The Judges of the Special Tribunal for Lebanon

Blackstar, Esq,  MediaShack’s Legal Analyst, continues her coverage of the Lebanese Special Tribunal.

Naharnet and Al Mustaqbal report today that Justice Antonio Cassese, has  been appointed presiding judge of the Special Tribunal for Lebanon.   Justice Cassese was the former presiding judge of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and one of the most eminent and published scholars of public international law.

Professor William Schabas’ blog speculated a few weeks ago that another former judge from the ICTY and the Amsterdam Court of Appeal, Justice Bert Swart would be appointed to the Tribunal, as well as Justice Howard Morrison.  Justice Morrison practiced as a defense lawyer for 9 years at the ICTY and the International Criminal Tribunal for Rwanda (ICTR), and is now a UK Circuit judge.  He has the prestigious status of being a “QC”, or Queen’s Counsel.

The Tribunal is meant to have a total of  9 judges (or 11 including alternate judges):

  • one pre-trial judge (an international)
  • three trial judges (one Lebanese and two international)
  • five appellate judges (two Lebanese and three international)
  • plus two alternate judges (one Lebanese and one international).

On the prosecution side, the Chief Prosecutor is Daniel Bellemare (an international), but Lebanon is meant to appoint a Lebanese Deputy Prosecutor.  As it turns out, there’s a stalemate at the cabinet level about who to appoint.

We’ll have more on the appointments as events unfold.  Also Part II of the series “Why the Special Tribunal for Lebanon was Created” will be up in a few days.  It will look at the legal and political reasons behind the creation of the Tribunal.

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Why the Special Tribunal for Lebanon was Created (Part I) Rafiq el Hariri: Why the Big Fuss?

Note: This post is the first part in a series explaining why the Special Tribunal for Lebanon, which opened its doors on March 1, 2009, was created. Today’s post explains why Rafiq el Hariri was such an important personality on the national, regional and international scenes. Check back in the next few days for a discussion of the Western powers’ reasons and interest in prosecuting those responsible for Hariri’s assassination.  

        Lebanon’s Most Important Financial Asset

In his heyday, Rafiq el Hariri was one of the richest people in the world. A self-made billionaire, he had spent most of his adult life building a corporate empire in Saudi Arabia, and at the end of the civil war in Lebanon, moved back to his home country where he became the de facto re-builder of run-down Beirut. The tiny enclave of architecturally re-furbished (yet strangely character-bereft) buildings that make up today’s downtown Beirut is the product of Hariri’s efforts to revamp one of the most dilapidated part of the city through the company Solidere, of which he was the largest shareholder.

Solidere succeeded in turning the area into a huge tourist attraction and a crucial economic asset for the country, yet at the same time, attracted widespread criticism. First, because it did so by expropriating the original landowners and compensating them with shares worth much less than the expropriated property’s value. As if this were not enough, the share plummeted in value a few years later in 2001 (from about $17US per share to $3US per share). Although the price climbed back up eventually, Solidere’s questionable corporate practices in the process of reconstruction (as an example, Hariri’s fortune went from being valued at $4.3 billion US in 2005 to $16.7 billion US in 2006 by Forbes, with no explanation by his family as to how it could have quadrupled in one year), its perceived and actual superiority over the government on the reconstruction issue, suspicions of influencing the judiciary in court actions brought against it by its opponents, as well its disregard for individual and property rights, and freedom of press attracted the scorn of many. Read the great article “The Reconstruction of Downtown Beirut in the Context of Political Geography” by Professor Heiko Schimd which discusses the politics of the reconstruction with great detail and background. In light of this, it’s easy to condemn Solidere and Hariri. On the other hand, despite these accusations, it’s worth wondering whether without them, what little renovations were carried out in the city would ever have been carried out. Hariri was also noted for his philanthropic activities and channelled significant sums of money towards financing the education of tens of thousands of Lebanese students. In all, it’s not easy to make a black or white qualification of him. The good and bad sides of his legacy should merely be considered as a hole.

Fr   From Mr. Lebanon to Mr. Anti-Syria

Hariri coupled his financial capital to equally weighty political capital, and became one of the major, if not the major, player in Lebanese politics. He was Prime Minister from 1992 to 1998, and then again from 2000-2004. He developed strategic ties and friendships with big international players, such as former French President Jacques Chirac (who made his affiliation clear when he attended Hariri’s funeral, but snubbed the pro-Syrian politicians including then President Emile Lahoud), and more or less became Lebanon’s face both inside and outside Lebanon. Both periods of his premiership took place under the Syrian mandate, that is when Syria more or less had turned Lebanon into a fiefdom and had a say in, well, everything.

I open an important contextual parenthesis here: Without getting into the nitty gritty of Lebanese constitutional law and at the risk of oversimplifying, it’s important to mention that the Taef Agreement which put an end to the civil war changed the balance of power by transferring many of the President’s powers and his executive authority (the President being always a member of the Maronite community) to the Prime Minister (always a Sunni) and the Council of Ministers (ie the cabinet). This reform was an attempt to more accurately reflect the demographic changes which had taken place in the country since the country’s sectarian power sharing system had been devised in the earlier parts of the 20th century (and going back as far as the 1860s). For a more detailed background discussion on this, see Hassan Krayem’s article The Lebanese Civil War and the Taif Agreement.

I close the parenthesis now and return to Hariri’s tenure as Prime Minister, or more correctly, President of the Council of Ministers. Despite being “in bed” with the Syrian government for a considerable period, Hariri eventually fell out of favour with Bashar el Asad. He had too much clout for the Syrians not be concerned, and they tried to balance him out by strengthening their main ally, President Lahoud. The Syrians circumvented the changes brought about by Taef by propping up Lahoud at the expense of the Council of Ministers. To get an idea of the tug of war between Lahoud and Hariri, see the Middle East Intelligence Bulletin’s “dossier” on Lahoud. When you read this dossier however, keep in mind that the MEIB is published by the US Committee for a Free Lebanon, a right-wing lobby group which includes Fouad Ajami and Daniel Pipes among its recommended experts. It nonetheless offers a detailed account of the power struggle between Lahoud and Hariri, and the former’s relationship with the Syrian government.

In the summer of 2004, as Lahoud’s term was drawing to an end, it became clear that Syria planned for Lahoud to stay on despite constitutionally being barred from doing so (Article 49 (2) of the Lebanese Constitution limits the President to one six-year term in office). Syria therefore began piling on pressure for a constitutional amendment to be passed which would allow Lahoud’s term to be extended by another three years. Hariri initially opposed the extension. But as the story goes, he was summoned to Damascus and had a very brief meeting with Bashar el Asad, who threatened to “break Lebanon” on Hariri’s head if he blocked the extension. Hariri allegedly had such a shock from that meeting that his nose started bleeding. Under pressure, he voted in favour of a bill setting out the amendment.

On September 3, 2004, Parliament approved the amendment, allowing for Lahoud to extend his term in office until November 2007. On September 9, 2004, Hariri told journalists he intended to resign in protest over the extension, which he officially did on October 1, 2004. Over the next weeks and months, Hariri formed an impressive cross-sectarian opposition coalition group which brazenly began denouncing Syria’s role in Lebanon. From the richest man in Lebanon, to the most powerful politician in Lebanon, Hariri transformed himself yet again, this time into the most visible and most important critic of the Syrian mandate. He thus came to embody all the frustrations which had been accumulating in Lebanon against the Syrian regime, and became both the symbol and the leader of anti-Syrian sentiment.

Lebanese Justice, Dutch-Style

The Special Tribunal for Lebanon opened its doors to the world yesterday.   After a tedious investigation which has lasted for the past 4 years, Daniel Bellemare, the last head of the United Nations International Independent Investigation Commission (UNIIIC) and now Chief Prosecutor of the Tribunal, has moved along with his team to The Hague, where the trial for the assassination of former Lebanese Prime Minister Rafiq el Hariri, the 22 others who were killed with him, and any other attacks  which are connected to and of similar nature and gravity  to the Hariri attack, will begin.

Distinguishing features of the Tribunal

The Tribunal is unique in many ways:

I       It’s a tribunal “of an international character” but it’s not a UN tribunal, meaning: it will not be funded by the UN but 49% by Lebanon and 51% by international donors, and its judges will be picked based on pre-determined quotas from among Lebanese and international magistrates;  it will not try international crimes as defined by the Rome Statute which set up the International Criminal Court like crimes against humanity, war crimes, genocide and aggression.  Instead, it will be the first international tribunal to try individuals for the domestic crime of terrorism as defined in the Lebanese Penal Code;  Similarly to the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia, it has been imposed on Lebanon by way of a Chapter VII UN Security Council Resolution (read the text of Resolution 1757 here) instead of a treaty. To better explain this last point: international tribunals can be set up by way of a treaty between the UN and the country concerned.  This means that the country concerned accepted the creation of the tribunal.  In Lebanon’s case, due to a domestic political stalemate, the withdrawal of Hezbollah and Amal-appointed ministers from cabinet, and an ensuing constitutional crisis,  the Lebanese government did not ratify the treaty in time, which led the UN Security Council to issue a Resolution under the UN Charter’s Chapter VII, a chapter which allows measures to be imposed on member states by the Security Council when international peace and security are threatened (read the text of Chapter VII here).

Polarization and Politicization

The Tribunal has become an intensely polarizing institution in Lebanon.  Certain segments of the population support the Tribunal and view it as a means to bring those responsible for the assassinations to justice.  Other segments see the Tribunal as yet another manifestation of Western meddling in domestic Lebanese affairs.  The discourse on the Tribunal locally has become very heated which has had the effect of politicizing it to a phenomenal level.   In this kind of atmosphere, the media and the political parties’ role of information, misinformation and lack of information has succeeded in turning the Tribunal’s politicization into a self-fulfilling prophecy: in Lebanon today, support for or against the Tribunal clearly pits a person in one or other of the main political camps. It also contributes to severely affect public perceptions of the Tribunal’s role, purpose, and impartiality.   Indeed, in discussions with various actors from the legal community who have either been directly involved or keen observers of the Tribunal, a common sentiment has been the frustration with the outreach program (or lack thereof) and information campaign to familiarize the Tribunal to the Lebanese public.

This is not to say the Tribunal is not discussed. On the contrary, it’s discussed daily on news programs and newspapers. It is currently perhaps one of the two or three main sagas in Lebanon’s political life (another one being the upcoming elections). But the attitudes towards it are starkly contrasting, and there is no neutral channel through which it is discussed. One of the rare good-content information channels is this blog set up by the Lebanese Center for Human Rights, a local NGO (not to be confused with the Institute for Human Rights, which is an organ within the Beirut Bar Association). But in most other arenas, the Tribunal has turned largely into a rallying banner, a symbol of either something very good or something very bad. In many ways, the Tribunal has been hijacked and made a hostage of the political agenda of the various parties in Lebanon. In light of this context, it is worth wondering whether the trial(s) which will eventually take place at The Hague and any ensuing judgments will be hijacked and made hostage in the same way.

UNIIIC

UNIIIC, more specifically UNIIIC under its first investigator Detlev Mehlis, has arguably been a contributing factor to some segments’ distrust of the Tribunal. Mehlis issued a damning first report in which he implicated high-ranking officials from the Syrian government and the Lebanese security services in the Hariri assassination. On the basis of his conclusions, four Lebanese generals were arrested and remain incarcerated to this day, despite the fact that no charges have been brought against them. Mehlis was and continues to be roundly criticized, not so much for his conclusions, but for the manner in which he conducted the investigation. Indeed, despite the criminal investigation being ongoing, not to mention of supreme political sensitivity, his report did not shy away from publicizing facts which perhaps should have remained privileged. The report named witnesses, described confessions from suspects who later on recanted their stories, and some of whom disappeared, Hollywood spy-movie style. The Mideast Monitor describes some of these dramatic developments. When Daniel Bellemare was interviewed three weeks ago, he was pressed on whether the revelations and investigative methods of previous investigators (read Mehlis) hamper or prejudice his task. Bellemare diplomatically declined to comment on his predecessors’ work. The lingering impression however remains that Mehlis seriously complicated subsequent investigators’ work.

One criticism was therefore that Mehlis revealed too many of his investigation’s findings. But also, it turns out, Mehlis revealed too much Mehlis. He was in Beirut and decided to enjoy the city’s more epicurean offerings. It’s hard to hide surprise when a respectable academic and journalist describes him as a “playboy” (but I did learn not to quizzically to ask: “really?!” after the second time I heard it). Mehlis apparently became a fixture on the chic restaurant scene, and showed off a glittery lifestyle. Of course restaurant choice can hardly be equated with improper investigating. It nonetheless did serve to alienate him, and by extension UNIIIC, from the public. It also negatively affected the perception of his professionalism and dedication.

Mehlis was first replaced by Serge Brammertz (apparently Mehlis was pressured to resign: see this piece from Wednesday’s L’Orient Le Jour), and then by Bellemare, both of whom chose not to go the playboy route and assumed a very low profile, both personally and professionally in their investigation.

What’s next?

Kind of a wait-and-see game. No one knows who will be indicted, no one knows whether the indicted will be handed over by whatever state they reside in, it’s also not clear when the trial will begin.

Conclusion and Disclaimer

There’s a lot more to be said about the Tribunal. I’ve left out a lot of issues and facts in the post which are just as important as what was mentioned. Don’t take it as a bias. For now, consider this a partial introduction and a prelude to posts to come.

 Blackstar is an international lawyer based in London.