Trials in Absentia of Foreign Fighters and their Families?

On Wednesday 11 May 2022, the District Court of Rotterdam, in a closed session, decided that the Netherlands Cabinet must repatriate twelve Dutch women who joined the Islamic State/Daesh as well as their twenty-nine children from camps in North-East Syria (NES). The District Court ruled that if repatriation does not take place within four months, the Netherlands Public Prosecution Service (NPPS) would lose its right to prosecute. Although this decision concerns the largest group of Dutch returnees so far, it is not the first time a Dutch court has issued a decision like this. In February this year, Tanya Mehra published an ICCT Perspective in which she analysed the recent repatriation by the Netherlands Cabinet of five Dutch women and their eleven children from NES, after the District Court of Rotterdam had likewise ruled in October 2021 that it assumes the Cabinet will ensure that the suspects will be repatriated to the Netherlands for the purpose of criminal prosecution. If the five terrorist suspects, who indicated they wanted to exercise their right to be present at their own trials, were not repatriated, the Court could terminate the proceedings. This development has led some Dutch politicians who oppose repatriation as a matter of principle to assert that the right to be present at trial should be reconsidered, to avoid that it is used as a vehicle for a wider court-enforced repatriation of the Dutch citizens who remain stuck in Syria. For example, Dutch MP Ingrid Michon stated in response to the repatriation that this is exactly why her party, the governing People’s Party for Freedom and Democracy (Volkspartij voor Vrijheid en Democratie, VVD), has been pushing for conducting trials via video-link.

In this Perspective, we will delve into the issue of in absentia prosecution (i.e. without the suspect being present) of individuals who have travelled to Syria, analysing the law at both the international, as well as the domestic level. We will conclude that trials in absentia, even if not strictly prohibited under international law and allowed in several domestic jurisdictions, are nonetheless problematic for various reasons and should only be considered as a last resort.

Trials In Absentia – The International Context

Trials in absentia have been used against suspects of serious crimes in the past. Looking first at the international context: Article 12 of the Charter of the International Military Tribunal (IMT) of Nuremberg, established after the Second World War “for the just and prompt trial and punishment of the major war criminals of the European Axis”, stipulated:

The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter [these are crimes against peace, war crimes, and crimes against humanity] 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.

This happened with Martin Bormann, a Nazi leader who could not be found and who was subsequently tried in absentia, found guilty of war crimes and crimes against humanity, and sentenced to death. More recently, the Special Tribunal for Lebanon (STL) was established to try the suspects of the Beirut terrorist attack of 14 February 2005, that killed twenty-two people, including former Lebanese Prime Minister Rafik Hariri. Like its predecessor the IMT of Nuremberg, the STL allows for trials in absentia pursuant to Article 22 of its Statute. The rationale of this possibility is that, in the words of the Tribunal, “[j]ustice must not be stopped by an accused or a state which refuses to hand an accused over.” Indeed, there are valid reasons why prosecutors are keen to prosecute individuals, especially those suspected of having committed serious offences, at all costs and serve what they conceive as the public interest. In particular, trials in absentia can be useful to ensure that the victims of serious crimes receive prompt redress for the harm they have suffered. It is no coincidence that a specific procedure (Rule 61 of its Rules of Procedure and Evidence) resembling but not akin to an in absentia procedure in the context of the International Criminal Tribunal for the former Yugoslavia (ICTY) has been labelled the ‘Voice of the Victims’. At the STL, three accused – Salim Jamil Ayyash, Hassan Habib Merhi, and Hussein Hassan Oneissi – have now been convicted, in absentia, for their role in the 2005 terrorist attack.

However, despite the examples from the IMT of Nuremberg and the STL, trials in absentia have generally not been allowed by international criminal tribunals. The ICTY, the International Criminal Tribunal for Rwanda, and the permanent International Criminal Court, established between the IMT of Nuremberg and the STL, did not and do not allow for trials in absentia. Moreover, paragraph 3 (d) of Article 14 (‘Right to equality before courts and tribunals and to fair trial’) of the 1966 International Covenant on Civil and Political Rights (ICCPR), a key human rights treaty ratified by no fewer than 173 states parties, stipulates that “[i]n the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […] [t]o be tried in his presence”. A similar human right can be found in paragraph 3 (c) of Article 6 (‘Right to a fair trial’) of the European Convention on Human Rights. The link between presence and fairness is quite obvious, as trials where the suspect is not physically present and cannot effectively use his or her procedural rights to (cross-)examine witnesses and challenge inculpatory evidence are considerably less likely to be fair ones. In that sense, one can wonder whether the STL system is not in contravention of international human rights law, as has indeed been argued elsewhere. In its ‘Decision to Hold Trial In Absentia’ of 1 February 2012, the Trial Chamber of the STL held that

[i]nternational human rights instruments require that an accused person is properly notified of the charges and invited to appear before the court (at least by summons) and is notified of the consequences of non-appearance – that is of the possibility of the court holding a trial in absentia – before the court can proceed to try the person in his or her absence [original footnote omitted].

However, the judges continued, “[i]nternational human rights law (…) imposes no obligations on State authorities, beyond taking these necessary notification steps, before a court may proceed to a trial in absentia.” Similarly, the Human Rights Committee, the ICCPR’s monitoring body, has explained in its General Comment No. 32 of 2007 that

[p]roceedings 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 [original footnote omitted].

Hence, international law does not prohibit a trial in absentia, as long as the necessary notification steps are taken to ensure that the suspect has the choice to either attend his or her trial or not. However, international human rights law imposes rather stringent requirements to establishing whether someone has waived his or her right to be present. If, in the end, the person indicates a wish to attend the trial, then that person should in principle also be enabled to attend his or her trial. We will come back to this in the conclusion.

In this section we have discussed how from the perspective of international human rights law, trials in absentia are a double-edged sword. On the one hand, a trial where the suspect is not physically present and cannot effectively use his or her procedural rights is less likely to be a fair one. On the other hand, there are valid reasons, including those related to the administration of justice and the predicament of the victims, why prosecutors would want to proceed with prosecution in absentia if feasible, especially in relation to individuals suspected of having committed serious offences. It is because of this fundamental dilemma that international law permits trials in absentia but only under strict circumstances.

Trials In Absentia – The National Context

At the national level, trials in absentia are generally not allowed in common law jurisdictions, where the right to be present at one’s trial is a fundamental guarantee, which can only be derogated from in certain limited circumstances. In civil law jurisdictions, there appears to be more room for trials in absentia, “provided that the defendant’s rights are sufficiently protected and there is a right to automatic retrial when a defendant surrenders or is arrested.” As described in an earlier ICCT publication on foreign fighters, several defendants have already been tried in absentia in major terrorism trials in the Netherlands and (especially) Belgium. In the Netherlands, the NPPS announced on 15 February 2017 that it would start criminal investigations against all 190 Dutch individuals still present in Syria and Iraq. Then national coordinating prosecutor Ferry van Veghel explained: “Given the high risk of people who come back from this area, we do not want to wait until they come back before opening criminal investigations. We want it all to start now and continue in their absence.” The argument of using trials in absentia in order to minimise risks was also mentioned by the then Minister of Security and Justice Stef Blok a few days later, on 20 February 2017. It was clear the NPPS also wanted to convey a strong message: “These people think they have said farewell to our legal system, but we have not said farewell to them.” The first case based on this new policy started in March 2017, involving ten foreign fighters from the Netherlands, supposedly residing in Syria and Iraq, and whom the NPPS had attempted to contact via social media platforms, such as Twitter, Facebook, and WhatsApp.

However, even in those jurisdictions that occasionally allow for trials in absentia, serious doubts have been raised about their use, and they are quite similar to what has already been discussed at the international level. In response to the decision of the NPPS to start trials in absentia, a Dutch defence lawyer specialised in international criminal law argued that because of the suspect’s absence, prosecution will take place without the suspect’s side of the story (sufficiently) being heard. Audiatur et altera pars – may the other side also be heard – can thus not be fully guaranteed, increasing the risk of wrongful convictions. While this latter point is more directly linked to the interests of the individual suspect, one can wonder whether it is not also in the public interest to do one’s utmost to enable trials in the presence of the suspect. After all, trials of individuals accused of serious offences constitute a unique occasion to expose the perverse criminal minds of alleged terrorists and the fundamental flaws in their ideologies. Debunking their ideas in their very presence and in full view of the public would showcase the strength of the rule of law by treating even individuals who have allegedly ‘turned their backs’ to the Netherlands as equal citizens before the law. Prosecuting foreign fighters and their family members via video-link is a rather poor alternative for a proper public trial in which all key players in the criminal justice process, including not only the defendant but also witnesses, victims, and other stakeholders, are physically present in the same court room. Digitalised legal proceedings undoubtedly have a promising future in many proceedings concerning private and administrative law and even in the prosecution of misdemeanours. However, in high-profile terrorism cases that concern national security, there is arguably a strong public interest for the state to prosecute terrorists in a full-scale trial in which the physical presence of the accused is crucial to ensure the equality of arms between the accused and the prosecution. In our view, trials by video-link therefore only constitute a legitimate alternative if the accused has expressly waived his or her right to be physically present at trial.

In short, trials in absentia are under certain circumstances permitted under both international law and in several national jurisdictions, but that does not mean their use is not troublesome, in relation to both the individual’s human rights and the public interest to show the full force of the fairness of trials that terrorists themselves withhold from their own victims.

Conclusion

Let us now return to the case involving the five Dutch women who had travelled to Syria. We stress that this case should be distinguished from the case involving the actual fighters that the NPPS tried to contact in March 2017, and whose whereabouts were unknown. It was about five Dutch citizens who were aware of the legal proceedings against them, who had indicated a wish to be present at their trial, whose location was known but who were physically prevented from travelling to the Netherlands. In such cases, the right to be physically present at one’s own trial – a major feature of the right to a fair trial – should in principle overrule other legal and political considerations. Of course, saying you want to attend your trial should not be the end of the matter. After all, foreign fighters could simply assert this is their wish, but in reality continue escaping justice, thus paralysing the proper administration of justice. However, it is clear that the women in the camps were not escaping justice. In such situations, trials in absentia should arguably not be held. Individuals whose location in Syrian camps is well-known to law enforcement authorities, and who have expressed their desire to be prosecuted should in principle be able to fully exercise their right to be present at their own trial, and thus be enabled to do so. This approach is not only consistent with international human rights law and the public interest of showing the fairness of the ensuing trials, but is also preferable from the perspective of another public interest, namely the protection of national security. Upholding the right to be present at trial ensures that governments will be forced by courts to repatriate their citizens who remain detained in Syria to enable their prosecution. Repatriation allows national law enforcement authorities to keep track of the whereabouts of the individuals concerned and avoids the real risk of individuals disappearing off the radar. As argued already more than three years ago: proactive repatriation and subsequent prosecution before national courts constitute the only viable solution to the enduring challenge posed by the many individuals still stuck in camps in Syria. This solution is not only the best option from an international law perspective, but also from a moral as well as a long-term security perspective. Fortunately, this approach is increasingly endorsed in public, not only by academics, but also by practitioners, policy makers, and security services.

Nevertheless, even when individuals deliberately abscond from justice, and a trial in absentia is thus not per se unwarranted, their use should still be considered as a last resort, as an ultimum remedium. In the words of Antonio Cassese, the late President of the STL whose Statute, as mentioned above, allows for trials in absentia: “it is in the best interests not only of the accused, but also of the Tribunal – with its purpose of achieving a fair and efficient trial to establish truth and promote reconciliation within Lebanon – for each accused to be present and to fully participate in his own defence.”