The Dilemma on the Special Tribunal for Lebanon

The Special Tribunal for Lebanon (STL) was established by the UN Security Council Resolution (UNSCR) 1757 (2007) to investigate the former Lebanese prime minister Rafiq Hariri’s murder and try to suspects. The tribunal is an interesting precedent among the international criminal and war crime courts and tribunals. The activities of the criminal courts established to investigate the alleged war crimes in the former Yugoslavia and Rwanda – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (UNICTR) – are based on suspicion of war crimes or other breaches against International Humanitarian Law (IHL). The International Criminal Court (ICC), situated in The Hague, was also established to investigate these types of crimes in 2002. Lebanon, however, has not ratified the Rome Statute of the International Criminal Court, nor has the US. Thus, Lebanon is not a member of the ICC. Before the STL, no international tribunal had been established to investigate the murder of a head of state. Thus, the STL can be viewed as a precedent. Consequently, the actions of the special tribunal have to be scrutinized thoroughly. Another distinction, compared to other special tribunals on war crimes, is the fact that the STL’s activities are based upon the Lebanese criminal law whereas the other tribunals use international law and/or humanitarian law as their basis.

Rafiq Hariri was murdered in Beirut’s city centre in a bomb attack in February 2005. Along with the prime minister, 22 other people died in the attack. The killings of leading politicians are nothing new in Lebanon, a state built upon many internal contradictions and tensions. These contradictions still exist due to the way the key positions of the government are shared among the country’s different religious groups, following the Taif Agreement of 1989 ending the Lebanese civil war. Lebanon’s president is a Christian, the prime minister is a Sunni Muslim and the Speaker of the Parliament is a Shi’a Muslim. This treaty-based way of governing has taught the people of Lebanon to conduct dialogues and seek consensus between the different religious groups. Nevertheless, the consensual power- sharing system is increasingly prone to demands for changes when the number of people identifying themselves with one religious group changes in relation to that of other groups.

Formerly, the Christians represented the majority in Lebanon. In recent years, the balance has shifted to the advantage of the Muslim population. The Muslims in Lebanon are divided into the groups of Shi’a and Sunni, whereof the Shi’a have their strongest support in southern Lebanon. Even after the end of the French mandate in Lebanon, the country was never free from outside actors’ interference shaping its domestic politics. The status and number of Palestinian refugees living in the country has been the subject of continuous debate, and the relationship between the Lebanese and Palestinians has remained tense. The Palestinian refugee camps in Lebanon were granted self-rule limiting the Lebanese sovereignty over the camps. Formerly, the Palestine Liberation Organisation (PLO) operated from Lebanon, drawing Israeli military strikes and interventions towards Lebanon. These strikes caused destruction among the Lebanese population and infrastructure. Hezbollah’s ongoing military presence in southern Lebanon has been a similar cause for Israeli strikes on Lebanese territory. Syria, in turn, was for a long time the guarantor and stabilizer of the peace agreement following the civil war. Only a part of the Lebanese, mainly Shia, was in support of the Syrian presence eroding, for its part, the Lebanese sovereignty. Consequently, the Lebanese state structures’ fragility owes both to internal and external factors. The ghost of the violent civil war is still haunting the country.

Immediately after Hariri’s murder, the UN set up the UN International Independent Investigation Commission (UNIIIC) to investigate it, particularly because the United States and France demanded it. In a rather exceptional way, the investigation commission was placed under the auspices of the UN Department for Political Affairs (DPA). The UNSC resolution 1757 (2007), upon the request of the Lebanese Government under Prime Minister Siniora, transformed the commission into a special tribunal working in The Hague. The tribunal has a strong mandate. Just like the war crime tribunals for the former Yugoslavia and Rwanda, the STL was established under Chapter VII of the UN Charter. Decisions to launch UN peacekeeping missions are usually based on the very same chapter, in which the UNSC has been given the right to intervene in order to preserve international peace and security. The strong mandate makes the STL in itself already an instrument of intervention in addition to being a tribunal having the goal of executing a normal criminal justice process.

After the murder, a scapegoat was looked for in every direction. In this chase, the media played a considerable role. The chain of events supports an interpretation of the overall situation, according to which the US estimated that an impartial tribunal might make it possible not only to solve the crime but also to reach certain political goals in Lebanon and its immediate surroundings. The STL could not prevent itself from being burdened by the label of a politically motivated court. And considering the recent history of Lebanon, it would have been naive to think that an international criminal investigation would not have political implications. The bomb attack of 2005 and the following investigation were immediate causes for the Syrian withdrawal from Lebanon later in the year.

The stages of the STL’s criminal investigation have been subject to much writing, yet its progress has remained unclear. The initial course of the investigations has changed, and the first suspects who were arrested have been released after more than four years in detention. The investigations are just as challenging as with the other war crime tribunals. Gathering evidence and finding witnesses is extremely difficult. After a few rather quiet years, the tribunal hit the newspapers’ headlines once again when information regarding the upcoming indictments was made public. According to this information, the indictments would make Hezbollah in some way responsible for the murder. This information released on the tribunal practically paralysed the functioning of the Lebanese government, since the target of the suspicions was an organisation whose support of the Lebanese government was crucial for it to operate and stay in power. The government fell in January 2011. Following that, there were attempts to form a government on a basis which would be able to receive Hezbollah’s support, and eventually a Hezbollah-backed government was established in June 2011.

The work of international criminal courts is not fast, and it cannot be fast in order to sustain the credibility of its criminal investigation procedures. The ICTY and UNICTR have been working for almost twenty years, yet their work has not been finished. The scope of one murder’s investigation (and that of a few others which were added to the mandate later) is of course much smaller than in the cases of Yugoslavia and Rwanda. Nonetheless, one cannot suppress the feeling that the criminal investigation’s tardiness, aggravated by the difficulties posed by the operational context in the Middle East, was not considered thoroughly when demanding the investigation and establishing the tribunal. This is also shown by the fact that the working contracts of the investigation commission of 2005 were only of three months’ duration.

The events in Lebanon, including domestic and external policies as well as relations with the neighbouring countries, were moving forward at a different pace than the tribunal’s work. The war between Hezbollah and Israel in the summer of 2006, Hezbollah’s demonstration of power in Beirut in the summer of 2008, and the easing of the Lebanese-Syrian and Syrian-Saudi Arabian relations were all factors which came to influence the evaluation of the tribunal’s work and the expectations put into it. Additionally, these later developments neutralised the expectations the US had put into the tribunal as a tool for reshaping the political landscape in the Middle East. Bringing perpetrators to justice is a justified demand; at the same time, a criminal investigation ought to remain a criminal investigation, which serves the purpose of implementing justice. When the object of investigations is a political context, laden with tensions, implementing justice becomes even more challenging.

Currently, it seems as if the intervention supported by the strong Chapter VII mandate might shake the foundations of the whole state, having a potential to drive it into a new civil war. In face of such a situation, one must ask oneself if the demand for implementing justice is still justified. The ICTY was blamed for being politicised and partial. Questions related to war and peace have always been political, and there is no activity in the Middle East without a political dimension. The fulfillment and service of justice becomes questionable if the activity of a tribunal – if only indirectly – leads to the loss of peace and stability, which in the worst case leads to the suffering of civilians; and is in direct contradiction with the UN Chapter VII under which the tribunal operates. The most controversial outcome of this would be the fact that one UN Resolution regarding the principle of protecting civilians conflicts with another resolution, which causes suffering for the civilians. However, the UN resolutions must have the weight which belongs to a global international organisation. One must be careful not to close one’s eyes to the possibility that the international community may be used as an instrument for furthering short-sighted political goals in order to reshape the international political framework – in this case on the regional level. However, particularly in the Middle East, the actions of the international actors will also be judged against the background of how much and how earnestly individual resolutions are being implemented. The resolutions’ credibility weakens if they are being produced without the means to reach the goals they aim at. This applies especially if resolutions are instruments for pursuing political goals. In addition, a trial in absentia would further undermine the STL’s credibility.

In the case of Lebanon, in order to solve Hariri’s murder and to preserve the authority of the UN, it is to be hoped that the STL will reach a clear conclusion, one in which the indictees suspected of the crime are proven guilty. Putting the blame collectively on some group will not increase the trust in the outcome of the process. The work of the special tribunal can hardly be viewed as successful if the outcome is a tinderbox of new violence or even civil war. Justice cannot be provided for one on the cost of another. The Lebanese have a right for security and peace in their own country.

There were good reasons for the establishment of the court, the least of them certainly not being the fact that in face of the absence of the Lebanese people’s trust in their own judiciary, an international tribunal was required. In hindsight, maybe the most important contribution of establishing the commission and later the tribunal has been the enhancement of national crime investigation procedures in Lebanon. This was, of course, not the actual objective of the investigations. Considering the special tribunal, the most important point regarding Lebanon’s future is the tribunal’s succeeding in its criminal investigations, not the achieving of any possible political goals associated with its establishment.

The question about the necessity of international criminal investigations has surfaced again as some governments have resorted to violence in the wake of the Arab Spring in order to suppress the people’s movements. Recently, this has been suggested in the case of Syria. The international Criminal Court (ICC) has already indicted the Libyan leader Muammar Qaddafi. Whatever the decision may be, it should be based upon the experiences gathered from the establishing and functioning of previous war crime tribunals and from other international criminal investigations. Although the work of the STL remains unfinished, now is the time to learn from its lessons.

Ari Kerkkänen is the director of the Finnish Institute in the Middle East based in Damascus. He has worked among others with the International Criminal Tribunal for the former Yugoslavia in The Hague in 2002 – 2005.

Translated by Timmy Trümpler