Present while absent: Remote participation in trials in the Pandemic Age is a problem.

Turinabo et al. The case was renamed Nzabonimpa and al. at the International Residual Mechanism for Criminal Tribunals. It had been originally scheduled to start in June 2020, when the coronavirus epidemic became public. All six defense teams and the Judge realized that holding a multi-accused trial amid a pandemic claiming 300,000 lives per day was no easy feat.

After receiving dozens of submissions regarding the proper conduct of proceedings in light of COVID-19 exigencies, Single Judge Joensen finally directed that the parties present opening statements at the Arusha headquarters, MICT, later that month, even though the virus’ spread has not stopped. All six defense teams had asked that the accused be allowed to attend court several weeks before. The defense of Maximilien Turinabo emphasized that its client had the right to participate in his trial in person and insists that he do so, while tacitly acknowledging the fact that Mr. Turinabo’s old age could lead him to contract the coronavirus.

After being questioned by defense witnesses, Turinabo was taken to an undisclosed hospital where it was later discovered that he had contracted COVID-19. Within days, his oxygen levels dropped below normal. He was transferred to a larger hospital in Nairobi, Kenya. His defense team announced his death in mid-April.

Given the circumstances surrounding the death of Mr. Turinabo, it is necessary to review the current rules governing the conduct of international criminal tribunal proceedings. Particularly, should international criminal trial judges have the authority to allow remote participation of accused in exceptional circumstances that cause significant health concerns?

Physical presence is a requirement

An accused’s right to be physically present at trial is considered “one the most fundamental and common precepts for a fair criminal case.” This allows the accused to attend the proceedings, face any witnesses, testify, and assist in their defense.

The right to be present in international criminal trials is a critical component of international criminal proceedings, but it is not a part of the international criminal justice system. The International Covenant on Civil and Political Rights was the first international legal instrument that provided this judicial guarantee and eventually the blueprint for including the right in the Statutes. The limits of this right are explained in a 2007 General Comment that was added to the Covenant. If an accused refuses to exercise their right or doesn’t indicate willingness to do so, the trial may proceed in their absence. [2]

Questions arose about whether virtual presence could replace physical presence in the 21st Century, given the increased dependence on digital technology in international criminal trials. Multiple times, the ICTR ruled against the idea that video-link can replicate being in a courtroom. The MICT repeated this position well into 2010, with the accused still having to waive their right of being present if they were unable to physically attend and request to attend remotely if necessary. The ICC Rules of Procedure were also amended in 2013. One allows remote presence with an accused’s request. Another requires that the accused waive their right to be present if physical attendance is impossible.

A thread between human rights

There are several factors that favor empowering judges to allow remote participation in a pandemic, without denying an accused’s right to be present. First, the right to be present is an international human rights and international criminal law creation. Second, it must not be included in the wider body of fair trial standards that would prejudice fundamental rights considerations. The right to be present must not be used to restrict the rights of life and health, or to protect them from serious risks. The right to be present shouldn’t be used to interfere with or pose a risk to the nonderogable rights to life and health that are protected by the international Covenant on Economic, Social and Cultural Rights.

Judges would be justified to order remote participation if an accused insists on being present at trial. This could pose significant health risks and disrupt proceedings. Jurisprudence supports this reasoning. This reasoning is supported by jurisprudence. The defense argument that Stanisic was not physically present in his trial was rejected by the Appeals Chamber. The reasoning behind this decision is that judges can allow Jovica Stanisic to participate via video-link because of the potential disruptions to proceedings.

The Nzabonimpa et al. were also motivated by the need for expeditiousness. A single judge hastily ordered the trial to begin amid live health concerns. In his October 7 order, the Judge remarked that while parties were “individually burdened” by coronavirus-associated public health advice, such should not warrant further trial delays. While the Single Judge did not entertain the possibility of remote participation by the accused, none of the accused expressed a willingness to give up their right to be present in the courtroom.

The mandate is to deliver justice with relative speed to protect accused persons from prolonged pre-trial detention or undue mental strain. A postponement would be logical if speedrunning proceedings did not serve either of these ends but instead was detrimental to the accused’s health. In a situation where it is almost impossible to predict when a virus will spread, it may be possible. Postponements of longer duration could cause significant prejudice to defense preparations. This could be through a loss or compromise of testimony. Remote participation should have been an option. This was especially true since the Single Judge was playing with the possibility, stating that remote participation was “encouraged” given “exceptional circumstances” and “reasonable delay to ensure connectivity” for the Accused.

If done correctly, video-link participation can speed up any case. This eliminates the need for long-haul travel, which can prove costly and time-consuming.

A question of imperfect judicial discretion?

An international criminal tribunal in Simic discussed remote participation for the first time. Milan Simic, the defendant, was too ill to participate physically, so the ICTY Trial Chamber installed a telephone line and a video link system in Simic’s Detention Unit. He could still communicate with his counsel and participate in the proceedings. Simic was not allowed to participate via video link due to a direct order of the Chamber. Instead, he was instructed to waive his right to be present during his absence. This shows how the derogation of the right is contingent upon the accused agreeing not to appear in person. The case shows that judges may have the discretion to allow remote participation in international criminal trials.

The 2013 judgment by Stanisic et. al. changed the ICTY’s stance. It required a waiver only if Jovica Stanisic completely failed to appear at trial, and not when he appeared via video-link. The MICT’s successor decided not to inherit this change. After learning of Goran Hadzic’s aggressive brain tumour in November 2014, the ICTY refused to allow Goran Stanisic to attend his trial without his voluntary waiver. Instead, it chose to stay proceedings multiple time. Two years later, Hadzic died before he was ever convicted.

In contrast, the Extraordinary Chambers in the Courts of Cambodia in 2007 set a precedent by ordering Khmer Rouge commander IengSary to attend his trial via video-link due to his declining health. However, he insisted that he be allowed in the courtroom. It is the first instance in which an internationalized tribunal has explicitly denied physical attendance, without any waiver or forfeiture of the right to be present. It’s also the sole instance of that tribunal.

was the most important proceeding at the ICC. Only the Gbagbo hearing and Goudeappeals hearing in May 2020 witnessed fruitful litigation about the modalities for convening virtually. Ble Goude defense asked for proceedings to be delayed until the Netherlands situation improved enough to allow the acquitted to participate physically. However, the Appeals Chamber sided in favor of the Prosecution and decided that hearings could be conducted via video-link, without either of the acquitted needing to waive their right.

The ICC’s decision shows that judges are increasingly ordering remote participation of accused persons in what it calls a force majeure . This decision reinforces growing recognition that remote participation is an alternative to absence. This may have been because the Chamber did not consider physical presence to be an urgent matter in appeal hearings, particularly if no further evidence was presented. The Mladi cAppeals Chamber of the MICT stated exactly this. It stated that the right to appear during appeal proceedings doesn’t require a physical presence at the courtroom [] but can be achieved through video-conference link, as these proceedings are of a different nature than trial at the first instance. It is difficult to extend such justification to trial.

The ICC’s decision reveals another important limitation in the exercise of this discretion. It must ensure that the accused can still participate remotely. The Appeals Chamber highlighted the unique challenge of preparing technical infrastructure for a virtual hearing, when parties are joining from outside the court’s venue due to travel restrictions.

It is more difficult to set up video-link connections during a pandemic when mobility is limited and parties are restricted to their homes. This is especially true for defense personnel who usually operate far away from each other. This order of presence can lead to the accused being unable to attend proceedings or having privileged communication with counsel, effectively violating their right to be present. The court’s location and facilities can also affect the quality of the technology that can be connected, as well as its security and reliability. It is also important to take into account the availability of multiple media formats such as audio and video files; simultaneous translations and real-time transcripts; the ability of the accused to interact with the court; and the ability of the accused to enter closed and open sessions.

We return to proportionality metric when we consider the threshold of effective participation. If remote participation poses a risk of unfairness, or because the accused is unable to participate effectively, it can safely be assumed that an order based on judicial discretion would be inappropriate.

It remains to be seen how much discretion judges would have in order to allow remote participation in future “pandemic trials”, especially as this discretion has not been consistently recognized. Even though they are unambiguous, the efficiency and human rights arguments that favor the modality may not be able to fit in with the harsh realities of an actual trial.

Image: In June 2022, the IRMCT Appeals Chamber heard the appeal of Marie Rose Fatuma (one of the original five defendants) in Nzabonimpa et. al. Source: Africa Press

The International Criminal Tribunal for the Former Yugoslavia Statute, Article 20(4) and Article 19(4), respectively, of the ICTR Statute and the ICTY Statute. The International Criminal Court (ICC) does not have this right. This is due to a debate over whether the permanent criminal court of the world should be able to prosecute those who commit the most heinous of crimes in absentia. This right is still enforced by the ICC.

The position is consistent with international criminal case law. However, in the event of a forfeiture, the Judge can order that trial proceed if that was the least intrusive way to resolve the case quickly without compromising the accused’s fair trial rights. It must be proportional. See Prosecutor against Stanisic & Simatovic. Case No. IT-03-69.2-AR73.2, Decision On Defence Appeal of The Decision on Future Course Of Proceedings, May 16 2008. para. 16.

Al Hassan Aziz’s trials (started on July 14, 2020), Ali Muhammad Ali Abd-Al-Rahman’s (started April 6, 2020), Alfred Yekatom (started February 16, 2020), and Patrice-Edouard Ngaissona’s (started February 16, 2020); the appeals hearings by Laurent Gbagbo (June 22-24 2020) and Bosco Ntaganda (12-14 2020); and Charles Ble Goude, (October 12-14 2020); and Charles Ble Goude, and Charles Ble Goude, and Charles Ble Goude, and Charles Ble Goude, and Charles Ble Goude, 2022-24, 2021 and Charles Ble Goude, 2022-24, 2022-24, 2021 and Charles Ble Goude, 2021 and Bosco Ntaganda, and Charles Ble Goude, and Charles Ble Goude, 2022-24, 2021 and Bosco Ntaganda,

Because of this, in the Ntagandaappeals Hearing, the ICC resorted at the last minute to a postponement after it was not convinced that the court could simulate an in situproceeeding via technology during COVID-19. A partially virtual hearing was then ordered in September 2020 with Ntaganda participating from the courtroom. Refer to Prosecutor against Ntaganda. Case No. ICC-01/04/02/06 A2 A3, Order relating to the hearing scheduled for 29 juin – 1 juillet 2020, 5 iunie 2020.

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