TRIAL IN ABSENTIA AMONG ISSUES DISCUSSED BY PREPARATORY COMMITTEE

ESTABLISHMENT OF CRIMINAL COURT

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The wilful and deliberate refusal of accused persons to appear before

a proposed international criminal court would be sufficient grounds

for initiating a trial in absentia, many delegations told the

Preparatory Committee on the Establishment of an International

Criminal Court yesterday afternoon.

Several delegations spoke of the need to balance the internationally

recognized right to self-defence with the exceptionally serious,

international nature of crimes to be prosecuted by the proposed court.

Also this afternoon, the Committee discussed the functions and powers

of the trial chamber.

The representative of Egypt said that while the right to self-defence

was fundamental, the international court would be rendering judgement

on powerful persons in a unique position to obstruct justice. In the

majority of cases, the accused would likely be absent. Argentina

called for terms under which in absentia trials might be carried out

to be clearly spelt out.

Canada, Austria, South Africa and several others said that while in

absentia trials should be allowed for the purpose of gathering

testimony and evidence, definitive pronouncements of guilt or

innocence should only be made upon the apprehension of the accused.

Germany noted that several war criminals in this century had escaped

justice due to the loss of evidence.

Japan said trials might proceed when the accused deliberately refused

to appear, provided that rigorous criteria were employed to ensure

that the refusal was both wilful and deliberate. The court might be

flexible in cases where the accused persons had escaped from lawful

custody or broken bail, New Zealand asserted. The right of appeal was

emphasized by Thailand.

Absentee trials might undermine the credibility of the proposed court,

several delegates said. The need for the court to follow the "highest

international standards" in legal matters was raised by Trinidad and

Tobago. Finland suggested that the court not be used for "show

trials".

The representatives of China, Austria and South Africa voiced

opposition to elements of the court's draft statute by which in

absentia trials could be justified by the ill health of the accused

persons, or by their disruption of trial proceedings. Chile said ill

health should be used only to postpone proceedings. When the accused

created disruptions, "means should be found to restore order", the

United States asserted.

Australia said the provisions of the statute dealing with contempt

might result in the accused being removed from the trial chamber, with

defendants retaining a right to monitor the trial through counsel.

Italy noted that the court faced two equally serious risks: that of

being reduced to issuing only declamatory judgements, and that of

defendants being able to halt proceedings by refusing to appear.

Also this afternoon, the Committee discussed issues relating to the

advisability of allowing the accused to enter a plea of guilty or not

guilty at the commencement of the trial. The representative of Ireland

opened the debate by saying that the entering of a plea of guilty or

not guilty was "one of the most important concepts" of the common law

system. He reviewed the procedural consequences of entering the plea

and the advantages of such a system.

The representative of Australia suggested that it would be better to

"bridge the gap" between different legal systems instead of debating

which system was better. Entering a plea of guilty or not guilty was

"relevant only in the case of a trial by jury", the Netherlands said,

adding that the proposed statute should provide a rule for an

admission of guilt in open court, as well as a guarantee that no

judgement would be based solely on the confession of the accused.

The representative of Canada said that the real issue at hand was the

following question: If the accused was willing to admit to the

essential facts in the indictment, what would be the practical effects

of such an admission or plea? Even after such an admission, the final

decision belonged to the court, he added. The court should pay

particular attention on whether the accused made full and voluntary

admission, and whether the admission was firmly supported by the facts

in the case. When those conditions were met, it could lead to an

abbreviated proceeding; otherwise, the court could order a full trial.

Norway urged the Committee to undertake imaginative efforts to find

common denominators in the world's different legal systems.

The Preparatory Committee meets again at 10:30 a.m. today to continue

discussing the draft statute of the proposed court.