges and lawyers and, to that end, to take effective legislative, law enforcement and other appropriate measures that will enable them to carry out their professional duties without harassment or intimidation of any kind. 
UN Commission on Human Rights, Res. 2005/33, 19 April 2005, preamble and §§ 2 and 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on extrajudicial, summary or arbitrary executions, the UN Commission on Human Rights:
4. 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 …
5. Reaffirms the obligation of States to protect the inherent right to life of all persons under their jurisdiction and calls upon States concerned to investigate promptly and thoroughly all cases of killings, including those committed in the name of passion or in the name of honour, all killings committed for any discriminatory reason, including sexual orientation; racially motivated violence leading to the death of the victim; killings of members of national, ethnic, religious or linguistic minorities, of refugees, of internally displaced persons, of street children, of members of indigenous communities or of migrants; killings of persons for reasons related to their activities as human rights defenders, lawyers, doctors, journalists or as demonstrators, in particular as a consequence of their exercise of the right to freedom of opinion and expression; as well as other cases where a person’s right to life has been violated, all of which are being committed in various parts of the world, and to bring those responsible to justice before a competent, independent and impartial national tribunal or, where appropriate, international tribunal, and to ensure that such killings, including those committed by security forces, police and law enforcement agents, paramilitary groups or private forces, are neither condoned nor sanctioned by government officials or personnel. 
UN Commission on Human Rights, Res. 2005/34, 19 April 2005, §§ 4–5, voting record: 36-0-17.
UN Commission on Human Rights
In a resolution adopted in 2005 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. 2005/59, 20 April 2005, § 7(d)–(e), voting record: 26-17-10.
UN Commission on Human Rights
In a resolution adopted in 2005 on impunity, the UN Commission on Human Rights:
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. 2005/81, 21 April 2005, §§ 15, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the situation of human rights in the Sudan, the UN Commission on Human Rights called upon the Government of the Sudan to “enhance and strengthen the independence and impartiality of the judiciary by training judges, prosecutors, lawyers and police with a view to protecting human rights and ensure rule of law”. 
UN Commission on Human Rights, Res. 2005/82, 21 April 2005, § 4(h), adopted without a vote.
No data.
No data.
International Criminal Tribunal for Rwanda
In its judgment in the Rutaganda case in 2003, the ICTR Appeals Chamber stated:
39. The Appeals Chamber recalls that impartiality is one of the duties that judges pledge themselves to uphold at the time they take up their duties; and this applies throughout the judge’s term of office in the Tribunal. This is a component of the right to a fair trial that is recognized in Articles 19 and 20 of the [1994 ICTR] Statute. The Appeals Chamber in the Akayesu Appeal Judgement endorsed the standards applicable to impartiality embodied in the Statute and the Rules, as previously defined by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), which pointed out:
“That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:
A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:
(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”
40. With regard to the test of the “reasonable observer”, the ICTY Appeals Chamber held that:
“[…] the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”
41. The very Appeals Chamber pointed out that the Judge should rule on cases according to what he deems to be the correct interpretation of the law, by ensuring that his behaviour does not give the impression to an unbiased and knowledgeable observer that he is not impartial. Lastly, the ICTY Appeals Chamber held that:
“The relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [a] Judge […] might not bring an impartial and unprejudiced mind to the issues arising in the case.” 
ICTR, Rutaganda case, Judgment on Appeal, 26 May 2003, §§ 39–41.
International Criminal Tribunal for Rwanda
In its judgment on Appeal in the Nahimana case in 2007, the ICTR Appeals Chamber stated:
19. The Appeals Chamber recalls that independence is a functional attribute which implies that the institution or individual possessing it is not subject to external authority and has complete freedom in decision-making; independence refers in particular to the mechanisms aimed at shielding the institution or person from external influences. Impartiality is a personal attribute which implies lack of bias and prejudice; it addresses the conduct and frame of mind to be expected of the Judges in a given case.
47. The right of an accused to be tried before an impartial tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the [1994 ICTR] Statute. Furthermore, Article 12 of the Statute cites impartiality as one of the essential qualities of any Tribunal Judge, while Rule 14(A) of the Rules [of Procedure and Evidence] provides that, before taking up his duties, each Judge shall make a solemn declaration that he will perform his duties and exercise his powers “impartially and conscientiously”. The requirement of impartiality is again recalled in Rule 15(A) of the Rules, which provides that “[a] judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality”.
48. The Appeals Chamber reiterates that there is a presumption of impartiality which attaches to any Judge of the Tribunal and which cannot be easily rebutted. In the absence of evidence to the contrary, it must be assumed that the Judges “can disabuse their minds of any irrelevant personal beliefs or predispositions”. Therefore, it is for the appellant doubting the impartiality of a Judge to adduce reliable and sufficient evidence to the Appeals Chamber to rebut this presumption of impartiality.
49. In the Akayesu Appeal Judgement, the Appeals Chamber recalled the criteria set out by the ICTY Appeals Chamber regarding the obligation of impartiality incumbent upon a Judge:
That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:
A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:
(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.
50. The test of the reasonable observer, properly informed, refers to “an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality, apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”. The Appeals Chamber must therefore determine whether such a hypothetical fair-minded observer, acting in good faith, would accept that a Judge might not bring an impartial and unprejudiced mind to the issues arising in the case. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, §§ 19 and 47–50.
International Criminal Tribunal for the former Yugoslavia
In its Decision on Preliminary Motions in the Slobodan Milošević case in 2001, the ICTY Trial Chamber stated:
9. Human rights bodies have, on several occasions, pronounced on the legitimacy of ad hoc tribunals. The decisions of these bodies establish that there is nothing inherently illegitimate in the creation of an ad hoc judicial body, and that the important question is whether that body is established by law, in the sense that, as it is stated in the Tadic Jurisdiction Appeal, it “should genuinely afford the accused the full guarantees of fair trial set out in Article 14 of the International Covenant on Civil and Political Rights”.
10. The International Tribunal meets this requirement in that the rights of the accused, comparable to those in the International Covenant on Civil and Political Rights (“ICCPR”), are entrenched in the International Tribunal’s Statute, in particular, in Article 21. 
ICTY, Slobodan Milošević case, Decision on Preliminary Motions, 8 November 2001, §§ 9–10.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Simić case in 2003, the ICTY Trial Chamber stated that the rights to a fair trial are encompassed in Common Article 3 of the 1949 Geneva Conventions and that such rights include, inter alia, “the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. 
ICTY, Simić case, Judgment, 17 October 2003, § 678.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2006, the ICTY Appeals Chamber stated with regard to the requirement of impartiality of judges:
37. The Appeals Chamber recalls that Article 21 of the [1993 ICTY] Statute guarantees the right to a fair trial and that the right to be tried before an independent an impartial tribunal is an integral component of this right. Accordingly, Article 13 of the Statute provides that Judges of the International Tribunal “shall be persons of high moral character, impartiality and integrity”. That requirement is reflected in Rule 15(A) of the Rules [of Procedure and Evidence], governing disqualification of Judges, which provides that “[a] Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality”.
38. In interpreting and applying the impartiality requirement in the Statute and the Rules, the Appeals Chamber stated in the Furundžija Appeal Judgement:
[T]here is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias.
39. An appearance of bias is established if:
(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.
40. With regard to the test of the “reasonable observer”, the Appeals Chamber has held:
[T]he reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.
41. This two part test is entirely consistent with the European Court of Human Rights case-law pointed to by [the accused] during the Appeal Hearing. Indeed many of those cases were cited in the Furundžija Appeal Judgement. When applying this test, the Appeals Chamber emphasizes that the Judges of the International Tribunal enjoy a presumption of impartiality. The Appeals Chamber stated in the Furundžija Appeal Judgement:
[I]n the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal “can disabuse their minds of any irrelevant personal beliefs or predispositions”. It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that [the Judge in question] was not impartial in his case. There is a high threshold to reach in order to rebut the presumption of impartiality.
In the context of the allegation made in the instant case, it should be recalled in particular that the Judges of the International Tribunal “are professional judges, who are called upon to try a number of cases arising out of the same events or arising out of the same contextual background, and that they may be relied upon to apply their mind to the evidence in the particular case before them”. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, §§ 37–41.
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:
3. … The second sentence of the same paragraph [paragraph 1] entitles individuals to a fair and public hearing by a competent, independent and impartial tribunal established by law, if they face any criminal charges or if their rights and obligations are determined in a suit at law. …
18. The notion of a “tribunal” in article 14, paragraph 1 designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature. Article 14, paragraph 1, second sentence, guarantees access to such tribunals to all who have criminal charges brought against them. This right cannot be limited, and any criminal conviction by a body not constituting a tribunal is incompatible with this provision. Similarly, whenever rights and obligations in a suit at law are determined, this must be done at least at one stage of the proceedings by a tribunal within the meaning of this sentence. The failure of a State party to establish a competent tribunal to determine such rights and obligations or to allow access to such a tribunal in specific cases would amount to a violation of article 14 if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities, or if the access left to an individual would be limited to an extent that would undermine the very essence of the right.
19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.
21. The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 3 and 18–21.
Human Rights Committee
In its concluding observations on the second periodic report of Slovakia in 2003, the Human Rights Committee, expressing concern over the fact that civilians may be tried by military courts, stated that Slovakia “should continue to revise its laws to the effect of excluding military courts’ jurisdiction over civilians”. 
Human Rights Committee, Concluding observations on the second periodic report of Slovakia, UN Doc. CCPR/CO/78/SVK, 22 August 2003, § 14.
Human Rights Committee
In its concluding observations on the combined fourth and fifth periodic reports of Sri Lanka in 2003, the Human Rights Committee stated:
The Committee expresses concern that the procedure for the removal of judges of the Supreme Court and the Courts of Appeal set out in article 107 of the Constitution, read together with Standing Orders of Parliament, is incompatible with article 14 of the [1966 International Covenant on Civil and Political Rights], in that it allows Parliament to exercise considerable control over the procedure for removal of judges.
The State party should strengthen the independence of the judiciary by providing for judicial, rather than parliamentary, supervision and discipline of judicial conduct. 
Human Rights Committee, Concluding observations on the combined fourth and fifth periodic reports of Sri Lanka, UN Doc. CCPR/CO/79/LKA, 1 December 2003, § 16.
[emphasis in original]
Human Rights Committee
In 2004, in its concluding observations on the situation of civil and political rights in The Gambia, the Human Rights Committee stated:
The Committee notes with concern that detainees who are opposed to the Government and who face criminal charges do not always benefit from all guarantees of a fair trial, and that some have been tried before military courts, for which no constitutional provision exists. It further regrets that, in spite of the constitutional provision for security of tenure of judges, judges have reportedly been removed summarily from office in several instances.
The State party should afford to all those facing criminal charges trials in full conformity with the Covenant. It is invited to guarantee the security of tenure of judges. The State party is further invited to explain the basis for the establishment and operation of military courts, and whether the operation of these military courts is in any way linked to the existence of a state of emergency. 
Human Rights Committee, Concluding observations on the situation of civil and political rights in The Gambia, UN Doc. CCPR/CO/75/GMB, 12 August 2004, § 14.
[emphasis in original]
Human Rights Committee
In its concluding observations on the initial report of Serbia and Montenegro in 2004, the Human Rights Committee stated:
19. The Committee takes note of efforts undertaken by Serbia to strengthen the independence of the judiciary. However, it is concerned at alleged cases of executive pressure on the judiciary in Serbia, and measures regarding the judiciary undertaken during the state of emergency (art. 14 [of the 1966 International Covenant on Civil and Political Rights]).
The State party should ensure strict observance of the independence of the judiciary.
20. The Committee is concerned at the possibility of civilians being tried by military courts for crimes such as disclosure of State secrets (art. 14 ).
The State party should give effect to its aspiration to secure that civilians are not tried by military courts. 
Human Rights Committee, Concluding observations on the initial report of Serbia and Montenegro, UN Doc. CCPR/CO/81/SEMO, 12 August 2004, §§ 19–20.
[emphasis in original]
Human Rights Committee
In its concluding observations on the situation of civil and political rights in Equatorial Guinea in 2004, the Human Rights Committee stated:
The Committee expresses its concern at the absence of an independent judiciary in the State party and at the conditions for the appointment and dismissal of judges, which are not such as to guarantee the proper separation of the executive and the judiciary. It is also concerned that, in an infringement of the powers of the judiciary, trials are being conducted by the House of Representatives of the People. The Committee also regrets the absence of safeguards to ensure that civilians are tried solely by civilian courts and not by military tribunals.
Bearing in mind article 14 of the [1966 International Covenant on Civil and Political Rights], the State party should take steps to safeguard in practice the judiciarys independence and its role as the sole administrator of justice and to guarantee the competence, independence and tenure of judges. In addition, the State party should restrict the jurisdiction of the military justice system, removing civilians from it. 
Human Rights Committee, Concluding observations on the situation of civil and political rights in Equatorial Guinea, UN Doc. CCPR/CO/79/GNQ, 13 August 2004, § 7.
[emphasis in original]
Human Rights Committee
In its concluding observations on the second periodic report of Uzbekistan in 2005, the Human Rights Committee stated:
The Committee remains concerned that the judiciary is not fully independent and that the appointment of judges has to be reviewed by the executive branch every five years ([1966 International Covenant on Civil and Political Rights], art. 14, para. 1).
The State party should guarantee the full independence and impartiality of the judiciary by guaranteeing judges security of tenure. 
Human Rights Committee, Concluding observations on the second periodic report of Uzbekistan, UN Doc. CCPR/CO/83/UZB, 26 April 2005, § 16.
[emphasis in original]
Human Rights Committee
In its concluding observations on the initial report of Tajikistan in 2005, the Human Rights Committee stated:
17. The Committee is concerned about the apparent lack of independence of the judiciary, as reflected in the process of appointment and dismissal of judges as well as in their economic status (art. 14, para. 1 [of the 1966 International Covenant on Civil and Political Rights]).
The State party should guarantee the full independence and impartiality of the judiciary by establishing an independent body charged with the responsibility of appointing, promoting and disciplining judges at all levels and by remunerating judges with due regard for the responsibilities and the nature of their office.
18. The Committee notes that military courts have jurisdiction to examine criminal cases concerning both military and civil persons (art. 14, para. 1).
The State party should make the necessary amendments to its Criminal Procedure Code in order to prohibit this practice, strictly limiting the jurisdiction of military courts to military persons only. 
Human Rights Committee, Concluding observations on the initial report of Tajikistan, UN Doc. CCPR/CO/84/TJK, 18 July 2005, §§ 17–18.
[emphasis in original]
Human Rights Committee
In its concluding observations on the fourth periodic report of Yemen in 2005, the Human Rights Committee stated:
The Committee reiterates its concern about the reported lack of efficiency and independence of the judiciary, despite the existence of constitutional guarantees and the measures taken to reform the judicial branch (arts. 2 and 14 [of the 1966 International Covenant on Civil and Political Rights]).
The State party should ensure that the judiciary is free from any interference, in particular from the executive branch, in law as well as in practice. The next periodic report should contain detailed information on existing legal guarantees ensuring the security of tenure of judges and their application. In particular, information should be provided on the appointment and promotion of judges, and on the disciplinary sanctions procedures. 
Human Rights Committee, Concluding observations on the fourth periodic report of Yemen, UN Doc. CCPR/CO/84/YEM, 9 August 2005, § 6.
[emphasis in original]
Human Rights Committee
In 2006, in its concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo (UNMIK) on the human rights situation in Kosovo since June 1999, the Human Rights Committee stated:
The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors … (art. 14 [of the 1966 International Covenant on Civil and Political Rights]).
UNMIK, in cooperation with PISG [Provisional Institutions of Self-Government] as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors. 
Human Rights Committee, Concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo on the human rights situation in Kosovo since June 1999, UN Doc. CCPR/C/UNK/CO/1, 14 August 2006, § 20.
[emphasis in original]
Human Rights Committee
In its concluding observations on the fifth periodic report of Chile in 2007, the Human Rights Committee stated:
The Committee notes with concern that Chile’s military tribunals continue to have jurisdiction to try civilians in civil matters, a situation that is incompatible with article 14 of the Covenant. The Committee is also concerned about the wording of article 330 of the Code of Military Justice, which may be interpreted as allowing the use of “unnecessary violence” (articles 7 and 14 of the [1966 International Covenant on Civil and Political Rights]).
The State party should expedite the adoption of the law amending the Code of Military Justice, limiting the jurisdiction of military tribunals solely to military personnel charged exclusively with military offences, and ensuring that the new law does not contain any provisions that could allow rights established in the Covenant to be violated. 
Human Rights Committee, Concluding observations on the fifth periodic report of Chile, UN Doc. CCPR/C/CHL/CO/5, 18 May 2007, § 12.
[emphasis in original]
Human Rights Committee
In its views in Karttunen v. Finland in 1992, the Human Rights Committee defined the elements of guarantees of a fair trial contained in Article 14(1) of the 1966 International Covenant on Civil and Political Rights and stated:
“Impartiality” of the court implies that judges must not harbour preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14. 
Human Rights Committee, Karttunen v. Finland, Views, 23 October 1992, § 7.2.
Human Rights Committee
In its views in Bahamonde v. Equatorial Guinea in 1993, the Human Rights Committee stated:
A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal. 
Human Rights Committee, Bahamonde v. Equatorial Guinea, Views, 20 October 1993, § 9.4.
Human Rights Committee
In its views in Espinoza de Polay v. Peru in 1997, the Human Rights Committee found a violation of Article 14 of the 1966 International Covenant on Civil and Political Rights and stated:
In a system of trial by ‘faceless judges’, neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces. 
Human Rights Committee, Espinoza de Polay v. Peru, Views, 6 October 1997, § 8(5)–(8).
Human Rights Committee
In Busyo et al. v. Democratic Republic of the Congo in 2003, the Human Rights Committee held:
The Committee notes that the authors [68 judges, who were amongst a group of 315 judges dismissed by the government of the Democratic Republic of the Congo in November 1998] have made specific and detailed allegations relating to their dismissal, which was not in conformity with the established legal procedures and safeguards… With regard to article 14, paragraph 1, of the Covenant, the Committee notes the absence of any reply from the State party and also notes, on the one hand, that the authors did not benefit from the guarantees to which they were entitled in their capacity as judges and by virtue of which they should have been brought before the Supreme Council of the Judiciary in accordance with the law, and on the other hand, that the President of the Supreme Court had publicly, before the case had been heard, supported the dismissals that had taken place … thus damaging the equitable hearing of the case. Consequently, the Committee considers that those dismissals constitute an attack on the independence of the judiciary protected by article 14, paragraph 1, of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Busyo et al. v. Democratic Republic of the Congo, Views, 19 September 2003, § 5.2.
Human Rights Committee
In Kurbanov v. Tajikistan in 2003, the Human Rights Committee stated:
As to the author’s claim that her son’s rights under article 14, paragraph 1 [of the 1966 International Covenant on Civil and Political Rights] were violated through a death sentence pronounced by an incompetent tribunal, the Committee notes that the State party has neither addressed this claim nor provided any explanation as to why the trial was conducted, at first instance, by the Military Chamber of the Supreme Court. In the absence of any information by the State party to justify a trial before a military court, the Committee considers that the trial and death sentence against the author’s son, who is a civilian, did not meet the requirements of article 14, paragraph 1. 
Human Rights Committee, Kurbanov v. Tajikistan, Views, 12 November 2003, § 7.6.
Human Rights Committee
In Mulai v. Guyana in 2004, the Human Rights Committee stated:
6.1. The Committee notes that the independence and impartiality of a tribunal are important aspects of the right to a fair trial within the meaning of article 14, paragraph 1, of the [1966 International Covenant on Civil and Political Rights]. In a trial by jury, the necessity to evaluate facts and evidence independently and impartially also applies to the jury; it is important that all the jurors be placed in a position in which they may assess the facts and the evidence in an objective manner, so as to be able to return a just verdict. On the other hand, the Committee recalls that where attempts at jury tampering come to the knowledge of either of the parties, these alleged improprieties should have been challenged before the court.
6.2 In the present case, the author submits that the foreman of the jury at the re-trial informed the police and the Chief Justice, on 26 February 1996, that someone had sought to influence him. The author claims that it was the duty of the judge to conduct an inquiry into this matter to ascertain whether any injustice could have been caused to Bharatraj and Lallman Mulai, thus depriving them of a fair trial. In addition, the author complains that the incident was not disclosed to the defence although both the judge and the prosecution were made aware of it by the foreman of the jury, and that unlike in some other trials the trial against the two brothers was not aborted as a consequence of the incident. The Committee notes that although it is not in the position to establish that the performance and the conclusions reached by the jury and the foreman in fact reflected partiality and bias against Bharatraj and Lallman Mulai, and although it appears from the material before it that the Court of Appeal dealt with the issue of possible bias, it did not address that part of the grounds of appeal that related to the right of Bharatraj and Lallman Mulai to equality before the courts, as enshrined in article 14, paragraph 1, of the Covenant and on the strength of which the defence might have moved for the trial to be aborted. Consequently, the Committee finds that there was a violation of article 14, paragraph 1, of the Covenant. 
Human Rights Committee, Mulai v. Guyana, Views, 18 August 2004, §§ 6.1–6.2.
Human Rights Committee
In Bandajevsky v. Belarus in 2006, the Human Rights Committee held:
Further in relation to article 14 [of the 1966 International Covenant on Civil and Political Rights], the author claims that he was sentenced by the Military Chamber of the Supreme Court which was sitting in an unlawful composition, as pursuant to a decision of the Supreme Council of Belarus of 7 June 1996, people’s jurors (assessors) in military courts must be in active military service, whereas in his case, only the presiding judge was a member of the military but not the jurors. The State party has not refuted this allegation and merely stated that the trial did not suffer from any procedural defect. The Committee considers that the unchallenged fact that the court that tried the author was improperly constituted means that the court was not established by law, within the meaning of article 14, paragraph 1, and thus finds a violation of this provision on this count. 
Human Rights Committee, Bandajevsky v. Belarus, Views, 18 April 2006, § 10.10.
Human Rights Committee
In Sultanova v. Uzbekistan in 2006, the Human Rights Committee held:
The Committee has noted the author’s claim that the trial of her sons was unfair, since the court did not act impartially and independently … In the absence of any pertinent State party information, the Committee concludes that the facts before it disclose a violation of article 14, paragraph[…] 1 … of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.5.
Human Rights Committee
In Larrañaga v. Philippines in 2006, the Human Rights Committee held:
As to the author’s claim that his rights were violated under article 14, paragraph 1, [of the 1966 International Covenant on Civil and Political Rights] because the trial court and the Supreme Court were not independent and impartial tribunals, the Committee notes that the trial judge and two Supreme Court judges were involved in the evaluation of the preliminary charges against the author in 1997. In the present case, the involvement of these judges in the preliminary proceedings was such as to allow them to form an opinion on the case prior to the trial and appeal proceedings. This knowledge is necessarily related to the charges against the author and the evaluation of those charges. Therefore, the involvement of these judges in these trial and appeal proceedings is incompatible with the requirement of impartiality in article 14, paragraph 1. 
Human Rights Committee, Larrañaga v. Philippines, Views, 14 September 2006, § 7.9.
Human Rights Committee
In Abbassi v. Algeria in 2007, the Human Rights Committee stated:
As far as the alleged violation of article 14 of the [1966 International Covenant on Civil and Political Rights] is concerned, the Committee recalls its general comment No. 13, in which it states that, while the Covenant does not prohibit the trial of civilians in military courts, nevertheless such trials should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. It is incumbent on a State party that does try civilians before military courts to justify the practice. The Committee considers that the State party must demonstrate, with regard to the specific class of individuals at issue, that the regular civilian courts are unable to undertake the trials, that other alternative forms of special or high-security civilian courts are inadequate to the task and that recourse to military courts is unavoidable. The State party must further demonstrate how military courts ensure the full protection of the rights of the accused pursuant to article 14. In the present case the State party has not shown why recourse to a military court was required. In commenting on the gravity of the charges against Abbassi Madani it has not indicated why the ordinary civilian courts or other alternative forms of civilian court were inadequate to the task of trying him. Nor does the mere invocation of domestic legal provisions for the trial by military court of certain categories of serious offences constitute an argument under the Covenant in support of recourse to such tribunals. The State party’s failure to demonstrate the need to rely on a military court in this case means that the Committee need not examine whether the military court, as a matter of fact, afforded the full guarantees of article 14. The Committee concludes that the trial and sentence of Abbassi Madani by a military tribunal discloses a violation of article 14 of the Covenant. 
Human Rights Committee, Abbassi v. Algeria, Views, 21 June 2007, § 8.7.
Human Rights Committee
In Benhadj v. Algeria in 2007, the Human Rights Committee stated:
8.6 With regard to the alleged violation of article 14 of the [1966 International Covenant on Civil and Political Rights], the author has argued that the composition of the court violated the requirements of a fair trial; that Ali Benhadj’s trial was closed to the public, without any legal justification being provided or an in-camera trial being ordered; and that some of his lawyers were not allowed to appear before the court.
8.7 With regard to the jurisdiction of the military court to hear the case, the State party points out that military courts can try offences against State security when the penalty exceeds five years of imprisonment, in accordance with article 25 of Ordinance No. 71-28 of 22 April 1971. The Committee notes that Ali Benhadj was represented before the military court and that he filed an application for judicial review with the Supreme Court, which upheld the military court’s decision. With regard to the fact that the trial was not public, the Committee notes that the State party did not respond to the author’s allegations other than by stating that the allegation was “completely inaccurate”. Lastly, as regards the allegation that some of the lawyers were unable to attend the trial, the State party submitted that Ali Benhadj and his co-defendants were assisted by 19 lawyers during the investigation and trial, and by 8 lawyers before the Supreme Court.
8.8 With regard to the alleged violation of article 14 of the Covenant, the Committee recalls its general comment No. 13, in which it states that, while the Covenant does not prohibit the trial of civilians in military courts, nevertheless such trials should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. It is incumbent on a State party that does try civilians before military courts to justify the practice. The Committee considers that the State party must demonstrate, with regard to the specific class of individuals at issue, that the regular civilian courts are unable to undertake the trials, that other alternative forms of special or high-security civilian courts are inadequate to the task and that recourse to military courts ensures the full protection of the rights of the accused pursuant to article 14. The State party must further demonstrate how military courts ensure the full protection of the rights of the accused pursuant to article 14. In the present case the State party has not shown why recourse to a military court was required. In commenting on the gravity of the charges against Mr. Benhadj, it has not indicated why the ordinary civilian courts or other alternative forms of civilian court were inadequate to the task of trying him. Nor does the mere invocation of domestic legal provisions for the trial by military court of certain categories of serious offences constitute an argument under the Covenant in support of recourse to such tribunals. The State party’s failure to demonstrate the need to rely on a military court in this case means that the Committee need not examine whether the military court, as a matter of fact, afforded the full guarantees of article 14. The Committee concludes that the trial and sentence of Mr. Benhadj by a military court discloses a violation of article 14 of the Covenant. 
Human Rights Committee, Benhadj v. Algeria, Views, 26 September 2007, §§ 8.6–8.8.
African Commission for Human and Peoples’ Rights
In its decision in Constitutional Rights Project v. Nigeria (60/91) in 1995, the African Commission for Human and Peoples’ Rights stated:
The [national law under consideration] describes the constitution of the tribunals, which shall consist of three persons: one judge, one officer of the Army, Navy or Air Force and one officer of the Police Force. Jurisdiction has thus been transferred from the normal courts to a tribunal chiefly composed of persons belonging to the executive branch of government, the same branch that passed the [law under consideration], whose members do not necessarily possess any legal expertise. [Article 7(1)(d) of the 1981 African Charter on Human and Peoples’ Rights] requires the court or tribunal to be impartial. Regardless of the character of the individual members of such tribunals, its composition alone creates the appearance, if not actual lack of impartiality. It thus violates [Article 7(1)(d)]. 
African Commission for Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria (60/91), Decision, 13–22 March 1995, § 8.
African Commission for Human and Peoples’ Rights
In its decision in Centre For Free Speech v. Nigeria (206/97) in 1999, the African Commission for Human and Peoples’ Rights stated:
15. The issue of the arraignment and trial of the Journalists must also be addressed here. The complainant alleges that the Journalists were arraigned, tried and convicted by a Special Military Tribunal, presided over by a serving military officer and whose membership also included some serving military officers. This is in violation of the provisions of Article 7 of the [1981 African Charter on Human and Peoples’ Rights] and Principle 5 of the [1985 Basic Principles on the Independence of the Judiciary].
16. It could not be said that the trial and conviction of the four Journalists by a Special Military Tribunal presided over by a serving military officer who is also a member of the PRC [Provisional Ruling Council], the body empowered to confirm the sentence, took place under conditions which genuinely afforded the full guarantees of fair hearing as provided for in article 7 of the [1981 African Charter on Human and Peoples’ Rights]. The above act is also in contravention of Article 26 of the [1981 African Charter on Human and Peoples’ Rights]. 
African Commission for Human and Peoples’ Rights, Centre For Free Speech v. Nigeria (206/97), Decision, 15 November 1999, §§ 15–16.
African Commission for Human and Peoples’ Rights
In its decision in Malawi African Association and Others v. Mauritania in 2000, which concerned the trial of military and civilian persons by a special court consisting of army officers, the African Commission for Human and Peoples’ Rights stated:
Withdrawing criminal procedure from the competence of the Courts established within the judicial order and conferring onto an extension of the executive necessarily compromises the impartiality of the Courts, to which the African Charter refers. Independent of the qualities of the persons sitting in such jurisdictions, their very existence constitutes a violation of the principles of impartiality and independence of the judiciary and, thereby, of article 7, 1 (d) [of the 1981 African Charter on Human and Peoples’ Rights]. 
African Commission for Human and Peoples’ Rights, Malawi African Association and Others v. Mauritania (54/91), Decision, 11 May 2000, § 98.
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, with regard to the question whether a (military) tribunal, composed of military personnel as judges, meets the requirements of Article 7 of the 1981 African Charter on Human and Peoples’ Rights, stated:
25. The issues brought before the Commission have to be judged in the environment of a military junta and serving military officers accused of offences punishable in terms of military discipline in any jurisdiction. This caution has to be applied especially as pertaining to serving military officers. The civilian accused is part of the common conspiracy and as such it is reasonable that he be charged with his military co-accused in the same judicial process. We are making this decision conscious of the fact that Africa continues to have military regimes who are inclined to suspend the constitution, govern by decree and seek to oust the application of international obligations …
27. 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 especially under an unaccountable, undemocratic military regime … It is noted that [military or special courts trying civilians] could present serious problems as far as equitable, impartial and independent administration of justice is concerned. Such courts are resorted to in order to justify recourse to exceptional measures which do not comply with normal procedures … 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.
43. The communication alleges that the composition of the tribunal which was presided over by a serving military officer did not meet the requirement of an independent and impartial judicial panel to try the accused, and therefore a violation of Article 7(1)(d) of the Charter …
44. It has been stated elsewhere in this decision, that a military tribunal per se is not offensive to the rights in the Charter nor does it imply an unfair or unjust process. We make the point that Military Tribunals must be subject to the same requirements of fairness, openness, and justice, independence, and due process as any other process. What causes offence is failure to observe basic or fundamental standards that would ensure fairness. As that matter has been dealt with above, it is not necessary to find that a tribunal presided over by a military officer is a violation of the Charter. It has already been pointed out that the military tribunal fails the independence test. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (218/98), Decision, 23 April–7 May 2001, §§ 25, 27 and 43–44.
European Court of Human Rights
In its judgment in the Piersack case in 1982, the European Court of Human Rights held that “impartiality” in Article 6(1) of the 1950 European Convention on Human Rights meant, inter alia, a lack of prejudice or bias and that there were two aspects to this requirement: “First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.” 
European Court of Human Rights, Piersack case, Judgment, 1 October 1982, §§ 28–34; see also De Cubber case, Judgment, 26 October 1984, §§ 24–26 and Findlay v. UK, Judgment, 25 February 1997, § 73.
European Court of Human Rights
In its judgment in the Belilos case in 1988, the European Court of Human Rights gave the following definition of a tribunal:
“Tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner … It must also satisfy a series of further requirements – independence, in particular of the executive; impartiality; duration of its members’ term of office; guarantees afforded by its procedure – several of which appear in the text of Article 6(1) [of the 1950 European Convention on Human Rights] itself. 
European Court of Human Rights, Belilos case, Judgment, 29 April 1988, § 64.
European Court of Human Rights
In Holm v. Sweden before the European Court of Human Rights in 1993, the applicant alleged that:
Owing to the participation of five active SAP [Swedish Social Democratic Workers Party] members in the jury at the District Court of Stockholm, his case had not been heard by “an independent and impartial tribunal” within the meaning of [Article 6(1) of the 1950 European Convention on Human Rights].
In its judgment, the European Court of Human Rights held:
30. In determining whether the District Court could be considered “independent and impartial”, the Court will have regard to the principles established in its own case-law … which apply to jurors as they do to professional judges and lay judges. Like the Commission, it finds it difficult in this case to examine the issues of independence and impartiality separately …
31. It is only the independence and the objective impartiality of the five jurors who were affiliated to the SAP which are in issue; the applicant did not contest their subjective impartiality, finding it impracticable to do so in view of the secrecy of each juror’s vote …
It is undisputed that the jurors in question were elected in the prescribed manner by the competent elective body, in conformity with the legal conditions for eligibility: namely that the persons concerned be known to be independent and fair-minded and to have sound judgment and also that different social groups and currents of opinion as well as geographical areas be represented among the jurors … The jury was constituted by the drawing of lots after each party to the proceedings had had an opportunity to express its views on the existence of grounds for disqualification of any of the jurors on the list and to exclude an equal number of jurors … It was also possible for the parties to appeal to the Court of Appeal against decisions by the District Court on requests for disqualification, and the applicant, albeit unsuccessfully, availed himself of this remedy … Before participating in the trial, each juror had to take an oath to the effect that he or she was to carry out the tasks to the best of his or her abilities and in a judicial manner …
32. … Nevertheless, it is to be noted that there were links between the defendants and the five jurors who had been challenged by the applicant which could give rise to misgivings as to the jurors’ independence and impartiality. The jurors in question were active members of the SAP who held or had held offices in or on behalf of the SAP …
33. Having regard to the foregoing, the Court considers that the independence and impartiality of the District Court were open to doubt and that the applicant’s fears in this respect were objectively justified. Moreover, since the Court of Appeal’s jurisdiction, like that of the District Court, was limited by the terms of the jury’s verdict, the defect in the proceedings before the latter court could not have been cured by an appeal to the former …
In sum, there has been a violation of Article 6 para. 1 … in the particular circumstances of the present case. 
European Court of Human Rights, Holm v. Sweden, Judgment, 25 November 1993, §§ 30–33; see also Inter-American Commission on Human Rights, Case 11.139 (US), Report, 6 December 1996, § 168.
European Court of Human Rights
In its judgment in Findlay v. UK in 1997 concerning the trial of a soldier by court martial for breaches of military discipline and criminal offences, the European Court of Human Rights stated:
73. The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence …
As to the question of “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect …
74. The Court observes that the convening officer … played a significant role before the hearing of Mr Findlay’s case. He decided which charges should be brought and which type of court martial was most appropriate. He convened the court martial and appointed its members and the prosecuting and defending officers …
75. The question therefore arises whether the members of the court martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality.
… It is noteworthy that all the members of the court martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the president, were directly or ultimately under his command … Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court martial either before or during the trial …
76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court martial which decided Mr Findlay’s case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay’s doubts about the tribunal’s independence and impartiality could be objectively justified …
77. In addition, the Court finds it significant that the convening officer also acted as “confirming officer”. Thus, the decision of the court martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit … This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of “tribunal” and can also be seen as a component of the “independence” required by Article 6 para. 1 [of the 1950 European Convention on Human Rights]. 
European Court of Human Rights, Findlay v. UK, Judgment, 25 February 1997, §§ 73–77; see also Ringeisen case, Judgment, 16 July 1971, § 95; Campbell and Fell case, Judgment, 28 June 1984, § 78 and Benthem case, Judgment, 23 October 1985, §§ 41–43.
European Court of Human Rights
In its judgment in Ciraklar v. Turkey in 1998, which concerned the trial by the Turkish State Security Court of a student arrested during a demonstration, the European Court of Human Rights reiterated its view that appearances mattered in that ascertainable facts might give rise to legitimate doubts as to the independence and impartiality of a tribunal. In this case, a violation was found because the judges belonged to the army and were subject to military discipline, their designation and appointment required the intervention of the army administration and they only received a four-year renewable mandate. The Court stated: “What is decisive is whether the fear [of non-independence or non-impartiality] can be held to be objectively justified.” 
European Court of Human Rights, Ciraklar v. Turkey, Judgment, 28 October 1998, § 38.
European Court of Human Rights
In its judgment in the Cyprus case in 2001, the European Court of Human Rights stated:
For the Court, examination in abstracto of the impugned “constitutional provision” and the “Prohibited Military Areas Decree” leads it to conclude that these texts clearly introduced and authorised the trial of civilians by military courts. It considers that there is no reason to doubt that these courts suffer from the same defects of independence and impartiality which were highlighted in its Incal v. Turkey judgment in respect of the system of National Security Courts established in Turkey by the respondent State (…), in particular the close structural links between the executive power and the military officers serving on the “TRNC” [“Turkish Republic of Northern Cyprus”] military courts. In the Court’s view, civilians in the “TRNC” accused of acts characterised as military offences before such courts could legitimately fear that they lacked independence and impartiality.
The Court concluded that there had been a violation of Article 6 of the 1950 European Convention on Human Rights “on account of the legislative practice of authorising the trial of civilians by military courts”. 
European Court of Human Rights, Cyprus case, Judgment, 10 May 2001, §§ 358–359.
European Court of Human Rights
In its judgment in Sahiner v. Turkey in 2001 concerning the trial of a civilian by a martial law court composed of two civilian judges, two military officers and an army officer, the European Court of Human Rights stated:
45. The Court considers in this connection that where, as in the present case, a tribunal’s members include persons who are in a subordinate position, in terms of their duties and the organisation of their service, vis-à-vis one of the parties, accused persons may entertain a legitimate doubt about those persons’ independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society … In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces …
46. In the light of the foregoing, the Court considers that the applicant – tried in a Martial Law Court on charges of attempting to undermine the constitutional order of the State – could have legitimate reason to fear about being tried by a bench which included two military judges and an army officer acting under the authority of the officer commanding the state of martial law. The fact that two civilian judges, whose independence and impartiality are not in doubt, sat on that court makes no difference in this respect …
47. In conclusion, the applicant’s fears as to the Martial Law Court’s lack of independence and impartiality can be regarded as objectively justified.
There has accordingly been a violation of Article 6 § 1 [of the 1950 European Convention on Human Rights]. 
European Court of Human Rights, Sahiner v. Turkey, Judgment, 25 September 2001, §§ 45–47.
Inter-American Commission on Human Rights
In its Annual Report 1992–1993, the Inter-American Commission on Human Rights discussed the principles that member States should apply in order to satisfy the requirements of judicial independence and impartiality. The list included:
a) guaranteeing the judiciary freedom from interference by the executive and legislative branches;
b) providing the judiciary with the necessary political support for performing its functions;
c) giving judges security of tenure;
d) preserving the rule of law and declaring states of emergency only when necessary and in strict conformity with the requirements of the American Convention;
e) returning to the judiciary responsibility for the disposition and supervision of detained persons. 
Inter-American Commission on Human Rights, Annual Report 1992–1993, Doc. OEA/Ser.L/V/II.83 Doc. 14, 12 March 1993, p. 207.
Inter-American Commission on Human Rights
In its report in a case concerning Peru in 1994, the Inter-American Commission on Human Rights stated that a Special Military Court was not an independent and impartial tribunal inasmuch as it was subordinate to the Ministry of Defence and thus to the executive. 
Inter-American Commission on Human Rights, Case 11.084 (Peru), Report, 30 November 1994, Section V(3).
Inter-American Commission on Human Rights
In its report in a case concerning Peru in 1995, the Inter-American Commission on Human Rights referred to the Campbell and Fell case before the European Court of Human Rights and held that the determination of whether a court is independent of the executive depends on the “manner of appointment of its members, the duration of their terms … [and] the existence of guarantees against outside pressures”. The Commission further noted the jurisprudence of the European Court of Human Rights and stated: “The irremovability of judges … must … be considered a necessary corollary of their independence.” 
Inter-American Commission on Human Rights, Case 11.006 (Peru), Report, 7 February 1995, Section VI(2)(a).
Inter-American Commission on Human Rights
In its report in a case concerning Peru in 1996, the Inter-American Commission on Human Rights stated in relation to the meaning of “impartiality”:
Impartiality presumes that the court or judge does not have preconceived opinions about the case sub judice and, in particular, does not presume the accused to be guilty. For the European Court, the impartiality of the judge is made up of subjective and objective elements. His subjective impartiality in the specific case is presumed as long as there is no evidence to the contrary. Objective impartiality, on the other hand, requires that the tribunal or judge offer sufficient guarantees to remove any doubt as to their impartiality in the case. 
Inter-American Commission on Human Rights, Case 10.970 (Peru), Report, 1 March 1996, Section V(B)(3)(c).
Inter-American Court of Human Rights
In its judgment in the Castillo Petruzzi and Others case in 1999, the Inter-American Court of Human Rights stated:
132. In the instant case, the Court considers that the military tribunals that tried the alleged victims for the crimes of treason did not meet the requirements implicit in the guarantees of independence and impartiality that Article 8(1) of the [1969 American Convention on Human Rights] recognizes as essentials of due process of law.
133. What is more, because judges who preside over the treason trials are “faceless,” defendants have no way of knowing the identity of their judge and, therefore, of assessing their competence. Compounding the problem is the fact that the law does not allow these judges to recuse themselves.
134. The Court therefore finds that the State violated Article 8(1) of the [1969 American Convention on Human Rights]. 
Inter-American Court of Human Rights, Castillo Petruzzi and Others case, Judgment, 30 May 1999, §§ 132–134.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The conviction must be pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202.
ICRC
In a press release issued in 1994 in the context of the conflict in Chechnya, the ICRC urged the parties to ensure that “no sentence was passed and no penalty executed without a judgement pronounced by a court offering essential guarantees of independence and impartiality”. 
ICRC, Press Release No. 1793, Chechnya: ICRC urges respect for humanitarian rules, 28 November 1994.
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