Transitional Justice for Lebanon:
The Special Tribunal for Lebanon -
the key to national convergence, or a new
recipe for strife?
Master thesis Political Science
‘International Relations’: Power and resistance in the Middle East
Name: Arthur Blok (10373004)
First reader: Dr. Anne de Jong
Second reader: Dr. Vivienne Matthies-Boon
Date: June 2014
3
Abstract
Transitional Justice is a broad term used for a variety of legal measures taken to address a country’s violent past. Often the wrongdoings of predecessor regimes or atrocities committed during a war. A typical transitional justice measure in this respect is the establishment of national or international courts.
The Special Tribunal for Lebanon (STL) is the most recently established international court. It was set up in 2007 by the United Nations Security Council after a request was filed by the then Premier Foad Saniora to prosecute and try the suspects involved in the
assassination of former Premier Rafik Hariri. Lebanon did not have the means to seriously deal with the assassination and its aftermath without assistance. Lack of political consensus in Lebanon on the subject of the STL created a status quo in which the Council used Chapter VII of the UN Charter to force through the establishment of the tribunal. Since that moment it is one of the main topics that politically divides Lebanon. At the same time it is the first state-sponsored transitional justice measure in a country that has a long tradition of impunity.
This thesis is intended to help to determine the scenarios in which an international court actually helps a society to come to terms with its past or when it harms that process. It is also meant to identify if there is a scenario in which the majority of the political parties in Lebanon could come to terms with each other over the STL.
To make this contribution, the central research question: ‘How does the discourse around the Special Tribunal for Lebanon reflect the dynamics between the various political parties inside Lebanon?’ was answered with a case study on the STL. The research methods used were made up of a series of journalistic interviews conducted over a period of five years, and a critical discourse analysis in combination with a literature study.
Ever since its inception the STL has been mired in juridical controversies, ranging from a general impression it was forced upon Lebanon, to the many exceptionalities in its statue and its narrow mandate. These matters caused a political debate and led to the politicization of the court.
This thesis concludes that the STL was used in the past years in the rhetoric of the various political parties to fit a certain political agenda, and their own ends. The dynamics between the parties are reflected by the politicization of the court, with a long political crises as a result. Despite this there are signs visible in the discourse that a point of convergence could be reached. Consequently, the future effects of the STL as a transitional justice measure for Lebanon remain uncertain.
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Table of content
Abstract p. 3
List of abbreviations p. 5
Introduction p. 6
1. The establishment of the STL, and the role of foreign actors p. 15
2. Legal controversies, considerations, and the main political arguments p. 25
3. Development of the discourse from mid-2008 until early 2014 p. 36
Conclusion p. 51
Bibliography p. 55
Appendix I: List of interviewees p. 60
5
List of abbreviations
CBC - Canadian Broadcast Corporation
ECCC - Extraordinary Chambers in the Courts of Cambodia
FPM - Free Patriotic Movement
ICC - International Criminal Court
ICCPR - International Covenant on Civil and Political Rights
ICTR - International Criminal Tribunal for Rwanda
ICTY - International Criminal Tribunal for the former Yugoslavia
LF - Lebanese Forces party
MP - Member of Parliament
SCSL - Special Court for Sierra Leone
STL - Special Tribunal for Lebanon
TRC - South African Truth and Reconciliation Commission
UN - United Nations
UNIIIC - United Nations International Independent Investigation Commission
UNSC - United Nations Security Council
6
Introduction
Transitional Justice is a broad and complex term used to address a country’s past often in combination with a history of conflict or repression. It can be defined as ‘the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes’.1
The concept does not refer to a special kind of justice but more to an approach in times of transition where justice is adapted to the specific needs of a transforming society. It seeks recognition for victims, or the promotion of possibilities for peace, reconciliation and democracy. 2
Typical Transitional Justice measures include the set-up of national- or international tribunals, and reconciliation- or truth-seeking commissions. Some known historical examples are the Nuremberg and Tokyo War Crimes trials that were held in the aftermath of World War II.
Transitional Justice arose as a field of practice, and as a field of scholarly inquiry in the 1980’s and 1990’s. It emerged in response to political changes occurring in Latin America, Africa, and in Central and Eastern Europe after the fall of the Berlin Wall, and in South Africa with the fall of the Apartheid regime. The transition processes in most of these states into a more democratic and open society was followed with a public demand to address human rights abuses committed by former regimes3.
Some known more recent examples to support these processes of transitions include two ‘ad hoc’ tribunals created by the United Nations (UN): the International Criminal Tribunal for the former Yugoslavia (ICTY), and the South African Truth and Reconciliation Commission (TRC).
An important step in the institutionalization of Transitional Justice is the signing of the Rome Statue in 1998 that came into effect in 2002 with the opening of the International Criminal Court (ICC) in The Hague. The ICC is a permanent international court that tries individuals for ‘the most serious crimes of international concern, namely genocide, crimes
1 Teitel, R.G. (2003). Transitional Justice Genealogy. Harvard Human Rights Journal, 16, p. 69
2 Website ICTJ (2014). What is Transitional Justice Factsheet, New York. ICTJ website, retrieved 8 March 2014: http://ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf
3 Andreevska, E. (2013). ‘Transitional Justice and Democratic Change: Key Concepts’, Lex Et Scientia
7 against humanity, war crimes and the crime of aggression’.4
Kaminsky et al. (2006) signal a trend towards what they call ‘tribunality’ by the international community that culminated with the signing of the Rome Statue.5 As a mere illustration of this trend there are - besides the ICC, the ICTY, and the TRC - many recent examples of so called hybrid national-international courts such as: the International Criminal Tribunal for Rwanda (ICTR) established in 1994, The Extraordinary Chambers in the Courts of Cambodia (ECCC) in 1997, The Special Court for Sierra Leone (SCSL) in 2002, and the Special
Tribunal for Lebanon (STL) in 2007.
Another important step in the institutionalization process is the acknowledgment by the Secretary General of the UN Kofi Annan in 2004 of the importance of questions of transitional justice matters for the UN in his report to the United Nations Security Council (UNSC) titled: ‘the rule of law in conflict and post-conflict societies’. In this report Annan introduces the following definition of transitional justice: ‘The full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecution, reparations, truth-seeking,
institutional reform, vetting and dismissals, or a combination thereof’.6
A condition that should be taken into consideration when it comes to assistance of the international community is that this is only necessary in situations where a state or nation is not capable of addressing past atrocities against its people by itself. A status quo that could be caused by a bad or non-functioning judicial system, a partial breakdown of the rule of law, or simply because of lack of proper working institutions.
For this Master-thesis the consequences of the most recent international court that was set-up with assistance of the international community - the STL - will be analyzed and examined. The STL was established in 2007 after a request was filed to the UNSC by the prime minister of Lebanon Foad Saniora to set up a tribunal with an ‘international character’ to prosecute and try the suspects involved in the assassination of former premier Rafik Hariri. Lebanon did not have the means to seriously deal with the assassination and its aftermath by itself. This was caused by a combination of the factors outlined in the previous paragraph.
4 Rome Statute of the International Criminal Court (2011). ‘Article 1 to 5’, ICC The Hague, pp. 2-3 5 Kaminsky, M.M., Nalepa, M., and O’Neill, B. (2006). ‘Normative and Strategic Aspects of Transitional Justice’, The Journal of Conflict Resolution, Vol. 50(3), pp. 296 - 297
6 Annan, K. (23 August 2004). ‘The rule of law and transitional justice in conflict and post-conflict societies’,
8 Relevance
An aim of this thesis is to help examine in which scenario an international court actually helps a society to come to terms with its past, and when it potentially brings harm to the process of stability in a nation it is supposed to help. In this process it is not uncommon that one or more parties being tried could feel for example that they are underrepresented in the justice process, as was also the case in Lebanon. The focus of the Master-thesis will therefore be put on the effectiveness of international tribunals as a transitional justice measure, in particular that of the STL. Central in this thesis will be the establishment of the STL, and its political
consequences for Lebanon.
The STL is the only international court to deal with the consequences of one single terroristic attack. It was established under Chapter VII of the UN Charter, and it was the first time the UNSC described terrorism as a ‘threat to international peace and security’. It is also the first international tribunal to try crimes solely under national criminal law.7 Therefore it is interesting to evaluate the effectiveness as a transitional justice measure.
Another aim of this thesis is to make a contribution to the debate on the effectiveness of hybrid international tribunals in the future. It is also hopes to contribute to knowledge concerning other similar transitional justice measures to help societies to come to terms with its past.
It is also meant to contribute to reoccurring dilemma of how to deal with future - similar - situations where one dominant political faction in a post-conflict country requests the assistance of the international community for help. For example when in the future an
international tribunal will be set-up to judge the atrocities committed in the civil war in Lebanon’s neighboring country Syria.
On the political level this thesis aims to find out if there is a point of convergence on the domestic Lebanese political scene. Is it possible for the overall majority of the Lebanese political parties, and movements to come to terms with each other on the STL?
In order to make this contribution the following central research question is drafted:
How does the discourse around the Special Tribunal for Lebanon reflect the dynamics between the various political parties inside Lebanon?
7 Special Tribunal for Lebanon (2014). ‘Unique features - A terrorism trial’, website STL consulted 11 March 2014: http://www.stl-tsl.org/en/about-the-stl/unique-features
9 In order to answer this central question, the following sub questions are drafted:
- What kind of transitional justice measures were taken in Lebanon’s post-civil war period? - What was the political background in which the STL was established?
- What was the role of international actors in this process? - What are the main juridical reservations surrounding the STL? - What are the main political arguments pro- and against the STL? - Is there a discrepancy between the legal and political arguments? - How did the discourse around the STL develop over the past 6 years?
- Are there points of convergence visible in the discourse of the various political parties?
Considerations and controversies
In the past years controversies and considerations surrounding the work of international tribunals as a transitional justice measure have come to the surface. These controversies, and considerations are attached to the concept of ‘transition’, and some are linked to the concept of ‘justice’.
The above mentioned developments are according to Rosemary Nagy (2008) an illustration that in the past 15 years transitional justice has developed into a ‘global project’, part of the process of globalization. In this context there are reservations that can broadly be divided in five overarching arguments that have to be taken into consideration.
First, since transitional justice has emerged as a body of customary international law and normative standards, Nagy argues that it looks as if there can be no lasting peace without some kind of accounting, and as if ‘truth and justice’ are complimentary approaches. Besides this Nagy gives the example that the international community tends to come up with ‘one-size-fits-all’ solutions, sometimes alien to the senses and needs of those directly involved.8
Lundy and McGovern (2008) also recognize these aspects, they emphasize that the discourse on human rights and transition are part of a unilateralist global project of democracy promotion. Often a Western neo-liberal approach towards the concept of transition from dictatorship into a more democratic society, preferably in combination with a liberal form of democratic accountability. Here the process of transition marginalizes issues, questions and approaches that might challenge the forms of Western governance.9
8 Nagy, R. (2008). ‘Transitional Justice as Global Project: critical reflections’, Third World Quarterly, Vol. 29 (2), pp. 275 -276
9 Lundy, P. and McGovern, M. (2008). ‘Whose Justice? Rethinking Transitional Justice from the Bottom Up’,
10 In this context transitional justice focusses on generating mass compliance with international humanitarian norms, an approach heavily influenced by the ‘international legalist paradigm’, in which to focus is put on the humanitarian norms and values of the Western ‘elite’. As an illustration of this selective approach Nagy gives the example of Iraq where a narrow fixation on judicial mechanisms shields analysts away from asking normative questions about the illegitimacy or justifiability of the foreign occupation of Iraq and whether ‘justice’ is even possible in such a scenario.10
Second the lingua franca on global human rights can be perceived as Western imperialist tendencies argues Kieran McEvoy (2007). The West imposes selective standards of rights and justice to the developing world, in particular to Islamic states. There is also a tendency to ‘oversell’ the capacity of legal institutions as international courts to deliver matters as forgiveness, or reconciliation in post-conflict societies. With unrealizable public expectations as a direct consequence.11
A third controversy attached to transitional justice is the subjectivity of the concept of justice. If atrocities are committed and a new regime takes over, either after the loss of a war or the end of a civilian conflict such as an occupation, a valid question arises ‘whose justice’ is being applied. It is often the winner who brings the defeated party to justice, often stamped as so called ‘victor’s justice’. As was for example the case with the Allied Forces in
Nuremberg and Tokyo War Crimes trials. It was the Allied Forces that decided on the applicable law, and who was to blame for which specific deeds.
In more recent scenario’s Lundy and McGovern add to that that often international courts tend to have a rather ‘donor-driven’ approach towards justice rather than responsive to the exact needs, and wishes of the people concerned.12
James Alexander (2009) provides examples of this controversy in his study to the impact of the ICC on societies. He notices that the ICC and its ad hoc tribunals like the ICTY and ICTR are seen as ‘selective’ in its investigations, and by some as taking sides in disputes. The ICTR is perceived by a segment of the Serbian population as an anti-Serb institution. He illustrates this by the slogan “They are killing Serbs in The Hague” which appeared on apartment buildings in Belgrade. This is also the case argues Alexander for the work of the
10 Nagy, R. (2008). ‘Transitional Justice as Global Project: critical reflections’, Third World Quarterly, Vol. 29 (2), pp. 278 -279 & 281
11 McEvoy, K. (2007). ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’, Journal of
Law and Society, 34(4), pp. 418, 426
12 Lundy, P. and McGovern, M. (2008). ‘Whose Justice? Rethinking Transitional Justice from the Bottom Up’,
11 ICTR where the perception of victor’s justice of the international community and the Tutsi’s was perceived as such by large segments of the Hutu population in Rwanda.13
A fourth factor that should be considered when the effectiveness of international courts is discussed is presented by Dorota Gierycz (2008). The fact that internationally sponsored tribunals are often located in third countries, the ICTR in Tanzania and the other mentioned tribunals in this introduction in The Netherlands, weaken the accessibility and could potentially create a lack of local ownership. This status quo also reduces however the courts exposure to local pressure.14
Finally the costs of international courts are also a factor that should be taken into consideration. Transitional justice often applies to developing countries, with a limited justice budget. The relative high costs could potentially also hinder local ownership.15
Special Tribunal for Lebanon
The STL was controversial in Lebanon from the moment it was established. Lebanon had a long history of violence, political assassinations, and impunity. The Taif agreement that ended the civil war (1975 - 1990) provided an overall amnesty from prosecution for all crimes committed by all local militia-leaders and fighters.16
Hariri was assassinated with a car bomb shortly after leaving the Lebanese parliament on 14th February 2005. Initially an UN investigation team pointed towards Syria for
involvement in the assassination, the neighboring country that de facto ruled Lebanon since the end of its civil war. The assassination was followed by nationwide protests in which people demanded to know ‘the truth’ and an end to the Syrian occupation of their country. This popular uprising came to a climax on the 14th of March 2005. On that day hundreds of thousands Lebanese went out on the streets.17
This uprising was later called the ‘Cedar revolution’. The representatives of the political party of the late Hariri formed a coalition with over 15 other political parties,
movements, and independent politicians that was later named the 14-March-movement, or the
13 Alexander, J.F (2009). ‘The International Criminal Court and the Prevention of Atrocities: Predicting the Court's Impact’, Villanova Law Review, 54(1), pp. 27 - 28
14 Gierycz, D. (2008). ‘Transitional Justice - Does It Help Or Does It Harm?’, Norwegian Institute of International Affairs
15 Lundy, P. and McGovern, M. (2008). ‘Whose Justice? Rethinking Transitional Justice from the Bottom Up’,
Journal of Law and Society, 35 (2), p. 276
16 ICTJ (2014). ‘Lebanon: The Cost of Impunity’, website ICTJ article retrieved 12 March 2014:
http://www.ictj.org/news/lebanon-cost-impunity
17 MacFarquhar, N. (15 March 2005). ‘Huge Demonstration in Lebanon Demands End to Syrian Control’, NY
Times website, retrieved from website on 12 March 2014:
12 ‘anti-Syrian’ alliance. The demand to know what happened grew in society, and the Lebanese government headed by the 14-march-movement at that time asked the UN for assistance.
In May 2007 the UNSC adopted resolution 1757 in which it authorized under Chapter VII of the UN Charter the establishment of the STL. The resolution was adopted with 10 votes in favor, and five abstentions.18 After the resolution was adopted the preparations for the STL continued, despite political opposition at that time inside Lebanon, and the exclusion of the Lebanese parliament in the ratification process. The STL became operational in
Leidschendam as of March 2009, less than two years after resolution 1757 was adopted. During this period political division in Lebanon rose. Mid-2009 rumors appeared for the first time in the media that the attention of the STL investigation team had shifted from Syrian involvement into the direction of Hezbollah.19 This rumor is finally confirmed when the prosecutor of the STL made his indictment public in August 2011.20
The alleged involvement of Hezbollah has a huge impact in Lebanese society. Hezbollah - a Lebanese movement created in 1982 with support from the Iranian
Revolutionary Guards to fight the Israeli occupation of Southern Lebanon at that time - is besides a resistance movement an active part of the political establishment. Just like the 14-March-Movment Hezbollah leads a coalition of political parties and movements. This
coalition enjoys a popular support in Lebanese society. The speculations in the media created unprecedented political tension in the country, and resulted into a political crisis between the two above mentioned coalitions.
The trial against the five suspects - who are allegedly members of Hezbollah - started in January ’14 in absentia. The accused men were never apprehended because the Lebanese government, from which Hezbollah was, and currently is part, has been unable in the past two and a half years to assign its security services to arrest the suspects. As a result until this moment it seems that none of the initial goals that were set by the STL ‘to bring justice and to put an end to impunity’ have been met.
18 UN Security Council (30 May 2007). ‘Security Council Authorizes Establishment of Special Tribunal to Try Suspects In Assassination of Rafiq Hariri’, UN website, retrieved 12 March 2014:
http://www.un.org/News/Press/docs/2007/sc9029.doc.htm
19 Follath, E. (23 May 2009). Breakthrough in Tribunal Investigation: New Evidence Points to Hezbollah in Hariri Murder, Der Spiegel online international, article retrieved 21 April 2014:
http://www.spiegel.de/international/world/breakthrough-in-tribunal-investigation-new-evidence-points-to-hezbollah-in-hariri-murder-a-626412.html
20 Bakri, N. (17 August 2011). ‘Indictment in Hariri Assassination Is Published’, NY Times website, retrieved from website on 12 March 2014: http://www.nytimes.com/2011/08/18/world/middleeast/18lebanon.html
13 Methodology
A case study on the STL will be conducted to answer the research questions of this thesis. The research methods of the case study are made up of a series of interviews, a critical discourse analysis in combination with a literature study.
The literature study will be used to analyze recent writings on the legal controversies surrounding the STL. Many international law scholars conducted research on the
establishment of the STL under Chapter VII, the applicable law of the STL, and other legal aspects and consideration surrounding its jurisdiction, legality, and validity.
The discourse analysis will consist of three levels of analyses: the first part is made up of an examination of journalistic interviews that were conducted in Lebanon from October 2008 until February 2014. In this period representatives of political parties pro- and against the STL were interviewed on a variety of political topics from which the STL was often part. These interviews were held in a semi-structured way. The vast majority of these interviews were recorded, and registered on the concerning date. All of the interviews and recordings were transcribed and are all retrievable up until this day. In Appendix I a complete list of interviewees can be found, including a brief description of their political activities and political affiliation.
The second part of the discourse analysis will be a document analysis. This media analysis will consist of articles published in the media, political speeches, formal party statements, and party positions on the STL as an institute. A complete list of these analyzed statements and documents is added to the Bibliography.
Another purpose of this analyses is to see if there is a change of attitude towards the STL as an institute over the years. The political discourse will be analyzed in four specific moments in time: in the months before - and directly after - the opening of the court in Leidschendam in March 2009, in the period accusations started to appear in the media that Hezbollah had a hand in the assassination until the fall of the government of Saad Hariri on the STL in January 2011, around the time the indictment was unsealed mid-2011 in which Lebanon was waiting for the trial to actually start (until the end of 2013), and in the period directly after the actual start of the trial in January 2014. Finally this data will be used to see if there is a correlation between the legal arguments on the one hand, and the political rhetoric on the other.
14 In the second half of April 2014 I conducted fieldwork in Lebanon. I visited the
country for another ten days in order to have the possibility to conduct some semi-structured interviews if necessary. The purpose of this trip was triangulation of the preliminary results stemming from the analysis of the previous held interviews.
Chapter outline
This thesis upholds the following structure. Chapter one entitled ‘The establishment of the STL, and the role of foreign actors’ will explore the post-civil war period in Lebanon and its aftermath. It will also analyze the establishment of the STL, and the role foreign actors played in this process.
Chapter two titled ‘Legal controversies, considerations, and the main political arguments’ will deal with the legal considerations an reservations made by international law scholars. It will also summarize the main political arguments concerning the STL, and examine if there is a correlation between the two.
The third chapter ‘Development of the discourse from mid-2008 until early 2014’ will analyze the constructed discourse by the various political parties, movements and political figures around the STL over a period of six years.
Finally in the conclusion all results will be evaluated in order to see if there is a point of convergence visible, how effective the STL was as a Transitional Justice measure for Lebanon, and what general lessons could be learned.
15
1.
The establishment of the STL, and the role of foreign actors
To be able to place the political atmosphere in which the STL was established in perspective, some background information on Lebanon’s recent history is important. Were there any transitional justice measures taken in Lebanon’s post-civil war period? How were the crimes and atrocities committed during this period dealt with? What was the role of Syria?
As stated in the previous chapter Syria became the de facto ruler in Lebanon in the nineties: it were the Syrians and their local Lebanese allies who were responsible for security in Lebanon, and the political climate that preceded the Hariri assassination.
Pax Syriana
Lebanon has a long history of internal violence, and is generally seen as a weak state influenced by foreign actors. In the past century during the country’s 15-year civil war it experienced many killings, bomb attacks and political assassinations.
At the end of the civil war in 1990, the warring parties agreed in the Saudi city of Taif on a peace agreement. Since then Lebanon started a long process of rebuilding state
institutions. This process was hindered in the post-war period by the Syrian occupation of the country. Syria, a country that played both a major role in the civil war and at the end of the war, became the main powerbroker in the country. During the nineties it provided overall security, and had a say in the political and judicial course of the country. This status quo remained unchanged until 2005.21
Ghosn and Khoury (2011) argue that several factors have contributed to keeping Lebanon in a state of negative peace in the post-war period. Their main argument is that the Taif Accord helped reconcile former warlords, instead of helping the Lebanese to reconcile. Major grievances between the religious communities remained intact, and the agreement did not address the issue of structural violence, nor did it touch upon the basic human need for security, equality, and durable democracy.22
Another element that hindered the reconciliation process was the general amnesty law that was passed in 1991. In daily practice this amnesty meant a full pardon for abuses
committed by the militias and armed groups throughout the war. There were some exceptions, for example the provision in article 3 of the law where it stated that the amnesty did not
21 Picard, E., and Ramsbotham A. (June 2012). Whose Lebanon? A post-war history of people, power and peace initiatives. Reconciliation, reform and resilience, Positive peace for Lebanon, Accord Conciliation Resources (24), pp. 11 - 12
22 Ghosn, F., and Khoury, A. (2011). Lebanon after the Civil War: Peace or the illusion of Peace, The Middle
16 include ‘crimes of the assassination or attempted assassination of religious figures, political leaders, and foreign or Arab diplomats’. 23 This article was used in a selective way. Human right associations such as Amnesty International criticized the amnesty law because it excluded formal investigations of atrocities, the punishment of perpetrators of human rights, and therefore also hindered the reconciliation process as a whole.
The amnesty law paved the way for selective impunity in the nineties, argue Wierda et al. (2007). Only those opposing the Syrian hegemony were prosecuted for crimes committed during the war. The amnesty also marginalized the victims: crimes against the political and religious elite were ‘unpardonable’ while those against ‘ordinary’ people were not.24
As a result of this unaccountability there is up until this day no common sense of history about what exactly happened during the civil war. Ghosn and Khoury illustrate this by the Lebanese history books that are used in schools: they all end at Lebanon’s independence in 1943.25
In the nineties Syria controlled Lebanon on many fronts: it had a military presence, dominated the security services, and basically took over Lebanese state institutions. The Syrians maintained their control by making sure there were pro-Syrian Lebanese politicians in charge. They installed favorable presidents, prime ministers, and made sure they had a pro-Syrian parliament.26
An illustration of this system of control is provided by El Khazen (1998). In his study on the first post-war election in 1992 he argues that the Syrians influenced the outcomes of elections for their own benefit. Voting constituencies were gerrymandered in such a way as to break the opposition to the Syrian presence. Most of the opposing parties boycotted the 1992 elections, the turnout was at just a little over 30 percent the lowest in Lebanon’s history.27
Throughout the nineties this remained the status quo. There was no room for reconciliation, segregation between the various religious sects remained largely intact. As mentioned this period was characterized by selective justice. Opponents of the Syrian presence - in practice the leaders and supporters of the former Christian militias, the main
23 Amnesty International (October 1997). Lebanon: Human Rights Developments and Violations, Amnesty International MDE 18/19/97, pp. 7 - 8
24 Wierda, M., Nassar, H., and Maalouf, L. (2007). Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon, Journal of International Criminal Justice, 5(5) pp. 1070 - 1071 25 Ghosn, F., and Khoury, A. (2011). Lebanon after the Civil War: Peace or the illusion of Peace, The Middle
East Journal, 65(3), p. 392
26 Shehadi, N., Wilmshurst, E. (2007). The Special Tribunal for Lebanon: The UN on Trial, Chatham House
MEP/IL BP 07/01, p. 3
27 El Khazen, F. (1998). Lebanon's First Postwar Parliamentary Election, 1992: An Imposed Choice, Oxford/ Centre for Lebanese Studies, pp. 25 - 27, 30 -31, 40
17 parties that fought the Syrian influence in the country since the start of the war - were
prosecuted.
An example of this is the imprisonment of the Lebanese Forces (LF) leader Samir Geagea in 1994, and the banning of his party. In a show trial Geagea received four life sentences, and many other partisans were either arrested, imprisoned or fled the country.28 Followers of General Michel Aoun - a Christian general who opposed and fought the Syrian military in the last phase of the war - shared a similar fate of selective arrest and
prosecution.29
As a direct result those people excluded from the Syrian equation developed anti-Syrian sentiments. Representatives of the LF, the Free Patriotic Movement (FPM) of Aoun and other Christian opposition parties and independent candidates started gathering
unofficially as of the late nineties in Qornet Shehwan - a town in the Metn Mountains which is the seat of the Maronite Archbishopric of that district - and formed a new movement. This was known as the Qornet Shehwan Gathering and was also a reaction to the continual amending of the electoral law, and the low Christian participation in the electoral process.
In May 2003 this new coalition adopted seven principles and five objectives. The most important demands of the Gathering were full Lebanese independence, the full
implementation of the constitutional changes stipulated in the Taif Agreement, and the redeployment of Syrian troops to the Bekaa Valley as a preliminary to full withdrawal.30
Internationalization of domestic Lebanese affairs
The Syrian hegemony over Lebanon remained unchanged until mid-2004. In that period Lebanon’s domestic political affairs became internationalized by the adoption of UN
resolution 1559. A resolution coauthored by France and the United States that called for free and fair presidential elections, an end to the foreign occupation of Lebanon and the
disarmament of all armed parties active in the country.31
The resolution was a reaction of the international community to a domestic political crisis caused by an unconstitutional Syrian-engineered extension of the term of President
28 Amnesty International (2004). Samir Geagea et Jirjis al Khoury. Torture et Procès Inéquitables, Amnesty
International MDE 18/003/2004, pp. 2 -4
29 Human Right Watch (1992). Syria and Syrian controlled Lebanon - Human Rights Developments in Syrian-Controlled Lebanon, HRW World Report 1992, retrieved 26 March 2014:
http://www.hrw.org/reports/1992/WR92/MEW2-03.htm#TopOfPage
30 The Middle East Mirror (2003). Qornet Shehwan Gathering, Middle East Mirror website, statement retrieved 26 March 2014: http://themiddleeastmirror.weebly.com/uploads/7/5/3/0/7530186/qornet_shehwan_gathering.pdf 31 UN Security Council (September 2004). Security Council declares support for free, fair presidential election in Lebanon, UN Doc. SC/8181
18 Emile Lahoud. Instead of holding free presidential elections, the parties were forced to change the constitution and accept a renewal of the of the pro-Syrian president's three-year mandate. In this period Hariri - who was then serving his fifth term in office as premier - offered his resignation as an initial response.32
Despite these developments the Lebanese parliament approved the extension of the mandate the day after resolution 1559 was adopted by the UNSC. Four days later the
ministers from Hariri’s government who had opposed the extension resigned from parliament, a month later Hariri himself resigned. In this period his party sought rapprochement with the Qornet Shehwan movement. This incident is generally regarded as a sign that Hariri and his party had started to oppose the Pax Syriana, and the moment that the Syrians started losing control of Lebanese affairs.33
From that point on Lebanon’s internal affairs received continuous scrutiny from the international community. In October 2004 Annan published a report on the implementation of resolution 1559 in which he concluded that none of the provisions in the resolution had been met, and that the developments inside Lebanon remained a priority.34
Assassination of Hariri & UN involvement
It was only after the assassination of Hariri, and former minister Bassil Fleihan - who was in the car with the late premier - for Syria to make the first moves to comply with 1559.
International pressure to withdraw intensified and public opinion in Lebanon changed. Hariri’s murder was instantly seen as an act of Syrian aggression by the international community and certain parties inside Lebanon. On the day of the bombing the U.S. indirectly blamed Syria, and indicated it wanted to bring the case before the UNSC. Simultaneously France demanded an international investigation of the bombing.35 The day after the
assassination Washington recalled its ambassador to Syria.36 UN involvement followed a few days later after France and the U.S. convinced the UNSC to take action to ‘punish those responsible for this terrorist attack’.37
32 Blok, A. (2009). Morgen Misschien, Waarom de problemen in Libanon niet worden opgelost, Just Publishers BV Hilversum, pp. 101 - 103
33 Abboud, S.N., Muller, B.J. (2013). Geopolitics, insecurity and neocolonial exceptionalism: A critical appraisal of the UN Special Tribunal for Lebanon, Security Dialogue, 44(5-6), p. 470
34 UN Security Council (1 October 2004). Report of the Secretary-General pursuant to Security Council resolution 1559 (2004), UN Doc. S/2004/777, points: 15 - 20, 27 - 29
35 Knowlton, Brian (15 February 2005). Finger-pointing begins as nations ask, 'Who?', NY Times website,
retrieved from website 27 March 2014: http://www.nytimes.com/2005/02/14/world/africa/14iht-react.html?_r=0 36 Boucher, R. (15 February 2005). U.S. Recalls Ambassador to Syria, U.S. Department of State Press Release 37 Bouhabib, M.A. (2009). Power and Perception: The Special Tribunal for Lebanon, Fordham Law School, p. 4
19 The UNSC unanimously denounced the bomb attack, calling it a ‘heinous terrorist act’, indirectly connecting it to the ‘war on terror’. Annan was assigned to monitor the situation in Beirut closely and ‘to report urgently on the circumstances, causes and consequences’ in Lebanese society.38
In response to his assignment Annan agreed with the Lebanese government that the UN would send a fact-finding mission to Beirut in order to assist the Lebanese authorities with the criminal investigation. Peter Fitzgerald, a deputy Irish police commissioner, was appointed to head the mission. Fitzgerald arrived within two weeks after the bombing to start his work.39
A month later, on 24 March, Fitzgerald published his findings. Without naming Syria directly he stated that the assassination took place in a ‘political and security context marked by acute polarization around the Syrian influence in Lebanon’ which was the ‘primary responsibility of Syria’. Furthermore he concluded that the Lebanese authorities showed ‘a distinct lack of commitment to investigating the crime effectively’.40
As a direct reaction to this involvement of the international community, a coalition of parties and groups that ruled Lebanon in the nineties led by Hezbollah and Amal (another Shia Muslim dominated movement that was established in 1975 at the start of the Lebanese civil war) staged a demonstration on 8 March in Beirut’s Central District. On a square not far from the protesters that set up a continuous demonstration camp in the days after the
assassination, hundreds of thousands people thanked Syria for their role in Lebanon. They rejected ‘Western interference’ in their domestic affairs. This coalition of parties was later called the March 8 movement.41
The even greater popular uprising a week later, as mentioned in the previous chapter, on March 14 was a direct response to this Hezbollah-led demonstration. The main difference between the two being that the latter had a more multi-sectarian composition: the Christian parties such as the party of Aoun, the Kata’eb, the Lebanese Forces, the mainly Sunni Muslim Future movement of Hariri and the Progressive Socialist Party headed by the Druze-leader Walid Jumblatt, all participated. This demonstration is seen as the largest in Lebanese
38 UN Security Council (15 February 2005). Statement by the President of the Security Council, UN Doc. S/PRST/2005/4
39 United Nations (25 February 2005). UN team starts probe into assassination of former Lebanese Prime Minister, UN News Centre
40 Fitzgerald, P. (24 March 2005). Report of the Fact-finding Mission to Lebanon inquiring into the causes, circumstances and consequences of the assassination of former Prime Minister Rafik Hariri, UN Doc. S/2005/203
41 Sadler, B. (9 March 2005). Hezbollah rallies Lebanese to support Syria, CNN website, article retrieved 27 March 2014: http://edition.cnn.com/2005/WORLD/meast/03/08/lebanon.syria/
20 history.42
On April 7 the UNSC adopted resolution 1595 in which the Council called for the establishment of a permanent International Independent Investigation Commission (UNIIIC) to help the Lebanese authorities with the investigation. The mission was to report within three months to the Council on the Hariri killing. The Lebanese government accepted the
resolution, and as of that moment the UN has had a permanent role in the country.43 These developments pressurized Syria to actually start with the process of withdrawing its troops. The redeployment started in March and on 26 April the last Syrian troops left Lebanon, ending a military occupation that lasted twenty-nine years. Despite the military withdrawal there were doubts about the dismantling of the Syrian intelligence network in Lebanon.44
In June Detlev Mehlis, a German public prosecutor, began his investigations as the head of UNIIIC. He presented the UNSC with two reports in the six months of his prolonged mandate. In his first report he apportioned all blame for the assassination on Syria and their local Lebanese allies. He concluded: ‘given the infiltration of Lebanese institutions and society by the Syrian and Lebanese intelligence services working in tandem, it would be difficult to envisage a scenario whereby such a complex assassination plot could have been carried out without their knowledge’. Mehlis emphasized that ‘many leads point directly towards Syrian security officials as being involved with the assassination’.45
Despite its findings the report seemed to neglect the basic ethics, rules, and principles of criminal investigation. Besides a complete timeline of the course of events, Mehlis’ report included the full names of most suspects, and crown witnesses. This is something uncommon in a criminal investigation, which potentially creates a scenario that would complicate a future trial.
After the report was published the initial consequence was one of further polarization between the two political movements, who after parliamentary elections in May 2005 together formed a unity government. Despite the fact that the elections were won by the March 14 coalition, a broad coalition of parties - including Hezbollah - participated in a March 14
42 Ghattas, K. (14 March 2005). 'Record' protest held in Beirut, BBC World News website, article retrieved 28 March 2014: http://news.bbc.co.uk/2/hi/middle_east/4346613.stm
43 UN Security Council (7 April 2005). Resolution 1595, UN Doc. S/RES/1595
44 Whitaker, B. (27 April 2005). Bravado and cheers as Syrians leave Lebanon Amid celebrations, UN warns that Syria has not yet met all security council demands, The Guardian website, article retrieved 28 March 2014: http://www.theguardian.com/world/2005/apr/27/syria.unitednations
45 Mehlis, D. (19 October 2005). Report of the International Independent Investigation Commission, UN Doc.
21 dominated government headed by Foad Saniora. The only exception was Aoun's FPM who won twenty-one seats in the parliament at the elections.
Establishment of the STL
Mehlis published a second report on December 12. By then Lebanon had experienced a further thirteen bomb attacks, which resulted in the death of an anti-Syrian politician, a journalist, over ten innocent bystanders, and many injured. On the day the UNSC received the second report, anti-Syrian politician and journalist Gebran Tueni was assassinated.46
In a direct response Saniora wrote to Annan requesting the establishment of a ‘tribunal of an international character’ and asking if the mandate of the UNIIIC could be expanded to investigate all of the other above mentioned attacks.47 The latter two requests were
immediately granted by the UNSC with the unanimous adoption of resolution 1644 on 15 December.48
After consulting with the Lebanese authorities Annan published another report in March in which he discussed the possibility of an international court. Given the instability in Lebanon he concluded that a ‘purely national tribunal’ inside Lebanon would not be able to ‘effectively fulfill the task of trying those accused of the crime’. On the other hand an ‘exclusively’ international tribunal would ‘remove Lebanese responsibility’. Therefore he recommended setting up a mixed tribunal outside the country using Lebanese criminal law, preferable through an agreement concluded between Lebanon and the UN in order to create local ownership and to ‘exclude the need to take complementary measures’ to ensure ‘effectiveness of’, and ‘cooperation with’ the tribunal in the future.49
Before the cabinet of Saniora could put the establishment of the tribunal on its agenda, Lebanon experienced the thirty-four-day war with Israel. After the war the two political coalitions failed to agree on the future political course of the country. The Hezbollah-led coalition felt victorious, and demanded a one third share in the cabinet which would give them power of veto on all cabinet decisions. A demand that March 14 rejected. The political division remained unresolved and on 11 November 2006 six ministers loyal to Hezbollah
46 Ghazal, R. (13 December 2005). Gibran Tueni assassinated by car bomb, The Daily Star website, article retrieved 28 March 2014: http://www.dailystar.com.lb/News/Lebanon-News/2005/Dec-13/6536-gibran-tueni-assassinated-by-car-bomb.ashx#axzz2xGhXsIRF
47 Saniora, F. (13 December 2005). Letter from the Chargé d’affaires a.i. of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General, UN Security Council S/2005/783
48 UN Security Council (15 December 2005). Resolution 1644, UN Doc. S/RES/1644
49 Annan, K. (21 March 2006). Report of the Secretary-General pursuant to paragraph 6 of resolution 1644 (2005), UN Doc. S/2006/176, points 2 - 4
22 resigned from the twenty-four-man cabinet.50 The resignation came one day after the UN presented a draft to establish the tribunal, and at the very moment that Saniora wanted to submit the bill concerning the draft to the parliament.51
In the following days the Hezbollah-led coalition initiated street protests to demand the resignation of the government and early elections. Hezbollah considered the government of Saniora to be unlawful, for after their resignation one sect, the Shia Muslims, were no longer represented.52 The demand for early elections was also supported by the parliamentary bloc of Aoun who had signed a Memorandum of Understanding with Hezbollah a year earlier, and did not participate in the government from the beginning.53
The crisis worsened when Saniora wrote to Ban Ki-Moon, the new Secretary-General of the UN, in January 2007 to request that the UN Security Council should pass the tribunal under Chapter VII of the UN Charter. The letter was not made public, but Ki-Moon confirmed he received it.54 On February 6 Saniora signed an agreement with the UN to establish the court. That agreement then had to be ratified by the Lebanese parliament.55 This was rendered impossible by Lebanon’s March 8 speaker of the parliament Nabih Berri who refused to convene parliament to debate and vote on its ratification.56
This status quo remained unchanged. On 4 April sixty-nine Lebanese parliamentarians from March 14 sent the UN a petition urging it to form the tribunal regardless of ratification.57 Mid-May Saniora sent another letter to Ki-Moon and the members of the UNSC in which he urgently requested ‘the Special Tribunal be put into effect’.58
50 Slackman, M. (12 November 2006). Lebanon Talks Collapse as Shiites Vacate Cabinet, The NY Times
website, article retrieved 29 March 2014: http://www.nytimes.com/2006/11/12/world/middleeast/12lebanon.html
51 Lynch, C. (11 November 2006). U.N. Proposes a Tribunal On Lebanon Assassination, Washington Post
website, article retrieved 30 March 2014:
http://www.washingtonpost.com/wp-dyn/content/article/2006/11/10/AR2006111001619.html
52 Bayoumy, Y (8 January 2007). Lebanon opposition to escalate anti-govt protests, Reuters US, article retrieved 31 March 2014: http://www.reuters.com/article/2007/01/08/us-lebanon-government-idUSL0882750020070108 53 Chararah, N. (18 July 2013). Is the Aoun-Nasrallah Alliance Stagnating? Al Monitor, article retrieved 31 March 2014: http://www.al-monitor.com/pulse/originals/2013/07/aoun-nasrallah-alliance-hezbollah-lebanon-politics.html
54 UN Secretary-General (6 February 2007). Secretary-General's press encounter after his briefing to the Security Council, United Nations press service
55 UN Secretary General (6 February 2007). United Nations signs agreement establishing Special Tribunal for Lebanon, UN Doc. SG/SM/10871
56 Bathish, H. (19 February 2007). Berri signals refusal to convene House until government is remade, The
Daily Star website, article retrieved 31 March 2014:
http://www.dailystar.com.lb/News/Lebanon- News/2007/Feb-19/51049-berri-signals-refusal-to-convene-house-until-government-is-remade.ashx#ixzz2xWrSwlh6
57 Ghazal, R. (4 April 2007). March 14 MPs hand over petition calling for UN action on tribunal, The Daily Star
website, article retrieved 31 March 2014:
http://www.dailystar.com.lb/News/Lebanon-News/2007/Apr-04/45137-march-14-mps-hand-over-petition-calling-for-un-action-on-tribunal.ashx#ixzz2xWwHu9ze 58 Saniora, F. (14 May 2007). Letter dated 14 May 2007 from the Prime Minister of Lebanon to the Secretary-General, UN Doc. S/2007/281
23 A day later the Lebanese president sent a letter to Ki-Moon warning him that
Lebanon’s constitution had been breached by Saniora. In the Lebanese constitution it states in article 52 that all international decisions of the cabinet should be reached with the inclusion of the president ‘in agreement with the prime minister’.59
Lahoud warned that if Saniora’s request were to be granted it would potentially ‘increase anxiety’ in Lebanese society and risk the tribunal being regarded as politicized or used for political purposes ‘which would ultimately rob it of its capacity to produce the juridical results expected of it’.60 Lahoud emphasized that Lebanon’s National Pact of 1943 has been breached.61
Despite these objections the UNSC adopted resolution 1757, a text coauthored by the US, France and the United Kingdom on 30 May 2007 with ten votes in favor and five
abstentions. It stipulated that the establishment of a tribunal should commence after 10 June outside of Lebanon, unless the parties were to reach agreement in the intervening period. The UNSC used Chapter VII of the UN charter to make the resolution binding, and criticized the role of the Lebanese Speaker. The five countries that abstained from voting62 questioned the impact that the resolution would have on Lebanon’s sovereignty, and the fact that it might politicize international law as such. Despite these reservations the establishment of the STL became a fact.63
In the background the UNIIC continued its work under Mehlis' successor Serge Brammtertz, a Belgian jurist who at the time of his appointment was the deputy prosecutor of the ICC. In a timeframe of two years Brammertz presented seven reports to the UNSC of a more technical nature than those of his predecessor. By the time Brammertz published his seventh report in November 2007 the security situation in Beirut had deteriorated further. The scope of the investigation was broadened, the team of Brammertz assisting in the
investigation of eighteen other bomb attacks in Beirut since the Hariri assassination which had killed six anti-Syrian politicians, four journalists, scores of bystanders and wounded over a
59 The Lebanese Constitution article 52: ‘The President of the Republic shall negotiate and ratify international treaties in agreement with the Prime Minister. These treaties are not considered ratified except after approve by the Council of Ministers..’
60 Lahoud, E. (15 May 2007). Letter dated 15 May 2007 from the President of Lebanon addressed to the Secretary-General, UN Doc. S/2007/286
61 The National Pact is an institutionalized, verbal, agreement made in 1943 in which was agreed to have an equal power sharing formula between Lebanon’s religious sects
62 Five countries that abstained from voting on resolution 1757 are: China, Indonesia, Qatar, Russian Federation and South Africa
63 UN Security Council (30 May 2007). Security Council authorizes establishment of Special Tribunal to try suspects in assassination of Rafiq Hariri. UN Doc. SC/9029
24 hundred.64
In the beginning of 2008 Daniel Bellemare, a retired Canadian prosecutor, took over the investigation. At the opening of the STL in The Hague on Sunday 1 March 2009
Bellemare was formally appointed chief prosecutor. It took until mid-2011 before he made his first indictment public. In January 2014 the actual trial against the suspects started.
Conclusion
In the post-civil war period no state-sponsored transitional justice measures were taken in Lebanon. Instead a policy of so-called ‘no victor, no vanquished’ was used, in which old issues remained undiscussed, perpetrators were unjudged and feelings of anxiety between religious sects were unaddressed. This informal policy of ‘forgive and forget’ prevailed in the country until the assassination of Hariri.65
In practice, under the Syrian hegemony, the war against political opponents continued as they were victim of selective justice. Syria kept on playing this decisive role in post-war Lebanon until various opposition forces of different religious sects joined ranks after the Hariri assassination.
Taking the post-war status quo into consideration the STL is the first initiative to help Lebanon gain independence from Syria, and to address issues from the past. At the same time it was meant to strengthen Lebanon’s judiciary. But despite these intentions it should be noted that it was created during a time of political division with an underlying lack of national consensus. Therefore it became one of the main topics that politically divides modern Lebanon.
64 Brammertz, S. (28 November 2007), Ninth report of the International Investigation Commission, UN Doc. S/2007/684, pp. 11 - 15
65 Haugbolle, S. (2005). Public and Private Memory of the Lebanese Civil War, Comparative Studies of South Asia, Africa and the Middle East, Duke University Press, 25(1), pp. 193 - 194
25
2.
Legal controversies, considerations, and the main political arguments
After analyzing how the political background of the establishment of the STL, one could argue that the process was controversial. On the domestic Lebanese level it caused political debate, which resulted in a public perception that the court was imposed on the country by the international community. While on the international level some legal issues and
considerations were raised. This chapter will analyze both, but not only from a legal
perspective. These reservations will be analyzed in order to see if they have consequences for the STL as an effective transitional justice measure for Lebanon.
The legal controversies and considerations can be roughly divided into four segments: the overall exceptionality of the STL, the establishment by the UNSC through a binding resolution under Chapter VII, the usage of Lebanese criminal law, and the possibility of trials in absentia. The last segment of this chapter will give a brief summary of the main political arguments pro- and against the tribunal mainly around the period it was established.
Exceptionality
The STL is in law terms a ‘hybrid’ international court. It is notably distinct from other hybrid courts caused by the fact it uses the Lebanese Criminal Code. Other hybrid courts such as the SCSL, the ECCC, or the internationalized panels in Kosovo use a mix of national and
international law. In essence the STL is also different from the ICTY, ICTR, or the ICC seen the fact these courts solely use international law.
Another deviation with other hybrid tribunals is that the STL operates outside the Lebanese national justice system, and that it has primacy over domestic courts concerning crimes within its jurisdiction as stated in article 4 (1) of its statue which can be found in full in Appendix II. The jurisdiction of the STL is limited to the suspects of the Hariri assassination and that of other bombings between October 2004 and mid-December 2005, and to all criminal acts that could be viably linked to the assassination as mentioned in article 1 of the statue.
As illustrated in the previous chapter Kofi Annan, Secretary-General of the UN at the time the draft-agreement was made with the Lebanese government, originally intended the STL as treaty-based court. An approach he envisioned to enhance local ownership, and promote cooperation with the STL once it was operative. In practice this never happened.
Taking this in consideration Abboud and Muller (2013) claim that the STL represents a new exceptional model of injustice. Besides the fact there was no formal treaty signed
26 between the UN and Lebanon - which will be discussed in the next paragraph - there are some other exceptionalities in its statue, in particular the provision in article 3(2) which state that:
“With respect to superior and subordinate relationships, a superior shall be criminally responsible for any of the crimes… committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates”.
A provision, they analyze, that goes farther than all other previously existing tribunals. It allows the STL for example to indict anyone affiliated or trained by Hezbollah or somebody operating under orders of the Syrian leadership.66
Knudsen and Hanafi (2013) add that the STL is also exceptional because it was not set up to seek and try the perpetrators of a mass murder or crimes against humanity, but those of a single assassination termed ‘terrorist act’, this narrow mandate eroded its legitimacy.67
This standpoint is shared by Wierda et al. (2007) who reason that as a result of these exceptionalities the STL as an institute is in itself another form of selective justice. Why only try the Hariri crime and its aftermath? While other issues of potential relevance such as the atrocities committed during the civil war will remain unaddressed.68
Wetzel and Mitri (2008) also agree about the selective nature of the tribunal. They further argue that the statue came into force by a binding UN resolution, without any
provisions for outside cooperation of third states. An exception is the provision that the STL should be established in a third country. Therefore states, for example Syria, have to be forced in the future by a Chapter VII resolution to cooperate, which could complicate future
effectiveness.69
Another exceptionality is the way the STL is financed. In order not to create a
financial burden for the UN the international community shares the cost with Lebanon for the STL. In the clarification of resolution 1757 the UNSC states that fifty-one per cent of the expenses shall be borne by voluntary contributions from States, and forty-nine per cent by the
66 Abboud, S.N., and Muller, B.J. (2013). Geopolitics, insecurity and neocolonial exceptionalism: A critical appraisal of the UN Special Tribunal for Lebanon, Security Dialogue, 44(5-6), pp. 476 - 478
67 Knudsen, A., and Hanafi, S. (2013). Special Tribunal for Lebanon (STL): Impartial or Imposed International Justice? Nordic Journal of Human Rights, 31(2), pp. 177, 181
68 Wierda, M., Nassar, H., and Maalouf, L. (2007). Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon, Journal of International Criminal Justice, 5(5) pp. 1072 - 1073 69 Wetze, J. E., and Mitri, Y. (2008). The Special Tribunal for Lebanon: A Court “Off the Shelf” for a Divided Country, The Law & Practice of International Courts and Tribunals, 7(1), pp. 82, 94
27 Government of Lebanon.70
By illustration, Lebanon’s annual share of 2012 was a little over 27 million euro,71 and in 2013 this grew until nearly 29,4 million euro72 out of a total annual budget of respectively 55 million, and 60 million euro. While the state budget for the Justice ministry in Lebanon in 2012 was nearly 4,5 million euro73 and in 2013 roughly 5 million.74 This cost discrepancy by itself potentially raises questions of the long term effectiveness of the STL as a transitional justice measure.
Establishment under chapter VII
The perception that the STL is imposed on Lebanon is directly related to its establishment under resolution 1757. The question if the creation of the tribunal under Chapter VII was lawful is therefore valid.
A comment about its lawfulness should be made. Article 25 of the UN Charter states clearly that all members of the UN ‘agree to accept and carry out the decisions of the Security Council’.75 In article 24(1) of its Charter it says that all member states accept the UNSC as the highest authority which indirectly act on their behalf.76 In essence this makes all resolutions of the UNSC binding.
This does not mean that the UNSC has the authority to intervene in the domestic affairs of members states. Article 2(7) of the Charter cites that nothing shall authorize the UN to intervene in matters ‘which are essentially within the domestic jurisdiction of any state’, only measures under Chapter VII authorizes justification for an intervention in the domestic affairs of a state otherwise prohibited. Specifically in scenario’s where the international peace and security need to be restored due to acts of aggression.77
As shown in the previous chapter the STL was established under Chapter VII due to
70 UN Security Council (30 May 2007). Security Council authorizes establishment of Special Tribunal to try suspects in assassination of Rafiq Hariri. UN Doc. SC/9029
71 Special Tribunal for Lebanon (24 March 2012). Summary of the 2012 budget of the STL, Office of the
Registrar, p. 1
72 Special Tribunal for Lebanon (2014). STL receives Lebanon’s contribution for 2013, STL press office 73 Republic of Lebanon (2012). Budget ministry of Justice 2012, Ministry of Finance official portal 74 Ibid, 2013
75 UN Charter article 25: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter
76 UN Charter article 24(1): In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf 77 UN Charter article 2(7): Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII
28 political instability in Lebanon. To compare; the UNSC also used this authority when it established the ICTY and the ICTR. The circumstances however were different. In both scenario’s there were severe breaches of international peace and stability involving thousands of innocent people killed. In the case of Rwanda even hundreds of thousands. This point will be further analyzed in the next paragraph.
The previous chapter also explains that it was UNSC itself that declared Hariri’s assassination a ‘heinous terrorist act’. After the first Mehlis report was published it
unanimously adopted resolution 1636 to demand cooperation from Syria. In the resolution it was specified that stability in the region was at stake.78
Therefore the question if a single terroristic attack count as a threat to international peace and security is answered. Since it is the UNSC itself that has the authority under Article 39 of the Charter to determine the existence of such a threat.79
Taking this scenario into consideration Wetzel and Mitri argue the creation of the STL was necessary to break the circle of violence. They cite article 17 of the Rome Statue which reflects a general principle of subsidiarity of criminal bodies other than home states, in particular the provision in article 17 (1, a) which says that when ‘a State is unwilling or unable genuinely to carry out the investigation or prosecution’.80 They argue that the closure of the Lebanese parliament could be seen as such a situation that the state of Lebanon was ‘unwilling or unable’ to fulfil the task of prosecution of a crime itself.81
Despite the lawfulness of the establishment, the followed procedures resulted in a public perception that it is being imposed on Lebanon, which they describe as one of the STL ‘greatest disadvantages’.82
Gianluca Serra (2008) has an opposite stance. He describes resolution 1757 as one of ‘doubtful lawfulness’. Serra argues that the UNSC went ‘well beyond what could be
reasonably be allowed by the last sentence of article 2(7)’. As a main argument he states that the UNSC picked sides in the Lebanese conflict, which is a violation of its ‘implicit
obligation’ to stay neutral. Serra further states that it should be questioned if the government
78 UN Security Council (31 October 2005). Resolution 1636 (2005), UN Doc. S/RES/1636 (2005), p. 3 79 UN Charter, article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security
80 ICC article 17(1, a): ..the ICC shall determine that a case is inadmissible where.. the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution
81 Wetzel, J. E., and Mitri, Y. (2008). The Special Tribunal for Lebanon: A Court “Off the Shelf” for a Divided Country, The Law & Practice of International Courts and Tribunals, 7(1), pp. 93 - 93
29 of Saniora represented the entire Lebanese population.83
The view that establishment of the STL was controversial is also shared by Michael Humphrey (2011). He attributes this - like Nagy in the introduction of this thesis - to a new trend of ‘legal globalization’. The establishment through Chapter VII demonstrates a new dimension to the system of ‘transnational governance’ instigated in postcolonial states by the international community. In the case of the STL it should be seen ‘an extension’ of earlier political intervention by the UN that started with resolution 1559 in 2004.84
The international crime of terrorism
Another exceptionality that was introduced in the first paragraph is the narrow mandate of the STL trying only the Hariri assassination and related cases. Why not transfer the Hariri file to the ICC? The problem that arises with this approach is that ICC - just like the ICTY, and ICTR - only has jurisdiction over crimes that violate customary international law such as piracy, genocide, war crimes, crime against humanity, and crimes of aggression. Crimes that are seen as offensive to the international community as a whole. The crime of terrorism is not defined as such yet.
The international community has been trying to agree on a clear definition of terrorism in the past 20 years. Samar El-Masri (2008) illustrates this struggle that came on top of the UN agenda after the events of September 11, 2001 and the attack on the school in Beslan Russia in 2004 in which 338 individuals - mostly children - were murdered. After these attacks she analyzes three elements that was agreed upon by the UNSC: a terrorist act aims at spreading terror in the hearts of the public, fueled by political intentions, and it involves acts like murdering that are criminal in all legal systems.85 While the Hariri assassination fits these criteria, none of these provisions were adopted in its statue.
Compared to September 11, or the Beslan attack the Hariri case remains a relative small incident. Even if all the potential linked cases are added up, they do not account more than 60 deaths and roughly 550 injured persons. When the UNSC was in the process of negotiation the STL-statue there was no unity amongst UNSC staff to qualify terrorism as a crime against humanity as such, according to the Secretary-General in a report to the UNSC.
83 Serra, G. (2008). Special Tribunal for Lebanon, A Commentary on its Major Legal Aspects, International
Criminal Justice Review, 18(3), pp. 347 - 348
84 Humphrey, M. (2011). The Special Tribunal For Lebanon: Emergency Law, Trauma and Justice, Arab
Studies Quarterly, 33 (1) pp. 19 - 20
85 El-Masri, S. (2008). The Hariri Tribunal: politics and international law, Middle East Policy, XV(3), pp. 84 - 85
