ICT’s Legal Conclusions: Trial in Absentia

Trial in Absentia:
The first verdict issued by the International Crimes Tribunal (ICT) was in the case of Kalam Azad, a case that was held in absentia. It is alleged that Kalam Azad fled to Pakistan so as to avoid trial. Trial in absentia is a rare occurrence in international criminal law. While such trials were conducted during the Nuremberg trials, contemporary courts such as the International Criminal Tribunal for Rwanda, International Criminal Tribunal for former Yugoslavia, and the Special Court for Sierra Leone have not allowed such trials.

Tribunal 2 addressed the issue of trial in absentia in its Final Judgment in the Kalam Azad case. This is a summary of their conclusions.

Background Case History
The case against Kalam Azad, alias Bachchu, began on 25 March 2012 when the Investigation Agency filed an application under Rule 9(1) of the International Crimes (Tribunal-2) Rules of Procedure, 2012, requesting the arrest of the accused for proper investigation. An arrest warrant was issued on 3 April 2012. However, the enforcement agencies of the Dhaka Metropolitan Police failed to arrest him. The Formal Charge against the accused was submitted on 2 September 2012 under Section 9(1) of the International Crimes (Tribunals) Act, 1973 following which Tribunal-2 took cognizance of offences under Rule 29(1) and issued a further arrest warrant as required under Rule 30 of the Rules of Procedure. The police submitted the a report stating that the accused was “absconding” and could not be arrested. The Tribunal in its order dated 7 October 2013 observed that it had reason to believe that the accused had absconded and that there was is immediate prospect for arresting him. Accordingly the Tribunal decided that the trial against him would be held absentia as permitted by section 10A(1) of the 1973 Act.

Mr Abdus Shukur Khan was appointed by the State as the Defense counsel representing Kalam Azad. Meanwhile, the Tribunal pursuant to Rule 31 also ordered the publication of a notice in two daily newspapers, one in English and the other in Bengali, asking the accused to appear before the Tribunal within ten days. The notice was published on 25 October 2012 in The Daily Janakantha (in Bengali) and in The Daily Star (in English). The accused did not respond or appear. The Tribunal then issued the Charge Framing Order its order on 4 November 2012, accusing Kalam Azad of 7 charges of Crimes against Humanity and 1 charge of Genocide.

The entire trial was conducted in the absence of the accused Abul Kalam Azad Bachchu. Throughout the process he was represented by the state appointed counsel.

Arguments advanced by the State appointed Defense Counsel
An examination of the full Judgment in the Kalam Azad shows that the State appointed Defense Counsel did not raise any objection as to the legality or validity of holding the trial against Abul Kalam Azad in absentia. The Tribunal’s order dated 7 October 2013 pertaining to its decision that the trial against the accused shall be held in his absence remained unchallenged and no application review was filed.

Arguments advanced by the Prosecution
The prosecution made no submission justifying the validity of holding the trial in absentia.

Relevant discussion in the Judgment
Paragraphs 49 – 54 of the Judgment address at length the issue of holding the trial in absentia.

Express provision in the International Crimes (Tribunals) Act, 1973
The Tribunal based its justification of a trial in absentia on Section 10A(1) of the 1973 Act, which provides for trial in absentia if the appearance of the accused cannot be ensured. Section 10A(1) states that where the Tribunal has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial, it may hold the trial in absence.

Trial in absentia in the international context
The Tribunal points to historical examples of trials being held in absentia as further justification for its decision. In particular they noted that Article-12 of the Charter of the International Military Tribunal (IMT) at Nuremberg allowed for the trial of World War II war criminals in their absence. Martin Bormann, the Nazi Party Secretary (Deputy Führer) was indicted, tried in absentia and sentenced to death.

The Tribunal also claims that the United Nations has departed from its policy against trial in absentia with the establishment of the Special Tribunal for Lebanon (STL) in 2006. The Tribunal cites to Article 22 of the Special Tribunal for Lebanon’s governing law (the STL Statute), which expressly allows for trial in absentia where the accused refuses to appear or cannot be found through reasonable action. However, the Tribunal does not acknowledge that the Special Tribunal for Lebanon also provides that “In case of conviction in absentia, the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgement.” (STL Statute, Article 22(3).) There is no such provision in the ICT Act.

The Tribunal also relies on expert opinion, stating that the opinion of Professor William Schabas supports the legality of trial in absentia. However there is no citation provided for the comment on which the Tribunal allegedly relies. The Judgment also states that the jurisprudence of the International Convention on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) also confirm that a trial in absentia will not violate a person’s right to fair trial where the accused has expressly declined to appear. However, there is no reference to any specific provision of the ICCPR or ECHR and no case law was cited by the Tribunal in support of its conclusion.

Waiver of right to be present during the trial
The Tribunal found that the Kalam Azad’s absence was continuous and voluntary and constitutes an implicit waiver of his right to be present during his trial.