How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
Ever since the UN Security Council created it in mid-2007, the Special Tribunal for Lebanon -- the international court charged with prosecuting those responsible for the February 2005 assassination of former Lebanese Prime Minister Rafik Hariri and associated attacks -- has been the object of intense vexation. Thursday's unsealing of the tribunal’s indictments, which named four men (two of whom are suspected Hezbollah members), is the latest turning point in the prolonged history of a controversial body.
Syrian President Bashar al-Assad warned UN Secretary-General Ban Ki-moon months before the STL was established that it would lead to “grave consequences that could not be contained within Lebanon”; Hezbollah has pronounced it a Zionist plot; and in December 2010, Iranian Supreme Leader Ali Khamenei declared its forthcoming findings “null and void.” In January, Hezbollah and its allies, backed by Syria, withdrew from the government of Prime Minister Saad Hariri, son of Rafik, causing its collapse. Hezbollah and Syria sought a new government and prime minister that would be prepared to end Lebanon’s cooperation with the tribunal. Days later, on January 17, the STL prosecutor issued his first indictments, which were kept confidential pending their confirmation by the tribunal’s pretrial judge. The tribunal will probably not proceed to trials until October.
The special tribunal emerged out of UN investigations that were launched in the immediate aftermath of the bombing that killed Hariri. In April 2005, the UN Security Council unanimously authorized a full inquiry into the assassination, setting up the UN International Independent Investigation Commission (UNIIIC). The move marked an unprecedented intervention in a matter normally considered a domestic crime. It stemmed in part from the international community’s fear that if Hariri’s killers were not held accountable, assassinations in Lebanon would continue regularly, indefinitely, and with impunity.
UNIIIC functioned under Chapter VII of the UN Charter, meaning that all UN member states were required to cooperate and that noncompliance could be penalized with the use of force. Initially headed by a Berlin prosecutor, Detlev Mehlis, it produced reports in October and December 2005. In these documents, the body’s team of seven international prosecutors fingered Syrian officials and their Lebanese associates as suspects. Mehlis believed that indictments against at least two people, including one senior Syrian operative, were already almost viable.
Fearing that his country’s judicial system could not cope, Lebanese Prime Minister Fouad Siniora appealed to the United Nations for a tribunal “of international character.” Mehlis and UN Secretary-General Kofi Annan felt that stiffening existing Lebanese courts with an international legal team might expedite justice. The United States, France, and senior Lebanese politicians instead supported Siniora’s proposal for a special tribunal, located outside Lebanon, with Lebanese and international judges. In the meantime, from June to December 2005, there were three more murders and two attempted murders of politicians and journalists who were critical of Syria and its Lebanese allies.
Threatened with death, Mehlis resigned in January 2006 and was replaced by Serge Brammertz, a Belgian prosecutor. As UNIIIC became absorbed in staffing issues and reviewing evidence, the Syrians faced less investigative pressure. Still, in his quarterly reports to the UN Security Council through 2006 and 2007, Brammertz confirmed that the motive for the Hariri killing was political -- a response to the prime minister’s campaign to reduce Syrian influence in Lebanon. He also confirmed that the assassination conspiracy required significant logistics capabilities and involved many people, and he linked other murders and attempted murders to it. Brammertz made little visible progress in the investigation before he handed it over to the Canadian prosecutor Daniel Bellemare in January 2008, but neither did he suggest anything that contradicted his predecessor.
By November 2006, UN and Lebanese legal experts produced a draft protocol for the special tribunal, which the UN transferred to Beirut for Lebanon to pass through its government and parliament. Pro-Syrian ministers, including those from Hezbollah, promptly resigned in order to block its approval, but on November 15 the government approved the agreement with a two-thirds quorum. In reaction, the Syria-aligned speaker of parliament refused to convene a session, which made approving the agreement impossible under the Lebanese constitutional process. In May 2007, the government appealed to the Security Council to confirm unilaterally the protocol and establish the tribunal, which the Security Council did, again deploying Chapter VII powers. It took two years of selections and negotiations, but by March 2009 the tribunal had its international and Lebanese judges, a site of operations in The Hague, and a chief prosecutor -- Bellemare. The UNIIIC was disbanded; the investigation was now the work of the tribunal’s prosecutors.
More assassinations accompanied the emergence of the tribunal; within one week of the government’s approval of the tribunal protocol in November 2006, Lebanon’s series of political murders recommenced after a year’s lull. Over the next 14 months, three more parliamentary deputies from the anti-Syrian bloc were killed, along with a capable general who was likely to become army chief and a police officer who was investigating the Hariri case. Between October 2004 and January 2008, 58 people were killed and 335 wounded in 13 incidents, a string of events that marked the most dramatic and sustained political murder campaign since the Cold War.
The final victim of that assassination campaign was Lebanese Internal Security Forces Captain Wissam Eid, who was killed by a car bomb on January 25, 2008. His analysis of cell-phone communications had implicated Hezbollah in the Hariri killing, diverting attention from Syria. It is unclear why the assassination campaign stopped then, but the killing in Damascus of Imad Mughniyeh, Hezbollah’s intelligence commander, only two weeks later may have had something to do with it. Perhaps, some think, he was involved in the Lebanese murders, and his death conveniently got rid of leads up the chain of responsibility.
Through 2009 and 2010, STL investigators interviewed Hezbollah personnel, and in July 2010, Hezbollah’s leader, Hassan Nasrallah, said he expected party members to be charged. Bellemare, STL’s chief prosecutor, also recommended the release of four Lebanese intelligence officials detained since August 2005 on the advice of UNIIIC, citing insufficient evidence for the STL to keep them in custody. The release was a blow to those convinced of the culpability of Lebanese officials associated with Syria, but it also threw the spotlight on Hezbollah. Discreetly backed by Syria, Hezbollah denounced the tribunal, demanding that Lebanon stop cooperating with it and arrest so-called false witnesses, people who had allegedly given misleading testimony to the UN inquiry.
Bellemare’s submission of indictments to the STL’s pretrial judge in January 2011 ended skepticism about the tribunal ever producing anything. Within Lebanon, Saad Hariri and his partners, reduced by defections to a parliamentary minority for the first time since the victory of the March 14 coalition in the 2005 elections, are not in such a weak position as they might appear. New Sunni Prime Minister Najib Mikati, who, on June 13, 2011, finally formed the government Bashar al-Assad required, would face the fury of most of his own community were he to do Shiite Hezbollah’s bidding against the tribunal. And if Lebanon were to decline to cooperate with a tribunal backed by Chapter VII of the UN Charter, it would be in breach of its international obligations and thus invite sanctions. The STL’s Lebanese judges would still be beyond the country’s jurisdiction, and Lebanese funding can always be replaced. And if Lebanon fails to deliver suspects, the tribunal can try them in absentia.
In various respects, the STL represents a new direction for international justice. Unlike other special courts, such as those set up for the former Yugoslavia, Sierra Leone, and Cambodia, it concentrates on a single event: Hariri’s assassination. For the first time, international justice has extended beyond war crimes and crimes against humanity into political murder and terrorism. The fact that the STL was created by the UN Security Council but relies predominantly on Lebanese domestic law also makes it unique. Other mixed courts involving the United Nations and sovereign governments operate under a combination of domestic and international law. The tribunal has improved on its precedents by having special selection panels for judges and the chief prosecutor, which insulate the process from political bargaining in the Security Council. Unlike the International Criminal Court and the Sierra Leone tribunal, the STL can conduct a trial in absentia, which allows the court to function if it is unable to secure those indicted.
Although some of these features create problems, the problems should not be exaggerated. The Security Council’s establishment of a court “of international character” to implement domestic law presents a challenge to state sovereignty. But the Lebanese government requested the move, and the majority of the Lebanese parliament was ready to assent to the court. Another issue is that the STL does not require other states to hand over witnesses and suspects. Compared with the UN inquiry, it is toothless. But the Security Council could swiftly remedy the deficiency with a resolution requiring such cooperation, for example from Syria.
Indeed, the STL will proceed because the Security Council cannot allow murder suspects to destroy an international judicial institution. There are, however, more pertinent measures of success than simply proceeding. First, will the STL be able to convict those who ordered the Hariri assassination and associated crimes, not just those who carried them out? The investigation’s recent interest in Hezbollah personnel probably addresses only middle and lower levels of the conspiracy. If the masterminds of the murder campaign can escape punishment, international justice’s venture into assassination and terrorism will become a farce. Second, can the STL maintain credibility in Lebanon if it becomes less Lebanese? There is reason to be optimistic: half of Lebanon will back the STL in virtually any circumstance, and the skillful deployment of the evidence by the prosecutor over months of judicial sessions has a decent chance of winning over much of the other half.
Success for the STL is the only serious route to ridding Lebanon of a culture of impunity and paving the way for real pluralist politics free of terror and murder. The special tribunal, of course, is not addressing the mass of war crimes and human rights abuses in Lebanon since 1975. But in the real world, it is the only available instrument for beginning to crack the wall.