By Ines Pierre de la Brière
Undoubtedly, the International Criminal Court (ICC) must respect and institute measures and recommendations made by the government of The Netherlands in the fight against COVID-19. Under no circumstances should its actions worsen the situation within the Host State and across the European Union.
However, this pandemic is likely to be a long lasting one, with mandated physical distancing measures in the workplace for the foreseeable future. But, in the meantime, the administration of justice must continue and, as with any other courts and tribunals around the world, the ICC cannot be exempted from that requirement.
Like any other court, the ICC should prioritize urgent and interim proceedings, in particular for persons in custody awaiting trial. It must take a case-by-case approach and limit hearings to essential litigation and emergency proceedings.
On 21 April 2020, the Office of the Prosecutor made an application to postpone or cancel the appeal hearing scheduled for 11-13 May 2020 in the Laurent Gbagbo and Charles Blé Goudé case and to consider alternative means to expedite the appeal. In its application to the Appeals Chamber, the prosecution underlined a well-founded fear that holding a three-day hearing in the midst of the pandemic would endanger the health and lives of all participants. The prosecution also stressed that the Dutch official death and infection rates are most probably “highly conservative” figures and so, under such circumstances, maintaining a hearing in May 2020 carried unnecessary and avoidable risks to the judges, the staff, the defence counsel and the acquitted persons, even if all were to engage in physical distancing in the courtroom. Given that COVID-19 may be transmitted in various ways and the intensity of the engagement required between participating individuals over three consecutive days of hearings, the participants would have been at risk of contagion, no matter where they were situated in the courtroom nor how well they would have engaged in physical distancing.
The same day, the defence team of Mr. Gbagbo endorsed the prosecution’s application to postpone the appellate hearings. Fundamentally, the defence shared the same health and immediate practical concerns as the prosecution regarding maintaining the hearing dates. More particularly, the Gbagbo Defence emphasised that the risk of contamination between participants would have been too high in May 2020 to hold a physical hearing and that, in any case, the ongoing health crisis has considerably delayed its preparation for the upcoming appellate hearing, whether physical or virtual.
On the other hand, the defence team of Mr. Blé Goudé submitted that the importance, novelty and complexity of the case argued in favour of holding an oral hearing on appeal and that recourse to a teleconference hearing or any other substitute should not be considered.
On 30 April 2020, the Appeals Chamber rescheduled the hearing to 27-29 May 2020 and invited the Registry to liaise with the parties and the victims as to any technical parameters with respect to the form of the hearing.
On 6 May 2020, the Blé Goudé Defence once again urged the Appeals Chamber to postpone the hearing until such time that Mr. Blé Goudé and his co-counsel could both be physically present at the hearing. The Blé Goudé Defence also said, the technical parameters proposed by the Registry raised substantive questions regarding the fairness of the proceedings. As such, holding a virtual hearing in the absence of Mr. Blé Goudé would violate his right to be present, to communicate freely and in confidence with his co-counsel and would prevent the public from following the proceedings, all rights guaranteed by the Rome Statute.
The cancellation of the three-day hearing would have likely not expedited the appeal proceedings. On the contrary, litigation can be progressed more effectively when dealt with orally and a long postponement would have been unrealistic considering the unpredictability of the virus, whilst the right to expeditious proceedings extends to the appeals phase. As concerns the actual death and infection rate in the Netherlands, underestimated or not by the domestic authorities, is not wholly relevant to the court’s technological and operational abilities to hold a safe and secure hearing. The court is able to take steps to substantially minimise the risk of the transmission of the disease within the court building, and in the Courtroom more specifically.
Although the appeal proceedings at the ICC is primarily conducted by way of written submissions (Rule 156 (3) of the ICC Rules of Procedure and Evidence), the Appeals Chamber hearings have certainly gained momentum and importance in the last couple of years amongst legal practitioners. The conduct of appeal hearings, especially where they overturn or modify trial chamber decisions, increases the legitimacy of the court because it demonstrates to the world the ability of the institution to scrutinise and regulate its own power in a transparent and professional manner. The careful and technical analysis of the law undertaken by the Appeals Chamber also demonstrates the court’s intention to ensure that international criminal law, the Rome Statute and the ICC Rules of Evidence and Procedure are interpreted and applied correctly and in accordance with fair trial standards.
This is illustrated by the appellate hearings in the Jean-Pierre Bemba case or, more recently, the hearing on the situation in the Islamic Republic of Afghanistan. In particular, that last hearing demonstrated to the world that the ICC was able to debate in public,and with legal arguments, one of the most sensitive international topics, despite repeated intimidation and threats made against staff and their families.
Oral hearings are held when it is deemed useful in assisting the Appeals Chamber in its decision-making process. It is an opportunity for legal issues and arguments to be exposed and subjected to the rigours of oral debate between the parties in a transparent manner.
If the hearings in the Laurent Gbagbo and Charles Blé Goudé case, which are ultimately concerned with determining the guilt or innocence of acquitted persons are not considered as ‘essential litigation’, it begs the question what is?
Judicial transparency is one of the pillars of the rule of law. It safeguards the fairness of judicial proceedings as a whole. As Lord Chief Justice Hewart famously stated nearly a hundred years ago in the appeal judgment R v Sussex Justices, ex-parte McCarthy, “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. In other words, open court proceedings protect against arbitrary and partial decisions, or what is perceived to be arbitrary and partial decisions.
Hence, the decision to confirm the hearing that the Appeals Chamber had already scheduled will undeniably shield the court from potential future accusations of bias and partiality when rendering its judgment on the acquittals of Mr. Gbagbo and Mr. Blé Goudé. Oral hearings in which legal arguments are scrutinised before the world have the effect of imbuing the judgment of the court with a high degree of legitimacy and encourages the acceptance of the judgment by the parties and the public of the affected areas.
Furthermore, the challenges associated with trial proceedings, such as facilitating field missions and bringing witnesses into court, whether physically, or via video-link, are less present at the appeals stage. The Appeals Chamber does not have any practical or operational challenges beyond ensuring the health and safety of its personnel working in the building. It does not have to operate in a difficult location and, at this stage, the case investigation is normally completed. Besides, the ICC’s facilities, particularly its courtrooms, are bigger and better equipped and staffed than most courtrooms in affected countries. For instance, it can always secure the publicity of the oral debate via the broadcasting of the hearing on its website.
Of course, should it decide to confirm the hearing in situ, the Appeals Chamber must, by all means necessary, strictly follow the World Health Organization’s workplace recommendations and enforce social distance measures in the courtroom. Attendees should be reduced to the minimum and essential staff and assistance which includes judges, counsel, translators, audio-visual technicians and senior court officers.
Any staff or individual presenting health risks or symptoms of COVID-19 should not attend the hearing for their own safety and the safety of others. Moreover, to the extent they are able to follow the hearings and to communicate freely and privately with their counsel, the acquitted persons should not need to be physically present in the courtroom. In such cases, a privileged line should be placed at the immediate disposal of the defence counsel inside the courtroom. As another potential adjustment, the Appeals Chamber could perhaps provide for sufficient breaks throughout the hearing proceedings, allowing the acquitted person and his counsel to discuss and exchange in a timely and meaningful manner. This would effectively compensate for the physical absence of any acquitted person during the appellate hearing and would give the latter a satisfactory form of participation in the criminal proceedings.
If, notwithstanding all the measures taken by the court, the acquitted person still wishes to be physically present, the ICC should try to secure his attendance by any means necessary and in liaison with the relevant domestic authorities.
The alternative of holding a virtual or dematerialized hearing is equally challenging. It would demand meeting high security requirements. If it involves physical movement of court services, it would likely generate the same level of interaction between people as at the seat of the Court and so could endanger ICC staff, their families and local communities in the same manner. A virtual hearing, whether operationalised by the use of in-house or outsourced technology, such as Zoom or Skype for Business, will have to take into account how confidential information can be safely discussed between parties, if need be, during the hearing as well as how to guarantee a secured line of communication between counsel and the acquitted persons.
The rescheduling of the hearing surely gives parties and all participants sufficient time to prepare for such a hearing under extraordinary circumstances, allowing them to adapt and transform their standard operating systems to this exceptional health crisis, while still preserving its staff’s physical health and the fairness of the proceedings as a whole. It is, after all, during times of crisis in which normal life is disrupted that new approaches to leadership emerge and with these forthcoming appeal hearings, the ICC has the opportunity to show the leadership that is needed.