Special Tribunal for Lebanon at the Hague

The Special Tribunal for Lebanon began Sunday at the Hague in the Netherlands to try suspects responsible for the car bomb blast four years ago on 14 February 2005 in Beirut that killed the former Lebanese Prime Minister Rafiq Hariri and 22 others. The international hybrid tribunal will apply domestic Lebanese criminal law, subject to two exceptions for permissible punishments. The maximum punishment will be life imprisonment rather than the death penalty or forced labor. The tribunal was established by the UN Security Council acting under its Chapter VII powers of the UN Charter at the request of the Lebanese government. It includes international and Lebanese judges and is expected to operate for three to five years. The prosecutor has 60 days to request a transfer of suspects from Lebanon.

Hybrid International Criminal Tribunal

At its inception, the Special Tribunal for Lebanon was envisioned by the international community as a hybrid international criminal tribunal. Hybrid criminal bodies, such as used in East Timor, Kosovo and Sierra Leone, combine domestic and international aspects. These international courts and tribunals rely on a mixed composition of domestic and international judges and generally an international prosecutor. Here, the preliminary investigation would be conducted by an International Independent Investigation Commission. International due process safeguards would be included in the authorizing mandate but the substantive law would reflect Lebanon’s criminal laws on terrorism and crimes against life and personal integrity, among others. Thus, the tribunal would promote accountability under domestic Lebanese laws yet be of “international character.”

Applicable Procedural Safeguards and Substantive Criminal Law

The Special Tribunal for Lebanon will apply domestic Lebanese criminal laws within a framework of procedural international due process safeguards under international legal norms. Articles 15 and 16 of the tribunal’s statute explicitly grant affirmative rights to suspects during investigations and to the accused. Among the safeguards, suspects have the right to be informed that he or she is a suspect for a crime within the jurisdiction of the tribunal, to remain silent, and to have legal representation of his or her choice. The accused is guaranteed a presumption of innocence, a fair and public trial, a right to examine evidence, a right to confront witnesses, and a right not to be compelled to testify against himself or herself. For conviction, the evidentiary standard requires proof “beyond reasonable doubt” that the accused committed the crime.

For substantive law, the tribunal will apply Lebanese criminal laws. This requires competence of the judges in the application of specific domestic law. The inclusion of Lebanese judges is aimed at facilitating the fairness of the tribunal and proper application of domestic law by international judges. Thus, judges will work cooperatively in ensuring Lebanese judges understand international law and international judges understand domestic Lebanese law.

Article 24 of the tribunal’s statute authorizes a maximum punishment of life imprisonment and trumps the permissible punishments under Lebanese law. Lebanon allows the imposition of forced labor and the death penalty. Thus, the tribunal applies substantive domestic criminal law with exceptions to the forms of punishment. In sentencing, the tribunal judges may consider the gravity of the offense and the individual circumstances of each case.

Culpability and Modes of Participation

The tribunal’s statute recognizes culpability for individuals who “committed, participated as accomplice, organized or directed others to commit” the crimes within the jurisdiction of the tribunal. Although the statute makes no explicit reference to “joint criminal enterprise,” individuals may be found liable when they are shown to act “with a common purpose.” This form of individual criminal responsibility allows for prosecution and conviction of the members of the group that participated or contributed to the car bomb attack but who did not directly carry out the attack or assassination of Lebanese Prime Minister Rafiq Hariri. The statute allows the Prosecutor to demonstrate culpability based on two evidentiary standards: (a) “aim of furthering”, and (b) “made in the knowledge of the intention.”

Similar to Article 25 of the Rome Statute of the International Criminal Court (ICC), the Prosecutor must prove a higher standard that the defendant acted with the “aim of furthering” the criminal purpose. The “aim of furthering” standard requires some affirmative action beyond actual knowledge that the crime is to be committed. Thus, culpability would not attach to a person who merely wanted the assassination attack to occur under this standard. There would need to be some type of affirmative action by the accused.

The statute also authorizes a lower evidentiary alternative for actions made “in the knowledge of the intention of the group to commit the crime.” This lower standard, such as codified in the International Convention on the Suppression on the Financing of Terrorism, requires a showing that the defendant merely possessed knowledge and awareness. The lower standard generally is associated with lesser punishments.

Culpability of Supervisors and the Mens Rea Element

Supervisors may be found guilty if the Prosecutor demonstrates that the perpetrator had actual knowledge or consciously disregarded information that a subordinate was to commit the crime. The standards seems to imply a minimum of “recklessness,” by which the perpetrator realized but knowingly disregarded the consequences of action or inaction.

Culpability of Subordinate – Following Orders No Excuse

Since the military trials held at Nuremberg from 1945-1949, international courts and tribunals have imposed liability on subordinates and have not allowed them to abrogate their responsibilities under international law solely based on the “following orders” argument. Unsurprisingly, a subordinate, particularly one who carried out the tangible acts of preparation or commission of the bomb attack, cannot avoid prosecution solely based on the argument that he or she was following orders. The “following orders” argument can be offered as a defense by the accused with the goal of lowered sentence or punishment.

Special Tribunal for Lebanon

• Special Tribunal for Lebanon
• UN Security Council Resolution S/RES/1757 (30 May 2007) (Mandate and Statute)
• S/RES/1664 (29 March 2006)
• S/RES/1644 (15 December 2005)
• S/RES/1595 (7 April 2005)

More Resources on International Courts

• FAQ on United Nations Courts and Tribunals on Inside Justice
• FAQ on the Difference Between the ICC and the ICJ on Inside Justice
• International Criminal Law postings on Inside Justice