The Special Tribunal for Lebanon (SLT) will issue its long-awaited judgment tomorrow in the Ayyash et al. case involving the 2005 assassination of former Prime Minister Rafiq Hariri in Beirut. Hariri was leading an effort to end Syrian interference in Lebanon, which suggests a potential motive for his assassination by Shi’ite Hezbollah, historically aligned with Syria (and Iran for that matter). The trial has proceeded since 2014 with the defendants in absentia. The release of the verdict was first delayed due to the pandemic and then again more recently out of respect for the victims of the Aug. 4 port explosion in Beirut and the period of public mourning that followed. When it comes out, the verdict will no doubt add to the long-simmering political tensions in the country. This post sets the scene for the release of the judgment; future coverage will analyze the opinion and its impact once it is released.
The case involves four accused, who are all presumed to be members of Hezbollah, a political party in Lebanon but also a specially designated terrorist organization in the United States and elsewhere. (In 2016, the Appeals Chamber terminated the proceedings against a fifth defendant, Mustafa Amine Badreddine, when it emerged that he had been killed in Syria while commanding Hezbollah fighters, perhaps in an air strike, perhaps at the hands of his superiors.) The original indictment was confidential, but was eventually unsealed in 2011 in an effort to flush out the defendants and ensure notice of the charges. The STL’s Defense Office assigned defense counsel to represent the rights and interests of the defendants, although they have presumably operated without instructions from their clients, who remain at large.
Much of the evidence in the case involves highly technical cell phone and security camera data, connecting the defendants (or at least their phones) to key locations around Beirut in the lead-up to the bombing. The prosecution’s case is built on this circumstantial evidence and expert testimony explaining its significance. In this regard, the STL will set important precedent for the admissibility of such modern forms of digital forensics (including call metadata) and the degree to which judges will be willing to draw inferences of criminal liability from it.
The Birth of the Special Tribunal for Lebanon
Some background on the tribunal itself: Immediately after Hariri was assassinated, the United Nations Security Council issued UNSCR 1595 (2005), which established an International Independent Investigative Commission (“UNIIIC”) under Chapter VII to “assist the Lebanese authorities in their investigation of all aspects of this terrorist act, including to help identify its perpetrators.” The UNIIIC struggled to get full cooperation from both Lebanon and Syria and determined that the initial Lebanese investigation into the bombing had been flawed, and called for an independent international investigation. As is often the case, this commission of inquiry served as a precursor to the creation of a judicial institution.
Thus, in December 2005, Lebanon requested the Security Council establish a tribunal of an international character to prosecute perpetrators identified by the UNIIIC. The council turned to the Secretary-General for assistance in formulating a response. The Secretary-General’s report recommended the establishment of a mixed tribunal with national and international characteristics with respect to jurisdiction, applicable law, location, composition of personnel, and funding.
Based on these building blocks, the Security Council passed UNSCR 1664 in 2006, which called for the United Nations and Lebanon to negotiate an agreement to bring an international tribunal into fruition. Once finalized, the agreement was never ratified by Lebanon due to intense domestic opposition among some political factions. In light of this political deadlock, supporters within the Lebanese government (which at the time made up a majority in the legislature) then asked the U.N. Secretary-General for assistance bringing the tribunal into operation. Then-Secretary General Ban Ki-moon assented, but with reservations.
To this end, the Security Council passed UNSCR 1757 (2007), which included the STL’s constitutive Statute as an annex. The resolution ultimately bypassed Lebanon’s domestic constitutional order and brought the bilateral agreement and the proposed STL Statute into force under Chapter VII of the U.N. Charter. Concerns about the resolution’s unprecedented intervention into Lebanon’s domestic affairs and legislative independence generated five abstentions (including by Russia and China) during the vote in the Council, but no veto. The UNIIIC was essentially folded into the Office of the Prosecutor of the STL, although the two entities operated concurrently for a spell.
Notwithstanding its Security Council provenance, the STL, unlike the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is not a subsidiary organ of the United Nations, but rather a standalone international institution. Having begun operations in 2009, it remains highly controversial within Lebanon and a flashpoint in the country’s serial political crises.
Moreover, nothing in the operative UNSCRs established a firm obligation among U.N. members — even Syria, which is presumed to be behind the assassination — to cooperate with the Tribunal, notwithstanding its Chapter VII imprimatur. Originally envisioned to be in existence for three years (per Article 21 of the U.N.-Lebanon Agreement), the STL’s lifespan has been extended in light of the fact that the prime suspects in the Hariri assassination remain at large.
The STL’s Unique Operation
Among the other ad hoc and hybrid tribunals, the STL is unique in a number of ways. For one, rather than asserting jurisdiction over a large and varied crime base, the STL is largely focused on a single discrete incident: the 2005 assassination (which resulted in the death of twenty-two people and hundreds of injuries). At its founding, concern was expressed that limiting jurisdiction to Hariri’s assassination alone would give the impression of selective justice, so the STL Statute contemplates the prosecution of related violence. Specifically, the STL has jurisdiction to investigate and prosecute:
individuals responsible for other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, [that] are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005.
Article 1 of the STL Statute indicates that “connected” acts will be determined through a consideration of “criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.” So far, this includes a number of contemporaneous attacks against high-profile political figures and journalists as well as the targeting of public places. These cases remain under investigation.
Rather than providing for jurisdiction over the full international criminal law canon, the law being applied by the STL is drawn exclusively from Lebanese Penal Code provisions concerning terrorism, offenses against personal integrity, and the crime of illicit association. The STL is thus the first international tribunal to assert jurisdiction over purely domestic crimes and crimes of terrorism stricto sensu, although ICTY did adjudicate as war crimes acts of violence with the primary purpose of spreading terror among the civilian population, as is prohibited by Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II to the Geneva Conventions of 1949. The STL is also the first internationalized tribunal to focus on international crimes committed in the Middle East. So far, the perpetrators of war crimes in other conflicts in the region have escaped comprehensive justice.
During the formation of the STL, there was some discussion about including crimes against humanity as a prosecutable offense, but this proposal was ultimately rejected by Russia and the United States, likely for fear of lowering the threshold for the crime. A proposal to incorporate by reference the Arab Convention for the Suppression of Terrorism, which contains a regional definition of terrorism, was also rejected. Not without controversy, the Appeals Chamber issued a 2011 Interlocutory Decision on the STL’s applicable law, which suggested ways to harmonize Lebanese domestic law with the customary international law on terrorism (a concept that is itself contested). The Appeals Chamber has also issued important jurisprudence on the crime of criminal association under Lebanese law. The final verdict will no doubt incorporate elements of these two opinions.
Although the STL Statute suggests that it has primary jurisdiction over natural persons only, the STL prosecutor brought charges against two media outfits on the basis of allegations that their journalists interfered with the administration of justice by leaking information about protected witnesses. The Appeals Chamber ruled that the STL could assert jurisdiction over the corporate entities for contempt and obstruction of justice — becoming the first international tribunal to assert jurisdiction over legal persons since the Nuremberg Tribunal convicted a number of Nazi organizations. One set of media defendants was convicted and fined. These verdicts join several other contempt verdicts emanating from the other ad hoc tribunals following efforts to interfere with the administration of justice, an emerging phenomenon in international criminal justice.
From the perspective of criminal procedure, the STL judges are to be “guided, as appropriate, by the Lebanese Code of Criminal Procedure, as well as by other reference materials reflecting the highest standards of international criminal procedure, with a view to ensuring a fair and expeditious trial.” One significant departure from Lebanese law concerns certain penalties, namely the death penalty and forced labor, which exist under national law but are not available to the STL. Consistent with Lebanese law, the STL allows in absentia proceedings under prescribed circumstances: there must be adequate notice of the indictment (publication or notification to the nationality state of defendants suffice), defense counsel must be assigned to represent the rights and interests of the accused, and defendants must retain an unconditional right to a retrial in their presence. Presumably, this retrial could happen before Lebanese courts in the event that the accused resurfaces after the STL has concluded its work, although one commentator has suggested that any retrial would have to occur before a reconstituted STL or its residual mechanism. In this regard, the STL is the first international tribunal since Nuremberg to allow for this option (defendant Martin Bormann was tried in absentia — and likely posthumously as it turned out), even though such trials are not necessarily contrary to international human rights law so long as certain conditions are met. Only one of the defendants, Hussein Hassan Oneissi, presented evidence in his defense.
Pursuant to the combined funding mechanism of the STL, roughly half (49 percent) of the tribunal’s budget comes from Lebanon. Voluntary contributions from the international community make up the other half, with significant backing from the United States, whose strong support reflected its opposition to the pernicious influence of Syria and Iran in the region. Although there have been instances of extreme delays, Lebanon has always managed to deliver its share (often in the waning days of the payment period), notwithstanding ongoing security threats, a coalition government that includes Hezbollah, internal political dissension, and an economic crisis made worse by the influx of Syrian refugees. The high cost of the tribunal ($1 billion and counting) as Lebanon teeters on the edge of economic crisis, and the singular focus on the death of a single elite in the midst of so much suffering and violence, is a source of persistent criticism.
Given the STL’s unique provenance, and its contentious operation to date, the reception of the ruling in Lebanon and the region could become a new flashpoint. If the in absentia defendants are convicted, it could upset the tripartite political arrangement within Lebanese politics between the Sunni, Shi’ite, and Christian communities (which share the country’s leadership due to a 1943 National Pact on power-sharing). The defendants will be entitled to contest the verdict in a retrial if they are captured or if they turn themselves in. If, however, they are acquitted, it will be a source of acute disappointment for many Lebanese, who have been waiting years to learn what happened on that fateful day in 2005, and especially for the 70 victims who have participated in the proceedings, at great personal risk. It also remains to be seen if the judges wade into the wider political context of the assassination — and potentially implicate Hezbollah, which could have far-reaching implications within Lebanon and the region — or they stay focused on the individual criminal accountability of the accused.
IMAGE: (L-R) Judges Walid Akoum, Janet Nosworthy, David Re, Micheline Braidy and Nicola Lettier preside over the first hearing in the trial of four people accused of murdering former Lebanese premier Rafiq Hariri at the Special Tribunal for Lebanon in The Hague on January 16, 2014. Four Hezbollah members went on trial in absentia at a UN-backed tribunal accused of murdering Hariri in a 2005 car bombing, with sectarian tensions running high at home. (Photo by TOUSSAINT KLUITERS/AFP via Getty Images)