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.

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.