Practice Relating to Rule 100. Fair Trial Guarantees

Geneva Convention III
Article 99, second paragraph, of the 1949 Geneva Convention III provides: “No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 99, second para.
International Covenant on Civil and Political Rights
Article 14(3)(g) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone is entitled to the following minimum guarantees, in full equality: … not to be compelled to testify against himself or to confess guilt.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(3)(g).
American Convention on Human Rights
Article 8(2)(g) of the 1969 American Convention on Human Rights provides for “the right not to be compelled to be a witness against himself or to plead guilty”. It can be read in conjunction with Article 8(3) which states: “A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.” 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(2)(g) and (3).
Additional Protocol I
Article 75(4)(f) of the 1977 Additional Protocol I provides: “No one shall be compelled to testify against himself or to confess guilt.” 
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)(f). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 6(2)(f) of the 1977 Additional Protocol II provides: “[N]o one shall be compelled to testify against himself or to confess guilt.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 6(2)(f). Article 6 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 97.
Convention on the Rights of the Child
Article 40(2)(b)(iv) of the 1989 Convention on the Rights of the Child provides: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … not to be compelled to give testimony or to confess guilt.” 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b)(iv).
ICC Statute
Article 55(1)(a) of the 1998 ICC Statute provides: “In respect of an investigation under this Statute, a person … shall not be compelled to incriminate himself or herself or to confess guilt.” 
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 55(1)(a).
ICC Statute
Article 67(1) of the 1998 ICC Statute provides:
In the determination of any charge, the accused shall be entitled … to the following minimum guarantees, in full equality:
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence. 
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)(g).
Statute of the Special Court for Sierra Leone
Article 17(4)(g) of the 2002 Statute of the Special Court for Sierra Leone provides: “In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: … not to be compelled to testify against himself or herself or to confess guilt.” 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(4)(g).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 12(2) of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 12(2).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Articles 15 and 16 of the 2007 Statute of the Special Tribunal for Lebanon provide:
Article 15
Rights of suspects during investigation
A suspect who is to be questioned by the Prosecutor shall not be compelled to incriminate himself or herself or to confess guilt.
He or she shall have the following rights of which he or she shall be informed by the Prosecutor prior to questioning, in a language he or she speaks and understands:
(b) The right to remain silent, without such silence being considered in the determination of guilt or innocence, and to be cautioned that any statement he or she makes shall be recorded and may be used in evidence;
Article 16
Rights of the accused
4. In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(h) Not to be compelled to testify against himself or herself or to confess guilt.
5. The accused may make statements in court at any stage of the proceedings, provided such statements are relevant to the case at issue. The Chambers shall decide on the probative value, if any, of such statements. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Articles 15(b) and 16(4)(h) and (5).
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 21 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides:
It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person. 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 21.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8(h) 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 “not to be compelled to testify against himself or to confess guilt”. 
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(h).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
ICTY Statute
Article 21(4)(g) of the 1993 ICTY Statute provides that, among the minimum guarantees, the accused is “not to be compelled to testify against himself or to confess guilt”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 21(4)(g).
ICTR Statute
Article 20(4)(g) of the 1994 ICTR Statute provides that, among the minimum guarantees, the accused is “not to be compelled to testify against himself or herself or to confess guilt”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 20(4)(g).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1)(h) 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 “[n]ot to be compelled to testify against himself or to confess guilt”. 
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)(h).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(9) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that the Agreement seeks to protect and promote the right against self-incrimination. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(9).
Argentina
Argentina’s Law of War Manual (1969) provides: “No moral or physical pressure shall be exercised on a prisoner of war to make him confess guilt for the act of which he is accused.” 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.083(1).
Argentina
Argentina’s Law of War Manual (1989) states that judicial proceedings must afford the guarantee that there is “no pressure on the prisoner to confess guilt”. 
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.
With respect to occupied territories, the manual states that there shall be “no pressure in order to obtain a confession”. 
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, § 5.09(3).
In the case of non-international armed conflict, the manual provides for the “absence of pressure [on the accused] to obtain a confession of guilt”. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 7.10.
Canada
Canada’s LOAC Manual (1999) provides: “No force of any kind may be imposed upon a PW [prisoner of war] to cause the PW to plead guilty.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-7, § 76.
It further states that in cases of non-international armed conflicts: “Accused persons shall not be compelled to testify against themselves or to confess their guilt.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(f).
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
No PW may be tried or punished for any offence, which was not, at the time of its commission, forbidden by International Law or the law of the Detaining Power. No force of any kind may be imposed upon a PW to cause the PW to plead guilty. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1040.2.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: … f. shall not be compelled to testify against themselves or to confess their guilt”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.f.
Colombia
Colombia’s Basic Military Manual (1995) provides that it is prohibited to “compel someone to confess or to incriminate himself”. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 29.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Judicial procedure must be regular, that is, it must include at least the following guarantees … the accused must not be coerced into confessing”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 191.
In a section on the obligations of the occupying power under the 1949 Geneva Convention IV, the manual also states:
C. Judicial procedure must be regular, that is, it must include at least the following guarantees:
d. the accused must not be coerced into confessing. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(C)(d).
Netherlands
The Military Manual (2005) of the Netherlands states: “No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.
New Zealand
New Zealand’s Military Manual (1992) states: “No force of any kind may be imposed upon a prisoner to cause him to plead guilty.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 932(2).
The manual further provides: “No one shall be compelled to testify against himself or to confess guilt.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(f).
The manual also states that in cases of non-international armed conflict, one of the minimum guarantees is: “No accused shall be compelled to testify against himself or to confess his guilt.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1815(4)(f).
Pakistan
The Manual of Pakistan Military Law (1987) states:
41. Confession must be voluntary. – To be relevant, and therefore admissible as evidence, a confession must be voluntary. Though it is highly desirable that the prosecutor should prove the circumstances in which a confession was made, the onus lies upon the accused of showing that a confession made by him was not voluntary and, therefore, irrelevant. Unless, therefore, it appears doubtful whether a confession is voluntary, a court need not require the prosecutor affirmatively to establish that fact.
42. What this means. – A confession is not deemed to be, if it appears to the court to have been caused by any inducement, threat, or promise, having reference to the charge against the accused person, proceeding from a person in authority (e.g., the prosecutor person having the custody of the accused) and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him to be reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to proceedings against him (Qanun-e-Shahadat, Article 37). 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 76.
Peru
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “no obligation to plead guilty”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.n.(6).
Peru
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “No obligation to plead guilty.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(n)(6), p. 251.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
While not in combat:
8. Inform the troops that a child taken in custody by government forces in an area of armed conflict should be informed of his/her constitutional rights and shall be treated humanely. Some of [these] basic rights are “the right to remain silent”, “the right to be presumed innocent until proven guilty”, “the right to be notified of the charge,” “right to counsel”, “right to presence of parents or guardian”, and the “right to confront and cross examine witnesses.” 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 55, § 8.
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.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “No coercion shall be exercised to lead the prisoner to confess guilt to the act of which he is accused.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 106.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on prisoners of war:
The capturing power may ask further questions [from prisoners of war] to obtain tactical or strategic information but the prisoner of war cannot be forced to disclose any such information … No physical or mental torture or any other form of coercion may be used to obtain information. Nor may those who refuse to answer be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.34.
The manual further explains:
No moral or physical coercion may be exerted on a prisoner of war to induce him to admit his guilt of any offence charged. This rule would exclude, for example, the use of hypnosis, drugs and oppressive methods of questioning. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.131.
In its chapter on the protection of civilians in the hands of a party to the conflict, the manual states:
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: … no one shall be compelled to testify against himself or to confess guilt. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the right of the accused not to be compelled to testify against himself.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
United States of America
The US Field Manual (1956) reproduces Article 99 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 175.
United States of America
The US Manual for Military Commissions (2007) states:
Privilege concerning compulsory self-incrimination
(a) General rule. No person shall be required to testify against himself at a proceeding of a military commission under these rules. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31, to the extent that either may be invoked in proceedings before military commissions, are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 301(a), p. III-5.
The manual further states:
Confessions, admissions, and other statements
(a) General rules.
(1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.
(2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below.
(3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.
(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.
(1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
(2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 304(a) and (c), pp. III-8 and III-9.
United States of America
The US Manual for Military Commissions (2010) states:
Pleas
(c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:
(3) That the accused has the right … against self-incrimination
(d) Ensuring that the plea is voluntary. The military judge shall not accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910(c)(3) and (d), pp. II-101 and II-102.
The manual also states:
Privilege concerning compulsory self-incrimination
(a) General rule. No person shall be required to testify against himself at a proceeding of a military commission under these rules. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31, to the extent that either may be invoked in proceedings before military commissions, are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied. 
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 301(a), p. III-5.
The manual further states:
Confessions, admissions, and other statements
(a) General Rules
(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment … whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made. 
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 304(a)(1), p. III-7.
Note. Numerous pieces of domestic legislation provide for the right not to be compelled to testify against oneself or to confess guilt. 
See, e.g., Georgia, Constitution, 1995, Article 42(8); India, Constitution, 1950, Article 20(3); Kenya, Constitution, 1992, Article 77(7); Mexico, Constitution, 1917, Article 20(II); Russian Federation, Constitution, 1993, Article 51(1).
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Article 5. Suspect and Accused.
4. The suspect and the accused shall not undergo intimidations or any form of physical or psychological pressure.
5. Their statements shall be made in a condition of absolute moral freedom.
6. The suspect and the accused have the right to abstain from making any statement even when they are questioned by the relevant police or judicial authorities.
7. The police, the Saranwal [prosecutor] and the Court are duty bound to clearly inform the suspect and the accused before interrogation and at the time of arrest about his or her right to remain silent …
8. The words or terms “suspect” and “accused” also include in their definition his [or] her defence counsel.
Article 53. Conduct of the Hearing.
5. The accused may refuse to answer the questions of the Court consistent with his right to remain silent. 
Afghanistan, Interim Criminal Procedure Code, 2004, Articles 5(4)–(8) and 53(5).
Afghanistan
Afghanistan’s Criminal Procedure Code for Military Courts (2006) states:
(a) No person can compel or force any person to make a statement against him[self].
(b) Any statement or confession taken from the suspect by compulsion or force will be invalid. 
Afghanistan, Criminal Procedure Code for Military Courts, 2006, Article 13.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Article 13. Confession.
(1) No one can compel or force the accused or suspect to make a statement against him- [or] her[self].
(2) A statement or confession taken from a suspect by compulsion or force is invalid.
(3) No one can force a suspect or accused to make a statement against him[self] that is not relevant to the issue of the charge.
Article 14. Rights of the Accused.
(1) Persons responsible for [the processing of criminal] investigations and trials are obliged, before taking any action, to inform the suspect or accused of the following rights:
1- The right to remain silent.
4- The right to know that the statements made by him can be used against him as evidence in court.
Article 21. Investigation Execution.
(2) …
The accused has the right to [remain] silen[t] … during the interrogation.
Article 41. Procedure of Trial Proceedings.
(3) The judge can [pose] questions [to] the accused …
Due to the accused[’s] silence rights, the accused may refuse to respond to the questions [by] the court. 
Afghanistan, Military Criminal Procedure Code, 2010, Articles 13(1)–(3), 14(1)(1) and (4), 21(2) and 41(3).
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).
Australia
Australia’s Crimes Act (1914), as amended to 2007, states:
23S Right to remain silent etc. not affected
Nothing in this Part affects:
(a) the right of a person to refuse to answer questions or to participate in an investigation except where required to do so by or under an Act; or
(b) any burden on the prosecution to prove the voluntariness of an admission or confession made by a person; or
(ba) any burden on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence. 
Australia, Crimes Act, 1914, as amended to 2007, Part IC, Division 3, s.23S, p. 285.
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:
In the course of deliberation of the statement on the plea of guilty from the accused, the Court must ensure the following:
a) that the plea of guilty was entered voluntarily, consciously and with understanding, and that the accused was informed of the possible consequences. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 230(1); see also Article 231(4)(a).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the proceedings of the Extraordinary Chambers:
In determining charges against the accused, the accused shall be equally entitled to the following minimum guarantees, in accordance with Article 14 of the International Covenant on Civil and Political Rights.
g. not to be compelled to testify against themselves or to confess guilt. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 35 new.
China
China’s Criminal Procedure Law (1979), as amended in 1996, states: “It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means”. 
China, Criminal Procedure Law, 1979, as amended in 1996, Article 43.
China
China’s Criminal Law (1979), as amended in 1997, states:
Any judicial officer who extorts confession from a criminal suspect or defendant by torture or extorts testimony from a witness by violence shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If he causes injury, disability or death to the victim, he shall be convicted and given a heavier punishment in accordance with the provisions of Article 234 or 232 of this Law. 
China, Criminal Law, 1979, as amended in 1997, Article 247.
China
China’s Organic Law of the People’s Procuratorates (1979), as amended in 1983, “strictly forbid[s] the obtainment of confessions by compulsion”. 
China, Organic Law of the People’s Procuratorates, 1979, as amended in 1983, Article 7.
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 … :
c) that the fact that he or she remains silent not be used against him or her. 
Colombia, Criminal Procedure Code, 2004, Article 8(c).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Guatemala
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states: “Right to refrain from testifying. No adolescent may be obliged to testify against him- or herself.” 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Article 149.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum guarantees:
F. Not to be compelled to confess guilt, and to have the right to remain silent and not to testify without such silence being interpreted as evidence of guilt or innocence. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(4)(F).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 99 of the Geneva Convention III, and of the 1977 Additional Protocol I, including violations of Article 75(4)(f), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2)(f), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Japan
Japan’s Code of Criminal Procedure (1948), as amended in 2006, states: “Any person may refuse to give testimony when there is the fear that such testimony may result in his/her criminal prosecution or conviction.” 
Japan, Code of Criminal Procedure, 1948, as amended in 2006, Article 146.
Libyan Arab Jamahiriya
The Libyan Arab Jamahiriya’s Code of Criminal Procedure for Armed Personnel (1999) states: “A court of law may accept the voluntary confession of the defendant, delivered without coercion or threat.” 
Libyan Arab Jamahiriya, Code of Criminal Procedure for Armed Personnel, 1999, Article 68.
Malaysia
Malaysia’s Security Offences (Special Measures) Act (2012) states:
2. This Act shall apply to security offences [defined in the Penal Code (1997) as including waging and abetting the waging of war against Malaysia’s Head of State].
27. (1) Any Sessions Court Judge may record any statement or confession made to him at any time before the commencement of the trial.
(3) No Sessions Court Judge shall record any such statement or confession unless, upon questioning the person making it, he is satisfied that it was made without threat, inducement or promise at that particular time. 
Malaysia, Security Offences (Special Measures) Act, 2012, Articles 2 and 27.
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.
Pakistan
Pakistan’s Anti-Terrorism Act (1997) states:
Conditional admissibility of confession
Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (President’s Order No. 10 of 1984) or any other law for the time being in force, where in any Court proceedings held under this Act the evidence (which includes circumstantial and other evidence) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before a police officer not below the rank of a District Superintendent of Police, may be admissible in evidence against him if the Court so deems fit:
Provided that the confessional statement made before the District Police Officer or equivalent officer of security forces operating in aid of civil power in the military/security operational areas notified by the Government under section 4 of this Act, involving attack on the members of Armed Forces, Civil Armed Forces, Law Enforcement Agencies, Government installations, hotels or public property, shall be admissible in evidence. Provided further that the District Superintendent of Police before recording any such confession, had explained to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and that no District Superintendent of Police has recorded such confession unless, upon questioning the person making it, the District Superintendent of Police had reason to believe that it was made voluntarily; and that when he recorded the confession, he made a memorandum at the foot of such record to the following effect:
“I have explained to (… name …), that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(signed) Superintendent of Police.” 
Pakistan, Anti-Terrorism Act, 1997, Section 21(H).
Peru
Peru’s New Code of Criminal Procedure (2004) states: “No person shall be compelled or induced to confess guilt, or testify against him- or herself”. 
Peru, New Code of Criminal Procedure, 2004, Article IX(2).
Peru
Peru’s Code of Military and Police Justice (2006) states:
No one shall be forced to testify against him- or herself. The exercise of this right shall not be construed to mean admission of facts or indication of guilt.
The adoption of any measure aimed at making the accused testify against him- or herself or at weakening his or her will shall be prohibited. Any admission of facts or any confession must be made freely and must be based on express consent. 
Peru, Code of Military and Police Justice, 2006, Article 154.
The Code also states:
Any accused shall benefit from the judicial guarantees necessary for his or her defence; the police, prosecutor and judges shall have the duty to inform the accused of the following rights immediately and in a way he or she understands:
2. [The right] to remain silent without this implying a presumption of guilt.
7. Not to be subject to techniques or methods that induce or alter the accused’s free will, or any measures against his or her dignity. 
Peru, Code of Military and Police Justice, 2006, Article 208(2) and (7).
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in a chapter entitled “Procedural principles and guarantees”:
Article 147.- Right to non-self-incrimination
No member of the military or the police shall be obliged to make a statement against him- or herself. The exercise of this right may not be taken as admitting to have committed the alleged acts or as indicating responsibility.
It remains prohibited to adopt any measure designed to compel the accused to testify against him- or herself or against their will. Any admission of acts or confession must be made freely and spontaneously and with express consent. 
Peru, Military and Police Criminal Code, 2010, Article 147.
In a chapter entitled “The accused”, the Code states:
The police, the prosecutor and the judges must inform the accused immediately and comprehensively of the following rights in order to ensure that he or she benefits from the safeguards essential for his or her defence:
2. To remain silent without this implying a presumption of guilt. 
Peru, Military and Police Criminal Code, 2010, Article 199(2).
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(d) and (e).
Philippines
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
e) To testify as a witness in his own behalf and subject to cross-examination only on matters covered by direct examination, provided that the Rule on the Examination of a Child Witness shall be observed whenever convenient and practicable.
The juvenile shall not be compelled to be a witness against himself and his silence shall not in any manner prejudice him. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26 (e).
Philippines
The Philippines’ Republic Act No. 9372 (2007) states:
No Torture or Coercion in Investigation and Interrogation. No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure, on the detained person, which shall vitiate his freewill, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and usable as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing. 
Philippines, Republic Act No. 9372, 2007, Section 24.
Poland
Poland’s Penal Code (1997) states:
Art. 245.
Anyone who uses violence or threat with intent to influence the witness, expert, translator, prosecutor or accused person or in relation to that infringes inviolability thereof shall be punished by imprisonment for 3 months to 5 years.
Art. 246.
Any public official, or any person under his command, who uses violence, threat or in any other way abuses physically or mentally another person with the purpose to obtain certain testimonies, explanations, information or declaration, shall be punished by imprisonment for 1 to 10 years.
Art. 247.
1. Anyone who abuses physically or mentally of an imprisoned person shall be punished by imprisonment for 3 months to 10 years.
2. If the perpetrator acts with particular cruelty, he shall be punished by imprisonment for 1 to 10 years.
3. § 1 and 2 applies accordingly to any public official, acting against his obligations. 
Poland, Penal Code, 1997, Articles 245–247.
Qatar
Qatar’s Penal Code (2004) states:
Any civil servant who uses torture, force, or threats against a defendant, witness, or expert, or orders such to coerce same to confess a crime, testify or provide information regarding such or to conceal a matter relevant thereto, shall be imprisoned for a period not exceeding 5 years.
If the action of the civil servant resulted in injury to the victim, the perpetrator shall be imprisoned for 10 years.
If said action resulted in death of the victim, the perpetrator shall be sentenced to death or life imprisonment. 
Qatar, Penal Code, 2004, Article 159.
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:
10° The accused shall have the right to remain silent and not to be compelled to incriminate him or herself. 
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:
7º the right to remain silent and not to be compelled to incriminate him[- or] herself. 
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(7º).
Article One: Definitions of terms
For the purpose of this Law, the following terms shall mean as follows:
Article 12: Testimony provided to ICTR [International Criminal Tribunal for Rwanda] or the Mechanism officials during investigations
When the signed statement of a witness who is subject to protection by ICTR or by the Mechanism is admitted into the case file, or an official of ICTR or the Mechanism who conducted the investigation is asked on such a statement, the identity of the witness shall not be disclosed unless the Mechanism or the witness authorizes such disclosure. No signed statement taken from a witness by an ICTR or the Mechanism investigator shall be used to incriminate the witness in any proceedings before Rwandan courts in case the investigator did not explain to the witness about his/her rights.
Article 14: Rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree-Law n° 08/75 of 12 February 1975, the accused person in the case transferred by ICTR, by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
South Africa
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons.
(1) Everyone who is arrested for allegedly committing an offence has the right–
(a) to remain silent;
(b) to be informed promptly –
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in evidence against that person;
(3) Every accused person has a right to a fair trial, which includes the right –
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(j) not to be compelled to give self-incriminating evidence;
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(1)(a)–(c), (3)(h) and (j) 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:
With respect to:
- subsection (1)(a), (b) and (c) … ;
- 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 Convention against Torture Act (1994) states:
A confession otherwise inadmissible in any criminal proceedings shall be admissible in any proceedings instituted under this Act, for the purpose only of proving the fact that such confession was made. 
Sri Lanka, Convention against Torture Act, 1994, Section 5.
Sri Lanka
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
16. (1) Notwithstanding the provisions of any other law, where any person is charged with any offence under this Act, any statement made by such person at any time, whether[:]
(a) it amounts to a confession or not;
(b) made orally or reduced to writing;
(c) such person was or was not in custody or presence of a police officer;
(d) made in the course of an investigation or not;
(e) it was or was not wholly or partly in answer to any question, may be proved as against such person if such statement is not irrelevant under section 24 of the Evidence Ordinance:
Provided, however, that no such statement shall be proved as against such person if such statement was made to a police officer below the rank of an Assistant Superintendent.
(2) The burden of proving that any statement referred to in subsection (1) is irrelevant under section 24 of the Evidence Ordinance [which provides that confession evidence in criminal proceedings is inadmissible if it appears by the court to have been the result of an inducement, threat, or promise, with reference to the charge against the accused person, from a person in authority] shall be on the person asserting it to be irrelevant.
(3) Any statement admissible under subsection (1) may be proved as against any other person charged jointly with the person making the statement, if, and only if, such statement is corroborated in material particulars by evidence other than the statements referred to in subsection (1).
17. Notwithstanding anything to the contrary in any other law, the provisions of sections 25 [inadmissibility of confessions made to the police], 26 [inadmissibility of confession made in police custody unless made in the immediate presence of a magistrate] and 30 [inadmissibility of a confession of one of several joint accused against the other accused] of the Evidence Ordinance shall have no application in any proceedings under this Act. 
Sri Lanka, Prevention of Terrorism (Temporary Provisions) Act, 1979, as amended to 1988, Sections 16 and 17.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
63. (1) At the trial of any person for an offence under any emergency regulation a statement made [by] such person whether or not it amounts to a confession and whether or not such person was in the custody of a police officer at the time the statement was made and whether or not such statement was made in the immediate presence of a Magistrate may be proved as against such person, if but only if, such statement is not irrelevant under Section 24 of [the] Evidence Ordinance [which provides that confession evidence in criminal proceedings is inadmissible if it appears by the court to have been the result of an inducement, threat, or promise, with reference to the charge against the accused person, from a person in authority].
Provided, however, that no such statement shall be proved against such person if such statement was made to a police officer below the rank of Assistant Superintendent of Police.
(2) In the case of an offence under any emergency regulation a statement made by any person which may be proved under paragraph (1) as against himself may be proved as against any other person jointly charged with such offence, if but only if, such statement is corroborated in material particulars by evidence other than a statement made under regulation 50 of these regulations.
(3) The burden of proving that any statement referred to in paragraph (1) or (2) is irrelevant under section 24 of the Evidence Ordinance shall be on the person asserting it to be irrelevant.
(4) The provisions of sections 25 [inadmissibility of confessions made to the police], 26 [inadmissibility of confession made in police custody unless made in the immediate presence of a magistrate] and 30 [inadmissibility of a confession of one of several joint accused against the other accused] of the Evidence Ordinance shall not apply in the case of any offence under any emergency regulation.
(5) A statement made by any person may be proved under [paragraph] (1) or paragraph (2) notwithstanding the provisions of sub-section (3) of section 110 of the Code of Criminal Procedure Act, No. 15 of 1979 [which provides that statements made to police officers are admissible (to prove that the person made a different statement at another time) but cannot be used to corroborate the accused’s testimony]. 
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Section 63.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states: “The accused may not be compelled to incriminate him or herself. In particular, the accused is entitled to refuse to make a statement or to cooperate in the criminal proceedings.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 113(1); see also Article 158(1)(b).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.—The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.
“(c) CONSTRUCTION OF PROVISIONS.—The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.
“(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—
“(1) The following provisions of this title shall not apply to trial by military commission under this chapter:
“ …
“(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2602, § 948b(a)–(d)(B).
The Military Commissions Act further states:
§ 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements
“(a) IN GENERAL.—No person shall be required to testify against himself at a proceeding of a military commission under this chapter.
“(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.
“(c) STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.—A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—
“(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
“(2) the interests of justice would best be served by admission of the statement into evidence.
“(d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.—A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—
“(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
“(2) the interests of justice would best be served by admission of the statement into evidence; and
“(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2607, § 948r.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 948r. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused
“(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR CRUEL, INHUMAN, OR DEGRADING TREATMENT.—No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment … whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made.
“(b) SELF-INCRIMINATION PROHIBITED.—No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter. 
United States, Military Commissions Act, 2009, § 948r(a)–(b).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
Within 48 hours of the arrest or, if the person is already deprived of his or her liberty, of properly resolving the previous matter, the Supreme Court of Justice, with the notification of the Prosecutor, carries out a hearing in which:
D) It informs the detainee that he or she … is not obliged to incriminate him- or herself or to plead guilty and that he or she may remain silent without such silence being a consideration in the determination of guilt or innocence. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 48.3.D; see also Articles 49.2.D and 50.3.D.
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right not to incriminate himself or herself”. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be granted the constitutional precept that exempts him or her from testifying”. 
Venezuela, Penal Procedure Code, 2009, Article 125(9); see also Articles 130–131 and 347.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be granted the constitutional precept that exempts him or her from testifying”. 
Venezuela, Penal Procedure Code, 2012, Article 127(8); see also Articles 132–133 and 330.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(8) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
….
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 18(8) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
50. Rights of arrested and detained persons
(4) Any person who is arrested or detained for an alleged offence has the right–
(a) to remain silent
(b) to be informed promptly –
(i) of their right to remain silent; and
(ii) of the consequences of remaining silent and of not remaining silent;
(c) not to be compelled to make any confession or admission;
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(i) to remain silent and not to testify or be compelled to give self-incriminating evidence;
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may–
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 50(4)(a)–(c), 70(1)(i), 86(2)(b) and (3)(e), and 87(1) and (4).
Canada
In the Lia case before a Canadian Federal Court in 2004, Justice Andrew MacKay held:
I agree … that evidence obtained by torture, or other means precluded by the International Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ought not to be relied upon by a panel considering a refugee application. 
Canada, Federal Court, Lia case, Reasons for Order, 3 February 2004, § 24.
The Federal Court of Appeal in 2005 held that “[s]tatements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy”. 
Canada, Federal Court of Appeal, Lia case, Judgment, 11 April 2005, § 95.
Canada
In 2004, in Application under s. 83.28 of the Criminal Code (Re), the Supreme Court of Canada noted:
70. This Court has recognized that the right against self-incrimination is a principle of fundamental justice: S. (R.J.), supra, at para. 95; Branch, supra; R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73. In Jarvis, at para. 67, the right against self-incrimination was described as “an elemental canon of the Canadian criminal justice system”. It has further been recognized in relation to the principle of individual sovereignty and as an assertion of human freedom: S. (R.J.), supra, at para. 81; R. v. Jones, [1994] 2 S.C.R. 229, at pp. 248-49; and R. v. White, [1999] 2 S.C.R. 417, at para. 43. Having recognized the centrality of the principle in Canadian law, this Court’s jurisprudence has further articulated general principles regarding the relationship of self-incrimination to criminal law more broadly. To this end, testimonial compulsion has been invariably linked with evidentiary immunity. Beginning in S. (R.J.), supra, and continuing in Branch, supra, Phillips, supra, and Jarvis, supra, the more recent jurisprudence of our Court on self-incrimination developed such that three procedural safeguards emerged: use immunity, derivative use immunity, and constitutional exemption.
71. Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means. The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness. Together these necessary safeguards provide the parameters within which self-incriminating testimony may be obtained. 
Canada, Supreme Court, Application under s. 83.28 of the Criminal Code (Re), Judgment, 23 June 2004, §§ 70–71.
[emphasis in original]
Canada
In 2005, in R. v. Turcotte, the Supreme Court of Canada noted:
41. Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:
In Canada the right of a suspect not to say anything to the police … is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]
42. Although its temporal limits have not yet been fully defined, the right to silence has also received Charter benediction. In R. v. Hebert, [1990] 2 S.C.R. 151, the first decision from this Court recognizing it as a s. 7 right, an accused, who had been arrested and advised of his rights, refused to provide a statement to the police after consulting counsel. He was then placed in a cell with an undercover officer posing as a suspect under arrest. During the course of their conversation, the accused incriminated himself. The question before the Court was whether the statement to the undercover officer was admissible. Writing for the majority, McLachlin J. held that it was not admissible because it violated the accused’s right to silence found in s. 7 of the Canadian Charter of Rights and Freedoms.
43. In addition to emphasizing the importance of providing protection from the power of the state, McLachlin J. founded the s. 7 right to silence in two common law doctrines: the confessions rule and the privilege against self-incrimination, explaining that both emerge from the following unifying theme:
[T]he idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. [p. 164]
44. It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. As Cory J. explained in Chambers, where the trial judge failed to instruct the jury that the accused’s silence could not be used as evidence of guilt:
It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. [p. 1316]
45. Although Chambers dealt specifically with silence after the accused had been cautioned, it would equally be “a snare and a delusion” to allow evidence of any valid exercise of the right to be used as evidence of guilt.
46. Moreover, as Doherty and Rosenberg JJ.A. explained in R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.), since, in most circumstances, individuals are under no obligation to assist the police, their silence cannot, on its own, be probative of guilt:
… a refusal to assist is nothing more than the exercise of a recognized liberty and, standing alone, says nothing about that person’s culpability. [p. 529]
47. Evidence of silence is, however, admissible in limited circumstances. As Cory J. held in Chambers, at p. 1318, if “the Crown can establish a real relevance and a proper basis”, evidence of silence can be admitted with an appropriate warning to the jury. 
Canada, Supreme Court, R. v. Turcotte, Judgment, 30 September 2005, §§ 41–47.
[emphasis in original]
Canada
In 2007, in R. v. Spencer, the Supreme Court of Canada noted:
11. At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions. … It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):
The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.
12. In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police … trickery” to obtain a confession “is a distinct inquiry … [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).
13. With respect to promises, which are at issue in the present appeal, this Court has recognized that they “need not be aimed directly at the suspect … to have a coercive effect” (Oickle, at para. 51). While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the “most important consideration” when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness. On the contrary, the test laid down in Oickle is “sensitive to the particularities of the individual suspect” (para. 42), and its application “will by necessity be contextual” (para. 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, … is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances” (para. 50). Inducements “becom[e] improper only when … standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” (para. 57).
14. To the extent that any distinction in law may be asserted between the traditional “confessions rule” in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609, per Lord Sumner, and this Court’s decision in Oickle, the latter must prevail. In my view, however, Lord Sumner’s formulation of the “narrow” rule does not mean that any quid pro quo will automatically render a statement involuntary. Indeed, Lord Sumner required that in order for a statement to be admissible, it must not have been “obtained from [the accused] either by fear of prejudice or hope of advantage”. In the subsequent case of Director of Public Prosecutions v. Ping Lin, [1976] A.C. 574 (H.L.), at p. 595, Lord Morris asked: “was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement”.
15. Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. 
Canada, Supreme Court, R. v. Spencer, Judgment, 8 March 2007, §§ 11–15.
[emphasis in original]
Canada
In 2007, in R. v. Singh, the Supreme Court of Canada noted:
3.1 Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived
21. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived: R. v. Jones, [1994] 2 S.C.R. 229, at p. 249. Similarly, Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, described the principle against self-incrimination in these words:
The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7. [Emphasis added; para. 44.] 
Canada, Supreme Court, R. v. Singh, Judgment, 1 November 2007, § 21.
[emphasis in original]
India
In its judgment in the Parliament Attack case in 2005, the Supreme Court of India stated:
Section 24 [of the Indian Evidence Act] lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression “appears” connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer.  
India, Supreme Court, Parliament Attack case, Judgment, 4 August 2005.
[emphasis in original]
Philippines
In the Binimira case before the Supreme Court of the Philippines in 1997, in which the appellant appealed the decision of a lower court that had convicted him of the crime of robbery with homicide, the court reversed and set aside the lower court’s decision and ordered his immediate release from confinement. In doing so, the court noted:
In the present case, Appellant Binamira was not adequately informed of his constitutional right to engage a counsel of his own choice, much less afforded an opportunity to exercise such right …
… [T]the extrajudicial confession itself shows that, in the course of the custodial investigation, Appellant Binamira was not fully apprised of his constitutional rights.
… [T]he Court will not take up appellant’s allegations that he was tortured and maltreated by the investigating police and the security guards, because such consideration is no longer necessary in view of our holding on the violation of his right to counsel of choice. Where a confession is extracted contrary to the accused’s Miranda rights, it is ipso facto inadmissible in evidence. Hence, there is no more need for the appellant to prove duress or intimidation to attain the same objective of outlawing the confession. 
Philippines, Supreme Court, Binimira case, Judgment, 14 August 1997.
Philippines
In its judgment in the Liwanag case in 2001, the Supreme Court of the Philippines stated:
… Article III, Section 12 (1) of the Constitution … refers to the right of persons under custodial investigation. In People v. Lucero, the rationale for this constitutional right was elucidated by this Court, to wit:
The 1987 Constitution requires that a person under investigation for the commission of a crime should be provided with counsel. We have constitutionalized the right to counsel because of our hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions and render them inadmissible. In providing for said right, this Court has held in the same case that when the Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilant counsel. The requirements of effectiveness and vigilance of counsel during that stage before arraignment were for the purposes of guarding against the use of duress and other undue influence in extracting confessions which may taint them and render them inadmissible. 
Philippines, Supreme Court, Liwanag case, Judgment, 15 August 2001.
[emphasis in original]
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Sri Lanka
In 2010, in its judgment in the Sivalingam case, the Supreme Court of Sri Lanka stated:
With respect to the confession made to the CID [Criminal Investigations Department], the Petitioner contends that following two weeks of torture and interrogation the CID compelled him to sign a statement … [T]he issue arises as to whether it was a voluntary confession …
Notes maintained by the CID dated 30.11.2006 … [indicate that the petitioner was] produced immediately before and after the recording of his confession before a Judicial Medical Officer who recorded no complaint, or observed any injuries. On this date, Assistant Superintendent Wimal Samarasekera, upon examining the Petitioner noted contemporaneously, that the Petitioner had no visible injuries and that all relevant warnings had been issued to the Petitioner in terms of the law. 
Sri Lanka, Supreme Court, Sivalingam case, Judgment, 10 November 2010, pp. 10–11.
United States of America
In its judgment in the Ward case in 1942, the US Supreme Court stated:
This Court has set aside convictions based upon confessions extorted from ignorant persons who have been subjected to persistent and protracted questioning, or who have been threatened with mob violence, or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely or isolated places for questioning. Any one of these grounds would be sufficient cause for reversal … The use of a confession obtained under such circumstances is a denial of due process. 
United States, Supreme Court, Ward case, Judgment, 1 June 1942.
United States of America
In 2005, in the In re Guantanamo Detainee cases, involving 11 coordinated habeas corpus civil actions brought against the US Government by various detainees being held at the US Naval Base at Guantanamo Bay, Cuba, the Court found that “CSRT [Combatant Status Review Tribunal] procedures are unconstitutional for failing to comport with the requirements of due process”. Specifically regarding the CSRT’s reliance on statements possibly obtained through torture or other coercion, the Court stated:
The first of these specific grounds involves the CSRT’s reliance on statements allegedly obtained through torture or otherwise alleged to have been provided by some detainees involuntarily. The Supreme Court has long held that due process prohibits the government’s use of involuntary statements obtained through torture or other mistreatment. 
United States, District Court for the District of Columbia, In re Guantanamo Detainee cases, Judgment, 31 January 2005.
United States of America
In the Hicks case in March 2007, the accused, an Australian citizen who had been captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba, became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
United States of America
In July 2008, in the Hamdan case, a Guantánamo Military Commission considered a Defence motion to suppress statements based on coercive interrogation practices, as well as a Defence motion to suppress statements based on the US Constitution’s Fifth Amendment right against self-incrimination. In partially granting the first of those motions, the Commission blocked the use as evidence of some statements that [the accused] had provided interrogators while he was a captive in Afghanistan, because they had been obtained under “highly coercive” conditions. The Commission declined, however, to suppress admissions made by [the accused] after he arrived at Guantánamo and ruled that the Fifth Amendment right does not apply. On the motion to suppress statements based on coercive interrogation practices, the Commission stated:
1. The motion to suppress is denied as it pertains to the capture videos. [The accused was captured in Afghanistan on 24 November 2001. Shortly afterwards, the accused was interrogated at least twice by US forces and the interrogations videotaped. These two “capture videos” were the first two subjects of the Defence motion to suppress]. The totality of the circumstances renders these statements reliable and possessing sufficient probative value. … The interests of justice will best be served by the admission of the statements into evidence. …
2. The Motion is granted as to any statement for which the Government does not produce an official involved in the taking of the statement, who can authenticate the statement, describe the conditions under which it was made, and submit to cross examination. …
3. The motion is granted as to statements of the accused made in Panshir and Bagram [in Afghanistan]. The interests of justice are not served by admitting these statements because of the highly coercive environments and conditions under which they were made. …
4. To the extent the motion raises issues of coercion after [the accused] arrived in Guantanamo, these are resolved against the accused. While [the accused] was exposed to a variety of coercive influences over the past seven years, some of these were rationally related to good order and discipline in the camp, some were imposed as a result of his own misconduct as disciplinary measures, and others were likely imposed to encourage his cooperation with camp rules and procedures generally. … The Commission is convinced, by a preponderance of the evidence, that no coercive techniques influenced the making of any of the accused’s statements in Kandahar or Guantanamo Bay. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 20 July 2008, p. 15.
On the motion to provide the US Constitution’s Fifth Amendment rights against self-incrimination, the Commission stated:
1. The citizenship and status of the detainee, and the adequacy of the process through which the determination was made:
[The accused] is a citizen of Yemen, and has been determined to be an alien unlawful enemy combatant. The determination was made after a public, two-day, adversarial hearing at which he was represented by counsel, called his own witnesses and cross-examined the government’s witnesses. The decision was made by a military judge, who considered not only the M.C.A’s [Military Commissions Act of 2006] statutory definition of unlawful enemy combatant, but considered and evaluated his claims under the Geneva Convention in an Article 5 status hearing, held over Government objection. This factor weighs against extraterritoriality.
2. The site of his apprehension and detention:
The apprehension occurred in Afghanistan, and the sites of his detention have been in Afghanistan and Guantanamo Bay. The Supreme Court has held that Guantanamo Bay is under the de jure sovereignty of Cuba, and the de facto control of the United States. As the Court indicated in Boumediene [553 US 723 (2008)], “detainees here are similarly situated to the Eisentrager [339 US 763 (1950] petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding that they have rights under the [Constitution].” Boumediene, at 38.
3. Practical [c]onsiderations and exigent circumstances
… A guarantee of the 5th Amendment’s right against self-incrimination to every detainee from the moment of his capture would entirely prevent the United States from seeking intelligence about the location, plans, capabilities and intentions of other lawful and unlawful combatants then in the field, and other attacks planned against the United States, its allies, or even unaligned nations, and would hamstring American military and intelligence officials in the performance of important national security duties. The practical effect of such a prohibition would be devastating to our ability to effectively confront and respond to international terrorism. …
[4]. Adequacy of the alternative right provided:
The alternative right provided by Congress is a right to remain silent at the proceedings themselves. While the 5th Amendment applies “in any criminal case,” Military Commissions Act (2006)] §948r provides only that “No person shall be required to testify against himself at a proceeding of a military commission under this chapter.”
Fifth Amendment jurisprudence under the Constitution now requires someone in the custody of law enforcement officials to be warned of their rights to remain silent before they are interrogated, and presumes that statements made without such warnings are involuntarily made. …
In a military commission trial, Congress has expressly and consciously denied unlawful enemy combatants a right to be warned that their statements may be used against them, and the right to have such unwarned statements suppressed … [For] Statements made where the “degree of coercion inherent in the production of a statement offered by either party is disputed – such statement may only be admitted” if the military judge determines, after a hearing, that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would best be served by admission of the statement into evidence. …
The alternative remedy Congress has provided for application in military commissions is significantly less protective of the accused than the 5th Amendment. But the same can be said of the [1949] Geneva Conventions themselves: the protections of Common Article 3 (for those not entitled to Prisoner of War Status), are minimal compared to the exhaustive and extensive protections and rights accorded to Prisoners of War in Articles 12 through 125 of the Third Geneva Convention. The right afforded defendants before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is a right “not to be compelled to testify against himself or to confess guilt.” … These standards are comparable to the protection afforded by Congress before a military commission.
This factor weighs against application of the Amendment.
[5]. Necessity for the 5th Amendment to prevent injustice:
Congress has an express delegation of Constitutional authority to “define and punish” offenses against the law of nations. This power must include power to establish tribunals, modes of proof and other standards and procedures that satisfy the minimal standards established for Unlawful combatants in Common Article 3. In this specialized area where Congress must weigh national interests with our obligations under the law of nations, the Commission can not readily conclude that a decision Congress has made under this special mantle of authority must be overturned “to prevent injustice.” The right Congress has provided to unlawful combatants in the Military Commissions Act satisfies the minimal standard of a “fair and regular” trial required by Common Article 3 and is consistent with that provided in two other international tribunals. There is no requirement for the Fifth Amendment to apply to prevent injustice.
[6]. Would application of the 5th Amendment be “impractical or anomalous”?
The Commission has already determined that there are practical obstacles to, and national interests opposing, the provision of Constitutional rights to unlawful combatants. What of anomaly? Applying the 5th Amendment to unlawful enemy combatants, arguably engaged in unlawful combat[] against coalition forces, possibly associated with international terrorist organizations that chose civilians and civilian objects as their targets, would be anomalous. Because the accused’s status deprives him of the protections accorded to Prisoners of War, giving him the protections accorded to criminal defendants in United States courts would be anomalous.
In providing the limited alternative right it chose, Congress has determined that unlawful combatants are entitled to the minimum protections of Common Article 3 in this regard. Given the longstanding practice of encouraging compliance with the law of war by according enhanced protections to those who do comply, it would be anomalous to provide Constitutional protections to unlawful combatants when their only connection or association with the United States is that they are being held here for having unlawfully opposed us on the field of battle. Nicaragua v. United States, 1986 I.C.J. 14, § 218, 25 I.L.M. 1023, cited at Hamdan v. Rumsfeld, 548 U.S. 557, 776 n. 63 (2007).
In summary, the commission finds that (1) the accused has been found to be an unlawful enemy combatant by a full, fair, open and adversarial hearing; (2) that the site of his apprehension and detention, in the Court’s own words “is a factor that weighs against a finding that he has rights under the [Constitution]”; (3) there are substantial practical arguments against applying the 5th Amendment “with full force and effect” in Guantanamo Bay; (4) that the alternative remedy Congress has provided, is considerably less protective than the 5th Amendment but is consistent with the minimal protections guaranteed to unlawful combatants under Common Article 3; (5) that there is no necessity for the 5th Amendment to prevent injustice, and (6) that application of the 5th Amendment in Guantánamo Bay would be anomalous in some respects. The preponderance of these factors analyzed weigh against application of the 5th Amendment in Guantánamo Bay. The Supreme Court has expressly disclaimed extraterritorial application of the 5th Amendment as recently as 1990: “The claim that extraterritorial aliens are entitled to rights under the 5th Amendment has been emphatically rejected.” United States v. Verdugo-Urquidez, at 268–269 (1990).
Conclusion: The 5th Amendment of the Constitution does not apply to protect [the accused]. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 20 July 2008, pp. 11–14.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
Pursuant to the provisions of article 15 of the Code of Criminal Procedure of the Republic of Azerbaijan, the following acts are prohibited in criminal prosecutions:
“(c) Obtaining evidence from a victim, suspect or defendant, and also from other persons participating in the criminal proceedings, through the use of force, threats and deceit or any other unlawful actions in violation of their rights.” 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, § 126.
Chile
In 2002, in its third periodic report to the Committee against Torture, Chile stated:
[There is an] obligation to display in a clearly visible place in every detention centre a separate placard showing the rights of the detainee … The placard must mention the following rights [including]: … (2) To remain silent in order to avoid incriminating himself. 
Chile, Third periodic report to the Committee against Torture, 28 October 2002, UN Doc. CAT/C/39/Add.14, submitted 18 February 2002, § 34.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated: “The new Code [of Criminal Procedure] also enshrines the rights of persons charged with offences not to testify against themselves”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 215; see also § 211.
(footnote in original omitted)
China
In 2004, in a white paper on “Progress in China’s Human Rights Cause in 2003”, China stated:
Public security organs have practiced strict enforcement of the law and emphasized law enforcement in the interests of the people. They have … firmly dealt with violations of human rights involving the extortion of confessions by torture … and seriously dealt with law and discipline violations, so as to ensure that law enforcement by public security organs is strict, just and humane, and to protect and guarantee human rights. 
China, White Paper of the Government of the People’s Republic of China: Progress in China’s Human Rights Cause in 2003, March 2004.
China
In 2005, in a white paper on “China’s Progress in Human Rights in 2004”, China stated:
Since May 2004, the Supreme People’s Procuratorate has carried out a special campaign to severely deal with criminal cases involving government functionaries’ infringement upon human rights by misusing their powers, focusing on cases of illegal detention and search, extorting confessions by torture, gathering evidence with violence, [and] abusing people in custody. 
China, White Paper of the Government of the People’s Republic of China: China’s Progress in Human Rights in 2004, April 2005.
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated: “The suspected, accused and prosecuted person shall not be forced to confess his or her guilt. Evidence illegally obtained shall not be admitted in court proceedings.” 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 207.
Guatemala
In 2003, in its fourth periodic report to the Committee against Torture, Guatemala stated:
The procedure for taking a statement from or interrogating the accused is clearly defined in the Code of Criminal Procedure (Decree No. 51-92), articles 81, 85, 86, 87, 88 and 90. Attention is drawn to the contents of article 85, according to which:
The accused shall not be placed under oath, but simply warned to speak the truth. He shall not be subjected to any form of coercion, threat or promise, except in the form of warnings as explicitly authorized under criminal or procedural law. No measures shall be used to compel, induce or oblige him to make a statement against his will and no charges or counterclaims shall be brought with the aim of obtaining a confession. 
Guatemala, Fourth periodic report to the Committee against Torture, 27 May 2005, UN Doc. CAT/C/74/Add.1, submitted 8 December 2003, § 106.
Hungary
In 2004, in its second periodic report to the Committee on the Rights of the Child, Hungary stated:
Act XXXIV of 1994 on the police also stipulates the prohibition of torture, extorting testimonies, and cruel, inhuman or humiliating treatment in line with international requirements, and regulates the most important guarantee provisions applicable to the use of means of extortion at the level of laws. According to the law, police officers shall not use torture, extortion of testimonies, or cruel, inhuman or humiliating treatment and shall refuse instructions to this effect given by their superiors. In addition, police officers shall take measures against persons exhibiting such behaviour for the sake of prevention, and initiate legal proceedings and investigations. Pursuant to the Decree of the Minister of the Interior No. 19/1995 on the procedures in police jails, the detainee shall be treated with respect for his human dignity in the course of any action. 
Hungary, Second periodic report to the Committee on the Rights of the Child, 24 May 2005, UN Doc. CRC/C/70/Add.25, submitted 17 February 2004, § 226.
Hungary
In 2004, in its fourth periodic report to the Committee against Torture, Hungary stated:
124. Torture within the meaning of the Convention violates section 226 (ill-treatment in official proceedings) or 227 (forced interrogation) of the Hungarian Criminal Code. If in addition to these offences bodily assault is also committed, the conduct is evaluated as constituting a cumulative crime.
125. The texts of the legal provisions governing the above-mentioned offences are as follows:
“Maltreatment in official proceedings:
“Section 226: The official person who commits assault upon another person during his proceedings, commits a misdemeanour, and shall be punishable with imprisonment of up to two years.”
“Forced interrogation:
“Section 227: The official person who – with the aim of forcing a confession or declaration – applies violence, menace, or other similar methods, commits a felony and shall be punishable with imprisonment of up to five years.”
126. In respect of such conduct, or the use of unauthorized bodily force, or orders calling for the commission of bodily assault, it has to be mentioned that official members of the armed forces and the police are supposed to know the legal provisions that govern their operation, rights and obligations. In the case of such offences, a subordinate member of the police or the armed forces shall not successfully allege that he acted upon an order. A knowledge of the above-cited legal provisions and regulations and of the relevant provisions of the Criminal Code is a prerequisite for admission into the service for official members. Therefore, in practice, official members of the police or the armed forces shall not use an excuse of non-familiarity with the relevant laws. 
Hungary, Fourth periodic report to the Committee against Torture, 16 June 2004, UN Doc. CAT/C/55/Add.10, 14 February 2005, §§ 124–126.
Japan
In 2007, in its fifth periodic report to the Human Rights Committee, Japan stated:
158. The Constitution provides that “no person shall be compelled to testify against himself/herself” (art. 38, para. 1). The Code of Criminal Procedure gives the suspect the right to refuse testimony and provides that, at the time of the interview, the suspect shall be notified in advance that he/she is not required to make a statement against his/her own will (art. 198, para. 2).
161. Clearly, such interview methods as coercion, torture, and intimidation are not permitted. Interviews conducted in such a manner that would cast doubts on the voluntary nature of the testimony of the suspect are not permitted either. The Code of Criminal Procedure stipulates that any confession … which is suspected of not having been made voluntarily shall not be used as evidence (art. 319, para. 1). Furthermore, it provides that any deposition or written statement, including admission of facts adverse to the defendant’s interests, which may not have been made voluntarily shall not be used as evidence (art. 322, para. 1). If a dispute arises in a public trial concerning the voluntary nature or reliability of the testimony, the public prosecutor bears the burden of proof as to these issues, and the determination of these issues is left to the court. 
Japan, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/JPN/5, 25 April 2007, submitted 20 December 2006, §§ 158 and 161.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997,Chapter 5.
Mexico
In 2006, during the consideration of the third periodic report of Mexico by the Committee on the Rights of the Child, a representative of Mexico stated: “The rights to a defence and a fair hearing and all rights related to due process … [are] respected. The minor … [has] the right … to refuse to make a statement.” 
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.
Morocco
In 2003, in its third periodic report to the UN Committee against Torture, Morocco stated:
Moroccan justice is extremely vigilant with regard to the form and substance of the reports prepared by officers of the judicial police. Should it prove to be the case that such reports contain confessions obtained under duress, they are simply rejected and proceedings are initiated against their authors. 
Morocco, Third periodic report to the UN Committee against Torture, 21 May 2003, UN Doc. CAT/C/66/Add.1, submitted 23 March 2003, § 170.
Morocco
In 2004, in its fifth periodic report to the Human Rights Committee, Morocco stated that “any confession obtained by violent means or coercion is, as article 293 of the Code of Criminal Procedure provides, null and void”. 
Morocco, Fifth periodic report to the Human Rights Committee, 11 May 2004, UN Doc. CCPR/C/MAR/2004/5, submitted 10 March 2004,§ 191.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated: “Any statement or confession proved to have been extracted under stress or threat of torture, inducement or degrading treatment shall … be invalid.” 
Oman, Second periodic report to the Committee on the Rights of the Child, 8 May 2006, UN Doc. CRC/C/OMN/2, submitted 28 April 2005, § 23; see also §§ 464–467.
Pakistan
In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated the following principle from its Constitution: “The dignity of man is inviolable, and no person shall be subjected to torture for the purpose of extracting evidence (art. 14).” 
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 366.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated:
The Polish Penal Code (articles 245–247) determines penal liability for manifestations of cruelty towards persons deprived of liberty and subjects to penal liability public officials who use or threaten to use violence or commit offences of tormenting either physically or psychologically for the purpose of obtaining a testimony or information. Through these provisions Poland introduced into its legislature the principle of international accountability for the prosecution of actions which constitute acts of torture. Depending on the result of a prohibited act, which may be regarded as torture or other cruel, inhuman or degrading treatment or punishment, the Code envisages adequate sanctions. 
Poland, Fifth periodic report to the Human Rights Committee, 26 January 2004, UN Doc. CCPR/C/POL/2004/5, submitted 13 January 2004, § 116.
Qatar
In 2005, in its initial report to the UN Committee against Torture, Qatar stated:
42. The Code [of Criminal Procedures] … states that no reliance may be placed in a confession extracted from the accused under torture. This provision is found in article 232 of the Code, which stipulates: “The judge has full freedom to rule on the case on the basis of the conviction which he has formed. However, he may not base a ruling on any evidence that was not presented in court or that was obtained illegally. No reliance shall be placed in any statement established to have been obtained from an accused person or a witness under coercion or threats.”
61. The individual’s right not to be forced to testify against himself also includes the right to remain silent while in detention and during questioning, regardless of whether or not the information sought would implicate him in a crime. 
Qatar, Initial report to the UN Committee against Torture, 5 October 2005, UN Doc. CAT/C/58/Add.1, submitted 9 February 2005, §§ 42 and 61; see also §§ 53, 58 and 81.
Serbia
In 2006, in its initial report to the Committee against Torture, Serbia stated that its Charter on Human Rights (2003) “prohibits … the extraction of confession or information and evidence”. 
Serbia, Initial report to the Committee against Torture, 8 February 2007, UN Doc. CAT/C/SRB/1, submitted 3 May 2006, as amended by CAT/C/SRB/2/Corr.1, 23 September 2008, § 186.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
151. According to Article 99, paragraph 11, of the Constitution of the Federal Republic of Yugoslavia, enactments adopted during a state of war may throughout the duration of the state of war restrict various rights and freedoms of man and the citizen, except specific rights and freedoms guaranteed by the Constitution ( … respect for the human personality and dignity in criminal and all other proceedings; prohibition of the use of force against a suspect who has been detained; prohibition of torture, degrading treatment or extraction of confessions …
153. Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … right to a fair trial. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, §§ 151 and 153.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Switzerland
In 2002, in its fourth periodic report to the Committee against Torture, Switzerland stated:
128. The draft federal code of criminal procedure embodies the right to remain silent. Before their first hearing by the police and subsequently by the examining magistrate, suspects must be informed that they may refuse to give a statement (art. 167, para. 1 (b)).
131. The Federal Tribunal recognizes the right of the accused to remain silent as a general and inviolable principle of criminal procedure (ATF 106 Ia 7). All judicial authorities are required to comply with this case law.
132. In addition, the law of several Swiss cantons recognizes the right of the accused not to incriminate themselves and to remain silent. 
Switzerland, Fourth periodic report to the Committee against Torture, 2 July 2004, UN Doc. CAT/C/55/Add.9, submitted 18 December 2002, §§ 128 and 131–132.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated that:
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 [1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held – for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
United Kingdom of Great Britain and Northern Ireland
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
Article 11 (Monitoring of procedures to prevent torture or other forms of ill-treatment)
Right to silence
England, Wales and Northern Ireland
109. In response to the judgement of the European Court of Human Rights in John Murray v. United Kingdom, the Government introduced provisions prohibiting the drawing of inferences from silence where no prior access to legal advice has been granted. These were contained in the Youth Justice and Criminal Evidence Act 1999, and replicated for Northern Ireland at article 36 of the Criminal Evidence (Northern Ireland) Order 1999. Commencement of the provisions in England and Wales and in Northern Ireland will follow necessary revision of the PACE Codes [Codes of Practice issued under the Police and Criminal Evidence Act 1984. However, in both jurisdictions administrative arrangements have been in place for some time to ensure compliance with the judgement.
Scotland
110. In Scotland, regardless of whether a legal adviser is present, no inferences can be drawn as to the credibility of the suspect’s evidence on any matter about which he declined to say anything while being interviewed, cautioned, or charged by the police.
Article 15 (Admissibility of confession evidence)
England and Wales
278. As explained in paragraphs 121–123 of the initial report, under both statutory and common law, a confession that may have been obtained by oppression is inadmissible in the United Kingdom as evidence against the person who made that confession. When considering the admissibility of a confession the court must have in mind the provisions of sections 76 and 78 of the Police & Criminal Evidence Act 1984. Under section 76, the court must exclude a confession if it was or may have been obtained by oppression or in consequence of anything said or done which was likely to render a confession unreliable. Under section 78, the court may exclude a confession if, having regard to all the circumstances, its admission as evidence would have an unfair effect on the proceedings. Human Rights legislation (ECHR [1950 European Convention on Human Rights] article 3 as incorporated through the Human Rights Act 1998) also provides that the court may exclude a confession if it was obtained in violation of convention rights.
Scotland
279. Although the PACE Act 1984 does not extend to Scotland, the same principle, that evidence of a confession obtained by oppression is inadmissible, also applies in Scotland.
Northern Ireland
280. Section 76 of the Terrorism Act provided for the admissibility of confession evidence in scheduled offences going before a Diplock court in Northern Ireland. The first annual report by Lord Carlisle, the Independent Reviewer of the Terrorism Act, suggested that consideration be given to the need for section 76 to continue to exist. Following a consultation exercise, Ministers were satisfied that practice had developed to the point similar to the PACE standard for confession evidence and, in July 2002, section 76 was repealed. The United Kingdom is not satisfied that section 76 was of itself a breach of the Convention. Nor does the United Kingdom accept that a provision in Northern Ireland different from the rest of the United Kingdom is an inherent breach of the Convention. Within the United Kingdom, different bodies of law apply in England and Wales, Scotland, and Northern Ireland. 
United Kingdom, Fourth periodic report to the Committee against Torture, UN Doc. CAT/C/67/Add.2, 27 May 2004, submitted 6 November 2003, §§ 109–110 and 278–280.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning the 1984 Convention against Torture, the UK Minister of State, Home Office, stated:
The Government unreservedly condemn the use of torture and have made it an important part of their foreign policy to pursue its eradication worldwide. The Government are not aware of any proceedings in a UK court in which any statement which is established to have been made as a result of torture has been invoked as evidence, except against a person accused of torture. 
United Kingdom, House of Commons, Written answer by the Minister of State, Home Office, Hansard, 8 November 2004, Vol. 666, Written Answers, col. WA53.
United Kingdom of Great Britain and Northern Ireland
In 2006, in response to a question concerning, inter alia, “the Government’s intention … not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture”, the UK Government stated:
Evidence obtained as a result of any acts of torture by British officials, or with which British authorities were complicit, would not be admissible in criminal or civil proceedings in the UK. It does not matter whether the evidence was obtained in the UK or abroad. 
United Kingdom, Response by the United Kingdom to Recommendations by the United Nations Committee against Torture following its Examination of the United Kingdom’s 4th Periodic Report on 17 and 18 November 2004, 20 April 2006, printed in House of Lords House of Commons Joint Committee on Human Rights, Government Response to the Committee’s Nineteenth Report of this Session: The UN Convention Against Torture (UNCAT), Thirtieth Report of Session 2005–06, Vol. II: Oral and Written Evidence, HL Paper 185-II/HC 701-II, 2006, Ev 68.
United Kingdom of Great Britain and Northern Ireland
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Use of torture …
54. An appeal by the British Government to the House of Lords on the use of torture evidence arose as a result of individual appeals by 10 of the individuals who were certified and detained under the ATCS [Anti-terrorism, Crime and Security] Act. On 8 December 2005, the Law Lords ruled that there is an exclusionary rule precluding the use of evidence obtained by torture. The effect of this ruling is simply to replace the British Government’s stated policy, namely, not to rely on evidence which is believed to have been obtained by torture by an “exclusionary” rule of law.
113. As regards paragraph 17 of the concluding observations (“The State party should reconsider, with a view to repealing it, the principle that juries may draw negative inferences from the silence of accused persons. This is to ensure compliance with the rights guaranteed under article 14 of the Covenant.”), the key question in addressing this issue is, whether the power to draw inferences from a person’s silence is compatible in principle with the right not to incriminate oneself. It is important to note that, while the ECtHR [European Court of Human Rights] has made clear that the right to silence and privilege against self incrimination is at the heart of a fair trial, and particular caution is required by a domestic court before it can invoke an accused’s silence against him, that Court has also made clear that the right is not absolute and that it must be considered in the context of the particular circumstances of each case.
114. The ECtHR has stated, in Murray v UK (1996 22 EHRR 29) that whether the drawing of adverse inferences from an accused’s silence infringes article 6 of the ECHR [European Convention on Human Rights] is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight to be attached to them by national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.
115. It is also important to note that, under British law, an inference cannot be drawn simply from failure to answer police questions. An inference may only be drawn if the defendant fails to answer police questions and then also fails to testify at trial, or if the defendant fails to mention something, which, in the circumstances existing at the time, he could reasonably have been expected to mention, and which he then seeks to rely upon in his defence at trial. The aim of the British legislation is to discourage an accused from fabricating a defence late in the day and to encourage the accused to make a speedy disclosure of any genuine defence or fact which may go to establishing a genuine defence. It is not to secure convictions at the expense of defendant’s rights.
116. The British Courts will have due regard to the requirements of article 6 of the ECHR and to the overall fairness of proceedings in determining whether to invoke an accused’s silence against a defendant. This was demonstrated in the recent case of R v Becouarn [2005], UKHL 55, in which the House of Lords found that the recommended direction on drawing inferences was sufficiently fair to defendants, emphasizing as it did that the jury had to conclude that the only sensible explanation for a defendant’s failure to give evidence was that he had no answer to the case against him, or none that could have stood up to cross-examination. It was noted that trial judges had full discretion to adapt the direction if they considered that by doing so it would provide the best guidance to a jury and the fairest representation of the issues.
117. The Government considers that the ability to draw negative inferences from an accused’s silence under British law cannot be said to be, on its face, a breach of article 14, and that each case will be subject to the supervisory scrutiny of the Courts to ensure that the requirements of a fair trial are met. The arrangements therefore will remain in place.
Article 14
Right of silence
526. The Criminal Justice and Public Order Act 1994, which came into force in England and Wales on 10 April 1995, introduced provisions similar to those in Northern Ireland. They preserve the right of a suspect to remain silent when questioned by the police but permit inferences to be drawn from silence if:
- A suspect has, without reasonable explanation, failed to tell the police something which he later uses in his defence;
- A defendant does not give evidence on his own behalf at trial;
- A suspect fails to account for his presence at a particular time and place or to account for objects, substances or marks on his person at the time of his arrest;
- There are important safeguards to this which can be found in paragraph 387 of the fifth periodic report.
527. Following the ECHR case of Murray (1996), these safeguards were further enhanced by section 58 of the Youth Justice and Criminal Evidence Act 1999. This amended the Criminal Justice and Public Order Act 1994 provisions to prevent inferences being drawn if a suspect has not had the opportunity to speak to a solicitor and PACE [Police and Criminal Evidence Act] Code C was amended accordingly with effect from 1 April 2003. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, §§ 54, 113–117 and 526–527.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
UN General Assembly
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly urged States to ensure that “any statement that is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. 
UN General Assembly, Res. 59/182, 20 December 2004, § 6, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly urged States to ensure that “any statement that is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. 
UN General Assembly, Res. 60/148, 16 December 2005, § 6, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly urged States to ensure that “any statement that is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. 
UN General Assembly, Res. 61/153, 19 December 2006, § 7, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly strongly urged States “to ensure that any statement that is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. 
UN General Assembly, Res. 62/148, 18 December 2007, § 10, adopted without a vote.
No data.
No data.
International Criminal Tribunal for Rwanda
In its judgment in the Kambanda case in 2000, the ICTR Appeals Chamber stated in relation to the issue of guilty pleas:
61. The Appeals Chamber holds that the conditions for accepting a plea agreement are firstly that the person pleading guilty must understand the consequence of his or her actions, and secondly that no pressure must have been brought to bear upon that person to sign the plea agreement. This position is reflected in the separate opinion of Judges McDonald and Vohrah in Erdemović, which stated that a voluntary plea requires two elements, namely that “an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty” and “the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentences.”
75. The Appeals Chamber agrees with the parties that the standard for determining whether a guilty plea is informed is that articulated by Judges McDonald and Vohrah in Erdemović such that the accused must understand the nature of a guilty plea and the consequences of pleading guilty in general, the nature of the charges against him, and the distinction between any alternative charges and the consequences of pleading guilty to one rather than the other.
76. Although the Appellant claims the Trial Chamber should have made it “clear to the accused that by pleading guilty the only possible sentence would be life imprisonment and that a plea agreement would never mitigate the penalty seeing the gravity of the offences”, the Appeals Chamber cannot accept this argument. The duty of a Trial Chamber to inform an accused person of the possible sentence is not to be mechanically discharged. The proceedings have to be read as a whole, inclusive of the submission of the parties. The transcripts show that both parties accepted that the imposition of a sentence of life imprisonment was a possibility. There being no dispute on the point, when the Appellant told the Trial Chamber, “I fully know the consequences of my guilty plea”, he fell to be understood as acknowledging that possibility.
84. The Appeals Chamber notes that, as articulated by Judges McDonald and Vohrah in the Erdemović case, “[w]hether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.” This Appeals Chamber agrees with this statement.
94. The Appeals Chamber finds no merit in the Appellant’s contention that the Trial Chamber, in accepting his guilty plea, could not have been satisfied that there was sufficient evidence to indicate that the Appellant was guilty. 
ICTR, Kambanda case, Judgment on Appeal, 19 October 2000, §§ 61, 75–76, 84 and 94.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blagojević and Jokić case in 2005, the ICTY Trial Chamber noted that “Article 21(4)(g) of the [1993 ICTY] Statute provides that no accused shall be compelled to testify against himself. In the present case, both Accused exercised their right to remain silent; no adverse inferences were drawn from the fact that they did not testify”. 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, § 19.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Orić case in 2006, the ICTY Trial Chamber stated:
Article 21(4)(g) of the [1993 ICTY] Statute provides that accused shall not be compelled to testify against themselves or to confess guilt. In this case, the Accused has made use of his right to remain silent. The Trial Chamber has drawn no unfavourable inference therefrom and acknowledges that silence may not be used as evidence to prove guilt and may not be interpreted as an admission. 
ICTY, Orić case, Judgment, 30 June 2006, § 16.
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber stated:
476. The Chamber took cognisance of the fact that Article 17(4)(g) of the [2002] Statute of the Special Court guarantees to every person charged with a crime or crimes falling within the jurisdiction of the Court, the right not to incriminate himself. … [I]n conformity with general principles of law recognised by the community of nations, we recognised the due process rights of [one of the accused], acknowledging that his decision to remain silent did not amount to an admission of guilt.
477. [The other two accused], however, chose to testify, and in accordance with Rule 85(C) [of the Rules of Procedure and Evidence of the Special Court for Sierra Leone], gave evidence and thereafter, called witnesses in their defence. The fact that they elected to testify is not indicative that either of the Accused accepted an evidential burden to prove his innocence, or that a choice had to be made between the evidence of the Accused or the evidence of the Prosecution. Rather, the burden remained on the Prosecution to establish all essential elements of the crimes charged in the Indictment.  
SCSL, Sesay case, Judgment, 2 March 2009, §§ 476–477.
[footnote in original omitted]
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber stated that “[a]ccused persons enjoy a fundamental right not to be compelled to testify against themselves or to confess guilt”. 
ECCC, Kaing case, Judgment, 26 July 2010, § 50.
(footnote in original omitted)
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee stated:
6. … [A]s article 7 [which states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment] is also non-derogable in its entirety, no statements or confessions or, in principle, other evidence obtained in violation of this provision may be invoked as evidence in any proceedings covered by article 14, including during a state of emergency, except if a statement or confession obtained in violation of article 7 is used as evidence that torture or other treatment prohibited by this provision occurred.
41. … [A]rticle 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. Domestic law must ensure that statements or confessions obtained in violation of article 7 of the Covenant are excluded from the evidence, except if such material is used as evidence that torture or other treatment prohibited by this provision occurred, and that in such cases the burden is on the State to prove that statements made by the accused have been given of their own free will.
60. To ill-treat persons against whom criminal charges are brought and to force them to make or sign, under duress, a confession admitting guilt violates both article 7 of the Covenant prohibiting torture and inhuman, cruel or degrading treatment and article 14, paragraph 3 (g) prohibiting compulsion to testify against oneself or confess guilt. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 6, 41 and 60.
Human Rights Committee
In its concluding observations on the consolidated second and third periodic reports of the Philippines in 2003, the Human Rights Committee stated:
… The Committee notes that evidence is not admissible if it is shown to have been obtained by improper means, but remains concerned that the victim bears the burden of proof in this event.
All allegations that statements of detainees have been obtained through coercion must lead to an investigation and such statements must never be used as evidence, except as evidence of torture, and the burden of proof, in such cases, should not be borne by the alleged victim. 
Human Rights Committee, Concluding observations on the consolidated second and third periodic reports of the Philippines, UN Doc. CCPR/CO/79/PHL, 1 December 2003, § 12.
[emphasis in original]
Human Rights Committee
In its concluding observations on the combined fourth and fifth periodic reports of Sri Lanka in 2003, the Human Rights Committee stated:
The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the [1966 International Covenant on Civil and Political Rights] (arts. 4, 9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed … The PTA … places the burden of proof on the accused that a confession was obtained under duress. The Committee is concerned that such provisions, incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003.
The State party is urged to ensure that all legislation and other measure enacted taken to fight terrorism are compatible with the provisions of the Covenant. The provisions of the Prevention of Terrorism Act designed to fight terrorism should not be incorporated into the draft Prevention of Organized Crime Bill to the extent that they are incompatible with the Covenant. 
Human Rights Committee, Concluding observations on the combined fourth and fifth periodic reports of Sri Lanka, UN Doc. CCPR/CO/79/LKA, 1 December 2003, § 13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the third periodic report of the Sudan in 2007, the Human Rights Committee stated:
The Committee is concerned that confessions obtained in violation of article 7 of the [1966 International Covenant on Civil and Political Rights] are not explicitly proscribed by the law of the State party, and that such confessions have been used in some inquiries and have culminated in death sentences. (art. 7 et 14 of the Covenant)
Besides banning torture outright, the State party should prohibit the use of confessions obtained in violation of article 7 of the Covenant in any Sudanese court. In its next report, the State party should also indicate the number of appeals for review of conviction resulting from an unfair trial or the use of a confession obtained under torture. 
Human Rights Committee, Concluding observations on the third periodic report of the Sudan, UN Doc. CCPR/C/SDN/CO/3, 29 August 2007, § 25.
[emphasis in original]
Human Rights Committee
In several cases, the Human Rights Committee explained that the guarantee of Article 14(3)(g) of the 1966 International Covenant on Civil and Political Rights must be understood “in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt”. 
Human Rights Committee, Saldías López v. Uruguay, Views, 29 July 1981, §§ 11.5–13; Teti Izquierdo v. Uruguay, Views, 1 April 1982, § 9; Estrella v. Uruguay, Views, 29 March 1983, § 10; Hiber Conteris v. Uruguay, Views, 17 July 1985, § 10; Cariboni v. Uruguay, Views, 27 October 1987, § 10; Kelly v. Jamaica, Views, 8 April 1991, § 5(5); Berry v. Jamaica, Views, 7 April 1994, § 11(7); Johnson v. Jamaica, Views, 22 March 1996, § 8(7).
Human Rights Committee
In Singarasa v. Sri Lanka in 2004, the author submitted that he had been subjected to torture and ill-treatment by members of the Sri Lankan Criminal Investigation Department, in order to extract a confession. He was subsequently convicted by the High Court on the sole basis of that alleged confession, which, he claimed, amounted to a violation of his right to a fair trial.
The Human Rights Committee held:
On the claim of a violation of the author’s rights under article 14, paragraph 3 (g) [of the 1966 International Covenant on Civil and Political Rights], in that he was forced to sign a confession and subsequently had to assume the burden of proof that it was extracted under duress and was not voluntary, the Committee must consider the principles underlying the right protected in this provision. It refers to its previous jurisprudence that the wording, in article 14, paragraph 3 (g), that no one shall “be compelled to testify against himself or confess guilt”, must be understood in terms of the absence of any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt. The Committee considers that it is implicit in this principle that the prosecution prove that the confession was made without duress. It further notes that pursuant to section 24 of the Sri Lankan Evidence Ordinance, confessions extracted by “inducement, threat or promise” are inadmissible and that in the instant case both the High Court and the Court of Appeal considered evidence that the author had been assaulted several days prior to the alleged confession. However, the Committee also notes that the burden of proving whether the confession was voluntary was on the accused. This is undisputed by the State party since it is so provided in Section 16 of the PTA [Prevention of Terrorism Act No. 48 of 1979]. Even if, as argued by the State party, the threshold of proof is “placed very low” and “a mere possibility of involuntariness” would suffice to sway the court in favour of the accused, it remains that the burden was on the author. The Committee notes in this respect that the willingness of the courts at all stages to dismiss the complaints of torture and ill-treatment on the basis of the inconclusiveness of the medical certificate (especially one obtained over a year after the interrogation and ensuing confession) suggests that this threshold was not complied with. Further, insofar as the courts were prepared to infer that the author’s allegations lacked credibility by virtue of his failing to complain of ill-treatment before its Magistrate, the Committee finds that inference to be manifestly unsustainable in the light of his expected return to police detention. Nor did this treatment of the complaint by its courts satisfactorily discharge the State party's obligation to investigate effectively complaints of violations of article 7. The Committee concludes that by placing the burden of proof that his confession was made under duress on the author, the State party violated article 14, paragraphs 2, and 3(g), read together with article 2, paragraph 3, and 7 of the Covenant. 
Human Rights Committee, Singarasa v. Sri Lanka, Views, 23 August 2004, § 7.4.
Human Rights Committee
In Deolall v. Guyana in 2005, the Human Rights Committee stated:
5.1 The author claims that Mr. Deolall was ill-treated during interrogations by police officers and forced to sign a confession statement, a claim that raises issues under article 14, paragraphs 1 and 3 (g) and article 6, of the [1966 International Covenant on Civil and Political Rights]. The Committee refers to its previous jurisprudence that the wording, in article 14, paragraph 3 (g), that no one shall “be compelled to testify against himself or confess guilt”, must be understood in terms of the absence of any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt, and that it is implicit in this principle that the prosecution prove that the confession was made without duress (3). In the current case, the Committee notes that the testimony of 3 doctors at the trial, that Mr. Deolall displayed injuries, as outlined in paragraph 2.2 above, as well as Mr. Deolall’s own statement, would prima facie support the allegation that such ill-treatment indeed occurred during the police interrogations, prior to his signing of the confession statement. In its instructions to the jurors, the court clearly stated that if the jurors found that Mr. Deolall was beaten by the police prior to giving his confession, even though it was a slight beating, they could not attach any weight to that statement and would need to acquit the defendant. However, the Court did not instruct the jurors that they would need to be convinced that the prosecution had managed to prove that the confession was voluntary.
5.2 The Committee maintains its position that it is generally not in the position to evaluate facts and evidence presented before a domestic court. In the current case, however, the Committee takes the view that the instructions to the jury raise an issue under article 14 of the Covenant, as the defendant had managed to present prima facie evidence of being mistreated, and the Court did not alert the jury that that the prosecution must prove that the confession was made without duress. This error constituted a violation of Mr. Deolall’s right to a fair trial as required by the Covenant, as well as his right not to be compelled to testify against himself or confess guilt, which violations were not remedied upon appeal. Therefore, the Committee concludes that the State party has violated article 14, paragraphs 1, and 3 (g), of the Covenant in respect of Mr. Deolall. 
Human Rights Committee, Deolall v. Guyana, Views, 28 January 2005, §§ 5.1–5.2.
Human Rights Committee
In Kurbonov v. Tajikistan in 2006, the Human Rights Committee held:
6.3 … In the present case, the facts presented by the author clearly demonstrate that the Supreme Court acted in a biased and arbitrary manner with respect to the complaints related to the author’s son’s torture during the preliminary detention, because of the summary and unreasoned rejection of the evidence, properly and clearly documented by the author, that he had been tortured. In their effect, the action of the courts placed the burden of proof on the author, whereas the general principle is that the burden of proof that the confession was made without duress is on the prosecution. The Committee concludes that the treatment of Mr. Kurbonov during his preliminary detention, and the manner the courts addressed his subsequent claims to this effect, amounts to a violation of article 7 and of article 14, paragraph 1, of the [1966 International Covenant on Civil and Political Rights]. In light of this finding, the Committee considers unnecessary separately to examine the claim made under article 10.
6.4 In light of the above finding, the Committee concludes that the author’s son’s rights under article 14, paragraph 3 (g), have also been violated, as he was compelled to confess guilt to a crime. 
Human Rights Committee, Kurbonov v. Tajikistan, Views, 19 April 2006, §§ 6.3–6.4.
Human Rights Committee
In Sultanova v. Uzbekistan in 2006, the Human Rights Committee held:
On the claim of a violation of the author’s sons’ rights under article 14, paragraph 3 (g) [of the 1966 International Covenant on Civil and Political Rights], in that they were forced to sign a confession, the Committee must consider the principles that underlie this guarantee. It refers to its previous jurisprudence that the wording, in article 14, paragraph 3 (g), that no one shall “be compelled to testify against himself or confess guilt”, must be understood in terms of the absence of any direct or indirect physical or psychological coercion by the investigating authorities on the accused with a view to obtaining a confession of guilt. The Committee considers that it is implicit in this principle that the burden of proof that the confession was made without duress is on the prosecution. However, the Committee notes that in this case, the burden of proof whether the confession was voluntary was on the accused. The Committee notes that both the Tashkent Regional Court and the Supreme Court ignored the allegations of torture made by the author’s sons. Therefore, the Committee concludes that the State party has violated article 14, paragraphs 2, and 3 (g). 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.3.
Human Rights Committee
In Kouidis v. Greece in 2006, the Human Rights Committee stated:
On the claim under article 14, paragraph 3 (g) [of the 1966 International Covenant on Civil and Political Rights] read alone, the Committee notes the Supreme Court was aware of … allegations of ill-treatment. The Committee considers that the obligations under article 14, paragraph 3(g) entail an obligation of the State party to take account of any claims that statements made by accused persons in a criminal case were given under duress. In this regard, it is immaterial whether or not a confession is actually relied upon, as the obligation refers to all aspects of the judicial process of determination. In the present case, the State party's failure, at the level of the Supreme Court, to take account of the author’s claims that his confession was given under duress, amount to a violation of article 14, paragraph 3(g). 
Human Rights Committee, Kouidis v. Greece, Views, 26 April 2006, § 7.5.
Human Rights Committee
In Shukurova v. Tajikistan in 2006, the Human Rights Committee stated:
8.2 The author claims that her husband and his brother were beaten and subjected to torture by investigators during the early stages of their detention, thus forcing them to confess guilt in the bombing … She contends that these allegations were raised in court but were ignored. The State party merely argues that the case file does not contain complaints about mistreatment. The Committee observes that the decision of the Supreme Court’s Appellate Chamber also does not address the issue. In the absence of other pertinent information in this regard, due weight must be given to the author’s claims. The Committee recalls that it is essential that complaints about torture must be investigated promptly and impartially by competent authorities. In the present case, no substantive refutation was made by the State party in this regard, and the Committee concludes that the treatment Dovud and Sherali Nazriev were subjected to amounts to a violation of article 7, read together with articles 14, paragraph 1 and 2, paragraph 3, of the [1966 International Covenant on Civil and Political Rights].
8.3 In light of the above, the Committee concludes that Dovud and Sherali Nazriev’s right under article 14, paragraph 3 (g), was also violated, as they were compelled to confess guilt to a crime. 
Human Rights Committee, Shukurova v. Tajikistan, Views, 26 April 2006, §§ 8.2–8.3.
Human Rights Committee
In Tarasova v. Uzbekistan in 2006, the Human Rights Committee stated:
The author has claimed that her son was beaten by police investigators to force him to confess guilt. She affirms that she personally witnessed, on two separate occasions, in the police premises, how investigators beat her son. She also adds that at the beginning of his trial, her son notified the court that he had been beaten and that his confession was obtained under duress, that he provided the names of the responsible officers, and that these complaints were neither recorded in the trial record nor investigated. The Committee recalls that when a complaint against maltreatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] is lodged, a State party is under a duty to promptly and impartially investigate it. In the circumstances of the present case, and in the absence of any pertinent information submitted by the State party in this relation, due weight must be given to the author’s allegations. Accordingly, the Committee decides that the facts as presented disclose a violation of article 7, read together with article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Tarasova v. Uzbekistan, Views, 10 November 2006, § 7.1.
Human Rights Committee
In Chikunova v. Uzbekistan in 2007, the Human Rights Committee held:
The author claims that her son confessed guilt under torture. During the preliminary investigation, she complained to the authorities about this, but all her complaints were to no avail. When her son retracted his confessions at the court as obtained under duress, the judge interrogated several witnesses and investigators who denied any use of coercion against him. The State party has only contended that the courts examined these allegations and found them to be groundless. The Committee recalls that once a complaint against maltreatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] is filed, a State party must investigate it promptly and impartially. In the present case, the author has presented documents with a detailed description of the torture allegedly suffered by her son. The Committee considers that the documents before it indicate that the State party’s authorities did not react adequately or in a timely way to the complaints filed on behalf of the author’s son. No information has been provided by the State party to confirm that a further inquiry or medical examination was conducted in order to verify the veracity of Mr. Chikunov’s torture allegations. In the circumstances of the case, the Committee concludes that the facts as presented disclose a violation of article 7, read together with article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Chikunova v. Uzbekistan, Views, 3 May 2007, § 7.2.
Human Rights Committee
In Karimov and Nursatov v. Tajikistan in 2007, the Human Rights Committee held:
The authors claimed that the alleged victims were beaten and tortured by the investigators, so as to make them confess guilt. These allegations were presented both in court and in the context of the present communication. The State party has replied, in relation to the case of Mr. Karimov, that these allegations were not corroborated by the materials in the case file, and that the alleged victim was examined on two occasions by medical doctors who did not find marks of torture on his body. The State party makes no comment in relation to the torture allegations made on behalf of Mr. Askarov and the Davlatov brothers. In the absence of any other pertinent information from the State party, due weight must be given to the authors’ allegations. The Committee recalls that once a complaint about ill-treatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] has been filed, a State party must investigate it promptly and impartially. In the present case, the authors have presented a sufficiently detailed description of the torture suffered by Messrs Karimov, Askarov, and the Davlatov brothers, and have identified some of the investigators responsible. The Committee considers that in the circumstances of the case, the State party has failed to demonstrate that its authorities adequately addressed the torture allegations put forward by the authors. In the circumstances, the Committee concludes that the facts as presented disclose a violation of article 7, read together with article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Karimov and Nursatov v. Tajikistan, Views, 3 May 2007, § 7.2.
Human Rights Committee
In Khudayberganova v. Uzbekistan in 2007, the Human Rights Committee stated:
The author claims that her son was beaten and tortured by investigators, and thus forced to confess his guilt. He retracted his initial confessions in court, claiming that they had been obtained under duress and identifying the names of those responsible for his ill-treatment. The State party has rejected the claim as a defence strategy, and has asserted that no torture or unlawful methods of investigation were used against Khudayberganov, and that the entire investigation and all court proceedings complied with the law in force. The author has also claimed that her son was ill-treated on death row, which was not contested by the State party. The Committee recalls that once a complaint about ill-treatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] has been filed, a State party must investigate it promptly and impartially. It notes that the case file contains copies of complaints about the author’s son’s ill-treatment that were brought to the attention of the State party’s authorities, including copies of letters from the alleged victim’s sister, from lawyers, from NGOs’, as well as a letter from Khudayberganov himself, which detailed the methods of torture used against him. The Committee considers that in the circumstances of the case, the State party has failed to demonstrate that its authorities adequately addressed the torture allegations advanced by the author, both in the context of domestic criminal proceedings and the present communication. Accordingly, due weight must be given to her allegations. In the circumstances, the Committee concludes that the facts as presented disclose a violation of the author’s son’s rights under article 7, read together with article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Khudayberganova v. Uzbekistan, Views, 7 August 2007, § 8.2.
Human Rights Committee
In Tulyaganova v. Uzbekistan in 2007, the Human Rights Committee stated:
The author has claimed that her son was beaten and tortured by investigators to force him to confess guilt in the murder. According to her, and contrary to the requirements of a Ruling of the Uzbek Supreme Court of 20 February 1996, the Tashkent City Court used her son’s confessions to establish his guilt and to convict him. The author also claims that her son’s lawyer submitted a request to the District Police Department to have her son examined by a medical doctor, so as to confirm that he was subjected to ill-treatment but the investigator in charge of the case refused to comply with the request. These allegations were also brought to the attention of the Presidential administration when the author’s son requested a Presidential pardon, but no reply was ever received. The Committee recalls that once a complaint against ill-treatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] is filed, a State party is duty bound to investigate it promptly and impartially. In this case, the State party has not refuted the author’s allegations nor has it presented any information, in the context of the present case, to show that it conducted any inquiry in this respect. In these circumstances, due weight must be given to the author’s allegations, and the Committee considers that the facts presented by the author disclose a violation of her son’s rights under article 7 and article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Tulyaganova v. Uzbekistan, Views, 7 August 2007, § 8.2.
Human Rights Committee
In Uteeva v. Uzbekistan in 2007, the Human Rights Committee stated:
The author has claimed that her brother was beaten and tortured by investigators to force him to confess guilt in the murder and other crimes. In court, he retracted his initial confessions made during the investigation, and explained that they were obtained under beatings and torture. The court rejected his claim as constituting a defence strategy aimed at avoiding criminal liability. These allegations were brought to the attention of the Supreme Court of Uzbekistan and were rejected. The Committee recalls that once a complaint against ill-treatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] is filed, a State party is duty bound to investigate it promptly and impartially. In this case, the State party has not specifically, by way of presenting the detailed consideration by the courts, or otherwise, refuted the author’s allegations nor has it presented any particular information, in the context of the present communication, to demonstrate that it conducted any inquiry in this respect. In these circumstances, due weight must be given to the author’s allegations, and the Committee considers that the facts presented by the author disclose a violation of her brother’s rights under article 7 and article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Uteeva v. Uzbekistan, Views, 13 November 2007, § 7.2.
European Court of Human Rights
The right not to be compelled to testify against oneself or to confess guilt has been seen by the European Court of Human Rights as one element of the right to a fair trial. 
European Court of Human Rights, Funke case, Judgment, 25 February 1993, § 44; Serves v. France, Judgment (Chamber), 20 October 1997, § 47.
In its judgment in Coëme and Others v. Belgium in 2000, the European Court of Human Rights stated that what mattered was that the guilt of the accused must not be established through evidence obtained from him by force or other forms of pressure. 
European Court of Human Rights, Coëme and Others v. Belgium, Judgment, 22 June 2000, § 128.
Inter-American Commission on Human Rights
In its report in a case concerning Argentina in 1990, the Inter-American Commission on Human Rights stated that conviction on the basis of confessions obtained under torture violated Article XXVI of the 1948 American Declaration on the Rights and Duties of Man. 
Inter-American Commission on Human Rights, Case 9850 (Argentina), Report, 4 October 1990, Part III, § 7.
Inter-American Commission on Human Rights
In its report in a case concerning Nicaragua in 1989, the Inter-American Commission on Human Rights found a violation of Article 8(2)(g) of the 1969 American Convention on Human Rights because a confession had been obtained whilst the defendant was being held incommunicado which was therefore invalid under Article 8(3). 
Inter-American Commission on Human Rights, Case 10.198 (Nicaragua), Resolution, 29 September 1989, § 1.
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 … no compulsion to confess guilt.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(f).
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including: “No one shall be compelled to testify against himself or herself or to confess guilt.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9(e), IRRC, No. 282, 1991, p. 334.