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.
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”.
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.
A few hours ago, someone from the Chinese Embassy called (the gentleman must have got my card from me during their fabulous reception and feast celebrating China’s National day a few months ago) asking if I thought Lebanon would be safe for Chinese tourists, as a group from Beijing is planning to come to Lebanon before long. Once more, I had to confess to total cluelessness. Meanwhile the Embassy of Qatar has just announced that all its citizens should leave Lebanon.
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 Sayeed case.
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 also will 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. The UN Human Rights Committee (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.
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.
- The Special Tribunal shall conduct trial proceedings in the absence of the accused, if he or she:
- Has expressly and in writing waived his or her right to be present;
- Has not been handed over to the Tribunal by the State authorities concerned;
- 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.
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He is working with the Palestine Civil Rights Campaign in Lebanon on drafting legislation which, after 62 years, would, if adopted by Lebanon’s Cabinet and Parliament grant the right to work and to own a home to Lebanon’s Palestinian Refugees. One part of the PCRC legislative project is its online Petition which can be viewed and signed at:
petitiononline.com/ssfpcrc/petition.html.
fplamb@palestinecivilrightscampaign.org.
Franklin Lamb’s book on the Sabra-Shatila Massacre, International Legal Responsibility for the Sabra-Shatila Massacre, now out of print, was published in 1983, following Janet’s death and was dedicated to Janet Lee Stevens. He was a witness before the Israeli Kahan Commission Inquiry, held at Hebrew University in Jerusalem in January 1983.
Please check our website for UPDATES:
http://www.palestinecivilrightscampaign.org/
River to Sea Uprooted Palestinian
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