Event Re-Cap: Reflections on the International Criminal Justice System: In Conversation with David Re – Crystal Ji

The NSW Society of Labor Lawyers and the Muslim Legal Network NSW recently hosted an in-conversation event with David Re, who was the Presiding Judge of the Trial Chamber of the Special Tribunal for Lebanon (STL) from 2013 to 2021. In this role, Mr Re presided over the first international terrorism trial, which arose from the 2005 terrorist attack targeting former Lebanese Prime Minister Rafik Hariri. Three accused were acquitted, with one accused, Salim Ayyash, being convicted for his role in the attack. The judgment of the Chamber is available in full online and has previously been analysed on the ILA Reporter. Prior to being a judge of the STL (2010-2021), Mr Re was a judge of the Court of Bosnia and Herzegovina in Sarajevo (2008-2010) and a prosecutor at the International Criminal Tribunal for the Former Yugoslavia (2002-2008).

Mr Re traversed a number of topics during the course of the discussion, ranging from discussing the hybrid nature of the STL, to reflecting on the future of international criminal courts and international criminal law. Points of interest are highlighted below.

The hybrid model of the STL

The hybrid model of the STL was discussed. The STL was set up pursuant to a 2006 agreement between Lebanon and the UN and Security Council Resolution 1757, with Lebanon to pay 49% of the budget. The decisions of the STL are binding on all UN member states, given the STL’s establishment pursuant to a UN Security Council Resolution. It is a unique standalone institution with headquarters in the Hague, established there pursuant to an agreement with the Dutch government, and also an office in Lebanon, pursuant to an agreement with the Lebanese government. The STL features both Lebanese judges and international judges of different nationalities, and applies the substantive law of Lebanon while also applying international criminal procedure laws. The latter is itself a hybrid of the procedures used in civil and common law systems.

There are distinct advantages to the hybrid model of the STL, which allows international personnel to work with national personnel. These include the fact that international personnel bring money and resources, expertise, standards, witness protection, forensic and investigatory techniques to transitional justice countries that are often small, impoverished and affected by corruption. In the case of the STL, the Lebanese judges who were appointed could see what the procedures and standards are in the international legal system, and the international judges could safeguard the maintenance of independence and impartiality of the STL’s judicial decision-making.

However, the limitations of the model were also discussed. Although the judges are able to maintain independence and impartiality, there are forces that may have shaped the prosecutorial effort at the investigative stages of a trial. Choices as to which aspects and persons to investigate over others are entirely outside the judges’ purview, as are decisions as to who to name in the indictment. Questions about why the indictment for the trial Mr Re presided over did not extend wider or higher up the chain of command of Hezbollah remain unanswered. 

Other limitations discussed included difficulties that the Defence had with obtaining relevant material, as the Lebanese government repeatedly refused to cooperate with the Defence. This links with a wider limitation that the work of such international courts depends on cooperation by state parties, and though they are obliged under international law to cooperate, state governments can ultimately decide how to act in accordance with national interest. Further, funding has been an ongoing problem, with Lebanon perpetually being unable to pay for their portion of the STL budget given the country’s financial position.

The trial in respect of the assassination of Rafik Hariri

Mr Re discussed the long, drawn-out nature of the Ayyash et al trial he presided over. The STL was established by a Security Council Resolution in 2007, and it opened its doors in 2009, with the investigatory documents from a four year fact-finding mission being handed over to the court for the prosecution to continue the investigation. The indictment was filed two years later, the trial commenced three years after that, and judgment was handed down two years after the closing of oral argument, with the judgment totalling approximately 2,600 pages.

Of note was the fact that the trial was held in absentia, without the participation of the accused. Mr Re asserted that the trial could fairly proceed on this basis as there were safeguards in place to ensure a fair trial, including the participation of lawyers representing each accused. Defence counsel for each accused could challenge the prosecution case. If the accused subsequently appeared following a conviction, they would have the right to be retried. Following the conviction of Ayyash, his Defence counsel appealed the conviction, but the Appeals Chamber ruled that an appeal could not be lodged in the absence of the accused person.

Anatomy of an international criminal case

Mr Re dissected how an international criminal law case is built, highlighting that the principles are broadly the same as those applied in Australia. 

In international criminal law, an investigation may be initiated by the international court/tribunal in question, or it may be referred by a state. The Prosecutor investigates the alleged crime(s), and there is no police force. The prosecutorial team is multidisciplinary, comprising of investigators, lawyers, analysts, interpreters and more. Cases are often built starting with open source information from UN-fact finding missions and non-government organisations such as Human Rights Watch, who may have already obtained statements from relevant persons. From there, a dossier is built.

The Prosecutor decides whether or not to prosecute, but in some cases, the Prosecutor may give the case to a judge to decide whether there is a prima facie case, and then have the charges confirmed in a pre-trial chamber, before the case then moves to a trial chamber for trial. In the STL, a pre-trial judge confirms the indictment and retains it until it goes to the Trial Chamber.

In terms of evidence, witnesses often give evidence by way of statements, unless this is challenged by the Defence and they are required to appear in person for cross-examination. Mr Re highlighted how approximately two thirds of witnesses gave evidence by way of statements in the case he presided on in the STL.

While many of the parties are the same as in domestic criminal law, with the participation of judges, prosecutors, defence counsel, there is also additionally the participation of victims, which distinguishes international criminal courts and tribunals from domestic courts.

In terms of avenues of appeal, there is no automatic right to appeal on all interlocutory issues, and some issues must be certified by a pre-trial or trial chamber before it can be heard on appeal. There is an automatic right of appeal for jurisdictional issues. Following a verdict, whether it be an acquittal or a conviction, the prosecution and defence have equal rights to appeal. 

A unified system of international criminal justice?

Mr Re was queried about the possibility of a unified system of international justice, but dismissed this as unlikely to come to fruition given the disparate political interests at play, the varying institutional models, and the fact that the courts are often formed on an ad hoc basis. However, Mr Re raised the idea of harmonising methodologies employed at the different courts, and pointed to the fact that there is currently much work being done on this.

Personal reflections

Mr Re provided illuminating insights, as a leading practitioner in the field, into the operation of the STL and the set-up of the international criminal justice system more broadly. He was cognisant of the political context in which the STL operates, and was frank about some of the constraints in the operation of international courts and tribunals. Mr Re’s assertion that harmonising international criminal procedure would be a more achievable goal than unifying or harmonising substantive aspects of international justice is persuasive; I would further argue that a unified substantive system is not desirable. Ad hoc international courts and tribunals should be set up taking into account the political realities and particularities of the state in question, and recognising the different needs of victims, the resources of the legal teams, and more. It would be difficult to formulate a one-size-fits-all framework for such courts or tribunals. A unified system also requires a degree of international cooperation that is unlikely to be achieved, at a time when states have differing ideas about the role of international courts and state sovereignty is jealously guarded.

The in-conversation event was hosted jointly by the NSW Society of Labor Lawyers and the Muslim Legal Network NSW. 

Crystal Ji is an Assistant Editor of the ILA Reporter. This article is principally a summary of the event in the authors words, and does not necessarily represent the views of the author or the speaker.