The Special Tribunal for Lebanon: A Defense Perspective

Article excerpt

ABSTRACT

This Article analyzes the absence of organs tasked with guaranteeing the rights of the defense in international criminal law. It explains the historical origins of the problem, tracing it back to the genesis of modern prosecutions at the Nuremberg International Military Tribunal. It then explains how the organizational charts of the UN courts for the former Yugoslavia, Rwanda, and Sierra Leone omitted the defense and essentially treated it as a second class citizen before the eyes of the law. This sets the stage for the author to show why the creation of the first full-fledged defense organ in international criminal law by the UN-backed Special Tribunal for Lebanon is a welcome advance in the maturing of international penal tribunals from primitive to more civilized institutions. The Article argues that if the legal provision contained in the Lebanon Tribunal statute is matched with the independence and resources needed to help realize defendant rights, it will likely become one of the statute's biggest legacies to international law.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THE ESTABLISHMENT OF THE SPECIAL TRIBUNAL
     FOR LEBANON
     A. Lebanon Wants a Court but Needs
        International Help to Create It
     B. Lebanese Politics Gets in the Way,
        UN Imposes the Tribunal as a Matter of
        International Law.
III. THE JURISDICTION AND NATURE OF THE SPECIAL
     TRIBUNAL FOR LEBANON
     A. The Tribunal's Personal and Subject
        Matter Jurisdiction.
     B. Practical Arrangements Resulted in Creation
        of the Court in The Hague
 IV. EVOLVING DEFENSE RIGHTS IN INTERNATIONAL
     CRIMINAL LAW
     A. The Problem: Defense Was Forgotten from
        the Watershed of International Criminal
        Law in 1945
     B. The Sierra Leone Tribunal's Solution:
        Include the Defense, Even if Only as a
        Second Class Citizen
     C. The Significance of the Lebanon Tribunal's
        Creation of an Independent Defense Office
        Organ
  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
     B. No Longer Second Class? The Defense as
        an Equal Before the Altar of Justice
 VI. FUNCTIONS OF THE DEFENSE OFFICE: LESSONS
     FROM THE SIERRA LEONE COURT
     A. The Legal Aid Administrator Role: "[D]raw
        up a list of defense counsel"
     B. The Public Defender Role: Appearing Before
        the Pretrial Judge or a Chamber in Respect
        to Specific Issues.
     C. Logistical Support Role: "[P]rovide support
        and assistance for Defense Counsel and to
        the persons entitled to legal assistance".
     D. Assisting to Ensure the Health and Welfare
        of the Accused
        VII. Conclusion

I. INTRODUCTION

As the most recent UN-sponsored ad hoc criminal tribunal, the Special Tribunal for Lebanon (STL or Tribunal) has attracted the attention of the international community. Though it has yet to conclude its first case, the STL has already been lauded (and also criticized) for various features in its founding instruments. (1) The positive reviews of the STL stem from several factors. (2)

First, it was established following a request by the government of Lebanon for international community assistance to address a situation that the national authorities could not, for various reasons, resolve under the domestic legal system. Lebanon's appeal for UN support to establish a tribunal of "international character" (3) to bring to justice those responsible for terrorism, much like the requests for international support from the governments of Cambodia in 1997 and Sierra Leone in 2000, is a noteworthy departure from the traditional foot dragging of states in prosecuting individuals for egregious international crimes that essentially became the norm between the creation of the International Military Tribunal at Nuremberg in 1945 and the establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR) in the early 1990s. …