Bucking the Trend on Pre-Trial Detention

We've blogged a bit before about the "newest tribunal on the block," the Special Tribunal for Lebanon (building at right) devoted to prosecuting political assassinations and acts of terrorism in Lebanon.
The Tribunal has been convened with Professor Antonio Cassese (below left), former President of the International Criminal Tribunal for the former Yugoslavia and Chair of the International Commission of Inquiry for Darfur, as President (prior posts). It officially started to function on March 1, 2009. (Controversially (prior IntLawGrrls post), many of the other judges have been kept anonymous, putatively for their safety, raising the specter of faceless judges presiding over star chambers. Only four of the judges are Lebanese).

Later in the month of March, the Tribunal's Prosecutor requested the Lebanese authorities to undertake two actions: pursuant to Article 4 of the Tribunal’s Statute, to defer their investigation of the lethal attack against Rafik Hariri; and to hand over court records, any probative evidence, and the names of suspects. Article 4 reflects the system of primacy that characterizes relations between states and the 2 ad hoc international criminal tribunals, and that stands in contrast with the principle of complementarity that governs the International Criminal Court. Article 4 states:

Upon the assumption of office of the Prosecutor, as determined by the Secretary-General, and no later than two months thereafter, the Special Tribunal shall request the national judicial authority seized with the case of the attack against Prime Minister Rafiq Hariri and others to defer to its competence. The Lebanese judicial authority shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any. Persons detained in connection with the investigation shall be transferred to the custody of the Tribunal.

The Tribunal issued its first ruling in April of 2009, releasing from pre-trial detention four individuals -- Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar, and Mostafa Fehmi Hamdan -- who had been detained by Lebanese authorities prior to the establishment of the Tribunal. The Rules granted the Prosecutor, Canadian Daniel A. Bellemare (left), limited time to bring charges against the four individuals, two of whom are Generals, two others, Brigadier Generals. But Bellemare determined that even with the Lebanese information, he had not yet marshaled sufficient evidence to justify continued detention; thus he requested the release of the four. (Indeed, apparently several witnesses modified their statements, and one key witness retracted his statement incriminating the accused (See here, para. 37)).

In ruling on the Prosecutor's decision to release the individuals, the Special Tribunal (at para. 22, note 7) cited jurisprudence from the Human Rights Committee, the body charged with interpreting the International Covenant on Civil and Political Rights, for the proposition that

pre-trial detention should be the exception.

See Human Rights Committee, Hill v. Spain, Communication No. 525/1993, para. 12.3 (April 2, 1997).

The Special Tribunal for Lebanon concluded that the Prosecution did not make “a manifest error of judgment in exercising his discretionary power” and approved the release. The opinion is available here.

This ruling is notable when compared to the practice before the Extraordinary Chambers in the Courts of Cambodia where -- as we've discussed here, here, and here -- pre-trial detention, even for octogenarians, appears to be the norm.