Comparison of Rules and Procedures in Tribunals that Try Individuals for Alleged War Crimes
Military commissions, a form of military tribunal, were born of military necessity. They have taken many forms since their first use in the United States during the Revolutionary War. The Military Commissions Act of 2009 authorizes trials by military commission in accordance with basic principles common to other courts and tribunals that try individuals for violations of the laws of war and other offenses.
The chart below compares rules and procedures employed under the Military Commissions Act of 2009 with those used in U.S. military courts-martial and U.S. federal courts, also known as Article III courts.
Basic Procedural Protections
| Rule or Procedure |
Military Commissions |
Courts-Martial |
Article III Court |
| Accused is presumed innocent until proven guilty |
Yes |
Yes |
Yes |
| Prosecution bears the burden of proof |
Yes |
Yes |
Yes |
| Guilt must be proved beyond a reasonable doubt |
Yes |
Yes |
Yes |
| Trial must take place without undue delay |
Yes |
Yes |
Yes |
| Defense counsel at no cost, regardless of ability to pay |
Yes |
Yes |
No |
| Defense counsel at no cost for indigent accused |
Yes |
Yes |
Yes |
| May hire counsel at no cost to the government |
Yes. Subject to certain limitations. |
Yes |
Yes |
| Attorney-client privilege is honored |
Yes |
Yes |
Yes |
| Accused entitled to be present at trial |
Yes. Unless removed for persisting in disruptive or dangerous conduct. |
Yes. Unless removed for persisting in disruptive or dangerous conduct. |
Yes. Unless removed for persisting in disruptive or dangerous conduct. |
| Right to cross-examine witnesses |
Yes |
Yes |
Yes |
| Freedom from double jeopardy |
Yes |
Yes |
Yes |
| Right to the assistance of an interpreter at no cost to the accused |
Yes |
Yes |
Yes |
| Protection against compulsory self-incrimination |
Yes |
Yes |
Yes |
Explanation
In military commissions and courts-martial, an accused is entitled to be represented by at least one military defense counsel at no cost to him or her. He or she may also hire a civilian attorney.
An accused in a military commission or in Article III Court where the death penalty is an authorized punishment, unlike an accused in a court-martial, is entitled to an additional lawyer at no cost to him or her who is learned in the applicable law relating to capital cases.
Sources
- MCA 2009, 10 U.S.C. §§ 949a, 949d
- Rule for Courts-Martial 804
- Federal Rule of Criminal Procedure 43