Special Tribunal for Lebanon: The First Orders by the Pre-Trial Judge

I. Introduction

Shortly after a 2005 Beirut bombing claimed the life of former Lebanese Prime Minister Rafiq Hariri and 22 others, Lebanese and international officials began to contemplate an international tribunal to bring the perpetrators to justice.[1] After lengthy negotiation, the United Nations Security Council established on June 10, 2007, the Special Tribunal for Lebanon (STL),[2] which officially commenced its operations on March 1, 2009.[3]

The STL has had a somewhat complicated start that requires some assessment. In its first Order, Pre-Trial Judge Daniel Fransen directed the Lebanese authorities investigating the attack against Hariri to defer to its jurisdiction.[4] On April 29, 2009 the same judge directed the Lebanese authorities to release four pro-Syrian Lebanese generals who had been in Lebanese custody since August 30, 2005 in connection with the Hariri attack.[5] This Insight will trace the troubled history of the STL, analyzing the recent judicial Orders and some of the important legal and political issues surrounding the Tribunal.

II. A Truly “Special” Tribunal for Lebanon

If the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, the “first generation” UN-based criminal courts, served as the “models for the creation of second generation country-specific” internationalized (or “mixed” or “hybrid”) criminal tribunals,[6] then the Special Tribunal for Lebanon must be the 3G version.

The term “internationalized criminal courts and tribunals” is used to describe a range of judicial organs as diverse as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the War Crimes Chamber in the Court of Bosnia and Herzegovina, the East Timor Special Panels, and the Kosovo Regulations 34 and 64 Panels. These tribunals were created to address mass atrocities in the context of a particular conflict. They vary significantly in their structure, legal basis, procedural law, and temporal and personal jurisdiction, in order to accommodate the diverse circumstances in various territories and in the different conflicts within which serious international crimes were perpetrated.[7]

Diverse as they may be, internationalized criminal courts share some key traits.[8] Most important among these is subject matter jurisdiction, which gives the tribunals jurisdiction over international crimes, such as crimes against humanity, genocide, war crimes, and/or other crimes.[9] In addition to jurisdiction over crimes under international law, these tribunals may have supplemental jurisdiction over crimes under domestic law.[10]

Unlike other tribunals emerging after a conflict, the Special Tribunal for Lebanon was not created to deal with atrocities during the 15-year civil war in Lebanon (1975—1990)[11] or to try those responsible for international crimes stemming from the many conflicts in which the country has been engulfed since the 1990s.[12] Rather, the STL’s main mandate is to address only one incident: the 2005 assassination of former PM Hariri (and 22 others). While the Tribunal actually has jurisdiction over attacks between October 1, 2004 and December 12, 2005, these must be “connected” and of “similar nature and gravity” to the Hariri attack in order to come under the STL’s jurisdiction.[13] As a result, the STL may end up holding a single trial. This serves to raise concerns over the rendering of selective justice, a frequent claim against ad hoc criminal courts, which in the case of the Lebanon Tribunal seems easier to justify.[14]

In further contrast to other internationalized tribunals, the STL has no jurisdiction over any international crime. In accordance with Article 2(a) of its Statute, it only has jurisdiction over acts of “terrorism, crimes and offences against life and personal integrity, criminal participation and conspiracy” under the Lebanese Criminal Code.[15] The truly “international” features of the Tribunal are in the form of the international judges and prosecutor applying Lebanese law;[16] partial international funding; and its seat in the Netherlands. The seat of the Tribunal being outside the State concerned is also in stark contrast to all other internationalized courts—one of the ‘major merits’ of the latter being that they sit in the State concerned and have thus close proximity to evidence, witnesses, and the local population.[17]

The Tribunal’s establishment is the outcome of a novel process ripe for criticism,[18] and it highlights the deeply divisive and complex internal political situation in Lebanon. Originally, the Tribunal was to be created by agreement between the United Nations and Lebanon, similar to the Special Court for Sierra Leone. Once an agreement between the parties was negotiated, a Statute of the Tribunal was agreed upon and attached to it. The agreement was subsequently signed by Lebanon and by the UN. However, the process of approval and ratification required prior to the agreement’s entry into force[19] was blocked by the refusal of the Speaker of the Lebanese Parliament to convene a session, where the agreement was expected to be ratified. To overcome the stalemate, the Security Council was asked by the anti-Syrian government to establish the Tribunal using its Chapter VII powers, despite opposition by pro-Syrian fractions, including the Lebanese President, the Speaker of the Parliament, and a number of parliamentarians. The Council obliged,[20] but not without five vocal abstentions.[21]

Critics of the Tribunal also note that concerns over the selectivity of justice to be meted out by the STL are compounded by certain provisions of the Tribunal’s Statute, particularly a provision that allows for trials in absentia,[22] another striking innovation unique to the STL.[23] This provision could be attributed to the particular civil law tradition of Lebanon that the STL seeks to accommodate, but it may also be seen as an ambition to try suspects under Syrian jurisdiction not turned over to the Tribunal. It is no secret that both Syria and pro-Syrian factions in Lebanon vehemently oppose the STL,[24] while some United Nations International Independent Investigation Commission (UNIIIC) reports openly accused Syria of participating in the Hariri assassination.[25] Syria was made by the Security Council to cooperate with the UNIIIC, the Tribunal’s precursor,[26] but it is currently under no obligation to cooperate with the STL. When considered together with the bitter internal division over the Tribunal’s establishment, its peculiar subject matter jurisdiction, and the history of modern Lebanon, the possibility of trials in absentia completes a picture of what can be described—perhaps in somewhat simplistic, yet telling terms—as the perceived anti-Syrian pro-Western bias of the Special Tribunal.

Against this legal and factual background, it becomes all the more important how the STL will carry out its mandate. The Special Tribunal will have to respond to concerns about its legitimacy and convince not solely the local Lebanese constituencies, divided as they are, but also Syria, the other States in the region, and ultimately the international community as a whole of its capacity to render justice in an impartial, fair, and objective manner.

III. The Pre-Trial Judge Orders

An opportunity for the STL to respond to fairness and legitimacy concerns is its judicial work. That the Tribunal understood this is evident in its first Orders. In his first Order, which is merely meant to direct the Lebanese authorities upon the Prosecutor’s request to transfer jurisdiction over the Tribunal’s only case—the Hariri attack—to the now constituted Tribunal, Judge Fransen went into a relatively elaborate analysis of Article 4(2) of the STL Statute, interpreting it in accordance with Article 31(1) of the 1969 Vienna Convention on the Law of Treaties.[27] Judge Fransen particularly relied on the context of the Statute,[28] drawing a distinction between the transfer of the case file and the transfer of those detained in connection with the investigation by Lebanese authorities, deciding that the two must logically take place in two successive stages.[29]

The case file was subsequently transferred to the Tribunal by the Lebanese authorities, and the only outstanding issue was the transfer of individuals in Lebanese custody to the custody of the STL. Soon after the STL became operational, the Prosecutor asked the judge for three weeks to submit applications for further detention or release of the four generals, given the sheer size of the case file and the complexity of the case.[30] In the April 15, 2009 Order, the judge reduced the time available to the Prosecutor to 12 days, relying on international human rights instruments and cases on pre-trial detention.[31]

In response, the Prosecutor submitted his application by the deadline and requested that the individuals in custody be immediately released,[32] noting that it was impossible to charge the detained persons with any crime under the STL Statute in view of the evidence available.[33] The judge, observing that he could not substitute his evaluation of the evidence and the prospects of an indictment for that of the Prosecutor,[34] granted the Prosecutor’s request, ordered the immediate release of the generals and demanded that their safety be ensured.[35]

IV. Human Rights Guarantees as the Response to Bias Concerns

It is worth reflecting on how Judge Fransen dealt with the situation before him. The STL inherited a situation in which the four generals had already been held for several years without charge. They had been arrested by Lebanese authorities in 2005, following the recommendations of the UNIIIC.[36] While the generals had spent only about a month and a half under the authority of the STL (but still in the custody of Lebanon),[37] the judge’s Orders convey a certain urgency to resolve the continued detention or release of the generals. In the April 15, 2009 Order, Judge Fransen stressed the need to ensure the protection of fundamental human rights and explicitly stated that those detained are presumed innocent. Judge Fransen also stated that freedom is the principle, detention the exception.[38] This explicit statement may be a direct response to criticisms leveled against the ICTY’s and ICTR’s Rules of Procure and Evidence (RPE), which initially provided for pre-trial detention as the rule, rather than the exception.[39]

Under the STL’s Rules of Procedure (Rule 17[B]), the Prosecutor must submit an application on the continued detention or release of those transferred to the authority of the Tribunal “as soon as practicable.” In his April 15, 2009 Order, Judge Fransen held that this provision should be interpreted in harmony with international human rights standards, including the International Covenant on Civil and Political Rights, the European and American Conventions on Human Rights, and the jurisprudence of the European and Inter-American Courts, as well as the UN Human Rights Committee. Judge Fransen held that the words “as soon as practicable” meant “promptly”,[40] and that the right to be promptly brought before a judge is “an international principle of jus cogens”, binding both on States and on “international bodies”, whether of a judicial, political, or administrative nature.[41] As a result, the judge reduced the period of three weeks requested by the Prosecutor to twelve days.[42]

In making this bold statement and adopting a very strict stand towards the Prosecutor, Judge Fransen sought to confirm that the Special Tribunal will adhere to an expansive understanding of the requirements of customary international law with respect to the right to a fair trial.[43] This approach could be seen as the Tribunal’s response to accusations of bias and inability to conduct a fair trial in the prevailing political climate. The Tribunal’s reliance on international human rights standards is further exemplified in the April 29, 2009 Order, where Judge Fransen reviewed the Prosecutor’s request to immediately release the four generals. The judge again stressed the notion that provisional detention is exceptional and only warranted when strictly necessary.[44] Holding that under the Tribunal’s standard of review, which requires that the Prosecutor’s request be “manifest[ly] unreasonable[]”[45] to be vacated, the judge granted the Prosecutor’s request for immediate release of the generals.

The STL decision and subsequent release of the four generals was welcomed in parts of Lebanon.[46] The first Orders by the Tribunal’s pre-trial judge could be seen as reassuring the pro-Syrian camp and Syria that the STL has not been established simply to perform a historiographic function favoring a particular view of Lebanese history.[47] Instead, the Tribunal seeks to confirm that it is a truly impartial and independent court with the sole purpose of bringing those responsible for the assassination of Rafiq Hariri to justice.

About the Author

Antonios Tzanakopoulos, LL.M. (NYU), an ASIL member, is D.Phil. candidate at the University of Oxford (St. Anne’s College) and a member of the Athens Bar.

Endnotes