Some Remarks on in Absentia Proceedings before the Special Tribunal for Lebanon in Case of a State’s Failure or Refusal to Hand over the Accused

摘要

One unique aspect of the Special Tribunal for Lebanon (STL) is the power to hold proceedings in absentia. The author explores some possible solutions on how to reconcile the right of the accused to be present at trial and the interest of the judicial system in pursuing accountability, focusing, in particular, on the instances where a state fails or refuses to hand over an accused to the STL in order to face charges. It is argued that, even in the absence of an explicit waiver by the accused of the right to be present at trial, the proceedings should proceed upon the condition that they pursue the interest of justice and the defendant is represented in court by a freely chosen or court-appointed defence counsel. It is also suggested that, in order to understand the usefulness of proceedings in absentia, they should be interpreted as a residual and emergency measure to be relied on in case of insurmountable obstacles in obtaining the custody of the accused and after all reasonable steps to ensure the presence of the individual(s) in court have been taken.