Lebanon’s Experiment with a Hybrid Tribunal

Daily Star - Lebanon’s Experiment with a Hybrid Tribunal, March 18, 2006

By Jerome Mayer-Cantu
The UN Security Council is scheduled to receive a report early next week from Undersecretary General for Legal Affairs Nicolas Michel on the progress made in establishing an international tribunal to try those accused of former Lebanese Premier Rafik Hariri's murder. It has also been reported that Secretary General Kofi Annan is to hold talks with Lebanese officials this month on forming the tribunal. Based on other international trials in the world in recent history, The Daily Star looks at the probable form of the International-Lebanese Tribunal. Lebanon has taken one step closer toward the establishment of a tribunal to try those responsible for the assassination of former Prime Minister Rafik Hariri. Telecommunications Minister Marwan Hamade announced on March 9 after a meeting in New York with UN officials that the court would begin its proceedings in June and would be based in either Vienna or Geneva. Lebanese government officials and UN representatives report that they have drafted an agreement outlining the tribunal's shape, jurisdiction and mandate. Lebanese authorities have asked for a trial with an "international character" in order to give the tribunal international assistance and attention, in the hopes of avoiding the influence or pressures stemming from Lebanon's tumultuous politics. Hamade announced that a Lebanese judge will not lead the court, but is not yet known whether the prosecution and defense will be led by Lebanese nationals or by international staff. While most details are still in negotiation, one fact is clear: the court will be a "hybrid" tribunal, a relatively new, experimental instrument of criminal law. A hybrid tribunal is a court in which both international judges and local judges sit side-by-side, drawing their decisions from a blend of both local and international laws. In the coming months, UN and Lebanese officials must determine the precise legal system upon which judicial opinions will be based, as well as the tribunal's procedural rules, which concern the admissibility of evidence, witness testimony, and criminal sentencing. The Lebanese court will differ greatly from all previous hybrid tribunals in that it is the first to address a political assassination rather than war crimes on a larger scale. While its original objective is to try those responsible for the assassination of Rafik Hariri, both MP Walid Jumblatt and the Brammertz Report have mentioned the possibility of expanding its mandate to include the prosecution of those behind the spate of bombings and explosions that have rocked Lebanon for the past 18 months. Based on the experience of other hybrid tribunals, some predict that the Lebanese court may face serious difficulties. David Cohen, founder of the Berkeley War Crimes Center, which monitors trials worldwide, and a professor at the University of California at Berkeley said the success of the tribunal will depend upon "whether Lebanon can offer a sufficiently secure environment for a highly charged trial and whether, given the politics, it will be possible to have an independent court and a firm process where witnesses will not feel intimidated from coming forward to testify." Hybrid tribunals are an innovative method of bringing prominent criminals to trial created in the wake of notable failures of both national and international tribunals to meet these challenges. National trials have often proved to be one-sided or insufficient measures to try prominent criminals; many believe it impossible for a government to prosecute crimes it may have been complicit in committing. In addition, national trials can devolve into ruthless "kangaroo courts" or sham trials used to eliminate political enemies rather than to redress wrongs. From Stalin's show trials to the Iraqi court trying Saddam Hussein, national tribunals have been subject to fierce criticism for lacking impartiality. In 1993, the UN agreed to establish an international criminal tribunal to try individuals responsible for the mass murders and "ethnic cleansing" committed during Yugoslavia's Civil War. This was the first international tribunal since Nuremburg and Tokyo in 1948. The following year, a similar tribunal was created to try those who orchestrated and executed the massacre of over 500,000 individuals in Rwanda. While these tribunals were hailed as groundbreaking, they were soon criticized for their exorbitant costs, slow pace, and remote location. Following disappointments in both local trials and international tribunals, hybrid tribunals were seen as a compromise that could combine their strengths and minimize their weaknesses. The first hybrid courts were established in Kosovo in 2000, and were soon followed by hybrid courts in East Timor, Sierra Leone, and Bosnia. Cambodia is in the final stages of establishing a hybrid court to address crimes committed by the Khmer Rouge, and Lebanon is the latest country to express its desire to create a hybrid tribunal. The decision to hold the tribunal in Geneva or Vienna is likely due to security fears. Proponents of holding the trial abroad say that this location may avoid violence that has marred the trial of Saddam Hussein, in which several members of the court have been kidnapped and killed. Nevertheless, critics argue that holding tribunals outside the country makes it difficult - or impossible - for the average citizen to be directly informed of trial proceedings. The dearth of news from the Yugoslav tribunal has provided fertile ground for nationalist Serb politicians to manipulate local perceptions of the trial. While it was announced that the trials would begin in June of this year, it has not yet been determined for how long the tribunal will continue to operate. The UN-sponsored international tribunals have been criticized for their bureaucratic delays and for proceeding at a snail's pace. The recent death of former Serbian President Slobodan Milosevic underscores the fact that his trial had dragged on for over four years without reaching any conclusion. The Lebanese tribunal may have to establish a timeline or completion strategy in order to avoid similar criticisms. From now until June, it will be necessary for the Lebanese tribunal to construct or designate a physical location for the trial's chambers and offices, a detention center for those indicted and found guilty, and structures to house and protect witnesses. In addition, it will be up to the UN and the Lebanese government to recruit and train judges, prosecutors, lawyers, security guards, translators, and other staff. Lebanon's tribunal has more resources at its disposal than many other previous tribunals, which have often taken place in countries where courtrooms, universities, law libraries, or other facilities were completely destroyed. Sierra Leone's tribunal was held in a nation laid to waste by nine years of civil war, and East Timor's tribunal took place after Indonesian militias had nearly demolished the entire area with its "scorched-earth" policy. While the Lebanese tribunal will benefit from the resources at its disposal, its choice to hold the trial in Geneva or Vienna may drive up the costs of establishing these structures and of paying employees' salaries. Lebanon's tribunal has not yet secured funding, nor has a budget been determined to outline its costs. The budget has been a thorny issue for several other tribunals; both UN-sponsored international tribunals have been criticized for their outrageous costs. The Rwandan tribunal has cost roughly $50 million per individual trial in a country where the average yearly income is only $1,300. On the other hand, the hybrid tribunal in East Timor was plagued by a meager annual budget of $6 million, which did not provide for translators, stenographers, or even electricity for the first three years of its operation. Cambodia's court has been repeatedly delayed due to an inability to secure funding. Ultimately, Lebanon's financial resources will define and circumscribe its operations. Since annual budgets for previous tribunals have cost as much as $200 million per year, Lebanon is looking to Western countries to contribute the majority of the funds. Nevertheless, Lebanon itself will most likely foot most of the bill. The legal system used by Lebanon's tribunal will most likely give ascendancy in decision-making to international judges. Previous hybrid tribunals have been led by a 3-2 or 4-3 majority of international judges, thus endowing them with the ultimate say in trial decisions. The hybrid tribunals in East Timor and Kosovo have used local laws as their primary legal source, but they rejected aspects of local law that were incompatible with international law. It is therefore expected that the Lebanese tribunal will try individuals according to Lebanese law, with necessary amendments to bring it into line with international standards.Previous trials have seen conflicts between local law and articles of international law concerning the death penalty and the right to an appeal. The Iraqi tribunal trying Saddam Hussein mandates that defendants found guilty of murder be executed within 30 days with no opportunity for clemency, leaving little or no time to request an appeal or hold a retrial. Many human rights groups and international organizations have singled this provision out as a draconian violation of the most basic tenets of a fair trial. It has not yet been determined whether or not the Lebanese tribunal will have recourse to the death penalty, which is currently permitted under Lebanese law but forbidden under international law. It is expected that the UN will strongly oppose any efforts to allow its use. The ultimate legacy of the Lebanese tribunal will not be based solely on whether or not it finds individuals guilty of Hariri's murder, but whether it further progresses the field of international law by providing the accused with fair and unbiased trials. Cohen says, "there is a recognition that hybrid tribunals can make a very positive contribution, but only if they are run right."