The Special Tribunal for Lebanon: a defense perspective.

• Author: Jalloh, Charles Chernor
• Position: IV. Evolving Defense Rights in International Criminal Law C. The Significance of the Lebanon Tribunal's Creation of an Independent Defense Office Organ through VII. Conclusion, with footnotes, p. 796-824

2. The Significance of the Lebanon Tribunal's Creation of an Independent Defense Office Organ

   Against the above backdrop, the significance of the Defense Office in the STL as the first full-fledged independent organ in an internationalized criminal court cannot be overemphasized. Indeed, as has been observed elsewhere, this marks a first in the history of international criminal law. (136) The OPD of the Sierra Leone Court has undoubtedly influenced this development, likely an enduring part of its wider legacy, through its unsuccessful efforts for statutory and operational autonomy from the registrar. As will be argued more fully below, if the level of commitment signaled in the STL Statute is matched by a similar level of funding and operational distance for the defense, it will likely be celebrated by practitioners and academics alike as a strong contribution to the maturation of international criminal justice institutions.

   5. THE DEFENSE IN THE SPECIAL TRIBUNAL FOR LEBANON

1. Remembering the Defense for the First Time in International Criminal Law: Better Late Than Never

   The founding instruments of the STL address the role of the defense in various provisions. Article 2(1) of the UN-Lebanon Agreement mirrors Article 7 of the STL Statute and provides for the Tribunal to have four organs: "the Chambers, the Prosecutor, the Registry and the Defense Office." (137) [Emphasis added].

   Pursuant to Article 11 of the UN-Lebanon Agreement, the head of the Defense Office enjoys, during his time in Lebanon, the same privileges, immunities, exemptions, and facilities accorded to the prosecutor and his deputy, the registrar, and the judges. (138) As with other international criminal courts, the privileges and immunities conferred on the principals of the STL are the same as those accorded to diplomats under the Vienna Convention on Diplomatic Relations. (139) Those privileges accrue to the benefit of the organization, which can waive them as appropriate, not to the personal benefit of the individuals working in the organization. (140)

   Importantly, through Article 13 the Lebanese government guarantees that defense counsel, who usually practice before such tribunals as private contractors instead of staff members, will also enjoy various kinds of immunities during their time in Lebanon. (141) These functional immunities provide defense counsel what must by now be standard protections from personal arrest, detention, or seizure of their personal effects; inviolability of documents relating to the exercise of their role as lawyers for the suspects or accused before the Tribunal; immunity from criminal or civil process for oral or written statements made in the course of discharging their duties--which immunity survives the end of their function; and protection from immigration restrictions during their stay in the country or journey to and from Tribunal business. (142) The importance of this provision cannot be emphasized enough. To take but one example, in the ICC Libya Situation, Melinda Taylor, interim court-appointed duty counsel for Saif Al Islam Gaddafi, was subject not only to search and seizure of her documents but also to unlawful arrest and detention by Libyan authorities. (143) There have been similar arrests and harassment of defense lawyers in other tribunals in, for instance, Rwanda.

   Finally, Article 15(1) of the Agreement establishes that Lebanese authorities shall cooperate with all organs of the STL, especially the Prosecution and defense counsel, throughout the proceedings. (144) This includes facilitating access for all counsel to sites, persons, and relevant documents required in the investigation. (145) Article 15(2) creates a further obligation to comply with any request for assistance by the Tribunal, including its organs, the prosecutor, and the head of the defense, or an order for assistance made by the Chamber. (146) Drawing upon the experience of the ad hoc courts, this provision is another important step forward in the march toward equality between the prosecution and defense in the international criminal tribunals. As national authorities are commonly known to afford a higher level of cooperation to prosecution than to defense lawyers, this positive obligation will help provide practical assurance that the defense will not face obstacles that could be put in place by Lebanese authorities to hinder the defense of potentially domestically unpopular or controversial defendants. (147) Indeed, likely because of the independence of the Defense Office, it has negotiated a memorandum of understanding with Lebanon's Ministry of Justice to enable full cooperation and access into the country for defense counsel investigations and other matters related to the exercise of their functions in representing suspects (or the accused). (148) This is a welcome development and, to this writer's knowledge, is a first in the history of international criminal tribunals. It plainly enables the Defense Office to create a special legal regime to benefit the defense counsel in relation to several areas of state cooperation. The office thus brings institutional weight to bear for the defendants and their counsel, to permit access to the country and investigations, in a manner similar to the way the prosecutor could take such arrangements for granted at the SCSL and other ad hoc courts.

   In addition to the above provisions in the UN-Lebanon Agreement, Articles 15 and 16 of the STL Statute enshrine fundamental rights for "suspects" and the "accused." (149) These rights are familiar to American lawyers and probably the public. Article 15 explains that a suspect, i.e., a person being questioned during Prosecution investigations before the laying of formal charges in an indictment, has the right be informed before that questioning that there are grounds to believe that she is a suspect in a criminal investigation; (150) the right to be questioned in the presence of counsel unless she has voluntarily waived that right; (151) the right to not be compelled to incriminate herself or confess guilt; (152) the right to remain silent, without any adverse inferences being drawn as to her guilt or innocence; (153) and the right to legal assistance of her own choosing when the interests of justice so require. (154)

   This paragraph introduces the right to counsel, laying out the basic distinctions between Article 16 of the Statute governing suspects and the clauses protecting the rights of the accused in other tribunals, which will be discussed in further detail below. The right to legal assistance of a suspect's choosing presumably means, consistent with the jurisprudence of the ad hoc criminal tribunals, the right to be assigned a qualified lawyer from either the Defense Office or the list of counsel maintained by it. It does not include a right to a particular lawyer. (155) Perhaps because of the generally serious gravity of international crimes, the tribunals have been relatively more generous in according certain rights to suspects compared to the black letter requirements of international human rights law and perhaps many national jurisdictions. The Lebanon Tribunal continues this tradition even though its jurisdiction is only over common crimes under Lebanese law. (156)

   Article 16 of the Statute of the STL outlines the basic rights akin to those enjoyed by each accused person in international criminal courts. It guarantees the accused, among other things, equality before the tribunal; (157) the right to a fair and public hearing; (158) and the right to be presumed innocent until proven guilty by the prosecutor beyond a reasonable doubt. (159) The usual minimum guarantees then follow, including the right to notice of the charges in a language the accused understands; to adequate time and facilities to prepare his defense and to communicate with counsel of his own choosing; to be tried without undue delay; to examine, or have examined, witnesses under the same conditions as witnesses against him; to the free assistance of an interpreter if he cannot understand or speak the language used in the Tribunal; and not to be compelled to testify against himself or to confess his guilt. (160)

2. No Longer Second Class? The Defense as an Equal Before the Altar of Justice

   There are three noteworthy differences between Article 16 of the Lebanon Tribunal's Statute and its equivalent provisions from all the other international criminal courts that preceded it. First, the right of the accused to be tried in his presence is subject to Article 22 which permits, for the first time in a UN-sponsored tribunal, trials in absentia. (161) The secretary-general's report noted that trials in absentia are common in a number of civil law jurisdictions, including in Lebanon. (162) Thus, under Article 22, the proceedings in the Tribunal may take place in the absence of the accused (a) if he waives, in writing, his right to be present; (b) if relevant national authorities fail to render him to the Tribunal; or (c) if he absconds and cannot otherwise be located after all reasonable steps have been taken to secure his appearance. In the limited circumstances in which trials in absentia are held, Article 22 triggers a secondary set of protections, requiring the Tribunal to ensure, amongst others, that certain notices are published and that the accused is represented by a private or publicly funded lawyer from the Defense Office to protect his interests. (163) If convicted in absentia, an accused person who subsequently appears may elect to accept the judgment or to be retried if he had not previously designated counsel of his choosing. (164) These in absentia provisions have been invoked in, inter alia, the case involving Hassan Habib Merhi. His trial opened in January 2014, and is under consideration for a joinder with other cases in February 2014. (165)

   Second, under Article 16(f), in addition to being entitled to be informed promptly of the nature of the...