The Special Tribunal for Lebanon

The International Political Court?

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Editor’s Foreword

This article does not represent the views of the Law Review, nor its Editorial Staff, nor its other members. The views presented in this article are solely those held by the author, Ms. Al Ajami. Similarly, the media represents neither the Law Review nor the author.

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Lebanon has had a long history of conflict and politically motivated foreign intervention. Such is the case with the Special Tribunal for Lebanon (STL) where politics and law intertwine. This international court has its origins in the assassination of former Prime Minister Rafic Al-Hariri on February 14^th, 2005. That was an era of political instability. The assassination of our former PM not only shook our world but the international world as well.

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Getting the Facts Straight

The Lebanese political caste has always been the target of assassinations. When working within the framework of the Special Tribunal for Lebanon (the STL), two major assassinations and two other assassination attempts must be kept in mind in order to properly shape the understanding of the Tribunal. These attacks are as following:

1. On October 1^st,  2004, a car explosion targeted the motorcade of Mr. Marwan Hamadeh (a Lebanese politician and journalist) in Beirut. Mr. Hamadeh and his driver were injured, but his bodyguard was killed.
2. On February 14^th, 2005, a car explosion targeted the convoy of then Prime Minister Rafik Al-Hariri in Beirut, killing him as well as 21 others.¹
3. On 21 June 2005, a bomb exploded under the passenger seat of the vehicle of Mr. George Hawi (a Lebanese politician) in Beirut. Mr. Hawi was killed and his driver gravely injured.
4. On 12 July 2005, an explosive device targeted the convoy of Mr. Elias El-Murr (a Lebanese politician) in Antelias. One person was killed while injuring Mr. El-Murr and 11 others injured.²

The attack on former Prime Minister Rafik Al-Hariri triggered a wave of unstable political ripples that led the Lebanese government to acquire help from the United Nations (UN) which held several Security Council (SC) meetings and measures regarding the matter.

The Road to the STL: Step by Step

At the government’s behest, then UN Secretary General Kofi Annan ordered an investigation or a fact-finding mission into Lebanon, inquiring into the causes, circumstances and consequences of the assassination of the former Prime Minister. It was conducted by Irishman Peter FitzGerald, whose name later became synonymous with his report of the inquiry. Based on said report, the United Nations Security Council (UNSC) decided for the first time to look into a murder case. Detlev Mehlis led a commission that was sent to inspect the assassination by a UNSC resolution, and the resulting report was named after the German as well. During this period, the International Independent Investigation Commission (UNIIIC) led by Mehlis, recommended the Lebanese authorities to arrest four Lebanese officers, based on the testimony of Husam Taher Husam³ and Mohamad Zuhair Al-Siddiq⁴ who claimed that these officers were involved in the 14 February attack. Three months later, Husam withdrew his testimony stating that it was taken by the use of force and refuted everything he said to the UNIIIC, thereby doubting the credibility of the report itself by various parties since it was based on false or suspicious testimonies. Yet the generals remained in custody.

On March 1^st, 2009 and after the conclusion of the Mehlis report, the Special Tribunal for Lebanon was established by UNSC resolution 1757, with a primary mandate to hold trials for the people accused of carrying out the assassination of  February 14^th, 2005 and related attacks. The UNSC resolution 1757 brought the tribunal into force making it an international criminal court and not an ad hoc, meaning that it is neither a UN court nor part of the Lebanese judicial system (hybrid tribunal). After its establishment, the Tribunal’s first acts were to order the immediate release of the four generals since the Pre-Trial Judge⁵ had determined that there was no cause to hold and detain them by the Lebanese authorities under the UNIIC’s recommendation.

Subsequently, the Court’s Office of the Prosecution (OTP) took the controversial Mehlis report and based all its evidence on the debatable witnesses. As a result, the Prosecutor presented the Pre-Trial Chamber with an indictment of four individuals, where said chamber approved the evidence and indicted Mustafa Amine Bareddine, Salim Jamil Ayyash, Hussein Hassan Oneissi, and Assad Hassan Sabra, forming the “Ayyash et al.” case.

Afterwards, The Appeals Chamber issued an Interlocutory Decision⁶ declaring that the customary international law definition of terrorism consists of the following three key elements:

• the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act;
• the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it;
• When the act involves a transnational element.⁷

This was the first time an international tribunal defined the Crime of Terrorism, filling the gap of customary international law (where it becomes an international legal obligation) by the Lebanese definition of this crime.

On August 5^th, 2011 the tribunal established jurisdiction over three other cases that were found connected to the Feb 14^th attack based on the prima facie⁸ evidence presented by the prosecutor. The targeted individuals were Mr. George Hawi, Mr. Elias El- Murr, and Mr. Marwan Hamadeh. Furthermore, the Prosecutor indicted Mr. Ayyash and the Tribunal approved it, leading to the commencement of the “Ayyash case”.

How does the Tribunal seek jurisdiction over such cases?

Well the OTP must submit prima facie evidence of a connection such as:

• Criminal Intent
• The purpose behind the attacks
• The nature of the victims targeted
• The pattern of the attacks (modus operandi)
• And the perpetrators

It is important to note that the STL mandate allows jurisdiction over crimes carried out not only between 1 October 2004 and between 12 December 2005⁹, but also attacks carried out on any later date if the parties decide it; this was never applied.

This concludes that the Tribunal tries two cases and not only the “Ayyash et al. Case.” but the “Ayyash Case” as well.

Later on in 2013, the Prosecutor filed an indictment that was later on approved by the tribunal accusing Hassan Habib Merhi in the involvement of the 14 Feb attack, thereby increasing the number of suspects to 5.

On January 31^st, 2014, two media companies (Al-Jadeed and Akhbar Beirut) and two individuals (Ms. Karma Khayat and Mr. Ibrahim Al Amin) were charged with contempt and obstruction of justice in relation to media reports containing information about alleged confidential STL witnesses, under the Lebanese Criminal Code¹⁰. During the proceedings, The Trial Chamber acquitted Al-Jadeed of all counts but Ms. Khayat was convicted with a €10,000 fine for one count and acquitted of another, but her conviction was reversed on appeal. In contrast, Mr. Ibrahim Al Amin and Akhbar Beirut were each found guilty for obstructing and interfering the administration of justice, Mr. Al Amin fined €20,000 fine and Al-Akhbar Beirut fined €6,000, neither having appealed the judgment. Mr. Al Amin paid his fine after numerous measures imposed by the Contempt Judge, on the contrary to Akhbar Beirut’s fine, which remains outstanding.¹¹

On July 11^th, 2016, with the decease of Mr. Badreddine, The Tribunal was forced to drop the charges against him, thus decreasing the accused numbers down to four. Finally, the prosecution completed the presentation of evidence, which indicates the conclusion of the Ayyash et al. Case. As a result, the Tribunal started its deliberations while still awaiting the judgment until this day. This delay was said to be because of the Covid-19 pandemic where the judges were not able to hold sessions. However, on July 10^th, 2020, The Trial Chamber of the Special Tribunal for Lebanon (STL) issued a scheduling order for the public pronouncement of the Judgment in the Ayyash et al. case (STL-11-01) in a public session on Friday August 7^th, 2020 at 11.00 AM (C.E.T)¹². As for the Ayyash Case, only recently on the 6^th of February of this year did the STL Trial Chamber II issue a decision to proceed with a trial in absentia against the accused Mr. Salim Ayyash.¹³

Linking the Dots

To begin with the assassination of February 14^th, 2005, a question poses itself:

On what grounds did the Security Council consider the mentioned event as a threat to international peace and security?

This question is always raised whenever the Security Council chooses to impose the measures listed in Chapter VII of its Charter. By resolution 1636 (2005) of 31 October 2005, the Council, taking note of the findings of the International Independent Investigation Commission (UNIIC), responsible for the investigation of the alleged terrorist bombing in Beirut on February 14^th, 2005, the Council reaffirmed that terrorism, in all its forms and manifestations, constituted one of the most serious threats to peace and security. It also determined that the terrorist act that killed Mr. Hariri, as well as the act’s implications, constituted a threat to international peace and security. The Council reaffirmed this determination by resolution 1757 (2007) of 30 May 2007.¹⁴

 This indicates that there are no clearly adopted thresholds to consider a situation as a threat to international peace and security. It is purely political with no legal grounds, where the SC members can easily consider any attack as a threat, looking only at their own political agendas¹⁵.

Comparing the February 14^th attack to all other countries in more gross situations, the politically self-proclaimed countries always divert the facts according to their political interest, finding acts that are more dangerous in heartbreaking situations as a non-threat to international peace and security. For example, the starvation that Yemen is currently facing due to the Saudi blockade, where 80% of its population are in need of humanitarian assistance, including 12 million children¹⁶, was not considered as a threat to peace and no action was taken by the Security council other than condemnation. Another example, the second Rwandan genocide. Michelle Faul of NBC News defined the situation:

“The story of the 1994 genocide of more than a half million Tutsis slaughtered by Hutus in Rwanda has been told in the world’s press, in books and in movies such as “Hotel Rwanda.” But the subsequent slaughter of Hutus in neighboring Congo is little known, and its perpetrators never have been brought to justice.“¹⁷

This is due to the fact that International Criminal Law is still a growing branch of Public International Law and it can thus be widely manipulated since it is only based on treaties discussing still new concepts. For example, in Yugoslavia and Rwanda back in the 1990s, prior to The International Criminal Tribunal of Yugoslavia (ICTY) and The International Criminal Tribunal for Rwanda (ICTR), the Security Council did no action during the genocides that were happening in front of their eyes. They awaited the completion of the genocides for them to establish the aforementioned ad hoc tribunals under Chapter VII, after the deaths and displacement of millions.

The Mehlis Report, upon which the STL cases were founded, was widely criticized from various parties that claimed the UNIIIC had a presumption of culpability it was trying to prove, while not respecting the presumption of innocence. It was debated that the Commission¹⁸ was just trying to pin it on individuals who are already presumed guilty. Later on, numerous witnesses of different relevance to the report withdrew their given testimonies, especially the main testimony that based the recommendation of the UNIIC to the Lebanese authorities to arrest the four generals. Nevertheless, no actions were taken to release them since the grounds of their arrest were completely shattered, leaving those approximately four years in custody. In addition, even though the Report was proven to be questionable and possibly unrelated to the facts, the tribunal confirmed its evidence, only acquitting the four generals who were held because of it.

Moreover, funding such tribunals is certainly a huge financial burden especially when the biggest investor is practically drowning with international and internal debts. The capital comes from countries and not individuals: 49% from the Lebanese government and 51% of voluntary funders. The STL is estimated to cost around 55 million euros per year,  where this amount was collected from the Lebanese Cabinet on a yearly basis (49% of it), ever since the Court was established (2009)¹⁹. Eleven years gravely cost the Lebanese taxpayer. These additional taxes might have been utilized to enhance the country or maybe invested it in a sustainable project. Unfortunately, it is agreeable that Lebanon during its never-ending and escalating financial crisis cannot continue giving this huge amount of taxpayer money for the sake of two ongoing cases. Especially if our officials continue to be politically influenced by sectarianism, and prefer granting such amounts to a tribunal and not its own needy people.

Pros and Cons

There is a need to state that this controversial tribunal contributed greatly to the international community regarding the Crime of Terrorism among other novel features to the international criminal community, yet its actual and debatable efficiency for the Lebanese community is still an unanswered question.

Contributions of the STL

The Special Tribunal for Lebanon is the first modern day international criminal court to try individuals in absentia since the International Military Tribunal for the Far East known as the Tokyo Tribunal and the Nuremberg Tribunal (results of the WWII). Trials in absentia are trials that take place without the presence of the accused, making an exception to the internationally recognized right to be present at trial.  Trials in absentia have taken place at both the national and international levels, with the most prominent international example being the STL²⁰. Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), provides that a person facing a criminal charge has the right to be informed of the charges and tried in his own presence. Likewise, Article 6(3) of the European Convention on Human Rights (ECHR) provides for the right of a person to be notified promptly, in a language he understands and in detail, of the nature and cause of the accusation against him and to defend himself in person or through legal assistance. Despite the presence of such safeguards, no international or regional treaty mandatorily or explicitly prohibits conducting a trial in the absence of the accused. This matter raises the question of the equality of arms and the right of a fair trial in the framework of international criminal law, and the actual real life efficiency of absent culprits. The resonance of the Tokyo and Nuremberg Tribunals illustrates the disadvantages of the issue at hand, since these tribunals were held by the Allies to try individuals that were obviously their enemies. These international criminal courts held their proceedings, in some cases, in the absence of the accused. That made the international community accuse the Tokyo and Nuremburg Tribunals of abusively exercising their upper political hand while disregarding the accused’s basic rights, naming it “Victor’s Justice”. This leads us to question even more the application of the Lebanese Law in an international tribunal, and its efficiency.

            In contrast, the STL was the first international tribunal to address the Crime of Terrorism as a crime under international criminal law, making it a legal obligation as defined in the Lebanese Criminal Code. This happened when the Appeals Chamber issued its well-known Interlocutory Decision on the matter. For many years, after many attempts of unifying a definition of this crime in several international conferences nothing was being agreed upon because of the differing opinions of participating parties. However, the tribunal engraved it in the international customary law by the Appeal Chamber’s Decision. Some argue that the definition of the Crime of Terrorism in the Lebanese Criminal Code is a very wide and broad one, leaving space for various possible adaptations of this definition given a certain situation. The definition set out by the STL is considered to be the foundation stone of the Crime of Terrorism in International Criminal Law which can be taken on by future internationals tribunal as jurisprudence. On the other hand, such a wide definition may lead to a gap where there lacks of thresholds to properly identify a crime to be categorized as a Terrorism Crime. And there lies the political maneuvers that may be carried out in the future were any act may be considered as terrorism given the powerful countries has an interest in doing so.

            As mentioned above, the STL is the first international tribunal to try crimes under national law, when all previous international tribunals based their applicable laws on treaties and customary international law. These treaties were the offspring of numerous years of continuous updates and growing international consensus that led to their position on the mutually accepted International Criminal Law today. However, the STL chose to apply the Lebanese Law, the inflexibly amended law in its home country. The Lebanese Penal Code is in need of numerous modifications and is in no shape or form suitable to be applicable in an international tribunal. The need of an internationally unified and clear definition of the Crime of Terrorism was needed before the commission of such a tribunal in order to set a better example to future international criminal courts that might add terrorism as a substantive crime and establish jurisdictions over such acts, and maybe try individuals based on an international agreement or convention.

The Role of Politics

The prying of foreign agents in serious Lebanese matters such as political assassinations threatens the sovereignty of Lebanon. Although we cannot exclude ourselves from our environment, independence must be non-negotiable in every aspect. Because of foreign meddling, the will of politicians to have more power leads to their active consent of such intrusions, which brings about Lebanon’s ceaseless loop of corruption that only targets none other than the Lebanese people.            

International Criminal Law by definition, must be applied were grave breaches of human rights and the international human rights law take place, where the perpetrators are held liable and consequently punished. This law is respectively applied by international criminal courts such as the International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), etc… This leads us to question the description of the STL as an international criminal court since it did not apply International Criminal Law. The answer is forever politics. Have not politics chose to interfere; the proper law would have been applied. That may have led to the dismissal of these cases, where the financial burden of a vulnerable country could have been spared for better use (like serving thousands of families living under 3.84$ a day). Having this been said, the lives lost should never be dismissed, yet serious actions should have been taken to prevent this abortion of justice on so many levels.

Conclusion

To conclude, the matter of the substantial impact of the Special Tribunal for Lebanon on Lebanon itself remains a matter of perspective; one that all Lebanese fail to bring together until this day due to the deeply rooted sectarianism that continuously devastates our country. Yet, we need not neglect the innovative features that this tribunal introduced to the international law community, most importantly the definition of the Crime of Terrorism as a substantive crime. However, we cannot neglect the fact that the STL has been a great financial burden on the Lebanese people and that it is shy example of efficient justice where the tribunal has taken more than eleven years to try only two major cases where no final judgments have been issued up until this day.

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Bibliography

The Special Tribunal for Lebanon, The Cases: Ayyash et al. (STL-11-01), https://www.stl-tsl.org/en/the-cases/stl-11-01

The Special Tribunal for Lebanon, The Cases: Ayyash Case (STL-18-10), https://www.stl-tsl.org/en/the-cases/stl-18-10

Al Riyadh Journal, November 29^th, 2005, Volume 13672, اللجنة القضائية السورية: تقرير ميليس انهار قانونياّ, http://www.alriyadh.com/111304

The Special Tribunal for Lebanon, STL Casecook 2011: Major Rulings issued by the Special Tribunal for Lebanon, https://www.stl-tsl.org/sites/default/files/documents/legal-documents/stl-casebooks/STL_Casebook_201_EN.pdf

The Special Tribunal for Lebanon, April 2019, Rules of Procedure and Evidence, https://www.stl-tsl.org/sites/default/files/documents/legal-documents/RPE/RPE_April_2019_EN.pdf

The Special Tribunal for Lebanon, The Cases: Contempt Cases, https://www.stl-tsl.org/en/the-cases/contempt-cases

The Special Tribunal for Lebanon, Press Releases and Media Advisory, https://www.stl-tsl.org/en/media/press-releases/stl-media-advisory-pronouncement-of-the-judgment-in-the-ayyash-et-al-case-on-7-august-2020

The United Nations, Chapter XI: Consideration of the provisions of Chapter VII of the Charter, https://www.un.org/en/sc/repertoire/2004-2007/04-07_11.pdf#page=5

Northwestern Journal of International Human Rights, Volume 6 Issue 1, Fall 2008, Jared Schott, Chapter VII as Exception: Security Council Action and the Regulative Ideal of Emergency, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1065&context=njihr

The United Nations International Children’s Emergency Fund (UNICEF), April 2020, Yemen Crisis, https://www.unicef.org/emergencies/yemen-crisis

NBC News, September 10^th, 2010, Michelle Faul, A second Rwanda genocide revealed in Congo, http://www.nbcnews.com/id/39603000/ns/world_news-africa/t/second-rwanda-genocide-revealed-congo/#.XwwvOJozbIU

The Special Tribunal for Lebanon, Documents: Annual Reports, https://www.stl-tsl.org/en/documents/annual-reports

Coalition for the International Criminal Court, October 5^th, 2016, Trials in absentia and international criminal justice, http://www.coalitionfortheicc.org/news/20161005/trials-absentia-and-international-criminal-justice

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Footnotes