terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects and hazarding a vessel in relation to an attempted attack on the U.S.S. The Sullivans in January 2000, an attack on the U.S.S. Cole in October 2000 and an attack on the MV Limburg in October 2002.641 Abd al Hadi al-Iraqi is charged with denying quarter, attacking protected property, using treachery or perfidy and attempted use of treachery or perfidy in relation to a series of attacks in Afghanistan and Pakistan in 2003 and 2004.642 292. Part 2-I of this report addresses military commissions’ jurisdiction in relation to the trial of civilians by military commissions and the principle of legality and to the right to equality before the law and courts, equal protection of the law and non-discrimination. Part 2-II focuses on fair trial guarantees in proceedings before the military commissions. Specifically, it covers the right to a public hearing before an independent and impartial tribunal established by law, the presumption of innocence, the right to a timely hearing, the right to legal counsel of one’s choice, the right to adequate facilities for the preparation of a defence and the calling and examination of witnesses, the exclusion of unlawfully obtained evidence and plea agreements. Part 2-III discusses the death penalty in relation to fair trial standards. I. JURISDICTION OF THE MILITARY COMMISSIONS A. TRIAL OF CIVILIANS LEGALITY BY MILITARY COMMISSIONS AND THE PRINCIPLE OF a. International Standards 293. Under international humanitarian law, all trials must be conducted by regularly constituted courts that afford all the essential judicial guarantees.643 Article 84 of the Third Geneva Convention stipulates that prisoners of war are to be “tried only by a military court”, unless members of the armed forces of the Detaining Power are expressly permitted by law to be tried by civil courts for the particular offence charged.644 However, the Detaining Power may only sentence a prisoner of war “if the sentence has been pronounced by the same courts according to the same procedure” as members of the Detaining Power’s armed 641 At the time of this report, the military judge had dismissed the charges related to the Limburg, but this decision is under appeal. Pending appeal, the dismissal is automatically stayed, and the charges remain on the charge sheet. United States Military Commission, “Charge Sheet: Abd Al-Rahim Hussein Muhammed Al-Nashiri”, 15 September 2011. 642 United States Military Commission, “Charge Sheet: Abd al Hadi al-Iraqi”, 5 February 2014. 643 See, for instance: Common Article 3: “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”; Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (hereinafter, “First Geneva Convention”), Art. 49, <https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=4825657B0C7E6BF0C12563CD002D6B0B&action=openDocu ment>; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (hereinafter, “Second Geneva Convention”), Art. 50, <https://www.icrc.org/ihl/INTRO/370?OpenDocument>; Third Geneva Convention, Arts. 84-88, 102-108, 129-130; Fourth Geneva Convention, Arts. 5, 66-75, 146-147; API, Art. 75(4): “[n]o sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”; “Customary International Humanitarian Law, Rule 100: Fair Trial Guarantees”, ICRC website, <https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule100>. 644 Third Geneva Convention, Art. 84. 127