Articles - January 2018



The date is February 14, 2005. The time is 12:55 p.m. A large truck bomb detonates near the St. George Hotel in central Beirut, Lebanon killing 22 people and injuring more than 200 in the immediate area of the blast. The target of the suicide attack, in reality a political assassination, was former Lebanese Prime Minister Rafik Hariri. Hariri had close ties with Saudi Arabia and played a major role in bringing Lebanon's extended civil war to an end after the collapse of the PLO in 1992.

During his two-terms as Prime Minister, Hariri played a major role in rebuilding Lebanon and restoring the country's economy. But, Hariri came to oppose Syria's growing role in Lebanon and earned the enmity of Hezbollah, the Shi'a Islamist militant group, political presence and virtual shadow government in parts of Lebanon. Hariri himself was hardly without fault in the maelstrom of Lebanese politics driven by ethnic and cultural conflicts, religious divides and neighboring states with a penchant to involve themselves in the internal dynamics of Lebanon. But, in death, Hariri approached the status of martyrdom, a Lebanese leader who had devoted himself to rebuilding the country, stabilizing its economy and finessing its convoluted politics.

Amid the disruption that followed Hariri's death and a related stream of terrorist bombings, the United Nations condemned the assassination and called on the government of Lebanon "to cooperate fully in the fight against terrorism and to bring to justice the perpetrators, organizers and sponsors of this heinous terrorist act." This triggered an international investigation of the events in Lebanon. In turn, that investigation led to a call for the creation of a Special Tribunal for Lebanon (STL), a unique international court that would operate under Lebanese criminal law and at the same time incorporate the highest standards of international justice.

Growing out of the post-Cold War movement to expand the realm of international criminal justice and modeled after the example of the Nuremburg War Crimes Tribunal following World War II, the United Nations created a series of ad hoc international tribunals where no courts had existed before.

These courts were designed to deal with alleged international crimes that took place within national borders and to which individual responsibility could be assigned: ethnic cleansing in the former Yugoslavia, genocide in Rwanda, atrocities during civil war in Sierra Leone, the political cleansing carried out by the Khmer Rouge in Cambodia, and finally the Special Tribunal for Lebanon dealing with Hariri assassination. As these courts complete their work, the hope is that the nascent International Criminal Court based in The Hague will be able to deal with future such violations of international law, in part based on the procedures and precedents established by the ad hoc courts.

The Special Tribunal for Lebanon has been a unique experiment in international criminal justice, a hybrid court using Lebanese criminal law backed up by international law as its legal core. It is made up of both Lebanese and international judges and served by a multinational staff. It is the first of the ad hoc tribunals to deal directly with issues of terrorism and to struggle with legally defining that term. As several of the ad hoc tribunals have done, the STL places great emphasis on victims' testimony and on protecting the safety of those who testify.

The court has also established procedures for trying persons indicted for crimes in absentia, a necessary element when the accused cannot be found or will not be surrendered to the custody of the court. It is the only one of the ad hoc courts to establish a wholly independent Office for the Defense and to introduce the idea of an autonomous pre-trial judge. As the investigation proceeded highly technical testimony regarding cell phone networks and tracking calls was adduced and new rules of legal procedure adopted for its introduction and explanation to the court.

Currently serving as President of the STL is Judge Ivana Hrdlicková of the Czech Republic, now referred to as Czechia. Judge Hrdlicková began her career as a judge in the Czech courts in 1990, presiding over both criminal and civil cases. She has served on both District and Appellate Courts and on the High Court of the Czech Republic. In addition to her judicial training, Judge Hrdlicková has focused on the laws governing international financial transactions and holds a Ph.D. in International Law, exploring the interaction between international law and Islamic law, from Charles University in Prague.

Prior to being appointed to the STL by the United Nations Secretary General in 2012, Judge Hrdlicková served as a Legal Expert for the Council of Europe on human rights, money laundering and terrorist financing. Her continuing legal studies also led her to expand expertise in nurturing the rule of law in post-revolutionary societies and in transitional justice, establishing new national courts based in the principles of judicial independence.

Judge Hrdlicková describes the STL as "a tribunal for Lebanon: for the victims of the attack; for those affected by it; for those seeking the truth or motivated by the pursuit of criminal justice through strong and independent judicial institutions; and for the Lebanese community as a whole." Her hope is that the STL "will leave behind an institutional legacy that extends beyond the historic, fair and impartial international trials of individuals accused of acts of terrorism, conducted within the Tribunal's walls. It is a legacy that incorporates a new body of jurisprudence, interactions with the Lebanese authorities and legal communities, and lasting contributions to the mechanisms of international justice."

Diplomatic Connections was privileged to interview Judge Hrdlicková during a meeting of the International Legal Assistance Consortium (ILAC) held in Tokyo, Japan.

Diplomatic Connections: How did you become interested in law, particularly in international law?

Judge Hrdlicková: I always wanted to be either a judge or a lawyer because I was interested in seeing justice done. Probably for that reason, I decided to be a judge and not a lawyer. The judiciary presented an opportunity to interpret the law, to apply it in real world circumstances and to bring justice to people who had suffered harm. In the beginning I did not think about international law.

But, it was also apparent that not all the problems, not all disputes can be solved by law. Given that realization, I started becoming interested in alternative dispute resolution and diplomacy as well. My thought was that if it were possible to find a way to combine law with conflict resolution skills the result could be both just and healing.

Diplomatic Connections: Your first experience as a judge was in the lower courts, that is courts of first instance?

Judge Hrdlicková: I started as a criminal judge and later moved to civil law, commercial law and a special jurisdiction to protect personal rights. My interest in international law and international relations began in 2000, just two years before my country entered the European Union. Then, of course, recognizing the realities of globalization, I concluded it is impossible to deal only with national law, and began to focus on many international projects. I continued working as a judge but also started to offer legal expertise to the Council of Europe.

Diplomatic Connections: That is a very broad portfolio. Much of this work seems a natural continuation of your interest in criminal law, but it is hardly the work that every little girl dreams of doing as she is growing up.

Judge Hrdlicková: You know I grew up reading the Perry Mason courtroom dramas and even read some of Erle Stanley Gardner's other detective novels. I was drawn not so much into the drama and the suspense of the stories as into the idea of discovering truth and dispensing justice. The stories appealed to my adventurous side as well.

Diplomatic Connections: How did you make the transition from national to international law?

Judge Hrdlicková: I did my first doctorate in procedural law. Later, while I was working as a judge, the Minister of Justice encouraged me to develop an expertise in the area of judicial cooperation. That was the bridge between my training in the Czech law and judicial system and beginning work across the national legal systems of Europe to encourage a greater degree of coordination and judicial collaboration.

I also began to work with the European Commission's Euro- Med program, designed to enhance judicial cooperation between the European countries and the Mediterranean countries. Those meetings dealt with access to justice, judicial ethics, judicial independence, and criminal law. This represented my initial professional contact with countries whose jurisprudence is based on Islamic law.

Diplomatic Connections: Is that how you became interested in the Islamic world? Your second doctorate actually involves international law and Islamic civilization, including not only sharia law but Islamic finance as well.

Judge Hrdlicková: I became quite interested in how the legal systems in predominantly Muslim countries incorporated traditions of Islamic law with European systems of law, often inherited from colonial experience. The interaction between international relations, international law and national jurisdictions where Islamic law played a significant role fascinated me.

Diplomatic Connections: Do women bring something different to dispensing justice in the courts? Is a woman's approach different from what men bring to the bench?

Judge Hrdlicková: Women do bring something different, though not necessarily legally. In terms of applying the law, there should not be any difference between men and women as judges. But, every judge brings his or her personal experiences to the judicial proceedings. That is inevitable and desirable. So-called "black letter law" must always be applied to real life situations. Justice depends upon the human application of the law, filtered through the court's experience and best judgment, and applied to specific cases and their human circumstances.

Diversity on the bench is useful and important, but it's about the variety of experiences judges bring to the bench, not about gender itself. The judiciary should reflect real life. That is why it is very important to have both female and male judges on the bench. That's true for all judicial systems at all levels of justice and across cultures.

Diplomatic Connections: Given your experience in civil and commercial law and your developing interest in international law, how did you come to be selected for the Special Tribunal for Lebanon (STL)?

Judge Hrdlicková: Because I really wanted to use the knowledge I had gained and to learn more about how the international judiciary worked, the opportunity to serve on the STL was exciting. It was a long and demanding selection process. All of my work in judicial training and consultations between different national legal systems as well as my familiarity with Islamic law led to me being named to the Special Tribunal for Lebanon by the Secretary General of the United Nations effective January 2013.

Diplomatic Connections: At the time it was decided to recommend the creation of the STL was the concern either that the Lebanese courts lacked the capacity or lacked the political independence to be able to try those charged with these crimes? Why turn to the international community?

Judge Hrdlicková: Since Hariri's death and related assassinations were direct attacks on the Lebanese government, the United Nations was asked by the Lebanese authorities to assist the Lebanese courts and assure due process as these crimes were investigated, prosecuted and adjudicated.

Diplomatic Connections: To be clear, the Lebanese government requested legal assistance and then signed an agreement with the United Nations for the creation of this Special Tribunal. Is that right?

Judge Hrdlicková: The Lebanese government asked the United Nations Security Council to use Chapter VII of the United Nations Charter --- which details the actions the Security Council may take to deal with "threats to the peace, breaches of the peace, and acts of aggression" --- to create a tribunal. While the idea of a tribunal is not specifically mentioned in the Charter, Article 51 does charge the Security Council with the responsibility "to take such action as it deems necessary to restore international peace and security."

Diplomatic Connections: The assassination happened in 2005. The court was established in 2009. Today it is 2017, a dozen years after the assassination. There is an old saying, "Justice delayed is justice denied." On the other hand, there are those who would say that without the creation of this court there would have been no justice at all in this matter.

Why has it taken so long for this court and other international criminal efforts to move ahead? Is this a denial of justice, or is it inevitable when you try to bring law and substantive procedure to bear on international events?

Judge Hrdlicková: The issue of time is definitely a legitimate question. If you go back to look at each of the ad hoc tribunals, it is clear that justice has not been dealt with expeditiously. But, recognize that in each of these situations the court itself and the accompanying legal procedures had to be created from nothing.

The General Assembly resolution authorizing the STL was adopted in 2007, and the court began its work in 2009. The prosecutor indicted the first accused in 2011. The first trial started in 2014, and there are several cases in different stages. International proceedings inevitably take longer than national proceedings where long established procedures are already in place. However, the whole international community realizes that a way must be found to accelerate future proceedings.

Diplomatic Connections: What other challenges has the STL faced?

Judge Hrdlicková: The case being built and the supporting evidence being developed are highly technical. It brings together international and national investigation, as well as international and national judges. We are working in three languages: English, French and Arabic. Inevitably, everything takes longer than might be expected. We are the first and still the only court created to deal with anything related to events in the Middle East. We are also applying not only international law but Lebanese law in a manner that tries to do justice to both. Everything we do establishes precedent. We have been very careful to include Arabic as one of our three languages because it helps people in the region understand the investigation and evidence and allows them to follow our proceedings more closely.

Diplomatic Connections: You have named defendants who have been indicted, charged with specific criminal acts. But, none of these persons are in custody. One of the unique aspects of this court is that you can try defendants in absentia. That is quite a departure from what we know as the right of offenders to confront their accusers.

Judge Hrdlicková: This is the first time since the Nuremburg Tribunals following World War II, where the international community agreed to allow accused to be tried in absentia. The Tribunal wants to send a clear message that there is no impunity for such crimes as terrorism and assassination.

It is never a good idea to hold trials and try the accused in absentia. It is always preferable to have the accused in the courtroom. But, if the question is whether to hold a trial or not to hold a trial where international crimes are concerned, then I think it is better to have trials in absentia. The principles the court is seeking to uphold cannot simply be avoided by an accused's disappearance or failure to appear. If that were the case, then the whole notion of individual responsibility for war crimes or crimes against humanity would be subverted. Of course, if a trial is to proceed in the absence of a defendant, the accused's rights must still be protected.

Diplomatic Connections: The Tribunal has paid special attention to the rights of victims and their testimony. Inevitably this must raise questions of witness protection.

Judge Hrdlicková: International justice must be broader than just punishing perpetrators. Bringing justice to victims is perhaps the most important principle, along with the notion of individual responsibility for specific criminal actions, which the international tribunals are establishing. Our goal is to bring justice to society and to more deeply embed and legitimate the idea of the rule of law.

Diplomatic Connections: The trials of the accused before Special Tribunal are on-going. How does Lebanon gain from this judicial process?

Judge Hrdlicková: One of the roles of the court is to contribute to the rule of law and judicial culture in all the countries involved in these cases, especially the courts in Lebanon. I hope and believe that an independent judicial process and a commitment to an independent judiciary will be part of our legacy.

According to our statute there are four Lebanese judges and seven international judges serving on the STL. We have Lebanese staff. We use Lebanese law, and Lebanese law has been translated into all the languages of the court. We employ precedents from Lebanese jurisprudence. So, the Special Tribunal's effect is to bring Lebanese jurisprudence closer to international standards.

Diplomatic Connections: What about the region more broadly? Is it your hope that this Tribunal becomes a model for courts and judicial systems around the region and across the Islamic world?

Judge Hrdlicková: Courts and the judiciary throughout the region are interested in our work. Certainly, I hope that the example that the Special Tribunal sets in terms of judicial process and evidentiary procedures can be an inspiration for courts in the future.

Diplomatic Connections: Do you see the developing international court system as having a teaching function, almost a role model both in terms of where the law might be applied and in employing the best, state of the art legal procedures in developing evidence and in protecting witnesses?

Judge Hrdlicková: We have to be careful not to impose international law too much. The international legal order must always be pushing at the boundaries of law; but at the same time, it must show respect for the national court systems and encourage them to enact into national law the developing principles and procedures of international law. Strengthening national judicial systems should be a primary focus of legal development across the globe.

We should be enhancing the international legal procedures for investigation, the development of evidence and the principle of individual responsibility that refuses to permit wrong doers, even those in the highest offices, to justify their deeds under the cloak of sovereignty. We cannot rely only on domestic judicial process. We very much need to strengthen international cooperation.

There is an important role for international justice as well as national justice. But underlying both there must be a guarantee that there is no impunity for serious crimes.

Diplomatic Connections: In your career as a judge and as a student of international law has the realm of international law expanded? Is international law more respected today than it was twenty years ago or is it simply selectively applied as individual states find it to their advantage or disadvantage?

Judge Hrdlicková: International law is definitely more respected today. It certainly has a more visible role than in the past, though the slow workings of international justice rarely make the headlines.

In this age of globalization and almost instantaneous communication we cannot rely only on domestic legal systems and national courts. Perhaps it was possible decades ago, but it is not possible now. With all of the various types of transboundary criminal activities that exist today – terrorism, cybercrime, financial crimes, false information spread to create or exacerbate international problems – it is impossible to limit the application of law just to national jurisdictions.

Diplomatic Connections: Eventually the Special Tribunal for Lebanon will come to an end. What will be next for you after the Special Tribunal brings its work to a conclusion?

Judge Hrdlicková: International law is my professional life, and I would expect that to continue. Whatever I do, it will combine judicial work, international relations and the art of diplomacy. My goal is always to contribute to the pursuit of peace and justice in the world.

Diplomatic Connections: Clearly, you have brought judicial, academic, and cultural learning to bear on the work of the Special Tribunal for Lebanon. That is dramatic evidence of your commitment to the ideals of justice administered fairly and with human concern. Thank you for taking time to speak with us.

CODA: Déjà Vu for Lebanese Politics and the Hariri Family?

In a strange and perplexing series of events late in 2017, Lebanon's current Prime Minister Saad Hariri, son of the assassinated Lebanese Prime Minister whose death is the focus of the Special Tribunal for Lebanon, was himself caught up in a web of diplomatic intrigue.

Lebanon's complex multi-cultural social and political fabric is being torn apart by the regional proxy conflict between Iran and Saudi Arabia for preeminence in the Middle East. Amid that turmoil, Prime Minister Saad Hariri represents the voice of Sunni Muslims and is strongly supported by Saudi Arabia. But Hariri is also a part of a Lebanese coalition government that includes the strong presence of Hezbollah, the political voice of Shi'a Islam and strongly supported by Syria and Iran.

Early in November 2017, Prime Minister Hariri visited Saudi Arabia, allegedly leaving Lebanon because the atmosphere in Beirut felt erily familiar to him, similar to what he had experienced twelve years ago just before the assassination of his father. "I sense," he explained, "that [a plot] is being woven in secret to target my life." Within days of his arrival in Riyadh, Saad Hariri announced his resignation as Lebanon's Prime Minister and accused Iran of seeking "to sow discord, devastation and destruction" in his country.

Speculation ran rampant that the Saudi's extracted Hariri's resignation in order to provoke a political crisis in Lebanon and undermine Hezbollah's role in government. Other voices insisted that, if this was Saudi Arabia's motive, it was destined to backfire badly.

Into the breach stepped French diplomacy asserting that country's long-standing role in orchestrating in the delicate balance that attempts to make Lebanon governable and peaceful. On the surface of events, it appears that the French, following meetings between French President Macron and the Saudi leadership and a visit to France by the once and former Lebanese Prime Minister, were able to persuade Saad Hariri to withdraw his resignation and facilitate his return to Beirut just in time for Lebanon's Independence Day celebrations. Arriving "home" Hariri met with Lebanese President Michel Aoun and proffered his formal resignation, which was refused. In response, Saad Hariri delayed his resignation and agreed to remain as Prime Minister: if, that is, Hezbollah and Iran agree to respect Lebanon's stated policy of staying out of regional conflicts.

Ironically, 2018 begins with the name of Hariri at the center of Lebanon's political discourse once again. Sadly, if not repeating itself, history in Lebanon appears destined to rehearse old conflicts in new forms. And the work of the Special Tribunal for Lebanon grinds on.

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