Abstract It is a core principle of international human rights law that criminal defendants have the right to be present in proceedings against them. This article examines the conformity of confirmation of charges proceedings in absentia at the International Criminal Court (ICC) under Article 61(2) ICC Statute with the right to be present in international human rights law. Drawing on the jurisprudence of regional human rights courts and the United Nations Human Rights Committee, it first establishes that the right to be present is not confined to trials, but applies with equal force to certain pre-trial procedures, including confirmation of charges before the ICC. The paper then proceeds to argue, in light of the jurisprudence of human rights bodies and the Special Tribunal for Lebanon, that the absence of a right to de novo confirmation of charges proceedings — a ‘retrial’ — should a suspect subsequently appear before the Court after charges are confirmed against them in absentia renders the framework of Article 61(2)(b) incompatible with international human rights law. On this basis, it concludes Article 21(3) ICC Statute precludes the confirmation of charges in absentia at the ICC under the Court’s current legal regime. It then addresses the possible procedural remedies under the Rome Statute framework, ultimately concluding that they are insufficient to mitigate against the violation of an absent suspect’s right to be present in confirmation proceedings. Finally, it suggests that an amendment to the ICC Rules of Procedure and Evidence would be necessary to hold confirmation proceedings in absentia in conformity with international human rights law.
Mischa Gureghian Hall (Fri,) studied this question.