The special tribunal for Lebanon's innovative human rights framework: between enhanced legislative codification and increased judicial law-making.

Author:Croquet, Nicolas A.J.
Position:P. 351-395
  1. INTRODUCTION II. OVERVIEW OF THE APPLICABLE HUMAN RIGHTS FRAMEWORK A. Application of International Human Rights Standards B. Rights of a Suspect or Rights Connected to the Interrogation of a Person C. Fair Trial Rights and Defense Rights D. Rights of the Victims E. Express Limitation and Qualification Clauses F. Preliminary Assessment III. FIRST NORMATIVE DIRECTION: TOWARDS MORE CODIFICATION A. Admissibility of Evidence Obtained in Breach of International Human Rights Standards B. Interlocutory Appeals C. Right to Cross-Examine Prosecution Witnesses and Absolute Anonymity D. Right to Self-Representation and the Assignment of Defense Counsel to the Accused Against his/her Wishes E. Preliminary Assessment IV. SECOND NORMATIVE DIRECTION: MULTIPLICATION OF INSTANCES OF JUDICIAL LAW-MAKING A. Judicial Adoption of a Human Rights Enabling Clause B. Inference of Implied Human Rights C. Implied External Limits upon Human Rights 1. The Right of Suspects and of Accused Persons to Communicate Freely with their Defense Counsels 2. Detainees' Rights to Free Movement, to Privacy, and Against Inhumane and Degrading Treatment 3. The Right to Have Criminal Case-File Access 4. The Right of Persons Accused of Contempt of Court to Freedom of Expression 5. Comparison of the Various Proportionality Analyses Underlying the Implied Limitation Processes D. Increased Normativity Attached to Certain Human Rights 1. From Derogable to Non-Derogable 2. From Non-Derogable to Imperative Human Rights Norms E. Preliminary Assessment V. IMPACT OF THE TWO NORMATIVE DIRECTIONS ON THE LEVEL OF HUMAN RIGHTS PROTECTION A. Human Rights Innovations Relating to the First Normative Direction B. Human Rights Innovations Relating to the Second Normative Direction I. INTRODUCTION

    The Special Tribunal for Lebanon (STL) is an ad hoc international criminal tribunal entrusted with the prosecution and the trial of those persons involved in the terrorist attack that caused the death of the former Lebanese Prime Minister Rafiq Hariri and the death or wounding of other persons on February 14, 2005, and of those persons responsible for connected acts that took place between October 1, 2004, and December 12, 2005, or at a later date as determined by the Lebanese Government and the United Nations (UN). (1) The STL was established by the UN Security Council (UNSC) under its Chapter VII powers. (2) This international criminal tribunal has five important features: (i) the STL, although created by the UNSC, is formally independent of the UN System whilst still entertaining certain functional links with it; (3) (ii) the STL enjoys a mixed composition in two of its organs, (4) so numerous legal scholars have characterized it as a hybrid or internationalized criminal court; (5) (iii) the STL, despite having an international legal basis, is intended to apply only Lebanese criminal law as part of its primary jurisdiction over the crime of terrorism and other specifically listed domestic criminal offences; (6) (iv) the STL Appeals Chamber requires the Tribunal to interpret and apply the Lebanese criminal law on terrorism in light of the relevant international treaty provisions and international customary law rules on terrorism subject to the general principle of legality of criminal offences and of sentences; (7) and (v) the STL's criminal procedure is based on the Lebanese Code of Criminal Procedure as well as on general principles of international criminal procedural law. (8) In other words, the STL is an international court given its international legal basis, (9) but a hybrid court by virtue of its modus operandi and its applicable law.

    The purpose of this Article is to show that the STL's human rights framework is the result of two main normative directions followed by the STL. The first direction consists of the STL Judges regulating defense rights through their legislative powers with a view to reducing their margin of judicial discretion, to providing more legal certainty for parties to the STL proceedings and actors involved in the trial, and to easing the applicability of these procedural rights. The STL's legislative efforts have greatly improved the accused's procedural position (automatic inadmissibility of evidence obtained in breach of international human rights law, insertion of a procedural requirement that the conviction is not founded exclusively or significantly on a prosecution witness' testimony, and automatic granting of interlocutory appeals once the objective conditions set out in the STL Rules have been satisfied). They have also brought about legal uncertainty for the accused and contributed to a virtual increase of the STL's judicial discretion when they have regulated the self-representation regime by reference to justificatory criteria laid down in international criminal procedural law and international human rights law. The second normative direction consists in the extension of the STL's judicial law-making powers through judge-made law affecting human rights standards (implied rights-creation, implied rights-limitation, and judicial increase in the rights' normative status through an implied reduction of their limitability). The STL's judicial law-making powers have had both a beneficial (increase in the number of human rights being protected beyond the STL's statutory framework and judicial transformation of human rights into non-derogable or jus cogens rights) and an adverse impact (lack of a clearly defined proportionality analysis in the limitation process of certain human rights) on the rights of persons under the STL's authority, detainees, suspects, and accused persons. Both directions are in tension, as they contribute to a discrepancy between the STL's internal legal instruments and its judicial practice.

    However, both directions are also interdependent and complementary. Whilst they are both capable of adverse effects on the human rights of the suspects, accused persons, and other persons under the Tribunal's authority (e.g., through a reduction in legal certainty in the criteria used to assess limitations on certain human rights), they are equally apt to improve their human rights position in proceedings before the STL. When the STL has used its legislative or judicial law-making powers to increase the procedural or substantive protection of eligible right-holders, the STL may be said to have encouraged an amendment to the European Convention on Human Rights (ECHR), (10) the American Convention on Human Rights (ACHR), (11) and the International Covenant on Civil and Political Rights (ICCPR) (12) or a change in their interpretation by international human rights monitoring bodies for the purpose of further substantiating certain human rights and limiting the impact of any applicable limitation or derogation clause.

    Part II describes the STL's current human rights framework as it transpires from its Rules and Statute. Part III examines the first normative direction, which materializes in the regulation of four human rights: (i) the right to cross-examination; (ii) the right to self-representation; (iii) the right to appeal interlocutory decisions; and (iv) the right to exclusion of evidence obtained in breach of human rights. Part IV details the second normative direction, which involves the Tribunal's Judges multiplying instances of judicial lawmaking in four principal ways. First, the STL Judges have judicially recognized a human rights enabling clause that binds the Tribunal when it interprets and applies its internal legal instruments, thereby obviating the imperfections of its statutory human rights enabling clause. Second, the Tribunal has identified the existence of a number of implied human rights. Third, it has set implied external limits upon human rights without always being clear about the content of the underlying proportionality requirements, and has failed to apply them in a systematic way. Fourth, the STL has increased the normativity (understood here as a decrease in their limitability and thus an increase in their scope of application) attached to certain human rights, and implicitly admitted to a hierarchy of human rights under international human rights law by making certain human rights either imperative or non-derogable.

    In Part V, I will argue that these two normative directions, whilst conducive to a discrepancy between the STL's statutory framework and its judicial practice, are both interdependent and together supplement the level of human rights protection available to accused persons, suspects, and other persons falling under the STL's jurisdiction. Their combined effect may urge drafters of international human rights instruments and international human rights monitoring bodies to change the level of protection of certain essential guarantees triggered by criminal proceedings either through an amendment procedure or a change of judicial practice.

    For the sake of the present article, international criminal courts will refer to criminal courts that find their legal basis in international law. Some of them enjoy truly international features, namely, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Other criminal courts, although finding their legal basis in a direct source of international law (whether an agreement concluded with the UN Secretary-General or a UNSC resolution), enjoy hybrid features with regard to the applicable substantive law and/or their composition. International criminal courts with hybrid features include the STL, the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The expression "international human rights monitoring bodies" has occasionally been used in the present Article in order to convey the judicial and quasi-judicial nature of the numerous international bodies entrusted with the supervision of...

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