Controverse sur le jugement du Tribunal Special sur le #Liban (assassinat de Rafic Hariri)
(pour mémoire ici, Facebook n’ayant pas de mémoire, seenthis un peu plus)
Dr Chibli Mallat, a well-known expert in in international law published an op-ed in The National (▻https://www.thenational.ae/opinion/comment/witnessing-the-rise-and-fall-of-the-special-tribunal-for-lebanon-1.10664)
This is my respectful reply.
Dr Mallat stated: “It is still my view that the assassination should have been treated not as terrorism, but rather as a crime against humanity, which would have qualified it for referral to the International Criminal Court.”
During negotiations on the establishment of the Special Tribunal for Lebanon, the UN and Lebanon considered the option of including crimes against humanity in the Tribunal’s Statute but it was decided otherwise. The report of the Secretary General, available on the STL website, states: “…considering the views expressed by interested members of the Security Council, there was insufficient support for the inclusion of crimes against humanity within the subject matter jurisdiction of the tribunal. For this reason, therefore, the qualification of the crimes was limited to common crimes under the Lebanese Criminal Code.”
Dr Mallat states: “At the time, moreover, the ICC had shown more competence in dealing with crimes of this nature and magnitude.”
The reality is somewhat different: The ICC issued its first indictment against Joseph Kony on 8 July 2005, almost five months after the Hariri assassination. It was also issued under seal and made public on 13 October 2005. More importantly, Kony is still a fugitive and no trials in absentia are permitted under the ICC Statute. The first trial at the ICC (against Thomas Lubanga Dyilo) started on 26 January 2009.
Dr Mallat then refers to the assassination of Wissam Eid and states that “It is worth noting that the STL did not mention his name in the public statement.”
The Judges of the STL issued a public pronouncement of their judgement in the case against Ayyash et al. The STL has no jurisdiction over the assassination of Wissam Eid. To include this assassination under the STL’s jurisdiction would require an agreement between Lebanon and the United Nations and the consent of the Security Council. This has not happened and consequently the STL has no jurisdiction in the matter. It is difficult to understand why Dr Mallat would suggest that Judges should mention a crime over which they have no jurisdiction while pronouncing the Judgement in the case before them.
Dr Mallat continues: “Nor, since January 2006, has there been a single word mentioned about the openly brutal obstruction of justice by Mr Al Assad, Mr Lahoud and Hassan Nasrallah, the head of Hezbollah.”
The Tribunal was established on 1 March 2009. Prior to that the investigation was carried out by the Lebanese authorities and the UNIIIC. While we cannot speak on behalf of the UNIIIC, its 11 reports submitted to the United Nations are available on the STL website: ▻https://www.stl-tsl.org/en/documents/legal-documents/un-documents. Almost all specifically refer to the cooperation provided by Lebanon and Syria. All of STL’s annual reports also report on cooperation received.
Dr Mallat adds: “Journalists, instead, were cited for various insignificant leaks.”
Mr Ibrahim Al Amin and Akhbar Beirut were convicted of “knowingly and willfully interfering with the administration of justice by publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided, by witnesses or potential witnesses.”
Protection of witnesses is of paramount importance to any criminal proceedings. Nothing about the proceedings against Mr Al Amin and Akhbar Beirut could be considered ‘insignificant’.
Dr Mallat continues: “Apart from being toothless, the STL was also leaderless for a long time. For a while Antonio Cassese, a distinguished international criminal scholar and judge, presided over the tribunal. From my correspondence with him, I knew he wanted to take the case forward. He was of a different calibre. But luck deserted Lebanon again, as Cassese died of cancer shortly after his
resignation in 2011.”
It is hard to understand what is meant by this. Dr Antonio Cassese was a brilliant scholar and jurist who was committed to the Tribunal’s mission until his untimely death after a long battle with cancer. Dr Cassese was succeeded in the function by two other dedicated professionals in the role of STL President – first Judge David Baragwanath (2011-2015) then Judge Ivana Hrdličková (since 2015).
Dr Mallat further states: “The only person found guilty was Ayyash, who led the assassination cell, but was the smallest fish in the conspiracy. And the STL found no grounds to condemn Nasrallah for his steadfast refusal to surrender Ayyash either, since his indictment in 2010.”
This passage is also difficult to understand. The judges can only base their decision in accordance with the Tribunal’s jurisdiction and on the charges brought before them. The Tribunal has no jurisdiction over the crime of harboring a fugitive, if that is indeed what is implied here. The indictment was issued in 2011 against Salim Ayyash and four others. Mr Nasrallah was not among those indicted.
In possibly the most perplexing sentence in the text, Dr Mallat states: “The legal expert in me wonders how will any teacher of criminal law explain to his or her students that motive is not a component of a crime – as it was bewildering to hear the STL president say this week.”
The Lebanese law applied by the Tribunal is clear on this point: article 195 of the Lebanese Criminal Law states: “Motive is the reason prompting the perpetrator to act, or his ultimate goal. It shall not constitute an element of an offence except in cases specified by law.” Referring to and applying Lebanese law, in 2011 the Appeals Chamber, led at the time by the esteemed Judge Cassese, stated the following: “The mens rea is not affected by the motive of the author to commit the crime. The motive plays a role in aggravating or mitigating the sentence only.” (For non-lawyers: mens rea is the intention or knowledge of wrongdoing that constitutes a component of a crime.]
Dr Mallat concludes: “The line heard on the street aptly summarized the judgment: “The STL found that Salim Ayyash, alone, made a telephone call.”
The judgement is 2,641 pages, the authoritative summary of the judgement is 149 pages and the public pronouncement is 61 pages. They are all available on the homepage of the STL website and none of them can be summarized in one sentence, particularly not the sentence directly above which is manifestly incorrect and misleading.