Middlesex University Research Repository An open access repository of Middlesex University research http://eprints.mdx.ac.uk Wheeler, Caleb H. ORCID: https://orcid.org/0000-0002-3076-2351 (2018) The right to be present at trial in international criminal law. PhD thesis, Middlesex University. [Thesis] Final accepted version (with author’s formatting) This version is available at: https://eprints.mdx.ac.uk/24092/ Copyright: Middlesex University Research Repository makes the University’s research available electronically. Copyright and moral rights to this work are retained by the author and/or other copyright owners unless otherwise stated. The work is supplied on the understanding that any use for commercial gain is strictly forbidden. A copy may be downloaded for personal, non-commercial, research or study without prior permission and without charge. 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See also repository copyright: re-use policy: http://eprints.mdx.ac.uk/policies.html#copy The Right to be Present at Trial in International Criminal Law A Thesis Submitted to Middlesex University In partial fulfilment of the requirements for the degree of Doctor of Philosophy Caleb Henry Wheeler School of Law Middlesex University January 2018 Abstract - The Right to be Present at Trial in International Criminal Law By Caleb Henry Wheeler International criminal law considers the accused’s right to be present at trial to be a key component of his or her right to a fair trial at international and internationalised criminal courts and tribunals. The central research question this thesis explores is: what does the accused’s right to be present at trial mean in international criminal law and are the accused at international and internationalised criminal courts and tribunals receiving the benefits of its protection? This thesis answers that question in eight substantive chapters examining a variety of issues relating to the right to be present at trial. In answering the research question this thesis makes four different contributions to knowledge. First, it brings together the rules and practices of all of the international and internationalised criminal courts and tribunals and provides analysis about how each one treats the right to be present at trial. Second, it challenges existing assumptions about how different courts and tribunals protect the right to be present at trial and show that even those courts and tribunals that are thought to emphasise the right also allow trial to continue in the accused’s absence under some circumstances. Third, it takes a more nuanced approach to trial absences by breaking absence into four categories and examining how the differences in the type of absence may affect the right to be present. Finally, it considers the procedures of the international and internationalised criminal courts and tribunals established since the introduction of the Special Tribunal for Lebanon’s Statute and finds that they generally take a more flexible approach to the accused’s right to be present. This thesis concludes that international criminal law provides the accused with a qualified right to be present at trial. The right confers on the accused the choice to attend trial and is coupled with a duty imposed on the court or tribunal attempting to conduct the trial whereby it cannot prevent the accused from attending trial if he or she so desires. The right to be present can be voluntarily waived by the accused if he or she has received notice sufficient to make an informed decision about whether he or she wants to appear. This approach creates a balance between respecting the accused’s right to be present while also allowing trial to continue if the accused does not wish to participate. ii Acknowledgements To my mother, Tamara Stech Smith, who taught me the importance of using my brain and my father, Jonathan Wheeler, who proved to me that the stereotypes about lawyers do not have to be true. And to my wife, Michelle Coleman, my partner, confidant and proof-reader. This would never have been finished without your love, compassion, insight, wisdom and the unlimited amount of time you gave me to talk out my thoughts. I am eternally grateful to Professor William A. Schabas, my director of studies and Dr. Maureen Spencer, my first supervisor. Your patience and assistance throughout the entire process of researching and writing this thesis was extraordinary. I appreciate the moral and financial support of Middlesex University London for hosting my studies and helping to defray some of the cost of pursuing a PhD. I am also thankful for the encouragement offered by so many members of the law department and particularly Professor Joshua Castellino, Professor Laurent Pech, Dr. Nadia Bernaz, Dr. Alice Donald, Christiana Rose and Georgia Price. Thanks are also owed to the library staff of the Sheppard Library at Middlesex University for helping me find a number of sources that otherwise eluded me. Recognition is also due to the British Library, the Institute of Advanced Legal Studies Library, the SOAS library and the Senate House Library for hosting me at various times over the years. Thanks to my stepfather, Robert I. Smith, who taught me so much about integrity and being my best self, and my stepmother, Marsha Wheeler, for her unwavering encouragement and pride. I also appreciate all the love and support I have received from my in-laws, Richard and Kathleen Coleman. Thank you to my siblings, nieces and nephews and the rest of my family for believing in me. Also, to Aaron Traister, Noah Dzuba and Dan Nemiroff for never letting me take myself too seriously. I am fortunate that two small parts of this thesis were published in somewhat different forms as articles prior to their inclusion here. Thank you to Criminal Law Forum and The Queen Mary Law Journal for giving me the opportunity to explore and develop my ideas in a shorter form. I would also like to remember Professor Penelope Pether who first sparked my interest in studying international law. Without her inspiration I would likely have never written this thesis or had the courage to pursue the study of law as a career. Finally, thanks to my PhD colleagues at Middlesex for all of the encouragement. This would have been infinitely harder without having you there to celebrate successes and commiserate over setbacks. I happily look forward to our paths crossing again in the future. iii TABLE OF CONTENTS ABSTRACT ....................................................................................................................... II ACKNOWLEDGEMENTS .............................................................................................. III TABLE OF CONTENTS .................................................................................................. IV TABLE OF CASES .......................................................................................................... VI TABLE OF AUTHORITIES ........................................................................................ XVII CHAPTER 1: INTRODUCTION ....................................................................................... 1 CHAPTER 2: IS PRESENCE AT TRIAL A RIGHT, A DUTY OR BOTH? ................... 6 2.1 THE RIGHT TO BE PRESENT AT TRIAL ...................................................................... 8 2.2 THE DUTY TO BE PRESENT AT TRIAL ..................................................................... 16 2.3 THE CONTRADICTION CREATED BY THE EXISTENCE OF BOTH A RIGHT AND A DUTY TO BE PRESENT ................................................................................................. 21 2.4 CONCLUSION ................................................................................................................ 28 CHAPTER 3: THE ROLE OF DIFFERENT LEGAL SYSTEMS IN FORMULATING THE RIGHT TO BE PRESENT AT TRIAL IN INTERNATIONAL CRIMINAL LAW ................................................................................................................................... 30 3.1 INQUISITORIAL AND ACCUSATORIAL APPROACHES TO THE RIGHT TO BE PRESENT ......................................................................................................................... 32 3.2 THE IMPACT INQUISITORIAL AND ACCUSATORIAL APPROACHES HAVE HAD ON THE RIGHT TO BE PRESENT IN INTERNATIONAL CRIMINAL LAW . 38 3.2.1 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA ..................................................................................................... 40 3.2.2 THE INTERNATIONAL CRIMINAL COURT ........................................................ 49