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.

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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.

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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

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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...... 41 2.1. Challenges raised by the legal representation scheme ...... 41 2.2. Interactions and communication with victims ...... 43 Conclusion...... 46 Bibliography...... 49 Literature ...... 49 Official Documents (retrieved from the STL website): ...... 52 Media...... 55 Annex ...... 57 1. Brief overview of Lebanese contemporary history:...... 57 2. The connected cases of the 14th February attack:...... 58 3. From an international condemnation to the establishment of the STL: ...... 58 4. UN investigation of the “Hariri case” and prosecution of the “Ayyash et al. case (STL-11-01)”: ...... 59 5. Judicial decisions affecting victim participation before the STL:...... 61

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Introduction

1. The Special Tribunal for Lebanon: in brief

1.1. Terrorism and mobilization against impunity

On the 14th of February 2005, the “most important figure in Lebanese public life”5, Prime Minister Rafik al-Hariri, was killed in a bomb explosion in downtown Beirut along with his bodyguards and several passers-by. This deadly attack claimed the life of 23 persons and injured at least 220 others6. Declared to be a “terrorist bombing” by the President of the Security Council of the United Nations (hereafter “UN”), shortly after the attack, the assassination was unanimously condemned on the international stage. Indeed, U.N. Secretary- General Kofi Annan sent a fact-finding Mission to Beirut on the 18th of February. Led by an Irish inspector, Peter FitzGerald, the UN investigators met Lebanese officials and politicians, reviewed Lebanese investigation reports, examined the crime scene and interviewed witnesses and victims. In its report issued on 24 March, the Mission referred, first, to the tense political context and the security background as major causes of the attack. As asserted in the report, a “loaded atmosphere dominated the Lebanese scene in which everyone was under threat” (UN Mission Report, 2005, Para. 13.). Second, the Mission underlined the chaos of the crime scene and the flaws suffered by the Lebanese investigation process. It recommended the UN Security Council to set up an international investigation team to assist Lebanese authorities. Third, regarding the consequences of Hariri’s death, international investigators stated that it had “an earthquake-like impact on Lebanon” (UN Mission Report, 2005, Para. 13.). At the national level, accusations and speculation upon those bearing responsibility for the attack exacerbated a political debate already divided. Government security forces were blamed for failing to protect the former Prime Minister7 and Syrian authorities were suspected due to the growing tensions over their presence in Lebanon since 19768.

Following the assassination, opposition against Syrian influence on Lebanese affairs increased and led to massive peaceful demonstrations. First, on the 8th of March 2005, about half a million people took to the streets to express their support of the Lebanese Government

5 Report of the UN fact-finding Mission. Para 16. 6 Report of the UN fact-finding Mission. Para 2. 7 Report of the UN fact-finding Mission. Para 20. 8 Report of the UN fact-finding Mission. Para 7.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 8 and the Syrian Arab Republic. In response, another demonstration was organized by opposition leaders to call for an end to impunity and the withdrawal of Syrian troops from Lebanon9. One in four Lebanese joined the rally. The “Cedar Revolution” (Dobriansky, 2005)10 was the largest demonstration “in Lebanese history” (Sader, 2007, pg. 1086). As regards “the political and geopolitical consequences” (Aptel, 2007, pg. 1109) of the “Hariri case”, and the conclusions of the UN Mission’s report, a decision was taken to prosecute the crime at the international level.

1.2. Establishment of a tribunal of international character

On the 7th of April 2005, the UN Security Council adopted Resolution 1595 establishing the UN International Independent Investigation Commission (hereafter “UNIIIC”) to assist Lebanese authorities in their investigations. Over time, the scope of the UNIIIC was broadened to 17 cases allegedly connected to the 14 February 2005 attack (Aptel, 2007). After months of negotiations between the Lebanese government and the UN Secretary- General, an Agreement for the establishment of a Special Tribunal was reached. But the Agreement failed to be adopted by the Lebanese Parliament as its speaker refused to call for the issue to be raised in session (Sader, 2007). Therefore, using its powers under Chapter VII of the UN Charter, the Security Council created “a new subsidiary organ” (D’Aspremont & Vermeer-Kunzli, 2008, pg. 483). Indeed, on 30 May 2007, the Security Council, in its Resolution 1757, adopted the Statute of the Special Tribunal for Lebanon (hereafter “STL”).

1.3. A controversial jurisdiction

Opened on 1 March 2009, in Leidschendam, near The Hague, the STL has a narrow jurisdiction. Its mandate mirrors the jurisdiction of the UNIIIC. Initially limited to the “Hariri case”, it could be broadened to several connected cases. As from 1 October 2004 to 12 December 2005, in Beirut, a number of bombing attacks targeted pro-Western public figures close to Rafik Hariri. According to Judge Choucri Sader, member of the Lebanese delegation working on the Agreement, “the 14 February 2005 attack justifies, by itself, the creation of the Special Tribunal” (2007, pg. 1086). However, the fact that a single event led to the establishment of a tribunal of international character has raised suspicions of selective justice. It has been argued that the death of some individuals matters more than those of others

9 See Annex. 10 American official, Paula Dobriansky, coined the term of “Cedar Revolution” to underline the democratic character of the 14th March movement. In Arabic, it has a stronger impact than “Independence Intifada” first expression used to refer to the event. From: Young, 2010.

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(Elberling, 2008). Two arguments were raised against the STL’s jurisdiction ratione temporis11; the first is that the “Hariri case” is only one tragic event in Lebanese history. War crimes, political assassinations and other terrorist attacks were and are committed with impunity (Young, 2010). Moreover, the 14th February 2005 attack was not “the leading one in terms of casualties” (Elberling, 2008, pg. 531) as during the conflict with Israel, in Southern Lebanon, from 12 July to 14 August 2006, about a thousand civilians were killed and one million were displaced. The second argument purports that the UNIIIC was set up against a background of political struggle between Syria and some Western states. In fact, most terrorist attacks in the UNIIIC’s mandate target anti-Syrian politicians and journalists (Elberling, 2008).

Controversies about the STL also rely on its jurisdiction ratione materiae. The STL is the first supranational court to have authority over terrorist acts in time of peace. Yet, terrorism is not an international crime in accordance with the Rome Statute establishing the International Criminal Court (hereafter “ICC”)12. However, the drafters of the STL Statute initially considered « terrorist crime as a crime under international criminal law » recalled the Lebanese Judge Choucri Sader. However, the final version of the Statute diverges from the first drafts. Pursuant to article 2(a) of the STL Statute, the applicable law refers to the Lebanese Criminal Code (hereafter “LCC”). In accordance with article 314 of the LCC, “terrorism” designates:

“(a)ll acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices”.

Although laid out in legal terms, “terrorism” remains a political notion; a similar act can be defined as a terrorist attack by a State and as an action of resistance by militants. Consequently, prosecuting terrorism goes beyond the criminal act itself. The STL carries out a “historiographic function” (Elberling, 2008, pg. 529). In his opening statement on 17 January 2014, co-legal representative of victims, Mohammad Mattar affirmed that:

11 Article 1 of the STL Statute. 12 Article 5(1) of the Rome Statute entitled “Crimes within the jurisdiction of the Court” prescribes as follows: « The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. »

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“Systematic killing and impunity should come to an end. Our team will relentlessly strive to achieve this goal.” (Transcript, pg. 74)

By establishing the truth and punishing the wrongdoers, the Tribunal is expected to an end a series of political assassinations13. Set up in the aftermath of “the crime that broke the camel’s back” (Mattar, Opening Statement, Transcript, pg. 65), the UNIIIC investigated a series of incidents targeting public figures14 intended to instil fear in the Lebanese society. The STL deals with a crime that goes beyond the suffering of the direct and indirect victims of the 14 February attack. Considered as “tertiary victims” (Letschert et al., 2009, pg. 234), the Lebanese people see in this bomb attack a persistent “lack of justice and accountability” and “the impotence of the judicial and political processes” (Haynes, Opening Statement, Transcript, pg 86). The main goal of the STL is to strengthen the rule of law by re-building victims’ and Lebanese citizens’ trust in justice.

1.4. Procedural innovations in the STL Statute

Rather than examining the contentious aspects of the STL, this study will focus on the procedural features of the STL. As a tribunal sui generis, the STL is not part of the Lebanese judicial system. The drafters of the Statute relied on both the Lebanese legal culture and international criminal justice standards when setting up the procedural law of the Tribunal. The Statute combines civil law and common law traditions. Inspired by the Romano- Germanic legal tradition followed by Lebanon (Aptel, 2007)15, the Statute includes some inquisitorial elements leading to three major procedural innovations.

Firstly, the trial is held in absentia. In a ruling issued on 1 February 201216, the Trial Chamber decided to try the four accused in their absence following Lebanese authorities’ unsuccessful attempt to hand them over to the Court17. A Defence counsel for each accused was appointed. A year later, a similar decision was issued when Lebanese authorities failed to arrest the fifth accused18. In accordance with article 22(3) of the STL Statute, any accused

13 “ (T)he right to know is also a collective right, drawing upon history to prevent violations from recurring. The right to know is the corollary of the duty to remember in order to guard against the perversions of history.” (Abdelsater-Abusamra, Opening Statement, Transcript, pg. 58) 14 Connected cases. See Annex. 15 Lebanon was under French mandate from 1918 to 1943, which substantially influenced the Lebanese criminal justice system. 16 Prosecutor v. Ayyash et al. (Decision to Hold Trial in Absentia). STL-11-01. (2012, February 1). 17 See Annex. 18 Prosecutor v. Merhi. (Decision to Hold Trial in Absentia). STL-13-04. (2013, December 20).

LAW AND PRACTICE: INTERACTIONAL JUSTICE 11 convicted in absentia who did not choose his legal counsel “shall have the right to be retried in his presence before the Special Tribunal, unless he accepts the judgment”.

Secondly, a Pre-Trial Judge is in office pursuant article 8(1)(a) of the STL Statute. The involvement at an early stage of the proceedings of a single judge corresponds to drafters’ efforts to “streamline the cost of the STL” (Aptel, 2007, pg. 1118) and to ensure an expeditious and fair trial. The Pre-Trial Judge reviews and confirms the indictment submitted by the Office of the Prosecutor (hereafter “OTP”)19. He is also entitled to grant the status of victim participating in the proceedings (hereafter “VPP”) before the STL.

Thirdly, article 17 of the STL Statute entitled “Rights of Victims” prescribes as follows:

“Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.”

But victim participation is “not automatic” (2009, para. 19) as the President of the Tribunal underlined in its Explanatory Memorandum of 10 June 2009. Before adopting the Rules of Procedure and Evidence (hereafter “RPE”), the judges of the STL already stressed the forthcoming restrictions on victim participation. In this line of reasoning, Rule 2 of the RPE differentiates “victim”20 and “victim participating in the proceedings”21 (hereafter “VPP”). In short, once the Pre-Trial Judge confirms the indictment issued by the Prosecutor, victims of the 14th of February attack are entitled to apply to participate. Victims’ applications are “screened by the Pre-Trial Judge” (Explanatory Memorandum, 2009, para. 19) in order to ensure fair and expeditious proceedings.

19 Article 18 of the STL Statute 20 Rule 2 of the RPE. “A natural person who has suffered physical, material, or mental harm as a direct result of an attack within the Tribunal’s jurisdiction.” 21 Rule 2 of the RPE. “Victim of an attack within the Tribunal’s jurisdiction who has been granted leave by the Pre-Trial Judge to present his views and concerns at one or more stages of the proceedings after an indictment has been confirmed.”

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Before the STL, victims who have been granted the status of VPP are considered as “participants” rather than “parties” in the proceedings. While victims can bring a civil claim to court as “partie civile” on the ground of their personal harm before Lebanese domestic criminal courts, their situation is different before the STL. Indeed, article 25 of the STL Statute rules out victims’ right for direct compensation before the Tribunal. The matter is left to domestic courts once a final judgement will be reached by the STL.

2. Law and practice: victim participation before the STL

2.1. Literature Review

When examining victim participation before the STL, scholars and legal practitioners mainly focus on their legal status. As participants, victims are entitled to a number of rights throughout the proceedings. Their position is comparable to similar provisions on victim participation in the Statute and the Rules of the ICC and the Extraordinary Chambers in the Courts of Cambodia (hereafter “ECCC”). On paper, victims enjoy a wide range of rights before these international courts. But due to the large number of participant-victims, such entitlements are scarcely implemented (De Hemptinne, 2010).

The situation differs before the STL. After the Pre-Trial Judge confirmed the indictment on 28 June 2011, VPPs’ application process opened. The Victim Participation Unit (hereafter “VPU”) pursuant to Rule 51 of the RPE contacted victims and informed them about their rights to participate in the proceedings. The VPU liaison officer provided legal assistance to victims by helping them to fill in an application form. After verifying victim applications, the VPU transmitted them to the Pre-Trial Judge. To date, 68 victims have been granted participatory rights in five decisions from May 8th 2012 to July 18th 201422. On May 16th 2012, the Registrar appointed a common team of Legal Representatives of Victims (hereafter “LRV”). Indeed, pursuant to Rule 86(C)(ii) of the RPE, victims are presumed to participate in the proceedings through the LRV. But, in practice, representing clients based in Lebanon raises numerous challenges for the LRV team.

None of the articles reviewed on victim participation before the STL examines the issues faced by the VPU and the LRV when interacting with victims of the 14 February attack. Even the chapter entitled “Victim Participation at the STL” in the recently published

22 See Annex.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 13 book “STL: law and practice” (Alamuddin et al., 2014) mostly refers to the legal theoretical framework of the status of VPP23. Facing such a gap in literature, this paper examines victims’ participatory rights and needs at the two materialized stages of the proceedings, namely the Pre-Trial phase and the Trial stage. Instead of focusing on victim active rights24 in the hands of their legal representatives, this study concentrates on victim indirect participation appraising the quality of their interactions with STL’s staff and the information provided. To do so, this case study relies on a victimological approach of the procedural and interactional justice models and the theory of access to justice.

2.2. Research method

In order to understand the background behind the establishment of the STL, a wide range of UN documents on the “Hariri case” is reviewed. Based on a chronological analysis of these documents, a timeline was drafted25. This chronology is aimed at enabling any reader unacquainted with the Lebanese complex situation to get an overview of its contemporary history. And, for those familiar with the “Hariri case” which became the “Ayyash et al. case (STL-11-01)” on June 28th 2011, the timeline intends to recall the leading steps of the creation of the STL. In the annex, the main judicial decisions issued by the Pre-Trial Judge and the Trial Chamber affecting victim participatory rights are chronologically listed. Besides, in order to picture the procedural law of the Tribunal, academic literature examining the legal features of the STL and its controversial character is reviewed.

Considering the structural differences between the STL and other criminal international courts, as regards the number of participant-victims, it is assumed that the enforcement of victim procedural rights is hardly comparable to the mechanisms developed by the VPU and the LRV at the STL to interact with victims. Therefore, an alternative study is conducted. Focusing on law and practice, victim rights to information before domestic criminal courts in Lebanon and the STL is compared. Such perspective seems particularly relevant due to the fact that during the investigations of the UNIIIC, some victims brought

23 Whereas STL’s staff wrote some sections of the book, this chapter was redacted by a judge and a legal officer, whose experiences in international criminal law are based on the proceedings before the ICTY, the ICC and the EEEC. 24 Pursuant to Rule 87(B) of the RPE entitled “Modes of Participation of Victims in the Proceedings”: “At the trial stage, a victim participating in the proceedings may request the Trial Chamber, after hearing the Parties, to call witnesses and to authorise him to tender other evidence. He may also, subject to the authorisation by, and under the control of, the Trial Chamber after hearing the Parties, examine or cross-examine witnesses and file motions and briefs.” 25 See Annex.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 14 civil action for damages before Lebanese courts. Then once the STL was set up, these individuals were informed via their lawyers about their right to participate in the international proceedings.

Aside from the gap in literature observed, my decision to focus on the practical aspects of victim participation relies on my experience as an intern for the Legal Representative of Victims at the STL. For six months, I worked with the LRV on informing victims about their case. I had the chance to observe from within the challenges faced by the LRV when interacting and communicating with their clients due to the distance between Beirut and The Hague. I also had access to internal documents on victim participation. I interviewed some of the VPU and LRV staff about their contact with victims and their role as intermediary with the Tribunal.

2.3. Thesis structure

In the first chapter, three points will be highlighted to assess victims’ positions before the STL. After presenting terrorism from a victimological perspective, the procedural and interactional justice models will be introduced as well as the theoretical framework of victim participation in international criminal proceedings.

In the second chapter, a comparative study of victim participatory rights, in law and practice, will be conducted. The procedural differences between the “partie civile” model in Lebanon and the “VPPs’ status” at the STL will be assessed in the light of victims’ access to justice.

In a third chapter, the legal representation scheme and victim participation before the STL will be appraised in practice. After examining the legal provisions related to victim participatory rights, the challenges faced by the LRV when ensuring meaningful victim participation will be studied as well as the means of communication used to deal with such issues.

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Chapter 1. Theory: Victims’ Participatory Rights

In its report issued on March 24th 2005, the UN fact-finding Mission made a brief reference to the victims of the February 14th attack; having found the relatives of those who lost their lives in the explosion were still in shock when interviewed by the investigators. Families of the deceased, either bodyguards or passers-by, unanimously asked for the institution of the truth, if necessary through an international investigation. Both "secular political terrorism" and "religiously motivated terrorism" (Letschert et al., 2009, pg. 38) are aimed at instilling fear in the society and destabilizing governments. Terrorist attacks target public places, political leaders and other influential public figures. Swallowed up in the spiral of political speculations, victims of the February 14th attack were constantly reminded of their loss by turning on the television and reading newspapers. Indeed, as research has shown, higher levels of distress are likely to be experienced by victims of terrorism "due to the magnitude and scope of the events" (Letschert et al., 2009, pg. 39). Those experiencing such mass victimization have both urgent and non-immediate needs (Letschert et al., 2009). The latter point refers to victims' desire to take part in the truth- seeking process in participating in the criminal proceedings. After an appraisal of victims' willingness to get involved in the criminal proceedings, the quality of their interactions with judicial authorities will be examined referring to the procedural justice model. According to this theory, both the way victims are treated by legal authorities and the information they received on their rights and their case matters to them. Therefore, it argues that victims participating in criminal proceedings are not solely interested in the outcome of their case, namely the final verdict and financial compensation. These two perspectives combined provide some grounds for arguing in favour of victim participation in international criminal proceedings. In order to get a complete picture, the pros and cons of victim participation before the STL are weighted. Based on available literature, the attempt of STL judges, when drafting the RPE, to strike a balance between the rights of the accused and the interests of victims-participant will be assessed.

1. A victimological approach to terrorism

Research on terrorism and its victims has increased following a series of large-scale bombing attacks both in the Middle East and in Western States since 9/11 (Letschert et al., 2009). Leading to mass victimization, terrorist acts target mostly civilian populations. From a

LAW AND PRACTICE: INTERACTIONAL JUSTICE 16 victimological perspective, "focused terrorism" has to be distinguished from "indiscriminate terrorism" (Letschert et al., 2009, pg. 341). The latter refers to the random selection of victims by bombers whereas "focused terrorism" alludes to terrorists' intention to target a specific group. Concerning the February 14th attack, it's likely that both the place and the time of the explosion were carefully monitored. The bomb exploded in an area frequented by tourists when the convoy of Rafik Hariri reached the car bomb26. In his opening statement on 16 January 2014, the Prosecutor stated that the bombing attack targeted the former Prime Minister. However, in the blast, Hariri's bodyguards and numerous passers-by were killed or injured; indirectly targeted, their deaths is a symbolic message sent to the Lebanese people. This message was initially thought to be religious. Indeed, a few hours after the attack, a videotape was found behind a tree near the office of the Qatari news channel Al-Jazeera based in Beirut (Asharq Al-Awsat, 2005). In the video, a 24- year-old Palestinian, Ahmad Abu Adass claimed responsibility for the assassination. Failing to find the alleged suicide bomber's remains at the crime scene, international investigators concluded that such a declaration could not be held true consistently. As a result of its doubts in the religious grounds of the claim, the UNIIIC started suspecting Lebanese and Syrian officials27. After the release of four Generals28, the OTP submitted an indictment to the Pre- Trial Judge on 10 June 2011, accusing four other Lebanese nationals of participating in the conspiracy « aimed at committing a terrorist act to assassinate Rafik Hariri » (OTP Indictment, Para. 5.). Although the suspects are alleged members of the Lebanese political party Hezbollah, the Prosecution consistently affirmed the individual character of the charges. The Hezbollah has never been publicly accused of being involved. Therefore, at this stage of the proceedings, it has not yet been confirmed whether the attack had religious or political grounds. From a victim's perspective, the political and religious motives of the attack are secondary; victims are personally affected by the crime. They directly suffer from the explosion, which caused them mental or physical injury, material loss or the death of their loved one. Victims' physical, material and emotional harms go beyond social and political divisions. But due to the scale of the event, their victimization tends to be overlooked. However, "primary victims" injured in the attack and "secondary victims" who lost relatives

26 Prosecutor v. Ayyash et al. (Public Redacted Amended Indictment). STL-11-01. (2013, June 21). 27 On 30 August 2005, four Lebanese Generals were arrested, in connection with the alleged crime. They were convicted in The Hague for four years before being released as charges were dropped. See Annex. 28 In the Matter of El Sayed. (Order regarding the detention of persons detained in Lebanon in connection with the case of the attack against Prime Minister Rafiq Hariri and others). (2009, April 29).

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(Letschert et al., 2009, pg. 51) are seeking the truth once they have received emergency assistance. As underlined in the UN Mission report, relatives of the deceased were "unable to comprehend yet what had happened or why" (2005, Para. 51). Having no relation with the offender, victims of terrorism have difficulties to grasp the reasons for their misfortune. What is more, they tend to hinder their coping capabilities by keeping "ruminating about the event" (Letschert et al., 2009, pg.112). In addition, in Lebanon, due to the frequency of bombing attacks in public places29, there are a relatively high number of victims of terrorism. Yet, there is no state-sponsored service dedicated to victims of terrorism30. Focusing on their common grief rather than on the political character of the attacks, victims of terrorism tend to connect and understand each other. In other countries, victims of terrorism, on their own initiative, have created non- governmental organizations (hereafter "NGOs") (Cario, 2003). These associations provide the opportunity for victims to meet others and share their stories. They offer an interactive forum for questions and advices about the criminal proceedings and legal aid modalities (Cario, 2003). Since 2014, the LRV team has held a number of "town-hall meetings" for public victims living in Lebanon. Whenever they gather, victims are free to discuss legal issues related to the trial, their post-traumatic experience and their way of coping. And recently, some VPPs, along with victims of other attacks, have taken the initiative to create their own NGO. This association is aimed at bringing together as many Lebanese victims of terrorism as possible, regardless of their participation before the STL. Doing so, they intend to make policy makers and public opinion aware of the consequences of their victimization. As underlined by Robert Cario (2003), associations of victims of terrorism lobby for better services from judicial institutions as regards their material, psychological and social harm. Participating in the proceedings could be meaningful for victims as they get the chance to be heard. By taking part in their case, victims express their own perspectives on terrorism which are likely to differ with the one developed by the accused and the Prosecution. Their sorrow goes beyond the symbolic nature of the attack. And, uncovering the truth would help victims to recover (UN Mission Report, 2005).

2. Participation in the proceedings in the interests of victims

29 As listed by the co-LRVs in their opening statement in January 2014 (Transcript, pg. 58; pg.65-68), numerous Lebanese public figures were targeted by terrorist attacks before and after the February 14th bombing. See Annex. 30 Extract from the phone interview of the VPU Liaison Officer conducted on 18 July 2014.

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2.1. Victims’ perceived outcome of criminal justice

Terrorism is a controversial concept. Due to the lack of consensus in Lebanon regarding the definition of terrorism31 and the difficulty to prosecute such crime32, only a few bombing attacks have been prosecuted by domestic courts33 (Letschert et al., 2009). For those victimized by the acts perpetrated by the “freedom fighters” or “unlawful terrorists” (Letschert et al., 2009, pg. 47) remains a feeling of impunity. The decision not to prosecute their case denies victims’ right to justice as no alternative is offered to them34. Similarly, when their case is brought to domestic extraordinary courts35, victims are often not authorized to participate. Left aside in the confrontation between the State and the accused, the social recognition of victims’ harm is likely to be undermined. Indeed, State representation tends to leave less room for victims to express their concerns (Laxminarayan, 2010).

Prior to the 1970s, research on crime victims focused on the “quality of the outcome” (Laxminarayan, 2010). The judicial final verdict was compared to victims’ desired outcome. Scholars concentrated on the sentencing stage assuming victims’ punitiveness. In order to assess victims’ perception of the final decision on their case, academics referred to the distributive justice model, which consists of two main features. The first aspect of the quality of the outcome is retributive justice. As an end in itself, the punishment of the offender is aimed at sanctioning those who violate the social norms. In terrorist cases, the incentive is dual as both victims’ suffering and the attack against the State are considered at the sentencing stage. The second characteristic of the legal verdict is its deterrent function. Beyond the just desert for the committed crime, sentencing is designed to prevent future

31 Similarly, due to international divisions over the term of “terrorism”, the drafters of the STL Statute failed to “consider terrorist crime as a crime under international criminal law” despite preliminary versions in that sense (Sader, 2007, pg. 1087). 32 The trial before the STL is held in absentia following Lebanese authorities’ unsuccessful attempt to arrest the five accused. See Annex. 33 Lebanese Republic Judicial Council. (Judgement in the case concerning the attempted assassination of Minister Michel Murr). (1997, May 9). 34 Restorative justice is rarely provided in case of terrorism as an alternative to retributive justice. Contrary to “ordinary offense” opposing a perpetrator to his/her victim(s), bombing attacks go beyond the individuality of the victim by targeting the State. Retributive justice aimed at punishing those who violate the social norms is the official State response in Lebanon to terrorist acts when prosecution takes place. 35 Facing security threats, States often set up extraordinary jurisdictions to try those responsible for undermining national security. For instance, since the 1990s, and increasingly following the 9/11 attacks, US intelligence services have transferred terrorist suspects in detention facilities outside the American jurisdiction. This intelligence-gathering plan is known as “extraordinary rendition”. In some places out of the international human rights watch, such as Abu Graib or Guantanamo Bay, US interrogators adopt a coerced line of questioning. As foreign nationals, terrorist suspects are not entitled to a fair and expeditious trial and are kept waiting for their case to be brought to court for years. Access on: http://www.pbs.org/frontlineworld/stories/rendition701/timeline/timeline_3.html#

LAW AND PRACTICE: INTERACTIONAL JUSTICE 19 wrongdoing. But victim satisfaction with the criminal justice system is not limited to their perceived quality of the outcome.

2.2. Victims and the procedural justice model

2.2.1. Victim procedural rights

Although victims need to be notified about the outcome of their case, victimological research on procedural justice has suggested that victims need to be informed since the beginning of their case. As demonstrated by Shapland (1985)36, fair treatment and informative procedures matter for victims. When they are treated with respect and regularly informed about the proceedings, victims tend to perceive the criminal process as fair. According to Leventhal (1980)37, victims’ satisfaction with the proceedings correlates with their perceived fairness of the outcome. A positive assessment by victims of the procedure can counter their assessments of the final judicial decision (Tyler, 1988)38. The mitigating value of victim procedural rights is especially relevant before the STL. The length of international criminal proceedings combined with the inherent complexity of the “Ayyash et al. case” might provide a delayed and unsatisfactory outcome for victims. Opened nine years after the incident, on 16 January 2014, the trial was suspended shortly afterwards. Following the decision on joinder issued by the Trial Chamber39, the proceedings were adjourned in order to give adequate time for the counsel of Merhi to prepare its line of defense. Moreover, the decisions to try the accused in absentia undermines victims’ assumed desire for revenge. Establishing the truth without punishing the offenders contradicts the essence of the distributive justice model. Therefore, VPPs’ involvement in the criminal justice system mainly relies on the quality of their interaction with the STL staff. As what comes first matters most (Van den Bos & Lind, 2001)40, victims’ initial contacts with the VPU in the application process will be examined.

36 From: Wemmers, 2010. 37 From: Laxminarayan, 2010. 38 From: Laxminarayan, 2010. 39 On 11 and 12 February 2014, the Trial Chamber issued an oral ruling deciding on joining the “Ayyash et al. case” to Merhi’s indictment. 40 According to Van den Bos & Lind, crime victims’ first interaction with the police has a strong impact on their fairness justice judgment. From: Wemmers, 2010.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 20

Conceptualized in 1975, procedural justice (Thibaut & Walker)41 refers to the perceived fairness of the proceedings leading to the outcome for those involved in the criminal process. When they interact with judicial authorities, victims first need to feel in control. If they are given the opportunity to express their “views and concerns”42 in the proceedings, victims tend to be more positive when assessing the fairness of criminal procedure. But victims are not always given the chance to raise their voice. It depends on the legal system.

2.2.2. Victim interactional needs

Rather than focusing on the theoretical aspects of the procedures, Bies and Moag (1986)43 decided to study the empirical elements influencing victim fairness justice judgements. Examining how victims interact with authorities in the proceedings, they argued that victims’ experience in the proceedings is central as regards their confidence in the criminal justice system. Their empirical research led them to elaborate another concept completing the procedural justice model, which is “interactional justice”. The interactional justice design consists of two elements, “informational justice” and “interpersonal justice”. The former refers to victims’ needs to be informed. In order to participate in the proceedings, victims must be notified about their participatory rights. Without information, victims cannot exercise their rights (Brienen & Hoegen, 2000). Once granted the right to take part in the proceedings as “partie civile” or “participant”, victims are entitled to receive regular information about the proceedings. As regards victims’ procedural right to be informed, authorities should only notify them about facts related to their victimization. And information must be provided in a comprehensible manner44. Where victims do not understand the information they receive, they are likely to be dissatisfied with judicial authorities. “Interpersonal justice” refers to victims’ interactions with legal authorities. When they report their victimization, individuals need to be listened to with empathy throughout the proceedings. The presumption of their victimhood prevents re-victimization. When speaking about their harm, victims need to find support and attention from actors within the criminal justice system. For victims, being treated with respect and dignity, matters a lot.

41 From: Wemmers, 2010. 42 Article 17 of the STL Statute. 43 From: Wemmers, 2010. 44 Victims’ access to justice and respectful treatment was promoted by the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the UN General Assembly on 29 November 1985.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 21

In addition, research has shown that interactions with legal authorities have “a stronger bearing on victims’ justice judgements than information” (Wemmers, 2010, pg. 39). Van den Bos & Lind (2001) go even further stating that victims’ earliest contacts with judicial authorities are likely to be more important than the outcome itself in victims’ assessment of justice’s fairness. Indeed, victims’ first interactions with the police can either dissuade or confirm victims’ willingness to participate in the criminal proceedings. Before the STL, the VPU liaison officer played a major role in contacting victims of the 14 February attack. She informed them about their rights as VPP if granted the status. She also notified them about the limits of their participation45.

3. Victim participation in the proceedings in the interests of justice

3.1. Divisions over victim participation

Victim procedural rights are not equally recognized. Whereas victims’ right to be informed and to be fairly treated are widely accepted among judicial authorities (Strang, 2002)46, victims’ involvement in criminal proceedings is more contentious. Victim participation is controversial as it differs from one domestic judicial system to another. In criminal proceedings based on civil law, victims are entitled to participate either as “second prosecutor”47 or “partie civile”. Inspired by the Romano-Germanic legal tradition, the LCCP recognized participatory rights to victims. Based on their civil claim for damages, victims are entitled to participate as “partie civile” in criminal proceedings. In common law systems, victims are traditionally left aside. In criminal matters, the proceedings oppose the Prosecutor representing the interests of the society and the accused. At most considered as participants, victims are denied full rights as “a party” in the proceedings since it is assumed that it would infringe the rights of the accused to a fair trial (Laxminarayan, 2010)48. In the 1980s, crime victims were still referred to as the “forgotten party” (Dickson, 1983)49. Interestingly, research has shown that their situation was rather similar in both legal systems (Shapland, 1985). Indeed, on paper, more procedural rights are granted to victims in

45 See below pg. 28-29. 46 From: Wemmers, 2010. 47 In Germany, victims are entitled to participate in the proceedings as second prosecutor. De Brouwer A-M, Letschert, R. & Groenhuijsen, M. (2013). Victims in National and International Criminal Justice Proceedings. Lectures at Tilburg Law School, Tilburg, Netherlands. 48 Nonetheless, in practice, most national criminal justice systems combine these procedural features regardless of their legal tradition, either from civil law or common law. 49 From: Laxminarayan, 2010.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 22 civil law systems. But, in reality, judicial authorities enforce them in an irregular manner. However, there is a growing trend in international and domestic proceedings to recognize participatory rights to crime victims. For instance, the European Court of Human Rights has recently started emphasizing on victim participation in criminal proceedings as a general principle instead of referring to the accusatorial or inquisitorial nature (Jackson, 2005)50. Some scholars even wonder if victims’ participatory rights should be considered as human rights (De Hemptinne, 2010).

3.2. Arguments against victim participation

The opponents of victim participation are mostly legal practitioners working in common law systems. In the adversarial matrix, two parties, the Prosecutor and the accused, present their arguments and evidence before a neutral third party, the judge(s). Representing the interests of the community, the Prosecutor also speaks on behalf of the victims. The criminal offense is considered in a wider scope than individuals’ personal victimization. The wrong done to the society is argued before court. The exclusion of victims from the criminal process results from the substitution of private prosecution for public prosecution. In the Middle-Age, victims were entitled to investigate the crime themselves. Their desire for revenge could blind them in their quest for the truth. Not personally affected by the crime, the public Prosecutor is presented as more neutral when investigating. Whereas victims are assumed to be revengeful, the public Prosecutor is supposed to be driven by the interests of the society, which are just punishment and deterrence. In addition, victim participation could hinder the Prosecution’s strategy. If victims’ theory differs from the arguments developed by the Prosecution, its ability to lead the proceedings could be undermined (De Hemptinne, 2010). From an adversarial legal approach, the combination of private and public prosecutions is likely to compromise the fair rights of the accused. Firstly, his/her right to an expeditious trial may be in jeopardy when victims are allowed to participate. Indeed, in international criminal proceedings, victim application procedure is a lengthy process (Morrison & Pountney, 2014), which can delay the proceedings. As experienced by other international courts an extensive victim participation in the proceedings increases the workload of the Defense counsel (De Brouwer & Heikkila, 2013), which has to develop a dual strategy when preparing to the trial. Secondly, the right of the accused to a fair trial may

50 From: Doak, 2010.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 23 be infringed by the participation of a “prosecutor bis” (Morrison & Pountney, 2014, pg. 160). Victim participation in the proceeding is said to undermine equality of arms between the parties. Thirdly, giving the opportunity to victims to express their views and concerns at the sentencing stage may influence the legal verdict. It’s been argued that victim impact statements, by nature emotional, especially in an oral manner, are likely to impact the judicial final decision. By allowing crime victims to share their stories, elements of revenge may be introduced in the proceedings (De Brouwer & Heikkila, 2013).

3.3. Arguments for victim participation

Since the 1980s, the victim movement and academics have raised the issue of the absence of victims in the criminal proceedings (Shapland, 1985). Against the opponents of victim participation, they referred to the outdated character of private prosecution. Instead of providing a stand for victim punitiveness, participation in the proceedings has proved to mitigate victims’ initial desire for revenge (Aquino, et al., 2006)51. In contact with judicial authorities, individuals expect empathy and understanding as regards their victimization. When victims positively perceive their interactions with legal authorities, their fairness justice judgement is higher (Wemmers, 2010). According to Jérôme De Hemptinne (2010), victims’ interests in participating in criminal proceedings are legitimate, reparative and symbolic. First, victim participation is legitimate as it can serve the interests of justice. Some victims may bring up relevant facts not presented by the parties before court. In addition, they can provide a more nuanced approach of the case “often depicted by the parties in a ‘Manichean’ way” (De Hemptinne, 2010, pg. 167) as their participation is connected to their personal harm. By contrast, the Prosecutor may adopt a different perspective, since he has to consider both the concerns of victims and the society. Besides punishing the offenders, the Prosecutor’s line of strategy focuses on the deterrence effect of sentencing. Second, giving an opportunity to victims to raise an independent voice tends to empower them. Being heard has a reparative effect on victims (De Hemptinne, 2010). Participating in the proceedings could contribute to their rehabilitation and enhance their coping abilities. Oral or written impact statements at the sentencing stage give victims social standing and recognition. According to victimologists, allowing individuals to express their

51 From: Wemmers, 2010.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 24 concerns as regards their victimization is unlikely to infringe the rights to the accused as ensuring a fair verdict is the main role of judicial authorities (De Brouwer & Heikkila, 2013). The third aspect of granting participatory rights to victims is symbolic. It is aimed at connecting them to the truth-seeking process. In that order, transparency is central at the STL. Numerous high-tech communication methods are developed to connect the Lebanese people to the Tribunal.

3.4. Limits of victim participation before the STL

Granting victims participatory rights is one of the main innovations of the STL (Aptel, 2007). Indeed, civil law practitioners, from the Lebanese and the UN delegations drafted the STL Statute (Aptel, 2007). Combining both common law and civil law traditions, they have tried to strike a balance between the interests of victims and the requirement of a fair and expeditious trial. Weighting the pros and cons of victim participation, they have drawn up an original participation scheme. In order to satisfy the accusatorial requirements, victim participation before the STL faces numerous restrictions. First, pursuant to article 17 of the STL Statute, victims are entitled to participate in the proceedings after the Pre-Trial Judge confirms the indictment. They are not authorized, unlike “partie civile”, to participate in the investigations (De Brouwer & Heikkila, 2013). Second, not all the victims of the 14 February attack can participate in the proceedings. In order to be granted the status of VPP, victims are required to meet a series of criteria as listed in Rule 86(B) of the RPE. In that sense, Rule 2 of the RPE distinguishes those who were affected by the attack and those who participate in the proceedings. Third, victims are considered to be participants and not parties. Their participatory rights are granted under condition. They have to prove that their interests were affected by the incident to be able to participate. Lastly, in accordance with Rule 86 of the RPE confirmed by the first decision on victim participation issued on 8 May 2012 by the Pre-Trial Judge, the VPPs’ interests must be represented by a common LRV appointed by the Registrar.

Conclusion

The legal verdict matters for victims. As part of the grieving process, victims seek the truth. Judicial authorities, as a neutral third party, are in charge of trying those responsible for

LAW AND PRACTICE: INTERACTIONAL JUSTICE 25 committing crimes. Justice must be reached in a timely manner to ensure a fair and expeditious trial. Victim participation in international criminal proceedings has been increasingly recognized, “in a manner that is not prejudicial to or inconsistent with the rights of the accused” (article 17, STL Statute). Less controversial than victim participation, victim rights to be informed and to be treated fairly, are less examined by scholars. But these procedural rights are key to ensure meaningful victim participation. Indeed, victims can only participate in the proceedings, if they have been informed in due time of their rights to do so.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 26

Chapter 2. Law in Practice: Victim Access to Justice in Lebanese Courts and at the STL

Depending on the legal domestic tradition, victims are granted different participatory rights in criminal proceedings. Whereas most research focuses on the contentious character of victim participation, little attention has been paid to the way judicial authorities reach victims. In theory, victims are granted more procedural rights when participating in criminal proceedings before Lebanese courts. As “partie civile” they are entitled to bring a civil claim for damages. By contrast, the STL rules out the opportunity for compensation to victims. Referring to article 25 of the STL Statute, in his Explanatory Memorandum52, the President of the Special Tribunal distinguishes the “partie civile” from the status of VPP. In addition, while the Lebanese victim participation scheme is based on presumption of victimhood, before the STL, participatory rights are granted to victims under conditions. Pursuant to article 17 of the STL Statute, victims shall demonstrate that their “personal interests are affected” to be granted the status of VPP 53. While Lebanese criminal procedure recognizes more participatory rights to victims, in practice, their access to justice faces a number of barriers. Due to the complex and lengthy character of the proceedings before Lebanese courts, most victims are not aware of their rights to participate and the modalities to bring their civil claim to court. This procedural obstacle is reinforced by the fact that national judicial authorities are not required to inform victims about their rights to participate as partie civile in a clear and timely manner (Becheraoui, 2007). By contrast, the Rules of the STL define informational duties for the VPU. In accordance with Rule 51(B)(ii)-(iii) of the RPE, the VPU contacted victims to notify them of their rights to participate in the proceedings before assisting them in the application procedure. Furthermore, to ensure fair access to justice to victims, the VPU also informed victims about the STL Legal Aid Policy.

1. Two pathways to justice: victim notification of their rights

1.1. Victim access to justice

Victim legal status in criminal proceedings differs in Lebanon and at the STL. As “partie civile” or participating victims, the injured party is entitled to distinct rights. But, in

52 STL President's Explanatory Memorandum of the Rules of Procedure and Evidence. (10 June 2009). 53 See below pg. 30-31.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 27 order to exercise their rights, individuals shall be informed about their opportunity to take part in the proceedings. Indeed, most people are unfamiliar with the criminal justice system. Unaware of their participatory rights, they rely on judicial authorities to receive information about the procedure. Research has shown that victims’ likelihood to participate in the proceedings is strongly influenced by the way they are treated and informed by judicial authorities (Wemmers, 2010). Where victims face difficulties to get to know their rights in a timely and comprehensible manner, they are likely to lose interest in participating. Referring to the procedural and interactional justice models, I compared victims’ position in criminal proceedings before Lebanese domestic courts to their involvement at the STL. Depending on the “pathways to justice” (Laxminarayan, 2010) they take, victims’ legal status and experience with judicial authorities differ. Rather than empirically assessing victim procedural preferences54, this comparative study focuses on the enforcement of victim procedural rights by judicial authorities. Indeed, in terms of victim access to justice, it is interesting to go beyond the formal aspects of victim participatory rights by studying victims’ interactions with legal authorities. To do so, reference is made to the “Handbook for measuring the costs and quality of access to justice” (Barendrecht et al., 2010)55. This empirical study on access to justice designs an index to compare different paths to justice. It consists of three elements: the cost of justice, the quality of procedure and the quality of the outcome. Based on the main hypothesis of interactional justice that procedure matters as well as the outcome, this model of access to justice has been adapted to crime victims by Malini Laxminarayan (2010). From his research, two “indicators of justice” (Barendrecht et al., 2010, pg. 29) are referred to in order to compare victim access to justice in the Lebanese criminal procedure and at the STL at the Pre-Trial stage. The first indicator refers to the cost of justice, which is divided in three categories of expenses. To begin with, the “monetary cost” (Barendrecht et al., 2010, pg. 30) refers to “direct disbursements” (Barendrecht et al., 2010, pg. 30) related to the proceedings. It is composed of lawyers’ fees, court fees and travel expenses. And, as in some judicial systems, victims are not entitled to receive legal information as a right, they have to pay to access judicial database. Second, the “opportunity cost” (Barendrecht et al., 2010, pg. 31) represents

54 Such an empirical study would have been particularly complex owing to the fact that none of the victims are residing in the Netherlands. In addition, half of the participating victims have a confidential status. Security and practical issues as well as my position as an intern in the Victims’ unit led me to conduct an alternative study. 55 Published in 2010, the “Handbook for measuring the costs and quality of access to justice” results from a partnership between the Hague Institute for the Internationalisation for Law (HiiL) and two Dutch universities, Tilburg and Utrecht. From May 2007 to August 2009, scholars conducted empirical studies in order to measure access to justice in different legal proceedings. Access on : https://www.measuringaccesstojustice.com/

LAW AND PRACTICE: INTERACTIONAL JUSTICE 28 the time users of justice spend in the proceedings. The energy spent in searching for information and communicating with judicial authorities represents a loss of income and missed opportunities for victims. Third, the “intangible cost” (Barendrecht et al., 2010, pg. 33) refers to the negative emotions experienced by victims when travelling on a path to justice. It cannot be converted into money. As second indicator, the quality of procedure also influences victim fairness in justice judgements (Wemmers, 1996)56. It consists, as explained in the previous chapter, of procedural, interpersonal and informational justice aspects.

1.2. Information on victim participatory rights

1.2.1. Legal Provisions

In order to participate in the proceedings, victims need to be notified of their rights to do so. Without information about their participatory rights, victims are unlikely to take part in the proceedings (Brienen & Hoegen, 2000). Lebanese judicial authorities and STL staff are unequally required to inform victims.

Article 7§1 of the Lebanese Code of Criminal Procedure (hereafter “LCCP”) prescribes victims the right to bring their civil claims to court. But the legal provisions on “partie civile” essentially focus on their right to compensation. Yet, as underlined by the Lebanese scholar Doreid Becheraoui (2007), victims do not only expect financial reparation from their participation in the criminal proceedings. They are also looking for social recognition, support and empathy. Unacquainted with the criminal justice system, victims need to be explained the different steps of the criminal procedure. More specifically, they need to receive information about the modalities to follow to bring their civil claim before court. However, the LCCP does not require judicial authorities to notify victims of their rights to become “partie civile”. No legal provision obliges the “juge d’instruction” to inform victims that their case is brought to court and that they can participate in the proceedings (Becheraoui, 2007). By contrast, the STL Rules focus on the practical issues raised by the remoteness between Beirut and The Hague when dealing with victim participation. Pursuant to Rule

56 From: Wemmers, 2010.

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51(B)(iii) of the RPE, the VPU is in charge of contacting victims of the 14 February attack to inform them about their rights to participate in the proceedings before the STL.

1.2.2. Enforcement

The lack of legal provisions requiring Lebanese judicial authorities to inform victims about their rights to participate in the proceedings tends to hinder actual victim participation. Legal authorities shall notify victims of their participatory rights on a one-to-one basis. But, the generalizations’ of victim right to information remains to be seen in Lebanon (Becheraoui, 2007).

In order to notify victims of their rights to participate in the proceedings, the VPU relied on different means of communication. A wide range of local, national and regional media was used to reach all the potential victims based in Lebanon. From 12 July 2011, Lebanese newspapers published a press release announcing the opening of the victims’ application process. Accompanied by a video, the press release was webcasted on both Lebanese news information websites and the STL website. The informative video was also broadcasted on Lebanese TV channels. The video named “don’t be a victim twice” is brief. Mixing Arabic, English and French, the video shows three civilian victims: a man in wheelchair, a woman and a child. Suffering from direct and indirect victimization, they only have their grievance in common, which is recalled by images of the crime scene. Both the Registrar and the head of the VPU address the audience. “You’re a victim, you have rights. Claim them.” They provide information about the application procedure stressing on the “straightforward feature” of victims’ application procedure before the STL. On 13 March 2012, the VPU used Twitter to give Lebanese people a clearer understanding of its role in reaching victims. In the live Twitter session, the head of the VPU answered some questions as regards legal assistance and legal aid provided to participating victims. As a more institutional information support, the STL website, on which information is available in Arabic, English and French, was mainly used to upload instructions and the victim application form. In the messages conveyed, a phone number was provided as well as an email address. The VPU contact details were provided in order to give victims the opportunity to get more information about their rights to participate. The hotline set up was linked to the VPU liaison

LAW AND PRACTICE: INTERACTIONAL JUSTICE 30 officer’s work cellular. She called more than 170 potential victims-applicants57 and held about 100 meetings. In her interactions with victims, the VPU liaison officer notified them of the modalities related to the status of VPP. She also answered numerous questions on the controversial character of the Tribunal especially as regards its narrowed jurisdiction materiae temporis. Victims were wondering why only this event raised the awareness of the international community while several political assassinations were perpetrated with impunity. Requested to be politically neutral, the VPU liaison officer mostly talked about justice. She explained to her interlocutors that everybody has a right to justice. And she emphasized that “it was not just another event that had happened in Lebanon”. Contacted by phone, on 18 July 2014, she recalled: “Because I was Lebanese, they could relate to me. I understood their concerns because I was not coming from out of the context. I understood their very legitimate questions”58. When they inform victims about their rights, judicial authorities should listen to them and hear their concerns. It seems that victims’ interactions with the VPU were positively perceived as 72 victims applied to participate on 31 October 2011. Indeed, when he hired the VPU liaison officer, in June 2011, the head of the VPU unit was quite sceptical about victims’ likelihood to apply to participate in the proceedings59. But, despite the disagreements over the Tribunal in Lebanon and the absence of direct compensation before the STL, a large number of victims applied.

2. Two pathways to justice: victim legal assistance

2.1. Legal assistance in the application process

2.1.1. Legal Provisions

In order to preserve the rights of the accused to a fair and expeditious trial, victim applications to participate in the proceedings are screened by judicial authorities. To be granted participatory rights, victims are required to follow a specific application process. Due to the technical aspect of the procedure, most victims need to receive legal assistance when

57 In the 14 February attack, 23 persons lost their lives and about 230 people were injured. As a result, the number of primary and secondary victims was relatively high. 58 Extract from the phone interview with the VPU Liaison Officer conducted on 18 July 2014. 59 Ibid.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 31 filling in application form. Provisions regarding legal assistance differ between the Lebanese criminal procedure and the STL Rules.

Pursuant to article 5§1 of the LCCP, victims have a right to reparation. When they bring their civil claim to court, victims must submit a handwritten, date and signed request. « Cette plainte doit comporter l’affirmation de la constitution de partie civile, la mention des faits reprochés, de leur qualification pénale, des textes d’incrimination et de la répression applicable, ainsi que les éléments décrivant le préjudice subi et la réclamation d’une indemnisation. » (Becheraoui, 2007, pg. 902)60 To fulfil these obligations, victims need to receive legal advice. Once the “partie civile’s” request is filled in, it is transmitted to the “doyen juge d’instruction” who appraises its completeness. Despite the complex application process, the LCCP does not prescribe any legal obligation for judicial authorities as regards legal assistance (Becheraoui, 2007).

The application process to participate in international criminal proceedings is a complex and lengthy procedure for victims. A brief overview of the application process before the STL can underline how time-consuming it would be for victims to apply directly to participate. Pursuant to article 17 of the STL Statute, victims were eligible to participate in the proceedings after the confirmation of the indictment. Submitted on 10 June 2011 by the Prosecutor, the indictment was confirmed by the Pre-Trial Judge on 28 June 2011. On 8 September 201161, the Pre-Trial Judge set 30 October 2011 as a deadline for victim applications’ submission. After verification of the applications, the VPU transmitted the applications to the Pre-Trial Judge on 9 February 2012. And, finally, he issued the first decision on victim participation on 8 May 201262. Available on the STL website, the victims’ application form requires prima facie evidence of the applicant’s identity and harm. Pursuant to Rule 86(B) of the RPE, victim applications must meet at least four requirements to be complete. Applicants shall demonstrate that as a natural person they have been directly affected by the attack under the Tribunal’s jurisdiction. As regards their applications, the main issue for victims is to provide

60 The complaint must include a declaration of “partie civile”, the alleged offences, their criminal status, the legal references relevant to the case, as well as elements describing the harm and a claim for compensation. 61 Prosecutor v. Ayyash et al. (Scheduling Order Regarding the Deadline for Filing Applications to Participate in the Proceedings as a Victim). STL-11-01. (2011, September 8). 62Prosecutor v. Ayyash et al. (Decision on Victims' Participation in the Proceedings). STL-11-01. (2012, May 8).

LAW AND PRACTICE: INTERACTIONAL JUSTICE 32 proof of their victimization. Obtaining a death certificate or medical records are not common practice in Lebanon63. Due to the tensions in Lebanon about the STL, such requests are likely to be suspect and put applicants at risk. In its successive transmissions of victim applications to the Pre-Trial Judge, the VPU underlined this limit as regards incomplete forms. Pursuant to Rule 51(B)(iii) of the RPE, after receiving victim applications, the VPU verifies them. If prima facie evidence are missing, the VPU staff contacts victims in order to get the necessary documents. Once they are considered complete, applications are transmitted to the Pre-Trial Judge who examines them and grants the status of VPP on an individual basis.

2.1.2. Enforcement

It is not the role of the Lebanese judicial authorities to assist victims in filling in their application to participate in the criminal proceedings. Yet, in most civil law countries, legal assistance is provided by State-sponsored victim support organisations. But there is no such organization in Lebanon (Becheraoui, 2007). The absence of victim support public structures is mitigated by NGOs. Specialized in domestic violence or migrants’ rights, they provide legal assistance to crime victims64. But owing to the contentious character of terrorism, there is no NGO providing such services for victims of terrorism65. By contrast, at the STL, the VPU liaison officer is responsible for assisting victims in filling in their application form either directly or indirectly. She met some victims at the STL field office on the outskirts of Beirut or in cafés in the city. She provided guidance to applicants over the phone. And she also explained the application procedure to victims- applicants’ private counsel. Once complete, applications were sent by victims by post to the Tribunal’s headquarters. There is no specific provision as regards the nature of the posting mail. A confirmation on a received letter would ensure applicants that their mail was received in the delays but it could also endanger them. Indeed, requesting a confirmation on received letters in Lebanese post offices addressed to The Hague could raise security issues for some applicants if such information was made public. In addition, applications could not be

63 Extract from informal discussions with the LRV legal officer during my internship from January to July 2014. 64 Extract from the phone interview with the VPU Liaison Officer. 65 As listed by the co-LRVs in their opening statement in January 2014 (Transcript, pg. 58; pg.65-68), numerous Lebanese public figures were targeted by terrorist attacks before and after the February 14th bombing. Only a few cases were brought to court. Solely one case was found online, translated into English by the STL’s services: Lebanese Republic Judicial Council. (Judgement in the case concerning the attempted assassination of Minister Michel Murr). (1997, May 9).

LAW AND PRACTICE: INTERACTIONAL JUSTICE 33 submitted via emails, as the files related to the prima facie evidence were too large to be downloaded especially due to the technological difficulties in Lebanon (Di Gore, 2012).

2.2. Information on legal aid

Depending on the paths to justice they use, victims spend different resources, either monetary or emotional. In some situations, victims cannot afford the perceived financial and time expenses required to participate in the proceedings. When exercising their participatory rights represents an unbearable financial burden, victims are likely to avoid participating in the criminal proceedings. In order to ensure fair and equal access to justice to victims, Lebanese legal provisions and the STL Statute and Rules prescribe different legal aid schemes.

2.2.1. Legal Provisions

In order to bring their civil claims to court, victims are obliged to pay a “consignation” supposed to cover court fees (Becheraoui, 2007). Pursuant to article 68§2 of the LCCP, its amount is fixed by the “Doyen des juges d’instruction” based on his estimate of the compensation, which could be awarded to the “partie civile”. But in accordance with article 68§4 of the LCCP, crime victims are exempted from depositing a “consignation”. Yet, they face other monetary expenses related to the proceedings. The main “out-of-pocket expenses” (Barendrecht et al., 2010, pg. 30) for victims are lawyers’ fees, court fees and travel expenses. The Lebanese justice system is known to be a financial burden for users of justice (Becheraoui, 2007). The absence of a national legal aid scheme hinders access to justice for those who can not afford its judicial cost.

Due to the cost of international criminal justice and the Lebanese standard of living (Di Gore, 2012), victims of the 14 February attack are presumed to be indigent. Pursuant to Rule 51(C)(ii) of the RPE, the VPU is “in charge of monitoring and controlling legal aid provided by the Registry”. Drawn up by the VPU, the Legal Aid Policy for VPPs was adopted by the Registrar on 4 April 2012. The Policy covers the remuneration of the LRV team as well as travel expenses for both victims and the LRV in their interaction with the Tribunal. As prescribed in the legal document:

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“Only work that is reasonable and necessary for the effective representation of VPP is remunerated.” Due to the presumption of indigence, the Legal Aid Policy only lists the criteria of non-indigence. To be determined as non-indigent, victim applicant’s household assets and monthly net income and expenses are examined. Victims declared as indigent by the Registrar have a right to request a review of the decision throughout the proceedings from the Pre-Trial phase to the Appellate stage. To date, an overwhelming majority of VPPs are indigent.

2.2.2. Enforcement

In Lebanon, legal aid is not provided by the State. Instead, the Beirut bar association66 for Southern Lebanon and the Tripoli bar association67 for Northern Lebanon enforce local legal aid schemes. Bar associations finance legal aid themselves by collecting subscriptions from legal practitioners. In practice, their legal aid policies raise two main issues68. First, legal aid funds are fairly low, reaching an average of 200-300€ per case. As a result, the application process for legal aid is highly selective. Second, trainee lawyers handle most legal aid cases. Their lack of acquaintance with the criminal proceedings can be prejudicial to the interests of indigent clients. However, legal aid becomes an increasing priority for Lebanese policy makers owing to a series of EU69, US70 and UN71 sponsored projects. In coordination with the government and bar associations, these programs are likely to improve access to justice for Lebanese people by offering additional funds. Nonetheless, the legal aid scheme focuses on offenders rather than on victims. As in criminal matters, the accused faces the State, his right to be represented by a lawyer is central for guaranteeing a fair trial. Indeed, some suspects cannot

66 Access on: http://www.bba.org.lb/index.php?lang=EN 67 Access on: http://www.nlbar.org.lb/English/index.aspx 68 Extract from the phone interview with the VPU Liaison Officer. 69 Since 1995, the Barcelona process is aimed at enhancing regional cooperation between the EU and its “Mediterranean Partner Countries”. The EuroMed Justice I (2005-2007), the EuroMed Justice II (2008-2011) and the ongoing Euromed Justice III (2011-2014) are UN funded projects aimed at modernizing and easing access to justice in Lebanon and other neighbouring countries, in joint action with national authorities. Access on: http://euromed-justice.eu/content/project-information 70 In 2009, the US Aid issued a report on Legal Aid in Lebanon as part of the Project to Strengthen the Independence of the Judiciary and Citizen Access to Justice in Lebanon. Access on: http://pdf.usaid.gov/pdf_docs/pnadu749.pdf 71 The UN Development Project to enhance access to justice in Lebanon is currently at its second phase (March 2010-June 2015). It aims at improving State legal aid and easing access to administrative and legal information. Brief presentation on: http://www.lb.undp.org/content/lebanon/en/home/operations/projects/democratic_governance/towards- enhancing-access-to-justice---phase-ii.html

LAW AND PRACTICE: INTERACTIONAL JUSTICE 35 afford a private counsel. Legal aid schemes in Lebanon rightly target the accused. But, it appears that the financial burden of victim participation is out of the scope of the legal aid projects. In most cases, due to the highly-selective process, victims’ financial expenses are not covered by bar association’s legal aid policy. Yet, certain groups of victims are provided legal aid by specialized NGOs. But there is no association for victims of bomb attacks owing to the political divisions over terrorism. As a result of the lack of collaboration, victims are isolated. Their access to justice is hindered by this absence of public and private initiatives. Therefore, in such context, victim participatory rights are more likely to be perceived as an emotional and financial burden rather than a way to seek justice.

When the VPU liaison officer notified victims about their participatory rights, she also informed them about their entitlement to legal aid. On the STL website, in the tab “victims’ participation”, details are provided about the scope of legal aid. It is explained that the Tribunal’s budget covers VPPs’ legal representation. For victims interested in getting more information about the Legal Aid Policy, the document is available online. The Legal Aid Policy is aimed at ensuring meaningful victim participation in the proceedings by lifting the financial barrier. The presumption of indigence is a major innovation for victim participation in international criminal proceedings72. It simplifies and shortens the application process as victims are assumed not to have the means to financially support their legal representation before the STL. Thus, the VPU’s staff does not inquire victims’ financial situation to prove their indigence.

Conclusion

Whereas the LCCP barely focuses on victim procedural rights, the STL Rules prescribe legal authorities to respectfully interact with victims. Depending on whether judicial authorities are legally binding to notify victims about their participatory rights or to provide legal assistance, they are more or less likely to satisfy victims’ procedural needs. In practice, victim participatory rights should be accompanied by legal assistance and financial support to ensure fair and equal access to justice. To date, the position of victims in Lebanese criminal proceedings at the Pre-Trial stage leaves room for improvements. To be efficiently enforced, the “partie civile” model

72 At the ICC, the Registrar inquires into each victim applicant’s financial means. Massida, P. (2013, November 27). Victims before the ICC: a practitioner’s view. Guest lecture at Tilburg Law School, Tilburg, Netherlands.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 36 should be accompanied by procedural obligations to judicial authorities as regards their interactions with victims. Conducting a comparative study between the LCCP and the STL Rules was intended to demonstrate their impacts on victim access to justice. Novertheless, the two legal systems, one domestic and the other international are hardly comparable in terms of financial means and procedural complexity.

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Chapter 3. Practice: Victim Legal Representation and Participation at the STL

Before international criminal courts, proceedings are complex and lengthy. Victims who have been granted participatory rights cannot face by themselves the administrative and judicial challenges resulting from their involvement in the proceedings. Legal representation is indispensable. It is believed that only a counsel specialized in international criminal law can adequately represent victims’ personal interests in the proceedings. With the “complexification des procédures” (Di Gore, 2012), an experienced counsel is required to legally assist victims. Indeed, legal teams are, in general, “better positioned to address certain procedural issues than victims themselves” (Brienen & Hoegen, 2000, pg. 86). Pursuant to Rule 86(C)(i) of the RPE, the VPPs are presumed to participate through a legal representative. The Registrar appoints the LRV for victims who benefit from legal aid73. Unless proven otherwise, victims are presumed to have common interests in participating in the proceedings. In a series of decisions on victim participation, the Pre-Trial Judge confirmed the grouping of victims. These legal provisions have established a legal representation scheme enhancing active and inactive victim participation in the proceedings. In practice, the LRV face numerous issues in ensuring meaningful victim participation. First, the rationales for the atypical clients-counsel ties will be presented. Second, the challenges raised by the legal representation scheme will be examined in the light of the different facets of “distance”. Geographical remoteness as well as cultural and linguistic differences between the international staff and the Lebanese-based victims will be addressed. Third, the means of communication developed by the LRV to fulfil their mission will be assessed referring to procedural and interactional justice aspects.

1. Legal representation and indirect victim participation

The modalities of victim representation and participation before the STL are prescribed in a number of legal provisions. Available on the STL website, these documents are studied in their public redacted version in order to draw up a legal framework of victim representation. The legal representation model enforced at the STL influences victim participation as VPPs are only authorized to participate in the proceedings through their legal representatives. In participating before the STL, victims are either considered as “active” or

73 Articles 19 and 20 of the STL Directive on victims’ legal representation amended on 28 October 2013.

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“passive” depending on the stage of the proceedings. As a form of indirect participation, victim right to be informed about their case will be examined in the light of the LRV mission.

1.1. Victim legal representation scheme

In accordance with article 6 of the Directive on Victims’ Legal Representation (hereafter “Directive on LRV”) adopted on 4 May 2012, only victims who have been granted the status of VPP are provided with legal representation by the STL. Pursuant to Rule 51(B)(iii) of the RPE, the VPU dealt with victim applications. After assisting applicants in filling in the form, receiving them by post and verifying their completeness, the VPU submitted victims applications to the Pre-Trial Judge. On a case-by- case basis, the Pre-Trial Judge assessed the validity of the applications transmitted referring to four cumulative requirements and six non-mandatory criteria as provided by Rule 86(B) of the RPE. In a first decision issued on victim participation, on 8 May 2012, the Pre-Trial Judge granted the status of VPP to 58 on 73 applicants. He also defined the modalities of victim legal representation based on the STL Rules and the VPU’s observations. First, the Pre-Trial Judge confirmed the presumption of indirect victim participation through their LRV. Second, he decided on collective legal representation of victims. Considering that “all applicants are affected by the same facts and criminal conduct” (para. 121), he rejected the proposition of the VPU of creating two groups of victims. In its submission, the VPU insisted on the fact that victims have different interests in participating in the proceedings. On the one hand, some victims are politically affiliated, such as the son of Rafik Hariri, himself former Prime Minister. They share similar interests as regards the establishment of the truth. On the other hand, the passers-by indirectly targeted by the attack represent a “heterogeneous non-group” (para. 116). Their involvement in the proceedings goes beyond the political character of the incident. They only have their victimization in common. The Pre-Trial Judge was not “persuaded” that victims’ situations required the establishment of two groups (para. 121). Pursuant to Rule 86(D)(i)(ii) of the RPE, he argued that the conflicting interests presented by the VPU were unlikely to hinder a common legal representation. He emphasized the LRV’s obligation to provide equal treatment and assistance to all VPPs regardless of their personal situation. Pursuant to Rule 51(C)(i) of the RPE, the VPU is required to draw a list of qualified counsel willing to represent victims’ interests. The recruiting criteria applied by the VPU are similar to those used for selecting Defense counsel. As prescribed by Rule 59(B) of the RPE,

LAW AND PRACTICE: INTERACTIONAL JUSTICE 39 applicant lawyers are required to speak one of the three working languages of the Tribunal and to be experienced in either domestic or international criminal law. As underlined by the head of the VPU in a live Twitter session on 13 April 2012, one third of the applicants were Lebanese nationals. In accordance with article 19 of the Directive on LRV, the VPU had to assess if there was no conflict of interests between lawyers and victims applying. The VPU was also required to take into consideration the views and preferences of the victims, their background and their harm when drawing up their list of counsel. After receiving all LRV applications, an “admission panel” was set up to decide whether the applicants were fulfilling the criteria (article 12 of the Directive on LRV). Both Tripoli and Beirut bar associations took part in the selection process. The steps followed by the VPU in establishing a list of highly qualified lawyers were meant to “facilitate Registrar assessment” (article 20(B) of the Directive on LRV). In accordance with article 7(A)(ii) of the Code of Professional Conduct for Defence Counsel and LRV appearing before the STL (hereafter the “Code of Professional Conduct”), adopted on 14 December 2012, the Registrar is qualified to assign the lead legal representative and the co- counsels for indigent victims. But, if some victims are unsatisfied with the appointed LRV, they are entitled to request a review of the Registrar’s choice by the Pre-Trial Judge. It actually turned out that two VPPs disagreed with the designation of the Lebanese co-counsels. The procedure went as follows. In July 2012, pursuant to article 18 of the Directive on LRV, the Registrar designated a Duty Legal Representative, to present victims’ requests before the Pre-Trial Judge. In his motion, the Duty Legal Representative set forth procedural errors in the selection process of LRV. He stated that victim-applicants were not equally and adequately consulted. After considering the submission of the Registrar, the Pre-Trial Judge dismissed victims’ request on the grounds that the VPU adequately consulted them through their private counsel during the application process74.

1.2. Victim active or inactive participation

Despite a Scheduling order released on 8 September 2011, setting up a deadline for victims to file their applications to participate before 31 October 2011, the status of VPP was granted on different occasions. To date, the Pre-Trial Judge issued five decisions on victim participation in the proceedings from 8 May 2012 to 18 July 2014. He granted the status of

74 Prosecutor v. Ayyash et al. (Decision on the Duty Legal Representative’s Motion for Review of the Registrar’s Designation of the Lead Legal Representative for Victims). STL-11-01. (2012, September 27).

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VPP to 68 applicants. Such difference in time as regards victim participation relies on two main rationales. Firstly, in some cases, the prima facie evidence provided by applicants to demonstrate their harm or their causal link (“nexus”) with the attack were not considered satisfactory75. Secondly, due to the political tensions over the STL in Lebanon, some victims were afraid for their safety if applying to participate76. But, when victims of the 14 February attack realised that none of the public VPPs attending the Trial opening in January 2014 were threatened, some contacted the VPU. As a result of their interaction with the Victims’ unit staff, four victims decided to apply. Three applicants were granted the status of VPP in a decision issued by the Pre-Trial Judge on 18 July 2014. Pursuant to article 21(A) of the Directive on LRV, the VPU is required to notify victims in a timely manner of any judicial decision related to their applications. The VPU provides different information to victims depending on whether they are granted the VPP status. For those whose request has been denied, the right to lodge an appeal is explained. For successful applicants, information about legal representation is provided as well as an introduction to their appointed counsel. In accordance with article 21(B) of the Directive on LRV, the VPU is responsible for facilitating meetings between victims and the LRV. Indeed, soon after his designation as lead counsel, Peter Haynes, was presented to victims by the VPU liaison officer. At the STL, interactions between victims and the Tribunal staff are important. When they meet personnel of the STL, victims can be at risk due to the controversies about the legitimacy of the STL in Lebanese politics. Therefore, to prevent victims from facing distressing situations, interactions between victims and the VPU and the LRV are carefully monitored. While in the application process, victims are in contact with the VPU staff, once they are granted the status of VPP, their interlocutor shall only be the LRV. There is an exception to this principle. Some VPP have a dual status as they are also witness for the Prosecutor. Their interaction with the OTP staff as regards their testimony is out of the scope of the LRV77. Victim participation in the proceedings is indirect. The LRV play a role of intermediary between their clients and the Tribunal. Referring to the UN Handbook on Justice

75 Prosecutor v. Ayyash et al. (Fourth Decision on Victims' Participation in the Proceedings). STL-11-01. (2013, May 2). The Pre-Trial Judge refused to grant the status of VPP to four applicants who failed to provide sufficient evidence of the “nexus” between their alleged harm and the 14th February attack 76 Prosecutor v. Ayyash et al. (Fifth Decision on Victims' Participation in the Proceedings). STL-11-01. (2014, July 18). 77 Defense Counsels are also entitled to call victims to testify.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 41 for Victims78, published on 1999, there are two modes of victim participation to distinguish. First, victims are entitled active participatory rights. Besides their opportunity to attend hearings, active victim participation is mostly indirect as the VPPs are not authorized to represent themselves. Due to the indirect character of victim participation, when legal provisions mention the VPPs, they actually refer to the LRV team. In the Decision on VPU’s access to material and the Modalities of VPPs before the Pre Trial Judge, issued on 18 May 2012, the Pre-Trial Judge provides some clarifications. He explicitly states that when he refers to victims’ active participatory rights as defined in Rule 87 of the RPE, he means the LRV rather than the VPPs. Second and most importantly as regards meaningful victim participation in the proceedings, the LRV shall enforce the passive participatory rights of their clients by providing them regular updates on the case. Article 33(B)(xi) of the Code Professional Conduct fixes a list of the informational functions of the LRV. When monitoring the work of the LRV, the VPU shall assess the quality of information provided by the legal team to their clients as well as the regularity of their contacts.

2. Perspective on Client-Counsel distance-relationship

The enforcement of the legal representation scheme raises a series of practical issues. The number of victims, the distance between The Hague and Beirut and the linguistic barrier are challenges faced by the LRV when fulfilling their informational duty. In practice, equally representing the interests of all the 68 VPP is contentious, especially regarding the Lebanese situation. In the light of passive victim participation at the Pre-Trial phase and during the OTP case at the Trial stage, the challenges faced by the LRV where informing their clients will be first examined. Then, the techniques developed by the LRV to tackle such issues will be presented. This empirical study of victims’ right to be informed will be concluded on the means of communication used by the LRV to reach their clients.

2.1. Challenges raised by the legal representation scheme

In accordance with the article 8(F)(ii)(iii) of the Code of Professional Conduct, the LRV are prescribed to consult their clients “regarding the substantial aspects of their representation” and to equally consider victims’ concerns. In practice, such informational and interactional duties raise a number of issues in terms of counsel-clients relations.

78 From: Doak, 2010.

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The collective representation of victims is the first challenge faced by the LRV. One legal team represents 68 individuals. In order to speak on their behalf, the LRV team needs to know the concerns of each victim. By regularly contacting victims and discussing with them questions related to their participation, the LRV gather a wide range of interests. Indeed, victims’ expectation as regards their legal representation differs from one to another. Whereas some victims are actively interacting with the LRV, others are more passive. Geographical distance is the second issue, which the LRV have to deal with. The LRV team is divided between the Tribunal headquarters in The Hague and Beirut. Regular internal meetings are held to enhance coherence in the way to address victims. Similarly, if most victims are based in Lebanon, a few live far from their home country. And even for those victims based in Lebanon, holding common meetings raises practical issues, as roughly half of the VPPs are public. The LRV hold separate meetings with confidential victims. Despite the logistics’ challenges involved in organizing these face-to-face, the LRV meet confidential victims as often as public victims. In addition, due to security issues, some victims live in unreachable areas in Lebanon and abroad. In such situations, the LRV make arrangements to meet the VPPs elsewhere. In the interaction between the LRV and their clients, a cultural and linguistic barrier is likely to hinder legal representation. Despite the large majority of Lebanese nationals among the victims, only the two co-counsels are Lebanese. And half of the LRV team speak Arabic. To contact victims, the LRV support staff needs to rely on the Tribunal’s translation services. Indeed, while most victims speak either English or French in addition to Arabic, they would rather be informed in their mother tongue. Similarly, when victims share their story, they prefer speaking in Arabic. When non-Lebanese LRV staff attends meetings with victims, an interpreter is present. As underlined by the VPU liaison officer, the presence of a third actor in the meeting may interfere in the discussion. It may also make it harder for the LRV to build a relationship of trust.

Nevertheless, the challenges raised in developing a client-counsel relationship are meant to tackle larger issues. Firstly, victim common legal representation is aimed at ensuring a fair and expeditious trial both in the interests of the accused and the VPPs. Addressing victims through one single LRV team is easier for STL staff and the parties. Secondly, the STL was established outside Lebanon for security purposes. Due to political instability, the “Hariri case” could not be neither investigated nor prosecuted in the aftermath of the 14 February attack by Lebanese judicial authorities. The highly political character of the case

LAW AND PRACTICE: INTERACTIONAL JUSTICE 43 made it impossible to set up the Special Tribunal in Lebanon even though it would have been better for its ”connection with the Lebanese people”79. As regards the recent events in the Middle East, from tensions with the Israeli neighbour or the Syrian civil war, it is likely that justice would not have been carried out in peace in Lebanon. Lastly, international staff is required to interact with victims. Besides their expertise, the main asset of the non-Lebanese personnel is their neutrality80. In short, Lebanon is a divided country. From 1975 to 1990, the Lebanese people tore apart in a civil war. Amnesty and impunity concluded the conflict. And, to date, religious and ethnic tensions remain. It’s likely as regard the disparate grouping of VPPs, that their backgrounds differ as well as their political opinions. Therefore, in order to equally represent victims’ interests, the LRV must be neutral. Not involved in Lebanese political and religious tensions, non-Lebanese LRV appear to be able to communicate with every victim. Their neutrality tends to offset their lack of acquaintance with Lebanese culture.

2.2. Interactions and communication with victims

Pursuant to article 33(B)(xi)(g) of the Code of Professional Conduct entitled “Communication with the Clients”, the LRV are expected to : “Undertake all activities, including meetings, communications and other interactions with Clients, in a way which takes into account any vulnerabilities or special needs of the clients and does not prejudice the privacy, security or well-being of the Clients.” To enforce their informational duty, the LRV have to deal with several issues such as the number of victims, the physical distance with their clients and the complexity of the case. In order to adequately inform their 68 clients, the LRV use different modes of communication. The information provided to victims by their legal representative will be examined in the light of their interactive character. Among the interactive means of communication used to consult victims, some are more conventional than others. As a form of direct interaction with their clients, the LRV held regular face-to-face and group meetings. Most gatherings are held in offices and public places in Beirut due to the difficult access to the STL’s field office. On the outskirts of the capital city, in Monteverde, the office is far away from the city centre. Its access is monitored by

79 Extract from the phone interview with the VPU Liaison Officer 80 Extract from informal discussions with the LRV case manager during my internship from January to July 2014.

LAW AND PRACTICE: INTERACTIONAL JUSTICE 44 army checkpoints, where victims’ identities are checked, which raises concerns for confidential victims. Depending on victims’ confidential status and vulnerabilities, the LRV met them separately or in groups. Recently, the LRV decided to organize “town-hall meetings”. Held four times a year, they are meant to provide for public Lebanese-based victims the occasion to meet, to share their common experience and to express their concerns to the LRV. These meetings are conducted in Arabic and monitored by the lead counsel and the co-legal representatives. For confidential victims who cannot attend such forum, meetings are held separately. However, as regards the remoteness of the Tribunal’s headquarters, LRV mostly consult victims through indirect communication means. The LRV and their clients can interact by emails, by phone calls or even by whatsapp. The legal team conducted two surveys in order to assess their clients’ preferences in terms of communication. In the polls, victims were asked in which language they would prefer to be informed. A large majority of victims expressed their wish to be informed in Arabic rather than in English. As the LRV staff based in The Hague does not speak “Levantine Arabic”, translation requests have to be made to specialized services at the STL before sending emails to victims. It slows down the interaction process. Email is the mode of communication preferred by victims before phone calls. Indeed, some clients do not want to be called from The Hague. They fear for their safety as calls could be intercepted. To deal with such a threat, the LRV legal officer underlines the need for the legal team to have a cellular with a local Lebanese phone card in The Hague. Besides these two-way means of communication, the LRV also give the opportunity to the VPPs to be “inactive observers”81. They first set up a quarterly newsletter. Handed in at meetings with victims or sent by the post or emails as specified by the VPPs, the newsletters are written in Arabic and in English. It consists of summaries of the proceedings, short explanations of specific points of the procedure and presentation of the LRV team’s work. But, with the opening of the trial in January 2014, the LRV needed an information support easier to update. As a result, they opened an intranet website dedicated to the VPPs. Written in a blog form, the LRV website contains information about the case, articles related to victim participation and analyses of articles published by Lebanese media on the Tribunal. Information in both newsletters and the website is provided in a concise and intelligible manner. As most victims are unfamiliar with the legal jargon of the STL, the LRV has developed an accessible style of writing and wording.

81 Ibid.

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Overall, victims use both interactive and “passive” means of communication. Whereas most victims prefer emails, half are reachable by phone calls and one fourth communicate with whatsapp. The LRV website is weekly updated and used by half of the victims. Thus, it seems that the LRV have developed a considerably efficient communication network to inform and consult their clients. Yet, some victims are more active than others in interacting with the LRV especially those “who can be contacted in various ways”82. By contrast, older victims are only reachable by more conventional means of communication such as the newsletters and phone calls. The generation gap in terms of use of modern technologies is a communication barrier currently faced by the LRV. Nonetheless, as underlined by the LRV case manager, in order to access the LRV website, older victims often benefit from familial help.

Conclusion

Interacting with victims and informing them about their case are “passive participatory rights”. The information platform set up by the LRV is based on a wide range of means of communication. Modern technologies have been increasingly used to tackle the distance issue by both the LRV and the VPPs. Indeed, despite the holiday period83, the LRV website got an average of 40 hits for the last updates. This informational system is aimed at reaching victims efficiently. But communication is a two-way mechanism. The enforcement of victims’ legal representation scheme can only be successful if victims participate actively in the interactive process. However, not all VPPs are interested in receiving frequent updates on the “Ayyash et al. case”. In the survey they filled in, several victims asked for yearly and indirect contacts. Instead of giving their personal contact details, some requested being reached solely through one of the co-counsels. Indeed, when applying before the STL, a number of victims were already represented by these lawyers, who know better their interests in the case at stake.

82 Extract from informal discussions with the LRV legal officer during my internship from January to July 2014. 83 July 2014.

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Conclusion

The Special Tribunal for Lebanon is the UN’s first attempt to address terrorism and to prosecute crimes committed in the Middle East region by establishing an international court (Alamuddin et al., 2014). Inspired by both Lebanese criminal procedure and other international criminal proceedings, the procedural rules before the STL combine civil law and common law mechanisms. From this merger results several procedural innovations, such as victim participation in the proceedings. Despite the divisions over victim participatory rights before international criminal courts (Morrison & Pountney, 2014)84, providing victims a right to participate in the proceedings was a central objective for the drafters of the STL Statute (Aptel, 2007), as underlined by the co-legal representative of victims, Nada Abdelsater- Abusamra, in her opening statement on 17 January 2014:

« The purpose of the Tribunal is to put an end to impunity and render justice to all victims, the families of those who died and the victims who are still alive. » (Transcript, pg. 57)

For most victims, to participate in the truth-seeking process is “in itself a form of reparation” (Morrison & Pountney, 2014, pg. 157). The social recognition of their victimization is strengthened by an effective participation in the criminal proceedings. Pursuant to article 17 of the STL Statute, some victims of the 14 February attack were granted indirect participatory rights. This thesis focused on victims’ notification of their rights and information about the proceedings. In order to assess the enforcement of victims’ procedural rights three different perspectives were combined. First, a victimological approach of procedural and interactional justice models was adopted. It highlighted that to ensure meaningful victim participation, the respect of their rights to be informed and fairly treated matters. Second, as regards victim access to justice, a comparative study was conducted. The Lebanese legal provisions on victims’ rights to respect and information were compared to those enforced before the STL. Third, an empirical study was carried out to examine victims’

84 The Chautauqua Blueprint for a Statue for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, published in 2013, doesn’t provide participatory rights to victims. This document, mostly drafted by common law practitioners, shows the long-lasting scepticism on victim participation in international criminal law. Access on: http://publicinternationallawandpolicygroup.org/wp-content/uploads/2014/01/Chautauqua-Blueprint- 2014.pdf

LAW AND PRACTICE: INTERACTIONAL JUSTICE 47 interactions with the VPU and the LRV in the light of the challenges raised by the legal framework of victim participation in effect at the STL. Since the adoption of Resolution 1757 by the UN Security Council, on 30 May 2007, research has focused on the procedural features of the STL. The ad hoc tribunal has been compared to other international courts as regards the role of the Pre-Trial Judge and victim participation. By adopting a theoretical approach, scholars have examined the different legal provisions on victim participation in various international criminal proceedings. But, empirically, these studies are limited because of the major discrepancy in terms of numbers of participating victims and means available to Courts’ staff to reach them. An alternative comparative study was conducted in this paper. Therefore, focusing on victims’ procedural rights, the STL’s legal provisions were contrasted to the LCCP. But in attempting to compare law and practice, this study faced some limitations. While I had access to the LRV’s internal database at the STL’s headquarters, I had difficulties to find online sources on Lebanese procedural law. Indeed, as I understand English and French but not Arabic, my scope of research was substantially restricted. Despite the lack of completeness of the comparative study conducted, its results match the initial hypothesis. In practice, legal provisions on victim participation differ from their actual enforcement by judicial authorities. The gap between legal principles and reality impacts victims’ access to justice. Indeed, confronted with the complexity of their case and the high cost of Lebanese justice (Becheraoui, 2007), terrorist victims need special attention from both judicial authorities and victim support organizations. The legal aid scheme as well as legal assistance and the regular updates about the proceedings provided by the STL staff could positively inspire domestic authorities when interacting with victims. As asserted by the Lebanese Judge Choucri Sader, in 2007:

« From a national perspective, we trust that the participation of Lebanese judges in the Special Tribunal will rejuvenate the country’s legal system (...) » (pg. 1089)

To conclude, in the criminal justice system, victims interact with judicial authorities to know their rights and to receive information about their case. From their interactions with legal authorities, victims tend to assess the fairness of justice (Wemmers, 2010). As underlined by the interactional justice model, information is a two-ways mechanism. Two actors interact; one provides information and the other receives it. In this paper, the challenges faced by the VPU when notifying victims of their rights as well as the LRV when representing VPPs’ interests were examined in the light of their methods to reach victims.

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This empirical approach only grasps half of the interactional dynamic. Indeed, it would be interesting to evaluate whether the means of communication used by the LRV meet victims’ needs. By appraising victims’ satisfaction of their contacts with the STL’s staff, the quality of their interactions is likely to be enhanced. Facing geographical and cultural barriers when communicating with their legal representatives, some VPPs might found it hard to connect with the Tribunal. Based on an empirical model developed by Malini Laxminarayan (2010) on crime victims’ access to justice, further studies could assess victims’ interactional needs before the STL.

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Bibliography

Literature

Aptel, C. (2007). Innovations in the Statute of the Special Tribunal for Lebanon. Journal of International Criminal Justice, 5(5), 1107-1124.

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D’Aspremont, J. & Vermeer-Kunzli, A. (2008). The Special Tribunal for Lebanon: Introductory Note. Leiden Journal of International Law, 21(2), pp. 483-484.

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De Brouwer, A-M. & Heikkila, M. (2013). The Victims’ Role in International Criminal Proceedings: Participation, Protection, Reparation and Assistance. In G. Sluiter et al. (Eds), International Criminal Procedure - Principles and Rules, (pp. 1299-1374). Oxford, England : Oxford University Press.

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Laxminarayan, M. (2010). Measuring crime victims' pathways to justice: developing indicators for costs and quality of access to justice. Acta Criminologica, 21(1), 61-83.

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Massida, P. (2013, November 27). Victims before the ICC: a practitioner’s view. Guest lecture at Tilburg Law School, Tilburg, Netherlands.

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Morrison, H. & Poutney, E. (2014). Victim Participation at the Special Tribunal for Lebanon. In: A. Alamuddin et al. (Eds.), The Special Tribunal for Lebanon: Law and Practice, (pp. 153-176). Oxford, England : Oxford University Press.

Sader, C. (2007). A Lebanese perspective on the Special Tribunal for Lebanon: hopes and desilusions. Journal of International Criminal Justice, 5(5), 1083-1089.

Sevier, J. & Tyler, T. (2014). How do the Courts Create Popular Legitimacy? The Role of Establishing the Truth, Punishing Justly, and/or Acting through Just Procedures. Albany Law Review, 77(2), Forthcoming.

Shapland, J., Willmore, J., & Duff, P. (1985). Victims in the Criminal Justice System. Brookfield, USA: Avery Publishing Company.

Sriram, C. L. (2012). The Special Tribunal for Lebanon. Accord, 24.

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Strang, H. (2002). Repair or revenge: victims and restorative justice. Oxford, England: Oxford University Press.

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Thibaut, J.W., & Walker, L. (1975). Procedural Justice: A Psychological Analysis. Hillsdale, USA: Erlbaum.

Tyler, T. R. (1988). What is procedural justice-criteria used by citizens to assess the fairness of legal procedures. Law & Society Review, 22, 103.

United Nations. (1999). Handbook of Restorative Justice Programs. New York, USA: UN Office for Drug Control and Crime Prevention.

Van den Bos, K., & Lind, E. A. (2001). The psychology of own versus others’ treatment: Self-oriented and other-oriented effects on perceptions of procedural justice. Personality and Social Psychology Bulletin, 27, 1324–1333.

Wemmers, J.M. (1996). Victims in the Criminal Justice System. Amsterdam, Netherlands: Kugler.

Wemmers, J.M. (2010). The meaning of fairness for victims. In: Shoham S.G., Knepper P. and Kett M. (Eds.). International Handbook of Victimology, (pp. 27–42.). Boca Raton, USA: Taylor & Francis Group.

Young, M. (2010). The Ghost of Martyrs square: An Eyewitness Account of Lebanon's Life Struggle. New York, USA: Simon & Schuster.

Official Documents (retrieved from the STL website):

In the Matter of El Sayed. (Order regarding the detention of persons detained in Lebanon in connection with the case of the attack against Prime Minister Rafiq Hariri and others). (2009, April 29).

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Lebanese Republic Judicial Council. (Judgement in the case concerning the attempted assassination of Minister Michel Murr). (1997, May 9).

LRV Opening Statements. Transcript, pg. 53-87. (2014, January 17).

New Code of Criminal Procedure. Law No. 328. (2001, August 7).

Prosecutor v. Ayyash et al. (Open letter to the four accused.). STL-11-01. (2011, August 11).

Prosecutor v. Ayyash et al. (Scheduling Order Regarding the Deadline for Filing Applications to Participate in the Proceedings as a Victim). STL-11-01. (2011, September 8).

Prosecutor v. Ayyash et al.(Decision to Hold Trial in Absentia).STL-11-01.(2012,February 1).

Prosecutor v. Ayyash et al. (Decision on Defence Motion of 17 February 2012 for an Order to the VPU to Refile its Submission Inter Partes). STL-11-01. (2012, April 5).

Prosecutor v. Ayyash et al. (Decision on Victims' Participation in the Proceedings). STL-11- 01. (2012, May 8).

Prosecutor v. Ayyash et al. (Second Decision on Victims' Participation in the Proceedings). STL-11-01. (2012, September 3).

Prosecutor v. Ayyash et al. (Decision on the Duty Legal Representative’s Motion for Review of the Registrar’s Designation of the Lead Legal Representative for Victims). STL-11-01. (2012, September 27).

Prosecutor v. Ayyash et al. (Third Decision on Victims' Participation in the Proceedings). STL-11-01. (2012, November 28).

Prosecutor v. Ayyash et al. (Decision on the Legal Representative of Victims’ First, Second and Third Motions for Protective Measures for Victims Participating in the Proceedings). STL-11-01. (2012, December 19).

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Prosecutor v. Ayyash et al. (Fourth Decision on Victims' Participation in the Proceedings). STL-11-01. (2013, May 2).

Prosecutor v. Ayyash et al. (Public Redacted Amended Indictment). STL-11-01. (2013, June 21).

Prosecutor v. Merhi. (Decision to Hold Trial in Absentia). STL-13-04. (2013, December 20).

Prosecutor v. Ayyash et al. (Decision referring the matter of joinder of cases to the Trial Chamber). STL-11-01. (2014, January 2).

Prosecutor v. Ayyash et al. (Decision on the Motion of the Legal Representative of Victims Seeking Certification of the 15 August 2013). STL-11-01. (2014, February 25).

Prosecutor v. Ayyash et al. (Fifth Decision on Victims' Participation in the Proceedings). STL-11-01. (2014, July 18).

Report of the Fact-finding Mission to Lebanon inquiring into the causes, circumstances and consequences of the assassination of former Prime Minister Rafik Hariri. (2005, March 24).

Report of the International Independent Investigation Commission Established pursuant to UNSC Res. 1595 (2005, October 19).

Statute of the Special Tribunal for Lebanon, in Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, (2006, November 15). UN Doc. S/2006/893.

STL Application form for participating to the proceedings. Retrieved from : http://www.stl- tsl.org/en/documents/victims-participation-documents/application-form-for-participating-to- the-proceedings

STL Code of Professional Conduct for Defence Counsel and Legal Representatives of Victims appearing before the Special Tribunal for Lebanon. (14 December 2012).

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STL Directive on victims’ legal representation. (adopted 4 May 2012, amended on 28 October 2013).

STL Legal Aid Policy for Victims’ Participation. (4 April 2012).

STL Policy on Legal Aid Contributions by Non-Indigent Victims Participating in the Proceedings. (16 July 2013).

STL President's Explanatory Memorandum of the Rules of Procedure and Evidence. (10 June 2009).

STL President's Explanatory Memorandum of the Rules of Procedure and Evidence. (10 November 2009).

STL Rules of Procedure and Evidence. (adopted on 20 March 2009, amended on 3 April 2014).

UNSC President Stat. (2005, February 15). The situation in the Middle East. S/PRST/2005/4.

UNSC Res. 1595. (2005, April 7). UN Doc S/RES/1595.

UNSC Res. 1644. (2005, December 15). UN Doc S/RES/1644.

UNSC Res. 1664. (2006, March 29). UN Doc S/RES/1664.

UNSC Res. 1686. (2006, June 15). UN Doc S/RES/1686.

UNSC Res. 1757. (2007, May 30). UN Doc S/RES/1757.

Media

Follath, E. (2009, May 23). Breakthrough in Tribunal Investigation: New Evidence Points to Hezbollah in Hariri Murder. Der Spiegel. Retrieved from:

LAW AND PRACTICE: INTERACTIONAL JUSTICE 56 http://www.spiegel.de/international/world/breakthrough-in-tribunal-investigation-new- evidence-points-to-hezbollah-in-hariri-murder-a-626412.html

Nasrallah, H. (2010, July 22). Press Conference. [Video file]. Retrieved from: http://www.youtube.com/watch?v=cEjxXKXyECw

STL Media Advisory, Public Service Announcement video for victims (2011, July 19). Access on : http://www.stl-tsl.org/en/media/press-releases/media-advisory-–-public-service- announcement-video-for-victims

STL Press Release, “Don’t be a Victim Twice”: Victims’ Participation in STL Proceedings. (2011, July 12). Access on: http://www.stl-tsl.org/en/media/press-releases/dont-be-a-victim- twice-/-victims-participation-in-stl-proceedings

STL Press Release, Order of the Pre-Trial Judge regarding the release of the four Generals (2009, April 29). Access on: http://www.stl-tsl.org/en/media/press-releases/order-of-the-pre- trial-judge-regarding-the-release-of-the-four-generals

STL Press Release, Registrar appoints counsel for participating victims. (2012, May 16). Access on: http://www.stl-tsl.org/en/media/press-releases/16-05-2012-registrar-appoints- counsel-for-participating-victims

STL Selected Interviews, Live Twitter session with Alain Grellet, head of the Victims’ Participation Unit. (2012, March 13). Access on: http://www.stl-tsl.org/en/media/selected- interviews/interviews-with-alain-grellet/live-twitter-session-with-alain-grellet-head-of-the- victims-participation-unit

Text of Nasrallah’s October 28 speech, Now Lebanon. (2013, October 28). Retrieved from https://now.mmedia.me/lb/en/lebanonnews/517857-text-of-nasrallahs-october-28-speech

UN Hariri Murder Report Unravels Abu Adas Mystery, Asharq Al-Awsat. (2005, October 22). Retrieved from http://www.aawsat.net/2005/10/article55269318

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Annex

1. Brief overview of Lebanese contemporary history:

* 28 April 1920, at the San Remo conference, Lebanon and Syria, after the collapse of the Ottoman Empire, were placed under French protectorate. * 1 September 1920, the French High Commissioner in the Levant proclaimed “Greater Lebanon” with its present boundaries and Beirut as its capital. * 22 November 1943, Lebanese Independence Day * 3 April 1975, divisions over the “growing militancy” of the Palestinians, fuelled by religious and political tensions burst into an open conflict. Lebanon’s 15-year civil war began. * June 1976, Syrian troops are sent to Lebanon. * March 1978, Israeli occupation of Southern Lebanon. * 22 October 1989, Lebanese parliamentarians signed the “Taif Agreement” in Saudi Arabia, redistributing political powers between different religious communities. * 13 October 1990, Pax Syriana imposed on Lebanon ended the civil war. * 31 October 1992, Rafik Hariri started his first term as Prime-Minister of the Lebanese government. * 25 May 2000, complete withdrawal of Lebanese troops from Southern Lebanon after years of latent conflicts with Hezbollah. * 2 September 2004, the Security Council adopted Resolution 1559 calling upon “all remaining foreign forces to withdraw from Lebanon” following the controversial extension of the Presidential mandate of Emile Lahoud. * 3 September 2004, the constitutional amendment extending the term of Emile Lahoud passed with the support of Rafik Hariri and his parliamentarian block despite their prior opposition. Marwan Hamadeh voted against the amendment. * 9 September 2004, Rafik Hariri resigned as Prime Minister. * 1 October 2004 – 12 December 2005, several public figures were targeted in bomb attacks. * 8 March – 14 March 2005, massive peaceful demonstrations in Lebanon and international pressure led to the progressive withdrawal of Syrian troops from Lebanon. * 12 July to 14 August 2006, conflict between Israel and Lebanon * March 2011 – present, Syrian civil war. About two millions refugees in Lebanon.

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(Sources: The UN Fact-Finding Mission Report, 2005; Young, 2010)

2. The connected cases of the 14th February attack:

The mandate of the UNIIIC was progressively broadened to 17 cases (Aptel, 2007) in order to investigate a series of bomb attacks allegedly connected. Seven Lebanese public figures were specifically targeted by these terrorist acts: - 1 October 2004, member of the Parliament Marwan Hamadeh survived from an explosion, but his bodyguard didn’t. - 14 February 2005, a car bomb attack killed former Prime Minister Rafik el-Hariri, former Minister Bassel Fleihan and 21 other persons in Beirut’s hotel district. - 2 June 2005, journalist Samir Kassir died in a car explosion. - 21 June 2005, politician George Hawi died in a bomb attack. - 12 July 2005, Deputy Prime Minister Elias Murr was targeted and two persons died in a bomb attack. - 12 December 2005, newspaper editor, Gebran Tueni, was killed in a bomb attack. As underlined by the co-representatives of victims in their opening statement on 17 January 2014, other political assassinations were carried out from 2006 to 2013. Suicide and car bomb attacks occurring in public places also killed passer-bys, not related to the public figures targeted.

3. From an international condemnation to the establishment of the STL:

- 15 February 2005, the President of the Security Council issued a statement condemning the 14 February attack. He requested “the Secretary-General to follow closely the situation in Lebanon and to report urgently on the circumstances, causes and consequences of this terrorist act.” - 18 February 2005, UN Secretary-General Kofi Annan sent a Fact-Finding Mission to Beirut. - 24 March 2005, led by an Irish inspector, Peter FitzGerald, the UN Fact-Finding Mission issued a report concluding in favour of an international investigation of the “Hariri case”.

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- 7 April 2005, the Security Council adopted Resolution 1595 establishing the UNIIIC in charge of assisting local authorities in conducting their investigations. - 13 December 2005, Prime Minister Fouad Siniora addressed on the behalf of the Lebanese government a letter to the UN Secretary-General requesting the creation of “a tribunal of an international character”. - 15 December 2005, the Security Council adopted Resolution 1644, extending the UNIIIC’s mandate. - 29 March 2006, pursuant to Resolution 1664, the UN Secretary-General started negotiating with the Government of Lebanon about setting up a Special Tribunal. - 15 June 2006, the Security Council in its Resolution 1686, extended for the UNIIIC’s mandate and widened its investigation scope from the 1st October 2004’s attack. - 15 November 2006, the UN Secretary-General submitted his conclusions on the negotiations held with the Lebanese Government on the establishment of a Special Tribunal - 23 January and 6 February 2007, the Government of Lebanon and the UN Secretary-General, respectively, signed the Agreement setting up the STL. - 30 May 2007, the Security Council adopted the Agreement in Resolution 1757. - October 2007, UN Secretary-General Ban Ki-Moon, set up a “Selection Panel” in charge of appointing the judges and the Prosecutor at the STL. - 21 December 2007, Dutch authorities and UN representatives signed a Headquarter agreement establishing the seat of the STL in the Netherlands. - 28 February 2009, as the mandate of the UNIIIC ended, evidence gathered was transmitted to the Prosecutor of the STL. - 1 March 2009, the STL opened in Leidschendam, near The Hague, in the Netherlands.

4. UN investigation of the “Hariri case” and prosecution of the “Ayyash et al. case (STL-11-01)”:

• 14 February 2005, a videotape was left behind a tree near Al-Jazeera headquarters in Beirut. The Qatari channel broadcasted its content the same day. Ahmad Abu Adass, a 24-year-old Palestinian, claimed responsibility for the attack on behalf of “Victory and Jihad in Greater Syria”, an unknown jihadist group.

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• 25 February - 24 March 2005, the investigators of the UN Fact-Finding Mission met Lebanese officials and politicians, reviewed Lebanese investigation reports, examined the crime scene and interviewed witnesses and victims.

• 8 March 2005, about half a million people took to the streets to express their support of the Lebanese Government and the Syrian Arab Republic.

• 14 March 2005, in response to the pro-Syrian demonstration, another rally was organized by opposition leaders to call for end to impunity and the withdrawal of Syrian troops from Lebanon. The “Cedar Revolution” gathered one in four Lebanese.

• 30 August 2005, four senior Lebanese officers were arrested, in connection with the alleged crime: o Raymond Azar, former chief of military intelligence, o Jamil Sayyid, former chief of general security, o Ali al-Hajj, former chief of Internal Security Forces (hereafter “ISF”), o Mustafa Hamdan, former chief of the presidential guards.

• 29 April 2009, the Pre-Trial Judge released the four Generals, held for four years awaiting their trial, in The Hague.

• 23 May 2009, the German newspaper Der Spiegel, leaked confidential information about an alleged implication of members of Hezbollah in the 14th February’s attack.

• 10 June 2011, the Prosecutor submitted an indictment, in its third and final version, against four accused to the Pre-Trial Judge: o Salim Jamil Ayyash, o Mustafa Amine Badreddine, o Hussein Hassan Onessi, o Assad Hassan Sabra.

• 28 June 2011, the Pre-Trial Judge confirmed the indictment.

• 9 August 2011, Lebanese authorities handed a report over to the STL stating that they failed to apprehend the suspects.

• 11 August 2011, the President of the STL, issued a statement addressed to the four accused regarding their right to legal counsel.

• 1 February 2012, the Trial Chamber decided on trying the accused in absentia.

• 5 June 2013, the OTP submitted an indictment against a fifth accused, Hassan Habib Merhi.

• 31 July 2013, the Pre-Trial Judge confirmed the indictment.

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• 16 and 17 January 2014, the trial started with opening statements by the parties and the LRV.

• 22 January - 10 February 2014, the Prosecution presented its first witnesses, which were cross-examined by the LRV and the Defense teams.

• 11 and 12 February 2014, the Trial Chamber issued an oral ruling deciding on joining the “Ayyash et al. case” to Merhi’s indictment. The trial was adjourned in order to give adequate time for the counsel of Merhi to prepare its line of defense.

• 18 June 2014, hearings before the Trial Chamber started again.

5. Judicial decisions affecting victim participation before the STL:

• 8 September 2011, the Pre-Trial Judge issued a Scheduling Order setting up a deadline for filing applications to the status of VPP.

• 5 April 2012, the Pre-Trial Judge denied a Defense Motion requesting the VPU to re- file its transmission of victims’ applications inter partes.

• 8 May 2012, the Pre-Trial Judge decided on granting the VPP status to 58 victims. – 1st Decision on VPP –

• 16 May 2012, the Registrar appointed a lead-legal representative and two co-counsels to represent collectively the participating victims.

• 18 May 2012, the Pre-Trial Judge issued a decision on the VPU’s access to material and the modalities of victims' participation in proceedings.

• 3 September 2012, the Pre-Trial Judge granted the status of VPP to nine additional applicants. – 2nd Decision on VPP –

• 27 September 2012, the Pre-Trial Judge dismissed the Duty Legal representative’s motion for review of the Registrar’s designation of the LRV.

• 28 November 2012, the Pre-Trial Judge granted the status of VPP to one additional applicant. – 3rd Decision on VPP –

• 19 December 2012, the Pre-Trial Judge decided on suspending the disclosure of the VPPs’ identities to the Parties until 15 January 2013.

• 2 May 2013, the Pre-Trial Judge refused to grant the status of VPP to four applicants who failed to provide sufficient evidence of the “nexus” between their alleged harm and the 14th February attack. – 4th Decision on VPP –

• 15 August 2013, the Trial Chamber granted the confidentiality status to 29 VPPs. About half of the participating victims have their identities disclosed to the public.

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• 5 December 2013, the Pre-Trial Judge noted the death of one victim participating in the proceedings and the withdrawal of two others.

• 31 March 2014, the Trial Chamber dismissed Merhi Defense Counsel’s Position on extending victims’ participation to the proceedings on the grounds that their “status of victim before the Tribunal is fundamentally connected to the crime itself, and not to the person accused”.

• 18 July 2014, the Pre-Trial Judge granted the status of VPP to three additional applicants. The LRV are currently representing 68 victims before the STL. – 5th Decision on VPP –