28 May The STL, In Absentia Trials & Notice “Otherwise Given”
[The following is a guest-post by Lt. Col. Jenks, the Chief of the International Law Branch in the Army’s Office of the Judge Advocate General — KJH]
At a workshop held in Beirut earlier this month, officials from the Special Tribunal for Lebanon (STL) attempted to explain the basis for the tribunal’s in absentia provisions. At the same time, Judge Cassese, President of the STL, claimed that “[h]uman rights are the raison d’être of the tribunal,” and that “[w]e must ensure that the rights of all – the defendants, the witnesses and the victims – are respected, and are respected equally. We must find a way of punishing the guilty but respect their rights to a fair trial.”
Well intentioned though the workshop may have been, what has yet to be acknowledged and thus not addressed is that the STL’s in absentia provisions are unprecedented and some aspects likely violate human rights norms.
The STL is the first tribunal since the IMT at Nuremburg to allow “total” in absentia proceedings, meaning that the accused may never make an appearance. Other U.N. tribunals have allowed “partial” in absentia, meaning that the accused initially appeared but was unwilling or unable to attend subsequent proceedings.
As if the first point was not enough, the STL allows for total in absentia proceedings based on notifying the accused of the indictment through “publication in the media or communication to the State of residence or nationality.” Such a trial would almost certainly violate the fair trial rights of the ICCPR (see Maleki v. Italy, U.N. Human Rights Commission Communication No. 699/1996) and the European Convention (see Sejdovic v. Italy, 42 Eur. H.R. Rep 17). While the STL affords someone convicted in absentia the possibility of a retrial, the STL is of finite duration and those tried in absentia may not surface for years. Regardless, curing a violation does not alter its creation, and through no less than a U.N. sponsored tribunal.
Even if the STL doesn’t hold a single in absentia proceeding (although conducting the workshop suggests otherwise), in a way the damage is already done – there is now precedent, through the STL statute, for a UN tribunal that conducts total in absentia proceedings and based on notice “otherwise given.” Moreover, if the right of the accused to be present at trial is now negotiable what other, previously sacrosanct, rights, are eligible for bartering?
The U.N. considered and rejected the ICTY holding total in absentia trials. At the time, the U.N. Secretary General said that “[a] trial should not commence until the accused is physically present before the International Tribunal.” The SG went on to discuss the “widespread perception” that total in absentia trials would not be consistent with the ICCPR. Indeed. Now, according to the United Nations Security Council, the STL is to be a tribunal “of an international character based on the highest standards of criminal justice.” Unfortunately, and in more than one sense, that remains to be seen.
For a more academic discussion of these issues, see my essay “Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights?” It’s available here.
It is always dangerous to assume how a certain procedural rule on the books will play out. Remember, at the ICTY anonymous witnesses are theroretically possible (there was even one case in Tadic), but then they were never actually used. It all comes down to how Judges will apply these rules, as always. In this respect, Cassese’s remarks might even be reassuring. As you suggest, this remains to be seen – when the STL Prosecutor decides to come up with an indictment…
(Moreover, the possibility of a retrial in these cases might be construed not as a cure to a violation, but rather as a way to avoid the violation in the first place.)
I am assuming that the STL, in holding a workshop to discuss its absentia provisions, envisions utilizing them.
For in absentia proceedings which dont rely on notice otherwise give, I agree that the retrial provision prevents a violation from occurring. If that is, the right to retrial is a real one. The STL has had considerable funding difficulties and an initial mandate of 3 years. If the STL tries someone in absentia, it must either remain open, or have the ability to reopen for retrial, and I question whether that is viable.
For proceedings which do rely on notice otherwise given, they would be an almost per se violation of the ICCPR and ECHR, which a retrial could correct but not prevent.
Cassese is quoted as saying: “We must find a way of punishing the guilty but respect their rights to a fair trial.”
My goodness, somebody better go back to law school to re-learn what presumption of innocence stands for. And this guy wrote a book on international criminal law? How sad!
Col. Jenks,
The article you linked to said two reasons were cited for the in absentia provision:
“The first was that the STL was the first international tribunal tackling a “terrorist” crime rather than a crime against humanity. The second reason was that the STL’s constitution stated that most Lebanese laws should be upheld in the court.”
Did they elaborate on the first of these reasons with respect to the specific suspects under investigation at all?
I would guess they don’t expect Syria to hand over anyone to the court. Perhaps this was some sort of (expensive) PR exercise to prepare us for that eventuality.
As for the second reason, it seems rather lame to me- “Most Lebanese laws” should be given effect by the STL. I would say, sure, just not the ones that violate IHR norms.
I have a great deal of respect for Prof. Cassese – I’m surprised he’s going along with this.
Charles-my knowledge of what was said at the workshop is limited to the cited news stories and references to them.
Frankly, I did not understand the comment about how the terrorism nature of the STL mandate militates towards needing the ability to hold in absentia trials more than one investigating CAH.
I think you are right, the belief throughout has been of Syrian complicity in the attack, which is in part why Lebanon sought the UN’s assistance in the first place.
As to your second point, I completely agree. And actually the STL is not truly following Lebanese procedure for in absentia trials. Lebanon conducts in absentia trials, and the accused, in addition to not being present, is not afforded appointed counsel.
I appreciate the geo-political reality that Syrian defendants may not be present at or handed over to the tribunal. But I am not sure that in absentia proceedings, when it is all said and done, advance the interest of justice very far. The majority of europe no longer holds in absentia trials, Italy being a notable exception. I think the reason is clear, in absentia trials create as many problems (maybe more) than they solve.