The Special Tribunal for Lebanon: a defense perspective.

• Author: Jalloh, Charles Chernor
• Position: Abstract through IV. Evolving Defense Rights in International Criminal Law B. The Sierra Leone Tribunal's Solution, p. 765-796

ABSTRACT

This Article analyzes the absence of organs tasked with guaranteeing the rights of the defense in international criminal law. It explains the historical origins of the problem, tracing it back to the genesis of modern prosecutions at the Nuremberg International Military Tribunal. It then explains how the organizational charts of the UN courts for the former Yugoslavia, Rwanda, and Sierra Leone omitted the defense and essentially treated it as a second class citizen before the eyes of the law. This sets the stage for the author to show why the creation of the first full-fledged defense organ in international criminal law by the UN-backed Special Tribunal for Lebanon is a welcome advance in the maturing of international penal tribunals from primitive to more civilized institutions. The Article argues that if the legal provision contained in the Lebanon Tribunal statute is matched with the independence and resources needed to help realize defendant rights, it will likely become one of the statute's biggest legacies to international law.

TABLE OF CONTENTS I. INTRODUCTION II. THE ESTABLISHMENT OF THE SPECIAL TRIBUNAL FOR LEBANON A. Lebanon Wants a Court but Needs International Help to Create It B. Lebanese Politics Gets in the Way, UN Imposes the Tribunal as a Matter of International Law. III. THE JURISDICTION AND NATURE OF THE SPECIAL TRIBUNAL FOR LEBANON A. The Tribunal's Personal and Subject Matter Jurisdiction. B. Practical Arrangements Resulted in Creation of the Court in The Hague IV. EVOLVING DEFENSE RIGHTS IN INTERNATIONAL CRIMINAL LAW A. The Problem: Defense Was Forgotten from the Watershed of International Criminal Law in 1945 B. The Sierra Leone Tribunal's Solution: Include the Defense, Even if Only as a Second Class Citizen C. The Significance of the Lebanon Tribunal's Creation of an Independent Defense Office Organ V. THE DEFENSE IN THE SPECIAL TRIBUNAL FOR LEBANON A. Remembering the Defense for the First Time in International Criminal Law: Better Late Than Never B. No Longer Second Class? The Defense as an Equal Before the Altar of Justice VI. FUNCTIONS OF THE DEFENSE OFFICE: LESSONS FROM THE SIERRA LEONE COURT A. The Legal Aid Administrator Role: "[D]raw up a list of defense counsel" B. The Public Defender Role: Appearing Before the Pretrial Judge or a Chamber in Respect to Specific Issues. C. Logistical Support Role: "[P]rovide support and assistance for Defense Counsel and to the persons entitled to legal assistance". D. Assisting to Ensure the Health and Welfare of the Accused VII. Conclusion I. INTRODUCTION

As the most recent UN-sponsored ad hoc criminal tribunal, the Special Tribunal for Lebanon (STL or Tribunal) has attracted the attention of the international community. Though it has yet to conclude its first case, the STL has already been lauded (and also criticized) for various features in its founding instruments. (1) The positive reviews of the STL stem from several factors. (2)

First, it was established following a request by the government of Lebanon for international community assistance to address a situation that the national authorities could not, for various reasons, resolve under the domestic legal system. Lebanon's appeal for UN support to establish a tribunal of "international character" (3) to bring to justice those responsible for terrorism, much like the requests for international support from the governments of Cambodia in 1997 and Sierra Leone in 2000, is a noteworthy departure from the traditional foot dragging of states in prosecuting individuals for egregious international crimes that essentially became the norm between the creation of the International Military Tribunal at Nuremberg in 1945 and the establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR) in the early 1990s. (4)

Second, the legal basis of the Tribunal is a consensual treaty between the United Nations and Lebanon. (5) This arrangement enabled the national authorities to help shape the legal nature and structure of the STL. Save the fact that the country ultimately sought Security Council Chapter VII action to bring the bilateral treaty with the United Nations into force, which has led to the argument that the Tribunal's basis has changed from a consensual treaty to a forceful Chapter VII imposition, (6) Lebanon played a significant role by initially requesting the STL's establishment and subsequently engaging in negotiations with the United Nations to conclude the Tribunal's constitutive instrument. (7) The end product, which provides for strong national participation, reflects this involvement. For example, Lebanon has the power to appoint or nominate key officials, such as judges and the deputy prosecutor. (8) This same spirit of cooperation influenced a similar governmental role in a close sibling, the Special Court for Sierra Leone (SCSL), although it is less involved than the high degree of national control that Phnom Penh successfully negotiated with New York in relation to the Extraordinary Chambers in the Courts of Cambodia (ECCC). (9)

Third, although since the end of the Cold War there have been various types of "hybrid" (10) courts which incorporated aspects of national law into their constitutive instruments, the STL is the first internationalized criminal tribunal (11) with an exclusive subject matter jurisdiction over domestic--instead of international--crimes. (12) In this way, the establishment of the Tribunal symbolically completes the anti-impunity circle, which now consists of limited national prosecutions within domestic courts using international law (for example, in Belgium and France); purely international prosecutions using only international law (ICTY, ICTR, and International Criminal Court (ICC)); 'mixed' or 'hybrid' court prosecutions based on a cocktail of international and national law (East Timor, Sierra Leone, Cambodia, and Kosovo/Bosnia); and internationalized prosecutions using purely municipal law within an internationally supported or international court (Lebanon). (13)

Fourth, the Tribunal seems set to help reduce the common law bias of international criminal courts. It does so by importing important civil law elements (14) that may have the effect of obviating some of the undesirable side effects of the common law based adversarial system predominant in most international penal courts. These elements include specific procedural laws and an augmented role for judges from the passive "cymbal" (15) role of the common law tradition toward a more active, inquisitorial role familiar to civil law legal systems. In the latter, judges are generally given greater control over the proceedings. And, in the search for the truth, they take priority in the examination of witnesses, have proprio motu powers to call additional witnesses, and enjoy entrenched authority to issue orders for production of additional evidence. (16) Some of these functions, although also theoretically available in a common law courtroom, are typically exercised by the adversarial parties instead of by the judges. (17)

These changes to the neutral arbiter role are further enhanced by a provision for a standing pretrial judge. (18) The pretrial judge is tasked with reviewing and approving indictments when the prosecution presents evidence of a prima facie case that someone appears to have committed a crime that is within the Tribunal's jurisdiction. (19) The pretrial judge can also issue any other orders that would facilitate prosecutorial investigations. (20) Thus, he or she plays an important role in ensuring the efficient conduct of proceedings without the additional responsibilities that would accrue from formal membership in a particular trial chamber--as is the case in other ad hoc international criminal courts. Overall, this appears to represent a shift in the occupancy of the driver's seat. The move pushes the adversarial parties (i.e., the prosecution and the defense) to the side in favor of putting the judges at the center of the justice-seeking process. The practical consequence could be significant. The trial, instead of being shaped to reflect the position most favorable to the parties' particular interests, becomes primarily concerned with discerning the truth and dispensing evenhanded justice. (21)

Other notable features of the STL include the fact that it is empowered to hold trials in absentia (albeit under strict conditions) and that it provides for greater victim participation in proceedings vis-a-vis the current UN-sponsored ad hoc courts (though not as great as in the regime applicable in the ICC). (22) It is comprised of a mixed Lebanese and international staff (including judges and prosecutors), and it is expected to apply the highest due process standards. (23) This overrides harsher punishments such as the death penalty and forced labor. Both of the latter are known to apply to anyone convicted of similar crimes under Lebanese law.

But, despite all these positive elements, already less discussed in the nascent literature is another significant feature of the Lebanon Tribunal. (24) This was its creation of the first autonomous defense organ with the principal responsibility of protecting the rights of the accused and the defense in the history of international criminal courts. The establishment of the Defense Office as a full-fledged organ in the Statute of the STL builds a superstructure onto the skeletal foundation first laid by the semiautonomous Office of the Principal Defender (OPD) in the SCSL, where this author had the honor to serve as a legal advisor. (25) The STL's provision of an independent Defense Office is unique and confers on it, in the true spirit of "equality of arms," a legal status coequal to that of the prosecution. Though the lawyers for the suspects and defendants will come from the private bar, instead of the office as such, this unprecedented step of a full fledged mechanism for protection...