LexisNexis

Justice for Lebanon

Anne McMillan

Almost a decade-and-a-half after the terrorist bomb that killed Prime Minister Rafik Hariri, the Special Tribunal for Lebanon is finally reaching a conclusion. Global Insight assesses whether it’s established a ‘foothold of justice’ in a country all too used to impunity.

In 2005, a massive bomb exploded in the centre of Beirut near the St Georges Hotel, a stone’s throw from the Mediterranean Sea. The blast wreaked havoc on the surrounding buildings and killed then Prime Minister, Rafik Hariri, as well as 21 other people. While the echoes of the blast, which rumbled across the city like a thunderclap, have long since faded, the legal and political reverberations are still being felt today, both inside and outside Lebanon.

The Special Tribunal for Lebanon (STL) was established in 2009 via the United Nations to investigate and prosecute the perpetrators of the crime. Unlike similar international tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Court (ICC), which deal with multiple crimes and victims, the Tribunal’s main mandate was a single act of terrorism.

The STL also has jurisdiction over attacks that can be shown to relate to the Hariri assassination and that occurred between October 2004 and December 2005, a comparatively short span of time in a country where political assassinations have been commonplace for decades. It established jurisdiction over three such cases.

Fourteen years after the blast, the case has finally concluded. The verdict is expected this year. The STL has prosecuted four people in the main case but the accused have not appeared in court because the proceedings are in absentia. And those four are relatively minor operatives – not the ‘big fish’, which, for example, the ICC now makes it a priority to prosecute.

Nevertheless, many feel the STL trial is enormously important, being the first attempt to bring untainted justice after a political assassination in Lebanon and avoid ‘business as usual’, which could have included a revenge assassination. Sareta Ashraph, Treasurer of the IBA War Crimes Committee, says that ‘the STL offers a chance – within its narrow jurisdiction – to start the much-needed work of proper investigations and fair trials for crimes in Lebanon. It is a foothold of justice in a country and region where crimes have been committed with impunity.’

Justice is not like an astronaut

Lawyers and judges strive to divorce law from politics. But international tribunals, though operating according to the highest legal standards, cannot escape the political ripples created by their every move. As a former judge of the ICTY, Georges Abi-Saab put it like this: ‘[I]nternational justice does not exist, like an astronaut, in a state of weightlessness outside power struggles, but in the real world, breathing the oxygen of politics.’

So it was with the STL. Created in the wake of angry protests on the streets of Lebanon following the bomb that killed 22 and injured 226 others, the STL was prey to national, regional and international politics from the start. Suspicion that Syria was behind Hariri’s assassination led to Syria withdrawing from Lebanon, which it had occupied since 1976.

I want to deal with this issue as a responsible official who has the responsibility to protect the country and the Lebanese people

Saad Hariri
Prime Minister of Lebanon;
son of former Prime Minister, Rafik Hariri

In 2006, Hezbollah, which is Syria’s ally in Lebanon and is backed by Iran, withdrew its members of parliament to block Lebanese parliamentary approval for the establishment of an international tribunal. The UN, which had been approached by the Lebanese government for assistance, circumvented this problem by creating the STL under Chapter VII of the UN Charter.

This move encouraged STL opponents to argue that it was never legitimately established, especially as the US and France – the main promoters of the UN Security Council resolution creating the STL – were perceived to have an anti-Syria political agenda (both China and Russia abstained). Seen by some as flawed in creation, the question was whether the STL could go on to establish credibility with its investigation and prosecution.

While the political struggle to establish the STL was under way, a separate UN body, the UN International Independent Investigation Commission (UNIIIC), had been assisting the Lebanese in collecting and preserving evidence from the attack, leading to the arrest of four generals with links to Syria. When the STL was finally set up, it inherited the evidence collected by the UNIIIC and the detained generals who were transferred from Lebanese custody to The Hague. Finding insufficient evidence, the STL soon released the four, who by then had been in custody for four years.

The generals’ release by the STL should have been seen as a triumph for international justice, showing at least that there was no Western plot to frame Syria for the assassination. But, in the complex world of Lebanese politics, and with the encouragement of Hezbollah, the event was perceived by some Lebanese as indicative of the UN ‘Hariri Tribunal’s’ incompetence.

[I]nternational justice does not exist, like an astronaut, in a state of weightlessness outside power struggles, but in the real world, breathing the oxygen of politics

Georges Abi-Saab
Former judge, International Criminal Tribunal for the former Yugoslavia

Arguably, the STL has never managed to shake off the perception by many Lebanese that it is a later incarnation of the UNIIIC, though in fact they are entirely separate bodies. The subtleties of the distinction between the two have been exploited by Hezbollah to feed its message that the STL acted politically from the beginning in trying in pin the blame on Syria, which was yet further evidence in the minds of some that the STL is an ‘American–Israeli project’, a message touted by Hezbollah.

Olga Kavran is the STL’s Head of Outreach and Legacy. ‘Regrettably, perceptions often depend much more on factors other than accurate information,’ she says, noting that international judicial institutions ‘cannot influence the opinions, especially of political leaders in a society whose own aims and goals may not coincide with those of judicial institutions.’

Even Lebanese people who reject mischaracterisations of the Tribunal may still have a problem with the narrow mandate of the STL. Lebanon has known widespread and catastrophic violence, particularly during its 1975–1990 civil war when over 120,000 were killed or disappeared and there was a swathe of unsolved political assassinations targeting major figures from different factions.

A limited 2012 survey of young Lebanese from different religious groups by researcher Tone Hafnor (‘The Special Tribunal for Lebanon – Local perceptions and legitimacy challenges at the start of the trial proceedings’) concluded that ‘the majority of the interviewees considered it deeply unfair that there was an international, expensive court set up only for a few crimes in stark contrast to the impunity that had followed the many crimes and assassinations committed in Lebanon during and after the civil war’.

The balance of power shifts

Despite opposition, the STL continued its work and in September 2018 the Tribunal heard closing arguments in the in absentia case against the four individuals accused of assassinating former Prime Minister Hariri.

Hezbollah has said that it doesn’t care what the STL verdict is, but nonetheless thought it worth warning in August last year as the case came to a close: ‘The STL does not mean anything to us at all and its rulings are of no value regardless whether they are condemnation or acquittal rulings. To those betting on the tribunal: do not play with fire. Period.’

Many Lebanese fear that an STL guilty verdict risks destabilising the delicate government power-sharing arrangement that keeps the peace. The long and bloody civil war led to a sweeping amnesty law. Christians, Shia and Sunni muslims were guaranteed political positions in an effort to balance power and bring the country together. Consequently, the heads of factions that killed many became political leaders. Some of those individuals still hold power today.

But the landscape changed in May 2018 when Hezbollah and its allies won a small majority in parliamentary elections, the first held since 2009 when the Tribunal was created. Significantly, the Prime Minister now dealing with the new political reality of increased Hezbollah power in Parliament is Saad Hariri, the son of the assassinated prime minister, whose own party lost a third of its seats.

After nine months of political wrangling, with Hezbollah demanding the lucrative Health Ministry portfolio, a government was finally agreed this February. Lebanon had feared that US sanctions might mean badly needed international funds would be cut if Hezbollah took a government ministry. In a fudge to avoid such an outcome, the Health Ministry was eventually given to a person chosen by Hezbollah although not a member of the organisation.

Saad Hariri’s cryptic comment outside the STL courtroom as the trial came to a close last year betrayed the political conundrum he faces: ‘Regarding the Syrian regime, I have no doubt that it had a huge problem with martyr Prime Minister Rafik Hariri. I want to deal with this issue as a responsible official who has the responsibility to protect the country and the Lebanese people.’


Trial in absentia

Significant complication for the STL is that the trial is being conducted in absentia. When creating the ICTY in 1993, the UN rejected the possibility of that tribunal holding total in absentia trials, with the Secretary General saying at the time that a ‘trial should not commence until the accused is physically present before the International Tribunal’.

The STL allows for in absentia trials consistent with its application of Lebanese law, which, like many civil law systems, provides for such an option. Indeed, the European Convention on Human Rights (ECHR) allows for in absentia proceedings subject to certain safeguards. But that still leaves the question of whether an international tribunal, striving for the highest standards of justice, should provide for them and whether doing so may promote the practice in other international tribunals.

For Sareta Ashraph, IBA War Crimes Committee Treasurer, the fairness of such a trial is influenced by what is seen as the main purpose of criminal proceedings: ‘For those for whom the punitive aspect – the punishment – is key, a trial in absentia throws everything into question as there is no way to enforce the sentence. Others may view the purpose of trials more broadly: for example, to bring justice to victims; to create a framework for compensation; to create a historical record; to uproot a culture of impunity; and to deter future crimes. For those people, the legitimacy of the process is not undermined by the absence of the accused from the process.’

Natalie von Wistinghausen, Co-Vice Chair of the IBA War Crimes Committee and a defence lawyer for one of the accused in the Hariri case, has experienced the reality of such a trial and points to some of the difficulties: ‘The practical difference is of course not to have a client (to discuss the case with, to consult, to visit in prison, etc) but this has huge legal implications,’ she says. ‘The mere fact of not being able to consult your client and take instructions or to have strategic decisions approved by the client narrows your procedural field of action. It has an impact on the investigations you can (or rather cannot) conduct, the decision to cross-examine witnesses, to call your own witnesses or experts, or to introduce documents to the proceedings.’

The evidence in the STL case is complicated and revolves around a number of phone networks. Broadly speaking, it links the accused’s telephone numbers to movements and events connected with the assassination. But, convincing though this evidence may be in its high level of coincidence, the case is almost entirely built around it, with very limited forensics to directly link the four accused to the crime.

According to von Wistinghausen, it is hard to assess whether the fact that the prosecution evidence is circumstantial was any more, or less, prejudicial to the defence without having heard her client’s version of events: ‘But of course, if we had had a client who had testified, it may very well have weakened or completely destroyed the circumstantial evidence alleged by the prosecution. But this also applies to any other kind of evidence that would have been produced by the prosecution.’


Kick-starting the rule of law

With all the historical and political complications, how likely is it that the Tribunal has made a difference to the stability of Lebanon and contributed to rule of law in the country? The final verdict is yet to come, but perhaps some of the Tribunal’s greatest successes so far can be found outside the courtroom.

At the request of the Beirut and Tripoli Bar Associations, the STL holds annual training sessions on international criminal proceedings for Lebanese lawyers. Moreover, in 2011, the STL (in cooperation with The Hague-based Asser Institute) established a programme in international criminal law that is now offered at 11 Lebanese universities.

No such course existed before in Lebanon or, as far as is known, in the wider region. With 800 students having now graduated from the programme, the next generation of lawyers, academics and judges may help to incorporate higher standards of justice into the Lebanese legal culture.

Professor Georges Masse of the American University of Science and Technology in Beirut suggests the programme’s influence may go beyond education, describing it as ‘the best attempt towards reconciliation in Lebanon, because it brings together universities and students from different backgrounds’.

Nevertheless, the latest annual survey of the World Justice Project Rule of Law Index ranks Lebanon a dismal 89 among 113 countries. Considered from this angle, it may seem relevant to consider whether a comprehensive long-term legal reform programme should have been funded alongside the STL.

‘Given that international tribunals are almost certainly going to prosecute a very small minority of the potential accused, it is essential for accountability that funding be directed towards the improvement of the national legal system,’ says Ashraph.

The STL does not mean anything to us at all and its rulings are of no value regardless whether they are condemnation or acquittal rulings

Hezbollah

Ashraph’s comments highlight another problem faced by an international tribunal that was set up primarily to deal with one case but has taken 416 trial days. This is a large number in comparison with other international courts, such as the ICTY and ICC, which have concluded almost all cases in considerably shorter times, whether resulting in convictions or acquittals.

It’s easier to make the argument that an acquittal by an international tribunal, after expenditure of massive resources, demonstrates that the legal process is fair when there are convictions in other cases before the court to justify its raison d’être. Thus, it may be harder to hold the STL up as heralding a new dawn for justice or deterrence in Lebanon, or the wider region, if it doesn’t deliver what some may consider a ‘result’ in its main case.

Perhaps a longer-term perspective is needed once a verdict has been delivered. ‘It is also a bit too early to assess this impact since we are still awaiting judgment in the Hariri case,’ says Kavran. ‘We hope that trials at the STL, through their transparency, demonstrate what the rule of law looks like at the international level and assist those in Lebanon who are responsible for implementing the rule of law nationally.’

Charles Rizk, Lebanese Minister of Justice at the time of Hariri’s assassination, says of those who criticise the Tribunal: ‘These people have to give me an alternative.’

In Rizk’s view, there has to be a way to break the cycle of violence in Lebanon and the STL is at least a starting point.

First to tackle terrorism

The STL has incontrovertibly contributed to the practice of international tribunals in its creation of a permanent independent Defence Office. Defence lawyers at other international tribunals have for a long time complained of poor resources and institutional disadvantage vis-à-vis better-resourced prosecution offices, but the OPCD at the STL has helped to support equality of arms.

‘At the STL – through the existence of an independent and well-funded Defence Office – the defence teams are well staffed and receive the resources they need to conduct investigations,’ says Natalie von Wistinghausen, Co-Vice Chair of the IBA War Crimes Committee and a defence lawyer for one of the accused in the Hariri case. ‘We had no problems at all investigating in Lebanon (after the Defence Office had provided assistance regarding the cooperation of the Lebanese authorities).’

The IBA, with several non-governmental organisations, campaigned vigorously in 2015 for the maintenance of the stature and independence of the ICC's Office of Public Counsel for the Defence (OPCD) when it appeared that the Court may be planning to make changes that could restrict the effectiveness of a defence office in international courts, which the STL had shown was a positive innovation.

The STL offers a chance – within its narrow jurisdiction – to start the much-needed work of proper investigations and fair trials for crimes in Lebanon

Sareta Ashraph
Treasurer, IBA War Crimes Committee

The STL also has a unique jurisdiction. Wajed Ramadan, the STL’s Spokesperson, explains that it is ‘the first international tribunal to hold trials for the crime of terrorism. The STL’s work can set an example for the international community and the Middle East. It is also the first international tribunal with jurisdiction over crimes committed in an Arab country.’

Despite strenuous efforts by the UN over many years, agreeing an internationally accepted definition of a crime of terrorism has proved elusive, partly due to the ‘terrorist’ or ‘freedom fighter’ debate. But, in 2011, the Appeals Chamber of the STL concluded, somewhat controversially, that an agreed definition of the international crime of terrorism had developed via international customary law and treaties.

Though some academic commentators argue that there remains a lack of consensus as to a detailed definition of the crime of terrorism in international law, it should be acknowledged that the STL decision has made a valuable contribution to the emergence and definition of such a crime.


(From top left): Judges Walid Akoum, Janet Nosworthy, David Re, Micheline Braidy and Nicola Lettier preside over the courtroom of the Special Tribunal for Lebanon in The Hague, The Netherlands, 16 January 2014. REUTERS/Toussaint Kluiters/United Photos


Some of the STL’s problems stem from the manner of its creation and raise questions of how the international community should respond to requests to establish tribunals or initiate prosecutions. Do those making the requests understand what they are requesting and what it entails? Would Lebanon and the Lebanese have wanted a tribunal if they had known there would not be any verdict in the case for 14 years, noone to punish – assuming there is a guilty verdict – and that it would cost well over €0.5bn, 49 per cent of which has been paid by Lebanon?

The international community may, and should, feel a moral responsibility when asked for help from a country struggling with conflict and rule of law-related issues. It is hard to ignore such requests.

But should there be greater thought given to the long-term effects and benefits by, for example, adding domestic legal reform conditions with guaranteed funding as a condition for setting up a tribunal or insisting on a broader mandate to pre-empt accusations of partisanship?

The destiny of the Tribunal is still inextricably linked to politics in Lebanon, where accountability has a poor historical record. Fourteen years have passed since the Hariri assassination and politics in the Middle East has moved on. Will the Tribunal’s eventual verdict now be seen as an irrelevance for the rule of law in Lebanon and does justice delayed mean not only justice denied, but justice no longer desired? Or will a final reckoning in a court of law, albeit conducted in absentia, set Lebanon on a new path? We will soon know.

Anne McMillan is a freelance writer. She can be contacted at mcmillan.ae@gmail.com