The ICC Appeals Chamber Signals a Possible Change in Approach to the Permissibility of Trials in Absentia

On 28 May 2020, the Appeals Chamber of the International Criminal Court (ICC) issued a decision in the Gbagbo and Blé Goudé case that has the potential to alter how trials are conducted at the ICC. The decision denied Mr Gbagbo’s request for reconsideration of a decision relating to an earlier appeal filed by the Prosecution, and reviewed the conditions of release for Mr Gbagbo and Mr Blé Goudé. In its concluding paragraphs, the decision indicates that should Mr Gbagbo and Mr Blé Goudé be released from custody, and then later fail to appear for any future trial hearings, the court is permitted to proceed in their absence. Pursuing this course of action could open the door for trials in absentia at the ICC, a practice believed by most to be prohibited under the Rome Statute. This blog post considers the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision does not align with the current practice of the ICC or with the general principle of law identified in the decision.

The Proper Interpretation of Article 63(1)

The Appeals Chamber’s decision, written by Judge Eboe-Osuji, construes the accused’s right to be present at trial as a limited right, meant to protect an accused who wishes to attend their trial, but who is unable to do so through no fault of their own (para 69). In the opinion of the Appeals Chamber, that aim is ‘perverted’ when an accused is deliberately absent from trial and seeks the protection of Article 63(1) of the Statute (para 69). The decision asserts that the Statute, if ‘properly understood’, together with general principles of law permit the Court to hold the trial of an accused who is wilfully absent (para 70).

This decision is very much in line with Judge Eboe-Osuji’s earlier interpretations of Article 63(1). In 2013, he wrote a dissenting opinion in the Kenyatta case in which he suggests that Article 63(1) of the Statute imposes an obligation on the accused to be present during trial, the violation of which permits the Court to proceed in the accused’s absence (paras 72-3). He reached this conclusion by finding that Article 63(1), when given its ordinary meaning, commands the accused to be present during trial but imposes no corresponding duty on the Court to hold trial in the presence of the accused (para 72). He reasons that the accused’s obligation to be present in the courtroom during trial ‘means the violation of that duty is a wrongdoing that leaves the court the choice to treat [trial in absentia] as a matter of forfeiture, unconstrained by the elements that must be present in order to find waiver’ (para 79).

Judge Eboe-Osuji’s argument in the Appeals Chamber’s decision in Gbagbo and his dissenting opinion in Kenyatta hinge on the validity of his interpretation of Article 63(1). In the Gbagbo decision he asserts that his interpretation represents a proper understanding of Article 63(1), while in Kenyatta he suggests that his viewpoint is the product of giving the article its plain meaning. However, in both decisions Judge Eboe-Osuji fails to explain why his interpretation of Article 63(1) is the correct one.

How to properly interpret Article 63(1) has been a matter of real dispute at the ICC with at least eight judges reaching different conclusions. A number of those opinions run directly counter to Judge Eboe-Osuji’s position. Of particular note is the majority opinion of the Appeals Chamber in Ruto and Sang. It asserted that Article 63(1)’s inclusion in the Statute was meant to preclude an interpretation of the Statute that allowing trial to take place in the accused’s absence based on a waiver implied from their failure to appear. (para 54). This diversity of opinion raises questions about whether Judge Eboe-Osuji has correctly interpreted the article. Due to this lack of clarity, Judge Eboe-Osuji’s understanding of the article is not, in and of itself, sufficient to justify holding trial in the absence of the accused.

Trial in the Absence of the Accused as a General Principle of Law

The Appeals Chamber in Gbagbo further supports its argument by identifying an apparent general principle of law whereby an accused may be tried in their absence when they have been adequately informed of the proceedings and decline to exercise that right, either by waiving the right or absconding (para 70). The difficulty with applying this general principle to ICC proceedings is two-fold. First, the practice at the ICC does not comply with the identified general principle of law; and second, it does not appear to fully accord with the ICC’s Statute or its Rules of Procedure and Evidence.

The Appeals Chamber asserts that because both Mr Gbagbo and Mr Blé Goudé have previously appeared before the Court, they have received proper notice sufficient to allow the Court to proceed in their absence if either fail to appear (para 68). However, the Article 60 notice requirements do not meet the standard established by the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (HRC) or the International Criminal Tribunal for Rwanda (ICTR) when permitting trial in the absence of the accused under similar circumstances.

Article 60 only requires that the Pre-Trial Chamber satisfy itself that the accused has notice of the crimes alleged against them and what their rights are under the Statute. However, the ECtHR, the HRC and the ICTR have all found that for notice to be adequate the accused should not only have notice of the crimes alleged against them, but also must be told the date, time and location of trial. Therefore, notice provided in compliance with Article 60 does not, by itself, comport with the alleged general principle of law relied on by the Appeals Chamber. Notice would only be sufficient when the accused knows what they are accused of and when and where they will be tried for those alleged crimes. The current procedure of the ICC makes it impossible for an accused to learn all of that information during the Article 60 initial proceedings and therefore that hearing alone can never be sufficient to provide an accused with proper notice justifying trial in absentia.

The general principle of law identified by the Appeals Chamber also does not comport with the ICC’s Statute and Rules of Procedure and Evidence. Rules 134 ter and 134 quater set out the only circumstances under which a trial chamber is permitted to continue trial outside of the physical or virtual presence of the accused. In both instances, absence is only permitted at the accused’s request and an explicit waiver of the right to be present must accompany that request. Neither rule permits the Court to proceed on the basis of an implicit waiver derived from the accused’s failure to appear, as expressly advocated by Judge Eboe-Osuji in his Kenyatta dissent and implicitly asserted by the Appeals Chamber in the Gbagbo decision.

Supporters of the Appeals Chamber’s approach will argue that it complies with the requirement that an explicit waiver be executed because both Mr Gbagbo and Mr Blé Goudé signed ‘an undertaking’ in which they agreed that any future trial hearings could proceed in their absence should they fail to appear. However, their release from custody is contingent on their signing of that undertaking. A waiver executed under these circumstances may not meet the minimum safeguards for effective waiver outlined by the ECtHR and previously adopted by the International Criminal Court in the Ruto and Sang decision (para 51, see also fn 97). As the ECtHR made clear, the decision to waive the right to be present must be the result of the accused’s own free will. Predicating a prisoner’s release from custody on their agreement to waive their right to be present at any future trial is the product of pressure or compulsion and thus not an expression of the individual’s free will. As a result, such a waiver would be invalid and could not justify proceeding in the accused’s absence.  That means the waiver executed does not comply with the rules of the ICC or the general principle of law relied upon by the Appeals Chamber.

Conclusion

The suggestion in the concluding paragraphs of the Appeals Chamber’s recent decision in Gbagbo that future trial proceedings could be held in the absence of the accused lacks sufficient legal support. The Appeals Chamber’s decision does not adequately account for the ICC’s previous jurisprudence on this issue and it fails to properly consider the Statute or the Rules of Procedure and Evidence. Additionally, the current practice of the ICC does not comply with the general principle of law identified by the Appeals Chamber. While this decision may represent an admirable attempt to increase accountability for those individuals suspected of atrocity crimes, the approach taken is ultimately unworkable.