Closing the Lebanon tribunal would set a terrible global precedent

The pandemic is posing a serious threat to international justice

(Top L to R) Judges Walid Akoum, Janet Nosworthy, David Re, Micheline Braidy and Nicola Lettier preside over the courtroom of the Special Tribunal for Lebanon in The Hague, The Netherlands, January 16, 2014. The trial in absentia of the four suspects accused of killing Lebanese statesman Rafiq al-Hariri opened in The Hague on Thursday, nine years after the bomb attack in which the former prime minister and 21 others died.   REUTERS/Toussaint Kluiters/United Photos  (NETHERLANDS - Tags: POLITICS CIVIL UNREST CRIME LAW)
Beta V.1.0 - Powered by automated translation

The trials aren’t finished. Little justice has been delivered. But 12 years and $1 billion after it was tasked with prosecuting those responsible for the 2005 Beirut bombing that killed then Lebanese prime minister Rafik Hariri and 21 others, the Special Tribunal for Lebanon (STL) announced that it will close its doors by the end of this month. The reason? A lack of money. There may be good reasons for the STL to wrap things up. By not funding the STL to its conclusion, however, states risk undermining international justice efforts more broadly – which might cost them even more.

Set up in 2009, the STL is among the first generation of so-called hybrid courts established to address mass atrocities. Hybrid tribunals mix and match international and national elements. For example, they typically blend together international and local staff and laws. Due to political tensions and security risks, hybrids are often located outside of the country where their investigations are focused. This is true of the STL, which is based in The Hague.

Funding for courts such as the STL can come from "assessed contributions", whereby involved states are required to give a tribunal an earmarked amount of funding every year. Alternatively, tribunals can be funded by “voluntary contributions”, where states voluntarily provide funds to the institution. Assessed contributions are always preferable because they are stable and better protect the tribunal’s independence. Voluntary funding, by contrast, gives states greater control of a court by conditioning funding on its decision-making, including who to target for prosecution. It also forces court staff to divert significant time and energy to fundraising as opposed to the work of achieving accountability.

The STL combines these funding models: 51 per cent of the budget is funded by voluntary contributions and 49 per cent by the Lebanese government. But with Lebanon embroiled in economic and political crises, the country announced in June that it could no longer afford paying its dues. Despite pleas to the international community from Beirut and UN Secretary General Antonio Guterres, no one is prepared to pick up the slack.

This is not the first time that a hybrid court has faced a dire funding situation.

In 2009, the Special Court for Sierra Leone (SCSL) was running so low on cash that the trial of former Liberian president Charles Taylor looked like it might be halted without conclusion. A last-minute infusion of funding from the US saved the SCSL. Taylor was ultimately convicted of aiding and abetting war crimes and crimes against humanity in Sierra Leone, following which he was sentenced to 50 years in prison.

The STL's achievements pale in comparison to those of the SCSL, which prosecuted numerous high-profile perpetrators and contributed significantly to the legal elaboration of international crimes such as sexual slavery and forced marriage. By contrast, only one person – Hezbollah member Salim Jamil Ayyash – has ever been convicted of Hariri’s death, and not a single suspect has been prosecuted by the court in-person. Instead, the STL has held its core proceedings in absentia.

While the work of staff at the STL has been valiant and their commitment, despite the odds, has received well-earned kudos, it is not obvious that the STL has had any positive effects on the ground in Lebanon. The tribunal is certainly not among the courts generally celebrated by proponents of international justice. Few states appear eager to contribute more money to an institution that has so little to show for itself. And few Lebanese colleagues I have spoken to about the STL would be particularly fussed if they didn’t.

Former Liberian president Charles Taylor waits for the start of his sentencing in Leidschendam, near The Hague in 2012.

But states should wade carefully, lest the collapse of a tribunal due to funding set a precedent. This is particularly true now, during the coronavirus pandemic. States have poured trillions of dollars into protecting their countries and citizens from Covid-19 and its severe economic fallout. Massive deficits will have to be covered by spending cuts. The UK has announced a cut from 0.7 to 0.5 per cent of its global national income dedicated to foreign aid, while Canadian diplomats – who already press the International Criminal Court (ICC) to trim its budget – have said that there will be downward pressure on ICC funding.

A popular misconception is that international criminal justice is an expensive venture. For what it is trying to achieve, it is anything but. For example, the ICC, which is funded by assessed contributions from its member-states, had a budget of about $175 million in 2020. The New York Yankees baseball team's payroll this year is just over $200m. A study by Brown University’s Costs of War Project found that the US spent more than $2 trillion over 16 years on the war in Iraq. That would mean that the ICC’s entire yearly budget is barely half the cost of a single day of US military expenditures during that time.

States risk undermining international justice efforts

The Court’s mandate is vast, namely to address international crimes committed in situations across the globe. Yet states are often eager to nickel and dime the institution, exerting pressure on the Court to deliver meaningful justice but with limited financial resources to do it. Making matters worse, when the UN Security Council has referred situations to the ICC – as it did in Darfur in 2005 and Libya in 2011 – the Council has denied the allocation of any UN funds for the Court’s subsequent investigations. Some states, it seems, are happy to force work upon international courts but baulk at backing it up with financial commitments.

To say that a tribunal doesn’t cost much in relative terms does not mean that every tribunal expenditure is worth it. As bureaucracies, tribunals often pay far too much to staff who contribute too little. It is likewise legitimate to worry about how much courts achieve in terms of accountability with the budgets that they do have. But undercutting the resources of tribunals can leave them impotent to address international crimes and political violence, a situation which may cost states more in the long run.

If the STL goes out of business because states won’t pony up the resources it needs to complete its work, it won’t just be the STL that suffers. It could give states even greater permission to control and crush tribunals by contracting and cutting their purse strings.

Published: July 27, 2021, 9:00 AM