Category Archives: STL

A comment on the critical reactions to the Special Tribunal for Lebanon Hariri Judgment

Posted on August 20, 2020 | 1 comment

A few days ago, on the 18 August 2020, the Trial Chamber of the Special Tribunal for Lebanon issued its long awaited Judgment following the trial relating to the assassination of Rafik Hariri in 2005. The Trial Chamber convicted one of the Accused, Ayyash, acquitting the remaining three: Oneissi, Mehri and Sabra.

The public reading of the summary of the Judgment started at 11am and ended at around 3.45pm, with a 30-minute break in the middle. It was therefore a very long and very detailed summary, at times difficult to follow, even for someone who is familiar with the case and the proceedings.

The Judgment itself is 2682 pages (including annexes and separate/dissenting opinions of the Judges) so obviously, don’t expect a detailed analysis of it anytime soon. I do note that as far as I can tell, the Judgment is only available in English, not in Arabic or French, which means that those most affected by the work of the STL cannot read it, even if they wanted to…

For those interested in my “live” thoughts on the summary Judgment, you can read the (very long) thread I wrote as the summary was being read out.

Just based on the summary, it was very clear how much the Prosecution case was based on weak circumstantial evidence and how little evidence the Prosecutor actually submitted on the details of the conspiracy itself, other than the clearly obvious fact that the assassination of Rafik Hariri was decided at some point in time and then carried out. 

I hope to provide more thoughts on the actual Judgment in the future, once I find time to read it, but what I did want to reflect on today is the reactions to the Judgment itself.

I’m sure that when myself and others finally go through the Judgment, we will find reasons to comment on it and even criticise it on discrete legal, procedural and factual points.

What I find striking is that the cascade of critical commentary (on the fact that the STL might have been a waste of money, that it did not deliver justice to the victims by failing to provide the relevant political context of the assassination, that it shows the limits of Trials in absentia, that it failed in establishing a credible precedent in prosecuting terrorism internationally, etc.) seems to be directed at the STL generally as an institution rather than at the Judgment itself.

For example, the fact that the STL was possibly too expensive would still be arguably true, even if all Accused had been convicted. More generally, the opportunity of creating such a massive institution for essentially one incident could have been questioned more or less from day one. Why wait for the Judgment to point it out? Such late criticism of this kind suggests that what bothers some people is less the cost than the acquittals… This is not something surprising obviously. I’ve been following reactions to the issuance of international judgments for many years now and regularly commented on such reactions here on Spreading the Jam, more particularly lamenting how acquittals are automatically considered as failures, as if international trials should necessarily conclude with a conviction. 

The same is true of the political context: for those who have followed the proceedings since the beginning, it should not come as a surprise that the Judgment only minimally addresses alleged Hezbollah and Syrian involvement in the assassination. Indeed, this was never the focus of the Prosecution case and, from what I understand, the Prosecution did not present much evidence in that respect. In other words, the Judgment, whether it ended in acquittals or convictions, was never going to satisfy those who would have wanted some clear findings on the broader organisation of the conspiracy and who instigated at a higher hierarchical level than the Accused.

Equally puzzling is the idea that this Judgment shows the limits of trials in absentia. The fact that trials in absentia are problematic in many respects, especially for the Defence, is uncontroversial. But it is not in my view illustrated so much by the Judgment itself. Indeed, 3 of the 4 Accused were acquitted despite the fact that it is harder for the Defence to work in such circumstances.

Also well known for anyone following the STL was the fact that the Prosecution case relied exclusively on circumstantial evidence and would have required the Judges to base any conviction on a considerable amount of “reasonable inferences” (often a politer way of describing speculative more or less educated guesses in international judgments) to find the Accused guilty. 

The bottom line is that the STL was always going to be a far too expensive experiment, and more importantly was always going to be at risk of not meeting the objectives that had been, possibly unrealistically, assigned to it, was always at risk of being a purely theoretical exercise, remote from the reality of what was actually happening in Lebanon or important for the Lebanese, especially 15 years after the facts.

Again, there is nothing wrong with criticising the STL as an institution. Some people, like myself, have been doing this for many years now. For example, I was never convinced by the extremely creative approach adopted by the Appeals Chamber to recognise the existence of a crime of terrorism under international law, nor by its case-law on corporate criminal liability (see here and here).

Already in 2011, commenting on some earlier in my view unconvincing procedural decisions by the STL, I noted: 

The Tribunal is certainly alive, but, torn between different logics, orders and traditions, one has to wonder whether it should have been created at all, and, now that it has, whether is should not be allowed to be “borne away by the waves, and lost in darkness and distance”.

(The quote is the last line from Mary Shelley’s Frankenstein, a less-than-subtle allusion to the “hybrid” nature of the STL…)

In 2014, in a great volume on the STL edited by Nidal Jurdi and Amal Alamuddin and David Tolbert, I concluded a fairly critical chapter on the STL rules of procedure where I considered that the Judges were like referees trying to “steal the show” of a football game in the following way: 

It is only if the STL refocuses on the game that is actually being played in the territory where the crimes were committed rather than focusing on the procedural niceties being played in The Hague that it will have any chance of actually delivering on its promise of justice. If not—beyond all the technical discussions on the procedural framework of the STL—what is the point of setting up rules for a game, which nobody is in fact playing, and more importantly, which nobody may be watching anymore? The ultimate risk is therefore not really that the referee could be stealing the show but rather that there might not actually be a show anymore to steal, just an empty pitch and the echoes of the now departed spectators dying out as the last floodlights are inexorably being switched off, one by one.

In other words, I was suggesting that the STL might become, with time, an irrelevant and purely academic exercice with no real-world effect, a show nobody would be watching.

I therefore do not necessarily disagree with the criticism I am hearing since the Judgment came out. What I find somewhat unsatisfactory today is those commentators who are only now coming out of the woods with criticism of the STL, which could have been expressed years ago, simply, it seems, because the trial ended up in acquittals.

If these commentators truly believe what they now say, they should have had the intellectual honesty to say it many years ago already, with the inevitable conclusion, irrespective of the outcome of the trial, that the STL might have been a failed experience. It is too easy for these commentators to come out with this conclusion now, after the battle, simply because there is now the easiest target in ICL for them to always be on the “good side of history”: a (partial) acquittal.

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A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons

Posted on October 6, 2014 | 5 comments

cross posted on The Invisible College]

In January 2014, a contempt judge of the Special Tribunal for Lebanon (STL) confirmed an indictment for contempt proceedings which included a legal person, a first for an international criminal tribunal. At the time, I raised some doubts about the reasoning of the judge, who applied a teleological reasoning that essentially allowed him to create law based on his own interpretative preferences. I also did not find convincing the idea that the interpretation of the term “person” for the purposes of contempt proceedings could be different than the interpretation of the same term in article 2 of the Statute of the Tribunal when it came to personal jurisdiction of the tribunal generally.

In July 2014, another contempt judge reversed the first ruling, considering that the term person should be interpreted narrowly in light of the principle of legality and could not include legal persons.

Last week, an Appeals Panel of the STL reversed this latter decision, held, by majority, that legal entities could be covered by contempt proceedings and, as a consequence, reinstated the proceedings against a media company. This decision is very interesting, and problematic, in the way it approaches the question of both inherent jurisdiction and general rules of interpretation and has just entered my top 10 worst argued decisions in ICL. It might even enter my top 3, along with the SCSL amnesty decision and the ICC Malawi decision on immunities.

It would take up too much space here to comment on the decision extensively, but I just want to highlight how the Appeals Panel has found the perfect Molotov cocktail to kill the principle of legality: the “spirit” of the statute combined with inherent jurisdiction.

  • The Spirit of the Statute

First of all, the decision seriously over-relies on what is called the “spirit” of the Statute as a source of interpretation, which, according to the judges, allows for a more “liberal” interpretation of the Rules (para. 27). This leads the judges to blame the contempt judge for interpreting the term “person” in accordance with the letter of the Statute rather than its spirit (!!!). The problem with that is that I don’t know what the “spirit” of the statute is. Trusting judges in relation to this spirit is like trusting the weird looking guy in the tent at the town fair that he can contact the spirit of your grandmother: he basically gets to tell you what he wants…

For the judges of the Appeals Panel, the spirit of the statute, in a nutshell, is the “fight against impunity” for those who obstruct the course of justice, which allows for a teleological interpretation that  includes legal entities. Once they have decided this, the judges look for anything under international law that would not allow them to interpret person in that way… At this point, it’s not even teleological interpretation anymore, it’s backwards reasoning in its purest form!

The Appeals Chamber makes an incredibly broad assessment of international and domestic pronouncements on corporate liability (in general, not necessarily for contempt!) to conclude that nothing prevents the judges from interpreting “person” in a broad way (para. 60).

Even  more amazing, the STL goes through the whole history of ICL where no legal entity was ever prosecuted for contempt or otherwise, but finds it unpersuasive, concluding that section with the extraordinary vague statement that “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

“On the verge of attaining”? What a marvelous new source of law. Following the progressive view of the Appeals Panel, I suggest that Article 38(1) of the ICJ Statute now read as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

[…]

e. Any norm on the verge of attaining the formal status of any of the above

  • The inherent jurisdiction of the Court

Inherent jurisdiction has always been a problematic issue, useful for creative judges over the years. But surely there has to be a limit to it. The problem is that the way the Appeals Panel uses it makes it extraordinarily large. There are a number of pronouncements in the decision on the (lack of) scope of the inherent jurisdiction of the tribunal, but this one wins the prize for honesty:

When operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement

In other words, we don’t know what our jurisdiction is, you don’t know what our jurisdiction is, but don’t worry and trust us: we’ll tell you when we get there. This cannot be how jurisdiction (inherent or otherwise) should work, especially in the current case of contempt (i.e, criminal) proceedings.

  • The end of the principle of legality

The problem with everything I have described so far is that we are here dealing with criminal charges, not a innocuous rule of procedure relating to the extension of the number of pages in a brief. Inherent jurisdiction cannot be used to trump the principles that should apply in criminal law matters, notably the principle of legality and its corresponding rules of interpretation: strict interpretation and in dubio pro reo. In that respect, someone should have pointed the judges to Article 22 of the Rome Statute.

In light of this, as pointed out by the dissenting judge, both human rights law and general principles of ICL should have led the judges to consider these basic principles in interpreting the term “person” in the RPE.

  • Some concluding thoughts

First, a logical point: as I pointed out in my previous post on this, for me the interpretation of term “person” in the RPE should necessarily mirror the interpretation of the term “person” in the Statute. If the STL cannot prosecute legal entities for killing Hariri, it cannot prosecute them for contempt. If not, as I said in my previous post and as picked up by the dissenting judge (who forgot to quote me…), the “spirit” of the statute would be that legal entities should not commit the horrendous and humanity-offending crime of publishing a list of witness, but can commit murder, bodily harm and terrorism without being bothered…

Second, a legal reasoning point: as with the first contempt judge who accepted the indictment for legal persons, the Appeals Panel essentially give us reasons why corporate entities ought to be held responsible for contempt. These might be valid reasons, but it’s not their job.

Third,  an argumentation point: the judges refer in an amazingly broad way to the evil that corporate entities can wrought upon the world. And this is just to extend contempt jurisdiction! It seems like overkill to me. What will the first international judge to prosecute a company for genocide be able to say?

Fourth, and finally, an endless point of frustration: the drafters of the STL Statute, in their infinite (lack of) wisdom, still thought it was a good idea to let judges write their own RPE. As a result, the RPE are written by the judges, can be changed by the judges as they please, and then get interpreted by the judges. In this context, it is somewhat farcical to see them pretend to find the higher “spirit” of the Statute, fill 30 pages of analysis of domestic legislation and international pronouncements on the responsibility of legal entities and provide general moral musings on corporate liability in order to divine the true meaning of the word “person”. But, judges wrote the RPE! Adding up pages of argumentation will not bring us any closer to telling us what they were thinking when they drafted the rules on contempt in the first place and answer this ultimately very simple question which seems to have been ignored in the entirety of these proceedings: if they thought that corporate liability for contempt was so important, to the point of it verging on attaining a legal status, why did they not include it, just to make everyone life easier down the road?

In any case, I’m not sure things are over yet. It is now 3-2 for judges who want to extend contempt to legal persons. Not a large consensus. Let’s see what happens next…

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The Dream Factory Strikes Again: the Special Tribunal for Lebanon recognizes International Criminal Corporate Liability

Posted on April 28, 2014 | 5 comments

From the Tribunal that brought you an international customary law of terrorism and trials in absentia, a new dream has come true: international criminal corporate liability…

Last week, the Special Tribunal for Lebanon made public a January decision in relation to the initiation of contempt proceedings for the publication, among other things, of alleged witnesses.

There isn’t much point in revisiting here the idea itself that judges are free to include issues of contempt into the rules of procedure and evidence, on the basis of “inherent powers”, even when it is not in the Statute. That ship has apparently sailed since the ICTY, even if it is noteworthy that both the MICT and the ICC include such issues in the statute rather than the rules, which would tend to show that this might not be such an “inherent power” after all. I discuss this issue at more length here.

In fact, while a strong defender of a strict interpretation of the principle of legality, I agree with Judge Baragwanath that it is not an issue in the particular instance because, however shoddy their legal foundations may be, contempt prosecutions have been around for a while now in international criminal proceedings and therefore no defendant can reasonably claim that it was not foreseeable that such proceedings would possibly be initiated for conduct such as the one under consideration here.

I won’t delve either on the discussion on the compatibility of the contempt provisions with freedom of the press. As a argue here, international judges misapply, in my view, the proportionality test that is required by human rights case law, when a balance needs to be struck in the curtailing of some rights. Judge Baragwanath’s reasoning, which is done in the abstract, essentially implies that the application of rule 60bis can NEVER violate the freedom of the press because “the media must comply with the law” (decision, §16). However, the proportionality test should be applied on a case by case basis and there cannot be a blanket seal of approval for any provision.

No, what really deserves attention is this new revolution proposed by the STL: the recognition that legal persons can be the target of contempt proceedings. In other words, the STL has now recognized corporate liability in international criminal law. As Judge Baragwanath acknowledges in the decision, this is a first in contempt proceedings, so it required some explanation on his part. Continue reading →

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A comment on why the STL Appeals Chamber should not have rendered its decision on applicable law

Posted on February 17, 2011 | 5 comments

Over at EJIL Talk!, Marko Milanovic has posted some first comments on the decision issued by the Appeals Chamber of the Special Tribunal for Lebanon on the applicable law. He points out some interesting issues dealt with by the Chamber in relation to the definition of terrorism, or the modes of liability.

I haven’t read the decision yet, but I made a comment on the procedure itself that has sparked an interesting debate in relation to the opportunity of having such a decision in the first place. You can read the debate in the comments section of Marko’s post, but here are my arguments laid down in a more constructed fashion.

The Appeals Chamber was seized by the Pre-Trial Judge for it to render an interlocutory decision on a number of issues relating to the interpretation of the Statute. It should be pointed out from the outset that this procedure is not provided for by the Statute itself. It is provided for by the Rules of Procedure and Evidence, which are drafted by the Judges themselves. According to Rule 68(G):

The Pre-Trial Judge may submit to the Appeals Chamber any  preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

The procedure is laid down in Rule 176bis, which provides that:

(A) The Appeals Chamber shall issue an interlocutory decision on any question raised by the Pre-Trial Judge under Rule 68(G), without prejudging the rights of any accused.
(B) Before rendering its decision, the Appeals Chamber shall hear the Prosecutor and the Head of Defence Office in public session.
(C) The accused has the right to request the reconsideration of the interlocutory decision under paragraph A, pursuant to Rule 140 without the need for leave from the presiding Judge. The request for reconsideration shall be submitted to the Appeals Chamber no later than thirty days after disclosure by the Prosecutor to the Defence of all material and statements referred to in Rule 110(A)(i).

I have a problem with this procedure on several levels which I’ll briefly expose now:

  • Whatever the merits of the procedure itself, from a purely textual point of view, I have a problem with the Judges giving themselves powers that the Statute itself does not give them. For me the whole procedure is ultra vires. In relation to this, I’m surprised that the Judges were given the power to draft the RPE themselves, after the many problems that arose in the ad hoc tribunals in relation to that (ex post facto justification of debatable evidentiary rules, creation of the new offense of contempt, etc.). The ICC rightly chose a different path and I believe it should always be the case Judges not be empowered to draft their own rules. In this sense, I contest the language of the document itself. It cannot be a “decision”, and the AC does not “determine” anything. It is at best a consultative procedure and can in no way be authoritative.
  • Second of all, from an institutional point of view, I find this is a perversion of the system, which leapfrogs the normal judicial process. Normally, an issue is dealt with after it has gone through the several steps of the proceedings, and reaches (or not) the Appeals Chamber based on the arguments of the parties and the reasoning of the other judges. By going straight to the AC at this early stage, it does not leave room for judicial dissent and limits the scope of opposition, even if an accused can indeed appeal some of the findings. In relation to this, the argument of expeditiousness is misleading. If we follow this logic, why bother with a two-tier jurisdiction at all and not ask the AC what it thinks on everything, to avoid too lengthy a trial? Which brings me to another point: the reasoning just assumes that the AC is always right. But that is not the case. Sometimes, I think it is better for a healthy debate to arise between lower-tiered judges for the case-law to settled, like at the ICC, rather than having the AC bully its opinion from the outset. The whole procedure seems to be a be a little too autocratic.
  • From a functional point of view I think it is just not the role of the Appeals Chamber to do what it did. Indeed, I agree that the Statute is a mess and needs clarification, but that does not necessarily mean that the AC should be given the advisory power to deal with that. One commentator on EJIL Talk!, Guillermo Otalora Lozano, referred to other practice by other Courts, both national and international. I quote him in extenso:

First, it is not uncommon for courts to exercise jurisdiction in abstracto. That is how many constitutional courts function in continental Europe and in my own jurisdiction in Latin America. In fact, the Italian Constitutional Court’s main vehicle of judicial review is the “question of constitutionality”, which is a legal question raised in abstracto by a lower judge. When the judge raises the question, proceedings are put on hold until the Court decides on the constitutional issue that bears on the proceedings. In Spain and Germany, parliamentary minorities may have the Courts review legislation on their constitutionality. In Colombia, some types of legislation are reviewed ex officio for constitutionality before the legislation is even enacted. In short, ex ante review is not at all exotic in judicial procedures in the world. It is not a very ‘common law’ way of doing things, but it is not really a rare thing to do in other jurisdictions. Advisory jurisdiction is also common in many international courts: ICJ, Inter-American Court of Human Rights, International Tribunal of the Law of the Sea, to name a few.

This is certainly true, but I fail to see the relevancy in the current case. The Courts in Guillermo’s examples are specifically set up for this purpose. And none of them are seized on the interpretation of the law, but rather on its constitutionality, or more generally its conformity with some other norm. I’m no comparative law expert, but I’m unaware of any system where a lower-court would actually go to a higher chamber to ask it to help it for the interpretation of a law (except the ECJ question préjudicielle, but this is very particular and was specifically set up for the interpretation of EU law). The AC is not a constitutional court, it is a criminal appeals chamber. And that is irrelevant of the fact of it being a civil law or a common law approach.
As for the comparison with other international institutions, it is, in my humble opinion, equally beside the point. They certainly have advisory jurisdiction, but as institutions as a whole towards the outside. The AC is an international court in and of itself. The AC is one chamber within the STL with a specific role in that institution. In any case, in link with my first point, if the drafters wanted the AC to be a consultative body, it should have said so in the Statute. It is not for the judges to self-appoint themselves.

I think a common mistake that is made in relation to international tribunals is to forget about functional specificity. We expect them to do everything and are therefore not surprised anymore when they go beyond their function. It is obvious with the ICC, which is expected to be a human rights court, a reparations court and a forum for victims as well as a criminal court. I think such insistence on trying to stuff so many functions in one institution is a recipe for that institute to fail in all its functions, and, most notably in its core one, that of being a criminal tribunal. But I suppose that is another debate…

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Breaking news: Prosecutor of Special Tribunal for Lebanon issues indictments

Posted on January 17, 2011 | 1 comment
A month later than had been originally expected in December, and according to an announcement on the website of the Special Tribunal for Lebanon:
The Registrar of the Special Tribunal for Lebanon, Herman von Hebel, can confirm that the Prosecutor of the tribunal has submitted an indictment and supporting materials to the Pre-Trial Judge. The documents, which relate to the assassination of Rafiq Hariri and others, were handed to the Registry at 16:35PM (local time) on Monday 17th January 2011. They will now be reviewed by the Pre-Trial Judge, Daniel Fransen. The contents of the indictment remain confidential at this stage.
According to the BBC, and as as reported by Bill Schabas in December, Hezbollah leaders are expected to be named in them. We’ll have to wait for the pre-trial judge to issue arrest warrants and for them to be unsealed to get confirmation. 

Politically, this is an interesting development, given that the STL is at the center of a typical Peace vs. Justice debate, as mentioned by the International Jurist last week, the indictments being seen as divisive and threatening an already fragile political situation in the country. Even Hariri’s son has asked for the Tribunal to back off. Despite this, “The Prosecutor and his team will continue to vigorously pursue his mandate with respect to both continued investigative activity and the prosecution of this case.” (statement here) and the UNSG reiterated his support for the tribunal last week.

Legally, I’ll have other opportunities to blog about this, but this tribunal has always seemed to me like an ill-thought enterprise from the start, with a poorly defined material jurisdiction (national crimes of terrorism, with only a reference to the national criminal code) and “factual” jurisdiction, for lack of a better word (the Hariri assassination and other crimes which are related to it, whatever that means). Also, what should be interesting, and what we should keep in mind is that the Tribunal is the first to allow trials in absentia, in the civil law tradition. So we don’t really need any arrests for trials to go forward. As I’ve had the opportunity of saying before, I am, on balance, in favor of such trials. Let’s have a live example to test the theory. Until I get a chance to share my own thoughts further on the tribunal, the STL has been kind enough to prepare a FAQ document on indictments for the general public.

More at a later stage when the Prosecutor issues a videotaped statement tomorrow.

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