Towards a New Normal: Virtual Proceedings under International Criminal Law in the Age of COVID-19
The COVID-19 pandemic challenged international courts to reevaluate traditional conceptions of fair trial rights and led to an emergence of virtual and partially-virtual proceedings.
The International Criminal Court in The Hague, Netherlands.
By: Liz White, Staff member
Since the emergence of the COVID-19 pandemic, limitations on close face-to-face interactions have proliferated in order to thwart the spread of the virus. By early April 2020, half of the world’s population was under instruction to remain at home. At least 91% of the world’s population lived in countries with restrictions on the arrival of nonresidents, and 39% lived in countries with borders completely closed to noncitizens and nonresidents.
As of March 7, 2021, COVID-19 cases are present on all seven continents. Over 115 million cases of COVID-19 are confirmed, and 2,571,823 deaths are attributed to COVID-19. Since the beginning of the pandemic, at least 300 million office workers worldwide were working remotely, resulting in an increase in the use of collaboration software by 800 percent and of remote desktop usage by 40 percent.
International courts and tribunals followed suit. On March 16, 2020, the International Criminal Court (ICC), the International Residual Mechanism for Criminal Tribunals (IRMCT), the Special Tribunal for Lebanon (STL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) commenced remote work in response to COVID-19. By April 3, 2020, the STL announced it would follow the precautionary steps taken by the Netherlands. As international criminal courts began transitioning to remote work, trials were postponed indefinitely due to the uncertainty of the pandemic's trajectory. By May 2020, international criminal courts began considering the feasibility of virtual trials.
For an international tribunal, established to bring justice to the realm of international human rights, the guarantee of a fair trial is paramount. Fair trial rights are established under customary international law and enumerated in Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR). Among those enumerated rights is the right of an accused “to be tried in his presence.” While the concept of presence has traditionally been interpreted as physical presence, the competing right “to be tried without undue delay” challenged this interpretation in light of COVID-19. The pandemic led international courts to reevaluate the conception of the right to presence by raising a foundational question: is the right to presence necessarily restricted to physical presence?
Despite the unique circumstances of the pandemic, virtual presence was not a novel consideration. Past cases held that the “constructive presence” of an accused via video-link in a trial is a derogation from the right to be physically present, as physical absence impedes the accused’s ability to exercise the right to confront witnesses or accusers in person. However, the right of the accused and of other participants to attend trial is not absolute. Rather, the right may be limited when restrictions are proportionate to other protected interests. Within the context of the pandemic, this restriction was particularly notable; indefinite postponement of trials until circumstances are normalized threatens the right to expeditious proceedings.
In addition to these legal issues, virtual trials also presented practical challenges. Communications between members of the legal team were more challenging, as in-person communications were limited, if not impossible, at certain points during the pandemic. Particularly during the early months of the pandemic, this challenge plagued communications between counsel and client. The United Nations (UN) Detention Facility closed to outside visitors on March 16, 2020, preventing in-person visits between the defendants and their legal teams. Further, as each team member sheltered in place in his or her country of residence, teams had to coordinate between several time zones. The additional technological requirements for a virtual trial, including obtaining IT software, hardware, and sufficient broadband, were significant.
To combat these challenges, international courts began using multi-channel video conferencing software. Through software or interpreters working simultaneously during the trial, all participants were able to comprehend the proceedings. Simultaneous transcription allowed for a record of the proceedings with only a slight delay. Further, while access to the Public Gallery and Media Centre at the ICC is forbidden due to pandemic-related safety measures, the ICC took steps to ensure public access to the proceedings, which is a fair trial right under the Rules of the Court. The Registry publicly streams hearings in both French and English through the ICC website, with a 30-minute delay to ensure accuracy of translation and confidentiality of information. The ICC Registry also increased the production and distribution of audio-visual materials and summaries of the proceedings through social media platforms to ensure public access.
As of early 2021, virtual presence during trials has become the new norm. Virtual or partially virtual trials have gone forward in the cases of The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, The Prosecutor v. Bosco Ntaganda, and The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud at the ICC; The Prosecutor v. Turinabo et al., The Prosecutor v. Stanisic & Simatovic, and The Prosecutor v. Mladic at the IRMCT; and The Prosecutor v. Ayyash et al. and The Prosecutor v. Ayyash before the STL. The emergence of virtual proceedings at international courts in the age of COVID-19 presents a unique opportunity to reexamine the role of technology in future court proceedings.
Liz White is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Duke University in 2017. She worked with the International Residual Mechanism for Criminal Tribunals in the summer of 2020.