Practice Relating to Rule 100. Fair Trial Guarantees

Geneva POW Convention
Article 62 of the 1929 Geneva POW Convention provides:
The representatives of the protecting Power shall have the right to attend the hearing of the case. The only exception to this rule is where the hearing has to be kept secret in the interests of the safety of the State. The detaining Power would then notify the protecting Power accordingly. 
Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, Article 62.
Geneva Convention III
Article 105, fifth paragraph, of the 1949 Geneva Convention III provides: “The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 105, fifth para.
Geneva Convention IV
Article 74, first paragraph, of the 1949 Geneva Convention IV provides:
Representatives of the Protecting Power shall have the right to attend the trial of any protected person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the Occupying Power, which shall then notify the Protecting Power. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 74, first para.
European Convention on Human Rights
Article 6(1) of the 1950 European Convention on Human Rights provides:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 6(1).
International Covenant on Civil and Political Rights
Article 14(1) of the 1966 International Covenant on Civil and Political Rights provides:
In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing …The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(1).
American Convention on Human Rights
Article 8(5) of the 1969 American Convention on Human Rights provides: “Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.” 
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(5).
Additional Protocol I
Article 75(4)(i) of the 1977 Additional Protocol I provides: “Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly.” 
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)(i). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
ICC Statute
Article 64(7) of the 1998 ICC Statute provides:
The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 64(7).
ICC Statute
Article 67(1) of the 1998 ICC Statute provides: “In the determination of any charge, the accused shall be entitled to a public hearing.” 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 67(1).
ICC Statute
Article 68(2) of the 1998 ICC Statute provides: “As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera.” 
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 68(2).
ICC Statute
Article 76(4) of the 1998 ICC Statute provides that “the sentence shall be pronounced in public, and whenever possible, in the presence of the accused”. 
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 76(4).
Statute of the Special Court for Sierra Leone
Article 17(2) of the 2002 Statute of the Special Court for Sierra Leone provides: “The accused shall be entitled to a …public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses.” 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(2).
Statute of the Special Court for Sierra Leone
Article 18 of the 2002 Statute of the Special Court for Sierra Leone provides: “The judgement shall be …delivered in public.” 
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 18.
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. In the interest of securing a fair and public hearing and credibility of the procedure, it is understood that representatives of Member States of the United Nations, of the Secretary-General, of the media and of national and international non-governmental organizations will at all times have access to the proceedings before the Extraordinary Chambers. Any exclusion from such proceedings in accordance with the provisions of Article 14 of the Covenant shall only be to the extent strictly necessary in the opinion of the Chamber concerned and where publicity would prejudice the interests of justice.
Article 13
Rights of the accused
1. The rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected throughout the trial process. Such rights shall, in particular, include the right: to a fair and public hearing. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Articles 12(2)–13(1).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Article 16(2) of the 2007 Statute of the Special Tribunal for Lebanon provides: “The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Tribunal for the protection of victims and witnesses.” 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the 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(2).
Article 20(4) of the Statute further provides: “The hearings shall be public unless the Trial Chamber decides to hold the proceedings in camera in accordance with the Rules of Procedure and Evidence.” 
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 20(4).
Article 23 of the Statute further provides that the “judgement …shall be delivered in public”. 
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 23.
American Declaration on the Rights and Duties of Man
Article XXVI of the 1948 American Declaration on the Rights and Duties of Man provides: “Every person accused of an offense has the right to be given …a public hearing”. 
American Declaration on the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Res. XXX, Bogotá, 2 May 1948, Article XXVI.
Universal Declaration of Human Rights
Article 10 of the 1948 Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a …public hearing”. 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 10.
Universal Declaration of Human Rights
Article 11 of the 1948 Universal Declaration of Human Rights provides: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial.” 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 11.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8(a) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right “in the determination of any charge against him, to have a fair and public hearing”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 8(a).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of 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 20(4) of the 1993 ICTY Statute provides: “The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 20(4).
ICTY Statute
Article 23(2) of the 1993 ICTY Statute provides: “The judgement …shall be delivered by the Trial Chamber in public.” 
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 23(2).
ICTR Statute
Article 19(4) of the 1994 ICTR Statute provides: “The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 19(4).
ICTR Statute
Article 22(2) of the 1994 ICTR Statute provides: “The judgement …shall be delivered by the Trial Chamber in public.” 
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 22(2).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1)(a) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right, “in the determination of any charge against him, to have a fair and public hearing”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 11(1)(a).
EU Charter of Fundamental Rights
Article 47(2) of the 2000 EU Charter of Fundamental Rights provides: “Everyone is entitled to a fair and public hearing.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 47(2).
Argentina
Argentina’s Law of War Manual (1989) lists the fundamental guarantees for prisoners of war, inter alia, “public trial”. 
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.
The same provision applies to civilians and in occupied territories. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, §§ 4.15 and 5.09(4).
Canada
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers:
Representatives of the Protecting Power have the right to attend the trial of any protected person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the occupant, who must then so notify the Protecting Power. A notification in respect of the date and place of the trial, however, must be sent to the Protecting Power. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.2.
Colombia
Colombia’s Instructors’ Manual (1999) provides: “Anybody who is accused has the right to …a due public trial”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Judicial procedure must be regular, that is, it must include at least the following guarantees: … the judgment must be pronounced … publicly.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 191.
New Zealand
New Zealand’s Military Manual (1992) states: “Unless the trial is to be held in camera, the Protecting Power’s representative is entitled to be present.” The footnote to this provision explains that: “The Protecting Power must be informed of any trial that is to be held in camera.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 932(3) and its footnote 145.
The manual further states: “Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(i).
Pakistan
The Manual of Pakistan Military Law (1987) states:
Opening of court. – The court is now open, and the public, whether military or otherwise (including the press), may be admitted so far as accommodation permits. It may be closed at any time to enable the members to deliberate in private (PAA [Pakistan Army Act] Rule 67).
A court martial is an open court like other courts of justice, but it has inherent powers to sit in camera if such course is necessary for the administration of justice. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 35.
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.
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 that if the trial of a prisoner of war is held in camera, “the Detaining Power shall notify the Protecting Power” of the reasons why. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 229.
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 prosecuted for an offence shall have the right to have the judgement pronounced publicly. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … public judgment.” 
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 Manual for Military Commissions (2007) states:
Public trial
(a) In general. Except as otherwise provided in the M.C.A. [Military Commissions Act of 2006] and this Manual, military commissions shall be publicly held. For purposes of this rule, “public” includes representatives of the press, representatives of national and international organizations, as determined by the Office of the Secretary of Defense, and certain members of both the military and civilian communities. Access to military commissions may be constrained by location, the size of the facility, physical security requirements, and national security concerns.  
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 806(a), p. II-68.
United States of America
The US Manual for Military Commissions (2010) states:
Public trial
(a) In general. Except as otherwise provided in chapter 47A of title 10, United States Code, and this Manual, military commissions shall be publicly held. For purposes of this rule, “public” includes representatives of the press, representatives of national and international organizations, as determined by the Office of the Secretary of Defense, and certain members of both the military and civilian communities. Access to military commissions may be constrained by location, the size of the facility, physical security requirements, and national security concerns. 
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 806(a), p. II-73.
Note. Numerous pieces of domestic legislation provide for the right to have a public trial and for the judgment to be pronounced publicly. 
See, e.g., Ethiopia, Constitution, 1994, Article 20(1); Kenya, Constitution, 1992, Article 77(10); Kuwait, Constitution, 1962, Article 165; Mexico, Constitution, 1917, Article 20(VI); Russian Federation, Constitution, 1993, Article 123(1).
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states: “Hearings are open to the public except when the court decides that all or part of it shall be run without the presence of the public for reasons of morality, family confidentiality or public order.” 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 52(2).
Afghanistan
Afghanistan’s Juvenile Code (2005) states:
Confidentiality of hearings.
1. The juvenile court shall hear the cases behind closed doors but the decision shall be read publicly.
2. [The p]ublication of documents related to [the] proceedings of children’s trial[s], including witness testimonies and [expert opinions], is not allowed in [the] mass media.
3. Under no circumstances [is the] revealing [of] information about the child’s personality or information that can result in identification of the child is … permitted.
4. Reports on court proceedings shall be [maintained]. 
Afghanistan, Juvenile Code, 2005, Article 32.
Afghanistan
Afghanistan’s Criminal Procedure Code for Military Courts (2006) states: “Trials are open to the public except when the court decides all or part of it shall be closed to the public for reasons of public order or national security.” 
Afghanistan, Criminal Procedure Code for Military Courts, 2006, Article 38.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states: “Trials are [public] and everyone can attend, except when the court decides all or part of it shall be declared secret … because of public order or public security.” 
Afghanistan, Military Criminal Procedure Code, 2010, Article 39(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 serve 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: “The main trial is [to be] public.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 234(1).
The Criminal Procedure Code also states:
From the opening to the end of the main trial, the judge or the Panel of judges may at any time, ex officio or on motion of the parties and the defence attorney, but always after hearing the parties and the defence attorney, exclude the public for the entire main trial or a part of it if that is in the interest of national security, if it is necessary to preserve a national, military, official or important business secret, or if it is to protect the public peace and order, to preserve morality in the democratic society, to protect the personal and intimate life of the accused or the injured or to protect the interest of a minor or a witness. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 235.
The Criminal Procedure Code further states:
(1) The judge or the Panel of judges shall issue a decision on exclusion of the public. The decision in question must be explained and publicly announced.
(2) The decision on exclusion of the public may be contested only in the appeal against the verdict. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 237.
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:
Trials shall be public and open to representatives of foreign States, of the Secretary-General of the United Nations, of the media and of national and international non-government organizations unless in exceptional circumstances the Extraordinary Chambers decide to close the proceedings for good cause in accordance with existing procedures in force where publicity would prejudice the interests of justice. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 34 new.
Canada
Canada’s National Defence Act (1985) states:
(1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
(a) in the interests of public safety, defence or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations.
Witnesses
(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial. 
Canada, National Defence Act, 1985, Section 180(1)–(3)
Canada
Canada’s National Defence Act (1985), as amended in 2013, states:
(1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges … shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
(2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary
(a) in the interests of public safety or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations, national defence or national security.
(3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be. 
Canada, National Defence Act, 1985, as amended in 2013, Section 180.
China
China’s Criminal Procedure Law (1979), as amended in 1996, states: “Cases in the People’s Courts shall be heard in public, unless otherwise provided by this Law”. 
China, Criminal Procedure Law, 1979, as amended in 1996, Article 11.
China
China’s Organic Law of the People’s Courts (1979), as amended in 2006, states: “All cases in the people’s courts shall be heard in public, except for the ones involving State secrets, individual privacy and the crimes committed by minors”. 
China, Organic Law of the People’s Courts, 1979, as amended in 2006, Article 7.
China
China’s Constitution (1982), as amended in 2004, states: “Except in special circumstances as specified by law, all cases in the people’s courts are heard in public”. 
China, Constitution, 1982, as amended in 2004, Article 125.
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 … trial. 
Colombia, Criminal Procedure Code, 2004, Article 8(k).
The Code also states:
The proceedings are public. In addition to the parties, access must be given to the media and the general community. Exceptions must be made in cases in which the judge considers that the public nature of the proceedings poses a danger to the victims, jurors, witnesses, experts, and other interveners if national security is affected, if minors who have to intervene would be exposed to psychological harm or if the success of the investigation is seriously compromised. 
Colombia, Criminal Procedure Code, 2004, Article 18.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 230
The debates before the military jurisdiction are public.
If publicity is harmful to the military public order or morals, the jurisdiction orders proceedings in camera.
When in camera proceedings have been ordered, this equally applies to the pronouncement of incidental decisions.
The decision on the merits is always pronounced in public. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Article 230.
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).
Guinea
Guinea’s Code of Military Justice (2011) states:
CHAPTER III: PROCEEDINGS BEFORE TRIAL COURTS
SECTION I: IN TIMES OF PEACE
Article 61: … Proceedings are public. A closed session can be ordered; the judgment shall nonetheless be always delivered publicly.
SECTION II: DURING ARMED CONFLICTS
Article 65: … [T]he procedure before courts during an armed conflict is identical to the one applicable in times of peace. 
Guinea, Code of Military Justice, 2011, Articles 61 and 65.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states: “Every accused shall be entitled to a public hearing, in accordance with the provisions of this law and the rules of procedure made hereunder.” 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(3).
With regard to trial proceedings, the Law states:
The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with the Rules of Procedure and Evidence annexed to this Law. The decision to close the proceedings shall be exercised on a very limited basis. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 20(4).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 75(4)(i), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order Concerning Security Provisions (1970) states:
The military court shall hold cases brought before it in public. However, a military court may order that a case brought before it shall be conducted wholly or in part behind closed doors if it considers it appropriate to do so in the interests of the security of the Israeli Defence Forces, justice, or for public safety. 
Israel, Order Concerning Security Provisions, 1970, Section 11.
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to public hearings:
The military court shall hold the hearings before it in open court; however, the military court may order that the hearings before it shall be held, entirely or partially, in camera, if it is of the opinion that it is appropriate to do so for reasons of the security of IDF forces, the security of the public, the protection of morals, or the interest of a minor, a defenseless person, a person with mental limitation, or a person with psychological limitation, or in order to look after the interests of a complainant or accused in a sexual offense, or if it is of the opinion that a hearing in open court is liable to discourage a witness from giving free testimony, or from giving testimony at all. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 89(b).
Jordan
Jordan’s Code of Military Penal Trials (2006) states:
Trials shall be public, but the Court shall be entitled to decide to carry them out in camera as per general rules if the Court perceives that public hearings prejudice the interests of the armed forces. Judgments shall, in all circumstances, be pronounced publicly. 
Jordan, Code of Military Penal Trials, 2006, Article 6.
Nepal
Nepal’s Army Act (2006) states: “Except in situations to protect national security, public order and the rights of victims, a Court Martial shall normally sit in open session.” 
Nepal, Army Act, 2006, Section 79(2).
New Zealand
New Zealand’s Court Martial Act (2007) provides:
Sittings of Court Martial
37 Requirements for sittings of Court Martial
(1) The Court Martial—
(a) must sit in open court unless section 38 or 39 applies;
38 When Court Martial must hold proceedings in closed court
(1) The Court Martial must hold its proceedings in closed court while—
(a) the Judge sits alone to rule on any question of law or procedure in accordance with section 44:
(b) the military members deliberate on the finding in accordance with section 55:
(c) the Judge and the military members deliberate on the sentence in accordance with section 61.
(2) The Court Martial may hold its proceedings in closed court on any other deliberation.
39 Judge may limit scope of open court
(1) In any proceedings in the Court Martial, the Judge may make any of the orders specified in subsection (2) limiting the scope of open court if the Judge considers that—
(a) a statement may be made or evidence given in the course of those proceedings that might lead to the disclosure of information that would or might—
(i) be directly or indirectly useful to the enemy or any foreign country; or
(ii) be otherwise harmful to New Zealand; or
(b) the making of the order—
(i) is necessary in the interests of justice; or
(ii) is desirable in the interests of public morality; or
(iii) is necessary for the protection of the reputation of a victim of an alleged sexual offence or offence of extortion.
66 Announcement of finding and sentence
(1) The Judge must announce in open court—
(a) the finding of the Court Martial on each charge tried by the court; and
(b) any sentence passed by the court. 
New Zealand, Court Martial Act, 2007, §§ 37–39 and 66.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in …the Geneva Conventions of 12 August 1949 …[and in] the two additional protocols to these Conventions …is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Peru
Peru’s New Code of Criminal Procedure (2004) states: “Every person has the right to … public ... proceedings, carried out before conviction and in conformity with this Code.” 
Peru, New Code of Criminal Procedure, 2004, Article I(2).
Peru
Peru’s Code of Military and Police Justice (2006) states that “the principles of … public proceedings … shall be respected during trial”. 
Peru, Code of Military and Police Justice, 2006, Article 151.
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in a chapter entitled “Oral and public trial”:
The trial must be public. Nevertheless, in the following cases the Chamber or the Military and Police High Court may decide with reasons to hold the proceedings partially or completely in private if:
1.-The chastity, private life or physical integrity of any of the involved parties is affected;
2.-An official, professional, particular, commercial or industrial secret is endangered whose revelation would cause serious harm, in accordance with the legislation on this matter;
3.-A minor’s statement is heard; and
4.-Because of threats against the national security and defence. 
Peru, Military and Police Criminal Code, 2010, Article 389.
Pakistan
Pakistan’s Anti-Terrorism Act (1997) states:
The Court may, subject to the availability of resources, make such necessary orders or take such measures, as it deems fit, within available resources, for the protection of a witness, judge, public prosecutor, counsel and other persons concerned in proceedings for an offence under this Act, which may also include the following measures –
(a) proceedings may be held in camera; or under restricted entry of members of the public, where necessary for the protection of the judge, witnesses or a victim’s family members or to prevent persons from crowding or storming the Court to intimidate the judge or to create a threatening atmosphere. 
Pakistan, Anti-Terrorism Act, 1997, Section 21.
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(h) To have a speedy, impartial and public trial. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(h).
Rwanda
Rwanda’s Organic Law Determining the Organization, Functioning and Jurisdiction of Courts (2004) provides:
Title 2: Jurisdiction of courts
Chapter 1: Jurisdiction of ordinary courts
Article: 90
The High Court of the Republic shall have jurisdiction to try any person including non-nationals found within the territory of the Republic of Rwanda, alleged to have committed, outside the national boundaries, any crimes falling within the category of international or cross-border crimes, especially the crimes of genocide, crimes against humanity, war crimes, terrorism, hostage taking, drug trafficking, money laundering, theft of motor vehicles for sale abroad, human trafficking especially of young girls, slavery and other crimes of similar nature. …
Title 3: General provisions related to ordinary courts
Article: 167
Court hearings shall be conducted in public unless the Court orders the hearing to be in camera, when it appears that such proceedings may jeopardize public order or cause breach of public morals. 
Article: 168
Every judgement shall contain reasons thereof and shall be read in public, within 30 days from the date of closing the hearing. 
Rwanda, Organic Law Determining the Organization, Functioning and Jurisdiction of Courts, 2004, Articles 90 and 167–168.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Article: 13 Guarantee of rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree Law n° 08/75 of February 12, 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda] to Rwanda is guaranteed the following rights:
1º the accused shall be entitled to a fair and public hearing. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Article 13.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007), as amended in 2009, states:
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda … (2003) as amended to date or [l]aws relating to the Code of Criminal Procedure [(2004)] … and the [1966] International Covenant on Civil and Political Rights, as ratified by the Decree Law No. 08/75 of February 12, 1975, the accused person in the case transferred by [the] ICTR to Rwanda shall be guaranteed the following rights:
1º a … public hearing. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, as amended in 2009, Article 13(1º).
Article One: Definitions of terms
For the purpose of this Law, the following terms shall mean as follows:
Article 14: Rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree-Law n° 08/75 of 12 February 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda], by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
South Africa
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes the right-
(c) to a public trial before an ordinary court;
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise–
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. 
South Africa, Constitution, 1996, as amended to 2003, Sections 35(3)(c) and 37(1)(a) and (5)(c).
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)”. 
South Africa, Constitution, 1996, as amended to 2003, Section 37.
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 Geneva Conventions Act (2006) states:
The High Court may, where it is satisfied that the presence of the public or any other person specified by Court, as the case may be, would be contrary to the interests of justice or would not be in the public interest, order the exclusion from any sitting of the Court, the public or any person specified by the Court. 
Sri Lanka, Geneva Conventions Act, 2006, Section 4(4).
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:
Art. 69 Principles
1. Proceedings before the court of first instance and the court of appeal, together with the oral passing of judgments and decrees of these courts shall, with the exception of the judges' deliberations, be conducted in public.
Art. 70 Restrictions on and exclusion of public access
1. The court may completely or partly exclude members of the public from court hearings if:
a. public safety or order or the legitimate interests of a person involved, and in particular the victim, so require. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Articles 69(1) and 70(1)(a).
Uganda
Uganda’s Defence Forces Act (2005) provides:
212. Trials Public
(1) Subject to subsections (2) and (3), military courts shall be public and, to the extent that accommodation permits, the public shall be admitted to the trial.
(2) Where a military court considers that it is expedient in the interest of public safety, defence or public morals that the public should be excluded during the whole or any part of a trial, the court may make an order to that effect, and any such order shall be recorded in the record of the proceedings of the military court.
(3) A witness shall not be admitted to a trial until he or she is called upon to give evidence or by specific leave of the military court and the court may at any time require the witness to withdraw after having given his or her evidence. 
Uganda, Defence Forces Act, 2005, § 212.
United States of America
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 and the Manual for Military Commissions, states:
The sessions of military commissions shall be public to the maximum extent practicable. In general, all persons granted permission to attend a session except those who may be required to give evidence shall be admitted as spectators. The convening authority shall coordinate travel and attendance of spectators. Spectators must agree in writing, prior to attending any military commission trial session that if any classified or protected information is disclosed they will not publish, release, discuss or share the information identified as protected from disclosure. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 19-7.a, p. 114.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949d. Sessions
“ …
“(c) CLOSURE OF PROCEEDINGS.—(1) The military judge may close to the public all or part of the proceedings of a military commission under this chapter.
“(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to—
“(A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or
“(B) ensure the physical safety of individuals. 
United States, Military Commissions Act, 2009, § 949d(c)(1) and (2).
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a public … trial”. 
Venezuela, Penal Procedure Code, 2009, Article 1; see also Articles 15 and 333.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a public … trial”. 
Venezuela, Penal Procedure Code, 2012, Article 1; see also Articles 15, 316 and 404 and Explanatory Notes, p. 3.
Viet Nam
Viet Nam’s Ordinance on Organization of the Military Courts (2002) states:
The military courts shall conduct trials publicly, except for cases of necessity to conduct trials behind closed doors to protect State secrets, military secrets, fine traditions and customs of the nation or to keep secrets of the involved parties at their legitimate requests. 
Viet Nam, Ordinance on Organization of the Military Courts, 2002, § 10.
Viet Nam
Viet Nam’s Criminal Procedure Code (2003) states: “Courts shall conduct trials in public; everybody shall have the right to attend such trials, unless otherwise prescribed by this Code.” 
Viet Nam, Criminal Procedure Code, 2003, § 18.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(10) Except in the case of a trial such as is referred to in subsection (14) or with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.
(11) Nothing in subsection (10) shall prevent–
(a) the court or other adjudicating authority from excluding from the proceedings, except the announcement of its decision, persons other than the parties thereto and their legal representatives to such extent as the court or other authority–
(i) may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of twenty-one years or the protection of the private lives of persons concerned in the proceedings; or
(ii) may by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the State;
or
(b) the court from excluding from proceedings preliminary to trial in respect of a criminal offence persons other than the accused person and his legal representative when so required by law, unless the accused person otherwise requests.
(14) In the case of a person who is held in lawful detention, the provisions of subsection (2) shall not apply in relation to his trial for a criminal offence under the law regulating the discipline of persons held in such detention, save that the case of such person shall be afforded a fair hearing within a reasonable time, and the person or authority conducting the trial shall be regarded as a court for the purposes of this section.
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, Section 18(10)–(11) and (14) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may–
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 86(2)(b) and (3)(e), and 87(1) and (4).
Bosnia and Herzegovina
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
Article 235 of the BiH CPC [Criminal Procedure Code of Bosnia and Herzegovina] regulates that from the opening to the end of the main trial, the judge or the Panel of judges may at any time, ex officio or on motion of the parties and the defense attorney, but always after hearing the parties and the defense attorney, exclude the public for the entire main trial or a part of it for the reasons specified in the said Article. Article 237 (1) regulates that a decision on exclusion of the public must be explained and publicly announced.
Based on a review of the case file, the Panel found that by the Decision of the Court of Bill number X-KR-05/70 dated 23 February 2006, aimed at protection of the personal and intimate life of the injured, morality and interest of the witnesses, the public was excluded from the main trial subject to the obligation of the Court to revise and evaluate the decision concerned during the entire course of the proceedings. … [T]he fact that the defense did not use the given possibility to present its position on the motion of the Prosecutor’s Office, contrary to the arguments of the appeal does not make the decision of the first instance panel unlawful. If, in addition to the above mentioned, one takes into account that the Decision concerned was publicly announced and explained, pursuant to Article 237 of the BiH CPC, and even forwarded to the parties to the proceedings in a form of a written decision, then the arguments of the appeal of the Defense Attorney … are also proved to be ungrounded as a whole.
… [T]he reasoning of the contested Verdict [also] contains important and serious reasons which indicate that the protection of the personal and intimate life of the injured, morality and interest of the witnesses who testified about the extremely difficult and humiliating circumstances they survived, in addition to the threat of the accused that he would make their protected identity known, could not be achieved in any other way but by the exclusion of the public. … Thus, the standard of the public nature of the trial and the legal possibility to depart from it in certain situations, in the opinion of this Panel, was correctly and fully applied. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, pp. 6–7.
Canada
The Mahjoub case in 2004 concerned an Egyptian national found to be a refugee under the 1951 Refugee Convention in Canada in 1996, and detained in Canada under a security certificate issued by Canadian authorities in 2000. In the context of proceedings before Canada’s Federal Court, related to the constitutionality of the detention, “Mr. Mahjoub sought an order that he be permitted to give a portion of his evidence in camera, in the absence of members of the public, including the media”. 
Canada, Federal Court, Mahjoub case, Reasons for Order and Order, 22 July 2004, § 3.
The Federal Court, in its 2004 decision on that motion, stated:
[17] It is a fundamental principle that the proceedings of Canadian courts are open and accessible to the public. This is a long recognized principle. The rationale for open proceeding was eloquently stated by Jeremy Bentham. His remarks have been quoted on more than one occasion by the Supreme Court of Canada:
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.”
See: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (Re R. v. Carson), supra at paragraph 21; Vancouver Sun (Re), 2004 SCC 43 at paragraph 24.
[18] Counsel for the parties and the intervener all argue that the exercise of the Court’s discretion to trench on that fundamental principle of openness is properly anchored by the principles established by the Supreme Court of Canada in Dagenais … Since the hearing of this application the correctness of this submission has been reaffirmed by the Supreme Court of Canada in Vancouver Sun (Re)
[19] Thus, where a judge is asked to limit freedom of expression of the public or the press in a judicial proceeding, either by way of closed proceedings or a publication ban, the judge is to apply the Dagenais test in order to balance freedom of expression and other important rights and interests. This balancing is required because where, as in the case of an application to restrict access to judicial proceedings, the Charter rights of two entities come into conflict, Charter principles require a balance to be achieved that respects the importance of both sets of rights. See Dagenais, at page 877.
[20] The Dagenais test requires a judge to restrict access to proceedings only when:
(a) such a restriction is necessary in order to prevent a real and substantial risk to the fairness of the hearing, because reasonably available alternative measures will not prevent the risk; and
(b) the salutary effects of the restriction outweigh the deleterious effects of the free expression of those affected by the ban.
See: Dagenais at page 878. See also: R. v. Mentuck, [2001] 3 S.C.R. 442 at paragraph 32 and Vancouver Sun (Re) at paragraph 29.
[21] To pose a serious risk to the proper administration of justice, the reality of the risk must be well-grounded in the evidence. It must also be a risk that “poses a serious threat to the proper administration of justice”. See: Mentuck at paragraph 34.
[22] The burden of displacing the general rule of openness lies on the party making the application.
[23] In Dagenais, at pages 890 to 891, the Supreme Court provided some general guidelines, which guidelines apply equally to applications for evidence to be adduced in camera. The guidelines included:
(c) […] A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban […].
(d) The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available.
(e) The judge must consider all possible ways to limit the ban and must limit the ban as much as possible; and
(f) The judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate. 
Canada, Federal Court, Mahjoub case, Reasons for Order and Order, 22 July 2004, §§ 17–23.
[emphasis in original]
Canada
In 2004, in Vancouver Sun (Re), the Supreme Court of Canada noted:
24. The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21. The right of public access to the courts is “one of principle … turning, not on convenience, but on necessity”: Scott v. Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438. “Justice is not a cloistered virtue”: Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), per Lord Atkin, at p. 335. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”: J. H. Burton, ed., Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115.
25. Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
27. Furthermore, the principle of openness of judicial proceedings extends to the pretrial stage of judicial proceedings because the policy considerations upon which openness is predicated are the same as in the trial stage: MacIntyre, supra, at p. 183. Dickson J. found “it difficult to accept the view that a judicial act performed during a trial is open to public scrutiny but a judicial act performed at the pretrial stage remains shrouded in secrecy”: MacIntyre, at p. 186. 
Canada, Supreme Court, Vancouver Sun (Re), Judgment, 23 June 2004, §§ 24–25 and 27.
[emphasis in original]
Canada
In 2007, in Named person v. Vancouver Sun, the Supreme Court of Canada noted:
31. The “open court principle” is a “hallmark of a democratic society”, as this Court said in Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43, at para. 23. This principle, as the Court noted in that case, “has long been recognized as a cornerstone of the common law” (para. 24), and has been recognized as part of the law since as far back as Scott v. Scott, [1913] A.C. 417 (H.L.), and Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), where Lord Atkin wrote, at p. 335: “Justice is not a cloistered virtue”. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity” (J. H. Burton, ed., Benthamiana: or, Select Extracts from the Works of Jeremy Bentham (1843), at p. 115).
32. Open courts have several distinct benefits. Public access to the courts allows anyone who cares to know the opportunity to see “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (“CBC”), at para. 22. An open court is more likely to be an independent and impartial court. Justice seen to be done is in that way justice more likely to be done. The openness of our courts is a “principal component” of their legitimacy: Vancouver Sun, at para. 25. 
Canada, Supreme Court, Named person v. Vancouver Sun, Judgment, 11 October 2007, §§ 31–32.
[emphasis in original]
Israel
In its judgment in the Dar-Halil case in 2008, Israel’s Military Court of Appeals for Judea and Samaria stated:
Before us, therefore, are two appeals, one on the part of the prosecution and another on the part of the defense, against the verdict, and against the degree of severity of the sentence. However, the prosecution’s appeal is unique, due to the fact that we were called within it to deal with the general question of hearing the testimony of General Security Services witnesses in the military courts in camera.
Holding Hearings in Camera
The principle of trial in open court is one of the foundational principles of the judicial process. …
Now, as then, the point of departure for the law in the area and in Israel is that court hearings will be held publicly and in open court.
That position was manifest in a most restricted fashion in the Fourth Geneva Convention (1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War), which does not entrench the principle of open court in the wide sense. All the convention determines is that the representatives of the “Protecting Power” shall be allowed to attend the trial of any protected person, excepting cases in which it has been decided, as an exceptional measure, to hold the trial in camera in the interests of the security of the Occupying Power (Article 74 of the Convention; see also articles 62 & 105 of the Third Geneva Convention (1949 Geneva Convention relative to the Treatment of Prisoners of War)).
However, in more recent conventions, the principle of trial in open court has been more widely expressed. Thus, Article 14(1) of the [1966] ICCPR (International Convention on Civil and Political Rights) determines that every person has the right to have his arguments heard in public. However, that convention also recognizes the possibility of holding trial in camera for reasons of morals, ordre public or national security. The convention also recognizes the possibility of holding trial in camera if, in the opinion of the court, that is necessary in order to do justice. In its commentary on the ICCPR, the UN Commission on Human Rights emphasized that cases in which hearings are held in camera must be exceptional in nature. Similar provisions can be found in the [1969] American Convention on Human Rights (Article 8(5) of the convention) and the [1950 European] Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(a) of the convention …).
It seems that it can be said, therefore, that even though there is no clear entrenchment of the principle of trial in open court in the traditional sources of international law regarding the area, that principle has to a great extent become part of the accepted international norm. We emphasize, however, that in each legal system, exceptions are accepted, for various reasons.
In our area, the principle of trial in open court is entrenched in the beginning of section 11(a) of the Security Provisions Order, 5730-1970, which states:
11. Trial in Open Court
“… military courts shall hold their hearings in open court …”
Exceptions to the Rule
However, despite the centrality of said principle, it is not the only principle constituting all of the interests that are worthy to be manifest in a judicial proceeding. Beside it stand values, rights and interests that compete with it and even clash with it, whose exercise and protection at times require deviation from the principle of trial in open court. …
Study of the legislation in the area reveals that the legislature recognized the importance of these interests. It appears that there is no controversy regarding the proper purpose of the exceptions to the rule of trial in open court which were determined by the legislature.
Thus it was determined, at the end of section 11(a) of the Security Provisions Order, 5730-1970:
“however, a military court may order that the hearing take place in camera, completely or partially, if it is of the opinion that it is right to do so for reasons of the security of IDF forces, the security of the public, protection of morals or the well-being of a minor, or if it is of the opinion that trial in open court is liable to deter a witness from testifying or from testifying freely”.
As we have demonstrated, the legislature in the area and in Israel recognized the need to deviate at times from the principle of trial in open court, in order to protect a variety of interests, first and foremost the protection of the security of IDF forces and the security of the public. Also recognized was the need to hold hearings in camera when trial in open court is liable to compromise testimony.
Again, said exceptions are not woven of the same cloth, and a number of different interests and rationales are included in them, whereas in order to decide in this case, we shall concentrate primarily upon the principles related to the security of the area.
The Security of the Area
… The security interest is an interest that, fundamentally, expresses society’s wish to exist. Without stringent protection of the security of the public, the societal fabric is liable to fall apart, and the government is liable to find itself devoid of means to ensure the most basic right for which it was appointed: the right to life …
It is against that background that one must read the provisions of international law in Regulation 43 of the Hague Regulations (Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907) and Article 64 of the Fourth Geneva Convention (1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War), which determine the protection of ordre public and the security of the forces occupying the occupied territory as supreme principles, according to which the military commander shall act. 
Israel, Military Court of Appeals for Judea and Samaria, Dar-Halil case, Judgment, 29 May 2008.
[emphasis in original]
Considering that the Military Prosecutor would like the statements of certain witnesses to be received in closed session, particularly those people who are the victims of rape;
Considering that counsel for the defence is opposed to the requested closed session, arguing that the Chief Warrant Officer publicly acknowledges that he raped certain women;
Considering that the Military Prosecutor states that he is requesting the closed session for the charge of complicity in sexual torture;
Considering that counsel for the defence wishes for his client to be granted permission to make his statements publicly because the defendant has decided to speak the truth;
Considering that the Military Prosecutor states that the case file contains a document containing the names of the women affected and that an extract of this document has been reserved for journalists, and so he asks the War Council consider the advisability of a closed session;
Considering that the bench withdrew to deliberate the petitions of the two parties;
Considering that, after the deliberations, the War Council found that the witness has the right to make a statement in closed session[.] 
Rwanda, War Council of the Republic of Rwanda, Rwahama case, Judgment, 24 November 1998, pp. 12–13.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Spain
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations: the right … to public proceedings …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section II, Primero, (B)–(C), p. 2.
United States of America
In its judgment in the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg stated that “the entire proceedings from the beginning to end were secret and no public record was allowed to be made of them” and concluded, on this and other bases, that the trial of the accused was “unfair”. 
United States, Military Tribunal at Nuremberg, Altstötter case (The Justice Trial), Judgment, 4 December 1947.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated: “The Criminal Appeals Chamber notified [the parties] on 6 December 2001, in accordance with Article 399 of the Penal Procedure Code, … so that they attend the public … hearing”. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 1.
The tribunal further stated:
[A]rticle 271 of the Constitution provides:
The proceeding for the offences of [international organized crimes, acts against the public heritage of other States and against human rights] … will be public. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 13.
[emphasis in original]
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
372. Under the provisions of article 10 of the Code of Civil Procedure, proceedings in courts are conducted in accordance with the principle of transparency. Cases in all courts are heard in public, except where there is need to protect State, professional and trade secrets, or the confidentiality of personal and family information, or to protect the interests of minors.
373. In cases where, for reasons of morality, law and order or public safety, and also in the light of other special circumstances, the conduct of public hearings in a democratic society will be prejudicial to the interests of justice, the court proceedings, or a part thereof, may be conducted in closed session. Persons participating in court proceedings may, in order to protect the confidentiality of adoption or inheritance, trade secrets, or the confidentiality of inventions, tax information or other matters, and also of private personal and family matters, may request that court proceedings be conducted in camera.
374. Hearings in camera are conducted in compliance with all the rules of court proceedings.
375. All court judgements are made public. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, §§ 372–375.
Canada
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated:
90. On 23 June 2004, the Supreme Court of Canada, in the context of a constitutional challenge to the investigative hearing provisions of the Anti-terrorism Act (see above under article 9), found that Parliament chose to have investigative hearings of a judicial nature, the open court principle is a fundamental characteristic of judicial proceedings that should not be presumptively displaced in favour of an in camera process and that judicial officers should therefore reject the notion of presumptively secret hearings. The presumption of openness should only be displaced upon proper consideration of the competing interests at every stage of the process. The existence of the hearing and as much of its subject-matter as possible should be made public unless, under a balancing exercise of minimal impairment/proportionality, secrecy becomes necessary. Applying the test in a contextual manner, judges would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice.
91. The Anti-terrorism Act amended the Canada Evidence Act (CEA) by setting out pre-trial, trial and appellate procedures to apply where there is a possibility that information injurious to international relations, national defence or national security could be disclosed. Once notice has been given to the Attorney General for Canada by any participant to a proceeding who expects to cause the disclosure of sensitive information, disclosure is prohibited unless authorized by the Attorney General of Canada or the Federal Court. The Federal Court must balance the public interest in disclosure against that in non-disclosure and, in order to serve as far as possible both of these public interests, may provide for the use in proceedings of summaries and agreed statements of fact. To ensure that these procedures are consistent with fair trial rights, the CEA provides that the person presiding at a criminal proceeding may make any order they consider appropriate, other than calling for disclosure of the information. Orders can include staying proceedings (if the judge takes the view that the accused would not otherwise get a fair trial), dismissing specified counts of the indictment or information or proceeding only in respect of a lesser or included offence. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, §§ 90–91.
China
In 2005, in a white paper on “China’s Progress in Human Rights in 2004”, China stated:
The trial system with Chinese characteristics has been further improved. Courts at all levels have further carried out the principle of open trial, striving to realize openness in filing for investigation, court hearing, conclusion of trial, and judgment documents and process of enforcement in the hope to promote justice with openness. Observance of trials by the general public has been facilitated with bulletins before trials and simplified procedures for attending trials. Over 50 million citizens observed trials in 2004. 
China, White Paper of the Government of the People’s Republic of China: China’s Progress in Human Rights in 2004, April 2005.
Finland
Upon ratification of the 1977 Additional Protocol I, Finland stated:
With regard to Article 75, paragraph 4 (i), Finland enters a reservation to the effect that under Finnish law a judgement can be declared secret if its publication can be an affront to morals or endanger national security.  
Finland, Reservations made upon ratification of the 1977 Additional Protocol I, 7 August 1980, § 1.
This reservation was withdrawn with effect from 16 February 1987.
Israel
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 17 January 2009, Israel’s Ministry of Foreign Affairs stated:
Even though the Military Courts are located within military bases, their proceedings are generally open to the public. Military Courts may conduct proceedings in camera only in limited circumstances, such as when an open proceeding would jeopardize the security of the state. The news media can and does cover Military Court proceedings, and many judgments of the Military Courts are published on the official website of the Israeli judiciary, as well as on various public online databases. 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, 29 January 2010, § 28.
[footnote in original omitted]
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.
Liechtenstein
Upon ratification of the 1977 Additional Protocol I, Liechtenstein stated in relation to Article 75: “Paragraph 4(i) is not incompatible with legislation relating to the public nature of hearings and of the pronouncement of judgment.” 
Liechtenstein, Reservations made upon ratification of the 1977 Additional Protocol I, 10 August 1989, § 1(c).
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. … At the request of the minor or the minor’s family, any proceedings … [can] be conducted in private.” 
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.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated:
As to their principle, court proceedings are public. Exceptions to the public nature of hearings may be made exclusively for reasons of the breach of public order, morality, infringement of an important private interest or if the public hearing would result in a disclosure of circumstances which due to the important interest of the State should remain undisclosed. Judgments are always announced publicly. 
Poland, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/POL/2004/5, 26 January 2004, § 265.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
Syrian Arab Republic
In 2004, in its third periodic report to the Human Rights Committee, the Syrian Arab Republic stated:
212. Observance by military courts of guarantees provided in the Covenant [International Covenant on Civil and Political Rights]:
(c) Article 65 of the Military Code of Criminal Procedure stipulates that a trial by a military court shall be public and may otherwise be declared invalid unless the court decides to hold it in camera for reasons of public morality or in the interest of the army and the armed forces. However, in all cases verdicts shall be handed down in an open session. 
Syrian Arab Republic, Third periodic report to the Human Rights Committee, 19 October 2004, UN Doc. CCPR/C/SYR/2004/3, submitted 5 July 2004, p. 212.
United Kingdom of Great Britain and Northern Ireland
In 2004, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated regarding the trial of UK citizens before a US military commission:
[T]he view of the Attorney-General was that the military commission, as constituted, would not provide the type of process that we would afford to British nationals. We have been attempting to ensure that the legal process will respect the human rights of the detainees, including the right to a fair and public hearing by a competent, independent and impartial tribunal, established by law. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 24 March 2004, Vol. 419, Debates, col. 307WH.
UN General Assembly
In a resolution adopted in 2006 on extrajudicial, summary or arbitrary executions, the UN General Assembly:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law. 
UN General Assembly, Res. 61/173, 19 December 2006, § 3, voting record: 137-0-43-12.
UN Economic and Social Council
In a resolution adopted in 2007 on the strengthening of basic principles of judicial conduct, ECOSOC:
Recalling … the Universal Declaration of Human Rights, which enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal,
Recalling further that the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights both guarantee the exercise of those rights and that the International Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay. 
ECOSOC, Res. 2007/22, 26 July 2007, preamble, adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2007 on international cooperation for the improvement of access to legal aid in criminal justice systems, particularly in Africa, ECOSOC:
Recalling the Universal Declaration of Human Rights, which enshrines the key principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal, along with all the guarantees necessary for the defence of anyone charged with a penal offence,
Recalling also the International Covenant on Civil and Political Rights, in particular article 14, which states that everyone charged with a criminal offence shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law and to minimum guarantees, including to be tried without undue delay. 
ECOSOC, Res. 2007/24, 26 July 2007, preamble, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
1. Reiterates that every person is entitled, in full equality, to a fair and public hearing by an independent and impartial tribunal, in the determination of his/her rights and obligations and of any criminal charge against him/her;
3. Further reiterates that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law;
4. Stresses the importance that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he/she has had all the guarantees necessary for the defence. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and §§ 1 and 3–4, voting record: 31-1-21.
UN Commission on Human Rights
In a resolution adopted in 2003 on extrajudicial, summary or arbitrary executions, the UN Commission Human Rights:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, [and] to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law. 
UN Commission on Human Rights, Res. 2003/53, 24 April 2003, § 4, voting record: 37-0-16.
UN Commission on Human Rights
In a resolution adopted in 2004 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
2. Reiterates that, as declared in article 14 of the International Covenant on Civil and Political Rights, every person is entitled, in full equality, to a fair and public hearing by a competent, independent and impartial tribunal duly established by law, in the determination of his/her rights and obligations and of any criminal charge against him/her, and that he/she is entitled to the presumption of innocence until proved guilty according to law.  
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on extrajudicial, summary or arbitrary executions, the UN Commission on Human Rights:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, [and] to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law. 
UN Commission on Human Rights, Res. 2004/37, 19 April 2004, § 5, voting record: 39-0-12.
UN Commission on Human Rights
In a resolution adopted in 2004 on impunity, the UN Commission on Human Rights:
Calls upon all States to ensure that criminal proceedings are conducted in accordance with the right to a fair and public hearing by a competent, independent, impartial and duly constituted tribunal in accordance with applicable international law, and to ensure that penalties are appropriate and proportionate to the gravity of the crime committed. 
UN Commission on Human Rights, Res. 2004/72, 21 April 2004, § 13, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judiciary should be observed at all times,
2. Reiterates that, as declared in article 14 of the International Covenant on Civil and Political Rights, every person is entitled, in full equality, to a fair and public hearing by a competent, independent and impartial tribunal duly established by law, in the determination of his/her rights and obligations and of any criminal charge against him/her, and that he/she is entitled to the presumption of innocence until proved guilty according to law. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and § 2, voting record: 52-0-1.
UN Commission on Human Rights
In a resolution adopted in 2005 on extrajudicial, summary or arbitrary executions, the UN Commission on Human Rights:
Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, [and] to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law. 
UN Commission on Human Rights, Res. 2005/34, 19 April 2005, § 4, voting record: 36-0-17.
UN Commission on Human Rights
In a resolution adopted in 2005 on impunity, the UN Commission on Human Rights:
Calls upon all States to ensure that criminal proceedings are conducted in accordance with the right to a fair and public hearing by a competent, independent, impartial and duly constituted tribunal in accordance with applicable international law, and to ensure that penalties are appropriate and proportionate to the gravity of the crime committed. 
UN Commission on Human Rights, Res. 2005/81, 21 April 2005, § 15, adopted without a vote.
No data.
No data.
International Criminal Court
In its judgment in the Ngudjolo Chui case in 2012, the ICC Trial Chamber II stated:
To ensure the effectiveness of the protective measures ordered by the Chamber, testimony was frequently heard in closed session, which the public was unable to follow. Nonetheless, insofar as the proceedings must be public as a rule, the Chamber endeavoured to develop, in close cooperation with the parties and participants, best practices which enabled such closed sessions to be kept to a minimum. To the extent necessary and pursuant to articles 64(7) and 67(1) of the Statute, the Chamber instructed the parties and participants to undertake a painstaking review of the transcripts of testimony given in closed sessions, and ordered that any portions thereof not containing information which could pose a security risk be reclassified as public. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, § 64.
[footnotes in original omitted]
The charges against Mr Ngudjolo Chui related to war crimes and crimes against humanity. The Trial Chamber acquitted him of all the charges. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, Disposition.
International Criminal Tribunal for the former Yugoslavia
In the Slobodan Milošević case before the ICTY in 2001 and 2002, the accused, a former president of the Federal Republic of Yugoslavia, was charged with grave breaches of the 1949 Geneva Conventions, punishable under Article 2 of the 1993 ICTY Statute, genocide, punishable under Article 4 of the 1993 ICTY Statute, crimes against humanity, punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war, punishable under Article 3 of the 1993 ICTY Statute, for his role in campaigns to forcibly remove non-Serb civilians from areas of Kosovo, Croatia, and Bosnia and Herzegovina. 
ICTY, Slobodan Milošević case, Second Amended Indictment (Kosovo), 16 October 2001, §§ 16 and 62–68, Counts 1–5; ICTY, Slobodan Milošević case, Second Amended Indictment (Croatia), 23 October 2002, §§ 6 and 34–83, Counts 1–32; ICTY, Slobodan Milošević case, Amended Indictment (Bosnia and Herzegovina), 22 November 2002, §§ 6 and 32–45, Counts 1–29.
Responding to a motion brought by the prosecution on measures for the protection of witnesses in 2002, the Trial Chamber stated:
23. The Prosecution asserts that the duty to provide for the protection and privacy of the witnesses is an affirmative one. The measures which are appropriate should be determined after balancing the right of the accused to a fair and public trial and the protection of victims and witnesses. These propositions are uncontroversial. What is clear from the [1993 ICTY] Statute and Rules of the Tribunal is that the rights of the accused are given primary consideration, with the need to protect victims and witnesses being an important but secondary one. Article 20.1 of the Statute states that Trial Chambers shall ensure that trials are conducted “with full respect for the rights of the accused and due regard for the protection of victims and witnesses”. [Emphasis added by Trial Chamber] The case law of the Tribunal bears out this proposition. It is noted, however, that whilst the rights of the accused are elevated above the protection of victims and witnesses, the latter are still given greater protective status than in national systems of criminal law. The reasoning for this may, in part, be explained by the complexities of the Tribunal’s jurisdiction, the particular dangers that attach to those who give evidence in proceedings before the Tribunal and lack of a comprehensive witness protection programme at the Tribunal’s disposal. The provisions of the Tribunal’s Statute and Rules, as well as its jurisprudence, show that the Tribunal takes seriously the striking of an appropriate balance between the sometimes competing interests of the accused and victims and witnesses. It should not be forgotten that the Rules of the Tribunal are created and interpreted in light of its Statute and the Trial Chamber will consider the specific provisions in this light.
28. The Trial Chamber notes with regret that the granting of such protective measures, which started out as an exceptional practice, has become almost the norm in proceedings before the Tribunal. Nonetheless, this practice has followed individual applications for protective measures, not for blanket orders suppressing the identity of witnesses from the accused. Whilst it is extremely important to provide adequately for the protection of victims and witnesses, the requirement that the accused be given a fair trial dictates that Trial Chambers only grant protective measures where it is properly shown in the circumstances of each such witness that the protective measures sought meet the standards set out in the Statute and Rules of the Tribunal, and expanded in its jurisprudence …
32. … It has been noted above that the correct balance must be achieved between the interests of the accused and the protection of victims and witnesses. The Trial Chamber is of the view that whilst the balance dictates clearly in favour of an accused’s right to the identity of witnesses which the Prosecution intends to rely upon (subject to protective measures granted), it dictates against making public supporting material where such disclosure might lead to witness identification and therefore endanger such victims or witnesses. The reason for this distinction is primarily because the former goes to the ability of the accused to prepare his defence, whilst the latter does not. 
ICTY, Slobodan Milošević case, Decision on Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69, 19 February 2002, §§ 23, 28 and 32.
In two further decisions relating to the provision of protective measures for witnesses in 2002, the Trial Chamber stated:
4. The determination of protective measures requires the Chamber consider several interests. On the one hand, the right of the accused to a fair and public trial, and to cross-examine witnesses against him; and, on the other hand, the right of victims to protection and privacy. The hierarchy between these interests is clearly defined in Article 30 of the [1993 ICTY] Statute, which provides expressly that the rights of the accused take precedence over the protection of victims, as they are to be given “full respect”, while the protection of the victims is to be given “due regard”. This priority is further confirmed by the wording of Rule 75(A) of the Rules [of Procedure and Evidence], which allows a Chamber to order protective measures, “provided that [they] are consistent with the rights of the accused”.
5. In essence, what must be determined in respect of each application is whether, should it become publicly known that the witness testified, there would be a real risk to his security or that of his family. The more extreme protection sought, the more onerous will be the obligation upon the applicant to establish the risk asserted. Furthermore, the minimum measure required to protect the witness’s legitimate fears should be utilized. Therefore, the Trial Chamber will, for example, only order closed session under Rule 79 in circumstances where it is shown that the risk to the witness is sufficiently founded and that no other less restrictive protective measure can adequately deal with that risk.
6. The four protective measures sought are the ordering of closed session, the granting of a pseudonym, the granting of voice distortion and the granting of facial distortion to a witness. With respect to the first and most extreme measure sought, it has been stated by one Trial Chamber that “the proceedings must be in public unless good cause is shown to the contrary.” In the Celebici case, it was stated that “the Trial Chamber cannot without good reason, deny the accused the right to a public hearing enshrined in Articles 20(4) and 21(2). This is clearly correct. The Trial Chamber, whilst having granted closed session for witnesses in the past, notes that this is an extraordinary measure that will only be granted where it can be shown that a very real risk to the witness and/or his family arises from the prospect of the public becoming aware that the witness is testifying, that it would not be violative of an accused’s right to a fair trial and that no less restrictive protective measure can adequately deal with the witness’s legitimate concerns, or where there exists some other very exceptional circumstance.
7. It follows that other protective measures sought which allow a witness’s testimony to take place in open session, but with methods designed to conceal his identity from the public (such as the use of a pseudonym, face and voice distortion) are considered less of an infringement on the public nature of the proceedings. Nonetheless, the Trial Chamber must consider whether it is appropriate that such measures be granted on the basis of whether the witness’s fears are legitimate and well founded and the right of the accused to a fair and public trial. 
ICTY, Slobodan Milošević case, Decision on Trial Related Protection Measures for Witnesses (Croatia), 30 July 2002, §§ 4–7; Slobodan Milošević case, Decision on Trial Related Protection Measures for Witnesses (Bosnia), 30 July 2002, §§ 4–7.
Following the death of the accused, proceedings were terminated by the Trial Chamber on 14 March 2006.
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:
25. The notion of fair trial includes the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, or is exposed to other manifestations of hostility with similar effects. Expressions of racist attitudes by a jury that are tolerated by the tribunal, or a racially biased jury selection are other instances which adversely affect the fairness of the procedure.
28. All trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing. The requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations, or to pre-trial decisions made by prosecutors and other public authorities.
29. Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 25 and 28–29.
African Commission for Human and Peoples’ Rights
In its decision in Media Rights Agenda v. Nigeria (224/98) in 2000, the African Commission for Human and Peoples’ Rights stated:
The exceptional circumstances [to the right to a public trial] under the International Covenant on Civil and Political Rights … are for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. The Commission notes that these circumstances are exhaustive, as indicated by the use of the phrase “apart from such exceptional circumstances”. 
African Commission for Human and Peoples’ Rights, Media Rights Agenda v. Nigeria (224/98), Decision, 23 October–6 November 2000, § 52.
African Commission for Human and Peoples’ Rights
In its decision in Civil Liberties Organisation and Others v. Nigeria in 2001, the African Commission for Human and Peoples’ Rights stated:
35. The communication further alleges that except for the opening and closing ceremonies, the trial was conducted in camera in contravention of Article 7 of the [1981 African Charter on Human and Peoples’ Rights]. The Charter does not specifically mention the right to public trials; neither does its Resolution on the Right to Recourse Procedure and Fair Trial. Mindful of developments in international human rights law and practice, and drawing especially from General Comment of the Human Rights Committee to the effect that “the publicity of the hearings is an important safeguard in the interest of the individual and of society at large … apart from exceptional circumstances, the Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons …” …
36. The publicity of hearings is an important safeguard in the interest of the individual and the society at large. At the same time article 14, paragraph 1 [of the 1966 International Covenant on Civil and Political Rights] acknowledges that courts have the power to exclude all or parts of the public for reasons spelt out in that paragraph. It should be noted that, apart from such exceptional circumstances, the UN Human Rights Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (218/98), Decision, 7 May 2001, §§ 36–37.
European Court of Human Rights
In its judgment in Stefanelli v. San Marino in 2000, the European Court of Human Rights stated:
The Court reiterates that it is a fundamental principle enshrined in Article 6 § 1 [of the 1950 European Convention on Human Rights] that court hearings should be held in public. This public character protects litigants against the administration of justice without public scrutiny; it is also one of the means whereby people’s confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the principles of any democratic society. 
European Court of Human Rights, Stefanelli v. San Marino, Judgment, 8 February 2000, § 19.
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 …public pronouncement of the judgement. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(j).
ICRC
The ICRC Commentary on the Additional Protocols states:
It is an essential element of fair justice that judgements should be pronounced publicly. Of course, a clear distinction should be made between proceedings and judgement. It may be necessary because of the circumstances and the nature of the case to hold the proceedings in camera, but the judgement itself must be made in public, unless, as the Rapporteur pointed out, this is prejudicial to the defendant himself; this could be the case for a juvenile offender. 
Yves Sandoz et al. (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3118.
No data.