The Special Tribunal for Lebanon: A Defense Perspective

By Jalloh, Charles Chernor | Vanderbilt Journal of Transnational Law, May 2014 | Go to article overview

The Special Tribunal for Lebanon: A Defense Perspective


Jalloh, Charles Chernor, Vanderbilt Journal of Transnational Law


B. The Significance of the Lebanon Tribunal's Creation of an Independent Defense Office Organ

Against the above backdrop, the significance of the Defense Office in the STL as the first full-fledged independent organ in an internationalized criminal court cannot be overemphasized. Indeed, as has been observed elsewhere, this marks a first in the history of international criminal law. (136) The OPD of the Sierra Leone Court has undoubtedly influenced this development, likely an enduring part of its wider legacy, through its unsuccessful efforts for statutory and operational autonomy from the registrar. As will be argued more fully below, if the level of commitment signaled in the STL Statute is matched by a similar level of funding and operational distance for the defense, it will likely be celebrated by practitioners and academics alike as a strong contribution to the maturation of international criminal justice institutions.

V. THE DEFENSE IN THE SPECIAL TRIBUNAL FOR LEBANON

A. Remembering the Defense for the First Time in International Criminal Law: Better Late Than Never

The founding instruments of the STL address the role of the defense in various provisions. Article 2(1) of the UN-Lebanon Agreement mirrors Article 7 of the STL Statute and provides for the Tribunal to have four organs: "the Chambers, the Prosecutor, the Registry and the Defense Office." (137) [Emphasis added].

Pursuant to Article 11 of the UN-Lebanon Agreement, the head of the Defense Office enjoys, during his time in Lebanon, the same privileges, immunities, exemptions, and facilities accorded to the prosecutor and his deputy, the registrar, and the judges. (138) As with other international criminal courts, the privileges and immunities conferred on the principals of the STL are the same as those accorded to diplomats under the Vienna Convention on Diplomatic Relations. (139) Those privileges accrue to the benefit of the organization, which can waive them as appropriate, not to the personal benefit of the individuals working in the organization. (140)

Importantly, through Article 13 the Lebanese government guarantees that defense counsel, who usually practice before such tribunals as private contractors instead of staff members, will also enjoy various kinds of immunities during their time in Lebanon. (141) These functional immunities provide defense counsel what must by now be standard protections from personal arrest, detention, or seizure of their personal effects; inviolability of documents relating to the exercise of their role as lawyers for the suspects or accused before the Tribunal; immunity from criminal or civil process for oral or written statements made in the course of discharging their duties--which immunity survives the end of their function; and protection from immigration restrictions during their stay in the country or journey to and from Tribunal business. (142) The importance of this provision cannot be emphasized enough. To take but one example, in the ICC Libya Situation, Melinda Taylor, interim court-appointed duty counsel for Saif Al Islam Gaddafi, was subject not only to search and seizure of her documents but also to unlawful arrest and detention by Libyan authorities. (143) There have been similar arrests and harassment of defense lawyers in other tribunals in, for instance, Rwanda.

Finally, Article 15(1) of the Agreement establishes that Lebanese authorities shall cooperate with all organs of the STL, especially the Prosecution and defense counsel, throughout the proceedings. (144) This includes facilitating access for all counsel to sites, persons, and relevant documents required in the investigation. (145) Article 15(2) creates a further obligation to comply with any request for assistance by the Tribunal, including its organs, the prosecutor, and the head of the defense, or an order for assistance made by the Chamber. (146) Drawing upon the experience of the ad hoc courts, this provision is another important step forward in the march toward equality between the prosecution and defense in the international criminal tribunals. …

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