Special Tribunal For Lebanon: The Hidden Bombshell
Full disclosure: I am not a jurist.
The Special Tribunal for Lebanon rendered its judgement in the Ayyash et al. on the 18th of August 2020, almost fifteen years and a half after the assassination of former prime minister Rafik Hariri and eleven years after the tribunal’s inauguration.
The Tribunal that rendered the judgement is composed of the Chamber, the Office of the Prosecutor, the Legal Representatives of Participating victims and the Counsels for the Accused.
The four Accused did not attend their trial. After repeated efforts to apprehend the accused and inform them about the proceedings, efforts that included multiple attempts by the Lebanese authorities to find them at their last known residences, places of employment, family homes and other locations, and taking into consideration that the indictment and the identities of the accused were largely publicized in Lebanon, the Trial Chamber concluded in February 2012 that all reasonable steps had been taken to secure the notification of the accused of the charges brought against them and decided to allow prosecution in absentia.
The accused benefits of the presumption of innocence, i.e. the accused is presumed innocent until a verdict of guilt is entered. Guilt must be proven beyond reasonable doubt. The burden of proof lying with the Prosecution–and the Chamber not being allowed to impose on the Accused a reversal of the burden of proof–the Prosecution has to prove that the only inference reasonably available on the evidence is of the Accused’s guilt beyond reasonable doubt to the satisfaction of the Chamber.
Speaking of evidence, the case for the Prosecution solely relies on telecommunications evidence. Investigators identified closed mobile telephone networks-labeled by the Prosecution as Red, Green, Yellow and Blue- and an open group of mobile phones known as the Purple network. Further analysis of contact profiles and geographic profiles of the SIM cards and handsets allowed the Prosecution to identify the four Accused and Mr. Badreddine. Other users of the mobiles forming the networks were not identified, which explains why the Prosecution brought charges only against Mr. Ayyash, Mr. Merhi, Mr. Oneissi, Mr. Sabra and Mr. Badreddine.
In the consolidated indictment against the five accused of March 7th 2014, the Prosecution gives their interpretation of the evidence and their version of the conspiracy against Mr. Hariri, his assassination, and the false claim of responsibility, and the roles of the Accused within the overall conspiracy. The Prosecution withdrew the charges against Mr. Badreddine after reports of his death were deemed credible. This withdrawal however doesn’t mean that the Prosecution no longer regarded Mr. Badreddine as a coconspirator. His name remained in the amended indictment of the 12th of July 2016.
To understand the verdict, one has to keep in mind that the Chamber is deciding whether the Prosecution proved beyond reasonable doubt that the Accused are guilty of what they were charged with in the indictment or not.
Regarding Mr. Mustafa Amin Badreddine
Even though Mr. Badreddine was no longer regarded as an accused person, the Chamber decided to analyze the evidence against him and opinionate on it.
In the indictment, the Prosecution had alleged that the Green network, network to which Mr. Badreddine, Mr. Ayyash and Mr. Merhi belonged, acted as mission command to coordinate Mr. Hariri’s assassination. The Prosecution based itself on an analysis of the phone calls between the three Green phones to plead that Mr. Badreddine’s role was of coordinating and monitoring the surveillance of Mr. Hariri in preparation for the attack, purchasing the Canter and monitoring the physical perpetration of the attack and coordinating the false claim of responsibility. The Chamber didn’t find that the only reasonable conclusion from the evidence presented by the Prosecution (combination of calls and events) was that the Green network acted as mission command. However, the Chamber reiterates that, based on the available evidence, Mr. Badreddine could have been aware that Mr. Hariri was under surveillance on certain dates and that he was informed just before the assassination that something was happening, and hence inferentially, the assassination.
Regarding Mr. Salim Jamil Ayyash
The Prosecution brought the following charges against Mr. Ayyash:
- Count 1: Conspiracy aimed at committing a Terrorist Act
- Count 2: Committing a Terrorist Act by means of an explosive device
- Count 3: Intentional homicide (of Rafik Hariri) with premeditation by using explosive materials
- Count 4: Intentional homicide (of 21 persons in addition to the intentional homicide of Rafik Hariri) with premeditation by using explosive materials
- Count 5: Attempted intentional homicide (226 persons in addition to the intentional homicide of Rafik Hariri) with premeditation by using explosive materials.
The Chamber found that the Prosecution proved Mr. Ayyash’s guilt on all counts beyond reasonable doubt.
For more details on the Chamber’s thought process, check paragraphs 543 to 561 of the Summary.
Regarding Mr. Hussein Hassan Oneissi and Mr. Assad Hassan Sabra
The Prosecution brought the following charges against Oneissi and Sabra:
- Count 1: Conspiracy aimed at committing a Terrorist Act
- Count 6: Being an Accomplice to the felony of Committing a Terrorist Act by means of an explosive device
- Count 7: Being an Accomplice to the felony of Intentional Homicide (of Rafik Hariri) with premeditation by using explosive materials
- Count 8: Being an Accomplice to the felony of Intentional Homicide (of 21 persons in addition to the Intentional Homicide of Rafik Hariri)
- Count 9: Being an Accomplice to the felony of Intentional Homicide (of 226 persons in addition to the Intentional Homicide of Rafik Hariri) with premeditation by using explosive materials
The Chamber didn’t find that the analysis of Mr. Oneissi’s and Mr. Sabra’s phone records is enough to prove their role as coconspirators in the Terrorist Act by manufacturing the false claim of responsibility including the abduction of Mr. Abu Adass and contacting Al Jazeera and Reuters. Per the Chamber, their proved actions, even though suspicious, do not rise to the level of criminal conduct, and therefore do not satisfy the actus reus for accomplice liability. Moreover, the Chamber doesn’t think that the Prosecution, with the available evidence, managed to establish the mens rea of accomplice liability for either accused.
For more details on the Chamber’s thought process, check paragraphs 562 to 570 of the Summary.
Regarding Mr. Hassan Habib Merhi
The Prosecution brought against Mr. Merhi the same charges brought against Mr. Oneissi and Mr. Sabra.
The verdict in Mr. Merhi’s case is a direct consequence of the verdict against Mr. Oneissi and Mr. Sabra. Mr. Merhi was accused of coordinating the false claim of responsibility through his contact with them. In fact, as the Prosecution couldn’t prove Mr. Oneissi and Mr. Sabra’s role in the false claim of responsibility, the link between Mr. Merhi and the false claim of responsibility is missing.
For more details on the Chamber’s thought process, check paragraphs 571 and 572 of the Summary.
The judgement reading was promptly followed by a backlash on social media. The backlash shows that a majority of those who supported the creation of a Special Tribunal for Lebanon didn’t have a good grasp of what its prerogatives and jurisdiction would be. It also shows that what was expected from the Tribunal was excessively unreasonable. The Tribunal shouldn’t be expected to solve our political problems for us! We also need to recognize that there is more to the judgement than the verdicts.
First of all, the Trial Chamber didn’t find that Mr. Ayyash, a man with an entry level salary, is the sole responsible for the February 14th 2005 terrorist attack. The verdict solely states that the Prosecution managed to prove guilt beyond reasonable doubt in the case against Mr. Ayyash while it fell short in the cases against his alleged coconspirators. Moreover, the Chamber found that a larger number of individuals participated in the different stages of the terrorist act, from mere surveillance of the former Prime Minister to setting in motion the crime itself. The only inference reasonably available from the totality of the evidence is that there must have been an agreement between two or more people to commit a terrorist act by means of an explosive device in order to assassinate Mr. Hariri. […] Moreover, it would be unreasonable to find that the commission of the crime, that required such a level of planning and coordination […] could only have involved one person. The evidence, however, does not permit the Trial Chamber to establish how many knowing participants there were in the overall conspiracy. The Chamber’s view is that a conspiracy of this type required some but not necessarily all of the “actors” identified above (individuals in charge of surveillance, those who bought the Canter, those who loaded the Canter with explosives, those who worked on the false claim of responsibility) to know what it was intended to achieve, namely, Mr. Hariri’s death. However, while the Chamber reiterates that they did not need to know the precise reason they were doing what they were directed to do, the Chamber is adamant that they had to have been trusted associates who would keep their silence after they realize that their actions contributed to Hariri’s assassination. This could have been through common membership in an organization. Of the “actors”, the investigators couldn’t identify more than five individuals by cross referencing the mobiles used on the day of the assassination and then working backwards until sometimes around October 2004. The investigators didn’t meet with any of the accused. While arrest warrants were issued, the Lebanese authorities didn’t manage to find the accused and notify them.
Regarding the role Syria might have played in the assassination of the former Prime Minister
The Chamber recognizes that the assassination of a man of the former Prime Minister’s stature cannot be approached as if it happened in a political and historical vacuum and that it cannot ignore the background to the attack as providing a possible motive for it. The Trial Chamber is satisfied from the evidence presented that from the end of the civil war, Syria had an overwhelming political military and economic dominance in Lebanon. […] In the months before his assassination, Mr. Hariri’s allies were publicly calling for an end to the Syrian political, military and economic dominance over Lebanon. Their efforts increased after the passage of resolution 1559 including in the three Bristol meetings, 22 September 2004, 13 December 2004 and 2 February 2005, in which Mr. Hariri was represented by his political supporters. Mr. Hariri was planning to run in the May 2005 elections on the platform of loosening the Syrian dominance over Lebanon and supporting the immediate withdrawal of Syrian troops and was opposed to accepting so-called Syrian “deposits” in his electoral list. The growing opposition to the Syrian presence in Lebanon threatened Syria’s interests. The Chamber is also satisfied with the evidence indicating that Syria […] might have had motives to eliminate Mr. Hariri, and some of his political allies. Yet, the Chamber maintains that there is no direct evidence of Syrian involvement in the assassination.
Without being held to the standard of proving a theory beyond reasonable doubt, it is possible to rely on the evidence introduced by the prosecution to discuss Syria’s involvement in the assassination as a possible eventuality.
In a true whodunit fashion, the first question would be: who profits from the crime? The Chamber is satisfied with the evidence presented that Mr. Hariri was going to run on the platform of loosening the Syrian dominance over Lebanon and supporting the immediate withdrawal of Syrian troops. The Chamber is also satisfied with the evidence that a proposed electoral law for the 2005 elections-supported by the Syrian government-was designed to diminish Mr. Hariri’s chances of having members of his bloc elected to Parliament and hence his prospects of a new term as prime minister and that the growing opposition to the Syrian presence in Lebanon threatened Syria’s interests. Mr. Hariri joining the Opposition was a threat to Syria’s overwhelming dominance of Lebanon. Syria was already planning Mr. Hariri’s political demise with the proposed electoral law. But Mr. Hariri was still looking strong and defeating him still wasn’t a done deal.
The Trial Chamber has also found that the final decision to […] murder Mr. Hariri was made only sometime in early February 2005 in the weeks before the attack. To reach this conclusion, the Chamber relies on a handful of evidence, namely the third Bristol meeting on Wednesday 2 February 2005 to which Mr. Hariri had sent his delegates. It was at this third meeting that its participants had agreed to call for the immediate and total withdrawal of Syrian forces from Lebanon, a position that Mr. Hariri, according to his confidantes, had by then adopted. They had also called for the dismantling of the Syrian security apparatus in Lebanon, with Mr. Hariri’s tacit support. At this point, it would be safe to assume that Mr. Hariri had become the biggest threat to Syria’s interests. This piece of evidence needs to be assessed with another: Syrian Deputy Foreign Minister, Mr. El-Moallem, had visited Mr. Hariri at his home, for the final time, on Tuesday 1 February 2005. The transcript of its audio recording reveals that Mr. Hariri had told Mr. El-Moallem that “Lebanon will not be ruled by Syria forever”, as it was “unacceptable”, that he could “bear no more orders” from Syria, that “three quarters of me is already on the opposition side” and that there was “interference in every small detail in the country”.
The sole fact that the Chamber relied on the confluence of these events to be satisfied that the final decision to commit the terrorist act was made only in the two weeks preceding Mr. Hariri’s death clearly indicates that Mr. Hariri was killed because he threatened Syria’s hold on Lebanon. This conjuncture of events wasn’t enough for the prosecution to bring charges against a member of the Syrian administration-as per the Statute of the STL it couldn’t bring charges against a country-but it would have been enough for Poirot to convict and twelve angry men would have found “Syria” guilty! But this isn’t how the STL works. Nevertheless, it is important to remember that the absence of a condemnation and the lack of evidence aren’t an exoneration.
Regarding the role Hezbollah might have played in the assassination
The only facts recognized by the Chamber that raise the question of Hezbollah’s implication in the assassination are the political affiliation of the identified alleged coconspirators. Indeed, the Chamber is satisfied from the evidence that Mr. Badreddine, Mr. Ayyash, Mr. Oneissi and Mr. Sabra were Hezbollah supporters and that Mr. Mustafa Badreddine was a valued senior Hezbollah military commander. Moreover, the Chamber concluded that the complexity of the plot points to the involvement in the conspiracy of people with a commonality such as a membership of an organization, namely a tight-knit organization in which trusted operatives are delegated particular sensitives tasks. It also concluded that RDX being so powerful that it is most suitable for military purposes, those responsible for coordinating the attack had access to what could be described as “military-grade” explosives. Those facts taken together would indicate a possible implication of Hezbollah, or at least of someone in Hezbollah’s hierarchy, in the highest level of the conspiracy. Yet this evidence is too circumstantial to even hold in a whodunit thriller. Moreover, Prime Minister Hariri’s assassination doesn’t benefit Hezbollah at all. In fact, Mr. Hariri was an advocate of Hezbollah, rejecting attempts to include the party on Occidental terrorism lists. However, while there’s plenty of evidence of the worsening of the relationship between Mr. Hariri and the Syrian Administration, the Chamber was satisfied by the evidence to assert that Mr. Hariri and Hezbollah’s Secretary General, Mr. Hassan Nasrallah had good relations in the years immediately before his death and were meeting regularly. Hezbollah, as an organization, didn’t stand to win anything from Mr. Hariri’s death. On the contrary, it stood to lose a lot!
A sentence in the Summary requires a little scrutiny. The Chamber asserted that there is no evidence that the Hezbollah leadership had any involvement in Mr. Hariri’s murder and there is no direct evidence of Syrian involvement in it. There is an undeniable difference between no evidence and no direct evidence. The difference in the wording cannot be considered a simple issue of syntax. Words have meanings. No evidence and no direct evidence don’t mean the same thing.
Finally, the Lebanese authorities need to look into two pressing matters! What happened to Mr. Ahmad Abu Adass? His remains weren’t found in the scene of the crime. He left his home fifteen years ago, was reported missing by his father, and no one has heard anything about him ever since. The other matter is the identity of the Canter driver. Another man has disappeared fifteen years ago and while we know he died during the attack, he still hasn’t been identified. It might be impossible to identify the Canter’s driver, but it might be easier to identify a man who has been missing since the 14th of February. Start looking in the missing persons’ files for men in their early twenties whose profile is close to Mr. Abu Adass’. It might be wishful thinking on my part, and while his identity might not be a key for more discovery in the case, it is undeniable that two men in their early twenties disappeared sometimes between mid-January and mid-February 2005, and the public still knows nothing about their whereabouts.
As for how the crime scene wasn’t protected and how fifteen years later the same mistakes were committed, well, that’s a story for another day.
Documents used in this analysis
Additional information can be found on the STL website where all the documentation related to case is available in French, English and Arabic.
