Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights?

Abstract

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such trials when establishing earlier tribunals. Further broadening the departure from other U.N. tribunals, the STL allows for in absentia trials where the accused is assumed to have received notice of an indictment through publication in the media or by the STL communicating the indictment to the accused’s State of residence or nationality. While the STL provides a right of retrial where an accused is convicted in absentia, the right is to be retried before the STL - a tribunal currently only funded for its first year of operation. This article explores the ramifications if the STL’s notice and retrial provisions violate the fair trial rights provided by the International Covenant on Civil and Political Rights and the European Convention. In the short term, States from which extradition of those convicted in absentia is sought would face an impossible choice - comply with an extradition request from a U.N. sanctioned tribunal or with the State’s binding human rights obligations. In the long term, the significance of the STL’s potentially flawed in absentia provisions may extend well beyond the tribunal’s legacy. There are broader implications - of the U.N.’s credibility and whether in absentia trial provisions, or any other aspect of supposedly settled criminal procedure, are now negotiable in future tribunals. Ultimately the article determines that the STL’s in absentia trial provisions were in a sense purchased, purchased at a price which will be paid by the international community writ large.

Keywords: Human Rights, In absentia, Special Tribunal for Lebanon, Counterterrorism, Terrorism, United Nations, Criminal Law, Criminal Procedure