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. 395-437

    The first normative direction has materialized in legislative efforts at codification (i.e., absolute anonymity and self-representation limitation regimes) and human rights regulation (i.e., the right to interlocutory appeal and the right to exclusion of evidence obtained in breach of human rights) with a view to curbing judicial discretion in favor of the accused, to achieving greater legal certainty, and ultimately to easing the applicability of defense rights. Except for the right to self-representation, the STL has succeeded in these goals when acting through its Rules. Parallel to this first normative direction, the STL has also followed a second normative direction by which it has engaged in numerous forms of judicial law-making that have either improved or adversely affected the position of a certain number of right-holders.

    The STL has resorted to four forms of law-making in its judicial capacity. First, the STL has judicially recognized a generic human rights enabling clause that supplements and obviates the defects of its statutory human rights enabling clause. Second, the STL has inferred a number of implied human rights from its internal legal instruments, implied powers, and external sources of human rights, a judicial trend which reinforces the level of human rights protection of persons subject to the STL's authority. Third, the STL has validated implied external limits upon both implied and express human rights without being clear and consistent as to the content of its underlying proportionality analysis and thereby worsening the accused's procedural position. Fourth, the STL has turned the right to be tried by a court established by law into a non-derogable right from an international human rights perspective, and the principle nullum crimen sine lege (the prohibition of retroactive criminal legislation) into a jus cogens norm from a public international law perspective. By doing so, the STL has judicially increased the level of normativity attached to these two procedural rights by reducing their degree of limitability.

    1. Judicial Adoption of a Human Rights Enabling Clause

      The STL Trial Chamber has ruled that "the Tribunal must comply with international human rights law," (146) without confining the need for the STL's organs to comply with international human rights law to certain categories of human rights. This de facto or implied human rights enabling clause, contrary to Article 28(2) of the STL Statute, not only empowers but also requires the Tribunal to apply international human rights standards that are relevant to both the shaping of its criminal procedure and the determination of its applicable substantive law. This implied enabling clause may help obviate the gaps left by its statutory human rights enabling clause by requiring STL Judges to confer substantive human rights (e.g., the rights to privacy, to freedom of expression and against torture) upon accused persons despite the general silence of the STL Statute and STL Rules on the enforceability of such rights in STL proceedings.

    2. Inference of Implied Human Rights

      The creation of implied human rights is a judicial technique used by international courts and in particular international criminal courts and international human rights monitoring bodies that is designed to improve the general level of human rights protection outside the express and ordinary bounds set by their founding documents. (147) They are commonly derived from broad framework rights whose scope of application is virtually unlimited and which lend themselves to a dynamic form of interpretation. (148)

      The STL has pointed to the existence of the following implied rights based on an extensive reading of its internal legal instruments, its implied powers, and references to external sources of international law (e.g., international customary law; international human rights law instruments): (i) the right of suspects to communicate freely with their defense counsel; (149) (ii) the right of detainees, not in the STL's detention facilities, but under the STL's jurisdiction to limited rights to privacy and free movement and not to be subject to inhumane and degrading treatment; (150) (iii) the right of a person under the STL's authority to access his or her case-file even if not a party to the trial proceedings; (151) (iv) the right of such a person to be tried by an independent and impartial court; (152) (v) the right of a party to the trial proceedings to an interlocutory appeal, even if it falls outside the material scope of the STL Statute and Rules, if an injustice would ensue from a lack of correction by the Appeals Chamber; (153) and (vi) the right of persons subject to contempt proceedings to freedom of expression. (154)

      In its Order on Conditions of Detention, the STL President held that the right of suspects and of accused persons to communicate freely with their defense counsel is a fundamental due process guarantee, as it is a pre-requisite for the effective exercise of all other defense rights. (155) The President conceded that this right constitutes an "indispensable component" of the rights of defense. (156) It also held that such a right fell under customary international law due to its general recognition by the international community and the importance attached to it by States and international adjudicatory bodies. (157) The President derived the essence of this right from Article 14(3) (b) of the ICCPR, (158) Article 6(3) (b) of the ECHR, (159) and Article 8(2) (d) of the ACHR, (160) as well as from paragraph 93 of the UN Standard Minimum Rules for the Treatment of Detainees. (161) Finally, the President drew support from the ECtHR's and the HRC's corresponding case law. (162) By ruling that such a right may be exercised by accused persons (it is already listed as an express defense right in the STL Statute) as well as suspects, (163) the STL President extra legem expanded the list of suspects' rights. As will be described in the following subsection, the STL President has concomitantly placed implied limitations upon the suspects' implied procedural right to communicate freely with their defense counsels.

      The STL President has conferred upon persons detained by national authorities but under the jurisdiction or authority of the STL certain guarantees relating to their segregation from other co-suspects or co-accused persons involved in the same crime and from other categories of detainees (i.e., those not involved in the same crime) notwithstanding the absence of regulation of this situation in the STL Statute, Rules or Detention Rules. (164) By evaluating the permissible degree of segregation of detainees under the STL's authority, the STL has implicitly conferred upon them either limited substantive human rights to free movement and to privacy (when the segregation separates the detainee from other suspects or co-accused persons involved in the same crime) or a right against inhumane and degrading treatment in detention facilities under the STL's overall supervision. These implied substantive human rights, as will be described in the next subsection, are also subject to implied limitations: the STL has correlated the creation of these two implied human rights with the placing of implied external limits on such rights.

      The STL Pre-Trial Judge has held that the right of access to his or her case-file is open to any person falling under the Tribunal's authority despite him or her not being a party to or a victim in the proceedings before the STL. (165) The Pre-Trial Judge has underlined the international customary nature of such a human right by reference to international human rights instruments such as the ECHR, the ACHR, the Charter of Fundamental Rights of the European Union (EU Charter), and the African Charter on Human and People's Rights (ACHPR). (166) This implied human right also finds a legal basis in a number of civil and common law jurisdictions. (167) For the Pre-Trial Judge, such an implied human right may be derived from the express rights of a person to have every means to prepare his or her defense, to be notified of the charges against him or her, and to equality of arms. (168) The Pre-Trial Judge also found an overall justification for the recognition of this implied right in its "implicit powers," that is, powers "closely linked to its original subject matter jurisdiction." (169) Moreover, the Pre-Trial Judge drew support from the fairness of the international criminal proceedings and the "good administration of justice" in order to grant the request for access to the criminal file on the facts of the case. (170) The Pre-Trial Judge, by conferring this implied procedural right upon a person not indicted by the STL, but who had been under its authority by virtue of being detained pending the remand of his case from the Lebanese authorities to the STL, extended the scope of the relevant STL Rules on disclosure of evidence to a situation not explicitly contemplated by STL when acting in its legislative capacity. This implied procedural human right, as will be described in the next subsection, is also subject to implied limitations. The STL through its Pre-Trial Judge has derived the legal basis of implied limitations on such a procedural right from the implied nature of its creation.

      The STL President interpreted the right to be tried by an impartial and independent judge, as embodied in STL Rule 25(A), beyond its express bounds in such a way that any person falling within the Tribunal's authority may invoke it, even if not a suspect, victim, or a party to the proceedings. (171) Accordingly, the STL President conferred an implied fair trial right upon any person falling under the STL's authority even if doing so qualified as an extra legem extension of the STL Rules.

      The STL Appeals Chamber held that it may hear in exceptional...

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