BEIRUT: The Special Tribunal for Lebanon’s most high-profile hearing to date ended in stalemate Friday as rival counsels traded blows over in-absentia trials for suspects.
The Office of the Prosecutor, which has accused four Hezbollah members of the 2005 assassination of former Prime Minister Rafik Hariri, said that more could be done to arrest the men, who have been at large for four months.
“It is not for the prosecution to speak for the Lebanese authorities on this issue. There are palpably further reasonable steps which could be taken,” Senior Trial Counsel Iain Morley told the court. “The bottom line is that there is more that can be done before we embark on the expensive process, which will cost millions of dollars, of trying an issue where there are no defendants and consequentially potentially no outcome.”
The defense counsel, led by Frenchman Francois Roux, was equally unreceptive to in absentia trials, although for different reasons than the prosecution.
“We cannot conclude that any of the accused has willingly waived his right to attend trial,” Deputy Head of the Defense Office Alia Aoun told the court. “We cannot find any reason to justify this [in absentia] proceeding.”
STL Prosecutor Daniel Bellemare in June accused Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hassan Sabra of blowing up Hariri. This was followed by the issuance of international arrest warrants against the men.
Since the accused have eluded security forces for a number of months, a court judge last month scheduled Friday’s hearing to allow both defense and prosecuting counsels to put forward their views on in absentia trials.
In the lead-up to the Trial Chamber session, both sides indicated they were not currently in favor of starting in absentia proceedings.
State Prosecutor Saeed Mirza, in his progress report to The Hague earlier in the year, said that security forces had delivered arrest warrants to the last known addresses of the four men. Lebanon’s arrest efforts were deemed “not sufficient” in August by then-STL President, the late Antonio Cassese.
“The first thing you’d probably do if you are a wanted individual in an international tribunal is not go back to your last known address,” Morley told the Trial Chamber. “There is assumption that we’re going to do more than go to a suspect’s last known address and ask around.”
Last month Bellemare issued a confidential document to authorities in Beirut outlining additional steps that could be taken to expedite the arrest of one or all of the accused.
“It is quite possible that with additional measures we can arrest at least one [of the accused]. Given a bit more time, somebody is going to get arrested,” Morley said.
The request for assistance was compartmentalized upon the request of the Lebanese judiciary and sent to Lebanon Friday as 10 separate documents.
Bellemare’s office disclosed that authorities in Beirut had virtually given up on the manhunt, after “unwavering” cooperation in distributing wanted notices.
“The Lebanese authorities have diligently set about affecting service of the warrants, which is not the same thing as locating and arresting the defendants,” Horley said.
He added that security forces had “moved toward an understanding that these individuals will not be located and not arrested and that there will be a trial in absentia.
“We are still at the phase where we should be actively looking for the four accused,” the counsel said.
The STL is unique among international tribunals in that it has provisions within its statute to try suspects in absentia, but only if several guidelines are met and only as a last resort. An in absentia trial at an international court has not been held since the military tribunals at Nuremburg, Germany, which prosecuted senior Nazi officials.
The Defense Office told the hearing that it was against these kinds of trials because the matter related to the rights of the accused.
“The right to attend one’s trial is guaranteed [under international law], Deputy Head of the Defense Office Aria Aoun said. “The danger [with in absentia trials] is impunity. Because guilt can only be established beyond reasonable doubt, we accept the idea that impunity might be possible in the absence of visible guilt.”
Aoun argued that the victims of the Feb. 14, 2005, attack would not be given the full truth if suspects didn’t attend their trials.
“An in-absentia trial is offering a certain truth to the victims and to the public. Maybe it can also be used to assert the authority of justice but more likely such a trial is also making certain facts part of history,” she said.
Bellemare’s indictment against the four Hezbollah members was based largely on what the prosecutor termed “circumstantial” cell phone data, which allegedly showed that the accused had tracked Hariri for months before blowing him up.
In a bizarre exchange with Trial Chamber Judge David Re, Horley disclosed that the prosecution had accrued a significant amount of additional information that could lead to the arrest of suspects.
“We are busily working on other investigative matters arising from our holding of information about Lebanon,” he said.
“We have a lot of data and we are actively using that data to continue our own inquires to find out the whereabouts of the defendants.”
Horley said he had further details for the Trial Chamber, but declined to go into them during the public hearing.
Roux sought to play down media reports suggesting that the lawyers appointed by his office to represent the interests of the accused at Friday’s hearing were divided.
“The duty counsels that have been identified and who have attended a working session last week get on very well, are not bickering and are in fact working hand in hand,” he said.
The Trial Chamber will now deliberate and decide on in absentia trials. Given the common ground among counsels on the proceedings at this stage, it is very likely the court will rule against in-absentia trials for the time being.