Court in quandary over death of Hizbullah commander

A UN-backed court is expected to request conclusive evidence – perhaps in the form of DNA – that a Hizbullah commander killed last week was the same man who allegedly masterminded the assassination of former Lebanese prime minister Rafik Hariri in 2005.

Mustafa Amine Badreddine (55), in charge of Hizbullah's military operations since 2011, was killed in shelling near Damascus airport that was initially blamed on Israel but later attributed to Sunni jihadists opposed to Syrian president Bashar al-Assad.

Badreddine was one of five Hizbullah members indicted in 2011 by the Special Tribunal for Lebanon, set up to convict those behind the killing of Hariri – who died on Beirut's seafront when his armoured motorcade was obliterated by a huge van bomb equivalent in power to 2.5 tonnes of TNT.

Although Hizbullah has never accepted responsibility for the assassination, in which 21 others also died, its leader, Sheikh Hassan Nasrallah, said unequivocally at the time that the fugitives remained under Hizbullah's protection. "Any hand that touches them will be cut off," he warned.

In absentia

So when the trial of Badreddine and his four co-accused –

Salim Ayyash

,

Hussein Onessi

,

Assad Sabra

and

Hassan Merhi

– opened in a former headquarters of the Dutch security services in The Hague in January 2014, the dock was empty. The five were to be tried

in absentia

.

The court heard that Hariri was "a marked man" from the moment he stepped down as prime minister in late 2004 in a row over a proposed extension to the term of Lebanese president Emile Lahoud, an ally of Syrian president Assad.

The prosecution alleged that the assassins staked out Hariri 24 hours a day for months, using four sets of mobile phones to track his movements, with Badreddine in overall control and Ayyash allegedly running the operational detail.

Prosecutor Norman Farrell declared: "The people of Lebanon have a right to this trial – and to see the truth."

However, so mired in conspiracy theory has the Hariri assassination become that many Lebanese regard it as their equivalent of the JFK assassination, in which the facts will always be in dispute and the truth will remain elusive.

As the Lebanon tribunal resumes on Tuesday, the question it faces is whether the case – known as “Ayyash et al” – can continue without the defendant regarded as its chief suspect.

In a brief weekend statement, the court acknowledged reports in the media announcing the death of Mustafa Amine Badreddine. It refused to make any further comments “pending a judicial determination”.

Really dead

Legal sources say the judges will have to establish to their satisfaction that Badreddine is actually dead – and, in legal terms, that determination cannot be based on what they read or hear in the media alone.

The most definitive way to establish that link is through DNA.

It’s likely that if Badreddine’s defence team asks for the proceedings to be terminated on the grounds that he is deceased, the court may ask them to provide incontrovertible evidence, such as a DNA sample, to support that application.

On the basis that the case is already going on in the absence of the defendants, there is no reason, the legal argument goes, that it cannot continue in the same way until such evidence is produced.

Although it will not be popular with those seeking redress for the 2005 bombing – not least Hariri’s son, Saad – once that evidence is produced, the judges can terminate the Badreddine case without prejudice to the charges against the remaining four.

The precedent here is the case against former Serbian president Slobodan Milosevic, who died in detention in March 2006 during his trial before the International Criminal Tribunal for the Former Yugoslavia.

Actual culprit

Critics of the Lebanon tribunal say it should in the first place have indicted the man they regard as the real culprit, namely Bashar al-Assad, rather than his alleged henchmen.

They warn that many victims will inevitably feel they were denied justice.

The irony, however, is not lost on them that Badreddine would still be alive had he accepted the jurisdiction of the court in the first place.