Since 3 March 2015 the trial preparation in the ICC Banda Case has been effectively suspended after the ICC Appeals Chamber confirmed the International Arrest Warrant against the accused, issued on 11 September 2014 by the ICC Trial Chamber (for more background see: https://www.icc-cpi.int/CaseInformationSheets/BandaEng.pdf )
Indeed, it was “an extremely surprising move” (see Paul Bradfield “In absentia trials at the ICC? The Banda case re-awakens”, 15 May 2020, https://beyondthehague.com/2020/05/15/in-absentia-trials-at-the-icc-the-banda-case-re-awakens/ ) when the ICC Trial Chamber asked the parties by Order from 19 November 2019 in the context of a prior status conference held on 30 October 2019 to submit observations on trials in absentia in the specific circumstances of this case.
On 13 December 2019, the Prosecution and the Defence filed their respective confidential Observations pursuant to the Order, both arguing that the Court’s statutory framework does not allow trials in absentia. Redacted versions of both Observations have been submitted in the meantime:
On 13 May 2020, following a request from the court appointed Common Legal Representatives (CLR) of the 103 participating victims, Maitre Helene Cisse (Senegal) and Jens Dieckmann (Germany, Associate Member 9 Bedford Row International) the ICC Trial Chamber, by majority, Judge Prost dissenting, granted the CLR leave to also file observations on trials in absentia in the specific circumstances of the case, and invited the parties to file a response, if they wish. The Defence and Prosecution did not oppose the CLR Request.
On 10 June 2020, the CLR submitted their observations, arguing that, in the circumstances of the case, with the arrest warrant against Mr Banda having been left unexecuted for a long period of time, the majority of the victims consider that proceeding with a trial in absentia could assist in establishing if Mr Banda committed the crimes with which he has been charged, and therefore also in potentially providing reparations to the victims and allowing them to express their grief.
Along with this confidential CLR Observations various statements of victims were submitted in a redacted and confidential manner to give the judges as well as the parties an authentic impression of the victims’ views.
On 22 June 2020, both the Prosecution and the Defence (non-publicly) responded to the CLR’s observations.
Up to now, the Trial Chamber in the ICC Banda Case did not rule on the merits of this question and did not inform the parties and participants about what will follow from these Observations.
Parallel to the developments in the Banda Case, the ICC Appeals Chamber issued its Decision in the Gbagbo and Blé Goudé Case on 28 May 2020, adressing – as obiter dicta – the question whether future proceedings in the case could in principle continue without the accused’ physical presence should they willfully fail to re-appear before the Court for those proceeding (paras 68-71 of the AC Decision). The Appeals Cchamber considered that future proceedings may be continued should Gbagbo and Blé Goudé willfull fail to comply with the Court’s order to re-appear.
So, it seems that there is a growing interest from parts of ICC Trial and Appeals Chamber Judges in the issue of in absentia proceedings at the ICC.