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 No. ICC-02/05-03/09 1/18 11 May 2020 ICC-02/05-03/09-673-Red 11-05-2020 2/18 EK T Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence of Mr Banda Ms Fatou Bensouda Mr Charles Achaleke Taku Mr James Stewart Mr Julian Nicholls Legal Representatives of the Victims Legal Representatives of the Applicants Ms Hélène Cissé Mr Jens Dieckmann 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 Counsel Support Section Mr Peter Lewis Dr Esteban Peralta Losilla Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-02/05-03/09 2/18 11 May 2020 ICC-02/05-03/09-673-Red 11-05-2020 3/18 EK T 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 Ibáñez 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 Ibáñez and Bossa”), paras. 93-94. No. ICC-02/05-03/09 3/18 11 May 2020 ICC-02/05-03/09-673-Red 11-05-2020 4/18 EK T 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”). No. ICC-02/05-03/09 4/18 11 May 2020 ICC-02/05-03/09-673-Red 11-05-2020 5/18 EK T 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.