As we’ve noted, in absentia proceedings have finally begun before the Special Tribunal for Lebanon (STL), a joint creation of the United Nations and Lebanon in The Hague to address terrorist violence in Lebanon.
To provide some background for our readers: On February 14, 2005, a massive bomb killed former Lebanese Prime Minister Rafiq Hariri and 22 others. An investigation initiated shortly thereafter implicated a terrorist group with ties to the Syrian government. Subsequently, the U.N. Security Council sent a fact-finding mission to Lebanon to observe the Lebanese investigation. Upon the completion of this process, the Council noted in Resolution 1591 (Apr. 7, 2005) that the Lebanese
process suffers from serious flaws and has neither the capacity nor the commitment to reach a satisfactory and credible conclusion.
In response, the Security Council formed its own commission, the International Independent Investigation Commission (IIIC), for the purposes of assisting the Lebanese authorities in identifying the perpetrators. The IIIC was initially headed by Detlev Mehlis, a German prosecutor with expertise in organized crime and terrorism. (Mehlis investigated the 1986 Berlin discotheque bombing that injured over 200 persons and resulted in the deaths of two U.S. soldiers and a Turkish woman, an attack eventually linked to the Libyan intelligence service). The IIIC’s initial report concluded that:
given the infiltration of Lebanese institutions and society by the Syrian and Lebanese intelligence services working in tandem, it would be difficult to envisage a scenario whereby such a complex assassination plot could have been carried out without their knowledge.
Following the investigation into the Hariri assassination, Lebanese Prime Minister Fouad Siniora requested an extension of the IIIC’s mandate so that it could investigate all terrorist attacks having taken place in Lebanon since October 1, 2004. Furthermore, he requested the establishment of a “tribunal of an international character” to prosecute all those whom the IIIC found responsible. The Security Council obliged on all accounts in Resolution 1686 (Mar. 27, 2007), requesting the Secretary General to help the Lebanese government identify the nature and scope of the international assistance needed. The IIIC’s mandate was further extended to June 15, 2008 by Resolution 1748 (Mar. 27, 2007).
During this time, an agreement was reached between the Lebanese government and the U.N. as memorialized in a 2006 report of the Secretary-General and Security Council Resolution 1757 (May 30, 2007). For all practical purposes, the IIIC was eventually transformed into the Office of the Prosecutor of the new Tribunal. The new Tribunal is investigating the terrorist bombing that killed Mr. Hariri and potentially fourteen other related attacks of similar gravity committed between October 1, 2004 and December 12, 2005. The Tribunal has no jurisdiction over crimes committed during the Lebanese civil war (1975-1990) or other conflicts in the region since then. In terms of subject matter jurisdiction, the Lebanese government demanded that the applicable law be largely based on Lebanese domestic law. This distinguishes the STL from other hybrid institutions, such as the Special Court for Sierra Leone, which usually have jurisdiction over a mix of domestic and international law offenses. By contrast, the Tribunal can only assert jurisdiction over:
- The provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, including the rules regarding the material elements of a crime, criminal participation and conspiracy; and
- Articles 6 and 7 of the Lebanese law of 11 January 1958 on ‘Increasing the penalties for sedition, civil war and interfaith struggle.’
The Tribunal’s personal jurisdiction is broad, including all those responsible for perpetrating, organizing, and sponsoring the alleged crimes. This could include members of the Syrian intelligence services. As for the location of the Tribunal, the Secretary General said security concerns required it to be established outside Lebanon. With regard to personnel, the Tribunal is composed of both Lebanese and international judges and an international prosecutor (Canadian Norman Farrell, formerly of the ICTY) assisted by a Lebanese Deputy Prosecutor, Joyce Tabet. The international prosecutor and judges are appointed by the Secretary-General with recommendations from the Lebanese government and member states. Fifty-one per cent of the costs of the Special Tribunal are borne by voluntary contributions from States, while the Government of the Lebanese Republic finances the rest.
The Tribunal officially began to function on March 1, 2009. One of the first and most important rulings of the Tribunal to date resulted in the release of four generals who had been detained by the government of Lebanon without charges in connection with its investigation of the assassination. The Prosecutor did not object to the release on the ground that
the information currently available to him was insufficiently credible to warrant indictment of the persons detained.
In August 2011, Pre-Trial Judge Daniel Fransen of Belgium made public an amended indictment issued on June 10, 2011, and confirmed on June 28, 2011, against four Lebanese co-accused associated with Hezbollah: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra, the subject of the proceedings this week. Prior to that point, the indictment had, at the request of the Prosecutor, been kept under seal in order to “ensure the integrity of the judicial procedure” and enable the search for and apprehension of the accused. The nine-count indictment—which concerns the assassination of Hariri, the death 21 others, and the injury of 231 others—charges:
- Conspiracy aimed at committing a terrorist act;
- Committing a terrorist act by means of an explosive device;
- Intentional homicide with premeditation using explosive materials;
- Attempted intentional homicide with premeditation by using explosive materials; and
- Being an accomplice to the above.
Much of the cited evidence against the accused is circumstantial and involves call data records from a number of networked mobile phones that show surveillance on Hariri in advance of his death as well as coordination leading up to the assassination and the purchase of the Mitsubishi van that carried the explosives.
When the Prosecutor submitted the first indictment for confirmation, the Pre-Trial Judge certified several preliminary questions relating to the charged offenses and modes of responsibility to the Appeals Chamber. By way of an interlocutory advisory decision, the Appeals Chamber—then headed by the late Italian jurist Antonio Cassese—replied to these questions in February 2011. The panel’s unanimous decision contained an exegesis on the customary international law prohibiting terrorism and the elements of the crime. Because the Tribunal is limited to applying Lebanese law, much of this analysis is more in the nature of an academic treatise except insofar as it will be used to interpret domestic law, but it reflects the longstanding position of Professor Cassese.
In another part of this opinion, the Appeals Chamber indicated that the STL is empowered to apply all customary international law modes of responsibility, including joint criminal enterprise, to the crimes within its jurisdiction so long as these forms of responsibility are not less favorable to the defense. That said, the Tribunal rejected in advance the applicability of the third form of joint criminal enterprise (JCE)—which allows for the conviction of an individual for a crime that was the foreseeable result of an agreement to commit a different crime—to the crime of terrorism, reasoning that terrorism is a specific intent crime, and that JCE III allows for liability to attach where the defendant exhibited mere recklessness. In this regard, the STL departed from the precedent of the other ad hoc tribunals, which have convicted individuals for being a part of a joint criminal enterprise that resulted in the commission of genocide, also a specific intent crime.
In a subsequent opinion, and as will be discussed in a later post, the Tribunal determined that it would proceed in absentia in light of the fact that the 4 defendants had successfully evaded justice. It is those proceedings that began this week.