International criminal courts and tribunals have no jurisdiction over the dead. Such courts make factual findings that have reputational implications for those who have died, but the dead are not parties to a case. They cannot be bound by the power of a court. A trial chamber or appeals chamber that attempts to exercise jurisdiction over the dead is acting ultra vires.
The possibility of death before the issuing of the final appeal judgment is a particular problem in leadership trials. The accused are more likely to be older. Such trials are expected to take longer. They are inevitably stressful. These are structural problems that can be managed, but not eliminated.
In a trial where all the evidence has been submitted, a great deal of effort and expense has already gone into the trial even before the trial judgment is issued. In a single-accused trial, should the accused die before the trial judgment is issued, there is a sense in which this effort is wasted. No trial judgment can be issued. Bench memoranda and internal drafts are left unpublished. The machinery simply stops. Given the low level of proof required, any confirmation of charges or (at the ICTY) Article 98 bis decision does little to settle the disputes of fact and law that may have been at least partially resolved by a trial judgment. A similar situation might apply in a appeals process halted by the death of a detainee. The issues certified for appeal cannot be resolved by the appeals chamber if the appeals chamber lacks jurisdiction to do so. Similarly, proceedings may be stopped at a any stage if the accused is no longer competent to stand trial (e.g. Ieng Thirith).
What should be done? Trials should be quicker, which could be facilitated by limiting sprawling indictments and allowing more evidence to be submitted on paper rather than via viva voce testimony. The health and security of the detainees should be guarded and protected to the greatest degree possible, a point to which I will return. The general concerns for a speedy trial and the well-being of detainees are obvious, uncontroversial, and even banal, but should be addressed with more urgency than in the past.
More controversially, perhaps it would be prudent in certain limited cases to allow findings to be released where a court or tribunal no longer has jurisdiction over an accused but the particular issue has been fully briefed. Doing so has several potential benefits. This might limit the wastefulness of a scenario such as those outlined above. It might lessen the perverse incentive of suicide for detainees awaiting judgment. It might increase the security of detainees from those wishing to stop a case. It may also lessen any temptation for a court or tribunal to act ultra vires, where the detainee’s health or time of death are contested.
Most fundamentally, it would allow those interested in the findings of the judges to benefit from the fruits of the proceedings. If there is a didactic function or truth-determining function of international criminal proceedings, these functions are not always best served by a sudden halt followed by silence. If any of the many acquittals at the ICTY had been prevented by the death of an accused on the cusp of issuing a judgement, the families of the accused might rightly wish for findings to be released. Given that initial evaluations of the crime base are often the first findings to happen internally in chambers, a determination with regards to the factual existence and characteristics of a crime base without necessarily making legal findings of culpability would also be of widespread interest and public utility.
This innovation, releasing findings in the absence of jurisdiction to convict or acquit, will be repellent to many criminal lawyers. I am not comfortable with the idea, but I think it deserves further exploration. The core question in criminal law, at least for most defence counsel, is whether or not to punish a particular accused for a specifically alleged crime, and with that question removed, it generally is pointless to continue on a typical case. But, like it or not, there is widespread and justified interest in the findings that are issued from international criminal trials. I know I would have liked to have read further findings from the trial of Slobodan Milošević. The only judgment in that case was a contempt judgment. While a person who has died cannot be convicted or acquitted, nor can a conviction or acquittal be upheld on appeal if the accused has died, it is unclear that anyone’s rights would be violated by such (for now hypothetical) findings, or that there is not more reason to proceed with findings than to simply shut down in every case.
Releasing such findings arguably places a criminal court or tribunal more in the role of a truth commission. An innovation in international criminal proceedings allowing for post-mortem findings would in some ways be the reverse of the trend towards truth commissions/commissions of inquiry coming close to findings of criminal responsibility. While truth commissions that make factual findings that damage reputations may suffer from procedural justice deficits (often with no right to be heard by the quasi-accused), steps could be taken to make sure that the post-mortem release of findings are limited to instances where all relevant parties or previous parties have had the opportunity to be heard before such findings are issued.
While neither a truth commission nor a criminal proceeding has jurisdiction over an individual who has died, they both have an interest in making factual determinations public when doing so does not violate anyone’s rights and serves the public interest. In a criminal proceeding, this could take the form of an order releasing an internal document making findings, normally kept confidential, to the public. It could also take other forms. In certain cases, internal documents might be released to special commission to make a separate institutional utterance. Whatever form it takes, it should be structured in a manner to make clear that such a finding is distinguishable from a judgment issued on the conduct of a (living) accused.
Releasing such findings after proceedings in which the accused has taken an active role in his or her defence also may seem less odd when considered alongside the practice at the Special Tribunal for Lebanon of in absentia trials, in which defence counsel receive no instruction or information from the accused, and the very question of whether an accused is alive or dead is to some degree a matter of informed speculation. If such proceedings are legitimate, and I believe they are, an order making an exception to the normal rule that internal chamber documents must be kept confidential may be justified in extraordinary circumstances.
To return to more immediate issues (e.g. Ratko Mladić’s health and medical care has been a matter of some contention), the health and security of detainees, including mental health and potential self-harm, is a critical concern for all involved. “Daily adequate medical care” has long been a demand of detainees. Self-harm is broader than suicide, and includes improper self-medication or refusal to adequately medicate. Slobodan Milošević is the most obvious reported example. I have heard that mental health is an underreported issue for detainees at the ICC. The United Nations Detention Unit is often a radically different environment than the situation from which the detainee came. For reasons of confidentiality and privacy, this issue is rarely discussed outside the courtroom, and so risks being systematically neglected. Detainees often have an aversion to being portrayed as unwell. It is possible for requests for provisional release and access to mental health professionals fluent in the native langue of the accused to be treated too lightly. It is not as though the particular difficulties in managing this detainee population are unknown. There was an excellent paper by the ICTY Registry on this specific issue, although it no longer seems to be publicly available. In any case, the health and safety of those in detention is the responsibility of the detaining power.
What should be done? It will be different in every case. But obviously this area could use improved oversight, and perhaps additional resources. Ultimately, this is an area where accountability mechanisms for failures by the Registry could be improved.