Judicial guarantees

Both international human rights law and international humanitarian law specify that all persons accused and/or brought to trial must benefit from a series of procedural safeguards and fundamental guarantees designed to ensure that they receive a fair trial and are protected from being unlawfully or arbitrarily deprived of their liberty.

Examples of judicial guarantees and safeguards include the principle of nullum crimen, nulla poena sine lege (prohibiting punishment that was not set out in legislation at the time a crime was committed), the requirement that trials be conducted by independent, impartial and regularly constituted tribunals, the presumption of innocence, the right of the accused to be informed of the nature and cause of the offence against him/her, the right to an appeal, and the right of the accused to be present at their trial.

Currently, IHL treaty law and State practice establish that in both international and non-international armed conflicts no one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees. IHL treaties foresee detailed judicial guarantees for prisoners of war and for protected civilians in occupied territories. Persons accused of serious violations of any of the four Geneva Conventions or of Additional Protocol I are entitled to benefit from the minimum legal safeguards laid down in those treaties. Article 75 of Additional Protocol I contains a list of guarantees afforded to persons under these treaties and to persons accused of war crimes. These guarantees are minimal requirements that do not in any way prevent more favourable treatment from being granted in accordance with other provisions of the Geneva Conventions and Additional Protocol I.

International humanitarian law applicable to non-international armed conflicts (Art. 3 common to the Geneva Conventions) prohibits the passing of sentences and executions in violation of “judicial guarantees which are recognized as indispensable” and, more specifically, sentencing or executions without previous judgement pronounced by a regularly constituted court. Additional Protocol II of 1977 stipulates, concerning offences committed in connection with a non- international armed conflict, that no sentence may be passed and no penalty executed in the absence of a conviction previously pronounced by a court offering the essential guarantees of independence and impartiality. In addition, it spells out the procedural safeguards that must be respected (Art. 6).

See Accused; Appeals; Detainees; Detention; Internment; Indicted or convicted persons; War crimes;

 OUTLINE

 LEGAL SOURCE

BY PERSON OR SITUATION      

POWs

    GCIII, 84-88 and 102-107

    PI, 44/4

    CIHL, 100-102

civil internees and protected persons

    GCIV, 71-78, 123/2 and 126

    CIHL, 100-102

minimum judicial guarantees for persons who do not benefit from more favourable treatment

    PI, 45/3 and 75/3-4

    CIHL, 100-102

persons suspected of activities hostile to the security of the State

    GCIV, 5/3

charges of grave breaches

    GCI, 49/4 (see ICRC updated Commentary)

    GCII, 50/4 (see ICRC updated Commentary)

    GCIII, 129/4

    GCIV, 146/4

    PI, 85/1

in NIAC

    common 3/1 (see ICRC updated Commentary)

    PII, 6

    CIHL, 100-102

DETAILS OF GUARANTEES 

impartial tribunal

    PI, 75/4

    PII, 6/2

notification of charges and particulars

    GCIII, 105/4

    GCIV, 71/2

    PI, 75/3 and 75/4a

    PII, 6/2(a)

presumption of innocence

    PI, 75/4(d)

    PII, 6/2(d)

principle of individual criminal responsibility

    HR, 50

    PI, 75/4(b)

    PII, 6/2(b)

    CIHL, 102

principle of non bis in idem

    GCIII, 86

    GCIV, 117/3

    PI, 75/4(h)

principle of non retroactivity

    GCIII, 99

    GCIV, 65 and 67

    PI, 75/4(c)

    PII, 6/2(c)

    CIHL, 101

right of appeal and notice of post trial remedies

    GCIII, 106

    GCIV, 73

    PI, 75/4(j)

    PII, 6/3

right of defence

    GCIII, 96 and 105

    GCIV, 72, 123 and 126

    PI, 75/4

right to interpreter

    GCIII, 96/4 and 105/1

    GCIV, 123/1

TYPE OF COURT

competent court for trial of POWs

    GCIII, 102

trial of protected persons by non-political military court in occupied territory

    GCIV, 66

 DOCUMENT

 CASES

 BIBLIOGRAPHIC RESOURCES

Suggested readings:

Case Western Reserve Journal of International Law, “Security Detention”, Vol. 40, No. 3, 2009, pp. 315-650.
 
CRAWFORD Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict, Oxford, OUP, 2010, 213 pp.
 
FARRELL Norman, “International Humanitarian Law and Fundamental Judicial Guarantees”, in Annual Conference/The African Society of International and Comparative Law, Vol. 10, 1998, pp. 130-141.
 
GASSER Hans-Peter, “Respect for Fundamental Judicial Guarantees in Time of Armed Conflict: the Part Played by ICRC Delegates”, in IRRC, No. 287, March-April 1992, pp. 121-142
 
ICRC, Chatam House, “Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict”, in IRRC, Vol. 91, No. 876, December 2009, pp. 859-881.
 
PEJIC Jelena, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, in IRRC, No. 858, June 2005, pp. 375-391.
 
OSWALD Bruce, “The Detention of Civilians in Military Operations: Reasons for and Challenges to Developing a Special Law of Detention”, in Melbourne University Law Review, Vol. 32, 2008, pp. 524-553.
 
SASSÒLI Marco, “La peine de mort en droit international humanitaire et dans l’action du Comité international de
la Croix-Rouge”, in Revue internationale de droit pénal, Vol. 58, 1987, pp. 583-592.
 
SAYAPIN Sergey, “The Application of the Fair Trial Guarantees to Alleged Terrorists in Non-International Armed Conflicts”, in Humanitäres Völkerrecht, Vol. 3, 2004, pp. 152-159.
 
VIERUCCI Luisa, “Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantánamo Bay Detainees are Entitled”, in Journal of International Criminal Justice, Vol. 1/2, 2003, pp. 284-314.