On Tuesday morning in The Netherlands, two weeks after Beirut was torn apart by an explosion, Saad Hariri, the son of the former Prime Minister of Lebanon Rafik Hariri and himself a former prime minister, sat in the courtroom at the Special Tribunal for Lebanon for the historic judgment in a case which has been postponed twice due to the coronavirus pandemic and the Beirut explosion. The hearing opened with a moment of silence for those who had lost their lives in the tragic blast.
As the judges delivered their findings, lawyers and court officials wore face masks, and plastic screens separated people in the courtroom as they sat distanced from one another, a sign of the times in which we live.
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The Ayyash trial – the most significant and high-profile of the cases being examined by the Tribunal – began six years ago and sought to apportion accountability for the assassination of Rafik Hariri in downtown Beirut 15 years ago.
As the judgment was delivered and the judges described what happened on the day his father was assassinated, Saad Hariri’s eyes remained fixed on the table in front of him, his face unmoving. Saad Hariri, who resigned from his position as prime minister in October 2019, amid allegations of corruption and outrage by the Lebanese people, sat beside other victims who were also irrevocably affected on that day.
Some two years after the assassination, United Nations Security Council Resolution 1757 paved the way for the establishment of a Special Tribunal for Lebanon, which would sit in Leidschendam, The Netherlands, and would prosecute those responsible. The Special Tribunal for Lebanon is an international body, with Lebanese and international judges. While the Tribunal is not part of the Lebanese judicial system it does prosecute individuals using Lebanese criminal law.
The four men on trial – Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra – are all Lebanese-born and all have links to Hezbollah, a political and military entity based in Lebanon, with ties to Syria and Iran. Ayyash was accused of orchestrating and carrying out the attack, and faced charges of committing a terrorist act by means of an explosive device, intentional homicide and attempted intentional homicide. The others were charged as accomplices.
The alleged mastermind of the group, Mustafa Badreddine, was originally indicted by the Tribunal but it is believed he died in a mysterious explosion near the Damascus International Airport in 2016. Hezbollah, along with Syria, has denied involvement in the assassination. This makes the Special Tribunal for Lebanon the first of its kind to prosecute terrorism as a distinct crime.
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On Tuesday, Ayyash was found guilty on all counts for his role in the assassination. All of the other defendants were acquitted.
The presiding judge in the Ayyash case said that there is no evidence that Hezbollah’s leadership or Syria were connected to the attack. Given that Ayyash was affiliated with Hezbollah, this is a particularly interesting finding and one which raised many eyebrows in Lebanon. Nonetheless, given Ayyash’s known affiliation to Hezbollah, the Tribunal is implicating Hezbollah indirectly by finding him guilty. Saad Hariri has requested that Hezbollah hand over Ayyash, however this is unlikely given that Hezbollah has rejected both the Tribunal and any judgment it delivers.
The defendants were tried in absentia; they were not in the custody of the court and have not taken part in the trial. Their current location is unknown and it is not even clear if they are still alive. To try a person in absentia is not unheard of in certain legal systems. While some argue that such trials are acceptable in exceptional circumstances, in the context of the Special Tribunal for Lebanon, which is a temporary court, in absentia trials are particularly problematic. Indeed, I would argue that they infringe on the defendants’ right to a fair trial and could even be argued to violate international human rights law.
Even though the accused can request a retrial if they surface at some point in the future, to hold a trial in absentia is still a highly questionable move by an international court in its pursuit of justice and it sets an unfortunate precedent. Justice is important, but not at the expense of a fair trial. There is something very uncomfortable about watching an international court deliver judgment in a trial that has not had the involvement of the accused.
Aside from the controversy of holding an international trial in absentia, the Special Tribunal for Lebanon has been highly criticized for its astronomical cost – $1 billion dollars – the protracted proceedings, as well as its selective and very narrow mandate. Half of the Tribunal’s funding came from Lebanon. While the Lebanese people starve, and the country suffers economic decline, the Tribunal’s high cost is difficult to justify.
In delivering its judgment, the Tribunal noted the devastating impact on the victims – those who lost family members and those who suffered catastrophic injuries. Many have permanent injuries and post-traumatic stress disorder. Those victims who have spoken out have noted the value of the Tribunal, but this is largely symbolic rather than providing genuine accountability. If anything, the judgment means that there is less incentive for states to find Ayyash.
Despite protestations of this judgment being “justice for Lebanon,” it is unlikely to help Lebanon itself. The judgment may actually inflame tensions in the country, particularly between Hariri and Hezbollah supporters; it may also escalate the economic, political and social crisis that is unfolding.
It is also uncertain whether remote justice delivered in The Netherlands, far from Lebanon and without the presence of any of the accused, is actually justice, or rather merely expensive symbolism. The Tribunal’s judgment is a small part of what is needed for justice in Lebanon in all of its manifestations, particularly given the protracted civil war, numerous political assassinations which have been perpetrated with impunity and the recent massive explosion. The Hariri assassination is but one tragic event alongside many others that need a legitimate justice response.
Whether or not the Tribunal provided justice for Lebanon, as it claims, only the Lebanese people and the victims can judge. It certainly does not feel like justice.
Shannon Maree Torrens is an international and human rights lawyer from Sydney, Australia. She has worked at the United Nations international criminal tribunals and courts for the former Yugoslavia, Rwanda, Sierra Leone and Cambodia, and with the International Criminal Court. She holds a PhD in international criminal law from the University of Sydney. Twitter: @shannonmtorrens