For the first time since the Nuremburg trial in abstentia of Martin Bormann in 1946, an internationalized court, namely the Special Tribunal for Lebanon (STL), has initiated a trial completely in abstentia. In the case of The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra, the pre-trial court seized the trial chamber to determine if a trial in abstentia is appropriate at this time. The trial chamber affirmed that such a trial is appropriate, thereby initiating process for a trial in absentia. The defendants were indicted in June 2011, but as of February 2012, none of the four accused of assassinating former Lebanese Prime Minister Rafik Hariri had appeared before the court. Although trials in absentia are a controversial concept, most countries accept some form of trials in absentia. As the STL begins its proceedings, it will have to balance the need for efficient justice with the rights of the accused for a fair trial under the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(d).
Trials in absentia are controversial because they seem to violate the due process rights guaranteed in Article 14(3)(d) of the International Covenant on Civil and Political Rights, which ensures the right of a defendant “to be tried in his presence.” Despite this discord with the ICCPR, trials in absentia occasionally occur. Many countries, such as the United States, France and Italy, allow for partial trials in abstentia if the accused is aware of and present for the initial hearing of the trial. The validity of a trial in abstentia rests on the guarantee that the defendant has the same rights during the trial as if he were present, and that he is made aware of the initial proceedings and indictment. The European Court of Human Rights has also confirmed the validity of trials in absentia, provided that a retrial is permitted if the defendant chooses, except if the defendant waived his right to be present and had his chosen counsel appear on his behalf.
Unlike in the United States, the STL can hold trials completely in absentia under Article 22 of the Statute of the STL and Rules of Procedure and Evidence 105 and 106. A trial in abstentia shall be conducted in the STL if the defendant has waived his right to be present, has not been handed over to the STL, or has absconded and the court has taken all “reasonable precautions” such as coordinating with Lebanese authorities. Rule 105 bis (A) allows the pre-trial court to initiate a trial in abstentia if the defendants have not communicated with the court thirty days after the indictment.
The STL issued the indictment in Prosecutor v. Salim Jamil Ayyash, et al. on June 28, 2011. Although the Court released the indictment to the public and issued arrest warrants for the four indicted defendants on July 8, 2011, the defendants failed to appear before the court. In September, the pre-trial court initiated proceedings to seize the trial court to determine if a trial in absentia could proceed. The prosecution filed a motion arguing that all reasonable measures to secure the defendants under Rule 106 have not been completed because there is still more that the government of Lebanon could do to arrest the accused. Citing a lack of cooperation between the trial court and the Lebanese authorities, and a TIMES interview with one of the accused in which he claimed that the Lebanese authorities knew where he was, the prosecution asked for a delay in the in absentia proceedings, which the trial court granted. The prosecution concerned that the government is not cooperating, would like more time to apprehend the suspects. However, on February 1, 2012, the Trial Chamber ordered the commencement of a trial in absentia against the four accused to start this year. If the four accused are found guilty, they may accept the verdict of the trial in absentia, accept the verdict and request a hearing on some aspect of the case, or request a new trial.
While in theory it is an apolitical tribunal, the STL is in a tenuous position given the current political situation in Lebanon. As the three-year mandate of the tribunal draws to a close and Hezbollah gains political support throughout the country, in part by promising to defund the STL, issuing a ruling to authorize a trial in absentia may add fuel to the fire and create increased resentment against the tribunal. Furthermore, the validity of a trial in absentia must be questioned. While the indictments of the four accused have been published throughout Lebanon and the world, it is possible that the suspects are so well hidden that they have not heard of the indictments, in which case commencing with a trial against them could violate their rights under the ICCPR. On the other hand, if the TIMES article is true, the rights of the victims to have their day in court against the accused should not be denied simply because the controlling political party in Lebanon wishes to avoid it. In the end, effective international justice should rise above the political concerns of a state.