For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31262 ------------------------------------------------------------------------------ Order Code RL31262 CRS Report for Congress Received through the CRS Web Selected Procedural Safeguards in Federal, Military, and International Courts Updated September 18, 2006 Jennifer K. Elsea Legislative Attorney American Law Division Congressional Research Service ~ The Library of Congress Selected Procedural Safeguards in Federal, Military, and International Courts Summary Declaring it necessary to bring to justice those responsible for the terrorist attacks on the United States of September 11, 2001, President Bush signed a Military Order (M.O.) authorizing the trial by military commission of certain non-citizens. The order directs the Secretary of Defense to establish the procedural rules for the operation of the military commissions convened pursuant to the M.O. The Department of Defense prepared regulations providing for procedures of military commissions, but these were invalidated by the Supreme Court in Hamdan v. Rumsfeld. The Bush Administration has proposed legislation to reinstate military commissions for the trials of suspected terrorists. This report provides a brief overview of procedural rules applicable in selected historical and contemporary tribunals for the trials of war crimes suspects. The chart that follows compares selected procedural safeguards employed in criminal trials in federal criminal court with parallel protective measures in military general courts- martial, international military tribunals used after World War II, including the International Military Tribunal (IMT or "Nuremberg Tribunal"), and the International Criminal Courts for the former Yugoslavia (ICTY) and Rwanda (ICTR). For comparison of the Department of Defense rules for military commissions that were struck down in Hamdan to recent legislative proposals, see CRS Report RL31600, The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice. Contents U.S. Courts and Military Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 General Courts-Martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Military Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 International War Crimes Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 International Military Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ad Hoc International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 List of Tables Selected Procedural Safeguards in Federal, Military, and International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Selected Procedural Safeguards in Federal, Military, and International Courts Declaring it necessary to bring to justice those responsible for the terrorist attacks on the United States of September 11, 2001, President Bush signed a Military Order (M.O.) authorizing the trial by military commission of certain non-citizens.1 The order directed the Secretary of Defense to establish the procedural rules for the operation of the military commissions convened pursuant to the M.O. The Department of Defense implemented regulations and convened commissions; however, one of the accused petitioned for habeas corpus in federal district court and the Supreme Court invalidated the regulations as inconsistent with the Uniform Code of Military Justice (UCMJ2) and the Geneva Conventions.3 This report provides a brief overview of procedural rules applicable in selected historical and contemporary tribunals for the trials of war crimes suspects. The chart that follows compares selected procedural safeguards employed in criminal trials in federal criminal court with parallel protective measures in military general courts- martial, international military tribunals used after World War II, including the International Military Tribunal (IMT or "Nuremberg Tribunal"), and the International Criminal Courts for the former Yugoslavia (ICTY) and Rwanda (ICTR). The chart identifies a selection of basic rights in rough order of the stage in the criminal justice process where they might become most important. The text of the chart indicates some of the procedural safeguards designed to protect these rights in different tribunals. Recognizing that fundamental fairness relies on the system of procedural safeguards as a whole rather than individual rules, the chart is intended only as an outline to compare some of the rules different courts and tribunals might use to safeguard certain rights. U.S. Courts and Military Tribunals The Constitution imposes on the government a system of restraints to provide that no unfair law is enforced and that no law is enforced unfairly. What is fundamentally fair in a given situation depends in part on the objectives of a given system of law weighed alongside the possible infringement of individual liberties that 1 Military Order, November 13, 2001 Detention, Treatment, and Trial of Certain Non- Citizens in the War Against Terrorism §1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001). 2 10 U.S.C. § 801 et seq. 3 Hamdan v. Rumsfeld, 548 U.S. __ (2006), rev'g 415 F.3d 33 (D.C. Cir. 2005). The Geneva Conventions were held to be incorporated by implication into the UCMJ. For an analysis of the decision, see CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the `Global War on Terrorism,' by Jennifer K. Elsea. CRS-2 system might impose. In the criminal law system, some basic objectives are to discover the truth, punish the guilty proportionately with their crimes, acquit the innocent without unnecessary delay or expense, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the armed forces, serving the overall objective of providing an effective national defense. The equation for international criminal law may also consider foreign policy elements as well as international law and treaty obligations. The Fifth Amendment to the Constitution provides that "no person shall be ... deprived of life, liberty, or property, without due process of law." Due process includes the opportunity to be heard whenever the government places any of these fundamental liberties at stake. The Constitution contains other explicit rights applicable to various stages of a criminal prosecution. Criminal proceedings provide both the opportunity to contest guilt and to challenge the government's conduct that may have violated the rights of the accused. The system of procedural rules used to conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional rights that take place outside the courtroom. The Bill of Rights applies to all citizens of the United States and all aliens within the United States.4 However, the methods of application of constitutional rights, in particular the remedies available to those whose rights might have been violated, may differ depending on the severity of the punitive measure the government seeks to take and the entity deciding the case. The jurisdiction of various entities to try a person accused of a crime could have a profound effect on the procedural rights of the accused. The type of judicial review available also varies and may be crucial to the outcome. International law also contains some basic guarantees of human rights, including rights of criminal defendants and prisoners. Treaties to which the United States is a party are expressly made a part of the law of the land by the Supremacy Clause of the Constitution,5 and may be codified through implementing legislation.6 International law is incorporated into U.S. law.7 The law of war, a subset of international law, applies to cases arising from armed conflicts (i.e., war crimes).8 It is unclear exactly how the law of war applies to the current hostilities involving non-state terrorists, and the nature of the rights due to accused terrorist/war criminals may depend in part on their status under the Geneva Conventions. The Supreme Court has ruled that Al Qaeda fighters are entitled at least to the baseline protections applicable under 4 Wong Wing v. United States, 163 U.S. 228 (1896)(aliens are entitled to due process of law). 5 U.S. CONST. Art. VI ("[A]ll Treaties ... shall be the Supreme Law of the Land; ..."). 6 See, e.g. 18 U.S.C. § 2441 (War Crimes Act). 7 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 111 (1987). 8 For a brief explanation of the sources of the law of war, see generally CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer Elsea. CRS-3 Common Article 3 of the Geneva Conventions,9 which includes protection from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Federal Court. The federal judiciary is established by Article III of the Constitution and consists of the Supreme Court and "inferior tribunals" established by Congress. It is a separate and co-equal branch of the federal government, independent of the executive and legislative branches, designed to be insulated from the public passions. Its function is not to make law but to interpret law and decide disputes arising under it. Federal criminal law and procedures are enacted by Congress and housed primarily in title 18 of the U.S. Code. The Supreme Court promulgates procedural rules for criminal trials at the federal district courts, subject to Congress's approval. These rules, namely the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of Evidence (Fed. R. Evid.), incorporate procedural rights that the Constitution and various statutes demand. The chart cites relevant rules or court decisions, but makes no effort to provide an exhaustive list of authorities. General Courts-Martial. The Constitution, in order to provide for the common defense,10 gives Congress the power to raise, support, and regulate the armed forces,11 but makes the President Commander-in-Chief of the armed forces.12 Article III does not give the judiciary any explicit role in the military, and the Supreme Court has taken the view that Congress' power "[t]o Make Rules for the Government and Regulation of the land and naval Forces"13 is entirely separate from Article III.14 Therefore, courts-martial are not considered to be Article III courts and are not subject to all of the rules that apply in federal courts.15 Although military personnel are "persons" to whom the Bill of Rights applies, in the military context it might be said that discipline is as important as liberty as 9 Hamdan, slip op. at 67 (citing art. 3 § 1(d) of The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317). The identical provision is included in each of the four Geneva Conventions and applies to any "conflict not of an international character." The majority declined to accept the President's interpretation of Common Article 3 as inapplicable to the conflict with al Qaeda and interpreted the phrase "in contradistinction to a conflict between nations," which the Geneva Conventions designate a "conflict of international character." 10 U.S. CONST. Preamble. 11 Id. art. I § 8, cls. 11-14 (War Power). 12 Id. art. II § 2, cl. 1. 13 Id. art. I § 8, cl. 14. 14 See Dynes v. Hoover, 61 U.S. (How.) 65 (1857). 15 See WILLIAM WINTHROP, WINTHROP'S MILITARY LAW AND PRECEDENTS 48-49 (2d. ed. 1920)(describing courts-martial as instrumentalities of the executive power, provided by Congress for the President as Commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein) (emphasis in original). CRS-4 objectives of military justice. Also, the Constitution specifically exempts military members accused of a crime from the Fifth Amendment right to a grand jury indictment, from which the Supreme Court has inferred there is no right to a civil jury in courts-martial.16 However, in part because of the different standards provided in courts-martial, their jurisdiction is limited to those persons and offenses the military has a legitimate interest in regulating.17 Courts-martial jurisdiction extends mainly to service members on active duty, prisoners of war, and persons accompanying the armed forces in time of declared war,18 as well as certain violators of the law of war.19 Congress regulates the armed forces largely through title 10 of the U.S. Code, which contains as Chapter 47 the Uniform Code of Military Justice (UCMJ) regulating the system of military courts-martial. The Supreme Court has found the procedures Congress set through the UCMJ to provide adequate procedural safeguards to satisfy constitutional requirements and the interest in maintaining a strong national defense. Congress has delegated to the President the authority to make procedural rules for the military justice system.20 The President created the Rules for Courts-Martial (R.C.M.) and the Military Rules of Evidence (Mil. R. Evid.) pursuant to that delegation.21 The comparison chart will cite provisions of the UCMJ and the applicable rules, as well as military appellate court opinions as applicable. Defendants are not able to appeal their courts-martial directly to federal courts, but may seek relief in the form of a writ of habeas corpus, although review may be limited. However, Congress has provided for a separate system of reviewing convictions by court-martial, which includes a civilian appellate court. In cases in which the convening authority approves a sentence of death, or, unless the defendant waives review, approves a bad-conduct discharge, a dishonorable discharge, 16 See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). Congress has, in article 32, UCMJ, provided for a pre-trial hearing that performs the same basic function as a grand jury. Court- martial panels consist of a military judge and several panel members, who function similarly to a jury. 17 For an overview of the court-martial process, see CRS Report RS21850, Military Courts-Martial: An Overview, by Jennifer K. Elsea. 18 See 10 U.S.C. § 802. "In time of war" refers to war declared by Congress. United States v. Averette, 17 USCMA 363 (1968). 19 See 10 U.S.C. § 818. 20 10 U.S.C. § 836. Article 36 authorizes the President to prescribe rules for "pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals." Such rules are to "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts" insofar as the President "considers practicable" but that "may not be contrary to or inconsistent" with the UCMJ. 21 The rules are set forth in the Manual for Courts-Martial (M.C.M.), established as Exec. Order No. 12473, Manual for Courts-Martial, United States, 49 Fed. Reg 17,152, (Apr. 23, 1984), as amended. CRS-5 dismissal of an officer, or confinement for one year or more, the Court of Criminal Appeals for the appropriate service22 must review the case for legal error, factual sufficiency, and appropriateness of the sentence. The Court of Appeals for the Armed Forces (CAAF) exercises appellate jurisdiction over the services' Courts of Criminal Appeals, with respect to issues of law. The CAAF is an Article I court composed of five civilian judges appointed for 15-year terms by the President with the advice and consent of the Senate. Its jurisdiction is established in Article 67 of the UCMJ (10 U.S.C. § 867), and is discretionary except in death penalty cases. Military Commissions. The Constitution empowers the Congress to declare war and "make rules concerning captures on land and water,"23 to define and punish violations of the "Law of Nations,"24 and to make regulations to govern the armed forces.25 The power of the President to convene military commissions flows from his authority as Commander in Chief of the Armed Forces and his responsibility to execute the laws of the nation.26 Under the Articles of War and subsequent statute,27 the President has at least implicit authority to convene military commissions to try offenses against the law of war.28 There is, therefore, somewhat of a distinction between the authority and objectives behind convening military courts-martial and commissions.29 Rather than serving the internally directed purpose of maintaining discipline and order of the troops, the military commission is externally directed at the enemy as a means of waging successful war by punishing and deterring offenses against the law of war. Jurisdiction of military commissions is limited to time of war and to trying offenses recognized under the law of war or as designated by statute.30 While case 22 There are four such courts -- the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals. These courts are established by the Judge Advocate General of the respective service. 10 U.S.C. § 866. 23 U.S. CONST. art. I, § 8, cl. 11. 24 Id. art. I, § 8, cl. 10. 25 Id. art. I, § 8, cl. 14. 26 Id. art. II. 27 The Articles of War were re-enacted at 10 U.S.C. § 801 et seq. as part of the UCMJ. Although there is no case law interpreting the UCMJ as authorizing military commissions, the relevant sections of the UCMJ, which recognize the concurrent jurisdiction of military commissions to deal with "offenders or offenses designated by statute or the law of war," are essentially identical to the corresponding language in the Articles of War. See 10 U.S.C. § 821. 28 Ex parte Quirin, 317 U.S. 1 (1942). 29 See WINTHROP, supra note 15, at 831 (describing distinction between courts-martial and military tribunals). 30 10 U.S.C. § 821. Statutory offenses for which military commissions may be convened (continued...) CRS-6 law suggests that military commissions could try U.S. citizens as enemy belligerents,31 the Military Order of November 13, 2001 limits their jurisdiction to non-citizens. As non-Article III courts, military commissions are not subject to the same constitutional requirements that are applied in Article III courts.32 Congress has delegated to the President the authority to set the rules of procedure and evidence for military tribunals, applying "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district court" insofar as he considers it practicable.33 The rules "may not be contrary to or inconsistent with the UCMJ"34 and must be uniform insofar as practicable with courts-martial.35 The United States first used military commissions to try enemy belligerents accused of war crimes during the occupation of Mexico in 1847, and made heavy use of them in the Civil War.36 However, prior to the President's Military Order, no military commissions had been convened since the aftermath of World War II. Because of the lack of standards of procedure used by military commissions, it is difficult to draw a meaningful comparison with the other types of tribunals. For a comparison of the Department of Defense rules for military commissions that were struck down in Hamdan to recent legislative proposals, see CRS Report RL31600, The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice. International War Crimes Tribunals Prior to the twentieth century, war crimes were generally tried, if tried at all, by belligerent States in their own national courts or special military tribunals. After World War I, the Allies appointed a 15-member commission to inquire into the legal liability of those responsible for the war and the numerous breaches of the law of war that it occasioned. It recommended the establishment of an international military 30 (...continued) are limited to aiding the enemy, 10 U.S.C. § 904, and spying, 10 U.S.C. § 906. 31 See Ex parte Quirin, 317 U.S. 1 (1942). 32 See Ex parte Quirin, 317 U.S. at 38; Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866) (noting a servicemember "surrenders his right to be tried by the civil courts"). 33 10 U.S.C. § 836. The Supreme Court has held that the President's discretion to determine whether the application of procedural rules that apply in federal courts is not without limitation. Hamdan v. Rumsfeld, 548 U.S. __ (2006). 34 Id. 35 Id. 36 For more information about the history of military commissions in the United States, see CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer K. Elsea; CRS Report RL32458, Military Tribunals: Historical Patterns and Lessons, by Louis Fisher; CRS Report RL31340: Military Tribunals: The Quirin Precedent, by Louis Fisher. CRS-7 tribunal to prosecute those accused of war crimes and crimes against humanity. After Germany refused to comply with the locally unpopular provision of the peace treaty requiring it to turn over accused war criminals to the Allied forces for trial, a compromise was reached in which Germany agreed to prosecute those persons in its national courts.37 Of 901 cases referred to the German Supreme Court for trial at Leipzig, only 13 were convicted.38 Because German nationalism appeared to have hindered the earnest prosecution of war criminals, the results were largely seen as a failure.39 International Military Tribunals. In the aftermath of World War II, the Allies applied lessons learned at Leipzig and formed special international tribunals for the European and Asian theaters. In an agreement concluded in London on August 8, 1945, the United States, France, Great Britain and the Soviet Union together established the International Military Tribunal (IMT) at Nuremberg for the trial of war criminals.40 The four occupying powers also established Control Council Law No. 10, authorizing military tribunals at the national level to try the less high- profile war crimes and crimes against humanity.41 The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals were designed to be non-technical, allowing the expeditious admission of "all evidence [the Tribunal] deems to have probative value."42 This evidence included hearsay, coerced confessions, and the findings of prior mass trials.43 It has also been argued that the tribunals violated the principles of legality by establishing ex post facto crimes and dispensing victor's justice.44 However, while the historical consensus seems to have accepted that the Nuremberg Trials were conducted fairly,45 some observers argue that the malleability of the rules of procedure and evidence could and did have some unjust results, in particular as they were applied by the 37 See id. at 46. 38 See id. at 49. 39 See id. at 51-52. 40 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 279 [hereinafter "London Charter"], available at [http://www.yale.edu/lawweb/ avalon/imt/proc/imtconst.htm]. The Rules of Procedure (IMT Rules) are available at [http://www.yale.edu/lawweb/avalon/imt/proc/imtrules.htm]. 41 Approximately 185 people were indicted. Thirty people were sentenced to death, one hundred twenty were given prison sentences, and thirty-five were acquitted. 42 See Evan J. Wallach, The Procedural And Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide An Outline For International Legal Procedure?, 37 COLUM. J. TRANSNAT'L L. 851, 860 (1999). 43 See id. at 871-72. 44 See KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 20 (2001). 45 See, Wallach, supra note 42, at 852 (citing VIRGINIA MORRIS & MICHAEL SCHARF, 1 AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 9-10 (1995)). CRS-8 national military tribunals.46 The Tokyo tribunal decisions were subject to criticism by dissenters on the Supreme Court in the Yamashita case.47 Some argue that procedural safeguards considered sufficient for the World War II tribunals would not likely meet today's standards of justice.48 Nuremberg. The jurisdiction of the Nuremberg Tribunal was based on universally applicable international law regulating armed conflict, and its authority was based on the combined sovereignty of the Allies and Germany's unconditional surrender.49 The Tribunal rejected the defendants' contention that the tribunal violated fundamental legal principles by trying them for conduct that was not prohibited by criminal law at the time it was committed.50 The Nuremberg Tribunal also adopted the doctrine of individual responsibility for war crimes, rejecting the idea that state sovereignty could protect those responsible from punishment for their misdeeds. Twenty-four Nazi leaders were indicted and tried as war criminals by the International Military Tribunal (IMT). The indictments contained four counts: (1) crimes against the peace, (2) crimes against humanity, (3) war crimes, and (4) a common plan or conspiracy to commit the aforementioned acts. Nineteen of the defendants were found guilty, three were acquitted, one committed suicide before the sentence, and one was physically and mentally unfit for trial. Sentences ranged from 46 See id. at 869; Application of Homma, 327 U.S. 759, 760 (1946) (Murphy, J. dissenting). But see Jonathan A. Bush, Lex Americana: Constitutional Due Process and the Nuremberg Defendants, 45 ST. LOUIS U. L.J. 515, 526 (2001)(arguing that in many ways, "the new [Tokyo and Nuremberg] tribunals' charters gave defendants many rights that went beyond anything allowed in the American system" at the time of the trials). 47 Justice Murphy wrote: [The rules], as will be noted, permit[] reception of documents, reports, affidavits, depositions, diaries, letters, copies of documents or other secondary evidence of their contents, hearsay, opinion evidence and conclusions, in fact of anything which in the commission's opinion "would be of assistance in proving or disproving the charge," without any of the usual modes of authentication. A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself. In re Yamashita, 327 U.S. at 49 (Murphy, J. dissenting). 48 See Wallach, supra note 42. 49 See Matthew Lippman, Crimes Against Humanity, 17 B.C. THIRD WORLD L.J. 171, 238 (1997). 50 See KITTICHAISAREE,supra note 44, at 18 (citing the judgment of the tribunal in the context of "crimes against peace" to the effect that justice required, rather than prohibited, the punishment of those responsible for unprovoked attacks against neighboring states "in defiance of treaties and assurances"). CRS-9 death by hanging (twelve), life imprisonment (three), and imprisonment for ten to twenty years (four). Tokyo. The International Military Tribunal for the Far East (IMTFE) in Tokyo was established by a Special Proclamation of General Douglas MacArthur as the Supreme Commander in the Far East for the Allied Powers.51 Many provisions of the IMTFE were adapted from the London Agreement. The Tokyo tribunal tried only the most serious crimes, crimes against peace. General MacArthur appointed eleven judges, one from each of the victorious Allied nations who signed the instrument of surrender and one each from India and the Philippines, to sit on the tribunal. General MacArthur also appointed the prosecutor. Of the twenty-five people indicted for crimes against peace, all were convicted, with seven executed, sixteen given life imprisonment, and two others serving lesser terms. Some 300,000 Japanese nationals were tried for conventional war crimes (primarily prisoner abuse) and crimes against humanity in national military tribunals. Ad Hoc International Courts. The U.N. Security Council (UNSC), acting under its Chapter VII authority of the U.N. Charter, established two ad hoc criminal courts, the International Criminal Tribunal for the former Yugoslavia (ICTY)52 and the International Criminal Tribunal for Rwanda (ICTR).53 Both tribunals are still operating, and employ virtually identical procedural rules. Their jurisdiction is coexistent with that of national courts, but they also may assert primacy over national courts to prevent trials of the same individuals in more than one forum. Their jurisprudence may provide important precedent for the interpretation of Common Article 3. Yugoslavia. Based in the Hague, Netherlands, the ICTY has jurisdiction to try crimes conducted within the territory of the former Yugoslavia, including the crime of "ethnic cleansing," whether committed in the context of an international war or a war of non-international character. It tries violations of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity when committed in the context of an armed conflict. It is composed of sixteen permanent independent judges, who are elected by the UN General Assembly from a list of nominations provided by the Security Council. It has an Appeals Chamber consisting of seven judges, five of whom sit on a panel in any given case. The Prosecutor, an independent organ of the court appointed by the UN Security Council on the recommendation of the UN Secretary-General, investigates and prosecutes those responsible for covered offenses. When the Prosecutor finds that 51 Charter of the International Military Tribunal For The Far East, Apr. 26, 1946 ("IMTFE Charter"), T.I.A.S. No. 1589, available at [http://www.yale.edu/lawweb/avalon/imtfech. htm]. 52 UN Doc. S/Res/808 (1993; UN Doc. S/Res/827 (1993). Its statute (ICTY Stat.) and procedural rules (ICTY Rule) are available at [http://www.un.org/icty/legaldoc-e/ index.htm]. For more information, see CRS Report RL30864, Yugoslavia War Crimes Tribunal: Current Issues for Congress, by Julie Kim. 53 UN Doc. S/Res/955 (1994). Its statute (ICTR Stat.) and procedural rules (ICTR Rule) are available at [http://69.94.11.53/default.htm]. CRS-10 sufficient evidence exists to try an individual, he issues an indictment, subject to the approval of a judge from the Trial Chamber. Rwanda. The ICTR, based in Arusha, Tanzania, was established by the UN Security Council in response to genocide and other systematic, widespread, and flagrant violations of humanitarian law applicable in the context of a non- international armed conflict, that is, Common Article 3 of the Geneva Conventions and Additional Protocol II, genocide, and crimes against humanity. Its structure and composition are similar to those of the ICTY. As of June 2006, the ICTR has tried 28 accused, convicting 25 and acquitting three.54 Twenty-seven defendants are undergoing trial, and another fourteen await trial.55 54 See [http://69.94.11.53/ENGLISH/factsheets/achievements.htm]. 55 See [http://69.94.11.53/ENGLISH/factsheets/detainee.htm]. More information is available at the ICTY website, [http://www.un.org/icty/]. CRS-11 Selected Procedural Safeguards in Federal, Military, and International Courts Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Presumption of If the defendant fails to enter a If the defendant fails to enter a No written rule addressing "The accused shall be Innocence proper plea, a plea of not guilty proper plea, a plea of not guilty presumption of innocence, presumed innocent until proved will be entered. Fed. R. Crim. will be entered. R.C.M. 910(b). although U.S. negotiators were guilty according to the "The principle that P. 11(a). able to win a concession from provisions of the present there is a Members of court martial Soviet negotiators to the effect Statute." presumption of Defendant is entitled to jury must be instructed that the that the rule would apply. See ICTY Stat. art. 21(3); ICTR innocence in favor instructions explaining that "accused must be presumed to Henry T. King, Jr., Robert Stat. art. 20. of the accused is the guilt must be proved on the be innocent until the accused's Jackson's Transcendent undoubted law, evidence beyond a reasonable guilt is established by legal and Influence Over Today's World, If the accused fails to enter a axiomatic and doubt. Taylor v. Kentucky, 436 competent evidence beyond a 68 ALB. L. REV. 23, 25 (2006). plea, the court must enter a plea elementary, and its U.S. 478 (1978). reasonable doubt." of not guilty on the accused's enforcement lies at R.C.M. 920(e). behalf. the foundation of Defendant is entitled to appear ICTY Rule 62(a)(iv); ICTR the administration in court without unnecessary The accused shall be properly Rule 62(a)(iii). of our criminal physical restraints or other attired in uniform with grade law." indicia of guilt, such as insignia and any decorations to Instruments of restraint may Coffin v. United appearing in prison uniform, which entitled. Physical not be used during court States, 156 U.S. that may be prejudicial to jury. restraint shall not be imposed proceedings. 432, 453 (1895). See Holbrook v. Flynn, 475 unless prescribed by the ICTY Rule 83; ICTR Rule 83. U.S. 560 (1986). military judge. R.C.M. 804. Guilty pleas may be accepted only if the trial chamber CRS-12 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards determines it is voluntary, informed, unequivocal, and supported by evidence. ICTY Rule 63 bis; ICTR Rule 62(B). Right to Remain Incriminating statements made Coerced confessions or No right to remain silent. The A suspect to be questioned by Silent by defendant under duress or confessions made without Tokyo rules specifically the prosecutor during an without prior Miranda warning statutory equivalent of Miranda provided that "all purported investigation must be informed "No person...shall are inadmissible as evidence of warning are not admissible as admissions or statements of the of his right to remain silent. be compelled in any guilt in a criminal trial. evidence. Art. 31, UCMJ, 10 accused are admissible." ICTY Rule 42; ICTR Rule 42. criminal case to be a Miranda v. Arizona, 384 U.S. U.S.C. § 831. IMTFE Charter art 13. witness against 436 (1966). Persons are to be informed of himself ...." The prosecutor must notify the the right to remain silent upon Amendment V. Before a jury is allowed to hear defense of any incriminating their arrest. evidence of a defendant's statements made by the ICTY Rule 55; ICTR Rule 55. confession, the court must accused that are relevant to the determine that it was case prior to the arraignment. "No evidence shall be voluntarily given. Motions to suppress such admissible if obtained by 18 U.S.C. § 3501. statements must be made prior methods which cast substantial to pleading. doubt on its reliability or if its Mil. R. Evid. 304. admission is antithetical to, and would seriously damage, the integrity of the proceedings." ICTY Rule 95; ICTR Rule 95. CRS-13 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Freedom from Evidence, including derivative "Evidence obtained as a result Not provided. "No evidence shall be Unreasonable evidence, gained through of an unlawful search or admissible if ... its admission is Searches & unreasonable searches and seizure ... is inadmissible antithetical to, and would Seizures seizures may be excluded in against the accused ..." unless seriously damage, the integrity court. Boyd v. United States, certain exceptions apply. of the proceedings." "The right of the 116 U.S. 616 (1886); Nardone Mil. R. Evid. 311. ICTY Rule 95; ICTR Rule 95. people to be secure v. United States, 308 U.S. 338 ... against (1938); Fed. R. Crim. P. 41. "Authorization to search" may unreasonable be oral or written, and may be searches and A search warrant issued by a issued by a military judge or an seizures, shall not magistrate on a showing of officer in command of the area be violated; no probable cause is generally to be searched, or if the area is Warrants shall required for law enforcement not under military control, with issue, but upon agents to conduct a search of authority over persons subject probable cause..." an area where the subject has a to military law or the law of reasonable expectation of war. It must be based on Amendment IV. privacy, including searches and probable cause. seizures of telephone or other Mil. R. Evid. 315. communications and emissions of heat and other phenomena Interception of wire and oral detectable with means other communications within the than human senses. Katz v. United States requires judicial United States, 389 U.S. 347 application in accordance with (1967). 18 U.S.C. §§ 2516 et seq. CRS-14 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Evidence resulting from Mil. R. Evid. 317. overseas searches of American property by foreign officials is A search conducted by foreign admissible unless foreign officials is unlawful only if the police conduct shocks judicial accused is subject to "gross and conscience or participation by brutal treatment." U.S. agents is so substantial as Mil. R. Evid. 311(c). to render the action that of the United States. United States v. Barona, 56 F.3d 1087 (9th Cir. 1995). Assistance of Defendants in criminal cases The defendant has a right to "Each defendant has the right Prior to being charged, "[i]f Effective Counsel have the right to representation military counsel at government to conduct his own defense or questioned, the suspect shall be by an attorney at all stages of expense. The defendant may to have the assistance of entitled to be assisted by "In all criminal prosecution. The defendant choose counsel, if that attorney counsel," and was required to counsel of his own choice, prosecutions, the may hire an attorney or, if is reasonably available, and be told of that right. Only one including the right to have accused shall enjoy indigent, have counsel may hire a civilian attorney in counsel was permitted to legal assistance assigned to him the right ... to have appointed at the government's addition to military counsel. appear at the trial for any without payment by him in any the Assistance of expense. If two or more co- Art 38, UCMJ, 10 U.S.C. defendant, unless the IMT such case if he does not have Counsel for his defendants are represented by § 838. granted special permission. sufficient means to pay for it, defense." one attorney, the court must The IMT was to designate as well as to necessary inquire as to whether a conflict Appointed counsel must be counsel for any defendant who translation into and from a CRS-15 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Amendment VI. of interest exists. certified as qualified and may failed to apply for particular language he speaks and Fed. R. Crim. P. 44. not be someone who has taken counsel or if the counsel understands." ICTY Stat. art. any part in the investigation or requested was not available, 18; ICTR Stat. art. 17. Conversations between prosecution, unless explicitly unless the defendant elected in attorneys and clients are requested by the defendant. writing to conduct his own The accused has the right "to privileged. Fed. R. Evid. 501. Art. 27, UCMJ, 10 U.S.C. defense. IMT Rule 2. communicate with counsel of § 827. his own choosing ... and to Procedures for ensuring The IMTFE Charter provided defend himself in person or adequate representation of The attorney-client privilege is that "[e]ach accused shall have through legal assistance of his defendants are outlined at 18 honored. Mil. R. Evid. 502. the right to be represented by own choosing; to be informed, U.S.C. §§ 3005 (capital cases) counsel of his own selection, if he does not have legal and 3006A. subject to the disapproval of assistance, of this right; and to such counsel at any time by the have legal assistance assigned Tribunal. ... If an accused is not to him, in any case where the represented by counsel and in interests of justice so require, open court requests the and without payment by him in appointment of counsel, the any such case if he does not Tribunal shall designate have sufficient means to pay counsel for him. In the absence for it." ICTY Stat. art. 21; of such request the Tribunal ICTR Stat. art. 20. may appoint counsel for an accused if in its judgment such All communications between appointment is necessary to lawyer and client are provide for a fair trial." privileged, and disclosure CRS-16 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards IMTFE Charter art. 9(c). cannot be ordered unless the client or has waived the privilege by voluntarily disclosing the content of the communication to a third party. ICTY Rule 97; ICTR Rule 97. Qualifications for counsel and assignment of counsel to indigent defendants are set forth in ICTY Rules 44-45 and ICTR Rules 44-45. Right to Where the accused is in danger The right to indictment by "Each individual defendant in The prosecutor, if satisfied that Indictment and of being subjected to an grand jury is explicitly custody shall receive not less there is sufficient evidence to Presentment infamous punishment if excluded in "cases arising in than 30 days before trial a provide reasonable grounds for convicted, he has the right to the land or naval forces." copy, translated into a language believing that a suspect has "No person shall be insist that he shall not be tried Amendment V. which he understands, (1) of committed a crime within the held to answer for a except on the accusation of a the Indictment, (2) of the jurisdiction of the ICTY (or capital, or otherwise grand jury. Ex parte Wilson, Whenever an offense is Charter, (3) of any other ICTR), prepares an indictment infamous crime, 114 U.S. 417 (1885); Fed. R. alleged, the commander is documents lodged with the for confirmation by a Judge, unless on a Crim. P. 7. responsible for initiating a Indictment...." IMT Rule 2. setting forth the name and presentment or preliminary inquiry and The Tokyo Tribunal required particulars of the suspect, and a indictment of a Jurors must be selected from a deciding how to dispose of the the same documents to be concise statement of the facts Grand Jury, except fair cross section of the offense. R.C.M. 303-06. provided not less than 14 days of the case and of the crime CRS-17 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards in cases arising in community; otherwise, an before trial. IMTFE Rule 1. with which the suspect is the land or naval accused can challenge the charged. ICTY Stat. arts. forces, or in the indictment. 28 U.S.C. §§ 1861 18-19 and ICTY Rule 47; Militia, when in et seq. ICTR Stat. arts. 17-18; ICTR actual service in Rule 47. time of War or Once an indictment is given, its public danger ...." scope may not be increased. A person against whom an Amendment V. Ex parte Bain, 121 U.S. 1 indictment has been confirmed (1887). is to be taken into custody and immediately informed of the (Amendments to an indictment charges in a language he must undergo further grand understands. ICTY Stat. arts. jury process.) 20-21 and Rule 47; ICTR Stat. arts. 19-20 and ICTR Rule 47. The prosecutor may amend the indictment as prescribed in ICTY Rule 50 or ICTR Rule 50. Right to Written Defendant is entitled to be Charges and specifications See above. An arrested person must be Statement of informed of the nature of the must be signed under oath and completely informed of Charges charge with sufficiently made known to the accused as charges, which may be satisfied reasonable certainty to allow soon as practicable. Art. 30, by presentation to the accused CRS-18 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards "In all criminal for preparation of defense. UCMJ, 10 U.S.C. § 830. of a copy of the written prosecutions, the Cook v. United States, 138 charges, translated, if accused shall enjoy U.S. 157 (1891). necessary. the right...to be ICTY Rule 59 bis. informed of the nature and cause of At the ICTR, the registrar is the accusation; ..." required to prepare certified Amendment VI. copies of the indictment in a language the accused understands, but there does not appear to be a requirement that the accused be furnished with a written copy. ICTR Rule 47. Right to be Present The language, history, and The presence of the accused is Not provided. "The Tribunal The accused has the right "to at Trial logic of Rule 43 support a required during arraignment, at shall have the right to take be tried in his presence." straightforward interpretation the plea, and at every stage of proceedings against a person ICTY Stat. art. 21; ICTR Stat. The Confrontation that prohibits the trial in the court-martial unless the charged ... in his absence, if he art. 20. Clause of absentia of a defendant who is accused waives the right by has not been found or if the Amendment VI not present at the beginning of voluntarily absenting him or Tribunal, for any reason, finds In absentia trials are permitted guarantees the trial. Crosby v. United States, herself from the proceedings it necessary, in the interests of only in cases of exceptional accused's right to be 506 U.S. 255, 262 (1993); Fed. after the arraignment or by justice, to conduct the hearing contempt of court, where the present in the R. Crim. P. 43. persisting in conduct that in his absence." IMT Charter accused voluntarily absents courtroom at every justifies the trial judge in art. 12. himself from the proceeding. CRS-19 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards stage of his trial. When defendant knowingly ordering the removal of the (Martin Bormann, who was Prosecutor v. Blaskic, Case Illinois v. Allen, absents himself from court accused from the proceedings. never located and was rumored No. IT-95-14-AR 108 bis, 397 U.S. 337 during trial, court may R.C.M. 801. to be dead, was convicted in Decision on Subpoena, ICTY (1970). "proceed with trial in like absentia and sentenced to App. Ch. ¶ 59 (1997). manner and with like effect as death.) if he were present." Diaz v. United States, 223 U.S. The Tokyo rules provided that 442, 455 (1912). "Any accused or any other person may be excluded from open session of the Tribunal for failure to observe and respect the directives or dignity of the Tribunal." IMTFE Rule 3. Prohibition against Congress may not pass a law Courts-martial will not enforce Not provided. Article 6 of the Jurisdiction is limited to Ex Post Facto punishing conduct that was not an ex post facto law, including IMT Charter provided for specified crimes. Crimes a crime when perpetrated, increasing amount of pay to be jurisdiction to try not only war ICTY Stat. arts. 2-5 (grave increasing the possible forfeited for specific crimes. crimes, but also "crimes breaches of the Geneva "No ... ex post facto sentence for a crime, or U.S. v. Gorki, 47 M.J. 370 against peace" and "crimes Conventions, violations of the law shall be reducing the government's (1997). against humanity," which had laws or customs of war, passed." evidentiary burden. Calder v. never before been defined as genocide, and crimes against Bull, 3 Dall. (3 U.S.) 386 international crimes. The IMT humanity). Art. I, § 9, cl. 3. (1798); Ex Parte Garland, 4 rejected defenses based on the Wall (71 U.S.) 1867. ex post facto nature of the ICTR jurisdiction is limited to CRS-20 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards charges, remarking that the rule genocide, crimes against against such charges "is not a humanity, and violations of limitation of sovereignty, but is Article 3 Common to the in general a principle of Geneva Conventions and of justice." The IMT went on to Additional Protocol II. conclude that justice does not ICTR Stat. arts. 1-4. prohibit, but rather requires the punishment of "those who in defiance of treaties and assurances have attacked neighbouring states without warning." IMT Opinion and Judgment: The Law of the Charter. The statute for the Tokyo Tribunal provided it jurisdiction over the specific violations "whether or not in violation of the domestic law of the country where perpetrated." IMTFE Charter art. 5. CRS-21 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Protection against Jeopardy attaches once the Double jeopardy clause Not provided. Jurisdiction was "No person shall be tried Double Jeopardy jury is sworn or where there is applies. See Wade v. Hunter, concurrent with national before a national court for acts no jury, when the first evidence 336 US 684, 688-89 (1949). courts, but the IMT could only constituting serious violations "... nor shall any is presented. If the trial is try serious crimes not limited of international humanitarian person be subject terminated after jeopardy has Art. 44, UCMJ prohibits to a specific geographical law under the present Statute, for the same offence attached, a second trial may be double jeopardy, provides for location. for which he or she has already to be twice put in barred in a court under the jeopardy to attach after been tried by the International jeopardy of life or same sovereign, particularly introduction of evidence. Tribunal..." limb; ..." where it is prosecutorial 10 U.S.C. § 844. Amendment V. conduct that brings about the A person who has been tried by Subject to "dual termination of the trial. General court-martial a national court for acts sovereign" doctrine, Illinois v. Somerville, 410 U.S. proceeding is considered to be constituting serious violations that is, federal and 458 (1973). a federal trial for double of international humanitarian state courts may jeopardy purposes. Double law may be subsequently tried prosecute an jeopardy does not result from by the ad hoc tribunal, but only individual for the charges brought in state or if: same conduct foreign courts, although court- (a) the act for which he or she without violating martial in such cases is was tried was characterized as the clause. disfavored. United States v. an ordinary crime; or Stokes, 12 M.J. 229 (C.M.A. (b) the national court 1982). proceedings were not impartial Once military authorities have or independent, were designed turned service member over to to shield the accused from civil authorities for trial, international criminal CRS-22 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards military may have waived responsibility, or the case was jurisdiction for that crime, not diligently prosecuted. although it may be possible to ICTY Stat. art. 10; ICTR Stat. charge the individual for art. 9. another crime arising from the same conduct. See 54 AM. "When...criminal proceedings JUR. 2D, Military and Civil have been instituted against a Defense §§ 227-28. person before a court of any State for a crime for which that person has already been tried by the Tribunal, a Trial Chamber shall...issue a reasoned order requesting that court permanently to discontinue its proceedings. If that court fails to do so, the ICTY President may report the matter to the Security Council." ICTY Rule 13; ICTR Rule 13. However, the prosecution can seek to appeal an acquittal, including based on the CRS-23 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards discovery a new fact that was unknown at the time of the proceedings but that could have been decisive. ICTY Stat. art. 26.; ICTR Stat. art. 25. Speedy & Public Trial is to commence within In general, accused must be The IMT was to ensure The accused has the right "to Trial seventy days of indictment or brought to trial within 120 days expeditious proceedings, be tried without undue delay." original appearance before of the preferral of charges or although this principle was not ICTY Stat. art. 21; ICTR Stat. "In all criminal court. the imposition of restraint, framed in terms of the rights of art. 20. prosecutions, the 18 U.S.C. § 3161. whichever date is earliest. the accused. The IMT was to accused shall enjoy R.C.M. 707(a). "take strict measures to prevent Proceedings are to be public the right to a speedy Closure of the courtroom any action which will cause unless otherwise provided. and public trial, ...." during trial proceedings is The right to a public trial unreasonable delay, and rule ICTY Rule 78; ICTR Rule 78. Amendment VI. justified only if 1) the applies in courts-martial but is out irrelevant issues and proponent of closure advances not absolute. statements of any kind "The press and the public an overriding interest likely to R.C.M. 806. whatsoever," and to "deal [may] be excluded from all or be prejudiced; 2) the closure is summarily with any part of the proceedings for no broader than necessary; 3) The military trial judge may contumacy, imposing reasons of: the trial court considers exclude the public from appropriate punishment, (i) public order or morality; reasonable alternatives to portions of a proceeding for the including exclusion of any (ii) safety, security or non- closure; and 4) the trial court purpose of protecting classified Defendant or his Counsel from disclosure of the identity of a makes findings adequate to information if the prosecution some or all further victim or witness...; or support closure. See Waller v. demonstrates an overriding proceedings, but without (iii) the protection of the Georgia, 467 U.S. 39, 48 need to do so and the closure is prejudice to the determination interests of justice." CRS-24 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards (1984). no broader than necessary. of the charges." IMT Charter ICTY Rule 79; ICTY Rule 79. United States v. Grunden, 2 art. 18; IMTFE Charter art. 12. M.J. 116 (CMA 1977). The IMT was to rule in open court upon all questions arising during the trial, although it could deliberate certain matters in closed proceedings. IMT Rule 8. The IMTFE rules permitted the tribunal, "when necessary, [to] order the closing or clearing of the court and take any other steps which to the Tribunal seem just." IMTFE Rule 5. Provision was made for the publication of all proceedings in multiple languages. IMT Charter art. 25. At the Tokyo Tribunal, "[s]o much of the record and of the proceedings may be translated CRS-25 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards into Japanese as the Tribunal considers desirable in the interest of justice and for the information of the public." IMTFE Rule 6. Burden & Defendant is entitled to jury Members of court martial must The IMT could "admit any "A finding of guilt may be Standard of Proof instructions clarifying that the be instructed that the burden of evidence which it deem[ed] to reached only when a majority prosecution has the burden of proof to establish guilt is upon be of probative value." IMT of the Trial Chamber is Due Process presenting evidence sufficient the government and that any Charter art. 19; IMTFE Rule satisfied that guilt has been requires the to prove guilt beyond a reasonable doubt must be 13. proved beyond reasonable prosecution to prove reasonable doubt. resolved in favor of the Guilty verdicts and sentences doubt." ICTY Rule 87; ICTR the defendant guilty Cool v. United States, 409 U.S. defendant. R.C.M. 920(e). required a majority vote, that Rule 87. of each element of a 100 (1978). is, three out of four votes. crime beyond a IMT Charter art. 4. "A Chamber may admit any reasonable doubt. relevant evidence which it In re Winship, 397 deems to have probative U.S. 358 (1970). value," and "... shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law." ICTY Rule CRS-26 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards 89; ICTR Rule 89. At the ICTY, "A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form." ICTY Rule 90. At the ICTR, "Witnesses shall ... be heard directly by the Chambers unless [it] has ordered that the witness be heard by means of a deposition as provided for in Rule 71." ICTR Rule 90. Privilege Against Defendant may not be No person subject to the UCMJ Not provided. The accused may not to be Self-Incrimination compelled to testify. Jury may may compel any person to compelled to testify against not be instructed that guilt may answer incriminating himself or to confess guilt. "No person ... shall be inferred from the questions. Art. 31(a) UCMJ, ICTY Stat. art. 21; ICTR Stat. be compelled in any defendant's refusal to testify. 10 U.S.C. § 831(a). art. 20. criminal case to be a Griffin v. California, 380 U.S. witness against 609 (1965). Defendant may not be "A witness may object to CRS-27 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards himself..." Witnesses may not be compelled to give testimony making any statement which Amendment V. compelled to give testimony that is immaterial or potentially might tend to incriminate the that may be incriminating degrading. Art. 31(c), UCMJ, witness. The Chamber may unless given immunity for that 10 U.S.C. § 831(c). ...compel the witness to answer testimony. the question [but such 18 U.S.C. § 6002. No adverse inference is to be testimony] shall not be used as drawn from a defendant's evidence in a subsequent refusal to answer any questions prosecution against the witness or testify at court-martial. for any offence other than false Mil. R. Evid. 301(f). testimony." ICTY Rule 90; ICTR Rule 90. Witnesses may not be compelled to give testimony that may be incriminating unless granted immunity for that testimony by a general court-martial convening authority, as authorized by the Attorney General, if required. 18 U.S.C. § 6002; R.C.M. 704. CRS-28 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Right to Examine Rules of Evidence prohibit Hearsay rules apply as in Defendants had the right "to The accused has the right "to or Have Examined generally the introduction at federal court. Mil. R. Evid. 801 present evidence at the Trial in examine, or have examined, the Adverse Witnesses trial of statements made out of et seq. support of [their] defense, and witnesses against him...." court to prove the truth of the to cross-examine any witness ICTY Stat. art. 21; ICTR Stat. "In all criminal matter stated unless the In capital cases, sworn called by the Prosecution." art. 20. prosecutions, the declarant is available for cross- depositions may not be used in IMT Charter art. 16(d), IMTFE accused shall enjoy examination at trial (hearsay lieu of witness, unless court- Charter art. 15. Hearsay evidence may be the right ... to be rule). Fed. R. Evid. 801 et seq. martial is treated as non-capital admissible. "A Chamber may confronted with the or it is introduced by the Hearsay was not strictly admit any relevant evidence witnesses against The government is required to defense. Art. 49, UCMJ, 10 prohibited. The judges were which it deems to have him; ...." disclose to defendant any U.S.C. § 849. empowered to inquire into the probative value. ... A Chamber Amendment VI. relevant evidence in its nature of evidence and may exclude evidence if its possession or that may become determine its reliability. probative value is substantially known through due diligence. IMT Charter art. 20; IMTFE outweighed by the need to Fed. R. Crim. P. 16. Charter art. 15 (tribunal to ensure a fair trial." determine "admissibility" and ICTY Rule 89. "relevance"of evidence). "A Trial Chamber may admit, "A document [was admissible in whole or in part, the before the Tokyo Tribunal], evidence of a witness in the regardless of its security form of a written statement in classification and without lieu of oral testimony which proof of its issuance or goes to proof of a matter other signature, which appears to the than the acts and conduct of the CRS-29 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Tribunal to have been signed or accused as charged in the issued by any officer, indictment." department, agency or member ICTY Rule 92 bis. of the armed forces of any government." IMTFE Charter Unsworn written testimony and art. 13. transcripts are admissible only under certain circumstances, including where the declarant is unavailable but there are sufficient indicia of reliability to satisfy the court. Id. The ICTY has held that out-of court statements that are relevant and found to have probative value are admissible but that judges may be guided by "hearsay exceptions generally recognised by some national legal systems, as well as the truthfulness, voluntariness and trustworthiness of the evidence, as appropriate." Prosecutor v. CRS-30 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Tadic, Case No.IT-94-1-T, Decision on Defense Motion on Hearsay, 5 August 1996, ¶¶ 7-19. Right to Defendants have the right to Defendants before court- The defense had an opportunity The accused has the right "to Compulsory subpoena witnesses to testify in martial have the right to to apply to the Tribunal for the examine, or have examined, the Process to Obtain their defense. The court may compel appearance of production of witnesses or of witnesses against him and to Witnesses punish witnesses who fail to witnesses necessary to their documents by written obtain the attendance and appear. Fed. R. Crim. Pro. defense. R.C.M. 703. application stating where the examination of witnesses on "In all criminal Rule 17. witness or document was his behalf under the same prosecutions, the Process to compel witnesses in thought to be located and the conditions as witnesses against accused shall enjoy court-martial cases is to be facts proposed to be proved. him." ICTY Stat. art. 21; the right ... to have similar to the process used in The Tribunal had the discretion ICTR Stat. art. 20. compulsory process federal courts. Art. 46, UCMJ, to grant applications and seek for obtaining 10 U.S.C. § 846. to have evidence made witnesses in his available by cooperating states. favor, ...." IMT Rule 4; IMTFE Charter art. 9. Amendment VI. Right to Trial by The independence of the A qualified military judge is Each state party to the London The judges are to be "persons Impartial Judge judiciary from the other detailed to preside over the Agreement establishing the of high moral character, branches was established to court-martial. The convening IMT nominated one judge, impartiality and integrity...." "The Judicial ensure trials are decided authority may not prepare or whom they could replace "for ICTY Stat. art. 13; ICTR Stat. CRS-31 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Power of the United impartially, without the review any report concerning reasons of health or for other art. 12. States, shall be "potential domination by other the performance or good reasons," except that no vested in one branches of government." effectiveness of the military replacement was permitted to "A Judge may not sit on a trial supreme Court, and United States v. Will, 449 U.S. judge. Art. 26, UCMJ, 10 take place during a trial, other or appeal in any case in which in ... inferior courts 200, 217-18 (1980). U.S.C. § 826. than by an alternate. IMT the Judge has a personal .... The Judges ... Charter art. 3. interest or concerning which shall hold their Judges with a pecuniary Article 37, UCMJ, prohibits the Judge has or has had any Offices during good interest in the outcome of a unlawful influence of courts- association which might affect Behaviour, and shall case or other conflicts of martial through admonishment, his or her impartiality." receive ... a interest are disqualified and censure, or reprimand of its ICTY Rule 15; ICTR Rule 15. Compensation, must recuse themselves. members by the convening which shall not be 28 U.S.C. § 455. authority or commanding diminished during officer, or any unlawful their Continuance in attempt by a person subject to Office." the UCMJ to coerce or Article III § 1. influence the action of a court- martial or convening authority. Art. 37, UCMJ, 10 U.S.C. § 837. Right to Trial By The pool from which juries are A military accused has no There was no provision for a The ICTY and ICTR follow the Impartial Jury drawn must represent a fair Sixth Amendment right to a jury trial. civil law tradition of employing cross section of the trial by petit jury. Ex Parte a panel of judges to decide "The Trial of all community. Taylor v. Quirin, 317 U.S. 1, 39-40 questions of both fact and law. Crimes, except in Louisiana, 419 U.S. 522 (1942) (dicta). There is no provision for trial CRS-32 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards Cases of (1975). However, "Congress has by jury. Impeachment, shall provided for trial by members be by Jury; ...." There must further be measures at a court-martial." United Art III § 2 cl. 3. to ensure individual jurors States v. Witham, 47 MJ 297, "In all criminal selected are not biased (i.e., the 301 (1997); Art. 25, UCMJ, 10 prosecutions, the voir dire process). Lewis v. U.S.C. § 825. accused shall enjoy United States, 146 U.S. 370 the right to a ... trial, (1892); see Fed. R. Crim. P. 24 The Sixth Amendment by an impartial jury (peremptory challenges). requirement that the jury be of the state ...." impartial applies to court- Amendment VI. The trial must be conducted in martial members and covers a manner designed to avoid not only the selection of exposure of the jury to individual jurors, but also their prejudicial material or undue conduct during the trial influence. If the locality of the proceedings and the subsequent trial has been so saturated with deliberations. United States v. publicity about a case that it is Lambert, 55 M.J. 293 (2001). impossible to assure jurors will not be affected by prejudice, The absence of a right to trial the defendant is entitled to a by jury precludes criminal trial change of venue. Irvin v. of civilians by court-martial. Dowd, 366 U.S. 717 (1961). Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. United States ex rel. Singleton, 361 CRS-33 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards U.S. 234 (1960). Right to Appeal to Originally, the writ of habeas The writ of habeas corpus None. "The judgment of the The ICTY Statute creates an Independent corpus permitted collateral provides the primary means by Tribunal as to the guilt or the Appeals Chamber, which may Reviewing attack upon a prisoner's which those sentenced by innocence of any Defendant hear appeals from convicted Authority conviction only if the military court, having shall give the reasons on which persons or from the prosecutor sentencing court lacked subject exhausted military appeals, can it is based, and shall be final on the grounds of "an error on "The Privilege of matter jurisdiction. It later challenge a conviction or and not subject to review." a question of law invalidating the Writ of Habeas evolved into an avenue for the sentence in a civilian court. IMT Charter art. 26. the decision," or "an error of Corpus shall not be challenge of federal and state The scope of matters that a fact which has occasioned a suspended, unless convictions on other due court will address is more The Control Council for miscarriage of justice." when in Cases of process grounds, to determine narrow than in challenges of Germany was empowered to ICTY Stat. art. 25; ICTY Stat. Rebellion or whether a prisoner's detention federal or state convictions. reduce or otherwise alter the art. 24. Invasion the public is "contrary to the Constitution Burns v. Wilson, 346 U.S. 137 sentences, but could not Safety may require or laws or treaties of the (1953). increase its severity. it" United States." 28 U.S.C. §§ IMT Charter art. 29. Article I § 9 cl. 2. 2241 et seq. However, Congress created a civilian court, the Court of General MacArthur had similar Appeals for the Armed Forces, authority with respect to to review military cases. decisions of the IMTFE. IMTFE Charter art. 17. Protection against The death penalty is not per se Death may only be adjudged Penalties included "death or Penalties are limited to Excessive Penalties unconstitutional, but its for certain crimes where the such other punishment as shall imprisonment; there is no death CRS-34 Constitutional Federal Court General Courts-Martial Nuremberg/Tokyo ICTY/ICTR Safeguards "Excessive bail discriminatory and arbitrary defendant is found guilty by be determined by [the IMT] to penalty. The ICTY may also shall not be imposition may be, and the unanimous vote of court- be just." IMT Charter art. 27; order the return of any property required, nor death penalty may not be martial members present at the IMTFE Charter art. 16. and proceeds acquired by excessive fines automatic. See Gregg v. time of the vote. Prior to criminal conduct to their imposed, nor cruel Georgia, 428 U.S. 153 (1976); arraignment, the trial counsel The IMT at Nuremberg could rightful owners. ICTY Stat. art. and unusual 18 U.S.C.§ 3592 (mitigating must give the defense written also order the convicted person 24; ICTR Stat. art. 23. punishments /aggravating circumstances). notice of aggravating factors to deliver any stolen property inflicted." the prosecution intends to to the Control Council for Sentences are to be imposed Amendment VIII. When the death penalty may be prove. R.C.M. 1004. Germany. IMT Charter art. 28. consistently with the general imposed, the defendant shall be practice regarding prison provided a list of potential A conviction of spying during sentences in the courts of the jurors and witnesses, unless the time of war under article 106, former Yugoslavia or Rwanda, court finds that such action UCMJ, carries a mandatory taking into account such factors might jeopardize the life or death penalty. as the gravity of the offence safety of any person. 18 U.S.C. 10 U.S.C. § 906. and the individual § 3432. circumstances of the convicted person. ICTY Stat. art. 24; A special hearing is held to ICTR Stat. art. 23. determine whether the death sentence is warranted. 18 U.S.C. § 3593. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31262