The Special Tribunal for Lebanon six months on: A bird's eye view

REPORT

 

---Editor’s note: The Daily Star publishes below excerpts of a report by the president of the Special Tribunal for Lebanon, Antonio Cassese, presented on September 14 to the Tribunal’s Management Committee. The report offers a succinct overview of the activities of the STL in the six months elapsed since its establishment. 

 

1. Introduction 

 

1. This Report is intended to offer a succinct and unvarnished overview of the activities of the Special Tribunal for Lebanon (STL) in the six months elapsed since its establishment. I am submitting it in the exercise of the powers conferred on me by Article 10(1) of the STL Statute, whereby “The President of the Special Tribunal, in addition to his or her judicial functions, shall […] be responsible for [the Tribunal’s] effective functioning and the good administration of justice.” 

 

(…) 

 

3. I intend this Report as a means to ensure transparency and accountability vis-à-vis the Management Committee, the Government of Lebanon and other States supporting the work of the STL, but also as a way to stimulate within the Tribunal a constant and critical self-assessment: a sort of taking the pulse of the Tribunal, which should help it to achieve greater efficiency. 

 

4. The Report is written through my eyes as President, although I have much relied on the information kindly provided by the other three Organs – the Registry, the Office of the Prosecutor and the Office of the Defense. 

 

2. Chambers 

 

5. The Tribunal’s Chambers are vested with three essential tasks: judicial, regulatory and managerial. In this first period the fulfillment of judicial tasks was limited to the issue of the four Lebanese Generals being detained in Beirut in connection with the Hariri case. In contrast, the Judges have intensely discharged their regulatory function by adopting various sets of Rules and other normative instruments. Finally, the Judges have frozen any recruitment of legal staff and transferred all the financial resources thus saved to the Prosecution so as to enhance the investigative work of the STL in the next year. 

 

(A) Judicial Output 

 

6. Article 4(2) of the Statute provides that within two months of the Prosecutor’s taking office the Tribunal shall request the Lebanese authorities to defer to its competence, so that the Tribunal may decide on whether to indict or release the persons detained in Lebanon in connection with the investigations into the Hariri assassination. Acting promptly, on 25 March 2009 the Prosecutor (who had taken office on 1 March 2009) made an application to the Pre-Trial Judge for him to request the Lebanese authorities to defer to the Tribunal’s competence on this case. The Lebanese authorities complied and notified that four persons were being held in detention in connection with the Hariri case. Between March 27 and April 29, 2009 the Pre-Trial Judge issued four Orders on the matter, leading – consistently with the request of the Prosecutor – to the four persons being released because of lack of sufficient evidence to justify their continued detention. 

 

7. On April 20, 2009 the Head of the Defense Office requested, on behalf of the four persons detained in Lebanon in connection with the Hariri case, a modification of the conditions of detention. The following day the President issued an Order requesting the Lebanese authorities to grant certain rights to the four detainees, pending any ruling of the Pre-Trial Judge on their final status. 

 

(…) 

 

(D) Work in Progress 

 

15. In the next six months the President, in consultation with the other Judges, plans to: 

 

(i) Draft and issue three Practice Directions (on the Filing of Documents; on Depositions and Taking Witness Statements for use in Court; and on Video-Conference Links) and one internal Protocol (on Conducting Official Court hearings offsite). These documents should smooth the passage to the second stage (submission of indictments by the Prosecutor and initiation of activity by the Pre-Trial Judge and possibly the Appeals Chamber in the event of interlocutory appeals being submitted). Furthermore, they should ensure greater legal certainty and uniformity in the work of the Tribunal as a whole; 

(ii) Encourage as many States as possible to ratify the Draft Agreement on Legal Cooperation referred to above, and to this end to contact the Ambassadors of the relevant States in The Hague or in Brussels. Should the existence of cumbersome domestic legislative procedures make it difficult for States to ratify and implement the Draft Agreement, an attempt will be made to urge States to consider the Draft Agreement as a general legal framework from which to draw informally in order to entertain working relations with the Tribunal on an ad hoc basis; 

(iii) Hold a second plenary meeting of the Judges in late October 2009; 

(iv) Issue a collection of the Basic Documents of the Tribunal, so as to make available the most important documents relating to the Tribunal in the three official languages of the Tribunal; and 

(v) If the Prosecutor considers that an indictment is soon forthcoming, recruit essential additional staff. In addition, the President and some senior staff will pay a visit to Lebanon, to meet with senior State officials there and address cooperation and other matters. 

 

(…) 

 

4. Office of the Prosecutor 

 

(A) General 

 

26. In the first six months of operations, the OTP has overcome the operational challenges associated with relocating the base of an ongoing complex terrorist investigation from Beirut to The Hague. At the same time, the OTP has launched an operational surge aimed at increasing the pace of the investigation. This has been accompanied by a strengthening of the Prosecution Division; the involvement of Trial Counsel in the investigative phase of the OTP’s work will enable them to help shape and organize an eventual prosecution. 

 

(B) STL Relocation of the Investigation and Application for Deferral of the Case to the STL. 

 

27. The OTP began its operations when the Prosecutor assumed his functions, on 1 March 2009, upon the official launch of the STL, and the day after the mandate of the United Nations International Independent Investigation Commission (UNIIIC) came to an end. 

 

28. The start-up phase involved many operational challenges associated with relocating the investigation to a new organization based in The Hague. These included the need to complete the recruitment of staff, which had started in Beirut. The OTP made it a priority to ensure that it gathered the most qualified and experienced staff. Other challenges faced and overcome included the transfer of all data and holdings from UNIIIC in Beirut to the STL, maintaining chain of custody throughout; the establishment of an operating framework, standard operating procedures, and team structures; and, ensuring appropriate logistical support. 

 

29. On March 25, 2009, the day after the Rules were made public, the Prosecutor filed his application pursuant to Article 4(2) of the Statute of the Tribunal and Rule 17, requesting the issuance of an Order to the Lebanese authorities for the deferral of their jurisdiction over the Hariri file to the Tribunal, the transfer to the Prosecutor of the results of the investigation with a copy of the court’s record, and the presentation to the Pre-Trial Judge of a list of all individuals detained in connection with the Hariri file. On March 27, the Pre-Trial Judge issued the requested Order. On 8 April, the Lebanese authorities formally deferred the case of the investigation into the killing of Rafik Hariri and others to the Tribunal. They also provided a list of the detained individuals, which was transmitted to the Prosecutor for his reasoned submission on whether he would seek their continued detention or their release. 

 

30. On April 27, 2009, the Prosecutor filed his reasoned submission on the issue of the detention of the four individuals physically in custody. The submission was based on materials already in the possession of the OTP from UNIIIC, as well as a review of more than 22,000 pages of documentation transferred from the Lebanese authorities, the majority of which was handwritten and in Arabic. The review itself took over 1,200 hours to complete and required almost all the investigative resources of the OTP. On the basis of the Prosecutor’s submission, the Pre-Trial Judge ordered the release of the four Generals on April 29. 

 

(C) Taking the Lead in the Investigation 

 

31. Since April 2009, the OTP has had primacy over the Lebanese authorities in the Hariri investigation. In leading the investigation, the OTP is operating under a new legal framework contained in the Tribunal’s Statute and its Rules of Procedure and Evidence. At the same time, it continues to work on collecting evidence on potentially related attacks that were within the mandate of UNIIIC. Among its investigative tools, the OTP has created and activated a secure webpage for public use, which has been designed as a secure and confidential means to contact the Investigation Division in the OTP. 

 

(D) Surge in the Investigation 

 

32. The OTP identified the need for a 12-month surge in order to increase the pace of the investigation. As soon as the surge was approved, an intensive recruitment drive was launched. Despite the summer holiday period, 80 percent of the new staff members were recruited by August 31. All should be on board by the end of September or October, depending on notice requirements. The Chief of Prosecutions took up his position on August 24, joining one Senior Trial Counsel who arrived at the end of April. A second Senior Trial Counsel and four mid-level and junior Trial Counsel are under recruitment. 

33. On July 1, the Head of the OTP in the Beirut Field Office, an experienced investigator, took up his position in Beirut. With his arrival and that of other investigators, including some recruited as part of the surge, the Office is becoming a fully operational adjunct of the Investigation Division in The Hague. 

 

34. In the first six months of operations, the OTP has conducted 46 missions and over 180 complex interviews, in Lebanon and other States, each requiring extensive preparation and follow-up. 

 

(E) Cooperation with States and other International Organizations 

 

35. Over 120 formal requests for assistance have been sent to Lebanon and other States. Although States have been generally supportive, a number of these requests remain unanswered. Systematic follow-up has been initiated, therefore, in Lebanon and with other States, through their respective Embassies in The Hague. 

 

36. On June 5, 2009, the STL Prosecutor and the Lebanese Minister of Justice entered into a Memorandum of Understanding on the modalities of their cooperation. On June 12, 2009, the Lebanese authorities issued a decree formally appointing Judge Jocelyne Tabet as Deputy Prosecutor. Judge Tabet is an experienced member of the Lebanese judiciary and is expected to take up her position in The Hague in September. 

 

37. The OTP has made a strong contribution to the drafting of an Interim Agreement with INTERPOL, entered into by the President on behalf of the Tribunal, which should facilitate the OTP’s work. It has also provided critical input into a formal Agreement to be entered into with that Organization. 

 

(F) Public Information and Outreach 

 

38. In light of the high public interest in the STL, particularly in the investigation, and the specifics of the media environment in Lebanon and the region, the OTP identified public information and outreach as one of its priority areas of activity from the outset. It accordingly designed its own outreach strategy which aims at promoting the integrity of the investigation and public confidence in the work of the OTP, emphasizing, in particular, the non- politicization of the OTP (and of the STL more generally). 

 

39. The OTP, through the Prosecutor’s Spokesperson, conducts regular media monitoring and analysis in relation to OTP activities and is in constant contact with the Lebanese press, responding to inquiries relating to the investigation. 

 

5. (A) Defense Office 

 

General 

 

40. Pursuant to Article 13(2) of the STL Statute, the Defense Office is entrusted with important tasks, in particular: “to protect the rights of the Defense”, and to “provide support and assistance to Defense counsel.” In discharging his duties, the Head of the Office has already: 

 

(i) Prepared the legal infrastructure for the assignment of counsel; 

(ii) Set in motion the process for establishing a panel of lawyers who will be available to defendants; 

(iii) Established contacts with the Lebanese Bar Associations; 

(iv) Met with both the lawyers of the four detained Lebanese Generals and three of such detainees, with a view to better protecting their rights; and 

(v) Initiated the recruitment of the necessary staff. 

 

(B) Normative Output 

41.The Defense Office presented a Directive on the Assignment of Defense Counsel to the Judges, who adopted it during the March 2009 Plenary. 

 

(C) Establishment of a Panel of Lawyers 

 

42. An essential task will be to ensure that a defendant can choose a lawyer freely from a List of Counsel which should reflect different legal traditions and be composed of highly competent and experienced criminal advocates. To be admitted to the List, applicants need to be interviewed by an Admission Panel, which is a novelty in international tribunals. By August 2009, 110 persons had fulfilled all the application requirements. They will be interviewed by the Admission Panel later this year. Since the number of applicants from Lebanon is below par, efforts are underway to attract more Lebanese counsel to apply to the List. 

 

(D) Contacts with the Lebanese Bar Associations and Defense Counsel 

 

43. A close working relationship with the Lebanese bar associations and their members is important for the STL. The Defense Office has travelled to Beirut twice to foster this relationship. In April, the Head of Defense Office met with the President of the Beirut Bar and a large number of lawyers to explain the role and function of the Defense Office. In July, the Head of the Defense Office returned to Beirut to host a seminar for members of the Beirut Bar Association. The Defense Office Coordinator has also participated in a separate seminar in Beirut on the Rules of Procedure and Evidence. 

 

(E) Protecting the Rights of Detainees 

 

44. The overriding duty of the Defense Office is to protect the rights of the Defense, including any detainees held under the jurisdiction of the Tribunal. When Lebanon deferred jurisdiction over the Hariri case to the STL, the Head of Defense Office met with three of the four detainees and their counsel in Beirut and appointed a privately retained Defense Counsel for any representation before the STL. Moreover, having witnessed the conditions of detention, the Defense Office requested that the President ensure that certain fundamental rights of the detainees be protected. As a result, the President issued an order on their conditions of detention. 

Significantly, during the proceedings on the fate of the four detainees, the Head of Defense Office requested the Pre-Trial Judge to order their release forthwith. On the day of the order, the four detainees were released safely from their custody in Lebanon. 

(F) Recruitment of Staff 

 

45. During the past six months the Defense Office has been staffed with a Coordinator and an administrative assistant. The Head of the Defense Office has served on a part-time basis, dedicating several days a month to the STL, and will assume his duties full-time in November 2009. Recruitment has proceeded for two Legal Officers, one of whom will join the Office in September. 

 

(G) Work in Progress 

 

46. In order to provide adequate legal advisory services to Defense Counsel, the Defense Office, in conjunction with some consultants, is commencing a project to develop a number of legal tools. It will also adopt a Legal Aid policy and finalize a draft Code of Conduct for Counsel. 

 

6. Conclusion 

 

(A) What has been Accomplished in Six Months? 

 

47. All those who work for the STL can take pride in a number of achievements attained over the past six months: 

 

(i) The rapid approval of the Rules of Procedure and Evidence, a set of legal provisions carefully tailored to the special features of the Tribunal, and which indeed constitute a fully-fledged “code of criminal procedure” exhibiting many novelties compared to other international “codes”; 

(ii) The deferral of jurisdiction by Lebanon and the quick submission by the Prosecutor of a motion concerning the detention in Lebanon of four Lebanese generals, and the similarly rapid issuance by the Pre-Trial Judge of various orders on the matter; 

(iii) The intense contacts of the Head of the Defense Office with the Lebanese bar associations and Lebanese lawyers at large; his insistence on meeting both the four Generals in goal and their lawyers, as well as his submission to the Tribunal’s President of a motion to better safeguard the rights of those detainees; 

(iv) The stepping up by the Prosecutor of his investigations so as to expeditiously submit indictments to the Pre-Trial Judge; 

(v) The Registry’s efficient preparations for the establishment of all the necessary practical infrastructures including the setting up of a courtroom (due to be finalized by February 2010 after which the necessary courtroom IT systems will be installed), as well as the recruitment of relatively few but highly competent and experienced staff, thereby affirming a commitment to both cost-effectiveness and efficiency; and 

(vi) The unreserved cooperation lent by the Government of Lebanon to the various organs of the Tribunal. 

 

(B) What Next? 

 

48. In the next six months we are determined to: 

(i) Bring to completion all legal and practical infrastructures, so as to make the Tribunal ready for prompt and proper administration of justice; 

(ii) Intensify our outreach program, in order to have an increasingly great impact on the Lebanese legal profession and public opinion; and 

(iii) Encourage as many States as possible to ratify the comprehensive Draft Agreement on Legal Cooperation with the Tribunal, already circulated to Governments, or at least to consider this Draft Agreement as the general legal framework guiding relations of States with the Tribunal on a case by case basis. 

 

49. We are keenly aware of the challenges and the major hurdles we are and will be facing. In particular, the Tribunal must meet two formidable challenges. One is that the Tribunal is the first international judicial institution to adjudicate responsibility for terrorism as a distinct crime. International terrorism is a protean notion, difficult to handle, also because there are only a few international treaties and limited case law from which to draw. However, through reliance on Lebanese law and any relevant international standards, the Tribunal should prove to be able to apply a sound and generally acceptable notion of terrorism in a well-balanced manner. The second major challenge is that the Tribunal is the first international criminal court operating within the Arab world. So far, many Arab countries have shown scant interest in, and in some instances have even cast a suspicious glance at, supranational criminal justice. To make them fully amenable to this judicial system one must show beyond any reasonable doubt that international justice can be impartial, fair and immune from any political or ideological bias. 

 

50. We therefore intend to dispense justice free from any political or ideological fetter and based on full respect for the rights of both the victims and the defendants. By doing so we might set the stage for future and broader resort to international criminal institutions to fend off terrorism. 

 

51. To be sure, ours will not be an easy task. We are aware that we are treading an uphill path, but we are determined to quickly do justice in a fair manner. We are also so ambitious as to hope to set a precedent for efficient and inexpensive international justice. We are actuated by what the German philosopher Hegel once called “the enthusiasm of the mind” (Enthusiasmus des Geistes). With the support and the cooperation of Lebanon and other States, we will be able to attain our goals.