A Ghost Trial at the Hariri Tribunal

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the STL may have to go through the whole trial from beginning to end after many years have passed if the accused suddenly decide they want to be present for a retrial. (Photo: Marwan Tahtah)

By: Omar Nashabe

Published Thursday, November 1, 2012

An unprecedented level of secrecy surrounds the opening session of the Special Tribunal for Lebanon. In addition to the sources of key evidence remaining a mystery, the STL will be the first international court to try suspects in absentia.

The current Lebanese government in its ministerial manifesto had this to say about the Special Tribunal for Lebanon: “Based on the government’s respect for international decisions, it confirms its commitment to exposing the truth in the assassination of Prime Minister Rafik Hariri and his associates. The government intends to closely follow the STL’s proceedings, which was established on the principle of achieving truth and justice, far from any politicization or revenge.”

The tribunal, however, will apparently leave no room for the government to “follow the STL’s proceedings,” as the international judicial body has adopted a policy of absolute secrecy on all levels – in the prosecution, the defense, and the identity of the victims of the 14 February 2005 attack.

First the trial chamber decided to try the accused in absentia, appointing a defense team for the suspects, who remain at large. Then the prosecutor was granted permission to keep the identity of his witnesses secret. Now the lawyer representing the victims has requested that 17 of them remain anonymous.

This level of secrecy surrounding an international tribunal is unprecedented. No suspects will be present, no witnesses will be identified, and no mention will be made of the identity of the victims. It will be a trial of ghosts conducted by judges, lawyers, and an international judicial bureaucracy thousands of kilometers from the scene of the crime.

Other international tribunals have allowed masked witnesses, but in those cases, the suspects are not being tried in absentia. The STL is the first international court to permit the trial of suspects without requiring their presence.

In most cases, the investigation is supposed to be kept secret and the trial held in the open. This principle is considered a cornerstone of justice. But here, the tribunal has chosen to keep key evidence secret for “security reasons” while turning a blind eye to the repeated leaks from both the prosecutor’s office and the independent investigative commission.

On Monday, the victims’ legal representative, Peter Haynes, and his two Lebanese assistants, Nada Abdul-Sater Abu Samra and Mohammad Farid Mattar, requested from Pre-Trial Judge Daniel Fransen that he not reveal the identities of 17 of the victims in the Hariri assassination.

In his motion to the pre-trial judge, Haynes wrote: “The nature of the threat faced by the victims wishing to remain anonymous ranges from intimidation and trauma to grave physical injury and death. The threat can originate from the locality or neighborhood they live or work in, specific members of hostile organizations or family members. In some cases, the age and/or psychological condition of the victim represents an exacerbation of the threat.”

In the following paragraph, he added: “These victims do not wish to share their identity with the Parties [the defense and prosecution] because such disclosure would increase the likelihood of inadvertent leakage of information through various mechanisms supporting the Tribunal's proceedings, including, but not limited to, investigations. The slightest indication of their involvement with the Tribunal could potentially put these victims at great risk.”

He continued by arguing that the danger posed to the victims is similar to that posed to witnesses and that their condition for participation in the trial is that they remain anonymous.

In addition to hiding the identity of the victims, the STL’s Rules of Procedure and Evidence allow for the suppression of the source of evidence presented at the trial because “such disclosure may affect the security interests of a State or international entity.” In which case, the rule continues, “the prosecutor may apply...to the Pre-Trial Judge...for an order to be relieved of his obligation to disclose in whole or in part.”

Article 116 provides yet more justifications for not identifying a source of evidence. It stipulates that when disclosure “(i) may prejudice ongoing or future investigations, (ii) may cause grave risk to the security of a witness or his family, or (iii) for any other reasons may be contrary to the public interest or the rights of third parties, the Prosecutor may apply...to be relieved in whole or in part of an obligation under the Rules to disclose that material.”

As for Article 118, it says that certain information cannot be disclosed without the consent of the provider in cases “where the Prosecutor is in possession of information which was provided on a confidential basis and which affects the security interests of a State or international entity or an agent thereof.”

As for Article 22 of UN Security Council Resolution 1757 which established the tribunal, it clearly permits trial in absentia in the following cases where 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.”

Given that there are no dramatic developments in the case and no major changes have been made to the indictment, the trial is set to begin approximately five months from now. Not only will the accused be absent, but some witnesses will appear in the chamber wearing masks and 17 of the victims’ names will disappear from the court’s public proceedings.

However, Article 22 also stipulates, “In case of conviction in absentia, the accused, if he or she had not designated a defense counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgement.”

In other words, the STL may have to go through the whole trial from beginning to end after many years have passed if the accused suddenly decide they want to be present for a retrial.

This article is an edited translation from the Arabic Edition.

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