Original: English .: ICC-02/05-03/09 Date: 11 May 2020 ...

[Pages:18]ICC-02/05-03/09-673-Red 11-05-2020 1/18 EK T

Original: English

No.: ICC-02/05-03/09 Date: 11 May 2020

TRIAL CHAMBER IV

Before:

Judge Kimberly Prost, Presiding Judge Judge Robert Fremr Judge Reine Alapini-Gansou

SITUATION IN DARFUR, THE SUDAN IN THE CASE OF

THE PROSECUTOR v. ABDALLAH BANDA ABAKAER NOURAIN

Public

Public redacted version of "Prosecution's submissions on trials in absentia in light of the specific circumstances of the Banda case", 13 December 2019, ICC-02/05-03/09-673-Conf-

Exp

Source:

Office of the Prosecutor

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Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Ms Fatou Bensouda Mr James Stewart Mr Julian Nicholls

Counsel for the Defence of Mr Banda Mr Charles Achaleke Taku

Legal Representatives of the Victims Ms H?l?ne Ciss? Mr Jens Dieckmann

Legal Representatives of the Applicants

Unrepresented Victims

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for Victims

The Office of Public Counsel for the Defence

States Representatives

Amicus Curiae

REGISTRY

Registrar Mr Peter Lewis

Counsel Support Section Dr Esteban Peralta Losilla

Victims and Witnesses Unit

Detention Section

Victims Participation and Reparations Section

Other

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I. INTRODUCTION

1. On 13 November 2019, in the "Order following Status Conference on 30 October 2019,"1 Trial Chamber IV ("Trial Chamber" or "Chamber"), by majority, invited the Defence

and the Prosecution "to make submissions on trials in absentia in light of the specific circumstances of this case by 13 December 2019."2

2. Trials in absentia are not permitted by the Rome Statute ("Statute"). Article 63(1) clearly provides "[t]he accused shall be present during the trial."3 This article precludes the

possibility of a trial in absentia at the International Criminal Court ("ICC" or "Court"), and

the Appeals Chamber has confirmed this.

3. The clear and unambiguous meaning of article 63(1) is confirmed by a contextual

reading of the Statute and by the drafting history of that article. Furthermore, the object and

purpose of the Statute requires an accused's presence at trial.

4. In exceptional circumstances, and under specific conditions, article 63(2) and rules 134bis,4 134ter and 134quater of the Rules of Procedure and Evidence ("Rules") provide that trials at the ICC may proceed in the temporary absence of an accused.5 These exceptional

circumstances do not apply to Mr Banda.

5. Significantly, however, the exceptions under the Rules to an accused's presence at

trial apply only when an accused is under summons (in addition, rule 134ter expressly

permits only partial absences from trial). Accused such as Mr Banda who are under arrest

warrants do not benefit from such exemptions, and for good reason. An arrest warrant secures

the presence of the suspect or accused before the Court. As the Appeals Chamber has held,

arrest warrants serve "a fundamental function of the Court" and cannot be rendered "nugatory merely by refusing to execute [them]."6 To allow a trial in absentia for Mr Banda, in the

1 The Prosecutor v. Abdallah Banda Abakaer Nourain ("Banda"), Order following Status Conference on 30 October 2019, 13 November 2019, ICC-02/05-03/09-671-Conf-Exp ("Order"). 2 Order, p. 6. 3 Article 63(1) of the Statute. 4 The Prosecution notes that Rule 134bis does relate to the presence of an accused subject to a summons "through the use of video technology" (emphasis added). 5 Article 63(2) of the Statute; Rules 134bis, 134ter and 134quater of the Rules. 6 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, ICC-02/05-01/09-397-Corr ("Bashir Appeal Judgment"), para. 190. See also The Prosecutor v. Omar Hassan Ahmad Al Bashir, Joint Dissenting Opinion of Judge Luz Del Carmen Ib??ez Carranza and Judge Solomy Balungi Bossa to the Bashir Appeal Judgment, 6 May 2019, ICC-02/05-01/09-397-Anx2 ("Joint Dissenting Opinion of Judges Ib??ez and Bossa"), paras. 93-94.

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circumstances of this case, would vitiate the fundamental purpose behind replacing the summons with an arrest warrant against him. 6. Finally, the specific circumstances of this case present further significant practical obstacles that strongly militate against a trial in absentia.

II. CONFIDENTIALITY

7. Pursuant to regulation 23bis(2) of the Regulations of the Court,7 this filing is classified as confidential ex parte, available to the Defence, Registry and Prosecution only, because it refers to other documents marked with the same classification. The Prosecution will file a public redacted version as soon as practicable.

III. BACKGROUND

8. On 20 November 2008, the Prosecution requested an arrest warrant for Mr Banda8 or, in the alternative, a summons to appear.9 On 27 August 2009, Pre-Trial Chamber I issued a summons to appear, without prejudice to the Chamber's power to review its determination under articles 58(1) and 58(7) of the Statute, respectively.10 9. Mr Banda appeared before the Court at his initial appearance on 17 June 2010.11 The confirmation of charges hearing took place on 8 December 201012 in the absence of Mr Banda after he waived his right to be present pursuant to article 61(2)(a) of the Statute and

7 Regulation 23bis(2) of the Regulations of the Court. 8 Banda, Public Redacted Version of Prosecutor's Application under Article 58 filed on 20 November, 17 June

2010, ICC-02/05-03/09-20-Red ("Arrest Warrant Application"), paras.10 and 169. 9 Arrest Warrant Application, paras.10 and 170. 10 Banda, Summons to Appear for Abdallah Banda Abakaer Nourain, 27 August 2009, ICC-02/05-03/09-3, para.

20. 11 Banda, Initial Appearance Hearing, 17 June 2010, ICC-02/05-03/09-T-4-ENG ET WT 17-06-2010 1-27 SZ

PT. 12 Banda, Confirmation of Charges Hearing, 8 December 2010, ICC-02/05-03/09-T-9-Red-ENG CT WT 08-12-

2010 1-52 NB PT ("Confirmation of Charges Hearing").

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rule 124(1) of the Rules.13 Pre-Trial Chamber I confirmed charges against Mr Banda on 7 March 2011.14 10. On 6 March 2013, the Trial Chamber set the trial date for 5 May 2014.15 On 16 April 2014, the Trial Chamber vacated this date.16 On 14 July 2014, the Trial Chamber instructed the Registrar to inform the Government of Sudan ("GoS") of Mr Banda's summons to appear and to request that it to take "all necessary steps" to facilitate Mr Banda's presence at trial.17 [REDACTED].18

11. On 11 September 2014, the Chamber, by majority, issued a warrant of arrest for Mr Banda.19 The Chamber found that "regardless of whether Mr Banda wishes or not to be present at trial, there are no guarantees that in the current circumstances, he will be in an objective position to appear voluntarily."20 As a result, the Chamber ruled that a warrant of arrest now appeared necessary to ensure Mr Banda's presence at trial.21

12. On 26 September 2014, the Chamber issued an order that requested the Defence to confirm "in a straight forward and unequivocal way whether Mr Banda will or not appear for his trial in circumstances in which: a) the cooperation of the Government of Sudan in facilitating Mr Banda's appearance before the Court is not forthcoming; [footnote omitted] and b) the Court is not in a position to [REDACTED].22

13 Banda, Defence Request pursuant to Rule 124(1) of the Rules of Procedure and Evidence, waiving the right

of the persons concerned to be present at the hearing on the confirmation of charges and request that the hearing

be held in their absence, pursuant to Article 61(2)(a) of the Rome Statute, 27 October 2010, ICC-02/05-03/09-86

and Confirmation of Charges Hearing, p. 13, l. 10-17. 14 Banda, Corrigendum of the "Decision on the Confirmation of Charges," 7 March 2011, ICC-02/05-03/09-

121-Corr-Red, p. 74. 15 Banda, Decision concerning the trial commencement date, the date for final prosecution disclosure, and

summonses to appear for trial and further hearings, 6 March 2013, ICC-02/05-03/09-455, para.25. 16 Banda, Public redacted Decision vacating the trial date of 5 May 2014, 16 April 2014, ICC-02/05-03/09-564-

Red, para. 13. 17 Banda, Public Redacted Decision as to Further Steps for the Trial Proceedings, 14 July 2014, ICC-02/05-

03/09-590-Red, para. 37(c). 18 [REDACTED] 19 Banda, Warrant of arrest for Abdallah Banda Abakaer Nourain, 11 September 2014, ICC-02/05-03/09-606

("Arrest Warrant"). 20 Arrest Warrant, para. 21. 21 Arrest Warrant, para. 24. 22 Banda, Order on the Defence Application for Leave to Reply to "Prosecution response to the Defence

application for leave to appeal the 11 September 2014 arrest warrant decision or for reconsideration of the

same," 29 September 2014, ICC-02/05-03/09-612-Conf, para. 6.

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13. On 6 October 2014, the Defence confirmed that "where no assistance is to be provided [REDACTED] either by the GoS or the Court [REDACTED], [footnote omitted] then Mr. Banda will [REDACTED] not to attend trial."23

14. On 3 March 2015, the Appeals Chamber confirmed the Chamber's decision to issue the arrest warrant.24 15. [REDACTED].25 [REDACTED].26 16. [REDACTED].27 [REDACTED].28 17. [REDACTED].29 [REDACTED]30 18. [REDACTED].31 [REDACTED].32 19. [REDACTED].33 [REDACTED].34

20. [REDACTED].

IV. SUBMISSIONS

1) The ordinary meaning and context of article 63(1) requires the presence of Mr Banda at a trial

21. The Appeals Chamber has stressed that the cardinal principle of interpretation of treaties enshrined in article 31 of the Vienna Convention on the Law of Treaties applies when examining provisions of the Statute.35 The terms captured in its articles must be "interpreted

23 Banda, Defence Reply to "Prosecution response to the Defence application for leave to appeal the 11

September 2014 arrest warrant decision or for reconsideration of the same," 6 October 2014, ICC-02/05-03/09-

614-Conf-Exp, para. 14. 24 Banda, Judgment on the appeal of Mr Abdallah Banda Abakaer Nourain against Trial Chamber IV's issuance

of a warrant of arrest, 3 March 2015, ICC-02/05-03/09-632-Conf, para. 36. 25 [REDACTED] 26 [REDACTED] 27 [REDACTED] 28 [REDACTED] 29 [REDACTED] 30 [REDACTED] 31 [REDACTED] 32 [REDACTED] 33 [REDACTED] 34 [REDACTED] 35 See Situation in the Democratic Republic of Congo, Judgment on the Prosecutor's Application for

Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, 13 July

2006 ICC-01/04-168 OA3, para. 33; The Prosecutor v. Germain Katanga, Judgment on the appeal of Mr

Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request

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[...] in accordance with the[ir] ordinary meaning [...] in their context and in the light of its object and purpose."36

22. The "ordinary meaning" of article 63(1) makes clear that the presence of the accused at trial is required. The Appeals Chamber has confirmed that article 63(1) does not permit trials in absentia.37

23. When article 63(1) is considered in the context of the Statute as a whole, the mandatory nature of an accused's attendance at trial is made even clearer.

24. The exceptions to the requirement that an accused be present at trial are explicitly set out in the Statute in article 63(2) which allows a Trial Chamber to remove an accused who, "being present before the Court, continues to disrupt the trial," but only in "exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required."38

25. The accused's obligation to attend trial is also clear from the legislative intent of articles 58(1)(b) and 58(7), which provide a Pre-Trial Chamber the power to issue an arrest warrant or summons, respectively, "to ensure the person's appearance" at trial.39

26. In relation to a confirmation hearing, pursuant to article 61(2)(a), an accused is entitled to waive his attendance at the confirmation, which Mr Banda chose to do, or pursuant to article 61(2)(b), confirmation may progress in absentia where the person has fled or cannot be found. The Rome Statute includes no similar provision allowing an accused to waive his right to be present at trial or for proceedings to continue despite the accused failing to appear before the Court. As noted in the Joint Separate Opinion to the Appeal Judgment in The Prosecutor v. William Samoei Ruto and Joshua Arap Sang ("Ruto"), "[t]he silence of the

Concerning Languages," 27 May 2008, ICC-01/04-01/07-522 OA3, para. 39; The Prosecutor v. Germain

Katanga and Mathieu Ngudjolo Chui, 9 June 2008, ICC-01/04-01/07-573 OA6, para. 5; The Prosecutor v.

Thomas Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's

Decision on Victim's Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432 OA9 OA10, para.

55; The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of

Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by

Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain

other issues raised at the Status Conference of 10 June 2008," 21 October 2008, ICC-01/04-01/06-1486 OA13,

para. 40. 36 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, Treaty Series, vol. 1155, article 31. 37 The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, 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", 25 October 2013, ICC-01/09-01/11-1066 OA5 ("Ruto Appeal

Judgment"), para. 53. 38 Article 63(2) of the Statute. 39 Articles 58(1)(b) and 58(7) of the Statute.

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Statute in this regard is not particularly surprising, given the existence of a provision mandating the presence of the accused during the trial."40

2) The object and purpose of the Statute requires Mr Banda's presence at trial

27. The Appeals Chamber has noted that article 63(1) of the Statute establishes that the accused shall be present during trial, "reflecting the central role of the accused person in proceedings and the wider significance of the presence of the accused for the administration of justice."41

28. The Appeals Chamber stated that an accused person "is not merely a passive observer of the trial," but rather "an active participant" who should have the opportunity to follow witness testimony, and confront it where necessary to thereby ensure that "the fullest and most comprehensive record of the relevant events may be formed."42 It also found that an accused's absence from his trial would have a detrimental impact on "the morale and participation of victims and witnesses" and public confidence in the Court.43

29. Finally, the Joint Separate Opinion to the Ruto Appeal Judgment stated that the presence of an accused as a requirement of trial is "consistent with the gravitas of the proceedings and their importance from the perspective of the victims of the alleged crimes and the international community as a whole."44

3) The drafting history suggests article 63(1) precludes a trial in absentia

30. The legislative history of article 63(1) of the Statute leaves no room for a different interpretation since holding trials in absentia was considered at the Rome Conference and rejected. The attendance requirement in article 63(1) was maintained without significant variation throughout the Statute's negotiating history.45 The delegations at the Rome

40 The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Joint Separate Opinion of Judge Erkki

Kourula and Judge Anita Usacka to the "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"), 25 October 2013, ICC-01/09-01/11-1066 OA5", ICC-01/09-11-1066-Anx ("Ruto Appeal Judgment

Joint Separate Opinion"), para. 7. 41 Ruto Appeal Judgment, para. 49. In this context, the Appeals Chamber discussed how "the presence of the

accused during the trial plays an important role in promoting public confidence in the administration of justice." 42 Ibid. 43 Ibid. 44 Ruto Appeal Judgment Joint Separate Opinion, para. 8. 45 William Schabas and Veronique Caruana, "Article 63 Trial in the presence of the accused," in Triffterer and Ambos, The Rome Statute of International Criminal Court: A Commentary, 3rd edition (Hart: 2016), p. 1564-

1567.

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