The Strange World of the Special Tribunal For Lebanon

A very expensive court prosecutes spectral defendants…

Nederland, Leidschendam, 25-03-10.
Foto Roger Dohmen
Het Libanon-tribunaal —officiele naam: Bijzonder Tribunaal voor Libanon— is een internationaal hof onder auspiciën van de Verenigde Naties. Het is gevestigd in het voormalige AIVD gebouw in Leidschendam, dat daarvoor speciaal werd verbouwd. Het besluit tot de oprichting is op 30 mei 2007 genomen door de Veiligheidsraad in resolutie 1757 die werd aangenomen met tien tegen nul stemmen bij vijf onthoudingen. Het tribunaal heeft tot taak om de moord op Rafik Hariri, oud-premier van Libanon, te onderzoeken en verdachten te berechten op basis van het Libanese strafrecht. Hariri kwam samen met tweeentwintig anderen op 14 februari 2005 bij een bomaanslag om het leven. Ook wordt de mogelijkheid opengehouden dat het tribunaal andere sinds oktober 2004 in Libanon gepleegde aanslagen zal berechten.
Het tribunaal heeft een gemengde samenstelling: een minderheid van Libanese en een meerderheid van niet-Libanese rechters. Het kent twee kamers: een kamer van eerste aanleg met drie rechters (een Libanese en twee internationale rechters) en een kamer van beroep van vijf rechters (twee Libanees, drie internationaal). Voorts zijn er een internationale rechter-commissaris en twee plaatsvervangende rechters. De aanklager is onafhankelijk van de Libanese regering en is benoemd door de secretaris-generaal van de VN. De maximumstraf die het tribunaal kan opleggen is levenslange gevangenisstraf.
Op 21 september 2007 heeft Belgie de Brusselse onderzoeksrechter Daniel Fransen kandidaat gesteld als rechter voor dit tribunaal.
Als plaats van vestiging van het tribunaal werd aanvankelijk onder andere Cyprus overwogen. Maar op 23 juli 2007 schreef de secretaris-generaal van de Verenigde Naties Ban Ki Moon een brief aan de Nederlandse Premier Jan Peter Balkenende met de vraag of het Libanon-tribunaal in Nederland kan worden gevestigd. De Nederlandse regering reageerde hierop voorlopig positief. Op 21 december 2007 stemde het Nederlandse kabinet definitief in, nadat met de VN overeenstemming bereikt was over de kosten, de beveiliging en de detentie van de veroordeelden. Besloten werd het tribunaal onder te brengen in Leidschendam, in het voormalige gebouw van de Algemene Inlichtingen- en Veiligheidsdienst (AIVD.
VN-secretaris-generaal Ban Ki-Moon benoemde op 11 maart 2009 Robin Vincent tot griffier van dit tribunaal. Op 24 maart 2009 werd de Italiaanse rechter Antonio Cassese, voormalig president van het Joegoslavie tribunaal, tot president van het tribunaal benoemd. Ban Ki-moon benoemde op 9 juli 2009 VN-assistent-secretaris-generaal David Tolbert tot griffier, als opvolger van Robin Vincent. Tolbert trad in functie op 26 augustus 2009.
Op 1 maart 2009 hield het tribunaal zijn openingsceremonie als formeel begin van zijn werkzaamheden. De hoofdaanklager, de Canadees Daniel Bellemare, sprak tegenover de 350 medewerkers van "het eerste internationale antiterroristentribunaal". Hij kondigde aan dat hij om uitlevering zal vragen van vier pro-Syrische Libanese generaals die sinds augustus 2005 in Libanon vastzitten. Dit betreft de toenmalige chefs van de veiligheidsdiensten die zouden hebben samengespannen met Syrische leiders om Hariri te vermoorden.
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“Because missiles can fly through windows, the courtroom is windowless.” So reports Ronen Bergman in “The Hezbollah Connection,” an epic 8,000-word dispatch from The New York Times Magazine last year. The courtroom in question belongs to the Special Tribunal for Lebanon (STL), a United Nations-backed entity in The Hague, Netherlands. The STL is tasked with trying in absentia five Hezbollah members accused of orchestrating the 2005 bombing that killed former Lebanese Prime Minister Rafik Hariri along with 21 others in a massive blast in Beirut. More than a decade later, as the tribunal fumbles its way toward ostensible justice from the depths of its windowless chambers, one can’t help but begin to question how any disgruntled party in Lebanon would go about firing missiles at a Netherlands courtroom 2,000 miles away.

Earlier this year in Beirut, I spoke with members of several STL defense teams who were in town interviewing “witnesses” for the tribunal. These particular witnesses were officials from Lebanese mobile phone companies, as the prosecutors’ case is in large part based on the analysis of enormous quantities of mobile phone logs, which are said to point to the five Hezbollah men. Much of the STL’s work thus consists of the endless examination of telecom information using unproven methods of co-location and link analysis. Indeed, as lawyer Philippe Larochelle—who has since resigned from his position as co-counsel for defendant Hussein Hassan Oneissi—put it to me: it’s essentially the case that “the accused are phones.”

The trial of the phones kicked off in The Hague in January 2014, following all manner of delays and detours. In one rather lengthy detour, from 2005-2009, four Lebanese generals were imprisoned without charge thanks to a recommendation by initial UN prosecutor Detlev Mehlis, who was operating on a defective theory that the generals had conspired with the Syrian government to assassinate Hariri. Once a sufficient international stink had been made over the wrongful imprisonment and the generals had finally been freed, the STL fixed its attention solely on Hezbollah.

As the New York Times sees it, the STL is “necessary simply because of Hezbollah’s unique role in Lebanon and the world: Although the group is classified by the U.S. State Department as a foreign terrorist organization, it is also a popular political party in Lebanon, and therefore it is difficult, perhaps impossible, for Lebanon or any other single nation to provide an appropriate venue for its prosecution.”

But “necessary” is an odd way of describing the STL to begin with. The tribunal’s singular nature makes it an unusual international priority. For one thing, it’s expensive; some half a billion dollars had already been spent as of February 2015—with Lebanon in charge of 49 percent of the bill. This is hardly small change in a country plagued by widespread poverty and a dearth of government services. During my most recent visit to Tyre, Lebanon’s fourth-largest city (located twenty minutes from the border with Israel), the area was receiving as little as two hours of government-supplied electricity per day. A November 2014 article in Lebanon’s Daily Star newspaper noted that the country had just managed to fork over $36 million “in dues” to the STL despite “financial troubles, as the [Lebanese] economy reels from the impact of a massive refugee influx from Syria and ongoing security problems.” The previous December, meanwhile, the U.S. State Department issued a press statement applauding “Lebanon’s decision to fulfill its 2013 funding obligations” to the STL and emphasizing that the United States, too, had “provided strong financial support to the Tribunal since its inception, and we will continue to do so.”

Photos courtesy of the Special Tribunal for Lebanon.
Photos courtesy of the Special Tribunal for Lebanon.

Yet the absence of any actual defendants gives the STL an air of the farcical. Indeed, it is the first international trial in absentia  since Nuremberg. In Beirut, defense lawyer Larochelle remarked to me that having worked more than two years for the STL without ever seeing the person whose “interests” he was supposed to be representing had taken its toll on his motivation. A lawyer can find it dispiriting to defend an invisible client. Any eventual conviction by the “mock court,” Larochelle said, would be “imperfect” in light of the reality that “the accused are not there”—and that the most the prosecutors could hope for was “a conviction for five ghosts.” Given the specifics, imperfect would seem something of a wry understatement.

One might think that the May 2016 assassination in Syria of one of the defendants, Mustafa Amine Badreddine, would also have put the operation in a pickle. (It wasn’t, however, unexpected: when I spoke to a member of the defense team in Beirut several months prior to the assassination, he claimed there was a good chance Badreddine would be killed—either before or after the verdict—by the Mossad, CIA, or some other interested party.) But so far, the tribunal appears undeterred. Following Badreddine’s death, the STL swiftly took to Twitter to assure the world that it remained “committed to fulfill its mandate with the highest standards of international justice.” Granted, a dead Badreddine is no less present at the proceedings than he was before.

The United States, for one, has long been insistent on seeing things through at the STL, regardless of the court’s eccentricities. In the aforementioned press statement, the State Department condemns “those responsible for reprehensible and destabilizing acts of violence in Lebanon,” lamenting that, “for too long, Lebanon has suffered from a culture of impunity for those who use murder and terror to promote their political agenda against the interests of the Lebanese people.” A lofty promise is put forth: “The Tribunal, working with the Government of Lebanon, will help end this impunity by providing a transparent, fair process to determine responsibility for the terrorist attack that killed former Prime Minister Hariri and scores of others.”

But the only obvious transparency on display at the STL is the transparent selectivity of its justice. No other political assassination—a tradition that has defined the Lebanese landscape for decades, both before and after Hariri’s demise—has merited such attention. And as a Beirut-based criminal justice analyst pointed out to me, the post-cold war crop of international tribunals—for the former Yugoslavia, Sierra Leone, Cambodia, and so on—have all dealt with genocide and crimes against humanity rather than crimes against individuals.

The tribunal’s mandate also depends on the highly contested nature of the word “terrorism.” The STL defines itself as “the first tribunal of its kind to deal with terrorism as a distinct crime.” In these groundbreaking dealings, the STL notes, it “applies the Lebanese legal definition of terrorism, of which an element is the use of means that are ‘liable to create a public danger.’” As usual, the word “terrorism” is so broad as to be almost entirely empty of meaning, making its application open to extreme subjectivity.

One of the most blatant hypocrisies in the international community’s stance against “terrorism” is in its lack of application to more-than-eligible actions by the United States and Israel. Hezbollah’s very raison d’être, it bears mentioning, lies in Israel’s 1982 invasion of Lebanon, an affair that killed an estimated 20,000 people, the vast majority of them civilians. After occupying south Lebanon for no fewer than 22 years and subjecting the country to intermittent bouts of slaughter, the Israeli military returned in 2006 to decimate its northern neighbor and wipe out approximately 1,200 lives, again mainly civilian. In regularly flattening sections of Lebanon, Israel would appear to have the “creation of public danger” down to an art. But Israel’s maneuvers have not yet proven special enough for a Special Tribunal.

In fact, Hezbollah has accused Israel itself of carrying out the Hariri assassination, though the STL has categorically refused to consider the possibility. Arguably, the Israeli state did possess not only the technical sophistication to orchestrate the murder but also sufficient motivations. After all, the direct outcome of the assassination—which has from the get-go been blamed on varying combinations of Syria and Hezbollah—was the Syrians’ departure from Lebanon, where they had maintained an occupying presence since being summoned by Christian forces shortly after the launch of the Lebanese civil war in 1975. The termination of the Syrian occupation translated into big points for Israel, which had been forcibly evicted from its own occupation in 2000 by the Hezbollah-led resistance movement—an affront the Israeli government still hasn’t managed to get over.

“Excessive fixation with the killing of the multibillionaire Hariri has tended to distract from the fairly pervasive injustice suffered by much of the rest of the Lebanese population…”

The United States’ own insistence on pursuing the prosecution solidifies the double standard. After all, it was none other than the U.S. that was rush-shipping bombs to the Israeli military in 2006 while it engaged in slaughtering Lebanese children. The one-way moral reasoning once again raises the question of just who deserves the denomination of foreign terrorist organization. The United States has never faced international legal action for its various violent incursions abroad, and has freely supported the assassination of heads of state from Patrice Lumumba in the Congo to Salvador Allende in Chile. In 2011, a U.S. drone was directly involved in the killing of Libya’s leader, Muammar Gaddafi, plunging the country further into a ruinous civil war. Yet strangely, Hezbollah faces the only international terrorism tribunal ever constituted. In The Hague, phone lines are being put on trial for the killing of a Lebanese superbillionaire, while U.S. politicians have not once been summonsed to answer for the destruction of Iraq.

The proceedings are hopelessly hypocritical in other ways. The “Government of Lebanon” that has been assigned the job of helping to end “impunity” is itself largely comprised of sectarian warlords hailing from the civil war era. Those warlords have remained entrenched in power despite being responsible for untold quantities of spilled blood. There’s a lot to be said for impunity.

There’s also something to be said for social class, it seems. The excessive fixation with the killing of Hariri has tended to distract from the fairly pervasive injustice suffered by much of the rest of the Lebanese population. Unsurprisingly, a not insignificant amount of suffering is attributable to aforementioned warlords. As Lebanese criminal justice expert Dr. Omar Nashabe remarks in a 2012 paper published by the American University of Beirut, “families of thousands of persons who disappeared during the [Lebanese] civil war question the creation of the STL to investigate the killings of a few elites with no serious investigations into the fate of their [own] relatives.”

stl3

There are other thorny geopolitical implications to the tribunal’s work, too. It’s worth reviewing the words of Lebanese Druze chieftain Walid Jumblatt, who in a leaked American diplomatic cable from 2006 is quoted as characterizing the tribunal as “our best weapon against the Syrians.”

Jumblatt is a civil war relic whose public positions have been, at best, a jumble of schizophrenic self-contradiction. Despite opposing the invasion of Iraq at the time it occurred, Jumblatt is quoted in a book by George W. Bush as retrospectively praising the invasion as equivalent to the fall of the Berlin Wall. (Note that, since the invasion quickly turned to disaster, most observers would have revised their opinions in the opposite direction.) Jumblatt additionally appeared in a 2007 issue of The New Yorker, advising then-U.S. Vice President Dick Cheney on how to undermine Syria’s Bashar al-Assad so as to disrupt “the basic link between Iran and Lebanon.”

Fast forward to 2015, when Jumblatt himself testified in The Hague, as one of a lineup of Lebanese politicians trotted before the STL to aid the battle against “impunity.” No matter that, like many of his colleagues, Jumblatt is guilty of ethnic cleansing and other misconduct dating from the civil war period. According to the Daily Star, the Druze leader had at the outset “personally lobbied world leaders to finance the [Hariri] tribunal” but had since had a change of heart:

At a meeting with the outgoing Russian ambassador to Lebanon in 2010, Jumblatt said he wished the tribunal had never been established. ‘We got the tribunal, but I wish we did not,’ Jumblatt said… ‘The aim of [U.N. Security Council] Resolution 1559 and the 2006 War [with Israel] was to disarm the Resistance [Hezbollah]. When this failed, they resorted to [attempting to use] the STL’s indictment [to carry out this goal] (rampant brackets in original).

Jumblatt’s own psychological oscillations aside, the STL has since become an even better “best weapon against the Syrians” and affiliated entities on account of the war raging in Syria and efforts to discredit select tribunal participants.

The more dysfunctional the international community is, the more dysfunctional the justice.

Now that one of the “ghost” defendants,  Badreddine, has definitively crossed over, it’s anyone’s guess what the future holds for the defense attorneys who represent the deceased man’s remaining earthly “interests.” But however things ultimately shape up in The Hague, it seems there is plenty of job security to be had in the tribunal industry; as the Times notes, many of the judges and lawyers involved in the STL “have made a career of serving in such international tribunals.” The U.N.’s International Criminal Tribunal for the former Yugoslavia, for example, has now been operating continuously for over twenty years, and defendants quite literally grow old as they wait for their trials to conclude.

Philippe Larochelle, himself a veteran of the International Criminal Tribunal for Rwanda and the International Criminal Court, cast as the STL’s most distinguishing characteristic the sheer amount of money and resources being thrown at the project. Larochelle suggests, with characteristic understatement, that the STL’s lucrative employment opportunities raised the question of “to what extent” participants were being “paid to validate a dubious process.”

He describes the court as the “Dubai or Qatar of tribunals.” On its sleek website, the STL offers free downloads of high-quality professional photographs of its gleaming facilities, encouraging the media to disseminate them. There is, however, one area in which the STL has attempted to pinch pennies: the court’s website specifies that “interns will not receive remuneration for their work [and] will cover the travel and living costs in the Netherlands.”

As the funds keep flowing in, the folly and general arbitrariness of the result is readily apparent. Even The New York Times acknowledged that “the prosecution has produced no direct evidence,” an indication that the court “is also likely to establish new precedents in murder convictions on the basis of circumstantial evidence.”

STL aficionados might have hoped for at least a few incidents of compelling testimony to redeem the court’s mission and give it an aura of useful purpose. But these, too, have been few and far between. Instead, the most crucial witnesses have lapsed into contradiction and recantation. In December, for example, a former bodyguard for “Sami Issa”—said to be the alter-ego of now-nonexistent defendant Mustafa Badreddine—positively identified Issa/Badreddine in two photographs and then backpedaled. The Daily Star summed up the ensuing scene:

Bizarrely, he testified that the man in the photograph was wearing eyeglasses, comparing them to Issa’s. Though the photo was of poor quality, the person depicted did not appear to be wearing any.

But the money is certainly being spent. The Times noted some of the results:

The tribunal’s budget makes it possible for lawyers to present their graphic exhibits in the clearest possible manner. During some hearings, prosecutors place impressively accurate before-and-after models of the scene of the bombing on an enormous table at the center of the room. The model makers, who spent weeks constructing them, put special emphasis on precisely reproducing the destruction, even the damage to trees.

As is well known in criminal justice circles, leaf disfiguration patterns hold the key to any murder mystery.

All of this may be slightly unfair to the STL, though. After all, there may be little hope for any venue dedicated to the pursuit of “international justice.” As Larochelle pointed out to me, it’s an ideal that is categorically impossible, given that it can’t be disentangled from the (inevitably politicized) international community itself. As he noted, “The more dysfunctional the international community is, the more dysfunctional the justice.”

Two days prior to the announcement of Badreddine’s demise, I subjected myself to a brief but excruciating viewing of STL courtroom proceedings, which are transmitted with a thirty-minute delay on the STL website. During the segment I watched, a female prosecutor examined a protected witness—a representative of a telecommunications company in Lebanon. The witness’s protected status meant that the screen went blank each time he spoke, and his voice was mutated into a cross between Darth Vader, Optimus Prime, and the guy who narrates movie previews. The prosecutor spent most of her own screen time reading to the court the scintillating text of Lebanese mobile network subscription agreement forms.

Watching justice plod along into eternity at the STL, I couldn’t help but wonder how many in the courtroom secretly longed for a window. Or perhaps even a missile.

Author: Belén Fernández

is the author of The Imperial Messenger: Thomas Friedman at Work, published by Verso. She is a contributing editor at Jacobin magazine.