A perspective from the Special Tribunal for Lebanon is to ensure the rule of law is subordinate to no-one, and nothing. It met a number of attempts to the contrary.
Lebanon, with a population of nearly seven million, is the coastal state demarking the eastern end of the Mediterranean. Its jurist Ulpian wrote 42% of Justinian’s Digest of the Roman Law, a foundation of much of the Romano-Germanic, Napoleonic and English common law recently described by Philip Wood CBE Hon KC in PRIMEtime Recording English Law as an Asset as Europe’s greatest contribution to civilisation.
1. The factual issues
I begin with the facts.
Rafiq Hariri had resigned his office as Prime Minister of Lebanon to secure re-election on a platform conforming with a Security Council Resolution of 2 September 2004 that his country should be rid of domination by its neighbour Syria and the armed element of the political and military organisation Hezbollah. With the election pending, on 14 February 2005 he was assassinated by the detonation of military explosive equivalent to 2 ½ tonnes of TNT carried on the back of a truck and triggered by its suicidal driver as the Hariri motorcade approached in a main street of Lebanon. It killed as well 21 and injured 226 other people going about their legal affairs.
A second Security Council resolution of 30 May 2007 created the Special Tribunal for Lebanon of which I was an appellate judge and for a term President.
The first attempt to defy the rule of law was the planning of the explosion so as to leave no evidence beyond mutilated bodies, destroyed cars, damaged buildings, a massive crater in the road, and the identity of the special explosive.
The brilliance of a Lebanese investigator appreciated not only that coincidence of the detonation with arrival of a fast-moving motorcade required close coordination, but that this could only have been done by mobile telephones. Enquiry was made of Lebanon’s two suppliers of telephone services and some 6 ½ years records of the metadata of every cellphone call and text messages were obtained and analysed. The conspirators may have hoped that Lebanese law prohibiting access to such records without judicial authority might have impeded enquiry; a majority decision of the STL Appeals Chamber from which I dissented however held that the Prosecutor was entitled to use such data without reference to the Tribunal and so I am unaware of how exactly it was analysed. We do know that the metadata was of both caller and recipient phones and identified both the two phones and their general position as well as the time of the calls.
It will have soon been obvious that the concealment extended to the ownership of the phones. But what must have been an immense enquiry focused on the times and places of significant events eventually disclosed the use of no fewer than four different sets of phones whose identities were concealed.
Their use could be inferred from a series of salient events. A 4 ½ year hearing against five accused in absentia before the Trial Chamber, followed by 2 years of judgment writing, were necessary for it to prepare and deliver its judgment. That extended to some 2600 pages of close analysis of numerous topics. Among them, coinciding with the period from Mr Hariri’s resignation in October 2004 until his assassination, was a series of calls from different sets of phones that accompanied him closely. The Trial Chamber concluded that one of the five accused, Mr Ayyash, who carried one of each of four sets of phones with concealed identities, was so closely linked in time and place with surveillance of Mr Hariri and the fatal detonation as to establish his guilt of five crimes including terrorist conspiracy and murder, on each of which he was sentenced to life imprisonment. Each of the other accused was acquitted.
The Prosecutor appealed against the acquittal of two accused, Messrs Mehri and Oneissi and (as against them) the finding that the evidence was insufficient to require conviction of Mr Badreddine. The acquittal of a fifth accused was not challenged.
The charges against Messrs Mehri and Oneissi included not only being party to the alleged terrorist conspiracy and murder but positive attempt to mislead the investigation by the creation and publication of a video in which a Mr Abu Adass, who later disappeared, asserted he and other persons unrelated to the accused had been responsible for the assassination.
The Appeals Chamber allowed the Prosecution appeals against them and convicted them in absentia on five counts with a sentence of life imprisonment on each.
A majority decision of the Appeals Chamber had allowed a Defence appeal against a majority decision of the Trial Chamber that the death of the further accused, Mr Badreddine, had not been proved. So Mr Badreddine was discharged as an accused. But on the appeal by the Prosecution against the Trial Chamber finding that the evidence had not established the guilt of Mr Badreddine of both the assassination and the attempt, by the Abu Adass video to cover up responsibility for it, as being evidence against Messrs Mehri and Oneissi as co-conspirators, the Appeals Chamber unanimously allowed the Prosecution appeal.
2. The issue of jurisdiction
Certain Defence counsel contended that the Security Council Resolution creating the Special Tribunal was ultra vires the Charter of the United Nations which by Article 24 and Chapter VII conferred on the Council authority to respond to threats to international peace and security. By decision of 24 October 2012 the Appeals Chamber rejected that submission. My colleagues were of the view that we had no authority to pronounce on the validity of a Security Council Resolution. I was of the contrary opinion (2012 STL Casebook 307), preferring the approach adopted by the first President of our Tribunal Antonio Cassese, then President of the Yugoslav Tribunal. That was, in essence, that the Charter required compliance with the rule of law. If there was no threat to international peace and security a condition precedent to exercise of authority by the Council to act was not met. Since the first obligation of any judicial body is to act only within the limits of its own jurisdiction, in the absence of such threat we could not have been accorded such jurisdiction.
I was however satisfied that the enormity of the Hariri conspiracy and assassination did threaten international peace and security, as the Council had concluded in accepting jurisdiction in the case of Benazir Bhutto. So I joined my colleagues in dismissing the challenge to the Council’s, and our, jurisdiction.
I add that I would have preferred that the issue be dealt with by the International Court of Justice, created by the United Nations Charter contemporaneously with the Security Council. But no means existed to achieve that, and so the necessity principle of the rule of law required us to evaluate our own jurisdiction.
Since our judges, like those of other international tribunals, had utilized our rule-making power to prohibit and penalize wilful interference with the due process of the Special Tribunal, as President I created a monthly roster for judges to serve in turn as Contempt Judge. In January 2014 it fell to me in to deal with allegations that two media companies had published particulars identifying witnesses whom the Prosecutor sought to keep confidential and thereby infringed our rule. As recounted in my judgment Decision in Proceedings for Contempt with orders in lieu of indictment 2014 STL Casebook 21 I was astonished to learn that the international law texts agreed that, for reasons expressed in Latin, international law did not permit the issue of criminal proceedings against a company. That rule had been abandoned by the common law and by legislation in a range of civil law states including, significantly, Lebanon. That seemed to me an absurd result in the modern world where companies are frequently more powerful, whether for good or ill, than the individual. I regarded it as inconsistent with our obligation to hear and determine our cases on their merits and declined to follow it. My decision was endorsed by two appeals panels, the first 2-1 and the second 3-0. The latter was itself endorsed by Justice Sotomayor for herself and three colleagues in Jesner v Arab Bank, PLC 584 US _ (2018); the majority adopted other reasons for decision. In one of our cases there was acquittal on the facts, in the other a conviction.
4. Rights of access to justice and freedom of information
In Decision on Partial Appeal by Mr El Sayed 2011 STL Casebook 319 the appellant who had been detained in Lebanon for three years without trial sought discovery from the STL of documents it had received that might assist civil proceedings he wished to bring. As a criminal tribunal we had no rule dealing with civil proceedings. But we held that, subject to just exceptions, the rule of law entitled him to relief on two grounds: a right of access to justice p341; and a right to official information p342.
5. In absentia
Trial in absentia is, as far as I know, unknown to the common law except where an arrested accused has breached bail. But the law of Lebanon and the STL’s Rule 22 permitted trial in absentia subject to stringent conditions, among them if arrested a guarantee of retrial in his presence. Without it there could not have been a trial. We held in our In absentia decision 2012 STL Casebook 351, 368 that the STL Statute and Rules interpreted in light of the international human rights standards required (i) reasonable efforts to notify the accused personally; (ii) the accused actually knew of the proceedings; (iii) he did so with such specificity that he must have elected not to attend and thus waived the right to be present.
I add that my judgment paid tribute to my Australian colleague Judge David Re whose meticulous analysis as Presiding Judge and thousand decisions en route to the 2600 page Trial Chamber judgment were of the greatest assistance to the Appeals Chamber in achieving a unanimous decision upon the appellate verdicts.
Hon Sir David Baragwanath KC
Hon Sir David Baragwanath KNZM KC is an Honorary Professor of the University of Waikato and a graduate of the University of Auckland and Balliol College Oxford. He practised for 30 years at the New Zealand bar, the last decade including Treaty litigation.
He was appointed to the High Court then the Court of Appeal, concurrently for periods presiding in the Court of Appeal of Samoa, chairing the Law Commission then the Rules Committee, and a New Zealand member of the Permanent Court of Arbitration, The Hague. He was then appointed until February 2023 to the Appeals Chamber of the Special Tribunal for Lebanon, The Hague, which he served for a term as President.
He is an Overseas Bencher of the Inner Temple, a Door Tenant at 3 Hare Court, a member of the New Zealand Law Society and the Swiss Arbitration Association and chairs the advisory board of the Dutch charity P.R.I.M.E. Finance. He lives in Switzerland and Wellington.