PrepCom

15 August 1996

Second Session (pm)

The morning session was closed to hear two members o the staff of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia discuss the work of that tribunal and its relevance to the permanent International Criminal Court.

The first part of the afternoon session was a continuation of the discussion on Wednesday on trials in absentia in the context of the International Law Commission's draft Statute Article 37.

Few governments delegations stated that there should be no trials in absentia (these included Austria, China, Russian Federation).

A few governments vigorously defended the use of trials in absentia as consistent in with international human rights standards (these included France and the Netherlands).

Those governments which argued that there should be no trials in absentia cited the following reasons: that it was inconsistent with Article 14 of the International Convention for the Protection of Human Rights and Fundamental Freedoms (Austria), the image of the court might be undermined (Argentina), the court would be seen as ineffective (Austria and Germany), such trials would be seen as show trials (Finland), the court would be seen as putting itself above the law (New Zealand), there should be no abstract judgments (Finland).

France made a vigorous defence of the necessity for trials in absentia before discussion of this item closed. It argued that an international criminal court, unlike a national court, had no police to arrest accused persons. International law did not prohibit trials in absentia. It said that such trials were a practical solution to this problem and that discussion of this issue should reach a practical solution, but such trials should remains the exception.

The governments discussed the situation in Article 37 where such trials were permitted. With regard to Article 37 (2) (a), permitting trials in the absence of the accused for reason of security, most delegations which spoke were opposed to such trials or had serious reservations about such trials (including Argentina, Australia, Austria, Chile, Denmark, Germany, Italy, Japan, Malaysia, New Zealand, Switzerland, Thailand, Trinidad and Tobago and United States). Canada said alternative measures could be taken. South Africa thought that such trials might be possible, but did not specify the circumstances. The Russian Federation would permit such trial only if the accused consented. Kuwait apparently was open to trials in such circumstances.

With regard to Article 37 (2)(a), permitting trials in the absence of the accused on the ground of lineal, most government which spoke were opposed to such trials or had serious reservations (including Argentina, Australia, Austria, Chile, Denmark, Germany, Italy, Japan, Malaysia, New Zealand, Republic of Korea, Switzerland, Thailand, Trinidad, Tobago and United States). Canada said that alternative measures could be taken. South Africa thought that such trials might be possible, but did not specify the circumstances. Kuwait apparently was open to trials in such circumstances.

With regard to Article 37 (2)(b), permitting trials when the accused had disrupted proceedings, most government delegations speaking on the subject opposed such trials, expressed reservations or suggested alternatives, such as video links (including Argentina, Canada, Japan, New Zealand, Republic of Korea, Russian Federation and the United States). Chile suggested such trials should only occur until order was restored. Kuwait apparently was open to trials in such circumstances.

With regard to Article 37 (2)(c), permitting such trials when the accused had escaped from custody or violated conditions of bail, governments expressed a variety of views. Australia suggested further elaboration was needed of the provision, Japan expressed doubt, saying that the primary duty of the Court would be to recapture the accused, New Zealand was open to some flexibility on this point in light of the Dutch proposal, Thailand thought such trials might be possible and Italy, Kuwait, Trinidad and Tobago and the United States agreed that trials could take place in such circumstances.

Australia emphasized the need to reconcile the different points of view on trials in absentia.

With regard to Article 37 (4), permitting the Court to record evidence in the deliberate absence of the accuse, there was a range of views. Austria, Germany, Finland and Switzerland thought that it would be permissible to record evidence. Australia said that a judge who presided over an Article 37 (4) hearing should not serve in the Trial Chamber and said that further clarification of the meaning of "deliberate absence of the accused" was necessary. The United States said that it had concerns about this provision and Italy suggested deleting it. Canada had doubts about the necessity of the provision and concerns about a lack of clarity about the differences between the situations covered in Article 37 (4) and 37 (2)(c). Perhaps Article 37 (4) should be limited to recording evidence. The arguments in favour of conducting trials in absentia were stronger the closer one approached the trial date. Kuwait approved Article 37 (4).

With respect to Article 37 (5) concerning retrials after trials in absentia Switzerland suggested moving it and possibly rewording it. Finland and South Africa said that the accused should be able to contest the evidence. Trinidad and Tobago said that the accused could only contest the weight of the evidence, not its admission. Italy said Article 37 (5) should be deleted. Kuwait approved this provision.

This issue in the discussion of Article 38 governing the functions and powers of the Trial Chamber which sparked the most heated debate was whether pleas of guilty should be allowed (as permitted under Article 38 (1)(d) and, if so, whether the court could proceed immediately to sentence the accused, would have to hold an abbreviated hearing or would have to conduct a full trial. Some, but not all, civil law countries argued that a plea of guilty was incompatible with their legal systems or violated fundamental justice (including France, Italy, Mexico, Netherlands). France argued that there should be no reward for a plea of guilty as in the system of plea bargaining used in certain countries, particularly common law countries, and that even an abbreviated trial to allow the judge to determine if the plea was voluntary and whether there was evidence to support it was not permissible because it denied the victims their rights to tell their story. There should be no plea bargaining. The Netherlands stated that g

uilty pleas as a country which had a different legal system base on the Shari'a.

Many States, including mostly common law states (Ireland), argued that there was nothing wrong with guilty pleas and that they were not synonymous with plea bargaining. Ireland argued that pleas of guilty did not abbreviate justice or reduce penalties and that they were supported by the following reasons: they allowed the accused to express remorse, they spared the victims the necessity of reliving their traumas and the court should not force a defendant willing to express remorse to go through a full trial.

Australia, Argentina, Canada, Norway and other States attempted to suggest a compromise between the two positions which would permit a plea of guilty, but require or authorize the Court to conduct an abbreviated hearing to satisfy the Court that the guilty plea was voluntary and supported by evidence. If it was not, then the Court was free to order a full trial.

Other aspects of Article 38 (5) were also discussed. Australia pointed out that the Australia, Netherlands draft Rules 61 to 62 covered the situation of joinder under Article 38 (3).

With respect to Article 38 (5), regarding conduct of the trial, Germany agreed with France and the Netherlands that the Court should play an active role.