The prosecution and defense lawyers at the International Criminal Court (ICC) are in agreement that the court’s systems are presently incapable of handling seamless and secure virtual hearings that also protect defendants’ fair trial rights. The court’s premises are currently closed, and many parties to ongoing cases cannot leave their homes due to COVID-19 restrictions. This has prompted the court to consider holding virtual hearings.

With doubts expressed about the suitability of virtual hearings, it is likely that the court will delays proceedings in some cases. Already, the prosecution’s appeal against the acquittal of former Ivorian president Laurent Gbagbo and his co-accused, Charles Blé Goudé, has been postponed. Earlier scheduled for May 11 to 13, the Appeals Chamber moved the hearing to between May 27 and 29. However, the prosecution and the defense have asked the Appeals Chamber to postpone it again, arguing that the proposed virtual hearing would face technical difficulties and fail to ensure the accused’s rights.

Similarly, it remains uncertain whether the trial of former Malian militant Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, scheduled to start on July 14, 2020, will go ahead as planned. Whereas Trial Chamber X last week issued directions on the conduct of proceedings, it did not specify whether the trial would be held virtually or physically in The Hague. The chamber said it would be in a better position to assess the issue after it receives detailed and updated information “in the coming months” on COVID-19 control measures in Mali and in The Netherlands.

Last month, Trial Chamber X noted that the COVID-19 pandemic had affected trial preparations, citing logistical challenges of the court’s remote working arrangements and restrictions on travel between and within countries.

In the Bosco Ntaganda case, where an oral appeals hearing is scheduled for late June at the seat of the court, defense lawyers have asked judges to be mindful of the logistical challenges and fair trial considerations that would arise if they were to consider holding a virtual hearing. The issues they raised included the ability of defense teams to install and run robust systems to handle an online hearing, and the ability to maintain the confidentiality of the proceedings when parties are pleading from their homes.

Last week, Blé Goudé’s lawyers asked judges to cancel this month’s hearing and instead schedule an oral hearing when all parties and participants can physically attend. They said technical arrangements proposed by the court’s Registry raise several substantive questions about the fairness of the proceedings. Moreover, the defense said a virtual hearing would deny Blé Goudé his right to be present at the hearing under Article 67 of the Rome Statute, to have proper facilities to conduct his defense, and to have his co-counsel Claver N’Dry, who is in the Ivory Coast, physically present.

Earlier last month, the prosecution requested judges to postpone or cancel the Gbagbo hearing, prompting the chamber to name the new dates at the end of this month and to ask the Registry to propose options for conducting the hearing. In one option proposed, all parties and participants would participate virtually from their homes.

In another option, the Registry suggested that some members from the prosecution, defense, and legal representatives of the victims would sit in offices and conference rooms within the ICC premises, from where they would take part in the hearing virtually by video-link or other virtual technology, using social distancing and restricted hours to reduce health risks while in the court’s premises. Other members of each team would participate virtually from home.

In its latest submissions of May 8, the prosecution said conducting a hearing at the court premises this month in the manner suggested by the Registry would pose safety and health risks to those involved. The prosecutor also said whatever modalities the court adopts for a virtual hearing, it should be conducted in a way that fully protects the integrity of the proceedings, the rights of Gbagbo and Blé Goudé, and those of the prosecution and victims’ lawyers.

ICC Prosecutor Fatou Bensouda said virtual hearings bring various technical challenges to litigants, parties, and judges, which do not manifest during in-court hearings. She added that she had serious concerns about the feasibility of holding a meaningful and efficient hearing on the scheduled dates, given the outstanding logistical uncertainties. According to her, it would be a challenge to resolve those matters in just over two weeks because the court had not previously held or tested such virtual hearing and discussions to address these challenges have only commenced recently.

In the Ntaganda case, the defense has argued that remote criminal hearings disadvantage defendants. It has also submitted that there is no provision in the ICC’s statutory documents for defendants attending hearings via video-link in any circumstances other than as a sanction for continual disruption of proceedings.

Meanwhile, Blé Goudé’s lawyers have also argued that several complex and novel issues raised in the appeal, which arose for the first time at the ICC during the Gbagbo-Blé Goudé case, necessitate scheduling an oral hearing. They include the nature of no case to answer proceedings and their functioning in the ICC system, including the applicable standard of proof.

Blé Goudé’s lawyers also said public court proceedings are part of the right to a fair trial, especially where the appeal is against an acquittal. They submitted that, in this “high-profile case” with direct impact on Ivorian society and reconciliation efforts, “excluding the public and the press from the proceedings, either by conducting the proceedings in writing or by holding an oral hearing via teleconference, would undermine such efforts and could affect the legitimacy of the judgment, as this is perceived by the public.”