The Daily Star - STL defense in absentia will mean uncharted waters - May 28, 2011

By Marie Dhumieres

The Daily Star BEIT MERY: The Defense Office for the Special Tribunal for Lebanon is conducting training to prepare the teams of lawyers for the possibility of having to defend the accused in absentia for the first time in an international trial, said the head of the office in an interview with The Daily Star. “Nobody in [such a] court has ever conducted a trial in absentia, and nobody knows today how it is going to turn out,” François Roux said, referring to the United Nations-backed probe into the assassination of former Prime Minister Rafik Hariri and 22 others in Downtown Beirut on Feb. 14, 2005. A trial in absentia would mean that one month after the court asks the Lebanese authorities to summon those mentioned in the indictment, the accused have not been arrested or have not appeared in front of the tribunal. The president could then decide to advertise the indictment in the media to inform the accused that they are being prosecuted, and inform them of their duty to appear before the tribunal. If after one month the accused have not appeared, the STL could proceed with conducting a trial in absentia. “Today nobody knows if there will be trials in absentia; nobody knows if some will appear spontaneously, if some will be arrested, nobody knows,” Roux repeated, adding he was personally convinced that it was completely possible for some of the accused to appear in front of the court of their own will, or to be arrested and brought to The Hague, the headquarters of the STL. “Our work, in our office, is to envisage all the possibilities and to try to be ready,” he added, explaining the office had already conducted three sessions of intensive training with some of the STL’s defense lawyers. “We had them role-playing. We put them in a courtroom and conducted mock trials to train for all the new concepts of this tribunal.” “We’re trying today to anticipate the maximum number of problems we might face when the trial starts,” he said. Roux explained that the STL has four special aspects, compared to other international courts, which have been convened to treat mass violence in countries such as Rwanda, Sierra Leone, and the Former Yugoslavia. The STL will be the first international tribunal to rule on guilt involving an act of terrorism, to have an independent pre-trial judge, to authorize a trial in absentia and to have a defense office as an organ of the tribunal. He said that one of the reasons the concept of trial in absentia was implemented was that the creation of a completely independent Defense Office guaranteed the respect of the rights of the accused. However, even in the event of a trial in absentia, the tribunal also allows the possibility for the accused to ask for a new trial at any time, and even after being found guilty. Roux acknowledged a trial in absentia would put defense attorneys in a difficult and completely new situation. “They won't have the possibility to discuss with the accused, they would have to elaborate their own strategy of defense without knowing what the accused wishes… it’s an additional difficulty,” he acknowledged. “Their role will be to ‘defend the defense,’ to defend the rights of the accused in general,” he said, arguing the lawyers will still be able to discuss and even challenge the prosecutor’s evidence. The Defense Office has so far recruited 107 defense lawyers, of whom only four are Lebanese – a topic that found its way into Roux’s presentation Friday at the Bustan Hotel in Beit Mery during a panel entitled “The rights of the accused in international criminal proceedings” as part of a three-day conference on International Criminal Justice. Roux strongly regretted the fact that only four of the defense lawyers were Lebanese nationals and called for more to register, “even if you’re opposed to the tribunal,” he said, addressing the audience. “This is completely insufficient,” he said, insisting on the fact that the STL was a tribunal “for” Lebanon, as indicated by its official title. Roux, who has been in his post since March 2009, said his office has been engaged primarily in preparing future defense teams, who will be private lawyers, and not STL employees. He stressed that the Defense Office was not directly involved in the defense’s strategy but was in charge of preparing and supporting the lawyers who will be defending the accused. “An international trial has nothing to do with a national trial… there are juridical debates and unexpected situations almost every day.” He stressed that the defense teams will only have a few weeks to absorb a huge amount of information, while the prosecutor’s team have been working on the case for two to three years. “These are going to be extremely technical and rigorous debates. The Defense Office is here so even if the lawyers are surprised, they’re not unsettled.” “It’s really important to remember that there is no investigative judge in this procedure… every party must conduct its own investigations,” he added. Since his team was created, Roux’s staff has also been working on preparing dozens of memoranda on the juridical themes that are expected to be discussed at the tribunal and guidelines on deontology, or the study of duties and ethics, for the defense lawyers. Pre-Trial Judge Daniel Fransen is currently reviewing amendments to Prosecutor Daniel Bellemare's indictment, and this review has been ongoing since the first submission of indictment in January. Roux insisted that such a process required time, and that the public needed to “respect the [time-frame] of justice.” For the time being, his office supports the idea of the confidential process, in the interest of justice and of the accused. “Today we can very well imagine that in the indictment filed by the prosecutor there are obviously names. But are we going to throw names at the public to feed their hunger when the indictment has not been confirmed?” he asked. “The trial doesn’t happen in the streets, it doesn’t happen in the media but in a courtroom… that’s where the trial is going to happen. The rest is just rumors and expectations.” During the conference, Roux admitted being a defense lawyer in an international court could be “a bit schizophrenic.” “Lawyers are also citizens; we find the crimes committed odious and our first thoughts go to the victims, but then when we are assigned as lawyers we put on our court robe to defend the accused.” He also noted that 25 per cent of the indictments presented in both the international tribunals for Rwanda and the Former Yugoslavia resulted in acquittals, saying the international community tended to forget this. “Let’s respect the time that is required by justice, which is inevitably a bit long, but we’re getting there. If the indictment is confirmed there will be a trial, which will be public. There will be contradictory public debates. It’s taking some time, but what matters is that it happens, and what matters is that the truth emerges.”