David Prater, J.D. Candidate 2012, University of Maryland
The Special Tribunal for Lebanon (“STL”) recently published the indictment against four men accused of conspiring and carrying out an assassination against former Lebanese Prime Minister Rafik Hariri. International and Lebanese arrest warrants have been issued for Salim Jamil Ayyash; Mustafa Amine Baderrine; Hussein Hassan Oneissi; and Assad Hassan Sabra.
The STL was constituted by the United Nations Security Council at the request of the Lebanese Government after the Cedar Revolution of 2005. The STL is a unique experiment that gives an international tribunal jurisdiction over domestic crimes related to terrorism. But, the publication of the indictment indicates the tenuousness of the experiment.
How an internationally constituted tribunal was given jurisdiction over wholly domestic crimes requires an historical and political examination.
Background
Lebanon is in the central Levant and is a multi-confessional society where political power is distributed among the Christian, Muslims, and Druze faiths. Lebanon was a founding member of the United Nations, but collapsed into civil war in 1975. During this time Syria and Israel occupied various parts of Lebanon. It was during the occupation that Hezbollah emerged as a Shia militia to resist Israel’s occupation. Syria recognized the reach of Hezbollah and began sponsoring the organization’s activities to counter Israel. After the Taif Agreement to end the Lebanese Civili War, Hezbollah was permitted to remain armed and operate as Lebanon’s de facto southern defenses.
Well after the end of the civil war, Syria maintained its presence with the assistance of pro-Syrian officials. Countering Syrian influence were western financed and backed politicians like Rafik Hariri. In 2004, Hariri, serving as Prime Minister, protested the election of pro-Syrian President Emil Lahoud. Hariri’s opposition to near plenary Syrian influence and occupation laid the foundation for the emergence of a broad anti-Syrian coalition from Lebanon’s many disparate groups.
On February 14, 2005 over 1,000 kilograms of TNT detonated in van near Hariri’s motorcade. Hariri and 21 others died from the blast and over 200 by-standers were injured. This event is thought to have inspired the Cedar Revolution where popular sentiment protests brought an end to Syria’s near 30 year military presence. However, it is likely that Syrian intelligence operatives continue to operate inside Lebanon. The full U.N. investigation and report on the Hariri assassination can be read here.
Backed by a still strong anti-Syrian coalition, Lebanon requested the United Nations Security Council to investigate and constitute an international tribunal to try the culprits behind Hariri’s assassination and other political killings that followed. The Security Council passed resolution 1664 in March 2006 to constitute the tribunal.
In July 2006, Hezbollah, still a close ally of Syria, conducted a cross border raid into Israel capturing and killing five Israel soldiers. Israel responded with military campaign against Hezbollah and Lebanon that devastated public infrastructure but failed in its objective to dismantle Hezbollah. The war fractured public opinion over Hezbollah’s role and split the once strong anti-Syrian coalition along largely confessional lines.
Hezbollah emerged from the war politically stronger in Lebanon and became part of the government in 2008. Meanwhile, the tribunal continued its investigation and the likelihood of Hezbollah’s involvement in Hariri’s assassination became more apparent. In January 2011, Hezbollah left government causing the coalition that emerged after Hariri’s assassination to collapse. Hezbollah replaced the coalition with its own in June and backed Najib Mikati as prime minister.
All the while, Hezbollah has criticized the STL as a U.S. and Israeli plot to discredit Hezbollah and exert undue influence in Lebanon.
It is in this context that the STL sealed an indictment against four men with associations to Hezbollah and only weeks later requested the tribunal to amend the restrictions on the indictment.
An Uncertain Future?
The STL was constituted with overwhelming Lebanese and international support. This changed, however, after the emergence of Hezbollah as a powerful member of the government.
The indictment names four Hezbollah members who conspired in the assassination of Hariri. The prosecutor’s initial request to seal the indictment was based on an assumption of a cooperative Lebanese security sector that would detain and deliver the accused. Moreover, the indictment revealed a complex network of cellular activity and other crimes by the accused and pointed toward a larger conspiracy, likely including other members of Hezbollah.
Lebanon failed to arrest the accused and the STL published the indictment with the names of the four accused. Hezbollah’s reaction was a predictable denunciation of the STL. Now, the STL has publically committed itself to trials, whether the accused are present or not (trials in absentia are abhorred in common law jurisdictions, other countries, like Lebanon, permit such trials). The independent defense office at the STL is uncertain about whether the accused will appear or not.
What is unclear at this point is how the indictment will reflect on Hezbollah in Lebanon. The unsealing of the indictment could have a ‘name-and-shame’ effect, where perpetrators become pariahs in the international community, and domestically as well in this case. On the other hand, it could play right into Hezbollah’s hand and provide more ammunition for Hezbollah’s calls to no longer fund the STL. A trial in absentia would similarly be fodder for Hezbollah.
What is clear is that the broad-based coalition that supported the creation of the STL is no longer in power and western-backed interests are marginalized. But, Syria’s domestic problems with protestors could mean that Hezbollah will have to find legitimacy and independence in a multi-confessional Lebanon. Such legitimacy could be difficult if Israel maintains it current posture and declines to react over-aggressively to provocative incitements and challenges as it did in 2006.
The indictment could provide the catalyst to reconstitute a broad-based anti-Syrian coalition; or, it could be an embarrassing miscalculation that risks the credibility of the STL.
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