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The Next Step in History-Writing through Criminal Law: Exactly How Tailor-Made Is the Special Tribunal for Lebanon?

Published online by Cambridge University Press:  01 June 2008

BJÖRN ELBERLING
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Abstract

This article proceeds from two basic assumptions: that international criminal courts are engaged in writing history, and that this may influence the legal framework in which they operate. Against this background, the article takes a closer look at the Statute of the Special Tribunal for Lebanon in order to investigate allegations that the Tribunal has been tailor-made to further a certain view of recent Lebanese history.

Keywords

European Convention on Human Rightshistoriographyinternational criminal procedureSpecial Tribunal for Lebanontrials in absentia

Information

Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 21 , Issue 2 , June 2008 , pp. 529 - 538
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

1. Introduction

That international tribunals engage in the process of writing history is widely accepted. First of all, it is implicit in the rationales for setting up such tribunals, such as the goal of criminal trials leading to ‘national reconciliation’Footnote 1 – a goal which very probably can only be reached on the basis of truth-finding and thus history-writing.Footnote 2 The historiographic function of international criminal trials has also been openly acknowledged by actors within the tribunals themselves; in his opening statement in the so-called Rule 61 proceedings against Dragan Nikolić, the Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) stressed that

the evidence [produced in these proceedings] will constitute a permanent judicial record for all time of the horrendous war crimes that have been committed in the former Yugoslavia. That public record will assist in attributing guilt to individuals and be an important tool in avoiding the attribution of collective guilt to any nation or ethnic group.Footnote 3

Similarly, in the proceedings against Miroslav Deronjić, which were resolved on the basis of a guilty plea by the accused, the Chamber found that Deronjić should receive credit for his plea as he had ‘helped . . . to protect against any kind of revisionism’.Footnote 4 Finally, while academic commentators may disagree whether tribunals should be writing history, there is widespread agreement that they do.Footnote 5

This historiographic aspect of international criminal trials may, of course, influence the law applied in such trials. Such influence may concern the substantive law, as it did in the French trials of German and Vichy war criminals,Footnote 6 where the definition of crimes against humanity kept changing in tune with the needs of dealing with Nazi occupation and collaboration while laying down a generally positive picture of recent French history and also avoiding the topic of crimes committed by French troops in Algeria.Footnote 7 The influence may also be on the procedural level – Martti Koskenniemi has argued that international tribunals, engaging in history-writing and faced with a defendant who will likely want to tell a different (hi)story, are always tempted to limit the defendant's role in the trial, to the point of conducting ‘show trials’.Footnote 8 Structurally, historiographic considerations may influence the tribunals' interpretation of the applicable legal texts, but may also be detectable in the legal texts themselves.

At the same time, many international criminal tribunals have been accused of being partial in their coverage of the conflict and of writing the history that some other party wanted them to write – to give a few examples, the ICTY has been accused of having an anti-Serb bias and described as a propaganda arm of NATO,Footnote 9 the International Criminal Tribunal for Rwanda (ICTR) has been accused of neglecting allegations of crimes committed by the Rwandan Patriotic Forces,Footnote 10 and the International Criminal Court (ICC) has been criticized for handling the situations in both Uganda and the Democratic Republic of the Congo in a way that neglects the role of the governments.Footnote 11 Similar accusations of selectivity have been levelled against the Special Tribunal for Lebanon (STL),Footnote 12 based largely on two factors.

First, even in the short period since October 2004, Lebanon has experienced a wide range of incidents which will make the history books: the assassinations of the former prime minister, Rafik Hariri, and others; the ‘Cedar Revolution’ leading to the ousting of Syrian troops; the 2006 Israeli–Lebanese conflict; mass protests by supporters of Hezbollah, Amal, and others against the government; and fighting between the Lebanese army and Fatah al-Islam in and near Palestinian refugee camps. All these incidents are arguably interlinked and many of them were accompanied by civilian casualties and allegations of serious crimes.Footnote 13 Nonetheless, the Tribunal's task will be to deal with only one of these aspects, an aspect moreover which is not the leading one in terms of casualties. This is, in other words, an allegation of undue selectivity in setting the mandate of the Tribunal.Footnote 14

Second, the Tribunal was set up at a point in time when investigations into these crimes were already well under way and pointed to the involvement of high-ranking Syrian officials,Footnote 15 while at the same time the situation on the ground could be described as a struggle between Syria and certain Western statesFootnote 16 over the role of future ‘protector’ of Lebanon.Footnote 17 In this situation many fear that the historical facts to be established by the Tribunal have, to a large extent, already been determined.Footnote 18

Given the two assumptions stated above – that international criminal trials have a historiographic aspect and that this influences their legal framework – such allegations of selectivity and predetermined outcomes should be traceable to the rules applicable to the STL. And a closer look at certain provisions of the Tribunal's Statute (StSTL)Footnote 19 indeed shows the influence of a historiographic mission of the type just described. As a first step, such influence can be shown to extend to norms on jurisdiction and substantive crimes – that is, those provisions which delimit the situation to be dealt with by the Tribunal and which one would thus most clearly expect to be so influenced. In addition, influences of the historiographic mission, albeit more subtle ones, are also traceable in the norms on procedure, in this case Article 22 of the STL Statute, on trials in absentia.

2. Surface-level influences: jurisdiction, crimes, and modes of liability

2.1. Article 1 of the Statute of the Special Tribunal for Lebanon: jurisdiction ratione materiae and temporis

Finding the right time period for the temporal jurisdiction of international tribunals can be quite tricky; choosing dates which exclude parts of the conflict may lead to allegations of bias, while choosing dates referring to specific crime-relevant events may be seen as an implicit comment on the events with which the Tribunal will deal. When the ad hoc tribunals were established, this problem was solved by choosing rather neutral dates: the open-ended temporal jurisdiction of the ICTY begins on 1 January 1991,Footnote 20 even though large-scale fighting only broke out in June that year. And while the Rwandan genocide was committed over a period of roughly one hundred days between April and July 1994, the temporal jurisdiction of the ICTR covers the whole calendar year.Footnote 21 The temporal jurisdiction of the SCSL, finally, begins on 30 November 1996,Footnote 22 the date not of any specific crimes, but of the Abidjan Peace Accord – that is, of an (ultimately unsuccessful) attempt to end the conflict and the atrocities.

In all instances, the tribunal's jurisdiction covered all Statute crimes committed on the relevant territory during the relevant time period.Footnote 23

The StSTL follows a different track: it covers, in the first place, a single incident, namely ‘the attack of 14 February resulting in the death of . . . Hariri’.Footnote 24 In addition the Tribunal has jurisdiction over other attacks under two conditions: the first is that they were committed between 1 October 2004 and 12 December 2005 – both dates on which specific bombing attacks occurred. Despite the still unstable situation in Lebanon, the jurisdiction of the STL is thus not open-ended. It may, however, be extended on the agreement of the Lebanese government and the United Nations and with the consent of the Security Council. The parties may thus freely decide, based on whatever reasons, whether or not to bring future crimes into the purview of the Tribunal.

Second, and more importantly, Article 1 of the StSTL limits the Tribunal's jurisdiction only to certain acts within that period, regardless of whether or not other crimes may have been committed: the Tribunal may only deal with acts which are ‘connected in accordance with the principles of criminal justice’ to the Hariri assassination and are of a similar nature and gravity. Elements for determining whether attacks are so connected include ‘criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators’.Footnote 25

Of course, the wording in this regard is rather open, such that the precise extent of the jurisdiction ratione materiae will depend on its interpretation by the STL judges. Nonetheless, the criteria that Article 1 foresees do fit the presumed view of what happened quite well: a series of attacks against pro-Western or anti-Syrian public figures (nature of victims targeted) with the goal of safeguarding the Syrian influence in Lebanon (motive or purpose), carried out by bombing attacks (modus operandi), and backed by a group of influential Syrian and pro-Syrian Lebanese officials (perpetrators).Footnote 26 At the same time, Article 1 excludes the possibility that the Special Tribunal could deal with possible crimes committed by pro-Western forces.

In other words, if the goal in establishing the Tribunal was to further the interests of Western states in the area by selectively prosecuting certain crimes and implicating Syria and its allies, Article 1 of the StSTL could hardly be more perfectly formulated to achieve this goal.

2.2. Articles 2 and 3 of the Statute: substantive crimes and modes of liability

The STL also differs from other international criminal tribunals in that its subject-matter jurisdiction encompasses solely crimes under national law, namely certain provisions of the Lebanese Criminal Code as listed in Article 2 of the StSTL.Footnote 27 That the list of provisions includes not only ‘acts of terrorism, crimes and offences against life and personal integrity’, but also ‘illicit associations and failure to report crimes and offences’Footnote 28 and ‘rules regarding . . . conspiracy’, shows that Article 2 was formulated against the background of the findings of the Independent International Investigation Commission.Footnote 29 The fact that the STL deals solely with national crimes makes it unique among international criminal tribunals – while some other tribunals also dealt with crimes under national law, these were always in addition to traditionally international crimes such as war crimes, crimes against humanity, or genocide.Footnote 30

While the substantive crimes are thus solely national ones, the provision on modes of criminal liability, Article 3 of the StSTL, contains modes of liability normally only known in international criminal law,Footnote 31 above all superior responsibility and the doctrine of joint criminal enterprise (JCE), including the so-called common purpose variant of JCE liability.Footnote 32 Moreover, as Marko Milanovic notes,Footnote 33 the wording of the joint criminal enterprise doctrine in Article 3 is broader than that applicable before other international criminal courts; whereas the Rome Statute, for example, requires that the defendant act ‘with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court’,Footnote 34 the latter requirement is absent from the StSTL. In other words, Article 3 of the StSTL applies to national crimes a form of criminal liability that is not only alien to national criminal law, but also may even be broader than the already broad form of liability applied by other international tribunals.Footnote 35 While the precise scope of Article 3(1)(b) of the StSTL remains to be determined, it is clear that this norm makes it rather easy to charge high-ranking defendants under JCE for broad plans such as ‘maintaining Syrian influence in Lebanon’,Footnote 36 provided that these plans can somehow be linked to criminal behaviour.

The same is true of Article 3(2) of the StSTL on superior responsibility – while the scope of this provision was scaled down in the negotiation process by following the wording of the Rome Statute rather than that of the SCSL Statute,Footnote 37 the fact remains that this provision is still far broader than those applicable in national systems. This international form of command responsibility allows charging high-ranking Syrian officials who were not actively involved in the assassination plot, but who failed to stop their subordinates from carrying out the said plan – something which probably would not have been possible under forms of liability as contained in national criminal law.Footnote 38

The Statute thus combines domestic crimes chosen according to a specific view of the events – involvement of a number of people in a conspiracy, knowledge of superiors who failed to report these plans – with forms of criminal liability derived from international law which will make it relatively easy to convict high-ranking defendants far removed from the actual attacks. Quite apart from the fact that this combination may well violate the nulla poena sine lege principle,Footnote 39 this again shows that the Tribunal is very well situated for establishing a criminal conspiracy of high-ranking Syrian officials trying to safeguard Syrian influence in Lebanon. Again, if the goal of the Tribunal is to selectively write parts of the history of the conflict in Lebanon in such a way as to further Western interests by implicating Syria, by virtue of Articles 2 and 3 of its Statute it is well equipped to accomplish this task.

3. Less obvious influences: Article 22 of the Statute on trials in absentia

So far, I have dealt with provisions which are rather obvious targets for the influence of historiographic considerations – after all, the norms on jurisdiction and substantive crimes demarcate what the court will be able to deal with in the first place – provisions, moreover, which are influenced in a rather straightforward manner. In the following I wish to show that such influence may also arise with regard to more technical provisions and that it may show itself in more subtle ways. I will do this by examining Article 22 of the StSTL, allowing trials in the absence of the defendant. Protestations to the contrary notwithstanding, there are situations in which this provision is arguably in conflict with human rights provisions, and, more importantly, the ways in which such conflicts may arise show that the article was formulated having in mind a certain view of the history that the Tribunal was expected to write.

Article 22 of the StSTL presents a novelty in international criminal law – some other tribunals may, in specific circumstances, conduct certain proceedings in absentia,Footnote 40 but none of them may conduct full trials of defendants who could not be brought before them. The StSTL, on the other hand, does allow a full trial in the absence of the defendant in a number of cases. Two of these cases are not particularly surprising; they concern express written waiver of the right to be present, as well as flight.Footnote 41 The third reason for trials in absentia, however, is a bit more unusual; it covers defendants who ‘ha[ve] not been handed over to the Tribunal by the State authorities concerned’.Footnote 42 This provision can be explained by the fact that the STL will likely deal with only one set of cases in the form of joint trialsFootnote 43 and would thus be hit much harder than other tribunals by refusal of state co-operation in gaining custody over defendants.

Article 22(2) deals with the preconditions for trying a defendant in her absence: she must have been given notice of the indictment, through notification or service in person or otherwise ‘through publication in the media or communication to the State of residence or nationality’.Footnote 44 Furthermore, the defendant must be represented by counsel, either chosen by her or, if she fails to do so, assigned by the Tribunal's Defence Office.Footnote 45 Article 22(3) of the StSTL states that if in absentia proceedings result in conviction, the defendant is granted the option of a retrial in her presence. No retrial is granted, however, if the defendant had been represented by counsel of her choice.

In his report on the Statute, the Secretary-General acknowledged that these provisions are rather broad, especially when compared with those of other international tribunals. He explained this difference by reference to the fact that the STL was largely based on the continental model of criminal procedure in place in Lebanon, which allows in absentia proceedings to quite a large extent.Footnote 46 He also stated that the Statute ‘takes account of the relevant case law of the European Court of Human Rights (ECHR), which determined the regularity of trials in absentia in full respect for the rights of the accused’.Footnote 47 The view that Article 22 is in conformity with human rights law also seems to be the majority view in the literature on the STL so far,Footnote 48 and in fact human rights law does generally allow in absentia proceedings in circumstances similar to those described in Article 22.

There are, however, certain cases at the margins where it is highly doubtful whether Article 22 is actually in conformity with the right to be tried in one's presence, as exemplified by the Strasbourg jurisprudence on Article 6 of the ECHRFootnote 49.

First of all, Article 6 of the ECHR allows trials in absentia only if the defendant chooses not to attend the trial – not, however, if her absence is due to circumstances beyond her control.Footnote 50 This requirement may be violated by Article 22(1)(b) of the StSTL regarding defendants who have ‘not been handed over to the Tribunal by the State authorities concerned’. It is certainly likely that a state refusing to hand over a defendant does so with the consent of the defendant or even at her express wish. However, a case may also arise where the state prevents a defendant who is willing to appear before the Tribunal from doing so, for example because it fears that evidence presented at such a trial may lead to the state appearing in a bad light. Article 22(1)(b) does seem to allow a trial in absentia in such cases, even though the defendant's absence would be due to reasons beyond her control.

A similar problem may arise concerning notice to the defendant: Article 22(2)(a) allows the Tribunal to discharge its duty of notification by way of communication to the state of residence or nationality. While one would ordinarily expect the state to pass on such notice to the defendant, it is by no means certain that this will happen. Similarly, publication of the indictment in the media – another way in which the Tribunal may discharge its duty under Article 22(2)(a) – is not guaranteed to lead to actual knowledge on the part of the defendant.Footnote 51 Article 6 of the ECHR, however, requires that the defendant have actual knowledge of the proceedings and that this knowledge be based on direct notification of the defendant.Footnote 52 Notification by indirect procedures not certain to reach the defendant, as foreseen in the StSTL,Footnote 53 does not satisfy the requirements of Article 6.

Finally, the flat refusal of retrials to defendants who have been represented by counsel of their choiceFootnote 54 may also clash with the requirements of Article 6; under Strasbourg jurisprudence, even defendants who have been represented by counsel of their choice must be granted a retrial if they can show good cause for their absence.Footnote 55

As stated above, most of these problems concern cases at the margins of Article 22 which may never actually arise. Also, the STL judges may well bring the article fully in compliance with human rights law by laying down more stringent requirements in the Rules of Procedure and Evidence or by interpreting Article 22 narrowly. The fact remains, however, that the Statute as laid down allows an interpretation violating the right to be present at one's trial.

Finally, and most importantly, two of the specific respects in which the Statute goes beyond this right may be explained as the result of a predetermination of state involvement in the crimes at issue. Under the theory that defendants and their host state are colluding in trying to undermine the STL, it is unlikely that a violation of the right to presence will occur even under Article 22 as it is laid down. First of all, the power to conduct in absentia proceedings in all instances where a defendant is not handed over by the state concerned seems to presuppose that where a state does not hand over the defendant, it will do so with the consent of the defendant. Similarly, the rule that a communication to the state suffices to discharge the duty to notify the defendant of the indictment seems to rest on the assumption that the state will then notify the defendant with whom it shares a common interest in undermining the Tribunal.

A final point: while the Statute contains such broad provisions on in absentia proceedings, it does not contain any obligations for states (other than Lebanon) actually to assist in bringing defendants into the STL's custody.Footnote 56 This again shows that the general focus of the Tribunal's work is not on dealing with individual defendants, but on establishing certain events for the history books.

Meanwhile, the norm meant to enable the Tribunal to fulfil this task shows a certain predetermination of what the Tribunal is meant to establish: Article 22 is based on an assumption that defendants and their home states will be colluding in refusing to co-operate with the Tribunal. From this assumption, of course, it is but a small step to a further underlying assumption, namely that of state involvement already in the crimes under review.

The historiographic mission of the StSTL can thus be shown to influence the wording of the StSTL not only in a rather obvious, goal-determined manner (Arts. 1–3), but also in a more subtle manner, more akin to a background assumption in formulating the specifics (Art. 22).

4. Conclusion

While there are several explanations for certain choices made in setting up the STL, a close reading of the Statute as a whole tends to strengthen the suspicions voiced by many: that the STL will be dealing selectively with one of the many aspects of the turbulent recent history of Lebanon, and some provisions of its Statute can be explained as being the result of certain expectations as to the material outcome of the Tribunal's deliberations on this aspect.

Whether or not one considers the advent of such tailor-made criminal proceedings to be a development to be welcomed may depend on one's general view of the raison d'être of international criminal justice in general. One thing is certain, however: this is far removed from the international criminal justice movement's rallying cry of ‘putting an end to impunity’ for serious crimes regardless of where, when, and by whom they are committed.

References

1. See for Rwanda UN Security Council Resolution 955 (1994), UN Doc. S/RES/955 (1994); and for Sierra Leone UN Security Council Resolution 1351 (2000), UN Doc. S/RES/1351 (2000). The goal of reconciliation was not explicitly stated in UN Security Council Resolution 827 (1993), UN Doc. S/RES/827 (1993), on the ICTY, but seems to have been accepted by the Tribunal nonetheless, as shown inter alia by the decisions referenced infra note 2.

2. See, e.g., The Prosecutor v. Dražen Erdemović, Sentencing Judgement, Case No. IT-96-22, 5 March 1998, para. 21: ‘Discovering the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the healing process’ (emphasis added). See similarly The Prosecutor v. Dragan Nikolić, Sentencing Judgement, Case No. IT-94-2, 18 December 2003, para. 3; The Prosecutor v. Miroslav Deronjić, Sentencing Judgement, Case No. IT-02–61, 30 March 2004, para. 3; The Prosecutor v. Joseph Nzabirinda, Sentencing Judgement, Case No. ICTR-2001-77, 23 February 2007, para. 71.

3. The Prosecutor v. Dragan Nikolić, Case No. IT-94-2, Transcript of 9 October 1995, at 59.

4. Deronjić Judgement, supra note 2, para. 3. See also paras. 241, 256–260 of the same judgment. Generally on guilty pleas as conduits for both truth-finding and ultimately reconciliation, see also The Prosecutor v. Biljana Plavšić, Sentencing Judgement, Case IT-00-39&40, 27 February 2003, paras. 66–81.

5. See the many references in R. A. Wilson, ‘Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia’, (2005) 27 Human Rights Quarterly 908, at 909–22. An early warning that courts should not engage in historiography as this might endanger their primary role of pronouncing on the guilt or innocence of the defendant came from Hannah Arendt (Eichmann in Jerusalem – A Report on the Banality of Evil (1963), 253).

6. While these trials were conducted before national courts, they, too, concerned systemic criminality and in this respect were endowed with a historiographic element similar to trials before international courts.

7. A more detailed consideration of this topic would go beyond the scope of this paper – readers are referred to, e.g., M. Tigar, S. E. Casey, I. Giordani, and S. Mardemootoo, ‘Paul Touvier and the Crime against Humanity’, (1995) 30 Texas International Law Journal 285; L. Sadat Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and back again’, (1994) 32 Columbia Journal of Transnational Law 289; A. Finkielkraut, Remembering in Vain – The Klaus Barbie Trial and Crimes against Humanity (1992), especially 19–24, 45–9.

8. M. Koskenniemi, ‘Between Impunity and Show Trials’, (2002) 6 Max Planck Yearbook of United Nations Law 1. It is along these lines – albeit in less severe language – that some commentators criticized the decision of Trial Chamber I in the Milošević case to impose defence counsel on the defendant at the beginning of his defence case, i.e. when he was to begin presenting his view of what had happened during the break-up of Yugoslavia – see, e.g., ‘Kurzer Prozess gegen Milosevic – Medizinische Argumente nur vorgeschoben?’, Junge Welt, 3 September 2004, at 2.

9. On the latter criticism see, e.g., M. Mandel, How America Gets away with Murder: Illegal Wars, Collateral Damage and Crimes against Humanity (2004), chs. 4 and 5.

10. See, e.g., ‘“One-Sided Justice” at Rwanda Genocide Court, Expert Witness Says’, DPA, 18 March 2007.

11. On Uganda see, e.g., Otunnu, O. A., ‘The Secret Genocide’, (July/August 2006) 155 Foreign Policy 44–7Google Scholar; on the Democratic Republic of the Congo see K. J. Heller, ‘Why Is the ICC Prosecutor Ignoring the Congolese Government’, Opinio Juris blog, 22 October 2007, available at http://www.opiniojuris.org/posts/1193101615.shtml.

12. See, e.g., E. S. Herman, ‘The Hariri Special Court vs the Imminent US Attack on Iran’, zmag, July/August 2007, available at http://zmagsite.zmag.org/JulAug2007/herman.html; G. De Geouffre de La Pradelle, A. Korkmaz, and R. Maison, ‘Lebanon: A Court without the Law’, Le Monde Diplomatique, April 2006.

13. If one considers the history of Lebanon since 1975, the number and scale of crimes increases dramatically – see M. Wierda, H. Nassar, and L. Maalouf, ‘Early Reflections on Local Perceptions: Legitimacy and Legality of the Special Tribunal for Lebanon’, (2007) 5 Journal of International Criminal Justice 1065, at 1067 ff.

14. N. Abiad and V. Kattan, ‘The Hariri Tribunal: A Fait Accompli?’, Electronic Lebanon, 11 June 2007, available at http://electronicintifada.net/v2/article7002.shtml, note this criticism, but express the – perhaps somewhat naive – hope that ‘if the Tribunal is a success, its competence could be broadened so as to include war crimes and crimes against humanity from 1975’.

15. Report of the International Independent Investigation Commission established pursuant to Security Council resolution 1595 (2005), 19 October 2005, UN Doc. S/2005/662, para. 96. Due to a technical error it was revealed that an earlier version of the report had specifically named four individuals, including the brother of the Syrian President (N. Shehadi and E. Wilmshurst, ‘The Special Tribunal for Lebanon: The UN on Trial?’, Chatham House Middle East/International Law Briefing Paper 07/01, July 2007, available at http://www.chathamhouse.org.uk/publications/papers/view/-/id/512/, at 5).

16. Backed by Hezbollah/Amal and the ‘14 March movement’, respectively.

17. On the history of this struggle, see Shehadi and Wilmshurst, supra note 15, at 2–4; see also Gareth Evans, ‘The Hariri Tribunal: Separate the Political and the Judicial’, Al Hayat, 19 July 2007, available at http://www.crisisgroup.org/home/index.cfm?id=4955.

18. See Wierda, Nassar, and Maalouf, supra note 13, 1073 ff.

19. Statute of the Special Tribunal for Lebanon, in Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893, 15 November 2006 (StSTL), at 23 ff.

20. Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 1.

21. Statute of the International Criminal Tribunal for Rwanda, Art. 1.

22. Statute of the Special Court for Sierra Leone, Art. 1.

23. In fact, both ad hoc Tribunals were criticized for not prosecuting one party to the conflict for certain acts (alleged crimes during the NATO bombardment of Serbia and alleged revenge crimes by the victorious Rwandan Patriotic Font, respectively) even though their Statutes would have allowed this.

24. StSTL, supra note 19, Art. 1.

25. This, incidentally, means that it may not be certain until the very end of the trial whether the Tribunal has jurisdiction over certain acts, which may lead to interesting practical problems: the STL may find itself in a situation where it has been proven beyond a reasonable doubt that the defendant has committed an attack, but where there is no proof of a connection of the sort required by Art. 1 (or even proof that such connection does not exist). In this case, the Tribunal could not enter judgment as it would lack jurisdiction, but neither could it refer the case back to Lebanese courts as this is not foreseen in the Statute.

26. That this is the background against which Art. 1 was formulated is acknowledged in the Secretary-General's report, where it is also stated that the inclusion of these further attacks would lead to ‘[a] perception of fairness, impartiality and objectivity of the special tribunal’ (Report of the Secretary-General, supra note 19, paras. 14, 17–18). A similar conclusion, namely that the inclusion of other bombing attacks was a ‘[r]ejection of [s]elective [j]ustice’, is reached by C. Sader, ‘A Lebanese Perspective on the Special Tribunal for Lebanon – Hopes and Disillusions’, (2007) 5 Journal of International Criminal Justice 1083, at 1085. For a critical view on such an acknowledgement of perceptions of selective justice with regard to assassinations, but not with regard to other crimes, see Wierda, Nasser, and Maalouf, supra note 13, at 1071, 1072–3.

27. Art. 2(b) refers to two provisions of a 1958 Lebanese law ‘Increasing the penalties for sedition, civil war and interfaith struggle’. This is peculiar, most of all because these provisions do not define any crimes, but rather increase the penalties for the crime of terrorism to hard labour for life or the death penalty (these provisions are reprinted in the Report of the Secretary-General, supra note 19, at 6, n. 3). It is not clear what purpose the reference to these provisions is meant to serve, given that the Statute contains a separate norm on penalties, Art. 24, which does not allow these penalties.

28. For a detailed description of the respective provisions of the Lebanese Penal Code, see Jurdi, N. N., ‘The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon’, (2007) 5 Journal of International Criminal Justice 1125, at 1129–36CrossRefGoogle Scholar.

29. See Third Report of the International Independent Investigation Commission Established Pursuant to Security Council Resolutions 1595 (2005), 1636 (2005) and 1644 (2005), 14 March 2006, UN Doc. S/2006/161, para. 49, stating the crimes which individuals arrested and/or questioned in the course of the investigation by the Commission and national authorities were suspected to have committed.

30. See Milanovic, M., ‘An Odd Couple – Domestic Crimes and International Modes of Responsibility in the Special Tribunal for Lebanon’, (2007) 5 Journal of International Criminal Justice 1139, at 1143 with references to the Extraordinary Chambers in the Courts of Cambodia, the Special Panels in East Timor and the SCSLCrossRefGoogle Scholar.

31. This despite the fact that, as noted above, Art. 2(a) StSTL, supra note 19, also refers to the rules of Lebanese criminal law ‘regarding . . . criminal participation and conspiracy’.

32. StSTL, supra note 19, Art. 3(1)(b) and 3(2).

33. Milanovic, supra note 30, at 1145 ff.

34. Rome Statute, Art. 25(3)(d)(i) (emphasis added).

35. In fact, the SCSL recently declined to enter convictions based on joint criminal enterprise against the defendants of the Armed Forces Revolutionary Council faction on the grounds that the defendants' plan – ‘to gain and exercise political power and control over the territory of Sierra Leone’ – was not per se a crime under the SCSL Statute: The Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, Case No. SCSL-04-16-T, 20 June 2007, para. 67 ff.

36. See Milanovic, supra note 30, at 1148.

37. See Sader, supra note 26, at 1087–1088.

38. Milanovic, supra note 30, at 1142–1143.

39. See generally Ibid., at 1142 ff.

40. Rule 61 of the Rules of Procedure and Evidence of the ICTY and the ICTR allow for a public confirmation of the indictment in the absence of the defendant; Art. 61(2) Rome Statute allows the ICC to hold a hearing on confirmation of charges in the absence of the defendant.

41. StSTL, supra note 19, Arts. 22(1)(a) and 22(1)(c).

42. Ibid., Art. 22(1)(b).

43. Report of the Secretary-General, supra note 19, para. 32(b).

44. StSTL, supra note 19, Art. 22(2)(a).

45. Ibid., Arts. 22(2)(b) and (c).

46. Report of the Secretary-General, supra note 19, para. 32.

47. Ibid., para. 33, referring to the judgments of the European Court of Human Rights in Krombach v. France, Judgment of 13 February 2001, 2001-II Reports of Judgments and Decisions 41, and Sejdovic v. Italy, Grand Chamber Judgment of 1 March 2006.

48. See C. Aptel, ‘Some Innovations in the Statute of the Special Tribunal for Lebanon’, (2007) 5 Journal of International Criminal Justice 1107, at 1121; P. Gaeta, ‘To Be (Present) or Not To Be (Present) – Trials In Absentia before the Special Tribunal for Lebanon’, (2007) 5 Journal of International Criminal Justice 1165.

49. The Secretary-General did not explain why he referred to Art. 6(3)(c) of the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR) and not to Art. 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), despite dealing with trials conducted in a non-European country. This is probably due to the fact that the two rights are substantially very similar and that there is a much more detailed jurisprudence of the European Court of Human Rights on Art. 6 of the European Convention, compared with the very few views of the UN Human Rights Committee on Art. 14 ICCPR. For the same reason, I shall in the following also refer to the jurisprudence on the ECHR when dealing with the human right to be present at one's trial.

50. F.C.B. v. Italy, Judgment of 28 August 1991, ECHR Ser. A No. 208-B, para. 33.

51. Of course, given the high profile of the case in comparison with an average national case, it seems much more likely that such publication would not escape the notice of the defendant, but the fact remains that the Statute does not charge the Tribunal with even trying to ensure that this happens.

52. Sejdovic v. Italy, supra note 47, paras. 34–36.

53. Only in the case of fugitives is this obligation complemented by the requirement in Art. 22(1)(c) that ‘all reasonable steps have been taken to . . . inform . . . her of the charges’.

54. StSTL, supra note 19, Art. 22(3).

55. See Medenica v. Switzerland, Judgment of 14 June 2001, 2001-VI Reports of Judgments and Decisions 109, paras. 57 ff. (where it was, however, found that the defendant had not shown such good cause, see also the Dissenting Opinions of Judge Rozakis, paras 6–7, and of Judge Bonello, paras. 5–8).

56. Art. 15 of the Agreement requires Lebanon to co-operate with the Tribunal, but neither the Agreement and Statute nor Resolution 1757(2007) imposes any such obligation on other states. The Security Council may, of course, lay down such an obligation in a further resolution – it has already, in Resolution 1636(2005), obliged Syria to co-operate with the UN International Independent Investigation Commission (UNIIIC). Generally on questions of co-operation with the STL, see B. Swart, ‘Cooperation Challenges for the Special Tribunal for Lebanon’, (2007) 5 Journal of International Criminal Justice 1153.