NOW Lebanon-The best defense Talking to STL Defense Office Head François Roux , November 8, 2011

Arthur Blok, 

Leidschendam — The head of the Special Tribunal for Lebanon’s Defense Office, François Roux, says he does not expect the trial to take place before the summer of 2012. “The defense team will need months and months to prepare their case,” Roux told NOW Lebanon in an exclusive interview at the seat of the STL in Leidschendam, Holland. “The defense team needs to investigate everything brought forward by the prosecutor in the indictment,” which was released in June and named four men for their involvement in the 2005 assassination of former Prime Minister Rafik Hariri. “Trust me that will take some time,” he said.

So no trial before March 2012? 
François Roux: No, absolutely not. First there will be a public hearing before the trial chamber on Friday, November 11. The chamber will decide if there will be a trial in absentia or not. If so, all the case files will be forwarded to the pre-trial judge. At that point the pre-trial judge will ask me to appoint a permanent defense counsel. Once I have assigned the permanent counsel, the prosecutor has 30 days to present to us the unedited version of the indictment. But do not expect a decision from the chamber on November 11. They will need a few weeks to decide on the matter. It took the pre-trial judge six months to study all the files the prosecutor brought forward in his indictment. The defense counsel will need at least a minimum of six months to prepare themselves, maybe more. The STL does not have an investigative judge. This means that every party has the right to investigate matters themselves. Investigation takes time.

What if the cabinet of Lebanese PM Najib Mikati decides to withhold this year’s payment to the STL? What would that change for you as the head of the Defense Office?

Roux: Until this moment I have not seen any official information regarding this issue. I do not wish to react to speculation. I will wait for an official report on the matter.

 But the clock is ticking, and we only have a few more weeks before the end of the year. So far the cabinet has no clear position on the payment issue. Would it be acceptable to you to work on behalf of a country that formally does not want to cooperate with you anymore?

Roux: Again, this moment has not arrived yet. During the past few months the newspapers have been full of speculation. I suggest waiting until we have a formal reaction from the government.

 How difficult is it to lose an icon like Judge Antonio Cassese, who died in October?

Roux: The death of Judge Cassese came as very sad news to all of us, but I think the best tribute to pay to him is to continue the work of the STL.

What about the fact that the other icon of the STL, Prosecutor Daniel Bellemare, has been on sick leave for the past few months?

Roux: I have read the same press releases as you have, and I am sure you realize that the prosecutor is continuing his work from wherever he might be. From my standpoint I can assure you we have been receiving regular submissions from his office regarding the upcoming hearing. It is business as usual.

Were you bothered by the speculation in the Lebanese media that President Cassese stepped down from his position because he had a bad relationship with Bellemare?  

Roux: I do not like to comment on that kind of speculation in the media. There are four heads of the different organs of the STL. What I can tell you is that we always worked together for the sake of the STL since my arrival. That does not mean we always are in agreement with each other, but we always make sure that we can work together.

 What will be your main focus during Friday’s hearing?

Roux: It is not as simple as you might think. The DO is working very hard to prepare for this hearing. The only thing I am prepared to say at this point is that the DO will do everything in its power to make sure the rights of the accused are observed. I will give you an example. The statute of the STL and the rules of procedure and evidence provide for several innovations. One of them is trials in absentia, and another one is the possibility for an accused person to appear by video conference or through representation by counsel. This means that if an accused decides to appear by video conference, he remains a free man. That is absolutely new in international law. By issuing arrest warrants against the accused in the way they were issued this summer we actually turned them into fugitives. This prevents them from appearing before the court as free men.

 Are you saying that if there would have been no arrest warrant against them, you would have expected them to come to Leidschendam?

Roux: The late President Cassese called in August for the accused to appear before the court. After this call, arrest warrants were issued against them. This is in fact against the statute of the STL. We as the DO are here to ensure that all the rights granted to them in the statute are observed. And in this case they are not.

Today if one of the accused decides to leave home to go to his lawyer’s office, for example, that person is subject to arrest if caught. This is contrary to the spirit of the statute. He should be granted the possibility of appearing before the court as a free man, which is now impossible because of the arrest warrants.

Are you going to raise this issue on November 11?

Roux: We will be making many submissions on November 11 when the hearing is held.  This is an issue we already raised in our written submissions before the chamber; at the hearing we will make public statements regarding this. It is our duty as the DO to make it clear to the judge that at this point the rights of the accused are not being properly observed.

 What position will you take on November 11 on the possibility of a trial in absentia?

Roux: On November 11 the dialogue will be mainly between the chamber and the prosecution. The DO is invited to attend the hearing, just to hear what the judges and the prosecutor have to say. At the hearing the DO is there to defend the principles of justice, just like in the past.

Have you had contact with any of the accused?

Roux: No.

Not even with the organization they allegedly belong to, Hezbollah?

Roux: No. And as far as I know Hezbollah is named in the indictment but not as the accused. The indictment mentions only four persons. The DO did not have any contact with the four persons accused in the indictment.

How do you decide on a strategy to defend the accused if you don't have any contact with them?

Roux: The DO is not the one tasked with deciding on the strategy of defending the accused. We assigned a temporary duty council to defend the rights of the accused. It is up to the defense counsel in a later stage to decide on the strategy. We are here to provide legal and logistical support.

Why are you not a little bit more active in approaching the suspects? You could have picked up the phone and called Hezbollah’s office in Beirut yourself.

Roux: We are very active. We send many messages through the media, and I made it very clear that my door is open. That is all I have to say about this topic.

How are you going to defend suspects properly without actually having contacted them?  

Roux: It is absolutely clear that if we are going to have trials in absentia, the defense counsel will not have any contact with their clients. It is a difficult situation, but by no means an impossible one. The defense counsel will be made up of very seasoned lawyers. And I [am very confident] that they will be able to conduct an efficient and vigorous defense of their clients.

The trial can roughly be divided into two phases. In the first phase the prosecutor will present his evidence. This could take weeks, months or even years. During this phase the prosecution can present witnesses, experts, documents and so forth to support its accusations. In this phase the defense counsel can challenge basically everything that is brought forward by the prosecutor. Sometimes the defense counsel is so successful in challenging the evidence that the case collapses. In that case the judges have to acquit the suspects, even before starting the second phase in which the defense will present its case.

However, at the same time it cannot present what we call an affirmative defense. That means, for example, that they cannot present an alibi.

 Is this not the basis of any defense?

Roux: No, not exclusively. I have defended many people in front of an international tribunal, but I never presented an alibi as the basis of my defense.

 Is this appointed permanent defense counsel actively going to approach the suspects?
 
Roux: No. If there is a trial in absentia, the accused always has the right to ask for a retrial at a later stage in his presence. Only then, because if there were to be contact with the counsel they would forfeit the right to a trial in absentia.

What about the issue of the unconstitutionality of the STL as a whole? And then, in particular, the way it was established with neither the consent of the Lebanese president nor the blessing of the Lebanese parliament. How does the DO see that?

Roux: The defense teams have every liberty to raise and argue all of these issues for the chamber in their bid to defend the accused. Last week we had a working session with the duty counsel to update them on what is going to happen in the upcoming hearing. As part of that working session, Professor Salim Jreissati gave a lecture on the issue of the legality of the STL. Professor Jreissati will remain at our disposal for any future inquiries on the issue.

Let’s talk about the indictment. Don’t you think it is very weak?

Roux: We have to wait and see what will happen in court. What I can say about the content is that [neither] you nor anybody else has any access to supporting documents of the indictment. So we have to be very careful when commenting about the indictment at this stage. Nobody knows exactly what those supporting documents contain. We are, however, now aware of the path of the prosecutor’s decision.

 Still, don’t you think the indictment is weak because it was based only on circumstantial evidence?  

Roux: That is why I recommend caution when judging the indictment that is on the table now.

Do you think it is in the interest of the prosecutor to present you with all the evidence he has at this stage? 

Roux: Of course not. All we have before us at this moment is just a basic indictment—as basic as they come. But that is completely normal in international law. If you had seen the initial indictments that came before the ICTR [International Criminal Tribunal for Rwanda], many of those were much more basic. As a lawyer I can assure you that there will be many issues we can argue about and challenge. But again, before we say anything we have to wait before we have seen all the documents.