Practice Relating to Rule 100. Fair Trial Guarantees
New Zealand’s Military Manual (1992) states:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court, respecting the generally recognized principles of regular judicial procedure.
The manual further provides that it is a grave breach “to deprive [a prisoner of war] of his rights to a fair and regular trial” and to “wilfully deprive a protected civilian of the rights of fair and regular trial”.
The manual also states that depriving “any person protected by the [1949 Geneva] Conventions or the [1977 Additional] Protocol [I] of a fair and regular trial” is a grave breach of the 1977 Additional Protocol I.
With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions.
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides:
Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I] is guilty of an indictable offence.
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(a)(vi) and (c)(iv) of the 1998 ICC Statute.
In its judgment in the X v Refugee Status Appeals Authority in 2006, New Zealand’s High Court in Auckland stated:
 I am satisfied that the right to a fair ultimate trial is absolute and that New Zealand law will not permit conduct in this country which will imperil such right, whether the trial is to take place here or elsewhere. There are a number of pointers, all to the same conclusion.
 On 11 December 1946 the General Assembly of the United Nations, having affirmed the principles of international law recognised by the “Charter of the Nurnberg Tribunal”, directed the formulation of such principles. In 1950 the International Law Commission of the United Nations did so. The principles formulated included:
Any person charged with a crime under international law has the right to a fair trial on the facts and the law.
 In R v Bow Street Magistrate, ex parte Pinochet (No 3)  1 AC 147, 197 Lord Browne-Wilkinson cited the Nuremberg principles of international law. He observed that while the concept of personal liability under international law for international crimes is of comparatively recent growth, at least from the date of the General Assembly’s affirmation, the concept of personal liability for a crime under international law must have been part of international law.
 The same must apply to the principles formulated as to the rights of an accused. The Lords’ approach in Pinochet is consistent, for present purposes, with the recent recognition of the Geneva Conventions as part of the domestic law of the United States of America in Hamdan v Rumsfeld 126 S Ct 2749 (2006) (case 05-184). The discussion of Pinochet in Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (the Kingdom of Saudi Arabia)  2 WLR 1424 (HL) leaves the present point unaffected.
 Article 11(1) of the Universal Declaration of Human Rights requires that:
Everyone charged with a penal offence has the right to … a public trial at which he has had all the guarantees necessary for his defence
and art 14 of the International Covenant on Civil and Political Rights requires that:
… everyone shall be entitled to a fair and public hearing …
and is entitled:
… not to be compelled to testify against himself …
As expressions of the right to a fair trial these must be regarded not merely as undertakings by the states which, like New Zealand, have acceded to the treaties but as rules of international law.
 It is true that international law does not, as such, become part of New Zealand domestic law. But as Scarman LJ observed in Thai-Europe Tapioca Service Ltd v Government of Pakistan  1 WLR 1485, 1495 (CA):
… a rule of international law, once incorporated into our law by decisions of a competent Court, is not an inference of fact but a rule of law. It therefore becomes part of our municipal law …
Given the status of the Nuremberg principles and the decisions in Pinochet and Hamdan, I accept Mr Illingworth’s submission that the right to a fair trial must be accepted via international law as a rule of New Zealand law.
 The importance of that conclusion is that it relieves X from having to rely on either rules of the common law or the New Zealand Bill of Rights Act to establish his right in New Zealand to ensure that nothing occurring in this state will impede a fair trial of any genocide charges, if pursued. But I am satisfied that both the common law and the Bill of Rights require the same conclusion.
New Zealand’s Military Manual (1992) provides:
Prisoners may only be tried by a civil court if the Detaining Power’s Forces may be so tried for the offence involved, and provided the tribunal offers the essential guarantees of independence and impartiality generally recognised as compatible with the rule of law.
The manual further specifies: “No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court.”
New Zealand’s Military Manual (1992) provides: “Anyone charged with an offence is presumed innocent until proved guilty according to law.”
With respect to non-international armed conflicts, the manual states: “An accused is to be presumed innocent until proved guilty according to the law.”
New Zealand’s Military Manual (1992) states: “Before any disciplinary punishment is awarded, the accused internee shall be given precise information regarding the offences of which he is accused”.
The manual further provides: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him.”
The manual also specifies: “The accused must be promptly informed, in writing, and in a language which they understand, of the charges brought against them.”
New Zealand’s Military Manual (1992) provides that a prisoner of war “must be allowed to present his defence and be represented by qualified counsel or an advocate”.
With respect to occupied territory, the manual states that accused persons “have the right to be assisted by a qualified advocate or counsel of their own choice, who must be able to visit them freely and to enjoy the necessary facilities for preparing the defence”.
The manual further states:
Insofar as civilians accused of war crimes are held by a Power of which they are not nationals, they are entitled to the safeguards of proper trial and defence, which shall not be less than those provided for prisoners of war by Articles 105 to 108 [of the 1949 Geneva Convention III].
With respect to non-international armed conflicts, the manual states that, as a minimum, “the accused shall be … afforded all the necessary rights and means of defence”.
New Zealand’s Military Manual (1992) provides: “Internees charged with disciplinary offences are entitled to a speedy trial.”
The manual further provides that the accused “must be brought to trial as rapidly as possible”.
New Zealand’s Military Manual (1992) states that in order to defend himself, the accused internee “shall be permitted, in particular, to call witnesses”.
The manual further provides: “Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
The manual also states: “Accused persons have the right to present evidence necessary to their defence and may, in particular, call witnesses.”
New Zealand’s Military Manual (1992) provides that the accused “shall have recourse, if necessary, to the services of a qualified interpreter”.
The manual further states:
Both during the preliminary investigation and during the hearing in court, the accused must be aided by an interpreter, unless such assistance is voluntarily waived. Similarly, an accused has the right at any time to object to the interpreter and to ask for his replacement.
New Zealand’s Military Manual (1992) states, in an explanatory footnote: “No prisoner may be tried in absentia”.
The manual further provides: “Anyone charged with an offence shall have the right to be tried in his presence.”
With respect to non-international armed conflicts, the manual states: “The accused has the right to be present at his trial.”
New Zealand’s Court Martial Act (2007) provides that the “Court Martial … must sit in the presence of the accused”.
New Zealand’s Military Manual (1992) states: “No force of any kind may be imposed upon a prisoner to cause him to plead guilty.”
The manual further provides: “No one shall be compelled to testify against himself or to confess guilt.”
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’s Military Manual (1992) states: “Unless the trial is to be held in camera, the Protecting Power’s representative is entitled to be present.” The footnote to this provision explains that: “The Protecting Power must be informed of any trial that is to be held in camera
The manual further states: “Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly.”
New Zealand’s Court Martial Act (2007) provides:
Sittings of Court Martial
37 Requirements for sittings of Court Martial
(1) The Court Martial—
(a) must sit in open court unless section 38 or 39 applies;
38 When Court Martial must hold proceedings in closed court
(1) The Court Martial must hold its proceedings in closed court while—
(a) the Judge sits alone to rule on any question of law or procedure in accordance with section 44:
(b) the military members deliberate on the finding in accordance with section 55:
(c) the Judge and the military members deliberate on the sentence in accordance with section 61.
(2) The Court Martial may hold its proceedings in closed court on any other deliberation.
39 Judge may limit scope of open court
(1) In any proceedings in the Court Martial, the Judge may make any of the orders specified in subsection (2) limiting the scope of open court if the Judge considers that—
(a) a statement may be made or evidence given in the course of those proceedings that might lead to the disclosure of information that would or might—
(i) be directly or indirectly useful to the enemy or any foreign country; or
(ii) be otherwise harmful to New Zealand; or
(b) the making of the order—
(i) is necessary in the interests of justice; or
(ii) is desirable in the interests of public morality; or
(iii) is necessary for the protection of the reputation of a victim of an alleged sexual offence or offence of extortion.
66 Announcement of finding and sentence
(1) The Judge must announce in open court—
(a) the finding of the Court Martial on each charge tried by the court; and
(b) any sentence passed by the court.
New Zealand’s Military Manual (1992) provides that prisoners charged with offences shall be informed “with details as to the right of appeal”.
The manual further states: “A convicted person shall be advised of the remedies and of the time limits within which they may be exercised.”
With respect to non-international armed conflicts, the manual provides: “A convicted person shall be told on conviction of his judicial and other remedies and appellate procedures.”
New Zealand’s Military Manual (1992) provides that prisoners charged with offences “shall enjoy the same right of appeal as members of the Detaining Power’s own forces”.
The manual further states:
There is no absolute right of appeal against sentence. The [1949 Geneva Convention IV] Article 73 merely lays down that “the convicted person shall have the right of appeal provided for by the laws applied by the court”. If, however, the court makes no provision for appeal, the convicted person must be given the right to petition the competent authority of the Occupying Power against the finding and sentence. In either case, he must be fully informed of his right to appeal or petition and of the time limit within which he may do so.
New Zealand’s Military Manual (1992) provides: “No prisoner may be punished more than once for the same offence or on the same charge.”
The manual further states: “No internee may be punished more than once for the same offence or on the same count.”
The manual also provides: “No one shall be prosecuted or punished by the same party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure.”