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The Special Tribunal for Lebanon’s Unique Beginnings, Its Political Opposition and Role as Model for Future Ad Hoc Criminal Tribunals for Terrorism Prosecution
Abstract
This article suggests that the Special Tribunal for Lebanon in many respects can serve as a model for future ad hoc international tribunals for the prosecution of terrorism. The article discusses the assassination of Rafiq Hariri and the investigation that followed, leading to the tribunal’s formation. After this background, the formation of the tribunal is analyzed. Initially designed as a hybrid international tribunal based on a treaty between the United Nations and Lebanon, the tribunal was ultimately established unilaterally by the United Nations Security Council following the failure of the Lebanese government to approve the treaty. The article then discusses the political divisions in Lebanon and the power of Hezbollah’s opposition to the tribunal’s work and what impact, if any, this may have on the tribunal. Within this background framework the article then discusses the unique characteristics of the tribunal, including its mandate for the prosecution of terrorism, the first international tribunal of this nature, as well as the application of Lebanese substantive law regarding the definitions of terrorism and the application of international procedural standards. Finally, the article offers a critique of the tribunal as a model for future ad hoc international tribunal prosecutions of terrorism, arguing that Hezbollah’s power serves as a cautionary tale to the international community because of the group’s opposition, from within the government, to the tribunals work. However, the unique legal framework with its application of domestic legal definitions of terrorism combined with internationally recognized procedural standards, can serve as a model to be duplicated in future tribunals.
... La fecha, grabada en la memoria de todo libanés, marcó un punto de inflexión en la historia del Líbano y desencadenó el establecimiento del Tribunal Especial para el Líbano (TEL). Se trata de un tribunal único (Runge, 2012;Aptel, 2007) que fue creado por el Consejo de Seguridad (CS) tras el fracaso en la ratificación de un tratado internacional entre la ONU y el Líbano con esa finalidad. Difiere de otras jurisdicciones internacionales, híbridas y ad hoc en que es la primera con jurisdicción sobre el crimen de terrorismo -cuya definición ha sido intensamente debatida durante años (Falk, 2019;Margariti, 2017;Greene, 2017;Vacas, 2011)-y en que su creación fue sin duda selectiva (Wierda, Nassar & Maalouf, 2007;Nashabe, 2012;Knudsen & Hanafi, 2013). ...
The article analyses the complex relation between politics and justice in the international arena that is reflected in the Special Tribunal for Lebanon. The subject matters developed are its problematic establishment by means of Security Council resolution 1757 (2007) and its selective nature, as well as the legal-doctrinal dispute laid out in the Ayyash et al. case, also known as the Hariri case. It is stressed the importance of circumstantial factors, especially those triggered since 2004, with the aim to explain the internal division —with international protagonists— of the country into two blocks whose confrontation would serve as a pretext for starting-up a unique tribunal that would meet the interests of an international community captivated by the possibility of achieving a judicial terrorism sentence against Hizballah —and/or Syria— who was gathering momentum. The 2011 interlocutory decision of the Appeals Chamber seemed to reveal itself as a good omen in said direction when it stated the necessity to interpret the crime of terrorism established in article 314 of the Lebanese Criminal Code in accordance with an international crime of terrorism of customary nature. The revolutionary decision —together with the process that led to its publication— disclosed nevertheless, a certain hasty and opportunistic character, which the 2020 judgment finally rejected for being unnecessary and untrue. The article upholds that all the above has contributed to undermine the credibility of the Tribunal, which is a model of selective justice, and has demonstrated little deference towards the sovereignty of the Lebanese State.
O presente artigo faz um balanço parcial das atividades do Tribunal Especial para o Líbano – TEL, tribunal penal internacional ad hoc, abrangendo os anos de 2009 a 2019, e analisa sua proposta de punição de atos de terrorismo e sua viabilidade como modelo para a repressão deste grave crime pela sociedade internacional.
The Special Tribunal for Lebanon (STL) represents a sui generis international tribunal on various levels. It is the first time a treaty-based Tribunal has been established through a resolution
of the Security Council adopted under Chapter VII. A further unique feature is its sole dependence on domestic substantive
crimes. The attempt to include crimes against humanity in the Statute did not succeed, despite the fact that the elements
of a crime against humanity seem to be discernable in the conduct that falls within the jurisdiction of the STL. References
to international and regional terrorism instruments, such as the Arab Convention for the Suppression of Terrorism, were also
abandoned. The Tribunal will rely on Lebanese criminal provisions regarding terrorism, illicit associations, crimes and offences
against life and personal integrity. Lebanese law provides an old but concrete definition of terrorism. This raises the question
of whether the Lebanese definition, with its strengths and weaknesses, could assist in the evolution of a well-structured
definition of international terrorism. The possibility of ‘internationalizing’ the Lebanese definition will depend on two
factors: the judges’ approach in adopting the Tribunal's rules of evidence and procedure, and then more importantly their
creativity in developing the jurisprudence of the Tribunal.
This article addresses legal problems posed by Security Council Resolution 1757 of 30 May 2007, establishing the Special Tribunal for Lebanon (‘STL’). After describing the historical background of the resolution (section 1) and the plan to establish the STL as a treaty-based institution (section 2), the paper turns to an analysis of Resolution 1757 (section 3). The author questions whether the Council intended to bring the Lebanon-UN agreement into force as an international treaty, and holds that the UN Charter does not give the Council a power to unilaterally impose on a member state an obligation in the form of a treaty. The author argues that in Resolution 1757 the Council did not substitute a Chapter VII decision for the missing ratification of the agreement by Lebanon, but instead established the STL by making the provisions of the agreement negotiated with Lebanon an integral part of a Chapter VII resolution. Section 4 then questions whether the Council was entitled to procure Lebanon's consent to be bound by a treaty by threatening unilaterally to put those provisions into effect through a Chapter VII resolution. After discussing certain rules of the law of treaties concerning the coercion of a state, the author concludes that it is not that law but the UN Charter itself that prohibits the Council from exerting pressure on a member state in order to make that state ratify a treaty.
STL Prosecutor Defends His Staff's Integrity The (Lebanon) Daily Star, available at 2011 WLNR 13241827. 96 Id. 97 Cambanis, Thanassis " Hezbollah Is In Trouble
- Patrick Galey
Galey, Patrick " STL Prosecutor Defends His Staff's Integrity " July 5, 2011, The (Lebanon) Daily Star, available
at 2011 WLNR 13241827.
96 Id.
97 Cambanis, Thanassis " Hezbollah Is In Trouble " the Atlantic, 7/11/11, accessed online at {NEED THIS
CITATION}
Arrests Not Likely in Hariri's Assassination
- Patrick Martin
Martin, Patrick " Arrests Not Likely in Hariri's Assassination " Globe and Mail, July 1, 2011, available at 2011
WLNR 13053753.
91 Id.
92 Id.
93 Statute of the Special Tribunal for Lebanon, Art. 22(1)(b), available as attachment to Resolution 1757, at
http://www.stl-tsl.org/sid/49.