International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2014 Issue
 

Judicial Reform Report

 

Trials in Absentia: Human Rights Concerns in the Special Tribunal for Lebanon

Special Tribunal for LebanoBy: Jessica Rosenblatt

Within the context of the United States justice system, the right to be present at one’s own trial is a foundational right thrice guaranteed in the U.S. Constitution under the Fifth, Sixth, and Fourteenth Amendments, and one further guaranteed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). However, the Special Tribunal for Lebanon’s (STL or the Tribunal) practice of conducting trials in absentia, in which the accused is not present for all or part of the proceedings, has sparked international debate over whether such trials by a U.N.-mandated tribunal violate foundational human rights standards of the accused.

Adoption within the Special Tribunal for Lebanon

While other international criminal tribunals—including the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Court for Sierra Leone (SCSL), and Criminal Court for Cambodia—implicitly or expressly prohibit trials from proceeding entirely without the accused being present (full in absentia trials), structural differences have led the STL to diverge from this standard, marking the first time since the Nuremberg trials that a United Nations criminal tribunal has done so.

The STL was established under the U.N. in May 2007 in response to a 2005 terrorist attack that resulted in the assassination of former Lebanese Prime Minister Rafiq Hariri and the deaths of twenty-three people. The Tribunal was initially mandated to prosecute those persons responsible for the 2005 attack, but the U.N. Security Council subsequently expanded the mandate to include 17 other equally devastating attacks in Lebanon. Because the Tribunal was created at the request of the Lebanese government in response to a single national event, Lebanese legal standards, rather than international ones, apply; the STL follows the Lebanese Code of Criminal Procedure and applies Lebanese criminal law to cases falling within its jurisdiction.  This has meant conducting full in absentia trials; a practice permitted under Lebanese law for both misdemeanor and felony cases.

The Tribunal expressly allows for such trials to proceed and commence outside the presence of the accused in Article 22 of its “Trials in Absentia” statute. The statute allows for trials in absentia in three instances: where the accused (i) has expressly and in writing waived his right to be present; (ii) is in custody elsewhere and has not been handed over to the Tribunal by the state authorities concerned; or (iii) has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance and to inform him of the charges. It is not uncommon for courts to conduct partial in absentia trials, where the accused has waived his right to be present or flees during the proceedings. However, it is the latter two scenarios in Article 22 that have sparked debate over the possible effects on the accused, the Tribunal and the international community in general.

Arguments For and Against Trials in Absentia

Critics of the STL’s practice of holding trials in absentia claim that doing so denies fair trial rights as guaranteed by Article 14 of the ICCPR, which states: ““[i]n determination of any criminal charge against him, everyone shall be entitled . . . to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing[.]”  They further claim violations of Article 6(1) of the European Convention on Human Rights (ECHR), which provides for a fair and public hearing. However, supporters of the STL’s practice argue that the right to be tried in one’s own presence is not a fundamental international human right, and neither Article 14 of the ICCPR nor Article 6(1) of the ECHR absolutely prohibit trials in

 

absentia; the ICCPR allows for the accused to be absent if he has been given adequate and timely notice, and the ECHR similarly allows for such when the accused’s absence is informed, voluntary, and unequivocal—factors that can be implied by the circumstances of the accused.

Those who defend the Tribunal additionally note that because the STL is not a “State,” it is not bound by the ICCPR or the ECHR, yet it has interpreted Article 22 in a manner consistent with the highest international standards.  In absentia trials are permitted only under strict circumstances and if permitted at all, the court must attempt to inform the accused of the charges and the accused must be adequately represented. If the accused is convicted without designated defense counsel, subsection 3 of Article 22 allows for a retrial in the presence.

Critics find the “strict circumstances” under which the STL can conduct trials in absentia too vague and ambiguous. They further claim that the retrial provision is invalid due to the temporary nature of the Tribunal and its inability to provide a retrial to those persons who become present only following the STL’s eventual dissolution. Beyond a human rights perspective, critics note the retrial’s inefficiency, arguing that the Tribunal’s limited resources should be used to properly try those already in custody, rather than try and retry those who are absent.

Still, defendants of the STL point to the Tribunal’s historically narrow interpretation of Article 22 and rely on strong policy considerations to justify the in absentia trials. They argue that because the Tribunal operates in the midst of Lebanon’s unresolved political crisis, it often encounters barriers that make apprehending potential defendants difficult. They have proffered Hezbollah, a considerable political power in Lebanon that has refused to cooperate with the STL, as an example of such a barrier. The more difficult task of obtaining international fugitives combined with the nature of the crimes make in absentia trials necessary. They argue that if the STL were to prohibit trials in the absence of the accused, fugitives could evade the Tribunal with a certain level of ease and impunity. Therefore, the STL’s practice of conducting trials in absentia strikes the delicate balance between respecting the rights of the accused and the rights of the victims.

Critics also claim that conducting trials in absentia harms the efficiency and legitimacy of the STL. Because it is not possible to punish an absent accused, the Tribunal’s limited resources are wasted on a “show trial” and the public may begin to discredit the power of the Tribunal. Furthermore, discussions of possible human rights violations delegitimize a U.N.-mandated tribunal and have a negative effect on other international criminal tribunals. Still, proponents of the STL argue that the trials support increased judicial and prosecutorial efficiency. In conducting trials in absentia where strict circumstances require them, the Tribunal releases itself from expending precious resources on apprehending difficult fugitives and can issue a judgment that may persuade the Lebanese authorities and the international community to cooperate.

Conclusion

It is difficult to assess whether the benefits of the STL’s practice of conducting trials in absentia outweigh the detriments. While public policy and practical concerns support Article 22, the concerns surrounding potential human rights violations make it a delicate issue to navigate. However, it is possible that the benefits of conducting trials in absentia, even where the accused is absent for the entire trial, justify the inclusion of the provisions that allow the STL to do so. Safeguards like the possibility for a retrial, in conjunction with the strict circumstances under which the Tribunal can conduct trials in absentia, help to ensure that the STL operates in a manner that balances the rights of the accused and the rights of the victims.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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