by Chris Jenks
[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.