Alexander Schwarz
 JD (Heidelberg)
 Senior Research Fellow and Assistant Lecturer; Chair of International Law, Faculty of Law, University of Leipzig, Germany
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 Edition: AHRLJ Volume 16 No 1 2016
  Pages: 99 - 116
 Citation: Citation: A Schwarz ‘The legacy of the Kenyatta case: Trials in absentia at the International Criminal Court and their compatibility with human rights’ (2016) 16 African Human Rights Law Journal 99-116
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As a consequence of the African Union’s pressure on the Assembly of States Parties (ASP) to the International Criminal Court (ICC), the ASP modified the Rules of Procedure of the ICC to permit the accused to be tried in absentia. This article examines the general requirements under which trials in absentia are possible in light of the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on Human Rights, and whether the new in absentia provisions of the ICC are consistent with international fair trial standards developed by the Human Rights Committee, the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights and the European Court of Human Rights. The article demonstrates that the increasing acceptance of in absentia trials by international criminal courts tends to overlook the rights and roles of victims in international criminal proceedings. To this end, the article considers whether the macro-criminal character of international crimes may require that victims and witnesses have a public interest to trials in the presence of the accused.

Key words: right to a fair trial; international criminal law; criminal proceedings; procedural rights; article 7 of the African Charter; article 6 of the European Convention

1 Introduction

On 5 December 2014, the office of the prosecutor of the International Criminal Court (ICC) withdrew the charges of crimes against humanity against Uhuru Kenyatta due to a lack of evidence.1 Kenyatta, who became the President of Kenya after the ICC had confirmed the charges against him, is the second head of state who has been accused of crimes against humanity during his tenure.2 Given his official position, it always was uncertain whether he actually would appear before the ICC. According to article 63(1) of the ICC Statute,3 an accused is obliged to appear and no provision existed explicitly providing for the absence of the accused during the trial.4 However, on 27 November 2013, a decision of the Assembly of States Parties (ASP) to the Rome Statute of the ICC adopted three additional rules to the existing Rules of Procedure and Evidence of the ICC.5 The new rules, which were applied for the first time in the case against William Ruto, Kenya’s Deputy-President, charged in a separate case related to the post-election violence6 and the Kenyatta case, stipulate that the accused ‘may submit a written request to the Trial Chamber to be excused only during part or parts of his or her trial’.7

2 Background

The procedural law of the ICC was changed because of a number of procedural and political events. Initially, during the pre-trial proceedings concerning his case, the accused, Ruto, argued that his duties as Deputy-President of Kenya would prevent him from standing trial and he, therefore, requested to be excused from continuous presence at his trial.8 Trial Chamber V(a) decided to grant Ruto’s request with certain restrictions,9 but the Appeals Chamber suspended the decision in October 2013 on the basis that the Chamber had exceeded ‘the limits of its discretionary powers’. However, it did state that article 63(1) of the ICC Statute did not generally exclude the continuation of the proceedings in the partial absence of the accused.10 In October 2013, on the basis of article 16 of the ICC Statute, the African Union (AU) filed a request to the United Nations (UN) Security Council for the proceedings against Kenyatta and Ruto to be deferred.11 This request was rejected by the UN Security Council.12 As a result, the AU, of which 34 member states are state parties to the ICC, adopted a resolution which stated that ‘[n]o charges shall be commenced or continued before any international court or tribunal against any serving AU head of state or government’.13 To prevent further disputes regarding article 27 of the ICC Statute,14 as well as to prevent a feared mass withdrawal of African states from the Rome Statute, member states Botswana, Jordan and Liechtenstein initiated an amendment process in the ASP to implement new rules into the Rules of Procedure and Evidence of the ICC in order to excuse the accused from attending some of the proceedings under certain circumstances.15 This process finally led to the adoption of the new absence rules addressed in this article.16

3 Trials in absentia and international criminal procedure

Trials in absentia may be separated into cases in which the defendant is not at any time present during the trial (nunquam praesens), because he is a fugitive or detained and cannot be extradited, and those cases in which the defendant appears at first and only later remains absent from the trial (semel praesens).17 Despite the fact that only the former constellation is partly referred to as a ‘real’ trial in absentia,18 under the term ‘in absentia’ the article considers all absence regulations of the ICC that provide for (even partial) absence of the accused during the trial. Consequently, the article does not address rules applying in absentia during pre-trial proceedings.19 While it can certainly be argued that the confirmation hearing at the ICC is of particular importance because it determines whether there are ‘substantial grounds’ to believe that the suspect committed the alleged crimes, the confirmation hearing is not a trial and the evidentiary threshold is noticeably lower compared to trial proceedings.20 By contrast, the trial stage of the ICC concerns itself with the proving of facts and evidence needed to determine whether an accused is guilty of the charges. Therefore, the presence of the accused and, thus, his contribution to the truth-seeking process are more important during the trial stage of proceedings, it having the highest evidentiary threshold.21 This contribution, therefore, will be limited to the rules applicable during the trial procedure.

A comparative analysis of national criminal law comes to the simplistic conclusion that in absentia proceedings in a common law (adversarial) system are largely unusual, whereas they are commonly recognised in civil law systems that follow the inquisitorial system of criminal litigation.22 By contrast, in the statutes of international criminal tribunals there is no uniform approach to in absentia proceedings. Article 12 of the Charter of the International Military Tribunal (IMT),23 on which basis the alleged fugitive and, in fact, already deceased Martin Bormann was sentenced to death on 1 October 1946,24 explicitly regulated the absence of the accused, while the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) do not explicitly allow trials in absentia. Both ad hoc tribunals rather implicitly presume the presence of the accused and stipulate the right to be present as an individual right of the accused.25 In spite of the wording and the legislative history of these ad hoc tribunals that seem to speak against the recognition of in absentia trials,26 the statutes nevertheless entail no absolute prohibition of such trials.27 Next to exceptional provisions in which the re-confirmation of the charge can be held in the absence of the accused (Rule 61 procedures),28 both tribunals have in exceptional cases allowed trials in absentia in parts, when the accused remained absent and explicitly and voluntarily waived his right to be present after an initial appearance at the trial.29 Mixed and hybrid tribunals, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC)30 or the Special Court for Sierra Leone (SCSL), permit trials in partial absence of the accused under special circumstances.31 In recent years, the Special Tribunal for Lebanon (STL), which is the only international criminal court that allows proceedings in the complete absence of the accused, encountered a lot of criticism.32 This was caused by the fact that under the Statute of the STL, trials in absentia can be conducted not only if the accused has voluntarily and in writing waived his right to be present or is not extradited by government agencies, but even if he is a fugitive or cannot be found for any other reason.33

4 Trials in absentia and their compatibility with human rights

Fair trial guarantees constitute the elementary level of protection during criminal proceedings and can particularly be found in article 14 of the International Covenant on Civil and Political Rights (ICCPR),34 article 6 of the European Convention on Human Rights (ECHR) and article 7 of the African Charter on Human and Peoples’ Rights (African Charter). 35 The fact that international human rights treaties only impose obligations upon their state parties leads to the situation that international criminal courts are, whether directly or not, neither bound by human rights treaties nor by the case law of human rights courts.36 However, according to article 21(1)(b) of the ICC Statute, the judges of the ICC may take into account human rights treaties such as the ICCPR and the ECHR as a secondary source of law for the interpretation of the Statute.37 In accordance with article 21(3) of the ICC Statute, the judges even have a duty to apply and interpret the Statute and the Rules of Procedure and Evidence in keeping with ‘internationally-recognised human rights’.38 Consequently, the ICC cannot ignore the minimum standards for trials in absentia developed by human rights case law.

4.1 Trials in absentia under the ICCPR

In article 14(3)(d) of the ICCPR the right of the accused to be present at the trial is explicitly stated.39 From the wording of the Covenant, it may be concluded that in absentia trials are generally not permissible under the ICCPR.40 The meaning of article 14(3)(d) of the ICCPR is explained further in General Comment 13 of the Human Rights Committee (HRC), which makes it clear that ‘[w]hen exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary’.41

Even though the HRC leaves the exact meaning of ‘justified reasons’ open, it is clear that, although in absentia proceedings are not per se impermissible within the sphere of the ICCPR, they are only possible in exceptional cases.42 In Mbenge v Zaire, the HRC further states that trials in absentia are possible in the interests of justice, provided that the accused has unequivocally waived his right to be present.43 Such a waiver is, in the opinion of the HRC in Maleki v Italy, only permissible if the court has fulfilled its obligations, particularly with regard to the procedures for summoning and informing the defendants, and if the court can prove that the summons to appear has, in fact, reached the accused.44 The lack of such proof, from the viewpoint of the HRC, constitutes a breach of the right to be present and, according to article 14 of the ICCPR, cannot be remedied by a representative that appears to speak for the accused.45

4.2 Trials in absentia under the African Charter on Human and Peoples’ Rights

In article 7, the African Charter does not expressly include a right to be present at trial. However, it recognises rights which could not exist without the accused being present or at least on notice of the proceedings, such as the right to have one’s case heard and the right to be defended by counsel of one’s choice.46 While the African Charter does not provide direction in this respect, it seems that the drafters of the Charter did not overlook the right of the accused to be present at trial; they rather considered it as an implied right.47 Moreover, it should be noted that, according to article 60 of the African Charter, the African Commission on Human and Peoples’ Rights (African Commission)48 must take into account other international human rights instruments, a provision that enables the Commission to be inspired, inter alia, by the provisions of article 14 of the ICCPR when interpreting the trial guarantees laid down in article 7 of the African Charter. The African Commission did this when specifying that the right to be present is part and parcel of the right to a fair trial.

While a survey of the jurisprudence of the African Commission shows that the question of trials in absentia has been considered in only a few cases, the Commission in the case Avocats Sans Frontières v Burundi49 held that the right to defend oneself implies an accused’s presence at each stage of the proceedings.50 Unfortunately, this decision says little about which measures must be taken in case an accused is tried in absentia. The African Commission should have seized the opportunity to clarify this question. However, in order to close the gap between the explicit provisions in the African Charter and the case law of human rights bodies relating to trials in absentia, the African Commission in its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (Fair Trial Guidelines) notes:51

(i) In criminal proceedings the accused has the right to be tried in his or her presence.

(ii) The accused has the right to appear in person before the judicial body. The accused may not be tried in absentia. If an accused is tried in absentia, the accused shall have the right to petition for a reopening of the proceedings upon a showing that inadequate notice was given, that the notice was not personally served on the accused, or that his or her failure to appear was for exigent reasons beyond his or her control. If the petition is granted, the accused is entitled to a fresh determination of the merits of the charge.

(iii) The accused may voluntarily wave the right to appear at a hearing, but such a waiver shall be established in an unequivocal manner and preferably in writing.

While not legally binding, this clarification by the Fair Trial Guidelines made an important contribution to the substantive basis of the right to be present at trial and partly goes beyond the scope of major international human rights instruments, such as the ICCPR and the ECHR, as will be shown below.52

Unlike the African Commission, the African Court on Human and Peoples’ Rights (African Court)53 issues binding judgments. In a decision on 20 November 2015 in the case of Thomas v Tanzania, the African Court held that Tanzania violated due process rights under article 7(1)(c) of the African Charter and article 14(3)(d) of the ICCPR by trying the applicant in absentia.54 The applicant, Thomas, was tried in absentia as he was hospitalised during the defence case at the trial court and was denied the opportunity of explaining his absence. The African Court interpreted article 7 of the African Charter in light of article 14(3)(d) of the ICCPR and adopted the view that article 7(1)(c) required that the applicant be present to defend himself.55 Given the ‘serious nature of the offence that the applicant has been charged with, the fact that the magistrate had granted the applicant bail on the basis of his serious ill health and that he was unrepresented’, the Court was of the view that the trial court should have given him the opportunity to defend himself.56 The African Court concluded that Tanzania had violated the right to be represented provided for in article 7(1)(c) of the African Charter.

4.3 Trials in absentia under the European Convention

While article 6 of the ECHR57 contains no provision that expressly requires the continuous presence of the accused, the European Court assumes that the presence requirement is an integral part of a fair trial.58 This stems from the scheme of article 6 of the ECHR according to which the process guarantees of the accused in article 6(3) provide constitutive elements of the fair trial principle in article 6(1) of the Convention.59 Accordingly, the European Court in Colozza v Italy points out that it seems difficult to imagine how some of the process guarantees contained in article 6(3) of the ECHR, such as the right of the accused to defend himself in person (article 6(3)(c)) or the right to examination of witnesses on his behalf (article 6(3)(d)), could be realised in the absence of the accused.60 Although the right to be present at trial traditionally is inferred from article 6(3) of the ECHR,61 trials in absentia are not generally prohibited under the Convention and are recognised by European Court jurisprudence.62 The Court determined that trials in absentia must be attended by minimum safeguards in order to respect the fundamental rights of the accused. It must be ensured that:63

(i) the accused was fully aware of the proceedings and the charges against him;64

(ii) the accused has expressly and ‘in an unequivocal manner’ waived his right to be present;65

(iii) the right of the accused to be represented by a counsel during the absence of the accused remains unaffected;66

(iv) the right of the accused to be present cannot be forfeited and he or she has the opportunity to return to the proceedings at any time.

The European Court in Ekbatani v Sweden held that if the trial in absentia is conducted in breach of these cumulative conditions, the accused in the case of his later appearance is entitled to a retrial.67 Otherwise, the proceedings in his absence constitute a violation of the Convention. However, the presence of the accused cannot be dispensed with if the court is aware that the accused is in custody due t