FRANKLIN LAMB : The Increasingly Volatile Pre-Trial Phase of the Special Tribunal for Lebanon

Can the STL stage Hamlet without the Prince being present?

Franklin Lamb’s Saturday Mideast Report — Al Manar

It appears that no acceptable compromise regarding the divergent Lebanese political stances relative to the Special Tribunal for Lebanon (STL) will be achieved.  Support for this hypothesis can be found in the past 24 hours activities of the would-be mediators.

The Saudi King Abdullah, ‘lifted our hand’ (i.e. abandoned mediation) cold. The Turk and Qatari envoys split, the Americans fumbled, Jumblatt flipped his choice from anti-US Omar Karami to pro-US Prime Minister (again!) and then flipped back once again and now, who knows? Hezbollah’s main Christian ally, Michel Aoun defamed and cursed (ex-Prime Minister Saad Hariri and the American Ambassador respectively), Syria stressed, Iran warned, Egypt remained incoherent, the Arab League waffled and adjourned “pending developments”, Hezbollah prepared and ex-PM Saad Hariri insisted that he’s going to fight to keep his job after all. His decision late yesterday puts Saad on a collision course with the Hezbollah led March 8 “minority” which, in fact, may now be the “majority”.

It is possible that, before long, Le Liban Ancien may be gone with the wind. Indicted, convicted, condemned, dispatched and gifted to others by profoundly flawed American-Israel regional policies. Not even my astute motorbike mechanic, Hussein, is bold enough to say, whether after the coming events that he is predicting, Lebanon can rise like the sacred firebird Phoenix or will simply implode one last time into ashes to be scattered. This week, citizens are staying inside their houses more than usual, the Lebanese army is deployed at key intersections and overpasses, and some friends are cleaning their weapons and pondering whether civil war era ammunition will still fire when needed. “Informal economy” gun prices, like the cost of benzene, bottled gas, and fuel oil rose twice this week.

Serious doubts are being raised about the post-investigative/pre-trial phases of the Special Tribunal for Lebanon (STL), specifically regarding the increasing numbers of leaks, the failure of the so-called Syrian-Saudi initiative, unfulfilled Prosecution pledges to take action against wild media stories and perceived legal problems with the Special Tribunal for Lebanon’s Statute and Rules of Procedure.

Some STL staff and observers are reportedly concerned that the competition and enmity between the Canadian Daniel Bellemare and the Belgium pre-Trial Judge Daniel Fransen may also harm the STL’s progress. The reputably mega-ego Bellemare is said to be still smarting from what he considered the unwarranted and rude judicial slap down he received earlier this year from judge Fransen concerning the Jamil Sayyed case. Sayyed was one of four Lebanese Generals who spent nearly four years imprisoned for alleged involvement in the Hariri assassination based on what some believe was grandstanding tactics, including false witnesses, by international investigator Detlev Mehlis who recommended the generals be jailed based on Zuhair Siddiq’s false testimony.
General Sayyed and his colleagues are mad as hell and are demanding justice following release from prison after the STL acknowledged there was insufficient evidence to have held them in the first place. Bellemare objected to Sayyed being allowed due process Judicial Discovery in order that he might learn the evidence against him that led to his imprisonment, and Bellemare was unexpectedly overruled by Judge Fransen.  Sayyed’s case continues, as a side event of the STL.

Assuming the reported Bellemare-Fransen animus does not cause the proceedings to become fatally mired, there are also serious doubts among some legal international law students about problems with trying the suspects Bellemare has identified in his indictments. One name is said to be a Middle East country head of state and also head of government, who like no fewer than 8 Arab countries  “popular leaders of the people” got his job from his dad based on primogeniture rather than his own record of public service.

Can the STL stage Hamlet without the Prince being present?
Increasingly, international legal critics of the STL are also highlighting flaws in the Special Tribunals Statute and Rules of Procedure. One Court Statue provision is particularly seen to be fundamentally inconsistent with international law, and which binds Lebanon, is Article 22 of the Tribunal’s Statute.

Article 22 allows for trials in absentia. One problem is that trying suspects in absentia is virtually unheard of among international ad hoc and ‘hybrid’ UN courts. In absentia trials have been consistently forbidden in international tribunals ever since the 1945 Charter of the International Military Tribunal in Nuremberg. Absentia trials were then, and ever since the end of WW II, have been condemned for the simple reason that in absentia trials allow for deep and broad politicization of the judicial process.

A careful reading of the STL Statute leads to the conclusion that not only does Article 22 authorize in absentia trials, but it requires them. As such, Article 22 violates Lebanon’s rights and obligations under international legal standards and practice. In absentia trials will almost certainly lead to the political corruption of fair trial standards and thus gives rise to legitimate grounds for Lebanon and other countries to withhold cooperation from the work of the Tribunal.  In absentia trials will also delegitimize the work product of the Lebanon Tribunal leaving any resulting verdicts deeply flawed and likely rejected by international public and legal opinion.

How so?

The right to Habeas Corpus, being the fundamental right of a person to be present at trial is enshrined in Article 14(3) (d) of the International Covenant on Civil and Political Rights (ICCPR), which is binding upon Lebanon. It states that any person charged with a criminal offence has the right to be present at trial. This right is a minimum due process guarantee and it is required at all stages of the STL proceedings. UN Human Rights Committee (the HRC) ruled in Mbenge v. Zaire that everyone is entitled to be tried in his presence and to defend himself in person or through legal assistance. This provision in Article 14 cannot reasonably be said to always prohibit proceedings in absentia and sometimes international humanitarian law would allow them.

One case would be when the accused person, after being given actual notice of the charges, sufficiently in advance of trial, knowingly declines the Habeas Corpus right. The critical question, then, is precisely when departure from the norm in the fulfillment of this objective is justified and does the STL Statue violate international law? It is submitted that the Court’s reasoning in Mbenge v. Zaire is sound and once it is appreciated where the burden of proving the accused’s knowledge lies — that is, on the prosecution — it becomes plain that any argument based on the accused have received informal knowledge or constructive knowledge is bound to fail. Thus, as indicated by the Court in Mbenge v. Zaire, the accused must at a minimum be served with a summons if the STL Office of the Prosecution is to discharge its burden.

The case law of both the Human Rights Council and of the European Court affirms that, absent a right of retrial, actual notice of the proceedings on the part of the accused is a necessary condition in order for those proceedings to be compliant with Article 14(3) (d) of the ICCPR or Article 6 ECHR.  Therefore, under the relevant rules of international law binding upon Lebanon, absent an unfettered right of retrial, which the STL Statute does not provide, it is impermissible to commence a trial in the absence of the accused unless it can be demonstrated that, at the very least, the defendant had actual and direct knowledge of the proceedings. Meaning he/she must be personally served a summons.

In additions, Article 14(3) (d) of the ICCPR, read in light of the subsequent practice concerning trials in absentia in many jurisdictions, indicates that (subject to retrial at the accused’s option) a court may not commence or proceed with a trial unless the prosecutor is able to establish that the accused possessed actual knowledge of the proceedings and intended to waive his right to be present.

Article 22 STL Statute, entitled ‘trials in absentia’, provides as follows:

The Special Tribunal shall conduct trial proceedings in the absence of the accused, if he or she:

1.    Has expressly and in writing waived his or her right to be present;
2.    Has not been handed over to the Tribunal by the State authorities concerned;
3.    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.

Another of the problems with Article 22 is the real likelihood that ‘the State authorities concerned’ may have ‘failed’ to hand over the accused for various legitimate reasons. For example, how can it be known which State authorities are “concerned” given that the whereabouts of the accused person would likely be unknown? Moreover, as a simple matter of public international law, Countries are under no obligation whatsoever to extradite suspects for trial in another Country. To do so is arguably unlawful in the absence of an extradition treaty providing a basis in law for such an extradition.

International law does not permits canceling an individual’s right to appear at his own trial on the basis that some third state (possibly hostile to the accused or relevant Country) has not done a positive act that it is under no obligation to do. Also, the fact that a Country may have refused to extradite an accused person is immaterial when it comes to the critical question of whether the accused himself knew of the proceedings against him and voluntarily elected not to attend.

It is possible that the international community will tire of the STL, given all the tribunal’s perceived defects, long before any verdicts are achieved or appeals exhausted. It remains to be seen what becomes of the original objectives contemplated by UN Security Council Resolution 1757 as serious questions are increasingly raised about the wisdom of the UN stamping its imprimatur to a widely suspected US-Israel project in the first place.

Copyright @ Franklin Lamb