CEU Electronic Theses and Dissertations, 2018
| Author | Smith, Alexandra Marie |
|---|---|
| Title | Absent Justice: An Argument for Trial In Absentia after the Death of the Defendant in Cases of Gross Human Rights Violations |
| Summary | This thesis proposes continuing trials in absentia as an alternative to closing proceedings after the death of the defendant in cases of gross human rights violations. The proposal is viewed as part of an expanding array of mechanisms aimed at guaranteeing victims rights. I ground the proposal in an understanding of the goals of transitional justice, and the alternative measures available to meet these goals. Coming to a final verdict in an international criminal trial is an important step toward meeting transitional justice goals including the utilitarian and retributive goals achieved through ruling on liability, and symbolic justice for victims. In general, trial in absentia is viewed as acceptable by international and regional human rights courts if safeguards are met. Different international tribunals have approached trial in absentia with varying degrees of tolerance. This thesis examines international and regional standards surrounding trial in absentia, including case-law from the Human Rights Committee (HRC), International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and European Court of Human Rights (ECtHR), and concludes that partial in absentia trials will likely continue to be permitted in international law. This thesis devotes a separate chapter to analysis of trial in absentia at the International Military Tribunal (IMT) and the Special Tribunal for Lebanon (STL), the Statutes of which explicitly allow for proceedings in the absence of the defendant. Despite the strong tradition dictating that a trial should end upon the death of defendant, legal theory and precedent shows that international criminal law allows for some procedural flexibility in favor victim’s rights, due to the gravity of international core crimes and the sui generis nature of international tribunals. In order to establish guidelines surrounding when flexibility can occur, this thesis examines international law in the frame of Packer’s two models, as well as the work of Damaska and Megrét, and case-law from the European Court of Human Rights. The thesis concludes by examining how trial in absentia—usually resulting from the flight of the defendant, the defendant’s refusal to appear at his or her trial, the defendant’s disruption of the courtroom, or serious medical needs of the defendant—can apply to cases where the defendant has died, without violating human rights norms. This thesis ultimately advocates for the adoption of a waiver system in which the defendant may agree to the continuation of his or her trial after death. |
| Supervisor | Bárd, Károly |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2018/smith_alexandra.pdf |
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