Wed, Sep 16, 2020

The limits of the Special Tribunal for Lebanon and what Syrians can learn

MENASource by Reem Salahi and Bachar El-Halabi

Lebanon Middle East Politics & Diplomacy Syria

Judge David Re, Presiding Judge, Judge Janet Nosworthy and Judge Micheline Braidy attend a session of the United Nations-backed Lebanon Tribunal handing down a judgement in the case of four men being tried in absentia for the 2005 bombing that killed former Prime Minister Rafik al-Hariri and 21 other people, in Leidschendam, Netherlands August 18, 2020. REUTERS/Piroschka Van De Wouw/Pool

We are often taught to believe that international judicial accountability is the ultimate resolution for crimes committed. Yet, after eleven years of adjudication and nearly $1 billion spent by different stakeholders, the Special Tribunal for Lebanon’s (STL) judgment on August 18 demonstrated that justice is not necessarily delivered by international courts. Indeed, like most international bodies and mechanisms, they can be subject to political whims, legal hurdles, technical bureaucracies, obstruction, protracted proceedings, and high costs. In the case of the STL, these obstacles hollowed the mandate of the Tribunal and ultimately resulted in a deficient verdict unable to influence Lebanon’s increasing social, political, and economic woes.

As the first international tribunal set up to adjudicate international crimes committed in the Middle East, the STL will undoubtedly serve as a reference point for any future international judicial mechanism. However, for many Syrians who have witnessed some of the most egregious human rights violations, the STL’s findings—limited to a single individual—are not a welcome outcome. The STL’s shortcomings provide multiple lessons for future accountability in Syria; judicial mechanisms need to be insulated from political meddling and pressure, justice requires a multi-faceted approach, and, most importantly, transitional justice is a necessary precondition for subsequent accountability efforts.   

The Special Tribunal for Lebanon

Unlike the International Criminal Tribunals of the Former Yugoslavia and Rwanda that dealt broadly with war crimes, the STL had a limited mandate to hold trials for the people accused of carrying out the February 2005 attack, which killed former Lebanese Prime Minister Rafik Hariri and twenty-one others. In addition, the tribunal had jurisdiction over the series of terrorist attacks against Lebanese politicians Marwan Hamade, George Hawi, and Elias El-Murr between October 2004 and December 2005 as “connected cases” to the February 2005 attack.

Established in 2010, the STL and the United Nations-led investigation that preceded it faced a myriad of problems, including lack of cooperation by the Lebanese security agencies, who were dominated by the Bashar al-Assad regime at the time, and the political parties of the March 8th coalition, dominated by Lebanese militant group Hezbollah. They also endured ongoing judicial obstruction and the UN’s lack of political will to issue indictments, such as when then UN Secretary-General Kofi Annan warned German Prosecutor Detlev Mehlis that “he did not want another trouble spot.” But, most alarmingly, there were multiple assassinations of Lebanese security and political figures alongside other purported assassination attempts, resulting in Mehlis’s premature resignation. This happened after he had created a list of close to twenty suspects that contained high-ranking Lebanese and Syrian officials.

Under the shroud of these challenges, the Tribunal limited its findings of guilt to Salim Ayyash, an unknown, yet senior, Hezbollah operative. In building its case against Ayyash, the STL relied on circumstantial evidence of cellphone records that revealed attempts to track Hariri’s movements. Lebanon’s top terrorism investigator at the time, Wissam Eid, who uncovered the telecommunication links to Hezbollah’s operatives in 2006, was subsequently assassinated in 2008 by presumably the same people who assassinated Hariri.

While the court alluded to the fact that the Assad regime and Hezbollah may have had motives to eliminate Hariri and his political allies, it failed to make a definitive link due to a purported lack of evidence, but, more realistically, because of a lack of political will. Indeed, the proceedings against top Hezbollah military commander Mustafa Badreddine were terminated prior to reaching a judicial finding due to his death in Syria in 2016. Yet while the court tried to prosecute Badreddine, it failed to indict the other top Lebanese and Syrian suspects identified by the prosecutor. 

Lessons for Syria

To date, previous attempts to refer the situation in Syria to international courts have failed despite the occurrence of some of the most heinous crimes, including the use of chemical weapons, the mass displacement of over 12 million people, and the wholesale destruction of large parts of the country. And, while we are unlikely to see an international tribunal for Syria anytime soon, the STL provides important lessons that both Syrians and the international community should consider in their continued push for justice and accountability.

Insulating tribunals from political meddling

One of the main limitations of the STL was the political meddling by Lebanon’s—and presumably Syria’s—ruling class that ultimately resulted in the separation of the legal process from the broader political context that spawned the tribunal. In a televised interview, former Lebanese Minister of Justice Charles Rizk admitted that Article 3 of the STL, defining individual criminal responsibility, came about as a result of direct negotiations with Hezbollah’s Secretary-General Hassan Nasrallah. Consequently, the tribunal was restricted—and arguably handicapped—by its technical mandate to find individual criminality without gathering sufficient evidence to answer the fundamental questions of who ordered the killing(s) and why. And indeed, while the tribunal made reference in its 2,600-page ruling to broader political motivations, it lacked the direct evidence to implicate either Hezbollah or Syria in the crimes.

Furthermore, political pressure created a proverbial ceiling for the Tribunal, resulting in investigative incompetence and a lack of political will to identify new suspects or issue indictments for identified suspects—including top Lebanese and Syrian officials—and even in the release of imprisoned suspects. Ultimately, the Tribunal only convicted Ayyash in absentia without establishing further connections up the chain of command.

Given the extreme risks of political meddling, Syrians and the international community should work to ensure that any future international accountability mechanism will have sufficient autonomy to investigate and prosecute not only individuals, but, more importantly, the political bodies and systems behind the crimes committed in Syria. True accountability should not only account for past crimes but help put an end to a long-lasting culture of impunity that allows for the reoccurrence of such crimes. This can only occur when calls for justice are not appropriated by political interests and meddling.

Justice requires a multi-faceted approach

Following the assassination of Prime Minister Hariri, millions of Lebanese took to the streets in what was known as the ‘cedar revolution’ demanding freedom, sovereignty, and independence. This popular movement, coupled with international pressure, resulted in the most tangible change in Lebanon’s recent history: the withdrawal of Syrian troops from Lebanon after twenty-nine years of military occupation. A similar spirit of popular resistance has been reborn again—this time, calling for a complete overhaul of the confessional system that has been responsible for rampant corruption, sectarian governance, and lack of transparency.

Similarly, Syrians have taken to the streets time and again to demand for political reform, freedom, and justice. Syrian civil society has played a fundamental role in organizing, documenting, and advocating for judicial accountability, which has paved the way for European courts to apply universal jurisdiction to cases tied to a few types of international crimes. These efforts have resulted in the issuance of international arrest warrants against Ali Mamlouk, Jamil Hassan, and Abdel Salah Mahmoud—some of the Syrian regime’s top intelligence officials—and have prompted the ongoing trial against two Syrian intelligence officers in Germany.

Yet, while many Syrians view international courts as the ultimate bearers of justice, the STL is a stark reminder that international courts come with many limitations. In highly politicized contexts, like in Lebanon and Syria, even international courts can be subject to negative influences. Accountability in such contexts cannot and should not rely exclusively on international courts and mechanisms. Rather, the approach to accountability must be multi-faceted and include the use of other jurisdictions (e.g. universal jurisdiction), advocacy, a strong civil society, and, ultimately, the daunting task of breeding a culture of social justice.

Transitional justice: A precondition for accountability

Despite ending thirty years ago, the Lebanese Civil War continues to impact Lebanon’s present day. The Taif Agreement—Lebanon’s peace accord—granted general amnesty and immunity to the warlords responsible for the death of over 150,000 people, the displacement of over one-fourth of the total population, and the destruction of large parts of the country, and precluded any attempts at meaningful justice or accountability. It also cemented the confessional power-sharing arrangement in Lebanon, further entrenching rampant corruption and militia-style governance.

As a result, decades later, the establishment of the STL failed to bring about meaningful accountability or help spur an end to the culture of impunity that has reigned supreme in Lebanon since the end of the civil war. Indeed, political assassinations continued to take place even after the STL’s inception.

Like Lebanon, Syria is unlikely to see any real transitional justice in the foreseeable future. Despite the international and UN resolutions calling for accountability and a transition to a country that respects the rule of law, very little has been done to realize these demands. At present, the Syrian political process has been reduced to negotiating a constitution, a legal text that cannot guarantee true political transition or social justice. Indeed, calls for accountability have often been dismissed by international parties and even UN mediators as impediments to the peace process rather than necessary preconditions. Yet, without this transitional foundation, any future attempts at international accountability will likely be compromised and deficient, similar to the Lebanese case.  

While the STL, for the first time, arguably established—directly and indirectly—who was behind one of the many political assassinations that has rocked Lebanon for decades now, many in Lebanon hoped that it would break the country’s long cycle of impunity for political killings. Unfortunately, its findings only highlighted the endemic corruption of Lebanon’s ruling class and militias and exposed the true susceptibility of international mechanisms, particularly in hyper-politicized environments. Sadly, the STL’s verdict came only two weeks after sheer criminal political negligence caused one of the largest man-made explosions in history, further devastating the ravaged country.

Despite the STL’s shortcomings, one can only hope that it will not create a chilling effect on the calls for international accountability in present-day Lebanon, Syria, and elsewhere. Rather, it should highlight the need for true political and social reform, transitional justice, an empowered civil society, and an insulated judicial mechanism that is shielded from political pressure and interference. Without these measures, we risk accountability efforts being nothing more than flimsy bandages on gashing wounds.

Reem Salahi (JD) is a non-resident scholar at the Middle East Institute’s Syria program and a senior advisor to the International Commission on Missing Person’s (ICMP) Syria/MENA program.

Bachar El-Halabi (LLM) is the Middle East and North Africa Geopolitical Analyst for ClipperData Analytics, NYC. Follow him on Twitter @Bacharelhalabi.