Establishment and Operation of the Special Tribunal for Lebanon - Essay Example

A Critical Evaluation of the Establishment and Operation of the Special Tribunal for Lebanon By Table of ContentsIntroduction 3 1.Legality and Legitimacy: Definitions and Concepts 4 2.The Historical Background to the Establishment of the Special Tribunal for Lebanon 7 3.The Establishment of the STL 10 4.The STL Procedures and the Substantive Crime of Terrorism 13 5.The STL’s Operation and Its Operational Issues 16 6.Recommendations and Possible Solutions 19 Conclusion 20 Bibliography 21 Introduction The Special Tribunal for Lebanon (STL) was established by the United Nations Security Council Resolution 1757 of 2007.1 The legitimacy of the STL was immediately questioned by a divided Lebanese government, with one faction welcoming the Resolution and the other articulating concerns over its impact on the country’s sovereignty. Other issues challenging the STL’s legitimacy include the fact that Lebanon was involved in a war for 15 years which was followed by a period of selective impunity. Secondly, there were concerns about the ‘highly selective’ jurisdiction of the STL. Thirdly, there were concerns that the STL was nothing more than a tool for the foreign control of Lebanon.2 The STL was officially opened by the United Nations (UN) 1st March, 2009. The STL was established for the purpose of bringing those responsible for the death of Lebanon’s Prime Minister Rafiq Hariri, to justice. Therefore, the STL was described as both a ‘triumph against impunity’ and a ‘decisive milestone in the quest for justice’.3 Even so, in addition to the issued raised thus far, there have been some other on-going doubts surrounding the legality and legitimacy of the STL. To begin with, questions arise out of the UN Security Council’s (UNSC) authority under Chapter VII of the UN Charter to implement the STL. Moreover, the STL’s requirement that the hearing rely only on Lebanese law and the UN’s previous involvement in the investigation of the death of Hariri, leaves open the question of the tribunal’s legality and its ability to be impartial.4 This essay conducts a critical evaluation of the establishment and operation of the STL and will be divided into 6 sections. The first section describes and explains the meaning of the terms legality and legitimacy in international law and thus provides the concepts as they will be used in this research paper. Section 2 provides the factual and historical background to the formation of the STL and thus provides the context in which the establishment and operation of the STL can be evaluation. Section 3 covers the actual establishment of the STL and thus evaluates the legality and legitimacy of its creation. Section 4 will move on to the STL procedural and substantive laws on international terrorism applicable to the STL. Section 5 considers the operational context and thus identifies and evaluates the practices and procedures and the issues and complications involved. Section 6 will identify possible solutions and will make recommendations based on the possible solutions to the legitimacy and legality issues confronting the STL. 1. Legality and Legitimacy: Definitions and Concepts Legality is a straight-forward concept and refers to whether or not an act is authorised by law. Thus, where actions are legal, or their legality is beyond reproach, those actions should be able to withstand scrutiny under law.5 Theories of legitimacy in international governance usually take one of two approaches. One approach looks at and analyses ‘domination’ and assumes that legitimacy is assessed on the ability of international institutions to impose or ‘force its will on others’.6 This conceptualization of legitimacy is often problematic because it depends on the dominated party’s belief in the authority of the international institution or law to impose its will on others and thus a belief that one is bound by that authority.7 This belief is often negatively influenced by power politics when international institutions are dominated by powerful states and weaker states are resistant to their authority and dominance.8 From a dominance perspective, the UNSC’s Resolution and mandate for the formation and operation of the STL is problematic in that the UNSC is comprised of political powers. The political powers were the states emerging victorious after the Second World War and are currently looked upon as states that have dominated world politics between them or separately throughout. Weaker member states to the UN have consistently called for a greater balance of power and a more representative power within the seemingly exclusive membership of the UNSC. Moreover, the permanent members of the UNSC have singly veto power which is used for serving their national interests.9 Thus the legitimacy of the UNSC in terms of the legitimacy theory of dominance is problematic in the context of the STL. The second approach taken to legitimacy in international law and governance by theories of legitimacy, is the consensualist perspective. From the consensualist perspective, legitimacy is achieved through ‘the consent of the governed’ and ‘in international law, the strongly consenualist basis of obligation has tended to moot the issue of legitimacy.’10 Bodansky argues that: As international institutions gain greater authority, however, and their consensual underpinnings erode, questions about their legitimacy are beginning to be voiced. The reinvigoration of the Security Council following the end of the Cold War, for example, has raised concerns about the Council’s authority under the UN Charter to make decisions that bind all UN member states, even those that disagree.11 The UNSC’s authority in the form of Resolution is typically exercised under Chapter VII of the UN Charter which confers upon the UNSC broad powers for exercising its authority to address and resolve threats to international peace and security. The question has always been whether or not the UNSC, in the passing of resolutions is exceeding its power. This is because it is largely believed that the UNSC derives its power from the consent of member states to the UN.12 UNSC Resolution was not ratified by Lebanon and the issue was raised in a challenge to the legitimacy and jurisdiction of the STL. According to the Appeals Chamber, the STL did not require ratification by Lebanon as it was formed on the basis of UNSC Resolution 1757 and implemented under Chapter VII of the UN Charter. Lebanon, a member state to the UN consented to be bound by the UNSC’s exercise of its power under Chapter VII of the UN Charter.13 However, the issue of consent is far from clear. Arguably, Lebanon became a member state with the understanding the UNSC’s Chapter VII power would be invoked in issues involving international law and politics and not with respect to national law and politics. The STL is confined to the domestic law of Lebanon and therefore raises the question of whether or not the STL’s mandate is an appropriate subject for international law and therefore presents a challenge to the legitimacy and legality of the STL.14 2. The Historical Background to the Establishment of the Special Tribunal for Lebanon The STL is an anomaly in international law and as such, is not easy to understand. The STL is the first time that a ‘treaty-based’ international tribunal was implemented by virtue of a UNSC Resolution and it is the first international tribunal to rely on national definitions of criminal offences, specifically, terrorism.15 The historical and factual background leading up to the establishment of the STL shed some light on its unique character. Hariri was killed in a car bomb in Beirut, Lebanon on 14 February 2005. At the time of his death, Hariri was not the Prime minister as he had resigned the previous year in 2004. Despite Hariri’s resignation, he was nevertheless described as the ‘most important figure in Lebanese public life’ and was looked upon as ‘one of the Middle-East’s best known and most influential politics’.16The assassination of Hariri shocked the collective conscience of Lebanon. That a man of Hariri’s stature and importance could be murdered raised questions about the country’s ability to fully recover from the political chaos and crisis that culminated in a civil war that lasted from 1975-1990.17 Hariri’s assassination however, was not the catalyst for the creation of the STL. It was merely a final act in a long history of upheaval in Lebanon. In October 2004 there had been an attempted assassination of former Economy Minister Marwan Hamedah. Four days following his assassination, Hariri resigned his post as Prime Minister amid tensions with Syria’s top government members.18 Hariri was advocating for the withdrawal of Syria who had occupied Lebanon for at least 29 years. It was largely assumed that Syria or both Syria and government factions in Lebanon were responsible for Hariri’s death.19 Five months earlier the UNSC passed a Resolution that required all foreign troops to withdraw from Lebanon and it was largely believed that the Resolution spoke primarily to Syria.20 On February, 15th, 2005, the UNSC’s President condemned the assassination as a terrorist attack and urged Lebanese citizens to support their ‘national aspiration to independence in a peaceful way. The UN conducted an inquiry shortly after condemning the assassination as a terrorist attack. The resulting report cast blame on Lebanon’s security and Syria’s military for the ‘overall lack of security, protection, and law and order in Lebanon.’21 The report went on to state that Lebanon had not conducted a satisfactory investigation of the terrorist attack and Syria was responsible for the ‘political tensions that preceded the assassination.’22 The report also stated that the public in Lebanon, together with some government officials were not confident that the Lebanese authorities would conduct a transparent and genuine investigation into the assassination of Hariri. Therefore, the UNSC expressed the view that an international body should handle the investigation. Therefore in April 2005, with the consent of the Lebanese government, the UNSC created a commission for assisting the ‘Lebanese authorities in their investigation of all aspects of this terrorist act.’23 According to Jenks: This set in motion a dialogue and subsequent negotiations between the UN and Lebanon, that in May 2007, over there years after the assassination, resulted in the establishment of the STL to prosecute persons responsible for the attack of February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri.24 The eventual formation of the STL came as no surprise as all indications were that the international community supported such a move. Public statements by the US administration and actions by other Western states pointed toward a belief that Syria was responsible for the assassination of Hariri. For example, on 15th February, a statement from the White House indicated that the assassination was an ‘attempt to stifle…efforts to build an independent, sovereign Lebanon free from domination’.25 This statement was followed immediately by the US withdrawing its ‘Ambassador from Syria’.26 France, in the meantime was calling for an ‘international inquiry into the attack’.27 This is important since France and the US are permanent members of the UNSC and have veto powers.28 With France and the US, both permanent members of the UNSC backing the creation of an international body for the investigation of Hariri’s assassination, the eventual creation of the STL by the UNSC appears to be shrouded by political bias. Further problems with the legitimacy of the STL can also be found in the fact that the STL appears to have been forced on Lebanon. Although Lebanon was in negotiations with the UNSC for the creation of the STL, Lebanon stopped short of ratifying the STL and thus all indications are that Lebanon did not give its consent to the STL.29 3. The Establishment of the STL The facts and circumstances delineated in the previous section establish that although Lebanon negotiated with the UNSC for the formation of the STL, Lebanon ultimately refused to ratify the STL. Thus, the question for consideration is: could the UNSC, legally and legitimately establish the STL? Put another way: did the UNSC have the ‘authority and legal tools enshrined in the UN Charter to intervene in the Lebanese domestic affairs in this case?’30 The UNSC invoked its power under Chapter VII of the UN Charter for the creation of the STL.31 Under Chapter VII of the UN Charter 1945, the UNSC has broad powers to address threats to international peace and security.32The UNSC is required to take such action as is necessary to ‘restore’ or ‘maintain’ peace and security.33The problem however, is that increasingly, the UNSC has used the power under Chapter VII of the UN Charter in a ‘quasi-legislative and quasi-judicial’ manner and this ‘gives cause for concern’ relative to: …an unrepresentative council whose powers continue to broaden in scope faster than do corresponding guarantors of accountability and legitimacy.34 The question that necessarily arises is whether or not there are any limits to the UNSC’s exercise of its powers under Chapter VIII of the UN Charter. Pursuant to Article 24 of the UNSC, the member states to the UN give their consent to the UNSC’s power and duties to act as the primary instrument in international peace and security keeping and restoration. Moreover, UN member states agree to be bound by UNSC decisions in order to maintain international peace and security.35 However, there is a limit to these powers. The UNSC cannot legally invoke Chapter VII powers unless and until the situation it seeks to address is international in nature.36 Even so, the UNSC has consistently acted under Chapter VII to maintain peace and security in ‘intra-state’ situations.37 Thus the UNSC has enhanced the concept of international peace and security in order to utilize the powers conferred upon it via Chapter VII of the UNSC. Whether or not the Lebanon assassination rose to the level of a threat to international peace and security is spurious. The UNSC does have a more definitive limitation on its power as contained in Article 24 which provides that the UNSC is required to act in a manner consistent with the ‘principles and purposes of the United Nations.’38 The purposes and principles of the UN are the protection of and respect for human rights, developing friendly state-to-state relations and the equal respect for state sovereignty.39 Since Lebanon did not ultimately give its consent to the establishment of the STL, it is assumed that the UNSC used its broad powers under Chapter VII of the UN Charter to establish the STL. As such, the legitimacy and legality issue arises over the UNSC exceeding its authority under Chapter VII and in doing so, acting in a quasi-legislative and quasi-judicial capacity. The legality of the UNSC’s establishment of the STL is further complicated by the fact that the UNSC proceeded with the establishment of the STL as a treaty or an agreement with Lebanon. As such, once Lebanon refused to ratify UNSC Resolution 1757, the UNSC acted without lawful authority when it passed the Resolution. As Fassbender states, the ‘UN Charter does not give the Council a power to unilaterally impose on a member state an obligation in the form of a treaty’. 40 Thus, the UNSC was not at liberty to: …substitute a Chapter VII decision for the missing ratification of the agreement by Lebanon, but instead established the STL by making the provisions of the agreement negotiated with Lebanon an integral part of a Chapter VII resolution.41 In essence the UNSC unlawfully bound Lebanon to a treaty by ‘threatening unilaterally to put those provisions into effect through a Chapter VII resolution.’42 The principles and purposes of the UN Charter prohibit the UNSC exerting force upon a state for the purpose of giving effect to a treaty that is not ratified by the member state.43 Moreover, Article 51 of the Vienna Convention on the Law of Treaties provides that a treaty has no ‘legal effect’ if a ‘state’s consent’ was ‘procured by coercion’.44 According to d’Aspremont and Brolmann, even if one accepts that the STL was legally constituted by either a ‘binding UNSC Resolution or through an agreed upon ‘international treaty’, the cooperation of the host and target states is vital for the ‘efficacy of these tribunals, as these must be able to rely on domestic enforcement mechanisms.’45 Although international tribunals have a ‘wide-ranging means…at their disposal’, they nevertheless ‘need the cooperation of various domestic actors.’46 For example, there is a need for cooperation with respect to the ‘transfer,’ ‘extradition’ or ‘surrender’ of suspects.47 There is also the need for cooperation in the ‘collection of evidence’.48 4. The STL Procedures and the Substantive Crime of Terrorism There are a number of novel features of the STL that are positive in nature. These positive features include the creation of a defence and victims’ unit that are analogous or parallel to the prosecution’s office. However, the transfer of the prosecution from the UN International Independent Investigation Commission (UNIIIC) that was previously appointed by the UNSC (to aid Lebanon in the investigation of the assassination is problematic for the STL’s legitimacy.49 This is the first time in the history of the creation of UNSC tribunals that a prosecution was transferred over from an investigative unit investigation the matters for which the tribunal was formed.50 The problem arises because pursuant to Article 19 of the Special Tribunal for Lebanon Rule of Procedure and Evidence, 2009 provides that the STL will accept evidence compiled by the UNIIIC prior to the establishment of the STL.51 In international criminal laws, the crimes involved usually have highly political character and as a result it is entirely important that prosecutors not only are impartial, but that there is an overriding appearance of impartiality on the part of the prosecution.52 Thus the transfer of an investigator to the office of prosecution for the purpose of prosecuting crimes under the STL mandate presents a problem with respect to the impartiality of the prosecution and the administration of justice under the STL. Where there are questions relative to the impartiality and independence of an international prosecution, the integrity of the entire international criminal process to which the prosecutor is assigned is called into question and the issue of legitimacy is relevant.53 Another significant issue pointing to the tenuous legitimacy of the STL is its narrow mandate. The STL was established to prosecute those responsible for the death of Hariri and other related crimes. This appears to be a highly selective mandate when crimes against humanity and war crimes have been committed in Lebanon and yet, no one appears to be accountable. Thus: By definition, the justice rendered by the STL will be selective in nature vis-à-vis these crimes. This will probably further complicate the role of the STL in comparison with other international(ized) tribunals, which are significantly legitimized by their ability to represent and act in the interests of large numbers of victims.54 In addition to its narrow mandate, the STL requires that the crime of terrorism be defined and resolved by reference to Lebanese law.55Yet in Interlocutory Decision on the Applicable Law; Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/1 (16 February 2011), the Appeals Chambers applied customary international law to the definition of terrorism. The Appeals Chambers ruled that although it was directed by Article 2 of the STL Resolution of the UNSC to apply Lebanese law, it will do so by reference to customary international law, to which Lebanon is bound.56 By taking this approach, the STL appeals chamber went beyond its mandate within the meaning of Article 2 of the UNSC STL Resolution and in doing so, passed over a number of judicial rulings by Lebanon’s courts which provided clear and concise definitions of terrorism. As a result, the STL trials face a problem of legality and legitimacy under the doctrine of nullum crimen sine lege. The docrine of nullum crimen sine lege, takes the position that individuals ‘should be tried or punished only for an act considered a criminal offence under applicable law at the time it was committed’.57 The STL’s effort to develop international customary law thus comes at great expense. In pursuit of an international definition of terrorism, the court has provided solid grounds for appeal that threaten to undermine its own trial decisions. Under international law, where there is an obligation to apply the domestic law, an independent and international criminal tribunal is at liberty to apply customary international law where the national laws are ‘unreasonable’ or unjust.58 However, this was not the reason for the Appeals Chambers decision to interpret Lebanese law by reference to customary international law. The decision appears to be made based on perceptions that Lebanese law was inferior to customary international law.59 More importantly, the Appeals Chamber came to the conclusion that it was at liberty to apply customary international law to the definition of terrorism because the crime was in fact committed transnationally.60 This approach is therefore consistent with the pre-STL political bias which perpetuated the idea that Syria was somehow involved and responsible for the killing of Hariri. However, this approach is different from the approach taken by the Appeals Chamber for the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY Appeals Chamber established a higher threshold for applying its mandate to terrorism. According to the ICTY Appeals Chamber, in order for the prosecution to satisfy the burden of proof with respect to a charge of terrorism, the prosecution must prove that the acts of terrorism were conducted for the sole purpose of terrorising the civilian population.61 The Canadian Supreme Court defined terrorism with either national or international elements as acts or omissions calculated to intimidate the public.62 Thus there are different approaches to the definition of terrorism and this raises the question of whether or not there is customary international law relative to the definition of terrorism and whether or not the Appeals Chambers exceeded its jurisdiction and mandate by stating that there was customary international law on the definition of an offence of terrorism.63 According to Blackbourn, there is no universal definition of terrorism and it is constantly evolving in the UK to the point where what amounts to terrorism is difficult to define.64 5. The STL’s Operation and Its Operational Issues The main operational issue challenging the legality and the legitimacy of the STL is the possibility that those indicted under the STL Resolution can be tried in absentia.65 According to Article 22, permits the STL to proceed with the trial in the event the individual or individuals indicted cannot be brought before the STL to stand trial.66 Due to the Lebanese authorities’ inability to bring those indicted before the STL, there is a high likelihood that the STL will invoke its power to proceed in absentia. Such a move threatens to ‘delegitimze the Tribunal and harm the overall project of international criminal law’.67 Under international law, trials in absentia are rare and usually only occur when a defendant has appeared before the court at some point and subsequently absconded or disrupted the trial so that the hearing could not proceed efficiently in his or her presence. Regardless, the defendant has a universal human right to be present and to participate in his or her trial. Although, under international law, it is possible to proceed in the defendant’s absence where the defendant has received notice of the proceedings, but fails to appear and thus waives the right to be present in proceedings against him or her, international courts and tribunals are reluctant to take this approach. The fact that the STL is prepared to proceed in absentia with no evidence that the defendants have been notified of the proceedings, speaks to its legitimacy as an international tribunal applying universal standards of human rights.68 Two human rights bodies are reviewing the issue of trials in absentia: the UN Human Rights Committee and the European Court of Human Rights. In doing so, both human rights bodies affirm that in order for a trial in absentia to proceed, there must be reassurances that the defendant who is convicted in absentia is able to be retried. This is a serious problem for the STL as it is only scheduled to operate for a period of three years. It is therefore doubtful that the defendants who are obviously at large and may remain at large for several years, will be able to be retried if convicted in absentia.69 In addition to the operational difficulties of trials in absentia, the legitimacy and legality of the STL is further challenged by what appears to be tainted evidence collected by the UNIIIC which is required to be put before the STL at its hearings. The UNIIIC has taken ‘testimonies’ and evidence from witnesses who either wilfully lied or were under duress and lied.70 In fact the prosecutor of the STL admitted that evidence was taken from witnesses with ‘questionable credibility’.71 Moreover, Jamil El Sayed who had been detained by officials for a period of three years applied to the STL for disclosure of the material gathered during investigations that led to his detention. El Sayed claimed that the evidence was false and that he was preparing to sue through the Lebanese courts in respect of damages for fraudulent statements and libel.72 The tribunal did not decide on the merits of the case, but merely stated that it had jurisdiction to determine the claim. The violation of human rights in terms of detention without formal charges for a period of 3 years is indicative of the fact that although the STL, by its own admission has jurisdiction over the matter, did not address the issue of the violation of human rights.73 6. Recommendations and Possible Solutions In order to address the legitimacy of the STL Resolution, the UNSC is required to implement a Resolution that omits references to an agreement with Lebanon and the Resolution should clearly state that it is passed without the consent of the Lebanese government. As the Resolution is currently worded, it comes across as a unilateral treaty forced upon Lebanon. According to theories of legitimacy, the act of forcing one’s will on another poses the greatest threat to legitimacy. Ideally, the STL should have been formed by agreement, as this is the one way of obtaining a more legitimate act of governance by the UNSC. One way that the UNSC would have been able to obtain the consent of the Lebanese government would have been the implementation of a treaty that accorded the STL a wider and far less selective mandate. Rather than simply convening the STL for the purpose of trying those responsible for the death of Hariri and related incidents, the STL should be convened to try those responsible for crimes against humanity. Thus, revising the originating instrument and the mandate of the STL Resolution would improve the legitimacy of the establishment of the STL. Improving the operational legitimacy of the STL will require removing the prosecution who was previously linked to the UNIIC and therefore has a self-serving interest in using the tainted evidence collected by the UNIIC. The prosecution’s ability to be impartial and independent must be demonstratively clear. Moreover, the prosecution must appear to be impartial and independent. This can be accomplished by the appointment of a prosecution who has not played a role in the UNIIIC. It is also imperative that the STL revise its position with respect to trials in absentia so that it is consistent with international human rights standards. While it may be necessary to proceed in the absence of a defendant, this should only occur when the defendant has clearly waived his or her right to be present. At the very least, the STL should extent its scheduled duration so that it goes well beyond the three years fixed for completion of its mandate. This will at least ensure that the defendants, if convicted in absentia will have the opportunity to be retried. Given that the evidence collected by the UNIIIC has been tainted by false testimony, it is likely impossible to obtain a close approximation of the truth in the absence of those indicted for the death of Hariri and related incidents. It is also likely that the evidence forming the information for the indictments is tainted and the defendants will likely not obtain a fair trial unless they are present. Since the prosecution has admitted that many of the witnesses questioned lacked credibility, the investigations should begin all over again and the indictments quashed for the time being. If the indictments are quashed for the time being, the defendants may be more willing to cooperate with an investigation. In the absence of testimony from the defendants it is unlikely that the STL will solve the mystery surrounding the assassination of Hariri. Conclusion The establishment of the STL confronts significant legitimacy issues because it has the appearance of coercion on the part of the UNSC. Theories of legitimacy indicate that when the will of one party is forced upon another, legitimacy is problematic. However, when governance occurs as a result of the consent of the governed, legitimacy is usually achieved. Although the Lebanese government initially intended to agree to the establishment of a STL, they nevertheless withdrew by refusing to ratify the STL Resolution. Therefore, the legality and therefore the legitimacy of the STL Resolution is questionable, at best. The UNSC’s competence to legislate under the UN Charter is tenuous and according to legitimacy theories, where there is doubt that the actor has the authority to make a decision, there is a problem of legitimacy. In other words, if the governed (Lebanon) does not give its consent, the legality and legitimacy of the establishment and operation of the STL is a problem. The operational deficits only exacerbate the problems of legitimacy and legality linked to the establishment of the STL. In particular, the STL needs to address the issue of trials in absentia and the tainted evidence collected by the UNIIIC. In addition, the impartiality and independence of the prosecutor is an ongoing issue that will remain a legitimacy issue, especially since the prosecutor was involved with the UNIIIC and thus the tainted evidence collected and slated for use by the STL. Unless and until the establishment and operation of the STL are corrected, the trial and any convictions obtained will confront the same degree of legitimacy and legality issues that the STL itself confronts. 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