Diverse approaches to total and partial in absentia trials by international criminal tribunals

Abstract

In the history of international criminal justice, the in absentia trial has always sparked some lively debates. Both the International Military Tribunals (IMTs) in Nuremberg and Tokyo recognized the in absentia trial and in Nuremberg one accused was actually convicted in his absence. However, ideas on holding trials in the absence of the accused have changed over time and international criminal tribunals established after the IMTs adopted the opposite approach; i.e. they rejected the in absentia trial as not being consistent with the accused’s fair trial rights. Nonetheless, the latest addition to the list of international criminal tribunals, the Special Tribunal for Lebanon, surprisingly reintroduced the concept of the in absentia trial as a means to preclude suspects of international crimes to avoid justice. Moreover, recently there have also been international cases in which the accused was absent from the proceedings against him; i.e. the accused refused to enter the courtroom as he did not recognize the legitimacy of the court or requested permission not to attend the hearings in light of his demanding responsibilities at home that are linked with his high level position. The question what the concept of in absentia trials – both total and partial – really entails and whether, and if so how, in absentia trials are permitted in international criminal law are the subject of discussion in this contribution.