Notice Otherwise Given: Will ‘in absentia’ trials at the Special Tribunal for Lebanon Violate Human Rights?

Jenks, Chris


Volume: 33
Fordham Int'l L.J.


This Article examines whether the STL's in absentia trial provisions violate human right norms and, if so, whether the right to tribunal-appointed counsel or to retrial remedies any such violation. Part I explains the operation of the STL, with particular attention drawn to the funding difficulties the tribunal faces, and details the STL's in absentia trial provisions and subsequent right to counsel and retrial. Part II compares the in absentia trial provisions of the STL to those of other tribunals to demonstrate that the STL's in absentia trial provisions represent a radical departure from prior law, even though there is an overlooked tolerance for some form of in absentia proceedings in the other tribunals. The ramifications of that departure are then explored in Part III through a discussion of hypothetical challenges of extradition by accused tried in absentia by the STL. The challenges utilize the most likely venues-the individual complaint mechanisms afforded by the International Covenant on Civil and Political Rights ("ICCPR")3' and the European Convention for Protection of Human Rights and Fundamental Freedoms ("European Convention").32 Part III outlines the relevant provisions of the ICCPR implicated by in absentia trials, how the HRC has interpreted the right to be present, and how a challenge to extradition following an in absentia trial at the STL might fare under the ICCPR. Part IV conducts a similar inquiry with respect to the European Convention and relevant case law
from the ECtHR. The final Part discusses the implications if the STL's in absentia trial provisions are found deficient for the STL, the U.N., and for subsequent tribunals. The Article concludes that the STL's in absentia trial notice provisions would violate human rights norms and that those violations are not likely to be remedied by a right to retrial before a tribunal of finite duration. Ultimately the Article determines that the STL's in absentia trial provisions were in a sense purchased at a price that will be paid by the international community.

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