How can we judge those who escape justice?
OPINION. The International Criminal Court is unable to try high political figures, under arrest warrants, without their physical presence. This limits its action. Although, a recent development could help change the current system.
Last week, the Office of the Prosecutor of the International Criminal Court (ICC) requested that arrest warrants be issued in relation to the situation in Palestine, against the leader of Hamas and the Israeli Prime Minister, among others. Political pressure and other threats attempting to dissuade Karim Khan from requesting these warrants were ignored. The Prosecutor of the ICC stated, when announcing his decision: “Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my office and the court. This is how we will prove, tangibly, that the lives of all human beings have equal value.”
It is to be noted that Karim Khan is a rigorous jurist. He has also surrounded himself with the best in the field, including American lawyer Brenda Hollis, and has taken the unprecedented step of having his decision reviewed by a panel of experts, including the former Israeli-American judge Theodore Meron, who was the president of the Tribunal for the former Yugoslavia.
On the war in Ukraine, the Council of Europe is working on preparations for a “special tribunal” to judge Russia’s “crime of aggression” against Ukraine, since the ICC is not competent to investigate this crime committed in Ukraine, as Russia has not ratified its statute. Here too, the question of judging alleged perpetrators of international crimes in their absence may one day arise.
This situation could also have arisen in Switzerland in the cases of Khaled Nezzar, the former Minister of Defense of Algeria, and Rifaat al-Assad, the former Vice-President of Syria, both of whom have been indicted by the Federal Criminal Court with no guarantee that they will appear for their trial. Khaled Nezzar died on December 29, 2023, a few days after the dates of his trial were announced. As for Rifaat al-Assad, soon to be 87, recent rumors have spread about his presumed death, but these have not yet been confirmed.
Whether a court can try someone for mass crimes in their absence is a crucial question. For obvious reasons, it is often difficult to obtain the arrests of high-level suspects.
A few weeks ago, the Special Criminal Court in Bangui, a hybrid jurisdiction made up of Central African magistrates, issued an international arrest warrant for former President of the Central African Republic, François Bozizé, for his alleged responsibility in crimes against humanity. However, he lives in Guinea-Bissau, and President Umaro Sissoco Embalo has indicated that he will not extradite Mr. Bozizé.
Without the possibility of judging “in absentia” or in their absence, it seems clear that those wanted at the highest political level, including François Bozizé, but also Russia’s Vladimir Putin, Sudan’s Omar al-Bashir, the Gambia’s Yahya Jammeh and perhaps soon Israel’s Prime Minister, or the head of Hamas, would have little chance of ever being tried.
Indeed, since the fall of the Berlin Wall, the international criminal tribunals that have been set up have followed the Anglo-Saxon legal tradition in this respect, and do not authorize trials “in absentia”.
However, one international criminal court has made an exception to this rule.
The Special Tribunal for Lebanon, set up in 2007 by a UN Security Council resolution to prosecute those responsible for the 2005 bombing that killed former Lebanese President Rafik Hariri, prosecuted and convicted agents of Lebanese Hezbollah, in their absence. These proceedings, including the investigations, lasted over fifteen years, cost almost 1 billion dollars, and yet, no one was ever arrested or appeared in court.
This international tribunal, which was also the first ever set up to specifically deal with a crime committed in the Middle East, failed to convince others to do the same, even in Lebanon.
As far as the ICC is concerned, it cannot judge anyone in absentia. Article 63 of the Rome Statute is explicit on this point: “The accused shall be present during the trial.” However, a recent development should soon enable hearings to be held at the ICC in the absence of the accused.
It concerns Joseph Kony, the leader of the Ugandan rebel group Lord’s Resistance Army. This ruthless leader has been under ICC arrest warrant for almost thirty years. He has never been apprehended, and is reportedly travelling with his troops between the Central African Republic, South Sudan and the Democratic Republic of Congo.
On November 23, 2023, a Pre-Trial Chamber of the ICC issued a decision following the Prosecutor’s request to hold a confirmation of charges hearing against Mr. Kony. As per the ICC Statute, during this hearing, which takes place prior to the trial, the Prosecutor must show sufficient evidence to support each of the charges against the accused. The judges then confirm or reject the charges, making this procedural step a prerequisite for trial.
In November 2023, the Pre-Trial Chamber authorized the holding of such a hearing, in the absence of Mr. Kony. It will start in The Hague on October 15, 2024. This decision is based on the ICC Statute, which explicitly provides for such a scenario in the absence of the accused when the latter “has absconded or cannot be found”.
However, the three judges in this decision went further. They regretted that a trial cannot be held before the ICC in the absence of the accused if the charges are confirmed. They then called on the States Parties to the ICC Statute to reconsider this point, which could only be done by their amendment of the Statute.
Geopolitical developments since 2022 seem to be leading us straight towards a multiplication of scenarios where political leaders, wanted for international crimes, defy the institution and attempt, by every means possible, to discredit it.
It will be interesting to see how the 124 State parties to the Rome Statute, including 41 European countries, will react, and whether they hear the judges’ call and consider extending the ICC’s scope to try a person, in certain circumstances, in their absence. Some national courts with a Romano-Germanic legal tradition are already judging “in absentia”, even for international crimes. For example, the Paris “Cour d’Assises” has just handed down a historic verdict and sentenced three high-ranking Syrian Intelligence Services officials to life imprisonment, notably for complicity in crimes against humanity. The victims were Franco-Syrian, and the defendants were tried in their absence. An example to follow?
The article first appeared in French on Le Temps on the 27th of May, 2024.
