The Role of Different Legal Systems in Formulating the Right to Be Present at Trial in International Criminal Law

in The Right to Be Present at Trial in International Criminal Law
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This chapter examines how the right to be present developed in international criminal law. It specifically looks at the impact different legal systems, particularly those rooted in the accusatorial and inquisitorial traditions, had on how the right to be present was interpreted during the creation of different international and internationalised criminal courts and tribunals. It conducts an analysis of the formation of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court and the Special Tribunal for Lebanon and the negotiations surrounding the inclusion of the right to be present in the Statutes of each court or tribunal. It concludes that although the differences in the approaches of courts and tribunals to trial in absentia are often attributed to the influences of the accusatorial or inquisitorial legal systems, in reality almost all international and internationalised criminal courts and tribunals allow some portion of trial to take place in the absence of the accused. What really separates the practices of the different courts and tribunals is not whether they permit trial in absentia, but instead, the methods employed to ensure that the decision to continue trial in the absence of the accused complies with the accused’s right to be present at trial.

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