JURIST Guest Columnist Niccolò Pons, Assistant Legal Officer of the Pre-Trial Chambers of the International Criminal Court, says that there are many obstacles for the Lebanese court both in obtaining and carrying out a trial in absentia, but that it can still be an effective tool in furthering international justice and accountability…

Recent developments at the UN-backed Special Tribunal for Lebanon (STL) have triggered a vivid debate about the fate of the four individuals accused of the terrorist attack that resulted in the assassination of the Lebanese Prime Minister Rafiq Hariri and 22 others on February 14, 2005. The four alleged Hezbollah associates have been at large since June 28, 2011, when the counts against them were confirmed by the pre-trial judge and arrests warrants issued accordingly.

A few weeks ago, the pre-trial judge requested that the Trial Chamber consider whether the conditions to initiate proceedings in absentia have been met. The Chamber sought observations on the matter from the prosecutor and the defense and scheduled a hearing on November 11, 2011. Counsels have been appointed by the Tribunal to represent the accused. It will now be the responsibility of the trial judges to decide upon an issue which represents a controversial novelty in international criminal law and which could have a significant impact on Lebanese politics.

Article 22(1) of the STL Statute provides for trials in absentia in three distinct situations, namely when the accused (i) has expressly and in writing waived his right to be present; (ii) has not been handed over to the Tribunal by the State authorities concerned; or (iii) has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance before the Tribunal and to inform him of the charges.

According to Article 22(2) of the statute, before conducting proceedings in the absence of the defendants, two conditions must be fulfilled. First, the accused must be notified or served with the indictment or, alternatively, he must be given notice thereof through publication in the media or communication to the state of residence or nationality. Second, the accused shall be afforded with a counsel of his own choice or with a court-appointed counsel.

In addition, Rule 106(B) of the Rules of Procedure and Evidence stipulates that, in case the accused is not present on account of the failure or refusal of the relevant state to hand him over, before deciding to conduct proceedings in absentia the Trial Chamber shall, in addition to assessing whether the requirements under Article 22(2) of the statute are met, consult with the Tribunal’s president and establish that all necessary steps have been taken with a view to ensuring that the accused may participate in the proceedings.

As difficult as it may be, a fairly comprehensive way to define proceedings in absentia is to refer to them as a residual and exceptional institution to be relied on only when all the reasonable steps to secure the presence of the accused fail and there are insurmountable obstacles in obtaining his custody.

Essentially, proceedings in absentia constitute a fragile compromise between two conflicting instances: the right of the accused to be tried in his presence and to defend himself in person, on the one hand, and the need not to subjugate the judicial system to the failure or refusal of the accused to be present at trial on the other. The right of the accused to be present at trial is a fundamental safeguard to the principle of fairness of criminal proceedings and is enshrined in Article 14(3)(d) of the International Covenant on Civil and Political Rights as well as in all major regional human rights conventions. When derogating from such a crucial right, proceedings in absentia are supposed to be compensated by the possibility, for an absentee arrested or surrendering in the course or after the conclusion of the in absentia trial, to request the termination of the current proceedings and initiate a new trial in his presence. The right to retrial is provided in Article 22(3) of the STL Statute and in Rules 108 and 109. Importantly, all other rights accorded to an absentee defendant and the procedure governing the in absentia trial are exactly the same as if the accused were physically present before the bench.

For the time being, it is only possible to make some speculations on the scenarios which are likely to materialize in the forthcoming weeks, based on the little publicly available information. In his submissions to the Trial Chamber, the prosecutor argued about the inappropriateness, at this stage, of commencing proceedings in absentia against the four accused. His observations reveal that there exist two different situations to date.

In an interview with TIME Magazine dated August 18, 2011, one of the four men at large allegedly declared that his whereabouts are known to the Lebanese authorities and that “if they wanted to arrest me they would have done it a long time ago.” Reading the article, one can readily understand that the accused is well aware of the accusations against him, and that therefore he received notice of the indictment, as required by the STL Statute, although he was not personally served thereof.

Should all this information be reliable, however, such scenario could constitute a failure or refusal by Lebanon to comply with a Tribunal’s request or order under Rule 20(C). Accordingly, the president of the STL would probably engage in consultations with the competent Lebanese authorities and, if the arrest warrant would still remain unexecuted, he would be likely to make a judicial finding of non-cooperation and refer the matter to the UN Security Council for consideration and further action against Lebanon, if appropriate, in accordance with the UN Charter. This would significantly delay the Trial Chamber’s determination, upon consultation with the STL president, that “all necessary steps have been taken with a view to ensuring that the accused may … participate in the proceedings” and thus begin proceedings in absentia, as required by Rule 106(B).

The second scenario relates to the other three accused in the Hariri case. Let us assume that they have “absconded or otherwise cannot be found.” This is the situation envisaged by Article 22(1)(c) of the statute and Rule 106(A)(iii). In addition, no or little information could be available about their location and, more importantly, on whether or not they have been informed about the charges against them. Under these circumstances, how can the Chamber be satisfied that all reasonable steps have been taken to inform the accused of the charges against them if it is not clear whether the fugitives have been personally served with the indictment or had otherwise knowledge thereof by way of any other channels of communication?

It should be borne in mind that human rights jurisprudence, although not unanimously, seems to require that, in principle, trials in absentia may commence only when the accused has clearly and unequivocally waived his right to attend the hearings, thus giving the consent for the trial to be conducted in his absence. However, in fugitive scenarios such as the one concerning three of the four Hezbollah members, the European Court of Human Rights (ECHR) has stated in Kuonov v. Bulgaria that even in the absence of personal notification of the indictment, it can still be unequivocally demonstrated on the basis of certain factual information; that the indicted is fully aware of the nature and cause of the accusations against him and that he does not have the intention to be present at trial or that he is trying to evade prosecution.

At this point, the Trial Chamber would have a choice to make. On the one hand, the judges could decide that, pending the referral to the UN Security Council of the matter related to Lebanon’s non-cooperation in apprehending the first accused, the entire proceedings against the four defendants will be delayed. On the other hand, the possibility of severing the case could be considered. The proceedings against the three fugitives, whose whereabouts could remain unknown if there was enough information to demonstrate that they have waived their right to be present, would proceed in their absence. To the contrary, the case against the first accused would be delayed until the Chamber has enough information to be satisfied that all reasonable steps had been taken to ensure the presence of the indicted before the STL.

In addition to giving legal characterization to the factual combinations that will arise from the evidence concerning the four accused in the Hariri case, the STL will have to bear a much more challenging and sensitive burden. The victims of terrorism and Lebanese people more generally are waiting for answers and have great expectations. The STL will have to meet these expectations and demonstrate that proceedings in absentia, should they really take place, do not represent a failure of the judicial system or a shortcoming to the establishment of truth, but one of the legitimate resources provided by international law on which the Tribunal can rely to honor its mandate and hold a fair and impartial trial.

Niccolò Pons is currently an Assistant Legal Officer in Pre-Trial Division, Chambers of the International Criminal Court. He is a former Legal Consultant in a Trial Chamber of the International Criminal Court. Previously, he worked in the Chambers of the Special Tribunal for Lebanon and has written on the challenges of in absentia proceedings. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Court or the Special Tribunal for Lebanon.

Suggested citation: Niccolò Pons, Lebanese Trial in Absentia Faces Many Obstacles to Justice, JURIST – Hotline, Dec. 3, 2011, http://jurist.org/hotline/2011/12/niccolo-pons-lebanon-absentia.php.