Expected Council Action
Ongoing pressure in the Council on Syria to comply with resolutions 1559, 1636 and 1644 can be expected. However, with the adoption of the presidential statement (S/PRST/2006/03) on 23 January relating to resolution 1559, and with no formal deadlines on the Lebanon/Syria issue during February, Council action is expected to be informal and supplemented by media statements by the President.
Three possible events may trigger more formal Council action:
any incidents in northern Israel/southern Lebanon suggesting ongoing Syrian support for movement of arms or personnel into Lebanon;
any reports by the UN International Independent Investigation Commission (UNIIIC) Commissioner Serge Brammertz of Syrian non-cooperation; and/or
developments on the requests made by the Council in resolution 1644 to the Secretary-General relating to:
the nature and scope of international assistance needed if the UN were to respond to the Lebanese request that persons charged with the Hariri assassination be tried by a tribunal of an international character; and
possible extensions of UNIIIC’s mandate to include the investigation of other terrorist attacks perpetrated in Lebanon since 1 October 2004.
Possible Extension of the UNIIIC Mandate
The following table, drawn up from media reports, is an attempt to list the known terrorist incidents in Lebanon since 1 October 2004.
|1 October 2004||
Marwan Hamadeh is a former anti-Lahoud economy and trade minister
|14 February 2005||
Rafik Hariri was the former Prime Minister of Lebanon killed in this attack.
|19 March 2005||11|
|23 March 2005||6||4|
|26 March 2005||6|
|1 April 2005||12|
|6 May 2005||22|
|2 June 2005||
Samir Kassir was an anti-Syrian journalist killed in this attack.
|21 June 2005||
George Hawi is a former secretary general of the Lebanese Communist Party and a critic of Syria.
|1 July 2005||1|
|12 July 2005||
Elias Murr is the Defense Minister, pro-Syrian, and son-in-law of Lahoud.
|22 July 2005||12|
|22 August 2005||8|
|15 September 2005||Ali Ramez Tohme is a journalist.|
|16 September 2005||1||23|
|19 September 2005||Kuwaiti Information Office||1||2|
|25 September 2005||
May Chidiac is an anti-Syrian journalist, an anchor for the Lebanese Broadcasting Corporation (LBC) seriously injured in this attack.
|12 December 2005||
Gibran Tueni was an anti-Syrian journalist, lawyer and member of parliament killed in this attack. He was also the nephew of Marwan Hamadeh, the target of the 1 October 2004 attack.
Possible Tribunal of an International Character
A letter from the Prime Minister of Lebanon to the UN Secretary-General (S/2005/783) of 13 December 2005 requested that the Security Council “establish a tribunal of an international character…to try those who are found responsible for the terrorist crime perpetrated against Prime Minister Hariri.” In response the Security Council requested the Secretary-General to help the Lebanese Government to identify the nature and scope of the international assistance needed when it adopted resolution 1644 two days later on 15 December.
More specifically, this request called on the Secretary-General to begin a process of consultations with the Lebanese government and make recommendations to the Council; including whether the circumstances support the establishment of an independent special court for Lebanon and the nature of such a tribunal.
In response to the Council’s request on the Hariri case, the Secretary-General appointed a team led by the Under Secretary-General for Legal Affairs Nicolas Michel to undertake discussions with Lebanese political and administrative officials, prosecutors, the defence bar, NGOs and other interested parties. The team was scheduled to travel to Beirut in late January.
Previous Experience of Tribunals
While the Council has supported the establishment of special courts in the past, this option has been agreed only under exceptional circumstances. For example, the Council established the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) in response to massive human rights crimes. The Council also supported the establishment of treaty-based, quasi-international tribunals for Sierra Leone and Cambodia. In the latter case, the General Assembly established the Extraordinary Chambers in the Courts of Cambodia. Unlike the ICTY and ICTR, the special courts for Sierra Leone and Cambodia are located in the territory of the countries where the crimes were committed and have a hybrid domestic and international character.
whether the Lebanese government has the capacity to undertake prosecution on its own within its territory;
” whether a Lebanese court operating on a foreign territory with appropriate international support could effectively carry out the prosecution (like the Scottish Court in the Netherlands that tried the Lockerbie case); or
” whether it would be necessary to establish a special court of domestic and international character similar to the Special Court for Sierra Leone, and whether it would operate in or outside of Lebanese territory.
While the Scottish Court in the Lockerbie case was not an international tribunal established by the United Nations, it had the political support of the Council.
Following these consultations with the Lebanese government, the Secretary-General will make recommendations to the Council on the type of international support best suited to the circumstances. The consultation process will help to decide whether a special court for Lebanon should be established. The decision to establish such a court would bring a number of issues to the fore, such as jurisdictional matters, organisational structure, funding sources, security and personnel.
Subject-matter jurisdiction – Since crimes cannot be prosecuted on the basis of retroactive criminal legislation, the indictable offences falling within the jurisdiction of a special court would have to be crimes already defined by existing international law, including customary law, or the Lebanese criminal code at the time of the alleged commission of the crime. The Council has not been specific in defining which criminal acts are to be included. However, the Council has made reference to the “murder” of Hariri and 22 others, and the Council has determined that Hariri’s murder is a “terrorist act” carried out by a “terrorist bombing” in a series of other “terrorist attacks.”
Temporal jurisdiction – In this case, a special court’s jurisdiction over the time in which the crime occurred could presumably begin with the planning and execution of Hariri’s murder, which occurred on 14 February 2005. However, in light of the Council’s favourable response to the Lebanese government’s request to expand the investigation to include similar crimes since 1 October 2004, it is likely that the temporal jurisdiction of a special court could be extended to the earlier date.
Personal jurisdiction – As specified in resolution 1644, personal jurisdiction, unless otherwise advised, would extend to anyone “charged with involvement in this terrorist act” and any other similar act committed within the agreed upon period of the temporal jurisdiction.
If, instead, the Special Court for Sierra Leone serves as a model, ensuring sufficient capacity to provide a speedy trial for each accused could become an issue.
In order to ensure the competence, objectivity and impartiality in the conduct of the trial process (including in the application of international law where relevant) the composition of the prosecution team of a special court should be carefully selected. The selection of a competent registrar to service the trial, appeals chamber and the office of the prosecutor in addition to administering a special court will be important to the tribunal’s efficient operation.
Other Requirements of a Special Tribunal
In the event a special tribunal is deemed necessary, experience suggests that guaranteed funding will be important to ensure both its credibility and viability. The problems encountered following the Council’s decision to rely on voluntary contributions to finance the Sierra Leone court will need to be considered. Despite the warning expressed by the Secretary-General that a special court based on voluntary contributions would neither be viable nor sustainable, the Council decided otherwise.
The Secretary-General had very strong support for his position from the Non-Aligned Movement caucus in the Security Council at the time to no avail. The Council’s decision resulted in significant delays in the start up of the court and has handicapped its ongoing operations.
The site of a special court, or any court trying the accused in this case, would largely be determined by the capacity of the Lebanese government or the United Nations to provide security for the court, the prosecution team and court personnel, as well as the accused. It might be more politically acceptable for all parties concerned for such a court to be located outside Lebanon, especially if Syria is called upon to surrender any of its nationals to the jurisdiction of the court. In this respect, the choice of location might follow the model of the Scottish Court that judged the Lockerbie case from The Hague.
In the event the Council decides on a tribunal of an international character, it will need to consider whether to act under Chapter VII and endow such a court with powers for the specific purpose of requesting the surrender of an accused from outside the court’s territorial jurisdiction. The lack of such power in the Sierra Leone court has severely curtailed its ability to order the extradition of accused persons.
Early discussions in the Council did not suggest any great enthusiasm for a special court for Lebanon. But the issue was left open. There was scepticism among some Council members as to whether a special court was necessary. The general view was that with appropriate international assistance to be discussed and determined later the Lebanese government might be able to conduct the prosecution and trial of those accused in Hariri’s murder.
Accordingly, the early inclination in the Council was to focus on ways to assist Lebanon in the investigations and then take up the issue of further assistance, including the possibility of a special court if necessary. The Secretary-General’s report on his consultations with the Lebanese government will therefore be an important factor in the Council’s discussions and decisions on this issue.
|Selected Security Council Resolutions|
|Selected Secretary-General’s Reports|
|Other Related Documents|
Useful Additional Sources