The Hariri Tribunal: Separate the Political and the Judicial

In a region filled with complex and contentious issues, getting thoughtful, balanced and independent positions clearly heard is incredibly difficult. An unguarded remark by a junior staff member or a single misquote from a journalist can lead to major misunderstandings and unleash swarms of unwarranted criticism. This has happened in recent days to the International Crisis Group, on one of the most sensitive issues in international affairs today: the UN Security Council’s resolution creating an international tribunal to investigate the 2005 assassination of former Lebanese Prime Minister Rafiq Hariri and other murders.

Let me make Crisis Group’s position absolutely clear. We do not oppose, and never have done, the establishment of the new Special Tribunal for Lebanon.  But we do think it important to understand what this new institution should seek to achieve, and can achieve, in the wider political context into which it has now been introduced, and how its creation needs to be supplemented by other policy steps.

Established by the Security Council on 30 May 2007 over the heads of the hopelessly divided Lebanese parliament, the Tribunal marks an unprecedented moment in the history of international justice, being the first time any such body was ever established to address a political crime that targeted specific political assassinations. It is not surprising, then, that the issue of the Tribunal itself has become so heavily politicised. What is at stake, after all, is not limited to bringing criminals to justice.

There are three main players supporting the Special Tribunal, each with its own aspirations. For France, this new institution and its high-profile procedure was to protect Lebanon by acting as a deterrent to its Syrian neighbour, widely accused of being implicated in the Hariri killing.

For the “March 14 Forces” in Lebanon, the Tribunal is about cementing the “Cedar Revolution”, the massive demonstrations in the aftermath of Hariri’s assassination that led to Syria’s withdrawal from Lebanon. Of course, while they are primarily hoping to put the final, irrevocable seal on the Syrian pull-out, the March 14 Forces would not mind if their internal foes, mainly Hezbollah, were also damaged in the process.

For the U.S., the third main actor behind the Tribunal, Lebanon is little more than a piece in the Middle East puzzle -- one more way of weakening the Hezbollah-Syria-Iran axis. The Tribunal should reinforce pressure on Damascus to move it away from Tehran and stop its support of Hezbollah and Hamas.

Thus, this new judicial process contains several goals that go far beyond the desire – shared by Crisis Group -- to see justice for Rafiq Hariri. The UN resolution may not mention Syria specifically, but it is clear to everyone that the regime in Damascus is the  target of all three key players.

The problem is that Syria is hardly going to play along with what it claims is a kangaroo court established with the sole purpose of destabilising Damascus. Even if the members of the regime itself were not implicated, Syria would be highly unlikely to hand over any suspects for trial by the Tribunal. The accused will thus most likely be tried in absentia, while Syria will judge select officials – some would say scapegoats -- on its own soil, as President Bashar al-Asad has already promised.

And if Syria itself is eventually proven guilty, what then? What are the sanctions the international community could use against the regime? Any economic embargo of Syria would have severe consequences on Lebanon’s already fragile economy, because so many of its products transit through Syria. Diplomatic isolation of Damascus has already shown its limits, so that, too, seems a dead end. Such moves would serve no party’s interests. Attempting to topple the regime, as some have called for, will undoubtedly come at a terrible cost to Lebanon, with Damascus hitting back on a battlefield in which it retains considerable destructive power.

In fact, none of its three key supporters stand to achieve their goals through the Tribunal. It is not certain to  bring the culprits to justice, it will not protect Lebanon, and it will not lead to the  changes in Syria that the West wants. Syria can stonewall the whole process, and get away with it. This is not to say that Syria will win the current confrontation, only that it will not capitulate. The international community is expending a tremendous amount of effort to achieve a draw.

However, the Tribunal’s supporters are overlooking the important victory they have already chalked up: after its unforgivable mistakes in Lebanon, Syria has had to withdraw from the country in a humiliating manner. Of course, there are still important issues to be resolved, and the Lebanese need to be reassured that there is no way back to the theft of their wealth, and the intimidation of their political class, not to mention political assassinations. This would involve at a minimum the opening of a Syrian embassy in Beirut, clarification about the fate of numerous missing persons and the final demarcation of the border line between the two countries. But hoping that Syria will simply capitulate under increasing pressure is wishful thinking, and the best way to ensure Lebanon’s destabilisation.

The judicial procedure should continue, but Syria must be given assurances that the objective is not to undermine its leadership. Rhetorical declarations and empty efforts to “engage” Damascus are futile in this respect. This is why Crisis Group has advocated a dialogue based on meaningful and practical steps:  putting the Golan issue on the table, restarting the negotiations with the EU on economic partnership,  and planning some sort of cooperation with the U.S. on Iraq.

By taking this course,  the West would do three things. It would demonstrate tangibly, although tacitly, that the aim is not to destabilise the regime. Second, it would provide alternative resources to the regime so that, if and when a price is to be paid for crimes committed in Lebanon, this price actually becomes payable. Finally, by offering Syria incentives which could be reconsidered if it chose to deny solid evidence indicting it, the West would give itself the leverage it desperately needs and is short of.

In other words, the normalisation of relations between Syria and Lebanon has to occur with a parallel, though conditional, normalisation between Syria and the West. Syria must be given a clear alternative between a mutually beneficial accommodation and what currently appears as an inevitable confrontation. In contrast, turning the Tribunal into a life and death issue for Damascus is the surest way to destroy Lebanon.