Justice in the absence of the accused: can the rights of victims be fully vindicated without the participation of the accused?

Since the inception of the International Criminal Court, representatives of its various constituent parts have repeatedly emphasised the role the court must play in vindicating the rights of atrocity crime victims. It is commonly thought that one of the best ways to achieve this goal is to ensure that trials are conducted against those individuals who are accused of committing crimes falling under the court’s jurisdiction. There is also growing sentiment that trials should be held regardless of whether the accused is present. In particular, the Assembly of States Parties added Rules 134 bis, 134 ter and 134 quater, all of which allow some portion of trial to take place in the absence of the accused.
This paper will examine whether the rights of the victims are adequately upheld by a trial held without the full participation of the accused. To do this, it will identify those goals victims hope trial will accomplish and analyse whether they can be fulfilled in the absence of the accused. In particular, it will consider whether the victims’ interests in the truth-telling function of trial, and their need to see that justice has been done, can be met if the trial is held in the accused’s absence. The paper also evaluates whether the benefits that victims might derive from such a trial are sufficient to outweigh the accompanying limitations trials in absentia have on the rights of the accused. This paper will conclude that trials conducted without the accused being present do not meet all of the needs of victims and therefore those needs should not act as justification to limit the accused’s right to be present.

This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of International Criminal Justice following peer review. The version of record Caleb H Wheeler, Justice in the Absence of the Accused: Can the Rights of Victims be Fully Vindicated without the Participation of the Accused?, Journal of International Criminal Justice,, Volume 17, Issue 2, May 2019, Pages 413–430, is available online at: URL: https://academic.oup.com/jicj/advance-article-abstract/doi/10.1093/j... and DOI: https://doi.org/10.1093/jicj/mqz016