Domestic legal status: the constitutional issues
Under the Lebanese constitution, parliamentary approval was needed for the creation of the STL. However, due to opposition by the 8 March Alliance, the parliament did not vote to ratify the agreement. Instead the UN Security Council passed resolution 1757 on 30 May 2007 decreeing that the agreement, included as an annex, would enter into force. The Council sought to bypass the need for parliamentary approval by invoking Chapter VII of the UN Charter, albeit with the reassurance of the government that a majority in parliament backed the tribunal, as 72 of Lebanon’s 128 MPs belonged to the 14 March Alliance. The STL officially began functioning in March 2009 and the trial chamber presented a first series of indictments in June 2011.
Nonetheless, while 14 March strongly supported the STL, Hezbollah and its 8 March allies strongly opposed it, triggering parliamentary and cabinet crises and several months of hostile popular protest in front of the Prime Minister’s office when in November 2006 Shiite members of the cabinet suspended participation to protest the government bypassing the parliamentary blockade and its signature of the draft agreement. Today, legal scholars remain divided as to the constitutionality of the tribunal.
International legal status: the creation of what?
The mode of creation of the tribunal meant its legal status is also murky internationally. Despite the absence of parliamentary approval, Security Council Resolution 1757 purported to simply give effect to the agreement to establish the STL. The Council could have created a tribunal exercising its Chapter VII powers, as it had done with the International Criminal Tribunals for the former Yugoslavia and Rwanda. It did not do this in Lebanon, however. In fact, the 14 March majority opposed such a choice for fear of undermining its commitment to national sovereignty. The Council is not empowered to compel any state to accept a treaty obligation.
The STL’s international legal status is disputed in another way: it is often referred to as an internationalised or hybrid criminal tribunal, in that it employs a mixture of domestic and international judges and staff, is internationally-mandated and in part supported financially by the international community. Generally, hybrid tribunals share a number of common features: they are located in the country affected by the violence or conflict to be addressed; they use international and domestic judges, lawyers and other court staff; and they prosecute international crimes, but may also include some domestic crimes within their remit. Initially, the STL shared few of these characteristics: it was supposed to apply domestic law pertaining to domestic crimes of terrorism and murder, rather than international law crimes such as crimes against humanity or war crimes; and it is located outside Lebanon, close to The Hague and other international criminal tribunals such as the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda.
A ruling in January 2011 by the appeals chamber of the STL that domestic Lebanese law on terrorism should be interpreted alongside Lebanese obligations with respect to terrorism in international law means that the tribunal now applies international law, contrary to the facial terms of its mandate. Finally, distinct from other internationalised criminal tribunals and potentially in conflict with international human rights standards, the tribunal can try accused in absentia if they refuse to appear and cannot be arrested, which will most probably be the case.