ABSTRACT

The question of whether or not the accused shall be present during trial occupies a prominent place in the statutes and procedural rules of most international criminal tribunals (ICTs). This chapter provides some preliminary clarifications on the concepts of presence at trial and trials in absentia, the interplay between them, and on their classification as rights and/or duties. It also provides a critical appraisal of presence and in absentia trials in the ICC and STL and considers to what extent these are in line with international human rights law (IHRL). The chapter seeks to identify the underlying causes of the conflicting treatment of presence among those two tribunals, and between them and IHRL. It proposes an interpretation of presence and in absentia trials that seeks to harmonise the conflicting approaches of the ICC and STL, and to ensure that these are consistent with IHRL.