March 8, 2010 - Daily Star - Lebanon Tribunal beset by problems that plague any international court

Editor’s note: The following are excerpts of the Special Tribunal for Lebanon’s annual report, which was released Saturday. The Daily Star will publish excerpts of the report over the next three days.

INTRODUCTION
1. This Annual Report is not meant to present a jejune account of the activities undertaken by the organs of the Tribunal in the last twelve months. In addition to illustrating the steps taken, achievements made, and setbacks encountered in the past year, it aims to discuss some general problems and challenges facing the Tribunal and to reflect on the implications of its establishment. This will be done in an effort to ensure transparency and accountability vis-à-vis the United Nations, the Government of Lebanon, Lebanese civil society, the Member States, and the world community at large.(…)

C. The Imperative Need for State Cooperation
1. Introduction

46. The cooperation of States, which is crucial to the successful accomplishment of the mission of any international criminal tribunal or court, normally follows two models.
a. The horizontal model based on the sovereign equality of States, whereby States are not bound to cooperate unless they have agreed to do so. This model is the one that normally inspires the bilateral or multilateral treaties on judicial cooperation or extradition between States. Under this model, the State requested to perform investigative or judicial acts to assist criminal proceedings in the requesting State (e.g. interviewing or summonsing witnesses, conducting searches, executing arrest warrants etc.) operates through its own prosecutorial or judicial authorities and then delivers the result of these acts to the requesting State.
b. The vertical model, whereby States are legally bound to comply with orders issued by an international tribunal or court without prior specific agreement, but rather on the basis of a binding decision of an international organ (with the consequence that any non-compliance may be sanctioned). Under the vertical model, States may not refuse to cooperate on any of the grounds usually applicable in inter-State legal assistance or extradition treaties (such as non-extradition of nationals, political offence exception, double criminality requirement or ne bis in idem condition). (...)
48. The STL system of cooperation is unique in four respects. First, it is based on both models of cooperation: while the vertical model governs the relationship between the STL and Lebanon, the horizontal model dictates its relationship with third States. Second, the relationship between the STL and Lebanon is inspired by the more hierarchically-oriented vertical model, since Article 11(5) of the Statute appears to allow the STL to take investigative acts, if appropriate without the assistance of the Lebanese prosecutorial or judicial authorities. Third, the effectiveness of the horizontal model has been reinforced by envisaging the conclusion of agreements or arrangements with third States, not only by the President acting on behalf of the whole Tribunal, but also by the Prosecutor, the Head of Defense Office and the Registrar. Fourth, innovative mechanisms designed to avoid major cooperation difficulties have been adopted in the RPE. (…)

D. Principal Problems Likely to Beset any International Criminal Court Dealing with Terrorism

58. It may now prove judicious to try to explain the fundamental reasons for the protracted investigations of the Tribunal’s OTP into the terrorist crimes falling under the Tribunal’s jurisdiction, and also to show how the STL must face both the problems besetting any international criminal tribunal, and those that such a tribunal must come to grips with when it deals with crimes of terrorism.
1. General Problems Plaguing any International Criminal Court or Tribunal
(i) International environment
59. Let me start by briefly discussing the problems that any international criminal tribunal must cope with.
60. For a Judge used to sitting on a domestic court, being appointed as an international criminal judge may involve a novel and, in some respects, challenging experience. At home he was part of and worked within a complex machinery, the Judiciary. A Ministry of Justice was taking care of financial resources and other administrative matters. Law enforcement agencies at the disposal of the Judiciary accomplished important coercive tasks: execution of judicial orders for the collection of evidence, for searches and seizures, and for summoning or arresting suspects or indictees. In addition, colleagues shared the same legal background, having been trained in the same country, and generally having been brought up in the same cultural milieu. Furthermore, all activities were done in the same language – a language usually shared not just by counsel, prosecutors, judges, but also by witnesses and defendants.
61. As was noted in the past by a witty ICTY judge, once projected onto the international arena some domestic judges feel like astronauts floating in a rarefied atmosphere, with no oxygen. There is no general judiciary proper in the international arena, but only a number of distinct judicial institutions, each living its own life. Each international tribunal normally constitutes a monad, a self-contained unit, disjointed from other courts or tribunals of a similar nature. Each tribunal must look after its own financial resources and their judicious allocation as well as set up its own structure and act in conformity with its own rules of procedure. What is even more striking, international tribunals have no enforcement agencies at their direct disposal. They have no sheriffs, no judicial police, no bailiffs capable of directly enforcing judicial orders. For these purposes, international courts must turn to State authorities and request that they take action – through their own organs – to assist the international courts’ officers and investigators. (…)
62. For international criminal tribunals State co-operation is therefore crucial to the effectiveness of the judicial process. Often, it is only national authorities (or, under certain circumstances, international organizations) which can enforce decisions, orders, and requests issued by international criminal tribunals. Admittedly, generally speaking this need for State cooperation holds true for all international institutions, which always need the support of governments to be able to operate. International criminal courts, however, are much more in need of this type of support, and need it more urgently, because their action has a direct impact on the human rights of individuals residing on the territory of sovereign States and subject to their jurisdiction. Indeed, international courts have the authority to charge those individuals with international crimes, to bring them to trial and, if such individuals are convicted, to order that they serve sentences of imprisonment. It is therefore imperative that, in order to allow international tribunals to carry out functions that impact so heavily on fundamental human rights, States – which have created such tribunals in the first place – lend them their swift and effective assistance. (…)

(ii) The international investigative process
64. Conducting investigations into core international crimes and terrorism poses challenges that are different than those faced in domestic investigations. In many instances, international investigators are not on the scene until weeks, months or even years after the crimes have been committed. Time is the enemy of all investigations, since the passage of time often means that evidence is no longer available; memories have gone stale; witnesses have died or are no longer traceable. Moreover, there are often language barriers to be overcome, since quite often the investigator does not speak the same language as the victims or witnesses. Even when the investigator and witness speak a common language, cultural barriers may hinder clear communication.
65. In this regard, I need to point out that the Tribunal only started working in early March 2009. While the United Nations International Independent Investigative Commission (UNIIIC or Commission) was established on 7 April 2005 pursuant to Resolution 1595 (2005), the mandate of this Commission was to assist the Lebanese authorities in their investigation and to help identify the perpetrators, sponsors, organizers, and accomplices; to this end, the Commission was, among other things, requested “to collect any additional information and evidence” pertaining to the terrorist act. This task – carried out pursuant to procedures that are not those typical of an international judicial process – was therefore different from that of the STL Prosecutor as an organ of the Tribunal and therefore subjected to the RPE adopted by the Judges. While the material gathered by Lebanese authorities and by the UNIIIC can be used as evidence before the Tribunal, “its admissibility shall be decided by the Chambers pursuant to international standards on collection of evidence. The weight to be given to any such evidence shall be determined by the Chambers” (Article 19 of the STL Statute).
66. It should be added that, whether or not the activity of an international criminal tribunal is preceded by the gathering of information and evidence by a commission of inquiry, normally collection of evidence that stands up to the strict criteria proper for international criminal trials is a complex and time-consuming process. As a rule, at least two or three years elapse between the beginning of criminal investigations proper by an international Tribunal’s Prosecution and the initiation of trial proceedings. (…)

(iii) Length of international proceedings
67. Yet another serious problem is the length of international criminal proceedings. This results from various factors and I will only touch upon some of them here.
68. First is undoubtedly the complexity of international cases. Compared to an average case in national courts, international criminal proceedings deal with more complex legal and factual issues. True, there are also very complex proceedings at the national level (e.g. mafia and other organized crime cases); however, this level of complexity is the rule in international criminal proceedings. In addition, the complexity is also influenced by the fact that international tribunals must rely on national authorities and must strive to overcome the reluctance of some States to cooperate fully.
69. Second, I would point to some aspects of the dominant adversarial system which, by requiring that all the evidence be elicited orally through examination and cross-examination, renders proceedings protracted – although the system also appears under certain circumstances better suited to protect the fundamental rights of the accused. On the contrary, in many inquisitorial systems the evidence is selected beforehand by the investigating judge as an impartial judicial authority present during the investigation and pre-trial phases of the proceedings. However, one should not generalize too much: the experience of the ECCC, based on a system closely resembling the traditional French one, shows that the inquisitorial system may also result in lengthy proceedings. In the first case before the ECCC, after a lengthy and confidential investigation procedure, the trial has also taken a long time, mainly because of the perceived need to hear most of the evidence again in the public forum of a trial. The advantage of the civil law system regarding efficiency at trial was thus lost. The system at the ECCC appears to have combined the long pre-trial phase typical of inquisitorial systems with the long trial phase often needed in adversarial proceedings.
70. Third, one should also mention language problems. At the national level, proceedings are normally conducted in only one language, whereas before international courts this occurs in at least two, and possibly in three or more languages. This has the consequence that documents, exhibits and pleadings need to be translated into all these languages. Moreover, interpretation is needed in the courtroom: even with simultaneous interpretation, the length of the proceedings is clearly affected and the need for clarifications and corrections – required due to the precision needed in criminal proceedings – further aggravates the problem.

2. Problems Specific to an International Tribunal Dealing with Terrorism
(i) Problems relating to the investigation of crimes of terrorism

71. The best way of illustrating the specific difficulties for an international criminal court to investigate crimes of terrorism resides perhaps in briefly comparing them with the difficulties faced by international courts when investigating other categories of international crimes, namely war crimes, crimes against humanity and genocide (so-called international “core crimes”). We can discern many differences between investigations concerning the three classes of crimes, on the one hand, and those concerning terrorism, on the other. Such differences relate to (i) the target of the investigations, (ii) the context of the crime, (iii) the purpose of the crime, and (iv) the territorial dimension of the crime. The observations that follow are based on discussions held with national prosecutors and investigating judges specializing in terrorism. They are general in nature, referring to various kinds of terrorism, without any specific reference to the subject-matter jurisdiction of the STL.
72. Turning first to the target of the investigations, international core crimes are often perpetrated by military units or paramilitary groups, or by groups of individuals enjoying their support; they are often masterminded by political or military leaders. In other words, those crimes are physically committed by members of the armed forces, the police, or other State officials (including persons acting under colour of law, even in insurgent groups or other quasi-State situations), or at least with their assistance, support or acquiescence. These units or groups can be fairly easily identified, for they are part of an apparatus and normally act in broad daylight, sometimes in uniform. Even in the case of paramilitary groups, they are often organized and financed by “official” groups or institutions. Victims of their crimes (murder, rape, torture, killing of civilians, etc.) and other witnesses are normally able to provide testimonial evidence on the events surrounding the crimes, thereby assisting in the identification of the alleged culprits. In addition, there is often documentary evidence in the form of orders or directions under which these groups acted. Perpetrators, including both co-conspirators and lower level soldiers or police, will often provide evidence as to such orders as well as plans that were followed. These “insider witnesses” have good reasons for providing such evidence, as their cooperation often results in lower sentences. Moreover, after the end of the hostilities, many participants in these groups are less committed to the cause that motivated their involvement in the conflict and the crimes. In other cases, they are simply criminals who acted opportunistically in the first place and are willing to seize the opportunity to provide evidence in consideration of a more lenient sentence.
73. In contrast, the authors of terrorist crimes generally make up small and secretive cells, which sometimes act in a clandestine fashion. Hence, it is extremely difficult to identify the perpetrators of a specific crime. Even when, by chance, the crime site was under video-camera surveillance, and therefore the images of the attackers can be obtained, this may prove of little help, because those perpetrators may have killed themselves in perpetrating the attack. The network behind a specific terrorist attack, therefore, can be very difficult to identify.
74. It is also worth noting that in war crimes cases, the basic structure of regular forces or paramilitary groups is often well known to experts in military and political affairs. In contrast, in terrorism cases, while the cell structure noted above is frequently employed, the way in which different organizations operate and work varies considerably. Hence, without access to one or more insider witnesses, or highly specialized expert witnesses, the investigative process may well be much more difficult than in a war crimes case.
75. Moreover, individuals engaging in terrorist activities and their supporters are generally bound by strong ideological or religious beliefs which, even if they can be identified and arrested, makes it extremely difficult to obtain information, much less admissible evidence, from them. In addition, members of terrorist groups are often loath to disclose information on the terrorist network lest they be immediately killed or subjected to other serious retaliatory measures by other members of the group. Thus, in the case of crimes of terrorism, access to potential “insider witnesses” is much more limited than in war crimes cases. Without such insiders, it is much more difficult for an investigator to piece together the evidence but also, more importantly, to identify potential suspects or perpetrators. In the war crimes context, particularly in leadership cases, “insider witnesses” have proven critical in providing a roadmap as to how the crimes were committed and who committed them. While the evidence of “insiders” is equally important in terrorist cases, they may be more difficult to cultivate due in part to the ideological commitment of the perpetrators and their network of supporters. One of the features of terrorist groups is that it is known that they are likely to kill prospective witnesses and defectors. This naturally leads potential “insiders” to be reluctant to cooperate.
76. However, an important point should be stressed. Terrorist cases are often built on circumstantial evidence, which is often more powerful than direct evidence. The individual rings of metal used in producing chain mail armor are not, in and of themselves, strong. But when hundreds of such rings are linked together, the armor can be impenetrable. Circumstantial cases are the same. By linking the various evidentiary threads together, the Prosecution can put forward a case that is much stronger than one based solely on direct evidence, such as eyewitness accounts.
77. Let me now turn to the context of the international core crimes, on the one hand, and terrorism, on the other.
78. Core crimes are normally perpetrated in situations of armed conflict, periods of dramatic social unrest, or when the authorities of a State have collapsed. While this exacerbates certain problems associated with the gathering of evidence (due to a breakdown in the legal and social order), the role of the international tribunal is at least clear: to act because the State is unable (or unwilling) to take the matter into its own hands. In contrast, crimes of terrorism often occur in States with functioning social systems and institutional infrastructure. This may create difficulties in coordinating the existing functioning institutions of the State, on the one hand, with the international tribunal called to adjudicate the matter, on the other.
79. The context of terrorism cases as opposed to “core crimes” cases, furthermore, creates serious security problems for investigators and other authorities dealing with the preparation and trial of the case. Due to the nature of terrorism crimes … and of the persons generally associated with terrorist groups, investigative steps must be pursued in an extremely delicate environment amidst real dangers for staff and their contacts.
80. Let me now underscore the difference between the purpose of the various classes of international crimes and terrorism. War crimes are acts which flout international legal standards imposing restraints on combatants in how they conduct warfare and against whom they may lawfully do so. Crimes against humanity (such as extermination, torture, rape, persecution and deportation), if committed in time of war, are often perpetrated with the same goal of attacking persons not taking an active part in the hostilities, plus (both in time of war and peace) the intent to humiliate, demean or provoke suffering in certain groups of persons (ethnic or religious groups, women, etc.). Genocide is grounded in the intent to destroy a whole national, ethnic, racial or religious group, or at least a part thereof.
81. In contrast, terrorism generally aims to disrupt State structures (or those of an international organization) or to force State (or international) authorities to undertake certain conduct. The killing of individuals is sometimes simply a means of coercing a State (or an international organization) to take some sort of action or to refrain from acting under specific circumstances. In substance, terrorism amounts to an attack against State (or international) authorities, by means of violence against life or property, whereas in the case of international core crimes the target of the attack is one or more individuals or groups.
82. There are also important differences in terms of the territorial dimension of the core international crimes and terrorism. In the case of war crimes, crimes against humanity and genocide, as a rule the offence is perpetrated in the territory of one State: for example, murder, rape or deportation of civilians of the States of the former Yugoslavia, genocide in Rwanda, crimes against humanity in Sierra Leone, and so on. Even when crimes are committed within the context of an international armed conflict between two or more States, normally the locus of the offence is well defined. At most, there may be a dislocation between the defendants – who participated in a joint criminal enterprise to commit the crimes or who issued orders to engage in atrocities in an enemy State – and the actual perpetrators who physically carried out the massacres there.
83. In contrast, crimes of terrorism very often involve transnational elements. A person may join a terrorist cell in one country, travel to another country to be trained in terrorist techniques, and then return to his country of residence to recruit other persons. Subsequently, he may then travel to yet a different country, where the attack is then carried out.
84. In this context, the investigation of such crimes is more difficult and can be impeded because the criminals, and therefore the crimes, cross multiple international boundaries. The consequence is that, besides the complexities explored above, the information (and the witnesses themselves) are located in a variety of different Countries and are thus more difficult to trace. Moreover, key acts that are critical to understanding, investigating or proving the relevant crimes take place in Countries that may be unwilling to cooperate with an investigation or simply unable to provide assistance due to lack of infrastructure or territorial control. While war crimes investigations face some of the same issues, the difficulty in obtaining information on such a global scale is of a magnitude not generally seen in the war crimes context.
85. It should be added that the financing of terrorism, which is a crime per se under international law and in many Countries, covers two distinct aspects: the financing of terrorist attacks and the financing of terrorist networks, including recruitment and promotion of terrorist causes. The small sums of money which may be needed to carry out terrorist attacks means that it may never be possible to dry up terrorist access to financing.