Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
The Military Manual (1993) of the Netherlands prohibits punishments “without a previous judgment by an impartial tribunal”.
The manual also provides with regard to protected persons: “No one may be sentenced and punished without a previous judgment by an impartial and independent tribunal.”
With respect to non-international armed conflicts, the manual prohibits sentences pronounced by a tribunal that does not fulfil “the essential requirements of independence and impartiality”.
The Military Manual (2005) of the Netherlands states: “Where applicable, an independent and impartial tribunal alone may conduct a trial. As a rule, this will be a court martial.”
In its chapter on the protection of the civilian population, the manual states:
There are also extensive rules on the treatment of prisoners and concerning criminal prosecution and punishment. Thus no one may be convicted and punished without a prior judgment, given by an impartial and independent judicial body.
In its chapter on non-international armed conflict, the manual states:
Section 11 - Prosecutions and procedural guarantees
1071. The prosecution and punishment of offences relating to the armed conflict should be subject to the following conditions (this relates to the bearing of arms and the committing of offences and war crimes during the internal armed conflict):
- for each conviction and imposition of punishment, prior judgment by a judicial authority that meets the essential guarantees of independence and impartiality is required.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all the Geneva Conventions”, including “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable”.