Hariri assassination inquiry closes its doors and leaves terrorism cases in limbo

The future of the special tribunal responsible for prosecuting those responsible for the murder of former Lebanese prime minister Rafik Hariri in 2005 has been thrown into doubt. Faced with a funding cliff, the international court had to suspend proceedings in The Hague and close its office in Lebanon.

The Beirut office led by Kevin Mannion, a former member of the Defence Forces, was the tribunal's public face in Lebanon.

Up to 350 security and military personnel were once involved in providing protection and manning checkpoints around the office in the upmarket suburb of Monteverde. The Lebanese army dismantled its red and white posts in August and the Beirut staff have all been let go.

This is not the end most would have hoped for for the tribunal’s Lebanese outpost, but misplaced expectations have become an unfortunate part of the international court, which spent 12 years and several hundred million dollars securing one conviction.

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Due to the funding crisis, the tribunal’s second trial concerning three attacks on Lebanese politicians deemed connected to Hariri’s assassination was abruptly ended with two weeks’ notice in June. It was also unclear whether an appeal related to the Hariri case would proceed.

The decision not to proceed with the trial for the connected attacks was "disappointing", says Nidal Nabil Jurdi, who represents Marwan Hamadeh, one of three Lebanese politicians who was targeted.

“Victims should not pay a price for the waste of resources at the tribunal.”

After speculation of a complete closure, the UN has granted a small budget to the court for 2022. The appeal in the Hariri assassination case is due to commence in The Hague this October, after which the tribunal will switch to a “dormant” structure.

The position of the connected cases is less clear. The Irish Times has been informed that at a recent meeting, the tribunal judges voted against an amendment of the court’s rules that would have allowed the cases to be transferred to the jurisdiction of Lebanon.

Jurdi says that it would be “catastrophic” for the cases to be transferred to Lebanese courts, which are “unwilling and unable” to deal with such cases and which could jeopardise the list of witnesses. But with neither funding for a trial at The Hague nor a transfer to Lebanon, the connected cases are in a form of limbo.

When the special tribunal was established at the request of Lebanon by the UN Security Council in 2009, "the intention was good", says Dr Chibli Mallat, a professor at the University of Utah specialising in Middle Eastern law. It was "an important concept based on the fact that Lebanese justice could not deliver without major international support".

Full retrial

The tribunal had many innovative features: a unique jurisdiction to prosecute terrorism, an independent defence office, and a team dedicated to victim participation. What the court lacked was defendants to prosecute in-person in either of its cases.

With their whereabouts unknown, the four accused of conspiring in the bomb attack on Hariri were tried in absentia. Ultimately, only Salim Ayyash was convicted by the tribunal last August and the other three were acquitted – a decision which was appealed by the prosecution. As Ayyash was convicted in absentia, he is also entitled to a full retrial in the unlikely event that he resurfaces.

Peter Haynes QC, who represents victims in the case, says they were "disappointed that the link between the crime and Hizbullah and Syria was not made in the judgment" and because "the whole process by then had taken 15 years".

International courts need to realise that “they can’t keep just going on and on forever”, he says. “You have to deliver justice in a timely and cost-effective manner.”

After seven years of investigations, the first and second cases were run consecutively rather than concurrently. The Belgian pre-trial judge spent more than a year reviewing the first case. The ensuing trial ran for almost four years under an Australian judge. The court then took two years to deliver its judgment in the first case before turning to the connected cases, which ran out of funding less than a year later.

“There was a tension in that you had a trial chamber that was essentially common law sitting around waiting for a civil law judge to do his investigating,” says Haynes.

Jurdi is critical of the “layers of bureaucracy” at the tribunal. At one point, it employed 434 people while effectively managing four cases. The International Criminal Court, for context, employs 900 people while managing 21 active cases and 14 investigations.

The tribunal has been criticised for hiring personnel far in advance of when they were required, while others remained employed with no further function. It was “like an island without oversight” within the UN, says Jurdi, “nobody took proper responsibility for it”.

While the international community has claimed to be “fatigued” by the tribunal, it is Lebanon that has reportedly paid the most for the tribunal in the last decade.

An annual budget of $60 million was originally estimated and it was agreed that Lebanon would contribute 49 per cent while international donors would provide 51 per cent. But, while the Lebanese government has reliably contributed around $29 million annually until this year, international contributions for the tribunal have dwindled since 2012.

Despite this shift, the tribunal’s annual reports continued to refer to a 49:51 split between Lebanon and international donors that does not reflect the extent of Lebanese funding. The tribunal’s spokesperson did not respond to a request for comment.

“Victims have been punished twice: first by the attempted assassinations and secondly by the special tribunal,” says Jurdi. “Lebanon needed the tribunal but not its mismanagement.”