Present when absent: how technology has changed the right to be present at trial at international criminal courts and tribunals

The right to be present is considered a fundamental part of the right to a fair trial as guaranteed in a variety of international and regional conventions and the statutes of all of the international and internationalised criminal courts and tribunals. The introduction of new communications technologies, particularly videoconferencing equipment that allows a real time connection between courtrooms and remote locations, has dramatically changed how international human rights law understand the accused’s right to be present at trial. Prior to the introduction of videoconferencing it was always assumed that the right to be present required the accused to be physically present in the courtroom during trial. However, the accused can now accomplish the same goals that his or her physical presence was meant to guarantee, without ever appearing in the courtroom.
This paper will examine the changing technological landscape in international human rights law as it pertains to the right to be present at trial. First, it will discuss the reasons underlying the right to be present at trial and consider whether those reasons can accommodate the accused’s appearance at trial by electronic means. In particular, it will discuss how the right to be present was developed so that the accused could understand and participate in the proceedings against them. It will then evaluate whether videoconferencing allows the accused to understand and participate in the same way that he or she might if actually physically present in the courtroom. Second, it will discuss the current practice at international and internationalised criminal courts and tribunals placing particular emphasis on any differences in practice. These differences are particularly highlighted by the approach of the International Criminal Tribunal for Rwanda, which has found that the right to be present at trial is only effective if the accused is physically present in the courtroom, and most of the other international criminal courts and tribunals that permit at least some form of electronic attendance.
This paper concludes that the right to be present at trial can be upheld through remote participation. What is important is not that the accused actually be in the courtroom, but whether he or she can perform the functions his or her presence would permit. Additionally, this paper will find that technological innovations in this area should be embraced in order to facilitate more efficient trials, particularly in the international context where the court or tribunal may be located thousands of miles away from the site of the accused crimes and the witnesses. This paper also cautions that this new technology must be adopted in a sensible manner, and that the accused’s right to a fair trial must not be sacrificed in favour of efficiency.