Freedom of Press v. Obstruction of Justice: The Special Tribunal for Lebanon Takes a Controversial Stand
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School
On April 24, 2014, the Special Tribunal for Lebanon (STL), located in The Hague, charged two Lebanese journalists and two media organizations with contempt and obstruction of justice for allegedly publishing the names of witnesses who might appear for the prosecution in the major criminal case before the STL. The basis for the contempt charges is that the publications at issue may cause the witnesses to fear to testify or undermine the Tribunal’s ability to protect them. The STL has issued a summons to the two journalists to appear before the court on May 13, 2014.
In December 2005, the Government of Lebanon issued a request to the United Nations Security Council for creation of a tribunal to prosecute those responsible for the February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and 22 others. In response to this request and pursuant to its authority under Chapter VII of the U.N. Charter, the Security Council issued Resolutions 1664 (in 2006) and 1757 (in 2007) to establish a tribunal of an international character to prosecute those responsible for the February 2005 attack. The Security Council, through Article 28 (1) of Resolution 1757, required the judges of the STL to adopt Rules of Procedure and Evidence that would include provision for the protection of witnesses. Rule 60 bis of the STL’s Rules of Procedure and Evidence provides for charges of contempt and obstruction of justice against
any person who … discloses information relating to proceedings in knowing violation of an order of a Judge or Chamber.
Trial against the individuals accused of the bombing commenced in absentia in January of this year pursuant to Article 22 of Security Council Resolution 1757 that authorizes the STL to proceed with trial in absentia when circumstances warrant.
The publications at issue in the contempt proceedings confront the STL with serious factional and political complications in the Middle East. A post by the Guardian asserts that the defendants in the case are all members of Hezbollah but also states that Hezbollah has vehemently denied carrying out the attack. A news report by the Daily Star of Lebanon suggests that the publications were made at least in part by persons or media organizations sympathetic to political goals of the defendants.
The STL’s decision on the contempt issue has drawn prompt and strong criticism within Lebanon, including from officials of media organizations and from some members of Parliament. Among the issues raised by the critics is that the STL’s order is inconsistent with Lebanon’s law on freedom of the press. Note that unlike the international criminal law tribunals for the former Yugoslavia and for Rwanda, the STL is a “hybrid court” in that it applies a combination of Lebanese law and international criminal law and is staffed by Lebanese and international participants.
A commentator Karlijn Van der Voort who operates a blog on the STL supports the STL’s decision. Van der Voort, after reviewing analogous matters that have come before other international criminal tribunals, asserted that “there is consistent jurisprudence that the publishing of names of alleged witnesses is subject to contempt of court proceedings” and that in the STL matter “the publication of names of witnesses is one step too far: the fact that the Tribunal does not tolerate this is understandable.”
The STL has taken a stand it considers necessary to pursue effective prosecution of the perpetrators of the deadly February 2005 bombing. But in doing so, it has engendered strong opposition on the issue of press freedom. What follows in the contempt issue will have important implications for what measures the STL and other international criminal tribunals may take in an effort to proceed with their mandates.
- Karlijn Van der Voort, Contempt Case Against Lebanese Journalists at the STL, Special Tribunal for Lebanon Blog, Apr. 30, 2014.
- Gathering Stands United Against STL Summons, TheDailyStar, Apr. 28, 2014.
- Kareem Shaheen, Journalists Charged with Contempt By STL, TheDailyStar, Apr. 25, 2014.
- Martin Chulov, Rafik Hariri Assassination: Trial of Hezbollah Suspects Begins, The Guardian, Jan. 16, 2014.