Is Lebanon’s special tribunal a turning point in international law?

BEIRUT — The billboard not far from downtown that used to display a digital countdown next to the words “The truth” and a picture of former Prime Minister Rafiq Hariri now bears the slogan “The era of justice.” The intersection below has a permanent army checkpoint, and blast walls were recently erected nearby after a series of car bombings over the past year that have claimed the lives of more than 100 civilians.

In January, the Special Tribunal for Lebanon (STL) held its opening session in The Hague to try in absentia the suspects (all of them members of Hezbollah) in the Feb. 14, 2005, bombing that killed Hariri and 21 others. As the first international court to treat terrorism as a distinct crime, it marks a turning point — not just for Lebanon but also for international law.

In the political landscape of Lebanon in the 1990s, populated by warlords and political scions and overseen by the Syrian regime, Hariri, a self-made billionaire, proved a shrewd politician, maintaining close relationships with Saudi Arabia and the West while also winning the approval of the Syrians.

His formerly warm relations with the Syrians cooled, however, in 2004, when he spoke out against a Syrian plan to extend the mandate of Lebanon’s president at the time, Emile Lahoud, who had reached the end of his legal term in office. When Hariri’s convoy was hit by a massive bomb in Beirut months later, many assumed the Syrians were behind it. The U.N. Security council created a commission to investigate the assassination (the United Nations International Independent Investigation Commission, or UNIIIC) and subsequently established an international tribunal (the STL), in conjunction with the Lebanese government. The STL officially opened in 2009.

The tribunal has been hotly debated, both within international criminal justice circles and among the Lebanese public. Its supporters say the court will help curb the impunity that has long characterized Lebanese political life, especially since the 1975–90 civil war. Detractors maintain that the tribunal was created as a political tool to go after Syria and its local ally, Hezbollah. Tens of thousands of Lebanese civilians have been killed since the start of the civil war. With no such effort having been made to bring perpetrators of these crimes to justice, critics also argue that the STL sends a message to ordinary Lebanese that their lives are worth less than that of a wealthy politician with international ties.

In 1982 Waddad Helwani was 30 years old, living in Beirut with her two small children, when armed men in uniform came for her husband. He was never seen again. As head of the advocacy group Committee of the Families of the Kidnapped and Disappeared, Helwani has spent the last three decades trying to get closure, if not justice, for families like hers. An estimated 17,000 loved ones went missing during the civil war.

After Hariri’s assassination, she and other relatives were heartened to hear their own calls for justice echoed by those in power.

“Those we were petitioning began to sound like us, so we grew optimistic,” she said. “But we discovered, after a while, that the thing we had hoped for would never be implemented in Lebanon … It turned out they only wanted justice for the prime minister.”

But for Ihsan Nasser, whose husband, Talal, served as Hariri’s bodyguard and was also killed in the blast, the court is the only body that could reveal the truth behind her husband’s murder.

“The day [the tribunal] opened, just seeing the court streaming live on television, and the session being held publicly in front of everyone, this alone gave me a push; it gave me strength. It built my trust that it will achieve what I have been asking for since the beginning, which is justice,” she said.

International tribunals are frequently criticized. But the STL faces more serious criticism: In politically fractious Lebanon, its narrow mandate and the fact that none of the five suspects is in custody has called into question whether the court can bring the perpetrators to justice and send a clear message to would-be terrorists. Meanwhile, Hezbollah, which maintains its innocence, has refused to hand them over, as it does not recognize the legitimacy of the court. Carmen Abou Jaoude, the head of the Lebanon program within the International Center for Transitional Justice, said the STL was an important step in itself but should be accompanied by efforts to promote a comprehensive strategy to address the scars of the civil war as well.

Just as the international community “put pressure to form the Cabinet, they’re putting pressure to have presidential elections … they can also put pressure on the authorities to address major violations and put an end to impunity,” Abou Jaoude said. The Lebanese public “will back this international process when [the international community is] consistent and say[s], ‘We also care about the other crimes,’” which is why, when asked about the STL, she said, “This is good, but this is not enough.”

In 2005, UNIIIC chief Detlev Mehlis publicly recommended the arrest of four pro-Syrian Lebanese generals on suspicion of involvement in the Hariri assassination. They remained in custody without charges for the next four years, at the request of two subsequent UNIIIC heads and in accordance with Lebanese law, which allows for indefinite detention in security cases. When the STL took over from the UNIIIC in 2009, its first action was to order the release of the generals for lack of evidence.

Lawyer Charles Rizk, minister of justice at the time of Hariri’s assassination and part of the subsequent U.N.-backed investigation, said the detention of the four generals was a “bad start” to the STL. Although the tribunal is technically an independent body formed on the recommendation of the UNIIIC, the prosecution emerged directly from the U.N. commission, and the affair colored the perception of the tribunal among the Lebanese people.

Despite its mixed reviews, even among supporters, Judge David Baragwanath, president of the STL, concluded in his most recent annual report that its example “may warrant consideration of a permanent international tribunal charged with assisting States to give effect to domestic criminal laws dealing with terrorism and the like.”

The STL has already been responsible for several innovations that could be cited as precedent in dealing with future terrorism cases. In 2011, the appeals chamber of the STL, which has the power to review decisions made by the trial court, issued an interlocutory decision concluding that although the tribunal’s statute stipulates it apply Lebanese law in terrorism cases, those laws should be interpreted in light of customary international criminal law.

Lebanese criminal code defines terrorism as “all acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.” Both the prosecution and the defense in the Hariri case advocated adherence to Lebanese case law, which favors a literal interpretation, limiting the terrorism label only to acts committed by the enumerated means and excluding, say, guns. The appeals chamber ruled instead that the means could include anything likely to pose a public threat.

But according to a 2011 article in the Journal of International Criminal Justice, this overly broad definition sets a potentially dangerous precedent. Most notably, the article pointed out, the appeals chamber’s definition now gives judges latitude to determine what weapons or means might pose a threat to the public. It also excluded the requirement of a political, religious or ideological motive.

This open-ended formulation, bolstered by a clause specifying that terrorist acts are intended to “coerce” authorities, could be interpreted in bad faith by oppressive regimes as a way of criminalizing dissent. A protester who breaks a window during a demonstration, for example, could be prosecuted for terrorism under this definition.

“The appeals chamber’s definition potentially provides a powerful legal tool to governments wishing to quash and punish opposition dissent,” the authors concluded.

However, several international lawyers agreed that while terrorism would be a natural direction for the expansion of international criminal law, the creation of a permanent terrorism court was unlikely, as no firm definition of “terrorism” exists in international law.

“The definition of terrorism … is a notoriously difficult and controversial legal question because there simply isn’t an agreed — centrally agreed, at any rate — legal definition of terrorism,” said Tim Parker, an international-human-rights lawyer based in Hong Kong.

“Terrorism as a crime is a very, very dangerous place to move international law, because you just end up in this gray area … You move into a very subjective realm,” said Peter Maguire, author of “Law and War” and a former war-crimes investigator in Cambodia.

Several lawyers pointed to the immense time and effort required to get the International Criminal Court (ICC) up and running, not to mention the hostility of some countries, particularly the United States, toward the court. Another, more likely scenario would see the ICC amend the Rome Statute — which currently gives it jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression — to include terrorism.

But even such an expansion of the ICC’s mandate would likely prove an uphill battle. The ongoing debate over crimes of aggression — essentially state-on-state violence — exemplifies the difficulties that a terrorism court is likely to face. Although crimes of aggression are included in the Rome Statute, which founded the ICC, member states have yet to agree on a definition, and the vote over whether the court may exercise jurisdiction over such crimes has been pushed to 2017.

For Maguire, the STL exemplifies many of the problems with international tribunals and the international-criminal-justice movement.

The success of a court, said Maguire, is based on “the conviction of the guilty and the exoneration of the innocent. Truth and reconciliation and healing — these are not the objectives of a court. That’s called therapeutic legalism. That is the terrain of shrinks.”

Maguire believes that tribunals like the STL that try to provide “a therapeutic, re-educational agency” are not only overstepping their bounds but are ineffective.

“It’s never been proven it worked, even in Nuremberg,” he said.

Jonathan Bush, a professor who teaches at Columbia University on the Nuremberg trials, laws of war and human rights, said, “I have problems about whether institutionally you should set up a court … where everybody is in absentia and there is only factionalized support in the one country where it’s operating.”

Rizk, the former justice minister, said that while he has no illusions about the prospect of apprehending the suspects, there is practical value in the STL.

“These people have to give me an alternative,” he said. He isn’t interested in the debates about the nitty-gritty of international law; for him, the tribunal is better than nothing. “Give me an alternative,” he repeated.