IVANA HRDLICKOVA

The city of The Hague in The Netherlands has been the focus for global peace and justice for over a century. It was therefore natural that a vital component of the effort against national and international terrorism materialised there in the form of the Special Tribunal for Lebanon, the first tribunal of its kind to deal with terrorism.

Creation of the Tribunal

The genesis of the Tribunal was a massive bomb explosion in Beirut on 14 February 2005. The blast killed 22 people, including the former prime minister of Lebanon, Rafiq Hariri, and injured many others. The attack was unequivocally condemned by the President of the Security Council.[1] In March 2005, the UN Secretary General sent a fact-finding mission to Beirut, which soon submitted a report recommending the establishment of an independent international investigation into this attack.[2]

The UN Security Council then established the UN International Independent Investigation Commission, UNIIIC, in order to assist the Lebanese authorities in conducting their investigations.[3] In October 2005, the UNIIIC submitted a report to the UN Security Council which concluded that the attack of 14 February 2005 had been carried out by a well-organised group with considerable resources and capabilities.[4] Soon afterwards the UN Security Council passed a resolution affirming its willingness to continue to assist Lebanon in the search for the truth and in holding all those responsible for this crime accountable.[5]

In the meantime, killings and bombings in Lebanon continued. In December 2005, a series of deadly attacks prompted the Lebanese government to ask the UN to establish a tribunal of an international character to prosecute those found responsible for the attack of 14 February 2005 and other attacks.[6]

On 21 March 2006, the UN Secretary General provided recommendations to the UN Security Council inviting the Council to consider adopting a resolution initiating negotiations with the Lebanese government aimed at establishing a tribunal of an international character.[7]

One year later an agreement was signed between the Lebanese government and the UN to establish a tribunal. Although the agreement was not ratified by the Lebanese parliament, a majority of parliamentarians had expressed their support in a letter to the UN Secretary General.[8] Taking into account the principles of fairness and justice as well as considerations of international security, the UN established the Special Tribunal for Lebanon under Chapter VII of the UN Charter.[9] This made the Special Tribunal for Lebanon the first tribunal of its kind to deal with the crime of terrorism.[10]

On 1 March 2009, the Special Tribunal for Lebanon officially began operating. The seat of the Tribunal was established on the outskirts of The Hague, at Leidschendam. An office was also established in the Lebanese capital of Beirut and a smaller liaison office in New York.

The Tribunal was soon in full swing. On 27 March 2009, the Pre-Trial Judge issued an order directing the responsible Lebanese authorities to transmit the case of the 14 February attack to the Tribunal.[11] A month later, on 29 April, the Judge also ordered the Lebanese authorities to release four persons detained in connection with the attack on Rafiq Hariri and others, and gave directions to ensure safety.[12]

These were the first decisive steps taken by the Tribunal and since those early days much has happened, from developing the Tribunal’s infrastructure and refining its legal foundations to carrying out investigations and launching proceedings in matters which fall within its jurisdiction.

Jurisdiction

The Special Tribunal for Lebanon has jurisdiction over the attack of 14 February 2005 resulting in the death of Hariri and the death or injury of others, as well as over other attacks occurring between 1 October 2004 and 12 December 2005 in case they are connected with the attack of 14 February 2005 and are of similar nature and gravity.[13]

This does not necessarily mean that attacks which may have occurred after 12 December 2005 fall outside the Tribunal’s jurisdiction. If they, too, are connected to the attack of 14 February 2005, and are also of similar nature and gravity, these may too be brought within the jurisdiction of the Tribunal by a decision of Lebanon and the UN with the consent of the Security Council.[14]

It is worth noting that although the Special Tribunal for Lebanon and the national courts of Lebanon have concurrent jurisdiction, the Tribunal has primacy over the national courts of Lebanon on matters within its jurisdiction.[15]

The Special Tribunal for Lebanon applies a hybrid mix of Lebanese law and international law. The provisions of the Lebanese Criminal Code relating to the prosecution, punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, including rules regarding the material elements of a crime, criminal participation and conspiracy, are applicable.[16]

The proceedings before the Special Tribunal for Lebanon are governed by its Rules of Procedure and Evidence (“Rules”) which were drafted by the judges of the Tribunal. These Rules ensure the application of the highest standard of international justice drawing on the experience of other international tribunals and both common law and civil law traditions.

Structure of the Tribunal

To carry out its mandate, the Special Tribunal for Lebanon has been established with four organs: the Chambers, the Office of the Prosecutor, the Defence Office, and the Registry.[17]

The Chambers are further divided into three parts: the Pre-Trial Chamber (one international judge), the Trial Chamber (two Lebanese and three international judges), and the Appeals Chamber (two Lebanese and three international judges).[18] This mixture of Lebanese and international judges ensures that Lebanese law is applied correctly while guaranteeing the impartiality of the proceedings.

The judges, who operate independently of the other organs of the Tribunal, are appointed by the UN Secretary General in consultation with the Lebanese government. The Lebanese judges are nominated by their government, while the nominations of international judges are made by UN member states through a selection panel.

The judges shoulder heavy responsibilities: determining the admissibility of evidence, interpreting the law to be applied and determining the guilt or innocence of the accused. The meticulous selection process, therefore, is designed to guarantee that only persons possessing high moral character, impartiality and integrity, along with extensive and diverse legal backgrounds, are appointed.[19]

The Office of the Prosecutor has a dual role of investigating and prosecuting the persons suspected to be responsible for the crimes falling within the jurisdiction of the Tribunal.[20] The multi-disciplinary prosecution staff comprises both Lebanese and international police officers, forensic experts, analysts and lawyers in The Hague and Beirut.

The Prosecutor is guided by the evidence alone and follows the standards and procedure outlined in the statute of the Tribunal, the rules of procedure and evidence, and internationally recognized legal standards. He does not accept instructions from any other source.[21]

The Registry is responsible for the neutral and impartial administration of the Tribunal, predominantly the non-judicial aspects.[22] It is headed by a Registrar who functions not only as an administrator and a coordinator, but also as a mediator, facilitator and communicator across the Tribunal.[23] He is assisted by the Deputy Registrar in The Hague and the Head of Registry in Beirut.

The Registry is responsible for the management of the detention unit, for the preparation of the annual budget, fundraising, court management, human resources, for press and information, translation, protection and support to witnesses and victims. In addition, the Registry plays a diplomatic role in respect to the host state (The Netherlands) and communicates regularly with the donors and non-governmental organisations apprising them of the Tribunal’s work.

The Defence Office as a separate organ is an innovation of the Special Tribunal for Lebanon. It was established in order to ensure the effective protection of the rights of the accused, which are a crucial part of a fair trial. It represents the interests of the defence within the Tribunal at an institutional level. However, the Defence Office does not itself represent or receive instructions from the accused and/or suspects; it is the independent defence counsel who represent the accused in the proceedings before the Tribunal.

The Defence Office is tasked with administrative functions, including assignment of defence counsel[24] and administering a fair and effective legal aid regime, amongst others.[25] It also provides legal research and advice to the Defence counsels, including operational support and training.[26] The Defence Office monitors the effectiveness of representation provided by the defence counsel. It can also exercise the right of audience in relation to its key mandate, i.e. matters of general interest to defence teams, the fairness of proceedings and/ or rights of the suspect or accused.

The Special Tribunal for Lebanon also recognizes the role of victims in judicial proceedings.[27] Once an indictment has been confirmed, a victim may apply to participate in the proceedings if he or she has suffered physical, material or mental harm as a direct result of the attack(s) within the jurisdiction of the Tribunal. To this end, the Victims Participation Unit[28] and the Victims and Witnesses Unit[29] within the Registry are responsible for providing operational, legal and functional support to the victims and their representatives.

The victims are usually represented by a lawyer and have access to the legal aid scheme for this purpose. The legal representative of the victims has the right to make oral and written submissions, to call witnesses to testify, to tender other evidence, as well as to examine and cross-examine the witnesses.[30] Whilst the victims are not entitled to compensation through the Tribunal, they may use the Tribunal’s judgement to seek compensation through national courts or other competent bodies.[31]

In any given case, the Pre-Trial Judge or a Chamber may decide that one or two of the Tribunal’s three official languages – Arabic, English and French – may be used as working languages.[32] An accused has the right to use his own language during the proceedings.[33] However, the court proceedings, as well as the transcripts of the proceedings, are available for the viewers over the internet in all the three languages. The official website of the Tribunal is also accessible in all three languages to its visitors. Whilst intrinsically linked to the right of the accused to obtain the indictment and the charges in the language that he or she understands, the question of language for the Tribunal also pervades the issues of accessibility of justice, outreach, legacy, and maintenance of relevance and currency with the Lebanese people, whom it serves.

Stages of the Trial

The trials before the Special Tribunal for Lebanon consist of four stages. The first stage involves the Office of the Prosecutor conducting confidential investigations of suspects.[34] When the Prosecutor is satisfied that there is sufficient evidence against a suspect, an indictment is drafted and submitted to the Pre-Trial Judge for examination and consideration of the evidence.[35] If the judge finds a prima facie case against the suspect, he confirms the indictment.[36] If not, the Pre-Trial Judge may dismiss the case if the evidence is not sufficient or seek more evidence from the Prosecution.

After confirmation, the case enters the pre-trial phase where the Prosecution continues its investigation and the Defence begins its investigation. It is at this stage also when the Pre-Trial Judge receives and rules on applications from victims to participate in the Tribunal’s proceedings.[37]

Next comes the trial stage, in which the proceedings are adversarial and generally open to the public. The Trial Judges hear the evidence presented to them and, at its conclusion, deliberate to decide by majority and issue a reasoned judgement on the guilt or innocence of the accused.[38] Should the accused be found guilty, the Trial Judges then decide upon the sentence.[39] The judgement arising from the trial stage is subject to appeal by the Prosecution or Defence on errors of law or errors of fact.[40]

When appealed, the case from which the judgement arises enters the appellate stage where the Appeals Chamber rules on the errors raised by the party appealing. The parties may also seek review of the judgement if crucial evidence becomes available at a later stage in the trial.[41] The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber.[42]

A person convicted by the Special Tribunal for Lebanon may be given a maximum sentence of life imprisonment,[43] to be served in a State designated by the President of the Tribunal from a list of states that have expressed willingness to accept the convicted person(s).[44]

The cases before the Tribunal

The primary trial at the Special Tribunal for Lebanon, namely the case relating to the assassination of Rafiq Hariri and others on 14 February 2005 (The Prosecutor v. Ayyash et al.) , has been proceeding since 16 January 2014.[45]

The original indictment named four individuals, but a fifth was soon added. All accused are charged with a conspiracy aimed at committing a terrorist act. Two of the accused, Ayyash and Baddredine, are charged with committing a terrorist act by means of an explosive device, intentional premeditated homicide of Rafiq Hariri and 21 other persons, and attempted premeditated homicide of 226 persons. The other accused have been named as accomplices.[46]

Despite the efforts of the Lebanese authorities to find and apprehend the accused, none are yet in custody. Consequently, the trial is being conducted in absentia.[47] As of 25 August 2014, 22 witnesses have been heard and a total of 319 exhibits have been admitted into evidence. (The schedule of the Court is updated regularly and is available on the Tribunal’s website[48] together with the key filings on all the cases in their available languages.[49])

In addition to the primary case, the Special Tribunal for Lebanon has asserted jurisdiction over three other attacks.[50] An indictment has not been issued in this case by the Tribunal, but the Prosecution is continuing its investigations in these cases. It remains for the Prosecutor to determine whether there is sufficient evidence to support an indictment in any of these three connected cases.

The Tribunal is also considering the matter of contempt charges against two alleged journalists and media organisations. An Amicus Prosecutor was appointed to investigate three events. The matter has proceeded to trial in respect of two of those events while the investigation of the third continues. The Amicus Prosecutor alleges that publishing the names of purported confidential witnesses may amount to interference with the administration of justice as it reduces the confidence of both witnesses and the public in the ability and determination of the Tribunal to protect its witnesses.

Terrorism on Trial

The Special Tribunal for Lebanon is the first tribunal of its kind to deal with terrorism as a distinct, substantive crime. Whilst the UN Security Council has described terrorism as a threat to international peace and security, the Tribunal applies the legal definition of terrorism under Lebanese law. The Appeals Chamber elaborated on the applicable law on terrorism, conspiracy and homicide, amongst others, in its landmark interlocutory decision of 16 February 2011.[51]

The decision has generated much discussion both for and against the concept of terrorism as a distinct crime in international law. The decision is nevertheless a milestone in international law and in keeping with the view of the Tribunal’s late President, the eminent jurist Judge Antonio Cassese, who argued extra-judicially that the crime of terrorism had emerged as a true international crime.[52]

Also unprecedented in contemporary international courts is the provision for the Special Tribunal for Lebanon to allow a trial to take place without the accused being present or in the custody of the tribunal.[53]Despite the accused being absent, fair trial guarantees are still maintained and the rights of the accused are duly respected;[54] their representation by a defence counsel is necessary. Should the accused not appoint counsel to represent him, counsel are assigned by the Defence Office.[55] If the accused appears during the trial or after judgement, he may seek a retrial.[56] Although a trial in absentia is not a regular recourse and there are strict conditions which must be fulfilled before it may be ordered, it sets the Special Tribunal apart.[57]

Conclusion

The Special Tribunal for Lebanon is unique – its mixture of civil law and common law allows for trials in absentia; it houses an independent Defence Office; it provides for an autonomous Pre-Trial Judge; it permits victims to participate and present their views and concerns during trial; and most importantly, it was established to prosecute terrorism as a distinct substantive crime. There has never been a tribunal like it before and its innovations have the potential to provide valuable lessons for the future. Perhaps the President of the International Center for Transitional Justice has summed up the STL most succinctly: ‘A very “special” tribunal indeed.’[58]

Dr. Ivana Hrdlickova

Dr. Ivana Hrdlickova

Judge

Ph.D., a Czech national, is a Judge in the Appeals Chamber of the Special Tribunal for Lebanon. She began her career as a Judge in 1990 and has been presiding over both civil and criminal cases. Judge Hrdlickova also specializes in Islamic Shari’a, with a focus on human rights and Islamic finance in international and Islamic law, and in the development of the rule of law in post-revolution societies. Furthermore, Judge Hrdlickova is a member of international teams to train judges in the rule of law and independence of the judiciary.

Notes

[1] S/PRST/2005/4.[2] S/2005/203.[3] S/RES/1595 (2005).[4] S/2005/662.[5] S/RES/1636 (2005).[6]S/2005/783.[7] S/2006/176.[8] S/2007/281.[9] S/RES/1757 (2007).[10] On 28 February 2009, the mandate of the UNIIIC ended and the information gathered by it was relayed to the Office of the Prosecutor at the Special Tribunal for Lebanon. In March 2009, when the Special Tribunal for Lebanon official started, the judges of the Tribunal, meeting in plenary, adopted the Rules of Procedure and Evidence of the Tribunal (STL-BD-2009-01-Rev.6-Corr.1), the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal (STL-BD-2009-02-Rev.1), and the Directive on the Appointment and Assignment of Defence Counsel (STL/BD/2009/03/REV.3). These three documents entered into force on 20 March 2009.[11] STL, Before the Pre-Trial Judge in Case No.: CHlPTJ/2009/01, Order Directing the Lebanese Judicial Authority Seized with the Case of the Attack Against the Prime Minister Rafiq Hariri and Others to Defer to the Special Tribunal for Lebanon, 27 March 2009.[12] STL, Before the Pre-Trial Judge in Case No.: CHlPTJ/2009/06, Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack Against Prime Minister Rafiq Hariri and others, 29 April 2009.[13] Statute of the Special Tribunal for Lebanon (“Statute”), Article 1. Rule 11.[14] Ibid.[15] Statute, Article 4.[16] Statute, Article 2.[17]Statute, Article 7.[18] Statute, Article 8(1).[19] Statute, Article 9. See also Rule 24.[20] Statute, Article 11(1); Rule 55.[21] See Statute, Article 11(2).[22] Statute, Article 12(1). See also Rule 45.[23] See also Statute, Article 12(2)-(4); Rule 48.[24] Rules 58-59.[25] See Statute, Article 13(1);for the functions of the Head of the Defence Office, see Rule 57.[26] See Statute, Article 13(2).[27] Statute, Article 17.[28] Rule 51.[29] Rule 50.[30] Rule 87.[31] Statute, Article 25.[32] Statute, Article 14; Rule 10(A).[33] Rule 10(B).[34] See Rule 61.[35]Rule 68.[36] Statute, Article 18(1).[37] Rule 86.[38] See Article 23; Rule 168.[39] Statute, Article 24; Rule 171.[40] Statute, Article 26 (1); Rule 176.[41] Statute, Article 27.[42] Statute, Article 26(2); Rule 188.[43]Rule 172.[44] Rule 174.[45] STL, The Prosecutor v. Ayyash et al., STL-11-01/T/TC, Decision on Trial Management and Reasons for Decision on Joinder, 25 February 2014.[46] The four original accused were Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hasan Oneissi, and Assad Hassan Sabra. The fifth accused, Hassan Habib Merhi, was joined to this case on 11 February 2014 as an accomplice.[47] STL,The Prosecutor v. Ayyash et al., STL-11-01/I/TC, Decision to Hold Trial In Absentia, 1 February 2012.[48]Follow the link:http://www.stl-tsl.org/en/the-cases/courtroom-schedule#year=2014&month=10&day=21&view=month (last visited 21 October 2014).[49] Follow the link:http://www.stl-tsl.org/en/the-cases/key-filings-all-cases (last visited 21 October 2014).[50] These relate to Marwan Hamadeh, George Hawi, and Elias El-Murr.[51] STL, The Prosecutor v. Ayyash et al., STL-11-01/I/AC/R176bis, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011.[52] “Terrorism is also disrupting Some Crucial Legal Categories of International Law”, 12 European Journal of International Law (2001) 993, 994.[53] Statute, Article 22.[54] Statute, Article 22(2). See also Rule 107.[55] Statute, Article 22(2)(c).[56] Statute, Article 22(3).[57] See STL, The Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, para. 31.[58] Amal Alamuddin et al (eds.), The Special Tribunal for Lebanon: Law and Practice, Oxford University Press, 2014, p.9.