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Trials in Absentia Under International, Domestic and Lebanese Law

As a follow on to our backgrounder on the Special Tribunal for Lebanon, one additional feature of the current proceedings is worthy of note: the trials are proceedings in absentia.  This is one of several of the procedural features of the STL drawn from the civil law tradition, including the expectation of more proactive judges and the admissibility of written evidence.  Upon the STL’s issuance of the indictment, Lebanese authorities were responsible for locating and apprehending the four indicted accused.  Accordingly, they conducted surveillance of last known addresses, served the indictment on neighborhood leaders (mukhtars), issued advertisements and public service announcements, released an Interpol red notice, and established a hotline.  When none of these efforts bore fruit, the Tribunal ruled that it would proceed in absentia.

Unlike the Statutes of the other international tribunals, Article 22 of the Tribunal’s Statute (along with Rules 106-109) allows such proceedings if the accused:

(a) Has expressly and in writing waived his or her right to be present;

(b) Has not been handed over to the Tribunal by the State authorities concerned;

(c) Has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.

The STL must ensure that there was fair notice of the indictment either personally or through publication and that the accused is represented by counsel, either of his or her own choosing or upon court appointment.

In general, civil law systems are more accommodating of trials in absentia than are common law systems, which are premised on an adversarial process.  Even in those national systems that grant criminal defendants the right to be present at one’s one trial there are exceptions, such as when the accused flees the jurisdiction, when the accused has received fair notice of the charges against him and yet fails to respond to a valid summons, when only misdemeanors are charged, or when the individual must be removed from the courtroom due to disruptive conduct.  Under these circumstances, the right to be present can be deemed waived.  In the United States, for example, in absentia trials are barred unless the defendant absconds after trial has commenced or disrupts the proceedings (Fed. R. Crim. Proc. 43).  Many systems that allow in absentia trials require a re-trial in the event that the person in default subsequently surrenders himself or is arrested before the statute of limitations for the execution of the sentence expires.  The right to retrial is provided in Article 22(3) of the STL Statute and in Rules 108 and 109.

Trials in absentia raise acute human rights concerns.  The International Covenant on Civil and Political Rights contains a long list of procedural guarantees that all states parties must provide to individuals accused of crimes.  In Article 14(3)(d), it provides that:

The accused shall be entitled to be tried in his presence…

For example, in Monguya Mbenge v. Zaire (1990)—a case before the Human Rights Committee (HRC), the expert body that monitors states’ compliance with the Covenant—the applicant was sentenced to death while in Belgium and only learned of the proceedings against him through the press.  Under the circumstances, the Committee found that several of the applicant’s procedural rights had been violated, particularly given that the state had taken virtually no steps toward transmitting the summons to the applicant, whose address was apparently known, thus impeding his ability to prepare any defense.   Likewise, in Maleki v. Italy (1990), the HRC ruled at para. 9.4 that

The State party … has failed to show that the [applicant] was summoned in a timely manner and that he was informed of the proceedings against him.  It merely states that it “assumes” that the author was informed by his counsel of the proceedings against him in Italy. This is clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia.  It was incumbent on the court that tried the case to verify that the author had been informed of the pending case before proceeding to hold the trial in absentia.  Failing evidence that the court did so, the Committee is of the opinion that the author’s right to be tried in his presence was violated.

Although the HRC has stated that the ICCPR generally precludes trials in absentia, Article 14(3)(d) is subject to the same narrow exceptions that are found in domestic law when defendants who attempt to evade justice.  Thus, in Mbenge, the HRC noted that the Covenant

cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused’s absence. Indeed, proceedings in absentia are in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) permissible in the interest of the proper administration of justice.  Nevertheless, the effective exercise of the rights under article 14 presupposes that the necessary steps should be taken to inform the accused beforehand about the proceedings against him.

This jurisprudence was subsequently codified in the General Comment No. 32 (para. 36), issued in 2007:

Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Consequently, such trials are only compatible with article 14, paragraph 3 (d) if the necessary steps are taken to summon accused persons in a timely manner and to inform them beforehand about the date and place of their trial and to request their attendance.

This is the approach of the European Court of Human Rights as well (Colozza v. Italy).
The trial before the STL will be the first in absentia proceedings in an international tribunal since the Nuremberg Tribunal sentenced Martin Bormann, Hitler’s Chief of Staff, to death. The Nuremberg Charter also allowed for such trials in Article 12:

The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.

At first, it was believed that Bormann had gone into exile in South America at the close of WWII (and it was rumored that he underwent plastic surgery in order to conceal his identity).  Others believed that he died in Germany in the waning days of the Nazi regime, an end seemingly confirmed by genetic testing on a set of remains found in 1972.  Bormann was declared dead by a German court in 1973.  Nonetheless, Nazi hunter Simon Weisenthal kept up the search for many years longer.

Although trials in absentia are generally tolerated by human rights law, the right of the accused to a re-trial is an important procedural safeguard. It is not clear if this right can be enjoyed by the present defendants given that the STL is slated to be an ad hoc tribunal, which—like all ad hoc tribunals—will eventually be retired once it concludes its cases.  In the event that the defendants are discovered years later, it is unclear in which forum they will be entitled to a retrial, assuming the custodial state is willing to extradite them somewhere. Chris Jenks has also raised valid concerns about the provision of notice by mere publication.

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About the Author

is a Visiting Professor at Stanford Law School and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own and not those of the State Department. Follow her on Twitter (@BethVanSchaack).