Earlier this month, the first trials at the Special Tribunal for Lebanon (STL) finally got under way. Karlijn van der Voort joins JiC for this very timely overview of the many difficulties and challenges facing this unique tribunal. Karlijn is a defence lawyer at Verwiel & Van der Voort advocaten and formerly worked for defence teams at the International Criminal Court, Cambodia Tribunal, Yugoslavia Tribunal, Rwanda Tribunal and the Special Court for Sierra Leone. Karlijn is also the author of the Special Tribunal for Lebanon Blog where she is following and commenting on developments at the STL. Enjoy!

(Photo: Toussaint Kluiters / Pool Photo / LA Times)

Delivering justice and accountability in the wake of the assassination of former Lebanese Prime Minister Rafik Hariri was always going to be a tall order. Indeed, the Special Tribunal for Lebanon (STL), set up to prosecute those responsible for Hariri’s death, has been beset by controversy ever since it was established. Yet the tribunal has marched onwards and, earlier this month, proceedings against four persons began. The road ahead is replete with challenges. So what can we expect from the STL?

First, a brief backgrounder. At the request of Lebanon, the STL was created in 2007 to prosecute the persons responsible for the 14 February 2005 assassination of Hariri and 21 others, as well as the injuring of 226 more persons. In the indictment against the four accused, the Prosecution outlines that the attack was carried out by a suicide bomber who detonated large quantities of explosives concealed in a Mitsubishi Canter van, aimed at former President Hariri’s convoy close to the St. George Hotel in Beirut, Lebanon.

Trials and Tribunals – In Absentia

On 16 January of this year, the trial proceedings against the first four accused persons commenced (a fifth accused may also be joined to this case) with the Prosecution’s opening statement, though the defendants were not present in the courtroom. Whilst the Tribunal has asked for the handing over of the indicted individuals, the Lebanese authorities have been unable (or unwilling) to do so. Though no one at the Tribunal seems to know exactly where the accused are, chances are that they are hiding somewhere in Hezbollah-governed territory.

Whilst every tribunal faces its own difficulties, the complexities that this Tribunal faces are of a different nature. To begin with, it is for the first time that an international tribunal tries suspects in absentia. This concept is fairly unknown to common law systems, but forms part of the criminal proceedings in most civil law systems. The Lebanese criminal system itself allows trials to try accused persons in their absence if certain strict criteria have been fulfilled. The main criteria are that (i) the accused is informed of the proceedings against him, or everything has been done to ensure that he is informed and one can reasonably assume that he has been informed, and (ii) that the accused person has the right to a retrial if he is apprehended or otherwise shows up in the future. These represent the two main safeguards that are supposed to protect an accused’s rights in case of an in absentia trial.

Given that this is the first time an international tribunal will try suspects in the absence of the accused, the subject of trials in absentia has received a lot of attention, and criticism. It is already challenging to hold in absentia trials in a domestic setting, but the fact that these trials are in an international forum adds an additional layer of complexity. The assassination occurred nine years ago. What if, in ten years’ time, these individuals are arrested and a retrial takes place some twenty years after the events? Will it then still be possible to find witnesses who can testify to their version of the events? Or will the Tribunal mainly rely on the evidence collected by the Prosecution during the initial proceedings? Will the accused be in a position to receive a fair retrial or will that be impossible at that stage?

The accused. (Photo: Reuters Handout)

Trying ‘Terrorism’

A further complication this trial faces derives from the fact that it marks the first time that an international tribunal will prosecute suspects for the act of terrorism. The Statute stipulates that the Tribunal applies Lebanese law, but the Appeals Chamber held that, in defining terrorism, the Tribunal can be guided by international treaty and customary law. This represents the first time that an international tribunal has defined terrorism as an international crime, despite the fact that the international community has, to date, failed to lay down an authoritative definition of this crime. This means that the Tribunal has assumed a responsibility in creating case law on this matter but without any international precedent to draw upon.

Prosecutorial Motivations

Yet another difficulty in this trial is that the Prosecution seems to have been unable to identify or define a motive for the assassination. Though the indictment mentions the alleged intent of the accused, it fails to define a motive. Counsel Mr. Courcelle-Labrousse for defendant Oneissi argued that the Prosecution’s case against his client was “bereft of motive”. Though motive is not an element of the crime of terrorism, the Defence is expected to allege that failure to argue and prove such motive will make the case against their clients a lot weaker. William Schabas writes that: “If an accused can prove lack of motive, this will colour assessment of ostensibly inculpatory factors, especially if the evidence is indirect.” Attacking the Prosecution case from this angle will provide the Defence counsel with a strategy that they are able to pursue without receiving instructions from their clients who are at large and with whom they do not have any contact.

Legal Circumstances and Circumstantial Evidence

Another element of the difficulties in the Prosecution case is the fact that the evidence it has collected is largely circumstantial or indirect. The indictment relies heavily, if not only, on analysis of mobile phones that the accused persons allegedly used in the preparation of the assassination. The evidence does not contain records of the actual phone conversations but only an analysis of the communications between the different phone numbers, and co-location thereof, i.e. where and when the mobile phones were used. This limitation of the Prosecution’s case, combined with the fact that the Prosecution has presented no motive in its indictment, will undoubtedly make the Prosecution’s case a difficult one to start with. The Defence is expected to put a lot of emphasis on these elements during the trial, as this is one of the few points they can rely on in their in absentia strategies.

The STL is the first tribunal since Nuremberg to hold trials in absentia (Photo: STL)

The Wider Political Context

An obvious further complication that cannot be left out of this analysis is the political situation both inside Lebanon as well as in the wider geographical area. Inside Lebanon, the rivalry between two political camps continues: the Sunni and pro-Western March 14 movement led by Rafik Hariri’s son Saad Hariri and the camp led by Hezbollah, a Shia religious, political and military organization in Lebanon and backed by Syria and Iran. The conflict between these two camps has not abated since the creation of the Lebanon Tribunal. The promise of an end to the political violence that was made prior to the creation of the Tribunal has been broken. Indeed, the situation has become even more volatile and the Tribunal has caused an ever-stronger divide within Lebanese society.

This potential for instability is not limited to Lebanese society, but is embedded in a much wider political, religious and military conflict that keeps the whole region within its grasp. Initially, Hezbollah’s attempt to halt the Tribunal was supported by Syria and Saudi Arabia, whilst Lebanon pushed for the creation of the court and was backed by a large section of the international community. Syria and Iran both back the Hezbollah movement, an organization which has also played an active role in the current crisis in Syria. This is not the place for an analysis of the wider political implications of the tribunal and regional politics, but it is clear that this web of conflicts influences and complicates proceedings at the Tribunal. A key question that arises, however, is whether and to what extent the Prosecution’s failure to define a motive in the indictment is linked to the political sensitivities that surround this case.

Managing Expectations

Given all of the above political and legal complexities, one must be careful not to have too high of expectations for these proceedings. This Tribunal must be seen in its context: it is a new tribunal with novel features. As with the other international tribunals and courts, the STL aspires to contribute to achieving some form of justice, but one must be careful not to expect too high a standard. These institutions are not infallible; they are institutions stepping in where national justice is unable to find or provide a solution. Any hope that the international community can achieve justice for all in such a case is simply naïve. The most one can hope for is that such an institution can create a narrative of what happened and who is ultimately responsible for the events of 14 February 2005 and its aftermath. As importantly, even though the inherent shortcomings of this Tribunal and similar institutions must be recognized, it is of the utmost importance that the accused persons’ rights are safeguarded. The legitimacy of international criminal tribunals depends on that.