Preparations are underway for the Special Tribunal for the Crime of Aggression against Ukraine (STCA), to be established in the Netherlands to prosecute senior political and military leaders who are responsible for the crime of aggression against Ukraine. While preparations are advancing, the inclusion of in absentia trials in its Statute has been criticized by several non-governmental organizations. Amnesty International and other organizations suggest that this is a “regressive development” and argue that in absentia trials should be avoided altogether by the STCA.
That perspective, held more often by civil society, essentially transforms an accused’s right to be present at their trial into a right to determine whether there will be a trial at all. There are good reasons to rethink this approach. International practice is more nuanced than it may seem at first glance. And a strict prohibition of in absentia trials in some jurisdictions was shaped at a time that was not comparable to ours for a range of factors; in particular, the volume and impact of cross-border crime, the ability to provide effective notice to persons abroad, and our perception of victims’ rights were all fundamentally different than they are today. While the fair trial principles underlying the concerns about in absentia trials are as relevant as ever, the way we calibrate the balancing of the interests of victims, the accused, and society at large must take into account contemporary realities.
Are in Absentia Trials Fair to the Accused?
There is no doubt that international law allows trials in absentia if the defendant has been informed of both the charges against them and the proceedings, and is allowed and able to participate but chooses not to exercise that right. That is not only a matter of logic, since informed participation in trial is a human right, not a human obligation, but has also been widely held by national and international courts and human rights bodies alike (see here, pp. 204-205, and here).
Some judges have pointed out that rules opposing in absentia trials were developed hundreds of years ago, in a very different world, but have been perpetuated in modern times. These judges have called into question whether these rules still balance all relevant interests in a way that adequately accounts for modern circumstances. They have a point. Objections against in absentia trials originated when cross-border crime was far more limited, international travel was more cumbersome and exceptional, and it was obviously far more difficult to provide notice to someone half a world away than it is today.
Digital communication and translation, mobile phones, the ability to travel, the ability to retain and instruct legal representation in another country, and the possibility to trace individuals around the globe are all vastly different now than they were when these rules were originally developed.
The requirement in some jurisdictions that a defendant must be present at least at the beginning of trial, for example, is often justified as a way of ensuring the defendant’s knowledge of his trial. One can understand the practicality of this rule at a time when defendants fled their jurisdictions by barge, could not be traced on social media or through digital transactions, could not be called on their cell phones or notified by email, and when a request for international legal assistance to another government was sent by stagecoach or boat. But our ability to reach and inform people around the world has improved so dramatically, that the necessity or fairness of such a requirement must now be questioned.
Indeed, if defendants have been duly informed of their trial and can attend it with no more difficulty than they might routinely undertake to go on a holiday, but voluntarily refuse to attend, it must be asked why it would constitute a rights violation if that trial takes place without them. As the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber stated in Nahimana (para. 107):
“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.”
Indeed, while it is true that international criminal tribunals have generally not been allowed to conduct in absentia trials, as noted by critics of such trials (e.g. here on p. 157), the Appeals Chamber for the International Criminal Tribunal for the former Yugoslavia (ICTY) and ICTR has held in multiple cases that the right to be present at trial is not absolute and may be waived or forfeited by the accused (see in 2007 (paras. 102-107), 2008 (para. 6), see also more recently in 2023, para. 65).
Surely, there are practical examples where specific instances of trials in absentia have violated the rights of defendants, by failing to adhere to strict standards for assessing the notification of defendants, their (explicit or implicit) waiver to participate, or their right to a retrial. But such individual examples are reason to strictly adhere to the accepted conditions for such trials as detailed above, not to ban such trials altogether. Errors in practical application and legal principles should not be conflated.
It is often said that the civil law tradition accepts in absentia trials but the common law tradition “denies their legitimacy.” Even when stated conservatively, this proposition is an oversimplification that obscures a far more nuanced reality. An interesting historical example is the Einhorn case, in which France initially refused extradition to the United States of a defendant who had been convicted in his absence for murder, because French courts found Pennsylvania’s conditions for retrial to be more rigid than human rights law allowed.
In truth, both civil law and common law systems acknowledge that trials in the absence of the defendant can be necessary to properly balance the rights of an accused with the rights of victims, witnesses, and society at large. The conditions for such trials to take place vary, even within each legal system. Many common law jurisdictions allow them only when a defendant absconds after the beginning of trial or when he severely misbehaves in the courtroom. But others strike a different balance. Courts in England, Arizona, and Pennsylvania, for example, have broader authority to conduct trials when defendants are absent, provided their absence is intentional and the trial remains fair. In some other jurisdictions, stricter rules apply but courts recognize that these are choices by the legislature that are not necessary for the fairness of the trial, and could be adjusted without imperiling due process (see, e.g., the recent Scottish McElwain case, in particular paras. 25, 26, and 29). Thus, generic references to “common law jurisdictions” often obscure the reality that these legal jurisdictions are more diverse and permissive of trials in absentia than seems the case at first sight.
Article 28 of the Statute for the STCA stipulates that trials in absentia may only be held if the interests of justice so require and if the accused has been informed and has legal representation, and additionally sets forth that the accused has a right to retrial in his presence. This fully conforms with international human rights law. In fact, it is more generous to the accused than many legal systems around the world, including both common law and civil law jurisdictions.
But are in Absentia Trials a Good Idea?
Some commentators assert that trials in absentia are indeed lawful, but should nevertheless be avoided for practical reasons. They raise the question of whether a trial without a defendant available to participate in their defense and accept their punishment is of any real value. That is a legitimate question, which should be discussed in a realistic manner. But that is not by comparing trials in absentia to trials with an accused in the courtroom. It is easy to agree that the latter is preferable, but that often is not the choice we actually face. The real question is whether trials in absentia can be useful if the alternative is to have no trial at all. The answer to that question depends on the circumstances of each case. While trials without a defendant are certainly not ideal, in some cases they are the least imperfect option.
That is especially true for serious extraterritorial crimes organized (or accepted) by states. In the last decades, the world has seen many examples of those. These include the poisonings of Litvinenko and Skripal in the United Kingdom, numerous cases of torture related to the “war on terror,” murders of dissidents in numerous countries, including Germany, Austria, the United Arab Emirates, and Qatar, the downing of MH17, the 1994 bombing of the Jewish AMIA community centre in Buenos Aires, the public incitement from Pakistan to the murder of a politician in The Netherlands, and the murder of Jamal Khashoggi in Turkey. Perpetrators of such crimes are protected from investigation and prosecution by the governments involved. Any suggestion that in such cases the solution must be better international cooperation and patience lacks realism. Experience shows that the only defendants facing a genuine trial in such cases are those prosecuted by the state where the crimes were committed.
In some of these cases, victim states (i.e. the states where the crime took place) have instituted in absentia trials. An example is the Turkish trial against Saudi suspects of the Khashoggi murder, which was at some point halted and transferred to Saudi Arabia. In that particular case, Amnesty International fiercely and repeatedly opposed the transfer of the in absentia trial to Saudi Arabia, calling it a “dark day” and a “path to impunity” that must not be taken.
In cases where accused are protected by involved states, in absentia trials will not result in the actual punishment of the perpetrators, but can nevertheless attain various goals. They affirm essential legal norms, develop the law, and establish an authoritative public record for important facts. A recent in absentia trial in France of the captain of a tanker of Russia’s shadow fleet, for example, is important for publicly establishing facts of significance for a broader international audience. Such facts can inform international actions, such as sanctions regimes against persons, groups, and companies involved. The MH17 trial, discussed below, was likewise important for authoritatively establishing facts about the downing of the airplane and Russian involvement in the armed conflict in Ukraine from 2014 onwards. Even when many facts are already in the public domain, as is the case for Russian violence against Ukraine, they can take on more gravity when confirmed in a judgment from a court. Especially in times of continuous erosion of the rule of law, the affirmation of legal norms through their actual application by an independent judiciary is essential.
In Absentia Trials and Victims’ Rights
In absentia trials can also be important to express solidarity with victims. When the rules on trials in absentia originally developed, the position of victims was viewed very differently than it is today. Over the last decades, human rights jurisprudence has progressively clarified and codified that serious crimes must be effectively and efficiently investigated and, where possible, prosecuted. If that is not possible with the accused in the courtroom, there are cases in which a trial in absentia is the second-best solution, and better than having no trial at all. A French in absentia trial which took place in 2026 for genocide and crimes against humanity against Yazidi women and children in Syria, for example, has been hailed as a historic opportunity for justice by victims’ associations, notwithstanding the fact that it is uncertain whether the accused is still alive.
In 2023, the Italian Constitutional Court recognized that the rights of victims must be taken into account when assessing the legitimacy of and potential need for a trial in absentia. The case concerned the 2016 torture and murder of an Italian academic, Giulio Regeni, in Egypt. Egypt refused to formally notify four accused Egyptian state agents of their impending trial in Italy. As a result, the Constitutional Court was asked to rule on the tension between the fundamental right of defendants to be present at their trial, the duty of the state to prosecute crimes amounting to acts of torture (for instance under the Convention Against Torture), the rights of the victim and the victim’s family, and also the benefit to humanity as a whole to see the effective investigation and prosecution of such crimes. The Constitutional Court found that allowing Egypt to forestall the trial by refusing to notify the defendants would violate the rights of the victim, Italy’s right and duty to prosecute the case, and conflict with international (human rights) law. The Court ruled that the Italian trial should take place even in the absence of proof that the defendants were put on notice, but that the defendants were entitled to a broad right to request a new trial in their presence in order to safeguard the fairness of the proceedings.
Just last year, Argentina updated its criminal procedure code to allow trials in absentia for international crimes like terrorism and crimes against humanity. Shortly afterward, a federal judge in Argentina ordered 10 Iranian and Lebanese nationals suspected of involvement in the 1994 AMIA bombing to stand trial in absentia. Such developments as in Italy and Argentina share the common realization that a legal system cannot achieve justice when only the rights of accused, and not those of the victims and society at large, determine whether there will be accountability or not. They also illustrate how important trials can be for victims, even when they are held in absentia.
Similar considerations apply to the STCA. While the outcome may be different depending on the facts of each case (and instituting a trial without confirmation that the defendant is on notice of it is clearly a measure of last resort), governments and courts must consider the rights and interests of victims and society at large as well as those of the defendants. These go beyond victim participation in proceedings and compensation, both of which will raise novel questions when aggression is tried since the crime and the victim group are of a different scale and nature than in other trials. In cases such as Ukraine, where widespread and systematic violence has been reported to demonstrate a total disregard for human life and dignity (most recently by the Independent International Commission of Inquiry on Ukraine) and accountability is essentially absent, trials can be an important expression of solidarity and hope.
Much has been written and said about the indifference of the outside world to the victims of the Holocaust, and their resulting pain of having been abandoned by humanity. Less has been learnt from it. While there is a lot of commendable support for Ukraine, not a single international criminal trial has addressed crimes committed in Ukraine since 2014. It must be asked what can justify a continuing absence of such trials now that there is a concrete chance to start them.
The MH17 Trial as an Example of a Fair in Absentia Trial
A good example of a fair and meaningful in absentia trial is the prosecution of four defendants for their role in the downing of MH17 (full disclosure: I was one of the prosecutors in that case). Before the trial commenced, the prosecution took steps to inform the four accused (three Russians and one Ukrainian) about their indictment and trial not only by sending formal summonses through the authorities in their countries, but also by direct messages through telephone, email, and even social media. For most, that yielded clear evidence of their knowledge, because they either responded to direct messages or a summons from their national authorities, or gave media interviews criticizing the trial and making clear they had no intention to participate in it. One of the defendants instructed Dutch lawyers to represent him and submitted video statements to the court, which were duly considered. The other three defendants did not participate in the trial. Under Dutch law, any defendant subsequently found to be either unaware of the trial or unable to attend it, can ask for a full retrial.
Both the proceedings themselves and the judgment in the case, convicting three of the four defendants, were welcomed by many victims’ families as important steps. It also was the first judicial finding outside of Ukraine of Russia’s responsibility for the armed conflict in Ukraine in 2014. Its findings were used by the ECHR Grand Chamber for its seminal judgment in Ukraine and the Netherlands v. Russia and informed the decision of the International Civil Aviation Organization (ICAO) holding Russia responsible for the downing of MH17, which in turn has led to a case before the International Court of Justice. The ECHR Grand Chamber, in relying on numerous aspects of the judgment, noted the careful nature of the Dutch trial (para. 488).
The MH17 trial exemplifies both that in some cases, the judicial ascertainment of the truth has a wider relevance than only to impose a sentence on convicted perpetrators, and that trials in absentia can vindicate all legitimate rights of the accused.
Conclusion
While a critical assessment of in absentia trials is warranted, fairness requires a realistic appraisal of international human rights law, international practice, and victims’ rights. Well-calibrated provisions allowing in absentia trials, such as Article 28 of the Statute for the STCA, are neither regressive nor problematic from a human rights perspective. On the contrary, they can vindicate the rights of victims of serious crimes to have their day in court while also respecting the rights of accused to have a fair trial. They should not be opposed on the basis of generic arguments against in absentia trials that do not fully represent the law and leave victims without redress.
There is no reason why carefully executed in absentia trials for aggression against Ukraine would be any less legitimate than such trials for other serious crimes that have been supported by civil society as an appropriate way to avoid blanket impunity. In the case of Ukraine, Amnesty International states that the Special Tribunal should both avoid in absentia trials and “ensure victims-centered justice.” In present circumstances, that is not a realistic combination, as the aftermath of many other state-sponsored crimes has shown. Particularly when defendants can be informed of their trial and have a right to a retrial in person, in absentia trials – while imperfect – can be legitimate and necessary, both for the victims and for society at large.
