The Hariri Tribunal: Justice over Sovereignty?

Thoughts on the Special Tribunal for Lebanon

On the 1^st of March 2009, the International Tribunal for Lebanon opened in The Hague, with the responsibility for prosecuting those responsible for the assassination of the former Prime Minister of Lebanon Rafik Al-Hariri. The Tribunal marks another milestone in the era of enhanced interventionism that began with the Dayton Agreement, for the first time an international criminal court will be responsible for trying a ‘terrorist’ crime against a specific person. Have the Lebanese traded sovereignty for justice in asking for this tribunal? Will we see the international community and the West in particular playing an increasingly interventionist role and using the instruments of international justice to bring about political ends? In what follows, I will describe the events that brought about the tribunal and argue that it a symptom of the general disorientation of contemporary politics in which sovereignty and self-determination have receded in favour of deterministic tendencies that stifle the political development of societies.

On the 14^th of February 2005, a motorcade driving the former Prime Minister of Lebanon Rafik Al-Hariri along the Beirut waterfront was targeted by a large explosion, killing him and 22 others and wounding more than a 100 people. The assassination set in motion a sequence of events that would lead to the withdrawal of Syrian troops from Lebanon, nearly three decades after they first entered it as part of the Arab Deterrent Force. The political consequences of the assassination became quickly apparent, turning large sections of Lebanese society against Syria and leading to a radical reorganization of the alliances that govern Lebanese politics. The international community assumed control of the legal aspects early on, with the consent of the anti-Syrian alliance in Lebanon that sprang up in the aftermath of the assassination, and that had gained a parliamentary majority in the elections that took place in May 2005.

Initially, the UN Security Council 1595 set up an international mission to investigate the murder itself, first headed by a German judge and then by a Belgian. A subsequent agreement between the Lebanese Government and the United Nations set up the Special Tribunal for Lebanon whose aim is to prosecute those responsible for the assassination. Because of Syria’s suspected involvement in the assassination, many felt at the time that an international tribunal would be more effective than a Lebanese court, both in terms of the summoning of witnesses and the possible prosecutions of Lebanese and Syrian officials who might be involved. Time will tell whether this will be a successful display of international justice, but there are serious questions that this tribunal pauses for Lebanese politics, and ultimately for the continuous erosion of sovereignty that such international interventions lead to.

Al-Hariri’s relationship with Syria had become very strained in the months leading to his assassination, primarily because of Syria’s insistence on extending the term in office of its ally President Emile Lahoud by 3 years, in clear contravention of the Lebanese Constitution. Syria suspected Al-Hariri of secretly lobbying for the UN Security Council Resolution 1559 calling for the withdrawal of foreign forces from Lebanon, a clear criticism of the role that it was playing in Lebanon. In March, several weeks after the assassination, a UN report compiled by the first fact-finding mission to Lebanon reported that the President of Syria Bashar Al-Assad had threatened Mr Al-Hariri with physical harm if he continued to oppose his policies in Lebanon, but the report stopped short of pinning the blame for the assassination on Syria[i]. Syria’s initial reluctance to cooperate with the UN investigative team reinforced the suspicion among the majority of the Lebanese that it was responsible for the assassination, and Al-Hariri’s political allies, many of whom had been close to the Syrian leadership for years, publicly accused Syria of carrying out the assassination.[ii]

In the days that followed the assassination, thousands of Lebanese demonstrators gathered in the city centre to demand a Syrian withdrawal from Lebanon, in what came to be known later as the ‘Cedar Revolution’. Many Lebanese felt that by assassinating Al-Hariri, Syria had crossed an intolerable line. In the first few days, the demonstrations were spontaneous in nature, and for a short while represented a possibility for a genuine political transformation in Lebanon. People that had been apathetic about politics for a long time were driven by anger to flock onto the city centre and demand political change. Events unfolded quickly, starting with the resignation of the pro-Syrian government, and culminating in a complete Syrian withdrawal by April. The ‘revolution’ was successful, but only to a certain extent.

The demonstrations proved to be the easy part, public anger on its own does not make for a genuine revolution. In the weeks that followed, it was obvious that no new leadership will emerge to seize control of the moment, the same faces that had fought the civil war in the 70s and the 80s continued to lead their group, with Al-Hariri’s role being filled by his son. Al-Hariri himself had been one of the few exceptions among the Lebanese political class in not coming to power either through heredity or by leading one of the warring militias during the civil war. A self-made man who had immigrated early in his life to Saudi Arabia, Al-Hariri became a very successful businessman, primarily through construction and telecom companies. But in the world of Lebanese politics, he was thrown among the warlords and the ‘communal’ leaders who constituted the political class. They remained at the helm after his death, radically reordering their alliances and loyalties to suit the needs of the moment.

It is important not to underestimate the political significance of the ‘Cedar Revolution’ but it is also important to understand the reasons that contributed to its failure to transform the political dynamics in Lebanon. This failure had severe consequences that today manifest themselves in the stagnation that cripples political life in Lebanon, reproducing the components of the political model that has stifled the Lebanese republic since its inception. As I have argued before,[iii] this model could be seen as multiculturalism taken to its logical end in legal and political terms, reducing Lebanon to a democracy of communal groups instead of being a democracy of individuals that are free to choose their political affiliations. For most of the 20^th century, the interaction between those groups has shaped Lebanon’s history. Peace and prosperity ensued when they found suitable arrangements to protect their interests, punctuated by periods of instability when those arrangements failed to satisfy all the groups involved. This pattern did not alter in the aftermath of the ‘Cedar Revolution’, only the relationships among those groups had altered.

Another important feature of this political model is the relationship between those groups and the regional and international ‘players’ as the Lebanese often call them. As early as the mid nineteenth century, the different Lebanese sectarian groups had clear affiliations with other countries. The Maronites for example had very strong ties with France, a relationship that would yield many benefits under the French Mandate (1920-1946) and after Independence. The Sunnis on the other hand preferred to look east to their fellow Muslims in Egypt or Syria. The different groups constantly tried to utilise those outside powers to increase their political influence, sometimes to disastrous effect, such as the alliance between the Christian militias and Israel that became apparent during the Israeli invasion of Lebanon in 1982. In that sense, the ‘Cedar Revolution’ did not radically alter that pattern, or teach the Lebanese to break their dependence on outside powers; it only substituted one favoured set of foreign sponsors for another.

 The communal power arrangements and the state of political juvenility that those communal groups assume in the presence of outside sponsors that they invite to mediate those relationships do not allow for radical political change, and this quickly became apparent in the aftermath of Al-Hariri’s assassination and the Syrian withdrawal. This sequence of events gave rise to two competing political groupings that are very eclectic in constitution, known as the 8^th and the 14^th of March groups, after the corresponding dates in March 2005 when they both staged large demonstrations in the centre of Beirut in the ‘war of the crowds’. The close allies of Syria, primarily Hezbollah and Amal, the two large Shiite groups, and other smaller groups, gathered on the 8^th of March, effectively to bid farewell to the retreating Syrian army. In response, Syria’s opponents summoned an even larger demonstration on the 14^th to demonstrate the extent of their public support. For the past four years, the competition between these two groups has defined the nature of political life in Lebanon, with the clearest difference between them being their outward stance: Hezbollah and its allies look to Syrian and Iranian patronage, while the 14^th of March group looks to the West and pro-Western Arab States.

Even though the anti-Syrian camp won a majority in the parliamentary elections in May 2005, its opponents did not allow it to translate that into effective governance. In July 2006 Israel waged a month-long war on Lebanon after Hezbollah had kidnapped two of its soldiers, leading to huge devastation and loss of life. Buoyed by the support that it had gathered in the aftermath of that war, Hezbollah and its allies escalated their opposition to the anti-Syrian camp, which they had joined in a sort of national unity government in the first cabinet after the Syrian withdrawal. On the 13^th of November 2006, Hezbollah’s ministers and their allies resigned from the cabinet just before it was due to discuss the International Tribunal. Hezbollah appeared to be acting on Syria’s behalf, attempting to block the establishment of the International Tribunal and risking further destabilisation, but it also had its own agenda.

 In December, the 8^th of March coalition lead by Hezbollah ‘occupied’ the central district of Beirut, setting up camps for their supporters and besieging the Prime Minister Fouad Al-Sanyoura in his official office, demanding the resignation of the government. The choice of location for the protest was not accidental; it had both symbolic and practical connotations. The reconstruction of the city centre that had been completely destroyed during the 15 years of civil war was one of Al-Hariri’s biggest achievements. For years, Beirut had missed its dynamic and vital historic centre; a whole generation grew up without any memory of that part of the city. Al-Hariri launched one of the most ambitious urban reconstruction projects in the world, not without much controversy about his style, and managed within a few years to bring back life to the city centre. The mounds of rubble covered by wild growth had disappeared, and once again the city centre was a bustling district, housing both the cabinet offices and the parliament, a banking district, and a thriving entertainment district. Hezbollah’s encampment paralysed all of those activities, holding the city to ransom in pursuit of their political demands.

This face-off between Hezbollah and the 14^th of March coalition once again portrayed the limited ambition for self-determination that all of the political parties in Lebanon lacked. Hezbollah was clearly pushing the country towards economic stagnation and political instability, but it had no real agenda for internal change, as subsequent events would prove. It mainly wanted to renegotiate the terms of its participation in the Lebanese political system, but not challenge that system itself. In parallel, it wanted to ensure that Lebanese foreign policy remains consistent with Iranian and Syrian goals, rather than Saudi or American ones. The pro-Western coalition for their part preferred to see justice delivered by the International Community, some among their ranks argued that the Americans and the West should intervene to remove the regime in Syria. Once again, the Lebanese factions were relying on outside powers to solve their problems for them. They failed to come to any power-sharing agreements, and it appeared that the legacy of the ‘Cedar Revolution’ would be two irreconcilable political camps.

For a year and a half, Hezbollah paralysed Beirut’s city centre, and with it political life in Lebanon. In November 2007, the unconstitutional term of President Lahoud came to an end, but Hezbollah and its allies blocked the attempts to elect a successor, despite the fact that the replacement had been agreed on. Matters came to a head a few months later, with the country suffering from a constitutional void on top of its political and economic woes. In May 2008, a trade union demonstration ignited a series of armed confrontations in which Hezbollah quickly ceased control of Beirut and its militias paraded their weapons in its streets. The 14^th of March alliance had lost a military confrontation they never wanted to fight and were not equipped in any event to deal with it. Hezbollah had broken its promise not to use its weapons against other Lebanese factions, its pretext for keeping its military capabilities was that were intended to be used in the resistance against Israel.

Once again, the Lebanese turned to an outside power to take them out of the impasse they had reached. This time their saviour was the small Gulf state of Qatar. It hosted representatives of the Lebanese factions for discussions that ended with the Doha Agreement that paved the way for the election of a new president. Hezbollah and its allies extracted a considerable concession from the ruling alliance: the power to be represented in the cabinet with the power to vote down major decisions. The 14^th of March alliance had effectively sacrificed their parliamentary majority, their representation in the cabinet would not allow them to pass decisions without the consent of Hezbollah. This has set a dangerous precedent that reinforces the notion of Lebanon as a ‘democracy of communal groups’: parliamentary representation does not equate with political power.

For the moment, both camps are preparing for the next parliamentary elections in June. The events of the past few years have increased sectarian divides, giving the leaders of the confessional groups almost uncontested support among their audience. The results of the elections are largely known, with the Sunnis, the Shiites and the Druze expected to vote for their respective established leaderships. The majority of the Christians have clear affiliations, the battle will be for the votes of roughly one-fifth of them. That one fifth can swing the parliamentary majority one way or the other.  This is inconsequential however, regardless of the outcome, Hezbollah will find itself back into the cabinet armed with its vetoing power that it established on the basis that it represents a large group in Lebanon. The Lebanese may have gained independence from Syria through the ‘Cedar Revolution’, but they have acquired a dependency that is far more insidious. Cultural groups have come to the fore at the expense of political parties, embodying the political agency of their respective societies and with clear affiliations to external powers.

The West’s actions since the end of the Cold War have reinforced these tendencies, and it is not an exaggeration to say that this pattern will spread to more countries than Lebanon. The role that the West played in the breakdown of Yugoslavia reinforced ethnic and cultural identities and their political claims at the expense of a wider sense of politics. Equally, the West’s aggressive intervention has reinforced the notion that such groups cannot resolve their competing claims without Western patronage and custodianship. The first casualty of these developments is of course sovereignty, which is compromised both by local actors and by interventionist states. Self-determination is substituted with the demands for more intervention, with different groups outbidding each other in the victimhood game that is so appealing to the Western media and politicians. The West allows itself the right to intervene, on moral grounds, in situations that it does not understand, further complicating the issues.

In the case of Lebanon, Western intervention in the build up to and since the assassination of Al-Hariri has exacerbated the situation, further complicating the relationship between the competing factions. This is not by way of shifting the blame from the Lebanese themselves, they are the ones responsible first and foremost for their own affairs. In their failure to arrive at a consensus about how to run the country in the aftermath of the Syrian withdrawal is a historic failure that they will have to live with the consequences of. However, the loud Western support for the ‘Cedar Revolution’ gave the 14^th of March coalition the impression that they can translate that into effective control of Lebanon. It would have been far better to arrive at an agreement with their opponents that could lay the foundations for a different type of politics. Hezbollah for its part failed to mature into a political party instead of Shiite organization, missing yet another opportunity to transform itself from a dependent of Syria and Iran into an independent force in Lebanese politics. Both parties traded independence for a state of political immaturity that draws on external support.

And thus we arrive at the Special Tribunal for Lebanon with internal politics at a deadlock and the Lebanese pinning hope on the international legal system to deliver justice. The tribunal is ‘hybrid’ in nature, employing a mixture of Lebanese and International judges and prosecutors, but applying Lebanese law instead of international criminal law. This comes with an important exclusion however, ruling out the death penalty and forced labour which are otherwise applicable under Lebanese law. Sentences handed out by the tribunal will be served in a State other than Lebanon, selected by the President of the Tribunal from a list of ‘volunteer’ states. The Secretary General of the United Nations is responsible for appointing the judges and prosecutors, in consultation with international judges and the Lebanese government.

 It was decided to hold the proceedings of the Tribunal in The Hague “for considerations of justice and fairness, as well as security and administrative efficiency”.[iv] This is one of the most intriguing items in the Tribunal’s mandate. For starters, it bluntly questions the integrity of the entire Lebanese justice system, an assessment that seems to be shared by both the UN and the Lebanese government. The justification for the international nature of the tribunal is not the possible involvement of other states in the assassination of Al-Hariri, but the implied inefficiency and unfairness of the legal system in Lebanon. Furthermore, one article in the proposed memorandum of understanding between the Tribunal and the Lebanese State that is currently being studied by the Lebanese Cabinet gives the chief Prosecutor of the Tribunal unrestricted access within Lebanon, without pre-approval, and regardless of any legal, parliamentary or sovereign  immunity. All of these encroachments on Lebanese sovereignty and law are sweetened by this proviso: “The Tribunal’s standards of justice, including principles of due process of law, will be based on the highest international standards of criminal justice”.[v]

But what are these international standards? How can any legal system exist in isolation from a political context that gives it meaning and allows it to develop in response to the changing character of the society it serves? The appearance that both the ‘international community’ and the Lebanese government are trying to give is that the Tribunal is a non-political entity primarily because of its ‘technical’ nature which conforms to the aforementioned international standards. Both are at fault. The Lebanese government is compromising significant aspects of national sovereignty in agreeing to those conditions, and the UN with the collusion of Western and Arab States is reinforcing the notions of dependency implied by such ‘custodial’ arrangements. The UN and the international criminal justice system are portrayed as ‘neutral’ institutions that can help immature nations govern themselves. In fact, this will more likely usher in a new era of dependency that will further stifle political development in nations entering such relationships.

The Tribunal’s charter gives it the power to extend its jurisdiction beyond Al-Hariri’s assassination “if it finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005 are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005”. This refers to a series of assassinations and assassination attempts that had both preceded Al-Hariri’s murder and followed it, targeting several politicians and journalists from the anti-Syrian camp. This gives the impression that the Lebanese are asking the International Tribunal not only to deliver justice but also to write their history, a history from which their politics can develop. Such power should never be handed to an outside agency, even one that is supposedly ‘technical’ and not political in nature. This is outright abdication of responsibility by the Lebanese, and it will only reinforce their dependency on the outside world. The West has nurtured this sense of dependency and exploited it in its confrontation with Iran and Syria, but in effect, it has no clear agenda in the Middle East, especially after the catastrophic American failure in Iraq. It is not hard to see the work of the Tribunal being subject to the fluctuations of international relations, especially between Western and Middle Eastern states, why submit to such a flimsy authority?

[i] http://www.timesonline.co.uk/tol/news/world/article436827.ece

[ii] http://www.timesonline.co.uk/tol/news/world/middle_east/article430951.ece

[iii] http://www.culturewars.org.uk/index.php/site/article/the_illogical_end_of_multiculturalism/

[iv] http://www.un.org/apps/news/infocus/lebanon/tribunal/factsheet.shtml

[v] http://www.un.org/apps/news/infocus/lebanon/tribunal/factsheet.shtml

Karl Sharro 2009