Modeled after the Uniform Code of Military Justice (UCMJ) - the code that the U.S. military uses to try soldiers, sailors, airmen, and Marines - the MCA provides unprecedented rights to alien unlawful enemy combatants at trial. The MCA balances U.S. international law obligations and the national security of the U.S. while the conflict continues.
A side-by-side comparison of the rights and procedures illustrates the point. The following table lists the rights, due process protections, and rules related to a typical trial under the UCMJ, the MCA, and the ICTYR.
| UCMJ |
MCA |
ICTY/ICTR* |
Prosecution may not appeal acquittal of accused because violates Double Jeopardy clause of the 5th Amendment to the U.S. Constitution. |
Prosecution may not appeal acquittal of accused. |
Prosecution may appeal acquittal of accused.
ICTYSt. Article 25. |
Accused has right to be present whenever evidence is admitted into evidence
MRE 505 |
Accused has right to be present whenever evidence is admitted into evidence
Rule 505 |
Accused has right to be present whenever evidence is admitted into evidence. ICTYSt. Article 21(4)(d). |
Finding of guilt must be with concurrence of at least 2/3 of the military jury in non-capital cases |
Finding of guilt must be with concurrence of at least 2/3 of the military jury in non-capital cases |
Findings must be by majority (2/3 at the trial level). ICTYST. Article 23(2). |
Government has privilege not to disclose classified information.
MRE 505 |
Government has privilege not to disclose classified information.
Rule 505 |
Prosecution may not disclose confidential information to anyone without the express consent of the person or entity providing the information.
ICTYRPE 70 |
Presumption of innocence |
Presumption of innocence |
Presumption of innocence. ICTYSt. Art. 21(3) |
Proof beyond a reasonable doubt |
Proof beyond a reasonable doubt |
Proof beyond a reasonable doubt. ICTYRPE 87(A). |
Presence of accused at all in-court proceedings of the trial |
Presence of accused at all in-court proceedings of the trial |
Presence of accused at all in-court proceedings of the trial, unless waived by the Accused. ICTYSt. Article 21(4)(d). Court may accept evidence from victim or witness whose identity is hidden from accused and/or his attorney. ICTYSt. Article 22. |
Free independent military defense counsel & option to retain civilian defense counsel |
Free independent military defense counsel & option to retain civilian defense counsel |
Free independent defense counsel upon demonstration of indigency & option to retain defense counsel of choice if not indigent. Office of Legal and Defence Affairs maintains a list of qualified DC who can be appointed and (subject to availability) an indigent Accused may select DC of his choice from that list to represent him at Tribunal expense. Accused who are deemed partially indigent may be required to pay a small percentage of these costs. ICTYSt. Article 21(4)(b); ICTYSt. Article 21(4)(d); ICTYRPE 44; ICTYRPE 45; Regulations Governing Assignment of Counsel |
Right to present evidence and call witnesses |
Right to present evidence and call witnesses |
Right to present evidence and call witnesses. ICTYSt. Article 21(4)(e). |
Right of accused to be provided evidence, before trial, to be introduced against him at trial |
Right of accused to be provided evidence, before trial, to be introduced against him at trial |
Right of accused to be provided evidence, before trial, to be introduced against him at trial. ICTY RPE 66-68. |
Protection from self-incrimination |
Protection from self-incrimination |
Protection from self-incrimination. ICTYSt. Article 21(4)(g). |
Right to represent self at trial, if approved by judge |
Right to represent self at trial, if approved by judge |
Right to represent self at trial, if approved by judge. ICTYSt. Article 21(4)(d). |
Suppression of accused’s statements if they were taken in violation of his rights or derived by torture or other illegal means |
Suppression of accused’s statements if they were obtained by torture or in violation of the Detainee Treatment Act of 2005 |
Suppression of accused’s statements if they were taken in violation of his rights or if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. ICTYRPE 95. |
Prohibition against drawing adverse inference if accused exercises his 5th Amendment right not to testify |
Prohibition against drawing adverse inference if accused chooses not to testify |
Prohibition against drawing adverse inference if accused chooses not to testify. |
Possibility to appeal to military appellate court, and possible appeal to U.S. Supreme Court |
Absolute right to appeal to two independent appellate courts: The Court of Military Commission Review; The U.S. Court of Appeals for the District of Columbia Circuit; possible appeal to the U.S. Supreme Court |
Absolute right to appeal to Appeals Chamber. Appeals Chamber judges are composed of trial judges. (Only one appellate level). In accordance with international law, the Prosecution may also appeal acquittals. ICTYSt. Article 25. |
Evidence is deemed relevant and admissible if it has “any tendency to make an issue in the case more or less probable” Mil Rule of Evid (MRE) 401 |
Evidence is deemed relevant and admissible if it has “probative value to a reasonable person”---when the existence of any fact of consequence is “more probable or less probable” to a reasonable person |
A Chamber may admit any relevant evidence which it deems to have probative value. ICTYRPE 89(C). |
Military judge can exclude evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
MRE 403 |
Military judge can exclude evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
Rule 403 |
A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. ICTYRPE 89(D). |
Prohibits the admission of character evidence to prove conduct.
MRE 404 |
Prohibits the admission of character evidence to prove conduct.
Rule 404 |
No specific rule |
Prohibits admission of plea discussions.
MRE 410 |
Prohibits admission of plea discussions.
Rule 410 |
No specific rule |
Provides for the attorney-client privilege
MRE 502 |
Provides for the attorney-client privilege
Rule 502 |
Provides for the attorney-client privilege. ICTYRPE 97. |
Provides a privilege against disclosures of communications between accused and his clergy
MRE 503 |
Provides a privilege against disclosures of communications between accused and his clergy
Rule 503 |
No specific rule |
Provides a husband-wife privilege.
MRE 504 |
Provides a husband-wife privilege.
Rule 504 |
No specific rule |
Right of government to present classified evidence to Military Judge for his inspection---without showing the defense attorney or accused---in order for Military Judge to determine whether or not the evidence is capable of being admitted in an unclassified format
MRE 505 |
Right of government to present classified evidence to Military Judge for his inspection---without showing the defense attorney or accused---in order for Military Judge to determine whether or not the evidence is capable of being admitted in an unclassified format
Rule 505 |
No similar provision. Trial judge may not order either party to produce additional evidence related to confidential information. Judge may not order the attendance of witnesses to compel additional information regarding the confidential information.
ICTYRPE 70 |
Government has the privilege to refuse to disclose the identity of informants.
MRE 507 |
Government has the privilege to refuse to disclose the identity of informants.
Rule 507 |
Appellate decisions have recognized the government’s right to refuse to disclose the identity of victims and witnesses to the accused, his attorney, the public and the media under exceptional circumstances.
ICTYSt. Art. 21 and 22. |
Psychotherapist-patient privilege
MRE 513 |
Psychotherapist-patient privilege
Rule 513 |
No specific rule |
Prohibition against using a person’s religious beliefs against them
MRE 610 |
Prohibition against using a person’s religious beliefs against them
Rule 610 |
No specific rule |
Availability to introduce evidence through a court-recognized “expert” witness
MRE 702 |
Availability to introduce evidence through a court-recognized “expert” witness
Rule 702 |
Availability to introduce evidence through a court-recognized “expert” witness. ICTYRPE 94bis. |
Prohibition against admitting results of polygraph examinations
MRE 707 |
Prohibition against admitting results of polygraph examinations
Rule 707 |
No specific rule |
Hearsay evidence generally not admissible unless there is an exception to the rule (at least 24 exceptions noted in rule)
MRE 802 |
Hearsay evidence may be admitted at the judge’s discretion. Hearsay shall not be admitted if the opponent of the evidence proves by preponderance of the evidence that the evidence is unreliable under the totality of the circumstances.
Rule 803 |
Hearsay is allowed. Question of weight. Falls within general rules of evidence. Evidence excluded only if its probative value is “substantially outweighed by the need to ensure a fair trial.”
ICTYRPE 89 |
Evidence allowed from unavailable witnesses under certain circumstances.
Mil Rule Evid. 804 |
Evidence allowed from unavailable witnesses under certain circumstances as long as it is found to be reliable. |
Evidence allowed from unavailable witnesses under certain circumstances.
ICTYRPE 92 |
In capital cases, must have 12 person jury and vote must be unanimous for guilty |
In capital cases, must have 12 person jury and vote must be unanimous for guilty |
No capital cases |
In capital cases, for death sentence to be adjudged by jury, all 12 jurors have to vote for death, otherwise, accused sentenced to lesser sentence |
In capital cases, for death sentence to be adjudged by jury, all 12 jurors have to vote for death, otherwise, accused sentenced to lesser sentence |
No capital cases |
Complies with U.S. Constitution and federal laws |
All necessary judicial guarantees which are recognized as indispensable by civilized peoples for purposes of Common Article 3 of the Geneva Conventions |
ICTY/ICTR comply with all applicable international legal standards concerning IHL and International Human Rights Law. |
