On 8 June 2016 the International Bar Association and the The Hague Institute for Global Justice held a roundtable discussion entitled ‘Trials in Absentia in International Criminal Justice’. More than 130 delegates attended comprising legal professionals, diplomats and academics.
The session was divided into two panel sessions. The first panel, moderated by IBA Executive Director Dr. Mark Ellis, focused on the theory of trials in absentia. The second panel, moderated by Dr. Jill Coster van Voorhout, Senior Researcher at The Hague Institute for Global Justice, focused on providing a practitioner’s perspective. Both panels discussed the history of trials in abenstia focusing on the comparative jurisdiction of national and international tribunals.
The President of the Special Tribunal for Lebanon, Judge Ivana Hrdlicková, gave the keynote speech elaborating on the rationale behind and precedents for trials in absentia at the national and international level. Judge Hrdlicková highlighted the importance of procedural safeguards for the rights of the accused and outlined some of the practical and theoretical challenges posed by trials in absentia.
A group of international experts in International Criminal Law led the panel discussions, including Mr Geoffrey Robertson QC—the former President of the UN’s Special Court for Sierra Leone—, Mr François Falletti—the former Chief Prosecutor of the Paris Court of Appeals—, Dr Guido Acquaviva—the Deputy Registrar of the Kosovo Specialist Chambers—, Ms Héleyn Uñac—Deputy Head of the Defence Office of the STL—, Dr Brianne McGonigle Leyh—Co-Director of the Utrecht Centre for International Studies—, Mr. Thomas Hannis—former Senior Prosecution Trial Attorney in the ICTY—, Dr. Kinga Tibori-Szabó—Legal Officer and Legal Representative of Victims—. I spoke on the experiences of the International Crimes Tribunal of Bangladesh (ICT).
The presentations highlighted that trials in absentia remain a controversial element in International Criminal Law. The discussions covered the current regulation and jurisprudential developments concerning trials in absentia, the lessons learnt, and the challenges faced to guarantee the fairness of proceedings.
The purpose of this commentary, summarising some of the points raised in my presentation, is to invite the reader to judge independently whether the ICT trials conducted in the absence of the accused allow a court to achieve the minimum threshold of fairness.
Despite their evident shortcomings, trials in absentia are common before the ICT. The ICT was established in 2010 with the commendable objective of bringing accountability for international crimes committed during the 1971 War of Liberation, but its practice has deprived the ICT of legitimacy. This commentary argues that the ICT’s practice of conducting trials in absentia constitutes a complete perversion of justice.
The International Covenant of Civil and Political Rights, to which Bangladesh is a State Party, recognizes a defendant’s fundamental right “to be tried in his presence”. Trials in absentia are, therefore, generally prohibited in comparative law on the basis that they compromise an accused’s ability to exercise his rights. They are, indeed, a rara avis in International Criminal Justice: the ICC, ICTY and ICTR, and even the ECCC have determined that the presence of the defendant during his trial is an essential component of the judicial process, thus creating a discernible trend rejecting trials in absentia.
By way of contrast, the ICT permits trials in absentia where it “has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial, may hold the trial in his absence”. The Rules of Procedure requires that notice is given by publication in “daily newspapers”, assuming that if the accused does not appear before the court it is because he is absconding and, consequently, the trial may start in his absence.
This regulation runs contrary to the general principles of international law requiring that trials in absentia are consistent with fair trial considerations and fundamental human rights protections.
First, there must be effective notice. According to international norms, it must be demonstrated that the accused had actual knowledge of the proceedings, and following a summons, voluntarily chose to be absent. In this regard, the prosecution never sought to demonstrate that the accused had knowledge of the proceedings, that they had been notified or that they were absconding.
Second, a person tried in absentia must be represented by counsel. In this regard, representation must be effective. In almost of the in absentia trials to date, counsel appointed by the ICT has been woefully ineffective. First, appointed counsel had insufficient knowledge or experience in war crimes cases. Second, the failed to present any evidence or call a single witness. Third, and most importantly, the cross-examination of prosecution witnesses was negligent to the extent that it reinforced the prosecution case.
Third, it is an accepted norm in international law that an accused must have the right to request a retrial. However, at the ICT, neither the Act nor the Rules of Procedure provide for the opportunity to request a retrial in cases where the person convicted appears before the Tribunal following conviction.
It is noted that the only contemporaneous precedent of trials in absentia in International Criminal Law are to be found before the STL. As expected, the ICT frequently makes passing reference to the STL to justify the legality of the convictions, notwithstanding its failure to address the question of effective counsel or right to a retrial.
The question of legitimacy of the process is further compounded by the fact tha eight out of the ten persons convicted in absentia have been sentenced to death. To impose a death sentence in the absence of the defendant, without having provided him the opportunity to defend himself or, having been tried in absentia, the right to be retried, is a travesty of justice and constitutes an unlawful conviction under international law. As a matter of fact, international jurisprudence is clear in stating that a death penalty imposed in a trial that failed to meet international standards of justice constitutes an arbitrary execution.
Moreover, a quick analysis of the practice of trials in absentia within the ICT permits the conclusion that the persistent inequality of arms that taints the work of this Tribunal is exacerbated where the accused is absent.
Additionally, we must note that the Bangladesh authorities have consistently failed to initiate extradition proceedings against indicted or convicted citizens living abroad. A clear example is the case of Chowdhury Mueen-Uddin, convicted and sentenced to death by the ICT in his absence.
It is notable that the Government of Bangladesh failed to pursue an official request for extradition. It is quite clear that no British judge would order extradition in such circumstances, as if Mueen-Uddin were to return to his country, he would be executed without being able to judicially oppose the action. A nonsensical position, and one that falls foul of relevant international law and practice.
I painted a bleak picture in my presentation. In my experience as defence counsel in several cases before the ICT, I have been witness to the absolute lack of judicial independence, the clear political manipulation of its trials and a woeful absence of the principle of the presumption of evidence. However, the Tribunal’s regulation of trials in absentia is possibly the most evident and palpable proof that, since the establishment of the Bangladesh Tribunal, justice has ended at the gallows in Bangladesh.