In case you missed this from last week's Le Monde Diplo (excerpts in translation below:)
UN manipulates international justice
Lebanon: a court without the law
A climate of distrust reigns in Lebanon, the scene of a silent civilwar. The status of the international criminal court invented to prosecute the killers of the prime minister, Rafik Hariri, is part of the problem, further complicating the formation of a government of national unity.
By Géraud De Geouffre de La Pradelle, Antoine Korkmaz and Rafaëlle Maison
The United Nations Security Council began an exceptional international investigation after the death of the Lebanese prime minister, RafikHariri, in a bomb attack on 14 February 2005. It may lead to a special tribunal with extraordinary powers. There is nothing surprising about this; consider the jurisdictions established by the UN, or under its aegis, for former Yugoslavia, Rwanda, Sierra Leone and Cambodia (1). Butin the case of Lebanon there are no actual international crimes to prosecute. Several aspects of the investigation suggest that international justice is being manipulated. It is too fragile to endure such ill treatment.We should be in no doubt about the political nature of the SecurityCouncil...
The UN Charter established it that way. The council enjoys far-reaching discretionary powers, with few legal checks or balances onits actions. However, under the pretence of upholding the law, there have been serious violations of civil liberties, while nothing has been done to resolve the situation in Lebanon. This is particularly so with the Hariri investigation. The special tribunal is still no more than aproject, yet it is already worsening tension.The Security Council set up the international independent investigation commission ... was to be headed by aGerman prosecutor, Detlev Mehlis (2). UN Resolution 1595 of 7 April 2005 instructed the commission to assist the Lebanese authorities ... and called "for the strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the government". But it also noted that "the Lebanese investigation process suffers from serious flaws and has neither the capacity nor the commitment to reach a satisfactory andcredible conclusion".On 3 June 2005 the UN and Beirut signed an agreement settling the terms for their cooperation. The IIIC would supervise the work of the Lebanese authorities, which were relegated to a secondary role. The commission would not restrict itself to independent fact-finding, but carry out a complete criminal investigation. None of the usual checks and balances applied. Lebanese authorities, especially the courts, could no longer act on their own initiative, their role being to answer the IIIC'squestions. In Resolution 1636, adopted on 19 October 2005 after the IIIC'spresentation of its first report, the Security Council commended theLebanese authorities for their full cooperation and congratulated them on "the courageous decisions they have already taken . . . upon recommendation of the commission, in particular the arrest and indictment of former Lebanese security officials suspected of involvement in this terrorist act". The Security Council considered that the crime and its implications were a threat to international peace and security, and so, for the firsttime, invoked chapter VII of its charter, which covers actions taken in response to such a threat... The first report alleged that there was plenty of evidence implicating high-ranking Syrian and Lebanese officials directly or indirectly in the assassination. The second report, submitted on 10 December 2005, prompted another resolution(1644, 15 December).
A new phase
The replacement of Mehlis, the controversial chief investigator, by a Belgian criminologist, Serge Brammertz, began a new phase, different from before. The IIIC became more cautious and less provocative in itsbehaviour in the field and the content of its reports. Resolution 1644 mentioned for the first time the creation of an international tribunal.The IIIC presented its third report in March 2006. The Security Council then asked the secretary-general to "negotiate an agreement with the government of Lebanon aimed at establishing a tribunal . . . The start of its work would depend on progress with the investigation.By doing that, the Security Council loosed a spectre that has since haunted both the enquiry and Lebanon's internal affairs. The affair became critical when the secretary-general sent a draft agreement to the Lebanese government on 10 November 2006, proposing that most of those who would serve on the special tribunal would be international judges; there would only be a few from Lebanon. The Office of the Prosecutor would be an independent body: a prosecutor appointedby the secretary-general plus a Beirut-appointed deputy prosecutor. The court would be empowered to judge those accused of involvement in the Hariri assassination, and of other murders committed after 1 October 2004.A system of concurrent competence with the Lebanese courts would be setup to deal with the "other murders", although the primacy of the international tribunal would be maintained. It would base its judgments on local criminal law. The agreement added: "Appropriate arrangements shall be made to ensure that there is a coordinated transition from the activities of the IIIC . . . to the activities of the Office of theProsecutor", confirming the IIIC's criminal focus. It promised that "the special tribunal shall commence functioning on a date to be determined by the secretary-general in consultation with the government,..."
The Lebanese government — without its Shia Amal and Hizbullah ministers approved the draft on 13 November 2006 ... There are several legal and technical hurdles yet to be overcome. Unless the political situation inLebanon changes, there will be no progress made with the internal constitutional procedure, which is delaying ratification of the agreement with the UN. President Emile Lahoud, whose approval is required, is against the plan. Parliament must approve the agreement but its Shia speaker, Nabih Berri, has so far refused to do so.
A serious preliminary question
Under the terms of its draft statutes it will focus primarily on the Hariri assassination, referred to as a "terrorist act". It can also prosecute other killings committed between 1 October 2004 and 12December 2005, and even later crimes, if the Lebanese government and the Security Council agree. At least until now, the killings came under the jurisdiction of the Lebanese courts.UN resolution 1595 originally qualified the attacks as acts of terrorism. Then resolution 1636 added that chapter VII of the UN charterapplied to the Hariri assassination. Yet the laws of Lebanon still apply and its courts are still competent to judge these crimes. International conventions on acts of terrorism require states to condemn and prosecute such crimes, this being the preserve of national jurisdictions enforcing national law. Until resolution 1664 the bomb attacks did not count ascrimes that needed to be tried by an international tribunal.In fact, the UN has only previously taken such measures to prosecute themost serious international crimes. The courts set up to prosecute thoseresponsible for ethnic cleansing in former Yugoslavia and the genocideof the Tutsis in Rwanda have competence over genocide, crimes againsthumanity and war crimes. They are not competent to prosecute any othercrimes, even those covered by international conventions but which fallwithin the competence of national courts.The special tribunal for Lebanon would be the first international jurisdiction established exclusively to prosecute less serious crimesthat are only international because the Security Council decided theyshould be so. It would be the only international court with the task of enforcing national law, with the addition of provisions excluding capital punishment. This measure emphasises the importance the UNattaches to prosecuting the murder of leading Lebanese figures. It is unlikely that this episode will enhance the image of the UN or of international justice.
UN manipulates international justice
Lebanon: a court without the law
A climate of distrust reigns in Lebanon, the scene of a silent civilwar. The status of the international criminal court invented to prosecute the killers of the prime minister, Rafik Hariri, is part of the problem, further complicating the formation of a government of national unity.
By Géraud De Geouffre de La Pradelle, Antoine Korkmaz and Rafaëlle Maison
The United Nations Security Council began an exceptional international investigation after the death of the Lebanese prime minister, RafikHariri, in a bomb attack on 14 February 2005. It may lead to a special tribunal with extraordinary powers. There is nothing surprising about this; consider the jurisdictions established by the UN, or under its aegis, for former Yugoslavia, Rwanda, Sierra Leone and Cambodia (1). Butin the case of Lebanon there are no actual international crimes to prosecute. Several aspects of the investigation suggest that international justice is being manipulated. It is too fragile to endure such ill treatment.We should be in no doubt about the political nature of the SecurityCouncil...
The UN Charter established it that way. The council enjoys far-reaching discretionary powers, with few legal checks or balances onits actions. However, under the pretence of upholding the law, there have been serious violations of civil liberties, while nothing has been done to resolve the situation in Lebanon. This is particularly so with the Hariri investigation. The special tribunal is still no more than aproject, yet it is already worsening tension.The Security Council set up the international independent investigation commission ... was to be headed by aGerman prosecutor, Detlev Mehlis (2). UN Resolution 1595 of 7 April 2005 instructed the commission to assist the Lebanese authorities ... and called "for the strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the government". But it also noted that "the Lebanese investigation process suffers from serious flaws and has neither the capacity nor the commitment to reach a satisfactory andcredible conclusion".On 3 June 2005 the UN and Beirut signed an agreement settling the terms for their cooperation. The IIIC would supervise the work of the Lebanese authorities, which were relegated to a secondary role. The commission would not restrict itself to independent fact-finding, but carry out a complete criminal investigation. None of the usual checks and balances applied. Lebanese authorities, especially the courts, could no longer act on their own initiative, their role being to answer the IIIC'squestions. In Resolution 1636, adopted on 19 October 2005 after the IIIC'spresentation of its first report, the Security Council commended theLebanese authorities for their full cooperation and congratulated them on "the courageous decisions they have already taken . . . upon recommendation of the commission, in particular the arrest and indictment of former Lebanese security officials suspected of involvement in this terrorist act". The Security Council considered that the crime and its implications were a threat to international peace and security, and so, for the firsttime, invoked chapter VII of its charter, which covers actions taken in response to such a threat... The first report alleged that there was plenty of evidence implicating high-ranking Syrian and Lebanese officials directly or indirectly in the assassination. The second report, submitted on 10 December 2005, prompted another resolution(1644, 15 December).
A new phase
The replacement of Mehlis, the controversial chief investigator, by a Belgian criminologist, Serge Brammertz, began a new phase, different from before. The IIIC became more cautious and less provocative in itsbehaviour in the field and the content of its reports. Resolution 1644 mentioned for the first time the creation of an international tribunal.The IIIC presented its third report in March 2006. The Security Council then asked the secretary-general to "negotiate an agreement with the government of Lebanon aimed at establishing a tribunal . . . The start of its work would depend on progress with the investigation.By doing that, the Security Council loosed a spectre that has since haunted both the enquiry and Lebanon's internal affairs. The affair became critical when the secretary-general sent a draft agreement to the Lebanese government on 10 November 2006, proposing that most of those who would serve on the special tribunal would be international judges; there would only be a few from Lebanon. The Office of the Prosecutor would be an independent body: a prosecutor appointedby the secretary-general plus a Beirut-appointed deputy prosecutor. The court would be empowered to judge those accused of involvement in the Hariri assassination, and of other murders committed after 1 October 2004.A system of concurrent competence with the Lebanese courts would be setup to deal with the "other murders", although the primacy of the international tribunal would be maintained. It would base its judgments on local criminal law. The agreement added: "Appropriate arrangements shall be made to ensure that there is a coordinated transition from the activities of the IIIC . . . to the activities of the Office of theProsecutor", confirming the IIIC's criminal focus. It promised that "the special tribunal shall commence functioning on a date to be determined by the secretary-general in consultation with the government,..."
The Lebanese government — without its Shia Amal and Hizbullah ministers approved the draft on 13 November 2006 ... There are several legal and technical hurdles yet to be overcome. Unless the political situation inLebanon changes, there will be no progress made with the internal constitutional procedure, which is delaying ratification of the agreement with the UN. President Emile Lahoud, whose approval is required, is against the plan. Parliament must approve the agreement but its Shia speaker, Nabih Berri, has so far refused to do so.
A serious preliminary question
Under the terms of its draft statutes it will focus primarily on the Hariri assassination, referred to as a "terrorist act". It can also prosecute other killings committed between 1 October 2004 and 12December 2005, and even later crimes, if the Lebanese government and the Security Council agree. At least until now, the killings came under the jurisdiction of the Lebanese courts.UN resolution 1595 originally qualified the attacks as acts of terrorism. Then resolution 1636 added that chapter VII of the UN charterapplied to the Hariri assassination. Yet the laws of Lebanon still apply and its courts are still competent to judge these crimes. International conventions on acts of terrorism require states to condemn and prosecute such crimes, this being the preserve of national jurisdictions enforcing national law. Until resolution 1664 the bomb attacks did not count ascrimes that needed to be tried by an international tribunal.In fact, the UN has only previously taken such measures to prosecute themost serious international crimes. The courts set up to prosecute thoseresponsible for ethnic cleansing in former Yugoslavia and the genocideof the Tutsis in Rwanda have competence over genocide, crimes againsthumanity and war crimes. They are not competent to prosecute any othercrimes, even those covered by international conventions but which fallwithin the competence of national courts.The special tribunal for Lebanon would be the first international jurisdiction established exclusively to prosecute less serious crimesthat are only international because the Security Council decided theyshould be so. It would be the only international court with the task of enforcing national law, with the addition of provisions excluding capital punishment. This measure emphasises the importance the UNattaches to prosecuting the murder of leading Lebanese figures. It is unlikely that this episode will enhance the image of the UN or of international justice.
Last summer's fighting between Hizbullah and Israeli forces claimed 40civilian lives in Israel and more than 1,000 in Lebanon. On both sidesof the border several hundred thousand refugees had to flee their homes under extreme duress. People who came home to Lebanon after the conflict are still in mortal danger and will go on being endangered by unexploded anti-personnel mines and other munitions... in serious violations of the 1949 Geneva Conventions and the 1977 Protocol on the protection of the victims of internationalarmed conflicts. These violations were serious war crimes, ranking with crimes against humanity and genocide. But no UN resolution has recognised them as such, or condemned them. There has never been any question of setting up an international commission, let alone atribunal, to investigate the violations of humanitarian law committed during the 33 days of fighting. Are some deaths more important than others? This is in stark contrast with the treatment reserved for Hariri's assassins. It suggests that the international community thinks somedeaths are more politically important than others. It damages the credibility of humanitarian law and gives the impression that political considerations drive international justice.Undeniably, international criminal justice is a way of restoring andmaintaining peace, and as such may serve the fundamental aims of the UN.Until now international criminal tribunals never appeared to serve other aims but this is no longer the case.The attitude of the forces competing for power in Lebanon towards thetribunal has been partial and self-seeking from the start. The supporters of the current parliamentary majority, which backs the government of Fuad Siniora, believe that only an international courtwould dare rule that Syrian agents infiltrated deep into the Lebanesestate were implicated in the assassination (3). They have the obvious support of the United States, France and influential Arab states, such as Saudi Arabia; and they are convinced that by denouncing crimes said to be carried out on orders from Damascus they will help Lebanon free itself from foreign domination.
The Security Council seems to have been a party to this, and to have decided to encourage the projected tribunal. It is easy to understand why the Syrian authorities should oppose what they see as a hostile move. The Lebanese opposition, especially Hizbullah and the FreePatriotic movement led by General Michel Aoun, support this view... They are convinced the international tribunal is a tool in the hands of these powers and that talk of punishing Hariri's killers is a pretext. They are afraid the UN might decide to extend the tribunal's powers and have cited this as a reason for resigning from the government, which deprived the government of its legitimacy. (It now seems to be hardly more than a pawn moved by foreign powers.) One side has always seen the court as a way of avenging the death of political figures while combating the Syrian regime; the other side saw it as a tool for the US, Israel and France. These views have mobilised opposing factions in Lebanese society, paralysed the country andtriggered fighting. The court is a hostage in this conflict, having lost its way before it even had a chance to operate as a real court, prosecuting crimes. Worse still, under the pretence of setting up the tribunal, rough justice has been meted out to the suspects taken into custody by the IIIC. They include four Lebanese generals, officially designated as the perpetrators of the attack on Hariri. The Security Council repeated this allegation in resolution 1636, intended to oblige the Syrian governmentto cooperate with the IIIC. Those in custody have been denied theirlegal rights, in violation of the most basic standards upheld by the UN,especially the international covenant on civil and political rights of16 December 1966...
# -See also# A nexus of history, by Elizabeth PicardTranslated by Harry ForsterGéraud de Geouffre de La Pradelle is Emeritus Professor of Law at Paris University X-Nanterre; Antoine Korkmaz is a barrister in Paris; andRafaëlle Maison lectures at the University of Picardie(1) A distinction must be drawn between these special tribunals and theInternational Criminal Court, in the Hague, established in July 2002. It prosecutes genocide, war crimes and crimes against humanity committedall over the world. Neither the United States nor Israel have recognisedthe ICC.(2) Sami Moubayed published a good criticism ("The ball is now in Syria's court") of the report on SyriaComment.com, 27 October 2005. Seealso Robert Parry, "The dangerously incomplete Hariri report",Consortiumnews.com, 23 October 2005.(3) See Georges Corm, "Lebanon, a cedar ready to fall", Le Mondediplomatique, English language edition, April 2005, and Alain Gresh,"Syria, a concerted offensive", Le Monde diplomatique, English language edition, December 2005.
English language editorial director: Wendy Kristianasen - all rightsreserved © 1997-2007 Le Monde diplomatique.
# -See also# A nexus of history, by Elizabeth PicardTranslated by Harry ForsterGéraud de Geouffre de La Pradelle is Emeritus Professor of Law at Paris University X-Nanterre; Antoine Korkmaz is a barrister in Paris; andRafaëlle Maison lectures at the University of Picardie(1) A distinction must be drawn between these special tribunals and theInternational Criminal Court, in the Hague, established in July 2002. It prosecutes genocide, war crimes and crimes against humanity committedall over the world. Neither the United States nor Israel have recognisedthe ICC.(2) Sami Moubayed published a good criticism ("The ball is now in Syria's court") of the report on SyriaComment.com, 27 October 2005. Seealso Robert Parry, "The dangerously incomplete Hariri report",Consortiumnews.com, 23 October 2005.(3) See Georges Corm, "Lebanon, a cedar ready to fall", Le Mondediplomatique, English language edition, April 2005, and Alain Gresh,"Syria, a concerted offensive", Le Monde diplomatique, English language edition, December 2005.
English language editorial director: Wendy Kristianasen - all rightsreserved © 1997-2007 Le Monde diplomatique.
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