Author: Chris Jenks

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.

by Chris Jenks

The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the U.S. Army’s Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.

On March 8th, the Supreme Court “invited” the Solicitor General to file a brief in Carmichael v. Kellogg, Brown & Root (KBR), a case pending a certiorari decision by the Court.  Carmichael involves the application of the political question doctrine (PQD) to government contractor tort liability on the battlefield, an issue which extends well beyond just this case.

In May, 2004, Sergeant (SGT) Keith Carmichael was a military escort and passenger in a KBR tractor-trailer in Iraq when the contractor employee driving lost control of the vehicle, which plummeted into a ravine.  SGT Carmichael suffered severe injuries — his wife filed suit on his behalf. The District Court for the Northern District of Georgia initially denied KBR’s motion to dismiss, but after two years of discovery the court dismissed the case on PQD grounds. The US Court of Appeals for the 11th Circuit affirmed that decision, holding that to adjudicate Carmichael’s claims would require judicial second guessing of how the military conducts war time convoy operations.

Carmichael is one of at least 17 cases in which contractor defendants have asserted the PQD as a defense.  The lawsuits stem from alleged wrongs committed in both Iraq and Afghanistan, and have been filed by plaintiffs ranging from former detainees suing contract interrogators and interpreters, to contract employees suing contractors following insurgent attacks, to US service members, like SGT Carmichael, suing contractors after vehicle and aircraft crashes.  One interesting aspect of this litigation is that the fundamental aim of the PQD is to address whether the judiciary should review government action or decisions — yet private contractors are asserting the defense in cases where the US government is not a named party and has yet to intervene or submit an amicus brief in any of the cases.

Prior to Carmichael, two other federal appellate decisions found that the PQD did not preclude battlefield related litigation.  In the first, McMahon v. Presidential Airways, the 11th Circuit considered the crash of a Blackwater subsidiary aircraft in Afghanistan, which killed several U. S. service members (the crash and subsequent litigation were featured on a recent 60 Minutes episode).  In the second, Lane v. Halliburton, the 5th Circuit reviewed suits filed by KBR truck drivers (or their representatives) who were injured or killed when insurgents attacked their logistics convoy in Iraq in 2004.  Yet in Carmichael, a convoy accident case with no overt combat related factors (IEDS, insurgents, etc.) the same 11th Circuit from McMahon held that the PQD applied.  One way to reconcile McMahon and Carmichael is the amount of discovery; the dismissal in McMahon came relatively early on while in Carmichael there had been two years of discovery.

While the Supreme Court’s invitation to the Solicitor General does not mean the Court will grant Carmichael’s certiorari petition, it would seem to make such a grant more likely.  The potential outcome may well be the court addressing a host of important issues, ranging from the separation of powers inherent in the PQD, to the scope of the executive branches’ authority (and responsibilities) in wartime and the implications of the US military’s reliance on contractors.  Regardless of whether the Court hears the case, the first notable event will be whether, in a case pitting a severely injured combat veteran against a government contractor, the US government accepts the Supreme Court’s invitation to submit a brief.  If so, it will be the first time that the Executive branch makes its views known on whether and how the PQD applies to government contractor tort liability on the battlefield.