Six months after the Special Tribunal for Lebanon (STL) opened its doors, a drastically changed political and security environment in Lebanon, coupled with trim concrete output from The Hague, are driving even some of the tribunal’s staunchest advocates to adopt an increasingly cautious stance towards the court. This is visible in both dampened expectations and increasing questions as to whether the very mechanism will prove to be the best model for trying a crime of terrorism.

By Lynn Maalouf, Beirut

The STL’s primary mandate is to prosecute those responsible for an attack in Beirut on February 14th 2005 that killed former Lebanese prime minister Rafiq Hariri and 22 others. The court’s mandate also covers other attacks between October 2004 and December 2005 that are found to be connected by method and motive to the 2005 assassination.

The STL came into force on June 10th, 2007 when the United Nations Security Council decided to enact what was a negotiated agreement between the Lebanese government and the UN. A severe political crisis in Lebanon, however, blocked the agreement’s ratification process and led the Council to go ahead with establishing the Tribunal.
 

Lessons learned
The latest in a series of hybrid model tribunals, the STL is composed of international and Lebanese judges. But it differs in many substantial ways from its predecessors: besides the fact that it will be hearing a limited number of cases (possibly only one), it will also be the first to address crimes of terrorism, and the first where subject-matter jurisdiction will apply domestic law exclusively.

In the relatively young world of international justice, lessons have already been drawn that were explicitly integrated into this most recent newcomer. In his March 2006 report to the Security Council, former UN Secretary General Kofi Annan mentions that “a key lesson learned from these experiences was that the interested State should be associated in the establishment of the tribunal.”

Indeed, the STL was meant to be created in accordance with an agreement between the UN and the government of Lebanon. But political upheaval in Lebanon cut short the ratification process and, at the request of Lebanese Prime Minister Fouad Siniora, the UN Security Council put this agreement into effect through a Chapter VII resolution. Chapter VII of the UN Charter allows the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security.”

Larry D. Johnson served as Deputy Legal Counsel of the UN from 2006-2008. He says the STL “was modelled on the Special Court for Sierra Leone: request by a State, not a Chapter VII ‘imposed’ model”. The STL however fell short of both models - it was neither a treaty-based body, nor did it benefit from the full powers enjoyed by ad hoc tribunals - something that may well prove to be decisive when addressing a crime of terrorism.

Looking at the court’s six-monthreport released last month, one of the powers that seems to be lacking relates to UN member-state cooperation.

“Assistance from States, in the form of witness relocation agreements and protection of witnesses, is of vital importance for the success of the tribunal,” writes STL president Antonio Cassesse. “Although many countries have already been approached, the results so far have not yet borne fruit. The demanding operational environment and subsequent witness protection concerns, as well as the adequacy of State cooperation, remain the main challenges for the section.”

True, a Chapter VII power regarding state cooperation does not guarantee anything, as was made clear by the experiences of the tribunals for the former Yugoslavia and Rwanda. But here we come again to the nature of the crime in question: an efficient investigation into a crime of terrorism, rather than widespread abuses, may very well be more dependent on a limited number of witnesses coupled with more stringent witness protection measures.

No suspects
Less than two months after its establishment, and acting on the tribunal’s rules and procedures, the pre-trial judge ordered the release of the only four persons to have been detained, on the grounds of insufficient evidence. A couple of weeks earlier, the Lebanese investigating judge lifted the arrest warrant issued in abstentia for one person who had been identified as a witness, and then as a suspect, by the UN International Independent Investigation Commission (UNIIIC).

Today, the tribunal has no suspects while the Office of the Prosecutor is replenishing its investigative resources. This seems to indicate that after four years of investigations led by the UNIIIC, there may well be admissible evidence as prosecutor Daniel Bellemare has stated, but it is probably not sufficient to date.

Moreover, in the current regional context - marked by an international overture towards Syria and domestic political realignments in favour of Syria - assistance from third-party states, especially from within the region, may become even more difficult to secure than when the STL was first set up.

In the past months alone, the Syrian Vice President Farouk al-Sharaa was quoted as saying that his country was “stronger in Lebanon than when it maintained troops in the country.” Lebanon’s Progressive Socialist Party leader Walid Jumblatt, meanwhile, whose well-known shifting political stances act as a barometer for shifting regional dynamics, went from explicitly accusing Syria of Hariri’s assassination, to calling for “distinctive relations” with Syria.

Low expectations
For those in Lebanon who believed that a full-fledged international commission of investigation, boosted by Chapter VII powers and significant human and technical resources, would, in four years, manage to gather sufficient evidence admissible in court, expectations are low.

According to Michael Young, opinion editor of the Lebanese Daily Star newspaper, there have been two reactions as of late among those who advocated for the STL’s creation. “There are those, such as Walid Jumblatt, who appeared to have lost confidence a long time ago. And those, such as [Saad] Hariri who are still putting up a front of confidence. For March 14 [the political group headed by Hariri], the STL has been put on the back burner while awaiting possible progress,” he says.

Some observers are even predicting the death of the STL and calling for its incorporation into the International Criminal Court (ICC). While this may well be premature, it nonetheless raises the question of whether terrorism can be considered an international crime, and if so, whether in the future the ICC’s statute could integrate crimes of terrorism; a discussion all the more relevant in the aftermath of former President Benazir Bhutto’s assassination in Pakistan, and Iraq’s request to the UN Security Council to investigate September’s bombings in Baghdad.

In Lebanon today, says Michael Young, there is certainly the feeling that “the only thing that can give impetus today is a sign from Bellemare that things are moving forward.”

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