By Katherine Iliopoulos
An enormous blast rocked the Beirut seafront on February 14, 2005. A car bomb had exploded, killing Former Lebanese Prime Minister Rafiq Hariri, who had led opposition to Syria’s 29-year occupation of Lebanon. The explosion killed 22 others, including bodyguards and bystanders, and injured 220. The following day, the UN Security Council issued a presidential statement condemning the attack as a ‘terrorist bombing’ which it later described in Resolution 1636 as a ‘threat to international peace and security’. It was the latest in a string of high-profile assassinations and assassination attempts targeting Lebanese figures that had started in October 2004.
The Security Council in 2005 established the UN International Independent Investigation Commission (UNIIIC) after it found that the Lebanese investigation into the incidents was seriously flawed. On October 31 2005, it passed Resolution 1636 calling for Syrian cooperation and setting up sanctions against individuals suspected by UNIIC of playing a role in the assassination.
There have been two international independent investigators, Detlev Mehlis and Serge Brammertz who, early in the four-year probe into Mr Hariri’s death, implicated top Syrian officials in the plot. Damascus has firmly denied involvement.
In 2005, Lebanese Prime Minister Fuad Siniora, a close friend and former business colleague of Hariri, requested the Security Council to establish a tribunal to “establish a tribunal of an international character to convene in or outside Lebanon, to try all those who are found responsible for the terrorist crime perpetrated against Prime Minister Hariri”. The Security Council acknowledged the Lebanese government’s request in Resolution 1644 by which the Security Council requested the Secretary-General to negotiate an agreement with the Lebanese government to establish a tribunal of an international character.
The Special Tribunal for Lebanon (STL) was established in 2007 pursuant to Security Council Resolution 1757. The Tribunal marks an unprecedented moment in the history of international criminal justice, being the first international judicial body to address a political crime that targeted specific political assassinations.
The Tribunal opened on March 1, 2009, with United Nations Secretary-General Ban Ki-Moon saying that “the commencement of the Tribunal’s work marks a decisive milestone in the tireless efforts by all Lebanese and the international community to uncover the truth, bring those responsible for this assassination and related crimes to justice and end impunity”.
The STL is a mixed or ‘hybrid’ tribunal set up to try the alleged perpetrators of a series of assassinations and assassination attempts on prominent Lebanese political and media figures beginning in 2004. It will mostly apply Lebanese law. The crimes under Lebanese law that form part of the STL’s jurisdiction include terrorism, murder, criminal associations and failing to report crimes. The Tribunal will employ some modes of liability that are found in international law, such as the doctrine of ‘common purpose’ doctrine, better known as ‘joint criminal enterprise’, as well as the doctrine of ‘superior responsibility’ which generally reflects Article 28 of the Rome Statute of the International Criminal Court.
No indictments have yet been issued as a result of the wide-ranging investigations, and it is unknown as to when any individuals will be indicted or whether the court will have enough evidence to issue indictments against Syrian officials. Lebanese authorities are holding four pro-Syrian generals accused of involvement in the assassination. Prosecutor Daniel Bellemare said on March 4 that he will continue his investigations without political interference and said he will call upon Lebanese authorities to turn over the suspects.
The Assassination of Hariri as an Act of Terrorism
The STL has jurisdiction to try those accused of attacks that occurred in Lebanon between October 1, 2004, and December 12, 2005, including that of Hariri. In a number of Resolutions, the Security Council has repeatedly characterized crimes falling within the mandate of the STL as terrorist acts or terrorist crimes.
By agreement, the UNSC and the Government of Lebanon deemed the attack against Hariri as a crime committed in violation of Lebanese national law. Article 2 of the STL Statute reflects this, providing that Lebanese criminal law shall apply to trying the suspected perpetrators of the crime against Hariri.
Article 314 of the Lebanese Penal Code defines “terrorist acts” as “acts designed to create a state of alarm which are committed by means such as explosive devices, inflammable materials, poisonous or incendiary products or infectious or microbial agents likely to create a public hazard”.
The attack on Hariri was committed with explosives, and the crime of terrorism could be said to have been committed under Lebanese law if it could be proved that the perpetrators intended to ‘create a state of alarm’.
Because other States besides Lebanon are not bound by any Security Council resolution to co-operate with the Tribunal, arrests or surrenders of nationals belonging to other States – for example, Syria - may not be carried out, especially where national laws grant immunities to certain persons. Under the Statute, the Tribunal is has the competence to make decisions regarding the applicability of immunity.
But under customary international law, the crime of terrorism is not a sub-category of any of the universal crimes such as genocide, crimes against humanity and war crimes. As such it appears unlikely that immunity of heads of states or other high-level officials will be lifted in any case at the Tribunal. This is in contrast to the provisions of the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court. Notably, Article 6 of the Statute specifies that amnesties shall not constitute a bar to prosecution before the Tribunal.
Most of the international conventions and protocols pertaining to terrorism are penal in nature and in general they define a particular type of terrorist violence as an offence under the convention, such as seizure of an aircraft in flight by threat or violence; require State Parties to penalize that activity in their domestic law; identify certain bases upon which the Parties responsible are required to establish jurisdiction over the defined offence, such as registration, territoriality or nationality; and create an obligation on the State in which a suspect is found to establish jurisdiction over the convention offence and to either refer the offence for prosecution or extradite the suspect to another state where prosecution can take place. This last element is commonly known as the principle of “no safe haven for terrorists”. It was emphasised by the Security Council in Resolution 1373 (28 September 2001) as an essential anti-terrorism obligation of Member States. A number of other UN General Assembly and Security Council resolutions have condemned terrorism and in some cases have obliged States to co-operate in preventing and punishing terrorist acts.
Syria has ratified a number of UN anti-terrorism conventions, including the 1997 International Convention for the Suppression of Terrorist Bombings. Yet Article 12 states that “nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons”. Article 12 could potentially be invoked by Syria to avoid handing over suspected Syrian nationals to the STL. At the same time, should Syria instead choose to prosecute alleged suspects under its own domestic law, this raises the possibility of the imposition of the death penalty. Under the Syrian Penal Code, “a sentence of death is warranted for any terrorist act that results in the destruction (even partial) of a building or transportation vessel or if the act causes the death of a person”. The highest penalty imposable under the STL Statute is life imprisonment.
Trials In Absentia
Should Syria choose not to hand over a defendant, which is considered highly likely, the Tribunal may also hear the trial in absentia, that is, without the defendant being present. Under the STL Statute, trials of the accused in absentia are possible under two other circumstances: if the accused has waived his or her right to be present or if the accused has fled or cannot be found.
The possibility of trial in absentia is a controversial feature that does not exist in other international or hybrid tribunals however such trials are not uncommon in Europe. And at the Nuremberg Tribunal, Hitler’s secretary Martin Bormann was tried, convicted and sentenced to death in his absence.
In a 1993 Report of the UN Secretary-General pursuant to UNSC Resolution 808 which established the ICTY, Kofi Annan stated that “there is a widespread perception that trials in absentia should not be provided for [in the ICTY Statute] as this would be inconsistent with Article 14 of the International Covenant on Civil and Political Rights which provides that the accused shall be entitled to be tried in his presence” which is a fundamental aspect of the right to a fair trial. The Human Rights Committee has said that Article 14 does not present a bar to trials in absentia, saying that “proceedings in absentia are in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) permissible in the interest of the proper administration of justice”. Nicolas Michel, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel said at a UN Press Conference on 2 May 2007 that trials in absentia would be possible at the STL in the event that accused individuals failed to show up for trial and whether that was due to the their Government’s failure to surrender them or other reasons.
Syrian President Bashar Al-Assad has maintained that he is prepared to cooperate with the UN investigation but that any Syrian suspects would have to stand trial in Syria, having reminded the Syrian parliament in 2007 of the difference between cooperation and relinquishing national sovereignty. A Security Council resolution demanding co-operation could be drafted if Syria were to refuse to surrender any of its nationals but such a resolution could be vetoed by any of the P-5.
International human rights organisations such as Amnesty International and Human Rights Watch do not agree with trials in absentia except for in very limited circumstances. Amnesty International contends that “trials should generally not be conducted in the absence of the accused, unless the accused has deliberately absented themselves from the proceedings after they have begun or has been so disruptive that they have had to be removed temporarily”. Both organisations believe that if someone is arrested after having been convicted in absentia, the verdict should be quashed and a completely new trial should be held in a different judicial forum. Following the case law of the European Court of Human Rights, Article 22(3) of the STL Statute allows for retrial, except where an absent defendant was represented at trial by counsel of his or her own choosing. Article 5(1) of the STL Statute appears to prohibit Lebanese courts retrying individuals convicted by the STL.
Selective Justice?
One of the objections that originated from both within and outside the Security Council deliberations consisted of concerns that such a Tribunal would constitute interference in the domestic affairs of Lebanon and a violation of its sovereignty, concerns voiced most loudly by Security Council Permanent Members Russia and China.
There are also fears that the STL will become synonymous with with the public accusation of the most influential elites in Syria. The activism of the UN in establishing the STL is seen by Amnesty International to contrast with the UN’s perceived inaction during and after the 2006 conflict between Israel and Hezbollah, during which some 1,000 Lebanese civilians and 43 Israeli civilians were killed and tens of thousands of Lebanese homes and other civilian infrastructure were destroyed. Had justice been politicised?
Amnesty International (AI) has said that the STL “will do nothing to address the enormous number of other grave human rights abuses committed in Lebanon in recent decades, raising concern that the justice being promoted is politically selective” thereby undermining its legitimacy. According to AI, Lebanese authorities have not addressed the legacy of gross human rights abuses of the past, in particular, those committed during and following the 15-year Lebanese civil war of 1975 to 1990, during which mass human rights abuses were committed with impunity, including the killing of at least 100,000 civilians and approximately 17,000 ‘enforced disappearances’ of Lebanese, Palestinian, and foreign nationals, and arbitrary detentions by various armed militias and Syrian and Israeli government forces. The crimes that were allegedly committed fall outside the narrow mandate of the STL. AI has called for Lebanon’s 1991 general amnesty law to be repealed, under which those responsible for crimes committed before 28 March 1991, other than in a few exceptions, were granted immunity against prosecution.
Rafiq al-Hariri, a Sunni Muslim and self-made billionaire businessman, was prime minister of Lebanon from 1992 to 1998 and again from 2000 to 2004. Following his assassination, there were massive demonstrations in Beirut that resulted in the eventual withdrawal of Syrian troops on 26 April 2005. Those protests developed into a public movement known as the “March 14 movement” which has been a strong advocate of international involvement in the investigation and prosecution of the assassination of Rafiq al-Hariri and certain other killings.
The aftermath also saw a dramatic series of events that changed the Lebanese political landscape, including the election in June 2005 of a coalition led by Hariri’s son Sa’ad and the consolidation of an alliance of Sunni Muslim and other political parties who had become increasingly opposed to Syrian influence in Lebanon, as well as the end of Syrian occupation by the end of April 2005.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Start of Lebanon Tribunal ‘decisive milestone’ in pursuit of justice - Ban
UN News Centre
March 1, 2009
Lebanon: Special Tribunal Insufficient without Wider Action to Combat Impunity
Amnesty International
February 27, 2009
Security Council Resolution 1757 (2007)
United Nations
Handbook on the Special Tribunal for Lebanon (PDF)
International Centre for Transitional Justice
Special Tribunal for Lebanon Official Website
Hariri Tribunal Opens in The Hague
An enormous blast rocked the Beirut seafront on February 14, 2005. A car bomb had exploded, killing Former Lebanese Prime Minister Rafiq Hariri, who had led opposition to Syria’s 29-year occupation of Lebanon. The explosion killed 22 others, including bodyguards and bystanders, and injured 220. The following day, the UN Security Council issued a presidential statement condemning the attack as a ‘terrorist bombing’ which it later described in Resolution 1636 as a ‘threat to international peace and security’. It was the latest in a string of high-profile assassinations and assassination attempts targeting Lebanese figures that had started in October 2004.
The Security Council in 2005 established the UN International Independent Investigation Commission (UNIIIC) after it found that the Lebanese investigation into the incidents was seriously flawed. On October 31 2005, it passed Resolution 1636 calling for Syrian cooperation and setting up sanctions against individuals suspected by UNIIC of playing a role in the assassination.
There have been two international independent investigators, Detlev Mehlis and Serge Brammertz who, early in the four-year probe into Mr Hariri’s death, implicated top Syrian officials in the plot. Damascus has firmly denied involvement.
In 2005, Lebanese Prime Minister Fuad Siniora, a close friend and former business colleague of Hariri, requested the Security Council to establish a tribunal to “establish a tribunal of an international character to convene in or outside Lebanon, to try all those who are found responsible for the terrorist crime perpetrated against Prime Minister Hariri”. The Security Council acknowledged the Lebanese government’s request in Resolution 1644 by which the Security Council requested the Secretary-General to negotiate an agreement with the Lebanese government to establish a tribunal of an international character.
The Special Tribunal for Lebanon (STL) was established in 2007 pursuant to Security Council Resolution 1757. The Tribunal marks an unprecedented moment in the history of international criminal justice, being the first international judicial body to address a political crime that targeted specific political assassinations.
The Tribunal opened on March 1, 2009, with United Nations Secretary-General Ban Ki-Moon saying that “the commencement of the Tribunal’s work marks a decisive milestone in the tireless efforts by all Lebanese and the international community to uncover the truth, bring those responsible for this assassination and related crimes to justice and end impunity”.
The STL is a mixed or ‘hybrid’ tribunal set up to try the alleged perpetrators of a series of assassinations and assassination attempts on prominent Lebanese political and media figures beginning in 2004. It will mostly apply Lebanese law. The crimes under Lebanese law that form part of the STL’s jurisdiction include terrorism, murder, criminal associations and failing to report crimes. The Tribunal will employ some modes of liability that are found in international law, such as the doctrine of ‘common purpose’ doctrine, better known as ‘joint criminal enterprise’, as well as the doctrine of ‘superior responsibility’ which generally reflects Article 28 of the Rome Statute of the International Criminal Court.
No indictments have yet been issued as a result of the wide-ranging investigations, and it is unknown as to when any individuals will be indicted or whether the court will have enough evidence to issue indictments against Syrian officials. Lebanese authorities are holding four pro-Syrian generals accused of involvement in the assassination. Prosecutor Daniel Bellemare said on March 4 that he will continue his investigations without political interference and said he will call upon Lebanese authorities to turn over the suspects.
The Assassination of Hariri as an Act of Terrorism
The STL has jurisdiction to try those accused of attacks that occurred in Lebanon between October 1, 2004, and December 12, 2005, including that of Hariri. In a number of Resolutions, the Security Council has repeatedly characterized crimes falling within the mandate of the STL as terrorist acts or terrorist crimes.
By agreement, the UNSC and the Government of Lebanon deemed the attack against Hariri as a crime committed in violation of Lebanese national law. Article 2 of the STL Statute reflects this, providing that Lebanese criminal law shall apply to trying the suspected perpetrators of the crime against Hariri.
Article 314 of the Lebanese Penal Code defines “terrorist acts” as “acts designed to create a state of alarm which are committed by means such as explosive devices, inflammable materials, poisonous or incendiary products or infectious or microbial agents likely to create a public hazard”.
The attack on Hariri was committed with explosives, and the crime of terrorism could be said to have been committed under Lebanese law if it could be proved that the perpetrators intended to ‘create a state of alarm’.
Because other States besides Lebanon are not bound by any Security Council resolution to co-operate with the Tribunal, arrests or surrenders of nationals belonging to other States – for example, Syria - may not be carried out, especially where national laws grant immunities to certain persons. Under the Statute, the Tribunal is has the competence to make decisions regarding the applicability of immunity.
But under customary international law, the crime of terrorism is not a sub-category of any of the universal crimes such as genocide, crimes against humanity and war crimes. As such it appears unlikely that immunity of heads of states or other high-level officials will be lifted in any case at the Tribunal. This is in contrast to the provisions of the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court. Notably, Article 6 of the Statute specifies that amnesties shall not constitute a bar to prosecution before the Tribunal.
Most of the international conventions and protocols pertaining to terrorism are penal in nature and in general they define a particular type of terrorist violence as an offence under the convention, such as seizure of an aircraft in flight by threat or violence; require State Parties to penalize that activity in their domestic law; identify certain bases upon which the Parties responsible are required to establish jurisdiction over the defined offence, such as registration, territoriality or nationality; and create an obligation on the State in which a suspect is found to establish jurisdiction over the convention offence and to either refer the offence for prosecution or extradite the suspect to another state where prosecution can take place. This last element is commonly known as the principle of “no safe haven for terrorists”. It was emphasised by the Security Council in Resolution 1373 (28 September 2001) as an essential anti-terrorism obligation of Member States. A number of other UN General Assembly and Security Council resolutions have condemned terrorism and in some cases have obliged States to co-operate in preventing and punishing terrorist acts.
Syria has ratified a number of UN anti-terrorism conventions, including the 1997 International Convention for the Suppression of Terrorist Bombings. Yet Article 12 states that “nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons”. Article 12 could potentially be invoked by Syria to avoid handing over suspected Syrian nationals to the STL. At the same time, should Syria instead choose to prosecute alleged suspects under its own domestic law, this raises the possibility of the imposition of the death penalty. Under the Syrian Penal Code, “a sentence of death is warranted for any terrorist act that results in the destruction (even partial) of a building or transportation vessel or if the act causes the death of a person”. The highest penalty imposable under the STL Statute is life imprisonment.
Trials In Absentia
Should Syria choose not to hand over a defendant, which is considered highly likely, the Tribunal may also hear the trial in absentia, that is, without the defendant being present. Under the STL Statute, trials of the accused in absentia are possible under two other circumstances: if the accused has waived his or her right to be present or if the accused has fled or cannot be found.
The possibility of trial in absentia is a controversial feature that does not exist in other international or hybrid tribunals however such trials are not uncommon in Europe. And at the Nuremberg Tribunal, Hitler’s secretary Martin Bormann was tried, convicted and sentenced to death in his absence.
In a 1993 Report of the UN Secretary-General pursuant to UNSC Resolution 808 which established the ICTY, Kofi Annan stated that “there is a widespread perception that trials in absentia should not be provided for [in the ICTY Statute] as this would be inconsistent with Article 14 of the International Covenant on Civil and Political Rights which provides that the accused shall be entitled to be tried in his presence” which is a fundamental aspect of the right to a fair trial. The Human Rights Committee has said that Article 14 does not present a bar to trials in absentia, saying that “proceedings in absentia are in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) permissible in the interest of the proper administration of justice”. Nicolas Michel, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel said at a UN Press Conference on 2 May 2007 that trials in absentia would be possible at the STL in the event that accused individuals failed to show up for trial and whether that was due to the their Government’s failure to surrender them or other reasons.
Syrian President Bashar Al-Assad has maintained that he is prepared to cooperate with the UN investigation but that any Syrian suspects would have to stand trial in Syria, having reminded the Syrian parliament in 2007 of the difference between cooperation and relinquishing national sovereignty. A Security Council resolution demanding co-operation could be drafted if Syria were to refuse to surrender any of its nationals but such a resolution could be vetoed by any of the P-5.
International human rights organisations such as Amnesty International and Human Rights Watch do not agree with trials in absentia except for in very limited circumstances. Amnesty International contends that “trials should generally not be conducted in the absence of the accused, unless the accused has deliberately absented themselves from the proceedings after they have begun or has been so disruptive that they have had to be removed temporarily”. Both organisations believe that if someone is arrested after having been convicted in absentia, the verdict should be quashed and a completely new trial should be held in a different judicial forum. Following the case law of the European Court of Human Rights, Article 22(3) of the STL Statute allows for retrial, except where an absent defendant was represented at trial by counsel of his or her own choosing. Article 5(1) of the STL Statute appears to prohibit Lebanese courts retrying individuals convicted by the STL.
Selective Justice?
One of the objections that originated from both within and outside the Security Council deliberations consisted of concerns that such a Tribunal would constitute interference in the domestic affairs of Lebanon and a violation of its sovereignty, concerns voiced most loudly by Security Council Permanent Members Russia and China.
There are also fears that the STL will become synonymous with with the public accusation of the most influential elites in Syria. The activism of the UN in establishing the STL is seen by Amnesty International to contrast with the UN’s perceived inaction during and after the 2006 conflict between Israel and Hezbollah, during which some 1,000 Lebanese civilians and 43 Israeli civilians were killed and tens of thousands of Lebanese homes and other civilian infrastructure were destroyed. Had justice been politicised?
Amnesty International (AI) has said that the STL “will do nothing to address the enormous number of other grave human rights abuses committed in Lebanon in recent decades, raising concern that the justice being promoted is politically selective” thereby undermining its legitimacy. According to AI, Lebanese authorities have not addressed the legacy of gross human rights abuses of the past, in particular, those committed during and following the 15-year Lebanese civil war of 1975 to 1990, during which mass human rights abuses were committed with impunity, including the killing of at least 100,000 civilians and approximately 17,000 ‘enforced disappearances’ of Lebanese, Palestinian, and foreign nationals, and arbitrary detentions by various armed militias and Syrian and Israeli government forces. The crimes that were allegedly committed fall outside the narrow mandate of the STL. AI has called for Lebanon’s 1991 general amnesty law to be repealed, under which those responsible for crimes committed before 28 March 1991, other than in a few exceptions, were granted immunity against prosecution.
Rafiq al-Hariri, a Sunni Muslim and self-made billionaire businessman, was prime minister of Lebanon from 1992 to 1998 and again from 2000 to 2004. Following his assassination, there were massive demonstrations in Beirut that resulted in the eventual withdrawal of Syrian troops on 26 April 2005. Those protests developed into a public movement known as the “March 14 movement” which has been a strong advocate of international involvement in the investigation and prosecution of the assassination of Rafiq al-Hariri and certain other killings.
The aftermath also saw a dramatic series of events that changed the Lebanese political landscape, including the election in June 2005 of a coalition led by Hariri’s son Sa’ad and the consolidation of an alliance of Sunni Muslim and other political parties who had become increasingly opposed to Syrian influence in Lebanon, as well as the end of Syrian occupation by the end of April 2005.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Start of Lebanon Tribunal ‘decisive milestone’ in pursuit of justice - Ban
UN News Centre
March 1, 2009
Lebanon: Special Tribunal Insufficient without Wider Action to Combat Impunity
Amnesty International
February 27, 2009
Security Council Resolution 1757 (2007)
United Nations
Handbook on the Special Tribunal for Lebanon (PDF)
International Centre for Transitional Justice
Special Tribunal for Lebanon Official Website
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