Jan 16, 2014

In absentia trials at the STL

The Special Tribunal for Lebanon (STL) is currently trying four accused persons (a fifth accused's case may be joined to the main case) in absentia, i.e. these persons have not been arrested, but the trial against them proceeds nonetheless. This is a unique phenomenon in international criminal law; none of the other tribunals have employed this procedure.

Though unique in international law, in absentia trials are more common in civil law systems. The idea behind in absentia trials is that the accused person is informed of the proceedings against him, but chooses not to be present. The court has to ensure that every effort has been made to make sure that the suspect is aware of the impending proceedings against him. Once thishas been established, the court can conclude that the person has voluntarily decided to not be present at the criminal trial against him, allowing the trial to proceed.

If, however, at some point in the future, the person is arrested, he has the right to a retrial. Of course, the evidence is fresher at the initial in absentia trial, so there will always be an issue of the validity of the evidence of the initial trial to be used at the retrial. For instance, the witnesses' memories of the incident will be clearer during the initial in absentia trial than in a potential future retrial, simply because more time will have passed by then.

More specifically, in absentia trials are part of the French legal system, upon which the Lebanese criminal code is based. The law applicable to the STL proceedings is based in turn on the Lebanese criminal system.

Whether or not in absentia trials are in line with current international human rights provisions is disputed. Ralph Riachy, for instance, argues that:

"[T]rial in absentia is still a justifiable mechanism of criminal justice provided that certain rules are observed and essential safeguards are respected."

(Ralph Riachy, "Trials in Absentia in the Lebanese Judicial System and at the Special Tribunal for Lebanon," Journal of International Criminal Justice 8 (2010) at 1297).

This quote represents the general view civil law systems have. However, one must keep in mind that there are fundamental differences between trials at the domestic level and trials before international tribunals. For one, evidence gathering is much less complicated at the domestic level, where the police is mainly in charge of this process, and has a clear authority to do so. If a witness needs to give evidence, he will be requested to do so, and if he refuses to cooperate, he will be subpoenaed. In an international investigation, there is no such clear authority, and the gathering of evidence is much more complicated. Not only is there the international aspect of investigations in a foreign country which complicates the process, complications may arise at the political level as well. The fact that the accused persons have not been handed over to the Tribunal provides evidence for this.

If an in absentia trial is commenced against such persons, without full participation from the defense, are the individuals' human rights still fully respected? Any trial whereby the Prosecution has been in a position to build a case against a defendant in such a case will almost certainly lead to a conviction, because the defense will be limited to undermining the Prosecution's case, and cannot present its own version of the events.

This is not to say that any international trial in absentia inherently violates basic human rights standards, but one needs to keep in mind that the domestic standards cannot simply be transposed; the international context and its complexities must be taken into consideration. Whilst it is understandable that refusal to hand over suspects alone cannot stop the international community from pursuing criminal prosecution of these suspects of the Hariri assassination, the STL must be very cautious in these proceedings. Failure to fully respect the absent defendants' human rights will lead to a mockery of justice. If that happens, the legacy of this Tribunal will not be taken seriously in the future. The defendants will suffer from injustice from a tribunal established by the international community, a community that should strive towards creating and strengthening the adherence to human rights standards. It remains to be seen how the judges will deal with the complexities in these absentia trials and whether the STL will be a worthy institution that can deliver justice.

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