The
Hariri Tribunal: A Fait Accompli?
By Nisrine Abiad
& Victor Kattan
12 June, 2007
Electronic
Lebanon
On
30 May 2007, the UN Security Council narrowly passed a resolution by
a 10-0 majority to establish an ad hoc international criminal tribunal
to investigate and try the suspects of the February 2005 assassination
of former Lebanese premier and businessman Rafiq Hariri.
China, Russia, Indonesia,
Qatar and South Africa abstained from the vote, arguing that given the
deep rift in Lebanese society, the tribunal could have negative consequences.
They particularly objected to the reference to Chapter VII of the UN
Charter, which gives the Council the power to enforce its decisions.
We can only welcome the advent
of a new era in the Middle East, in which the perpetrators of international
crimes can be held to account for their actions. The establishment of
the tribunal is a victory for justice and accountability. It aims at
narrowing the impunity gap through international means when the domestic
accountability mechanism, namely the judicial system of Lebanon, is
incapable of undertaking this task.
The decision of the Security
Council, despite its shortcomings, constitutes at least a sanction of
sufficient credibility which could influence, if not deter, the calculations
of criminals who are unfortunately prevalent in Lebanon.
It is, however, somewhat
paradoxical that the very tribunal which is being established to punish
violent behaviour and to promote the rule of law may actually risk generating
further instability in Lebanon, at least in the short term. The establishment
of the tribunal for Lebanon as conceived in resolution 1757 also suffers
from many legal and political imperfections.
The question remains: would
other possible alternatives -- such as a tribunal established within
Lebanon, which some Lebanese lawyers believe could have been accomplished
whilst taking into account the peculiarities of the Lebanese legal system
-- be better? After all, the current deficiencies with the judicial
system will not be ameliorated by the establishment of a new tribunal
outside the country.
The problems with the international
tribunal are both legal and political. From a legal point of view, the
validity of the agreement on which resolution 1757 derives its legitimacy
is highly questionable.
This is because the agreement
between the UN and the Lebanese Republic on the establishment of a special
tribunal for Lebanon was signed by the government of Lebanon and the
UN respectively on 23 January and 6 February 2007 in violation of Article
52 of the Lebanese Constitution, which provides that the President of
the Republic can only negotiate international treaties in coordination
with the Prime Minister (Fouad Siniora).
Yet this agreement was concluded
without the involvement of Lebanon's President Emile Lahoud, as required
by this constitutional provision.
Furthermore, whilst the text
of the resolution mentions the letters sent by the Prime Minister of
Lebanon, it ignores the other correspondence from the President giving
his opinion on the subject in the framework of his constitutional prerogative
in this field.
Moreover, resolution 1757
was adopted without taking into account the internal constitutional
process in Lebanon, in that it was not approved of by the Lebanese parliament.
This might also explain why the resolution was adopted under Chapter
VII of the UN Charter, because those who drafted it know too well that
it is unlikely to be approved by the parliament, and will therefore
require its enforceability outside Lebanon.
Although the international
tribunal for Lebanon cannot bring justice and accountability for all
the political and terrorist atrocities perpetrated on Lebanese territory,
Hariri was not the only political leader to have been assassinated on
the streets of Lebanon. Before him there was Bechir Gemayal and Rene
Mouawad, who were both former presidents of Lebanon, as well as Kamal
Jumblat, Rachid Karame, Dory Chamoun and many other civilians.
What made Hariri so special?
Surely the perpetrators of acts amounting to war crimes, crimes against
humanity and acts of genocide, which occurred all too often in Lebanon
throughout the 1970s and 80s, deserve to be investigated by an international
tribunal of some sorts? If this can be done for Cambodia, Rwanda and
the former Yugoslavia, then surely a tribunal can be established for
Lebanon.
We believe that an international
tribunal could and should have been established with the powers to investigate
not only the Hariri assassination, but also the chief perpetrators behind
Lebanon's 1975-1990 civil war.
Although the Lebanese government
passed a general amnesty law in 1991, which granted immunity to any
and all Lebanese individuals and groups for war crimes and crimes against
humanity committed between February 1975 and March 1991, this does not
have any effect outside the borders of Lebanon. An international tribunal
established under Chapter VII of the UN Charter could have been mandated
to look into those events.
Our concern over the scope
and competence of the tribunal is, however, not only limited to the
time factor; "since 2004" as precised in the resolution.
We are also bothered by the
material delimitation of the attacks which "are connected in accordance
with the principles of criminal justice and are of a nature and gravity
similar to the attack of 14 February 2005," as provided for in
Article 1 of the special agreement concluded between Lebanon and the
UN. We cannot understand why less grave terrorist attacks should not
be investigated.
Furthermore, the extension
of the competence of the ad hoc tribunal to have jurisdiction over "other
assassinations" or "other attacks in Lebanon since October
2004" gives the impression that a selection will be made amongst
the 18 most recent attacks in Lebanon.
Some might say that this
looks like another case of double standards led by the governments of
the US, the UK and France. After all, why are these countries only concerned
with the assassinations of 50 people, when some 1,200 civilians were
killed as recently as 2006 in the war with Israel?
Perhaps at some later stage,
and if the tribunal is a success, its competence could be broadened
so as to include war crimes and crimes against humanity from 1975. After
all, Lebanon has not ratified the Statute of the International Criminal
Court (and in any event, the ICC cannot investigate crimes before 1
July 2002).
For while we welcome the
establishment of the tribunal, the manner in which it has been adopted
presents itself as a fait accompli, rather than a genuine attempt to
hold those accused of serious criminality to account for their actions.
Nisrine Abiad and
Victor Kattan are research fellows at the British Institute
of International and Comparative Law.
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