By Alexandra M. Smith, William & Mary Law School ’21 (see full bio at the end of the article).
In 2014, I worked as a research assistant at The National Security Archive. My supervisor built her career on using declassified documents obtained through the Freedom of Information Act to bolster the prosecution in international human rights trials. I had the task of beginning to request and compile documents that might shed light on the crimes of former Haitian dictator Jean-Claude “Baby Doc” Duvalier. Ultimately, we were to provide a report on the documentary evidence available within U.S. archives to an investigating judge working on the Duvalier case in Haiti. The judge would decide, responding to an appeal of the charges, whether to try Duvalier for crimes against humanity. In October 2014, however, Jean-Claude Duvalier died of a heart attack at the age of 63. While international organizations encouraged the investigating judge to continue the case against Duvalier’s subordinates, proceedings stalled.
The closing of proceedings against a former dictator charged with international crimes following that person’s death is not unique to the Duvalier case. A combination of the length of trials and the late age at which defendants tend to be indicted has resulted in a number of high-level human rights trials being terminated prior to the court reaching a verdict—other examples include the trials of Slobodan Milošević and Augusto Pinochet. This issue deserves close consideration. As both an earnest proposal and as a jumping-off point for further research, I suggest the following solution: that international courts allow major human rights trials to continue in absentia after the death of the defendant. Coming to a final verdict in an international criminal trial is an important step toward meeting transitional justice goals including deterrence, symbolic justice, and truth-finding. Moreover, international legal theory and precedent support some degree of procedural flexibility in favor of victims’ rights, considering the gravity of international core crimes and the sui generis nature of international tribunals. A proper waiver system would allow trial in absentia after the death of the defendant to meet international fair trial guarantees.
In general, national and international law assumes that criminal liability does not survive the death of the perpetrator. This assumption is based in part on the belief that punishment for a crime may only be conferred upon a living person and may not be transferred to a different person after the perpetrator’s death. The value of a verdict in an international criminal trial, however, reaches beyond what can be achieved by the real and immediate punishment of an individual. Posthumous “punishment” meets the retributive and utilitarian goals of international law, even if the perpetrator is not conscious of it. For example, legal scholar Emmanuel Melissaris argues that penalties such as the seizure of financial assets, even after death, serve as a deterrent for the would-be perpetrator “because I know that punishment after death will frustrate the desires and plans that I form during my lifetime.” Furthermore, final judgements in international human rights trials achieve symbolic justice: “any conviction, in absentia or not, constitutes a public ‘moral sanction’ […] against the most heinous of crimes.”
Michelle Caswell and Anne Gilliland describe the reticence of scholars in Cambodia when it comes to discussing the role of former Khmer Rouge official Ieng Sary in human rights violations following his death from a heart attack while under indictment by the Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal). Some have expressed that they feel unable to comment on the culpability of Sary for human rights abuses—even in a historical context—because the court did not to come to a verdict. Effective international tribunals, therefore, not only achieve deterrence and symbolic justice, but also act as a unique forum through which to establish the truth, and serve to foster trust in the justice system among victims and the international community. Nevertheless, the possibility of acquittal is just as important as conviction: international tribunals additionally set standards for the local judiciary in affected post-conflict societies through ensuring full and fair process. Finally, many other transitional justice mechanisms, such as truth and reconciliation commissions, depend on the final verdicts reached by international criminal tribunals in order to function successfully.
Among international instruments enumerating fair trial rights, only the International Covenant on Civil and Political Rights (ICCPR) sets out the right of the defendant to be present at his or her trial as such. Article 14(3)(d) states that everyone shall be entitled “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.” Legal scholar Paola Gaeta notes, however, that no states which practiced trial in absentia objected to the provision during the drafting of the ICCPR; she sees this fact as a signal that the right of the accused to be present does not conflict with the convention of trial in absentia. Moreover, the Human Rights Committee has recognized the permissibility of trial in absentia in its case-law, stating:
[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.
Gaeta argues that the main reason behind opposition to trial in absentia among human rights groups stems from mistaking trial in absentia for trial by default. While trial by default occurs automatically under specific circumstances, the commencement of a trial in absentia requires adherence to a number of strict safeguards designed to protect the defendant.
The most extensive jurisprudence surrounding such safeguards comes from the European Court of Human Rights (ECtHR). The ECtHR requires the presence of three safeguards in national law for trial in absentia to be allowed.First, the accused must be notified of the charges and trial date; second, the accused must be represented by counsel; and third, the accused must be able to request a re-trial in his or her presence. In the case of a trial that continues after the death of the defendant, the defendant clearly knew of the proceedings since he or she presumably attended them before passing away. In order to meaningfully meet the notification requirement, however, the defendant should be informed that the trial will continue after his or her death. To meet the requirement of representation by counsel, the defendant’s original counsel must continue to represent the defendant. Protecting the dignity, honor, and reputation of the deceased may require an additional representative acting on his or her behalf. The fact that trial in absentia after the death of the defendant may meet the first two safeguards, however, does not overshadow the fact that the third safeguard cannot be met. Even so, if the defendant has been notified of the proceedings, and if he or she will be represented by counsel, the defendant may waive the right to be present. Upon the unequivocal waiver by the defendant, the ECtHR no longer requires the possibility of retrial. Therefore, trial in absentia after the death of the defendant satisfies to human rights guarantees, as illustrated by ECtHR jurisprudence, if the defendant waives the right to be present.
Waiver is possible because instruments like the European Convention on Human Rights do not enumerate obligations, but rights. In the case of personal rights, each individual may choose whether or not to exercise them; the imposition of personal rights against the will of the individual is contrary to their purpose. Professor Károly Bárd argues that some aspects of fair trial rights, however, are not exclusively personal. The right to an impartial tribunal, for example, forms a basis of procedural law and ensures the veracity of information discovered during the fact-finding process. As such, the right to an impartial tribunal right cannot be waived. While the right to be present is a precondition to other fair trial rights, its connection to the “structure and administration of justice” is indirect. The right to be present is therefore personal, and the possibility of waiver must be allowed.
A question follows: would any defendant sign a waiver allowing the continuation of his or her trial after death? The text of this article is drawn in part from the M.A. thesis I wrote as a student in the Human Rights Program at Central European University. Over the course of my legal studies in the United States, my perspective on defendants’ rights evolved. It seemed to me at one point that the above proposal could only be construed as unilaterally supportive of criminal prosecutors. However, a major development occurred at the Khmer Rouge Tribunal during the summer of 2019. I was in Cambodia at the time, and a friend of mine broke the news: Nuon Chea’s defense attorneys had requested to continue on with their appeal of the 2018 Trial Judgement against the defendant following his death.
Several months earlier, just after filing his notice of appeal, Nuon Chea had submitted a letter to the Tribunal attempting to authorize certain members of his family and defense team to act on his behalf during the appeals process if he died prior to its completion. The Tribunal did not allow the appeals process to continue, but the very fact that the defense in an international human rights trial had asked to implement the procedural mechanism I had suggested in my thesis astounded me. In the end, this development serves as an important reminder: the truth, and the opportunity for a complete adjudication in order to reach it, is equally important to every member of a post-conflict society. It also provides us with an answer to my question above: a defendant might indeed say yes to a waiver.
About the Author
Alexandra M. Smith is a 2021 graduate of William & Mary Law School and formerly Editor-in-Chief of the Comparative Jurist. She currently serves as a law clerk for the Honorable Judges F. Patrick Yeatts and J. Frederick Watson of the Twenty-Fourth Judicial Circuit of Virginia in Lynchburg. At William & Mary, Smith worked in the PELE Special Education Advocacy Clinic and interned at the Legal Aid Society of Eastern Virginia and the Richmond Office of the Public Defender. In addition to her J.D., Smith received her M.A. in Human Rights from Central European University and B.A. from Bard College.
 Randal C. Archibold, Jean-Claude Duvalier Dies at 63; Ruled Haiti in Father’s Brutal Fashion, N.Y. Times (Oct. 4, 2014), https://www.nytimes.com/2014/10/05/world/americas/jean-claude-duvalier-haitis-baby-doc-dies-at-63.html.
 Haiti: Move Ahead with Ex-Dictator Case, Human Rights Watch (Feb. 19, 2016), https://www.hrw.org/news/2016/02/19/haiti-move-ahead-ex-dictator-case; Victims of Duvalier in Waiting, Haiti Libre (Apr. 3, 2016), https://www.haitilibre.com/en/news-16782-haiti-justice-victims-of-duvalier-in-waiting.html.
 Several European Court of Human Rights cases illustrate how procedural norms may be loosened to allow prosecution because of the exceptional nature of gross, state-sponsored human rights violations. I discuss these cases in further detail in my thesis, available at: https://sierra.ceu.edu/record=b1400115. See Altmann (Barbie) v. France, 37 Eur. Comm’n H.R. Dec. & Rep. 225 (1984); Sawoniuk v. United Kingdom, 2001-VI Eur. Ct. H.R. 375; X. v. Germany, 6 Eur. Comm’n H.R. Dec. & Rep. 114 (1976).
 See A.P., M.P., and T.P. v. Switzerland, 1997-V Eur. Ct. H.R. 541; African Charter on Human and Peoples’ Rights, art. 7(2), Oct. 21, 1986, 1520 U.N.T.S. 217, 247; American Convention on Human Rights, art. 5(3), Nov. 22, 1969, 1144 U.N.T.S. 143, 146.
 Emmanuel Melissaris, Posthumous ‘Punishment’: What May Be Done About Criminal Wrongs After the Wrongdoer’s Death?, 11.2 Criminal Law & Philosophy 313, 322 (2017).
 Gary J. Shaw, Note, Convicting Inhumanity in Absentia: Holding Trials in Absentia at the International Criminal Court, 44 Geo. Wash. Int’l L. Rev. 107, 138 (2012).
 Michelle Caswell & Anne Gilliland, False Promise and New Hope: Dead Perpetrators, Imagined Documents and Emergent Archival Evidence, 19.5 Int’l J. Hum. Rts. 615, 619 (2015).
 Jane Stromseth, Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?, 1 Hague J. Rule L., 87, 92 (2009).
 Brianne McGonigle Leyh, Procedural Justice?: Victim Participation in International Criminal Proceedings 63 (2011); see also James D. Meernik, Angela Nichols, and Kimi L. King, The Impact of International Tribunals and Domestic Trials on Peace and Human Rights After Civil War, 11 Int’l Stud. Persps. 309, 315 (2010).
 Károly Bárd, Fairness in Criminal Proceedings: Article Six of the European Human Rights Convention in a Comparative Perspective 195 (2008) (Károly Bárd is a Professor of Legal Studies and former Chair of the Human Rights Program at Central European University); see also Caleb H. Wheeler, Right or Duty? Is the Accused’s Presence at Trial a Right or a Duty Under International Criminal Law?, 28 Crim. L. F. 99, 101 (2017) (Although the African Charter does not include the right to be present, Wheeler notes that the Commission’s 2007 “Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa” does not include the defendant’s “right to be tried in his or her presence”).
 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 177.
 Paola Gaeta, Trial In Absentia Before the Special Tribunal for Lebanon, in Special Tribunal for Lebanon: Law and Practice 229, 239 (Amal Alamuddin, Nidal Nabil Jurdi, & David Tolbert eds., 2014).
 Rep. of the H.R.C. on Mbenge v. Zaire, at 134, U.N. Doc. A/38/40 (1983).
 Supra note 13, at 230.
 “Report on the ‘Experts’ Roundtable on trials in absentia in international criminal justice,” 5 (2016).
 Colozza v. Italy, A89 Eur. Ct. H.R. 5 (1985).
 Lala v. The Netherlands, A297-A Eur. Ct. H.R. 10 (1994).
 Sejdovic v. Italy, 2006-II Eur. Ct. H.R. 241.
 One example of such a figure is the subsidiary prosecutor (Nebenklaeger) in German law. Here, the victim participates in a trial to protect his or her honor from attacks by the defendant.
 Martin Bose, Harmonizing Procedural Rights Indirectly: The Framework on Trials in Absentia, 37 N.C. J Int’l L. & Com. Reg. 489, 500 (2011).
 Bárd, supra note 11, at 209.
 Bárd, supra note 11 at 212.
 Urgent Request Concerning the Impact on Appeal Proceedings of Nuon Chea’s Death Prior to the Appeal Judgment, ECCC F46/2 (Aug. 6, 2019).
 Nuon Chea’s Letter Authorising Designated Persons to Act on His Behalf in the Event of His Death Prior to the Completion of the Appeal Proceedings, ECCC F46 (Jul. 18, 2019).
 Decision on Urgent Request Concerning the Impact on Appeal Proceedings of Nuon Chea’s Death Prior to the Appeal Judgement, ECCC F46/2/4/2 (Nov. 22, 2019).