Practice Relating to Rule 100. Fair Trial Guarantees

European Convention on Human Rights
Article 6(2) of the 1950 European Convention on Human Rights provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 
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(2).
International Covenant on Civil and Political Rights
Article 14(2) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(2).
American Convention on Human Rights
Article 8(2) of the 1969 American Convention on Human Rights provides: “Every person accused of a criminal offence has the right to be presumed innocent so long as his guilt has not been proven according to law.” 
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(2).
Additional Protocol I
Article 75(4)(d) of the 1977 Additional Protocol I provides: “Anyone charged with an offence is presumed innocent until proved guilty according to law.” 
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)(d). 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)(d) of the 1977 Additional Protocol II provides: “Anyone charged with an offence is presumed innocent until proved guilty according to law.” 
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)(d). 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) of the 1981 African Charter on Human and Peoples’ Rights provides: “Every individual shall have the right to have his cause heard. This comprises: … the right to be presumed innocent until proved guilty by a competent 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).
Convention on the Rights of the Child
Article 40(2)(b)(i) of the 1989 Convention on the Rights of the Child provides: “Every child alleged or accused of having infringed the penal law has at least the following guarantees: (i) to be presumed innocent until proven guilty according to the law”. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b)(i).
ICC Statute
Article 66 of the 1998 ICC Statute, entitled “Presumption of innocence”, provides:
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. 
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 66.
Statute of the Special Court for Sierra Leone
Article 17(3) of the 2002 Statute of the Special Court for Sierra Leone states: “The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.” 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(3).
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 12
Procedure
2. The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party …
Article 13
Rights of the accused
1. The rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected throughout the trial process. Such rights shall, in particular, include the right: … to be presumed innocent until proved guilty. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Articles 12(2) and 13(1).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Articles 15 and 16 of the 2007 Statute of the Special Tribunal for Lebanon provide:
Article 15
Rights of suspects during investigation
He or she shall have the following rights of which he or she shall be informed by the Prosecutor prior to questioning, in a language he or she speaks and understands:
(b) The right to remain silent, without such silence being considered in the determination of guilt or innocence, and to be cautioned that any statement he or she makes shall be recorded and may be used in evidence;
Article 16
Rights of the accused
3. (a) The accused shall be presumed innocent until proved guilty according to the provisions of this Statute;
(b) The onus is on the Prosecutor to prove the guilt of the accused;
(c) In order to convict the accused, the relevant Chamber must be convinced of the guilt of the accused beyond reasonable doubt. 
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, Articles 15(b) and 16(3).
American Declaration on the Rights and Duties of Man
Article XXVI of the 1948 American Declaration on the Rights and Duties of Man states: “Every accused person is presumed innocent until proven guilty.” 
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 11 of the 1948 Universal Declaration of Human Rights provides: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.” 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 11.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 36 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides:
A detained person suspected of or charged with a criminal offence shall be presumed innocent and shall be treated as such until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 36.
Cairo Declaration on Human Rights in Islam
Article 19 of the 1990 Cairo Declaration on Human Rights in Islam states: “A defendant is innocent until his guilt is proven in a fair trial.” 
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 19.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8 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 “to be presumed innocent until proved guilty”. 
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.
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.
ICTY Statute
Article 21(3) of the 1993 ICTY Statute provides: “The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 21(3).
ICTR Statute
Article 20(3) of the 1994 ICTR Statute provides: “The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 20(3).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind “shall be presumed innocent until proved guilty”. 
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).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(9) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines states that all accused persons have the right “to be presumed innocent until proven guilty”. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(9).
EU Charter of Fundamental Rights
Article 48(1) of the 2000 EU Charter of Fundamental Rights provides: “Everyone who has been charged shall be presumed innocent until proven guilty according to law.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 48(1).
Argentina
Argentina’s Law of War Manual (1989) provides that presumption of innocence is a fundamental judicial guarantee which applies to prisoners of war and civilians in occupied territories. 
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, § 3.30 (POWs), § 4.15 (civilians) and § 5.09 (occupied territory).
The presumption of innocence is also a fundamental guarantee in situations of non-international armed conflict. 
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.
Canada
Canada’s LOAC Manual (1999) provides that in non-international armed conflicts, “accused persons shall be presumed innocent until proved guilty according to law”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(d).
Canada
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “As a minimum, accused persons: … d. shall be presumed innocent until proved guilty according to law”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.d.
Colombia
Colombia’s Basic Military Manual (1995) provides that in both international and non-international armed conflicts, civilians benefit from the right to be presumed innocent. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 24.
Colombia
Colombia’s Instructors’ Manual (1999) provides: “Any person is presumed innocent until he is judicially declared guilty.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 10.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states: “The fundamental principles concerning detention [include] … the presumption of innocence”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 45.
The manual also states with regard to “children in the justice system” that “the presumption of innocence must be retained against minors”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, pp. 25–26.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Judicial procedure must be regular, that is, it must include at least the following guarantees: … the accused must be presumed innocent.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 191.
In a section on the obligations of the occupying power under the 1949 Geneva Convention IV, the manual also states:
C. Judicial procedure must be regular, that is, it must include at least the following guarantees:
c. the accused must be presumed innocent. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(C)(c).
New Zealand
New Zealand’s Military Manual (1992) provides: “Anyone charged with an offence is presumed innocent until proved guilty according to law.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(d).
With respect to non-international armed conflicts, the manual states: “An accused is to be presumed innocent until proved guilty according to the law.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1815(1)(d).
Pakistan
The Manual of Pakistan Military Law (1987) states:
At the outset of deliberations, the court must remember that the accused is presumed to be innocent until he is proved to be guilty, and that the burden of proof rests upon the prosecution. Unless, therefore, the guilt of the accused has been established beyond reasonable doubt, the accused must be acquitted, as the prosecution has failed to sustain adequately the burden of proving his guilt. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 42.
The manual further states that members of courts martial must remember: “It is a fundamental maxim of law that an accused person is presumed to be innocent until he has been proved to be guilty.” 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 601.
Peru
Peru’s IHL Manual (2004) states that “anyone charged with a criminal offence must be presumed innocent until proven guilty”. 
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.(4).
Peru
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “Presumption of innocence while culpability has not been proven.” 
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)(4), p. 251.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
While not in combat:
8. Inform the troops that a child taken in custody by government forces in an area of armed conflict should be informed of his/her constitutional rights and shall be treated humanely. Some of [these] basic rights are “the right to remain silent”, “the right to be presumed innocent until proven guilty”, “the right to be notified of the charge,” “right to counsel”, “right to presence of parents or guardian”, and the “right to confront and cross examine witnesses.” 
Philippines, Philippine Army Soldiers Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 55, § 8.
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.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … anyone charged with an offence is presumed innocent until proved guilty according to law. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the presumption of innocence until proved guilty.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
Note. Numerous pieces of domestic legislation provide for the right of the accused to be presumed innocent until found guilty of an offence.  
See, e.g., Ethiopia, Constitution, 1994, Article 20(3); Georgia, Constitution, 1995, Article 40(1); Georgia, Code of Criminal Procedure, 1998, Article 10; Kenya, Constitution, 1992, Article 77(2)(a); Kuwait, Constitution, 1962, Article 34; Kyrgyzstan, Constitution, 1993, Article 39(1); Russian Federation, Constitution, 1993, Article 49(1).
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Presumption of Innocence.
1. From the moment of the introduction of the penal action until when the criminal responsibility has been assessed by a final decision, the person is presumed innocent. Therefore decisions involving deprivations or limitations of human rights must be strictly confined to the need of collecting evidence and establishing the truth. 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 4(1).
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).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “A person shall be considered innocent of a crime until guilt has been established by a final verdict.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 3(1).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the proceedings of the Extraordinary Chambers: “The accused shall be presumed innocent as long as the court has not given its definitive judgment.” 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 35 new.
China
China’s Criminal Procedure Law (1979), as amended in 1996, states: “No person shall be found guilty without being judged as such by a People’s Court according to law”. 
China, Criminal Procedure Law, 1979, as amended in 1996, Article 12.
Colombia
Colombia’s Law on the Disciplinary Regime of the Armed Forces (2003) states: “The addressees of the present rules who are accused of a disciplinary offence must be presumed innocent until their responsibility is legally determined by a final judgment.” 
Colombia, Law on the Disciplinary Regime of the Armed Forces, 2003, Article 2.
Colombia
Colombia’s Criminal Procedure Code (2004) states:
Presumption of innocence and in dubio pro reo. Any person must be presumed innocent and must be treated as such while there is no definite judicial decision on his or her criminal responsibility.
… Any doubt which arises must be dealt with in favour of the accused. 
Colombia, Criminal Procedure Code, 2004, Article 7.
[emphasis in original]
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).
Guatemala
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states: “Presumption of innocence. The institutions established by this Law and by other legal instruments must presume adolescents to be innocent unless their participation in the acts for which they are to be held responsible has been proven.” 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Article 147.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states: “The accused shall be presumed innocent until proven guilty before the Tribunal in accordance with this law.” 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 75(4)(d), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2)(d), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
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 New Code of Criminal Procedure (2004) states:
1. Every person accused of committing a punishable offence shall be presumed innocent and treated as such until proven otherwise and he or she is found liable by a court in a final and duly reasoned sentence. …
In case of doubt regarding the criminal liability, the case shall be resolved in favour of the accused.
2. No public officer or authority may refer to a person as guilty of an offence, or provide information in this regard, until a final judgment has been handed down. 
Peru, New Code of Criminal Procedure, 2004, Article II.
Peru
Peru’s Code of Military and Police Justice (2006) states:
1. Any member of the military or the police prosecuted for the commission of a punishable offence shall be presumed innocent and must be treated as such until proven otherwise and he or she is found liable by a court in a final and duly reasoned sentence. To this end, sufficient evidence is necessary which has been obtained in an appropriate way and by complying with the procedural safeguards.
In case of doubt regarding criminal responsibility, the case shall be resolved in favour of the accused.
2. No public officer or authority may refer to a member of the military or police as guilty of an offence or provide information in this regard until a final judgment is handed down.
However, indispensable information on such a member of the military or police may be made public when necessary for his or her identification and/or capture. 
Peru, Code of Military and Police Justice, 2006, Article 153.
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”:
Article 146.- Principle of presumption of innocence
1. Every member of the military or the police accused of having committed a punishable act is considered innocent, and treated as such, as long as the contrary has not been proven and until his or her responsibility has been established by a solid and properly reasoned decision. To this end, sufficient proof of the charges, which must be obtained and processed in accordance with relevant procedural safeguards, is necessary.
In case of doubt, the criminal responsibility of an accused must be resolved in favour of the accused.
2. Until a decision has been rendered, no public official or authority may treat a member of the military or the police as guilty or may make available information to this effect.
Nevertheless, information that is strictly necessary to identify and/or capture the accused may be released. 
Peru, Military and Police Criminal Code, 2010, Article 146.
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:
- To be presumed innocent until the contrary is proved beyond reasonable doubt. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(a).
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:
a) To be presumed innocent until the contrary is proved beyond reasonable doubt.  
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26(a).
Poland
Poland’s Constitution (1997) states: “Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.” 
Poland, Constitution, 1997, Article 42(3).
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Article: 13 Guarantee of rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree Law n° 08/75 of February 12, 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda ] to Rwanda is guaranteed the following rights:
2° the accused shall be presumed innocent until proved guilty. 
Rwanda, Organic law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Article 13.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007), as amended in 2009, states:
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda … (2003) as amended to date or [l]aws relating to the Code of Criminal Procedure [(2004)] … and the [1966] International Covenant on Civil and Political Rights, as ratified by the Decree Law No. 08/75 of February 12, 1975, the accused person in the case transferred by [the] ICTR to Rwanda shall be guaranteed the following rights:
2º presumption of innocen[ce] until proved guilty. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, as amended in 2009, Article 13(2º).
Article 14: Rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree-Law n° 08/75 of 12 February 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda], by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(4) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty …
(10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section … to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency.
29. Public emergency.
(2) The President may issue a Proclamation of a state of public emergency only when—
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof. 
Sierra Leone, Constitution, 1991, Sections 23(4) and(10) and 29(2) and (5).
South Africa
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes the right –
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. 
South Africa, Constitution, 1996, as amended to 2003, Sections 35(3)(h), 37(1)(a) and (5)(c).
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)”. 
South Africa, Constitution, 1996, as amended to 2003, Section 37.
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: “Every person is presumed to be innocent until they have been convicted in a judgment that is final and legally binding.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 10(1).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
Within 48 hours of the arrest or, if the person is already deprived of his or her liberty, of properly resolving the previous matter, the Supreme Court of Justice, with the notification of the Prosecutor, carries out a hearing in which:
D) It informs the detainee that he or she is presumed innocent while his or her guilt has not been proven before the International Criminal Court. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 48.3.D; see also Articles 49.1.D and 50.3.D.
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states under the heading “Presumption of Innocence”: “An adolescent’s innocence shall be presumed until a final judicial sentence determines the existence of a criminal act, the accused’s participation [therein] and imposes a penalty.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 540.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “Any person accused of committing a punishable offence has the right to be presumed innocent and to be treated as such while proof of his or her guilt is confirmed through a final sentence.” 
Venezuela, Penal Procedure Code, 2009, Article 8.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “Any person accused of committing a punishable offence has the right to be presumed innocent and to be treated as such while proof of his or her guilt is confirmed through a final sentence.” 
Venezuela, Penal Procedure Code, 2012, Article 8; see also Explanatory Notes, p. 2.
Viet Nam
Viet Nam’s Criminal Procedure Code (2003) states: “No person shall be considered guilty until a court judgment on his/her criminality takes legal effect.” 
Viet Nam, Criminal Procedure Code, 2003, § 9.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(3) Every person who is charged with a criminal offence–
(a) shall be presumed to be innocent until he is proved or has pleaded guilty.
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(3)(a) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
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.
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(a) to be presumed innocent until proved guilty;
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 70(1)(a), 86(2)(b) and (3)(e) and 87(1) and (4).
Australia
In the Ohashi case in 1946 before the Australian Military Court at Rabaul, the judge advocate stated that the fundamental principles of justice included:
(a) Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of [the] accused or any prejudice against him.
(e) The court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty. 
Australia, Military Court at Rabaul, Ohashi case, Judgment, 23 March 1946.
Bosnia and Herzegovina
In 2006, in the Samardžija case, the Panel of the Court of Bosnia and Herzegovina stated:
The Court has applied to the Accused the presumption of innocence stated in Article 3 of the CPC BiH [Criminal Procedure Code of Bosnia and Herzegovina], which embodies a general principle of law, so that the Prosecution bears the onus of establishing the guilt of the Accused and the Prosecution must do so beyond reasonable doubt. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžija case, Judgment, 3 November 2006, p. 15.
Canada
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes committed in Rwanda in 1994. The Court held: “In Canada, the accused has the constitutional right to the presumption of innocence. Therefore, it is up to the Crown to demonstrate the accused’s guilt beyond a reasonable doubt.” 
Canada, Superior Court, Criminal Division, Province of Québec, Munyaneza case, Judgment, 22 May 2009, § 50.
Canada
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
The Law: The fundamental principles of Canadian criminal law
63. The accused is presumed to be innocent and it is for the prosecution to prove his guilt beyond reasonable doubt.
64. The presumption of innocence applies throughout the trial. It shall cease to apply only at the end of the trial, if after taking into account the totality of evidence the Crown has convinced the court beyond reasonable doubt that the accused is guilty of the crime of which he is accused. The accused is not required to prove anything in the present case.
65. The presumption of innocence applies to issues of credibility. It is not only about choosing the version of the story which appears more likely to have happened. If following the analysis of the totality of evidence, the trier of facts is not convinced beyond any reasonable doubt of the guilt of the accused, the accused must be acquitted.
66. In the case at stake, the central question is to know whether the accused actively and with the required criminal intention took part in the deadly attacks against the Tutsi which took place in the area of Kibuye from April to July 1994. Mr. Mungwarere has testified and denied any implication in these attacks. If his testimony is believed, he must be acquitted. The presumption of innocence applies. Consequently, even if Mr. Mungwarere is not believed, if his testimony raises a reasonable doubt on his participation, he must be acquitted. Likewise, if the testimony of Mr. Mungwarere is rejected, he cannot be declared guilty unless if, in light of the totality of the other evidence, the court is convinced beyond reasonable doubt of his guilt. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 63–66.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as the presumption of innocence … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.2.5.1.7
Peru
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court found:
Justifying … pre-trial detention solely with the reproachable nature and negative social consequences of the crime of terrorism would violate the principle of presumption of innocence because, as stated by the Inter-American Commission of Human Rights, justifying a person’s detention based on the degree of danger or nature of the crime “could be understood as being subjected to punishment in advance before the competent judge has had a chance to decide whether or not the person is guilty. This situation may lead to an arbitrary and twisted application of preventive detention for purposes different from those considered in the law itself.” (Report No. 02/97, para. 51).
Pre-trial detention, which restricts a person’s freedom of movement even though he or she is presumed innocent during the process, may only be imposed if for a certain reason it is considered indispensable. Consequently, its imposition can never be rendered compulsory by law. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 122.
Philippines
In its judgment in the Valencia case in 1991, the Supreme Court of the Philippines stated:
Procedural due process demands that [a] respondent lawyer should be given an opportunity to cross-examine the witnesses against him. He enjoys the legal presumption that he is innocent of the charges against him until the contrary is proved. 
Philippines, Supreme Court, Valencia case, Judgment, 26 April 1991.
Philippines
In its judgment in the Lucero case in 1991, the Supreme Court of the Philippines stated:
Basic is the rule that an accused must be presumed innocent until his guilt is established by proof beyond reasonable doubt. It simply means that the evidence must engender moral certainty or constitute that degree of proof which produces conviction in an unprejudiced mind. 
Philippines, Supreme Court, Lucero case, Judgment, 31 May 1991.
Philippines
In its judgment in the Hernandez case in 1996, the Supreme Court of the Philippines stated: “The rule prohibiting the stipulation of facts in criminal cases is grounded on the fundamental right of the accused to be presumed innocent until proven guilty, and the corollary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt.” 
Philippines, Supreme Court, Hernandez case, Judgment, 30 July 1996.
Philippines
In the Binamira case before the Supreme Court of the Philippines in 1997, in which the appellant appealed the decision of a lower court that had convicted him of the crime of robbery with homicide, the court reversed and set aside the lower court’s decision and ordered his immediate release from confinement. In doing so, the court noted:
[W]e must stress that mere suspicions and speculations can never be the bases of a conviction in a criminal case. Our Constitution and our laws dearly value individual life and liberty and require no less than moral certainty or proof beyond reasonable doubt to offset the presumption of innocence. Courts – both trial and appellate – are not called upon to speculate on who committed the crime. The task of courts, rather, is to determine whether the prosecution has submitted sufficient legally admissible evidence showing beyond reasonable doubt that a crime has been committed, and that the accused committed it. In this case, the prosecution has failed to present adequate proof demonstrating beyond reasonable doubt that Appellant Armando Binamira y Alayon was the culprit who robbed and killed Jessie Flores y Cledera. 
Philippines, Supreme Court, Binamira case, Judgment, 14 August 1997.
Philippines
In its judgment in the Cosep case in 1998, the Supreme Court of the Philippines stated:
It is axiomatic that in every criminal prosecution, if the state fails to discharge its burden of proving the guilt of the accused beyond reasonable doubt, it fails utterly. Accordingly, when the guilt of the accused has not been proven with moral certainty, it is our policy of long standing that the presumption of innocence of the accused must be favored and his exoneration be granted as a matter of right. 
Philippines, Supreme Court, Cosep case, Judgment, 21 May 1998.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
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.
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 the presumption of innocence (which implies … that the judge must form his opinion based on an evidentiary assessment carried out in full respect of the corresponding legal and constitutional exigencies). …
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
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 26 March 2007 hearing, the military judge stated:
It is also standard practice that an accused will not appear for a trial session wearing prison garb. That would refer to jumpsuits or scrubs or things of that nature.
These rules, as I would expect counsel probably know, are designed to protect the presumption of innocence on the part of the accused. The rule with regard to not appearing in prison attire is for the protection of the accused such that the court or commissioned members or a jury depending on what jurisdiction you are in, the people that are making findings with regard to guilt or innocence, would not be inferring anything adverse on the part of the accused based on them wearing some sort of prison or jail clothing. So again, this rule of court is there to buttress the presumption of innocence that an accused is afforded in these proceedings. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
376. Under the provisions of article 21 of the Code of Criminal Procedure, any person accused of an offence shall be presumed innocent until proved guilty in the manner prescribed by the Code.
377. Persons may not be presumed guilty, even if there are compelling grounds for suspicion of their guilt. Under the provisions of the Code, accused persons (suspects) shall have the benefit of any doubt which cannot be resolved through appropriate legal procedures. Similarly, they shall have the benefit of any doubt which is not resolved through the application of criminal law and the law of criminal procedure.
378. Persons charged with offences are not obliged to prove their innocence. The burden of proof of the charges and refutation of the arguments put forward in defence of the accused rests with the prosecution. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, §§ 376–378.
Chad
In 1997, in its initial report to the Committee on the Rights of the Child, Chad stated: “In the criminal sphere, articles 22–25 of the Constitution specify that all accused persons are presumed innocent until proved guilty in a proper trial offering essential guarantees for their defence.” 
Chad, Initial report to the Committee on the Rights of the Child, 24 July 1997, UN Doc. CRC/C/3/Add.50, submitted 14 January 1997, § 91.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile refers to “the guarantees of due process which, under the Constitution and the former Code of Criminal Procedure, are enjoyed by any persons charged with an offence, namely: presumption of innocence”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 211.
Finland
In 2006, in a report to the Counter-Terrorism Committee of the UN Security Council, Finland stated:
The Criminal Investigations Act (449/1987) provides that, in a criminal investigation of a suspected offence, circumstances and evidence both against the suspect and in favour of him/her must be examined and taken into account. Additionally, the suspect must be treated as not guilty during the investigation. 
Finland, Report to the Counter-Terrorism Committee of the Security Council in response to its questions on Finland’s implementation of the provisions of resolution 1624 (2005) presented in its letter of 15 May 2006, enclosure to Letter dated 14 July 2006 from the permanent representative of Finland to the United Nations addressed to the Chairman of the Counter-Terrorism Committee, annexed to UN Doc. S/2006/506, 19 July 2006, Letter dated 17 July 2006 from the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council, p. 7.
Hungary
In 2004, in its second periodic report to the Committee on the Rights of the Child, Hungary stated that “the presumption of innocence” is “a guaranteed rule” pursuant to its Criminal Procedures Act. 
Hungary, Second periodic report to the Committee on the Rights of the Child, 24 May 2005, UN Doc. CRC/C/70/Add.25, submitted 17 February 2004, § 508.
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.
Morocco
In 2004, in its fifth periodic report to the Human Rights Committee, Morocco stated: “The principle of presumption of innocence is explicitly stated in article 1 of the Code of Criminal Procedure.” 
Morocco, Fifth periodic report to the Human Rights Committee, 11 May 2004, UN Doc. CCPR/C/MAR/2004/5, submitted 10 March 2004, § 191.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated, with reference to Article 22 of the Basic Law, that “[t]he accused shall be innocent until proven guilty in a court of law”. 
Oman, Second periodic report to the Committee on the Rights of the Child, 8 May 2006, UN Doc. CRC/C/OMN/2, submitted 28 April 2005, § 23.
Pakistan
In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated:
There is a presumption of innocence in favour of all accused persons unless proved guilty. In all criminal cases, the burden of proof is on the prosecution, which must prove its case beyond any doubt to secure a conviction. In the absence of such evidence the benefit of doubt goes to the accused. 
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 390; see also § 367.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated: “Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.” 
Poland, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/POL/2004/5, 26 January 2004, § 267.
Saudi Arabia
In 2004, in its second periodic report to the Committee on the Rights of the Child, Saudi Arabia stated: “The Kingdom operates on the principle that a person is presumed innocent until proved guilty by a competent court in proceedings that have afforded him the right to a defence at all stages.”  
Saudi Arabia, Second periodic report to the Committee on the Rights of the Child, 21 April 2005, UN Doc. CRC/C/136/Add.1, submitted 12 November 2004, § 117.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro reported:
Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … presumption of innocence. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, § 153.
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 2008, the UK Army published the Aitken Report which investigated cases where members of the British Army were alleged or proven to have mistreated or killed Iraqi civilians outside the context of immediate combat operations in 2003 or early 2004. The report stated:
27. Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. …
29. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered … ; that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. 
United Kingdom, Army, The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008, §§ 27 and 29.
[footnote in original omitted]
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
Uruguay
In 2003, in its second periodic report to the Committee on the Rights of the Child, Uruguay stated that “article 74 of the Children and Adolescents Code establishes a range of guarantees of due process such as: … the presumption of innocence”. 
Uruguay, Second periodic report to the Committee on the Rights of the Child, 13 October 2006, UN Doc. CRC/C/URY/2, submitted 18 December 2003, § 78.
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. 
ECOSOC, Res. 2007/22, 26 July 2007, preamble, 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. 
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 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,
4. Stresses the importance that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he/she has had all the guarantees necessary for the defence. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and § 4, voting record: 31-1-21.
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. 
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and § 2, 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. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and § 2, 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 called upon States to make continuous efforts to strengthen the rule of law and promote democracy by:
Respecting equal protection under the law, by:
(iii) Guaranteeing the right to a fair trial and to a due process of law without discrimination, including the right to be presumed innocent until proven guilty in a court of law. 
UN Commission on Human Rights, Res. 2005/32, 19 April 2005, § 14(c)(iii), voting record: 46-0-7.
No data.
No data.
International Criminal Court
In the Katanga and Chui case before the ICC, the accused, respectively the alleged commander of the Front for Patriotic Resistance of Ituri (FRPI) and the alleged former leader of the Nationalist and. Integrationist Front (FNI) in the Democratic Republic of the Congo, were charged with jointly committing through other persons various crimes against humanity and war crimes under Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2008, the Pre-Trial Chamber stated:
62. The evidentiary threshold to be met for the purposes of the confirmation hearing cannot exceed the standard of “substantial grounds to believe”, as provided for in article 61(7) of the [1998 ICC] Statute.
63. The purpose of the confirmation hearing is to ensure that no case proceeds to trial without sufficient evidence to establish substantial grounds to believe that the person committed the crime or crimes with which he has been charged. This mechanism is designed to protect the rights of the Defence against wrongful and wholly unfounded charges.
64. Throughout the proceedings, the Chamber consistently reiterated this principle and asserted that the confirmation hearing has a limited scope and purpose and should not be seen as a “mini-trial” or a “trial before the trial.”
65. In the Decision on the Confirmation of Charges (“the Lubanga Decision”) in the case of The Prosecutor v. Thomas Lubanga Dyilo (“the Lubanga case”), the Chamber relied on internationally recognised human rights jurisprudence for its interpretation of the evidentiary standard of “substantial grounds to believe” in accordance with article 21(3) of the Statute. In the current case, the Chamber sees no compelling reason to depart from its application of the standard as established in the Lubanga case, and therefore considers that in order for the Prosecution to meet its evidentiary burden under article 61(7) of the Statute, it must present concrete and tangible evidence which “demonstrate[s] a clear line of reasoning underpinning its specific allegations”. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 62–65.
[footnotes in original omitted]
International Criminal Court
In the Bemba case before the ICC, the accused, the alleged President and Commander-in-chief of the Movement for the Liberation of Congo (MLC), was charged, inter alia, with murder, rape and torture as war crimes and as crimes against humanity, pursuant to Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2009, the Pre-Trial Chamber stated:
27. The drafters of the [1998 ICC] Statute established three different, progressively higher evidentiary thresholds for each stage of the proceedings under articles 58(1), 61(7) and 66(3) of the Statute. The nature of these evidentiary thresholds depends on the different stages of the proceedings and is also consistent with the foreseeable impact of the relevant decisions on the fundamental human rights of the person charged.
28. At the present stage of the proceedings, the Chamber shall apply the evidentiary threshold set out in article 61(7) of the Statute, namely “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”. This threshold is higher than the one required for the issuance of a warrant of arrest or summons to appear, thus protecting the suspect against wrongful prosecution and ensuring judicial economy by allowing to distinguish between cases that should go to trial from those that should not.
29. According to the Oxford Dictionary, the term “substantial” can be understood as “significant”, “solid”, “material”, “well built”, “real” and rather than “imaginary”. The Chamber concurs with the conception articulated by Pre-Trial Chamber I, namely that “for the Prosecut[or] to meet [the] evidentiary burden, [he] must offer concrete and tangible proof demonstrating a clear line of reasoning underpinning [his] specific allegations”. [ICC, Lubanga case, Decision on the confirmation of charges, §§ 37–39]
31. Lastly, in making this determination the Chamber wishes to underline that it is guided by the principle in dubio pro reo as a component of the presumption of innocence, which as a general principle in criminal procedure applies, mutatis mutandis, to all stages of the proceedings, including the pre-trial stage. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 27–29 and 31.
[footnotes in original omitted]
International Criminal Court
In its judgment in the Lubanga case in 2012, the ICC Trial Chamber I stated: “Under Article 66 of the [1998 ICC] Statute, the accused is presumed to be innocent until the Prosecutor has proved his guilt. For a conviction, each element of the particular offence charged must be established ‘beyond reasonable doubt’.” 
ICC, Lubanga case, Judgment, 14 March 2012, § 92.
(footnotes in original omitted)
International Criminal Court
In its judgment in the Ngudjolo Chui case in 2012, the ICC Trial Chamber II stated:
34. Under article 66 of the Statute, the accused is presumed to be innocent until the Prosecutor has proven his guilt. For a conviction, each element of the particular offence charged must be established “beyond reasonable doubt”.
35. The Chamber emphasises that the standard of proof “beyond reasonable doubt” must be applied to establish the facts forming the elements of the crime or the mode of liability alleged against the accused, as well as with respect to the facts which are indispensable for entering a conviction.
36. It is the Chamber’s position that the fact that an allegation is not, in its view, proven beyond reasonable doubt does not necessarily mean that the Chamber questions the very existence of the alleged fact. It simply means that it considers that there is insufficient reliable evidence to make a finding on the veracity of the alleged fact in light of the standard of proof. Accordingly, finding an accused person not guilty does not necessarily mean that the Chamber considers him or her to be innocent. Such a finding merely demonstrates that the evidence presented in support of the accused’s guilt has not satisfied the Chamber “beyond reasonable doubt”. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, §§ 34–36.
[footnotes in original omitted]
The charges against Mr Ngudjolo Chui related to war crimes and crimes against humanity. The Trial Chamber acquitted him of all the charges. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, Disposition.
International Criminal Tribunal for Rwanda
In the Ntuyahaga case before the ICTR in 1998, the accused, a senior officer in the Rwandan Army, was charged with: genocide, punishable under Article 3(2)(a) of the 1994 ICTR Statute; complicity in genocide, punishable under Article 3(2)(e) of the 1994 ICTR Statute; conspiracy to commit genocide, punishable under Article 3(2)(b) of the 1994 ICTR Statute; crimes against humanity, punishable under Article 3 of the 1994 ICTR Statute; and violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, punishable under Article 4 of the 1994 ICTR Statute. 
ICTR, Ntuyahaga case, Indictment, 26 September 1998, Counts 1–5.
The charges relating to genocide and violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II were dismissed shortly after the indictment was issued. 
ICTR, Ntuyahaga case, Decision on the Review of the Indictment, 29 September 1998.
In 1999 the Trial Chamber emphasized that “all accused persons are presumed innocent and are equal before the law, and that no distinction or ranking may be made among them on the basis of the number of counts with which they are charged”. 
ICTR, Ntuyahaga case, Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999.
International Criminal Tribunal for Rwanda
In its judgment in the Kayishema and Ruzindana case in 2001, the ICTR Appeals Chamber affirmed that “in conformity with the principle of presumption of innocence … it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt”. 
ICTR, Kayishema and Ruzindana case, Judgment on Appeal, 1 June 2001, § 107.
International Criminal Tribunal for Rwanda
In its judgment in the Rutaganda case in 2003, the ICTR Appeals Chamber stated that “the standard of proof to be applied is that of proof beyond a reasonable doubt, and that the burden of proof lies on the Prosecution … as the Accused enjoys the benefit of the presumption of innocence”. 
ICTR, Rutaganda case, Judgment on Appeal, 26 May 2003, § 172.
International Criminal Tribunal for Rwanda
In its judgment in the Imanishimwe case in 2006, the ICTR Appeals Chamber stated:
[T]he presumption of innocence requires that each fact on which an accused’s conviction is based must be proved beyond a reasonable doubt. The Appeals Chamber agrees with the Prosecution’s argument that “if facts which are essential to a finding of guilt are still doubtful, notwithstanding the support of other facts, this will produce a doubt in the mind of the Trial Chamber that guilt has been proven beyond a reasonable doubt”. Thus, if one of the links is not proved beyond a reasonable doubt, the chain will not support a conviction. 
ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006, § 175.
International Criminal Tribunal for Rwanda
In its judgment in the Rwamakuba case in 2006, the ICTR Trial Chamber stated:
Each accused is presumed innocent. Accordingly, the Prosecution bears the onus of establishing the accused’s guilt beyond reasonable doubt. The Defence does not have to adduce rebuttal evidence to the Prosecution’s case. The Prosecution will fail to discharge its persuasive burden of proof if the Defence’s evidence raises a reasonable doubt within the Prosecution’s case. This principle also applies when the accused denies commission of the crimes with which he is charged because he was not at the scene of the crime at the time of its commission: “the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi”. According to the settled jurisprudence, if the defence is reasonably possibly true, it must be successful. 
ICTR, Rwamakuba case, Judgment, 20 September 2006, § 32.
International Criminal Tribunal for Rwanda
In its judgment in the Nzabirinda case in 2007, the ICTR Trial Chamber stated that “when an accused pleads not guilty, he is presumed innocent unless guilt is established beyond reasonable doubt”. 
ICTR, Nzabirinda case, Judgment, 23 February 2007, § 10.
International Criminal Tribunal for the former Yugoslavia
In its Reasons for Decision on Assignment of Defence Counsel in the Slobodan Milošević case in 2004, the ICTY Trial Chamber reaffirmed that the accused “remains entitled to the presumption of innocence, and the Prosecution must prove the case against him beyond reasonable doubt”. 
ICTY, Slobodan Milošević case, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, § 68.
International Criminal Tribunal for the former Yugoslavia
In the Banović case before the ICTY in 2002, the accused, Predrag Banović, was charged with crimes against humanity (persecutions, murder, inhumane acts), punishable under Article 5 of the 1993 ICTY Statute, and with violations of the laws or customs of war (murder, cruel treatment) punishable under Article 3 of the 1993 ICTY Statute, for his acts while a guard at the Keraterm camp in the Prijedor municipality in 1992. 
ICTY, Banović case, Consolidated Indictment, 21 November 2002, §§ 4, 29–34, Counts 1–5.
Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charge of persecutions, punishable under Article 5(h) of the 1993 ICTY Statute. The Trial Chamber accepted the plea and entered a corresponding finding of guilt; the remaining charges were dismissed. 
ICTY, Banović case, Sentencing Judgment, 28 October 2003, §§ 9–14.
In the sentencing judgment in 2003, the Trial Chamber, assessing remorse as a possible mitigating factor, stated:
Prior to his conviction on the basis of his plea of guilty on 26 June 2003, the Accused was entitled, in full equality, to his rights under the [1993 ICTY] Statute, including his right to be presumed innocent until proven guilty. If the Accused did not accept responsibility then, he was only exercising a fundamental right recognised by the Statute. 
ICTY, Banović case, Sentencing Judgment, 28 October 2003, § 72.
The accused was sentenced to eight years of imprisonment. 
ICTY, Banović case, Sentencing Judgment, 28 October 2003, § 96, VI. Disposition.
International Criminal Tribunal for the former Yugoslavia
In the Češić case before the ICTY in 2002, Ranko Češić, a member of the Bosnian Serb Territorial Defence in Grčia, in the municipality of Brčko, north-eastern Bosnia and Herzegovina, was charged with crimes against humanity (murder, rape), punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war (murder, humiliating and degrading treatment) punishable under Article 3 of the 1993 ICTY Statute). 
ICTY, Češić case, Third Amended Indictment, 26 November 2002, §§ 12–17, Counts 1–12.
With regard to the presumption of innocence, the Trial Chamber affirmed that “an accused is presumed innocent until proven guilty”. 
ICTY, Češić case, Sentencing Judgment, 11 March 2004, § 77.
International Criminal Tribunal for the former Yugoslavia
In the Blagojević and Jokić case before the ICTY in 2003, the accused, Vidoje Blagojević and Dragan Jokić, both officers in the Army of the Republika Srpska (VRS), were charged with various crimes – including extermination, murder and persecutions on political, racial and religious grounds – allegedly committed in the Srebrenica enclave during July 1995 that resulted in the death of over 7,000 Bosnian Muslim men and the forcible transfer of more than 25,000 Bosnian Muslims. 
ICTY, Blagojević and Jokić case, Amended Joinder Indictment, 26 May 2003, §§ 54–59, Counts 1B and 2–6.
In its judgment in 2005, the Trial Chamber noted:
Article 21(3) of the [1993 ICTY] Statute provides that the Accused shall be presumed innocent until proved guilty. The Prosecution therefore bears the burden of establishing the guilt of the Accused and … the Prosecution must do so beyond reasonable doubt. In determining whether the Prosecution has done so with respect to each particular Count in the Indictment, the Trial Chamber has carefully considered whether there is any reasonable interpretation of the evidence admitted other than the guilt of the Accused. Any ambiguity or doubt has been resolved in favour of the Accused in accordance with the principle of in dubio pro reo. 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, § 18.
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, “to be presumed innocent until proved guilty according to law”. 
ICTY, Simić case, Judgment, 17 October 2003, § 678.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Hadžihasanović case in 2006, the ICTY Trial Chamber dealt with the issue of command responsibility and the alleged failure of the accused to take measures to prevent or punish unlawful acts of subordinates. With regard to the question of how to prove such a failure to act, i.e. an omission, the Trial Chamber held:
216. The question of the burden of proof flows from the principle of the presumption of innocence. Unless they plead guilty, all accused persons are presumed innocent; that presumption may be overcome by adducing evidence of a nature to establish their guilt. It follows therefore that the plaintiff, in other words the Prosecution, bears the burden to prove that an Accused has committed the crimes with which he is charged, and that burden remains with the Prosecution throughout the trial.
217. At the Tribunal as well as in common law jurisdictions, the standard of proof required to overcome the presumption of innocence of an accused in a criminal trial is that of “reasonable doubt”; the trier of fact makes a finding of guilt “beyond a reasonable doubt”. The Prosecution must meet this criteria and prove the Accused’s guilt beyond a reasonable doubt, as the Accused enjoys the presumption of innocence. Accordingly, it follows that the Accused has no onus to prove his innocence. The Prosecution, however, can meet this burden and satisfy the reasonable doubt standard through inferences.
218. Mindful of that principle, it should be observed that the Prosecution must prove each element of an Accused’s guilt beyond a reasonable doubt. Moreover, the Appeals Chamber in Blaškić recalled that in order to establish superior responsibility, the following elements must be proved beyond a reasonable doubt: the existence of a superior-subordinate relationship; the fact that the superior knew or had reason to know that the criminal act was about to be or had been committed; and the fact that the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. It follows that in a case where command responsibility under Article 7(3) of the [1993 ICTY] Statute is alleged, the Prosecution must prove the elements of that article beyond a reasonable doubt, including the superior’s failure to prevent or punish the unlawful acts of his subordinates. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 216–218.
After an analysis of French, UK and US law, case law of the European Court of Human Rights, and scholarly writing on the issue, the Trial Chamber further held:
236. After this analysis of the principle of the presumption of innocence and its limitations, the Chamber notes that while there are areas and defences where the presumption of innocence is somewhat eroded, there are no such limitations in the case at hand; the Prosecution must overcome that presumption beyond a reasonable doubt in order to prove its case.
237. In this case, the fact that the Defence for Hadžihasanović presented evidence on the measures taken flows from a burden all defendants have to answer charges and adduce evidence. This is a practical reality the Defence must deal with if it wishes to avoid a conviction.
238. The Defence for Hadžihasanović points to that reality in its Reply to the Prosecution’s Response to Motions for Acquittal. Additionally, the case of John Murray v. United Kingdom before the European Court [of Human Rights] demonstrates the limitations on an Accused’s right to silence, arguing implicitly that a passive defence can lead to a conviction. In that case, the Accused refused to answer throughout the trial. While the European Court held that silence in itself cannot be regarded as an indication of guilt, it noted that it must be ascertained in each particular case whether the evidence adduced by the prosecution is sufficiently strong to require an answer. An Accused clearly may not rely on a passive defence without risking conviction, especially when the gravity of the charges “requires an answer”.
239. From this vantage point, the Defence for Hadžihasanović has a duty to answer the charges against its client and may, in order to discharge that duty, produce documents attesting to the measures he took in order to provide, for example, a context for the case or to show that the military criminal justice system was functioning. Nevertheless, the production of such documents should in no way prejudice the Accused. While it is recognised that an Accused must answer the charges against him, the burden of proof may not be shifted, as the Prosecution suggests, where it would put the Defence for Hadžihasanović in a dead-end situation: should it produce some documents attesting to the measures taken, the Prosecution would take advantage of the weaknesses in its presentation, and should it opt for a passive defence and fail to produce documents on the measures taken, the Prosecution would use that to argue that the Accused Hadžihasanović failed to take any measures, since the Defence failed to produce any documents attesting to them.
240. The onus is clearly on the Prosecution to first prove a failure to take measures; it may not make up for its failure to discharge that duty by using “weaknesses” in the Hadžihasanović Defence case.
241. The Chamber notes that the application of the law to the facts by the Chambers of the Tribunal and the ICTR has embodied the principle according to which the Prosecution must fulfil its duty to prove an omission and in no case may rely on the Defence case to make its own.
242. Accordingly, in the case of The Prosecutor v. Juvénal Kajelijeli, the Trial Chamber held that the Accused’s testimony did not establish that he failed to punish the attackers. The Chamber also found that the Prosecution did not prove that the situation prevailing at the end of 1994 was such that the Accused, as the new burgomaster, would have had the material ability to punish the perpetrators of the massacres. The Chamber thus did not find that the Accused failed to punish the perpetrators of the massacres.
243. Similarly, the Appeals Chamber in Blaškić applied the principle according to which the Defence is obligated to present Defence evidence only if the Prosecution has successfully discharged its duty to prove the omission. Accordingly, for the crimes related to detention, the Appeals Chamber upheld the findings of the Trial Chamber in Blaškić which had found:
“…The evidence demonstrated that the accused did not duly carry out his duty to investigate the crimes and impose disciplinary measures or to send a report on the perpetrators of these crimes to the competent authorities.”
244. To arrive at that conclusion, the Trial Chamber relied on testimony referenced in footnote 1648 of the Blaškić Judgement, according to which Blaškić failed to take measures systematically to punish the crimes related to detention centres. Moreover, Blaškić himself and a deputy prosecutor who both appeared as witnesses acknowledged those facts. The Trial Chamber clearly did not rely on Blaškić’s testimony to find him guilty but considered that Blaškić had not succeeded in rebutting the evidence adduced by the Prosecution through the testimony of its witnesses. The Appeals Chamber confirmed the reasoning of the Trial Chamber:
“… the Trial Chamber’s conclusion that the Appellant knew or had reason to know that these practices were extant in those locations, and that he failed to punish the personnel responsible who were under his effective command and control, was a conclusion that a reasonable trier of fact could have made.”
245. On a different occasion during that case, the Appeals Chamber recalled the principle that the onus was on the Prosecution to establish that Blaškić had failed to take measures to punish following the attack of Vitez on 16 April 1993.
246. The Chamber considers that the Prosecution may submit any relevant evidence which has probative value in order to meet its burden to prove a negative. Furthermore, to establish guilt beyond a reasonable doubt for failure to act, the Prosecution may rely on inferences.
247. In this regard, the Prosecution may, as this Chamber recalls elsewhere in this Judgement, rely on the testimony of a witness when that witness’s credibility has not been impeached, on the content of a document tendered into evidence, or even on inferences based on a particular situation, such as a promotion given to the perpetrators of unlawful acts, or any other reward given to such subordinates. Similarly, the Chamber is of the view that conclusions from an investigation may have probative value if the methodology used during the investigation is sufficiently reliable to satisfy the requirements for a fair trial.
248. The Chamber would, however, point out that should the methodology used prove faulty and insufficiently reliable, the Defence for Hadžihasanović may in no way be expected to prove his innocence. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 236–248.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Orić case in 2006, the ICTY Trial Chamber stated:
Article 21(3) of the [1993 ICTY] Statute bestows a presumption of innocence on the Accused. The burden of establishing the guilt of the Accused lies firmly on the Prosecution. Rule 87(A) of the Rules [of Procedure and Evidence] provides that, in so doing, the Prosecution must prove beyond reasonable doubt each element of a crime with which the Accused is charged. The approach taken by the Trial Chamber has been to determine whether the ultimate weight of the admitted evidence is sufficient to establish beyond reasonable doubt the elements of the crimes charged in the Indictment, and ultimately, the guilt of the Accused. In making this determination, the Trial Chamber has carefully considered whether there is any other reasonable interpretation of the admitted evidence other than the guilt of the Accused. If so, he must be acquitted. 
ICTY, Orić case, Judgment, 30 June 2006, § 15.
In its judgment in 2008, the ICTY Appeals Chamber affirmed the Trial Chamber’s finding on the burden of proof. The Appeals Chamber held that “the standard enunciated [by the Trial Chamber in the Orić case] is a correct statement of the law applicable before this International Tribunal and the International Criminal Tribunal for Rwanda”. 
ICTY, Orić case, Judgment on Appeal, 3 July 2008, § 83.
(footnote in original omitted)
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Limaj case in 2007, the ICTY Appeals Chamber stated:
The Appeals Chamber is satisfied that the principle of in dubio pro reo, as a corollary to the presumption of innocence, and the burden of proof beyond a reasonable doubt, applies to findings required for conviction, such as those which make up the elements of the crime charged. This approach is consistent with the case-law of the International Tribunal and is a logical approach, given that, in the context of issues of fact, the principle is essentially just one aspect of the requirement that guilt must be found beyond a reasonable doubt. 
ICTY, Limaj case, Judgment on Appeal, 16 November 2007, § 21.
In his Declaration, Judge Shahabuddeen stated with regard to the interpretation of the principle of in dubio pro reo:
2. I … take the opportunity to enter a reservation on paragraph 21 of the judgement of the Appeals Chamber. That paragraph states “that the principle of in dubio pro reo, as a corollary to the presumption of innocence, and the burden of proof beyond a reasonable doubt, applies to findings required for conviction, such as those which make up the elements of the crime charged”. The statement is wide enough to imply that the principle is applicable both to questions of fact and to questions of law. If it implies that, I am content. But an understanding to that effect may be disputed on the basis of previous jurisprudence of the Tribunal, which has held that the principle does not apply to questions of law.
3. If the statement restricts the applicability of the principle to questions of fact, I would wish to consider Mettraux’s reference to “the general principle of criminal law that where there is a doubt in the interpretation of the law, that doubt should always be interpreted in favour of the accused (in dubio pro reo) …”. In Delalić, the Trial Chamber said:
The effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. This is why ambiguous criminal statutes are to be construed contra proferentem.
Also, one recalls the observation of the United States Supreme Court that there is a “familiar rule that, ‘where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant’”. Other judicial statements to that effect are legion. I believe that the principle on which they rely is subsumed by the principle of in dubio pro reo. Such statements apply that principle both to questions of fact and to questions of law.
4. By contrast, in Stakić, the Trial Chamber, referring to the principle of in dubio pro reo, said that “this principle is applicable to findings of fact and not of law”. The circumstance that no authorities were given possibly signified that the statement needed none, presumably being well established in the practice of the law.
5. Nevertheless, such material as I have seen encourages a doubt as to whether the principle is restricted to questions of fact. Probably more often than not the principle is invoked in respect of questions of fact, but I am not satisfied that it cannot apply to questions of law. However self-sufficient are rules for the interpretation of provisions of a conventional nature, the principle has to be borne in mind in the course of applying those rules; also, outside of such provisions, there can exist questions of law.
6. I appreciate the point made by my learned colleague Judge Schomburg. It is of course “the duty and noble obligation of a court itself to ascertain and apply the relevant law in the given circumstances of the case, for the law lies within the judicial knowledge of a court of law.” However, before having “judicial knowledge” of the law, the court must “ascertain” the law. In ascertaining the law, the court is guided by certain principles. These include the principle of in dubio pro reo. 
ICTY, Limaj case, Judgment on Appeal, 16 November 2007, Declaration of Judge Shahabuddeen, §§ 2–6.
In his Partially Dissenting and Separate Opinion and Declaration, Judge Wolfgang Schomburg also commented on the interpretation of the principle of in dubio pro reo:
15. The application of the principle in dubio pro reo is limited to finding of facts, including legal facts, but cannot be extended to holdings on questions of law. It is therefore, that respectfully I cannot agree with Judge Shahabuddeen in this regard.
16. It is the duty and noble obligation of a court itself to ascertain and apply the relevant law in the given circumstances of the case, for the law lies within the judicial knowledge of a court of law. There is no room for doubt in this determination.
17. Also at a domestic level, it has become settled jurisprudence that the principle of in dubio pro reo “only relates to the establishment of facts.” “[L]’adage in dubio pro reo est sans valeur pour l’interprétation des lois: son rôle est différent et a pour seul but d’imposer l’acquittement d’un délinquant contre lequel les preuves font défaut ou sont insuffisantes pour asseoir une condamnation.” In a recent judgement, the German Federal Supreme Court of Justice held that the principle “is not an evidence-rule but a principle pertaining to the decision-making, which the court can adhere to only if, after considering all the evidence, it is not convinced of the existence of a fact directly relevant to questions of guilt and legal consequences.” Both the Swiss Federal Court and the Austrian Supreme Court subscribe to the same approach.
18. It is the obligation of a court to finally interpret its own law (jura novit curia). The court must arrive at only one decisive conclusion. The court may err in this determination, which may be corrected on appeal. However, a court of law cannot leave any remaining doubts about the correct interpretation of relevant law. It is the nobile officium and task of a judge to make that final assessment.
19. In the context of the International Tribunal this means that the International Tribunal is the final interpreter of its own law, e.g. in particular its own Statute and Rules.
20. Exceptionally, however, there are also questions of fact pertaining to legal issues, i.e. legal facts. Such legal facts, e.g. the existence of a domestic statute, state practice, customary law or foreign law in general, are subject to the normal fact-finding process of the court, as the power to interpret these norms is not vested to the International Tribunal. In case of doubt on such legal facts, the International Tribunal must also decide in favour of the accused. 
ICTY, Limaj case, Judgment on Appeal, 16 November 2007, Partially Dissenting and Separate Opinion and Declaration, Judge Schomburg, §§ 15–20.
International Criminal Tribunal for the former Yugoslavia
In the Mrkšić case, two of the three accused, officers in the Yugoslav People’s Army (JNA), were convicted of, inter alia, torture as a violation of the laws or customs of war. In its judgment in the case in 2009, the ICTY Appeals Chamber set out the meaning of a “beyond reasonable doubt” standard of proof, stating:
The application of this standard relates to the principle enshrined in Rule 87(A) of the [ICTY] Rules [of Procedure and Evidence] that guilt must be proven beyond reasonable doubt. This standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt. The term “beyond reasonable doubt” connotes that the evidence establishes a particular point and it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the guilt of the accused. The test for establishing proof beyond reasonable doubt is that “the proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair or rational hypothesis which may be derived from the evidence, except that of guilt”. Tadić case, Judgement on Appeal, § 174] The standard of proof beyond reasonable doubt requires a finder of fact to be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused. 
ICTY, Mrkšić case, Judgment on Appeal, 5 May 2009, § 220; see also § 325.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, in considering the presumption of innocence, stated:
Article 17(3) of the [2002] Statute [of the Special Court for Sierra Leone] enshrines the principle that an Accused person is presumed innocent until proven guilty. The Prosecution alone bears the burden of establishing the guilt of the Accused. Each fact on which a conviction is based must be proven beyond reasonable doubt. 
SCSL, Sesay case, Judgment, 2 March 2009, § 475.
On the defence of alibi, the Trial Chamber stated:
502. … In raising the special defence of alibi, an Accused not only denies that he committed the crimes charged, but also asserts that he was present in a different location than the location where the crimes were committed. By introducing an alibi, “the defendant does no more than require the Prosecution to eliminate the reasonable possibility that the alibi is true.” [ICTY, Čelebići case, Judgement on Appeal, § 581] Thus, if the alibi is “reasonably possibly true, it must be successful.” It is, however, settled law that where the Accused has raised an alibi, the evidentiary, although not the persuasive, burden rests upon him. The implication is that he must lay an evidential foundation, on a balance of probabilities, for the defence to merit any consideration. It is not sufficient to merely assert that he was not at the scene where the crime was committed.
503. This does not shift the burden placed on the Prosecution. The “burden of proving the crimes charged beyond reasonable doubt, remains squarely on the shoulders of the Prosecution.” [ICTR, Niyitegeka case, Judgement on Appeal, § 60] The Prosecution must therefore not only rebut the validity of the alibi but also establish the guilt of the accused beyond reasonable doubt. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 502–503.
[footnotes in original omitted]
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber stated:
44. Internal Rule 21(d) [of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia] enshrines the right of an accused to be presumed innocent as long as his or her guilt has not been established. This presumption places the burden of establishing the guilt of an accused before the ECCC on the Co-Prosecutors. Internal Rule 87(1) further provides that “[i]n order to convict the accused, the Chamber must be convinced of the guilt of the accused beyond reasonable doubt.”
45. The basis of this finding is expressed differently in common law and civil law systems, and within the different language versions of Internal Rule 87(1). Cambodian law derives from civil law and, in particular, from the notion of the judge’s intime conviction. This notion is retained in the French version of Internal Rule 87(1), whereas both the Khmer and English versions of this Internal Rule state that a finding of guilt against the accused requires that the Chamber be convinced beyond a reasonable doubt. Despite these conceptual differences, the Chamber has adopted a common approach that has evaluated, in all circumstances, the sufficiency of the evidence. Upon a reasoned assessment of evidence, any doubt as to guilt was accordingly interpreted in the Accused’s favour. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 44–45.
[footnotes in original omitted]
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:
6. … Deviating from fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times.
30. According to article 14, paragraph 2 everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. It is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media should avoid news coverage undermining the presumption of innocence. Furthermore, the length of pre-trial detention should never be taken as an indication of guilt and its degree. The denial of bail or findings of liability in civil proceedings do not affect the presumption of innocence. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 6 and 30.
Human Rights Committee
In its views in Gridin v. Russia in 2000, the Human Rights Committee found a violation of the presumption of innocence because of public declarations by officials, which were given wide media coverage, presenting the accused as guilty before his conviction. 
Human Rights Committee, Gridin v. Russia, Views, 20 July 2000, § 8.3.
Human Rights Committee
In Saidova v. Tajikistan in 2004, the Human Rights Committee held:
The author further claimed that her husband’s right to be presumed innocent until proved guilty has been violated, due to the extensive and adverse pre-trial coverage by state-directed media which designated the author and his co-charged as criminals, thereby negatively influencing the subsequent court proceedings. In the absence of information or objection from the State party in this respect, the Committee decides that due weight must be given to the author’s allegations, and concludes that Mr. Saidov’s rights under article 14, paragraph 2 [of the 1966 International Covenant on Civil and Political Rights], have been violated. 
Human Rights Committee, Saidova v. Tajikistan, Views, 20 August 2004, § 6.6.
Human Rights Committee
In Arutyuniantz v. Uzbekistan in 2005, the Human Rights Committee stated:
6.2 In relation to the author’s claim that her son was not presumed innocent until proved guilty, the author has made detailed submissions which the State party has not addressed. The Committee recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol [to the 1966 International Covenant on Civil and Political Rights] that a State party should examine in good faith all allegations brought against it, and should provide the Committee with all relevant information at its disposal. The Committee does not consider that a general statement about the adequacy of the criminal proceedings in question meets this obligation. In such circumstances, due weight must be given to the author’s allegations, to the extent that they have been substantiated.
6.3 The author points to a number of circumstances which she claims demonstrate that her son did not benefit from the presumption of innocence. She states that her son’s conviction was based on the testimony of an accomplice who changed his evidence on several occasions, and who at one point confessed to the having committed the murders himself and having falsely implicated Arutyuniantz. She also states that the trial court never made a positive finding of who murdered the two victims; the decision refers to both accused striking and killing the victims with a single hammer.
6.4 The Committee also recalls its General Comment No 13, which reiterates that by reason of the principle of presumption of innocence, the burden of proof for any criminal charge is on the prosecution, and the accused must have the benefit of the doubt. His guilt cannot be presumed until the charge has been proved beyond reasonable doubt. From the information before the Committee, which has not been challenged in substance by the State party, it transpires that the charges and the evidence against the author left room for considerable doubt. Incriminating evidence against a person provided by an accomplice charged with the same crime should, in the Committee’s opinion, be treated with caution, particularly in circumstances where the accomplice has changed his account of the facts on several occasions. There is no information before the Committee that, despite their having being raised by the author’s son, the trial court or the Supreme Court took these matters into account.
6.5 The Committee is mindful of its jurisprudence that it is generally not for itself, but for the courts of States parties, to review or to evaluate facts and evidence, or to examine the interpretation of domestic legislation by national courts and tribunals, unless it can be ascertained that the conduct of the trial or the evaluation of facts and evidence or interpretation of legislation was manifestly arbitrary or amounted to a denial of justice. For the reasons set out above, the Committee considers that the author’s trial in the present case suffered from such defects.
6.6 In the absence of any explanation from the State party, the above concerns raise considerable doubt as to the author’s son’s guilt in relation to the murders for which he was convicted. From the material available to it, the Committee considers that Mr Arutyuniantz was not afforded the benefit of this doubt in the criminal proceedings against him. In the circumstances, the Committee concludes that the author’s trial did not respect the principle of presumption of innocence, in violation of article 14(2) [of the 1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Arutyuniantz v. Uzbekistan, Views, 13 April 2005, §§ 6.2–6.6.
Human Rights Committee
In Khalilov v. Tajikistan in 2005, the Human Rights Committee stated:
The Committee has noted the author’s claim, under article 14, paragraph 2 [, of the 1966 International Covenant on Civil and Political Rights], that her son’s right to be presumed innocent was violated by investigators. She contends that her son was forced to admit guilt on at least two occasions during the investigation on national television. In the absence of any information from the State party, due weight must be given to these allegations. The Committee recalls its General Comment No. 13 and its jurisprudence that it is “a duty for all public authorities to refrain from prejudging the outcome of a trial”. In the present case, it concludes that the investigating authorities failed to comply with their obligations under article 14, paragraph 2. 
Human Rights Committee, Khalilov v. Tajikistan, Views, 13 April 2005, §§ 7.4.
Human Rights Committee
In Larrañaga v. Philippines in 2006, the Human Rights Committee held:
With regard to the allegation of a violation of the presumption of innocence, the author has pointed to a number of circumstances which he claims demonstrate that he did not benefit from this presumption. The Committee is cognizant that some States require that a defence of alibi must be raised by the defendant, and that a certain standard of proof must be met before the defence is cognizable. However, here, the trial judge did not show sufficient latitude in permitting the defendant to prove this defence, and in particular, excluded several witnesses offered in the alibi defence. A criminal court may convict a person only when there is no reasonable doubt of his or her guilt, and it is for the prosecution to dispel any such doubt. In the present case, the trial judge put a number of leading questions to the prosecution which tend to justify the conclusion that the author was not presumed innocent until proven guilty. Moreover, incriminating evidence against a person provided by an accomplice charged with the same crime should, in the Committee’s opinion, be treated cautiously, particularly where the accomplice was found to lie about his previous criminal convictions, was granted immunity from prosecution, and eventually admitted to raping one of the victims. In the present case, it considers that, despite all the issues mentioned above having been raised by the author, neither the trial court nor the Supreme Court addressed them appropriately. Concerning the public statements made by senior officials portraying the author as guilty, all of which were given very extensive media coverage, the Committee refers to its General Comment No.13 on article 14 [of the 1966 International Covenant on Civil and Political Rights], where it stated that: “it is, therefore, a duty for all public authorities to refrain from pre-judging the outcome of a trial”. In the present case, the Committee considers that the authorities failed to exercise the restraint that article 14, paragraph 2, requires of them, especially taking into account the repeated intimations to the trial judge that the author should be sentenced to death while the trial proceeded. Given the above circumstances, the Committee concludes that the author’s trial did not respect the principle of presumption of innocence, in violation of article 14, paragraph 2. 
Human Rights Committee, Larrañaga v. Philippines, Views, 14 September 2006, § 7.4.
Human Rights Committee
In Ashurov v. Uzbekistan in 2007, the Human Rights Committee held:
In relation to the author’s claim that his son was not presumed innocent until proved guilty, the author has made detailed submissions which the State party has failed to address. In such circumstances, due weight must be given to the author’s allegations. The author points to many circumstances which he claims demonstrate that his son did not benefit from the presumption of innocence. The Committee recalls its jurisprudence that it is generally not for itself, but for the courts of States parties, to review or to evaluate facts and evidence, or to examine the interpretation of domestic legislation by national courts and tribunals, unless it can be ascertained that the conduct of the trial or the evaluation of facts and evidence or interpretation of legislation was manifestly arbitrary or amounted to a denial of justice. The Committee also recalls its General Comment No.13, which reiterates that by reason of the principle of presumption of innocence, the burden of proof for any criminal charge is on the prosecution, and the accused must have the benefit of the doubt. His guilt cannot be presumed until the charge has been proven beyond reasonable doubt. From the uncontested information before the Committee, it transpires that the charges and evidence against the author’s son left room for considerable doubt, while their evaluation by the State party’s courts was in itself in violation of fair trial guarantees of article 14, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights]. There is no information before the Committee that, despite their having being raised by Ashurov and his defence, these matters were taken into account either during the second trial or by the Supreme Court. In the absence of any explanation from the State party, these concerns give rise to reasonable doubts about the propriety of the author’s son’s conviction. From the material available to it, the Committee considers that Ashurov was not afforded the benefit of this doubt in the criminal proceedings against him. In the circumstances, the Committee concludes that his trial did not respect the principle of presumption of innocence, in violation of article 14, paragraph 2. 
Human Rights Committee, Ashurov v. Uzbekistan, Views, 3 May 2007, § 6.7.
Human Rights Committee
In Karimov and Nursatov v. Tajikistan in 2007, the Human Rights Committee held:
Mr. Karimov and Mr. Nursatov claim that the alleged victims’ presumption of innocence was violated, as in court they were placed in a metal cage and were handcuffed. A high ranked official publicly affirmed at the beginning of the trial that their handcuffs could not be removed because they were all dangerous criminals and could escape. The State party has not presented any observations to refute this part of the authors’ claim. In the circumstances, due weight must be given to the authors’ allegations. The Committee considers that the facts as presented reveal a violation of the alleged victims’ rights under article 14, paragraph 2, of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Karimov and Nursatov v. Tajikistan, Views, 3 May 2007, § 7.4.
African Commission for Human and Peoples’ Rights
In a resolution adopted in 1992 on the right to recourse and fair trial, the African Commission for Human and Peoples’ Rights considered that the right to fair trial included, inter alia, the following: “Persons charged with a criminal offence shall be presumed innocent until proven guilty by a competent court.” 
African Commission for Human and Peoples’ Rights, Eleventh Session, Tunis, 2–9 March 1992, Resolution on the Right to Recourse and Fair Trial, § 2(a).
African Commission for Human and Peoples’ Rights
In its decision in Pagnoulle v. Cameroon in 1997 concerning the five-year imprisonment of a Cameroonian citizen by a military tribunal, the African Commission for Human and Peoples’ Rights held: “Detention on the mere suspect that an individual may cause problems is a violation of his right to be presumed innocent.” 
African Commission for Human and Peoples’ Rights, Pagnoulle v. Cameroon, Decision, 15–24 April 1997, § 21.
African Commission for Human and Peoples’ Rights
In its decision in Malawi African Association and Others v. Mauritania in 2000, dealing with a case in which the accused refused to defend themselves in the absence of a lawyer, the African Commission for Human and Peoples’ Rights held:
In the judgement of early September 1986 … the presiding judge declared that the refusal of the accused persons to defend themselves was tantamount to an admission of guilt. In addition, the tribunal based itself, in reaching the verdicts it handed down, on the statements made by the accused during their detention in police cells, which statements were obtained from them by force. This constitutes a violation of [Article 7(1)(b) of the 1981 African Charter on Human and People’s Rights]. 
African Commission for Human and Peoples’ Rights, Malawi African Association and Others v. Mauritania (54/91), Decision, 11 May 2000, § 95.
European Court of Human Rights
In Neumeister v. Austria in 1968, the European Court of Human Rights stated:
4. The Court is of the opinion that [Article 5(3) of the 1950 European Convention on Human Rights] cannot be understood as giving the judicial authorities a choice between either bringing the accused to trial within a reasonable time or granting him provisional release even subject to guarantees. The reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of his detention. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable …
5. The Court is likewise of the opinion that, in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty.
12. The Court is of the opinion that in these circumstances the danger that Neumeister would avoid appearing at the trial by absconding was, in October 1962 in any event, no longer so great that it was necessary to dismiss as quite ineffective the taking of the guarantees which, under Article 5(3) (art. 5-3) may condition a grant of provisional release in order to reduce the risks which it entails. 
European Court of Human Rights, Neumeister v. Austria, Judgment (Merits), 27 June 1968, §§ 4, 5 and 12 of the part entitled “As to the Law”.
European Court of Human Rights
In its judgment in Allenet de Ribemont v. France in 1995, the European Court of Human Rights stated:
The Court notes that in the instant case some of the highest-ranking officers in the French police referred to Mr Allenet de Ribemont, without any qualification or reservation, as one of the instigators of a murder and thus an accomplice in that murder (see paragraph 11 above). This was clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of Article 6 para. 2 [of the 1950 European Convention on Human Rights]. 
European Court of Human Rights, Allenet de Ribemont v. France, Judgment, 10 February 1995, § 41.
Inter-American Commission on Human Rights
In its report in a case concerning Peru in 1996, the Inter-American Commission on Human Rights stated:
The essential thing is therefore that the judge who hears the case is free of any prejudice concerning the accused’s guilt and affords him the benefit of the doubt, i.e. does not condemn him until he is certain or convinced of his criminal liability, so that all reasonable doubt that the accused might be innocent is removed. 
Inter-American Commission on Human Rights, Case 10.970 (Peru), Report, 1 March 1996, § V(B9(3)(c).
Inter-American Commission on Human Rights
In its report in a case concerning Argentina in 1996, the Inter-American Commission on Human Rights found that an excessive period of pre-trial detention may violate the presumption of innocence:
The prolonged imprisonment … without conviction, with its natural consequence of undefined and continuous suspicion of an individual, constitutes a violation of the principle of presumed innocence … The substantiation of guilt calls for the formulation of a judgement establishing blame in a final sentence. If the use of that procedure fails to assign blame within a reasonable length of time and the State is able to justify further holding of the accused in pre-trial incarceration, based on the suspicion of guilt, then it is essentially substituting pre-trial detention for the punishment. 
Inter-American Commission on Human Rights, Case 11.245 (Argentina), Report, 1 March 1996, § 113; see also Case 11.205 and Others, Report, 11 March 1997, §§ 46–48.
Inter-American Court of Human Rights
In its judgment in the Suárez Rosero case in 1997, the Inter-American Court of Human Rights held:
77. This Court is of the view that the principle of the presumption of innocence-inasmuch as it lays down that a person is innocent until proven guilty- is founded upon the existence of judicial guarantees. Article 8(2) of the [1969 American Convention on Human Rights] establishes the obligation of the State not to restrict the liberty of a detained person beyond the limits strictly necessary to ensure that he will not impede the efficient development of an investigation and that he will not evade justice; preventive detention is, therefore, a precautionary rather than a punitive measure. This concept is laid down in a goodly number of instruments of international human rights law, including the International Covenant on Civil and Political Rights, which provides that preventive detention should not be the normal practice in relation to persons who are to stand trial (Art. 9(3)). This would be tantamount to anticipating a sentence, which is at odds with universally recognized general principles of law.
78. The Court considers that Mr. Suárez-Rosero’s prolonged preventive detention violated the principle of presumption of innocence, in that he was detained from June 23, 1992, to April 28, 1996, and that the order for his release issued on July 10, 1995, was only executed a year later. In view of the above, the Court rules that the State violated Article 8(2) of the American Convention. 
Inter-American Court of Human Rights, Suárez Rosero case, Judgment, 12 November 1997, §§ 77–78.
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, which include … presumed innocence until proved guilty”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(d).
ICRC
The ICRC Commentary on the Additional Protocols states: “It is a widely recognized legal principle that it is not the responsibility of the accused to prove he is innocent, but of the accuser to prove he is guilty.” 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3108.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including: “Anyone charged with an offence is presumed innocent until proved guilty according to law.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9(c), IRRC, No. 282, 1991, p. 334.