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.