By Felicity Salina, Junior Legal Assistant to the defense team of Mr. Jean de Dieu Ndagijimana in Nzabonimpa et al. from 2019 to 2021

Trial in the Turinabo et al. case, later renamed to Nzabonimpa et al., at the International Residual Mechanism for Criminal Tribunals (MICT) had originally been slated to begin in June 2020 when the coronavirus outbreak became known. It was immediately clear to all six defense teams, the prosecution and the judge that holding a multi-accused trial during a global pandemic which at the time was killing 300,000 people daily was not going to be an easy feat.

After dozens of submissions on the appropriate conduct of proceedings in light of COVID-19 exigencies, Single Judge Joensen finally ordered, on October 7, 2020, the presentation of opening statements by parties at the Arusha headquarters of the MICT later that same month, despite the virus’ spread showing no signs of subsiding. Several weeks prior, all six defense teams had requested that the accused be allowed physical attendance in court. In particular, the defense of Maximilien Turinabo stressed that its client “ha[d] the right to be present in person during his trial and insists on doing so,” while tacitly acknowledging that Mr. Turinabo’s age risked him contracting the coronavirus.

In March 2021, amid examination of defense witnesses, Mr. Turinabo was rushed to an undisclosed health facility where it was later found that he had contracted COVID-19. In a matter of days, oxygen levels in his blood dropped to below normal, prompting his transfer to a bigger hospital in Nairobi, Kenya. His passing was announced by his defense team in mid-April.

The circumstances surrounding Mr. Turinabo’s passing compel a revisiting of current rules applicable to the conduct of proceedings at the international criminal tribunals. Specifically, whether or not judges in international criminal trials should have the discretion to order the remote participation of an accused under exceptional circumstances which trigger significant health concerns.

Physical presence as a requirement

An accused’s right to be physically present at trial is considered “one of the most basic and common precepts of a fair criminal trial.” It provides an accused with the opportunity to observe their proceedings directly, confront any witness and evidence against him, assist in their own defense and testify in person. The right has been infused into the constituent instruments of all UN Security Council-mandated tribunals.[1]

Despite its critical importance in international criminal trials, the right to be present is not native to the international criminal justice system. It was rather the International Covenant on Civil and Political Rights (ICCPR) that became the first international legal instrument to embody this judicial guarantee and, eventually, the blueprint for the inclusion of the right into the above Statutes. A 2007 General Comment to the Covenant clues us in on the limits of this right; where an accused explicitly declines to exercise the right or does not indicate a willingness to do so despite having been requested, trial could proceed in their absence. Put simply, the right could only be derogated from where there is a waiver or a forfeiture on the part of the accused.[2]

At the turn of the 21st century, questions emerged as to whether, in light of international criminal trials’ increased reliance on digital technology, physical presence could be replaced with virtual presence. The ICTR categorically ruled in the negative on multiple occasions, reasoning that participation through video-link cannot replicate the experience of being in a courtroom. This position was echoed well into the 2010s by the MICT, with the accused still required to waive their right to be present if physical attendance was impossible and request to attend remotely if needed. Similarly, the ICC Rules of Procedure was amended in 2013 to introduce two new rules; one allows presence through video-link with an accused’s written request, another requires an express waiver of the right to be present for an accused to be excused from the courtroom.The procedural posture was straightforward: remote participation could only be allowed and not ordered by the court.

Threading the needle between human rights and trial rights

Several factors militate in favor of empowering judges to order remote participation during a pandemic without contradicting an accused’s right to be present. First, given that the right to be present is a creature of international human rights law first and of international criminal law second, its inclusion into the larger body of fair trial standards must not prejudice the fundamental rights considerations underlying its existence. Application of the right to be present should not impinge on or create a serious risk to the non-derogable right to life protected by the ICCPR and the right to health protected by the International Covenant on Economic, Social and Cultural Rights.

Further, judges would reasonably have to order remote participation where an accused’s insistence on being physically present at trial poses significant health risks having the potential to disrupt the proceedings. This reasoning finds support in jurisprudence. For instance, the Stanišić and Simatović Trial Chamber ordered Jovica Stanišić to participate in his trial via video-link as his weakened health was constantly interfering with the proceedings, resulting in numerous delays. The Appeals Chamber subsequently rejected the defense’s argument that such a decision constituted a violation of Stanišić’s right to be physically present on the rationale that the right must be balanced “with the right of both the Accused and his co-Accused to an expeditious trial.” The decision shows how potential disruption to the smooth conduct of proceedings is sufficient for judges to take it upon themselves to loosen the reins.

But it was also the demands of expeditiousness that prompted the Nzabonimpa et al. Single Judge to hastily order trial commencement amid live health concerns. The Judge remarked in his October 7 order that while parties were “individually burdened” by coronavirus-associated public health advice, such should not warrant further trial delays. The Single Judge hardly entertained the possibility of having the accused’s remote participation, while none of the accused indicated a willingness to waive their right to be in the courtroom.

The mandate to administer justice with relative speed and efficiency exists to shield accused persons from lengthy pre-trial detention and undue mental strain from being subjected to criminal prosecution. If speedrunning proceedings served neither of these ends and instead ran counter to an accused’s well-being, a postponement would appear logical. It may not be, however, in a pandemic scenario, where it is nigh on impossible to predict the end of a virus’ spread. Longer postponements could result in substantial prejudice against defense preparations, such as through a loss of witnesses or the integrity of their testimony. Hence, ordering remote participation on a discretionary basis should have been a clear and immediate alternative, especially since the Single Judge was already toying with this possibility by stating that remote participation was “encouraged given the exceptional circumstances” and “reasonable delays to ensure connectivity” of the Accused from a remote location with his order would be accommodated.

Video-link participation in any case helps speed up proceedings if done right. It obviates the need to accommodate frequent long-haul travels associated with physical attendance, which can be time-consuming.

A matter of imperfect judicial discretion?

Remote participation was discussed for the first time by an international criminal tribunal in Simić. Since the defendant Milan Simić had been too unwell to participate physically, the ICTY Trial Chamber installed a two-way telephone line and a video-link system in his Detention Unit so he could communicate with his counsel in the courtroom and still participate in the proceedings. However, Simić did not participate via video-link by means of a direct order from the Chamber, he was rather instructed to regularly waive his right to be present in the course of his physical absence. This showcases how derogation from the right remains contingent on the accused’s agreement not to appear in person. If the case illustrates anything, it would be that the possible discretion of judges in international criminal trials to order remote participation is an imperfect one.

The ICTY did change its stance through its 2013 judgment in Stanišić et al.,requiring a waiver to be made only when the defendant Jovica Stanišić entirely failed to attend trial and not when he appeared through video-link. But successor MICT chose not to inherit this change; upon learning about Goran Hadžić’s aggressive brain tumor in November 2014, it repeatedly refused to order the Serbian last war fugitive to participate in his trial virtually absent his voluntary waiver, choosing instead to stay proceedings multiple times. Hadžić passed away two years later before he was ever convicted.

Conversely, in 2007, the Extraordinary Chambers in the Courts of Cambodia (ECCC) made a precedent when it ordered Khmer Rouge commander Ieng Sary to attend his trial through video-link given his deteriorating health, although he demanded to be allowed in the courtroom. This is perhaps the earliest instance where an internationalized tribunal categorically denied physical attendance without any waiver or forfeiture of the right to be present. But it’s also the only recorded instance in that specific tribunal.

Of the five major proceedings at the ICC that took place when COVID-19 was raging in Europe,[3] only the Gbagbo and Goudé appeals hearing of May 2020 saw fruitful litigation on the modalities of convening virtually. The Blé Goudé defense requested that proceedings be postponed until the situation in the Netherlands improved enough for the acquitted to join physically but, in the end, the Appeals Chamber sided with the Prosecution and determined that hearing could proceed through video-link without either acquitted having to waive their right to be present.

The ICC’s decision demonstrates that there is a growing trend of judges ordering, on the basis of judicial discretion, the remote participation of accused persons during what it labels a force majeure. It also reinforces emerging recognition of remote participation as  an alternative form of presence rather than the equivalent of absence. However, the Chamber possibly only trod this path because physical presence is deemed less urgent in an appeal hearing, especially where no additional evidence is introduced. In fact, the Mladić Appeals Chamber at the MICT cited the ICC’s pronouncement in saying precisely this. It concluded that “the right to be present during appeal proceedings does not require a physical presence in the courtroom [] and can be satisfied through video-conference link” as these proceedings have a distinct nature to trial at the first instance. Extending such justification to the trial stage is, by and large, difficult.

A closer look at the ICC’s decision reveals yet another fundamental limit in exercising this discretion: ensuring that the accused participating remotely can nevertheless do so effectively. The Appeals Chamber emphasized the unique challenge of preparing the requisite technical infrastructure to facilitate a virtual hearing when some parties are joining from outside of the court’s seat given travel restrictions in place at the time.

Indeed, setting up video-link connections is logistically more challenging during a pandemic where mobility is restricted and parties are confined to their homes, especially members of the defense who normally operate remotely and far apart from one another. Hence, ordering this form of presence, even if possible, carries a real risk of the accused not being able to observe proceedings and have privileged communication with counsel as appropriate, effectively violating the right to be present. Being away from the court’s premises and its facilities likewise affects the type of technology feasible to connect through, its security, and reliability. Equally important factors to consider are the display of multiple media formats, such as images, audio files and video; provision of real-time transcripts and simultaneous translations; the accused’s ability to interact with the bench; and the ability to go into closed and open sessions.

The threshold of effective participation ultimately links us back to the proportionality metric; if remote participation creates a risk of unfairness that outweighs the need for it, including through the accused’s inability to participate effectively, it can be safely presumed that ordering it based on judicial discretion would not be appropriate, even if the option is available.[4]

Hence, how much latitude precisely would judges in future “pandemic trials” have to order remote participation remains to be seen, especially since recognition of this discretion has not been consistent. The human rights considerations and efficiency considerations that militate in favor of the modality, albeit unequivocal, may not fit into the tough realities of an actual trial.

Image: Convening in a courtroom fortified against COVID-19 with Plexiglas, the IRMCT Appeals Chamber dismissed the appeal of Marie Rose Fatuma, one of the original five defendants in Nzabonimpa et al., in June 2022. Source: Africa Press

[1] Article 21(4) of the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute, Article 20(4) of the ICTR Statute, and Article 19(4) of the MICT Statute. At the International Criminal Court (ICC), the right is not expressly provided under the Rome Statute or the Rules of Procedure as a result of an unsettled debate about whether the world’s permanent criminal court should be empowered to try perpetrators of the most heinous crimes in absentia. The ICC nevertheless enforces this right in practice.

[2] This position comports with several international criminal case law around that period, with the additional caveat that in case of a forfeiture, a judge may order for trial to proceed if it was the least intrusive measure to achieve the expeditious resolution of the case without compromising the accused’s fair trial guarantees. It must be proportional. See Prosecutor v. Stanišić and Simatović, Case No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision on Future Course of Proceedings, 16 May 2008, para. 16.

[3] The trials of Al Hassan Ag Abdoul Aziz and (started July 14, 2020), Ali Muhammad Ali Abd-Al-Rahman (started April 6, 2022), and Alfred Yekatom and Patrice-Edouard Ngaïssona (started February 16, 2021); the appeals hearings of Laurent Gbagbo and Charles Blé Goudé (June 22-24, 2020), and Bosco Ntaganda (October 12-14, 2020).

[4] This is precisely why in the Ntaganda appeals hearing, the ICC resorted to a postponement when it was not convinced of the court’s ability to simulate an in situ proceeding via technology during COVID-19, until a partially virtual hearing was ordered in September 2020, with Ntaganda still participating from the courtroom. See Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06 A A2 A3, Order regarding the hearing scheduled for 29 June – 1 July 2020, 5 June 2020.