Wednesday 18 Jul 2018 | 01:43 | SYDNEY
Wednesday 18 Jul 2018 | 01:43 | SYDNEY

Public perception critical for Hariri tribunal

6 March 2009 09:13

James Cockayne is a Senior Associate at the International Peace Institute, New York. 

Rodger Shanahan is right that the Special Tribunal for Lebanon (a good overview of the Tribunal here) will have a hard time getting some states to cooperate, but for the first time, the UN has given its backing to a trial process that allows for trials in absentia. So even if it can't get custody of Syrian defendants, it might still try them.

There are various due process safeguards built into its Statute, drawn from the jurisprudence of the European Court of Human Rights. But if the Tribunal is forced to rely on trials in absentia, that may create problems for its credibility on the 'Arab street', since trials in absentia can be more easily denounced as show trials. Something similar happened when the International Criminal Tribunal for the former Yugoslavia started holding 'confirmations' of indictments in the mid-90s because it was having trouble getting custody of high-profile defendants. 
It's not yet clear whether the Court will have legal jurisdiction over the most senior foreign government officials, even if it can get physical custody of them. The Security Council deliberately didn't say anything explicit, in its founding resolution, about whether the acts in question constitute crimes against humanity. If they do, then under existing international law foreign officials may not have immunity. If they don't constitute crimes against humanity, they might have immunity from a national court, like this one.

If the finger is pointed at foreign officials and the Court finds they are immune from its jurisdiction, that might also deal a blow to the argument that the Tribunal is 'bringing rule of law' to the Middle East — even though, paradoxically, in that case the Tribunal would be able to argue that it is in fact upholding existing law. 
One of the major criticisms of the Tribunal heard in the Middle East is the arguably selective nature of the prosecutions. Since decades-worth of war crimes by all sides in the civil war and wars with Israel are not being investigated or prosecuted — but only the assassination of a PM seen in the region as particularly close to Western powers — some argue this is a purely politically motivated prosecution.
Perhaps we need to remember the old adage that justice not only needs to be done, but needs to be seen to be done. Easily said, but for the Special Tribunal, difficult to do.