Extending the International Criminal Law Scope of Absentia Trials Towards Death and Mental Incapacity

  • October 21, 2024

By: Ravina Ambwani

On 16 May 2020, the President of the ComitĂ© d’initiative of Radio TĂ©lĂ©vision Libre des Mille Collines, FĂ©licien Kabuga, was arrested near Paris by French authorities.1 Kabuga was arrested in relation to a series of crimes committed between April and July 1994 of the Rwandan Genocide. Authorities had been looking for Kabuga since 29 April 2013, when Judge Vagn Joensen of the International Criminal Court (“ICC”) issued a warrant of arrest and an order for transfer that requested all Member States of the United Nations to search for, arrest, and transfer Kabuga to the custody of the International Residual Mechanism for Criminal Tribunals (“IRMCT”).2

On 11 November 2020, during Kabuga’s initial appearance in the IRMCT, a plea of not guilty was entered on his behalf with respect to the charges in the indictment.3 Kabuga’s trial was delayed many times to assess Kabuga’s fragile mental state as a result of his increasing dementia. On 13 June 2022, the Trial Chamber found that the Defence had not established that Kabuga is presently unfit for trial, but noted that Kabuga suffered from cognitive impairment, putting him in a vulnerable and fragile state, and requires intensive medical care and monitoring.4 The trial began but, in March 2023, it was once again paused for his health. In June 2023, the judges at the IRMCT found that Kabuga was “unfit to participate meaningfully in his trial and is very unlikely to regain fitness in the future.”5 As a result, the judges proposed an alternative legal procedure that “resembles a trial as closely as possible, but without the possibility of a conviction.”6

Even before this case’s ruling, scholars have debated whether trials that could end in a conviction be allowed in absentia at international courts. Courts have struggled to allow trials in absentia due to several obstacles relating to the legality of such trials and the policy considerations that must be weighed. This paper will be divided into three parts: the current landscape on trials in absentia, safeguards used to protect human right standards during these trials and the policy reasons related to allowing trials to continue in absentia after an accused cannot longer meaningfully participate.

International Court and Tribunal Statutes

The Rights of an Accused at Trial

The rights of an accused at trial can be divided into nine categories: the right to a fair trial; the presumption of innocence; the right to be informed of charges against him or her; the right to an expeditious trial and to have time for preparation of a defence; the right to counsel; the right to be present; the right to examine witnesses or have them examined; the right to an interpreter and; the right to remain silent.7 To determine the legality of trials in absentia, the right of paramount concern is the right to be present.

International Covenant on Civil and Political Rights (“ICCPR”): The Right to Be Present

The ICCPR is a multilateral treaty that aims to protect the civil and political rights of individuals living in nations who are parties to the treaty. The ICCPR, along with the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), builds on the Universal Declaration of Human Rights (“UDHR”).8 The UDHR, ICESCR and the ICCPR all form to make the International Bill of Human Rights.9 Before it can be determined if international courts and tribunals could hold trials in absentia, a few important notes on the international landscape must be laid out:

  1. All state parties of the Rome Statute and the ICC are also parties of the ICCPR.
  2. International tribunals formed under the United Nations Security Council (“UNSC”) Resolution VII, such as the International Criminal Tribunal of the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal of Rwanda (“ICTR”), must conform with the human rights protections laid out in the ICCPR.
  3. For the ICC or international criminal tribunals to hold trials in absentia legally, such trials must conform with an accused’s right to be present as set out in the ICCPR.

The ICCPR protects several rights, including an accused’s right to a fair trial through the work of Article 14. Article 14(3)(d) of the ICCPR states “in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:… to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.”10 In order to conform with Article 14 of the ICCPR, the ICC and Ad Hoc Tribunals have included bans on trials in absentia in their own statute.

During the drafting of the Rome Statute, delegations were divided between three views in regard to trials in absentia. The first viewpoint saw trials in absentia as necessary for the ICC because due to the nature of the crimes in the statute, it would often be impossible to compel the appearance of the accused.11 The second viewpoint believed trials in absentia were of little practical value because the accused would have the right to a new trial upon appearance before the court.12 The third view believed that absentia hearings should be impermissible in all cases, except where the accused disrupted the trial.13 These delegations believed that trials in absentia would degenerate into show trials and would quickly discredit the ICC. The view of the third group of delegations prevailed and the accused’s right to be present was preserved in Article 63 of the Rome Statute.  Article 63 of the Rome Statute provides that trials in absentia are prohibited except only for some exceptions narrowly construed.14 These circumstances are cases where an accused is acting disruptively and must be removed from the courtroom.15 Despite their absence from the courtroom, the accused is still allowed to observe the trial and instruct counsel from outside the courtroom. The accused’s removal from the courtroom is only to be used in exceptional circumstances and after other reasonable alternatives have proved inadequate and must only last for a duration that is strictly necessary.16

Both the ICTR and the ICTY ban all trials in absentia. The right to be present is preserved in Article 22(4)(d) of the ICTR17 and Article 21(4)(d) of the ICTY.18 Trials in absentia were considered in the drafting of the ICTY Statute, however, the United Nations Secretary General’s Report on the establishment of the ICTY and its statute stated “a trial should not commence until the accused is physically present before the international tribunal.”19 There is a widespread perception the trials in absentia should not be provided for in the statute as this would not be consistent with Article 14 of the ICCPR, which provides that the accused should be tried in his presence.

The ICC, Ad Hoc Tribunals as well as the UN General Assembly have adopted the view that Article 14(3)(d) prohibits the possibility of trials in absentia due to an accused’s right to be present however, some scholars have found that this provision of international human rights law does not mean that the trials in absentia are prohibited. Jurisprudence from ICCPR member states indicates that there is a way to conform with Article 14 of the ICCPR during a trial in absentia which the ICC and Ad Hoc Tribunals can adopt in their own statute.

The Special Tribunal for Lebanon (“STL”) differed from the statutes of the ICTY and ICTR. The ICTY and ICTR do not recognize any exceptions to the right to be present. The STL provides for three exceptions to an accused’s right to be present. In the STL, Article 22(1) of the Statute provides that trials in absentia can be conducted when the accused has expressly and in writing waived his or her right to be present; when the accused has not been handed over to the Tribunal by the State authorities concerned or; when the accused has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.20

To protect the rights of those tried outside of their presence, Article 22(2) requires the STL to implement certain measures. When hearings are conducted in the absence of the accused, the STL must ensure the accused has been notified, or served with the indictment, or notice has otherwise been given of the indictment through publication in the media or communication to the State of residence or nationality; the accused has designated a defence counsel of his or her own choosing, to be remunerated either by the accused or, if the accused is proved to be indigent, by the Tribunal and; whenever the accused refuses or fails to appoint a defence counsel, such counsel will be assigned by the Defence Office of the Tribunal with a view to ensuring full representation of the interests and rights of the accused.21

A further protection offered by the STL lies in Article 22(3) which allows those convicted in trials in absentia, if he or she had not designated a defence counsel of his or her choosing, have the right to be retried in his or her presence before the STL unless he or she accepts the judgement.22 The exceptions to the right to be present in the STL allows for those accused of a crime to still be tried, even during the time the accused is evading State authorities. The STL provides certain exceptions and safeguards the ICC and tribunals could implement to be able to continue trials in absentia for those who can no longer participate in the proceedings against them.

Purpose of Allowing Trials for Those Who Become Unfit to Stand Trial or Die During Proceedings Against Them

Due to the nature of international criminal law, it is not uncommon for trials to end before a conviction is handed down due to the accused becoming mentally unfit or dying during the proceedings against them. As a result, many war criminals never obtain a verdict, whether it be for one of guilt or innocence. It leaves the international law community, victims and states wondering if a person would have been found guilty or accountable. Those who cannot finish their trial are not given a final verdict therefore, in the legal sense, they are neither innocent nor guilty but the general public does not view it this way. Refusing to provide a verdict to those who start their trial but do not make it to the end can be seen as providing the accused war criminal with a verdict of innocence. This section will look at the two types of absentia trials and analyze some courts and tribunals approaches to such a topic.

Types of Absentia Trials

Trials Completely in Absentia

An accused’s right to be present exists in the functioning of their other rights. The right to be present exists to further protect an accused’s other rights during a criminal proceeding. In Colozza v Italy, the European Court of Human Rights (“ECHR”) was tasked with determining the breadth and scope of the right to be present. Article 6 of the European Convention on Human Rights and Fundamental Freedoms does not contain an expressed right to be present however, such a right can be found when looking at the object and purpose of the expressed guaranteed rights.23 Article 6 provides that a person charged with a criminal offence has the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”.24 While there is no expressed right to be present, the Court found such a right can be read in as it was difficult to see how he could exercise the expressed rights without being present.25

In Poitrimol, the ECHR held that an accused can waive their rights under Article 6 as long as safeguards are implemented to ensure representation for the accused.26 This logically follows that the right to be present can be waived as long as the accused appoints, or the court provides representation in their absence.27 The findings of Colozza and Poitrimol indicate the existence of an accused’s ability to waive their right to be present under the European legal system. Additionally, the ability to waive a right to be present has been found in international law.

Unlike other Ad Hoc Tribunals, the STL allows trials in absentia in three scenarios, one being when an accused waives their right to be present.28 Additionally, while the ICTR and ICTY may ban trials in absentia, the IRMCT, a mechanism under which both the ICTR and ICTY operate, has found that an accused can waive their right to be present.29 The ICTR and ICTY statutes do not expressly recognize trials in absentia, but the possibility of such trial can be read in. The ICCPR drafted the right to be present with a view of protecting the accused from any outside interference which would prevent him from effectively participating in his own trial.30 This is supported by the drafting of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The right to be present is enshrined in the right to defend themselves. The right to be present is not meant to be used as a way to prevent ever being tried with a crime. For an accused who chooses not to exercise their right to be present, such waiver cannot be assimilated to a violation by a judicial forum of the right of the accused to be present at trial.31 The International Appeals Chamber of the IRMCT has recognized an accused’s right to be present will not be in violation of the ICCPR if they provide a free, unequivocal and informed waiver.32

Trials Partially in Absentia

Trials partially in absentia are those in which the accused is present for only some of the proceedings against them and absent for others. This type of trial rests on the principle, semel praesens, semper praesens (to be present once is to be present always). The upholding of this principle under international law has been seen in several mixed tribunals and courts.

Mixed Tribunals and Courts are built off a combination of international and national laws and legal influence. Three of these Tribunals, the Special Panels for Serious Crimes (“SPSC”), the Special Court for Sierra Leone (“SCSL”) and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), all reject the notion of complete trials in absentia but accept the idea of partial trials in absentia.33 All three tribunals allow trials to continue to be carried on when an accused is initially present and then flees or refuses to appear in court.

Article 60(a) of the Rules of Procedure and Evidence of the SCSL provides that an accused may be tried in his absence if the accused made an initial appearance but refuses to return to court.34 Similar to complete trials in absentia, partial trials in absentia will only meet the human rights standards protected in the ICCPR if the accused obtains representation from counsel in their absence.35 Trials conducted partially in absentia have been found to meet international guidelines since the accused’s refusal to present themselves in court is considered a waiver of their right to be present. In Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao, the SCSL allowed the trial against the three accused’s to continue despite the absence of Gbao. Gbao had initially appeared at the trial but later refused to attend his trial. Despite his absence, he was still tried and convicted of murder. The court considered Gbao’s absence as a valid waiver since he was aware of the proceedings against him but failed to properly exercise his right to be present.36

The SPSC operates with reference to the Transitional Rules of the Criminal Procedure that are adopted by the UN. Rule 5(2) allows for in absentia proceedings if the accused was initially present and then fled or was otherwise voluntarily absent.37 The SCSP has not conducted a trial partially in absentia despite the availability of such procedure.

Finally, Rule 81(4) of the Internal Rules of the ECCC provides that trials in absentia are only allowed when there is an initial appearance of the accused in court and after, the accused refuses or fails to appear at or is expelled from subsequent court proceedings.38 Similar to the SCSL, the tribunal only recognizes in absentia trials, if upon the accused’s initial appearance and having been duly summoned to the subsequent hearing, he continues to refuse or fails to attend the proceedings, or is expelled from them.39 In the case of Ieng Sary, the court reaffirmed the possibility of partial trials in absentia only if the absence by the accused is voluntary. Sary was charged with genocide, crimes against humanity and war crimes. He was never convicted of any of the crimes because he died before the judicial proceedings against him was completed.40 The court refused to continue his trial despite his initial presence at the start of his proceedings.

The ICC also recognizes the principle semel praesens, semper praesens in some circumstances. The Rome Statute currently recognizes the possibility of trials partially in absentia under Article 63(2). The ICC allows trials to continue if the accused is disrupting the court however, their absence in trial can only last for as long as necessary and the accused is allowed to maintain their presence in the courtroom by communicating through their counsel.41 The ICC does currently recognize partial trials in absentia as those removed maintain contact with their counsel and are not fully removed from the proceedings against them. Unless the accused waives their right to be present during the proceedings, the trial against them cannot continue, even if they flee.42 This is different than other international tribunals. In the SCSL, ECCC and SPSC, a person who flees from custody after initially appearing in court will be considered to have waived their right to be present to allow the trial against them to continue.43

Conclusions on Trials in Absentia in International Law

International courts and tribunals have approached the possibility of absentia trials in similar ways. Absentia trials can be separated into two categories, complete trials in absentia and partial trials in absentia. Courts are more reluctant to allow complete trials in absentia. Complete trials in absentia are those where the accused is absent from the entire proceeding against them. This type of trial will not infringe on the ICCPR’s protected right to be present if the accused provides an unequivocal and informed waiver.44 The waiver may be expressed or can be implied by the behaviour.45 The second type of trials are partial trials in absentia. Courts are more willing to allow these types. Partial trials in absentia occur when the accused has made an initial appearance in the proceedings, however, is absent for some areas. Numerous tribunals have allowed accused to waive their right to be present after their initial proceeding or allow proceedings to continue if they flee or disappear from authorities during their trial.46 The ICC only recognizes partial trials in absentia in two situations. A trial will be permitted to continue in the absence of the accused if they waive their right47 or if they are disturbing the order of the courtroom that requires them to be removed.48 Whether it be complete trials in absentia or partial, the legality of it rests upon the accused’s ability to choose whether to attend or not and the continued protection of their trial rights through three safeguards. International law and jurisprudence indicate that a trial in absentia will be in accordance with human rights standards if firstly, the accused has been provided the option to attend their trial and has refused and secondly, in their absence, they have been provided notice of the trial, they will be represented by counsel and provided the right to a retrial upon their presence.

Categorizing Trials Which Continue After the Death or Reduced Mental Stability of the Accused

Since these trials will be ones where the accused has already been in front of the court, the focus will be on partial trials in absentia, a type courts are more willing to accept. International law has recognized numerous situations where partial trials in absentia will be allowed. No court, international or domestic recognizes a situation where the accused dies or becomes unfit to stand trial. Before looking into whether these types of situations should be recognized as ones where partial trials in absentia would be allowed, it is important to first consider if these types of trials can be recognized as such. For trials where the accused dies or becomes unfit to stand trial to be allowed, it must not violate the accused’s human rights and to do this, the international law community has recognized three safeguards: notice given to the accused, representation by a competent counsel and the right to a retrial.

Safeguards to Trials in Absentia

Safeguard 1: Notice Given to the Accused

For International Courts and Tribunals to begin to hold trials in absentia, the accused must be notified of their impending trial. A court will only find a waiver valid if the accused was aware of his required presence and chose not to show. The right to be present is a fundamental right, requiring a high standard for the international community when informing those of proceedings against them.49 To inform someone of a prosecution brought against them is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused’s rights.50 This standard means vague and informal knowledge will not discharge the international community’s burden.

The UN Human Rights Council (“UNHRC”) provided insight into the large burden the international community is faced with in the notification requirement. In Maleki v Italy, the UNHRC concluded that exercising due diligence when attempting to notify the accused of the proceedings is insufficient to justify commencing a trial in absentia.51 The UNHRC placed an obligation on the Prosecutor before a trial in absentia could be commenced requiring them to provide the accused with knowledge of the proceedings against them through a direct notice or verification that the accused was aware, the prosecuting party cannot assume knowledge.52 This is an extremely difficult burden to overcome, especially when the whereabouts of the accused’s are unknown.

In Stoyanov v Bulgaria, the court dealt with the issue of notice for those who cannot be found. The government was found to be in violation of Stoyanov’s trial rights since he was not notified. At the time the notice was served, Stoyanov’s whereabouts were unknown despite efforts by the Bulgarian authorities. It became clear that he was effectively hiding from the government after he changed his name and left the country53. The court reaffirmed their decision in Sejdovic v Italy and held that the “mere absence of the accused from his usual place of residence and the fact that he was untraceable does not necessarily mean that he had knowledge of the trial against him.”54 Those who actively evade their capture will not be found to have waived their right to be present.

While it may seem like a large burden for States to overcome, the court allows a wide range of evidence Prosecutors may put forth to show knowledge of proceedings. Some situations where the court will find an unequivocal indication of knowledge will be in cases where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, succeeds in evading an attempted arrest, or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces.55

The notification requirement before a trial in absentia may begin severally limits the possible situations where International Courts and Tribunals may hold such trials. This safeguard requires authorities to directly notify or verify the accused is aware of proceedings, meaning the location of the person must be known before the start of the trial. This removes any possibility for the ICC and other International Tribunals to hold trials for war criminals who are in hiding and evading police. The requirement for notification will not limit partial trials in absentia since participation in their trial prior to their absence is clearly notification of the proceedings against them.

Safeguard 2: Representation by a Competent Defence Counsel

As seen from Article 6 of the European Convention on Human Rights and Fundamental Freedoms, the right to be present is fundamental as it allows those accused of a criminal offence to exercise other trial rights. These rights can include the right to defend themselves and the right to examine and cross-examine.56 While an accused is allowed to waive their right to be present at a trial, international human rights standards require their absence to be fulfilled by a defence counsel that was appointed by the Court or one selected by the accused.57 While a person may select to not participate in a criminal proceeding against themselves, their absence does not negate their right to a fair trial. In Neziraj v Germany, the court stressed the importance of the right to a fair trial, finding that it is the right of everyone charged with a criminal offence to be effectively defended by a lawyer, and such person does not lose the benefit of this right merely on account of not being present at the trial.”58 The theoretical makeup of this safeguard assumes all trial rights provided to the accused to ensure a fair trial will be held and exercised by a defence counsel, appointed to act on behalf of the accused.

This requirement is not a difficult burden for Prosecutors and International Courts and Tribunals to execute. Trials in absentia can still be considered a fair trial, despite the absence of one party, as long as they are adequately represented by a competent and independent defence counsel.

Safeguard 3: Right to a Retrial

The final safeguard recommended by Human Rights Watch is the right to a retrial once the accused attends court to answer for his criminal charges.59 In B v France, the ECHR held that where the degree of the accused’s knowledge of proceedings is ambiguous, and a trial in absentia results in a conviction, the state must guarantee a retrial in the event that the defendant is apprehended.60 European Jurisprudence indicates that a right to an automatic retrial should only be awarded in limited circumstances. In Sejdovic v Italy, the absence of an automatic right to a retrial was a violation of the accused’s fair trial rights. At the time of his trial, Sejdovic was untraceable and Prosecutors could not prove he had received notice of his trial and therefore, could not provide an unequivocal waiver of his right to be present.61 Additionally, due to his lack of knowledge regarding his trial, Sejdovic did not hire a lawyer of his choice and counsel was appointed for him.62 The defence counsel exercised all the trial rights, duties and responsibilities Sejdovic would have had if he had attended his trial. Since it was unknown if Sejdovic had notice of his trial and he was unable to instruct a lawyer of his choosing, the Court found the failure to grant him a retrial upon his arrest two years later was a violation to his right to a fair trial.63

Alternatively, in Medenica v Switzerland, the Prosecutors were able to show Medenica was provided sufficient notice of his trial and with full knowledge waived his right to be present. Additionally, Medenica hired and instructed a counsel he chose. In this case, the ECHR held that since Medenica had actual knowledge of the proceedings against him, had unequivocally waived his right to be there and was able to instruct a counsel of his choosing, there was no obligation on Switzerland to provide an automatic retrial.64

The right to a retrial is not absolute and will only be provided to an accused after a conviction of guilt in absentia trials in limited circumstances. European jurisprudence points toward requiring retrials only when Prosecutors are unable to prove the accused was aware of their trial and waived their right and when such lack of knowledge prevented them from obtaining and instructing counsel of their choosing. While the court does not specify if both lack of notice and inability to choose are required to obtain the right to a retrial, it can be inferred from the court’s reasoning that both are required.

In Sejdovic, the accused was awarded a retrial right since he had never been officially informed of the proceedings against him and could not be said to have unequivocally waived his right to appear at his trial.65 Since the accused was not informed, it would be impossible for him to elect a counsel of his choosing. On the other hand, in Medenica, the accused was aware of the proceedings, waived his right to be present and elected a counsel of his choosing.66 Here, the court ruled there was no right to a retrial. Similar to how the right to be present cannot be forced upon any person, the right to instruct counsel of your choosing cannot be forced. It would not be in the interests of justice to allow an accused who is aware of proceedings to waive their right, reject to elect counsel, and then be given a right to a retrial since they were not represented by counsel of their choosing. As long as the accused is given a choice in counsel, their appointment of counsel upon their failure to elect anyone will not be a violation of human rights standards. The right to a retrial will be reserved for cases that meet three requirements: it is a trial in absentia, the Prosecutors are unable to prove sufficient notice and knowledge of the proceedings was provided to the accused, and the accused was unable to appoint a counsel of their choosing.

Could Trials be Held for Those Who Become Unfit to Stand Trial or Die During Proceedings Without Violating International Human Rights Standards?

For trials to be able to continue after a person dies or becomes mentally unfit, the court must be able to properly implement safeguards to ensure their conformance to the ICCPR and other international human rights treaties. The court will have no issue implementing the first and second safeguards since the trials in question are ones that have already started or are about to start. On the first safeguard, notice, the accused would have already been present at the preliminary meetings and hearings against them therefore, it can be properly assumed that the notice requirement has been met. The second safeguard, representation by counsel when absent, would also be easily met since it too can be assumed the accused’s counsel would continue with their defence when they are no longer able to attend the trial. The question remains if the courts can properly implement the right to automatic retrials. The problem with this safeguard is providing the accused with such a right will be useless since they would not be able to exercise it. If their trial ends in a conviction, the accused will not be of sound enough mind or alive to properly get a retrial. Fortunately, European jurisprudence can help resolve this issue.

Jurisprudence from Europe proves that the right to an automatic retrial is not provided to every person tried in absentia but only those that meet three requirements. The three requirements are: it is a trial in absentia, the Prosecutors are unable to prove sufficient notice and knowledge of the proceedings was provided to the accused, and the accused was unable to appoint a counsel of their choosing. If a person becomes mentally unfit or dies, and their trial continues without them, the trial will be considered a trial in absentia, but the trial will fail to meet the final two requirements. Since the type of trials in question would have already started, the accused had noticed and was provided the opportunity to appoint a counsel of their choosing. As a result, denial of an automatic right to a retrial would not violate human rights standards.

Now that it has been determined that trials in absentia could legally occur for war criminals who die or become unfit to stand trial without violating human rights standards, the question becomes whether international courts and tribunals should allow such trials to take place.

Should Trials be Held for Those Who Become Unfit to Stand Trial or Die During Proceedings?

It has been determined that trials where an accused dies or becomes unfit to stand trial could be conducted by international courts and tribunals without violating the accused’s human rights, it must still be determined if these courts and tribunals should. To determine whether these types of trials should be carried out, we must balance the salutary effects against the deleterious effects.

Deleterious Effects

The proper functioning of the ICC and other criminal tribunals requires state parties to carry the responsibility of financing the operations of the court. In 2015, the international community was worried about the feasibility of the ICC when it became the caseload of the court was much larger than any State anticipated.67 The purpose of the creation of the ICC was to form a place where war criminals could be charged and prosecuted. This purpose requires a large amount of time and money, resources the ICC does not have. To date, the ICC has had 31 cases.68 Of the 31, 6 are currently in ICC custody,69 9 cases have yet to begin since the accused is still at large70 and 10 cases have closed before the end of their proceedings.71 The reasons for closure of case before the end of proceedings were a result of numerous issues, including charges being withdrawn, insufficient evidence or even death of the accused. While the number of cases the ICC currently has may be low, each trial may take years before a final verdict is given, and this does not even include the number of years Prosecutors spent investigating the situation.

A situation can be brought to the ICC in three ways, by referral from the State, UNSC or Prosecutor.72 Once a referral is obtained, the Prosecutor must then conduct a preliminary investigation to determine if the situation is one that the ICC should engage in. To be accepted by the ICC, the situation must be within the jurisdiction of the court, admissible based on complementarity and gravity, and be in the interests of justice.73 If the Prosecutor is satisfied to proceed, the Prosecutor will begin to investigate the situation. This stage of the investigation costs large amounts of time and money. Prosecutors do not investigate specific people but rather situations in States. Situations can involve a large group of crimes and numerous responsible persons. From this investigation, the Prosecutor may go to the Pre-Trial Chamber to obtain a search warrant for those most responsible for the most responsible crimes. If a warrant is issued, the obligation moves onto the State parties to the Rome Statute to apprehend the accused and transfer them to the ICC.74 Only once the accused is at the ICC will proceedings against them begin.

From the start of the Prosecutor's preliminary investigation to the final verdict of a trial costs the ICC large amounts of time and money. It may take years to obtain a warrant, more years to apprehend the accused and another few years before the end of proceedings. If the ICC were to allow Prosecutors to continue cases where the accused is no longer fit to stand trial or dies, this would take time and energy away from cases still waiting to be tried. For the ICC to begin to engage in these types of trials, there must be sound policy reasons for why they should continue trials, even if there is no possibility of punishment to the accused.

Salutary Effects

The nine most common goals articulated by the ICC include: preventing violations of international criminal law; ending impunity for past violations; maintaining or restoring international peace and security; establishing a reliable historical record; providing closure or redress for victims; expressing condemnation of crimes that are abhorrent; fostering post-conflict reconciliation; developing international criminal law; and assigning responsibility for wrongs and punishing the guilty.75 In 2018, Stuart Ford assessed the expected value of each of these goals to determine which ones are most valuable and important for International criminal courts and tribunals. His findings were as follows:

  1. The benefit to international criminal law that had the most likelihood of occurring is retribution and the punishing of those found guilty but the value of the benefit is low since States require something more than retribution to justify spending on international courts.76
  2. The benefits to international criminal law that had a moderate likelihood of occurring are the establishment of a historical record, the court’s ability to express condemnation, the ability to develop international law and the fostering of reconciliation.77 While these four benefits are moderately likely to occur with the use of international criminal courts, States also place a low value on them since these goals could be achieved in other ways.78
  3. A benefit that is unlikely to occur is closure for victims and States assign a low value to such benefit since all victims achieve closure in different ways.79 Only some victims find testifying in a court therapeutic and even these victims are limited in their ability to meaningfully participate in the trial.80
  4. A benefit that is unlikely to occur is ending impunity but, States place moderate value on this benefit. The limited capacity of the court and the decision to only try and prosecute those most responsible for the crimes makes the likelihood of ending impunity low since many low-level perpetrators remain free.81 Despite the difficulty achieving this benefit, States place a moderate value on ending impunity in the hopes that international bodies persuade domestic courts to begin to undertake the prosecutions.82
  5. Another benefit that is unlikely to occur is the prevention of violations however, unlike the other benefits, States place an extremely high value on this one. Studies related to the ICC’s effect on crime prevention have emerged. Researchers have found that the ICC has the effect of reducing violence however, there is difficulty determine how much of the reduction of violence is to be associated to the ICC.83 One thing that was clear was that violence still existed and was not eliminated by the work of international criminal courts and tribunals. States place an extremely high value on this goal since the cost of crimes is high. There are emotional, economic, and societal costs associated with international war crimes and the ability to reduce these crimes will reduce the costs.84
  6. The final benefit, the maintenance of international peace and security, is highly unlikely to be achieved through the prosecution of war criminals in international courts however, States place an extremely high value on it. The evidence relating to a court’s ability to prevent conflicts before they begin or end them after they have begun is weak yet, States still consider this benefit as one of the ones with the most value.85

By allowing trials to continue once war criminals pass away or become mentally unfit, international courts would be able to work toward all their purposes except for repudiation.

Balancing the Deleterious and Salutary Effects

International criminal courts should only agree to continue the trials of those who cannot finish if it can be found that the benefits of conducting such trials outweigh the negatives. The issue with allowing these trials is the toll it will take on the time and resources of international bodies and States. The ICC has only tried and prosecuted a handful of war criminals. International courts and tribunals often focus their work and investigations on the senior leaders, or those most responsible, for the crimes. When a situation is referred to the Prosecutor of the ICC, the Prosecutor must analyze the situation, conduct a preliminary investigation, and obtain an arrest warrant. Once a warrant is obtained, State Parties are required to find, apprehend and transfer the war criminals. Only once the accused has arrived at the ICC will they be subjected to a series of hearings related to the charges against them, followed by a trial and if required, a sentencing hearing. From start to finish, the process takes numerous years and costs hundreds of thousands of dollars. The effects of continuing the trials of those who cannot finish must provide justification to why the Courts should place time, energy and resources into a trial where there is no possibility of punishing the accused if a verdict of guilty is found rather than focusing on those who are awaiting trial.

Ford’s paper on the likelihood and value of each goal of international criminal law provides the required justification. Punishing the accused and repudiation is the only benefit of international trials that would not be achieved by allowing trials to continue in absentia. While this goal was seen as being the most likely to be achieved, States placed little value on it.86 The goals State’s place as the most valuable were the prevention of violations and maintenance of peace, to goals that can continue to be achieved by allowing trials to continue in absentia however, the likelihood of achieving both is low.87 Research and evidence have seen a decrease in crimes occurring in the areas the ICC, ICTY, ICTR and other international bodies have been operating but, no researcher has been able to make a clear link between violence and the operation of an international court.88 Now that both the positives and negatives of each have been summarized, they must be balanced to determine if courts should allow trials to continue in absentia.

International courts and tribunals should allow trials to continue in absentia. Allowing trials to continue in absentia removes any possibility of punishment to those found guilty however, the low value the States place on it indicates that this factor weighs minimally towards not allowing trials to continue in absentia. The benefits that States find the most value in are the prevention of violations and the maintenance of peace. These are two benefits that will be achieved whether it is during a trial or a trial in absentia. The fact that research has been unable to provide a clear link between the reduction of crime and international criminal law should not illegitimate the value international courts provide to peace and security. Allowing trials to continue in absentia would work towards the prevention of violence and the maintenance of peace. Since these trials will move towards two high-valued goals of international criminal law, this strongly justifies courts spending time, energy and resources on continuing trials in absentia, despite the impossibility of any punishment.

Summary

The ICCPR, an international human rights document, codifies the right to be present in Article 14(3)(d). The ICC and Ad Hoc Tribunals conform with the rights of the ICCPR by including expressed provisions relating to trials in absentia to their statutes. Article 63 of the Rome Statute provides that trials in absentia are prohibited except in cases when the accused is causing a disturbance and must be removed from the courtroom.89 Both Article 22(4)(d) of the ICTR and Article 21(4)(d) preserve an accused’s right to be present by banning trials in absentia fully.90 The STL took a different approach than these three international bodies. Article 22(1) of the STL Statute provides three scenarios for when a trial in absentia may occur. The STL allows for trials in absentia when the accused has expressly and in writing waived his or her right to be present; when the accused has not been handed over to the Tribunal by the State authorities concerned or; when the accused has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.91 Several safeguards, codified in Article 22(2) and (3) of the Statute, must be followed to ensure conformance with the ICCPR. Before it can be determined if the ICC or Ad Hoc Tribunals could lawfully continue trials in absentia once the accused dies or becomes mentally unfit, it is vital to look at the acceptance of trials in absentia at national levels.

Absentia trials can be divided into two categories, the first being complete trials in absentia and the other being partial trials in absentia. Complete trials in absentia, those where the accused is never present at any point during the proceedings, was considered in Colozza and Poitrimol. In Colozza, the court found that while Article 6 of the European Convention on Human Rights and Fundamental Freedoms does not contain an expressed right to be present, the right can be found when looking at the object and purpose of the expressed guaranteed rights.92 The court agreed that, as long as safeguards are implemented to ensure the protection of the accused’s other fair trial rights, the right to be present will not be violated.93 Similarly, in Poitrimol, the ECHR held that an accused can waive their rights under Article 6 as long as safeguards are implemented to ensure representation for the accused. Both cases reveal an existence to an accused’s ability to waive their right to be present94, and such ability has been recognized in international law.

The STL Statute expressly includes in 22(1) that an accused may waive their right to be present95 however, no other Statute does the same. Despite the absence of any express provisions, the IRMCT, a mechanism under which both the ICTR and ICTY operate, has found that an accused can waive their right to be present.96

Trials partially in absentia are trials in which an accused has been present at their proceedings at some point but is no longer willing or available to attend. These trials operate under the principle semel praesens, semper praesens (to be present once is to be present always). The possibility of these types of trials has been recognized in numerous mixed tribunals and courts. Article 60(a) of the Rules of Procedure and Evidence of the SCSL allows courts to try an accused in absentia if the accused made an initial appearance but refuses to return to court.97 In Gbao, the court considered Gbao’s absence as a valid waiver since he was aware of the proceedings against him but failed to properly exercise his right to be present.98 Additionally, Rule 5(2) of the Transitional Rules of the Criminal Procedure allows the SPSC to conduct absentia trials the accused was initially present and then fled or was otherwise voluntarily absent.99 Finally, Rule 81(4) of the Internal Rules of the ECCC allows courts to try a person in absentia when there is an initial appearance of the accused in court and after, the accused refuses or fails to appear at or is expelled from subsequent court proceedings.100 In Sary, the court affirmed that partial trials in absentia should only occur if the absence by the accused is voluntary therefore, Sary cannot be tried since his absence was a result of his passing and therefore involuntary.101

The ICC recognizes a more limited version to partial trials in absentia. The only time in which an accused’s trial may continue without them present is if they waive their right or if the accused is disrupting the court however, their absence in trial can only last for as long as necessary and the accused is allowed to maintain their presence in the courtroom by communicating through their counsel.102 ICC does not allow trials to continue for any other reason, even if they flee.

No court or tribunal, national or international, has allowed a partial trial in absentia to be permitted when the accused dies or becomes mentally unfit however, holding these types of trials is possible and does not contravene the ICCPR’s right to be present. Trials of this nature would be able to successfully implement the three safeguards needed to meet the accused’s fair trial rights.

The first safeguard, notice, requires the State to provide the accused with direct notice. The UNHRC places the obligation on the State to show notice was provided to the accused about the proceedings against them through a direct notice or verification that the accused was aware.103 Due diligence when attempting to notify the accused of the proceedings is insufficient and would not discharge the State’s burden.104 Sejdovic held that the mere absence of the accused from his usual place of residence and the fact that he was untraceable does not necessarily mean that he knew the trial against him and such knowledge cannot be assumed.105 This safeguard can easily implemented in trials that continue once an accused dies or becomes unfit since the accused would have already been present at some point in their proceeding therefore, it can be properly assumed that the notice requirement has been met.

The second safeguard is representation by defence counsel in the absence of the accused. The court in Neziraj found that the right to a fair trial is absolute and a person does not lose the benefit of having counsel merely on account of not them not being present at the trial.106 This safeguard is also not a difficult burden for international courts and tribunals to implement since it could be assumed that an accused’s counsel would continue with their defence when they are no longer able to attend the trial due to death or mental stability.

The final safeguard is the automatic right to a retrial. In B v France, the court found that the accused was entitled to a retrial upon his capture since there was no evidence pointing to him having direct knowledge of the proceedings against him.107 Similarly, the court in Sejdovic found a retrial was required since he had not received notice of his trial and because he unable to hire a lawyer of his choice and counsel was appointed for him.108 Alternatively, in Medenica, the court ruled Medenica was not obligated to a retrial since there was evidence to him having notice of the trial and he had the ability to select counsel but failed to exercise this right.109 Jurisprudence indicates that the right to a retrial will only be required for cases that meet three requirements: it is a trial in absentia, the Prosecutors are unable to prove sufficient notice and knowledge of the proceedings was provided to the accused, and the accused was unable to appoint a counsel of their choosing. This final safeguard is not required for trials in which the accused cannot finish since the accused would have notice and would have been provided the opportunity to appoint a counsel of their choosing prior to their absence.

While it has been determined that international courts and tribunals could allow trials to continue when the accused dies or becomes mentally unfit, international bodies and States must still be satisfied to engage in these trials as a matter of policy.

To justify putting court time, energy and resources in trials where there is no possibility of punishing the person convicted, the benefits of allowing such trials must outweigh the deleterious effects. Ford found that punishment and repudiation were almost always likely in trials but, States tend to give this goal of the court little value and require more to be achieved.110 By allowing courts to be continued once an accused is no longer able to participate meaningfully, repudiation is not possible however, all other purposes of international criminal courts can be furthered, most notably, the prevention of violations and the maintenance of peace. States place the highest value on these two purposes.111 Since the creation of the ICC and other Ad Hoc Tribunals, crimes in areas in which the court is currently operating in have seen a decrease, but researchers are unable to find a clear link between the reduction of crime and international criminal law.112 Even though no clear link has been found, this should not illegitimate the value international courts provide to peace and security. Since these trials will continue to push the international community towards two high-valued purposes of States, this strongly justifies courts spending time, energy and resources on continuing trials in absentia, despite the impossibility of any punishment.

By studying the current landscape on court views and approaches to absentia trials, both an international and national level, it becomes clear that the ICC and other Ad Hoc Tribunals could conduct absentia trials for some war criminals in their custody without contravening the ICCPR. On top of this, policy reasons indicate that such international bodies should conduct these trials to continue furthering the purposes of international criminal law.

REFERENCES

INTERNATIONAL TREATIES

European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and 14”, 4 November 1950, ETS 005.

Internal Rules of the Extraordinary Chambers in the Courts of Cambodia as amended on 27 October 2022”, 6 June 2003, UNSC Res 57/228.

International Covenant on Civil and Political Rights”, 19 December 1966, 999 UNTS 171.

Rome Statute of the International Criminal Court” (last amended 2010), 17 July 1998, 2187 UNTS 3.

Rules of Procedure and Evidence of the Special Court of Sierra Leone (as amended on 31 May 2012)”, 16 January 2002, UNSC RES 1315.

Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 7 July 2009)”, 25 May 1993, UNSC Res 808.

Statute of the International Criminal Tribunal of Rwanda (as last amended on 13 October 2006)”, 8 November 1994, UNSC Res 955.

Statute of the Special Tribunal for Lebanon”, 30 May 2007, UNSC RES 1757.

Transitional Rules of the Criminal Procedure”, 25 September 2000, UNTAET REG 2000/30.

JURISPRUDENCE

B v France, (1994) 16 BHRR 1.

Colozza v Italy (1985), 7 ECHR (Ser A) 63.

Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor, ICTR-99-52-A, Appeal Judgement (28 November 2007).

Maleki v Italy (1999), UN Comm HR, No 699/1996, UN Doc CCPR/C/66/D/699/1996.

Medenica v Switzerland, No. 20491/92, [2001] ECHR.

Neziraj v Germany, No. 30804/07, [2012] ECHR.

Poitrimol v France (1993), 89 ECHR (Ser A) 227.

Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao, SCSL-04-15-T, Trial Judgement (2 March 2009) (Special Court for Sierra Leone).

T v Italy (1992), 245 ECHR (Ser A) 80.

Sejdovic v Italy, No. 56581/00, [2006] ECHR.

Stoyanov-Kobuladze v Bulgaria, No. 25714/05, [2014] ECHR.

SECONDARY MATERIALS – JOURNALS

Ford, Stuart “A Hierarchy of the Goals of International Criminal Courts” (2018) Vol 27:1 Minnesota J of Intl L 179.

Kremens, Karolina “The Protection of the Accused in International Criminal Law According to the Human Rights Law Standard” (2011) volume 1:2 Wroclaw Rev of L, Admin, and Econs 26.

Mohammad Hadi Zakerhossein & Anne-Marie De Brouwer, “Diverse Approaches to Total and Partial In Absentia Trials by International Criminal Tribunals” (2015) 26:2 Crim L Forum 181.

SECONDARY MATERIALS – WEBSITES

Elizabeth Evenson & Jonathan O’Donohue “The International Criminal Court is at Risk” (6 May 2015).

Human Rights Watch, News Release, “Justice Denied for Rwanda Genocide Victims” (8 June 2023).

International Criminal Court “Cases” (Last Visited 18 December 2023).

International Criminal Court “Cases: At Large” (Last Visited 18 December 2023).

International Criminal Court “Cases: Case Closed” (Last Visited 18 December 2023).

International Criminal Court “Cases: In ICC Custody” (Last Visited 18 December 2023).

International Criminal Court “Understanding the International Criminal Court” (Last Visited 2 December 2023).

United Nations Human Rights Office of the High Commissioner, “International Bill of Human Rights” (Last Visited 20 November 2023).

SECONDARY MATERIALS – REPORTS AND CASE BRIEFS

Extraordinary Chambers in the Court of Cambodia, Case Document, Case 002 “Ieng Sary” (Last Visited 4 December 2023).

International Residual Mechanism for Criminal Tribunals, Case Document, MICT-13-38, “Kabuga, FĂ©licien” (Last Visited 13 November 2023).

Letter From Human Rights Watch to the Secretariat of the Rules and Procedure Committee Extraordinary Chambers of the Courts of Cambodia (17 November 2006) “Extraordinary Chambers of the Courts of Cambodia.”

Endnotes

1 International Residual Mechanism for Criminal Tribunals, Case Document, MICT-13-38, “Kabuga, FĂ©licien” (Last Visited 13 November 2023).
2 Ibid.
3 Ibid.
4 Ibid.
5 Human Rights Watch, News Release, “Justice Denied for Rwanda Genocide Victims” (8 June 2023).
6 Ibid.
7 Kremens, Karolina “The Protection of the Accused in International Criminal Law According to the Human Rights Law Standard” (2011) volume 1:2 Wroclaw Rev of L, Admin, and Econs 26 at 28.
8 United Nations Human Rights Office of the High Commissioner, “International Bill of Human Rights” (Last Visited 20 November 2023).
9 Ibid.
10International Covenant on Civil and Political Rights”, 19 December 1966, 999 UNTS 171 at Art. 14(3)(d) [ICCPR].
11 Letter From Human Rights Watch to the Secretariat of the Rules and Procedure Committee Extraordinary Chambers of the Courts of Cambodia (17 November 2006) “Extraordinary Chambers of the Courts of Cambodia” at 2 [Letter to the ECCC].
12 Ibid.
13 Ibid.
14Rome Statute of the International Criminal Court” (last amended 2010), 17 July 1998, 2187 UNTS 3 at Art. 63 [ICC].
15 Ibid.
16 Ibid.
17Statute of the International Criminal Tribunal of Rwanda” (as last amended on 13 October 2006), 8 November 1994, UNSC Res 955 at Art. 22(4)(d) [ICTR].
18Statute of the International Criminal Tribunal for the Former Yugoslavia” (as amended on 7 July 2009), 25 May 1993, UNSC Res 808 at Art. 21(4)(d) [ICTY].
19Letter to the ECCC”, supra note 11 at 3.
20Statute of the Special Tribunal for Lebanon”, 30 May 2007, UNSC RES 1757 at Art. 22(1) [STL].
21 Ibid at Art. 22(2).
22 Ibid at Art. 22(3).
23 Colozza v Italy (1985), 7 ECHR (Ser A) 63 at para 27 [Colozza v Italy].
25 Colozza v Italy, supra note 23 at para 27.
26 Poitrimol v France (1993), 89 ECHR (Ser A) 227at para 31 [Poitrimol v France].
27 Ibid.
28 STL, supra note 20 at Art. 22(1).
29 Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor, ICTR-99-52-A, Appeal Judgement (28 November 2007) at para 116 (International Criminal Tribunal for Rwanda) [Nahimana v Prosecutor].
30 Ibid at para 107.
31 Ibid.
32 Ibid at para 109.
33 Mohammad Hadi Zakerhossein & Anne-Marie De Brouwer, “Diverse Approaches to Total and Partial In Absentia Trials by International Criminal Tribunals” (2015) 26:2 Crim L Forum 181 at 189.
35 Ibid.
36 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao, SCSL-04-15-T, Trial Judgement (2 March 2009) at para 8 (Special Court for Sierra Leone) [Prosecutor v Gbao].
37Transitional Rules of the Criminal Procedure”, 25 September 2000, UNTAET REG 2000/30 at r. 5(2) [TRCP].
39 Mohammad Hadi Zakerhossein, supra note 33 at 191.
40 Extraordinary Chambers in the Court of Cambodia, Case Document, Case 002 “Ieng Sary” (Last Visited 4 December 2023). [Ieng Sary]
41 ICC, supra note 14 at Art. 63.
42 Mohammad Hadi Zakerhossein, supra note 33 at 201.
43 Ibid at 189.
44 Nahimana v Prosecutor, supra note 29 at para 109
45 Ibid.
46 Mohammad Hadi Zakerhossein, supra note 33 at 191.
47 Prosecutor v Gbao, supra note 36 at para 8.
48 Mohammad Hadi Zakerhossein, supra note 33 at 183.
49 T v Italy (1992), 245 ECHR (Ser A) 80 at para 28 [T v Italy].
50 Ibid.
51 Maleki v Italy (1999), UN Comm HR, No 699/1996, UN Doc CCPR/C/66/D/699/1996 at para 9.4 [Maleki v Italy].
52 T v Italy, supra note 49 at para 28.
53 Stoyanov-Kobuladze v Bulgaria, No. 25714/05, [2014] ECHR at para 34 [Stoyanov-Kobuladze v Bulgaria].
54 Ibid at para 41.
55 Sejdovic v Italy, No. 56581/00, [2006] ECHR at para 99 [Sejdovic v Italy].
56 ECPHRFF, supra note 24 at Art. 6.
57 Neziraj v Germany, No. 30804/07, [2012] ECHR [Neziraj v Germany].
58 Ibid at para 50.
59 Letter to the ECCC, supra note 11 at 7.
60 B v France, (1994) 16 BHRR 1 [B v France].
61 Sejdovic v Italy, supra note 55 at para 58.
62 Ibid at para 94.
63 Ibid at para 121.
64 Medenica v Switzerland, No. 20491/92, [2001] ECHR at para 59 [Medenica v Switzerland].
65 Sejdovic v Italy, supra note 55 at para 58.
66 Medenica v Switzerland, supra note 64.
67 Elizabeth Evenson & Jonathan O’Donohue “The International Criminal Court is at Risk” (6 May 2015).
68 International Criminal Court “Cases” (Last Visited 18 December 2023).
69 International Criminal Court “Cases: In ICC Custody” (Last Visited 18 December 2023).
70 International Criminal Court “Cases: At Large” (Last Visited 18 December 2023).
71 International Criminal Court “Cases: Case Closed” (Last Visited 18 December 2023).
72 International Criminal Court “Understanding the International Criminal Court” (Last Visited 2 December 2023) at 31.
73 Ibid.
74 Ibid at 32.
75 Ford, Stuart “A Hierarchy of the Goals of International Criminal Courts” (2018) Vol 27:1 Minnesota J of Intl L 179 at 189-190 [Goals of International Criminal Courts].
76 Ibid at 196-197.
77 Ibid at 235.
78 Ibid.
79 Ibid at 203-207
80 Ibid.
81 Ibid at 215-221.
82 Ibid.
83 Ibid at 221-228.
84 Ibid.
85 Ibid at 228-234.
86 Ibid at 235.
87 Ibid.
88 Ibid at 225.
89 ICC, supra note 14 at Art. 63.
90 ICTY, supra note 18 at Art. 21(4)(d); ICTR, supra note 17 at Art. 22(4)(d).
91 STL, supra note 20 at Art. 22(1).
92 Colozza v Italy, supra note 23 at para 27.
93 Ibid at para 29.
94 Poitrimol v France, supra note 26 at para 31.
95 STL, supra note 20 at Art. 22(1).
96 Nahimana v Prosecutor, supra note 29 at para 109.
97 SCSL, supra note 34 at Art. 60(a).
98 Prosecutor v Gbao, supra note 36 at para 8.
99 TRCP, supra note 37 at r. 5(2).
100 ECCC, supra note 38 at r. 81(4).
101 Ieng Sary, supra note 40.
102 ICC, supra note 14 at Art. 63.
103 T v Italy, supra note 49 at para 28
104 Maleki v Italy, supra note 51 at para 9.4.
105 Sejdovic v Italy, supra note 55 at para 99.
106 Neziraj v Germany, supra note 57 at para 50.
107 B v France, supra note 60.
108 Sejdovic v Italy, supra note 55 at para 121.
109 Medenica v Switzerland, supra note 64 at para 59.
110 Goals of International Criminal Courts, supra note 75 at 235.
111 Ibid.
112 Ibid at 225.