The Daily Star - Special Tribunal for Lebanon: 2012 in preview, December 28th 2011

By Willow Osgood

BEIRUT: The Special Tribunal for Lebanon dominated national politics in 2011 from the January collapse of former Prime Minister Saad Hariri’s Cabinet over his refusal to cut ties with the court, to the November crisis over the payment of the country’s share of funding to court, which threatened Prime Minister Najib Mikati’s Cabinet. Next year promises more of the same. Two major events on the horizon – an impending trial of the four men indicted this summer in the 2005 assassination of Rafik Hariri and the renewal of the STL’s mandate which is set to expire at the end February – mean that the U.N.-backed court will remain at the forefront of politics.

The release of the prosecution’s indictment against the four men, Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hassan Sabra, confirmed the long-standing rumor that the suspects are members of Hezbollah, and led to a hardening of rhetoric between March 14 and March 8 parties, with Hezbollah Secretary General Sayyed Hasan Nasrallah vowing that the men would not be arrested “even in 300 years.”

The indictment also set in motion pre-trial hearings at the Hague court.

The STL is the first international tribunal in which suspects may be tried in absentia and the court spent the last several months of the year pushing the Lebanese judiciary to do more to capture the men, while also debating whether all the conditions were met to begin a trial without any of the suspects in custody.

In November, the court ruled that it was inappropriate to begin the trial, with the prosecution pushing for more evidence that Lebanese authorities were working diligently to capture the men, and the defense arguing against starting the trial in order to protect the rights of the accused.

In mid-December, a report of a few hundred pages from the prosecution on the efforts of Lebanese authorities to apprehend the men was delivered to the court, and the review of that information will serve as the next step toward trial.

“The chamber first needs to review these documents submitted by the Office of the Prosecutor before it can make its decision on whether to proceed with a trial in absentia and hopes to be in a position to progress matters in January,” an STL spokesman told The Daily Star.

The trial chamber must assess whether the accused have been served with the indictment or have been made aware of the charges through the media or by the Lebanese state, and also determine whether they intend to avoid taking part in the trial.

If these requirements are met, the prosecutor and defense will present their arguments and the trial chamber will decide whether to begin in absentia proceedings.

If trial chamber decides it is appropriate to begin, the prosecution will disclose all the material that will be used in trial, the defense council will need to review the material, and preliminary motions can be filed to challenge the tribunal’s jurisdiction over the case, or allege defects in the indictment.

Prosecutor Daniel Bellemare’s announcement in early December that he would be retiring at the end of the STL’s first mandate has stirred rumors that the trial could be delayed as a replacement is found, but according to many analysts, it isn’t likely to push it back much.

“I absolutely expect the trial to begin this year [2012] and I expect the new prosecutor to begin from where Bellemare ended,” said Sari Hanafi, professor of transitional justice at the American University of Beirut.

Shafiq Masri, professor of international law, agreed.

“They can’t start from anew,” he said.

Before a trial gets under way, the first months of 2012 are likely to see discussions on the renewal of the mandate between the U.N. secretary-general and the Lebanese government.

Under the protocol agreement establishing the court, the tribunal’s three-year mandate, which began on March 1, 2009, may be renewed if the court has not completed its work.

The president of the tribunal has already recommended an extension to the mandate for three years, according to an STL spokesman, and it was announced this month that Secretary-General Ban Ki-moon was planning to visit Lebanon in January, though the agenda of the trip has not yet been made public.

Although Hezbollah and its allies have repeatedly demanded that the government cancel the protocol of agreement or withdraw its judges, analysts said that upcoming discussions are unlikely to bring major changes to the agreement between Lebanon and the United Nations.

“The lapse of the first term and the bilateral relations between Lebanon and the U.N. could create new ground for political diversions in the country but from a legal point of view, it’s clear,” said Masri. “In the statute for the court, one of its articles says that with termination of first mandate, three years, the two parties undertake to extend the mandate for another three, and this will be achieved by coordination between the secretary-general and the Lebanese government.”

“So legally, [the government] can’t say, ‘That’s enough, we don’t want to extend.’ They’re committed to accepting it,” he added.

Said Benarbia, senior legal adviser for the Middle East and North Africa at the International Commission of Jurists, pointed to Article 21 of the 2007 agreement to argue that government has limited space to negotiate, at least legally.

“It is clear from the wording of this article that both parties have agreed to extend the agreement to allow the tribunal to complete its work. This cannot be subject to interpretation,” he said, adding that the secretary-general does not have to “seek the agreement of, or the approval of the Lebanese authorities,” but only must “meaningfully consult with them.”

“The secretary-general will consult with the Lebanese government and with the United Nations Security Council, but the final decision will be made by the secretary-general himself,” a STL spokesman confirmed.

But for the parties in the Cabinet, most of which reject the court, it could be an opportunity to publicly push back against the STL, and could be used to bargain for some concessions.

According to Abdallah Bouhabib, who heads the non-partisan Issam Fares Center for Lebanon, the government could seek to reduce the share of funding that Lebanon is required to pay, currently representing 49 percent of the court’s budget.

“There are two things about the payment,” he said. “First, Lebanon is a broke country and second, the issue is very divisive.”

“They cannot force Lebanon to pay, they will have to negotiate,” he added. “I think Lebanon can argue the case with the U.N. successfully.”

Hanafi also said it was possible there could be a renegotiation of Beirut’s funding commitment and the issue of so-called “false witnesses” could also be raised.

“One possible scenario is that they [the government] try to make the United Nations clearly address the false witness issue,” said Hanafi. “They may also say that Lebanon can’t pay its 49 percent.”

Hezbollah has long pointed to the information given to the UNIIIC, the STL’s predecessor, by misleading witnesses to discredit the court.

In November, STL Registrar Herman von Hebel said on Twitter that the tribunal would not investigate false witnesses who misled international investigators as no allegedly false testimonies had been given to the court itself, and said “any issues relating to individuals allegedly providing false information to the [UNIIIC] is a matter for Lebanon and the U.N.”

Both Hanafi and Bouhabib said it was unlikely that government would ask for, or receive greater concessions than these.

“[The government] won’t cancel the agreement and won’t pull staff or Lebanese judges from the court,” BouHabib added.

One item definitely not up for negotiation is the possibility of an in absentia trial which, according to an STL spokesman, is a purely judicial issue.

Though political wrangling is expected during the renewal of the court’s mandate, analysts didn’t think expect a similar crisis to the recent one over funding.

“Hezbollah is committed for the time being to the Cabinet staying the same and so is [Progressive Social Party leader Walid] Jumblatt, who has three portfolios in the current government,” Bouhabib said.

Hanafi said that the parties would likely keep talks out of public view.

“I think negotiations will take place behind the scenes in the Cabinet. Nobody is interested in making this a divisive issue in Lebanon or involving regional players,” he said.

There are domestic political considerations as well, according to Carol Malouf, a lecturer in political science at Notre Dame University.

The emphasis is more likely to be on what the parties can get out of negotiations to show their constituents in the run-up to parliamentary elections in 2013, Malouf said.

“Whatever they’re thinking about the mandate, they are balancing it against the 2013 elections,” she said.

“They want to show us that they can get things done, unlike the joint [national unity] Cabinet, which was paralyzed. They are calculating every single move very carefully, campaigning through governance.”

Other analysts argued that the ongoing crisis in Syria could temper Hezbollah’s position toward discussions of the new mandate as well as the party’s reaction to a trial, as the desire to maintain the Cabinet overtakes other interests.

“Hezbollah will have a very hard time with the international community once the trial starts,” Hanafi said. “But it all depends on how the Syrian crisis is progressing.”

http://www.dailystar.com.lb/News/Local-News/2011/Dec-28/158119-special-tribunal-for-lebanon-2012-in-preview.ashx#axzz1kkzRRrWi