The Special Tribunal for Lebanon

Iain Morley QC looks at the Special Tribunal and how it is helping end political assassination in Lebanon.

On 14 February 2005, at 12.55hrs, in downtown Beirut, the largest-ever bomb in peacetime was detonated as the motorcade of Rafiq Bahaa El Din Hariri, the former Lebanese Prime Minister, passed at speed. It killed Hariri, eight members of his convoy, 13 members of the public, and injured 231 others. The explosion was so large it created a 10m crater and an atomic-style mushroom plume.

Scene of the assassination, Beirut, 14 February 2005

Regional politics have ever since been much dominated by this question: who killed Hariri? The assassination immediately led to a revolution in Lebanon - the ‘Cedar Revolution’, so named after the Lebanese national emblem - causing the withdrawal of the Syrian army, while the UN then established from 2005 to 2009 an investigation commission (UNIIIC). As a result of its work, in June 2007, by resolution 1757, the UN Security Council, responding to the request of Lebanon, decided under Chapter VII of the UN Charter to establish a tribunal to try this atrocity. Its name is the ‘Special Tribunal for Lebanon’ (STL).

The STL headquarters

The tribunal was opened on 1 March 2009, with over 300 staff, and though it has an office in Beirut, its headquarters sit in the Hague (Leidschendam), in a hi-tech building, with its own moat and anti-truck bomb defences.

Within it has been built one of the largest courtrooms in Europe, with seating for over 40 lawyers, together with cameras, interpretation booths, bullet-proof gallery glass, and computerised in-court facilities to present much evidence electronically. Some think the court may one day become a permanent terrorism court, trying cases from worldwide where local politics would weaken a domestic process.

The Indictment

On 28 June 2011, a nine-count indictment in respect of the Hariri assassination was judicially confirmed as disclosing prima facie case against four persons, and trial proceedings are expected to begin in 2012. The accused remain at large, and it is possible the proceedings will be in absentia.

The Structure of the Tribunal

The primary mandate of the STL, as created by Article 1 of its Statute, is to hold trials for those accused of assassinating Hariri, and it may also try other assassinations and attempts in Lebanon deemed connected to the Hariri assassination, mainly between 1 October 2004 and 12 December 2005, during which time there were many such events.

It is a tribunal of international character, with four organs: Judges’ Chambers, Office of the Prosecutor (OTP), Defence Office, and Registry.
Its budget has been around $60m annually. Funding is by voluntary contributions from various states, making up 51 per cent, while the remaining 49 per cent comes from Lebanon.

The tribunal is a UN backed court, it is not part of the Lebanese judicial system, but instead a hybrid, applying features both of Lebanese law and procedure and of international criminal law. While the other tribunals deal mostly with war crimes and crimes against humanity, the STL is the first to deal specifically with terrorism.

The President of the tribunal is Sir David Baragwanath, a senior member of the New Zealand Court of Appeal and a Bencher of the Inner Temple. The tribunal is first and foremost a judicial organisation - a giant court - acting independently of any government influence, composed of Lebanese and international judges. The judges are a Pre-Trial Judge (from Belgium), a Trial Chamber of three judges with two alternates (collectively from Switzerland, Australia, Jamaica, and two from Lebanon), and an Appeals Chamber of five judges (collectively Sir David from New Zealand, from Sweden, two from Lebanon, with currently, tragically, a vacancy following the passing in October 2011 of the great Antonio Cassese, very much the ‘father’ of international criminal law, and after whom the courtroom is now named).

President Judge Sir David Baragwanath, and Registrar Herman von Hebel

The Registrar is Herman von Hebel from the Netherlands, and he is the primary administrator, raising and controlling the budget, and to whom all staff are accountable. The Prosecutor is Daniel Bellemare QC MSM, from Quebec, though he will retire in February 2012, and the Head of the Defence Office is Francois Roux from France. The Prosecutor’s role is both to investigate offences and then to prosecute them, so that his office of more than 100 divides between many investigators and some lawyers. The Defence Office is an organ of the tribunal, which is a new and welcomed development in tribunal structure. Its role is to monitor defence interests, where appropriate to file arguments and to appear at hearings, and most importantly to appoint the defence counsel, who then act independently.

The Debate on the STL

The STL is the subject of much discussion in Lebanon and elsewhere. There have been many debates in the Lebanese parliament and in cabinet about its funding and whether the tribunal can be impartial if dealing with such an event of such political impact. One government collapsed over these questions, while there are daily television and newspaper analysis of its work. One promising feature is that political assassination has so far ceased since the tribunal began.

It will be important for the STL to show how a judicial process can be independent of patronage and vested interests. It is therefore a fundamental mission to demonstrate how, uninfluenced by politics, the Rule of Law can be achieved, and with this will come a growing national confidence in an end to impunity. To this end, it is the promise of the President and of the Prosecutor that at trial the only consideration will be the evidence, weighed against the burden and standard of proof, there being no hidden hand in the shadows, and that an accused is innocent until proven guilty beyond reasonable doubt on what is presented in court alone.

A case to answer

On 28 June 2011, the Pre-Trial Judge found there was a case to answer in respect of four accused for the Hariri assassination: Mustafa Badreddine, Selim Ayyash, Hussein Oneissi and Assad Sabra. The indictment, applying the Lebanese legal model, offers a concise statement of facts, and lists nine counts, drawing on the Lebanese penal code and international modes of liability.

Trial in absentia

The STL may convene a trial in absentia, for which there is a provision in the tribunal’s rules of procedure and evidence, and for which there is much precedent in Lebanon. On 11 November 2011, there was a detailed public hearing on when and why in absentia proceedings may arise, and matters were adjourned for further investigative measures in Lebanon to try to make arrests.

The working languages in court will be English, French and Arabic. The precise mechanisms for a trial are as yet uncertain, such as to what extent hearings will be adversarial in the common law model or inquisitorial in the continental model, while additional counsel will appear throughout to represent the interests of victims alongside the prosecution and defence.

To preserve fair trial rights, it is anticipated that defence teams, of about six per team, each with a ‘leading counsel’ and a ‘co-counsel’, will be allocated to each accused. Witness testimony may be allowed by video-link, and where necessary for security reasons in camera. There will be many experts. It is anticipated early arguments will dwell on the jurisdiction and creation of the tribunal. Much attention will be paid to ensuring the norms of international trial practice are observed, well-developed since 1996 by the other tribunals. To this end, already on 16 February 2011, the Appeals Chamber delivered a 152 page judgment, which has been the subject of much academic discussion, on 15 legal questions, being notably the nature of terrorist offices, the relevant modes of liability in international criminal law, their relationship with Lebanese law, and the propriety of cumulative charging. Much legal argument will be in written form, to save valuable court time, which is otherwise expected to receive oral testimony.

The proceedings have reached the pre-trial phase, and there will be much court activity through 2012. The length of any trial is uncertain, and so too whether any connected cases will be indicted. For further information, please see www.stl-tsl.org.

Other tribunals have wrestled often with wars, and how much evidence to call to prove sometimes obvious culpability, or sometimes elusive command responsibility, for events spread over years and whole territories. The STL is different: its work is a whodunit: who killed Hariri – who killed the others – and there will be talk of little else around the bazaars in the Levant when trial starts in 2012.

Any views which seem expressed in this article are of the author alone and not as representative of the STL.

Rafiq Hariri

Rafiq Hariri was a popular politician, being Sunni though secular, with good regional and world relations. He made a billionaire fortune in construction in Saudi Arabia and was known internationally as ‘Mr Lebanon’.

He was widely credited with re-building Beirut, following many years of civil war. Once the jewel of the Levant, and former French protectorate after the collapse of the Ottoman Empire, Lebanon was controlled by Syria from 1975, and following the Israeli invasion of 1982 descended into factional in-fighting, between its Shia, Sunni, Druze and Maronite communities. In the 1980s, it seemed ungovernable, being the scene of horrific truck bombings in 1983 of the US embassy and the barracks of the US marines and French paratroopers, which was then followed by the seizure of many Western hostages during 1985-90 (including John McCarthy and Terry Waite). Hariri helped to negotiate the Lebanon peace accords of the late 1990s, leading to the return of a measure of calm and prosperity, and served two terms as Lebanese Prime Minister. When he was killed, it was widely thought he was likely to win the upcoming June general election.

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