The Special Tribunal for Lebanon: How did it survive for so long?

Reports that the Special Tribunal for Lebanon (STL) would cease to operate past July 2021 have proved somewhat premature. Perhaps, a more appropriate description is that the STL is now on life support.

Following significant budgetary cuts, which were recently approved by the STL’s Management Committee, the Tribunal will be able to continue with the Appeal Phase of its first and only case, STL 11-01, until the end of the year. STL 11-01 concerns the 14 February 2005 bomb attack against Lebanese Prime Minister Rafic Hariri, which killed Hariri and twenty-two others. The trial phase saw three suspects acquitted (another died before proceedings concluded) and the conviction of Salim Jamil Ayyash in absentia.

The mid-term future of the STL will involve the Tribunal winding down its activities. The start of the Tribunal’s second case, STL 18-10, relating to three other attacks against politicians in Lebanon connected to Hariri’s assassination, has been cancelled due to insufficient funding, despite having been scheduled to commence on 16 June 2021. The future of these proceedings is currently pending a judicial determination. The Management Committee’s 2022 budget presently has provisions for finalising the STL 11-01 appeal but not for second trial proceedings. Otherwise, the budget largely concerns limiting the Tribunal’s functions to preserving records and archives, support and protection for witnesses and victims, as well as providing information to states. The Tribunal still needs to secure the actual funding for these activities (Source: Correspondence with Wajed Ramadan, Spokesperson for the STL).

Ayyash remains at large (he may have to be retried if ever caught) and the Tribunal did not ascertain whether the leadership of Hezbollah ordered the bombing, so leaving undetermined who masterminded Hariri’s death. The STL has cost donors some $1 billion, if you include funding for the UN investigation (UNIIIC) that commenced in 2005. The Tribunal began operating in 2009 and is based just outside the Hague. Funds have gone towards 457 court hearings and there was even a replicated controlled explosion for forensic purposes.

As commentators ready their pens to write the obituary for the STL, the Tribunal has delivered seemingly little despite the high expenditure of investment and political capital.

Coverage of the shortcomings of the tribunal is well-trodden. What is less commonly analysed is the tribunal’s relationship with its donors and how they continued supporting the Tribunal despite its blatant flaws. 49% of the STL’s funding has come from Lebanon while the rest consisted of voluntary contributions from other countries, as well as the European Union. This post focuses on how strange the consistency of support appears, but equally just how odd was the sudden collapse in funding from last year onwards.

Unfortunately, this post leaves behind many outstanding questions about why contributors continued to support the STL. I would strongly welcome comment posts below on the topic to help explain this support, which does seem puzzling indeed.

Budgetary contributions to the STL

The year-on-year consistency of Lebanese and voluntary contributions (see Figure 1) is itself remarkable for a whole range of factors.

Firstly, Lebanon was hardly in strong economic health before the crippling economic crisis that has beset the country since October 2019. For Lebanon to contribute around €25-30 million annually for almost a decade was never a certain feat, but it did.

Secondly, there was the febrile political climate within Lebanon to contest with. The Lebanese Prime Minister Fouad Siniora first requested the formation of a tribunal to redress Hariri’s assassination in a letter to UN Secretary-General Kofi Annan in December 2005. However, the Lebanese Parliament never ratified the Treaty establishing the STL due to opposition from parties such as Hezbollah. After the STL ordered four Lebanese military generals to be released for lack of evidence, indictments were eventually filed before the Pre-Trial Chamber on 17^th January 2011 against five Hezbollah-linked individuals. As the Tribunal’s enquires appeared to turn towards Hezbollah, the prospect of these charges directly caused the collapse of the Lebanese national unity government even before indictments were filed. And yet for all these domestic rifts, Figure 1 speaks only of increasing Lebanese expenditure on the tribunal at that time.

The following points can be made for why Hezbollah may not have further disrupted Lebanese contributions to the STL. Hassan Nasrallah, the Hezbollah leader, had refused to hand over the suspects (alleged Hezbollah operatives) to the Tribunal. Lebanon was supposed to hand over the suspects within 30 days of the indictments being released in June 2011. This in itself was enough to undermine the credibility of the STL’s work as none of these individuals would ever serve time no matter the Tribunal’s verdict. Furthermore, from the start of trial proceedings, the whole Prosecution’s argument in fact side-lined considerations of how command responsibility for the attack might lead back to the Hezbollah leadership. Proceedings before the STL, at least from late 2011 onwards, were less provocative to Hezbollah than may be supposed.

Still, the above should have signalled a clear-warning to contributors outside Lebanon that the Tribunal would not be able to deliver clarity and recognisable justice for the Hariri assassination. Regardless, the international community continued to increase its funding for the Court. By 2013, France was paying €1.5 million a year and the UK around €1.2 million annually in 2017. Obtaining more recent figures for actual sums contributed is challenging as the STL does not disclose donor sum amounts, and it is up to the contributing state to voluntarily publish these figures.

What does seem certain is that funding the STL remained largely a matter for powerful Western countries to the very end, continuing a theme that was apparent from the start. The STL was founded on the basis of UN Security Council Resolution 1757, following Security Council powers under Chapter VII UN Charter, and was chiefly sponsored by France, the US and UK while the five abstaining members included China and Russia (although Russia is a contributor to the STL). In itself, the prominence of these Western countries was unsurprising due to France’s longstanding commitment to Lebanon, the Tribunal’s work as the first international criminal court to prosecute terrorism committed in peacetime and these countries’ wider leadership in the global fight against terrorism.

What is surprising was the mute reaction from contributors to the Tribunal’s judgment in August 2020, which found Ayyash guilty beyond reasonable doubt. Yes, the US Secretary of State Mike Pompeo welcomed the verdict with press statement about the STL’s importance in ‘rendering justice and ending impunity’ but there was no equivalent statement from the French Minister of Europe and Foreign Affairs nor the British Foreign Secretary. The verdict was not even acknowledged on the French embassy to Lebanon’s (otherwise very active) Twitter account. Here was another contradiction: NATO countries had abidingly expended hundreds of millions on the Tribunal over a decade and yet hardly acknowledged the fruits of their labour.

Of course, one explanation for the lack of recognition of the STL’s judgment was that events  in Lebanon overtook the Tribunal’s work. The verdict had to be delayed by more than a week due to the devastating Beirut Explosion on 4 August  2020 which subsumed global attention that month. The 2019 Lebanese economic crisis and subsequent 2020 Coronavirus pandemic had already precipitated a shift towards increased aid spending in Lebanon, seemingly at the expense of contributions to the STL given the 39% funding reduction from March 2020. Nonetheless, French President Emmanuel Macron visited Beirut in late August (after an initial visit two days after the 2020 explosion), and so there was an obvious opportunity for him to make a similar statement to Pompeo.  

Another discrepancy is that, not only has aid spending rapidly increased in Lebanon over the last year, but much of this aid has been contingent on the forensic audit of the Lebanese Central Bank and there have been strong NGO concerns about the domestic obstruction of the ongoing Beirut explosion investigation. Therefore, questions emerge about why the STL has been abandoned just as international community attention turns to the need for the same principles of transparency and accountability in Lebanon that drove the Tribunal’s formation.

The inability to continue funding the Tribunal is not for want of trying from the UN Secretary-General, António Guterres, who requested $25 million from the UN General Assembly to cover Lebanese shortfalls in funding the STL at the start of this year and received $15.5 million in February, which covered some 75% of the Lebanese contribution. Guterres has also been active in obtaining further contributions. But this was not enough to stave off the STL’s June/July budgetary crisis as other contributors declined to make expected donations, despite the already reduced budget of the Tribunal that year. Lebanon has since donated €500,000to the STL at the time of the Tribunal’s budgetary crisis, despite initially not being able to pay its annual contribution, but on request that the Tribunal set a timetable and a detailed plan for the conclusion of its tasks.

What emerges is a bizarre saga. For a decade, France, the US, the UK and other contributors stood stalwart in their funding for the tribunal, even with its obvious flaws. Then last year, and even before the STL’s first judgment, there was a dramatic collapse in funding for the Tribunal despite the international community’s renewed focus on civic reform in Lebanon. One may argue the central reason for this change of heart among contributors is that the world has moved on. But does that alone really explain just how sudden the volte-face of contributors has been or their pervasive silence surrounding the Tribunal’s verdict and looming closure? Perhaps the inference is that there was a late realisation that the STL’s verdict would disappoint, which subsequently proved the case, and little appetite for funding a second trial. From this position, contributors reduced funding the tribunal’s work, regardless of their increasing aid and other financial commitments to Lebanon.

How dysfunctional was the STL?

The deficiencies of the STL have been covered exhaustively in other media but I do want to assess one final graph (see Figure 2).

The 2014-15 Annual Report (Submitted by the STL President David Baragwanath in February 2015) expected the Prosecution’s case to finish by the end of 2015. Meanwhile, the 2014-15 period saw staff numbers rise considerably to 447 and peak at 456 in 2015-16. These rises came despite the Tribunal’s funding having flatlined from 2013-14 (see Figure 1). This rise may indicate two things: The STL adopted innovative means of increasing staff numbers within its budget but also the ramping up of the workload, so requiring an astonishingly high staff-count, largely focused on one trial with connected investigations and outreach programmes among other subsidiary activities. One must also remember the staff required to meet the unique security concerns for the STL.

In fact, the Prosecution would rest their case on 7 February 2018, more than two years after the expected date. Although staff numbers fell slightly after the 2015-16 period, the number of staff stabilised at just under 400 (still very high) in 2018-19. The interim period consisted of unanticipated added years in the proceedings for the Hariri case and so additional costs probably in the tens of millions.

Of course, the complexity of the telecommunications evidence and the fair trial rights of the accused realised unprecedented hurdles for an international criminal court dealing for the first time with a case of terrorism in peacetime. The STL’s efforts in addressing these challenges must be acknowledged. But, it was clear that the complexity of the Tribunal’s work was underestimated even by its leadership right into the Tribunal’s sixth year despite the then recognised need for extra staff.

Perhaps, these delays in themselves demonstrate that too many had their heads in the sand about the STL’s deficiencies until it was too late. More so, it is concerning that these expectations may have been relayed to contributors to the Tribunal when fundraising. Was it the receding promise that the Tribunal would expediently deliver on its mission that motivated voluntary contributors for so long? If so, when such expectations proved unrealistic, did that aggravate the sense that the Special Tribunal for Lebanon was not good value for money, so impacting on the snap-off in funding?