International courts are no substitute for politics – not least when the countries that set them up fail to back them.
With Lebanon still recovering from the terrible explosion in Beirut, an earlier upheaval in the country’s history has also been back in the headlines. A special UN-backed tribunal investigating the killing of former Lebanese prime minister Rafik Hariri announced its first verdicts last month – 15 years after Hariri’s assassination. The Special Tribunal for Lebanon (STL) found one defendant guilty of committing an act of terrorism and homicide, while acquitting three others. Since the defendants were being tried in absentia, even the single convicted man will not serve a sentence any time soon.
Given that the investigation and prosecution cost $970m, the STL’s proceedings have provoked widespread scorn. Much of this may be deserved, but the experience of the STL also testifies to the perennial tendency of states to outsource difficult political problems to international courts. It is hardly surprising, then, that the courts involved fail to satisfy the expectations placed on them.
Hariri was killed along with 21 other people in a massive bomb attack against the motorcade in which he was travelling through central Beirut on 14 February 2005. One of the richest and most powerful Sunni figures in Lebanon, Hariri had been emerging as the leader of a campaign to force the withdrawal of Syrian forces from the country. Suspicion for his killing immediately focused on Syria. The groundswell of public outrage at the attack led to a mass movement that drove Syrian forces out of the country. At the same time, the United Nations Security Council set up an investigative commission to help Lebanese authorities look into the crime. Following a request from Lebanon’s newly appointed prime minister Fuad Siniora (who now led the anti-Syrian bloc), the Security Council then created the Special Tribunal to prosecute those involved in Hariri’s killing and related assassinations in Lebanon.
When the verdicts finally came, they left many people feeling the whole exercise had failed at its primary purpose
The STL is a “hybrid” tribunal bringing together Lebanese and international judges, with Lebanon paying just under half of its costs. It is anomalous among international tribunals in that it does not have jurisdiction over international crimes (for example, genocide or crimes against humanity), but rather acts of terrorism and homicide as defined in Lebanese law. Moreover, even taking into account the other assassinations that fall within its remit, it has a comparatively narrow focus, centred on a single act of violence. The tribunal’s international backers, led by France and the United States, saw it as a way to seize on a moment of popular mobilisation to end Lebanon’s culture of impunity. It was no secret that they also viewed it as a convenient way to push back against Syrian influence over the country.
However, supporters of Hezbollah and other pro-Syrian groups within Lebanon argued that the tribunal’s narrow focus, in a country where political killing and civil war had been prevalent for decades (and which was soon to see a major offensive by Israel against Hezbollah), and the evident agenda of its international backers, were evidence that the tribunal was a fundamentally political project. Their claims were helped by a procedural technicality: despite the government’s support for the tribunal, opposition from Lebanon’s president and parliamentary speaker prevented the formal signing of a treaty to establish it, so the tribunal was in the end set up by the Security Council under Chapter VII of the Charter – giving the impression of a process imposed on Lebanon without its consent.
In this polarised environment, international investigators struggled to thread their way between the risks of overreach and restraint. The first head of the investigative commission, the German prosecutor Detlev Mehlis, took an active and high-profile approach, openly focusing on Syrian involvement and requesting the arrest of four senior pro-Syrian officers in Lebanon’s security forces. Mehlis’s moves raised hopes among the tribunal’s supporters that it would get to the bottom of the killing, but also contributed to making its work even more politically contentious than it had been. The next investigator, the Belgian lawyer Serge Brammertz, adopted a more cautious approach, lowering the political temperature around the probe, but was accused of slowing the investigation’s momentum. After being held for nearly four years, the “four generals” were ordered to be released by the tribunal in 2009, after it determined there was not enough evidence to continue holding them.
The STL finally charged five Hezbollah-linked men in connection with the assassination, though the case against the most senior one was dropped after he was killed in Syria in 2016. However, the tribunal was unable to gain custody of the accused after Hezbollah made clear it would not allow them to be arrested. The group remained militarily dominant in Lebanon, as it showed by partially taking over Beirut in May 2008. As international support for the tribunal weakened over time, none of the countries that had backed it were prepared to impose consequences for this lack of cooperation. The need to conduct trials in absentia contributed to making the proceedings of the STL slow even by the standards of international courts.
When the verdicts finally came, they left many people feeling that the whole exercise had failed at its primary purpose: it had found one person guilty of organising the assassination but had not identified the individuals and groups who had ordered it. The judgment concluded that Hezbollah and Syria had had a motive to kill Hariri, but that there was no conclusive evidence that the Hezbollah leadership or the Syrian regime had been involved in the attack.
In the meantime, the political situation in Lebanon has evolved over the last 15 years, making the responsibility for Hariri’s killing seem remote from present concerns. Popular protests do not now concentrate on relations between Lebanon’s political factions but on replacing the entire system under which these factions have shared power. The recent explosion and its aftermath seem to mock any notion that accountability has increased in the time since the tribunal was established. Given the country’s parlous economic condition, the sums spent on the tribunal seem like a waste.
The experience of the STL should reinforce a cautious approach to using international justice for short-term political purposes. International courts and tribunals are more likely to reflect than transform the political conditions in which they are created. The anti-Syrian bloc in Lebanon did not have the power to compel cooperation with the tribunal from all parties, and the investigation continued to provoke political crises that threatened the country’s stability. Having promoted the creation of the tribunal, outside powers failed to back its work. Nor did the STL have any appreciable impact on the level of political violence in Lebanon in the years after its creation.
International courts can succeed when circumstances are favourable – including many years after the events they investigate, as the Yugoslavia war crimes tribunal showed. But countries that create tribunals should base their actions on a hard-headed sense of what is possible and an awareness of the limits of legal process, rather than hoping international justice will provide a short-cut past entrenched political obstacles.
The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.