Law, politics and Terrorism: Special Tribunal for Lebanon for the assassination of former Lebanese Prime Minister Rafik Hariri – the verdict and its weaknesses

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Overview[1]

On February 14, 2005, former Lebanese Prime Minister Rafik Hariri was assassinated by a truck bomb detonated near his convoy on the Beirut promenade. The blast left 22 people dead and more than 200 wounded. Blame was directed at the Assad regime (which was in control of Lebanon at the time) and Hezbollah, its political ally, both of which had a clear interest in eliminating Hariri, a prominent opponent of the “Syrian order” in Lebanon and of Hezbollah. Hariri’s assassination led to political turmoil in Lebanon. Following the assassination, mass demonstrations were held, demanding the removal of Syrian forces from Lebanon and an international investigation to reveal Hariri’s murderers. Following the protest, the Syrian army withdrew from Lebanon (April 2005), thus ending the era of Syrian dominance in Lebanese politics (the “Syrian order”), which had lasted about 30 years.

 The scene of the assassination of Rafik Hariri (RT Arabic-language website, September 11, 2018)    Rafik Hariri (Al-Manar TV, December 7, 2012).
Right: Rafik Hariri (Al-Manar TV, December 7, 2012). Left: The scene of the assassination of Rafik Hariri (RT Arabic-language website, September 11, 2018)
  • In view of these dramatic events, and in the absence of Lebanese security services and a judiciary to investigate the Hariri assassination themselves, the UN sent a Fact-Finding Mission to investigate the facts of the assassination, headed by Peter Fitzgerald, an Irish police officer. In his report, Fitzgerald blamed Syria for the political tension preceding the Hariri assassination, and mentioned the threats made against Hariri by Syria and “lack of security, protection, and law and order in Lebanon.” The report also stated that “It became clear to the Mission that the Lebanese investigation process suffers from serious flaws and has neither the capacity nor the commitment to reach a satisfactory and credible conclusion. To uncover the truth, it would be necessary to entrust the investigation to an international independent commission, comprising the different fields of expertise that are usually involved in carrying out similarly large investigations in national systems, with the necessary executive authority to carry out interrogations, searches and other relevant tasks[2].” The report written by the Mission was adopted by UN Secretary General Kofi Annan and presented to the UN Security Council (March 24, 2005).
  • On April 7, 2005, following the Fitzgerald report, the Security Council decided to send a commission of inquiry to Lebanon to investigate the assassination of Hariri. The commission operated from 2005 to 2006. It was initially headed by Detlev Mehlis, a German jurist with extensive experience in lawsuits involving international terrorism and countries sponsoring terrorism. On October 20, 2005, he submitted the first report to the UN Secretary General, blaming Syria for the responsibility for the assassination and claiming that Syrian officials had sabotaged the investigation.
  • On January 11, 2006, Mehlis was replaced by Belgian judge Serge Brammertz. On May 30, 2007, the Security Council decided (Resolution 1757) to establish an international tribunal for investigating the assassination of Rafik Hariri (Special Tribunal for Lebanon – STL). The STL, based in The Hague, began to operate in March 2009. The STL’s statute defined its jurisdiction in broad terms (see below). This clearly demonstrated that in the opinion of the Security Council, from the outset this was an entity with “teeth” that would be empowered to arrive at the truth and find those responsible for Hariri’s assassination.
  • In June 2011, an indictment was filed against five Hezbollah operatives. The trial itself began only in January 2014 and ended on August 18, 2020. Fifteen years after the assassination, and 13 years after the STL was established, the verdict was published, convicting only one Hezbollah operative, but refraining from ruling that Syria and Hezbollah were responsible for the assassination, and leaving many questions unanswered.
  • The indictments were filed (2011) against five Hezbollah operatives, including two senior officials in Hezbollah’s operational-terrorist system. The most prominent of the defendants was Mustafa Badreddine, a terrorist with an extensive history, who had been involved in terrorist attacks at the US and French embassies in Kuwait (1983)[3]. He was referred to as a former Hezbollah military commander and was charged with planning the Hariri assassination[4]. Another senior Hezbollah operative, Salim Jamil Ayyash, was charged with commanding the assassination and described as having an extensive history of assassination attempts in 2004–2005. Two other operatives were charged with filming a video in which a fictitious organization falsely claimed responsibility for the assassination (making a video with a fictitious claim of responsibility is a well-known method often used by Hezbollah).
  • The international tribunal for investigating the assassination of Rafik Hariri was the first of its kind. In Lebanon this was an unprecedented move, since it is a country where many political assassinations have been committed over the years but those responsible have not been brought to justice and only a few of the assassins have been prosecuted. Hezbollah, the prime suspect in the assassination, fearing the disclosure of its responsibility, has been working from the outset to prevent the establishment of the Special Tribunal for Lebanon (STL) and sabotage its work. At the propaganda level, Hezbollah conducted an intensive media attack against the STL, accusing it of politicization and unreliability. Hezbollah leader Hassan Nasrallah has stated that under no circumstances would Hezbollah hand over its members to the STL. Nawwaf Moussawi, a Lebanese MP from the Hezbollah faction, even stated that any operative of the organization who is charged by the STL would become a saint in his eyes[5].
  • At the practical level, there have been a number of reports that Hezbollah was behind a series of assassinations of senior Lebanese figures who had assisted the STL in its investigation and could interfere with Hezbollah’s efforts to disrupt the investigation. Prominent among those killed were two senior officers of the Lebanese Internal Security Forces (see details below).

The STL convicted Hezbollah operative Salim Jamil Ayyash (in absentia) of the premeditated murder of 22 people, including former Lebanese Prime Minister Rafik Hariri. The four other Hezbollah operatives on trial were not convicted due to lack of evidence. One of the operatives who was not convicted was Mustafa Badreddine (a senior Hezbollah figure with a history of involvement in terrorism, who met his death in a mysterious explosion in Damascus during the investigation).

 
Salim Ayyash, senior Hezbollah operative convicted of assassinating Rafik Hariri (Al-Quds al-Arabi, August 20, 2020)

Salim Ayyash, senior Hezbollah operative convicted of assassinating Rafik Hariri
(Al-Quds al-Arabi, August 20, 2020)

  • The STL was well aware of the motives of Syria and Hezbollah to eliminate Hariri. In a passage examining the historical background of the assassination, the STL notes that Rafik Hariri was one of the most prominent opponents of the presence of Syrian forces in Lebanon and of Syrian political, military and economic dominance in Lebanon. Hariri also supported the disarmament of Hezbollah, which continued to hold its weapons, in violation of the Taif Agreement that ended the civil war in Lebanon (October 22, 1989). Hariri’s positions threatened important interests of Syria and Hezbollah and led to the assassination. However, the STL ruled that it had no evidence of the involvement of Syria and Hezbollah’s leadership in the assassination. This despite the fact that they had motives to assassinate him, and despite the fact that the STL presented circumstantial evidence of this, accused a Hezbollah operative of the assassination, and presented a picture which may indicate that the other defendants were also involved in the assassination (although this could not be proved by conclusive evidence).
Remarks in the verdict on the motives of Syria and Hezbollah for the assassination: the motives exist, there is no proof (Section 57, p. 15). Emphasis added by the ITIC.
Remarks in the verdict on the motives of Syria and Hezbollah for the assassination: the motives exist, there is no proof (Section 57, p. 15). Emphasis added by the ITIC.
  • Examination of the STL’s investigation and analysis of the verdict reveals several salient weaknesses:
    • The STL focused its investigation on the working levels and not on the senior officials behind the assassination: the STL received a broad judicial mandate from the Security Council without any restriction on discovering the identity of the perpetrators of the assassination and those behind them. In practice, however, the STL acted as if its mandate was narrower than that given to it (and this may raise further questions), preferring to focus its investigation on the working levels. Hezbollah is well known to be a disciplined hierarchical organization and its operatives are by no means independent in their conduct, certainly not on such a sensitive issue as the political assassination of a prime minister. The activity of Salim Ayyash, who was convicted of murder, and of senior Hezbollah figure Mustafa Badreddine (mentioned in the indictment but acquitted due to lack of evidence after his death), must have been approved by the Hezbollah leadership, first and foremost by Hassan Nasrallah himself. Moreover, an analysis of the modus operandi of the assassination clearly indicates that it was carried out by skilled operatives and an established, capable organization. Hezbollah is a terrorist organization which had a clear motive to assassinate Hariri and the operational ability to do so. This ability is based on extensive experience with targeted killings independently or as a “subcontractor” for its sponsors (Iran and Syria).
    • The STL did not have the tools to conduct an independent investigation, nor did it have enforcement power in the Lebanese arena. The STL was therefore obligated to rely on assistance that it received from the Lebanese security services (the same security services described accurately in the Fitzgerald report as suffering from serious defects and having no ability or obligation to reach the truth). In addition to the low professional abilities, the Lebanese security services maintain ties with the various political agencies in Lebanon, including Hezbollah, and it is highly doubtful whether most of them had a real interest in supporting the STL investigators, out of concern for their lives or professional future.
    • Moreover, in practice, the Lebanese security services that assisted the STL were subjected to a campaign of intimidation by Hezbollah, which included the assassination of senior security operatives who courageously assisted in the investigation of the murder. Presumably, the murder of those who assisted in the investigation conveyed a message which was well received by other intelligence and security personnel involved in the investigation[6]. Hezbollah’s allies in Lebanon appear to have helped it disrupt the investigation, including by leaking sensitive information about the STL’s activity. Following the publication of the verdict, the US Department of the Treasury announced the imposition of sanctions on two Lebanese government ministers, one of whom was Yusuf Finyanus, former Minister of Transport and Public Works, accused of allowing Hezbollah to obtain sensitive material from the STL’s proceedings (US Department of the Treasury website, September 8, 2020)[7].
    • The STL’s investigation did not focus on the Syrian regime and Hezbollah as an organization, despite their having an extensive history of political assassinations in Lebanon, and despite their clear interest in removing their enemy Rafik Hariri. One reason for this is that the STL did not have its own tools enabling it to independently investigate the role of Syria and Hezbollah in the assassination, and there is no chance that such an investigation would have met with their consent or cooperation. From the outset, this weak point directed the investigation of the assassination to the working levels that carried out the assassination and to minor details of tactical issues pertaining to how the assassination was carried out, while refraining from dealing with volatile political issues related to the responsibility of Syria and Hezbollah. The interrogation of low-ranking Hezbollah operatives did not address this weak point. This is because it was expected from the outset that the Hezbollah operatives interrogated would do anything to obscure the connection between them and their handlers. The STL’s inability to investigate the role of Syria and Hezbollah points to a fundamental weakness of an international legal forum operating in a sovereign state, lacking independent tools to investigate terrorism-sponsoring countries or powerful terrorist organizations like Hezbollah.
    • The STL could not use important intelligence clearly linking Hezbollah to the assassination, for fear of exposing intelligence sources. The Washington Post, relying on American, European and Middle Eastern intelligence sources, revealed on August 25, 2020, that the assassination was carried out by a secret Hezbollah hit squad known as Unit 121, which was subordinate to Hezbollah leader Hassan Nasrallah. Unit 121, to which Salim Ayyash belonged, had been active for years and carried out at least four other assassinations (including those of two senior Lebanese security figures, who assisted the UN investigation team). Former US security officials said intelligence assessments were privately shared with tribunal members. However, the material could not be used in the tribunal proceedings because of the risk of exposing confidential sources and intelligence-gathering methods (The Washington Post, August 25, 2020). It should be emphasized that In the investigation of a political assassination carried out by a terrorist organization, the use of intelligence is essential due to the expected conspiracy of silence on the part of operatives and the great difficulty of investigating the senior levels above them. The lack of independent intelligence capability was a salient weak point of the tribunal investigating the Hariri assassination, and is also a weak point of international courts in general.

The first paragraphs of the Washington Post article on Hezbollah’s elimination team, published after the STL verdict (The Washington Post, August 25, 2020)

The first paragraphs of the Washington Post article on Hezbollah’s elimination team, published after the STL verdict (The Washington Post, August 25, 2020)

  • The prolonged duration of the investigation severely compromised its effectiveness and enabled the Syrian leadership and Hezbollah’s leaders to conceal evidence:
    • A long period of 15 years passed between the assassination of Rafik Hariri (2005) and the date of publication of the verdict (2020). During this period, a political upheaval took place in Lebanon: the Syrian forces left Lebanon and the “Syrian order” was succeeded by Iranian influence through Hezbollah, which became the dominant political and military force in Lebanon. The long time that elapsed enabled Syria and Hezbollah to disrupt the investigation and eliminate some key figures who were liable to incriminate the Syrian regime and the Hezbollah leadership[8]. On the other hand, the STL’s investigation was proceeding at a snail’s pace. Key figures in the investigation were replaced, thus preventing investigative continuity in such a complicated case. Hence, in the ITIC’s assessment, the prolonged time was another weak point that compromised the STL’s ability to conduct an effective investigation. In this respect, the writing was already on the wall. This was summed up by Detlev Mehlis, the German prosecutor who chaired the first UN commission investigating the assassination even before the STL: “In my view, justice delayed is justice denied” (Michael Young’s article in Middle East Center, September 25, 2017).
    • It is highly doubtful whether the delays in the work of the STL were dictated by reality. In the ITIC’s assessment, the many delays were not due to substantial investigative difficulties but rather to foot-dragging on the part of UN senior officials, whose desire to carry out their mission properly is by no means certain: about two years elapsed from the date of the murder until the decision to establish the STL; two more years until the actual establishment of the STL; about two more years until the indictments were filed; and about two and a half years until the proceedings began. After all these delays, the proceeding itself against just four defendants (in absentia) took another six and a half years[9].
  • This is apparently in addition to the lack of enthusiasm among senior UN officials to address the issue of responsibility for the assassination. Detlev Mehlis, who supervised the investigation in its early stages and was replaced after a year (2005-2006), was asked in a press interview (2008) by journalist Michael Young whether the UN had interfered with the investigation. Michael Young writes: “The German judge replied that the secretary general in 2005, Kofi Annan, while supportive of his work, ‘had made it clear to me that he did not want another trouble spot…’.” After the verdict was handed down, Michael Young raised the question of whether the UN bureaucracy had a real interest in investigating the assassination, and replied: “In light of Annan’s comments, to what extent did the UN bureaucracy actually want the STL to succeed? As an organisation, the UN avoids conflicts between member states that may undermine its work. The Hariri assassination had all the makings of a major headache. Syria and Iran were likely involved and Hezbollah’s participation could have provoked a sectarian conflict in Lebanon. From the beginning, it seemed that the truth could come with a steep price tag” (Michael Young’s article: “Hariri verdict: Is the UN capable of delivering justice,” The National, August 26, 2020).
  • The Hariri family’s comments on the verdict, including that of his son Saad Hariri, indicate that they are aware that Hezbollah was behind the murder (although this was not explicitly stated). In general, the Hariri family has refrained from vehement reactions and from criticism of the STL. In the ITIC’s assessment, this is due mainly to their desire not to cause an inter-sectarian flare-up in Lebanese politics (due to tension caused after the explosion in the Beirut port, and perhaps also due to fear of further assassinations by Hezbollah).
  • On the other hand, Hezbollah’s comments on the verdict reflected satisfaction, albeit restrained. In the ITIC’s assessment, these comments may indicate Hezbollah’s interest in removing the Hariri assassination from the agenda in Lebanon and refraining from dealing with it insofar as possible. Hezbollah left the expressions of joy to its supporters on social media, who attacked the STL and praised the defendants. In the village of Harouf, in southern Lebanon, Hezbollah supporters even hung signs in support of local resident Salim Ayyash, who was found guilty.
Summary

The assassination of Rafik Hariri is yet another in a long series of political assassinations in Lebanon of senior figures from all sects, in which the real parties responsible have never been discovered or convicted in court. The establishment of an international tribunal to investigate the Hariri assassination was a first-of-its-kind attempt, which raised the expectation that this time things would be different, and that it would be possible to arrive at the truth[10]. Many years of dealing with the Hariri case and large sums of money allocated to fund the activity of the STL have resulted in the conviction of only one Hezbollah operative without indicating the responsibility of Syria and Hezbollah. Moreover, the STL did not attempt to prosecute other parties responsible for the assassination, although it was not obligated to impose such restrictions on itself[11]. The STL’s investigation dealt only with the working levels and failed to expose the chain of command of the assassination operation, which could have pointed to those responsible for the assassination. In the ITIC’s assessment, this failure of the STL stemmed from a combination of its inability and lack of motivation to get to the truth, originating from a built-in institutional weakness of the UN and a lack of sufficient support from the UN high-ranking levels.

  • Therefore, the STL’s verdict has created disappointment in Lebanon and abroad:
    • Lebanon: in Lebanon, there were expectations that the STL would do what the judiciary and law enforcement agencies are capable of doing, i.e., point out the real parties and figures responsible for the assassination of Rafik Hariri. These expectations were dashed. Nevertheless, the very conviction of a Hezbollah operative, and the plethora of evidence revealed about the complexity of the assassination, left no doubt at the political level, unlike the legal one, regarding Hezbollah and Syria’s responsibility for the assassination.
    • The international community: the international tribunal for investigating the assassination of Rafik Hariri was the first experiment of its kind, and proved a failure. The whole case illustrated that even international courts may be tainted with inability and political considerations preventing them from reaching the truth. Such courts cannot be a real alternative to the weakness of justice and law enforcement systems in poorly functioning countries such as Lebanon, and they cannot act against powerful terrorist organizations such as Hezbollah and terrorism-supporting countries such as Iran and Syria. In the ITIC’s assessment, this negative lesson will continue to resonate in Lebanon and abroad long after the dust settles on the Hariri assassination.
The structure of the study
  • Overview
  • Chapter One: The assassination of Rafik Hariri and the establishment of the STL:
    • Milestones in the establishment and conduct of the STL
    • The indictments
  • Chapter Two: The murder of senior Syrian and Lebanese officials involved in the assassination and its investigation:
    • The murder of Rustum Ghazaleh, the head of Syrian Military Intelligence in Lebanon
    • The murder of Lebanese intelligence officers who assisted STL investigators
  • Chapter Three: Description of the assassination and the verdict:
    • Overview
    • Description of the assassination of Rafik Hariri and the involvement of the defendants
    • The verdict
  • Chapter Four: The main reactions in Lebanon to the verdict

Assistance of experts

  • The Intelligence and Terrorism Information Center wishes to thank two experts who assisted in writing this document:
    • Roy Cohavi: advocate and legal advisor, specializing in terrorism-related cases and lawsuits (anti-terrorism litigation / anti-terrorism lawsuits).
    • Brigadier General (Ret.) Yossi Kuperwasser: experienced intelligence officer who headed the Research Division of the IDF Military Intelligence Directorate at the time of the Hariri assassination. He currently heads the Institute for the Study of the Methodology of Intelligence at the Meir Amit Intelligence Heritage Center and is a senior researcher at the Jerusalem Center for Public Affairs (JCPA).

[1] The full version of this study is available in Hebrew on the ITIC’s website. A translation of the full version in English will be published soon.

[2] See the ITIC’s Information Bulletin from September 2, 2005: “A severely critical UN report regarding the investigation of Rafik Hariri’s assassination accuses Syria of creating the tense atmosphere in Lebanon which made it possible. The report reveals Syrian threats on Hariri’s life and implies it is the prime suspect. It increases pressure on Syria and calls for the formation of an international committee to investigate the assassination.


[3] On December 12, 1983, a wave of attacks was carried out against the US and French embassies in Kuwait and against Kuwaiti targets. Hezbollah carried out the attacks as a “contractor” for the Iranian Revolutionary Guards. Mustafa Badreddine was also involved in a failed attempt on the life of the Emir of Kuwait (1985). He was arrested in Kuwait but managed to escape in August 1990, taking advantage of the turmoil caused by the Iraqi occupation. The Iranian Revolutionary Guards sent him to Iran from where he returned to Beirut and rejoined Hezbollah’s operational-terrorist leadership.


[4] Mustafa Badreddine, who died in a mysterious explosion in Damascus (2016), was the cousin and brother-in-law of Imad Mughniyeh, head of Hezbollah’s military wing and “number two” in the organization’s leadership, who died in a targeted killing in Damascus (2008). Mustafa Badreddine served as Mughniyeh’s deputy, and after the latter’s death he was appointed head of Hezbollah’s operational networks involved in the organization’s activity outside Lebanon. His status as the key suspect in the Hariri assassination is therefore in line with the characteristics of his past activity and professional skills.


[5] See MEMRI report, “Lebanon, the March 14 Forces: Opening of the Hariri Assassination Trial – a Historical Day,” January 16, 2014 (Hebrew).


[6] Following the publication of the verdict, Samir Geagea, executive chairman of the Lebanese Forces political party, asked to “salute the souls” of two senior members of the Lebanese security forces whose work constituted the basis for most of the verdict. Samir Geagea mentioned Wissam Eid, an officer in the Intelligence Division of the Internal Security Forces, who was involved in the investigation into the assassination of Hariri and was murdered in an IED explosion in 2008 (see below); and Wissam al-Hassan, head of the intelligence division of the Internal Security Forces, who was murdered in an IED explosion in 2012. Following the publication of the verdict, The Washington Post published a report based on American intelligence. According to the report, it was Hezbollah’s hit squad that murdered Wissam Eid and Wissam al-Hassan (Washington Post, August 25, 2020).


[7] An announcement by the US Department of the Treasury stated that: “Also in 2015, Finyanus met regularly with Wafiq Safa, whom the U.S. Treasury designated in 2019 for his leadership role in Hizballah’s security apparatus. Finyanus also helped Hizballah gain access to sensitive legal documents related to the Special Tribunal for Lebanon and served as a go-between for Hizballah and political allies.”


[8] During the operation of the STL, two high level figures involved in the assassination were murdered: Mustafa Badreddine, a senior Hezbollah figure who was included in the list of operatives against whom indictments were filed, who met his death in a major explosion in Damascus (May 12, 2016); and Rustum Ghazaleh, the head of Syrian Military Intelligence in Lebanon, who was in charge of Syrian policy in Lebanon at the time of Hariri’s assassination and was interrogated by the STL (murdered in Damascus on April 24, 2015). Apart from them, other Syrian and Lebanese intelligence personnel who were involved in the investigation of the Hariri assassination were murdered. All of these murders were not solved and their perpetrators were not prosecuted.


[9] To illustrate a properly conducted international trial, the Nuremberg Trials of the main war criminals can be cited as an example. This proceeding was conducted against 22 defendants (only one of whom was tried in absentia), before judges from four different countries. The proceeding began in November 1945, i.e., very shortly after the events pursuant to the preceding. The entire proceeding (from the opening speeches to the beginning of the execution of the sentences of those convicted) took about 11 months. This was despite the number of defendants, the need to translate the evidence from several languages (German, Polish, Russian and more) into several different languages (German, English, Russian, French), to take down the court proceedings in shorthand in four different languages, and the vast scope of the proceedings (countless acts and omissions were deliberated in the proceedings, carried out over a period of years, by many people, in many places, some covertly and some overtly, some in limited conspiratorial circles and some in wider circles). For some of them, it was difficult to obtain direct evidence and the court was forced to draw conclusions from circumstances and context. In order to illustrate the enormous scope of the work, it should be noted that the protocols of the trial (the Blue Series) fill up 42 thick volumes of about 600-700 pages each, and the summary of the evidence submitted during the trial (the Red Series) fills up eight volumes of about 1,000 pages each. This is how a proceeding is conducted when the intention is to arrive at the truth, insofar as a court is able to arrive at the truth, in contrast to the Hariri assassination proceedings.


[10] These may have been false expectations, and from the outset one could not expect more from the STL, which merely represents the weakness of the UN system. It is highly doubtful whether the UN can be expected to preoccupy itself with countries like Iran and Syria, and with a powerful terrorist organization like Hezbollah, which operates under their sponsorship. Nevertheless, the STL could have been expected to at least mention the involvement of unindicted co-conspirators in the assassination.


[11] The concept of “unindicted co-conspirators” exists in US law.



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