Operation of the Special Tribunal for Lebanon - Essay Example

Critical evaluation of the establishment and operation of the Special Tribunal for Lebanon. Contents Introduction 3 Section Definition of legality and legitimacy: 3 Section 2- The Historical Background to the Establishment of the Special Tribunal for Lebanon (STL): 6 Section 3- The establishment of the STL: 9 Section 4- The STL procedures and the substantive crime of terrorism: 9 Section 5 - The STL’s operation and its operational issues: 9 Section 6- Possible Solutions and Recommendations: 9 Conclusion 9 Appendices 9 Bibliography 9 Introduction This paper seeks to critically evaluate the establishment and functioning of the Special Tribunal for Lebanon (STL) formed with a mandate of prosecuting those who caused the bomb attack of 14 February 2005 leading to death of Lebanese Prime Minister Rafiq Hariri and 22 others. The STL has been established as a tribunal of international character.1 This tribunal is distinct from other “hybrid” or “mixed” international tribunals such as Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) given that the constitutive documents of STL lend it a unique genetic makeup. Section 1 - Definition of legality and legitimacy: The legal basis of STL stems from the agreement between the state of Lebanon and U.N. Secretary-General just as in the case of Special Court of Sierra Lone established between Sierra Lone the United Nations. The Lebanese Parliamentary Speaker having not convened a similar agreement to enable ratification by the United Nations Security Council invoking domestic constitutional procedures, a resolution under Chapter VII of the Charter was adopted pursuant to appeals from the Lebanese Government and Lebanese Parliamentarians. The legitimacy of the STL is often being debated because of its narrow mandate rather than the manner in which it was established. The other international tribunals like the ad hoc Tribunals, the Special Court for Sierra Leone, Extraordinary Chambers for Cambodia and the ICC have been formed for the purpose of prosecuting war crimes, crimes against humanity and genocide as they were in response to atrocities committed in conflicts in the former Yugoslavia, Rwanda and Sierra Leone as they were of great concern to the international community. Thus, the tribunals are meant for larger purpose than for the lone incident involving murder of a country’s prime minister and 22 others. The STL‘s jurisdiction is therefore very narrow adopting an extreme form of selectivity leaving so many crimes in Lebanese history that have not been punished. Nevertheless, the STL is an opportunity to use an independent criminal justice mechanism to counter the tradition of political violence in Lebanon which has been rampant all over the Middle East and STL is the beginning of an era for countering impunity for such crimes.2 However, the fact remains that STL is the first international court entrusted with the jurisdiction ratione matearia for terrorism. But there is no definition of terrorism provided for neither in the agreement nor in the Statute of STL. Hence, there had to be an interlocutory decision in respect of legal definition of terrorism pursuant to one of the 15 questions posed by the Pre-Trial Chamber (PTC). The Appeals Chambers ultimately decided that definition of terrorism be adopted from the Lebanese domestic law and international law.3 While the legitimacy in respect of substantive law for the STL seems to have been established, the one in respect of selective impunity viewed in the historical context of the 15-year war, the highly selective nature of STL jurisdiction and the fears expressed in respect of foreign powers’ grabbing the opportunity to use STL to impose their will, transparent selection of judges, senior officials and funding from various states will likely have some constraints on the outcomes of the Tribunal’s impartial decision. The STL has to surmount all these hurdles and strive to leave a lasting legacy in Lebanon and in the domain of International criminal law.4 The legality of STL is in question since the Security Council chose the convoluted route in passing the resolution 1757 (2007) unlike in the cases of ICTY in 1993 5and ICTR in 19946 in which the resolutions were passed linearly, for giving legal force to an unratified agreement and the STL statute by invoking UN Charter. The abstaining Russia stated that the terms of issue were dubious in the context of international law pointing to the arrangement by the sponsors of Resolution 1757. It said that the treaty between Lebanon and the UN could not be enforced on the strength of a single party’s decision. It further stated that the draft resolution should have discussed the implementation of the agreement between the UN and Lebanon rather than on the agreement’s entry into force. UN Security Council has in the past intervened in the constitutional order of some member states in respect of Tribunal set up to deal with terrorism in relation to la affaire Lockerbie in which “The terrorist bombing of the Pan American World Airways (PanAm) flight PA103 exploded over and crashed in Lockerbie, Scotland, on December 21, 1988. Two Libyan agents were tried under Scottish law in The Hague - only one was convicted in 2001” Parties to the dispute were the U.K. and the U.S. vs Libya agreed on the trial being conducted in the Netherlands in accordance with Scottish law and presided over by Scottish judges by opportunely amending the Res 1192/1998 under Chapter VII requiring the United Kingdom and the Netherlands to take necessary steps to enable the Lockerbie Court to exercise its jurisdiction. The Resolution authorised the British government to amend its criminal law to enable a Scottish Court to sit in the Netherlands and adjudicate without a jury which was against the British living constitution mandating parliamentary interventions to do so. Similarly, Res. 1757 (2007) and 1192 (1996) were against the constitution of the states involved. However, Res. 1757 unlike 1192 was not initiated by a an elected or otherwise authentic government in view of the question whether the control by Hezbollah over Southern Lebanon i.e a government seated in Beirut could be considered as representing the whole of Lebanon since Hezbollah is suspected of being funded by Syria and Iran.7 Another aspect of its legality and legitimacy is the “in absentia” trial as mentioned in Article 22 of the STL statute which is inconsistent with international human rights law to which Lebanon is bound. This would be valid only if the defendant had the unfettered right to a retrial as it is repugnant to minimum standards of fair trial. The STL as an adhoc institution does not guarantee a retrial. It is therefore argued that STL statute should be amended to avoid trials in absentia except in the limited circumstances of the accused having been ejected out of proceedings for causing serious disruptions or the accused being aware of the proceedings and voluntarily waives the right to be present.8 Section 2- The Historical Background to the Establishment of the Special Tribunal for Lebanon (STL): Nearly after 50 years of Nuremberg and Tokyo trials, the STL has emerged as another international criminal court, while the other two namely ICTY and ICTR are adhoc tribunals are most at the terminal stages with first indictments at the International Criminal Court (ICC). The STL was formed following widespread protest that forced the Government in Beirut to request the UN to form an adhoc tribunal to try the persons who masterminded and those who executed the fatal attack by terrorists against Lebanon’s former two times Prime Minister Rafik Hariri and 22 others who were also the advocates of Lebanese political and cultural establishment on February 14,2005. Mr Rafik Hariri had been the prime minister of Lebanon from 1992 to 1998 and from 2000 to 2004. He had been a self-made millionaire and business tycoon. After his resignation as the Prime Minister, he had been advocating for bringing to reality the dream making Lebanon as the Switzerland of Middle East in the midst of 30 years of military occupation by Syria from 1976 to 2005 and 15 years of civil war from 1975 to 1990. Following the UN Security Council’s authorisation, the Secretary-General held negotiations with Lebanon for establishment of a Tribunal of the highest standards of international criminal justice throughout 2006 and arrived at an agreement on the establishment a STL signed by Lebanon and the U.N. on January 23 and February 6, 2007 respectively. Beirut authorities did not carry out the constitutional procedure for ratification as otherwise the STL would have become the third criminal under the auspices of an international treaty as in the case of SCSL and ECCC which were established at the behest of Governments of Sierra Leone and the Royal Government of Cambodia respectively by the UN through formal agreements between the respective Governments and the UN. Initiative did not come from the Lebanese parliament due the impasse caused by the resignation of pro-Syrian Shiite ministers with the resultant inability of the President to convene Parliament to pass law on ratification. “According to the 1943 unwritten National Pact, Parliament presidency is reserved to a Shite Muslim”9 Further, Shite Muslim parties (Amal and Hezbollah) hold the Lebanese signature constitutionally invalid because the signature was appended in the agreement when there was no representation of Shites in the government though this objectionable according to the 1986 Vienna Convention governing the law of treaties and international organizations. “The consent given by a party in violation of internal rules of fundamental importance regarding competence to conclude treaties can be invoked as invalidating a treaty if the violation is objectively evident to any other party conducting itself in the matter in accordance with the normal practice and in good faith (Art. 46). “10. Due to this legal impediment, Security General decided to invoke enforcement measures stating "Regrettably, all domestic options for the ratification ... now appear to be exhausted, although it would have been preferable ... a national consensus" 11and accordingly the Security Council adopted on May 30, 2007 its Resolution 1757 under Chapter VII which allows the council to pass decisions binding on all UN members if there is a threat to international peace and security which had already been determined by the council in 2005 itself reaffirming terrorist attacks in Lebanon as a threat to international peace and security. Further, the article 103 of the Charter which makes it obligatory for the UN prevail over all other international obligations contracted by the member states, was invoked by Council and some of the provisions of the agreement of Lebanon with the UN for establishment of STL were amended. “The first amendment concerned the seat of the Tribunal: It envisioned the possibility to opt for a bilateral agreement UN-host state instead of a tripartite scheme UN-Lebanon-host state. As to the second amendment, it contemplated the possibility to cover the expenses of the Tribunal by means of voluntary contributions, whereas the Lebanese resources would be inadequate“ 12. Then the measures in respect of funds for the Tribunal functioning, practice directions in respect of non judicial aspects, approval of the annual budget, appointment of prosecutors, judges followed and completed by March 2008 thus enabling a smooth transition fromthe pre-existing International Independent Investigation Commission (IIIC) to the STL. The trust funds were US $ 30 million as of February 2008 in addition to pledges to infuse US$ 16 million out $ 140 million estimated for STL’s first three years’ functioning. The Hague was to host the premises. Incidentally, the mandate of the IIIC was to expire on June 15, 2008 and findings of the IIIC by then were considered adequate for the preliminary indictments. Section 3- The establishment of the STL: Section 4- The STL procedures and the substantive crime of terrorism: Section 5 - The STL’s operation and its operational issues: Section 6- Possible Solutions and Recommendations: Conclusion Appendices Bibliography Read More