Busy Defendants and Phantom Trials: Rethinking the Defendant's Attendance Requirement before the ICC

Abstract

A defendant's continuous attendance of a trial before the ICC has long been purported to be her absolute obligation and an irrevocable principle of international criminal justice. Yet, when the first prosecution of sitting Heads of State caused the most serious political crisis ever faced by the Court, its legislative body recently decided to arbitrarily relax this obligation in order to accommodate the special needs of elite defendants. While proponents of this reform claim that it was practically unavoidable to prevent a collapse of the ICC, opponents insist that it sacrificed justice for politics. As this article shows, both sides to the debate neglect the elephant in the room, however: the long purported obligation of the defendant to attend the trial is in fact illegitimate. To establish this conclusion, the article demonstrates that defendants before the ICC enjoy the right to be absent from trials and can only be obliged to attend specific hearings. Building on this analysis, the article presents a novel comprehensive framework for regulating the attendance requirement. The proposed new framework strengthens the international criminal justice system's recognition of fundamental rights, upholds the objectives of the ICC, and mitigates the most serious challenges faced by the Court.