Trial in All but Name: Continuing Proceedings in Contravention of the Right to Be Present at Trial

Abstract The right to be present at trial is under threat following the decision of the International Residual Mechanism for Criminal Tribunals’ Trial Chamber to continue proceedings against Félicien Kabuga after finding him mentally unfit to stand trial. The Trial Chamber opted instead to hold an “alternative finding procedure”, resembling a trial as closely as possible, albeit without the possibility of concluding with a verdict. This article engages with that decision through the lens of whether this approach complies with the accused’s right to be present at trial. It concludes that the proceedings would be little more than a de facto trial that does not adequately respect the accused’s right to be present. It also finds that should other international criminal courts and tribunals follow a similar approach the right to be present would be deprived of any real meaning. This could also, in turn, threaten overall fairness of the proceedings.