Tag Archive | "Lebanon"

Defending the Damned (Part 1 of 3)

This blog series was originally part of a reflection the author wrote comparing international criminal defense with domestic defense. To read the original post, visit the author’s personal blog at http://lawphilosophyart.blogspot.com/2014/03/defending-damned-closer-look-at.html. Part I of this blog series will explore Francois Roux’s defense strategy at the Extraordinary Chambers in the Courts of Cambodia (ECCC, or Cambodia Tribunal) during the trial of Duch, who oversaw S-21, the infamous prison camp where thousands of Cambodians were held for interrogation and torture during the Khmer Rouge regime that devastated Cambodia in the 1970s. Part II will explain how the Special Tribunal for Lebanon (STL) was created, in order to lay a background for understanding the methods of defense now being used at the STL. Finally, Part III will compare Francois Roux’ defense strategy at the STL, where he currently oversees the defense team.

Part I: François Roux’s Defense of Duch at the ECCC

François Roux is currently the head of Defense at the STL, but prior to that he has vast experience in international defense. He categorizes himself as a disciple of Gandhi, defender of those who practice civil disobedience, and believer in non-violence. One of Mr. Roux’s moving yet tactical skills is his ability to bring out the humanity of the Defendant. During his closing argument to the court for Duch, he stated:

The task of the lawyer, particularly of a defence lawyer, who is being charged with such serious crimes is not easy, however, we always hold one major advantage over the Co-Prosecutors. They have all of the means possible at their disposal. They have a full team. They have experts. They have assistants. They have everything that they could possibly ask for, but they lack one thing. That is contact. They lack contact with the accused person.

We the defence, we meet with the accused person in his prison cell in private moments where he is able to speak openly, where he is able to speak freely from the heart. We see what you, Mr. And Ms. Prosecutor, are unable to see. We see an accused person who tries to hide himself discreetly and when he collapses in tears there is no one other than his own lawyers who are able to witness the tears that he sheds on the graves of the children who died. That is what we bear witness to. And that is what I testify to today.

Francois Roux

Francois Roux has defended notorious war criminals

In the film The Khmer Rouge and The Man of Non Violence, Mr. Roux explains “I always try to seek out the man in the torturer.” Mr. Roux’s strategy with Duch was to get him to come to terms with the reality of what he had done, to get him to a place where he was able to say something meaningful to the victims of the tragedies in Cambodia.

There was a technical hang-up, however. The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. In civil law jurisdictions, there is generally no concept of a plea of guilty. A confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the plaintiff(s) from its duty of presenting a case to the trial court.

And so, in an astounding, almost comical conclusion to Duch’s trial, his two defense counsels, one Cambodian –Kar Savuth –and one international –Mr. Roux –both entered different pleas for the Defendant. Kar Savuth asked for an acquittal, perhaps because he was fearful of government retaliation against himself, but also in part due to the technicality of apparently having to work within the civil law system. To Mr. Roux, the cathartic moment of Duch admitting to his guilt, for Duch himself, for the victims, and for Cambodia, was what he was working for the entire trial. Kar Savuth’s request for acquittal raised doubts about his admissions of responsibility and his pleas for forgiveness. Yet Mr. Roux also blamed the Prosecution’s theory and method during the entire trial for the shocking and tragic confusion:

So it is true that before this Court we have a civil law system. The guilty plea does not exist as such, but I should like to know what could have prevented any attempts to promote such a plea because it is stated in our Internal Rules that what is not provided for in national law can be sourced from international  law.

 So what was the obstacle? Well, the obstacle was a missed opportunity on the part of the Office of the Co-Prosecutors which missed its date with history; I stated it here. It led to frustrations as expressed in public opinion amongst the victims who were told incessantly, he is not telling all. This was the approach that was used even as late as yesterday in this courtroom. They said he is not saying everything. What he is saying will aid reconciliation but little. This is what I heard. What a waste. When you have an accused who from the very outset, from the very first day, told the Investigating Judges, “I am guilty. I am responsible for all the crimes” — but no.

The prosecutor decided to submit a conventional, traditional argument whose underlying philosophy is as follows. This man is a monster, even though they said “I am not saying this man is a monster”. In fact, the attempt was made to portray him as such. And they said “Lock him up for 40 years and society will be the better for it”, but when will the prosecution admit that these are words that have been heard before. These are clichés and that we must go further, we must try to understand the mechanisms that lead a man, who is a decent man by all accounts, becomes a torturer.

Mr. Prosecutor that is what I would have liked to hear you say because the same thing was said in Nuremberg. They said, “These people are monsters, we’re going to condemn them to death and this will set an example”. But after Nuremberg there was Cambodia, wasn’t there? And then there was Rwanda. So what is the example that you wish to show? What use is it in your conventional arguments? You do not deal with the problems. Well, we shall deal with them. We of the defence shall deal with the problems.

In the film, Mr. Roux appears quite crushed that this did not happen as fluidly as he had wished. However, there were many other incredible implications in Mr. Roux’s closing argument. Mr. Roux appealed to the humanity that runs through all of us, and the implications each of us has in the atrocities like what happened in Cambodia, what we all have done to create a world where a man could be forced to chose between obeying his superiors and committing such atrocious acts, or being killed himself, and endangering the lives of his family and loved ones. His words are some of the most inspiring I have ever heard or read. I would encourage anyone to read them, but I have selected some of what I consider the most powerful to reproduce here.

Mr. Roux based his theory of defense not on the crimes that Duch had commited at S-21, but on the crime of obedience.

 The crime that Duch committed and is according to me, and above all, a crime of obedience. Mr. Prosecutor, we said that we did not wish our client to be the scapegoat. I would like it to be clearly understood what is meant when I use the expression “scapegoat”. As you well know, scapegoats in societies, including societies of old, was loaded with all the evils, with all the suffering of a society. All of this was loaded onto the head of a goat. Amongst the Hebrews, the goat was sent into the desert so that the social group could be reformed because they would say, “This goat bears all our wrongdoings.” That is the scapegoat.

As long as the prosecutor’s submissions will focus on this man as a scapegoat, you will not advance by so much as a millimetre in the development of humanity.

“This will not happen again,” they say. Well, let me tell you it will happen as long as we haven’t brought up with lucidity the phenomena that lead a normal man to become one day an executioner…To find the source of evil that was implemented each and every single day in S-21, we didn’t have to look any further than ourselves. This is terrifying, but this is far removed from the very easy explanation of identifying a scapegoat.

Mr. Roux weaved philosophy, religion, literature –all of the things that bring us together as humanity, through his closing argument. In his final lines to the court, Mr. Roux said this:

 Here is a story — a story that is told by Cambodians, but a story that is universal. It is the story of a wise man. It could be the story of an old imam, an old rabbi, a philosopher, a priest or a pastor or — in this country — a Buddhist monk. He teaches his disciples and asks them, “How do we know that we are moving from night to day, from the shadows to the light?” So one disciple says, “When we begin to distinguish the colour of the mango leaves.” Another one says, “When you begin to see the cardamoms in the distance.” No. And yet another one says, “When you can recognize your brother in another’s eyes.”

Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?

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STL_thumb

Critical Analysis: The Fifth Accused – Another One in Hiding?

Just when we thought it couldn’t get any more suspenseful – or complicated – the Prosecutor at the Special Tribunal for Lebanon indicts yet another suspect in the court’s current case, Prosecutor v. Ayyash et al.

For those unfamiliar with the Lebanon Tribunal, it is an ad hoc court located on the outskirts of The Hague in the Netherlands. It was established by the UN Security Council under Chapter VII (Articles 39 and 41 specifically) of the UN Charter. Its primary mandate is to hold trials for the people accused of carrying out the attack of February 14, 2005, which killed 23 people, including the former prime minister of Lebanon, Rafiq Hariri, and injured many others.

The Prosecution’s case essentially rests on a very intricate network of cell phone activity prior to and on the day Hariri was killed. Specifically, five mobile phone networks – called the Red, Green, Blue, Yellow and Purple Networks – were allegedly managed by different members of a criminal enterprise who played different roles in the planning and execution of the 2005 bombing. Previously, Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra were named as members associated with these networks. Specifically, the Prosecutor argues that Ayyash, who allegedly used phones in the Red, Green, Blue and Yellow Networks, was a key coordinator who oversaw the plot. Two other members of the Red Network were part of the Blue and Yellow Networks, suggesting they also helped coordinate the different networks. Mustafa Badreddine, who faces the same charges as Ayyash, was not part of the Red Network but the prosecution argues that he maintained close contact with Ayyash using Green Network phones, helping monitor Hariri as well as help purchase the truck that was eventually used by a suicide bomber.

For even the most experienced trial attorney, all these mobile phones, call data records, and cell towers from a city of more than 350,000 people most of whom use cell phones – probably resulted in one of the most daunting and stressful discovery periods of all time. The trial was postponed in February 2013, and later rescheduled for January 2014 because of the lengthy discovery period.

The Special Tribunal for Lebanon located near the Hauge in the Netherlands.

The Special Tribunal for Lebanon located near The Hauge in the Netherlands.

And just when the lawyers thought it was over, along came Hassan Habib Merhi.

Although scant information is publicly available on the suspect, the Tribunal and Al-Jadeed television have provided biographical information on him. The STL described Merhi—who was born December 12, 1965 in Beirut to Habib Merhi and Latifa Abbas—as a “Hezbollah supporter.” Al-Jadeed television in March (citing STL sources) reported that Merhi does not occupy a leadership position within Hezbollah, adding that he is known among his peers as “Hajj Rabih,” a moniker he received after a pilgrimage he made following the 2006 July War to Mecca, where he was detained by Saudi authorities.

Merhi was, it seems, too busy assisting Salim Ayyash in killing Hariri to have given roses to his beau on that tragic Valentine’s Day in 2005. Specifically, Merhi has been attributed to several of the mobile phone networks, which demonstrate collectively that he worked closely with Ayyash to carry out the attack on Hariri while simultaneously overseeing that both Oneissi and Sabra successfully delivered a tape containing the falsified claim of responsibility to Al-Jazeera shortly after the attack.

This amended indictment will no doubt spark some problematic questions.

1. Does this indictment mean the trial is going to get postponed – again

There is growing international and domestic Lebanese pressure on the Tribunal to begin trial proceedings. After failing to start the trial in March, the Tribunal continues to face mounting criticism as it reschedules the trial for another tentative start in January 2014. The addition of Merhi to the indictment will no doubt add to the work of all organs of the Tribunal – and mostly likely require an extension of the disclosure period.

2. How could the Prosecutor miss such an important suspect? What’s going on with this Hezbollah-linked trail of phone calls?

It is entirely possible that the Prosecutor knew about Merhi from the outset, but he needed further evidence which only recently culminated enough to satisfy an amendment to his indictment. The Merhi indictment, however, will remind many of the political nature of the Tribunal’s work. Merhi, along with the other Accused, is affiliated with Hezbollah. Hassan Nasrallah, head of Hezbollah, has repeatedly insisted that the Tribunal is politically motivated to protect the interests of Israel, who he suggests was behind the Hariri attacks. The Merhi indictment may recharge Nasrallah, as well as other political critics of the Tribunal. Recent and high-profile resignations, including that of the Registrar Herman von Hebel and Trial Chamber Presiding Judge Roth, have already provided fuel for these critics.

3. What difference does Merhi make?

The Merhi indictment, at least legally, creates a more complete case for the Prosecution. Practically, however, it will present further problems.  Any political pushback created by critics due to Merhi’s indictment may result in further resistance from Lebanon to fully cooperate with the Tribunal in finding the Accused. Faced with a dire schism in its government, Lebanon has a history of resistance from pro-Hezbollah government officials who have complicated the state’s cooperation with the Tribunal.

It is highly unlikely that Merhi, along with the other four Accused, will ever be detained and arrested. The trial is likely to proceed in absentia, a setup which received fierce criticism from common law advocates who believe the practice to be a violation of the rights of the Accused.

As the world tunes in to learn more about Merhi, the Tribunal is no doubt scurrying to keep on track for a January opening statement. Only time will tell whether this new addition will push forward the showcase trial which the Lebanese have anticipated since 2005.

 

Maha is a staff editor with the Journal and a third-year law student, specializing in international criminal law and civil rights. She spent six months in 2013 with the Office of the Prosecutor at the Special Tribunal for Lebanon as a legal intern.

 

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Syria rebels fire a mortar toward a regime position near Aleppo. (NOW.)

Critical Analysis: Syrian Civil War Threatens to Engulf Neighboring Lebanon

Syria rebels fire a mortar toward a regime position near Aleppo. (NOW.)

Syria rebels fire a mortar toward a regime position near Aleppo. (NOW.)

As the Syrian Civil War rages unabated, the conflict has taken on a distinctly sectarian angle.  Bashar Al-Assad’s forces are now composed mainly from the President’s own Alawite sect, an offshoot of Shi’a Islam, which sees the fortunes of their minority community as intertwined with those of the regime.  After 2 years of brutal urban warfare, the regime’s forces are stretched to the breaking point.  However, the Alawite forces of President Assad may be receiving an increasing amount of support from their co-religionists of the Shiite Lebanese militia, Hezbollah.

There have been reports since the start of the war in Syria that Hezbollah has been backing the Syrian regime with men and material.  Both Syria and Hezbollah are primary allies of Shi’ite Iran, and receive hundreds of millions of dollars a year in financial and military support from the Islamic Republic.  Hezbollah’s support of the Assad regime has made it an enemy of the mainly Sunni Syrian rebel forces, as well as escalated tensions between Sunnis and Syrian regime supporters in neighboring Lebanon.

This tension escalated dramatically this week as Hezbollah forces within Lebanon exchanged sustained fire with the Free Syrian Army (FSA) rebels within Syria.  Hezbollah claims it intervened to protect Shi’ite villages in Syria along the Lebanese border from attacks by the Sunni FSA. The FSA accuses Hezbollah of assisting the Assad regime and threatened to take the fight to Hezbollah in Lebanon if the group did not cease its advance into Syrian territory.  The FSA subsequently claimed to have attacked Hezbollah positions in Lebanon, killing and wounding a number of Hezbollah fighters.

Clashes between Hezbollah and Syrian rebels threatens to internationalize Syria’s already bloody civil war.  Like its larger neighbor Syria, Lebanon contains an explosive mix of Sunni, Shi’ite, Druze and Christians.  The country has yet to fully recover from the devastating 1975-1990 civil war, which pitted the countries religious groups against one another.  Spillover violence from Syria threatens the fragile stability of Lebanon, and could draw in other regional actors, such as Israel, who fought a 34-day war with Hezbollah in 2006, which ended in a stalemate.

Urgent international action is needed if the terrible consequences of the Syrian civil war morphing into a regional war are to be avoided.  Rather than attempt to calm the fighting, the international community may have recently decided to increase the flow of weapons, including anti-tank and other heavy weapons, to FSA brigades fighting in the south of the country.   The conflict in Syria has killed an estimated 70,000 people in that country, and the probability the death toll will soon include growing numbers of Lebanese increases every day. 

Phillip Khalife is a 3L at Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy

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Former prime minister Rafik Hariri was killed by a car bomb in Beirut on February 14, 2005. (Martinfrost)

Critical Analysis: Creation of the Special Tribunal for Lebanon

Former prime minister Rafik Hariri was killed by a car bomb in Beirut on February 14, 2005. (Martinfrost)

Former prime minister Rafik Hariri was killed by a car bomb in Beirut on February 14, 2005. (Martinfrost)

Valentine’s Day is the holiday for lovers –with images of hearts, friendship, roses, and chocolates floating around cities everywhere and well into the night. This day, however, was like a scene from the stories of Armageddon for the Lebanese people in 2005. On this date, the former Prime Minister Rafiq Hariri, along with 22 others (including civilians), were killed when approximately 1,800 kilograms of TNT detonated inside a parked Mitsubishi van as Hariri’s convoy passed by in the streets of Beirut, Lebanon. The blast was so powerful that it left a crater at least 10-meters wide and two meters deep on the street. The assassination left the country completely devastated and immediately fired up tensions with neighboring Syria. Hariri was dubbed by some as “Mr. Lebanon,” an oil and gas magnate that was seen as a progressive, Western voice for Lebanon. He was bitterly despised by Bashar al-Assad, Syria’s current president, which led many to believe that Assad was behind the fatal attack. Initial state investigations into who had masterminded this attack were unproductive. The United Nations responded by establishing an independent investigatory body, which eventually led to the creation of the Special Tribunal for Lebanon (STL).

Specifically, the STL was created by the U.N. Security Council, although it has some distinct features that differentiate it from typical “Chapter VII” courts like the International Court for Yugoslavia (ICTY) and the International Court for Rwanda (ICTR ). “Chapter VII” courts are products of the U.N. Charter (Chapter VII), which gives the Security Council the ability to create ad hoc courts during or after an armed conflict. These courts require a unanimous vote of the Permanent Members, and a majority of the non-Permanent, rotating members. Armed conflicts, for the sake of brevity, are those that involve a state and another state (international) or a state and an organized non-state actor/group (non-international).* Hariri’s assassination involved the state of Lebanon and (allegedly) an organized non-state actor, Hezbollah. (Not surprisingly, alternative theories exist as to who attacked Hariri’s convoy in 2005, including Israel’s intelligence group, Mossad.)

Lebanon prompted the eventual creation of the Tribunal by requesting that the Security Council create a court of “international character” to investigate the death of its former Prime Minister and prosecute the suspected perpetrators. As a result of that request, on March 29, 2006, the Security Council mandated the Secretary-General to conduct negotiations with the Government of Lebanon to establish such a tribunal (Resolution 1664). The negotiations fell through, primarily due to disagreement within the new Lebanese parliament about funding and supporting such a Tribunal. Not only did Saad al-Hariri, Rafiq Hariri’s son, lose support due to Hezbollah’s growing majority within the government, but the disagreement eventually turned into Lebanon’s prolonged Cedar Revolution. The Security Council responded with Resolution 1757, creating instead a Chapter VII court in lieu of a voluntary tribunal as originally requested by the government of Lebanon. Voluntary contributions make up 51 per cent of its funding and 49 per cent comes from Lebanon.

The Tribunal cases relate to the assassination of Rafiq Hariri and others on February 14, 2005. The Prosecutor submitted an indictment to the pre-trial judge on January 17, 2011. This indictment was confirmed on 28 June 2011. Four Hezbollah officials were named in the indictment: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra.

The STL is indeed very special, for three reasons. First, the Tribunal will be addressing a new type of crime within international criminal law: terrorism. Second, it is the first international court to try the Accused in absentia on these terrorism charges. Third, it is prosecuting terrorism charges by way of the Lebanese Criminal Code (which gives the Tribunal a bit of a “hybrid” legal flair).

Much like the Special Court for Sierra Leone (SCSL), the Tribunal is located outside of the country of conflict, mostly due to security concerns. It will be trying the case Prosecutor v. Ayyash et al. at the International Criminal Court (ICC), in The Hague, Netherlands, and in the same courtroom that was used for the trial of Charles Taylor at the SCSL. It is highly unlikely that any of Accused will be present during their trial, which is scheduled to begin on March 25, 2013.

 Maha Kamal is a staff editor with the Denver Journal of International Law and Policy. She received her BA in International Affairs (specialization in European politics) from the University of Colorado at Boulder in 2007. Maha has previously worked with numerous internationally-focused organizations, including World Denver and the Institute of International Education. She is currently enrolled in a practicum at DU Law which is working to create and finalize an evidentiary database for the Charles Taylor case at the International Criminal Court. 

*Fascinated by this subject? We encourage you to take (or audit) a course on International Criminal Law. The University of Denver Sturm College of Law offers this course with Professor David Akerson, typically in the Fall.

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University of Denver Sturm College of Law

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