Given that international law quite clearly recognizes a right to be present at trial,6 my proposal must specify a set of circumstances under which trials in absentia are consistent with this right. In other words, the central challenge is to specify when exactly trials in absentia should be permitted, such that the resulting trials will be able to perform their function without violating the rights of the accused. There are very many different circumstances under which one might think trials in absentia are advisable.7 For example:

1. Disruption: where the accused continuously disrupts the proceedings
2. Interrupted appearance: where the accused appeared before the proceeding temporarily, but then absconded
3. Express waiver: where the accused explicitly waives his right to be present
4. Implied waiver: where the accused has deliberately declined to appear
5. Uncooperative states: where the state in which the accused resides refuses to apprehend/transfer him to the Court
6. Hiding: where the accused cannot be found
7. Discretionary: where the Court finds it to be in the interests of justice

I will argue that the States Parties’ amendment should be articulated in terms of (c) and (d), and should not be articulated in terms like (g); in other words, where the accused has explicitly or implicitly waived his right to be present at trial, the Court should conduct a trial in his absence. However, the Court should articulate standards as to what constitutes such a waiver rather than simply applying a loose standard under which they have broad discretion. This proposal, it should be noted, roughly mirrors the conditions under which the Special Tribunal for Lebanon8 permit such trials, and thus benefits from scholarship done within that context. Whether or not exceptions (e), and (f) should be recognized should be determined by reference to the standards the Court develops; in other words, whether an indictee whom a state refuses to surrender to the Court’s custody, or an indictee who hasn’t been definitively located should be subject to a trial in absentia should be determined by reference to the question of whether he has (implicitly) waived his right to be present.

In what follows, I defend this view in three stages. First, I consider the threshold issue of whether trials in absentia necessarily violate internationally recognized rights of the accused; if they do, then conducting them is not a viable option for the ICC regardless of how helpful they might be in solving the arrest problem. I argue that so long as the Court imposes adequate notice requirements (and likely an adequate procedure for re-trial), trials in absentia are consistent with internationally recognized rights of the accused as it has been interpreted in international case law. Second, I lay out the positive argument in favor of trials in absentia at the ICC. I argue that trials in absentia are capable of dissolving the ICC’s arrest problem, and that this fact provides a strong affirmative reason for the ICC to conduct such trials. Third and finally, I consider potential problems with trials in absentia, namely that they’re ineffective in achieving the aims of ICC trials, and that conducting them will undermine the perceived legitimacy of the Court. I emphasize that in light of the arrest problem, the argumentative burden here is relatively low; all that needs to shown is that a system permitting trials in absentia but dissolving the arrest problem to at least some extent fares no worse on these scores than the current system does. While certain aims of ICC trials will admittedly be harder to achieve should the Court permit trials in absentia, others will be easier to achieve, and thus it’s not clear that introducing them would all-things-considered frustrate the Court’s goals. Similarly, while indeed trials in absentia may undermine the legitimacy of the Court in the eyes of some, it’s also likely to enhance its legitimacy in the eyes of others. Because the opponent of trials in absentia isn’t able to establish that conducting them is overall worse than not, the fact that they are able to dissolve the arrest problem to at least some extent gives the States Parties strong reason to consider their implementation.

II. Rights of the Accused

A threshold question is whether trials in absentia necessarily violate internationally recognized rights of the accused; if they do, then amending the Rome Statute to permit them would of course be ill-advised. To those rooted in common law traditions, little will be required to summon the intuition that trials in absentia are somehow suspect, and international treaties seem to codify this intuition.

The International Covenant on Civil and Political Rights (“ICCPR”), monitored by the Human Rights Committee (“HRC”), provides in Article 14 that “everyone shall be entitled… to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.”9 And the European Convention on Human Rights and Fundamental Freedoms (“ECHRFF”), monitored by the European Court of Human Rights (“ECHR”), provides in Article 6(1) that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal,” which is taken to require that the accused have the right to participate in such hearings.10 These doctrines might be read to require the presence of the accused at trial, and thus to preclude trials in absentia.

However, the obvious point that having a right to do something is distinct from a requirement or obligation to do it applies here as elsewhere. Being entitled to have any trial conducted done so in one’s presence is simply not the same thing as being required or obligated to be present before a trial is conducted. Thus, the recognized right does not immediately and absolutely preclude trials in absentia. (Those rooted in civil law traditions will not be surprised to hear this.) Indeed, international tribunals have not interpreted the rights in question as absolute prohibitions on trials absentia, but rather as limitations on them.11

HRC case law, for example, has interpreted Article 14 of the ICCPR in a manner that would seem to permit trials in absentia under certain circumstances. For example, Mbenge v. Zaire12 held that if an accused was properly informed of the proceedings in advance and declined to exercise his right to be present, then a trial in his absence would be permissible in the interests of justice (but because the evidence that the accused was given notice was inadequate, his Article 14 rights were violated by a conviction in absentia). Maleki v. Italy13 held that a trial in absentia would have to be preceded by informing the accused of the proceedings, or by guaranteeing him a retrial upon capture if he was not informed (but because the accused was neither informed nor had the right to a retrial, his Article 14 rights were violated).

Similarly, ECHR case law affirms the same point with respect to the ECHRFF. T. v. Italy14 held that for a trial in absentia to proceed, the accused must have been properly notified of the charges against him in order that he is able to waive his right to be present, and that vague and informal knowledge cannot suffice (and because the accused had not been located, his Article 6(1) rights had been violated). Demebukov v. Bulgaria15 held that unless the accused expressly or implicitly waived his right to be present, then a person convicted in absentia must be afforded “a fresh determination of the merits of the charge” and that a court may not infer from an accused’s fugitive status that he implicitly waives his right to be present (but because the accused had secured counsel after being charged with a specific crime, his flight thereafter constituted an implicit waiver of his right to be present).

In addition to these treaties, customary international law provides no absolute prohibition on trials in absentia, as is illustrated by the fact that civil law nations conduct them regularly. Thus, the internationally recognized right of the accused to be present at trial is not absolute; international case law suggests that the right can be waived.

The difficult legal question, though, is what suffices for a waiver of this right. Under what circumstances may a court conduct a trial in absentia, consistent with fully respecting the right of the accused to be present at trial? The HRC in particular has only considered cases where the authorities have failed to take all reasonable steps to notify defendants of the proceedings, and so it hasn’t yet had occasion to directly hold on whether requirements beyond that would need to be satisfied before a trial in absentia would be consistent with Article 14.16 Nevertheless, the cases just examined suggest various principles: where an accused is given notice and or guaranteed a retrial if he can establish that he lacked adequate notice, a trial in absentia may well be permissible;17 vague or informal knowledge is insufficient to constitute adequate notice;18 and the mere fact that an accused is a fugitive is insufficient support for an inference that he waives his right to be present, though flight after having been given notice suffices.19 These principles, taken together, seem to fill in the basic idea that an accused is able to waive her right to be present at trial, either explicitly or implicitly.

Perhaps not surprisingly, the circumstances under which the Special Tribunal for Lebanon permits trials in absentia also seem to be grounded in the notion of waiver. Article 22 of the Statute of the Special Tribunal for Lebanon provides that:

1. The Special Tribunal shall conduct trial proceedings in the absence of the accused, if he or she:
   1. has expressly and in writing waived his or her right to be present;
   2. has not been handed over to the Tribunal by the State authorities concerned; [or]
   3. 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.
2. When hearings are conducted in the absence of the accused, the Special Tribunal shall ensure that:
   1. 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;
   2. the accused has designated a defense 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;
   3. whenever the accused refuses or fails to appoint a defense counsel, such counsel has been assigned by the Defense Office of the Tribunal with a view to ensuring full representation of the interests and rights of the accused.
3. In case of conviction in absentia, the accused, if he or she had not designated a defense counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgment.20

In sum, Article 22(1)(a) permits trials in absentia in the case of explicit waiver of the right to be present, whereas 22(1)(b) and (c) permit them in cases of implicit waiver. Article 22(2) ensures that the interests of the accused will be represented by counsel at such trials (and at hearings), and 22(3) provides that a party convicted in absentia will have a right to retrial if he failed to appoint counsel of his choice.

Some debate has emerged over whether Article 22 is consistent with international law, or in other words whether it properly interprets the content of the internationally recognized right to be present at trial.21 Some of the objections that have been raised would not apply were the ICC to adopt a provision styled after Article 22. For example, some have worried that 22(3)’s provision of a right to retrial would require that the STL remain open indefinitely;22 since the ICC is intended to be a permanent institution, no problem is posed by its needing to be.

Other objections apply, though, including how to understand what Article 22 entails in the following situation: an accused is arrested by his state, but the authorities refuse to transfer him to STL custody. He participates in his defense by choosing counsel, but is prohibited (by his own state) from attending the trial. In such a situation, 22(1)(b) seems to entail that a trial in absent shall be conducted; if convicted, though, 22(3) seems to entail that he will have no right to retrial, since he appointed his own defense counsel; together, the objection goes, this is an intuitively impermissible result.

Gardner23 suggests two lines of reply, both of which could be applied to the ICC context readily. First, 22(1)(b) should be understood as a special case of implicit waiver, and thus not satisfied where an accused wishes to attend his trial but is prevented by his state, a situation about which defense counsel would readily be able to inform the Court.24 So in the situation described no trial in absentia need be conducted. Second, 22(3) is not exhaustive, but rather only specifies circumstances under which the Court must grant a retrial to a convicted party. “If a situation present itself where the STL judges believe it is in the interests of justice to allow a retrial, nothing in Article 22 would prevent them from ordering one, regardless of… Article 22(3).”25 These suggestions indeed seem adequate, and in the spirit of a proposal grounded in the notion of waiver.

Finally, Gardner provides a useful clarification of the relationship between Article 22(1)(c) and 22(2)(a).26 While the former seems to require only that reasonable steps be taken to notify the accused of the proceedings, the latter seems to require that he is provided with actual notice. Indeed, Gardner argues that actual notice is required, since the Court must satisfy itself that the conditions in 22(2) are satisfied before a trial in absentia can proceed, even if the conditions in 22(1) already were. While “the defendant [must] have actual knowledge of the indictment… the fact of knowledge [may] be established indirectly.”27

To the extent that Gardner’s reading of Article 22 renders it consistent with international law,28 the States Parties would do well to model their amendment on such a reading. The proposal, in sum, is that the amendment provide as follows: the ICC shall conduct trials in absentia where an accused party waives his right to be present either explicitly in writing or implicitly. One waives his right implicitly if he has actual notice of his indictment, and willingly fails to appear before the Court; such knowledge and willingness may be inferred. Where a trial in absentia proceeds, the accused may appoint defense counsel; counsel will be provided for him should he fail to do so. Lastly, the Court shall permit a retrial of a party convicted in absentia if he failed to participate in his defense by, at a minimum, appointing defense counsel, or if the Court otherwise determines that it’s in the interests of justice. Such a proposal is consistent with the internationally recognized rights of the accused under the ICCPR and the ECHRFF, and thus is a viable option for the States Parties to pursue should there be reason to.

III. (Dis)solving the Arrest Problem

The States Parties have a fairly strong reason to consider permitting trials in absentia under the conditions just articulated, namely, that it would at least partially dissolve the arrest problem. Were the Court authorized to conduct such trials for a good number of the outstanding indictees, the arrest problem would no longer call out for the costly and challenging solutions that it seems to require but rather would dissolve. The Court could simply try the cases of (some of) the indictees that remain at large, preserving for the record the fleeting evidence of the atrocities committed, and condemning those responsible.

This is so as long as it’s easier to establish mechanisms whereby the notice requirements discussed above can be satisfied than it is to effectuate arrests. After all, were it just as difficult to provide notice to the accused as it is to arrest him, then trials in absentia would only be permitted in cases where they’re unnecessary. Indeed, though, it strikes me as eminently plausible that it’s easier to ensure that the accused has actual notice of his indictment than it is to arrest him. Consider, for example, the cases of Joseph Kony29 and Omar al-Bashir30: though of course the Court would need to satisfy itself that this is so, it seems quite reasonable to suspect that these men possess the actual notice required on the proposal in question. Thus, were the States Parties to adopt this proposal, the long overdue trials of these men, and likely others, could proceed despite the Court’s failure to effectuate their arrests.31

Solving the arrest problem is worthwhile not only for the sake of shoring up the Court’s credibility, though such a reason is substantive in itself. Further, as the cliché provides, justice delayed is often justice denied. As argued in the next section, trials in absentia, which proceed more quickly after an incident occurs than the long-delayed and perhaps never occurring alternatives with which we’re now faced, may better serve the interests of justice.

IV. Worries

One legitimate concern about trials in absentia is that they aren’t well-suited, at least in the context of the ICC procedures, to achieve the aims they’re meant to, including establishing a truthful and thorough historical record of atrocities that have occurred, and punishing their perpetrators. Indeed it seems right that the truth-seeking function of ICC trials would likely be frustrated to at least some degree where a defendant is absent from trial, and that where a defendant isn’t in ICC custody, his punishment will be necessarily different than that of a defendant in custody.

Two initial points are worth observing, though. First, when asking whether trials in absentia would be able to achieve the aims ICC trials are meant to achieve, the proper objects of comparison are not a single trial in absentia as compared to a single trial in the presence of the defendant; by hypothesis, trials in the presence of the defendant are often not an option in light of the arrest problem. Rather, the objects to compare are the set of trials as a whole that the ICC would be able to conduct were trials in absentia permitted and the set of trials as a whole that it’s able to conduct if they continue to be permitted only in highly limited circumstances. The problem that the proposal here is meant to solve, after all, is not a problem with the trials that the ICC currently conducts, but rather the fact that such trials are relatively scarce. Even if a single trial in absentia is necessarily and concededly inferior to its counterpart where the defendant is present, still it may be the case that the ICC trials that could be conducted were trials in absentia permitted, considered as a group, is superior to the trials that it’s able to conduct as things presently stand. And exactly this latter claim is what this comment defends.

Second, it follows from the above that the argumentative burden in this section is low. If the reader is persuaded that indeed the proposal presented here could, if adopted, solve the arrest problem to some significant degree, then all she should need to be persuaded of here is that the system that would result, considered as a whole, fares no worse than the present system with respect to achieving the ICC’s aims. This modest claim, then, is what I shall presently defend.

The Preamble to the Rome Statute provides that the aims of the ICC include the following: “[punishing] the most serious crimes of concern to the international community,” and “contribut[ing] to the prevention of such crimes.”32 Other goals of the Court presumably include creating a historical record of these crimes, expressing (moral) condemnation of them, and perhaps restoring a dignified relationship between the perpetrators of these crimes and their victims or society at large.

The respect in which trials in absentia would most obviously be impeded from achieving these aims is that the defendant’s participation in the trial would necessarily be limited, and such a limitation is likely to impede the truth-seeking functions of the Court (along with any other functions which rest on it’s capacity to uncover the truth). Jordash and Parker articulate the point persuasively:

To conduct a trial without the defendant is to stage Hamlet without the Prince; even with the finest actors in supporting roles (such as defense counsel) it cannot be billed as an original or accurate narrative… Mounting an effective defense requires more than a rudimentary testing of the prosecution case achieved by identifying internal inconsistencies; it requires specific answers and robust rebuttals of these allegations. Defense counsel cannot invent the defense on behalf of his client.33

There is simply no denying that the job of defense counsel will be considerably more difficult with an absent client than it would be with one present at trial, and indeed this limits the ability of a trial in absentia to uncover the truth about what happened.

However, several features of the particular proposal presented here may suffice to calm this worry. Firstly, recall that the proposal in question permits trials in absentia only where a defendant has knowingly waived his right to be present; thus, the cases under discussion are all ones in which the Court has concluded that the defendant was aware of the trial but willingly chose not to attend. In light of this knowing waiver, the fact that defense counsel will be limited in his ability to present his client’s case seems rather less problematic; the reason, after all, that this is so is that the defendant himself chose to make it so. While such a defendant of course retains various rights, among them is not necessarily the right to counsel-in-the-best-position-to-make-out-the-best-case-possible.

Second, on the proposal in question, the defendant retains the right to participate in the trial to at least some extent. At a minimum, the defendant retains the right to appoint defense counsel, but beyond that, it’s not clear why he couldn’t communicate his side of the story to such counsel. Such capacity, Gardner has claimed, is exactly what makes the STL’s in absentia provision so reasonable:

The Rules allow defendants, in some instances, to attend court hearings while not in custody and even to participate in hearings via video-conference. In this sense, the STL is in the vanguard of international criminal law by allowing a voluntarily absent defendant to nonetheless participate extensively in his defense—indeed, to participate to the greatest extent feasible.34

While no specific proposal regarding the extent of defendant participation permitted has been advanced here, there’s no principled reason that he should be prevented from communicating extensively with counsel. This may of course be practically difficult in certain cases; such defendants, after all, are by hypothesis fugitives. Nevertheless, the possibility of defendant participation undermines this worry to at least some extent.35

Furthermore, and perhaps more importantly, there are respects in which the truth-seeking functions of a trial are better served by allowing a trial in absentia to proceed than they would be by prohibiting it. As Jordash and Parker themselves concede, “it is an unavoidable facet of litigation that the quality of evidence depreciates over time: witnesses die, memory fades, and physical exhibits are lost.”36 In a system that prohibits trials in absentia as often as does the ICC’s current rule does, very many cases will simply never proceed to trial, and inevitably, whatever evidence could have been uncovered will never be go down on the public record. Exactly this rationale motivated introduction of the ICTY’s Rule 61, allowing prosecutors to present evidence and witnesses at public hearings on the record despite the absence of the defendant.37

Thus, evidence provided by the defendant will admittedly be harder to come by where he is absent, thus impeding the truth-seeking function of trials to at least some extent; however, exactly this function will at the same time be enhanced by the very existence of a trial in the first place. Witnesses will be able to testify before disappearing or forgetting, and physical evidence will more quickly be able to be recovered. Considered alone, then, a single trial in absentia may indeed be inferior to a trial in the presence of the accused. Nevertheless, the system of trials currently engaged in by the Court, wherein they proceed either with participation of the defendant or not at all, seems to be inferior with respect to uncovering the truth to the system wherein some trials proceed with the participation of the defendant while others proceed without it, but with other evidence collected and recorded rather than set aside. The point, in other words, is that the truth-seeking function of the Court is impeded as it is by it’s inability to conduct trials for so many indictees; while trials in absentia are indeed an imperfect truth-seeking mechanism, they are nevertheless capable of advancing this goal to at least some degree, and thus the argumentative burden place on their advocate is discharged.

Beyond the establishment of a truthful historical record of atrocities committed, the ICC’s other goals are worth considering as well. Were the introduction of trials in absentia to make punishment and or deterrence of future crimes less feasible, then again the States parties would have reason to resist them. But it’s not clear why this should be so, and indeed the objection has seldom been voiced in the literature. Though of course a defendant not in custody cannot be imprisoned as ICC procedures prescribe, a conviction in absentia and the resulting consequences seem nevertheless to constitute undesirable results that can constitute retribution. At a minimum, the convicted party will have an increasingly limited ability to travel, and engage with governments who are cooperative with the ICC.

To the extent that the Court is aimed at deterrence, the mechanism they imagine to be at work is presumably that being aware of the negative consequences that may result for them, future criminals will be less likely to commit the crimes in question so as to avoid such consequences befalling them. But the negative consequences just pointed out seem equally capable of filling this role as is the consequence of imprisonment. Furthermore, a system permitting trials in absentia may be even better capable of deterring crime, since it would remove from future criminals the reassurance of the thought that he’d be able to flee should he ever be indicted by the Court. Thus, it’s far from clear that the system that would result from my proposal is overall worse with respect to these aims than the system as it presently stands, and again, the argumentative burden here is satisfied.

Lastly, the expressive functions of the Court are quite plausibly better achieved by a system which permits those trials in absentia proposed here than the system as it currently stands. No doubt a key function of ICC trials is to express moral condemnation of the perpetrators of the atrocities the Court prosecutes. Such expression is presumably a significant part of what victims find desirable about such trials, and the lack of such expression is no doubt part of what victims of those atrocities that have gone unprosecuted find wanting about the Court as it currently stands. The trials in absentia here proposed, if nothing else, would serve as public expression, to perpetrators and to their victims along with the rest of the world, that the conduct engaged in was among “the most serious crimes of concern to the international community.”38

Overall, then, the system permitting trials in absentia in the cases proposed herein seems to fare no worse than the system as it currently stands in its ability to achieve the ICC’s aims. In light of this, the significant gain that could be achieved by such a system’s solving the arrest problem is weighty enough to warrant consideration.

V. Conclusion

Though trials in absentia may well be imperfect mechanisms for serving the Court’s goals, were they conducted in the limited circumstances described herein, they would not only be compatible with international law but would also provide a (partial) solution to the Court’s pressing arrest problem, rendering it far less worrisome than it is at present. In observing these potential benefits of the system proposed, the States Parties would do well to consider amending the Rome Statute so as to permit trials in absentia in the circumstances outlined here.

Admittedly, the political reality of amending the Rome Statute may well be bleak; all the political reasons which generated disagreement over trials in absentia at the Rome Conference are untouched by the analysis here. However, the aim of this comment was to examine some of the principled reasons for such disagreement, and to illustrate that they favor reconsideration of current ICC policy. Success on this score is presumably a necessary, even if not sufficient, condition for the improvement proposed.

Were the States Parties to amend the statute as recommended, it’s likely that the Court would lose credibility in the eyes of some, especially those rooted in common law systems who are likely to suspect that trials in absentia are somehow problematic. But by dissolving the arrest problem, the Court would simultaneously gain credibility in the eyes of others, and would in fact be able to pursue its aims more consistently and thoroughly than it presently can. This, it seems, is sufficient reason to at least consider the amendment at hand. If the argument here has succeeded, then lack of a response on the part of the States Parties can reasonably be attributed to political rather than principled reasons, which would be worth examining in their own right.

Appendix: The Status of Trials in Absentia in International Tribunals

Various international tribunals other than the ICC have considered the possibility of conducting trials in absentia; many, if not all, have countenanced the possibility of conducting them under some circumstances, but the specification of those circumstances differs across different tribunals.39

The International Military Tribunal at Nuremberg’s Charter, Article 12, permitted trials in absentia whenever the Tribunal found them to be in the interests of justice.

The ICTY’s Article 21(4) and the ICTR’s Article 20(4) neither explicitly permit nor explicitly prohibit them, though they have both been read to implicitly prohibit them. However, trials have in fact proceeded in absentia in these courts after the accused made an initial appearance. Further, Rule 61 for the ICTY allowed prosecutors to present evidence and witnesses despite the absence of the defendant, as a means of preserving evidence and publicly shaming defendants. Once a certain number of defendants were brought under the court’s custody, Rule 61 proceedings fell into disuse; the ICTR enacted a similar provision after 17 years of operation to preserve evidence in the 9 cases where indictees have remained at large.40

The Special Court for Sierra Leone and the Extraordinary Chambers of the Courts of Cambodia both have adopted the ICTY/ICTR’s approach, except that they have explicitly codified the exception for those who make an initial appearance.

As discussed herein,41 the Special Tribunal for Lebanon’s Article 22 (and corresponding Rules 104-9) expressly requires trials in absentia where the accused has expressly waived his right to be present, where the accused “has not been handed over to the Tribunal by the State authorities”… or where he is unable to be found after all reasonable steps have been taken to inform him of the proceedings; it also requires that the accused be notified of the proceedings, have counsel appointed for him, and provides that he retains the right to a retrial in his presence if he has not designated his own defense counsel. The STL, according to its mandate, imposes Lebanese law where practicable; because Lebanese law itself permits trials in absentia, so too does the STL, thus explaining the unique status of the STL among international tribunals. Though the STL has indicted five people, no trial has yet begun.

As also discussed herein, the Rome Statute, Article 63, provides that within the ICC, “the accused shall be present during the trial, [unless] the accused, being present before the Court, continues to disrupt the trial, [in which case] the Trial Chamber may remove the accused… Such measures shall be taken only in exceptional circumstances…”

However, proposals with broader exceptions were proposed throughout the development of the Rome Statute. The International Law Commission’s (ILC) 1993 draft provided in its Article 44(1)(h) that the accused is entitled to be present “unless the Court… concludes that the absence of the accused is deliberate.” Their 1994 draft provided in its Article 37 that “the accused should be present during the trial” unless the accused continuously disrupts the proceedings, poses a security risk, or escapes from ICC custody. The General Assembly’s Preparatory Committee 1996-8 sessions produced four alternatives to be considered at the Rome Conference: that the accused must be present at all trials; that the accused must be present at all trials, unless he escapes from custody, or continuously disrupts the proceedings; that the accused must be present at all trials, unless he escapes from custody, continuously disrupts the proceedings, or fails to appear despite being informed of the proceedings; and that the accused must be present at all trials, unless the Court determines that his absence is deliberate. At the Rome Conference, however, consensus emerged that there should be a general presence requirement, and that there should be an exception for continuous disruption of Court proceedings, and so these provisions were included; because other exceptions continued to be debated, they were excluded.42

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   List of People Indicted in the International Criminal Court, Wikipedia, available online, (last visited Dec. 31, 2013). ↩

2. 2.

   Id. ↩

3. 3.

   Id. ↩

4. 4.

   The Rome Statute, Article 63, provides that “the accused shall be present during the trial, [unless] the accused, being present before the Court, continues to disrupt the trial, [in which case] the Trial Chamber may remove the accused… Such measures shall be taken only in exceptional circumstances.” Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], art. 63. ↩

5. 5.

   See, e.g., Chris Jenks, Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights? 33 Fordham Int’l L.J. 57 (2009); Wayne Jordash & Tim Parker, Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law, 8 J. Int’l Crim. Just. 487 (2010). ↩

6. 6.

   Article 14 of the International Covenant on Civil and Political Rights provides that “In the determination of any criminal charge against him, everyone shall be entitled… [t]o be tried in his presence, and to defend himself in person…” International Covenant on Civil and Political Rights, art. 14, GA. Res. 2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966), available online [hereinafter ICCPR]. Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.” European Convention on Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (Nov. 4, 1950), available online [hereinafter ECHRFF]. ↩

7. 7.

   See Maggie Gardner, Reconsidering Trials in Absentia at the Special Tribunal for Lebanon: An Application of the Tribunal’s Early Jurisprudence, 43 Geo. Wash. Int’l L. Rev. 91 (2011) (discussing the circumstances under which the Special Tribunal for Lebanon permits trials in absentia); Gary J. Shaw, Note, Convicting Inhumanity in Absentia: Holding Trials in Absentia at the International Criminal Court, 44 Geo. Wash. Int’l L. Rev. 107 (2012) (proposing a list of circumstances under which the ICC might consider permitting trials in absentia). ↩

8. 8.

   For a brief summary of how various international tribunals regard trials in absentia, see the Appendix. ↩

9. 9.

   ICCPR, supra note 6. ↩

10. 10.

    ECHRFF, supra note 6. ↩

11. 11.

    Credit is due to Gary Shaw for collecting the cases that follow in the context of making the same point. Shaw, supra note 7. See also Gardner, supra note 7 (discussing some of the same cases as well). ↩

12. 12.

    U.N. Human Rights Comm., Mbenge v. Zaire, Comm. No. 16/1977, PP 1.1, 13, U.N. Doc. CCPR/C/18/D/16/1977 (Mar. 25, 1983). ↩

13. 13.

    U.N. Human Rights Comm., Maleki v. Italy, Comm. No. 699/2996, P 2.1, U.N. Doc. CCPR/C/66/D/669/1996 (Jul. 27, 1999). ↩

14. 14.

    T. v. Italy, 245 Eur. Ct. H.R. (ser. A) 34, 36 (1992). ↩

15. 15.

    Demebukov v. Bulgaria, App. No. 68020/01, PP 1, 7 (Eur. Ct. H.R. 2008), available online. ↩

16. 16.

    Gardner, supra note 7, at 103. ↩

17. 17.

    Mbenge v. Zaire, supra note 12; Maleki v. Italy, supra note 13. ↩

18. 18.

    T. v. Italy, supra note 14. ↩

19. 19.

    Demebukov v. Bulgaria, supra note 15. ↩

20. 20.

    Statute of the Special Tribunal for Lebanon, U.N. Doc. S/RES/1757 (May 30, 2007), available online. ↩

21. 21.

    See, e.g., Gardner, supra note 7; Jenks, supra note 5; Jordash & Parker, supra note 5. ↩

22. 22.

    See Jenks, supra note 5, at 62; Jordash & Parker, supra note 5, at 498; Gardner, supra note 7, at 129-30. ↩

23. 23.

    Id. at 118-19. ↩

24. 24.

    Id. ↩

25. 25.

    Id. at 130. ↩

26. 26.

    Id. at 125-28. ↩

27. 27.

    Id. at 127. ↩

28. 28.

    While others have argued that Article 22 is inconsistent with international law, they generally rely on interpretations of it which are weaker than Gardner’s, not requiring actual notice, for example, or presuming that 22(3) exhaustively enumerates the situations in which retrial could be granted. See Jenks, supra note 5, at 81-85; Jordash & Parker, supra note 5, at 496. ↩

29. 29.

    See Situation in Uganda, ICC, available online (last visited Jan. 5, 2014). ↩

30. 30.

    See Situation in Darfur, Sudan, ICC, available online (last visited Jan. 5, 2014). ↩

31. 31.

    To be sure, the notice requirements, robust as they are, are not trivial to satisfy, and thus, the proposal at hand may not dissolve the arrest problem in its entirety. In other words, there may be particular cases where the very same challenges to effectuating an arrest make it impossible to satisfy the notice requirements suggested herein. However, it seems quite likely that the proposal would solve the problem to at least some significant degree as the examples mentioned illustrate, and this seems benefit enough to justify consideration on the States Parties’ part. ↩

32. 32.

    Rome Statute, supra note 4. ↩

33. 33.

    Jordash & Parker, supra note 5, at 500-2. ↩

34. 34.

    Gardner, supra note 7, at 122. ↩

35. 35.

    Jordash and Parker push the point that the worry here applies especially strongly within the context of an adversarial system (like the ICC, and as they discuss it, the STL). Trials in absentia may be better able to uncover the truth when embedded in a civil law system, since it involves “judges working from an extensive, previously tested case file,” than they are when embedded in an adversarial system. See Jordash & Parker, supra note 5, at 504. However, even embedded within an adversarial system, the replies offered herein suffice. Defendants retain the right to participate actively in their defense, and may indeed provide information to counsel. ↩

36. 36.

    Id. at 500. ↩

37. 37.

    See Appendix; Gardner, supra note 7, at 108. ↩

38. 38.

    Rome Statute, supra note 4. ↩

39. 39.

    See Shaw, supra note 7. ↩

40. 40.

    See Gardner, supra note 7. ↩

41. 41.

    See Part II. ↩

42. 42.

    See Shaw, supra note 7. For further background on the development of the Rome Statute, see also James Crawford, The ILC’s Draft Statute for an International Criminal Court, 88 Am. J. Int’l L. 140 (1994); Hakan Friman, Rights of Persons Suspected or Accused of a Crime, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 247 (Roy S. Lee ed., 2003); William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 752 (2010); Daniel Brown, The International Criminal Court and Trial in Absentia, 24 Brook. J. Int’l L. 763 (1999); Rep. of the Working Group on a Draft State for an Int’l Criminal Court, May 17-Jun. 16, 1993, art. 44 cmt. 2, at 120, U.N. Doc. A/48/10, Annex, GAOR, 48th Sess., Supp. No. 10 (1993); Rep. of the Int’l Law Comm’n, 46th Sess., May 2-Jul. 22, 1994, at 107, U.N. Doc. A/49/10, GAOR 49th Sess., Supp. No. 10 (1994); Rep. of the Ad Hoc Comm. on the Establishment of an Int’l Criminal Court, 1st Sess., Apr. 3-13, Aug. 14-25, 1995, PP 164-68, U.N. Doc. A/50/22, GAOR, 50th Sess., Supp. No. 22 (Sep. 6, 1995); Rep. of the Preparatory Comm. on the Establishment of an Int’l Criminal Court, at 101-03, U.N. Doc. A/CONF.183/2/Add.1 (Apr. 14, 1998). ↩