guilty of a penal offence” unless an impartial and regularly constituted court or tribunal respects the presumption of innocence.872 b. Domestic Standards 364. Although the presumption of innocence is not specifically referred to in the US Constitution, it is implied in the Fifth, Sixth and Fourteenth Amendments.873 A large body of domestic case law defines the presumption of innocence as applicable to all trials on a criminal charge whereby the accused is presumed innocent until every element of the offence is proven beyond a reasonable doubt.874 365. Before holding the vote on the findings of the commission, the military commission’s judge must inform the members (jurors) that the “accused must be presumed to be innocent until the accused’s guilt is established by legal and competent evidence beyond a reasonable doubt”; that any “doubt must be resolved in favor of the accused”; that the accused is to be found guilty of a lower offence of which there is no reasonable doubt where doubt exists for a more serious offence; and that “the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States”.875 Members must be excused if they have “informed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged”.876 c. Findings and Analysis 366. Several safeguards protect the presumption of innocence in proceedings before the military commissions. First, Article 949l(c) of the MCA 2009 provides for the protection of the presumption of innocence. Additionally, the dismissal requirement for potentially biased members helps protect the accused from preconceptions of guilt.877 Second, defendants are generally dressed in civilian clothes and unshackled when in the courtroom. Third, the Chief Prosecutor of the military commissions has repeatedly stressed that detainees who have been charged with an offence are presumed innocent “unless and until” they are proven guilty beyond a reasonable doubt.878 872 API, Art. 75(4)(d). See, also, Common Article 3; Third Geneva Convention, Arts. 84, 102, 130; Fourth Geneva Convention, Arts. 66, 147; ICTY, Prosecutor v. Blagoje Simić, Miroslav Tadić, and Simo Zarić, op. cit., note 789, para. 678. 873 The due process clause of the Fourteenth Amendment is only applicable to states, not the federal government. 874 See, for instance, United States Supreme Court, In re Winship, Case No. 778, 31 March 1970, <https://supreme.justia.com/cases/federal/us/397/358/case.html>: “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”. See, also, United States Supreme Court, John Sullivan v. Louisiana, Case No. 92-5129, 1 June 1993, <http://www.law.cornell.edu/supct/html/92-5129.ZO.html>; United States Supreme Court, Coffin v. United States, Case No. 741, 4 March 1895, <http://www.constitution.org/ussc/156-432.htm>. 875 MCA 2009, § 949l(c). See, also, MCA 2009, § 949i; RMC, Rules 918, 920. 876 RMC, Rule 912(f)(1). 877 Ibid. 878 For example, on 21 April 2014 before the pre-trial hearings commenced for the week for Al-Nashiri, Chief Prosecutor Brigadier General Mark Martins said “I emphasize that the charges are only allegations. Mr. Al Nashiri is presumed innocent unless and until proven guilty beyond a reasonable doubt. This is what the law requires, and this is what all who have responsibilities within this process must ensure”. Chief Prosecutor Brigadier General Mark Martins, “Chief Prosecutor Mark Martins Remarks at Guantanamo Bay”, 21 April 2014, <http://www.lawfareblog.com/wp-content/uploads/2014/04/Statement-ofthe-Chief-Prosecutor-21-April-2014.pdf>. 159