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International Terrorism – A Special Tribunal for Lebanon
Syria,
Lebanon and the Assassination of former Premier Rafik Hariri
By
Steven Kay QC
9 Bedford
Row
London WC1R 4 AZ
0207 489
2727
goodnightvienn@gmail.com
www.9bedfordrow.co.uk
Introduction
At 12.55pm on 14 February 2005,
a Mitsubishi Canter truck exploded outside the St. George Hotel in Beirut
and killed the ex-Premier of Lebanon, Rafik Hariri[1]
and 22 other people. The amount of TNT needed to create a crater of the size
left by the explosion has been assessed as being equivalent to at least
1,800kg if placed at a height of 0.80m above ground level.[2]
The political shockwaves from that explosion reverberated just as rapidly
throughout the Middle East with claims and counterclaims raging as to who
was responsible for the assassination. The UN Security Council has become
involved in this matter by forming a Fact Finding Mission[3]
and has given further assistance to the Lebanese Government and its criminal
justice system through a body it created known as the UN International
Independent Investigation Commission[4].
On 13 November 2006 an agreement was reached between the Government of
Lebanon and the UN for a Special Tribunal for Lebanon. The Agreement and
proposed Statute drafted by the parties were forwarded by the UN Secretary
General with his report to the Security Council on 15 November.[5]
The UN immediate response to
the assassination – A Fact Finding Mission
The UN response was very quick
after the news of Hariri’s death broke. On the 15 February 2005 a statement[6]
was issued by the President of the Security Council requesting the UN
Secretary-General to report[7]
urgently on the matter and calling on the Lebanese Government “to bring
to justice the perpetrators, organisers and sponsors of this heinous
terrorist act” and also urging all states, in accordance with UN
resolutions “to cooperate fully in the fight against terrorism”.[8]
It can be seen that straight from the start and notwithstanding any detailed
investigation, the crime was being linked to an act of terrorism and even
with sponsors. The statement also repeated the commitment to the Lebanese
people to receive “support of their longstanding national aspiration to
full sovereignty, independence and territorial integrity” and a
statement that the “terrorist act should not jeopardise the holding of
transparent, free and democratic elections”. Links of the murder to
issues of the coming elections and the sovereignty of Lebanon were made
without any clear information by that time as to what had actually happened
in Beirut on the 14 February.
The Secretary General of the UN
requested Peter Fitzgerald a Deputy Commissioner of the Irish Police to
provide a report. Between the 25 February and 16 March 2004 the Fact-Finding
Mission headed by him went to Lebanon and reviewed the Lebanese judicial
investigation that was already under way and conducted enquiries into the
crime scene and the background events. Their report[9]
concluded that “the Lebanese investigation process suffers from serious
flaws and has neither the capacity nor the commitment to reach a
satisfactory and credible conclusion.” It recommended the establishment
of an independent international investigation commission and blamed the
Lebanese security services and Syrian Military Intelligence as bearing “the
primary responsibility for the lack of security, protection, law and order
in Lebanon.” Although admitting that the specific causes of the
assassination could not be reliably asserted until the perpetrators of the
crime were brought to justice, that did not prevent the authors from
declaring that “Clearly, Mr Hariri’s assassination took place on the
backdrop of his power struggle with Syria, regardless of who carried (it)
out and with what aim”.[10]
All this comes before the identity of the bomber is even known.[11]
The critique of the
investigation seemed to have gone beyond that required by the President of
the Security Council who on the 15 February had only requested the Secretary
General to report “on the circumstances, causes and consequences of this
terrorist act”[12].
The Fact-Finding Mission had moved to examining and criticising on a far
wider scale the security services for the whole of Lebanon: “It is the
Mission’s conclusion that the restoration of the integrity and credibility
of the Lebanese security apparatus is of vital importance to the stability
and security of the country”.[13]
Beirut CSI - Security
Council Resolution 1595 and the UN IIIC
Security Council Resolution
1595 of 7 April 2005 was the first of its kind and marked the movement of
the UN into the realm of crime scene investigation. The Security Council
with the Government of Lebanon’s agreement set-up the UN International
Independent Investigation Commission which was to investigate the killing of
Rafik Hariri and 22 others who died in the same explosion.[14]
The period which was thought necessary for the work of the Commission to be
completed was one of three months from the date on which it commenced full
operations, with a three month extension upon the authorisation of the
Secretary General if he deemed it necessary to enable the Commission to
complete its investigation.[15]
Perhaps, it seemed to the Security Council at that stage that this would be
an open and shut case, but nearly two years later the Commission is still
investigating and there are no signs of its work being signed-off.
The Commission was empowered to
work within the framework of Lebanese sovereignty and with its legal system
“to assist the Lebanese authorities in their investigation of all aspects
of this terrorist act, including to help identify its perpetrators,
sponsors, organisers and accomplices”.[16]
The Lebanese state was ordered to give full cooperation to the Commission
and “to ensure that the findings and conclusions of the Commission’s
investigation were taken into account fully.”[17]
All States were also called upon to cooperate fully with the Commission and
to provide any relevant information they may possess pertaining to the
terrorist act.[18]
For its operating procedures as an annexe to the Lebanese criminal justice
system the Commission was given a free standing role with the power to
determine its own procedures in carrying out the investigation only “taking
into account Lebanese law and judicial procedure”.[19]
The UN IIIC published its first
report[20]
in Beirut on 19 October 2005, having transmitted its full case file to the
Lebanese authorities in that month. The Lebanese justice system had seen
four Lebanese suspects already arrested and charged for conspiracy to commit
murder and related offences to the Hariri assassination.[21]
The report set out the main lines of enquiry, with observations and
conclusions as well as identifying matters for further investigation. That
report flagged up the possibility that other explosions before and after the
Hariri event, could be linked describing them as a “sequence”.[22]
The allegation was made against Syria that “there is converging evidence
pointing at both Lebanese and Syrian involvement in this terrorist act”
and that “many leads point directly towards the involvement of Syrian
security officials with the assassination.”[23]
The report was critical of Syrian cooperation with the Commission,
describing it as being “to a limited degree” and accused several
officials of giving misleading statements.[24]
Security Council Resolution
1636 – Criminal Justice Provisions
The Security Council responded
to the Commission’s report with Resolution 1636 on 31 October 2005, which
marked a further new development for that body as it moved deeper into the
realms of crime investigation and stated it was assisting “Lebanon in the
search for the truth and in holding those responsible for this terrorist act
accountable for their crime”. Declaring that it was moving into Chapter
VII of the UN Charter because it had determined that the terrorist act being
investigated was a threat to international peace and security it recalled
its previous resolutions and brought into play recent terrorism resolutions,
including the post 9/11 resolution 1373 of 28 September 2001.[25]
It reminded States that they were “required to afford one another the
greatest measure of assistance in connection with criminal investigations or
criminal proceedings relating to terrorist acts”. The Security Council
was now also laying down its marker on this matter when it determined “that
the involvement of any State in this terrorist act would constitute a
serious violation by that State of its obligations to work to prevent and
refrain from supporting terrorism, in accordance in particular with
resolutions 1373 (2001) and 1566 (2004) and that it would amount to a
serious violation of its obligation to respect the sovereignty and political
independence of Lebanon.”
In furtherance of this position
the Security Council in Resolution 1636 now laid down specific measures as “a
step to assist” in the investigation it had taken under its wing “without
prejudice to the ultimate judicial determination of the guilt or innocence
of any individual”. The measures ordered all states to restrict travel
and detain individuals designated as suspects by the Commission or the
Government of Lebanon in accordance with “applicable law” and that
they “be made available for interview” if the Commission requests.[26]
These measures also ordered the freezing of all funds, financial assets and
economic resources controlled directly or indirectly by such suspects or
persons or entities acting on their behalf and ensure the same is not
available to them.[27]
It can be seen that there are
questions that may be asked as to how far civil rights were to be protected
by the Security Council with these measures. Being in the criminal
investigation business and a legislative body inevitably causes conflicts of
interest when you wear both hats. Suspects regardless of the reasonableness
of that suspicion or even the means were to be “made available…in
accordance with applicable law” whatever that is and wherever that maybe
– is it international or national law? The United Nations does have regard
to Human Rights provisions even when dealing with terrorism as the recent
General Assembly Resolution on Protection of Human Rights and Fundamental
Freedoms while Countering Terrorism provides.[28]
Imagine if a suspect was in the UK and ordered to be detained by the IIIC or
Lebanese authorities – what would be the procedures? Could they just be
detained and made available by the police without any form of due process?
What form of procedure would be acceptable for an interview?
As for Syria, whilst noting “the
recent statement by Syria regarding its intention now to cooperate with the
Commission”[29],
the Security Council decided it had to implement commitments to the UN IIIC
by:
(a) clarifying a considerable
part of the questions being asked of it and which were unresolved;[30]
(b) detaining Syrian officials
or individuals whom the Commission considered as suspects involved in the
planning, sponsoring, organising or perpetrating the terrorist act, and to
make them fully available to the Commission;
[31]
(c) giving the Commission the
same full rights of access as it had in Lebanon to obtain evidence it deems
relevant to the enquiry;[32]
and
(d) giving the Commission the
authority to determine the location and modalities for interview of Syrian
officials and individuals it deemed relevant to the enquiry.[33]
The same civil rights issues
are raised by these provisions which require Syria to detain people alleged
to be suspects without even a requirement of reasonable suspicion for the
exercise of the power of detention. Those suspects were also required to be
handed over to the authority of this recently formed agency which was able
to choose the modalities for interview without any express safeguards other
than those it decided to apply. Such freestanding provisions for a criminal
investigation agency not operating under a defined legal body might be
thought to be a potentially dangerous incursion into the rights of
individuals. The UN could potentially find itself with its own Guantanomo
Bay issues if powers devolved to an investigating agency were not
responsibly used.
Faced with these issues, Syria
established its own Judicial Commission[34]
to consider the requests of the UN IIIC and to provide the means for
cooperation with that body. The second Commission report[35]
records progress of its investigation and the fact it had negotiated with
the Syrian Government interviews with certain of its officials. These took
place in Syria and in UN buildings in Vienna[36]
with international and Syrian lawyers present at the questioning.
Security Council Resolution
1644 – Expanded Jurisdiction and a Request for a Tribunal of International
Character
The investigation which had
originally been concerned with the Hariri assassination was expanded by
Security Council Resolution 1644 of 15 December 2005 to include
investigations into terrorist attacks perpetrated in Lebanon since 1 October
2004.[37]
The Prime Minister of Lebanon had written to UN Secretary General Kofi Anan[38]
and requested the extension of the Commission’s work with the Lebanese
authorities. It seems he then wrote a further letter,[39]
we are not informed what prompted this, but requesting “the establishment
of a tribunal of an international character to try all those who are found
responsible for this terrorist crime and requesting… the mandate of
the Commission be expanded…to investigate the terrorist attacks that took
place in Lebanon since 1 October 2004.”[40]
As a result Resolution 1644 also requested the Secretary-General to explore
the matter of a Tribunal of International Character with the Lebanese
authorities.[41]
On 21 March 2006, the UN
Secretary-General, Kofi Anan reported to the Security Council on the
negotiations taking place between the UN and the Government of Lebanon
concerning the establishment of a tribunal.[42]
These were discussions between a UN legal and political affairs team[43]
with members of the Lebanese Government including the Prime Minister and the
President. The report details the form of tribunal which was under
consideration. It was believed that “the creation of an exclusively
international tribunal would remove Lebanese responsibility for seeing
justice done regarding a crime that primarily and significantly affected
Lebanon…a mixed tribunal would best balance the need for Lebanese and
international involvement in the work of the tribunal”.[44]
To establish such an institution would require an agreement between the
Lebanon and the UN,[45]
with the State providing the necessary national legislation to put it into
effect the aim being “for a smooth transition between the current
investigation and a future judicial mechanism.”[46]
The Security Council could also take “complementary measures to ensure
effectiveness and cooperation with the tribunal.”[47]
The technical assistance that
was needed to continue the work of UN IIIC was considerably expanded after
Resolution 1644. The third report of the UN IIIC dated 15 March 2006[48]
recorded the legal technical and analytical expertise that was now being
drawn upon by the Commission. Teams of experts were being utilised from
around the world to investigate and review the original investigation as
well as fourteen other terrorist attacks since 1 October 2004, of which nine
were after the withdrawal of Syrian troops from Lebanon and only one
predated the Hariri explosion.[49]
The new Commissioner, Serge
Brammertz, recorded in the third UN IIIC report that as a result of meetings
with Syrian representatives they had reached “a common understanding …of
the legal framework for their cooperation and of certain practical
modalities to facilitate the expeditious implementation of the Commission’s
request for assistance”. Security Council Resolution 1686 (2006)[50]
which followed this report and the fourth UN IIIC report of 10 June 2006[51]
is noticeably devoid of criticism of Syria concerning any lack
cooperation with the Commission. It is clear that at this time the
Commission and the State had now reached a satisfactory level of cooperation
in accordance with Syria’s international obligations. This also included
significant meetings between the President and Vice-President with the
Commissioner about which there had been a great number of prior
representations in the preceding months.[52]
This enhanced cooperation has continued between Syria and the UN IIIC so
that by the time of the fifth Commission report[53]
it was described by Mr. Brammertz as “continuing to be timely and
efficient”.[54]
The fifth UNIIIC report of 25
September 2006[55]
had taken place during a far more troublesome period for Beirut as the
Israeli bombardment of Lebanon had been taking place between 12 July and 14
August.[56]
This caused the UN IIIC to decamp to Cyprus and set up a new base for what
was now becoming a substantially sized body. This report records a budget
request had been made for a staff of 188 people and that 20 major
investigation and analysis projects were being undertaken on the Hariri case
alone, with the additional 14 other cases being investigated.[57]
Significantly within the report certain aspects of the case were being
prepared to an “evidential standard”[58]
as the UN IIIC tried to continue its work in discovering those responsible
for the crimes it was investigating.
Special Tribunal for Lebanon
Agreement was reached between
the Government of Lebanon and the UN on 13 November 2006, and drafts of a
Statute for a Special Tribunal and an Agreement between the parties were
forwarded by the UN Secretary General with his report to the Security
Council on 15 November.[59]
The matter did not remain there, as by a note verbale of 14 November 2005
the President of Lebanon[60]
challenged the decision of the Council of Lebanese Ministers to make a
binding agreement for the establishment of a Tribunal. Secretary–General
Kofi Anan has forwarded this document as well to the Security Council and
the issue awaits a decision. In the meantime demonstrations have taken place
in Beirut as the Special Tribunal has become a dividing line between the
political groups, whether they are western sympathisers or supporters of the
Arab world.
The Special Tribunal for
Lebanon represents a departure from the jurisdiction of the other
international courts and tribunals. Those courts and tribunals have had
jurisdiction over war crimes and crimes against humanity and some such as
the Sierra Leone Special Court included crimes under national laws.[61]
This court will be concerned exclusively with national offences being
terrorist acts, plain crimes of murder, assault, illicit associations and
failure to report crimes and offences.[62]
The Secretary-General’s report reveals consideration was given to
characterise the jurisdiction of the tribunal as being that of crimes
against humanity.[63]
It was believed that the further 14 attacks would be sufficient to establish
the necessary criteria of being widespread or systematic. Apparently
representations from the Security Council members dissuaded the authors of
the statute from that course. Not least of the problems would be that if the
alleged connected attacks were found by the Judges not to have been so
connected then they would fail to qualify as the characterised offence.
International or National
Tribunal?
The Secretary-General describes
the Special Tribunal as being neither a subsidiary organ of the UN nor part
of the Lebanese Court system.[64]
Consideration of the text on this matter may lead one to believe there are
contradictions in that position: “its composition is mixed with a
substantial international component; its standards of justice including due
process of law, are those applicable in all international or UN based
criminal jurisdictions; its rules of evidence and procedure are to be
inspired in part by reference materials reflecting the highest standards of
international criminal procedure…While in all of these respects the special
tribunal has international characteristics its subject matter jurisdiction
or the applicable law remain national in character, however.”[65]
The Agreement between the UN and Lebanon provides that it comes into force
on the day after the government notifies that the legal requirements for
entry into force have been complied with.[66]
Its seat will be outside Lebanon at a place to be decided.[67]
Although the tribunal may be established by treaty, it is the sovereignty of
Lebanon that has been extended to incorporate within its legal system the
tribunal. Otherwise there must be a doubt as to its ownership.
Jurisdiction
The jurisdiction of the
tribunal is against individuals and remains focused upon the Hariri
assassination, but if the tribunal finds that any other attacks between 1
October 2004 and 12 December 2005 “or any later date decided by the
parties and with the consent of the Security Council are connected in
accordance with the principles of criminal justice and are of a nature and
gravity similar to the attack of the 14 February 2005 it should also have
jurisdiction over persons responsible for those attacks”.[68]
It is difficult to imagine that a defence team would consent to the
inclusion of extra allegations against them and cause the temporal limit to
be extended beyond 12 December 2005.[69]
The extra criminal acts which may come within the jurisdiction of the court
were included to prevent any perception that “selective justice” may be
taking place.[70]
As a result of the killing of the politician Pierre Gemayel on 21 November
2006 the UN IIIC was requested by the Security Council to expand its
jurisdiction further to include that within its investigation.[71]
This crime would plainly be outside the jurisdiction of the Court unless the
grounds for agreement for its inclusion were met.
Applicable Law
The applicable law is
described, subject to the statute, as being “provisions of the Lebanese
Criminal Code relating to the prosecution and punishment of acts of
terrorism, crimes and offences against life and personal integrity illicit
associations and failure to report crimes and offences, including the rules
regarding the material elements of a crime, criminal participation and
conspiracy and articles 6 and 7 of the Lebanese law of 11 January 1958
increasing the penalties for sedition, civil war and interfaith struggle”.[72]
The 1958 law, increased penalties for these offences and imposed the death
penalty. However, the Statute explicitly states in Article 24(1) that the
maximum penalty is imprisonment for life or a specified number of years. The
Lebanese characteristic of the crimes to be charged is clear. It is
interesting to note how relatively trivial some of the charges may be “illicit
associations and failure to report crimes and offences”. This is not
generally the stuff of an international court at all and tends to show
through the extent of these crimes just how nationally fixed this tribunal
is in fact. But it may be a strategy to include small fish in cases
involving bigger fish and seek to turn them into insider witnesses for the
prosecution.
Individual Criminal
Responsibility
Individual criminal
responsibility within Article 3 of the statute is founded upon committing,
participating as an accomplice, or organising and directing the commission
of a crime.[73]
Intentionally contributing to the commission of a crime by a group of
persons acting with a common purpose and with the aim of furthering the
general criminal activity or purpose of the group or in the knowledge of the
intention of the group to commit the crime, also qualifies as a form of
aiding and abetting.[74]
It is the inclusion of a form of superior responsibility drawn from Article
28 of the ICC statute that is the most troubling issue.[75]
A superior may be criminally liable, if he has failed to exercise control
properly over subordinates and knew, or consciously disregarded information
that clearly indicated they were, or were about to, commit crimes within his
effective control and he failed to take all necessary measures to prevent
the commission of the offence, or report it for investigation and
prosecution. These crimes are derived from activities which are
within the effective control and responsibility of the superior.
This form of criminal liability
does not arise from the law of Lebanon existing over the period 1 October
2004 – 12 December 2005. The ICC statute[76]
expressly includes the principle of “nullum crimen sine lege”[77]
aware that its forms of criminal liability may not be retrospective. The
Secretary-General’s statement in the report “its subject matter
jurisdiction or the applicable law remain national in character” must
open up the prospect of a challenge to any charges brought under that head
as being wrong in principle. Article 1 of the Lebanese Criminal Code also
reflects expressly the universal principle of law “nullum crimen sine
lege”.
It is also to be noted that no
provision for the criminal responsibility of a Head of State or Government
or other senior government official has been inserted into the statute. The
international tribunals have expressly incorporated that jurisdiction within
their statutes and the national characteristics of this tribunal must
preclude the extension of liability to those officials.[78]
Primacy of the Special
Tribunal
The relationships between the
Special Tribunal and the national organs and authorities of Lebanon have
been defined specifically in the statute. There is a concurrent jurisdiction
of the Special Tribunal with the national courts of Lebanon, but the
tribunal has primacy over the national courts on matters within its
jurisdiction.[79]
Evidence collected by the Lebanese judicial authorities is required to be
handed over to the Special Tribunal when it comes into operation.[80]
The national judicial authorities of Lebanon must defer to the competence of
the tribunal in respect of any investigations or proceedings undertaken by
them.
[81]
Article 5 of the statute
includes a non bis in idem provision, that the national courts
of Lebanon may not try any person for acts which have already been tried by
the tribunal. The Special Tribunal may try any person previously tried by a
national court if those proceedings were not impartial, independent or were
designed to shield an accused from criminal responsibility for crimes within
the jurisdiction of the tribunal. The article uses the phrase a national
court, thereby not restricting the applicability of the non bis in
idem rule to Lebanese trials and by implication it must recognise valid
trials held in another jurisdiction. Article 6 prevents the use of amnesty
as a means of defeating the jurisdiction of the court.
The evidence that has been
collected through the investigations of the Lebanese authorities and the UN
IIIC prior to the establishment of the Special Tribunal is to be received by
the tribunal and then it must determine the weight to be given that
evidence.[82]
The Judges must decide upon the admissibility of that evidence according to
international standards.[83]
The Organs of the Court
The familiar organs of the
Court being the Judges Chamber, Prosecutor, Registry are now added to with a
specific office for the Defence.[84]
This is a departure from the usual composition of international or special
tribunals[85]
but the need for such an office has evolved as a means of ensuring equality
of arms with the prosecution inside the institution. The defence
administration and support will be from here and a Head of Defence Office
appointed by the UN Secretary-General in consultation with the President of
the Special Tribunal.[86]
The office will contain the list of Defence counsel to be assigned to cases
as well as one or more public defenders available to assist counsel in
research and preparation and who may be needed to deal with certain
proceedings before the chambers. The Prosecutor is required to be
independent in his position and free of influence and “must not seek or
receive instructions from any government or other source”.[87]
The Deputy Prosecutor is to be from Lebanon.[88]
The Judges Chambers will
consist of an international pre-trial Judge, a trial chamber of 3 Judges one
of whom would be Lebanese and 2 international and an appeals chamber of 5
Judges of whom 2 would be Lebanese and 3 international.[89]
There are also alternate Judges, one from each source, to take part in the
proceedings if a Judge could not continue.[90]
The Judges may decide in any given case in the proceedings that one or two
of the three working languages for the tribunal of English, Arabic, or
French may be used.[91]
Judgements will be by majority decision and accompanied in writing with
reasons.[92]
The pre-trial Judge will be
responsible for the preliminary case management. He or she is required to
review the Prosecutor’s indictment against an Accused and to dismiss it if
no prima facie case is established and issue orders and warrants for arrest
or transfer and other orders in the investigation and preparation of a fair
and expeditious trial.[93]
The requirement of expedition will have to be balanced against the defence
needs for pre-trial preparation bearing in mind the extended investigation
and scale of resources that have been available to the investigations,
effectively acting for the Prosecutor before the coming into being of any
cases. The emphasis on expedition is stressed within Article 21 “Powers
of
The Chambers”,
here the Special Tribunal is expressly required to “confine the trial,
appellate and review proceedings to an expeditious hearing of the issues
raised by the charges, or the grounds for appeal or review.”[94]
It shall also “take strict measures to prevent any action that may cause
unreasonable delay”. This provision could see the striking out of
charges if delay was unreasonably being caused by the Prosecutor’s
presentation of a case or even the defence being prevented from the
production of evidence if it was not soon enough in a trial ready state.
An Appeals Chamber will hear
appeals by both the Accused and the Prosecutor on appeals against “an
error on a question of law invalidating the decision” and “an
error of fact that has occasioned a miscarriage of justice.”[95]
It will also review proceedings from both the Accused and the Prosecutor
where a new fact has been discovered that was not known at the time of the
earlier proceedings and that “could have been a decisive factor in
reaching the decision”.[96]
Rules of Evidence
The Judges after taking office
are required to create their own Rules of Evidence and Procedure for the
conduct of all proceedings and in so doing “will be guided as appropriate
by the Lebanese Code of Criminal Procedure as well as by other reference
materials reflecting the highest standards of international criminal
procedure, with a view to ensuring a fair and expeditious trial”.[97]
It is interesting that there is no requirement for the Court to have sole
regard to the rules of evidence or practice at the international tribunals
elsewhere in the world but to take notice of the provisions within Lebanese
law. The development of rules of evidence by the Judges is now common
practice[98]
in these courts and the general provisions within Article 21 of the Statute
for the Special Tribunal reflect the general rules adopted by the Judges of
the International Criminal Tribunal for the Former Yugoslavia, although
these are silent upon the law of the subject state.[99]
In the case of their being no provision within the Rules of Procedure and
Evidence “ a Chamber shall apply rules of evidence that will best favour
a fair determination of the matter before it and are consonant with the
spirit of the Statute and the general principles of law”.[100]
The Statute prescribes that “a Chamber may admit any relevant evidence it
deems to have probative value and exclude evidence if its probative value is
substantially outweighed by the need to have a fair trial”.[101]
The evidence may be received orally, or where the interests of justice
allow, in written form.[102]
Rights of the Defence
The rights of an accused are
consistent with the provisions now recognised by all international courts.
In the investigation they are: the right against self-incrimination; the
right of silence; to be cautioned before questioning; to have legal
assistance; to have counsel present when questioned and interpretation if
necessary.[103]
In the proceedings they are: rights of equality; a fair and public hearing;
the presumption of innocence; the burden of proof on the prosecution; the
standard of proof to be that of beyond reasonable doubt; to be informed
promptly in a language he understands the nature and cause of the charges;
to have adequate time and facilities for the preparation of the defence; to
have counsel of own choice; trial without undue delay; right to
self-representation or assigned counsel of their own choosing if without
means to fund counsel; to be present at the examination of witnesses; to
examine evidence; to have interpreters; the right not to testify; the right
to make relevant statements at any stage in the proceedings.
[104]
The Civil Code influence
upon the proceedings
The Court procedures reflect a
greater influence from the inquisitorial systems of justice which are the
basis of the Lebanese judicial system. The questioning of witnesses “unless
otherwise decided by the Trial Chamber in the interests of justice”
shall first be by the Presiding Judge, followed by the other Judges, then
the Prosecutor and lastly the defence.[105]
This procedure does not sit comfortably with the previously mentioned
defence rights which give an accused the right to examine witnesses on his
or her behalf “under the same conditions as witnesses against him or her”.[106]
The Prosecutor will be examining his witnesses before the accused and parity
of position should enable the defence to question their own witnesses before
the Prosecutor. This no doubt will necessitate an “interests of justice
application” under article 20(2). The Trial Chamber may also call additional
witnesses and order the production of additional evidence.[107]
Victims are accorded rights
within the proceedings so that “their views and concerns” may be
presented and considered at stages of the proceedings determined to be
appropriate by the pre-trial Judge or the Trial Chamber.[108]
The manner of presentation will be controlled so that it is “not
prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial.” Legal representatives may be used by the victims if
deemed appropriate by the tribunal. Victims, or those claiming through
victims will be able to obtain compensation in national courts and findings
of the Special Tribunal “shall be final and binding as to the criminal
responsibility of the convicted person”.[109]
It is the permission to hold
trials in absentia, which may be the most revolutionary of the civil code
concepts to be introduced into the Special Tribunal.[110]
This would be in circumstances where an accused has not been handed over to
the court for trial by a state, or has absconded or could not be found
despite reasonable attempts to give notice. Provision is made for the
appointment of assigned counsel or an absent defendant to take part in the
proceedings on behalf of the absent accused.[111]
Without such counsel being appointed, an absent accused if brought before
the court, could either accept any verdict previously given or have the
right to be retried in their presence.[112]
The right of an accused to make
relevant statements in the proceedings at any stage is another influence
from the civil code systems of law.[113]
This form of procedure has gradually been developing within the ad hoc
tribunals and the judges decide for themselves what weight to attach to such
passages of evidence.
Steven Kay QC
9 Bedford Row,
London WC1R 4AZ
0207 489 2727
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[1]Resigned as Prime Minister
of Lebanon on 4 October 2004
[2] Fifth Report of UN IIIC
S/2006/760 dated 25 September 2006 para 20
[3] Report of the Fact-Finding
Mission to Lebanon inquiring into the causes, circumstances and the
consequences of the assassination of former Prime Minister Rafik
Hariri dated 24 March 2005
[4] Established pursuant to
S/RES/1595 of 2005 dated 7 April 2005
[5] Report of the Secretary
General on the establishment of a Special Tribunal for Lebanon
S/2006/893 15 November 2006
[6] S/PRST/2005/4
[7] “to report urgently on
the circumstances, causes and consequences of this terrorist act”.
[8] S/RES/1566 (2004);
S/RES/1373 (2001)
[9] Report of the Fact-Finding
Mission to Lebanon inquiring into the causes, circumstances and the
consequences of the assassination of former Prime Minister Rafik
Hariri dated 24 March 2005
[10] Para. 15
[11] Report of the
International Independent Investigation Commission established
pursuant to Security Council resolutions 1595 (2005), 1636 (2005),
1644 (2005) dated 12 December 2006. Para 27 the report concludes the
explosive device was triggered directly by someone in the van or
immediately in front of it. This would be a suicide bomber.
[12] Emphasis supplied
[13] The Executive Summary ends
with these words:” Improving the prospects of peace and security
in the region would offer a more solid ground for restoring normalcy
in Lebanon”.
[14] A German Investigator
Detlev Mehlis was subsequently appointed as the Commisioner in
charge
[15] S/RES/1595 para 8
[16] S/RES/1595 para 1
[17] S/RES/1595 para 2
[18] S/RES/1595 para 7
[19] S/RES/1595 para 6
[20] Report of the
International Independent Investigation Commission established
pursuant to Security Council resolution 1595 (2005)
[21] Report para 223
[22] They were to be included
within the mandate of the Commission in S/RES/1644 (2005)
[23] Report para 216, 222
[24] Report 222
[25] S/RES/1595 (2005);
S/RES/1373 (2001); S/RES/ 1566 (2004)
[26] S/RES/1636 (2005) para
3(a)
[27] S/RES/1636 (2005) para
3(a)
[28] A/RES/60/158 – 28 February
2006
[29] S/RES/1636 (2005) para 6
[30] S/RES/1636 (2005) para 10
[31] S/RES/1636 (2005) para
11(a)
[32] S/RES/1636 (2005) para
11(b) as required of Lebanon in S/RES/1595 (2005) para 3
[34] Legislative Decree No. 96,
29 October 2005
[35] Second Report of the
International Independent Investigation Commission Established
Pursuant to Security Council Resolutions 1595 and 1636 (2005) dated
10 December 2005, Beirut
[36] Report paras 77-87
[37] S/RES/1644 (2005)
[38] 5 December 2005
[39] 13 December 2005
[40] S/RES/1644 (2005)
[41] S/RES/1644 (2005) para 6
[42] Report of the
Secretary-General pursuant to paragraph 6 of resolution 1644 (2005)
dated 21 March 2006 S/2006/176
[43] Headed by
Under-Secretary-General for legal affairs, Nicholas Michel
[44] Report para 5
[45] Report para 6
[46] Report 21/3/06 para. 12
[47] Report para 6
[48] Third Report of the
International Independent Investigation Commission pursuant to
Security Council Resolutions 1595 (2005), 1636 (2005), 1644 (2005)
dated 15 March 2006 Beirut.
[49] Report para 55
[50] S/RES/1686 15 June 2006
[51] Fourth Report of the
International Independent Investigation Commission pursuant to
Security Council Resolutions 1595 (2005), 1636 (2005), 1644 (2005)
dated 10 June 2006 Beirut.
[52] Report para 99
[53] Fifth report of the
International Independent Investigation Commission established
pursuant to Security Council resolutions 1595 (2005), 1636 (2005),
and 1644 (2005) dated 25 September Beirut
[54] Security Council meeting
29 September 2006 S/PV.5539
[55] Fifth report of the
International Independent Investigation Commission established
pursuant to Security Council resolutions 1595 (2005), 1636 (2005),
and 1644 (2005) dated 25 September Beirut
[56] S/RES/1701 (2006)
[57] Report para 94
[58] Report paras 56, 99, 101
[59] Report of the Secretary
General on the establishment of a Special Tribunal for Lebanon
S/2006/893 15 November 2006
[60] President Lahoud
[61] International Criminal
Tribunal for the Former Yugoslavia; International Criminal Tribunal
for Rwanda; The Sierra Leone Special Court; East Timor; also
consider the jurisdiction of the International Criminal Court.
[62] Statute Article 2
[63] Report para 23
[64] Report of the Secretary
General on the establishment of a Special Tribunal for Lebanon
S/2006/893 15 November 2006 para 6
[65] Report para 7 see Statute
Article 28.2
[66] Agreement Article 19 (1)
[67] Agreement Article 8
[68] Statute Article 1
[69] Statute Article 1 provides
some guidance upon the connecting factors.
[70] Report para 17
[71] S/2006/915. Sixth Report
of the International Independent Investigation Commission
established pursuant to Security Council resolutions 1595 (2005),
1636 (2005), and 1644 (2005) dated - para 80 onwards
[72] Statute Article 2
[73] Statute Article 3.1(a)
[74] Statute Article 3.1(b)
[75] Statute Article 3.2
[76] Treaty of Rome
[77] ICC Statute Article 22
[78] Special Court Statute for
Sierra Leone Article 6(2); International Criminal Tribunal for the
Former Yugoslavia Article 7(2).
[79] Statute article 4
[80] Statute Article 4(2)
[81] Statute Article 4(2), (3)
[82] Statute Article 19
[83] Statute Article 19
[84] Statute Article 7
[85] Sierra Leone Special Court
Statute – Article 11; International Criminal Tribunal for the Former
Yugoslavia - Article 11
[86] Statute Article 13
[87] Statute Article 11(2)
[88] Statute Article 11(4)
[89] Statute Article 8
[90] The death of Judge May in
the trial of Slobodan Milosevic precipitated the need to consider
how to deal with this problem
[91] Statute Article 14
[92] Statute Article 23
[93] Statute Article 18
[94] Statute Article 21.1
[95] Statute Article 26.1
[96] Statute Article 27
[97] Statute Article 28
[98] Statute ICTY Article 15
[99] ICTY Rules of Procedure
and Evidence – Rule 89
[100] Statute Article 21.4
[101] Statute Article 21.2
[102] Statute Article 21.3
[103] Statute Article 15
[104] Statute Article 16
[105] Statute Article 20(2)
[106] Statute Article 16(4)(e).
[107] Statute Article 20.3
[108] Statute Article 17
[109] Statute Article 25.4
[110] Statute Article 22
[111] Statute Article 22(2)
[112] Statute Article 22(3)
[113] Statute Article 16(5)
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