Right or Duty? Is the Accused’s Presence at Trial a Right or a Duty Under International Criminal Law?

Abstract

International criminal law has long recognised the right of the accused to be present at trial as part of his or her right to a fair trial. However, modern international criminal courts and tribunals have recently found that the accused also has a duty to be present at trial. Do both a right to be present and a duty to be present exist and, if so, are they compatible under international criminal law? To answer these questions this article will first identify and examine the differences between a right and a duty. Next, it will consider the relevant international case law and how the courts and tribunals have characterised the presence of the accused. Finally, it will also consider the purposes underlying both the right and the purported duty to be present. The article concludes that international criminal law currently recognises both a right and a duty to be present on the part of the accused although one may be incompatible with the other. It also warns that the application of the duty must not be allowed to subsume the accused’s exercise of the right, and that the enforcement of the duty must be done with due care for the accused’s right to a fair trial.