In absentia trials at the ICC? The Banda case re-awakens


After a long period of inactivity, the Banda case at the International Criminal Court (ICC) has suddenly come back to life, but for very controversial reasons that have received little attention and commentary.

One of the early cases at the ICC, charges against Banda and his co-accused, Jerbo, were confirmed in March 2011. The allegations relate to a deadly 2007 attack on peacekeepers in Darfur. Both suspects waived their right to be present at the confirmation hearing, and notably the facts underlying the charges were not contested by the Defence at that time. Much of 2012 and 2013 were taken up with delays over translation of evidence (that had to be audio-translated into Zaghawa, which is not a written language), attempts to stay the proceedings and the disclosure of evidence. Proceedings against Jerbo were later terminated following credible reports of his death, and trial was later scheduled to commence for Banda alone in May 2014, but this date was later vacated. Frustrated by Banda’s inability to voluntarily appear and Sudan’s lack of cooperation, the Trial Chamber decided to transform his summons into a warrant of arrest in September 2014.


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Photo: ICC

Since that time, Banda has remained at large and the case effectively dormant. Then, a few months ago, litigation in the case started to accelerate once again. In October, a re-configured Trial Chamber of Judges Prost, Fremr and Alapini-Gansou convened a status conference to discuss the status of the case, which was held entirely in closed session. However, in a subsequent Order, it was revealed that during the status conference, Judges Fremr and Alapini-Gansou “raised the issue of trials in absentia, with Judge Fremr raising the question as to whether such a proceeding was possible in this instance, in view of the developments in jurisprudence and amendments to the Rules of Procedure and Evidence.” The Chamber invited the parties to file observations on trials in absentia in the specific circumstances of this case. Judge Prost dissented, noting that “the Rome Statute and settled jurisprudence make it clear that a trial in absentia is not possible before the Court in these circumstances.”

This was an extremely surprising move. Trials in absentia were expressly considered, and rejected, during the drafting negotiations of the Rome Statute. As noted by the Prosecution in their submissions, article 63(1) clearly provides “[t]he accused shall be present during the trial.” The amendments to the Rules – made by the ASP in the aftermath of contentious litigation in the Ruto case – allow only for temporary excusal from presence where the accused is subject to a summons (rule 134 bis & ter) or where they have extraordinary public duties (rule 134 quater), none of which are applicable to Banda.

It seems, therefore, there is no wiggle room for even a liberal interpretation of these rules in order to sanction an in absentia trial for Banda. Notably, the Ruto Trial Chamber considered that it had the inherent authority to proceed with a trial of an “absconding accused” who had previously voluntarily submitted to its jurisdiction (paras. 44-46), as to do otherwise would hold the Trial Chamber “hostage to impunity.” While a laudable proposition, this interpretation finds no literal support in the Statute or the Rules. The Appeals Chamber also reversed this decision, holding that a blanket excusal of presence was not permitted.

The Prosecution and Defence observations on in absentia trials were filed in December 2019. It is curious that over five months have passed since, and there has been no further action from the Trial Chamber. As of writing, the Defence position is not publicly known. Surprisingly, the Legal Representatives of Victims were seemingly unaware of these in absentia developments (despite the public order in November 2019), and only recently requested leave to make observations, a request which was granted by the Trial Chamber. Judge Prost again noted her dissent. This could indicate that a further judicial decision will be forthcoming.

A majority of the Trial Chamber clearly has an appetite for in absentia proceedings in the Banda case. It remains to be seen if they will decide to press ahead, and on what legal basis. Any such proceedings would likely be short-lived, however, as corrective intervention from the Appeals Chamber would surely follow.


Respecting the boundaries of appellate review – does the ICC Appeals Chamber go astray?

In the wake of Monday’s decision by the ICC Appeals Chamber confirming that Jordan was under an obligation to arrest and surrender Omar Al-Bashir, there have been a flurry of excellent blog posts from various commentators (see for example, the posts by Dov JacobsBen BatrosDapo AkandeAsad Kiyani and Hemi Mistry). For the most part, these posts have focused on the most controversial aspect of the decision, namely the Appeals Chamber’s recourse to customary international law for what appears to be its primary basis for denying Head of State immunity to Omar Al-Bashir. The Judges could discern no opinio juris or state practice that would support the existence of such immunity vis-à-vis an international court in the proper exercise of its jurisdiction (paras. 100-119, or for ease of reference, “Road 1”).

Having so found, the Appeals Chamber then proceeded to equally find that as Sudan was obliged to “cooperate fully” by virtue of UNSC Resolution 1953 which triggered ICC jurisdiction, article 27(2) was automatically in force. Consequently, Sudan could not claim any immunity in respect of Al-Bashir, nor could Jordan claim that such immunity needed to be waived before effecting his arrest (paras. 120-149, or “Road 2”). In addition, the Appeals Chamber made passing reference to the fact that the Convention against Genocide also necessitated the arrest of Al-Bashir (para. 161).

I will leave to more learned scholars than I to debate the substantive legal propriety of the reasoning on immunities in Road 1. Instead, this post takes a more procedural perspective, and considers that the Chamber arguably should not have pursued Road 1 at all, because – as the Appeals Chamber itself acknowledges – Road 1 was not strictly on appeal.

As recalled by the Appeals Chamber, the three issues certified for appellate review were as follows:

i) The Chamber erred with respect to matters of law in its conclusions regarding the effects of the Rome Statute upon the immunity of President Al-Bashir, including its conclusions that Article 27(2) of the Rome Statute excludes the application of Article 98; that Article 98 establishes no rights for States Parties; that Article 98(2) does not apply to the 1953 Convention; and that even if Article 98 applied it would provide no basis for Jordan not to comply with the Court’s request;

ii) The Chamber erred with respect to matters of law in concluding that U.N. Security council resolution 1593 (2005) affected Jordan’s obligations under customary and conventional international law to accord immunity to President Omar Hassan Ahmad Al-Bashir; and

iii) Even if the Chamber’s Decision with respect to non-compliance was correct (quod non), the Chamber abused its discretion in deciding to refer such non- compliance to the Assembly of States Parties and the U.N. Security Council. (Al-Bashir Appeal Decision, para. 17)

Clearly, issues (i) and (ii) are confined to specific provisions of the Rome Statute, and the effect of those provisions on Al-Bashir’s immunity in the wake of UNSC Resolution 1953. The abstract question of whether a Head of State generally enjoys immunity before an international court was not certified for appeal. What is more, the Appeals Chamber recognises this, but deems it not to be problematic. It nevertheless considered Road 1 to be “intrinsically linked” to the question on appeal (para. 98). But this logic is internally inconsistent, as the Chamber’s own findings later reveal. This is because the Appeals Chamber goes on to confirm the legality of Road 2, the UNSC route affirmed by the Pre-Trial Chamber. If Road 2 was indeed correct, then there was no need to embark on Road 1. The “intrinsic link” therefore doesn’t appear to be one that demands judicial enquiry. With this in mind, let us next recall the standard of appellate review:

A. Standard of Review

33. With respect to errors of law, the Appeals Chamber has previously found that it:

[…] will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.

[…] A judgment is ‘materially affected by an error of law’ if the Trial Chamber ‘would have rendered a judgment that is substantially different from the decision that was affected by the error, if it had not made the error’. (Al-Bashir Appeal Decision, para. 33)

Thus, the Appeals Chamber should only intervene where there has been an “error of law” that has “materially affected” the decision, and a “substantially different” decision would have been made but for the error.

Having traversed Road 1 of its own accord, the Appeals Chamber goes on to repeatedly find that in respect of Road 2, the Pre-Trial Chamber’s interpretation of the Statute – and specifically the applicability of article 27(2) – was “correct in law” and that it “did not err” (see paras. 119, 126, 131, 132, 149).

What the Appeals Chamber fundamentally disagrees with (see para. 119) is the Pre-Trial Chamber’s assertion that it was unable to find “a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court”, thus justifying the initial journey on Road 1.

However, even if this finding was an error (and indeed, properly on appeal), as the Appeals Chamber states – and this is very much a contested point, as others have noted – it arguably was not an error that “materially affected” the decision, nor would there have been a substantially different conclusion, as the Appeals Chamber itself acknowledges at para. 119. This is because Road 2 leads to the same destination: Jordan should still have arrested and surrendered Omar Al-Bashir because he enjoyed no immunity.

119. While the Appeals Chamber, for the reasons set out above, rejects the Pre-Trial Chamber’s finding that there is immunity under customary international law for Heads of State when their arrest is sought for international crimes by this Court, the Appeals Chamber notes that the Pre-Trial Chamber nevertheless reached the same conclusion as the Appeals Chamber, namely that Jordan should have arrested and surrendered Mr Al-Bashir. The Pre-Trial Chamber did so based on itsinterpretation of the Statute and bearing in mind Sudan’s position under Resolution1593. The Appeals Chamber considers that this interpretation of the Statute was, as such, correct, as will be demonstrated in the subsequent sections. (Al-Bashir Appeal Decision, para. 119)

The need to pursue Road 1 is made all the more puzzling by the Appeals Chamber’s own acknowledgement that “the issues in this appeal ultimately rest on a proper construction of the provisions of the Rome Statute, in particular articles 27(2), 86, 89 and 98 of the Statute” (para. 97). If this holds true, adherence to article 21(1), which requires the Court to “apply in the first place, the Statute […]”, the present appeal would have been readily disposed of by confirming the legality of Road 2 without the need to resort to customary international law and Road 1, and simply affirming the Pre-Trial Chamber’s conclusion on the immunity question.

Finally, two points regularly made by parties in appellate litigation at the ICC is that the Appeals Chamber has previously declined to enter findings where any discussion of the issues raised would be “abstract and hypothetical,” and that it does not exist to render “advisory opinions“.

Yet, by taking, and affirming, Road 1, the Appeals Chamber appears to have done exactly that.

Preserving SGBC testimony in the Dominic Ongwen case

For those interested in the Dominic Ongwen case, or issues relating to evidence and prosecuting sexual and gender-based crimes at the International Criminal Court, my new article has recently been published online by the International Criminal Law Review. The article examines how the testimony of 7 alleged “forced wives” to Dominic Ongwen was preserved in the pre-trial phase, before the trial proper actually began. Here is the abstract:

 Article 56 of the Rome Statute allows for the preservation of evidence that may not be available at trial. In 2015, this provision was invoked to record the testimony of seven vulnerable victims of sexual and gender-based crimes in the Dominic Ongwen case. Occurring in the pre-trial phase of the case, before charges were pleaded or even confirmed, this overlooked development sets an important judicial precedent at the International Criminal Court (ICC). It represents a milestone precedent for future cases, not just in terms of circumventing situations of witness interference, but more importantly, in safeguarding vulnerable victims and witnesses, and preserving their evidence for any eventual trial.

Amnesty or no amnesty? African Commission weighs in on the Kwoyelo case


Thomas Kwoyelo in court. Photo: The Observer

This week it was reported that the African Commission on Human and Peoples’ Rights (“ACHPR”) issued a long-awaited decision on the merits of Thomas Kwoyelo’s complaints against the state of Uganda.

Kwoyelo’s story is a long and complicated one, about which much has been written. In brief, he has been wading through the Ugandan legal system since his capture in 2009. The first ex-LRA commander to be prosecuted before the International Crimes Division of the High Court of Uganda, his defence team initially argued that he was entitled to amnesty under the Amnesty Act 2000, which granted amnesty to anyone who “renounced rebellion”. Over 26,000 people from various rebel groups received amnesty certificates. Kwoyelo’s application was denied as the Director of Public Prosecutions (“DPP”) decided he was to be charged with grave breaches of the Geneva Conventions Act 1964, charges later reformulated as violations of customary international law and the Penal Code Act.

In 2011, the Ugandan Constitutional Court ruled that Kwoyelo was discriminated against by being denied amnesty and should be released, a decision later overturned in 2015 by the Supreme Court on appeal by the DPP. In essence, the Supreme Court ruled that the Amnesty Act was never intended to amnesty crimes against civilians (only acts of rebellion), and that the DPP retained discretion under the Act to bring charges against persons who did not qualify for amnesty. The Supreme Court thus approved the legality of Kwoyelo’s prosecution. In doing so, I have previously argued that the Supreme Court re-defined the prevailing meaning of amnesty in Uganda, as heretofore understood by the relevant stakeholders and local people in northern Uganda, in particular.

In the midst of all this litigation, in October 2012, Kwoyelo filed a complaint with the ACHPR, arguing, inter alia, that he was discriminated against by being denied amnesty while thousands of other LRA fighters received it. It was alleged this amounted to a violation of article 3 of the African Charter, which provides “that every individual shall be entitled to equal protection of the law.” Kwoyelo also alleged mistreatment while in detention. During the last session of the ACHPR, a decision on this complaint was finally reached. The full decision is here.

The decision is interesting on numerous levels, but for now this post will focus on the ACHPR’s handling of the amnesty question.

Continue reading

New from GroJIL: “Justice for Syria in Swedish and German Courts”

by Maria Elena Vignoli

For the past six and a half years, the world has witnessed atrocities committed in Syria in a climate of impunity by all parties to the conflict. The route to the International Criminal Court (ICC), the key international forum for accountability, is currently blocked. In this bleak landscape for accountability, some small steps toward justice are under way in Europe. These investigations are made possible by the international law principle of universal jurisdiction, which allows authorities to pursue certain crimes because of their gravity, regardless of where they were committed, or the nationality of either the victim or the suspect.

Read the full post at International Law Under Construction.

Justice for Syrians in European Courts: New @HRW Report

Human Rights Watch released a new report today detailing groundbreaking efforts in Sweden and Germany to prosecute people for war crimes committed in Syria. Drawing on evidence like photos and videos depicting crimes and working with some of the hundreds of thousands of Syrian refugees who have fled to their countries, Swedish and German prosecutors have brought seven cases to trial so far. These are small steps, according to report author Maria Elena Vignoli, but are some of the first in the long-term project to give justice to Syrians.

See the full report here:

Read an interview with report author Maria Elena Vignoli here

Incitement, Hate Speech, and the Preventive Function of the International Criminal Court

Beyond The Hague welcomes the Peace and Justice Initiative and the University of Connecticut’s Human Rights Institute for this guest post, which proposes an amendment to the ICC’s Rome Statute to broaden the ambit of article 25(3)(e) to criminalize not only the incitement of genocide, but also crimes against humanity, war crimes and (potentially) the crime of aggression. 

In the lead-up to the annual meeting of the States Parties to the International Criminal Court in December 2017, it is imperative for states, NGOs and other interested parties to pay close attention to efforts to reinforce the Court’s preventive function by addressing incitement and hate speech. The criminalization of speech acts has become a major issue in recent times. With the rise of populism in the United States and the United Kingdom, questions have arisen as to the boundaries between lawful and unlawful speech. Some domestic authorities have undertaken to severely repress speech acts; which will inevitably result in litigation over the parameters of the right to freedom of expression.

The international courts are no strangers to these issues, having dealt with several cases concerning allegations of speech acts contributing to atrocity crimes. Given its potential global jurisdiction, the international criminal court can play a leading role in regulating hateful and inciting speech. Focussing on verbal acts before they escalate to physical violence will directly enhance the Court’s preventive function. Accordingly, the following proposal seeks to address the most serious forms of unlawful speech.

The Peace and Justice Initiative and the University of Connecticut Human Rights Institute have formulated an amendment of article 25(3)(e) of the Rome Statute, to read as follows:

Intentionally, directly, and publicly incites others to commit any of the crimes in the Statute, thereby substantially increasing the likelihood of their occurrence. For the purpose of this provision it is not necessary that the incited crime(s) be committed or attempted.

At present, article 25(3)(e) of the Rome Statute refers only to direct and public incitement of genocide. The proposed amendment would see a form of liability entered into the Rome Statute covering not only those persons who urge others to commit genocide, but also those who call for crimes against humanity, war crimes and (potentially) the crime of aggression.  It would remove the current anomaly whereby direct and public calls for crimes such as extermination, rape, or torture, for example, are not criminalized per se.

The proposed amendment would redress the current ambiguity in the formulation of direct and public incitement to genocide in the Rome Statute, which has created confusion as to whether it is an inchoate crime (as considered at the ad hoc Tribunals), or a mode of liability requiring genocide to actually occur, as indicated by its placement in article 25 and lack of wording to the contrary.

Importantly, the proposed amendment confirms the inchoate nature of this form of liability. This would strengthen the Court’s preventive function, as the direct and public incitement could be prosecuted without having to wait for the execution of the atrocity crime to commence. That contrasts with the Court’s more restricted jurisdiction over soliciting and inducing crimes under article 25(3)(b), for example, which require that the crime either occurs or is attempted (the latter meaning that the perpetrator commenced the execution of the crime, but was thwarted because of circumstances independent of the perpetrator’s intentions). Where direct and public calls are being made for atrocity crimes to occur, the international community should not have to wait, like an ambulance at the bottom of the cliff, for the violence to manifest before measures can be taken against those urging the crimes.

The proposed amendment makes it necessary to show that the incitement substantially increased the likelihood of genocide occurring. This filter is designed to exclude less serious speech acts, such as fanciful calls for crimes, or statements by persons with no real possibility of prompting anyone to commit grave crimes. As a formulation, “substantial likelihood” is well-known to international lawyers, thus benefitting from the guidance of settled case-law. For the avoidance of doubt, the proposed amendment explicitly states that the incitement must be done intentionally.

Several legal sources provide support for the direct and public incitement of atrocity crimes, including the ICCPR, article 20(1) (“Any propaganda for war shall be prohibited by law”) and (2) (“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”); the CERD, article 4 (“States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”); and the Genocide Convention, articles 3(c) (“The following acts shall be punishable (c) direct and public incitement to commit genocide”) and 5 (“The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”).

At a time when grave violence is prevalent, and the fires of discriminatory hatred are easily stoked, it is important to enhance the preventive function of international criminal law. Enacting the proposal set out above would be a measured but firm step towards realizing this potential.