Selected Procedural Safeguards in Federal, Military, and International Courts

CRS Report for Congress
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.

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. C^ONST. 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 R^ESTATEM^ENT(T^HI^RD)^OFF^OREI^GNR^ELATI^ONS § 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.

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.C^ONST. 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 W^I^LLI^AMW^IN^T^H^R^O^P,W^IN^T^H^R^O^P’^SM^IL^IT^A^R^YL^AW^ANDP^RECEDENTS48-49(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).

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.

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 declare²³
war and “make rules concerning captures on land and water,” to define and punish
violations of the “Law of Nations,”²⁴ and to make regulations to govern the armed²⁵
forces. The power of the President to convene military commissions flows from his
authority as Commander in Chief of the Armed Forces and his responsibility to²⁶²⁷
execute the laws of the nation. Under the Articles of War and subsequent statute,
the President has at least implicit authority to convene military commissions to try²⁸
offenses against the law of war. There is, therefore, somewhat of a distinction
between the authority and objectives behind convening military courts-martial and²⁹
commissions. 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 trying³⁰
offenses recognized under the law of war or as designated by statute. 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. C^ONST. 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 W^IN^T^H^R^O^P, 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...)

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.

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 the⁴⁰
trial of war criminals. The four occupying powers also established Control Council
Law No. 10, authorizing military tribunals at the national level to try the less high-⁴¹
profile war crimes and crimes against humanity.
The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals
were designed to be non-technical, allowing the expeditious admission of “all⁴²
evidence [the Tribunal] deems to have probative value.” 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 historical⁴⁵
consensus seems to have accepted that the Nuremberg Trials were conducted fairly,
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
[ h t t p : / / www.ya l e .e du/ l a wwe b/ a va l on/ i mt / p r o c / i mt r ul e s .ht m] .
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
C^OLUM.J.T^RANSNAT’^LL. 851, 860 (1999).
⁴³ See id. at 871-72.
⁴⁴ See K^RI^ANGSAKK^I^TTI^CHAI^SAREE,I^NTERNATI^ONALC^RI^M^I^NALL^AW 20 (2001).
⁴⁵ See, Wallach, supra note 42, at 852 (citing V^I^R^GI^NI^AM^ORRI^S&M^I^C^HAELS^CHARF,1A^N
I^NSI^D^ER’^SG^UI^{DE TO THE}I^NTERNATI^ONALC^RI^M^I^NALT^RI^{BUNAL F}^O^R^THEF^ORM^E^R
Y^UGOSLAVI^A 9-10 (1995)).

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 unconditional⁴⁹
surrender. The Tribunal rejected the defendants’ contention that the tribunal
violated fundamental legal principles by trying them for conduct that was not⁵⁰
prohibited by criminal law at the time it was committed. 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, 45S^T.L^OUI^SU.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, 17B.C.T^HI^RDW^ORLDL.J.171,238
(1997).
⁵⁰ See K^I^TTI^CHAI^SAREE,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”).

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).⁵³Both 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].

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 are⁵⁵

undergoing trial, and another fourteen await trial.
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
stitutionalFederal CourtGeneral Courts-MartialNuremberg/TokyoICTY/ICTR
eguards
ption ofIf the defendant fails to enter aIf the defendant fails to enter aNo written rule addressing“The accused shall be
ce proper plea, a plea of not guiltyproper plea, a plea of not guiltypresumption of innocence,presumed innocent until proved
will be entered. Fed. R. Crim.will be entered. R.C.M. 910(b).although U.S. negotiators wereguilty according to the
nciple thatP. 11(a).able to win a concession fromprovisions of the present
s a Members of court martialSoviet negotiators to the effectStatute.”
Defendant is entitled to jurymust be instructed that thethat the rule would apply. SeeICTY Stat. art. 21(3); ICTR
ⁱ^{ki/CRS-RL31262}instructions explaining that“accused must be presumed toHenry T. King, Jr., RobertStat. art. 20.
^g/ws theguilt must be proved on thebe innocent until the accused’sJackson’s Transcendent
^s^.orevidence beyond a reasonableguilt is established by legal andInfluence Over Today’s World,If the accused fails to enter a
^le^aktic anddoubt. Taylor v. Kentucky, 436competent evidence beyond a68 A^LB.L.R^EV. 23, 25 (2006).plea, the court must enter a plea
^://wikiary, and itsU.S. 478 (1978).reasonable doubt.” of not guilty on the accused’s
^h^ttpent lies atR.C.M. 920(e).behalf.
Defendant is entitled to appearICTY Rule 62(a)(iv); ICTR
ministrationin court without unnecessaryThe accused shall be properlyRule 62(a)(iii).
riminalphysical restraints or otherattired in uniform with grade
indicia of guilt, such asinsignia and any decorations toInstruments of restraint may
appearing in prison uniform,which entitled. Physicalnot be used during court
, 156 U.S.that may be prejudicial to jury.restraint shall not be imposedproceedings.
See Holbrook v. Flynn, 475unless prescribed by theICTY 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

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determines it is voluntary,
informed, unequivocal, and
supported by evidence.
ICTY Rule 63 bis; ICTR Rule

62(B).

ain Incriminating statements madeCoerced confessions orNo right to remain silent. TheA suspect to be questioned by
by defendant under duress orconfessions made withoutTokyo rules specificallythe prosecutor during an
without prior Miranda warningstatutory equivalent of Mirandaprovided that “all purportedinvestigation must be informed
ⁱ^{ki/CRS-RL31262}are inadmissible as evidence ofwarning are not admissible asadmissions or statements of theof his right to remain silent.
^g/wguilt in a criminal trial.evidence. Art. 31, UCMJ, 10accused are admissible.”ICTY Rule 42; ICTR Rule 42.
^s^.orlled in anyMiranda v. Arizona, 384 U.S.U.S.C. § 831.IMTFE Charter art 13.
^le^akl case to be a436 (1966).Persons are to be informed of
ainstThe prosecutor must notify thethe right to remain silent upon
^://wiki
^h^ttpBefore a jury is allowed to heardefense of any incriminatingtheir arrest.
evidence of a defendant’sstatements made by theICTY Rule 55; ICTR Rule 55.
confession, the court mustaccused that are relevant to the
determine that it wascase prior to the arraignment. “No evidence shall be
voluntarily given.Motions to suppress suchadmissible if obtained by
18 U.S.C. § 3501.statements must be made priormethods 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.

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om fromEvidence, including derivative“Evidence obtained as a resultNot provided. “No evidence shall be
sonableevidence, gained throughunreasonable searches andof an unlawful search orseizure ... is inadmissibleadmissible if ... its admission isantithetical to, and would
es &
es seizures may be excluded inagainst the accused ...” unlessseriously damage, the integrity
court. Boyd v. United States,certain exceptions apply. of the proceedings.”
ht of the116 U.S. 616 (1886); NardoneMil. R. Evid. 311.ICTY Rule 95; ICTR Rule 95.

v. United States, 308 U.S. 338
(1938); Fed. R. Crim. P. 41.“Authorization to search” may
ⁱ^{ki/CRS-RL31262}be oral or written, and may be
^g/wA search warrant issued by aissued by a military judge or an
^s^.ormagistrate on a showing ofofficer in command of the area
^le^akprobable cause is generallyto be searched, or if the area is
^://wikirequired for law enforcementagents to conduct a search ofnot under military control, withauthority over persons subject
^h^ttp
an area where the subject has ato military law or the law of
reasonable expectation ofwar. It must be based on
V. privacy, including searches andprobable cause.
seizures of telephone or otherMil. R. Evid. 315.
communications and emissions
of heat and other phenomenaInterception of wire and oral
detectable with means othercommunications within the
than human senses. Katz v.United States requires judicial
United States, 389 U.S. 347application in accordance with
(1967).18 U.S.C. §§ 2516 et seq.

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Evidence resulting fromMil. R. Evid. 317.
overseas searches of American
property by foreign officials isA search conducted by foreign
admissible unless foreignofficials is unlawful only if the
police conduct shocks judicialaccused is subject to “gross and
conscience or participation bybrutal treatment.”
U.S. agents is so substantial asMil. R. Evid. 311(c).
to render the action that of the
ⁱ^{ki/CRS-RL31262}United States. United States v.^th
^g/wBarona, 56 F.3d 1087 (9 Cir.
^s^.or1995).
^le^ak
^://wiki
^h^ttpDefendants in criminal casesThe defendant has a right to“Each defendant has the rightPrior to being charged, “[i]f
ve Counsel have the right to representationmilitary counsel at governmentto conduct his own defense orquestioned, the suspect shall be
by an attorney at all stages ofexpense. The defendant mayto have the assistance ofentitled to be assisted by
riminalprosecution. The defendantmay hire an attorney or, if choose counsel, if that attorneyis reasonably available, andcounsel,” and was required tobe told of that right. Only onecounsel of his own choice,including the right to have
l enjoyindigent, have counselmay hire a civilian attorney incounsel was permitted tolegal assistance assigned to him
ht … to haveappointed at the government’sexpense. If two or more co-addition to military counsel. Art 38, UCMJ, 10 U.S.C.appear at the trial for anydefendant, unless the IMTwithout payment by him in anysuch case if he does not have
stance of
defendants are represented by§ 838.granted special permission.sufficient means to pay for it,
one attorney, the court mustThe IMT was to designateas well as to necessary
inquire as to whether a conflictAppointed counsel must becounsel for any defendant whotranslation into and from a

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. of interest exists. certified as qualified and mayfailed to apply for particularlanguage he speaks and
Fed. R. Crim. P. 44.not be someone who has takencounsel or if the counselunderstands.” ICTY Stat. art.
any part in the investigation orrequested was not available,18; ICTR Stat. art. 17.
Conversations betweenprosecution, unless explicitlyunless the defendant elected in
attorneys and clients arerequested by the defendant. writing to conduct his ownThe 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 ensuringThe IMTFE Charter provideddefend himself in person or
ⁱ^{ki/CRS-RL31262}adequate representation ofThe attorney-client privilege isthat “[e]ach accused shall havethrough legal assistance of his
^g/wdefendants are outlined at 18honored. Mil. R. Evid. 502.the right to be represented byown choosing; to be informed,
^s^.orU.S.C. §§ 3005 (capital cases)counsel of his own selection,if he does not have legal
^le^akand 3006A.subject to the disapproval ofassistance, of this right; and to
^://wikisuch counsel at any time by theTribunal. ... If an accused is nothave legal assistance assignedto him, in any case where the
^h^ttp
represented by counsel and ininterests of justice so require,
open court requests theand without payment by him in
appointment of counsel, theany such case if he does not
Tribunal shall designatehave sufficient means to pay
counsel for him. In the absencefor it.” ICTY Stat. art. 21;
of such request the TribunalICTR Stat. art. 20.
may appoint counsel for an
accused if in its judgment suchAll communications between
appointment is necessary tolawyer and client are
provide for a fair trial.”privileged, and disclosure

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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
ⁱ^{ki/CRS-RL31262}assignment of counsel to
^g/windigent defendants are set
^s^.orforth in ICTY Rules 44-45 and
^le^akICTR Rules 44-45.
^://wikiWhere the accused is in dangerThe right to indictment by“Each individual defendant inThe prosecutor, if satisfied that
^h^ttptment andof being subjected to angrand jury is explicitlycustody shall receive not lessthere is sufficient evidence to
tmentinfamous punishment ifexcluded in “cases arising inthan 30 days before trial aprovide reasonable grounds for
convicted, he has the right tothe land or naval forces.”copy, translated into a languagebelieving that a suspect has
insist that he shall not be triedAmendment V.which he understands, (1) ofcommitted a crime within the
except on the accusation of athe Indictment, (2) of thejurisdiction of the ICTY (or
grand jury. Ex parte Wilson,Whenever an offense isCharter, (3) of any otherICTR), prepares an indictment
rime,114 U.S. 417 (1885); Fed. R.Crim. P. 7.alleged, the commander isresponsible for initiating adocuments lodged with theIndictment….” IMT Rule 2.for confirmation by a Judge,setting forth the name and
preliminary inquiry andThe Tokyo Tribunal requiredparticulars of the suspect, and a
Jurors must be selected from adeciding how to dispose of thethe same documents to beconcise statement of the facts
ury, exceptfair cross section of theoffense. R.C.M. 303-06.provided not less than 14 daysof the case and of the crime

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es arising incommunity; otherwise, anbefore trial. IMTFE Rule 1.with which the suspect is
accused can challenge thecharged. ICTY Stat. arts.
indictment. 28 U.S.C. §§ 186118-19 and ICTY Rule 47;
, when inet seq.ICTR Stat. arts. 17-18; ICTR
service inRule 47.
r orOnce an indictment is given, its
er ....”scope may not be increased. A person against whom an
Ex parte Bain, 121 U.S. 1indictment has been confirmed
ⁱ^{ki/CRS-RL31262}(1887).is to be taken into custody and
^g/wimmediately informed of the
^s^.or(Amendments to an indictmentcharges in a language he
^le^akmust undergo further grandunderstands. ICTY Stat. arts.
^://wikijury process.)20-21 and Rule 47; ICTR Stat.arts. 19-20 and ICTR Rule 47.
^h^ttp
The prosecutor may amend the
indictment as prescribed in
ICTY Rule 50 or ICTR Rule

50.

Defendant is entitled to beCharges and specificationsSee above.An arrested person must be
ent ofinformed of the nature of thecharge with sufficientlymust be signed under oath andmade known to the accused ascompletely informed ofcharges, which may be satisfied
reasonable certainty to allowsoon as practicable. Art. 30,by presentation to the accused

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riminalfor preparation of defense. UCMJ, 10 U.S.C. § 830.of a copy of the written
Cook v. United States, 138charges, translated, if
l enjoyU.S. 157 (1891).necessary.
ht…to beICTY Rule 59 bis.
At the ICTR, the registrar is
ion; …”required to prepare certified
. copies of the indictment in alanguage the accused
ⁱ^{ki/CRS-RL31262}
^g/wunderstands, but there does not
^s^.orappear to be a requirement that
^le^akthe accused be furnished with a
^://wikiwritten copy. ICTR Rule 47.
^h^ttp
e PresentThe language, history, andThe presence of the accused isNot provided. “The TribunalThe accused has the right “to
logic of Rule 43 support arequired during arraignment, atshall have the right to takebe tried in his presence.”
straightforward interpretationthe plea, and at every stage ofproceedings against a personICTY Stat. art. 21; ICTR Stat.
that prohibits the trial inthe court-martial unless thecharged … in his absence, if heart. 20.
absentia of a defendant who isaccused waives the right byhas not been found or if the
not present at the beginning ofvoluntarily absenting him orTribunal, for any reason, findsIn absentia trials are permitted
ees thetrial. Crosby v. United States,herself from the proceedingsit necessary, in the interests ofonly in cases of exceptional
ght to be506 U.S. 255, 262 (1993); Fed.R. Crim. P. 43. after the arraignment or bypersisting in conduct thatjustice, to conduct the hearingin his absence.” IMT Chartercontempt of court, where theaccused voluntarily absents
t in the
justifies the trial judge inart. 12.himself from the proceeding.

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l.When defendant knowinglyordering the removal of the(Martin Bormann, who wasProsecutor v. Blaskic, Case
,absents himself from courtduring trial, court mayaccused from the proceedings.R.C.M. 801.never located and was rumoredto be dead, was convicted inNo. IT-95-14-AR 108 bis,Decision on Subpoena, ICTY
“proceed with trial in likeabsentia and sentenced toApp. Ch. ¶ 59 (1997).
manner and with like effect asdeath.)
if he were present.”
Diaz v. United States, 223 U.S.The Tokyo rules provided that
442, 455 (1912).“Any accused or any other
ⁱ^{ki/CRS-RL31262}person may be excluded from
^g/wopen session of the Tribunal
^s^.orfor failure to observe and
^le^akrespect the directives or dignity
^://wikiof the Tribunal.” IMTFE Rule3.
^h^ttp
Congress may not pass a lawCourts-martial will not enforceNot provided. Article 6 of theJurisdiction is limited to
st Factopunishing conduct that was notan ex post facto law, includingIMT Charter provided forspecified crimes.
esa crime when perpetrated,increasing the possibleincreasing amount of pay to beforfeited for specific crimes.jurisdiction to try not only warcrimes, but also “crimesICTY Stat. arts. 2-5 (gravebreaches of the Geneva
post factosentence for a crime, orU.S. v. Gorki, 47 M.J. 370against peace” and “crimesConventions, violations of the
ll bereducing the government’sevidentiary burden. Calder v.(1997).against humanity,” which hadnever before been defined aslaws or customs of war,genocide, and crimes against
Bull, 3 Dall. (3 U.S.) 386international crimes. The IMThumanity).
§ 9, cl. 3. (1798); Ex Parte Garland, 4rejected defenses based on the
Wall (71 U.S.) 1867.ex post facto nature of theICTR jurisdiction is limited to

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charges, remarking that the rulegenocide, crimes against
against such charges “is not ahumanity, and violations of
limitation of sovereignty, but isArticle 3 Common to the
in general a principle ofGeneva Conventions and of
justice.” The IMT went on toAdditional Protocol II.
conclude that justice does notICTR Stat. arts. 1-4.

prohibit, but rather requires the
punishment of “those who in
ⁱ^{ki/CRS-RL31262}defiance of treaties and
^g/wassurances have attacked
^s^.orneighbouring states without
^le^akwarning.” IMT Opinion and
^://wikiJudgment: The Law of theCharter.
^h^ttp
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.

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Jeopardy attaches once theDouble jeopardy clauseNot provided. Jurisdiction was“No person shall be tried
jury is sworn or where there isapplies. See Wade v. Hunter,concurrent with nationalbefore a national court for acts
no jury, when the first evidence336 US 684, 688-89 (1949). courts, but the IMT could onlyconstituting serious violations
is presented. If the trial istry serious crimes not limitedof international humanitarian
terminated after jeopardy hasArt. 44, UCMJ prohibitsto a specific geographicallaw under the present Statute,
attached, a second trial may bedouble jeopardy, provides forlocation.for which he or she has already
barred in a court under thejeopardy to attach afterbeen tried by the International
of life orsame sovereign, particularlyintroduction of evidence.Tribunal…”
ⁱ^{ki/CRS-RL31262}where it is prosecutorial10 U.S.C. § 844.
^g/wconduct that brings about theA person who has been tried by
^s^.ortermination of the trial. General court-martiala national court for acts
^le^akIllinois v. Somerville, 410 U.S.proceeding is considered to beconstituting serious violations
n” doctrine,
^://wikideral and458 (1973).a federal trial for doublejeopardy purposes. Doubleof international humanitarianlaw may be subsequently tried
^h^ttps may
jeopardy does not result fromby the ad hoc tribunal, but only
charges brought in state orif:
foreign courts, although court-(a) the act for which he or she
martial in such cases iswas tried was characterized as
ause.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 haveor independent, were designed
turned service member over toto shield the accused from
civil authorities for trial,international criminal

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military may have waivedresponsibility, or the case was
jurisdiction for that crime,not diligently prosecuted.
although it may be possible toICTY Stat. art. 10; ICTR Stat.
charge the individual forart. 9.
another crime arising from the
same conduct. See 54 A^M.“When...criminal proceedings
J^UR.2^D, Military and Civilhave been instituted against a
Defense §§ 227-28.person before a court of any
ⁱ^{ki/CRS-RL31262}State for a crime for which that
^g/wperson has already been tried
^s^.orby the Tribunal, a Trial
^le^akChamber shall…issue a
^://wikireasoned order requesting thatcourt permanently to
^h^ttp
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

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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.

y & PublicTrial is to commence withinIn general, accused must beThe IMT was to ensureThe accused has the right “to
seventy days of indictment orbrought to trial within 120 daysexpeditious proceedings,be tried without undue delay.”
original appearance beforeof the preferral of charges oralthough this principle was notICTY Stat. art. 21; ICTR Stat.
ⁱ^{ki/CRS-RL31262}riminalcourt. the imposition of restraint,framed in terms of the rights ofart. 20.
^g/w18 U.S.C. § 3161.whichever date is earliest.the accused. The IMT was to
^s^.orR.C.M. 707(a).“take strict measures to preventProceedings are to be public
^le^akl enjoyClosure of the courtroomany action which will causeunless otherwise provided.
ht to a speedyduring trial proceedings isThe right to a public trialunreasonable delay, and ruleICTY Rule 78; ICTR Rule 78.
^://wiki
^h^ttp. justified only if 1) theapplies in courts-martial but isout irrelevant issues and
proponent of closure advancesnot absolute. statements of any kind“The press and the public
an overriding interest likely toR.C.M. 806.whatsoever,” and to “deal[may] be excluded from all or
be prejudiced; 2) the closure issummarily with anypart of the proceedings for
no broader than necessary; 3)The military trial judge maycontumacy, imposingreasons of:
the trial court considersexclude the public fromappropriate punishment,(i) public order or morality;
reasonable alternatives toportions of a proceeding for theincluding exclusion of any(ii) safety, security or non-
closure; and 4) the trial courtpurpose of protecting classifiedDefendant or his Counsel fromdisclosure of the identity of a
makes findings adequate toinformation if the prosecutionsome or all furthervictim or witness...; or
support closure. See Waller v.demonstrates an overridingproceedings, but without(iii) the protection of the
Georgia, 467 U.S. 39, 48need to do so and the closure isprejudice to the determinationinterests of justice.”

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(1984).no broader than necessary.of the charges.” IMT CharterICTY Rule 79; ICTY Rule 79.

United States v. Grunden, 2art. 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.
ⁱ^{ki/CRS-RL31262}IMT Rule 8. The IMTFE rules
^g/wpermitted the tribunal, “when
^s^.ornecessary, [to] order the
^le^akclosing or clearing of the court
^://wikiand take any other steps whichto the Tribunal seem just.”
^h^ttp
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

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into Japanese as the Tribunal
considers desirable in the
interest of justice and for the
information of the public.”
IMTFE Rule 6.
en &Defendant is entitled to juryMembers of court martial mustThe IMT could “admit any“A finding of guilt may be
Proofinstructions clarifying that thebe instructed that the burden ofevidence which it deem[ed] toreached only when a majority
ⁱ^{ki/CRS-RL31262}prosecution has the burden ofproof to establish guilt is uponbe of probative value.” IMTof the Trial Chamber is
^g/wrocesspresenting evidence sufficientthe government and that anyCharter art. 19; IMTFE Rulesatisfied that guilt has been
^s^.orto prove guilt beyond areasonable doubt must be13.proved beyond reasonable
^le^akreasonable doubt. resolved in favor of theGuilty verdicts and sentencesdoubt.” ICTY Rule 87; ICTR
^://wikifendant guiltyCool v. United States, 409 U.S.defendant. R.C.M. 920(e).required a majority vote, thatRule 87.
^h^ttpement of a100 (1978).is, three out of four votes.
ond aIMT Charter art. 4.“A Chamber may admit any
relevant evidence which it
inship, 397deems to have probative
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

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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.
ⁱ^{ki/CRS-RL31262}At the ICTR, “Witnesses shall
^g/w… be heard directly by the
^s^.orChambers unless [it] has
^le^akordered that the witness be
^://wikiheard by means of a depositionas provided for in Rule 71.”
^h^ttp
ICTR Rule 90.
Defendant may not beNo person subject to the UCMJNot provided.The accused may not to be
ncriminationcompelled to testify. Jury maymay compel any person tocompelled to testify against
not be instructed that guilt mayanswer incriminatinghimself or to confess guilt.
be inferred from thequestions. Art. 31(a) UCMJ,ICTY Stat. art. 21; ICTR Stat.
lled in anydefendant’s refusal to testify.10 U.S.C. § 831(a). art. 20.
l case to be aGriffin v. California, 380 U.S.
ainst609 (1965).Defendant may not be“A witness may object to

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lf…”Witnesses may not becompelled to give testimonymaking any statement which
compelled to give testimonythat is immaterial or potentiallymight tend to incriminate the
that may be incriminatingdegrading. Art. 31(c), UCMJ,witness. The Chamber may
unless given immunity for that10 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 betestimony] shall not be used as
drawn from a defendant’sevidence in a subsequent
refusal to answer any questionsprosecution against the witness
ⁱ^{ki/CRS-RL31262}or testify at court-martial. for any offence other than false
^g/wMil. R. Evid. 301(f).testimony.” ICTY Rule 90;
^s^.orICTR Rule 90.

^le^akWitnesses may not be
^://wikicompelled to give testimonythat may be incriminating
^h^ttp
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.

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ineRules of Evidence prohibitHearsay rules apply as inDefendants had the right “toThe accused has the right “to
inedgenerally the introduction atfederal court. Mil. R. Evid. 801present evidence at the Trial inexamine, or have examined, the
tnesses trial of statements made out ofet seq. support of [their] defense, andwitnesses against him….”
court to prove the truth of theto cross-examine any witnessICTY Stat. art. 21; ICTR Stat.
ll criminalmatter stated unless theIn capital cases, sworncalled by the Prosecution.”art. 20.
declarant is available for cross-depositions may not be used inIMT Charter art. 16(d), IMTFE
l enjoyexamination at trial (hearsaylieu of witness, unless court-Charter art. 15.Hearsay evidence may be
ht … to berule). Fed. R. Evid. 801 et seq.martial is treated as non-capitaladmissible. “A Chamber may
ⁱ^{ki/CRS-RL31262}or it is introduced by theHearsay was not strictlyadmit any relevant evidence
^g/wainstThe government is required todefense. Art. 49, UCMJ, 10prohibited. The judges werewhich it deems to have
^s^.ordisclose to defendant anyU.S.C. § 849.empowered to inquire into theprobative value. ... A Chamber
^le^akrelevant evidence in itsnature of evidence andmay exclude evidence if its
.
^://wikipossession or that may becomeknown through due diligence.determine its reliability.IMT Charter art. 20; IMTFEprobative value is substantiallyoutweighed by the need to
^h^ttp
Fed. R. Crim. P. 16.Charter art. 15 (tribunal toensure a fair trial.”
determine “admissibility” andICTY Rule 89.
“relevance”of evidence).
“A Trial Chamber may admit,
“A document [was admissiblein whole or in part, the
before the Tokyo Tribunal],evidence of a witness in the
regardless of its securityform of a written statement in
classification and withoutlieu of oral testimony which
proof of its issuance orgoes to proof of a matter other
signature, which appears to thethan the acts and conduct of the

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Tribunal to have been signed oraccused as charged in the
issued by any officer,indictment.”
department, agency or memberICTY Rule 92 bis.
of the armed forces of any
government.” IMTFE CharterUnsworn written testimony and
art. 13.transcripts are admissible only
under certain circumstances,
including where the declarant
ⁱ^{ki/CRS-RL31262}is unavailable but there are
^g/wsufficient indicia of reliability
^s^.orto satisfy the court. Id.
^le^ak
^://wikiThe ICTY has held that out-ofcourt statements that are
^h^ttp
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
stitutionalFederal CourtGeneral Courts-MartialNuremberg/TokyoICTY/ICTR
eguards
Tadic, Case No.IT-94-1-T,
Decision on Defense Motion
on Hearsay, 5 August 1996, ¶¶

7-19.

Defendants have the right toDefendants before court-The defense had an opportunityThe accused has the right “to
ysubpoena witnesses to testify inmartial have the right toto apply to the Tribunal for theexamine, or have examined, the
taintheir defense. The court maycompel appearance ofproduction of witnesses or ofwitnesses against him and to
punish witnesses who fail towitnesses necessary to theirdocuments by writtenobtain the attendance and
ⁱ^{ki/CRS-RL31262} appear. Fed. R. Crim. Pro.defense. R.C.M. 703.application stating where theexamination of witnesses on
^g/wRule 17.witness or document washis behalf under the same
^s^.orriminalProcess to compel witnesses inthought to be located and theconditions as witnesses against
^le^akcourt-martial cases is to befacts proposed to be proved. him.” ICTY Stat. art. 21;
l enjoysimilar to the process used inThe Tribunal had the discretionICTR Stat. art. 20.
^://wikiht … to have
^h^ttp processfederal courts. Art. 46, UCMJ,to grant applications and seek
10 U.S.C. § 846.to have evidence made
available by cooperating states.
IMT Rule 4; IMTFE Charter
art. 9.
.
rial byThe independence of theA qualified military judge isEach state party to the LondonThe judges are to be “persons
tial Judgejudiciary from the otherdetailed to preside over theAgreement establishing theof high moral character,
branches was established tocourt-martial. The conveningIMT nominated one judge,impartiality and integrity....”
udicialensure trials are decidedauthority may not prepare orwhom they could replace “forICTY Stat. art. 13; ICTR Stat.

CRS-31
stitutionalFederal CourtGeneral Courts-MartialNuremberg/TokyoICTY/ICTR
eguards
r of the Unitedimpartially, without thereview any report concerningreasons of health or for otherart. 12.
l be“potential domination by otherthe performance orgood reasons,” except that no
branches of government.”effectiveness of the militaryreplacement was permitted to“A Judge may not sit on a trial
United States v. Will, 449 U.S.judge. Art. 26, UCMJ, 10take place during a trial, otheror appeal in any case in which
200, 217-18 (1980).U.S.C. § 826.than by an alternate. IMTthe Judge has a personal
udges ... Charter art. 3.interest or concerning which
Judges with a pecuniaryArticle 37, UCMJ, prohibitsthe Judge has or has had any
goodinterest in the outcome of aunlawful influence of courts-association which might affect
ⁱ^{ki/CRS-RL31262}case or other conflicts ofmartial through admonishment,his or her impartiality.”
^g/winterest are disqualified andcensure, or reprimand of itsICTY Rule 15; ICTR Rule 15.
^s^.ornsation,must recuse themselves.members by the convening
^le^ak28 U.S.C. § 455.authority or commanding
^://wikid duringofficer, or any unlawful
^h^ttpattempt by a person subject to
the UCMJ to coerce or
e III § 1.influence the action of a court-
martial or convening authority.
Art. 37, UCMJ, 10 U.S.C. §

837.

rial ByThe pool from which juries areA military accused has noThere was no provision for aThe ICTY and ICTR follow the
tial Jury drawn must represent a fairSixth Amendment right to ajury trial.civil law tradition of employing
cross section of thetrial by petit jury. Ex Partea panel of judges to decide
community. Taylor v.Quirin, 317 U.S. 1, 39-40questions of both fact and law.
s, except inLouisiana, 419 U.S. 522(1942) (dicta).There is no provision for trial

CRS-32
stitutionalFederal CourtGeneral Courts-MartialNuremberg/TokyoICTY/ICTR
eguards
(1975).However, “Congress hasby jury.

ent, shallprovided for trial by members
ury; ....”There must further be measuresat a court-martial.” United

2 cl. 3.to ensure individual jurorsStates v. Witham, 47 MJ 297,

riminalselected are not biased (i.e., the301 (1997); Art. 25, UCMJ, 10
voir dire process). Lewis v.U.S.C. § 825.
l enjoyUnited States, 146 U.S. 370
ht to a ... trial,(1892); see Fed. R. Crim. P. 24The Sixth Amendment
ⁱ^{ki/CRS-RL31262}rtial jury(peremptory challenges).requirement that the jury be
^g/wimpartial applies to court-
^s^.or. The trial must be conducted inmartial members and covers
^le^aka manner designed to avoidnot only the selection of
^://wikiexposure of the jury toprejudicial material or undueindividual jurors, but also theirconduct during the trial
^h^ttp
influence. If the locality of theproceedings and the subsequent
trial has been so saturated withdeliberations. United States v.
publicity about a case that it isLambert, 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 aby 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
stitutionalFederal CourtGeneral Courts-MartialNuremberg/TokyoICTY/ICTR
eguards
U.S. 234 (1960).
Originally, the writ of habeasThe writ of habeas corpusNone. “The judgment of theThe ICTY Statute creates an
ndentcorpus permitted collateralprovides the primary means byTribunal as to the guilt or theAppeals Chamber, which may
ingattack upon a prisoner’swhich those sentenced byinnocence of any Defendanthear appeals from convicted
conviction only if themilitary court, havingshall give the reasons on whichpersons or from the prosecutor
sentencing court lacked subjectexhausted military appeals, canit is based, and shall be finalon the grounds of “an error on
e ofmatter jurisdiction. It laterchallenge a conviction orand not subject to review.”a question of law invalidating
ⁱ^{ki/CRS-RL31262}beasevolved into an avenue for thesentence in a civilian court. IMT Charter art. 26.the decision,^”or“an error of
^g/wchallenge of federal and stateThe scope of matters that afact which has occasioned a
^s^.orconvictions on other duecourt will address is moreThe Control Council formiscarriage of justice.”
^le^akprocess grounds, to determinenarrow than in challenges ofGermany was empowered toICTY Stat. art. 25; ICTY Stat.
^://wikiwhether a prisoner’s detentionfederal or state convictions.reduce or otherwise alter theart. 24.
^h^ttpis “contrary to the ConstitutionBurns v. Wilson, 346 U.S. 137sentences, but could not
may requireor laws or treaties of the(1953).increase its severity.
United States.” 28 U.S.C. §§IMT Charter art. 29.
§ 9 cl. 2.2241 et seq. However, Congress created a
civilian court, the Court ofGeneral MacArthur had similar
Appeals for the Armed Forces,authority with respect to
to review military cases.decisions of the IMTFE.
IMTFE Charter art. 17.
The death penalty is not per seDeath may only be adjudgedPenalties included “death orPenalties are limited to
Penaltiesunconstitutional, but itsfor certain crimes where thesuch other punishment as shallimprisonment; there is no death

CRS-34
stitutionalFederal CourtGeneral Courts-MartialNuremberg/TokyoICTY/ICTR
eguards
discriminatory and arbitrarydefendant is found guilty bybe determined by [the IMT] topenalty. The ICTY may also
imposition may be, and theunanimous vote of court-be just.” IMT Charter art. 27;order the return of any property
death penalty may not bemartial members present at theIMTFE Charter art. 16.and proceeds acquired by
automatic. See Gregg v.time of the vote. Prior tocriminal conduct to their
Georgia, 428 U.S. 153 (1976);arraignment, the trial counselThe IMT at Nuremberg couldrightful owners. ICTY Stat. art.

18 U.S.C.§ 3592 (mitigatingmust give the defense writtenalso order the convicted person24; ICTR Stat. art. 23.

/aggravating circumstances).notice of aggravating factorsto deliver any stolen property
d.”the prosecution intends toto the Control Council forSentences are to be imposed
ⁱ^{ki/CRS-RL31262}dment VIII.When the death penalty may beprove. R.C.M. 1004.Germany. IMT Charter art. 28.consistently with the general
^g/wimposed, the defendant shall bepractice regarding prison
^s^.orprovided a list of potentialA conviction of spying duringsentences in the courts of the
^le^akjurors and witnesses, unless thetime of war under article 106,former Yugoslavia or Rwanda,
^://wikicourt finds that such actionmight jeopardize the life orUCMJ, carries a mandatorydeath penalty.taking into account such factorsas the gravity of the offence
^h^ttp
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 toICTR Stat. art. 23.

determine whether the death
sentence is warranted.

18 U.S.C. § 3593.