Tuesday, July 16, 2019
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With Freedom Comes Responsibility

International criminal justice

International criminal justice is imperfect and all of the ad hoc international tribunals established over the past two decades have come under attack. Justice is often delivered at a snail's pace. It tends to be a costly exercise and frequently accused of failing to properly contribute to long-term stability and reconciliation in the very communities it seeks to address. Some of these criticisms are justified.

The pursuit of accountability is an essential process for any democratic process. It is something that the international community must continue to support and importantly to fund. Recently, the International Center for Transitional Justice held an online discussion in which it was asked whether "The International Community is Abandoning the Fight Against Impunity" (see https://www.ictj.org/debate/impunity/opening-remarks). ICTJ President, David Tolbert, noted that more than a decade after the creation of the ICC "shockingly little is being done" and that the prospect "...of victims receiving justice, let alone bringing perpetrators to account, seems even more remote."

On 14 February 2005 Rafik Al Hariri, the former Prime Minister of Lebanon, and 21 others, were killed when a massive explosive device detonated near the St. George Hotel in Beirut rocked Hariri's motorcade. Allegations immediately surfaced that the carefully orchestrated assassination was the work of the Syrian Government or Hezbollah, or both.

A highly respected German Prosecutor, Detlev Mehlis, was appointed to lead the investigation into the Al-Hariri assassination and in particular to identify the role of the Syrian Government. The investigation was continually blocked form all sides. Notwithstanding, the very obvious limitations, Mehlis' investigation nevertheless identified 19 suspects and 4 pro-Syrian Lebanese security officials were charged. It was also clear, despite the obvious denials, that the Syrian Government had been deeply implicated in the inquiry. One only needs to listen to the opening speech of the Prosecutor at the Special Tribunal to recognise that there is a certain sense of disappointment that the dock to which a prosecutor would ordinarily point is conspicuously empty and that the list of defendants currently being tried in absentia do not include anyone from the Syrian Regime.

The Special Tribunal for Lebanon is a curious institution that tends to be regarded as the stepchild of international justice. Trials in absentia do not sit well with our very notion of justice and accountability. Whether the men currently facing trial in their absence are responsible for the attack we may never know as, despite the best endeavours of their legal teams appointed to represent their interests, they will never be able to take instructions and put forward any proper defence. Further, the case will always be tainted by the notion that those victims hoping to see justice, at considerable cost, will be deprived of not hearing the full story.

It is perhaps with more than a little irony that the first persons to be physically brought before a judge in The Hague have little or nothing to do with the events of 14 February 2005.

Karma al-Khayat, Al Jadeed TV and New TV, have been summoned to appear before the court to answer charges of contempt of court and obstruction of justice. They face criminal charges relating to a 2012 TV broadcast that involved the disclosure of confidential witness lists.

Whilst bringing contempt proceedings against journalists for the publishing of confidential witness details is nothing new, the bringing of criminal proceedings against a corporate identity is a novel development.

It is quite clear that there is an important consideration. Protecting witnesses in trials of such significance is of paramount importance. It is difficult enough for a prosecutor to convince witnesses to come forward and give evidence against powerful defendants. Witnesses will only come forward if they are satisfied that their identities will be protected. The unveiling of confidential details puts not only the individual witnesses in danger, but also runs the risk of discrediting the entire process.

Freedom of speech is paramount in any society; it is a fundamental principle of democracy, and one that enables the people to hold others, particular those in political office, to account. Freedom of speech further enables a free media to hold a judicial process to account. International Tribunals should not be immune from such a process.

However, with that freedom comes responsibility; the principle does not allow crimes to be committed under the guise of such a principle, nor should the principle be used to attempt to justify behaviour that may endanger others.

The media, in all of its forms, must hold themselves to a higher degree of responsibility than most, and this isn't to seek to censor the press or impinge on its freedoms, but the reality of the position is that on occasion the press have information that by its very nature is sensitive, to the extent that if published it may create a very real risk to those involved. To publish information that is deemed to fall into this category is not an exercise in the freedom of the press, but is an example of negligent conduct.

I fully support a free press and I fully support the right for views to be expressed irrespective of whether they are deemed to be morally offensive to the masses or whether the majority proscribes to such a view. This is the beauty of a democracy, and a principle must be defended to the fullest. However, this right comes with the caveat of responsibility.

This caveat is particularly present when dealing with the criminal justice system, at all levels, including international tribunals. It is not censorship to seek to prevent the press from reporting certain information where there is just cause for such a restriction.

It is this restriction that Karma al-Khayat, Al Jadeed TV, and New TV are alleged to have breached.

The defendants stand charged with contempt following allegations that they published a confidential witness list subject to protective measures. Criticism has been levied at the decision on the basis that it is an attempt to silence the press. This is an interesting argument to make. The defendants argue that they published details that were in the public domain. The reason for the publication, according to the defendants, was to demonstrate how insecure the Tribunal's protective measures are in practice.

Victims are central to any justice system, as is the need for their safety. If their safety cannot be assured, future victims are less likely to come forward and thus impunity will flourish. The press therefore shoulder the burden of responsibility to respect this, and further, respect any order of the court.

If such orders can be flagrantly disregarded, the integrity of the court is undermined and thus put at risk. It does not undermine the integrity of the court to seek to punish where appropriate.

Al Jadeed argues that freedom of speech is at stake. That is quite right - it is. Respect for justice and the credibility of an international tribunal is also at stake.

It must be a reasonable response to carry out an investigation into the circumstances of the publication. However, pursuit simply to silence dissent can never be tolerated. Any such attempts are simply censorship, and must be criticised wherever it occurs.

Such prosecutions cannot be justified, and instances are an attack on free speech, an attack on the freedom of the press, and thus undermine the credibility of the institution. A careful balance must be struck.

There will always be conflict between freedoms that citizens enjoy and the appropriateness of attempts to curtail those freedoms. However, we must look at the consequence of allowing absolute freedom as opposed to a specific restriction in specific circumstance. In the case of Al Jadeed, the restriction on the reporting of witnesses must be seen as appropriate given the potential consequences should absolute freedom be observed.

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