July 20, 2019

The innovations of the STL and its role as a tribunal of terrorism crimes

In the picture, Judge Walid Akoum, Special Tribunal for Lebanon.

By Marwan Hani Osseiran.

I met with Trial chamber alternate Judge Walid Akoum to discuss with him the innovations of the Special Tribunal for Lebanon (STL) during a visit to the Court. The Tribunal is a tribunal of international character applying Lebanese criminal law to carry out the investigation and prosecution of those responsible for the 14 February 2005 assassination of Rafic Hariri, the former Lebanese Prime Minister, and the deaths of 21 others, as well as those responsible for connected attacks. The Tribunal has its seat in Leidschendam, a town and a former municipality in the province of South Holland in the Netherlands. It also maintains a field office in the Lebanese capital, Beirut. 

Judge Walid Akoum is a graduate of the Lebanese University. He was a lecturer at Law faculties in many Lebanese Universities and was appointed as a judge in 1978. In 1997, he was appointed as the investigative judge in Beirut. In 2002, he presided over the indictment Chamber of South Lebanon. In 2005, he presided over the Court of media and the Court of Appeal for misdemeanors in Beirut. At the time of his appointment to the Special Tribunal for Lebanon, Judge Akoum was a member of the Court of Cassation. In addition to his judicial activities, Judge Akoum has experience in both international and domestic human rights law. He participated in the training of Iraqi and Yemeni Judges notably on standards of fair trial and independence of judges. 

Judge Akoum stressed on the innovations of the Tribunal. They are numerous, including the role of the UN Security Council in the establishment of the Tribunal, its mandate as the first international tribunal with jurisdiction over terrorism, innovations regarding the establishment of a separate and independent defence office, the participation of victims in the proceedings, the application of the Lebanese criminal law, the provision of trials in absentia, mandatory presence of Lebanese judges, the presence of a single pre-trial judge to review and confirm the indictments, and a number of other developments. 

From the outset, the Lebanese government was at an impasse to finalize the creation of the Tribunal. Although the Tribunal was initially negotiated on the basis of a treaty between Lebanon and the United Nations, the Lebanese parties, at odd with each other’s, the parliament never convened to ratify the treaty. All those events lead to the extraordinary step of the United Nations Security Council adopting a resolution under Chapter VII of the UN Charter to create the Tribunal. Indeed, this matter contributed to many charges that the Tribunal was tainted and politicized.

Judge Akoum and other Lebanese Judges of the Tribunal were appointed directly by the Secretary-General, who chose them from a list of twelve persons presented by the Government of Lebanon upon the proposal of the Lebanese Supreme Council of the Judiciary. 

The presence of Lebanese judges was vital especially that the Tribunal’s statute provided for the application of the national law relating to terrorism. The Statute of the Tribunal clearly referred to the application of domestic Lebanese law concerning the applicable criminal law and the Lebanese Code of Criminal Procedure which are expected to provide guidance to the judges, who are instructed to also take into account other reference materials reflecting the highest standards of international criminal procedure. To this regard, the Tribunal, through the Appeal Chamber, issued an interlocutory decision on the applicable law of terrorism with the intent to guide the work of the pre-trial judge. In its decision, it clarified the obligation to follow the Lebanese Criminal Code, and not the Lebanese law in general or international law; adding that when interpreting the relevant provisions of the Lebanese Criminal Code, international law binding upon Lebanon may not be disregarded and that the relevant articles of the Lebanese Criminal Code shall be interpreted in consonance with international law.

Judge Walid Akoum and Marwan Hani Osseiran.

Hence, His Excellency explained that the STL is a sui generis(a class by its own) international institution, which should be examined and addressed as such. It is also unique in the way as it has a narrow mandate restricted to one attack and crimes connected within a specific period of time.

Judge Akoum explains that it is worthy to note that the STL is the only ad hoc international tribunal to conduct trials in absentia since the Nuremberg trials. The ICC as well as other tribunals like the ICTY rejected the idea of entertaining trials in absentia for the rare exceptions of proceeding in the absence of an accused during a certain limited part of a trial or passing of a sentence for instance. His Excellency explains that there has been varied and opposed beliefs of the use of trials in absentia. Some arguing that it might undermine the search for justice and illustrate weekends of the Tribunal. Others gave strong legal defence of trials in absentia. The reality was that the Tribunal was fated to conduct the trial and proceed in absentia due to exceptional circumstances and the inability for the government of Lebanon to deliver the accused to the Tribunal. In this case, all accused were notified through publication in the media and communication to the State of residence or nationality; hereby there was a near saturation media coverage in Lebanon and evidence of widespread publication of the indictment and an effort identifying information. To secure the right of a fair trial, the STL also through its Statute guaranteed a right to a retrial in the presence of the accused, in all cases when the person was convicted in absentia, does not accept the judgment. The other interesting element is that the various defence counsels have all been appointed by the Defence Office of the Tribunal. The Tribunal had determined that the accused had absconded and therefore the trials in absentia had to happen.

Another essential innovation of the Tribunal concerns the rights and participation of victims in the proceedings. The STL has taken a new development by referring to the “rights of victims” versus the simple “protection of victims and their participation in the proceedings”. In addition, the Rules of Procedures and Evidence of the Tribunal enshrine concrete rights of participation, such as automatic right, subject to a contrary decision by the pre-trial judge or Trial Chamber, to obtain non-confidential documents, the ability to call witnesses and tender evidence, and the ability to examine or cross-examine witnesses and file motions and briefs. All such rights are subject to the limitations to victims’ participation and reparation. Victims are generally excluded from the investigative phase and therefore can only ask to participate after the confirmation of the indictment. However, victims cannot obtain reparations at the STL; they would have to pursue a legal action in national court or other competent body to obtain reparation. 

Last but not least, the STL was the first international criminal tribunal to establish a defence office as a separate organ of the court. The establishment of an independent and autonomous defence office at the STL reinforces the principle of the equality of arms. Therefore, the Defence Office was put on an equal footing with the Office of the Prosecutor for certain purposes like rights of audience and negotiations in relation to matters of general interests to defence teams, the fairness of the proceedings, or the rights of a suspect or accused. The head of the Defence can also seek cooperation from any state, entity, or person, as well as the Lebanese authorities to provide the defence with relevant information and assistance. 

Conclusion

The STL through its unusual history, unique structure and the various innovations have left no stones unturned in this specific field of international criminal law. We hope to see the Tribunal becoming a reference and a benchmark for future legal challenges to combat the crimes of terrorism.  We hope that the tribunal will assist in showing that trials, even without the presence of the accused can be fair and lead to justice.

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