Can Lebanon kill its own tribunal?

Reading between the lines of NOW Lebanon’s interview this week with François Roux, the head of the defense office at the Special Tribunal for Lebanon, one immediately senses a tension that has yet to be resolved between the legal and political dimensions of the upcoming trial of those suspected of involvement in the assassination of Rafik al-Hariri.

This has been both the strength and the Achilles Heel of the tribunal process. On the one side you have the judges and lawyers in Leidschendam, for whom the assassinations in Lebanon in 2005 provide grist for a stimulating judicial case, away from political intrigue; on the other you have a majority of Lebanese, who have focused on the political repercussions of the Special Tribunal. Until now the conventional wisdom is that politics will not impact on the pursuit of justice and that the tribunal “cannot be stopped.”

But how true is that? Yes, the tribunal probably cannot be stopped, but it can be shot through with enough arrows so that its foundations and credibility may be damaged, and its activities slowed down.

It’s not clear what the prime minister-elect, Najib Mikati, will do about the tribunal once he forms a government. Many insist that he was appointed on condition that he revoke the agreement with the tribunal, cease funding for the institution, and recall the Lebanese judges. However, Mikati has implicitly denied this, telling the French-daily Le Figaro this week, “My position is clear, unless the Lebanese decide to reconsider [relations with the tribunal], unanimously and with Arab support, the government remains committed to respecting the protocol with the United Nations on the tribunal.”

Until we can determine whether that’s true, we must give Mikati the benefit of the doubt. But for the sake of argument, what would happen if a new cabinet did break with the tribunal? This was a question posed to Roux, and he was understandably evasive. “A new government is bound by agreements that were signed by a previous government,” he answered, adding: “The tribunal will continue to do its work. It does not change anything. A government might fall, but the state continues.”

The consensus view is that even if Lebanon fails to pay its 49 percent share of the institution’s budget, alternative sources of funding will be found. Several states have already offered to cover the shortfall. As for Lebanese cooperation with the tribunal, the tribunal’s official position is that this is mandatory because the agreement Lebanon signed with the body came under Chapter VII of the United Nations Charter. Article 15 of the agreement itself also makes cooperation compulsory.

There is less sanguineness, however, when it comes to the judges, who were named not by Beirut but by the Security Council. An effort by a new cabinet to remove the judges is bound to agitate at least some of the Lebanese named to the tribunal’s offices. If they succumb to the pressures from home, it may not be easy for the tribunal to find replacements. Perhaps some judges may be sought out in the diaspora, in itself hardly ideal; or some effort would have to be made to find judges in Lebanon willing to replace their shaken peers. However, such an endeavor could delay proceedings. And if this leads nowhere, according to some observers more radical measures might have to be considered, such as placing the tribunal under full UN authority.

A Lebanese divorce from the Special Tribunal would play against the initial intent underlying the tribunal’s establishment: to bolster the rule of law in Lebanon, and more specifically to ensure that there would no longer be impunity for political assassination in the country. That was why the tribunal was conceived as a mixed body, and it is why the prosecutor and UN investigators in Beirut until today are dependent on the Lebanese judiciary and security services to implement their requests. If the tribunal were to lose its Lebanese identity, this could seriously undermine the rationale of the enterprise as a whole.

This disconnect between Lebanon and the tribunal would be taken to its extreme if none of the individuals indicted is in the dock, so that the trial is conducted mostly or entirely in absentia. Asked about his effectiveness in such a trial, Roux responded: “Our role in the case of absentia trials is all the more important. Because this is a novelty in international law. This is the first time that we can have such a trial. Our role would be to support defense teams in that scenario by putting all our skills at their disposal, so that a trial like that can be a success.”

But what would constitute “success” if no one is in court, if Lebanon proclaims that it will have nothing to do with the tribunal, and if the idealistic ambitions that accompanied the setting up of the institution have all evaporated? If success means the process moves forward to some intellectually stimulating climax, because the case embodies legal novelties, but with none of the guilty ever punished, then this seems a fairly low standard. The Lebanese surely deserve better.