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Law and Practice: Interactional Justice 1 LAW AND PRACTICE: INTERACTIONAL JUSTICE 1 Law and Practice: Interactional Justice A Case Study on Victim Rights to Information At the Special Tribunal for Lebanon Pauline Fraisse August 18, 2014 LAW AND PRACTICE: INTERACTIONAL JUSTICE 2 Law and Practice: Interactional Justice A Case Study on Victim Rights to Information At the Special Tribunal for Lebanon Master Thesis Victimology and Criminal Justice Supervisor: R.M. Letschert (Tilburg University) M.F. Ndahinda (Co-reader Tilburg University) Date: August 18, 2014 Author: P.J.M.C. Fraisse ANR: 544238 LAW AND PRACTICE: INTERACTIONAL JUSTICE 3 Abstract Before domestic and international criminal courts, victim participation in the proceedings has been increasingly recognized. Both civil law and common law systems prescribe procedural rights for crime victims. But to ensure victims’ involvement in the criminal justice system, legal authorities shall inform victims about their participatory rights. “ Information is the lifeblood of the criminal justice system.” (Brienen & Hoegen, 2000)1 Victims can only participate in the proceedings if they know their opportunities to do so. The enforcement of victims’ right to be informed will be first assessed in the light of the procedural and interactional justice models. Where victims are treated fairly and regularly notified about their case, their participation in proceedings is likely to be meaningful. Adopting such theoretical perspective, a comparative study will be conducted. Victim’s position in criminal proceedings before Lebanese courts and the STL will be compared in terms of access to justice. The Lebanese legal provisions on victims’ rights to information will be contrasted to those enforced at the Special Tribunal. In law and practice, victim participation differs. Focusing on victims’ rights to be informed about their entitlement to participate and the criminal case, their interactions with the STL’s staff will be examined. Indeed, an empirical study will appraise the issues raised by the legal framework of victim participation in effect at the STL. “ La théorie sans la pratique n’est qu’un squelette dépourvu de chair; la pratique sans la théorie n’est qu’un corps invertébré. ” (Strickler et al., 2010, pg. 2)2 1 From: McGonigle, 2011. 2 Theory without practice in a skeleton without flesh; practice without theory is a disarticulate body. LAW AND PRACTICE: INTERACTIONAL JUSTICE 4 Preface This thesis concludes a one-year academic and professional experience in the Netherlands. Student at Tilburg law school, I discovered victimology as a multidisciplinary science. With experts in the field of victims’ rights3, I’ve learnt the basics of this new discipline. This enriching academic experience was combined with a 6-months internship with the LRV team at the Special Tribunal for Lebanon. I would like to thank Professor Rianne Letschert for the opportunity she offers me to be intern at the STL owing to her own professional skills. “Cerise sur le gâteau”, she became my thesis’ supervisor. Her frequent feedbacks helped me to deal with the theoretical and practical aspects of my paper. Being an intern with the LRV was a great experience. In the Victims’ Unit, I met skilled legal practitioners from different legal and national backgrounds. Interacting with them gave me the chance to grasp the complexity of international criminal proceedings. As regards my thesis, they helped me to understand the concrete issues raised by victim participation at the STL. I would like to thank the VPU and LRV teams for the interesting discussions we had4. I especially express my gratitude to the head of the VPU, the VPU liaison officer, the LRV legal officer and the LRV case manager for their time and patience. This thesis would not have been achieved without their guidance. My experience at the STL is also human. At the Tribunal’s headquarters, I discovered an amazing multicultural environment. Most nations were represented by UN staff and interns. Much thanks goes to those, Dutch, French, American, Tunisian, Argentinian, etc, I had nice lunch breaks with. Besides this international environment, I had the chance to get to know more about the Lebanese culture thanks to Joyce, National Visiting Professional at the VPU from January to May 2014. Finally, a word on my friends and family. Either at Tilburg University Library or from the French mountains, they support me to the end in this “victimological experience”. 3 The International Victimology Institute Tilburg (INTERVICT) is a research centre which set up the master “Victimology and Criminal Justice” at Tilburg Law School in 2012. In this paper, some footnotes refer to these master courses. 4 Intern at the STL’s headquarters from January to July 2014, I mostly interacted with the LRV’s support staff rather than co-legal counsels based in Beirut. LAW AND PRACTICE: INTERACTIONAL JUSTICE 5 Index Introduction .................................................................................................................... 7 1. The Special Tribunal for Lebanon: in brief................................................................ 7 1.1. Terrorism and mobilization against impunity ......................................................... 7 1.2. Establishment of a tribunal of international character ............................................ 8 1.3. A controversial jurisdiction..................................................................................... 8 1.4. Procedural innovations in the STL Statute............................................................ 10 2. Law and practice: victim participation before the STL............................................ 12 2.1. Literature Review.................................................................................................. 12 2.2. Research method ................................................................................................... 13 2.3. Thesis structure ..................................................................................................... 14 Chapter 1. Theory: Victims’ Participatory Rights ....................................................... 15 1. A victimological approach to terrorism ................................................................... 15 2. Participation in the proceedings in the interests of victims...................................... 17 2.1. Victims’ perceived outcome of criminal justice ................................................... 18 2.2. Victims and the procedural justice model ............................................................. 19 2.2.1. Victim procedural rights..................................................................................... 19 2.2.2. Victim interactional needs.................................................................................. 20 3. Victim participation in the proceedings in the interests of justice ........................... 21 3.1. Divisions over victim participation ....................................................................... 21 3.2. Arguments against victim participation ................................................................ 22 3.3. Arguments for victim participation ....................................................................... 23 3.4. Limits of victim participation before the STL ...................................................... 24 Chapter 2. Law in Practice: Victim Access to Justice in Lebanese Courts and at the STL............................................................................................................................... 26 1. Two pathways to justice: victim notification of their rights .................................... 26 1.1. Victim access to justice ......................................................................................... 26 1.2. Information on victim participatory rights ............................................................ 28 1.2.1. Legal Provisions................................................................................................. 28 1.2.2. Enforcement ....................................................................................................... 29 2. Two pathways to justice: victim legal assistance..................................................... 30 2.1. Legal assistance in the application process ........................................................... 30 2.1.1. Legal Provisions................................................................................................. 30 2.1.2. Enforcement ....................................................................................................... 32 2.2. Information on legal aid ........................................................................................ 33 2.2.1. Legal Provisions................................................................................................. 33 2.2.2. Enforcement ....................................................................................................... 34 LAW AND PRACTICE: INTERACTIONAL JUSTICE 6 Chapter 3. Practice: Victim Legal Representation and Participation at the STL......... 37 1. Legal representation and indirect victim participation............................................. 37 1.1. Victim legal representation scheme ...................................................................... 38 1.2. Victim active or inactive participation .................................................................. 39 2. Perspective on Client-Counsel distance-relationship..............................................
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