The Special Tribunal for Lebanon (STL), the body set up to pursue the killers of former Lebanese Prime Minister Rafiq Hariri, discusses today whether to push ahead with trials, despite having no suspects in the dock.

By Richard Walker, The Hague

The right to be present at one’s trial is widely considered a basic foundation of criminal law – cases of exceptions being made to this rule are numerous in domestic law but are still far from the norm. In international law they are very rare.
Perhaps the case of Hitler’s right-hand man Martin Bormann, convicted and sentenced to death in absentia at the Nuremburg Trials in 1946, (unbeknown to the court he had killed himself in Berlin in 1945), is the best known example of a conviction in absentia. Bormann had gone missing but 21 of his co-defendants had been arrested and were present in court for the duration of the trial.

Completely absent
The STL is an exceptional legal construction in that it was established with the knowledge that in absentia trials would be likely. It is the only international court to have been set up this way.
But how can a defence be viably constructed without defence lawyers ever having communicated with the defendants?

Francois Roux, head of the STL’s Defence Office, contends that the lawyers he has appointed “will not exactly be the accused person’s lawyer, but rather the advocate for the rights of the accused”.
Critics of the STL, international lawyers Wayne Jordash and Tim Parker, say that unless the accused have an “unfettered right to a retrial… a trial in absentia violates internationally recognised minimum standards of fairness.”

Francois Roux promises that is what will happen - “If a person has been convicted (in absentia), he or she has the right to a re-trial, simply by opposing the judgement.”
So why press ahead with trials in absentia when the likelihood of retrial is so high?
“The in absentia law is the lesser of several evils… one advantage might be that in absentia trials force the prosecutor to publicly disclose all evidence at his disposal… but he also has to enable the accused to have the right to a lawyer”, said Francois Roux.

Some STL defence teams may decide to challenge whether trials in absentia are legal. The independence of defence teams to challenge in absentia trials, and indeed, construct their own lines of defence in any way they see fit, is built into the STL statute.

Do the suspects know?
Central to the question of whether trials in absentia should proceed are the efforts made to ensure the suspects know about the proceedings against them.
For sceptics the crux of the problem lies in Article 22 of the STL statute – it is here that in absentia trials are justified if the accused have absconded or cannot be found and ‘all reasonable steps’ have been taken to notify him or her of the proceedings.

‘Wanted’ posters depicting photos of the 4 suspects have been well publicised in Lebanon and the surrounding region. Plus, all four are members of Hezbollah – the leadership of which has flatly refused to cooperate with the STL. For many this is tacit acknowledgment that the men are being protected.

Precedent
When the tribunal to prosecute crimes in the former Yugoslavia (ICTY) was created in 1993 there was widespread support for trials in absentia as several leading suspects were expected to be hiding for long periods. Nonetheless, trials in absentia were ruled out because, as former UN Secretary General Boutros Boutros Ghali said at the time, they would “not be consistent with Article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence.”

Chance squandered
Many in the legal world stick firmly to that principle. But the STL sought to address this problem by providing ways for suspects to take part in proceedings against them in unconventional ways. For Francois Roux the chance to make the most of these measures was missed when prosecutors issued arrest warrants.

“The Defence office believes the arrest warrants were an error – a subpoena should have been served to participate in the STL in one of 3 ways - through video conference, through a lawyer, or physically be present… all while not being in detention… The standard of the STL is liberty, the exception is detention during pre-trial… the issue of an arrest warrant precludes these 3 possibilities,” said Francois Roux.