Happy STL Begging Games! And may the odds be in justice’s favor

‘Mr. Limbkins, I beg your pardon, sir! Oliver Twist has asked for more!’

‘FOR MORE’ said Mr. Limbkins. ‘Compose yourself, Bumble, and answer me distinctly. Do I understand that he asked for more, after he had eaten the supper allotted by the dietary?’

‘He did, sir,’ replied Bumble.

‘That boy will be hung’ said the gentleman in the white waistcoat. ‘I know that boy will be hung.’

Oliver Twist, Charles Dickens

Due to the severe financial situation currently facing the Special Tribunal for Lebanon (STL), on 3 June 2021, Trial Chamber II canceled the commencement of the Ayyash trial scheduled for 16 June 2021. It also suspended all decisions on filings presently before it, and any future filings, until further notice. Mr. Salim Jamil Ayyash is charged with five counts, including acts of terrorism in relation to three attacks against prominent Lebanese political figures, Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr, carried out on 1 October 2004, 21 June 2005, and 12 July 2005 respectively, connected with the terrorist attack that killed former Lebanese Prime Minister Rafik Hariri.

Poor thing, the STL. The inevitable has arrived. After years of being on an extravagantly gluttonous diet, the STL, with cap in one hand and bowl in the other, is forced to beg for more funds so it can carry on. Whether the STL should have been set up in the first place (I think not) is debatable, though it cannot complain that it has not had sufficient time and resources to carry out its mandate.

What does not seem debatable, however, is its failure to live up to the hype of those who promoted its creation and the expectations of those funding it. With the deepest of sympathies to the victims, the STL has proved to be an expensive, unrewarding, and ill-conceived boondoggle. Perhaps this is a watershed moment, an exquisite time to re-think whether the STL should declare victory and close its doors (revisionist legacy narrative to follow).

Some will argue that turning off the tap will hang justice out to dry. Some will argue that the STL should press ahead; it should do whatever begging it needs to do with the donors to keep the STL going. But for how long? And what of the absent Mr. Ayyash’s rights?

The STL predicament recalls events at the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Given the modalities to which the United Nations (UN) and Cambodian Government agreed, substantive and procedural justice at the ECCC was always bound to be exceedingly time-consuming, resource-draining, and cost-inefficient. Proceedings would have to be simultaneously interpreted into three languages, all relevant documents would have to be translated, the Office of the Co-Investigating Judges would be responsible for conducting the investigation, and the Pre-Trial Chamber would act as an interim appellate body whose jurisprudence would not necessarily be binding on the Trial Chamber. Duplication and inefficiencies were inherent in the ECCC procedure. Additionally, with the suspects frail and old, unavoidable delays and drawn-out trial proceedings could have been expected. It is inconceivable that it would not have been anticipated that these factors unique to the ECCC would make the process long, intricate, and costly.

In May 2017, the ECCC’s funding situation reached a “crisis point.”1 Request for Submissions on the Budgetary Situation of the ECCC and Its Impact on Cases 003, 004, and 004/2, 5 May 2017, D249, para. 75. Funding was not provided to the requested and endorsed levels, neither by UN subvention (robbing Peter to pay Paul) nor by voluntary contributions.2 Id., para. 2. The court was several million USD short of its endorsed budget and the Judges had been informed by the Office of Administration that it was highly unlikely that more funding would be available for 2017, or that more funds would come in thereafter.3 Id.

Considering it their “duty under … oath of office to consider any and all options to ensure that the further development of the investigations” before the ECCC complies with the Charged Persons’ fair trial rights,”4 Id. the Co-Investigating Judges alerted the parties in Cases 003 and 004 and the Office of Administration – and by extension, the UN, Royal Government of Cambodia, donor States, and the Special Expert of the Secretary-General, David Scheffer – that they were contemplating staying all investigations, with prejudice.5 Id., para. 79. The Co-Investigating Judges considered that the outlook going forward became “incompatible with the principles of fair trial, the rule of law, and judicial independence,” in particular, the prospect of having an indictment “hang over the charged person” – if there were insufficient funds for appellate review by the Pre-Trial Chamber “and, by extension, serious doubt about the parties getting their day in court” before the Trial and Supreme Court Chambers.6 Id., paras. 53-54.

The Co-Investigating Judges requested submissions.7 Id., para. 85. Curiously, though the request was confidential, it was leaked to the press and others, triggering a cascade of reactions. Basically, the Co-Investigating Judges were seeking assurances that sufficient funding would be available for them to complete their mandate, for appellate review of the Closing Orders, and should indictments be issued, for trials and appeals.8 Id., paras. 1, 79. If such assurances could not be provided, all investigations would be brought to an end.9 Id., paras. 1, 79 Notwithstanding the soundness and good faith of the Co-Investigating Judges’ insistence for fiscal assurances that would enable the Charged Persons at the ECCC to have all of their rights guaranteed, accusations and innuendo of political interference abounded.

When rapid stop-gap funding came in, the Co-Investigating Judges deferred deciding on whether to stay the proceedings pending further developments: future funding of the ECCC in relation to Cases 003, 004, and 004/2 would need to be viable, matching the Court’s requirements.10 Combined Decision on the Impact of the Budgetary Situation on Cases 003, 004, and 004/2 and Related Submissions by the Defence for Yim Tith, 11 August 2017, D249/6. The Co-Investigating Judges hinted, big-time, that they were not entirely convinced that as things stood with the current and future funding of the ECCC, the judicial independence, fairness, and integrity of the proceedings would not be under threat, amounting to a fundamental breach of the fair trial rights of the suspects and Charged Persons under investigation. The UN, Principal Donor Group, and others responsible for securing the funds to meet the budgetary needs of Cases 003, 004, and 004/2, would need to get their act together, and soon – or else.

The STL now seems to be in a similar predicament. Trial Chamber II is well advised to adopt a similar posture as that of the ECCC Co-Investigating Judges. Like the Charged Persons at the ECCC, Mr. Ayyash is entitled to expedited proceedings. Though a fugitive, he cannot have an indictment hanging over his head and for the trial to start and stop, be delayed and postponed, and held in abeyance as the STL, periodically, does the begging rounds with the donors. And if convicted, he is also entitled to an appeal or a new trial — if an when he appears.11 STL, Prosecutor v. Ayyash, STL-11-01/A-l/AC, F0026, Decision on Admissibility of “Notice of Appeal on behalf of Mr Ayyash against Conviction and Sentence,” 29 March 2021.

Trial Chamber II should send a clear signal to the funders of the STL that not only it does not have sufficient resources to carry out its mandate at the highest international standards expected of it, but that it has become clear that even were it to complete its tasks (the trial), there must be assurances that the STL will have sufficient funds to ensure Mr. Ayyash’s case can be fully completed. Anything short of that, should compel Trial Chamber II to dismiss the indictment against Mr. Ayyash.

The STL, overfunded since its inception (the 2020 budget was an estimated at a jaw-dropping € 55 million / US $67 million, with a total budget for the first eight years (2009-2017) of the investigation and trial having cost around US $466 million, see here, here, and here) squandered time and resources over the years conducting, in my view, rather questionable proceedings, which, even if meritorious, could have been done with much greater efficiency. Finally, it seems, the funders have awoken from their slumber, wondering how much more will it cost them to bring the STL to its completion. Having indulged the STL over the years to a spending spree as if it were a bunch of sailors binge drinking at Mardi Gras (plenty of blame to go around), the funders seem to have come to their senses, questioning the rationality of funding what irrationally had been sold as an innovative approach to accountability.

We could say [they] spend money like drunken sailors, but that would be unfair to drunken sailors. It would be unfair, because the sailors are spending their own money. – Attributed to Ronald Reagan

Now that the money-well has run dry, Trial Chamber II – not responsible for the STL’s profligacy (look to other Chambers) – finds itself in the unenviable position of having to dismiss the case against Mr. Ayyash, lest it perpetrate a charade by cutting corners and circumscribing procedural rights to deceptively claim that substantive justice was done. The enormity of the impact of a dismissal will assuredly trigger an even greater cascade of reactions than experienced by the ECCC Co-Investigating Judges.

Having taken the first step to cancel the commencement of the trial, the Judges of Trial Chamber II just might have the necessary fortitude – the enormity of judicial courage – to take the very tough decision to end the Ayyash case and trigger the termination of the STL. It may sound radical, but it may have no choice. Either the funders loosen the purse strings to ensure that Mr. Ayyash’s rights are fully respected and protected, or the Judges of Trial Chamber II, consistent with their judicial oath, terminate the proceedings. What should not be countenanced is a middle-of-the-road approach, where Trial Chamber II is cajoled to carry on, having been provided with merely sufficient funds to give the appearance of fair proceedings, of extending a fig leaf of justice to Mr. Ayyash and the victims.  And, though I will not climb fully astride my high-horse in this post, I note that the calculus of sufficiency must not, as is all too often the case, be at the expense of the defence.

No one said that substantive international justice is cheap, but there are limits – especially when resources are squandered with abandon.  Though there is certainly stiff competition, the profligacy of the STL is the standard by which all international/ized ad hoc tribunals will come to be judged.  Quite the legacy.

Click here to read my next post on the STL.


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.

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