The Special Tribunal for Lebanon: playing it safe has achieved nothing

The investigation's efforts to not rock the boat have sold justice and a whole nation short

Lebanese premier-designate Saad Hariri speaks to the press in front of the Special Tribunal for Lebanon after the presentation of the closings arguments in the trial of four Hezbollah suspects accused of 2005 assassination of his father the late Lebanese prime minister on September 10, 2018, in The Hague. - The trial of four Hezbollah suspects in the assassination of Lebanese ex-prime minister Rafiq Hariri enters the final stretch on September 11 2018, with closing arguments in the long-running case. The Special Tribunal for Lebanon is unique in international law as it can try suspects in absentia, as well as for its ability to try accused perpetrators of an individual terrorist attack. (Photo by Bas CZERWINSKI / ANP / AFP) / Netherlands OUT
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Recently, the US national security adviser, John Bolton, denounced the International Criminal Court and threatened that if its judges probed war crimes by the United States, they would be liable to arrest and sanctions. To many people this was a broadside against international justice, serving to place Washington above the law.

It would be easy to limit such base intentions to the United States. However, in September, halfway around the world, the Special Tribunal for Lebanon was entering its final proceedings. The message from that experience also showed to an extent that justice is not a priority of other states, or for that matter of international organisations.

The Special Tribunal was established by the United Nations to try those responsible for the assassination of the former Lebanese prime minister, Rafik Hariri, in 2005. It is an anomaly: a mixed Lebanese-international court that applies both Lebanon’s criminal code as well as laws relating to terrorism. Strictly speaking, it is not there to apply international law, but was set up under international auspices to stand above a Lebanese justice system that is vulnerable to political pressure.

In that sense, the Special Tribunal was partly the product of a specific era of politics that existed at the end of the 20th century, in which the view prevailed that international laws and norms of conduct could gain prominence in governing internal state and inter-state relations, regardless of sovereignty. If so, that ambition was blindsided by reality. From the very start, the Special Tribunal was marred by the shortcomings of the investigation into Hariri's killing that served as the basis for its indictments.

The principal problem is that the second commissioner of the UN investigation − a Belgian judge named Serge Brammertz – did not advance significantly in his investigation between 2006 and 2008. This was a crucial moment in the investigation, as it then still had UN Security Council authority and the momentum to compel suspects to sit and offer testimony. Yet Mr Brammertz did almost nothing during that time, a fact confirmed by several people who worked with him.

Even the most sensitive aspect of the crime − analysis of the perpetrators’ communications − was left to the Lebanese. Working in 2006 and 2007, a Lebanese security officer named Wissam Eid uncovered a web of telephone calls between the conspirators. It was only near the end of his term, in October 2007, that Mr Brammertz decided to bring in a British data company that confirmed that Eid − who was himself assassinated in January 2008 − had laid bare the tangle of data that connected the closed circle of assassins.

Yet what price did Mr Brammertz pay for failing to advance the investigation? He was promoted to the post of prosecutor of the International Criminal Tribunal for the former Yugoslavia. In certain judicial circles, the view was that he was a careerist who, in order to gain personal advancement, would deliberately avoid rocking the boat. It appears that when Mr Brammertz took the job in Beirut, he knew that the UN “did not want another trouble spot”. After all, those were the very words used by then UN secretary general Kofi Annan in 2005 to warn Mr Brammertz’s predecessor Detlev Mehlis.

That is not to say that Annan sought a cover-up, but Mr Brammertz likely understood that slowing the investigation to a snail's pace would neutralise it, and that the mood at the UN was such that no one would protest. Indeed, when Hezbollah became a suspect in the crime, there was even further motivation to proceed carefully, for fear it may provoke a conflict between Lebanese Sunnis and Shia.

The ensuing legal process suffered because of Mr Brammertz’s lack of effort. When the Special Tribunal finally issued an indictment in 2011, it relied on the telecommunications analysis initially carried out by Eid. None of the four men indicted were ever arrested. Nor did prosecutors have detailed witness testimony pointing to the suspects. This made for an indictment built on circumstantial evidence, glaring in its failure to offer a motive for the crime. The indictment so irked the current prosecutor, Norman Farrell, that he sought to tighten it later on.

The big loser, however, was Lebanon, which had paid millions of dollars for an outcome mired in ambiguity. But what was most remarkable was how the UN had allowed the process to drift to the point of near-irrelevance. The primary result was not exposing the guilty, but a process that had stagnated to the point that the suspects either had plenty of time to get away or were killed. Although their deaths could not be directly linked to the Hariri assassination, this was the case with one of the indicted men, Mustapha Badreddine, as well as two of Syria’s principal intelligence officers in Lebanon in 2005, Rustom Ghazaleh and Jameh Jameh.

Some may write this off as a simple case of bureaucratic inertia on the part of the UN, but Annan’s revealing comment and Mr Brammertz’s elevation suggest something much deeper. Pursuing justice can cause political problems, and problems are precisely what the UN is supposed to avoid or, at least, manage. Also, at a time when states are more protective of their sovereign rights than ever, the idea of ceding autonomy to independent bodies is thoroughly unpopular.

So, while Mr Bolton may embody American arrogance and disdain for international justice, he is in good company. As the Special Tribunal showed, there is more than one way to ensure that the guilty go unpunished.

Michael Young is editor of Diwan, the blog of the Carnegie Middle East programme, in Beirut