THE STL BILLION DOLLAR RULE 61 PROCEEDING: a charade of consequence to ICL 

Even if your goose habitually lays golden eggs, it will still be cooked. — Neil Gaiman

It was not curiosity that killed the goose who laid the golden egg, but an insatiable greed that devoured common sense. — E.A. Bucchianeri

In my previous post I discussed how the Special Tribunal for Lebanon (STL) has squandered not just time and money, but also the good will of its funders who bought into the idea of establishing an international(ized) ad hoc tribunal to effectively prosecute domestic crimes, and in so doing, benefit International Criminal Law (ICL) by adding to its list of crimes under Customary International Law (CIL), the crime of terrorism.

I may be oversimplifying things. But when you cut through the fog of how and why the STL was established (aside from expected knee-jerk reactions at the domestic level by interested/subjective parties such as the victims’ family, friends, and political allies) it is what it is. Less charitably, it would appear to have been a vanity/ego project of the late professor, turned judge, Antonio Cassese, who aside from trying to solidify into ICL his concoction of Joint Criminal Enterprise (JCE) – now discredited, in part, due to his (and his colleagues’ who went along) reliance on bogus supporting jurisprudence – wished to further place his mark in ICL history by heralding a new crime in CIL, to wit: terrorism. I’m calling it bluntly as I see it.

Antonio Cassese

In November 2006, Judge Cassese published The Multifaceted Criminal Notion of Terrorism in International Law, concluding that “under current customary international rules terrorism occurring in a time of peace and which is international in nature (i.e. not limited to the territory of a state and showing transnational connections) may, depending on the circumstances, constitute a discrete international crime, or a crime against humanity.” He had been writing about terrorism in international law for some time, but this time UN Secretary General Kofi Annan had just issued his Report on the Establishment of a Special Tribunal for Lebanon, annexing to it the draft Statute and Agreement between the UN and Lebanon. Article 2(a) of the draft Statute provided that the “provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism” shall apply to the prosecution and punishment of crimes committed in relation to the attack against former Lebanese Prime Minister Rafiq Hariri.

Before deciding on the first Indictment in Ayyash et al., the STL Pre-Trial Judge Daniel Fransen punted several questions of law to the Appeals Chamber, including the application of JCE and “[w]hether the Tribunal should apply international law in defining the crime of terrorism.”1 Prosecutor v. Ayyash et al., STL-11-01/11, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, p. 1. Judge Cassese just happened to be Presiding Judge of the Appeals Chamber and Judge Rapporteur (I guess recusal never came up), and, as expected, the Appeals Chamber held that JCE and the crime of terrorism were established in CIL.2 Id., p. 2-5. This was praised as a “landmark” ruling. Much of this, if you ask me, was already baked into the cake when Judge Cassese was serendipitously selected as the first President of the STL. Confluence or coincidence, or careful placement of the rabbit in the hat (fox in the henhouse?), you pick.

Lawmaking legacy aside (good or bad), the price-tag thus far is one billion USD, if not more. Since its first year of operations in 2009 to date, the STL has budgeted between USD $51.4 million and $65.7 million each year for its operations (see the STL Annual Reports here). The approved budget for this year, 2021, is $42,186,000. When you include all that was spent establishing the STL, for what? To try four accused, none of whom were available, some of whom are suspected to be dead? To put it more simply, one billion USD or more was spent to hold a trial in absentia, generating an appeal, and to get through the pre-trial stage of a second case of one of the same accused from the first case, all of which may be subject to a complete do-over if the fugitive Mr. Ayyash is eventually brought to the Court and requests a new trial.

Let’s not blame the lawyers, prosecutors, or even the judges (though Trial Chamber I, presided by Judge David Re, should be held to account for dragging out the STL’s first case.  Some might speculate that dispensing with expeditiousness avoided the risk of killing the goose that laid the golden eggs).  For full disclosure, I also placed myself on the list to represent accused and victims. I see no contradiction in seeking employment at a tribunal and critiquing that very same tribunal. Indeed, my many critics and few defenders would likely agree that such fouling of my own nest is my modus operandi! And for what it’s worth, what I am saying here is what I have publicly voiced elsewhere.

Before I propose a modality for how the STL’s two cases (Ayyash et al. and Ayyash) could have been disposed of for a fraction of the time and resources spent by the STL over the last 12 years, i.e., by adopting an International Criminal Tribunal for the former Yugoslavia (ICTY) procedure known to Judge Cassese, let’s briefly look at the STL’s accomplishments. And let’s consider whether donors and funders for future meritorious ad hoc tribunals (such as for the atrocities committed by the Bashar al-Assad regime in Syria), will be so understanding and generous to relinquish from their State coffers their hard-working tax-payers’ funds, when looking at the one billion USD lack of STL accomplishments. This is not a hypothetical.

Some Statistics

Two confirmed cases involving four accusedAyyash et al. concerning Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi, and Assad Hassan Sabra and Ayyash, concerning a separate case against Salim Jamil Ayyash.

One conviction – The Ayyash et al. Trial Chamber convicted Salim Jamil Ayyash, but acquitted the three other co-accused.

Four known potential accused – The STL Pre-Trial Chamber ordered the release of four Lebanese generals who were detained in connection to the investigation of the attacks on Prime Minister Rafik Hariri – Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar, and Mostafa Fehmi Hamdan – without indicting any of the four.

One potential case without identified suspects – The STL Pre-Trial Judge ordered the Lebanese authorities to hand over the results of their investigation in “connected cases” concerning attacks on Lebanese politicians Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr without identifying any accused so far.

Two Contempt Cases – The STL Trial Chamber convicted Ms. Karma Mohamed Tahsin Al Khayat and Al Jadeed S.A.L./New TV S.A.L. (STL-14-0) and Mr. Ibrahim Mohamed Ali Al Amin and Akhbar Beirut S.A.L. (STL-14-06).

 General breakdown of the STL’s case load

 Ayyash et al. (STL-11-01)

Four accused, Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi, and Assad Hassan Sabra, were tried in absentia for conspiracy to commit a terrorist act, intentional homicide, attempted intentional homicide, and other related charges, for an explosion that killed 22 people, including the former Lebanese Prime Minister Rafik Hariri.3 Prosecutor v. Ayyash et al., STL-11-01/T/TC, Judgment, 18 August 2020, para. 1.

On 18 August 2021, the Trial Chamber unanimously found Ayyash guilty beyond reasonable doubt as a co-perpetrator of all the counts against him in the amended consolidated indictment, while finding Merhi, Oneissi, and Sabra not guilty of all counts charged in the indictment.4 Prosecutor v. Ayyash et al., STL-11-01/T/TC, Judgment, 18 August 2020, p. 2227-28. On 29 March 2021, the Appeals Chamber held that the Ayyash Defence has no standing to appeal his conviction in his absence, proceeding with the Prosecution’s appeal against the acquittals of Merhi and Oneissi.

Ayyash (STL-18-08)

The second case against Ayyash relates to three attacks against Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr. On 25 February 2021, the STL Pre-Trial Judge set a tentative date of 16 June 2021 for trial, which was cancelled on 2 June 2021 for lack of funds for the Tribunal’s operations.

Connected cases, Hamdeh, Hawi, and El-Murr (STL-01-02)

On 23 September 2019, the STL Prosecutor filed its “Connected Cases Submission,” requesting the STL Pre-Trial Judge to rule that the attacks against Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr fall within the jurisdiction of the tribunal. The STL Pre-Trial Judge granted the request, ordering the Lebanese authorities seized with the connected cases to defer to the STL and forward it the results of the investigation on 19 August 2011. According to the Prosecutor, as of the filing of its submission, the Lebanese judicial authorities detained no persons in relation to the investigations into these attacks.

Matter of El Sayed, El Hajj, and Hamdan

In the STL’s first decisions, on 29 April 2009, the STL Pre-Trial Judge ordered the Lebanese authorities to immediately release four Lebanese generals – Mr. Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar, and Mostafa Fehmi Hamdan – who were detained by Lebanese authorities in connection with the investigations into the attack against Prime Minister Rafik Hariri. So far, none of the four generals have been charged or indicted at the STL, though they have engaged with it, requesting documents.

Following his release in 2009, Mr. El Sayed sought disclosure of documents by the Prosecutor. The Pre-Trial Judge ordered the Prosecutor to disclose over 270 documents and the Appeals Chamber sent the file back with instructions to ensure appropriate and expeditious classification of documents that had not been disclosed to Mr. El Sayed.

Five years after his release, Mr. El Hajj requested the STL President to provide copies of records in the Ayyash et al. proceedings related to his prior detention in Lebanon, but the Pre-Trial Judge found that Mr. El Hajj had no standing.

On 24 September 2020, Mr. Hamdan requested the STL President for permission to make submissions relating to his unlawful detention in Lebanon. The STL President assigned a Pre-Trial Judge to determine whether the STL had jurisdiction over the request and whether Mr. Hamdan has standing to file it.

Contempt Cases (STL-14-05 & STL-14-06)

Karma Mohamed Tahsin Al Khayat and Al Jadeed S.A.L./New TV S.A.L. were charged with two counts of contempt for knowingly and willfully interfering with the administration of justice (STL-14-05). Khayat was convicted of one count and acquitted of the other on 18 September 2015, while Al Jadeed was acquitted of both counts. On 28 September 2015, Khayat was sentenced to a €10,000 fine. The Appeals Chamber reversed her conviction on 8 March 2016.

Ibrahim Mohamed Ali Al Amin and Akhbar Beirut S.A.L. were convicted of one count of knowingly and willfully interfering with the administration of justice on 15 July 2016 (STL-14-06). On 29 August 2016, Al Amin was sentenced to a €20,000 fine and Akhbar Beirut to a €6,000 fine. Neither appealed. Al Amin failed to pay his fine within the Contempt Judge’s 30 September 2016 deadline.

There you have it. Seriously, is this the best the STL could have done over the last 12 years with a billion USD? Considering the importance of the STL, it might be tempting to see this as a meager amount, chump change. Hardly. If past is prologue, by the time the STL completes the second Ayyash trial (Trial Chamber II seems more dynamic and frugal than Trial Chamber I), it could take another half a billion USD or more when all said and done. So now what? Are the victims to be cheated out of justice due to no fault of their own? Not necessarily. Not when you consider that the STL could have and can still have proceeding similar to that provided by ICTY Rule 61. Let me explain by way of an illustration.

Proposed Modality The Karadžić Rule 61 Review of the Indictment Procedure

ICTY Rule 61 provided for a review of the indictment procedure, when service of the indictment and arrest warrant have not been executed: “If within a reasonable time, a warrant of arrest has not been executed, and personal service of the indictment has consequently not been effected, the Judge who confirmed the indictment shall invite the Prosecutor to report on the measures taken.”5 ICTY Rule 61(a). If the Confirmation Judge was satisfied that the Registrar and Prosecutor took all reasonable steps to secure the arrest of the accused or ascertain his/her whereabouts, the Confirmation Judge would order the Prosecutor to submit the indictment to the full Trial Chamber, together with all evidence that was available before the Judge who initially confirmed the indictment.6 ICTY Rule 61(A)-(B). If the Trial Chamber was satisfied that the evidence showed reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, it would “so determine,” have the Prosecutor read out the relevant parts of the indictment with an account of efforts to affect service,7 ICTY Rule 61(C). and issue an international arrest warrant.8ICTY Rule 61(D).

Judge Fuad Riad confirmed the indictment against Mr. Radovan Karadžić on 16 November 1995, issuing arrest warrants for his arrest and surrender. The warrants were sent to the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Bosnia and Herzegovina, and the Bosnian Serb Administration in Pale.9Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 1. By June 1996, the arrest warrants had not been executed.10Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 1. Considering on 18 June 1996 that a reasonable time elapsed since the warrants were issued, Judge Riad invited the Prosecutor to report on the measures taken to affect personal service or to inform the accused of their existence.11Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 1. Satisfied by the steps the Prosecutor had taken, Judge Riad ordered both indictments to be submitted to the Trial Chamber pursuant to Rule 61.12Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 1.

After two days of hearings on 27 June and 5 July 1996, the Trial Chamber took one month to deliver its decision reconfirming the charges on 11 July 1996. The Trial Chamber at the outset held that it must consider “whether there are reasonable grounds for believing that the accused committed one or all of the offences for which they are charged in the indictment,” reviewing “all the evidence submitted to the confirming Judges as well as the additional material produced during the hearing,” including the legal characterization of the acts charged by the Prosecutor.13 Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 2.

Over two days of hearings, the Trial Chamber heard witnesses called by the Prosecutor and examined two amici curiae, Ms. Elisabeth Rehn, Special Rapporteur for the United Nations Commission on Human Rights, and Ms. Christine Cleiren, member of the Commission of Experts established pursuant to Security Council Resolution 78D.14 Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 2. The two attorneys, Mr. Medvene and Mr. Hanley III (from Belgrade and California respectively), were chosen by Karadžić to represent him before the ICTY, and while they were granted access to the courtroom and relevant documentation, their filings were rejected, only having observer status in the proceeding.15 Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 4.

The Trial Chamber explained that the Rule 61 proceedings are geared at securing the execution of arrest warrants, also noting that the procedure permits the charges in the indictment and the supporting material to be publicly and solemnly exposed, and that “[w]hen called to appear by the Prosecutor, the victims may use this forum to have their voices heard and to live on in history.”16 Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 3.

After describing the indictment and supporting material at length, with citations to the evidence (which were lacking in the five-page first confirmation decision), the Trial Chamber re-confirmed the indictment, finding that it was satisfied that there were reasonable grounds for believing that the offences charged in the indictment were planned and ordered by the accused, or at the least, were not prevented or punished by him, and inviting the Prosecutor “to consider broadening the scope of the characterisation of genocide to include other criminal acts listed in the first indictment than those committed in the detention camps.”17Prosecutor v. Karadžić, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, paras. 68, 95. 

Presto, voilà, there you go!

Were any of the STL accused convicted in absentia to be arrested, would not the STL have to go over the same exercise in re-trying them? Would this not consume more time and money? Would not, in fact, the lengthy trial in absentia been for naught, for all intents and purposes – save for preserving some of the evidence? Would not a short, focused, and purposeful proceeding similar to that provided by ICTY Rule 61 accomplish the essence of the four years trial conducted by Trial Chamber I in Ayyash et al. case? Might it not be prudent to consider adopting such a proceeding for the pending case that has been put on ice subject to further begging for funds? Is not what has transpired at the STL for the past 12 years nothing short of a prolonged, extravagant, and glorified ICTY Rule 61 procedure? Might this not be a viable and preferable alternative to having to dismiss the case for all the reasons I noted in my previous post? I think so.

More to consider: The Judge Re litigation marring ICL and future ad hoc tribunals

As I keep reading about the Judge Re’s litigation saga, I reflexively hear the melodic voice of Marvin Gaye singing What’s Going On

Judge Re of the STL’s Trial Chamber I (which heard the first Ayyash et al. case), on 25 November 2019, created new work for the STL, challenging the appointment of the STL’s Trial Chamber II for the second case against Salim Jamil Ayyash (the Ayyash case). He claimed that Judge Ivana Hrdličková failed to consult with other Judges when appointing Judges Walid Akoum, Nicola Lettieri, and Anna Bednarek in breach of the STL Rules.

Within 24 hours, he filed an appeal against the decision of the President convening Trial Chamber II, requesting the Appeals Chamber to prevent Judge Bednarek from being appointed until his appeal could be decided on, and to declare void President Hrdličková’s order. Given that the appeal concerned decisions issued in her capacity as President, Judge Hrdličková, recused herself.

After the Appeals Chamber decided that Judge Re’s Appeal should be public, he filed another motion on 29 November 2019, seeking that she lift the confidentiality of his “Urgent Application,” arguing that it did not contain anything that was already not publicized through his appeal. Judge Hrdličková rejected the request as “frivolous,” finding that nothing in the Statute or Rules gives fellow Judges the right to challenge decisions of the President, though lifting the confidentiality on Judge Re’s Urgent Application.

Two days later, Judge Re filed “further submissions” relevant to his appeal, further explaining why he thought President Hrdličková’s conduct was out of line with the Rules: (1) she did not challenge anything in his application, suggesting she did not contend that her decisions were procedurally flawed; (2) the international decisions cited in support of her decision actually support Judge Re’s position; and (3) her decision of 29 November 2019 “graphically illustrates why Presidential administrative or quasi-judicial decisions must be the subject of higher judicial review.”

The Panel of Judges ruling on Judge Re’s request found that Judge Hrdličková should be recused. But since this left only four judges, the decision came to an even 50/50 split. Judges Ralph Riachy and Afif Chamseddine found that Judge Re lacked standing, since nothing in the Statute or Rules grant Judges standing to challenge orders of the President,18 Prosecutor v. Ayyash et al., STL-18-10/MSC.2/AC, Decision on “Appeal Against Decision of President Convening Trial Chamber II,” 13 December 2019, Decision of Judges Riachy and Chamseddine, para. 29. while Judges David Baragwanath and Daniel Nsereko concluded that the Appeals Chamber had inherent jurisdiction to hear the appeal.19 Prosecutor v. Ayyash et al., STL-18-10/MSC.2/AC, Decision on “Appeal Against Decision of President Convening Trial Chamber II,” 13 December 2019, Opinion of Judge Baragwanath, para. 74; Opinion of Judge Nsereko, para. 29.

Since the STL Rule 118(B) requires a majority decision, Hrdličková’s decision stood. But Judge Re did not stop, filing two more applications on 20 December 2019 – one for the Appeals Chamber to reconsider its decision (submitted pursuant to his “duty as an independent judge” since he “ha[d] no other choice”) and another for seeking Judge Chamseddine’s recusal from the reconsideration (filed “with the greatest reluctance and respect for [his] judicial colleagues.”)

The STL Appeals Chamber addressed both submissions together, unanimously deciding that Judge Re failed to demonstrate that he suffered any injustice, noting the delay he caused in constituting Trial Chamber II.

What’s going on? A scandalous fiasco.

What are donors to make of this? Judge Re seems to have gotten territorial, fearing his STL meal ticket about to be punched out – the end of a lucrative judgeship. Perhaps. No doubt he sees nothing of the sort – that he is merely taking a principled position, hence justifying his fighting tooth and nail over the establishment of Trial Chamber II, like a schoolboy in the playground fighting over a toy. Motives aside, optics matter. The finer points of his litigation arguments (more appropriately, antics) seem mercenary-driven. This litigation is bound to leave a stench in the donor’s nostrils – the stench of avarice.

Let’s not kid ourselves, this stench is likely to envelope ICL and future attempts to set up meritorious ad hoc tribunals – just as the waste of a billion or more USD of donor tax-payers money on holding what can be characterized as bogus trials, when a simple, relatively quick, and assuredly cheaper procedure would have served the international community and donor purpose in establishing the STL.

Final thoughts  

The International Criminal Court (ICC) has not fared that much better than the STL. It too needs to get its act together and start delivering. And speaking of dysfunctionality and avarice, perhaps it may be worth commenting on a couple of recent interviews given by past ICC Judges. To be continued.

Footnotes[+]

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “THE STL BILLION DOLLAR RULE 61 PROCEEDING: a charade of consequence to ICL ”

  1. Interesting post.

    Worth noting, that one billion USD, not in vain (in terms of motives or necessity). For, that was considered, very dangerous assassination. A sitting prime minister, and as alleged, a state (Syria) had been behind it. Very dangerous precedent. Sovereign assassinations, would become custom or common? Pretty nasty! The integrity of Lebanon had been perceived as at stake here. The commission investigating it, claimed, that Lebanon was unable to investigate and catch and try the perpetrators. They needed the international assistance.

    I quote from UN resolution(see link) :

    ” Noting with concern the fact-finding mission’s conclusion that the Lebanese investigation process suffers from serious flaws and has neither the capacity nor the commitment to reach a satisfactory and credible conclusion,

    Noting also in this context its opinion that an international independent investigation with executive authority and self-sufficient resources in all relevant fields of expertise would be necessary to elucidate all aspects of this heinous crime,”

    Here:

    https://unispal.un.org/DPA/DPR/unispal.nsf/0/AAF6AAC927E83BEE85256FDD0050FCFA

    Also, recusal for being expert for terror ? That is more than bit unreasonable ground for being disqualified. In fact, it is even forbidden to do such thing. A judge must have capacity, far greater than that, to judge impartially. Suppose religious judge, facing homosexual as defendant. Would he disqualify himself ? Having kids, and pedophile as defendant, would he be disqualified for judging ? On the contrary, being an expert for certain subject, would only contribute to it.

    Thanks

  2. Just correcting my comment :

    Should be security council resolution ( Resolution 1595 (2005) ) not UN as has been written.

    Thanks

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