The COVID-19 pandemic has affected every corner of the world and the International Criminal Court (‘ICC’ or ‘the Court’) is no exception. Since March 2020, the Court’s premises in The Hague have been closed, staff have been working from home and visitors, including defence counsel, are not permitted into the UN Detention Facility to visit the accused. Nevertheless, trials remain ongoing and, like countless other courts around the world, the ICC has shifted to operating virtually for the foreseeable future. The ICC has so far postponed hearings in Prosecutor v Al Hassan, Prosecutor v Ntaganda and Prosecutor v Gbagbo and Blé Goudé in response to the pandemic. However, it is possible that the Court may hold virtual hearings if the pandemic prevents in-person court sittings in the long-term. This post considers the impacts of both holding virtual hearings and postponing hearings on an accused’s fair trial rights under the Rome Statute of the International Criminal Court (‘Rome Statute’).
Right to be present at trial
Should the ICC conduct virtual hearings, this will immediately impact the right of the accused ‘to be present at the trial’ pursuant to article 67(1)(d) of the Rome Statute.
In Zigiranyirazo v Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (‘ICTR’) held that article 20(4)(d) of the ICTR Statute (the equivalent to article 67(1)(d)) requires the physical presence of the accused in the courtroom ([12]–[13]). However, the Appeals Chamber also noted that the right to be physically present ‘is not absolute’ and that any departure from this right ‘must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective’ ([14]). One such permissible departure which is expressly recognised in article 63(2) of the Rome Statute is where the accused continually disrupts the hearings, enabling the Trial Chamber to exercise its discretion to remove the accused and make arrangement for him or her to participate in the proceedings and instruct counsel ‘through the use of communications technology’. The provision emphasises the exceptionality of such a measure and states that such a step shall only be taken ‘after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required’. Of course, the drafters of the Rome Statute could not have envisaged the possible need for virtual hearings to the extent required by the COVID-19 pandemic. While the accused appearing via video-link during the COVID-19 pandemic would likely ‘be in the service of a sufficiently important objective’, the exceptionality of such a measure cautions against the Court relying on virtual hearings.
However, the right to be present at trial is not only concerned with the accused’s physical presence. The right also requiresthat the accused is able to effectively participate in the proceedings, particularly, that the accused is able to confidentially and freely communicate with counsel. In assessing the desirability of virtual criminal hearings in England and Wales, Penelope Gibbs has observed that:
‘The hidden story of virtual justice is of the harm the disconnect does to the relationship between lawyer and client. The rigid timetable leads to “stopwatch” justice, in which lawyers try to beat the clock to get instructions from their clients, many of whom have challenges understanding the basics of the criminal justice process.’ (p 33)
At the ICC, unless the Court could facilitate a virtual hearing in which the technology could display multiple images simultaneously, provide real-time transcription in French and English, allow for privileged consultations between the accused and her or her counsel and hold the accused in a location where he or she could participate in both open and closed sessions and potentially address the Chamber directly, it is doubtful whether, at present, a virtual hearing at the ICC could be conducted fairly and in a manner that safeguards the accused’s right under article 67(1)(d).
Right to adequate time and facilities to prepare a defence
Conducting proceedings virtually may also infringe upon the accused’s right under article 67(1)(b) to ‘have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence’. In the context of the COVID-19 pandemic, there is a real risk that physical distancing requirements will adversely affect the accused’s right in respect of both adequate time and adequate facilities.
In respect of time, defence counsel are more restricted in how they are able to communicate with the accused. For example, Ntaganda’s counsel have argued that since the closure of the UN Detention Facility to visitors, taking instructions from their client is ‘more complicated, time-consuming, and less effective’ ([14]). Indeed, there is a real risk that reliance on virtual communications with clients detracts from counsel’s ability to obtain proper instructions and effectively communicate with clients.
In respect of facilities, the shift to remote working restricts access to resources that would otherwise be readily available. Ntaganda’s counsel have highlighted that many legal sources cited in the prosecution’s submissions are not available online via the ICC library, making it extremely difficult for the defence to properly verify the accuracy of the prosecution’s submissions. Moreover, the ICC’s IT infrastructure has proven ill-equipped to handle the high volume of Court staff working from home ([15]).
Although the notion of ‘adequate’ time and facilities is a nebulous concept and one for which the case law does set a very high bar for the finding of a breach, it is nevertheless pertinent for the Court to ensure that physical distancing and work-from-home requirements do not unduly restrict an accused’s communications with defence counsel and do not impede defence counsel’s access to critical resources.
Right to be tried without undue delay
While a postponement may assist in facilitating a defendant’s right to be present at trial and to have adequate time and facilities to prepare his or her defence, it simultaneously prolongs the proceedings and raises questions about a potential infringement of article 67(1)(c), which enshrines a defendant’s right to be ‘tried without undue delay’ as a minimum guarantee.
With respect to the right to be tried without undue delay under article 14(3)(c) of the International Covenant on Civil and Political Rights, the UN Human Rights Committee has emphasised that the factors to be considered are ‘the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities’ ([35]). However, article 67(1)(c) must be understood in the sui generis context of international criminal proceedings. Proceedings before the ICC and the ad hoc tribunals are notoriously lengthy, typically require the testimony of hundreds of witnesses and involve complex factual allegations that usually occurred decades prior to the commencement of the proceedings (pp 572–588). Consequently, delays are somewhat inevitable and article 67(1)(c) protects only against undue delay, not merely delay. Accordingly, it is unsurprising that the case law establishes a high threshold for international criminal proceedings to constitute undue delay. For example, a period of twelve and a half years from the initial arrest to the issuing of the trial judgment was held not to be an ‘undue delay’ by the ICTR Appeals Chamber, owing to the significant complexity of the proceedings ([31]–[33]).
Any delay is assessed in light of the whole of the prosecutorial process (p 521). Consequently, a postponement of hearings for several months due to COVID-19 precautions, when assessed in light of the entirety of the proceedings, is unlikely to constitute an undue delay within the meaning of article 67(1)(c). Nevertheless, the ICC Pre-Trial, Trial and Appeals Chambers remain under a duty to safeguard the accused’s right to be tried without undue delay. This duty must be upheld even where the accused requests any postponement of the proceedings and regardless of whether the accused himself or herself asserts their right ([346]).
Accordingly, while the full realisation of an accused’s rights to be present at trial and to have adequate time and facilities to prepare a defence may actually require some delays to the proceedings, it remains incumbent upon the Court to ensure that the full realisation of these rights does not cause any undue delay for the accused.
Conclusion
The COVID-19 pandemic poses many challenges for international criminal justice and, of course, it is not only an accused’s rights that are impacted by postponement and/or the virtual conduct of proceedings. Virtual hearings risk excluding the public, which is particularly problematic in the context of ICC proceedings where the hearings not only seek to determine the criminal responsibility of the accused but also seek to promote reconciliation efforts for victims and members of the affected society. Consequently, it is imperative that any measures taken by the ICC to conduct hearings during the COVID-19 pandemic adequately balance the rights of the accused as well as victims and witnesses.
Adaena Sinclair-Blakemore is a solicitor in Melbourne, Australia, and previously interned in the Chambers of the International Criminal Court. She holds a Juris Doctor (First Class) from the University of Melbourne and a Bachelor of Arts in French and Italian from the University of Western Australia.