ICCPR. While some efforts have been undertaken by the US government to secure testimonies of material witnesses in one of the military commissions cases, the possibility for the military judge to discretionarily decide that a witness, including key witness for the defence, is deemed unavailable, is of concern and may violate the defendant’s right to a fair trial. The fact that the defence may be significantly under-resourced compared to the prosecution is also of grave concern. The admissibility of hearsay evidence and hearsay within hearsay is another limitation to the right of the accused to cross-examine witnesses. 66. In light of the above, the proceedings before the military commissions do not guarantee equality of arms between the defence and the prosecution and therefore violate the ICCPR and OSCE commitments. 67. Exclusion of evidence obtained by torture or ill-treatment and the privilege against self-incrimination. The non-derogable rule excluding all forms of evidence, including but not limited to statements and confessions made by the accused and third parties, obtained through or derived from torture or ill-treatment, is a key protection against torture and other forms of ill-treatment under international human rights law, in particular the CAT. OSCE participating States, including the United States, have strongly affirmed their commitments to the CAT. This rule is also applicable under international humanitarian law. 68. The MCA 2009, contrary to MCA 2006, does exclude all statements in military commissions, by both the accused and third parties, that are obtained through torture or illtreatment. However, the narrow definition of torture and ill-treatment under US laws may lead to the admissibility of evidence obtained by conduct otherwise prohibited under the CAT. 69. In addition, evidence derived from statements obtained by torture or ill-treatment may be admissible when the judge determines that it is “in the interests of justice”. Admitting such evidence can never be “in the interests of justice” and undermines the absolute prohibition of torture and ill-treatment under international law. 70. The privilege against self-incrimination applies only to statements made during the proceedings before the military commissions, not to those statements made prior to trial. While provisions of the MCA 2009 may mitigate the risk of admission of involuntary incriminating statements made prior to trial, they allow for exceptions when the statement would serve the interests of justice or was incidentally made at the point of capture or during closely related active combat engagement. Admitting compelled confessions of guilt that were obtained by investigating authorities prior to trial is a violation of the ICCPR. 71. Some statements elicited through torture, ill-treatment or coercion have been excluded from evidence in both military commissions and in federal courts, and have resulted in decisions not to refer charges. However, in a number of cases, evidence allegedly obtained through or derived from torture or ill-treatment, as well as self-incriminating statements obtained under torture, have been admitted as decisive evidence in contravention of 20