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Military Commissions Executive Order
Due Process Protections Afforded Defendants
A Comparison between the Proposed U.S. Military Commissions and the International Criminal Tribunal for the Former Yugoslavia

Due Process Protections Military Commissions Under Military Order of November 13 International Criminal Tribunal for the Former Yugoslavia (ICTY)

Provision Due Process Protections Provision Due Process Protections
Applicable Offenses Sections 1(e), 2 & 4 A person can be tried for violations of "the laws of war and other applicable laws" with respect to "acts of international terrorism." None of these terms are defined. Arts. 2 to 5,ICTY Statute Jurisdiction is limited to "grave breaches of the 1949 Geneva Conventions," "violations of the laws or customs of war," "genocide" and "crimes against humanity." These key terms are expressly defined in the ICTY Statute. For example, "grave breaches of the 1949 Geneva Convention" is defined to include (among others) "willfully causing great suffering or serious injury to body or health" and "extensive destruction and appropriation of property, not justified by military necessity."
Grounds for Arrest / Detention Section 2 of Military Order of Nov. 13 An individual falls within the Commission's jurisdiction if he is a non-citizen who the President has a "reason to believe" is or was a member of al-Qaida; has engaged in or aided/conspired in acts of international terrorism affecting the U.S.; or has harbored such a person. The Secretary of Defense is authorized to detain and try a person after a presidential determination. Arts. 18 & 19, ICTY Statute An ICTY trial judge must first issue an arrest warrant or a summons based upon an indictment that must be considered to establish a prima facie case.

The investigative process leading to the preparation of an indictment is subject to the independent judicial review of an ICTY judge before a warrant is issued.

General Trial Procedures Section 4 The Secretary of Defense formulates the rules for the conduct of proceedings subject to a few minimum requirements. For example, the Secretary of Defense must ensure that defendants are provided with a "full and fair trial." However, this concept is not further elaborated. Art. 15, ICTY Statute The general procedures are established by the judges of the ICTY and are publicly available. The procedures implement requirements that are comparable to the due process protections contained in the U.S. Constitutional Bill of Rights (except for trial by jury).
Right to Counsel Section 4(c)(5) Yes. No explicit right of a defendant to select his/her own defense attorney. Possibly an attorney will be appointed by the Secretary of Defense. It is not clear whether legal aid is available. Art. 21(4)(d), ICTY Statute Yes. A defendant has a right to choose his/her own legal counsel. Otherwise the Registry of the ICTY will appoint one. The ICTY will fund legal representation for an indigent defendant.
Obligation of the Prosecution to Disclose Evidence Section 4 There are no explicit disclosure obligations on the prosecution. For example, there is no express requirement to fully inform a defendant of the nature of the charges filed against him or her. Further, the Secretary of Defense must decide whether exculpatory evidence should generally be disclosed. Art. 21, ICTY Statute Rules 66 & 68, ICTY Rules & Procs. The prosecution has thorough obligations of disclosure. For example, the ICTY provides a fundamental protection by requiring that a defendant must be immediately informed of the nature of the charges against him or her.

Importantly, there is also an obligation on the prosecution to disclose all exculpatory evidence.

Adequate Time to Prepare a Defense
There is no requirement that a defendant be given adequate time to prepare a reasonable defense. Art. 21, ICTY Statute This is a fundamental right that is explicitly incorporated into the ICTY rules and procedures.
Public trial
No. Secret proceedings are contemplated. This is one of the stated rationales for the Military Commission. Art. 20, ICTY Statute Rules 78 79 & 99 The trials are open to the public and media. Judgments must also be made public. However, the Trial Chamber can, in extreme cases, decide to "close" the proceedings to the public if it is necessary, for instance, to protect a witness.
Presumption of Innocence
There is no express protection for this fundamental legal presumption. The consequences of this are that the burden of proof does not automatically rest on the prosecution. Art. 21, ICTY Statute The presumption of innocence is expressly preserved.
Standard of Proof Section 4 The Secretary of Defense decides on the applicable standard of proof. For example, the Secretary could decide that the Commission convicts "on the balance of probabilities" rather than "beyond a reasonable doubt." Rule 87 The ICTY judges can only convict a defendant when satisfied that the prosecution has proved all allegations "beyond reasonable doubt."
Verdict/ Sentencing Section 4(c)(6) & (7) Unanimity is not required. A two-thirds majority of the commission members at the time the verdict/sentence is handed down, provided that a majority of members are present at this time. Art. 23, ICTY Statute Unanimity is not required. A majority vote of the ICTY judges is required to sustain a conviction or hand down a sentence.
Imposition of the Death Penalty
Yes. The same two-third sentencing requirements apply for the death penalty. Art. 24, ICTY Statute No. The death penalty is explicitly prohibited.
Right of Appeal Section 7(b)(2) There is no independent review mechanism. In particular, there is no right of judicial appeal. The originators of the proceedings (i.e. President and/or Secretary of Defense) can review a matter for final decision. Arts. 12 & 25, ICTY Statute Yes. A defendant can appeal to a separate Appellate Chamber of 5 ICTY judges. Appeals can be based on both errors of fact or law.