The Legal Basis of the International Tribunal for Lebanon: Challenges and Opportunities for International Criminal Law

The Special Tribunal for Lebanon opened its doors in The Hague on the 1st of March 2009, after many years of tiring legal and diplomatic procedures.
While many observers welcomed this institution, stating that it constitutes a great achievement for Lebanon, others raised issues regarding the legal basis of the Tribunal.

These issues lead to a bigger controversy regarding the obvious political component of the establishment of this court.

The history of the Tribunal really begins on February the 14th 2005, when Prime Minister Rafic Hariri was assassinated in a car blast in Beirut city centre, along with 22 other innocents. Right after the attack, all fingers pointed towards Syria as the instigator of the crime. The attack triggered many demonstrations all over Lebanon, culminating in the departure of the Syrian Army from Lebanon, and caused outrage within the International Community and especially in the western world, Hariri being a close friend of many western leaders like Jacques Chirac.

On December the 13th 2005, the Lebanese Prime Minister submitted a letter to the UN General Secretary, requesting among other things the establishment of an International Tribunal for Lebanon that would be in charge of trying the perpetrators of this crime, as well as all the terrorist attacks that took place in Lebanon from October the 1st 2004 on.
The Security Council Resolution 1664 of 2006 throws the basis for the Special Tribunal of Lebanon when it states:

“ [The Security Council] requests [The Secretary general] to negotiate an agreement with the Government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice, taking into account the recommendations of his report and the views that have been expressed by Council members;”

However, the Tribunal will be formally instated by Security Council Resolution 1757 of 2007 that indicates that the Tribunal statute, hence the Tribunal itself, will enter into force on the 10th of June 2007:

“Decides, acting under Chapter VII of the Charter of the United Nations, that:

(a) The provisions of the annexed document, including its attachment, on the establishment of a Special Tribunal for Lebanon shall enter into force on 10 June 2007, unless the Government of Lebanon has provided notification under Article 19 (1) of the annexed document before that date”

The mandate of the Tribunal is to prosecute liable persons for the assassination of Rafic Hariri and the 22 people that died with him. The competence rationae temporis (.i.e. the amount of time the Tribunal has jurisdiction over) runs from October the 1st 2004 to December 12th 2005, with a provision that crimes that happened after this period of time might be tried in front of the Tribunal provided the Lebanese Government and the United Nations give their agreement and provided these attacks “are of a nature and gravity similar to the attack of 14 February 2005 ». The court will examine the attacks in the light of various criteria, mainly, as stated in art.1 of the Statute, the criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.
Regarding the Rationae Personae Competence, the Statute is not really specific and only mentioned the “persons responsible for” the crimes.

The Tribunal will apply the Lebanese Criminal Code and other Lebanese Laws. However, death penalty is excluded, albeit allowed within the Lebanese Laws.
It is worth mentioning that the Special Tribunal for Lebanon is actually a hybrid institution, in the sense that it was internationally created, funded (although the Lebanese Government is responsible for 49% of the funding) and put in place, but that it applies the Lebanese Criminal code. To compare, the International Tribunal for ex-Yougoslavia (ICTY) is a “pure” international institution, as it applies the Geneva Conventions.

The annex of Resolution 1757 “Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon”, states the composition of the Court. Eleven judges serve the Court, the Lebanese judges being appointed by the Secretary General. Four Lebanese judges are now working within the Tribunal.

From an international law point of view, it’s really interesting to notice that Chapter VII of the UN Charter legitimized the existence of the Tribunal.

It’s true that all the previous International Ad Hoc Tribunals have been created under the auspices of Chapter VII of the UN Charter. When creating these institutions, two articles in particular were paid attention to: Article 39 and article 41.

Article 39 states that:

“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

And Article 41 that:

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

These two articles gave the Security Council the necessary legal basis to create ad hoc Tribunals. Indeed, the courts stem from the “measures […] that shall be taken to maintain or restore international peace and security” of article 39 and from the “measures not involving the use of armed force” of article 41.
In the context of an armed conflict, like those that broke out in Ex-Yougoslavia or Rwanda, it is easily understandable that the Security Council was clearly able to determine the existence of a breach of the peace, and that the Tribunals were means to restore and maintain, trough the reconciliation and reparation implied by the settlement of the cases, peace and security.

But what about Lebanon? There was no armed conflict in 2005 when the Prime Minister was assassinated. The bomb attack perpetrated against Rafic Hariri was a terrorist attack, comparable to the London attacks of 2005, and in our opinion, was by no means a breach to the international peace. Why create an international Tribunal for the assassination of a political man? Granted, the Tribunal is competent to try other assassination that took place in Lebanon, but it states so as if it was an afterthought, a way to legally sell this product of high UN Security Council activity.

Was the attack a threat of a breach to the international peace? And if so, why not have qualified other political assassinations in the same way?

Funny how the international Community didn’t pressurize Lebanon to have a Tribunal or at least a Truth and Reconciliation Commission after the endless civil war that killed 150 000 civilians over 15 years in Lebanon. Such an institution would have had a proper legal basis.

The Special Tribunal for Lebanon needs to stretch the UN Charter and International Criminal Law to the maximum to justify its very existence, purely and simply because it is the first tribunal ever to be instated on the basis of terrorist attacks.

It is hard not to be tempted to argue the very high political profile that this institution has. Even more political that there is the International Criminal Court now, trying many conflict-related cases.

Why not use an institution that is already there instead of wasting much-needed funds in creating a new one? Could it be because the United States and Israel have not ratified the ICC Statute?

Many questions arise from the creation of the Tribunal. One can argue that it is better than nothing, but as an international law jurist, it pains me to realise that the integrity, the immutability of International Rules, which makes the beauty of International Law, is being compromised by political will.
This is a Tribunal that’ll have to have corruption-proofed judges, that will have to try harder than any other legal institution just to be taken seriously.

And just to be the cynical jurist here, at least we will have a (hopefully) good jurisprudence on terrorism, that might help put some deviant state’s behaviours back into place.


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