In Lebanon, the Hariri tribunal finds itself on trial

Justice too long delayed has been called justice denied. But what if that justice, looming in the case of the Special Tribunal for Lebanon, threatens a fragile stability or even ignites civil war?

Those questions underlie the United Nations attempt to prosecute the Feb. 14, 2005, assassination of Rafik Hariri, Lebanon's former Sunni prime minister. That is an eternity ago in Middle East time – and if the first indictment is published in the coming weeks it will arrive after revolution in Tunisia, revolt in Egypt, and as the Arab world appears to be turning further away from relations with the West.

Yet the Hariri tribunal brings a notion of "international justice" into Lebanon's chaotic politics, its communal power-sharing that includes feudal lords and sectarian leaders. Half of Lebanon supports the tribunal; half is strongly opposed.

And the division appears to be hardening. Most troubling are recent antipathies between Sunni and Shiite Muslims that have risen in no small measure due to the tribunal.

Located far from Beirut in a placid Dutch suburb, the tribunal was set up under the aegis of Presidents George W. Bush and Jacques Chirac; it was initially a welcome effort to end an endless round of political killings and to challenge Lebanon's meddlesome neighbor Syria with a local dose of civil society justice. A few years earlier, the Serbian population revolted against strongman Slobodan Milosevic after he was indicted. Why not Lebanon? But given the complex politics of the Middle East, that question seems slightly archaic.

Now, the high stakes in Lebanon are bringing a critical look at the tribunal as a vehicle of international justice.

The tribunal indictment probably fingers members of Syria's ally Hezbollah, the Lebanese Shiite militant group that has vociferously opposed the tribunal as an exercise in selective justice by the West and Israel. Its opposition brought down the government of Prime Minister Saad Hariri, son of the slain leader.

After it collapsed Jan. 12, Hezbollah began orchestrating a new government and propelled Najib Mikati, a billionaire businessman with a reputation as a skillful politician, to the position of prime minister-designate. On Monday, the sixth anniversary of his father's death, the recently ousted Hariri vowed that his movement would oppose that new government. But Hezbollah's ascendancy, and adamancy that Mr. Mikati not cooperate with a judicial body, ensures the tribunal's fate looms large six years after Rafik Hariri died in a massive truck bomb that killed 22 others.

While some international jurists advocate a delay – partly to allow the new government time to form and partly to address legal issues – tribunal officials at The Hague insist they will press on. Indictments were given to a pretrial judge on Jan. 17.

Some Lebanese see the tribunal as compensation for an era of politically motivated killing. Others see Rafik Hariri as the billionaire friend of Jacques Chirac (Mr. Chirac resides rent-free in a Paris apartment overlooking the Seine that is owned by the Hariri family) and the tribunal as a political tool aimed at the world of Shiite militants from Lebanon to Iran.

"I used to support the tribunal but now I think it's going to cause more trouble than it's worth. I don't like to say this, but sometimes I think it's better if it just went away," says Yasmina Hobeika a 20-something Christian woman who works as a hair stylist in Beirut.

But Sami Salam, a young Sunni and sound engineer, argues, "We should know who is behind all these killings, even if the tribunal is scrapped. We cannot just forget about it after all this time."

The only tribunal organized for a single assassination

International tribunals over the past two decades prosecuted large-scale heinous crimes – genocide, ethnic cleansing, and crimes against humanity. There was the indictment of Sudan's Omar al-Bashir and Co., for genocide in Sudan, and genocide in the Balkans and Rwanda. Prosecutors investigate "criminal enterprises" that systematically kill civilians. Tribunals, however imperfectly, aim to expose evildoing, increase the rights of women and children, bring some closure or reconciliation to victims, and provide a less biased narrative to the history of a tragedy.

Yet under those criteria, the Lebanon tribunal comes up short. It is the only international tribunal organized for a single assassination. Its legal basis is an untested hybrid of international and Lebanese law. French scholar Jean-Baptiste Beauchard notes it is the first tribunal to prosecute "terrorism." This is "a crime which is neither a war crime, nor genocide, nor a crime against humanity, but an act of terrorism, and that is a legal problem. There is no definition in international law as to what 'terrorism' means, no consensus."

The tribunal's origins "are political, a check on Hezbollah, and this plays out badly in the popular mind in Lebanon since so many worse atrocities are ignored," says a prominent American war crimes scholar close to The Hague who spoke on condition of anonymity. Another flaw, he notes, are plans to try the accused in absentia. Defendants won't be in court. "No one in a tribunal has been tried in absentia since Nuremberg, and this is acknowledged as the major flaw in that court."

Another sore subject is the tribunal's interaction, or lack of it, with civil society in Lebanon. It has been distant and aloof. Witnesses have recanted and judges have resigned without explanation.

Tribunal plagued by fraud, bunker mentality

The tribunal seemed "snakebitten from the start," says the American jurist. Initially, a German judge, Detlev Mehlis, led a 2005 commission looking into the assassination. It reported charges based on one witness that led to the arrest of four Lebanese generals. The report now reads like a Hollywood script. The witness was a con and the generals were released after sitting in jail even after the fraud was exposed.

Following this gaffe, the UN Security Council established a tribunal at The Hague in 2007. But as Mr. Beauchard puts it, the new body seemed oblivious to the need to establish legitimacy in Lebanon. "There's been a bunker mentality with this tribunal from the start," he says. "The communication with Lebanese civil society is almost nonexistent. So many opportunities were wasted."

Mark Ellis, director of the International Bar Association in London, says that while bedrock principles of international justice need support, "this [Lebanon tribunal] mechanism and the way it was used, that is not black and white. If it is hundreds of thousands killed, that's not a nuanced conversation. But this tribunal came from a very unorthodox process. It doesn't mirror any other tribunal out there. It came from a doubt that any accountability in Lebanon itself was possible. So it was an experiment; I hope it succeeds. But you commit an international justice concept to crimes of lesser degree, and that is a risk."

In Lebanon, support for or against the tribunal falls along political and sectarian lines, but there have been significant defections. Druze leader Walid Jumblatt was a supporter when the tribunal started in 2007. Mr. Jumblatt began to change his mind after several days of fighting between Hezbollah and the Sunnis and Druze in May 2008. For Jumblatt, Lebanon faced a choice of either justice for Hariri or stability – and the two were incompatible. In January, Jumblatt cut ties with Hariri's coalition and backed Mikati.

Mikati has been silent on his course of action on the tribunal, although it is widely believed that he secured Hezbollah's backing only on the basis that he will end Lebanon's cooperation with it. He is expected to explore ways to at least delay the tribunal and create some space that could relieve tensions.

"He will be reflecting a conviction that maintaining the stability of the country requires cutting the official relationship with the tribunal," wrote Imad Marmal, a columnist for As Safir newspaper, "just as maintaining the stability of this country required, at an earlier stage, giving a chance to the tribunal."