by Karabo Rajuili, South Africa
It’s the third week of classes, and second week of tribunal site visits. On the back of visits to the International Court for the former Yugoslavia (ICTY), and the Special Court for Sierra Leone (SCSL), yesterday, visiting the Special Court for Lebanon (SCL) presented us with the opportunity to critically compare the different tribunals and the evolving character, and complexities of international justice. Although there are similarities, what is evident is that each case, and therefore tribunal, is unique, yet also builds upon experience and jurisprudence of preceding international tribunals.
Throughout the day, multi-national staff from the various divisions at the SCL gave their candid appraisals of the opportunities and limitations of the court. A number of features which make the SCL unique were discussed and explored, one being the controversial ‘trial in absentia’ provision and another being participation of victims in the SCL, which is an issue of crucial importance and a first for an international tribunal. This process is intended to grant victims the right to participate in the trial and to be represented by counsel. It has been argued that ‘victims are more likely to experience satisfaction with the criminal justice system if they perceive that their voice has been heard‘. The court received 73 applications from victims of the 14 February 2005 bomb attack, which killed popular ex-Prime Minister Rafik Hariri and 22 other people, 58 which have been approved.
However, as the frank discussions of the day would reveal, there are limitations and unresolved questions. Victims cannot directly seek compensation through the Tribunal; rather this process is deferred to national courts which could be a lengthy and cumbersome process. Furthermore, the three legal representatives are assigned will represent the 58 victims, rather than the
victims themselves having choice in representation. The provision also highlights the complexities of trying to strike a balance between common law system (no status for victims) and civil law (full rights to participate), resulting in a compromise position, where the voice of the victim in an adversarial system still sits uneasily.
Is the process without its flaws? No. However, it does raise important questions of what it is to seek justice for those who have suffered most, amidst procedural imperfections and difficult compromises. For the SCL, the test of whether victim participation is a useful innovation will only be fully realised at the conclusion of the STL’s current mandate, the insights of which should serve those of us involved in field, with greater understanding not only of the development of jurisprudence, but more importantly how best to give victims a voice in international justice mechanisms.