Unquestioned testimony: How the diminution of live testimony threatens the accused’s right to be present during international criminal trials

It is generally recognized that international criminal law provides the accused with a right to be present at trial. There are two components of that right which make it meaningful: first, as a right it can only be derogated from through an affirmative waiver made by the accused; and second, it requires more than the mere presence of the accused in the courtroom, it also demands that he or she be able to understand and participate in the proceedings. The second component of the right, that the accused be able to participate in proceedings, is increasingly threatened by evidentiary rules that restrict the accused’s ability to cross-examine the witnesses against them. This infringement creates a real danger that evidence that has not been properly tested will serve as the basis for guilty verdicts, thus increasing the likelihood of unsafe convictions.
This article aims to examine the phenomenon of evidentiary rules that impact the accused’s right to be present. It will do this in two substantive parts. First, it will demonstrate that the accused has a right to be present at trial in international law, define that right, contextualize the right in terms of the larger right to a fair trial and discuss how the accused, at least in evidentiary matters, has a greater interest in fairness than the prosecution. Second, the article will examine three different evidentiary practices used at international criminal justice institutions that have the tendency to limit the accused’s ability to participate in trial and, in turn his or her right to be present. This article concludes that some, but not all, of these practices do represent a meaningful limitation on the accused’s right to be present and should be used sparingly so as to avoid causing any harm to the accused’s fair trial rights.

The full text is an author accepted manuscript/published article reproduced here with permission. The article is published in final form as: Caleb H. Wheeler, Unquestioned testimony: How the diminution of live testimony threatens the accused’s right to be present during international criminal trials. 52 Cornell Int'l L.J. 545 (2019).
The place of first publication is the Cornell International Law Journal, 52 (3) https://www.lawschool.cornell.edu/research/ILJ/Volume-52-Number-3.cf...