By: 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