A comment on the critical reactions to the Special Tribunal for Lebanon Hariri Judgment

A few days ago, on the 18 August 2020, the Trial Chamber of the Special Tribunal for Lebanon issued its long awaited Judgment following the trial relating to the assassination of Rafik Hariri in 2005. The Trial Chamber convicted one of the Accused, Ayyash, acquitting the remaining three: Oneissi, Mehri and Sabra.

The public reading of the summary of the Judgment started at 11am and ended at around 3.45pm, with a 30-minute break in the middle. It was therefore a very long and very detailed summary, at times difficult to follow, even for someone who is familiar with the case and the proceedings.

The Judgment itself is 2682 pages (including annexes and separate/dissenting opinions of the Judges) so obviously, don’t expect a detailed analysis of it anytime soon. I do note that as far as I can tell, the Judgment is only available in English, not in Arabic or French, which means that those most affected by the work of the STL cannot read it, even if they wanted to…

For those interested in my “live” thoughts on the summary Judgment, you can read the (very long) thread I wrote as the summary was being read out.

15 years after the event, 6 years after the start of the trial, long awaited Judgment at the STL coming up at 11am. https://t.co/xG9pihOqO0 — Dov Jacobs (@dovjacobs) August 18, 2020

Just based on the summary, it was very clear how much the Prosecution case was based on weak circumstantial evidence and how little evidence the Prosecutor actually submitted on the details of the conspiracy itself, other than the clearly obvious fact that the assassination of Rafik Hariri was decided at some point in time and then carried out. 

I hope to provide more thoughts on the actual Judgment in the future, once I find time to read it, but what I did want to reflect on today is the reactions to the Judgment itself.

I’m sure that when myself and others finally go through the Judgment, we will find reasons to comment on it and even criticise it on discrete legal, procedural and factual points.

What I find striking is that the cascade of critical commentary (on the fact that the STL might have been a waste of money, that it did not deliver justice to the victims by failing to provide the relevant political context of the assassination, that it shows the limits of Trials in absentia, that it failed in establishing a credible precedent in prosecuting terrorism internationally, etc.) seems to be directed at the STL generally as an institution rather than at the Judgment itself.

For example, the fact that the STL was possibly too expensive would still be arguably true, even if all Accused had been convicted. More generally, the opportunity of creating such a massive institution for essentially one incident could have been questioned more or less from day one. Why wait for the Judgment to point it out? Such late criticism of this kind suggests that what bothers some people is less the cost than the acquittals… This is not something surprising obviously. I’ve been following reactions to the issuance of international judgments for many years now and regularly commented on such reactions here on Spreading the Jam, more particularly lamenting how acquittals are automatically considered as failures, as if international trials should necessarily conclude with a conviction. 

The same is true of the political context: for those who have followed the proceedings since the beginning, it should not come as a surprise that the Judgment only minimally addresses alleged Hezbollah and Syrian involvement in the assassination. Indeed, this was never the focus of the Prosecution case and, from what I understand, the Prosecution did not present much evidence in that respect. In other words, the Judgment, whether it ended in acquittals or convictions, was never going to satisfy those who would have wanted some clear findings on the broader organisation of the conspiracy and who instigated at a higher hierarchical level than the Accused.

Equally puzzling is the idea that this Judgment shows the limits of trials in absentia. The fact that trials in absentia are problematic in many respects, especially for the Defence, is uncontroversial. But it is not in my view illustrated so much by the Judgment itself. Indeed, 3 of the 4 Accused were acquitted despite the fact that it is harder for the Defence to work in such circumstances.

Also well known for anyone following the STL was the fact that the Prosecution case relied exclusively on circumstantial evidence and would have required the Judges to base any conviction on a considerable amount of “reasonable inferences” (often a politer way of describing speculative more or less educated guesses in international judgments) to find the Accused guilty. 

The bottom line is that the STL was always going to be a far too expensive experiment, and more importantly was always going to be at risk of not meeting the objectives that had been, possibly unrealistically, assigned to it, was always at risk of being a purely theoretical exercise, remote from the reality of what was actually happening in Lebanon or important for the Lebanese, especially 15 years after the facts.

Again, there is nothing wrong with criticising the STL as an institution. Some people, like myself, have been doing this for many years now. For example, I was never convinced by the extremely creative approach adopted by the Appeals Chamber to recognise the existence of a crime of terrorism under international law, nor by its case-law on corporate criminal liability (see here and here).

Already in 2011, commenting on some earlier in my view unconvincing procedural decisions by the STL, I noted: 

The Tribunal is certainly alive, but, torn between different logics, orders and traditions, one has to wonder whether it should have been created at all, and, now that it has, whether is should not be allowed to be “borne away by the waves, and lost in darkness and distance”.

(The quote is the last line from Mary Shelley’s Frankenstein, a less-than-subtle allusion to the “hybrid” nature of the STL…)

In 2014, in a great volume on the STL edited by Nidal Jurdi and Amal Alamuddin and David Tolbert, I concluded a fairly critical chapter on the STL rules of procedure where I considered that the Judges were like referees trying to “steal the show” of a football game in the following way: 

It is only if the STL refocuses on the game that is actually being played in the territory where the crimes were committed rather than focusing on the procedural niceties being played in The Hague that it will have any chance of actually delivering on its promise of justice. If not—beyond all the technical discussions on the procedural framework of the STL—what is the point of setting up rules for a game, which nobody is in fact playing, and more importantly, which nobody may be watching anymore? The ultimate risk is therefore not really that the referee could be stealing the show but rather that there might not actually be a show anymore to steal, just an empty pitch and the echoes of the now departed spectators dying out as the last floodlights are inexorably being switched off, one by one.

In other words, I was suggesting that the STL might become, with time, an irrelevant and purely academic exercice with no real-world effect, a show nobody would be watching.

I therefore do not necessarily disagree with the criticism I am hearing since the Judgment came out. What I find somewhat unsatisfactory today is those commentators who are only now coming out of the woods with criticism of the STL, which could have been expressed years ago, simply, it seems, because the trial ended up in acquittals.

If these commentators truly believe what they now say, they should have had the intellectual honesty to say it many years ago already, with the inevitable conclusion, irrespective of the outcome of the trial, that the STL might have been a failed experience. It is too easy for these commentators to come out with this conclusion now, after the battle, simply because there is now the easiest target in ICL for them to always be on the “good side of history”: a (partial) acquittal.