The Lockerbie Solution

At first glance, UN Security Council Resolution 1595 reads like any other bland legal document. But the resolution, which passed unanimously on April 7, is anything but ordinary. Two months earlier, former Lebanese Prime Minister Rafik Hariri, along with 22 others, was killed in a car bombing. Hariri was a longtime opponent of Syria's ambitions to make Lebanon into a proxy state, and suspicion concerning his death immediately fell on the Syrian security services. So, for the first time in UN history, a Security Council resolution authorized a special investigator to probe the circumstances of what appeared to be the state-sponsored assassination of a foreign rival.

On October 19, the German investigator leading the probe, Detlev Mehlis, returned to the Security Council to present his initial findings. Despite Syrian officials' attempts to lead investigators astray, the report was clear. All roads led to Damascus -- specifically to Syrian President Bashar al-Assad's brother-in-law, military intelligence chief Asef Shawkat, who allegedly planned the hit from his own home.

But the tricky part comes now that most of the evidence has been gathered. A murder has been committed and there are suspects. Because the Security Council ordered the investigation, it is incumbent upon that body to decide exactly how and where to try the accused.

So far, those questions have been not been considered in much detail. As is often the case at the UN, when no easy solution presents itself, the decisions have been kicked down the road (see also: the Human Rights Council). In this case, the thorny issues of a potential trial's venue and structure will need to be settled soon; in December, Mehlis will issue his final report.

Considering the stakes involved for Syria, Lebanon, and members of the Security Council, this is truly a daunting task. Because of the involvement of high-level government officials, situating a trial in Syria is off the table. Lebanon would seem to be the best choice; Mehlis has expressed his confidence that with international support the Lebanese judiciary would be competent to take his investigation forward, and as the scene of the crime it is the most logical place to hold any trial.

Lebanon, however, is the last place that the Syrians would extradite the accused, leaving a need for some international forum. Indeed, the current Lebanese prime minister and members of Hariri's political party want his alleged killers to be tried before an international court. But existing structures like the International Criminal Court are only meant to try crimes against humanity, not cases of premeditated murder, so the Hariri dossier is out of their jurisdiction. And the creation of an ad hoc international court to try a single murder is not likely to be a precedent that most members of the Security Council -- especially the United States -- are willing to set.

Given the abundance of bad options, one solution that ought to be considered is hosting the trial in a third country in a manner akin to the trial of the two Libyans suspected of blowing up Pan-Am Flight 103 over Lockerbie, Scotland in 1988. In 2000, after years of political and diplomatic wrangling, the suspects sat trial in the Netherlands. The Dutch then declared 30 acres of a former U.S. airbase to be Scottish territory, and the suspects were tried by a panel of Scottish judges under Scottish law. After a year, one of the accused was found guilty of all 290 counts of murder and the other was acquitted.

Of course, it took over a decade for that trial to even begin. In the interim, Britain and the United States steadfastly demanded that the accused stand trial in the UK or the United States. Libyan President Muammar Quaddafi refused to extradite the pair of alleged bombers to either country. Finally, in 1998, after years of sanctions on Libya, Britain and the United States agreed to the creative Dutch solution, which had been proffered by a Scottish law professor four years earlier. Soon thereafter, Saudi Crown Prince Abdullah and Nelson Mandela visited Quaddafi and urged him to accept the deal, which he did.

It's unclear whether a neutral third country (say, Egypt) would want to accept such a political hot potato. But in the interests of justice, some deal for trying the accused will have to be brokered between Syria and the Security Council. The hard-line approach would be to demand that the accused sit trial in Lebanon -- a proposition that Syria would be forced to reject, thus arming the French, Americans, and British with fresh Security Council arguments to place Syria under UN sanction. In those circumstances, Syria would not hand over their accused until international pressure became too onerous. As with the Lockerbie case, that could take years or decades.

On the other hand, the Security Council could show a dose of creativity in setting up some legitimate ad hoc judicial process that would be at least palatable to the Syrians. It is incumbent upon members of the Security Council, including the United States, to reach that point sooner rather than later, even if in the short term it means working with Syria. In the end, any trial outside Syria would not only expose any crimes committed by the accused but the ruinous criminality of the Syrian regime as well.

Mark Leon Goldberg is a Prospect writing fellow.

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