Practice Relating to Rule 100. Fair Trial Guarantees

IMT Charter (Nuremberg)
Article 12 of the 1945 IMT Charter (Nuremberg) provides:
The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 12.
Geneva Convention IV
Article 123, second paragraph, of the 1949 Geneva Convention IV refers to the disciplinary punishment awarded to internees and states: “The decision shall be announced in the presence of the accused.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 123, second para.
European Convention on Human Rights
Article 6(3)(c) of the 1950 European Convention on Human Rights provides that everyone charged with a criminal offence has the right “to defend himself in person”. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 6(3)(c).
International Covenant on Civil and Political Rights
Article 14(3)(d) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone shall be entitled to …be tried in his presence”. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(3)(d).
American Convention on Human Rights
Article 8(2)(d) of the 1969 American Convention on Human Rights provides that during proceedings, every person accused of a criminal offence has “the right …to defend himself personally”. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(2)(d).
Additional Protocol I
Article 75(4)(e) of the 1977 Additional Protocol I provides: “Anyone charged with an offence shall have the right to be tried in his presence.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(4)(e). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 6(2)(e) of the 1977 Additional Protocol II provides: “Anyone charged with an offence shall have the right to be tried in his presence.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 6(2)(e). Article 6 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 97.
ICC Statute
Article 63(1) of the 1998 ICC Statute provides: “The accused shall be present during the trial.” 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 63(1).
ICC Statute
Article 67(1)(d) of the 1998 ICC Statute states that the accused, “subject to article 63, paragraph 2, [shall] be present at the trial”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 67(1)(d).
Statute of the Special Court for Sierra Leone
Article 17(4)(d) of the 2002 Statute of the Special Court for Sierra Leone provides: “In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: …to be tried in his or her presence”. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(4)(d).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 12(2) of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 12(2).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Article 16 of the 2007 Statute of the Special Tribunal for Lebanon provides:
4. In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(d) Subject to the provisions of article 22, to be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;
5. The accused may make statements in court at any stage of the proceedings, provided such statements are relevant to the case at issue. The Chambers shall decide on the probative value, if any, of such statements.  
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 16(4)(d) and (5).
Article 22 of the Statute further provides:
1. The Special Tribunal shall conduct trial proceedings in the absence of the accused, if he or she:
(a) Has expressly and in writing waived his or her right to be present;
(b) Has not been handed over to the Tribunal by the State authorities concerned;
(c) Has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.
2. When hearings are conducted in the absence of the accused, the Special Tribunal shall ensure that:
(a) The accused has been notified, or served with the indictment, or notice has otherwise been given of the indictment through publication in the media or communication to the State of residence or nationality;
(b) The accused has designated a defence counsel of his or her own choosing, to be remunerated either by the accused or, if the accused is proved to be indigent, by the Tribunal;
(c) Whenever the accused refuses or fails to appoint a defence counsel, such counsel has been assigned by the Defence Office of the Tribunal with a view to ensuring full representation of the interests and rights of the accused.
3. 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. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 22.
IMT Charter (Tokyo)
Article 12(c) of the 1946 IMT Charter (Tokyo) provides that the Tribunal shall “provide for the maintenance of order at the trial and deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any accused or his counsel from some or all further proceedings, but without prejudice to the determination of the charges”. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 12(c).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8(e) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right “to be tried in his presence”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 8(e).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
ICTY Statute
Article 21(4)(d) of the 1993 ICTY Statute provides that the accused shall be entitled “to be tried in his presence”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 21(4)(d).
ICTR Statute
Article 20(4)(d) of the 1994 ICTR Statute provides that the accused shall be entitled “to be tried in his or her presence”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 20(4)(d).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1)(e) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right “[t]o be tried in his presence”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 11(1)(e).
Argentina
Argentina’s Law of War Manual (1989) lists the fundamental guarantees for prisoners of war, including “trial in the presence of the accused”. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 3.30.
The same provision applies to civilians and in occupied territories. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, §§ 4.15 and 5.09(4).
With respect to non-international armed conflicts, the manual states that one of the fundamental judicial guarantees is “trial in the presence of the accused”. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 7.10.
Canada
Canada’s LOAC Manual (1999) provides that, in non-international armed conflict, “accused persons have the right to be present at their trial”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(e).
Canada
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “As a minimum, accused persons: … e. shall have the right to be present at trial”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.e.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Judicial procedure must be regular, that is, it must include at least the following guarantees: … judgment must be pronounced in the presence of the accused”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 191.
In a section on the obligations of the occupying power under the 1949 Geneva Convention IV, the manual also states:
C. Judicial procedure must be regular, that is, it must include at least the following guarantees:
e. judgment must be pronounced in the presence of the accused. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(C)(e).
New Zealand
New Zealand’s Military Manual (1992) states, in an explanatory footnote: “No prisoner may be tried in absentia”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 932(3), footnote 145.
The manual further provides: “Anyone charged with an offence shall have the right to be tried in his presence.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(e).
With respect to non-international armed conflicts, the manual states: “The accused has the right to be present at his trial.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1815(4)(e).
Peru
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including “trial in the presence of the accused”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.n.(5).
Peru
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “Trial in the presence of the accused.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(n)(5), p. 251.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … anyone charged with an offence shall have the right to be tried in his presence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … personal presence at the trial.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
Lastly, in its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … trial in person.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
United States of America
The US Manual for Military Commissions (2007) states:
Presence of the accused at trial proceedings
(a) Presence required. The accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted without members (except for certain in camera and ex parte presentations as may be permitted under R.M.C. 701-703 and Mil. Comm. R. Evid. 505), voir dire and challenges of members, the announcement of findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this rule.
(b) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, after being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom. Prior to exclusion of the accused under this section, the military judge shall consider and may, in his sole discretion, implement alternative measures to preserve the decorum of the proceedings and protect the parties and spectators to the trial. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 804(a) and (b), pp. II-65 and II-66.
United States of America
The US Manual for Military Commissions (2010) states:
Presence of the accused
(a) Presence required. Except for certain in camera and ex parte presentations as may be permitted … , the accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted without members, voir dire and challenges of members, the announcement of findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this rule.
(b) Exclusion of accused from certain proceedings. The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom:
(1) to ensure the physical safety of individuals; or
(2) to prevent disruption of the proceedings by the accused.
(c) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused:
(1) is voluntarily absent after arraignment; or
(2) after being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
An accused who is in military custody or otherwise subject to military control at the time of trial or other proceeding may not properly be absent from the trial or proceeding without securing the permission of the military judge on the record. Prior to exclusion of the accused under this section, the military judge shall consider and may, in the military judge’s sole discretion, implement alternative measures to preserve the decorum of the proceedings and protect the parties and spectators to the trial. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 804, p. II-70.
Note. Numerous pieces of domestic legislation provide for the right of the accused to be tried in their presence. 
See, e.g., Georgia, Code of Criminal Procedure, 1998, Article 77(3); Kenya, Constitution, 1992, Article 77; Kyrgyzstan, Criminal Code, 1997, Article 28; Russian Federation, Constitution, 1993, Article 123(2).
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Article 5. Suspect and Accused.
7. The police, the Saranwal [prosecutor] and the Court are duty bound to clearly inform the suspect and the accused, [both] before interrogation and at the time of arrest, about his or her … right to be present during searches, line-ups, expert examinations and the trial.
Article 38.
2. The suspect … ha[s] the right to be present during searches, confrontations, line-up procedures and expert examinations as well as during the trial.
Article 46. Trial in Absence of the Not Found Accused
1. When it has not been possible to serve the notifications on the accused by any of the forms provided for in article 17 [General Rules for Notifications], because none of the places there indicated are known, the Court shall issue a decree stating that the accused cannot be found, appointing a defence counsel for him.
2. [Subsequently] the notifications shall be served on the defence counsel.
3. Notifications made in this way are valid to all intents and purposes. The accused that cannot be found is [to be] represented by the defence counsel.
Article 47. Trial in Absence of the Summoned Accused.
1. When the notification indicated in article 42 [notification ordered by the Court indicating the date for the commencement of the trial] has been delivered to the accused and he does not appear, the judge [will] appoint a defence counsel for him.
Article 52. Order of the Hearing.
3. The Primary Saranwal, the accused and his defence counsel have the right to be always present.
4. The accused [whose] behaviour disrupts the proceedings can be excluded by the Court for part or all the duration of the hearing. He is, [however, to be] readmitted in the room when the verdict is read out.
Article 53. Conduct of the Hearing.
2. The accused and his defence counsel have the right to be present.
Article 81. Cases of Revision.
1. A revision [of the final decision in cases that have resulted in the sentencing of a person] for misdemeanors or felonies is permitted at all times in the following cases:
f. When the sentence was adopted at the end of a process conducted without informing the accused by regular notifications or not giving him the possibility to appear so [as] to deprive him of the right of defence or when a real impediment for appearing was not known or disregarded by the Court. 
Afghanistan, Interim Criminal Procedure Code, 2004, Articles 5(7), 38(2), 46(1)–(3), 47(1), 52(3) and (4), 53(2) and 81(1)(f).
Afghanistan
Afghanistan’s Juvenile Code (2005) states:
Article 33. Notification of the decision.
3. If the issues discussed during trial harms the child psychologically, the court can continue the hearing in the absence of the child, provided that the summary of the trial is later communicated to him [or] her.
Article 34. Attending the hearing.
1. The child … may attend the hearings. 
Afghanistan, Juvenile Code, 2005, Articles 33(3) and 34(1).
Afghanistan
Afghanistan’s Criminal Procedure Code for Military Courts (2006) states:
The military prosecutor is required and the accused and his defense counsel have the right to be always present; however, should the accused’s behavior disrupt the proceedings, he can be excluded by the military judge for part or all of the duration of the trial. He will be readmitted to the trial when the verdict is read out. 
Afghanistan, Criminal Procedure Code for Military Courts, 2006, Article 38.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Article 23. Presence of Defence Counsel.
(3) … [T]he accused ha[s] the right to be present during searches, [the] interrogation of witnesses, the collection of physical evidence and [the] examination by expert witness.
Article 34. Presence of the Accused at Trial.
The accused is required, as long as his presence is deemed necessary, to attend the trial.
Article 39. Good Order of the Trial.
(3) The … accused … ha[s] the right to be present [during] the judicial sessions, however, in case the accused … disturb[s] the order of the trial, the chief panel judge is authorized … [to] exclude the person who disturbed the trial from part of the trial. In this case, [with regard] to the [proceedings that] have been executed in the absence of the accused … , [the latter] will be [provided with] information of the proceedings after their next appearance.
Article 49. Stay of Execution and Appeals in the Case of the Accused’s Absence.
(1) [The] [e]xecution of the Basic Court’s decision [first instance judgement] may be stayed in case of the absence of the accused until … the accused or his defence counsel submits an appeal application.
In this case, the beginning of the appeal period for the accused starts from [the point in time when he is] presen[t] and [when the] notification is delivered to him.
Article 53. Authorities of the Appeals Court.
(4) [I]n case[s where] … the physical attendance of [the] accused is known [to be] non-essential in [the] appeal proceeding[s], the military appeal court can proceed [with] the case in his [or] her absence when hav[ing] appointed a defence counsel for the accused, on condition that the appeal application is presented by the convict or his [or] her defence counsel to the primary court or military appeal court. 
Afghanistan, Military Criminal Procedure Code, 2010, Articles 23(3), 34, 39(3), 49(1) and 53(4).
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or serve a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “If the accused was duly summoned but fails to appear and does not justify his absence, the judge or the presiding judge shall postpone the main trial and order that the accused be brought in at the next session.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 246(1).
The Criminal Procedure Code also states: “An accused may never be tried in absentia. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 247.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the proceedings of the Extraordinary Chambers:
In determining charges against the accused, the accused shall be equally entitled to the following minimum guarantees, in accordance with Article 14 of the International Covenant on Civil and Political Rights.
d. to be tried in their own presence. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 35 new.
China
China’s Extradition Law (2000) states:
The request for extradition made by a foreign state to the People’s Republic of China shall be rejected if:
(8) the request for extradition is made by the Requesting State on the basis of a judgment rendered by default, unless the Requesting State undertakes that the person sought has the opportunity to have the case retried under conditions of his presence. 
China, Extradition Law, 2000, Article 8(8).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 326:
If the defendant sent or brought before the military jurisdictions for an offence could not be seized or, after having been seized, has escaped, or if, regularly summoned, he does not appear, the judgement, as far as it concerns him, is rendered in absentia.
Article 331:
If the judgement has not been personally served, an objection can be received until the expiration of the limitation period of the penalty. If the convicted person presents himself or if he is arrested before the penalty has expired by limitation, he is without delay notified of the judgement.
The notification, under penalty of nullity, includes the note that he can, within five days in time of peace and within 24 hours in time of war, lodge an objection against the judgement by declaration either at the time of its notification, or to the registry of the closest military jurisdiction, and that, after expiration of that time limit without objection having been lodged, the judgement will become definitive at the expiration of the time limits for demurring. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 326 and 331.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Guatemala
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states: “Under no circumstances may adolescents be prosecuted in absentia.” 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Article 155.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum guarantees:
D. To be tried in his presence. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(4)(D).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 123 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(e), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2)(e), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order concerning Security Provisions (1970) states:
(A) Every person tried before a military court shall be entitled to be present during the whole trial so long as he conducts himself properly.
(B) If the accused does not conduct himself properly the court may, at its own discretion, order his removal from the courtroom and continue the proceedings in his absence, provided that it makes provisions for informing the accused of what has occurred during the trial, and gives the accused the opportunity to defend himself.
(C) The court may, as it deems fit, permit the accused to be absent from the court during the whole or any part of a trial on such terms as it may set. 
Israel, Order concerning Security Provisions, 1970, Section 35.
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to the presence of the defendant at the trial:
(a) Every defendant shall have the right to be present during all of the trial proceedings, as long as he conducts himself appropriately.
(b) If a defendant conducts himself improperly, the court may, at its discretion, order his removal from the courtroom and continue the trial proceedings without him present, on the condition that he is updated regarding the content of the trial proceedings, and is given an opportunity to defend himself.
(c) The military court may allow the defendant to be outside the courtroom during the entire trial or part of it, if it sees fit to do so, under the conditions it determines. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 114.
New Zealand
New Zealand’s Court Martial Act (2007) provides that the “Court Martial … must sit in the presence of the accused”. 
New Zealand, Court Martial Act, 2007, § 37(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in …the Geneva Conventions of 12 August 1949 …[and in] the two additional protocols to these Conventions …is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Pakistan
Pakistan’s Anti-Terrorism Act (1997) states:
(10) Any accused person may be tried in his absence if the Anti-Terrorism Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice:
Provided that the accused person shall not be tried under this subsection unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code:
Provided further that the Special Court will proceed with the trial after taking the necessary steps to appoint an advocate to defend the accused person who is not before the Court.
Explanation – An accused who is tried in his absence under sub-section (10) shall be deemed not to have admitted the commission of any offence for which he has been charged.
(11) The advocate appointed under the second proviso to sub-section (10) shall be a person selected by Anti-Terrorism Court for the purpose and he shall be engaged at the expense of the Government.
(11-A) Nothing contained in sub-section (10) or (11) shall be construed to deny the accused the right to consult or be defended by a legal practitioner of his own choice.
(12) If, within sixty days from the date of his conviction, any person tried under subsection (10) appears voluntarily, or is apprehended and brought before Anti-Terrorism Court and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, the Anti-Terrorism court shall set aside his conviction and proceed to try him in accordance with law for the offence with which he is charged:
Provided that the Anti-Terrorism Court may exercise its powers under this sub-section in a case in which a person as aforesaid appears before it after the expiration of the said period and satisfies it that he could not appear within the said period by reason of circumstances beyond his control. 
Pakistan, Anti-Terrorism Act, 1997, Section 19(10)–(12).
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(c).
Philippines
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
c) To be present at every stage of the proceedings, from arraignment to promulgation of judgment. The juvenile may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence at the trial is specifically ordered by the court for purposes of identification. The absence of the juvenile without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When the juvenile under custody escapes, he shall be deemed to have waived his right to be present in all subsequent hearings until custody over him is regained. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26(c).
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Article: 13 Guarantee of rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree Law n° 08/75 of February 12, 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda] to Rwanda is guaranteed the following rights:
7° the accused shall have the right to be tried in his or her presence. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Article 13.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007), as amended in 2009, states:
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda … (2003) as amended to date or [l]aws relating to the Code of Criminal Procedure [(2004)] … and the [1966] International Covenant on Civil and Political Rights, as ratified by the Decree Law No. 08/75 of February 12, 1975, the accused person in the case transferred by [the] ICTR to Rwanda shall be guaranteed the following rights:
8º the right to be tried in his [or] her presence. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, as amended in 2009, Article 13(8º).
Article One: Definitions of terms
For the purpose of this Law, the following terms shall mean as follows:
Article 14: Rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree-Law n° 08/75 of 12 February 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda], by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(5) Every person who is charged with a criminal offence –
c. shall be permitted to defend himself in person or by a legal practitioner of his own choice;
(10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section … to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency.
29. Public emergency.
(2) The President may issue a Proclamation of a state of public emergency only when –
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof. 
Sierra Leone, Constitution, 1991, Sections 23(5)(c) and (10) and 29(2) and (5).
South Africa
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes the right –
(e) to be present when being tried;
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise–
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. 
South Africa, Constitution, 1996, as amended to 2003, Sections 35(3)(e), 37(1)(a) and (5)(c).
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)”. 
South Africa, Constitution, 1996, as amended to 2003, Section 37.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.” 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
Sri Lanka
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
Whenever any prisoner is required to appear before any court, to give evidence, or for any other purpose, it shall be lawful for such court in its discretion, if it considers the presence of such prisoner necessary for the ends of justice, by an order in writing to direct the Superintendent of the prison, where such prisoner shall be imprisoned, to produce such prisoner before such court, and such Superintendent shall in the absence of good and sufficient cause to the contrary, cause such prisoner to be produced in compliance with such order. 
Sri Lanka, Prisons Ordinance, 1878, as amended to 2005, Article 96.
This article applies to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
62. (1) Notwithstanding any emergency regulation or other written law the [trial], including a trial at bar, for any offence under the emergency regulations, may be held upon indictment by the Attorney-General and thereupon the person charged shall be tried without a preliminary inquiry before the High Court [or] High Court at bar, as the case may [be], without a jury:
(4) The trial of any person before the High Court under this regulation may commence or continue in the absence of such person if the Court is satisfied that he is [evading] arrest or absconding or feigning illness. 
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Sections 62(1) and (4).
Sri Lanka
Sri Lanka’s Code of Criminal Procedure (Special Provisions) Act (2007) states:
(11) (a) Where the accused—
(i) is absconding or has left the island; or
(ii) is unable to attend or remain in court by reason of illness and has consented either to the commencement or continuance of the inquiry in his absence, such inquiry may commence or continue without any prejudice to him; or
(iii) by reason of his conduct in court is obstructing or impeding the progress of the inquiry, the Magistrate may, if satisfied of these facts, commence and proceed or continue with the inquiry in the absence of the accused.
(b) An attorney-at-Law may appear for such absent accused.
(c) The inquiry shall proceed as far as is practicable in accordance with the provisions of this Act except that the provisions of section 416 of the Code of Criminal Procedure Act, No. 15 of 1979 [regarding the Court’s power where an accused has absconded to examine and record depositions of prosecution witnesses to be used in a trial upon arrest of the accused] shall not apply to the depositions recorded where there is a trial on indictment in the High Court, whether the accused is present in the High Court or not. 
Sri Lanka, Code of Criminal Procedure (Special Provisions) Act, 2007, Article 6(11).
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Article 114
1. An accused is fit to plead if he or she is physically or mentally capable of understanding the proceedings.
2. In the event of temporary unfitness to plead, procedural acts that cannot be delayed shall be carried out in the presence of the defence.
3. If the accused remains unfit to plead, the criminal proceedings shall be suspended or abandoned. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 114 (1)–(3).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“…
§ 949d. Sessions
“…
“(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—Except as provided in subsections (c) and (e), all proceedings of a military commission under this chapter, including any consultation of the members with the military judge or counsel, shall—
“(1) be in the presence of the accused, defense counsel, and trial counsel; and
“(2) be made a part of the record.
“(c) DELIBERATION OR VOTE OF MEMBERS.—When the members of a military commission under this chapter deliberate or vote, only the members may be present.
“ …
“(e) EXCLUSION OF ACCUSED FROM CERTAIN PROCEEDINGS.—The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom—
“(1) to ensure the physical safety of individuals; or
“(2) to prevent disruption of the proceedings by the accused. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602, 2611 and 2612, §§ 948b(a) and 949d(b), (c) and (e).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949a. Rules
“ …
“(b) EXCEPTIONS.—(1) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.
“(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused:
“ …
“(B) To be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title. 
United States, Military Commissions Act, 2009, § 949a(b)(2)(B).
The Act also states:
§ 949d. Sessions
“ …
“(d) EXCLUSION OF ACCUSED FROM CERTAIN PROCEEDINGS.—The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom—
“(1) to ensure the physical safety of individuals; or
“(2) to prevent disruption of the proceedings by the accused. 
United States, Military Commissions Act, 2009, § 949d(d).
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To not be judged in his or her absence, except in accordance with the Constitution of the Republic.” 
Venezuela, Penal Procedure Code, 2009, Article 125(12); see also Article 332.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The trial will take place with the uninterrupted presence of the judge and the parties”. 
Venezuela, Penal Procedure Code, 2012, Article 315; see also Explanatory Notes p. 5.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(3) Every person who is charged with a criminal offence … except with his own consent, the trial shall not take place in his absence.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 18(3) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(g) to be present when being tried;
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 70(1)(g), 86(2)(b) and (3)(e), and 87(1) and (4).
Bosnia and Herzegovina
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina, in response to a Defence claim that a lower court’s removal of the accused from the courtroom was a denial of the accused’s rights, stated:
[I]t can be seen that it is possible to remove the accused from the courtroom if the accused persists in disruptive conduct after being warned by the Presiding Judge and that the proceedings may continue during this period if the accused is represented by counsel. Thus, the conclusion of the first instance panel that the mere fact that the accused is not physically present in the courtroom does not automatically mean that the trial cannot continue is additionally supported. And above all, it was noted that the purpose of the constant improper conduct of the accused was obviously to prevent continuation of the proceedings and delay it, as correctly concluded by the first instance panel. Considering the alternative measure which could be applied in the concrete case, that is, forceful bringing of the accused to the courtroom in spite of his will, regardless of the threats to appear in his underwear, as proposed by the Defense Attorney … in his appeal, the first instance panel concluded correctly that such treatment would represent the inhumane treatment of the accused, undermining the physical integrity of the accused and authority and the dignity of the Court. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 8.
Bosnia and Herzegovina
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
Groundless is the appellate argument of the defence counsel noting that the main trial was held without the presence of the person whose presence was necessary pursuant to the law … In order to … protect [certain] witnesses …, the [first-instance] Panel rendered the decision to remove the Accused from the courtroom during the testimony of [these] witnesses. At the same time, the first-instance Panel decided to allow the Accused to follow their testimonies using technical means for transferring the image and sound in order to be able, following the direct examination, to consult his defence counsel concerning the cross examination. Contrary to the appellate arguments, the principle of the ban on trial in absentia was not violated by such conduct, nor was the Accused prevented from observing the trial and taking part in the main trial … [A]lthough the mentioned rights of the Accused were partially limited it was done in accordance with the statutory limitations and the ruling provided that the Accused follow the course of the main trial adequately, without violating his right to a defence. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 7.
France
In 2008, in the “Disappeared of the Beach” case, France’s Criminal Chamber of the Court of Cassation held:
[T]he universal jurisdiction clause, based on the presence in France of the supposed perpetrator of an offence which is likely to fall within the provisions of the New York Convention [1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment] … is strict and cannot be extended to the situation where the interested person has domicile or residence in France but where the condition of physical presence of this person at the commencement of the proceedings is not satisfied. 
France, Court of Cassation (Criminal Chamber), “Disappeared of the Beach” case, Judgment, 9 April 2008, p. 9.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
United States of America
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base, Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the US Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. With regard to the matter of the “presence of the accused at the trial”, the Court stated:
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.
The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U.S.C. A. ß 839(c) (Supp. 2006). Whether or not that departure technically is “contrary to or inconsistent with” the terms of the UCMJ, 10 U.S.C. ß 836(a), the jettisoning of so basic a right cannot lightly be excused as “practicable.”
Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b) [of the UCMJ]. 
United States, Supreme Court, Hamdan case, Judgment, Part VI C, 29 June 2006.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated: “On 10 December 2001, in accordance with Article 399 of the Penal Procedure Code, the oral hearing in the proceedings for the extradition of José María Ballestas Tirado, requested by Colombia, was carried out with the participation of all the parties.” 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 2.
(emphasis in original)
Austria
Upon ratification of the 1977 Additional Protocol I, Austria stated:
Article 75 of Protocol I will be applied insofar as sub-paragraph (e) of paragraph 4 is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing of a witness or expert witness, may be removed from the courtroom. 
Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 3(a).
Austria
Upon ratification of the 1977 Additional Protocol II, Austria stated:
Article 6, paragraph 2, sub-paragraph (e) of Protocol II will be applied insofar as it is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing of a witness or expert witness, may be removed from the courtroom. 
Austria, Reservations made upon ratification of the 1977 Additional Protocol II, 13 August 1982, § 6.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated: “According to the new Code [of Criminal Procedure], accused persons have the following rights: … not to be tried in absentia, without prejudice to situations where an accused person is in default”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 149; see also § 215.
(footnote in original omitted)
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated:
In the case of suspicion or accusation for a criminal offence, the suspected, accused or prosecuted person shall have the right:
- To be tried in his or her presence if he or she is accessible to the court. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 206.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated:
Article 74, paragraph 4, subparagraph (e) of Additional Protocol I will be applied in such manner that it is for the court to decide whether an accused person held in custody may appear in person at the hearing before the court of review. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 8.
Germany
Upon ratification of the 1977 Additional Protocol II, Germany stated:
Article 6, paragraph 2, subparagraph (e) of Additional Protocol II will be applied in such manner that it is for the court to decide whether an accused person held in custody may appear in person at the hearing before the court of review. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol II, 14 February 1991, § 8.
Ireland
Upon ratification of the 1977 Additional Protocol I, Ireland stated:
Article 75 will be applied in Ireland insofar as paragraph 4(e) is not incompatible with the power enabling a judge, in exceptional circumstances, to order the removal of an accused from the court who causes a disturbance at the trial. 
Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 13.
Ireland
Upon ratification of the 1977 Additional Protocol II, Ireland stated:
Article 6 will be applied in Ireland insofar as paragraph 2(e) is not incompatible with the power enabling a judge, in exceptional circumstances, to order the removal of an accused from the court who causes a disturbance at the trial. 
Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol II, 19 May 1999, § 2.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997, Chapter 5.
Liechtenstein
Upon ratification of the 1977 Additional Protocol I, Liechtenstein stated in relation to Article 75:
Paragraph 4(e) is not incompatible with legislation under which any accused who causes a disturbance in court or whose presence could impede the questioning of another accused, a witness or expert may be excluded from the courtroom. 
Liechtenstein, Reservations made upon ratification of the 1977 Additional Protocol I, 10 August 1989, § 1(a).
Liechtenstein
Upon ratification of the 1977 Additional Protocol II, Liechtenstein stated:
Article 6, paragraph 2(e), of Protocol II will be implemented provided that it is not incompatible with legislation under which any accused who causes a disturbance in court or whose presence could impede the questioning of another accused or of a witness or expert may be excluded from the court room. 
Liechtenstein, Reservations made upon ratification of the 1977 Additional Protocol II, 10 August 1989, § 2.
Malta
Upon ratification of the 1977 Additional Protocol I, Malta stated in relation to Article 75:
Sub-paragraph (e) of paragraph 4 is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing or another witness or expert witness, may be removed from the courtroom. 
Malta, Reservations made upon accession to the 1977 Additional Protocols I and II, 17 April 1989, § 1(a).
Malta
Upon ratification of the 1977 Additional Protocol II, Malta stated in relation to Article 6:
paragraph 2, sub-paragraph (e) of Protocol II will be applied insofar as it is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing of a witness or expert witness, may be removed from the courtroom. 
Malta, Reservations made upon accession to the 1977 Additional Protocols I and II, 17 April 1989, § 2.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “The accused shall have the right to present himself/herself during the hearing of the case.” 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 5.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
Syrian Arab Republic
In 2004, in its third periodic report to the Human Rights Committee, the Syrian Arab Republic stated:
Observance by military courts of guarantees provided in the Covenant [International Covenant on Civil and Political Rights]:
(d) Verdicts delivered by military and single-judge courts in absentia may be contested within a period of five days commencing on the day following the date of communicating the verdict. Except in specified cases, all such verdicts are subject to appeal (articles 15, 79 and 80 of the Military Penal and Criminal Procedure Code). In all cases, including exceptions specified by the law, article 81 of the Code authorizes the Minister of Defence to appeal judgements before the Court of Cassation. Article 15, paragraph 4, stipulates that sentences of capital punishment are excluded from these exceptions and they may be appealed before the Court of Cassation in all cases. 
Syrian Arab Republic, Third periodic report to the Human Rights Committee, 19 October 2004, UN Doc. CCPR/C/SYR/2004/3, submitted 5 July 2004, § 212.
United States of America
The Report on US Practice states: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
UN Commission on Human Rights
In a resolution adopted in 2003 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
5. Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence and to defend themselves in person or through legal assistance of their own choosing. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and § 5, voting record: 31-1-21.
UN Commission on Human Rights
In a resolution adopted in 2004 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
4. Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for the defence. 
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and § 4, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judiciary should be observed at all times,
5. Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for the defence. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and § 5, voting record: 52-0-1.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
The Rapporteur of the Third Committee at the CDDH noted in relation to Article 75(4)(e) of the 1977 Additional Protocol I that “it was understood that persistent misconduct by a defendant could justify his banishment from the courtroom”. 
CDDH, Official Records, Vol. XV, CDDH/407/Rev.1, 10 June 1977, p. 462, § 48.
International Criminal Tribunal for Rwanda
In its judgment in the Nahimana case in 2007, the ICTR Appeals Chamber stated:
96. The Appeals Chamber recalls that, pursuant to Article 20(4)(d) of the [1994 ICTR] Statute, the accused is entitled to be present at trial. The Appeals Chamber notes that this article is modeled on Article 14(3)(d) of the International Covenant on Civil and Political Rights (“ICCPR”) and to a very large extent reproduces it. The right of any accused to be tried in his or her presence is, moreover, fully provided for in regional human rights regimes. The question is whether a trial can be held in the absence of the accused where he refuses to attend the proceedings.
100. The Appeals Chamber notes that Rule 82 bis, introduced into the Rules of Procedure and Evidence by an amendment of 27 May 2003, reads as follows:
If an accused refuses to appear before the Trial Chamber for trial, the Chamber may order that the trial proceed in the absence of the accused for so long as his refusal persists, provided that the Trial Chamber is satisfied that:
(i) the accused has made his initial appearance under Rule 62;
(ii) the Registrar has duly notified the accused that he is required to be present for trial;
(iii) the interests of the accused are represented by counsel.
102. The fact that there is no prohibition on holding a trial in the absence of the accused if he refuses to attend emerges clearly from the practice deriving from international human rights instruments, as established prior to 23 October 2000, date of the first day of hearing in the present case. In particular, the Human Rights Committee had already held in 1983 that the provisions of Article 14 of the ICCPR do not prohibit proceedings in the accused’s absence when, for example, “the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present”.
103. In C v. Italy, the European Commission of Human Rights recognized the possibility for an accused to waive his right to be present at trial. This possibility was subsequently recognized by the European Court of Human Rights.
104. Moreover, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa provide that “[t]he accused may voluntarily waive the right to appear at a hearing, but such a waiver shall be established in an unequivocal manner and preferably in writing”.
105. The Appeals Chamber further notes that, even though the Rules of the ICTY do not contain a rule corresponding to Rule 82 bis, the jurisprudence of the ICTY recognizes that the right to be present at trial can be waived explicitly.
106. Lastly, although its adoption occurred after 23 October 2000, the Appeals Chamber takes the view that Rule 60(A)(i) and (B) of the Rules of the Special Court for Sierra Leone sheds light on the aforementioned international practice in that it provides that an accused cannot be tried in his absence unless he has made his initial appearance, has been afforded the right to appear at his own trial, but refuses to do so.
107. It clearly emerges from the aforementioned concurring instruments and jurisprudence that, however firmly the right of the accused to be tried in his presence may be established in international law, that did not, on 23 October 2000, preclude the beneficiary of such right from refusing to exercise it. Insofar as it is the accused himself who chooses not to exercise his right to be present, such waiver cannot be assimilated to a violation by a judicial forum of the right of the accused to be present at trial. Such right is clearly aimed at protecting the accused from any outside interference which would prevent him from effectively participating in his own trial; it cannot be violated when the accused has voluntarily chosen to waive it.
108. According to the European Court of Human Rights, such a waiver must be given of the accused’s free will, with knowledge of the nature of the proceedings against him and of the date of the trial; it must be unequivocal and must not run counter to any important public interest. The Human Rights Committee also allows such a waiver provided that it is in the interest of the sound administration of justice, that the accused has been informed beforehand of the proceedings against him, as well as of the date and place of the trial, and that he has been notified that his attendance is required.
109. Pursuant to the foregoing case-law, the Appeals Chamber concludes that waiver by an accused of his right to be present at trial must be free and unequivocal (though it can be express or tacit) and done with full knowledge. In this latter respect, the Appeals Chamber finds that the accused must have had prior notification as to the place and date of the trial, as well as of the charges against him or her. The accused must also be informed of his/her right to be present at trial and be informed that his or her presence is required at trial. The Appeals Chamber finds further that, where an accused who is in the custody of the Tribunal decides voluntarily not to be present at trial, it is in the interests of justice to assign him or her Counsel in order, in particular, to guarantee the effective exercise of the other rights enshrined in Article 20 of the Statute. Moreover, Rule 82 bis of the Rules [of Procedure and Evidence], which allows the Trial Chamber to adjust the proceedings where an accused has refused beforehand to be present during his or her trial, also imposes such conditions. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, §§ 96, 100 and 102–109.
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee stated:
Article 14, paragraph 3 (d) contains three distinct guarantees. First, the provision requires that accused persons are entitled to be present during their trial. Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Consequently, such trials are only compatible with article 14, paragraph 3 (d) if the necessary steps are taken to summon accused persons in a timely manner and to inform them beforehand about the date and place of their trial and to request their attendance. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, § 36.
Human Rights Committee
In Daniel Monguya Mbenge v. Zaire in 1983, the Human Rights Committee held:
14.1 … According to article 14 (3) of the [1966 International Covenant on Civil and Political Rights], everyone is entitled to be tried in his presence and to defend himself in person or through legal assistance. This provision and other requirements of due process enshrined in article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person’s absence. Indeed, proceedings in absentia are in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) permissible in the interest of the proper administration of justice. Nevertheless, the effective exercise of the rights under article 14 presupposes that the necessary steps should be taken to inform the accused beforehand about the proceedings against him (art. 14 (3) (a)). Judgement in absentia requires that, notwithstanding the absence of the accused, all due notification has been made to inform him of the date and place of his trial and to request his attendance. Otherwise, the accused, in particular, is not given adequate time and facilities for the preparation of his defence (art. 14 (3) (b)), cannot defend himself through legal assistance of his own choosing (art. 14 (3) (d)) nor does he have the opportunity to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf (art. 14 (3) (e)).
14.2 The Committee acknowledges that there must be certain limits to the efforts which can duly be expected of the responsible authorities of establishing contact with the accused. With regard to the present communication, however, those limits need not be specified. The State party has not challenged the author’s contention that he had known of the trials only through press reports after they had taken place. It is true that both judgements state explicitly that summonses to appear had been issued by the clerk of the court. However, no indication is given of any steps actually taken by the State party in order to transmit the summonses to the author, whose address in Belgium is correctly reproduced in the judgement of 17 August 1977 and which was therefore known to the judicial authorities. The fact that, according to the judgement in the second trial of March 1978, the summons had been issued only three days before the beginning of the hearings before the court, confirms the Committee in its conclusion that the State party failed to make sufficient efforts with a view to informing the author about the impending court proceedings, thus enabling him to prepare his defence. In the view of the Committee, therefore, the State party has not respected D. Monguya Mbenge’s rights under article 14 (3) (a), (b), (d) and (e) of the Covenant. 
Human Rights Committee, Daniel Monguya Mbenge v. Zaire, Views, 25 March 1983, §§ 14.1–14.2.
Human Rights Committee
In Karttunen v. Finland in 1992, the Human Rights Committee stated:
… The Committee considers that the author was entitled to oral proceedings before the Court of Appeal. As the State party itself concedes, only this procedure would have enabled the Court to proceed with the reevaluation of all the evidence submitted by the parties, and to determine whether the procedural flaw had indeed affected the verdict of the District Court. In the light of the above, the Committee concludes that there has been a violation of article 14, paragraph 1 [of the 1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Karttunen v. Finland, Views, 23 October 1992, § 7.3.
Human Rights Committee
In Becerra Barney v. Colombia in 2006, the Human Rights Committee held:
The Committee takes note of the author’s claims that he was tried and convicted in first instance and on appeal by courts made up of faceless judges, without the due safeguards of a public hearing and adversarial proceedings, and in particular that he was not allowed to be present and defend himself during the trial, either personally or through his representative, and had no opportunity to question the prosecution witness. It points out that, to satisfy the requirements of the right to defence guaranteed under article 14, paragraph 3, of the [1966 International Covenant on Civil and Political Rights], all criminal proceedings must allow the accused the right to an oral hearing at which he or she can appear in person or be represented by legal counsel, submit such evidence as he or she deems relevant and question the witnesses. Bearing in mind that the author was not given such a hearing during the proceedings which culminated in his conviction and sentencing, the Committee concludes that his right to a fair trial as established in article 14 of the Covenant was violated. 
Human Rights Committee, Becerra Barney v. Colombia, Views, 10 August 2006, § 7.2.
Human Rights Committee
In Dudko v. Australia in 2007, the Human Rights Committee held:
The Committee observes that when a defendant is not given an opportunity equal to that of the State party in the adjudication of a hearing bearing on the determination of a criminal charge, the principles of fairness and equality are engaged. It is for the State party to show that any procedural inequality was based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness to the author. In the present case, the State party has offered no reason, nor does the file reveal any plausible reason, why it would be permissible to have counsel for the State take part in the hearing in the absence of the unrepresented defendant, or why an unrepresented defendant in detention should be treated more unfavourably than unrepresented defendant not in detention who can participate in the proceedings. Accordingly, the Committee concludes that a violation of the guarantee of equality before the courts in article 14, paragraph 1, [of the 1966 International Covenant on Civil and Political Rights] occurred in the circumstances of the case. 
Human Rights Committee, Dudko v. Australia, Views, 29 August 2007, § 7.4.
European Court of Human Rights
In its judgment in the Colozza case in 1985, the European Court of Human Rights held that the conduct of a criminal trial without the presence of the accused was incompatible with Article 6 of the 1950 European Convention on Human Rights and that in cases where a person was convicted in absentia, there must be an opportunity for that person to reopen the trial. 
European Court of Human Rights, Colozza case, Judgment, 12 February 1985, § 29.
The European Court of Human Rights held that a hearing in absentia was permitted if the State had acted diligently, but unsuccessfully, to give the accused effective notice of the hearing. 
European Court of Human Rights, Colozza case, Judgment, 12 February 1985, § 28; see also F. C. B. v. Italy case, Judgment, 28 August 1991, § 33.
European Court of Human Rights
In several cases, the European Court of Human Rights decided that the right to be present included appeal proceedings if the issues considered were not purely those of law, but included issues of fact or sentencing. 
See, e.g., European Court of Human Rights, Ekbatani v. Sweden, Judgment, 26 May 1988, § 31; Kremzow v. Austria, Judgment, 21 September 1993, §§ 59 and 67.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The conviction must be pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include …trial in the presence of the accused”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(e).
ICRC
The ICRC Commentary on the Additional Protocols states that Article 75(4)(e) of the 1977 Additional Protocol I “does not exclude sentencing a defendant in his absence if the law of the State permits judgement in absentia”. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3109.
The Commentary adds:
In some countries the discussions of the judges of the court are public and take place before the defendant; in other countries the discussion is held in camera, and only the verdict is made public. Finally, there are countries where the court’s decision is communicated to the defendant by the clerk of the court in the absence of the judges. This sub-paragraph does not prohibit any such practices: the important thing is that the defendant is present at the sessions where the prosecution puts its case, when oral arguments are heard, etc. In addition, the defendant must be able to hear the witnesses and experts, to ask questions himself and to make his objections or propose corrections. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987,7break; § 3110.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including: “Anyone charged with an offence shall have the right to be tried in his or her presence.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9(d), IRRC, No. 282, 1991, p. 334.