An Introduction To The International Criminal Court - Institute for ...

146 introduction to the international criminal court
favour of a straightforward solution – trials in absentia are not provided for
under any circumstances in the Statute’. 11
Presence at trial should imply more than mere physical presence. The
accused should be in a position to understand the proceedings, and this
may require interpretation in cases where the two official languages of the
Court are not available to the accused. 12 The Statute is silent with respect
to cases of an accused who is unfit to stand trial because of mental disorder,
although this lacuna is corrected in the Rules, which direct the Trial Chamber
to adjourn the proceedings when it ‘is satisfied that the accused is unfit to
stand trial’. 13 The problem of fitness to stand trial should not be confused
with the defence of insanity, allowed by Article 31(1)(a) of the Statute,
where the issue is the accused’s mental condition at the time of the crime.
An accused who is unfit to stand trial is not ‘present’ within the meaning
of Article 63 and therefore the hearing cannot proceed. In many national
justice systems, an accused may be held in detention pending a change in his
or her condition permitting the court to determine fitness. The suggestion in
the International Law Commission draft statute that the Court be permitted
to continue proceedings in the case of ‘ill health’ of an accused, a provision
that might possibly have allowed the Court to address such situations, was
rejected by the Diplomatic Conference.
The situation of an accused who is unfit to stand trial is far from an
idle hypothesis. In the Erdemovic case, the ICTY remanded the accused for
psychiatric examination so as to determine whether the plea of guilty had
been made by a man who was ‘present’ in all senses of the word. A panel of
experts concluded that he was suffering from post-traumatic stress disorder
and that his mental condition at the time did not permit his trial before
the Trial Chamber. 14 The Trial Chamber postponed the pre-sentencing
hearing and ordered a second evaluation of the appellant to be submitted
in three months’ time. 15 A subsequent report concluded that Erdemovic’s
condition had improved such that he was ‘sufficiently able to stand
trial’. 16 At Nuremberg, the International Military Tribunal rejected suggestions
that defendants Rudolf Hess and Julius Streicher were not fit to stand
trial. 17
11 Friman, ‘Rights of Persons’, pp. 255–61 at p. 262.
12 See also Rome Statute, Art. 67(1)(f). 13 Rules of Procedure and Evidence, Rule 135(4).
14 Prosecutor v. Erdemovic (Case No. IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 5.
15 Prosecutor v. Erdemovic (Case No. IT-96-22-A), Appeal Judgment, 7 October 1997, para. 5.
16 Ibid., para. 8. 17 France et al. v. Goering et al., note 8 above.