Wednesday, April 29, 2009

Special Tribunal for Lebanon releases generals; work in disarray

When the Special Tribunal for Lebanon (STL) was created in 2006 it assumed jurisdiction-- though not immediate custody-- over four senior Lebanese security-force generals who had been held in jail in Lebanon since shortly after the February 2005 assassination of former PM Rafiq Hariri.

The STL is a "mixed" court, the result of an agreement between the U.N. and the government of Lebanon. It applies Lebanese law but has a majority of "international" judges and sits in The Hague.

Today, STL judge Daniel Fransen ordered the four generals freed because, he said, there was insufficient evidence to continue their detention.

Bloomberg's Massoud Derhally reported that Fransen said here were “inconsistencies in the statements of key witnesses” and a “lack of corroborative evidence to support these statements.”

Fransen's announcement was aired live on Lebanese television, and shortly afterwards the four generals were freed.

Rafiq Hariri's son Saad, a leader of Lebanon's US-backed and strongly anti-Syrian March 14 movement, said he "respected" the judge's decision. Now, it is extremely unclear where the judicial investgation into this four-year-old crime will go.

The STL is the second "mixed" tribunal the UN has established in recent years. The first was the Special Court for Sierra Leone (SCSL), established to try the perpetrators of the worst atrocities committed during Sierra Leone's civil war. The STL is the first international court established to try cases related to just one crime.

The question of who has jurisdiction over major crimes is closely related to the question of national sovereignty. In the view of many Lebanese, Lebanon was voluntarily surrendering some of its sovereignty to the UN when it agreed to establish the STL.

The STL's original supporters in Lebanon argued that international help was needed to ensure that political influences inside the Lebanese judiciary would not end up corrupting the investigation into the Hariri killing, which many at the time argued had been organized by Syria.

The STL and the SCSL have both been part of a broader move by some in the international community to develop an intentionally international form of criminal jurisprudence. Other examples have been the International Criminal Tribunal for former Yugoslavia, the International Criminal Tribunal for Rwanda, and of course, the permanent International Criminal Court (ICC).

The motivation to bring the precepts of the rule of law to bear on some of the world's most most agonizing and violent situation is laudable. However, the idea that the law can somehow be considered apolitical, or politically neutral seems wrongheaded; and this is particularly the case in situations of ongoing or very recent serious political conflict when every action that a court takes has deep political repurcussions.

Also, law enforcement itself is never a process that's completely politically neutral. States make decisions about how to allocate resources to the investigation and punishment of various different forms of crime. When the state in question is democratic those decisions are, quite rightly, ultimately open to the normal processes of criticism and political accountability at the ballot box. But neither the UN Security Council (whch established and oversees the work of the STL, as of the earlier country-specific courts) nor the Assembly of States Parties to the ICC, which oversees the work of the ICC, is open to democratic accountability in this way; so the courts thereby created end up operating within a narrowly technocratic view of their task.

At least the UNSC resolutions that established the ICTY, ICTR, and SCSL did include clauses expressing the hope that the work of these courts could contribute to the restoration of peace and stability in the various countries affected. It was always, however, was always quite unclear as to how that was ever supposed to happen; and in the case of the ICTR its work almost certainly exacerbated inter-group tensions, rather than helping to heal them.

The Rome Treaty that established the ICC included no language that even expressed such a hope or affirmed any reponsibility the court might have to the citizens of the countries where it would be working, which is a real problem.

In the case of the STL, Judge Fransen's decision seems to correct some of the mistakes made by Detlev Mehlis, the zealous chief investigator who ran the UN's precursor investigation into the Hariri killing. Fransen and STL prosecutor Daniel Bellemare say the court's investigation into the Hariri killing will continue, and if they gain further evidence against the four generals they could be rearrested. But in the meanwhile, the four men and their families no longer have to suffer the unjustified harm of their continued incareceration.

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