Chances of a Special Tribunal for Lebanon
The United Nations has signed an agreement with Lebanon setting up a Special Tribunal to prosecute the suspected killers of former Prime Minister Rafik Hariri. It is now just waiting for the final ratification by Lebanon.
In spite of the deadly efforts performed by the suspected killers and their associates and proxies in Lebanon to preclude this special tribunal as we saw in the latest months, it is obvious that the process of setting up this tribunal is going ahead. Apparently, that those parties are willing and able to ruin Lebanon and even to wage local or regional wars not to mention the wide wave of political crimes and killings to stop this process and finally preclude the tribunal and therefore the long-awaited justice and international protection for Lebanon and Lebanese cadres. Those threats by the anti-tribunal forces are serious and may jeopardize Lebanon and the region, so they should be taken seriously by the international community.
However, I can say that establishing a legal process for justice in the case of the killing of PM Hariri is definite because of the existence of the international investigation, especially after the adoption of a "tribunal of an International character" for these crimes by the Security Council in its resolutions 1644 and 1664. It is definite since there are an international political crime and an international mandated investigation into this crime and finally suspected killers. Actually, the international community has no chances to put up with these political terrorist crimes at this stage since this would constitute a breach of the very nature of the international system and organization and then the international and regional security in the Middle East.
Therefore, the international community should act on this question totally considering the serious counter-strategy and plans of the anti-tribunal parties. Here, some balancing cards should be played. Since the resort to the chapter VΙΙ in adopting and setting up an international tribunal has no much enthusiasm by the Security Council members for various reasons and also it entails some long and somehow complicated processes, and in case that the Lebanese Government is prohibited from making the final ratification on the agreement with the UN, the international community should consider a very consistent and applicable option is to refer this case to the International Criminal Court by the Security Council given that the investigation has provided the legal foundation for that referral with finding out the connection between the series of attacks including the Hariri one, the matter that will provide a legal basis to mark those crimes as crimes against humanity.
To explain this extremely important point in legal terms I will quote from the section C of "subject matter jurisdiction" of the Secretary General's report to the Security Council on the Special Tribunal for Lebanon:
23. In keeping with the Security Council mandate requesting the Secretary-General to establish a tribunal of an international character and in the circumstancesof Lebanon where a pattern of terrorist attacks seems to have emerged, it was considered whether to qualify the crimes as crimes against humanity and to define them, for the purpose of this statute, as murder or other inhumane acts of similar gravity causing great suffering or serious injury to body or to mental health, when committed as part of a widespread or systematic attack directed against the civilian population.
24. Mindful of the differences in scope and number of victims between the series of terrorist attacks committed in Lebanon and the killings and executions perpetrated on a large and massive scale in other parts of the world subject to the jurisdiction of any of the existing international criminal jurisdictions, it was nevertheless considered that the 14 attacks committed in Lebanon could meet the prima facie definition of the crime, as developed in the jurisprudence of international criminal tribunals. The attacks that occurred in Lebanon since 1 October 2004 could reveal a “pattern” or “methodical plan” of attacks against a civilian population, albeit not in its entirety. They could be “collective” in nature, or “a multiple commission of acts” and, as such, exclude a single, isolated or random conduct of an individual acting alone. For the crime of murder, as part of a systematic attack against a civilian population, to qualify as a “crime against humanity”, its massive scale is not an indispensable element.
25. However, considering the views expressed by interested members of the Security Council, there was insufficient support for the inclusion of crimes against humanity within the subject matter jurisdiction of the tribunal. For this reason, therefore, the qualification of the crimes was limited to common crimes under the Lebanese Criminal Code.
(End of quote)
For documentation, I will post here the historic letter of the Security Council in which the Security Council eventually approved the statute of the Special Tribunal for Lebanon.
You can obtain the Statute of the Special Tribunal for Lebanon from MIDDLE EAST POLICY here.
Letter dated 21 November 2006 from the President of the Security Council addressed to the Secretary-General
The members of the Security Council have carefully considered your report onthe establishment of a special tribunal for Lebanon (S/2006/893), submitted in accordance with resolution 1664 (2006), as well as the attached presentation** by your Legal Counsel.
They welcome the conclusion of the negotiation with the Government of Lebanon, as requested in resolution 1664 (2006).
The members of the Security Council are satisfied with the Agreement annexed to the report, including the Statute of the Special Tribunal.
With regard to the financing of the Special Tribunal, they support option 2, asset out in paragraph 49 of your report, and recommend therefore the inclusion in the Agreement of the corresponding article, which would read:
The expenses of the Special Tribunal shall be borne in the following manner:
(a) Fifty-one per cent of the expenses of the Tribunal shall be borne by voluntary contributions from States;
(b) Forty-nine per cent of the expenses of the Tribunal shall be borne by the Government of Lebanon.
It is understood that the Secretary-General will commence the process of establishing the Tribunal when he has sufficient contributions in hand tofinance the establishment of the Tribunal and twelve months of its operations, plus pledges equal to the anticipated expenses of the following twenty-fourmonths of the Tribunal’s operation. Should voluntary contributions be insufficient for the Tribunal to implement its mandate, the Secretary-Generaland the Security Council shall explore alternate means of financing the Tribunal.
The members of the Security Council invite you to proceed, together with the Government of Lebanon, in conformity with the Constitution of Lebanon, with the final steps for the conclusion of the Agreement.
They look forward to being kept informed of developments regarding the establishment of the Special Tribunal.
(Signed) Jorge Voto-Bernales
President of the Security Council
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