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

Abstract
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.

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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 44–7; 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 1129–36.

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 SCSL.

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.

* Rechtsreferendar, Hanseatic High Court, Hamburg; doctoral candidate, Walther Schücking Institute of International Law, University of Kiel (). This article is partly based on research for my doctoral thesis, ‘The Historiographic Mission of International Criminal Courts and Its Influence on the Position of the Defendant in the Trial’. Thanks are due to Carl-Sebastian Zoellner, Alexander Hoffmann, and Tobias Thienel for helpful comments. The usual disclaimer applies.

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