x Abu Dhabi, UAESunday 21 January 2018

Justice must not be pegged to the politics of superpowers

International justice may well be here to stay, but it is certainly not here for everybody.

When the former president of Liberia, Charles Taylor, was sentenced in May 2012 to a long jail term for aiding and abetting war crimes and crimes against humanity, optimists insisted that international justice was here to stay. That optimism reflects a general tendency to believe that international justice can help to curb abuses by politicians.

However, that belief ignores the realities of international politics. Writing in The Guardian, the prominent Australian-British barrister Geoffrey Robertson argued that, in practice, the five permanent members of the UN Security Council tended to escape punishment, as did their friends. Mr Robertson gave as an example President Bashar Al Assad of Syria, who is supported by Russia.

Syria is not a signatory to the International Criminal Court (ICC) convention. However, the Rome Statute establishing the court allows the Security Council, under Chapter VII, to refer cases to the ICC. Because of Moscow's close ties with Mr Al Assad's regime, this scenario is improbable in the case of Syria's president. That is why, over 100,000 deaths later, most of them caused by the president's forces, there are no signs that Mr Al Assad will ever be brought to trial.

That is not to say that leaders can invariably ignore the consequences of the crimes they order or enable. But they also know that the supposedly impartial world of international justice is very much influenced by political considerations. The ultimate determinant of who or who is not charged is a function of power and of political alignments at any given moment.

Lebanon learnt this lesson well after 2005, when the former prime minister, Rafik Hariri, was assassinated. At the time, the Security Council was far less divided than today and agreed to set up an international investigation of the crime. Subsequently, the UN created an international tribunal, the first time the organisation had done so in the case of a specific politically-motivated murder.

But while the tribunal, known as the Special Tribunal for Lebanon (STL), showed what could be done when the Security Council was in agreement, the investigation demonstrated that politics are not alone in influencing the effectiveness of international justice; there is also the competence and intentions of those implementing it.

The investigation of the Hariri assassination was marked by sluggishness and carelessness. The second investigator, Serge Brammertz, a Belgian who is now prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), advanced little while he was in Beirut. Several of those involved with Mr Brammertz, including UN investigators and Lebanese officials, described for me what they saw as a conscious lack of progress in critical aspects of the case.

A Canadian Broadcasting Corporation journalist, Neil Macdonald, hosted a news programme that also found signs of neglect by Mr Brammertz. For a long time, he avoided authorising analysis of the telecommunications of the alleged perpetrators. A Lebanese police officer, Wissam Eid, did so on his own, tracing them to Hizbollah. Yet UN investigators managed to misplace Mr Eid's report for months, confirming his conclusions when they eventually found it. Both Mr Eid and his superior, Samir Shehadeh, were the targets of assassination attempts, in Mr Eid's case a successful one.

After two years at his post, Mr Brammertz had failed to arrest new suspects, had pushed the critical analysis of telephone communications onto the Lebanese, despite their limited expertise, and had kept in prison several suspects, without garnering sufficient evidence to confirm their guilt. And his reward was to be promoted to the ICTY. To his detractors, this recompense reflected international approval of Mr Brammertz's failure to get to the bottom of matters.

His successor, Daniel Bellemare, was little better. It took several years for him to issue an indictment, apparently confirming that Mr Brammertz had left him with little with which to work. Ultimately, Mr Bellemare became prosecutor of the STL, and his indictment of four Hizbollah members, who remain at large, relied heavily on Mr Eid's conclusions. However, it was lacking in one essential regard: Mr Bellemare defined no motive for the crime.

That the STL is in good hands today does not change the fact that the long delays in the investigation and judicial timetable have turned the body into a marginal issue for Lebanese. What was once hailed as a process that would end impunity for political crimes has turned into a cautionary tale, an example of what to avoid in international justice. The trial will probably begin next year, without suspects in detention and with no expectations that it will alter anyone's behaviour.

While Syria was certainly involved in the Hariri assassination, in conjunction with Hizbollah, Mr Al Assad has been untroubled by that experience. He has pursued savage repression at home, with no fear of penalties. Like his Sudanese counterpart, Omar Hassan Al Bashir, who was indicted by the ICC for crimes committed in Darfur, Mr Al Assad knows that with enough countries rejecting judicial action against him for political reasons, he is unlikely to spend time in jail.

International justice functions in the unpredictable, shifting world of politics, toward which judicial officials, pursuing their personal ambitions and agendas, can be as sensitive as anyone. That does not mean that all such officials are open to political pressure, but rather that one should not go overboard in presuming that justice is some sort of celestial sphere isolated from realities outside.

Any widening of international legal standards is always welcome, but as the examples of Syria, Lebanon and Sudan show, the criminals frequently come out on top.

International justice may well be here to stay, but it is certainly not here for everybody.


Michael Young is opinion editor of The Daily Star newspaper in Beirut

On Twitter: @BeirutCalling