Justice Served? The Special Tribunal for Lebanon Renders Its Long-Anticipated Judgment

8/20/2020

By Nour El Bejjani Noureddine, Sibley Hawkins, and Elena Naughton

The massive explosion that went off in Beirut during the afternoon of August 4, 2020 changed the city and the lives of everyone affected forever. The confirmed number of people killed now stands at around 180, with over 6,500 more injured and an estimated 300,000 left homeless. It is unsurprising then that the focus on the country’s myriad urgent dilemmas might get diverted, at least for a time, in the face of such devastation and suffering and while the full scope of the humanitarian crisis comes to light. Calls for independent investigations into circumstances leading to the disaster, meaningful accountability for those responsible, and justice for victims now take center stage.

Yet, for the Lebanese people, this tragedy is but one of the many in the country, some ongoing and some more historically distant. Each has left a lasting imprint on Lebanese society and politics, and each is but a part of a long legacy of egregious wrongdoing and entrenched impunity that continue to harm citizens with each passing day.

On Tuesday, August 18, all the world was reminded of that bigger picture. Nearly two decades after Lebanon’s former Prime Minister Rafik Hariri was brutally assassinated in a car bombing, the Special Tribunal for Lebanon (STL) delivered a long-awaited conviction. The judgment found Salim Ayyash guilty of conspiracy to commit a terrorist act, committing a terrorist act, the intentional homicide of Hariri and 21 others, and attempted homicide of the 226 injured. Despite all the information and elements linking the three other defendants to certain aspects of the plot, the tribunal did not find enough evidence that they were aware in advance of the conspiracy and thus acquitted them of all charges. While the judgment noted that both Hezbollah and Syria may have had motives to eliminate Hariri, it stopped short of finding either party responsible.

As a result, the initial response to the verdict has been mixed. For some, the verdict offers some justice for the many victims who died that day and those who still suffer the repercussions. For many, however, it is little more than a pyrrhic victory, with only one convicted conspirator in a much larger conspiracy perpetrated by many. And because the Trial Chamber cannot order reparations, the victims are left with no good options for pursuing compensation other than initiating an arduous process in a national court.

The split verdict makes an uncertain situation even more tenuous. Many fear that the verdict will intensify existing tensions among different political and religious factions, further destabilizing a country that has already reached a dangerous breaking point. Former Prime Minister Saad Hariri (son of Rafik Hariri) hailed the verdict for sending “a message to the killers that the era of political crimes is over,” but also acknowledged that much more needs to be done to ensure that “justice [is] served so that the criminals are clearly brought to justice.” Adding to all the uncertainty is the fact that Lebanon was already on the brink of economic collapse when the coronavirus pandemic arrived, exacerbating the dire financial crisis. Then again, the country’s economic freefall could also mean that the verdict will fail to capture the public’s attention as so many struggle just to put food on the table, a reality made all the more harsh now that food imports through the port have been rendered nearly impossible.

However, given the power of Hezbollah—which is classified as a terrorist group by several countries—its influence in Lebanese politics, government, and society, and the country’s heightened attention on those in power, the verdict will more likely than not reverberate with Lebanese people at home and around the world. The conviction of a member of Hezbollah represents at least a chink in the wall of invisibility that the group has painstakingly built over decades. Still, it was not the resounding judgment that many hoped it would be.

The STL in Context

The STL was officially established in 2009 pursuant to United Nations (UN) Security Council Resolution 1757 to investigate the 2005 bombing that killed 22 people, including former Prime Minister Rafik Hariri, and injured many others. It is a hybrid tribunal, the first of its kind to deal with terrorism as a distinct crime.

Since its creation, public opinion has been divided about the tribunal’s legitimacy. Hezbollah, which has always considered the STL to be part of an Israeli conspiracy against the resistance movement, has so far ignored the verdict, consistent with its policy of not cooperating with a tribunal that it does not recognize as legitimate.

Other opponents of the court say it violates Lebanese sovereignty and that foreign powers have politicized and manipulated it. They also criticize its narrow mandate, which focuses on an admittedly horrific political assassination but does nothing to address either the country’s long history of political violence and serious human rights violations, including those committed against thousands of people during the civil war. These crimes have never been properly investigated, and many Lebanese simply do not understand why an expensive UN-backed tribunal was established that excludes them from its jurisdiction. That objection resonates even more now as Lebanon struggles to find a way to proceed with an independent investigation and to prosecute crimes connected to the recent explosion that destroyed Beirut’s port and large swaths of the city.

Supporters, in contrast, consider the STL to be an important international mechanism for pursuing accountability, breaking the cycle of violence in Lebanon, and giving voice to the many victims. Moreover, they argue that the STL could inspire other countries in the region to establish similar measures. Its jurisprudence and case law on terrorism as an international crime could serve as a blueprint for this developing area of law, and the court’s decisions upholding fair trial proceedings may provide positive inspiration for national and regional courts dealing with similar cases. Finally, supporters point to the STL’s outreach activities in Lebanon, which have effectively raised public awareness about international criminal justice and human rights.

The STL was in fact established upon the request of the Lebanese government, which recognized that the national judiciary could not safely carry out the inquiry alone given the highly politicized nature of the crimes. Its purpose was to ensure that the criminal proceedings were credible and consistent with the lengthy, complex, and resource-intensive investigation of the bombing. For security reasons, the STL is located on the outskirts of The Hague, Netherlands, rather than in Lebanon. The tribunal’s first president, Judge Antonio Cassese, attempted in earnest to limit proceedings, consistent with Article 21 of the court’s statute, “to an expeditious hearing of the issues raised by the charges” and ensure the judges “take strict measures to prevent any action that may cause unreasonable delay.” Unfortunately, as with many other international tribunals, the STL’s progress has been slow. Weighed down by a heavy bureaucracy and the challenges of building a case based on cell phone records, the tribunal has moved its trials forward at a sluggish pace, incurring astronomical costs over a prolonged period and making it an easy target for opponents.

What the STL Has Accomplished

As the judgment shows, the STL was able to successfully conduct trials in absentia, consistent with Lebanese criminal law and civil law traditions. This is crucial because otherwise the pursuit of justice would have been stopped before it began since the defendants were unwilling to cooperate with the STL, and the state refused to hand over the accused. Instead, the trials in absentia proceeded, consistent with the rights of the defendants. Other international and national courts could benefit from the STL’s lessons learned and best practices with regard to these procedurally complex trials. This is especially true since the proceedings created a public record of the political machinations at play in the months leading up to the assassination, even if the judgments were ultimately narrow and found “no evidence that the Hezbollah leadership had any involvement in Mr. Hariri’s murder and [that] there is no direct evidence of Syrian involvement in it.”

The substantial credible evidence entered into the record, which included 297 witness testimonies, 3,131 exhibits, and 415 court hearings, shed considerable light on political violence in Lebanon, even if much of it was largely circumstantial. Although the accused never appeared before the tribunal, more than 70 victims (through their representatives) took part in the trials over the course of six years. The STL’s innumerable oral and written decisions also offer guidance on complex evidentiary issues, such as the use of cell phone data records in criminal proceedings and the possible inferences that can be drawn from them.

That said, prosecutions alone (even those that end in a conviction) do not achieve justice, broadly conceived, particularly in contexts where numerous perpetrators have committed a massive number of violent crimes and abuses. Justice means not only formally prosecuting perpetrators, but also acknowledging past violations and the harm they caused victims, providing reparations, undertaking truth-seeking and truth-telling initiatives, guaranteeing equality before the law and equal access to legal institutions, and reforming institutions.

In this sense, the STL could be considered a transitional justice mechanism with a narrow focus on criminal prosecution that was conceived in isolation, without other processes to accompany it—such as a truth commission or a reparations program—that could have worked in tandem with it to achieve a more expansive justice. Hearteningly, on July 15 of this year, President Michel Aoun swore in members of the Lebanese National Commission for the Missing and Forcibly Disappeared, marking a move toward such a justice.  The commission represents the first official opportunity since the end of the country’s 1975-1990 civil war for families of the victims to learn the fate of their loved ones and, if deceased, the location of their remains.

Looking Ahead

In March 2018, the UN Secretary-General António Guterres extended the STL’s mandate for three years until March 2021. The Secretary-General can extend it further upon the request of the STL’s president and after consultation with the Lebanese authorities. The STL thus continues to pursue justice for crimes in connection with the 2005 bombing. In September 2019, right when the high-profile Ayyash et al. trial was ending, the STL made public new criminal charges against Salim Ayyash, the only one of the four defendants accused of the Hariri assassination to be convicted, relating to his alleged involvement in attacks targeting Lebanese politicians in 2004 and 2005. The STL’s mandate will likely need to be extended by several years in order to adjudicate this case, based on the complexity of the charges and the average length of trials. Hopefully, though, given the experience the tribunal has gained thus far, it can render a judgment more expeditiously, assuming that the government can meet its commitment to fund 49 percent of the tribunal’s budget.

Despite the criticism, the STL’s verdict on August 18 is a rare instance in which a perpetrator was exposed and held responsible for a political assassination in a country where well over 20 prime ministers and other senior officials have been murdered in recent decades. Until the STL, criminal accountability for most of these killings was never pursued. While the verdict on its own may not satisfy the need for justice and truth in Lebanon, it still remains a small step on the way to creating a culture of accountability in Lebanon and the region, where serious crimes are often committed with impunity.


PHOTO: A memorial to Prime Minister Rafik Hariri stands at the site in Beirut where he was assassinated. (Adeeb Farhat, August 18, 2020)