Practice Relating to Rule 100. Fair Trial Guarantees

IMT Charter (Nuremberg)
Article 16(e) of the 1945 IMT Charter (Nuremberg) provides: “A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defence, and to cross-examine any witness called by the Prosecution.” 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 16(e).
Geneva Convention III
Article 96, fourth paragraph, of the 1949 Geneva Convention III provides: “The accused shall be … permitted, in particular, to call witnesses.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 96, fourth para.
Geneva Convention III
Article 105, first paragraph, of the 1949 Geneva Convention III provides: “The prisoner of war shall be entitled … to the calling of witnesses”. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 105, first para.
Geneva Convention IV
Article 72, first paragraph, of the 1949 Geneva Convention IV provides: “Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses”. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 72, first para.
Geneva Convention IV
Article 123, second paragraph, of the 1949 Geneva Convention IV provides: “The accused internee shall be … permitted, in particular, to call witnesses”. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 123, second para.
European Convention on Human Rights
Article 6(3)(d) of the 1950 European Convention on Human Rights provides as a minimum right for any person who is charged with a criminal offence “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. 
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(3)(d).
International Covenant on Civil and Political Rights
Article 14(3)(e) of the 1966 International Covenant on Civil and Political Rights provides that, in the determination of any criminal charge, the accused is entitled as a minimum guarantee “[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(3)(e).
American Convention on Human Rights
Article 8(2)(f) of the 1969 American Convention on Human Rights states that every person accused of a criminal offence is entitled to be guaranteed “the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts”. 
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)(f).
Additional Protocol I
Article 75(4)(g) of the 1977 Additional Protocol I provides:
Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. 
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)(g). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Convention on the Rights of the Child
Article 40(2)(b)(iv) of the 1989 Convention on the Rights of the Child provides:
Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(iv) to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b)(iv).
ICC Statute
Article 67(1)(e) of the 1998 ICC Statute states that the accused is entitled:
To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 67(1)(e).
Statute of the Special Court for Sierra Leone
Article 17(4) of the 2002 Statute of the Special Court for Sierra Leone provides that the accused
shall be entitled to the following minimum guarantees, in full equality:
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. 
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(4)(e).
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 examine or have examined the witnesses against him or her.  
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
Article 16 of the 2007 Statute of the Special Tribunal for Lebanon provides:
Article 16
Rights of the accused
4. In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;
(f) To examine all evidence to be used against him or her during the trial in accordance with the Rules of Procedure and Evidence of the Special Tribunal. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 16(4)(e)–(f).
IMT Charter (Tokyo)
Article 9(d) of the 1946 IMT Charter (Tokyo) provides:
An accused shall have the right, through himself or through his counsel (but not through both), to conduct his defense, including the right to examine any witness, subject to such reasonable restrictions as the Tribunal may determine. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 9(d).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8(f) 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 examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. 
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(f).
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(4)(e) of the 1993 ICTY Statute provides that the accused shall be entitled “to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her”. 
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(4)(e).
ICTR Statute
Article 20(4)(e) of the 1994 ICTR Statute provides that the accused shall be entitled “to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her”. 
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(4)(e).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1)(f) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. 
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)(f).
Argentina
Argentina’s Law of War Manual (1969) states that prisoners of war have the right to “call witnesses”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.082.
The manual further states that the counsel for defence “can … talk with witnesses for the prosecution, including prisoners of war”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.086.
The manual also states: “Any accused has the right to assert the means of evidence necessary for his defence … including citing witnesses”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 5.029(3).
Argentina
Argentina’s Law of War Manual (1989) states that a prisoner of war has the “right to subpoena witnesses”. 
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; see also § 5.09.
Canada
Canada’s LOAC Manual (1999) provides that accused persons in occupied territory must “have the right to present evidence necessary to their defence and may, in particular, call witnesses”.  
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-7, § 57.
Canada
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers: “Accused persons have the right to present evidence necessary to their defence and may, in particular, call witnesses.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.3.
Mexico
Mexico’s Army and Air Force Manual (2009), on the obligations of the occupying power under the 1949 Geneva Convention IV, states: “The rights of defence are recognized and guaranteed in that the accused has the right to question witnesses or have them questioned, to be defended by a qualified attorney of his own choice”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(c).
New Zealand
New Zealand’s Military Manual (1992) states that in order to defend himself, the accused internee “shall be permitted, in particular, to call witnesses”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1130(1).
The manual further provides: “Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(g).
The manual also states: “Accused persons have the right to present evidence necessary to their defence and may, in particular, call witnesses.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1330(2).
Pakistan
The Manual of Pakistan Military Law (1987) states: “The accused must have full liberty of cross-examination.” 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 19; see also pp. 23, 39, 41, 44, 100–102 and 239.
Peru
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including “examination of witnesses for the prosecution”. 
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.(8).
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: “Examination of witnesses for the prosecution.” 
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)(8), 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 Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 55, § 8.
[emphasis in original]
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC are:
- All persons who are captured or under the authority of an adverse party are entitled to, as a minimum, the protection and guarantees bestowed upon prisoners of war (POW). 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13 and 16–17.
Spain
Spain’s LOAC Manual (1996) states: “Before imposing a [disciplinary] decision, the accused prisoner … can explain his conduct and defend himself, including by presenting witnesses”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.2.e.(2).
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 Military Manual (1958) provides, regarding disciplinary punishment of a prisoner of war: “He must be allowed to call witnesses.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 208.
The manual further provides that “in any judicial proceedings against him, the prisoner of war is entitled to … call witnesses” and that “Defending Counsel … must also be allowed to interview any witness for the defence, including prisoners of war”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 227.
With respect to cases of occupation, the manual states that the “accused have the right to present evidence necessary to their defence and may, in particular, call witnesses”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 571.
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 shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
The manual also provides that before awarding any disciplinary punishment to a civilian internee, “the accused must be … given an opportunity to … to defend himself. In particular, he must be allowed to call witnesses …”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.9.
In its discussion on judicial proceedings against prisoners of war, the manual states: “In good time before the trial to enable him to exercise them, the accused must be informed of his rights to … call witnesses.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.133.
In its discussion on disciplinary measures against prisoners of war, the manual states: “Before any disciplinary award is announced, the accused … must be allowed to call witnesses.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.125.
Furthermore, in its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … personal presence at the trial including the facility to present necessary evidence for the defence, calling witnesses as required”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
Lastly, in its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the attendance of both prosecution and defence witnesses.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
United States of America
The US Field Manual (1956) reproduces Articles 96 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172 and 181.
The manual also uses the same wording as Article 123 of the 1949 Geneva Convention IV regarding disciplinary punishments and Article 72 of the 1949 Geneva Convention IV concerning situations of occupation. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 330 and 441.
United States of America
The US Air Force Pamphlet (1976) provides that Article 105 of the 1949 Geneva Convention III “gives the right to [the prisoner of war] … to the calling of witnesses”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet also states: “Among other rights, accused persons are assured the right to … call witnesses”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
United States of America
The US Air Force Commander’s Handbook (1980) states that in case of trial, prisoners must “be allowed to call witnesses for the defense”. 
United States Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
United States of America
The US Manual for Military Commissions (2007) states:
Calling and interrogation of witnesses by the military commission
(a) Calling by the military commission. The military judge may, sua sponte, or at the request of the members or the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. When the members wish to call or recall a witness, the military judge shall determine, after hearing the position of the parties on the question, whether it is appropriate to do so under these rules or this Manual. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 614(a), p. III-46.
United States of America
The US Manual for Military Commissions (2010) states:
Pleas
(c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:
(3) That the accused has the right … to confront and cross-examine witnesses who testify against the accused. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910(c)(3), pp. II-101 and II-102.
The manual also states:
Production of statements of witnesses
(a) Motion for production. After a witness other than the accused has testified on direct examination, the military judge, on motion of a party who did not call the witness, shall order the party who called the witness to produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is:
(1) In the case of a witness called by the trial counsel, known to trial counsel or, in the exercise of due diligence, may become known to trial counsel; or
(2) In the case of a witness called by the defense, in the possession of the accused or defense counsel. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 914, p. II-110.
The manual further states:
Calling and interrogation of witnesses by the military commission
(a) Calling by the military commission. The military judge may, sua sponte, or at the request of the members or the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. When the members wish to call or recall a witness, the military judge shall determine, after hearing the position of the parties on the question, whether it is appropriate to do so under these rules or this Manual. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 614(a), p. III-50.
Note. Numerous pieces of domestic legislation provide for the right to call witnesses. 
See, e.g., Ethiopia, Constitution, 1994, Article 20(4); Georgia, Constitution, 1995, Article 42(6); Kenya, Constitution, 1992, Article 77(2)(e); Mexico, Constitution, 1917, Article 20(IV).
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Article 51. Admission of Witnesses and Experts.
2. The accused and/or his defence counsel have the right to present their own lists of witnesses and experts, indicating … the relevance of their testimony and [examinations].
Article 53. Conduct of the Hearing.
3. The Court proceedings are conducted according to the following order:
g. The … accused or his defence counsel may ask questions of the witnesses and the experts;
Article 55. Evidentiary Value of Investigative Activities.
1. The records of the testimonies of the witnesses as well as of the expert [examinations], collected during the investigative phase, may have the value of evidence as basis for the decision only if … the accused and/or his defence counsel were present during the [gathering of that information] and were in a position to raise questions and make objections. 
Afghanistan, Interim Criminal Procedure Code, 2004, Articles 51(2), 53(3)(g) and 55(1).
Afghanistan
Afghanistan’s Juvenile Code (2005) states: “The court may not prevent anyone from providing testimonies that yield information about [the] psychological development of the child, his [or] her personality and living environment in the court.” 
Afghanistan, Juvenile Code, 2005, Article 34(3).
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Article 32. Access to Witnesses and Evidence.
The prosecutor, the accused, and his defence counsel have equal rights before the law and [the] court to obtain lawful witnesses …
The procedure … [for obtaining] testimony … shall be performed in conformity [with] the provisions of the Interim Criminal Procedure Code for the courts.
Article 41. Procedure of Trial Proceeding[s].
(2) The accused and his defence counsel have the right in the judicial sessions to ask the witnesses and any expert witness for necessary explanations. 
Afghanistan, Military Criminal Procedure Code, 2010, Articles 32 and 41(2).
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or [who are] serv[ing] a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “Direct examination, cross-examination and redirect examination [of witnesses] shall always be permitted.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 262(1); see also Article 259.
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:
In determining charges against the accused, the accused shall be equally entitled to the following minimum guarantees, in accordance with Article 14 of the International Covenant on Civil and Political Rights.
e. to examine evidence against them and obtain the presentation and examination of evidence on their behalf under the same conditions as evidence against them. 
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:
The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified. If a court discovers through investigation that a witness has intentionally given false testimony or concealed criminal evidence, it shall handle the matter in accordance with law. 
China, Criminal Procedure Law, 1979, as amended in 1996, Article 47.
Colombia
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
k) to have a public, oral, adversarial, and impartial trial … in which the accused himself or herself or his or her lawyer may, if he or she wishes, question witnesses of the prosecution during a hearing and obtain orders that witnesses or experts who may shed light on disputed facts appear in court. If necessary, such orders may entail coercive measures. 
Colombia, Criminal Procedure Code, 2004, Article 8(k).
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).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum guarantees:
E. To have the right to call and examine defence and prosecution witnesses, and to present any evidence in his defense in accordance with the law. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(4)(E).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 96 and 105 of the Geneva Convention III and Articles 72 and 123 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(g), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order Concerning Security Provisions (1970) states:
All witnesses, other than the accused, who have chosen to make a statement rather than take an oath prior to giving evidence before a military court, shall be liable to examination, cross-examination and re-examination. 
Israel, Order Concerning Security Provisions, 1970, Section 18.
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to examining witnesses: “Witnesses that testify before a military court shall be subject to examination, cross-examination, and re-examination.” 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 132.
Japan
Japan’s Code of Criminal Procedure (1948), as amended in 2006, states:
(1) The public prosecutor and the accused or his/her counsel may attend the examination of a witness.
(3) The person prescribed in paragraph (1) of this Article may, when he/she attends the examination, examine the witness him/herself after notifying the presiding judge of his intent. 
Japan, Code of Criminal Procedure, 1948, as amended in 2006, Article 157(1) and (3).
Libyan Arab Jamahiriya
The Libyan Arab Jamahiriya’s Code of Criminal Procedure for Armed Personnel (1999) states:
After hearing prosecution witnesses, the President of the Court shall hear defense witnesses, followed by the defendant and the prosecution. The defendant is entitled to examine said witnesses once again to clarify the facts subject of their testimony. 
Libyan Arab Jamahiriya, Code of Criminal Procedure for Armed Personnel, 1999, Article 60.
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.
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:
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(d), (f) and (g).
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:
e) To testify as a witness in his own behalf and subject to cross-examination only on matters covered by direct examination, provided that the Rule on the Examination of a Child Witness shall be observed whenever convenient and practicable.
The juvenile shall not be compelled to be a witness against himself and his silence shall not in any manner prejudice him;
f) To confront and cross-examine the witnesses against him;
g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26(e)–(g).
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:
Chapter 2. Production of evidence
Article: 9 Evidence provided to ICTR by witnesses
Statements of testimonies of witnesses given before the ICTR [International Criminal Tribunal for Rwanda] and records of depositions of witnesses made before the ICTR in accordance with the ICTR Procedure and Evidence, shall be admissible before the High Court of the Republic provided that the testimony or deposition is relevant to a fact in issue. The High Court may exclude evidence given by a witness under protective measures where its probative value is outweighed by its prejudicial value.
Nothing in this provision shall prejudice the right of the accused to request the attendance of witnesses as referred to in Paragraph One of this Article for the purpose of cross-examination.
Article: 10 Statement by expert witnesses before the ICTR
The statement of an expert witness entered into the case file in any proceedings before the first Trial Chamber of the ICTR shall be admissible as evidence in criminal proceedings conducted in the High Court of the Republic without the appearance of the expert witness in the proceedings.
If the statement of an expert witness mentioned in Paragraph One of this Organic Law is admitted in the case file, it shall be admitted as evidence of fact or as an opinion the expert would have provided in the court.
Pursuant to Article 6 of this Organic Law, the High Court of the Republic shall admit in the file an expert witness testimony basing on the statements the expert adduced in the first instance Trial Chamber of ICTR in another case.
However, the expert is required to have been previously informed of his or her rights and obligations regarding his or her testimony and the testimony shall specify on the existence or non-existence of facts relevant to the case under trial. This Article shall not deny the accused person of the right to request for the summoning of an expert witness referred to in Paragraph One of this Article for cross-examination or to call an expert witness to challenge the statement of another expert witness given before the ICTR.
Chapter 3. Rights and security
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 to Rwanda is guaranteed the following rights:
8° to examine, or have a person to examine for him or her the witnesses against him;
9° to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him or her. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Articles 9, 10 and 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:
9º to examine, or have a person to examine on his [or] her behalf the witnesses against him [or] her;
10º to obtain the attendance and examination of witnesses on his [or] her behalf under the same conditions as witnesses against him [or] her. 
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(9º) and (10º).
Article One: Definitions of terms
For the purpose of this Law, the following terms shall mean as follows:
Article 8: General Principles in evidentiary matters
Evidence collected in accordance with the Statute and the Rules of Procedure and production of evidence of ICTR [International Criminal Tribunal for Rwanda] and the Mechanism may be used in proceedings before the High Court.
The High Court shall not convict a person solely on prior written statements of witnesses who did not give oral evidence during the trial.
However, the High Court may convict a person on the probative value of a prior written statement if it is corroborated by other witnesses.
Article 10: Evidence provided to ICTR or to the Mechanism by witnesses
Statements of testimonies of witnesses provided before the ICTR or the Mechanism and records of depositions of witnesses not made before the court in accordance with its Procedure and evidence shall be admissible before the High Court provided that the testimony or deposition is relevant to a fact in issue. The High Court may exclude evidence given by a witness under protective measures where its probative value is outweighed by its prejudicial value.
Nothing in this article shall prejudice the right of the accused to request the attendance of witnesses as referred to in Paragraph One of this article for the purpose of cross-examination.
When the testimony or deposition of a witness, who was subject to a protection order of the Mechanism, is admitted into the record, the identity of the witness shall not be disclosed to the public unless the Mechanism or the witness authorizes such disclosure. If such a witness is called for cross-examination, the fact that the individual testified at the ICTR or the Mechanism will not be disclosed to the public unless authorized by the Mechanism or the witness.
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, by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
Without prejudice to the relevant laws on contempt of court and perjury, no person shall be criminally liable for anything said or done in the course of a trial.
Article 15: Protection and assistance to Witnesses
In the trial of cases transferred from the ICTR, the Mechanism or other States, the High Court shall provide appropriate protection for witnesses and shall have the power to order protective measures similar to those set forth in Articles 53, 69 and 75 of the Mechanism Rules of Procedure and Evidence.
The High Court may establish reasonable conditions towards a witness’s right of safety in the Country. As such, there shall be determination of limitations of movements in the Country, duration of stay and travel. 
Rwanda, Law relating to the transfer of cases to the Republic of Rwanda, 2013, Articles 1(2), 8, 10, 14(9)–(10) and 15.
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(5) Every person who is charged with a criminal offence –
d. shall be afforded facilities to examine in person or by his legal practitioner the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;
(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(5)(d) and (10) and 29(2) and (5).
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.” 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
Sri Lanka
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
18. (1) Notwithstanding anything to the contrary in any other law[:]
(a) a statement recorded by a Magistrate, or made at an identification parade by a person who is dead or who cannot be found, shall be admissible in evidence notwithstanding that such person is not present or cannot or has not been cross[-]examined; and
(b) any document found in the custody, control or possession of a person accused of any offence under this Act or of an agent or representative of such person may be produced in court as evidence against such person without the maker of such document being called as a witness and the contents of such document shall be evidence of the facts stated therein. 
Sri Lanka, Prevention of Terrorism (Temporary Provisions) Act, 1979, as amended to 1988, Sections 18(1).
Sri Lanka
Sri Lanka’s Code of Criminal Procedure (Special Provisions) Act (2007) states:
6. (1) [Notwithstanding] anything contained in Chapter XV of the Code of Criminal Procedure Act, No. 15 of 1979 [concerning cases which appear not to be triable summarily by the Magistrates’ Court but triable by the High Court], in the course of holding of an inquiry under the aforesaid Chapter, the following provisions shall apply to the taking of statements of persons who know the facts and circumstances of the case.
(3) …
(b) The Magistrate shall not permit any cross[-]examination of the witness by the accused or his pleader, but the Magistrate may put to the witness, any clarification required by the accused or his pleader of any matter arising from the statement made by the wit[ne]ss in the course of the investigation, or any additions or alterations to his original statement if any, and may put to the witness any clarification which the Magistrate himself may require of any such matter. Every clarification so made shall be recorded:
Provided that having considered the nature of the material contained in the statement of a witness made to the police, the prosecution may tender the witness for cross examination by the accused or his pleader. …
(8) … [T]the Magistrate may, for reasons to be recorded and in the case of an expert witness, with the prior sanction of the Attorney-General, summon an expert witness or police officer to be present in Court for examination.
(9) Where an expert witness or a police officer appears in court in response to [a] summons issued on him under subsection (8), the Magistrate shall not permit any cross[-]examination of such expert witness or police officer by the accused or his pleader but may put to such expert witness or police officer, any clarifications that the accused or his pleader may require, of any matter arising from the report of the expert witness or the affidavit of the police officer, as the case may be, or from the examination of such expert witness or police officer, as the case may be, and the Magistrate may himself put to the witness any clarification that he may require of any such matter. Every clarification so made shall be recorded. 
Sri Lanka, Code of Criminal Procedure (Special Provisions) Act, 2007, Article 6(1), (3)(b), (8) and (9).
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: “Parties have the right to be present when the public prosecutor and the courts are taking evidence and to put questions to persons who have been questioned.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 147(1).
Uganda
Uganda’s Defence Forces Act (2005) provides:
214. Witnesses and advocates at military courts
(1) The commanding officer or officer commanding of the accused person and a military court shall take all necessary action to procure the attendance of the witnesses whom the prosecutor or the accused person or both request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.
(2) Nothing in subsection (1) shall require the procurement of the attendance of any witnesses, the request for whose attendance is deemed by the commanding officer, officer commanding or the military court, to be frivolous or vexatious.
(3) Where a request by the accused person for the attendance of a witness is deemed to be frivolous or vexatious, the attendance of that witness, if his or her attendance, having regard to the exigencies of the service, can reasonably be procured, shall be procured if the accused person pays in advance the fees and expenses of the witness at the rates prescribed in regulations.
(4) If at the trial the evidence of the witness proves to be relevant and material, the military court shall order the accused person to be reimbursed in the amount of the fees and expenses of the witness paid under subsection (3).
(5) Nothing in this section limits the right of the accused person to procure and produce at the trial at his or her expense such witnesses as he or she may desire. 
Uganda, Defence Forces Act, 2005, § 214.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949a. Rules
“ …
“(b) EXCEPTIONS.—(1) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.
“(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused:
“(A) To … cross-examine the witnesses who testify against the accused, and to examine and respond to all evidence admitted against the accused on the issue of guilt or innocence and for sentencing, as provided for by this chapter. 
United States, Military Commissions Act, 2009, § 949a(b)(2)(A).
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
Article 355. … [T]he presiding judge will call all the witnesses, one at a time …
Article 356. After swearing in the … witness … the presiding judge will accord him or her the right to speak …
At the end of the account, [the judge] will permit direct interrogation. The person proposing the witness will begin, followed by the other parties in the order determined by the presiding judge; efforts will be made to ensure that the defence is the last to interrogate [the witness]. 
Venezuela, Penal Procedure Code, 2009, Articles 355–356.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
Article 338. … [T]he judge will call all the witnesses, one at a time …
Article 339. After swearing in the … witness … the judge will accord him or her the right to speak …
At the end of the account, [the judge] will permit direct interrogation. The person proposing the [witness] will begin, followed by the other parties in the order determined by the judge; efforts will be made to ensure that the defence is the last to interrogate [the witness]. 
Venezuela, Penal Procedure Code, 2012, Articles 338–339.
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
(e) shall be afforded facilities to examine in person or, save in proceedings before a local court, by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.
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)(e) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(h) to adduce and challenge evidence;
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)(h), 86(2)(b) and (3)(e), and 87(1) and (4).
Bosnia and Herzegovina
In 2006, in the Samardžić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that “the right to cross examine the witness … [is] one of the requirements for a fair trial”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžić case, Judgment, 13 December 2006, p. 7.
Bosnia and Herzegovina
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that a right of the accused is “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 8.
Bosnia and Herzegovina
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
In order to … protect [certain] witnesses … , the [first-instance] Panel rendered the decision to remove the Accused from the courtroom during the testimony of [these] witnesses. At the same time, the first-instance Panel decided to allow the Accused to follow their testimonies using technical means for transferring the image and sound in order to be able, following the direct examination, to consult his defence counsel concerning the cross examination … The mentioned decision, according to this Panel, was rendered in its entirety and in the context of the guarantees provided by Article 6 of the European Convention on Human Rights. Therefore, the appellate argument of the defence counsel … that the right to a defence was violated is unfounded. To wit, … the Accused had the possibility to follow the direct examination of witnesses and consult the defence counsel concerning the cross examination … [A]lthough the mentioned rights of the Accused were partially limited it was done in accordance with the statutory limitations and the ruling provided that the Accused follow the course of the main trial adequately, without violating his right to a defence. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 7.
Canada
In 2004, in R. v. Lyttle, the Supreme Court of Canada noted with regard to the right to cross-examine witnesses:
1. Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.
2. That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence.
41. As mentioned at the outset, the right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence. See R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 608, per McLachlin J. (as she then was):
The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. … In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. [Emphasis added.]
42. In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J. reviewed the relevant authorities and, at p. 663, explained why cross-examination plays such an important role in the adversarial process, particularly, though of course not exclusively, in the context of a criminal trial:
There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. For example, it can demonstrate a witness’s weakness of sight or hearing. It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence. See R. v. Anderson (1938), 70 C.C.C. 275 (Man. C.A.); R. v. Rewniak (1949), 93 C.C.C. 142 (Man. C.A.); Abel v. The Queen (1955), 115 C.C.C. 119 (Que. Q.B.); R. v. Lindlau (1978), 40 C.C.C. (2d) 47 (Ont. C.A.).
43. Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. See Osolin, supra, at p. 665.
44. The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. See R. v. Meddoui, [1991] 3 S.C.R. 320; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.); R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.); Osolin, supra.
45. Just as the right of cross-examination itself is not absolute, so too are its limitations. Trial judges enjoy, in this as in other aspects of the conduct of a trial, a broad discretion to ensure fairness and to see that justice is done – and seen to be done. In the exercise of that discretion, they may sometimes think it right to relax the rules of relevancy somewhat, or to tolerate a degree of repetition that would in other circumstances be unacceptable. See United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 925. 
Canada, Supreme Court, R. v. Lyttle, Judgment, 12 February 2004, §§ 1–2 and 41–45.
[emphasis in original]
Canada
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the facts of the case as follows:
[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.
[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …
[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). … Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.
[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.
[5] Ribic appeals his convictions. He argues that the trial judge erred by ruling that some of the substantive defences advanced by the appellant should not have been put to the jury and that he further erred in his instructions on certain of the defences left with the jury for its consideration. Ribic also contends that the trial judge erred by refusing to stay the prosecution on the grounds that Ribic’s rights under ss. 7 and 11(b) of the Charter of Rights and Freedoms [(Charter)] to a fair trial [and] to make full answer and defence to the Crown’s case … had been infringed. For the reasons that follow, I would dismiss the appeal. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 1–5, per Cronk J.A.
The Court held:
[23] The appellant’s first trial began on October 7, 2002 before Cunningham J. of the Superior Court of Justice. The Crown called six witnesses over eight days. On October 23, 2002, at the close of the Crown’s case, the defence sought to call as witnesses two former members of the Canadian Armed Forces who had served in Bosnia with UNPROFOR [UN Protection Force] during the hostage-taking incident. The first proposed witness – Witness A – was a Canadian intelligence officer who acted as Canada’s country analyst for Bosnia- Herzegovina. The second proposed witness – Witness B – was a forward air controller who engaged in intelligence-gathering, helped select bombing targets and assisted in guiding NATO aircraft to identified targets. Neither of these individuals was present during the hostage-taking incident. …
[24] Both Witnesses A and B expressed concerns that their testimony might include “potentially injurious” or “sensitive” information concerning Canada’s international relations, national defence or national security, within the meaning of s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the CEA). When notice of these concerns was provided to the Attorney General of Canada in accordance with s. 38.01(1) of the CEA, the Attorney General declined to authorize the disclosure of Witness A’s and B’s information. The appellant then applied to the Federal Court for an order authorizing Witnesses A and B to testify without restriction at his criminal trial and permitting the entirety of their proposed evidence to be disclosed. The Attorney General opposed this application and moved for directions from the Federal Court.
[73] There are two bases for the appellant’s argument that the trial judge erred by refusing to grant a stay of the proceedings on the ground of a violation of the appellant’s s. 7 Charter rights. First, the appellant attacks the Disclosure Process itself, describing it as “unprecedented and manifestly unfair”. He complains that neither he nor anyone who represented his interests was permitted to participate in the examinations of Witnesses A and B in the Federal Court disclosure proceedings, and no opportunity was afforded to his counsel to provide follow-up questions to be posed to the witnesses by examining counsel.
[74] Second, the appellant argues that the form and manner of the presentation of Witness A’s and Witness B’s evidence at trial as mandated by the Disclosure Rulings – the reading of excerpts from the redacted transcripts of their testimony to the jury in lieu of calling these witnesses to provide viva voce evidence – breached his s. 7 Charter rights. He also claims that the prejudicial effect of his inability to compel the oral evidence of these witnesses was illustrated, and exacerbated, by Crown counsel’s closing address to the jury, during which Crown counsel sought to impeach the reliability and credibility of Witnesses A and B by inviting the jury to compare their testimony as read to the jury with the “live” evidence of Crown witnesses who actually testified at trial.
[83] Unquestionably, the method of examination of Witnesses A and B under the Disclosure Process was far from ideal, involving as it did a filter between the appellant’s counsel and the witnesses and a proscription on the direct participation of the appellant’s counsel in the examination process. That said, it is my opinion that the appellant cannot rely on a challenge to the fairness of the Disclosure Process itself to support his claim in this court that a stay of the prosecution should have been granted due to the alleged infringement of his s. 7 Charter rights. I say this for several reasons.
[85] Ultimately, the Disclosure Process was authorized by consent court order of the Federal Court. Under that order, the Disclosure Process involved examinations of Witnesses A and B based on areas of questioning identified by the appellant’s counsel. In addition, the order required that while examining counsel questioned the witnesses, the appellant’s counsel “will remain available to provide further explanations on relevancy and suggestions as to possible areas of questioning”. The appellant thus participated, through counsel, in the design and approval of the Disclosure Process of which he now complains. Although the appellant’s counsel did not personally conduct the examinations in question, they had a pivotal role throughout.
[92] … [F]our judges of courts that are experienced in dealing with national security and national defence issues evaluated the fairness of the Disclosure Process and the nature and sufficiency of the information authorized for disclosure. They unanimously held that the information to be disclosed was fair and protective of the appellant’s interests to the extent possible, given the nature of the information at issue, the defences sought to be raised by the appellant at his criminal trial, and the urgency of the situation. .. [L]eave to appeal that determination to the Supreme Court of Canada was refused.
[108] There is no doubt that it would have been preferable if the defence had been able to call Witnesses A and B to testify at trial. An accused’s rights to a fair trial and to make full answer and defence are principles of fundamental justice protected by s. 7 of the Charter. They encompass the right to defend against “all of the state’s efforts to achieve a conviction” (R. v. Rose, [1998] 3 S.C.R. 262, at para. 103) and to have .the opportunity adequately to state [one’s] case. (R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at para. 32).
[109] However, these fundamental rights are not absolute. The jurisprudence of the Supreme Court of Canada recognizes that national security considerations can justify limitations on the extent and form of disclosure of confidential information to affected individuals. Moreover, s. 7 of the Charter does not include a guarantee that evidence may be tendered at a criminal trial in any particular form. …
[110] I am satisfied that adequate measures were found in the context of this unusual case to respect the appellant’s s. 7 Charter rights. As a result, there is no basis for appellate interference with the trial judge’s discretionary decision to refuse the extraordinary remedy of a stay of the proceedings under s. 24(1) of the Charter based on the appellant’s s. 7 claim. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 23–24, 73–74, 83, 85, 92 and 108–110, per Cronk J.A.
[emphasis in original; footnote in original omitted]
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to confront and cross-examine witnesses … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.1.7
Germany
In 2003, in the El Motassadeq case, Germany’s Third Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg found the accused guilty of aiding and abetting murder in 3,066 cases as well as attempted murder and causing bodily harm with dangerous means in five cases, in coincidence with membership in a terrorist organization, for contributions to the attacks of 11 September 2001. He was sentenced to 15 years in prison. The Senate held that the circumstance that the witness Binalshib could not be examined was no violation of the right to a fair trial under Article 20, paragraph 3 of the Basic Law. 
Germany, Hanseatic Higher Regional Court Hamburg, Third Criminal Law Senate, El Motassadeq case, Judgment, 19 February 2003, pp. 56–61.
In 2004, on the accused’s appeal on points of law (Revision), the Federal Court of Justice overturned the judgment and remanded the case to another Senate of the Higher Regional Court. The Federal Court of Justice held:
II. The consideration of the evidence regarding the involvement of the accused in the planning and preparation of the attack, which is at the basis of the findings of the Higher Regional Court, does not hold out against the court of appeal’s examination of the material error assigned.
2. … In its consideration of the evidence, the Higher Regional Court … did not take into account an essential circumstance which could have influenced the formation of its conviction of the facts. It did not take into account the fact that its ability to establish the truth was limited because, due to measures by the US government and the German government, neither could Binalshib, a person involved in the act, be examined in the main hearing, nor could the content of records of his examinations elsewhere be introduced into the hearing of evidence.
The Higher Regional Court found in this respect: Binalshib had been arrested in September 2002, and was in the custody of US authorities. It had been impossible to clarify whether he had made statements relating to the involvement of the accused in the act. The witness W. – an FBI official, examined by the Higher Regional Court in relation to the investigation in the United States and on whose statement the Higher Regional Court to a large extent bases its findings regarding the attacks in the United States and its consequences – had not been authorized to make statements in relation to potential information by Binalshib on the involvement of the accused in the act. The Federal Chancellery and the Federal Ministry of the Interior had declined to provide information on the content of documents on “intelligence service questionings” of Binalshib, which “authorities of the United States“ had made available to the Bundesnachrichtendienst [Federal Foreign Intelligence Service] and the Bundeskriminalamt [Federal Criminal Police Office].
These explanations show that the Higher Regional Court tried to obtain a statement by Binalshib or to clarify the results of his examinations in the United States, but that these efforts were unsuccessful because the US government denied the cooperation necessary for this and because the German government issued blocking declarations under Section 96 of the Code of Criminal Procedure with regard to the examination documents received from the United States …
3. The Higher Regional Court could not deal with these events and the related motions of the defence solely from a procedural perspective. If a central means of evidence cannot be introduced into the main hearing due to a blocking declaration or a declined authorization to make statements, although without the blocking declaration or the declined authorization to make statements the taking of the evidence would have been demanded by the court’s obligation to establish the truth by extending the taking of evidence to all facts and means of proof relevant to the decision (Section 244, paragraph 2 of the Criminal Procedure Code) or a motion by the accused to take the evidence could not have been denied based on one of the reasons for denial listed under Section 244, paragraphs 3–5 of the Criminal Procedure Code, the court trying the facts, when forming its conviction of the facts, must take into consideration the resulting reduction of its possibilities to establish the facts as well as the curtailment of the accused’s rights of defence and discuss this limitation in the grounds of the judgement in the context of the consideration of evidence. Otherwise, its consideration of evidence is incomplete and the right of the accused to a fair trial in compliance with the rule of law (Article 20, paragraph 3 in conjunction with Article 2, paragraph 1 of the Basic Law; Article 6, paragraph 1 of the European Convention on Human Rights) is violated.
a) What the legal consequences are if an important means of evidence cannot be introduced into the proceedings because the executive prevents this by issuing a blocking declaration or by refusing the necessary authorization to make a statement, with the consequence that it remains open whether the taking of the evidence would have incriminated or exculpated the accused or would have been unproductive, has not yet been finally clarified. However, according to the consistent case law of the Federal Court of Justice a conflict between, on the one hand, the secrecy interests of the executive and, on the other hand, the defence interests of the accused as well as the obligation of the court to establish the truth (Section 244, paragraph 2 Criminal Procedure Code), must not lead to negative effects of the secrecy interests on the accused. In such cases the limitation of the evidentiary basis and therefore of the court’s possibility to establish the facts must be taken into account in the form of a particularly careful consideration of evidence and, as the case may be, an application of the principle of in dubio pro reo
b) The application of the principle of careful consideration of evidence and, as the case may be, the principle of in dubio pro reo must be stated precisely for the cases here in question:
The required compensation of the limitation of the evidentiary basis due to executive measures is to be undertaken in the context of the consideration of evidence not in such a manner that defensive submissions by the accused, whose accuracy could have been tested by taking the blocked evidence, are to be treated as correct, in direct application of the principle of in dubio pro reo.
[Such] an understanding does not do justice to the function and meaning of the principle of in dubio pro reo. The principle does not allow any inference whether a statement would have been rich or rather poor in details, or traceable due to the linking of plausible factual elements or rather one-dimensionally limited to a specific core statement. Furthermore, the principle of in dubio pro reo is not a rule of evidence but a rule of decision, which the court has to follow only when, after completion of the consideration of evidence, it is not able to come to the full conviction of the existence of fact directly relevant for the judgement regarding guilt and sentence …
The blocking of evidence by the executive is to be taken into account as one element only at the stage of the concluding evaluation of the whole evidentiary result. Doing this, the court trying the facts must consider the possibility that the blocked evidence, had it been introduced into the main hearing, would have confirmed the exculpating submission or the exculpating allegation of evidence by the accused. The court must confront this possibility with the further evidentiary result and decide on this basis, in application of the principle of in dubio pro reo, whether the potentially exculpating result of the omitted taking of evidence is rebutted by the usable further evidence to the extent that, despite the reduced basis for the establishing of facts, the main hearing as a whole supports the conviction of the guilt of the accused … The more the result of the taking of evidence could be reconciled with the exculpating submission of the accused, the closer the blocked evidence is to the act and the more it therefore potentially could have contributed to its clarification, the higher are the demands to be made to the argumentative effort of the court trying the facts as regards the reasons for its conviction of the guilt of the accused, in particular if the evidence on which it is basing this conviction only in a circumstantial manner indicates the guilt of the accused.
Only if the evidence is, in this manner, evaluated carefully and with respect to the principle of in dubio pro reo, the circumstance is sufficiently taken into account that it is exactly the executive, conducting the criminal prosecution, – and not for example a witness using his right to refuse testimony or to give certain information (e.g. under Sections 52, 53, 53 a or 55 of the Criminal Procedure Code), or an objective circumstance (e.g. an actually unobtainable witness) – which reduces the evidentiary basis for a point requiring clarification and thereby, at least potentially, deprives the accused of a possibility to exculpate himself.
4. After all this, the Higher Regional Court could not content itself with the finding that Binalshib, a person involved in the act, was not available for an examination and that it had been impossible to clarify whether, during his examinations by US authorities, he made statements on the involvement of the accused in the planning and preparation of the attacks of 11 September 2001, and if yes, what statements.
According to the findings in the judgement, Binalshib had a central position in the act. Based on his direct experience, he could have reported on the course of the planning and preparation of the attacks as well as on the knowledge of the accused … The examination of Binalshib or at least the introduction of the content of the documents on his examinations in the United States therefore were demanded by the court’s obligation to establish the truth by extending the taking of evidence to all facts and means of proof relevant to the decision.
Since due to the blocking of the evidence this clarification was not possible, the Higher Regional Court, in its consideration of evidence, would have had to take into account the possibility that Binalshib, in an – at least as such plausible and traceable – statement, would have confirmed the defence submission of the accused, or that such a confirmation could have resulted from the examination records …
The Higher Regional Court omitted doing all this. It merely referred the accused to the possibility of reopening the proceedings, should the witness Binalshib be available as a witness at a later point in time. Its judgement therefore cannot be upheld.
III. The blocking of evidence by the executive here does not lead to an obstacle to proceedings which would have the termination of the proceedings as consequence. Admittedly, extraordinary cases can be thought of in which a violation of the fair trial principle deprives the proceeding as a whole of its basis and forces its termination … However, this only comes into question if fair criminal proceedings in line with the rule of law can, even with compensating measures in favour of the accused, no longer be ensured. As regards the blocking of evidence by the executive, this can only be the case if the measures of the executive reduce the evidentiary basis for the court trying the facts in such a manner that, even when taking into account the principles of careful consideration of evidence described above and when applying the principle of in dubio pro reo, a judicially responsible formation of the court’s conviction of the result of the evidence taken can no longer be guaranteed, a formation of the court’s conviction which satisfies the requirements of the rule of war and the position of the criminal courts to investigate the true factual situation independent from influences of the executive, guaranteed under constitutional law. It has not yet come so far here. Despite the refusal of the US government to make an examination of the witness Binalshib possible as well as to authorize the witness W. to make a statement on the content of the examinations of Binalshib in the US, and despite the blocking by the German government of the transferred records of “intelligence service questionings” of Binalshib and the witness Z. – allegedly detained in Syria – , an independent consideration of evidence by the new court trying the facts is still possible. However, the competent authorities will have to assess again whether, in the interest of finding the truth, there are no possibilities to make available the evidence blocked so far at least to a limited extent, without legitimate secrecy interests thereby being infringed. 
Germany, Federal Court of Justice, El Motassadeq case, Judgment, 4 March 2004, pp. 7–21.
In 2005, the Fourth Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg found the accused guilty of membership in a terrorist organization and sentenced him to seven years in prison. The Senate found that it had not been proven that the accused had aided and abetted murder, attempted murder and causing bodily harm with dangerous means. With regard to the consideration of summaries of witness statements received from the United States as evidence, the Senate stated:
m) Consideration of evidence relating to the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahis after their arrest, transferred from the United States to the Senate
The Senate considers the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahi, described above, as usable. A prohibition on their use according to Article 15 of the 1984 UN Anti-Torture Convention or Section 136 a of the Criminal Procedure Code, in analogous application, is not given. However, the Senate ultimately has not based any conclusions on the summaries of the statements made by Binalshibh, Khalid Sheikh Mohammed and Slahi, introduced into the main hearing by their being read out …
Article 15 of the Convention, entered into force for the Federal Republic of Germany on 31 October 1990, provides that each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. According to Article 1, paragraph 1 of the Convention, torture within the meaning of that provision means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
In the view of the Senate, the prohibition on the use of statements under Article 15 of the UN Anti-Torture Convention is domestically directly applicable law and therefore is to be taken into account and applied here …
However, the application of the prohibition on the use of statements requires that it is established that the statements in question were made as a result of torture. Based on the information available to the Senate and introduced by way of informal taking of evidence, it has not been possible to establish this in the criminal proceedings against the accused.
The competent US authorities, also in response to several enquiries by the Senate on this issue, have given no information on the whereabouts of Binalshibh, Khalid Sheikh Mohammed as well as Slahi … In response to the specific enquiry by the Senate regarding the circumstances of the examinations of the persons mentioned, the competent US authorities, by letter of 9 May 2005, gave the concluding notification that no information would be given … The authorities of the Federal Republic of Germany asked by the Senate for information, the Federal Chancellery, the Federal Ministry of the Interior and the Federal Ministry of Justice, issued blocking declarations in response to several enquiries by the Senate for further information inter alia regarding the persons mentioned above, in which they pointed out that they had not been authorized by the competent authorities of the United States to make the information, given to them solely for intelligence service purposes, available in the present criminal proceedings against the accused …
Ultimately, as regards the question of the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi on which the transferred summaries were based, the Senate analysed the publicly accessible sources therefore solely available to it, and by way of informal taking of evidence introduced numerous publications, those originally in English in translation, into the main hearing …
In the view of the Senate, the analysis of the articles and reports introduced ultimately showed that the Government and Ministry of Defense of the United States, on the one hand, denied the use or tolerance of torture, that however, on the other hand, the Government (the White House) at least acknowledged that Al Qaida detainees were not regarded as subject to the protection of international human rights conventions such as the Geneva Convention relative to the Treatment of Prisoners of War. Apart from that, there were indeed indications in the articles and reports introduced into the main hearing that alleged Al Qaida members were subjected to torture measures within the meaning of Article 1 of the UN Anti-Torture Convention. However, such measures cannot be proven by this, since none of the introduced articles and reports give verifiable sources.
…[I]n conclusion, the Senate does not regard as established within the meaning of Article 15 of the Convention the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi, on which the summaries transferred from the United States are based.
The Senate is aware that in the present case it is the State organs of the United States, the State accused of torture in the introduced articles and reports, themselves, from which more reliable and verifiable information, compared to the available articles and reports, could be expected. Admittedly, due to the lack of information regarding individual cases to be assessed here, this circumstance suggests that one infers from other cases or a general practice a corresponding handling in the relevant individual cases and regards the use of torture as established. However, in the present case, apart from the weak evidentiary situation caused by the blocking by the US authorities, there is another essential circumstance due to which the Senate in the present case does not infer from the practice in other cases or a general practice a corresponding handling in the cases of interest here and, in conclusion, regards the use of torture measures as not established.
The essential circumstance, further to the bad evidentiary situation, on the basis of which the use of torture is ultimately regarded as not established is that, according to the summaries made available to the Senate, all three persons examined made both inculpating and exculpating statements with respect to various other persons …
Since the content of the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi, transferred by the US authorities, could, due to the numerous statements exculpating other persons contained in them, speak against the use of torture, the Senate overall has come to the conclusion not to regard as established a violation of Article 15 UN Anti-Torture Convention which would give rise to a prohibition on the use of evidence.
As regards the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi made available to the Senate by the USA, a prohibition on the use of evidence also does not follow from an analogous application of Section 136 a of the Criminal Procedure Code in conjunction with Section 69, paragraph 3, Section 163 a, paragraphs 1, 2 and 4 of the Criminal Procedure Code. Section 136 a of the Criminal Procedure Code prohibits the use of such statements which were obtained under the employment of the impermissible measures listed in detail in paragraphs 1 and 2, and, according to paragraph 3, even if the accused consents to their use. According to the correct view, the prohibition, if applicable, applies without distinction for both inculpating and exculpating statements.
However, the provision of Section 136 a of the Criminal Procedure Code primarily is directed to the State organs responsible for criminal prosecution and covers only measures of public prosecution organs of the Federal Republic of Germany. As a principle, the provision of Section 136 a of the Criminal Procedure Code does not have a third-party effect for persons not belonging to this circle. According to the correct predominant view, an analogous application of Section 136 a of the Criminal Procedure Code with regard to third persons not directly covered by the norm only comes into consideration if such persons produced the information whose usability is in question in connection with an especially crass violation of the dignity of the human being. Among such crass violations are in particular also torture measures falling under Article 15 of the UN Anti-Torture Convention …
In the view of the Senate, the principles developed by the courts on the analogous application of Section 136 a Criminal Procedure Code demanded in exceptional cases in view of impermissible examination measures by private persons … also apply if nationals of foreign States use such examination measures. An analogous application of the prohibition on the use of evidence under Section 136 a of the Criminal Procedure Code to the present summaries of the statements by Binalshibh, Khalid Sheikh Mohammed and Slahi therefore would come into consideration, provided that the further requirements on the application of Section 136 a of the Criminal Procedure Code are fulfilled. Ultimately, however, this is not the case.
Section 136 a of the Criminal Procedure Code does not expressly regulate the evidentiary principles and standards to be applied in the establishment of a violation of the prohibition [contained in Section 136 a of the Criminal Procedure Code]. These principles and standards, however, follow from the position of the norm within the system of norms applicable to domestic criminal proceedings and from the object and purpose of Section 136 a of the Criminal Procedure Code. Essential in this context is the understanding of the transgressions regulated in Section 136 a of the Criminal Procedure Code as procedural violations, which, like generally all procedural requirements and violations, must be proven in order to be taken into account. If a violation of the prohibition on the use of evidence is not proven, the statement in question therefore can be used … The reason for this correct view is in particular that on the basis of the judicial obligation to establish the truth the non-usability of given evidence must be the exception and must not be made the rule. Unlike in connection with facts relevant for the guilt of an accused, the principle of in dubio pro reo does not apply to the establishment of the existence of a prohibition on the use of evidence … The facts giving rise to a prohibition on the use of evidence must, after the necessary informal clarification, be established to the conviction of the court. If important doubts remain, a potential violation is not proven and the statement in question can be used. This is the case here with regard to a potential use of torture measures, also falling under Section 136 a of the Criminal Procedure Code, against Binalshibh, Khalid Sheikh Mohammed and Slahi. Admittedly, there are points indicating the use of such measures, but, on the other hand, there are also circumstances speaking against it.
Insofar as with regard to Binalshibh, Khalid Sheikh Mohammed and Slahi, beyond the use of torture measures, a violation of Section 136 a of the Criminal Procedure Code comes into consideration on the basis of the fact of their long-lasting detention without trial and without access to defence counsel or other external persons, it admittedly seems more likely to regard these circumstances as proven, in comparison to potential torture measures. Whether, however, this would ultimately have to be assumed, need not be decided. According to the correct view, an analogous application of the prohibition on the use of evidence codified in Section 136 a of the Criminal Procedure Code comes into consideration only in cases of especially grave human rights violations. The denial of an orderly trial as well as the non-granting of liberty and external contacts does not yet fall under that, at least after the time span of three years to be assumed here, in the case of Binalshibh arrested in September 2002 and in the case of Khalid Sheikh Mohammed arrested in March 2003. In this context, it is to be borne in mind that the American legal order apparently permits such a treatment of the Al-Qaida members.
According to the explanations above, the summaries of the statements of Binalshibh, Khalid Sheikh Mohammed and Slahi can be used. They must be subjected to a thorough consideration of evidence. However, no changes of the findings made by the Senate without taking into account these summaries, or of their assessment, result from them. 
Germany, Hanseatic Higher Regional Court Hamburg, Fourth Criminal Law Senate, El Motassadeq case, Judgment, 19 August 2005, pp. 298, 305–309 and 310–314.
In 2006, on the appeal on points of law (Revision) by the Federal Prosecutor General and private accessory prosecutors, the Federal Court of Justice overturned the conviction, finding the accused guilty of aiding and abetting murder in 246 cases (passengers and crews of the hijacked planes), in coincidence with membership in a terrorist organization, and, with regard to sentencing, remanded the case to another Senate of the Higher Regional Court. 
Germany, Federal Court of Justice, El Motassadeq case, Judgment, 16 November 2006, p. 3.
On 8 January 2007, the Seventh Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg sentenced the accused to 15 years in prison. 
Germany, Hanseatic Higher Regional Court Hamburg, Seventh Criminal Law Senate, El Motassadeq case, Judgment, 8 January 2007, p. 2.
By decision of the Federal Constitutional Court of 10 January 2007, the accused’s constitutional complaint against the 2005 judgment of the Hanseatic Higher Regional Court Hamburg and the 2006 judgment of the Federal Court of Justice was not accepted for decision, for being partially inadmissible due to lack of substantiation, and furthermore unfounded. 
Germany, Federal Constitutional Court, El Motassadeq case, 2 BvR 2557/06, Decision, 10 January 2007, §§ 1–14.
By decision of 2 May 2007, the Federal Court of Justice dismissed as unfounded the accused’s appeal on points of law (Revision) against the 2007 judgment of the Hanseatic Higher Regional Court Hamburg, the judgment thereby becoming binding. 
Germany, Federal Court of Justice, El Motassadeq case, Decision, 2 May 2007.
Netherlands
In its judgment in the Hesammudin case in 2005, the Hague District Court of the Netherlands stated:
According to previous judgments of the European Court of Human Rights it must be possible at some stage in the proceedings to exercise the defence’s right to examination. However, using as evidence a statement for the prosecution, laid down in an official report, of a witness who has not been examined by the defence, is not unreservedly disallowed. In any case there is no unauthorized use when at some stage of the proceedings the defence has been given the opportunity to examine this witness … If the defence has not had this opportunity referred to and this statement is not supported in other items of evidence either, it is not allowed to use this statement for evidence pursuant to Article 6 ECHR [1950 European Convention on Human Rights]. 
Netherlands, Hague District Court, Hesammudin case, Judgment, 14 October 2005.
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 Hernandez case in 1996, the Supreme Court of the Philippines stated: “It is true that the rights of an accused during trial are given paramount importance in our laws on criminal procedure. Among the fundamental rights of the accused is the right to confront and cross-examine the witnesses against him.” 
Philippines, Supreme Court, Hernandez case, Judgment, 30 July 1996.
Philippines
In its judgment in the Genosa case in 2000, the Supreme Court of the Philippines stated:
The prosecution has likewise the right to a fair trial, which includes the opportunity to cross-examine the defense witnesses and to refute the expert opinion given. Thus, consistent with the principle of due process, a partial reopening of the case is apropos, so as to allow the defense the opportunity to present expert evidence consistent with our foregoing disquisition, as well as the prosecution the opportunity to cross examine and refute the same. 
Philippines, Supreme Court, Genosa case, Judgment, 29 September 2000.
Philippines
In its judgment in the Monje case in 2002, the Supreme Court of the Philippines stated:
It bears stressing that the cross-examination of a witness is an absolute right, not a mere privilege, of the party against whom he is called. With regard to the accused, it is a right guaranteed by the fundamental law as part of due process. Article III, Sec. 14, par. (2), of the 1987 Constitution specifically mandates that “the accused shall enjoy the right to meet the witnesses face to face,” and Rule 115, Sec. 1, par. (f), of the 2000 Rules of Criminal Procedure enjoins that in all criminal prosecutions the accused shall be entitled to confront and cross-examine the witnesses against him at the trial. Cross-examination serves as a safeguard to combat unreliable testimony, providing means for discrediting a witness’ testimony, and is in the nature of an attack on the truth and accuracy of his testimony. The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner. The object of cross-examination therefore is to weaken or disprove the case of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty and bias or prejudice of the witness, his source of information, his motives, interest and memory, and exhibit the improbabilities of his testimony.
We discussed at length in Seneris the effects of the absence or the incomplete cross-examination of a witness on the admissibility in evidence of his testimony on direct examination. The basic rule is that the testimony of a witness given on direct examination should be stricken off the record where there was no adequate opportunity for cross-examination. Of course, there are notable modifications to the basic rule which make its application essentially on a case-to-case basis. Thus, where a party had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits his right to cross-examine and the testimony given by the witness on direct examination will be allowed to remain on record. But when the cross-examination is not or cannot be done or completed due to causes attributable to the party offering the witness, or to the witness himself, the uncompleted testimony is thereby rendered incompetent and inadmissible in evidence. The direct testimony of a witness who dies before the conclusion of the cross-examination can be stricken only insofar as not covered by the cross-examination, and the absence of a witness is not enough to warrant striking of his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, which is not true in the present case, or that the matter on which further cross-examination is sought is not in controversy. 
Philippines, Supreme Court, Monje case, Judgment, 27 September 2002.
[emphasis in original]
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.
United States of America
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base, Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. With regard to the right of an accused person to be privy to the evidence against him, the Court stated:
The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts and courts-martial. See §§5(A)–(P). These rights are subject, however, to one glaring condition: The accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer decides to “close.” Grounds for such closure “include the protection of information classified or classifiable …; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.” §6(B)(3).
Hamdan raises both general and particular objections to the procedures set forth in Commission Order No. 1. His general objection is that the procedures’ admitted deviation from those governing courts-martial itself renders the commission illegal. Chief among his particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings.
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment under-estimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.
Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b) [of the UCMJ]. 
United States, Supreme Court, Hamdan case, Judgment, Part VI, A, B, and C, 29 June 2006.
In March 2008, in the Hamdan case, a Guantánamo Military Commission considered a government motion that it reconsider a previous ruling that Defence be granted access via written questions to certain High Value Detainees deemed to be potential Defence witnesses. That ruling had ordered the government to permit Defence to submit written questions, passed through a government security officer and linguist, so as to allow for Defence’s questions and the detainees’ answers to be reviewed for classified material without disclosing the exchange to the Prosecution. The Commission denied the government’s Motion for Reconsideration, but stated in clarification of the procedure to be followed for the examination of witnesses:
1. The Government Security Officer may forward the questions, after his and the Linguist’s review, to other Government Security Officers and authorities in Guantanamo Bay, or to other JTF [Joint Task Force Guantánamo] officers or representatives there who are not aligned with, and who will not communicate with the Prosecution, for delivery to and recovery from the witnesses.
2. The Government may propose additional security measures it considers necessary to protect classified information from disclosure.
3. If the Government Security Officer has procedural questions about implementation of this Order, he shall pose them to the military judge via email to the MCTJ [Military Commission Trial Judiciary] Staff, copy to the parties. The military judge will entertain comments from the parties before giving direction to the Security Officer.
4. If the Security Officer suspects that a detainee is attempting, through his written answer to a question, to communicate some message to a colleague or a confederate, he may delete the detainee’s reply to that question entirely, excise the questionable part, or summarize the answer in terms that do not contain any suspect information. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 14 March 2008, pp. 3–4.
In April 2008, in the Hamdan case, a Guantánamo Military Commission considered a Defence motion to compel production of the names and contact information of all government agents involved in the investigation of the case. In granting the motion, in situations when the identities of government officers are not subject to National Security considerations, the Commission stated:
While the motion seeks “the names and contact information of all government investigators who conducted investigations in this case,” there is a specific dispute about the names and contact information of all three officials [Witnesses A, B and C] who appeared in a “capture video” made on 21 November 2001, the day of Hamdan’s capture.
RMC [Rules for Military Commissions] 701(j) provides that “Each party shall have adequate opportunity to prepare its case and no party may unreasonably impede the access of another party to a witness or evidence.” …
The relevant rule here is RMC 701(j), which allows both parties an “adequate opportunity” to prepare their cases. The Defense asserts that “interviews of the requested witnesses may reveal a basis for suppression of the video-taped interrogation of Mr. Hamdan,” but has offered no evidence that such a basis exists. The Government has identified a National Security interest in not identifying Witness C, and has generally objected to identifying Witness B on the grounds that he will only provide cumulative evidence. The Defense has already cross-examined Major Smith, whose forces apprehended Mr. Hamdan, and who was responsible for his care and protection during this period, and has finally been given access to Witness A, who conducted and was primarily responsible for the interview. …
The Government has asserted a National Security interest in protecting the identity of Witness C, and the Commission accepts this claim. The Government’s general assertion that an interview of Witness B would place an undue burden on the government and risk damage to national security is merely an assertion by counsel. …
The Motion is DENIED as it pertains to Witness C, and GRANTED as it pertains to Witness B, subject to the conditions described above.
With respect to other government officers who participated in the various interrogations of the accused, and whose identities are not subject to National Security considerations, the motion is GRANTED. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 21 April 2008, pp. 1–2.
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 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated:
In the case of suspicion or accusation for a criminal offence, the suspected, accused or prosecuted person shall have the right:
- To interrogate or have the prosecution witnesses interrogated and to demand the presence and hearing of the defence witnesses under the same circumstances as for the witnesses for the prosecution. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 206.
Democratic Republic of the Congo
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. Regarding the participation of victims and witnesses in the proceedings, the training manual states:
Certain victims and witnesses may collaborate with justice under the protection of anonymity, although the resort to such measure is obviously a serious violation of the rights of defence. There is thus a dilemma opposing, on the one hand, victims and witnesses, who claim their right to respect and protection; and on the other hand, the accused, whose right to a fair trial implies the possibility of … examining or having examined victims and witnesses against him.
Nevertheless, the protection of the identity of victims and witnesses is imposed by international tribunals in exceptional circumstances … [C]ertain proceedings before these tribunals take place when the conflict is ongoing or the situation in the field is far from stable. These factors increase the risk of reprisals and thus require the use of exceptional mechanisms of protection. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 62–63.
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.
Mexico
In 2006, during the consideration of the third periodic report of Mexico by the Committee on the Rights of the Child, a representative of Mexico stated: “The rights to a defence and a fair hearing and all rights related to due process … [are] respected. The minor … [has] the right … to come face-to-face with … witnesses.” 
Mexico, Statement before the Committee on the Rights of the Child during the consideration of the third periodic report of Mexico, 1 June 2006, UN Doc. CRC/C/SR.1141, § 18.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated: “In accordance with article 110 [of the Code of Criminal Procedure], the adversaries may examine witnesses.” 
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, § 465.
Switzerland
In 2007, in its third periodic report to the Human Rights Committee, Switzerland stated:
234. The right to question a prosecution witness is absolute if his or her testimony is decisive from the standpoint of proof. The Federal Court found that this right had been infringed in a case in which there had been no cross-examination during the preliminary proceedings before the examining magistrate and in which the victim had refused, more than four years after the initial hearing, to reply to supplementary questions put by the defendant.
235. The Federal Court clarified this practice one year later. The formal criterion of the importance of the evidence obtained, whether decisive or not, could not determine the admissibility of recourse to anonymous witnesses. Instead the court must consider, as part of an overall assessment, whether the reduction of the rights of defence entailed by acceptance of anonymous witnesses serves interests meriting protection and, if so, whether the accused was nevertheless able to defend himself effectively and had therefore enjoyed due process. In the case before it the Court considered that the rights of defence had been insufficiently safeguarded, for neither the accused nor his counsel had had an opportunity to cross-examine, at least indirectly, one of the two prosecution witnesses. 
Switzerland, Third periodic report to the Human Rights Committee, 17 December 2007, UN Doc. CCPR/C/CHE/3, submitted 12 October 2007, §§ 234–235.
[footnotes omitted]
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]
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,
7. Calls upon States to ensure the principle[s] of equality before the courts and before the law are respected within their judicial systems, inter alia by providing to those being tried the possibility to examine, or to have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and § 7, 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,
5. Calls upon States to ensure that the principles of equality before the courts and before the law are respected within their judicial systems, inter alia by providing to those being tried the possibility to examine, or to have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. 
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judiciary should be observed at all times,
6. Calls upon States to ensure that the principles of equality before the courts and before the law are respected within their judicial systems, inter alia by providing to those being tried the possibility to examine, or to have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and § 6, voting record: 52-0-1.
No data.
No data.
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated:
IV. EVIDENTIARY MATTERS
2. Approach to the Evidence
43. The Chamber will refrain from entering into an assessment pursuant to article 69(4) of the [1998 ICC] Statute as to the admissibility of each item of evidence submitted for the purposes of the confirmation hearing, in the absence of a challenge in this regard from either of the parties. This approach is consistent with the evidentiary rules applicable to and the scope of the evidentiary analysis undertaken at the pre-trial stage of proceedings. In particular, an in-depth assessment as to the admissibility of the evidence submitted for the purposes of the confirmation hearing is rendered essentially meaningless in view of the fact that the Prosecution may, for the purposes of the confirmation of charges, rely on documentary or summary evidence, including redacted versions of witness statements and summaries of statements of anonymous witnesses, and need not call the witnesses expected to testify at trial.
44. This approach is further justified by the limited object and purpose of the confirmation hearing which, as highlighted above, is to separate those cases which should go to trial from those which should not. In this regard, the Chamber’s consideration of the evidence is not undertaken for the purposes of determining the guilt or innocence of the suspect. A wholesale assessment as to the admissibility of each item of evidence at this stage would unjustifiably delay the proceedings and give rise to an inappropriate pre-determination of evidentiary matters which should be properly decided in light of the whole of the evidence presented at trial. Such an approach, in the view of the Chamber, would be incompatible with the fair trial rights of the suspect guaranteed under article 67 of the Statute, and in particular, the right to be tried without undue delay under article 67(l)(c) of the Statute.
45. The Chamber underlines that this assessment of the evidence does not entail, as suggested by the Prosecution, that all evidence that is “not incredible on its face” should be accepted, or that “the Prosecution’s evidence is ‘entitled to credence unless incapable of belief’”. There is no provision in the statutory framework of the Court which expressly states that inconsistencies, ambiguities or contradictions in the evidence should be resolved in favour of the Prosecution. Furthermore, the procedures before the international criminal tribunals, on which the Prosecution relies in support of its theory of evidence assessment, are so fundamentally different to the proceedings relating to the confirmation of charges that such a principle cannot be applied by analogy.
46. In addition, article 61(6) of the Statute allows for the Defence to challenge the evidence brought by the Prosecution and to present its own evidence. The introduction of conflicting evidence by the Defence necessarily engages the Chamber in an assessment of the credibility and weight of this evidence in light of the whole of the evidence submitted for the purposes of the confirmation hearing. There is no basis to apply a different approach to such an assessment where the conflict or contradiction is between items of evidence submitted by the Prosecution.
47. Accordingly, and consistent with the approach adopted in other cases, the Chamber will assess the intrinsic coherence of each item of evidence in light of the whole of the evidence submitted for the purposes of the confirmation hearing. Where such evidence is found to contain inconsistencies, ambiguities or contradictions, the Chamber will exercise caution in using it to affirm or reject any assertion made by the Prosecution.
3. Anonymous Witnesses’ Statements and Summaries of Witness Statements
49. The Chamber reaffirms previous findings that, although the use of anonymous witnesses’ statements and summaries of anonymous witnesses’ statements is permitted at the pre-trial stage, such evidence may be taken to have a lower probative value in order to counterbalance the disadvantage that it might cause to the Defence. Furthermore, anonymous hearsay contained in witness statements will be used only for the purposes of corroborating other evidence, while second degree and more remote anonymous hearsay contained in witness statements will be used with caution, even as a means of corroborating other evidence. Hearsay from a known source will be analysed on a case by case basis, “taking into account factors such as the consistency of the information itself and its consistency with the evidence as a whole, the reliability of the source and the possibility for the Defence to challenge the source”.
4. Defence Challenges to the Admissibility of Evidence
(i) Materials Seized from Mr Mbarushimana’s House at the Time of his Arrest
61. Even if it were to be accepted that there were procedural shortcomings in the investigative procedures complained of, article 69(7) of the Statute does not mandate automatic exclusion of evidence thus obtained. In each case, the striking of an appropriate balance between the Statute’s fundamental values is at the discretion of the Chamber and items of evidence obtained in violation of the Statute or internationally recognised human rights will be found to be inadmissible only in circumstances where (a) the violation casts substantial doubt on the reliability of the evidence, or (b) the admissibility of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.
(ii) Communications Intercepted by the French and German Authorities
71. In relation to the Defence’s request that the intercept evidence be excluded under article 69(7) of the Statute, the Chamber reaffirms its findings set out in paragraphs 61–65 above. The Chamber notes that the Defence’s suggestion that the interception of the communications in question was carried out illegally is ill founded, as it has not been substantiated in any way. Moreover, the Defence has failed to make any submissions to the effect that a lack of authorisation of the intercepts would have any impact on the reliability of the evidence thereby obtained, or that their admission into evidence would be antithetical to or would seriously damage the integrity of the proceedings. Accordingly, the Chamber rejects the [D]efence challenge to the admissibility of the intercepts under article 69(7) of the Statute.
72. In relation to the Defence challenge to the relevance and reliability of the intercepted communications, the Chamber recalls article 69(4) of the Statute, pursuant to which the Court “may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence”.
(iii) Documents Emanating from Human Rights Watch
77. In the view of the Chamber, the arguments of the Defence in relation to the documents emanating from Human Rights Watch are not such as would affect the admissibility of this evidence, although they may have an impact on the evidentiary weight to be attached thereto. Considering the source of the documents, the purpose for which the information contained therein was gathered and the nature and relevance of the information contained therein, the Chamber is satisfied that the documents emanating from Human Rights Watch are relevant and have some probative value, which is not outweighed by their prejudicial effect and are therefore admissible.
78. The evidentiary weight to be attached to the information contained in documents emanating from Human Rights Watch will be assessed on a case-by-case basis. As a general principle, the Chamber finds that information based on anonymous hearsay must be given a low probative value in view of the inherent difficulties in ascertaining the truthfulness and authenticity of such information. Accordingly, such information will be used only for the purpose of corroborating other evidence. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, §§ 43–47, 49, 61, 71–72 and 77–78.
[footnotes in original omitted]
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Court
In its judgment in the Lubanga case in 2012, the ICC Trial Chamber I stated:
107. The [1998 ICC] Statute framework provides the Chamber with a considerable degree of flexibility as regards the evidence it receives, as analysed by the Chamber in its Decision on the admissibility of four documents:
19. There are four key factors arising from the provisions contained within the statutory framework which provide the necessary starting-point for an investigation of the Trial Chamber’s general approach to this issue (the admissibility of evidence other than direct oral evidence).
20. First, the chamber’s statutory authority to request the submission of all evidence that it considers necessary in order to determine the truth: Article 69(3).
21. Second, the Chamber’s obligation to ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the accused: Article 64(2).
22. Third, although the Rome Statute framework highlights the desirability of witnesses giving oral evidence – indeed, the first sentence of Article 69(2) requires that “[t]he testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or the Rules of Procedure and Evidence” – the second and third sentence of Article 69(2) provide for a wide range of other evidential possibilities: “[t]he Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused.” Therefore, notwithstanding the express reference to oral evidence from witnesses at trial, there is a clear recognition that a variety of other means of introducing evidence may be appropriate. Article 68, which is expressly referred to in the first sentence of Article 69(2) as providing instances when there may be a departure from the expectation of oral evidence, deals directly with the particular exigencies of trials before the ICC, and most particularly there is an express recognition of the potential vulnerability of victims and witnesses, along with the servants and agents of a State, which may require “special means” to be used for introducing evidence. The Court is enjoined to consider the range of possibilities that exist to afford protection, subject always to the rights of the accused and the need for the trial to be fair and impartial.
23. Fourth, Article 69(4) of the Statute confers on the Chamber a broad power to make decisions as regards evidence: “[t]he Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of witness, in accordance with the Rules of Procedure and Evidence” and by Article 64(9) the Trial Chamber has the power to “[r]ule on the admissibility or relevance of any evidence.” Therefore, the Court may rule on the relevance or admissibility of evidence, and Rule 63(2) provides that “[a] Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9 to assess freely all evidence”. It follows that the Chamber has been given a wide discretion to rule on admissibility or relevance and to assess any evidence, subject to the specified issues of “fairness”.
24. Therefore, summarising these four key factors, the drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited - at the outset - the ability of the Chamber to assess evidence “freely”. Instead, the Chamber is authorised by statute to request any evidence that is necessary to determine the truth, subject always to such decisions on relevance and admissibility as are necessary, bearing in mind the dictates of fairness. In ruling on admissibility the Chamber will frequently need to weigh the competing prejudicial and probative potential of the evidence in question. It is of particular note that Rule 63(5) mandates the Chamber not to “apply national laws governing evidence”. For these reasons, the Chamber has concluded that it enjoys a significant degree of discretion in considering all types of evidence. This is particularly necessary given the nature of the cases that will come before the ICC: there will be infinitely variable circumstances in which the court will be asked to consider evidence, which will not infrequently have come into existence, or have been compiled or retrieved, in difficult circumstances, such as during particularly egregious instances of armed conflict, when those involved will have been killed or wounded, and the survivors or those affected may be untraceable or unwilling – for credible reasons – to give evidence.
108. With evidence other than direct oral evidence, the Chamber has made allowance for the potential problems that accompany any lack of opportunity to question the individual(s) who originally supplied the information. The extent to which this is relevant and may cause prejudice depends on the nature and circumstances of the particular evidence. The situations (as indicated in the preceding quotation) are infinitely variable and the Chamber has approached this issue on a case-by-case basis. 
ICC, Lubanga case, Judgment, 14 March 2012, §§ 107–108.
[footnotes in original omitted]
International Criminal Court
In its judgment in the Ngudjolo Chui case in 2012, the ICC Trial Chamber II stated:
41. The Appeals Chamber has held that article 69(4) of the Statute requires the trial chamber to rule on the admissibility of each item of submitted evidence “at some point in the proceedings”. In any event, an item will be admitted into evidence only if the Chamber rules that it is relevant and/or admissible within the meaning of article 69, taking into account its probative value and whether it may adversely affect the fairness of the trial or a fair evaluation of the testimony of the witness in question.
42. In order to rule on the admissibility of an item of evidence, the Chamber has employed a three-tiered approach. Firstly, it has examined the relevance of the item; then it has assessed its probative value; and lastly it has weighed the probative value against any prejudice which might result from its admission into evidence.
1. Evidence assessment method
43. This Judgment is based on “the entire proceedings” and on the Chamber’s “evaluation of the evidence” pursuant to article 74(2) of the Statute.
44. This statutory provision requires the Chamber to base its decision “only on evidence submitted and discussed before it at the trial”. In the Chamber’s view, the phrase “discussed before it at the trial” encompasses not only the oral testimony, together with any documents and other items such as video recordings which were “discussed” during the hearings, but also any items of evidence that were “discussed” in the written submissions of the parties and the participants at any stage of the trial (such as documents submitted by counsel pursuant to a prior written application). The principal consideration is that the evidence upon which the Chamber bases its article 74 Decision should have been introduced during the trial and have become part of the trial record, through the assignment of an evidence (EVD) number and that the parties should have had an opportunity to make submissions as to each item of evidence.
3. Assessment of evidence other than direct oral evidence
56. The Chamber took a cautious approach in assessing evidence originating from anonymous hearsay. It did not rule out such evidence ab initio, instead assessing its probative value on the basis of the context and conditions in which such evidence was obtained, and with due consideration of the impossibility of cross-examining the information source.
4. Assessment of documentary evidence
58. Regarding the relevance of documentary evidence, the Chamber recalls that it has held that:
[…] If a party has tendered an item of evidence as proof of a particular proposition, the Chamber will in principle admit it only for that purpose, even if the entire exhibit is admitted into evidence. Accordingly, if the same item of evidence could also prove another proposition than the one(s) for which it was tendered, the Chamber will not consider the evidence in relation to that additional proposition, unless the parties were given an opportunity to address this aspect of the evidence.
59. Accordingly, the Chamber wished to ensure full respect for the adversarial principle, as set out in the final sentence of article 74(2) of the Statute.
7. Protective measures
63. The Chamber ordered measures to protect the identity of many of the witnesses in this case due to concerns for their personal safety or that of their families. For the same reasons, witnesses are referred to in this Judgment by a number rather than by name and certain details that might reveal their identities have been omitted. It is to be emphasised that whenever the Chamber ordered protective measures for witnesses, the parties and participants were always aware of the relevant particulars.
9. Judicial site visit
69. The Chamber undertook the judicial site visit on 18 and 19 January 2012, accompanied by representatives of the parties and participants, but not the Accused persons … . The Chamber met with several individuals in situ, but neither heard any witnesses nor allowed anyone to provide it with any information related to the case. The parties and participants were invited by the Chamber at various places during the visit to identify locations, sites or buildings and to provide any relevant details about the events which occurred there. These observations were also noted by the Court Officer in the Site Visit Report. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, §§ 41–44, 56, 58–59, 63 and 69.
[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.
International Criminal Tribunal for Rwanda
In its judgment in the Rutaganda case in 2003, the ICTR Appeals Chamber stated in relation to the cross-examination of witnesses:
31. Under Rule 85(B) of the Rules [of Procedure and Evidence], each witness may, following his examination-in-chief, be subjected to cross-examination and re-examination. As to the procedure for cross-examination, [Rule 90(G)(i) of Procedure and Evidence] stipulates that cross-examination shall be limited to points raised in the examination-in-chief or to matters affecting the credibility of the witness. The Rules provide no other indication as to the scope of cross-examination or the form it should take, and only give general rules on examination and cross-examination of witnesses that are patterned after the U.S Federal Rules of Evidence. With regard to leading questions in particular, the Rules do not contain any specific provision thereon, but, as the Appeals Chamber pointed out in the Akayesu case:
[…] leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief. Still, in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption. Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.
44. With regard to the principle of equality of arms between the Accused and the Prosecution, which is another component of the right to a fair trial in criminal law, it is stated, inter alia, in Article 20(4)(e) of the [1994 ICTR] Statute that in the determination of any charge against the accused pursuant to the Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
“To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.”
45. Lastly, the Appeals Chamber recalls that the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions. 
ICTR, Rutaganda case, Judgment on Appeal, 26 May 2003, §§ 31 and 44–45.
International Criminal Tribunal for Rwanda
In its judgment in the Nzabirinda case in 2007, the ICTR Trial Chamber stated: “An accused who pleads not guilty … has a right to a fair trial, including, the right to cross-examine Prosecution witnesses, to call Defence witnesses, and to testify in his defence.” 
ICTR, Nzabirinda case, Judgment, 23 February 2007, § 10.
International Criminal Tribunal for Rwanda
In its judgment in the Nahimana case in 2007, the ICTR Appeals Chamber stated:
181. The Appeals Chamber accepts the view that the concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party. Considering the latter right under the principle of equality of arms, the Appeals Chamber of ICTY held that Article 21(4)(e) of the Statute of ICTY:
serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.
182. Under Rule 90(F) of the Rules [of Procedure and Evidence], the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”. The Appeals Chamber recalls that the Trial Chamber has discretion to determine the modalities of examination-in-chief, cross-examination and re-examination so as to accord with the purposes of Rule 90(F). In this regard, it should be emphasised that:
the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.
When addressing a submission concerning the modalities of examination, cross-examination or re-examination of witnesses, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, §§ 181–182.
International Criminal Tribunal for Rwanda
In the Karera case, the accused, who was sub-prefect and then prefect of Kigali prefecture in 1994, was convicted of genocide and the crimes against humanity of murder and extermination. In its judgment in 2009, the ICTR Appeals Chamber considered whether the same rules applied to the testimony of accused persons as to the testimony of other witnesses, stating:
While “[t]here is a fundamental difference between being an accused, who might testify as a witness if he so chooses, and a witness”, Galić case, Judgement on Appeal, § 17] this does not imply that the rules applied to assess the testimony of an accused are different from those applied with respect to the testimony of an “ordinary witness”. A trier of fact shall decide which witness’s testimony to prefer, without necessarily articulating every step of its reasoning in reaching this decision. In so doing, as for any witness, a trier of fact is required to determine the overall credibility of an accused testifying at his own trial and then assess the probative value of the accused’s evidence in the context of the totality of the evidence. There is no requirement in the Tribunal’s jurisprudence that the accused’s credibility be assessed first and in isolation from the rest of the evidence in the case. 
ICTR, Karera case, Judgment on Appeal, 2 February 2009, § 19.
[footnotes in original omitted]
The Appeals Chamber also considered whether failure to cross-examine a witness on an aspect of his or her testimony implied a tacit acceptance of the truth of that witness’s evidence, stating:
25. The central purpose of [Rule 90(G)(ii) of the ICTR Rules of Procedure and Evidence] is to “promote the fairness of the proceedings by enabling the witness … to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.
26. For the requirements of this rule to be fulfilled, there is no need for the cross-examining party to explain every detail of the contradictory evidence. Furthermore, the rule allows for some flexibility depending on the circumstances at trial. This therefore implies that if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.
27. The Appeals Chamber notes that the term “witness” under Rule 90 of the Rules does not always equate to an accused who chooses to testify. There is a fundamental difference between the accused, who might testify as a witness if he so chooses, and a witness. The Tribunal “does not reflexively apply rules governing any other witness to an accused who decides to testify in his own case”. [Prlić case, Decision of 5 September 2008, § 11] When an accused testifies in his own defence, he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them. Furthermore, the accused’s version of the events is for the most part challenged by the Prosecution, while his testimony is aimed at responding to Prosecution’s evidence and allegations. In these circumstances, it would serve no useful purpose to put the nature of the Prosecution’s case to the accused in cross-examination. The Appeals Chamber therefore does not find that Rule 90(G)(ii) of the Rules was intended to apply to an accused testifying as a witness in his own case. The Appeals Chamber notes that, in any event, Rule 90(G)(ii) of the Rules is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.
29. … [T]he Appeals Chamber emphasizes that a Trial Chamber has the discretion to infer (or not) as true statements unchallenged during cross-examination, and to take into account the absence of cross-examination of a particular witness when assessing his credibility. 
ICTR, Karera case, Judgment on Appeal, 2 February 2009, §§ 25–27 and 29.
[footnotes in original omitted]
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 examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her, amongst others.” 
ICTY, Simić case, Judgment, 17 October 2003, § 678.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Stakić case in 2006, the ICTY Appeals Chamber stated:
145. The Appellant argues that the Trial Chamber abused its discretion and erred as a matter of law when it denied his request for funds to retain expert witnesses. He claims that the refusal of the Trial Chamber (1) violated the “principle of equality of arms,” and (2) denied him “the right … to adequately present [his] defence through experts.” He cites Articles 20 and 21 of the [1993 ICTY] Statute, which guarantee the right to a fair trial and equality, in support of his argument. He then cites several judgements from the European Court of Human Rights to argue that a party must be given the opportunity “to make known any evidence needed for their claims to succeed”. The Appellant also cites English and U.S. law for the proposition that opinions of experts are generally admissible in adversarial systems.
149. The Appeals Chamber notes that Article 21 of the [1993 ICTY] Statute provides that “[a]ll persons shall be equal before the International Tribunal,” which has been interpreted to require an “equality of arms” between the parties. The Appeals Chamber has found that the principle of equality of arms “goes to the heart of the fair trial guarantee.” While equality of arms does not mean that the Appellant is necessarily entitled to the same means and resources available to the Prosecution, it does require a judicial body to ensure that neither party is put at a disadvantage when presenting its case, particularly in terms of procedural equity. In assessing an equality of arms challenge by an accused, a judicial body must ask two basic questions: (1) was the Defence put at a disadvantage vis-à-vis the Prosecution, taking into account the “principle of basic proportionality” and (2) was the accused permitted a fair opportunity to present his case. 
ICTY, Stakić case, Judgment on Appeal, 22 March 2006, §§ 145 and 149.
International Criminal Tribunal for the former Yugoslavia
In the Krajišnik case, the accused, a member of the Bosnian Serb leadership during the armed conflict, was found guilty of a number of crimes against humanity, including, inter alia, persecution and extermination. In its judgment in 2009, the ICTY Appeals Chamber considered the cross-examination of witnesses, stating:
The Appeals Chamber stresses that, in order to fulfil the requirements of Rule 90(H)(ii) of the [ICTY] Rules [of Procedure and Evidence], it is sufficient that the cross-examining party put the nature of its case to the witness, meaning the general substance of its case conflicting with the evidence of the witness, chiefly to protect this witness against any confusion. There is no need for the cross-examining party to explain every detail of the contradictory evidence, and the Rule allows for some flexibility depending on the circumstances of the trial. In particular, if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness. 
ICTY, Krajišnik case , Judgment on Appeal, 17 March 2009, § 368.
[footnotes in original omitted; emphasis in original]
The Appeals Chamber also considered the question of whether lack of cross-examination of a witness’s account of certain matters meant being bound to accept that account, stating:
[W]hile it is true that the questioning of a witness by the cross-examining party with regard to contradicting evidence enables a trier of fact to evaluate more accurately the credibility of the witness, this credibility can be challenged by other evidence (as long as the witness is made aware that his credibility is being challenged) and the appreciation of a witness’s credibility as a whole lies within the discretion of the trier of fact. 
ICTY, Krajišnik case, Judgment on Appeal, 17 March 2009, § 371.
[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:
Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution. It does not, however, provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings. Within these limits, and subject to the limitations on the use of statements, confessions and other evidence obtained in violation of article 7, it is primarily for the domestic legislatures of States parties to determine the admissibility of evidence and how their courts assess it. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, § 39.
Human Rights Committee
In its views in L. Grant v. Jamaica in 1994 and García Fuenzalida v. Ecuador in 1996, the Human Rights Committee found a violation of Article 14(3)(e) of the 1966 International Covenant on Civil and Political Rights if the State did not take the necessary measures to enable important witnesses to appear. 
Human Rights Committee, L. Grant v. Jamaica, Views, 31 March 1994, § 8.5; García Fuenzalida v. Ecuador, Views, 12 July 1996, § 9.5.
Human Rights Committee
In Dugin v. Russian Federation in 2004, the Human Rights Committee stated:
The author claims that his rights under article 14 [of the 1966 International Covenant on Civil and Political Rights] were violated because he did not have the opportunity to cross-examine Chikin on his evidence, summon the expert and call additional witnesses. While efforts to locate Chikin proved to be ineffective for reasons not explained by the State party, very considerable weight was given to his statement, although the author was unable to cross-examine this witness. Furthermore, the Orlov Court did not give any reasons as to why it refused the author’s request to summon the expert and call additional witnesses. These factors, taken together, lead the Committee to the conclusion that the courts did not respect the requirement of equality between prosecution and defence in producing evidence and that this amounted to a denial of justice. Consequently, the Committee concludes that the author’s rights under article 14 have been violated. 
Human Rights Committee, Dugin v. Russian Federation, Views, 18 August 2004, § 9.3.
Human Rights Committee
In Khomidova v. Tajikistan in 2004, the Human Rights Committee held:
The Committee has noted the author’s claim that the trial of Mr. Khomidov was unfair, as the court did not fulfil its obligation of impartiality and independence (see paragraphs 2.8 and 2.9 above). It has noted also the author’s contention that her son’s lawyer requested the court to call witnesses on his behalf, and to have Mr. Khomidov examined by a doctor to evaluate his injuries sustained as a result of the torture to which he was subjected to make him confess guilt. The judge denied his request without providing any reason. In the absence of any pertinent State party information on this claim, the Committee concludes that the facts before it disclose a violation of article 14, paragraphs 1, and 3 (e) and (g), of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Khomidova v. Tajikistan, Views, 25 August 2004, § 6.5.
Human Rights Committee
In Rouse v. Philippines in 2005, the Human Rights Committee held:
As to the claim that the author was deprived of his right to cross-examine a crucial prosecution witness, the Committee notes the State party’s contention that he was afforded, and took advantage, of the possibility to cross-examine the public officers who had also filed a complaint against him. However, the Committee notes that although a subpoena order had been issued to bring the alleged victim to testify in court, neither the alleged victim nor his parents could allegedly be located. The Committee further recalls that considerable weight was given to that witness' out of court statement. Considering that the author was unable to cross-examine the alleged victim, although he was the sole eyewitness to the alleged crime, the Committee concludes that the author was the victim of a violation of article 14, paragraph 3(e) [of the 1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Rouse v. Philippines, Views, 5 August 2005, § 7.5.
Human Rights Committee
In Sultanova v. Uzbekistan in 2006, the Human Rights Committee stated:
The Committee … also notes the author’s contention that the trial of her sons was largely held in camera and that none of the witnesses were present in the court room despite numerous requests to this effect from all eight co-defendants, including [her sons]. The judge denied these requests, without giving any reasons. In the absence of any pertinent State party information, the Committee concludes that the facts before it disclose a violation of article 14, paragraph[…]3 (e), of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.5.
Human Rights Committee
In Becerra Barney v. Colombia in 2006, the Human Rights Committee held:
The Committee takes note of the author’s claims that he was tried and convicted in first instance and on appeal by courts made up of faceless judges, without the due safeguards of a public hearing and adversarial proceedings, and in particular that he was not allowed to be present and defend himself during the trial, either personally or through his representative, and had no opportunity to question the prosecution witness. It points out that, to satisfy the requirements of the right to defence guaranteed under article 14, paragraph 3, of the [1966 International Covenant on Civil and Political Rights], all criminal proceedings must allow the accused the right to an oral hearing at which he or she can appear in person or be represented by legal counsel, submit such evidence as he or she deems relevant and question the witnesses. Bearing in mind that the author was not given such a hearing during the proceedings which culminated in his conviction and sentencing, the Committee concludes that his right to a fair trial as established in article 14 of the Covenant was violated. 
Human Rights Committee, Becerra Barney v. Colombia, Views, 10 August 2006, § 7.2.
Human Rights Committee
In Larrañaga v. Philippines in 2006, the Human Rights Committee held:
Concerning the author’s claim that there was no equality of arms because his right to cross-examine prosecution witnesses was restricted, the Committee notes that the cross-examination of the main prosecution witness was repeatedly cut short by the trial judge and prematurely terminated to avoid the possibility of harm to the witness … The Committee also notes that the trial judge refused to hear the remaining defence witnesses. The court refused on the ground that the evidence was “irrelevant and immaterial” and because of time constraints. The Committee reaffirms that it is for the national courts to evaluate facts and evidence in a particular case. However, bearing in mind the seriousness of the charges involved in the present case, the Committee considers that the trial court’s denial to hear the remaining defence witnesses without any further justification other than that the evidence was “irrelevant and immaterial” and the time constraints, while, at the same time, the number of witnesses for the prosecution was not similarly restricted, does not meet the requirements of article 14 [of the 1966 International Covenant on Civil and Political Rights]. In the above circumstances, the Committee concludes that there was a violation of article 14, paragraph 3(e), of the Covenant. 
Human Rights Committee, Larrañaga v. Philippines, Views, 14 September 2006, § 7.7.
Human Rights Committee
In Ashurov v. Uzbekistan in 2007, the Human Rights Committee held:
The Committee notes the author’s claim that the trial of his son was unfair, as the court was not impartial, and the judge presiding over the second trial conducted it in a biased manner, asked leading questions, gave instructions to modify the trial’s transcript in an untruthful way and sought to exclude the Tajik-speaking lawyer from participation in the case. The Committee has noted the author's contention that his son's counsel requested the court, inter alia, properly to examine the torture claim; to allow the defence sufficient time to study the case file with the help of an interpreter; to instruct the investigative bodies to translate the indictment into Tajik; and to call witnesses on his behalf. The judge denied all requests without giving reason. On appeal, the Supreme Court did not address the claims either. In the present case, the facts presented by the author, which were not contested by the State party, show that the State party’s courts acted in a biased and arbitrary manner with respect to the above mentioned complaints and did not offer Ashurov the minimum guarantees of article 14, paragraph 3 (a), (b) and (e) [of the 1966 International Covenant on Civil and Political Rights]. In the circumstances, the Committee concludes that the facts before it disclose a violation of article 14, paragraphs 1, and 3 (a), (b) and (e), of the Covenant. 
Human Rights Committee, Ashurov v. Uzbekistan, Views, 3 May 2007, § 6.6.
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:
In the determination of charges against individuals, the individual shall be entitled in particular to:
iii) Examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. 
African Commission for Human and Peoples’ Rights, Eleventh Session, Tunis, 2–9 March 1992, Resolution on the Right to Recourse and Fair Trial, § 2(e)(iii).
European Court of Human Rights
In its judgment in Engel v. Netherlands in 1976, the European Court of Human Rights stated that Article 6 of the 1950 European Convention on Human Rights did not require
the attendance and examination of every witness on the accused’s behalf. Its essential aim, as is indicated by the words “under the same conditions”, is a full “equality of arms” in the matter. With this proviso, it leaves it to the competent national authorities to decide upon the relevance of proposed evidence insofar as is compatible with the concept of a fair trial which dominates the whole of Article 6 (art. 6). 
European Court of Human Rights, Engel v. Netherlands, Judgment, 8 June 1976, § 91.
European Court of Human Rights
In its judgment in J.J. v. the Netherlands in 1998, the European Court of Human Rights stated that under Article 6(3)(d) of the 1950 European Convention on Human Rights, the right of the defence to call and examine witnesses meant, in principle, “the opportunity for the parties to a criminal … trial to have knowledge of and comment on all evidence addressed or observations filed … with a view to influencing the court’s decision”. 
European Court of Human Rights, J. J. v. the Netherlands, Judgment, 27 March 1998, § 43.
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 … presence of defence witnesses [and] examination of witnesses against the accused. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(g)–(h).
ICRC
The ICRC Commentary on Article 75 of the 1977 Additional Protocol I points out that “the possibility of examining witnesses is an essential prerequisite for an effective defence”. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3115.
No data.