A stitch in time: Examining the Ayyash et. al. verdict – Raghavi Viswanath

On 18 August 2020, the Special Tribunal for Lebanon (‘STL’) issued its long-anticipated judgment on the trial of the four accused of killing former Lebanese Prime Minister Rafik Hariri and 21 others in an explosive attack in February 2005. After a six-year long trial that brought 297 witnesses and 3135 exhibits to the stand, the Tribunal found one of the four accused, Salim Ayyash, guilty of being a co-perpetrator of a terrorist act, of intentional homicide, and of conspiracy to assassinate Hariri. The remaining accused were acquitted on all counts.

The judgment has drawn charged responses – from academics, civil society, and the victims. This does not come as a great surprise; after Hariri’s assassination, Lebanon plunged into a state of political anarchy, with its former Western and Gulf allies warring with terrorist outfits such as the Hezbollah. Lebanon has not recovered since, a prospect which has only become bleaker after the debilitating explosion in Beirut in August 2020.

For the people of Lebanon, a judgment by an internationalized tribunal on terrorism in Lebanon presented an opportunity to recognise and validate their plight, particularly that of the victims of the February 2005 blast. This explains why many victim groups were unhappy about the acquittals in Ayyash et. al. Compounded by the fact that the trial was removed from the seat of the political conflict and the Tribunal did not have the authority to award reparations, the Tribunal is regarded by some to have failed the victims. 

For others, the acquittals do not measure up to the US$970 million invested in keeping the Tribunal running. The judgment may be just a “footnote in history” since the trial was conducted in absentia (pursuant to Article 22 of the Tribunal’s Statute) and would have to be conducted again if the accused were surrendered to the Tribunal (see, Article 22(3) of the Statute). 

While these are fair grievances, they would be just as valid had the Tribunal convicted the four accused. In fact, the acquittals, per se, speak neither to the inefficiency of the STL nor to its success. The success of the judgment is better evaluated based on the strength and durability of its legal reasoning. This article will attempt to examine how the Ayyash et. al. judgment fared on these two metrics.

Silver linings: Long-term success?

The Ayyash et. al. judgment makes three novel contributions, all of which pass muster in terms of legality and practicality.

Firstly, the Prosecution’s case in Ayyash et. al. relied heavily on evidence procured from mobile phone communications. Although the Chamber ultimately held that the Prosecution’s exclusive reliance on circumstantial evidence was insufficient to establish the criminality of the accused except Ayyash, it laid down a rather detailed methodology to test the probative value of circumstantial evidence. Importantly, it differed from Judge van Wyngaert and Judge Morrison’s joint separate opinion in the Bemba Appeal Judgment before the International Criminal Court, noting that inferences from circumstantial evidence can, so long as the evidence is individually admissible and probative, establish guilt of the accused; whether it does so depends on the quality of the evidence viewed in its entirety (see paragraphs 256 to 274 of the Ayyash et. al. judgment).

The Court also set out a clear and practical approach to the assessment of the probative value of different forms of telecommunications evidence. In paragraphs 2617 and 4675, the Court found that attributing activity in multiple phones to one user is best done using “reliable GPS information”. In the absence of GPS information, cell data sites and call records may be used to determine the general area in which the mobile was located. On this basis, the Chamber set out a reference approach for approximation of co-location using cell data sites, emphasising the need to take into account various factors related to call patterns and geographic profiling, such as traffic or travel conditions (paragraphs 2641 to 2647 and 2653 to 2657 of the judgment).

The Prosecution’s case highlights how difficult it is to retrieve and re-construct cell site evidence from many years ago. Given that many ongoing proceedings and investigations at international and internationalized criminal tribunals – such as at the International Criminal CourtInternational Court of Justice, and the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh – are based on telecommunication and open source evidence, the STL’s methodology sets an appropriate and timely precedent.  

Secondly, unlike the Cassese-led Appeals Chamber which defined the crime of terrorism by harmonising Lebanese penal law with customary international law, the Trial Chamber principally confined itself to the definitions under Lebanese penal law. The Trial Chamber’s approach is more aligned with the STL’s unique constitution – as an internationalized tribunal which applies domestic Lebanese law. Nonetheless, the Trial Chamber clarified that Article 16(3) of the STL Statute still makes space for international human rights law to factor into the determination (paragraph 201 of the judgment). Accordingly, in cases of ambiguity within the statute or inconsistency between the statute and jurisprudence interpreting it, the Chamber decided to make a final determination by applying the in dubio pro reo principle and selecting the interpretation that favoured the accused (paragraph 6018 of the judgment). 

This approach allowed the Trial Chamber to limit the over-reaching interpretations proffered by the Appeals Chamber. For one, the Trial Chamber chose not to apply the customary law understanding of joint criminal enterprise and co-perpetration (for which the International Criminal Tribunal for the Former Yugoslavia is regularly faulted). Illustratively, in paragraphs 6029 and 6030, the Chamber, applying Lebanese penal law, found that a co-perpetrator must have directly contributed to the commission of the crime “by laying the basis of its execution”. This, in the Chamber’s opinion, extends beyond contributions to the “mere preparation of the crime”. Notably, unlike the Appeals Chamber, the Trial Chamber in Ayyash et. al. did not restrict its reading of modes of conspiracy liability to the crime of terrorism alone, but also to intentional homicide and attempted intentional homicide.

Furthermore, the Trial Chamber rejected the Appeals Chamber’s more extensive interpretation of the elements of the crime of terrorism. It ruled that it was unnecessary to read an element of “credible threat” to “create public danger into the definition of the crime, given that Mr. Hariri was killed using an explosive device, which is inherently dangerous to the public (paragraphs 6168 to 6171 of the judgment). Additionally, it was not required to prove that the accused intended to terrorise the “general public”. It sufficed to demonstrate that the accused intended to cause terror “in a particular area or among a particular group” (paragraph 6177 of the judgment).

Thirdly, although the judgment has been decried as a missed opportunity to hold the Hezbollah accountable for political crimes in Lebanon, it still makes far-reaching observations on the Hezbollah’s involvement in Lebanon’s systemic decay. As an aside, however, the Chamber was not even tasked with ruling on the Hezbollah’s culpability. The Prosecution repeatedly under-stated the link between the Hezbollah and the accused, observing that it was not essential for the conviction of the accused (paragraphs 122 and 123 of the judgment). In any case, a closer study of the judgment reveals that the Chamber found that all the accused (excepting Merhi) were supporters of the Hezbollah (paragraph 762 of the judgment). It theorized that the Hezbollah and Syria may have had the “political motive” to “eliminate Hariri” (paragraph 787 of the judgment), a conclusion bolstered by the fact that the conspiracy to assassinate Hariri was hatched two weeks after the meeting where Hariri and his delegates had called for the total withdrawal of Syrian forces from Lebanon (paragraph 6500 of the judgment). As Hariri’s son later echoed, in so doing, the Chamber “sent a message to the killers that the era of political crimes is over”, without going so far as to find the outfit directly liable in the absence of clear evidence.

The way forward

Notwithstanding the merits of the case, Ayyash et. al. is a lesson in policy reform. Just as the Ayyash et. al. case was ending, the Tribunal made public that Ayyash had been indicted for attacks on three other politicians. This new connected case is likely to extend the STL’s mandate (which was originally set to last until 2018 and then 2021) by many years.  

While the State of Lebanon (which currently funds 49% of the STL’s operational costs) has been able to meet its monetary commitments thus far, its current economic situation likely threatens the longevity of the Tribunal. Arguably, these mammoth costs make in absentia proceedings rather unsuitable, given that every accused who is surrendered to the STL after their conviction is entitled to a retrial.

More significantly, the critical response to the Ayyash et. al. judgment serves as a reminder of the STL’s selective and piecemeal understanding of justice. Presumably, at the time that Lebanon requested the UN to set up an international tribunal, it was only practical for the Tribunal to exclusively prosecute the attack on Hariri and related attacks. However, when situated in the context of the devastating political crimes apart from terrorism committed against Lebanese people in the past decade, and the unaddressed wounds from the 1975-90 civil war, the singular focus on crimes against political leaders seems misplaced. What Lebanon needs is more avenues for truth-telling and reparative justice – for all of which the Ayyash et. al. judgment is a fitting invitation.

Raghavi Viswanath is a PhD researcher at the European University Institute. Prior to the PhD, she completed degrees at the Leiden Law School, the University of Oxford, and National Law Institute University Bhopal (India). She specialises in international criminal law and human rights law. Raghavi is also a Research Associate at the Public International Law and Policy Group and a rapporteur for the Oxford Reports on International Law.