26 Oct The Special Tribunal for Lebanon: After the Judgment in Ayyash et al., Justice at Last?
[Michael Lysander Fremuth is Professor for Fundamental and Human Rights at the University of Vienna and Scientific Director of the Ludwig Boltzmann Institute of Fundamental and Human Rights. Andreas Sauermoser is a researcher and PhD candidate in the Department Human Dignity and Public Security at the Ludwig Boltzmann Institute of Fundamental and Human Rights. Konstantina Stavrou is a researcher and PhD candidate at the Ludwig Boltzmann Institute of Fundamental and Human Rights.]
22 dead, a newly established tribunal, and the suspects of the crime nowhere to be found. After 15 years of investigations and an estimated cost of more than $970 million, the Special Tribunal for Lebanon (STL) delivered on 18 August 2020 its judgment of 2.228 pages against four suspects of the bomb-attack that killed former Lebanese Prime Minister Rafik Hariri and 21 others in 2005. Following the pronouncement of STL’s first judgment and shortly before the envisaged conclusion of its mandate, the question of its contribution to the international criminal justice system rises.
The genesis of modern international criminal law, initiating at the Nuremberg and Tokyo military trials, and its further development depend to a large extent on the legal precedent and jurisprudence of international ad hoc tribunals, such as the ICTR and ICTY, and the institutionalized ICC. Hybrid tribunals add to the interpretation of international criminal norms and provide the opportunity of a ‘judicial accountability-sharing’ between domestic and international means and norms to fight impunity. Since its creation the STL has been criticized by the political and academic world, as well as by one of its former judges, due to considerations stemming both from the human rights and the criminal justice perspective. This post introduces some of the main concerns about the Tribunal and its approaches and argues that, due to the considerations raised, STL’s contribution to criminal justice and to the reconciliation of the society is limited – in particular considering the efforts spent.
An innovative or premature approach to international criminal law by the STL?
Two years after the attack on Hariri, the United Nations Security Council (UNSC), requested by the Lebanese Government, adopted Resolution 1757 establishing the STL with the purpose of prosecuting the murder of Hariri as a crime of terrorism based on Lebanese domestic law. By its establishment, the STL is the first and still only international tribunal which focuses solely on acts of terrorism as a discrete crime.
Despite initially contested, the competence of the UNSC to create international criminal and hybrid tribunals is now generally accepted (examples of hybrid tribunals, also called ‘internationalized criminal courts’, are the Special Court of Sierra Leone, the Extraordinary Chambers in the courts of Cambodia or the Serious Crimes Panels in the District Court of Dili in East Timor, [overview by Linton]). Nonetheless, in contrast to the cases for the crimes in Rwanda and the former Yugoslavia, where the deaths and disappearances of thousands of persons were investigated, STL’s mandate is limited to a single crime which resulted in few deaths, thus being rather selective.
Although the murder was considered as an act of terrorism it is doubtful whether all transnational crimes should be addressed by international criminal law. The idea that some crimes are prosecuted at the international level is well accepted in international criminal law under the principle of subsidiarity. According to this principle, in cases when the state in which a core crime took place is unwilling or unable to investigate and prosecute, the international community can assume this role with a view to reducing impunity for grave crimes. International courts and tribunals have been given jurisdiction under general international law for four ‘core crimes’, genocide, crimes against humanity, war crimes, and the crime of aggression, which due to their gravity are of concern to the international community as a whole (similar to the Preamble of the Rome Statute of the ICC). Nevertheless, terrorism is not identified as a core crime and could, thus, only be prosecuted as an element of crimes against humanity or war crimes. More precisely, states failed to reach an agreement on whether terrorism, besides being a transnational crime, constitutes an international crime both at the Rome Conference and at the Kampala Review Conference in contrast to what the STL intended to define.
That the jurisdiction of the Tribunal is based on Lebanese criminal law, stipulated in Article 2 of STL’s statute, constitutes a unique and new approach in international criminal justice. The attempt of the internationalized Tribunal to prosecute terrorism was meant to create new possibilities for international courts in the fight against terrorism that complement the duties of states to activate their ius puninendi in this respect as requested i.e. by the UNSC and international treaty law. This blessing of the STL is nonetheless also a curse. The Tribunal failed to produce a uniform definition of terrorism, while its first Interlocutory Decision on Applicable Law (‘Decision’) that the crime of terrorism is reflected in customary international law was not recognized by the majority of scholars. The decision was interpreted as premature, and as disguised legislative activism which does not respect custom formation.
It is not mistaken to say that certain decisions are of great importance to international criminal law, as they are particularly conducive to discourse and debate. In this context, one should especially think of the STL Appeals Chamber’s Decision of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing (Case No.: CH/AC/2010/02) which deals with the competence and applicable law of international tribunals. Similar to the above-mentioned approach of the Tribunal in analyzing customary law, the judges further identified a formation of custom in international law with regard to the determination of tribunals’ own jurisdiction (competence de la competence/ Kompetenz-Kompetenz [para 43 of the decision]). Though scholars like Milanovic disagreed with this decision, it served as a fruitful input in the discussion regarding the inherent powers of international tribunals.
Accordingly, even if the judgment of the STL does not seem likely to settle the lengthy strive for a common definition of terrorism and corresponding obligations to investigate and prosecute, it might, at least, contribute to the revitalization of the debate.
Through the human rights lenses: Is the Tribunal doing more harm than good?
Adding to the aforementioned criticism concerning the contribution of the Tribunal to international criminal justice, concerns can be raised about STL’s ability to uphold human rights standards. Human rights sources provide guarantees for the protection of defendants’ rights during the justice process. One of the key guarantees, which becomes of increased value in cases of international trials, is the presence of the accused which could safeguard the fairness of the trial, as crystalized under the International Covenant on Civil and Political Rights Article 14.3c. Although trials in absentia are not explicitly prohibited neither under international criminal law nor under human rights law, their use could compromise fair trial guarantees, including the right to be informed that one is being tried, the right to receive prompt information about the charges against one and the right to get access to legal counsel. In the case of the STL, according to Mettraux –– co-defense counsel for one of the accused –– it is not known whether the accused are alive and whether they even knew the trial was taking place, as none of the counsels had contact with or received any instructions from them. Consequently, it is debatable whether the aforementioned rights of the accused are sufficiently protected in the case before the STL.
STL applies Lebanese legal provisions and follows Lebanon’s legal tradition of trials in absentia. To conduct in absentia trials, the Tribunal provides several human rights guarantees for the accused, including the possibility of retrial enshrined under article 22.3 of its statute. The STL was created to investigate the bomb attack with a mandate that is about to come to an end in 2021. However, since the convicted is neither in custody, nor in contact with the defense counsels, and without his whereabouts known, the possibility of retrial before the conclusion of the Tribunal’s mandate becomes questionable. However, STL’s statute and rules do not refer to the possibility of the defendant seeking retrial before the Tribunal following the conclusion of its mandate, potentially leaving this procedure for domestic courts. The feasibility of challenging the outcome of his case in the future in domestic courts, following the conclusion of the Tribunal’s mandate, is not ensured. This is affirmed especially considering the state’s inability to investigate the crime in the first place, which led to the request for the establishment of STL. Therefore, the possibility of retrial as an additional human rights guarantee for the implementation of a trial in absentia cannot be secured in the case of a non-permanent court, as the STL, raising concerns about the sufficient protection of the initially envisioned defendants’ rights.
What is ultimately the added value of the STL? The Tribunal delivered its long-awaited judgment in the Ayyash et al. case after 11 years of proceedings and expenses amounting to almost one billion dollars. Nonetheless, as the concerns in this article have showcased, the Tribunal’s added value for international criminal justice is, at least, debatable.
While the principle of subsidiarity is based on the precondition that the state in which a serious crime took place is unwilling or unable to prosecute those responsible, it shall not be used as a hardly-reflected solution in cases of states’ political unwillingness to investigate serious human rights violations. As illustrated through the Ayyash et al. case, internationalizing cases due to Lebanon’s inability (Tabbarah 2014: p. 35) to utilize domestic instruments to solve internal political problems and polarization can be an oversimplification of the subsidiarity principle and result in more harm than good. Remote trials often fail to maintain local society’s interest in justice proceedings as a part of a reconciliation process. Lastly, the failure of STL to produce a uniform definition of terrorism, and its premature recognition of terrorism as a core crime cannot justify the creation of an internationalized court for the prosecution of those responsible for the 2005 killings.
Having no suspects in custody, no communication between the suspects and the defense teams, and, thus, a disputable possibility of protecting the defendants’ rights, further undermines the legitimacy of in absentia trials. Moreover, the disproportionality between the gravity of the crime, the length of the proceedings, and the overall expenditures for the criminal processes before the STL are other key issues concerning the Tribunal. The only partial acceptance within Lebanon’s political landscape as well as the decreasing support of Lebanese society in the proceedings undermine the contribution of the judgment to the reconciliation process and could raise the following question: Would truth and reconciliation commissions not be a better investment in the reconciliation of the society, instead of a costly remote court which has failed to engage Lebanon’s people?