Introduction
On February 11, 2002, due to medical complications related to a war injury, the accused Milan Simić from the International Criminal Tribunal for the former Yugoslavia (ICTY) chose to appear at trial from the detention centre through a one-way video-link system.1 This was the first time this technology was used to ensure an accused presence at an international criminal tribunal (ICT).2 In the years that followed, the ICTY’s practice gradually spread to other ICTs and hybrid tribunals, including the International Criminal Court (ICC).3
Fast-forward to almost 20 years later, in 2020, the challenges posed by the sanitary measures taken to fight against COVID-19 propelled the ICC to rely heavily on video-link technology to allow the presence of parties and participants, including, witnesses, counsels, judges, and naturally, the accused.4 Consequently, the contours and parameters of video-link usage were refined and broadened, enabling the ICC to use its discretionary powers to impose virtual participation on the accused. In response to this new practice, and in concert with various researchers and organisations around the world, ICC defence counsels have raised concerns regarding potential prejudices to the accused’s rights, particularly the rights to physical presence, effective participation, legal assistance, and communication with counsel.5 They argue that the physical distance and inherent audiovisual limitations of a video-link participation fall short of ensuring these rights.
Contradictorily, video-link can both facilitate – in the event of illness, as in the case of Milan Simić, for example– and hinder the accused presence and participation. In light of this dual nature, the purpose of this study is to investigate how the use of video-link technology to ensure the accused presence impacts – infringes or upholds – his fundamental rights. Given the limited scope of this paper and their relevance in the debates, this study focuses on the accused’s rights to presence and effective participation.
The article is divided into three sections. First, it briefly defines the legal framework related to the virtual presence of the accused. The second section explores how this practice impacts the accused’s rights building on ICC’s case law. In analysing the parties’ and judges’ arguments, this section will draw on a literature review concerning the use of video-link in court settings and relevant case law from ICTs and international human rights jurisdictions.6 The final section proposes solutions to ensure that the practice better respects the rights of the accused, based on international human rights law standards and the procedural justice theory.
Although the current post-pandemic period is characterized by a return to ‘normality’, with physical presence as the default rule, the increasing use of digital technologies in courtrooms and the appetite for their efficiency, cost-saving and practical benefits may well justify a return to a ‘virtual abnormal’. It is not far-fetched to imagine a more frequent virtual presence of the accused in the near future, as it is currently the case for witnesses through video-link testimonies.7
1. Virtual Presence: The Legal Framework
The ICC core texts contain various provisions enabling the accused to be present through video-link. The aim of the technology varies from one disposition to another, serving as both a means of accommodation for the accused and a measure to control proceedings.
The most relevant and frequently used provision concerns Rule 134 bis of ICC Rules of Procedure and Evidence (RPE), as amended in 2013, entitled ‘Presence through the use of video technology’.8 This Rule permits the accused to request a video-link to ensure its attendance. The Rule states that:
An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present through the use of video technology during part or parts of his or her trial.
The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question.
Although ostensibly circumscribed to accused persons subject to a summons to appear, case law has extended the application of this rule to encompass those subject to an arrest warrant who have been granted interim release.9 In these cases, the requests are typically grounded in practical considerations, as virtual participation avoids the expenses and time required for travel and securing travel documents.10 That being said, detained accused in The Hague are not entitled to avail themselves of this provision.
Similar to the above concerning the trial phase, Rule 124(3) provides that in cases where the accused waives its right to be present at the confirmation hearing ‘The Pre-Trial Chamber may authorize and make provision for the person to observe the hearing from outside the courtroom through the use of communications technology, if required’.11 In contrast with Rule 134 bis, from which the request is directed to ‘part or parts’ of the trial, Rule 124(3)’s waiver applies to the entirety of the confirmation of charges phase, in that the accused cannot ‘pick and choose the days he wishes to attend’.12 Therefore, if authorised, the accused would be attending the whole procedure remotely.
Due to the late adoption of Rule 134 bis,13 what remains uncertain, or somehow incoherent, is whether the request to be present through video-link during trial also requires a waiver of the right to presence. Nonetheless, since Rule 134 ter14 – concerning the complete excusal of the accused, physically and virtually – requires such waiver, it appears that an equivalent paragraph would have been added in Rule 134 bis at the time of the 2013 RPE’s amendment.15 In any case, it should be mentioned that the Chamber possesses discretionary power to authorise or not, this mode of participation.16
In addition to these requests, video-links can be used to control proceedings. Article 63(2) of the ICC Statute provides that when the accused is removed from the courtroom following disruptive behaviour, the Chamber ‘shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required’.17 It seems that this measure was only considered in the Ongwen case following his “severe and serious” disruptions during the testimony of an expert witness.18
Moreover, the accused’s virtual participation is implicitly provided for in the provisions allowing status conferences and sentence reduction review hearings to be held virtually.19 In these cases, it is assumed that all participants, including the accused, can attend the procedure by video-link.
Finally, it should be noted that there seems to be no provision in the core texts of the ICC allowing a Chamber to impose virtual participation on the accused without his consent (except in cases of disruptive behaviour).20 However, during the COVID-19 pandemic, virtual and hybrid hearings were made possible by virtue, seemingly, of the Court’s discretionary powers to ensure the diligent conduct of proceedings.21 As a result, it was made plausible that the accused could be forced to participate virtually.22 The implications of this emerging practice will be discussed in detail in the next section.
2. The Virtual Presence of the Accused: Case Law Developments
In the case law relating to the virtual participation of the accused at trial,23 concerns arose regarding respect for the accused’s rights in two situations: (a) when this form of participation is imposed without the consent of the accused and (b) when the chamber rejects the accused’s request to participate via video-link and instead order his physical presence. The next sections address these two situations in light of the accused’s rights to presence and effective participation.
a. Enforced virtual presence
As mentioned above, the COVID-19 pandemic has provided fertile ground for the emergence of a new practice: compelling the accused’s virtual participation. Inevitably, this possibility elicited apprehensions among defense counsels regarding the accused’s right to be present.24 Their submissions therefore challenged the ICC to re-evaluate the conception of this right.
i. The right to be physically present?
At the outset, it should be pointed out that while other ICTs have explicitly maintained that ‘an accused’s right to be tried in his or her presence implies a right to be physically present at trial’,25 the ICC has never expressly ruled on this question.26 To the same extent as its jurisprudence, the ICC Statute does not specify verbatim whether the right to presence equates to physical presence.27 However, recent case law, dating in part from COVID-19, suggests a leaning towards a particular interpretation.
A few months after the pandemic outbreak, and after weeks of proceedings being vacated, the Gbagbo and Blé Goudé Appeals Chamber provided an interpretation of the right to presence that would later allow the resumption of procedures. Based on the European Court of Human Rights (ECtHR) jurisprudence, the Appeals Chamber held that ‘participation by video link, in the context of appeals proceedings, is not per se contrary to the notion of a fair hearing’, adding that the virtual hearing modalities must however respect fair trial rights.28 Although this interpretation has been supported in a more general context by both ICTs and the ECtHR,29 the ICC Appeals Chamber nevertheless underlined that ‘this decision is limited to the situation it is currently facing, the Covid-19 pandemic and the particular nature of the appeals proceedings scheduled in this case; it is not making a determination on this issue in general’.30 In the absence of more complete case law, it is therefore uncertain whether the ICC would sustain such a ruling for the trial phase, or even for appeal proceedings in the current post-covid period.
Subsequently after the Gbagbo and Blé Goudé decision, a Trial Chamber proceeded with a status conference in the absence of the accused, notwithstanding his persistent and explicit refusal to waive his right to be present and to participate virtually.31 The Chamber had only allowed the accused to attend the hearing by video-link due to the health restrictions imposed by COVID-19 at the detention centre.32 Professor Kai Ambos interpreted this decision as proof that ‘[i]n terms of certain preparatory hearings, such as status conference hearings before the formal start of the trial, but strictly during the Trial phase, the Chamber is likely to take a more flexible approach [as to the applicability of the right and obligation to be present]’.33 However, as this decision was taken due to the exceptional circumstances that prevailed during the pandemic, this generalized interpretation still seems somewhat premature.
From these two situations, it appears that in cases of force majeure and during ‘civil’ or procedural hearings, enforcing virtual participation is consistent with the requirements of a fair trial. Outside of these specific circumstances, however, this practice would be contrary to the accused’s right to be present, understood as a right to physical presence. This interpretation is all the more supported by a more recent decision of a Trial Chamber to cancel a trial hearing because the accused had not waived his right to be present and was forced to attend virtually from the detention centre.34 In cancelling the hearing, the Chamber stressed the importance of the return of the accused ‘to be physically present in the courtroom’.35
While this author believes that the right to presence does indeed equate to physical presence, the fact that Rule 134 bis is entitled ‘Presence through the use of video technology’ and does not require a waiver of the right to presence could well imply that virtual presence is, in fact, a form of presence, therefore satisfying the guarantees of the right to be present.36 It is also interesting to point out that during the status conference discussed above, the judge, upon noting the absence of the accused, asked counsel if the latter ‘waived his right to be present via video link’.37 Following this line of interpretation, an inconsistency emerges in the normative framework relating to the definition and application of the right to presence: the core texts imply that virtual presence respects the right to presence, while the case law limits the technology’s usage to exceptional circumstances and certain hearings.
In the event that this second interpretation prevails, implying that virtual presence is consistent with the right to be present, the fact remains that the imposition of virtual participation runs the risk of prejudicing another right of the accused: the right to effective participation. Concerns over potential prejudice to this right have recently been raised by the parties,38 attributed in part to the physical separation between the accused and their counsel and to the audiovisual and technical limitations of video-link technology. These limitations are addressed below in (iii) following the exploration of the right to effective participation in (ii).
ii. Decoding the effectiveness of virtual participation
The ECtHR found that Article 6 of the European Convention on Human Rights guarantees, as a whole, ‘the right of an accused to participate effectively in a criminal trial’.39 According to this court, this right encompasses the right to be present, to hear and follow the proceedings.40 In the ICC’s core texts, effective participation is not included as an explicit right of the accused. However, judges have recognized that:
…from the catalogue of fair trial rights, contained in article 67(1) of the Statute, a number of relevant capacities can be discerned which are necessary for the meaningful exercise of these rights. [T]hey include the capacities: (i) to understand in detail the nature, cause and content of the charges; (ii) to understand the conduct of the proceedings; (iii) to instruct counsel; (iv) to understand the consequences of the proceedings; and (v) to make a statement.41
These criteria were developed in the case law relating to the concept of fitness to stand trial. This concept is rooted in the idea that ‘whenever the accused is, for reasons of ill health, unable to meaningfully exercise his or her procedural rights, the trial cannot be fair and criminal proceedings must be adjourned until the obstacle ceases to exist’.42 Although in these cases the ability to exercise procedural rights is generally affected by medical conditions, a Trial Chamber in the Ongwen case held that this concept ‘does not concern, in and of itself, whether [the accused] has particular medical conditions, but whether the accused is able to exercise effectively his fair trial rights in the proceedings against him irrespective of the existence of any such medical condition’.43 Thus, it seems that the above criteria relate more broadly to fair trial guarantees and are not confined to medical conditions. Put differently, and as interpreted by the ECtHR, the right to a fair trial could well be prejudiced if, after assessing these criteria, a Chamber finds that an accused is unable to meaningfully exercise his procedural rights, and that, irrespective of a determination on the existence or absence of a medical condition. In that sense, several circumstances would be likely to affect an accused’s effective participation, including the use of video-link technology to ensure his presence.
In this regard, and as partly cited by the Gbagbo and Blé Goudé Appeals Chamber mentioned above, the ECtHR held that an accused’s participation in a hearing via video-link, in both appeal and first instance proceedings, ‘is not as such contrary to the Convention’.44 Nevertheless, it specified that this measure must serve ‘a legitimate aim’ and its modalities must be ‘compatible with the requirements of respect for due process’.45 With regard to due process requirements, the ECtHR has attached particular importance to the need for the accused ‘to follow the proceedings and to be heard without technical impediments and have effective and confidential communication with a lawyer’.46 How do these limitations translate into practice?
iii. Video-link’s tech hurdles on the accused participation
Various studies have shown that technology can limit the accused’s understanding of the proceedings and thus harm the effectiveness of his participation.47 This effect is mainly due to the audio-visual and technical limitations of video-link technology. Poor sound quality, pixelated visual transmission, desynchronization of audio and visual information, and interruptions caused by network connection problems can affect an accused’s understanding of and participation at trial.48
In addition to these technical obstacles, in a study carried out by the Transform Justice organisation, several lawyers expressed concern that a defendant appearing by video-link would not be able to have an overview of the courtroom and the participants and therefore be unable to assimilate the general atmosphere and conduct of the proceedings.49 As the NGO Fair Trials observed, ‘video-conferencing systems could mean that defendants not only find it more difficult to follow and understand the proceedings, but that they are also prevented from observing the courtroom in its entirety’.50 At the ICC, the vision of an accused appearing via video-link is controlled by the camera operator, which chooses which participant to show and how, whether in close-up or wider view.51 His vision is therefore not guided by his senses or instincts.
As a result of this limited vision, the Organization for Security and Co-Operation in Europe stated that in remote hearings, video-link prevents virtual participants from picking up non-verbal cues.52 Several other studies also support this finding.53 In a survey carried out by Allen & Overy, 60% of participants affirmed ‘that the virtual environment impacted their ability to “read” witnesses, judges, or arbitrators’.54 Some of these respondents commented that ‘physical hearings involve “physical performance”, body language, facial expressions, volume of the voice’, which were missing in virtual settings.55 It is acknowledged that nonverbal cues are crucial to mutual understanding.56
It is worth mentioning that various researchers, organisations and health professionals have highlighted the exacerbation of these limits for vulnerable defendants.57 As pointed out by the NGO Fair Trials:
Defendants with mental impairments, in particular, face serious barriers to […] effective participation in most normal court settings. Depending on the defendant and the type of impairment, remote justice procedures could severely worsen these challenges, making it even more difficult for them to understand and follow court proceedings.58
During the COVID-19 pandemic, these concerns were raised by the Al-Hassan counsel at the ICC. As the accused is suffering ‘from post-traumatic stress syndrome with chronic dissociative features’, virtual participation was said to prevent gauging ‘his level of distress and [assessing] if he’s effectively participating or whether he’s coping by dissociating, by switching off’.59 In response to these arguments, the Trial Chamber recognized that ‘video-link presence is not automatically unfair or inappropriate, but depends on the nature of the hearing and the personal circumstances of the accused’.60
Building on the ICC case law, it appears that enforcing the virtual presence of a vulnerable accused during trial could very well be contrary to both the right to presence and the right to effective participation. On the other hand, during appeal proceedings and/or for exceptional reasons, compelling such participation on a “normal” accused does not generally run contrary to the right to participate effectively, nor to presence. It should be mentioned that other modalities, in addition to the personal capacities of the accused, such as confidential means of communication with counsel and simultaneous interpretation, would be required to ensure the accused effective participation.61 Without channels of communication with his counsel and the possibility of speaking and listening in a language he understands, it is difficult to envision the accused comprehending the proceedings and effectively participating in his trial.
Having examined the impacts of enforced virtual presence on the rights of the accused, we will shift our focus to the second situation, which relates to the refusal of virtual participation and enforcement of physical presence.
b. The accused’s ‘choice’ to participate virtually and the Chamber’s discretionary powers to order his physical presence
While raising concerns about respect for fair trial rights, video-link also has the potential to serve as a lever for these rights. This is achieved by granting an accused’s request to be present and participate in his trial via video-link, as regulated by Rules 124(3) and 134 bis. As there does not appear to be any case law available on the first rule, this section will focus solely on the second.
As discussed above, Rule 134 bis gives Chambers ‘significant discretion in deciding whether or not to grant the request’. 62 The assessment must be made on a case-by-case basis, ‘with due regard to the subject matter of the specific hearings in question’.63 Since its adoption in 2013, only a few chambers have been seized with Rule 134 bis requests and, in so doing, interpreted the rule.
While it is not textually addressed in the RPE, a Trial Chamber held that this Rule constitutes an exceptional measure, granted by the discretionary powers of the Court in cases of ‘compelling reasons’ put forward by the accused.64 The general rule is rather that ‘the accused be physically present during trial’.65 This interpretation results from a combined reading of Rule 134 bis and Article 63 of the ICC Statute,66 which provides for a duty incumbent on the accused to be present at his trial.67 It is worth mentioning that this interpretation – suggesting the existence of a duty to be present – has been the subject of extensive doctrinal and jurisprudential debate.68 Far from being settled, Chambers’ decisions and commentaries on the ICC Statute in recent years nonetheless seem to confirm the duty’s existence.69
Consequently, the ICC has on a number of occasions rejected the accused’s requests to attend hearings by video-link and instead ordered his physical presence. The reasons given included the seriousness of the crimes charged70 and whether ‘matters to be discussed at [the hearing] directly impact the interests of the accused, of victims and of witnesses’.71 Chambers have found that the interests of justice in these cases required the physical presence of the accused and could not justify a departure from the general rule.72 Regarding specifically the second set of reasons – on the matters to be discussed at the hearing – Professor Kai Ambos held that ‘the Court is likely to make an assessment based upon the values that the judges attribute to the presence of the accused at trial. These range from the legitimacy of the trial to the reliability of the evidence and the rights and interests of the parties and participants’.73 While the legality and validity of these reasons will be discussed in greater detail below, it should be acknowledged for the time being that the ICC draws a clear distinction between physical presence and presence via video-link, where certain circumstances are so critical as to require the accused to be physically present in the courtroom.
Irrespective of the court’s reasoning, the question that arises is whether requiring an accused to be physically present at his trial after he explicitly waives his right to be present constitutes a violation of this right. For this section, it is implied that the right to be present equates to physical presence and that Rule 134 bis requires such waiver.
i. A waiver’s terms and conditions of use
The possibility for the accused to voluntarily waive his right to be present was both recognised and allowed by ICC Chambers as ‘a settled proposition in international law’.74 Drawing on international treaty interpretation methods, a Trial Chamber accepted ‘that the drafters of the ICC Statute have indicated no clear intention to exclude this international legal norm from reasonably influencing the interpretation and application of the Statute in the relevant respect’.75 In the light of this interpretation and the abovementioned case law, a conflicting approach seems to emerge from the ICC’s jurisprudence: allowing the accused to voluntarily waive his right to be present, while simultaneously imposing a general obligation to physical presence. Dr. Caleb Wheeler commented on this contradiction:
Where a right and a duty overlap, the duty is necessarily dominant because it is compulsory. Put differently, if an accused has a right to decide whether or not he or she wishes to appear at trial, as well as a duty requiring his or her appearance, the right is extinguished, as it is optional, in favour of the duty, which is obligatory. If there is a duty to be present at trial, it could be argued that there is no right to be present. Clearly, that conclusion is not sustainable because the Statute of every international and internationalised criminal court and tribunal asserts that such a right exists.76
To remedy this inconsistency, Wheleer suggests interpreting the right to be present as ‘the right not to be excluded from trial if the accused wishes to attend’.77 Pursuant to this interpretation, a Chamber could order the physical presence of the accused without infringing on the right to presence, as the Chamber did not exclude the accused but instead ordered his presence. What could still be raised, however, is a possible violation of the right to waive the right to presence,78 as explicitly recognised by a Pre-Trial Chamber during the confirmation of charges phase.79 At trial, such waiver nonetheless appears to be understood as a possibility for the accused rather than a distinctive right owed to him by the Court.
Others might argue that forcing an accused to be physically present in disregard of his waiver constitutes a violation of the right to absence, as understood by Wiliam Schabbas: ‘The right to be present might also be taken to comprise, by necessary implication, a right to be absent’.80
In any case, if ordering an accused’s physical presence despite his waiver is in fact consistent with the right to presence, one could argue that a refusal to allow the accused to participate virtually could impede his right to effective participation. Understanding this assertion requires us to re-decode the effectiveness of virtual participation.
ii. Re-decoding the effectiveness of virtual participation
Although the intersection between enforced physical presence and effective participation has not yet been debated at the ICC, the defence counsel for Ieng Sary before the Extraordinary Chambers in the Courts of Cambodia (ECCC) raised a potential violation on this matter over 10 years ago. Following the ECCC’s order requiring the accused’s physical presence, counsel for Mr Sary appealed the decision and argued that ‘the Trial Chamber violated Mr Sary’s constitutionally protected and unqualified right to participate effectively in the proceedings against him’.81 Mr Sary’s medical conditions prevented him from being psychologically present and participating in his defence. It should be noted that these allegations were not examined by the Supreme Court Chamber, the appeal having been declared inadmissible on jurisdictional grounds.82
It is not far-fetched to imagine this debate arising at the ICC in parallel with Rule 134 bis’ developments. In the above-mentioned Transform Justice study, some accused testified that they preferred virtual participation for short hearings, one expressing that ‘Sometimes you feel that you are not part of it and it would be better to go [to court]. Other times it is a load of hassle and you think ‘what’s the point of going to court to wait around all day?’ It just depends on how things are going with your case but I think we should have some choice’.83 Such a preference, whether for practical, personal or other reasons, was also observed at the ICC in the Lubanga, Bemba and Kenyatta cases cited above.
3. The Way Forward: How to Reconcile Fair Trial Rights with Virtual Presence?
a. Waiver of the right to presence, not to participate
Presuming the right to presence is understood as the right to be physically present, it seems plain to posit that when the accused waives this right, he does not necessarily do so for his right to participate in his trial. Accordingly, when the accused waives his right to presence, the option to participate virtually should be considered by the Court as a minimal guarantee to ensure that the accused can meaningfully exercise his remaining fundamental rights. The need to ensure that the rights of the accused are fully ensured is in fact one of the required criteria to allow his excusal from presence at trial.84 It should be noted that the right to effective participation could not however be ensured through representation by counsel as it relates to the direct participation of the accused.85 Nevertheless, we are aware that this interpretation would in some way override Rule 134 bis and the discretionary powers of the Chamber, since an accused could waive his right to presence and request virtual participation, rendering refusal difficult at the risk of violating his right to effective participation.
On the other hand, if the right to be present is interpreted as a broader right involving both physical and virtual presence, and there is, as the above-mentioned ICC judge intended, a possibility for the accused to ‘waive his right to be present by video-link’, there would appear to be an available choice as to the preferred mode of participation. An accused could thus waive his right to physical presence or his right to virtual presence. Allowing the accused to choose his mode of participation would be premised on the assumption that the accused bases his choice on what he feels is best to effectively participate in his trial, according to his physical and psychological capacities at the time, and the nature of the hearing.
This author maintains that allowing the accused to choose more freely how he participates, whether physically in the courtroom or by video-link, would reinforce the fairness of the proceedings and the legitimacy of the ICC. The idea stems from the theory of procedural justice, which states that ‘procedural fairness is not just a matter of checking whether all (legal) procedural rules have been respected but is mainly related to the question whether people perceive they have been treated fairly’.86 Accordingly, assessing the fairness of the procedure depends on how it is perceived and experienced by the participants.87 A number of research have established close links between this perception and the trust placed in justice, in the sense that participants’ experience and perception of their treatment by judges will influence their trust in justice, judges and the final judgement.88 A Dutch study has identified six components that influence this perceived procedural justice, among them interpersonal treatment and due consideration.89 This last component refers to judges active listening and consideration of the accused’s story and counsel’s arguments.90 Based on these studies, it could very well be argued that the accused’s willingness to participate in his trial physically or via video-ink for reasons of physical or psychological ability to listen, follow and understand the proceedings could form part of this component and affect the perception of the fairness of the proceedings when such a request is denied. In fact, it is not unreasonable to imagine that imposing a particular mode of participation for which the accused has explicitly expressed that it would not enable him to participate effectively will affect his perception of procedural fairness and his confidence in the judicial system.91 While, for the time being, these concerns have only been raised in relation to enforced virtual presence – and not enforced physical presence –, a situation similar to that of Ieng Sary may well arise in the near future. In our opinion, the rationale for refusing virtual participation should be reviewed.
b. Refusal of remote participation
If, once again, the right to presence equates to physical presence, then a refusal of waiver – understood as the first step in rejecting a video-link request – should, in our view, only be justified for reasons of important public interest, in accordance with ECtHR case law.92 When refusing a waiver, the respect for the right to presence is said to go beyond the person directly concerned – the accused – requiring the court ‘to set aside an intelligent and unconstrained will to waive rights, and so act “paternalistic”’.93 Therefore, the question remains as to ‘whether it nevertheless may be considered unfair (or in contravention with “important public interests”) to proceed without [the accused]’, when accepting the waiver.94 According to Jørgen Aall, such important public interests could include considerations for ‘the character of the case and especially gravity of the sanction’ as well as proceedings that require ‘a full and satisfactory illumination of the factual aspects of the case’.95 However, Aall argues that even in these instances it would be difficult to refuse a waiver to presence when the accused is represented by his counsel, as it ensures procedural fairness and satisfies public interests ‘such as efficiency, diligence and confidence in the courts’.96
This approach reflects the opinion of ICC judge Cuno Tarfusser:
What matters, for the conduct of the trial, is that the accused be duly represented by counsel and has consented to waive its right to be present. Not only is this reading, in my view, perfectly consistent with the wording of Article 63(1) of the Statute, read in light of Article 67(1)(d), but it is the only one allowing for a meaningful application of the provision without virtually transforming it into a sort of “arrest” for any accused not detained and not having his permanent residence in The Hague.97
These considerations also apply in cases where the prevailing interpretation is that participation via video-link constitutes presence. If Rule 134 bis equates physical and video-link presence, what is the rationale justifying that the latter be an exception? Even if Chambers have previously made pronouncements on the existence of a general rule to physical presence, Article 63(1) of the ICC Statute does not distinguish any form of presence. Moreover, reasons outlined by the ICC to oblige physical presence do not clearly explain how they could not reasonably be achieved with the accused attending via video-link.98 In that regard, reasons given by an Appeals Chamber to explain the importance of the accused’s presence could, in our view, apply equally to physical and virtual presence. These reasons included: “the central role of the accused person in proceedings and the wider significance of the presence of the accused for the administration of justice”; the importance for the accused “to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions”; the possibility to have “the fullest and most comprehensive record of the relevant events” obtained “through the process of confronting the accused with the evidence against him or her”; the “impact on the morale and participation of victims and witnesses”; and the promotion of “public confidence in the administration of justice”.99
Regardless of the fact that these reasons can be fulfilled with virtual presence, it is worth calling into question the rationale behind these assumptions. With regard to the central role of the accused, notably to confront the evidence, Dire D Tladi opines that these concerns are directly linked to the protection of the accused’s rights, which he can waive or, as mentioned above, be guaranteed by his counsel.100 This is also valid for reasons related to the matters to be discussed at the hearing, which include evidence issues. As for the arguments on victims and witnesses, Tladi argues that ‘The Rome Statute contains an elaborate set of provisions to ensure a victim-sensitive process. The presence of the accused at court is not mentioned as an element of victim protection and participation’.101 Finally, regarding justifications touching upon the integrity of the ICC, the public confidence or more broadly the interests of justice, international criminal judges themselves have acknowledged that such assumptions are not supported by empirical evidence and are pure conjunctures.102 Tladi added that these justifications suggest ‘that the presence of the accused is for show rather than the result of any real legal necessity’.103 It seems in fact that what the court is looking for in forcing the accused to be physically present is to exact retribution. As expressed by Ieng Sary’s counsel, in ordering the physical presence of the accused despite his desire to participate remotely on the grounds of public expectations, ‘the Trial Chamber has treated Mr. IENG Sary not merely as an object, but as an object of curiosity, on show and on stage to satisfy the retributive desires of the gallery, seemingly regardless of the deleterious impact of this conduct on the fairness of the trial and the legitimacy of ECCC as a whole’.104
c. Ensuring proportionate limitations to the right to presence
The second situation of interest is where the accused is forced, without his consent, to participate virtually in the hearings, highly representative case figures from the COVID-19 pandemic. What the author is proposing here is not significantly different from what appears to be the ICC’s current approach, but rather to ground it in a clear justification derived from a fundamental principle used by many jurisdictions to examine a restriction on a fundamental right: the principle of proportionality. This principle was used by ICTs and the ECtHR with regard to the use of video-link to ensure the accused presence at trial as well as by the ICC in distinctive situations.105 As established by ICTs, requiring the virtual presence of the accused, without his consent, constitutes a limit to a statutory guarantee, in this case, the right to presence, which consequently ‘must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective’.106
i. Sufficiently important objective
In most recent ICTs’ jurisprudence, the International Residual Mechanism for Criminal Tribunals (Mechanism) ruled that the expeditious conduct of proceedings constituted an important objective justifying the use of video-link to ensure the presence of the accused. The Mechanism considered the four-week period that had elapsed since the scheduled resumption of proceedings, caused by the accused’s medical condition, as well as his anticipated recovery time.107 It should be noted that in the past, delays of up to six months had been assessed as not reaching ‘a level that was so substantial as to warrant derogation from the fundamental right of the Accused to be present at trial’.108
In the Marcello Viola c Italie et Asciutto c. Italie case in the ECtHR, the aims pursued by the use of the video-link technology included ‘prevention of disorder, prevention of crime, protection of witnesses and victims of offences in respect of their rights to life, freedom and security, and compliance with the “reasonable time” requirement in judicial proceedings’.109 In the absence of more comprehensive case law, it remains uncertain whether these objectives, taken on their own, including considerations of judicial economy, would be sufficient to justify the use of video-link, as found by the Mechanism.110
In our opinion, situations such as the COVID-19 pandemic, which prevents the resumption of in-person hearings, coupled with significant delays, as well as objectives aimed at the safety of victims and witnesses, could constitute some of these important objectives.111 Nevertheless, procedural safeguards must be protected and technical conditions must be guaranteed to ensure that video-link, whatever the technological development underway, does not affect the rights of the accused any more than necessary.
ii. The video-link participation modalities
Certain conditions relating to the use of video-link to ensure the accused’s presence are essential to the proportionality of the restriction and respect for the accused’s remaining rights. In that regard, it goes without saying that in cases where the accused attends via video-link, remotely from his counsel, free and confidential means of communication must be provided to ensure his right to communication.112 In addition, consideration should be given to ensuring that the accused does not appear in a prejudicial manner that could impact his right to the presumption of innocence.113 The services of an interpreter must also be guaranteed in accordance with article 67(1)(f) of the ICC Statute.
Finally, the use of video-link should ensure the effective participation of the accused.114 Several aspects need to be considered, including ‘whether an accused’s physical and mental state allows for effective participation via videoconference link’,115 taking into account the accused personal conditions and any vulnerabilities,116 as well as technological features, such as camera settings and network connections. All these aspects are crucial to the general understanding of the proceedings and, consequently, to the effective participation of the accused.117 Given the effects of ‘Zoom fatigue’,118 more frequent breaks during the hearing could also be considered. Simultaneously, these breaks would be useful for communication between the accused and his counsel. Although live transcripts of the proceedings are not a right of the accused, they should be provided to facilitate his understanding of the proceedings.119
Conclusion
Prompted by the COVID-19 pandemic, the use of video-link to ensure the accused’s presence has exposed grey areas in the ICC case law related to the rights to presence and effective participation as well as the accused’s duty to presence. It appears that without a clear definition of the right to be present, the ICC has more leeway to enforce the virtual presence of the accused (e.g. if virtual presence constitutes a form of presence by virtue of Rule 134 bis). By leaving vague the contours and interactions between the right and duty to be present, the ICC also retains broad discretionary power to impose physical presence, justified on debatable grounds of legal necessity and overriding the recognized international legal norm of waiver.
To address these uncertainties, a careful approach rooted in international human rights law and the theory of procedural justice is warranted to protect the accused’s fundamental rights. This paper posits that the focus of the discussion on virtual presence should prioritize the effective participation of the accused, closely tied to the right to be present at trial. Emphasizing this right allows video-link to serve as a lever for fair trial rights, especially when the accused prefers this form of participation based on his physical and psychological abilities to follow and comprehend proceedings.
This paper aims to contribute to the debate by highlighting the ambiguity in case law and to encourage the ICC to clarify the boundaries of the rights to presence and effective participation. While this paper suggests a generalized shift towards virtual presence is not imminent, with physical presence remaining the general rule, video-link is a permanent feature of the ICC’s practice, and its use is not on the verge of disappearing. This paper advocates for a more informed and cautious approach to integrating this technology with due respect for fair trial rights.
Notes
[1] Compared to video-link today, this system did not allow participants in the courtroom to see or hear the accused. This system is similar to one-way closed-circuit television. Sentencing Judgement, Simic (IT-95-9/2), Trial Chamber II, 7 October 2002, para 8, fn 18; Transcript, Simic (IT-95-9/2), 11 February 2002, 5586 line 2.
[2] Caleb H Wheeler, The Right to Be Present at Trial in International Criminal Law (Brill Nijhoff, 2018) 227.
[3] At the start of the Extraordinary Chambers in the Courts of Cambodia’s work in 2007, nearly 30 years had passed since the Cambodian Genocide, leaving elderly accused to face justice. In having to deal repeatedly with fitness to stand trial issues, the Chambers amended its Internal Rules to allow video-link presence and built equipped holding cells in the courtroom building. Phillips, RL ‘Frail Accused and Fitness to Stand Trial’ in Simon M Meisenberg and Ignaz Stegmiller (eds) The Extraordinary Chambers in the Courts of Cambodia: assessing their contribution to international criminal law (Asser Press 2016) 466; See also Rule 134 bis ICC RPE.
[4] Elizabeth R. White, ‘Towards a New Normal: Digitization of International Criminal Law in the Age of Coronavirus’ (2022) 60 Colum J Transnat’l L Bulletin 1, 16.
[5] Defence submissions on the scheduled oral hearing, Ntaganda (ICC-01/04-02/06), AC, 5 May 2020 (Ntaganda Submissions); Version publique expurgée de la ‘Réponse de la Défense à la « Prosecution’s request for the trial be held partially in Bangui’, Said (ICC-01/14-01/21), Trial Chamber VI, 14 June 2022; Public Redacted Version of ‘Blé Goudé Defence Urgent Request for Postponement pursuant to Article 67 of the Statute’, Gbagbo and Blé Goudé (ICC-02/11-01/15), AC, 6 May 2020 (Blé Goudé Request); Dorris de Vocht, ‘Trials by video link after the pandemic: the pros and cons of the expansion of virtual justice’ (2022) 8 China-EU LJ 33; International Commission of Jurists, Videoconferencing, Courts and COVID-19 Recommendations Based on International Standards (2020) 14; Penelope Gibbs, Defendants on video – conveyor belt justice or a revolution in access? (Transform Justice, 2017); Fair Trials, Safeguarding the Right to a Fair Trial During the Coronavirus Pandemic: Remote Criminal Justice Proceedings (2020); Transcript, Al-Hassan (ICC-01/12-01/18-T-015), 30 June 2020, 38 lines 3–25 (Transcript, Al-Hassan).
[6] Recourse to the case law of international human rights law jurisdiction is justified by the interpretative technique of jurisdictional dialogue used by the International Criminal Court (ICC), as well as by its statutory and regulatory provisions governing applicable sources of law. Silviana Cocan, ‘Le dialogue entre juridictions et quasi-juridictions internationales de protection des droits de la personne – L’exemple de la prohibition de la torture et autres peines ou traitements cruels, inhumains ou dégradants’ (DPhil thesis, Université Laval 2019) 32–33, 217; Art 21 ICC Statute (ICCSt).
[7] Abraham Haileamlak, ‘Pandemics Will be More Frequent’ (2022) 32 Ethiop J Health Sci 228; Decision on the Use of Audio-Video Link Technology, Said (ICC-01/14-01/21-464), Trial Chamber VI, 4 August 2022.
[9] ibid. See Kai Ambos, Rome Statute of the International Criminal Court: Article-By-Article Commentary (Beck, 2022) 4002; Decision on Defence Request for the Accused to Attend the Closing Statements via Video Technology, Gicheru (ICC-01/09-01/20-334), Trial Chamber III, 13 June 2022, para 6 (Gicheru Closing Statements).
[10] Request for Leave for Mr. Gicheru to Appear Remotely during the Closing Statements, Gicheru (ICC-01/09-01/20-330), Trial Chamber III, 9 June 2022, 3.
[12] Decision on the ‘Defence Request pursuant to Rule 124(1) for Mr. William Ruto to Waive his Right to be Present for part of the Confirmation of charges Hearing’, Ruto et al. (ICC-01/09-01/11-302), Pre-Trial Chamber II, 29 August 2011, para 12.
[13] The RPE was amended on 27 November 2013 by Resolution ICC-ASP/12/Res.7, adding, among others, rules 134 bis, ter and quarter.
[14] ‘The Trial Chamber shall only grant the request if it is satisfied that: […] (c) the accused has explicitly waived his or her right to be present at the trial’: Rule 134 bis ICC RPE.
[15] If Rule 134 bis does not in fact require such a waiver, it could be argued that in line with these most recent rules, a waiver would not be required either to permit the accused to appear by video-link at the confirmation of charges.
[16] Rule 124 and 134 bis and provide that the chamber ‘shall rule on the request’ and ‘may authorize’ the use of the technology.
[18] Tom Maliti, Judges Remove Ongwen from Court for Disrupting Hearing (International Justice Monitor, 19 March 2018) <www.ijmonitor.org/2018/03/judges-remove-ongwen-from-court-for-disrupting-hearing/> accessed 25 October 2023. It should be emphasized that this measure should only be taken in exceptional circumstances, and following a warning given by the Presiding Judge. See Art 63(2) ICCSt; Rule 170 ICC RPE.
[20] Although the abovementioned provisions on status conferences do not mention any consent requirements, current case law does not support such interpretation.
[22] Although some other participants were also required to participate virtually, they are not entitled to a right to physical presence at trial. Furthermore, while it can be argued that conducting these hearings in a virtual or hybrid mode ensured the diligent pursuit of proceedings and, consequently, upheld the accused’s right to be tried without undue delay, defense counsel emphasize that ‘the expeditious conduct of proceedings is, first and foremost, a right of the accused and should not be used to the accused’s detriment.’ In essence, this right should not be used to curtail other rights of the accused, including the right to be physically present in court. During COVID-19, a solution suggested by See Jennifer Naouri and Dov Jacobs, ‘Reflecting on the Rights of the Defense at the International Criminal Court: the Importance of Ensuring Fair Trials to Deliver Exemplary Justice’ in Carsten Stahn (eds), The International Criminal Court in Its Third Decade (Brill, Nijhoff, 2023), 246–247.
[23] This article will use the term ‘trial’ in a broad sense to include proceedings starting from the accused first appearance to sentencing judgment, for which the accused rights apply. See Public redacted version Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court, Gbagbo (ICC-02/11-01/11-293), Pre-Trial Chamber 1, 2 November 2012, para 44 (Decision on the fitness of Laurent Gbagbo).
[25] Decision on Interlocutory Appeal, Zigiranyirazo (CTR-2001-73-AR73) AC, 30 October 2006, para 13; Decision on Defence Appeal of the Decision on Future Course of the Proceedings, Stanisic and Simatovic (IT-03-69-AR73.2) AC, 16 May 2008, para 6; Mladic Decision (n 24) [15–17] (Stanisic and Simatovic Decision) emphasis added.
[26] Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18 June 2013 entitled Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, Ruto and Sang (ICC-01/09-01/11-1066), AC, 25 October 2013, paras 47–56 (Judgment on the appeal).
[28] Decision vacating the hearing before the Appeals Chamber, Gbagbo and Blé Goudé (ICC-02/11-01/15-13522), AC, 22 May 2020, para 9 (Decision vacating the hearing).
[29] Decision on the Scheduling of the appeal Hearing and a Status Conference, Mladic (MICT-13-56-A), AC, 17 July 2020, para 16 (Mladic Decision); Asciutto v. Italy App no 35795/02 (ECtHR, 2007), paras 62–72; Council of Europe, ‘Key Theme – Article 6 (criminal) Hearings via video link’ (last updated 28 February 2023) <ks.echr.coe.int/documents/d/echr-ks/hearings-via-video-link> accessed 26 October 2023 (Council of Europe, ‘Key Theme’).
[31] Transcript, Yekatom and Ngaïssona (ICC-01/14-01/18-T-012-ENG), Trial Chamber V, 9 July 2020, 3 lines 1–25, 4 lines 1–14 (9 July 2020 Transcript).
[34] Transcript, Yekatom and Ngaïssona (ICC-01/14-01/18-T-184-Red2-ENG), Trial Chamber V, 5 December 2022, 17 lines 7–25, 28 line 8 (5 December 2022 Transcript).
[36] Rule 134 ter (2)(c) and Rule 134 quarter (1) ICC RPE. It does not seem that a waiver was provided nor ordered by the chamber in these two cases: Gicheru Closing Statements (n 9); Decision on Defence Request for Mr Gicheru to Attend the First Status Conference via Video Technology, Gicheru (ICC-01/09-01/20-169), Trial Chamber III, 3 September 2021 (Gicheru Status Conference); Caleb H Wheeler (n 2) 231.
[38] Prosecution’s response to ‘Blé Goudé Defence Urgent Request for Postponement pursuant to Article 67 of the Statute’, Gbagbo and Blé Goudé (ICC-02/11-01/15-1341), AC, 8 May 2020, paras 22–23 (Prosecution’s response to Blé Goudé Defence); 5 December 2022 Transcript (n 29) 17 line 10; Transcript, Al-Hassan (n 5) 29 lines 20–21, 39 line 10; Ntaganda Submissions (n 5) [20–21].
[39] Council of Europe, ‘Guide on Article 6 of the European Convention on Human Rights’ (as updated on 31 August 2022) <www.echr.coe.int/documents/d/echr/guide_art_6_criminal_eng> accessed 26 October 2023, para 153 (Guide on Article 6).
[43] Decision on the Defence Request to Order a Medical Examination of Dominic Ongwen, Ongwen (ICC-02/04-01/15-637-Red), Trial Chamber IX, 16 December 2016, para 13; Decision on Further Defence Request for a Medical Examination, Ongwen (ICC-02/04-01/15-1622), Trial Chamber IX,1 October 2019, para 14.
[44] Council of Europe, ‘Key Theme’ (n 24); Asciutto v. Italy (n 24); Marcello Viola v. Italy App no 45106/04 (ECtHR, 2006) para 67.
[46] Council of Europe, ‘Key Theme’ (n 24); Grigoryevskikh v. Russia App no 22/03 (ECtHR, 2009) para 83.
[47] Fair Trials, (n 5) 6; Jérôme Leborne, ‘La vidéojustice: la justice pénale à l’ère de la video’ (2021) 13 Cahiers Droit, Sciences & Technologies 93.
[48] Penelope Gibbs (n 5) 8; David Tait et al., Towards a distributed courtroom (Western Sydney University, 2017) 25; Fair Trials (n 5) 6; Emma Rowden et al., Gateways to Justice: design and operational guidelines for remote participation in court proceedings (University of Western Sydney, 2013) 3.
[51] Regulation 41 ICC Regulations of the Registry; Defence Appeal Brief against the “Decision on the Use of Video-Link Technology” (ICC-01/14-01/21-442) delivered on 4 August 2022, Said (ICC-01/14-01/21-464-tENG), AC, 29 August 2022, para 45.
[52] Organization for Security and Co-Operation in Europe, The functioning of courts in the Covid-19 pandemic (2020) 24.
[53] David Tait et al. (n 46) 7; Fair Trials (n 5) 6; George Philp, Listening and Responding to the Future of Virtual Court: A Report on the future of virtual courts in Canada (Nova Scotia Court of Appeal Cowan Internship Project, 2022) 101–103; Christina Peristeridou and Dorris de Vocht, ‘I’m not a cat! Remote criminal justice and a human-centred approach to the legitimacy of the trial’ [2023] Maastricht Journal of European and Comparative Law 3–4; Dorris de Vocht, ‘Trials by video link’ (n 5); Jane Donoghue, ‘The Rise of Digital Justice: Courtroom Technology, Public Participation and Access to Justice’ (2017) 80 Mod L Rev 995, 1007–09.
[54] Allen & Overy, A&O Cross-Border Surveys on Virtual Hearings (2020) 20.
[56] Leslie Ellis and Giacomo Rojas Elgueta, ‘The Psychology of Remote Hearings’ in Does a Right to a Physical Hearing Exist in International Arbitration? (The ICCA Reports No. 10, 2022) 174–175.
[57] Kresimir Kamber, ‘The Right to a Fair Online Hearing” (2022) 22 Human Rights L Rev 1 8–9; Fair Trials (n 5) 8; Penelope Gibbs (n 5) 24.
[60] Public redacted version of Decision on Defence Adjournment Request, Al Hassan (ICC-01/12-01/18-940-Red) Trial Chamber X, 2 September 2020, para 38 (Al Hassan Decision).
[61] Decision rescheduling the hearing before the Appeals Chamber, Gbagbo and Blé Goudé (ICC-02/11-01/15 A) AC, 17 June 2020, para 18 (Decision rescheduling).
[64] Decision on ‘Motion for Severance or, in the Alternative, Adjournment or Appearance Pursuant to Rule 134bis of the Rules, Bemba et al. (ICC-01/05-01/13-1269), Trial Chamber VII, 18 September 2015, para 21 (Decision on ‘Motion for Severance’).
[68] Caleb H Wheeler (n 2); Dire D Tladi, ‘Presence of the Accused: Right or Duty? The Art of Interpretation in a Tense Political Climate’ in Charles Chernor Jalloh and Ilias Bantekas (eds), The International Criminal Court and Africa (OUP 2017).
[69] Public redacted version of the Decision on Mr Gbagbo’s Detention, Gbagbo and Blé Goudé (ICC-02/11-01/15-1038-Red), Trial Chamber I, 25 September 2017, para 72; Wiliam Schabas, The International Criminal Court: a commentary on the Rome Statute (OUP 2016) 962; Caleb H Wheeler (n 2) 22.
[70] Considering that even offences against the administration of justice are ‘quite serious and […] goes to the integrity of the Court’s judicial process’. Decision on ‘Motion for Severance’ (n 62) [23].
[71] Decision on Defence request for excusal from attendance at, or for adjournment of, the status conference scheduled for 8 October 2014, Kenyatta (ICC-01/09-02/11-960), Trial Chamber V(b), 30 September 2014, paras 19–20 (Kenyatta Decision); Judge Kuniko Ozaki also considered that for hearings where evidentiary issues would be discussed ‘the physical presence of the accused may be of particular benefit’: Partially Dissenting Opinion of Judge Kuniko Ozaki on Kenyatta Decision, Kenyatta (ICC-01/09-02/11-960-Anx), Trial Chamber V(b), 30 September 2014, para 4. See also Decision on the Request of the Defence for Thomas Lubanga Dyilo seeking his Appearance via Video-Link at the Hearings of 11, 13 and 14 October 2016, Lubanga (ICC-01/04-01/06-3243-tENG), Trial Chamber II, 6 October 2016, para 12, where the content of the hearing had some bearing in ruling that Lubanga presence – physical and virtual – was not required.
[72] On the other hand, Chambers have granted requests under Rule 134 bis taking into account not only the nature of the hearing, but also its duration and the fact that the prosecutor did not object. Gicheru Closing Statements (n 9) paras 7, 10; Gicheru Status Conference (n 34) para 6.
[73] Kai Ambos (n 9) 4006, 4012. In ruling on a Prosecutor’s request to hold initial trial proceedings in Bangui while the accused would follow via video link from The Hague, the Chamber stated that ‘the physical presence of the accused […] is central to realising the objective of bringing the judicial process closer to the affected communities’: Public Redacted Version of Decision on the Prosecution’s Request for the Trial to be Held Partially in Bangui, Said (ICC-01/14-01/21-389-Red), Trial Chamber VI, 5 July 2022, para 13.
[74] Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, Ruto and Sang (ICC-01/09-01/11-777), Trial Chamber V(a), 18 June 2013, para 37 (Decision on Mr Ruto’s Request). See also Judgment on the appeal (n 32) [51] fn 97.
[77] ibid 30–31. This interpretation was implicitly endorsed by the Appeals Chamber in the Ruto and Sang case, when it held that the purpose of adopting Article 63(1) was to reinforce Article 67(1)(d) and avoid an interpretation of the right to be present « that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial »: Judgment on the appeal (n 32) [54].
[78] Jørgen Aall, ‘Waiver of Human Rights: Waiver of Procedural Rights According to ECHR Article 6 (Part III/III)’ (2011) 29 Nordic J of Human Rights 206.
[79] Transcript, Confirmation of Charges Hearing, Katanga (ICC-01/04-01/07-T-46-ENG ET) Pre-Trial Chamber, 11 July 2008, 23, lines 23–25; 24, lines 1–10.
[81] Ieng Sary’s Appeal Against the Trial Chamber’s Decision Denying Its Right to Waive Its Presence in the Courtroom During Trial And Denying Its Constitutional Right To Assist in Its Own Defence, Case 002 (E130/4/1), Supreme Court Chamber, 5 January 2012, para 1 (Ieng Sary’s Appeal).
[82] Decision on Ieng Sary’s Appeal Against Trial Chamber’s Order Requiring His Presence in Court, Supreme Court Chamber, Case 002 (E130/4/3), Supreme Court Chamber, 13 January 2012, 2.
[86] Christina Peristeridou et Dorris de Vocht (n 51) 7; Lisa Francine Myriam Ansems, Procedural Justice on Trial: A Critical Test of Perceived Procedural Justice From the Perspective of Criminal Defendants (Utrecht University, 2021) 3.
[91] It is interesting to note that this issue also raises concerns on the victims’ side. The Common Legal Representative in the Kenyatta case argued that the physical presence of the accused was an ‘integral part of the victims’perception of a fair trial’. Victims’ response to ‘Defence Request for Excusal from Attendance pursuant to Rule 134 quater or to Adjourn the Status Conference Scheduled for 8 October 2014 and Permit Mr Kenyatta to Attend on a Rescheduled Date by Means of Video link pursuant to Rule 134 bis’, Kenyatta (ICC-01/09-02/11) 29 September 2014, para 13.
[92] Scoppola v. Italy (No. 2), App no 10249/0317 (ECtHR, 2009) para 135. See its recognition by the ICC in Judgment on the appeal (n 32) fn 97.
[97] Dissenting Opinion of Judge Cuno Tarfusser, Gbagbo and Blé Goudé (ICC-02/11-01/15-846-Anx), Trial Chamber I, 10 March 2017, para 23.
[98] As discussed above, these reasons encompass the subject matter of the hearing, whether it affects the interest of the accused, victims, and witnesses, the duration of the hearing, the opinion of the prosecutor, the severity of the crimes and their impact on the integrity of the Court.
[99] Judgment on the appeal (n 32) [49]; Joint Dissenting Opinion of Judge Luz Del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa, Al Bashir (ICC-02/05-01/09-397-Anx2), Appeals Chamber, 6 May 2019, para 65.
[102] Decision on Mr Ruto’s Request (n 72) [73]. See also Decision on Request for In Absentia Procedure and Other Matters Related to the Legal Representation of the Accused and Their Presence at Trial, S.A.L and Al Amin (STL-14-06/PT /CJ) Contempt Judge, 11 February 2016, paras 54, 60–61; Caleb H Wheeler (n 2) 30.
[105] Decision on Interlocutory Appeal (n 31) [14]; Stanisic and Simatovic Decision (n 31) [6]; Mladic Decision (n 24) [15–17]; Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, Milosevic (IT-02-54-AR73.7), AC, 1 November 2004, para 17; Marcello Viola v. Italy (n 42) [67]; Guide on Article 6 (n 37) para 59; Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence, Lubanga (ICC-01/04-01/06-108-Corr), Trial Chamber I, 20 May 2006, para 13, fn 10.
[106] Decision on Interlocutory Appeal (n 31) [14]; Stanisic and Simatovic Decision (n 31) [6]; Marcello Viola v. Italy (n 42) [67].
[107] Decision on the Conduct of Trial Proceedings, Kabuga (MICT-13-38-T), Trial Chamber, 13 February 2023, para 21.
[112] Fair Trials, (n 5) 6; Prosecution’s response to Blé Goudé Defence (n 36) [22–23]; Ntaganda Submissions (n 5) [20–21]. Regulation 47 of ICC Regulations of the Registry provides that ‘a direct telephone connection between the [accused] and their counsel shall be established in addition to the normal connection’.
[114] Prosecution’s response to Blé Goudé Defence (n 36) [22–23]; 5 December 2022 Transcript (n 29) 17 line 10; Transcript, Al-Hassan (n 5) 29 lines 20–21, 39 line 10; Ntaganda Submissions (n 5) [20–21].
[115] Consolidated Decision on The Continuation of Proceedings, Hadžić (IT-04-75-T), Trial Chamber, 25 October 2015, para 61.
[117] Penelope Gibbs (n 5) 18, 26; Organization for Security and Co-Operation in Europe (n 53) 25–26; Leslie Ellis and Giacomo Rojas Elgueta (n 54) 173–175.
[118] Refers to the loss of engagement of participants in a videoconference caused by mental exhaustion due to a long period of more or less passive observation on a screen: Jennifer A. McCabe, ‘Exploring perceptions of cognitive load and mental fatigue in pandemic-era zoom classes’ (2023) American Psychological Association 1, 5,10.
Competing Interests
The author has no competing interests to declare.