Nadim Shehadi
Associate Fellow, Middle East and North Africa Programme
Miša Zgonec-Rožej
Associate Fellow, International Law
Lebanese men smoke water-pipes as they watch the opening of the trial in absentia of four members of the Hezbollah Shiite movement accused of murdering former Lebanese premier Rafiq Hariri in 2005 at a UN-backed court, on television in the southern LebaneLebanese men smoke water-pipes as they watch the opening of the trial in absentia of four members of the Hezbollah Shiite movement accused of murdering former Lebanese premier Rafiq Hariri in 2005 at a UN-backed court, on television in the southern Lebanese city of Sidon 16 January 2014. Photo by Mahmoud Zayyat/AFP/Getty Images.

The first trial of the Special Tribunal for Lebanon (STL) is due to begin on Thursday. This will be the first terrorism trial conducted at the international level in the absence of the accused. Whatever the result of the trial, the STL reflects an international decision to seek accountability for mass atrocities and redress for victims.

The STL became operational in 2009, after four years of investigation by the UN International Investigation Commission into the death of Lebanon’s former prime minister, Rafiq Hariri, in a bomb blast in Beirut that killed 22 others in 2005. Four Lebanese citizens connected with Hezbollah are charged with participation in a conspiracy with others aimed at committing a terrorist act with a view to assassinating Hariri. For reasons of security, the seat of the tribunal is on the outskirts of The Hague rather than in Lebanon.

Though they have concurrent jurisdiction, the STL has primacy over Lebanese courts. Its 11 judges are drawn from the Lebanese and international judiciaries, and apply Lebanese law. But, while they will be in the courtroom, as will lawyers for the prosecution and for the defence, the defendants themselves will not be. They have not yet been arrested by the Lebanese authorities.

That cases may be heard in the absence of the accused is a novel feature of the tribunal in contrast to other contemporary international courts. The tribunal deals with terrorism as a distinct crime, and permits victims, who may seek compensation in domestic courts, to participate in proceedings.  If captured, the accused will have the right to retrial but it remains unclear how this right would be exercised after the tribunal is dissolved.

In October 2013, a fifth accused was indicted for his involvement. If his case is joined to the trial of the other four accused, delays to the proceedings will inevitably ensue. The alternative, a separate trial for him, would not seem to accord with the interests of justice or judicial economy, since he is accused of the same crimes as the four other defendants.

Engagement or Confrontation?

This first trial has enormous significance. The STL seeks to introduce the principle of accountability in a region that has been plagued by political violence and assassinations. It has inspired people throughout the region to demand similar protection. There has recently been a call for a Special Tribunal for Syria to help with transitional justice issues in that country.

The STL forms part of a relatively new system of international criminal justice administered by various kinds of international and hybrid courts, culminating in the International Criminal Court. Underlying the system is an assumption of the need to apply and maintain international norms in the event of mass atrocities. This is sometimes seen as conflicting with the principle of state sovereignty, which is one of the pillars of the international order.

In this respect the system is similar to the responsibility to protect, which envisages the possibility of intervention by the international community to prevent mass atrocities. For such instruments to be effective, they need to show credibly that they are not abused for political purposes and there has to be a collective political will to see them succeed.

The STL has been subject to criticism on both legal and political grounds. It has been seen as an intervention in the affairs of a sovereign state. Some have regarded it as part of the United States’ agenda in its confrontation with Iran and Syria. There were legal problems with its establishment and criticism that the crime it was addressing was not a mass atrocity.

The tribunal meets as the crisis in Syria continues and the international community once more reflects on how to deal with mass atrocities. The UN has been powerless in dealing with that conflict, with outsiders divided and paralyzed by issues relating to the legacy of previous military interventions like those in Libya and Kosovo.

The irony today is that, as individuals connected to Hezbollah – an organization sponsored by Iran and participating in the ongoing violence in Syria – are tried by an international tribunal, the tribunal’s international sponsors are also about to re-engage with the Iranian and the Syrian regimes.

As a temporary court with jurisdiction limited to the assassination of Hariri and any cases connected to that killing, the STL may help bring justice to the victims but it is unlikely that it will deter future assassinations in Lebanon. Effective engagement by the Lebanese courts in investigating and prosecuting those crimes is crucial in ending impunity.

v