A/HRC/45/CRP.7 who are being tried for a criminal offence are entitled to fair trial rights. These include the right to be informed promptly and in detail of the charges against them; to have adequate time and facilities for the preparation of their defence and to communicate with counsel of their choice; to be tried without undue delay; to be tried in their presence and to defend themselves in person or through legal assistance of their own choosing (as well as access to legal aid where the interests of justice require); to examine/have examined the witnesses against them and to obtain the attendance and examination of witnesses on their behalf; and not to be compelled to testify against themselves or to confess guilt.497 Accused persons are entitled to the presumption of innocence.498 Specialised standards have been developed in relation to ensuring the proper roles of actors within the justice system, including the independence of the judiciary.499 335. International humanitarian law also provides that parties to an armed conflict must abide by fair trial standards in their administration of justice. In general terms, it will constitute a violation of international humanitarian law if a party convicts and sentences a person or executes a penalty, including the death penalty, where that person has not been granted a fair trial affording all judicial guarantees.500 The Rome Statute includes the war crime of “passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.”501 336. Under international human rights law, for States that retain the penalty and have not committed to its abolition through, for instance, ratification of the second Optional Protocol to the ICCPR, the death penalty must only be applied for the “most serious crimes” and in accordance with the law in force at the time of commission of the crime.502 The Human Rights Committee has concluded that “most serious crimes” should be read restrictively and be taken as referring only to crimes of extreme gravity involving intentional killing.503 Even in these cases, the death penalty can only be imposed after a trial respecting fair trial rights,504 pursuant to a final judgement rendered by a competent court. Any person subject to the death penalty has the right to seek pardon or commutation of the sentence.505 There are also restrictions on to whom the death penalty may be applied and the method of executing the death penalty.506 While fair trial rights are not listed in the non-derogable rights under the ICCPR, the Human Rights Committee has emphasised that procedural rights attaching to death penalty cases must be guaranteed at all times, even during states of emergency, given the non-derogable status of the right to life.507 The Special Rapporteur on Torture has concluded that conditions on death row (in particular the intense anguish experienced), may 497 ICCPR, art. 14(3). ICCPR, art. 14(2). 499 Basic Principles on the Independence of the Judiciary, endorsed by General Assembly resolution 40/32 (29 November 1985); and the Guidelines on the Role of Prosecutors and Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990. See too, Human Rights Committee, General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial (2007). 500 Common art. 3 of the Geneva Conventions; Additional Protocol II, art. 6(2). See too ICRC Study on Customary International Humanitarian Law, rule 100. 501 Rome Statute, art. 8(2)(c)(iv). 502 ICCPR, art. 6(2). 503 Human Rights Committee, General Comment No. 36: Article 6: the right to life (2019), para.35. 504 ICCPR, art. 6(2): by virtue of the requirement that the death penalty not be imposed contrary to the provisions of the ICCPR. 505 ICCPR, art. 6(4). 506 The ICCPR provides that the death penalty may not be imposed on persons who were below the age of 18 years at the time of the offence, or carried out on pregnant women: art. 6(5). Soft law has developed the restrictions further, in particular to include persons with mental or intellectual impairments: Commission on Human Rights resolution 2005/59, para. 7(c). See also Economic and Social Council resolution 1989/64, para. 1(d), Economic and Social Council resolution 1984/50, para. 3. 507 Human Rights Committee, General Comment No. 36, para.67. See too Human Rights Committee, General Comment No. 29: States of Emergency (art. 4) (2001), para.15. 498 84