Special Tribunal Moves Toward Trial In Absentia

In an exclusive interview with Al-Monitor, Sir David Baragwanath, President of the Special Tribunal for Lebanon, said that a trial in absentia for the four suspects in the murder of former Lebanese Prime Minister Rafik Hariri, scheduled for March 25, 2013, may be the best outcome for Lebanon.

It is the first time since the Nuremburg trial of Nazi war criminals after World War II that an international court would conduct an “in absentia” trial.

Baragwanath said that an absentia trial can actually give the accused more rights, because of a right to retrial at any time: 

“The accused may view from a distance the trial in absentia, see how it turns out, and then if the accused then appears, the accused has the right to insist on a retrial. That’s a right that’s not available in other circumstances.”

Sir David also addressed whether the tribunal can meet the timetable. The court’s mandate is set to expire in February 2015.  Sir David said that the question of ensuring a fair and expeditious trial was “under close consideration” by the pretrial judge and that if the case was deferred, this would be made public immediately.

If the trial was not finished by then and the mandate not renewed, Sir David admitted that, the suspects could go free. “We’re talking hypothetically, but it must follow that if the tribunal stops and nobody has been convicted, there is no conviction on the basis of which any accused person could be detained. It all simply goes away. Every accused person is presumed to be not guilty, unless and until guilt is proved beyond reasonable doubt. And that would not have happened. From which it follows that the person or persons would be free.”

The tribunal has been a heavily contested institution since its creation in 2006, with Hezbollah and the March 8 alliance campaigning against its legitimacy. But Sir David emphasized that the tribunal is not a political entity and that the only people the Tribunal is interested in are those responsible for the attacks. “We want all Lebanese people, whatever their politics, to assist what we are doing against a tiny little handful of people, that is the killers,” he said.

Asked if the Special Tribunal might have a role in investigating the murder of Brigadier-General Wissam al Hassan, Sir David said “it’s not a matter on which we have any jurisdiction.”

Excerpts of his interview with Fernande van Tets follow: 

The upcoming trial

Baragwanath: “The pretrial judge has made a tentative fixture of the 25th of March. Our statute requires two things of us; one is that we be fair, the other is that we be expeditious. If there is a conflict between the two, fairness prevails. That means that the tribunal will do everything it properly can, to proceed on the 25th. Indeed as provident under article 10, I am responsible for the tribunal’s “effective functioning and the good administration of justice.” But if there be reasons of fairness, that means that it would be unfair to proceed on the 25th of March, then either the pretrial judge or the trial chamber will defer the hearing for so long as is needed to ensure fairness.

That would mean of course a limited deferral, because of the further requirement we have of expedition. And I am well conscious that the people of Lebanon, they include the victims and the accused also, are entitled under the law to expedition. There is always cost involved with delay, so the Tribunal is not going to defer the hearing for longer than the minimum period required to be fair, if any deferment is needed, in order to be fair.

It will be a matter for the pretrial judge, and once he has passed the file across to the trial chamber, it will be up to the trial chamber, to decide how the interests of expedition and fairness are to be resolved. I can’t elaborate except to say that the pretrial judge, I know, has this question of ensuring a fair trial and ensuring an expeditious trial, under close consideration. At this stage, there has been no shift of the date of 25th, as far as I am aware of. If, and when it is shifted, it will be made public immediately.”

On the tribunal’s mandate

Baragwanath: “I am assuming we will have to finish by then [Feb 28, 2015], that’s what the Secretary General has stipulated as our end date. While he has the power to extend the time, we must proceed on the basis that that is the end of our mandate; so we must have all our work done by then. If not, the Secretary General will decide if, in fact, it appears further work requires to be done. It will be a matter for him, and that’s not a matter I can possibly comment on.

"If the mandate is not extended, we stop business on the 28th of February 2015. We would no longer be judges of a tribunal if our mandate is not extended. We’ re talking hypothetically, but it must follow that if the tribunal stops and nobody has been convicted, there is no conviction on the basis of which any accused person could be detained. It all simply goes away. Every accused person is presumed to be not guilty, unless and until guilt is proved beyond reasonable doubt. And that would not have happened. From which it follows that the person or persons would be free.”

On trial in absentia

Baragwanath: “We can try in absentia because the power to do so is contained in article 22 of our statute. That ‘s the first reason; that gives jurisdiction to do it. The second reason is that the trial chamber on the first of February of this year, in a decision which was upheld by the appeals chamber on the first of November of this year, felt that the conditions for trial in absentia had been satisfied [The suspects were aware of the indictments].

"Under article 22, in the case of conviction in absentia, the accused shall have the right to be retried in his or her presence before the special tribunal unless he or she accepts the judgment. So the question is, does the person accept the judgment or not accept it? If they accept it, it stands. If they don’t accept it, there’s a retrial. Whatever stage the accused person appears, whether it’s before or after conviction or sentence, the person has the option to either accept the conviction or to say: “I don’t accept the judgment and I want a retrial.” It’s their call. And that conforms with the jurisprudence of the European Court of Human Rights, and also the law of Lebanon and France, as well as our article 22.

"The accused may view from a distance the trial in absentia, see how it turns out, and then if the accused then appears, the accused has the right to insist on a retrial. And that’s a right that’s not available in other circumstances. So in that sense, the rights are greater.

"As a New Zealander without experience in trial in absentia, I look very hard at it. Given that the absolute right to retrial, I have accondered to the use of trial in absentia. The dominant requirement of any criminal trial, is that it is fair to the accused; and that’s why I look very closely at all the safeguards. My experience as a trial judge, and as an appellate judge, is the fact that the case is being reheard, does not unfairly prejudice the accused. [This is] because the court, in my experience largely being the juries, looks at the evidence in front of it, rather than what happened in a previous trial.

"The problem with not having trial in absentia is that if an accused manages to hide, the community do not have the facts of the case presented formally before the court and contested by the defence counsel in the way that can happen with a trial in absentia. And that can mean, particularly for victims, that what they have experienced; the agony of either personal injury or loss of a loved one, does not encounter the court analysis that the trial does. And since trial in absentia permits that, it serves the interest of the victims and the members of the community where the events have taken place.

"There is of course an expense but that’s a cost that has been accepted as payable under our statute.”

On the cost of the tribunal

Baragwanath: “When the STL’s 2013 budget is approved is not a matter that lies within my competence. As for the Lebanese contribution for 2013, I did not meet any political personnel on this last visit [at the end of November]. Payment is a matter for the government of Lebanon. I had the privilege of meeting the Prime Minister last November, and almost immediately after our meeting, Lebanon paid its 49% of our budget. This year, Lebanon paid, in full, its budget share in July and I appreciate the efforts that Lebanon made to comply with the responsibility imposed upon it by the statute.

"As for the cost imposed on Lebanon, it was not I, but the Security Council. And the Security Council clearly took the view, following an approach by the Lebanese government, although not complying with the constitution of Lebanon, in terms of the creation of the treaty, the view was taken that the interests of the rule of law, which can be promoted by an international tribunal, with very substantial resources, were appropriate to be applied.

"And that was a decision of the Security Council and that is the level at which this has to be addressed. The same question arises whenever a decision of the Security Council arises that has costs.”

On whether the STL will set a precedent for justice in Lebanon

Baragwanath: “In the last part of the legality judgment of 24th October, paragraph 93 and following, I touch on this topic. In an ideal world, every person who commits a crime will be brought to justice. There are practical impediments to achieving that, and often the decision makers, who are responsible for creating and funding courts, have to make line drawing decisions. What needs to be emphasized, is that the creation of the tribunal doesn’t exonerate anybody from liability. For anybody who is not called before the tribunal, the law and the procedures of Lebanon are still there. The Special Tribunal is, as it were, a super added body to inject special experience and resources for the purposes identified by the Security Council, when it created the tribunal.

We have no politics in the tribunal, we have nothing to do with politics. Politics in Lebanon is a matter for the people of Lebanon, who have a right to vote that we don’t have.  We are concerned with a wholly different topic of alleged criminality, in relation to a defined number of attacks. The only persons and conducts in which we are interested, is those persons suspected of involvement in the attacks in our jurisdiction in a 14 month period that are connected to the attack of 14 February 2005, and that attack itself.

Now, aside from those people, whom I will call the killers, we have nothing but the deepest sympathy for all the people of Lebanon, whatever their politics, right across the board. My experience has been that the people of Lebanon are probably as much, or perhaps more, heavily focused, enthusiastic, for security for their children and grand children than any other society I have had anything to do with. I have no doubt that the past experience that Lebanon has been subjected to, contributes to this.

On the assassination of Brig. Gen. Wissam al Hassan:

Baragwanath: “If you read article 1 of our statute, we have no authority in respect of anything after the 12th of December 2005, unless two conditions are satisfied: One, the case has to be connected to the attack on 14th February 2005 and, two, there is need of the consent of Lebanon, the Security Council and the United Nations. Unless those two conditions are satisfied, we have no jurisdiction. Because there has been no such reference to us it’s not a matter on which we have any jurisdiction.

"If there be a link that would satisfy one of the two conditions of our having jurisdiction. Our jurisdiction is not limited to the attack on February 14th 2005 we also have jurisdiction in relation to “other attacks that occurred in Lebanon between 1 October, 2004 and 12 December, 2005” if they are connected. And the pretrial judge has formed the view that three other attacks are connected. If there be others again, then again we have further jurisdiction.”

We want all Lebanese people, whatever their politics, to assist what we are doing against a tiny little handful of people; that is the killers, of whom I have just spoken. That’s the anti-thesis that I draw between the killers on one hand, and everybody else in Lebanon on the other hand.”

Fernande van Tets is a journalist based in Beirut. She has written for the Economist, the Interdependent and Executive Magazine, as well as being regularly featured in Dutch national newspapers such as Trouw and het Parool. She has an MA in War Studies (distinction) from King's College, London. Follow her on Twitter @fernandevtets.