Expected Council Action
The Council is expected to extend the mandate, which expires on 15 June, of the UN International Independent Investigation Commission (UNIIIC) regarding the terrorist attack that killed former Lebanese Prime Minister Rafik Hariri and 22 others. The Council is also expected to address the fourth report of UNIIIC, to be submitted by its Commissioner Serge Brammertz on 9 June.
It is possible that the Secretary-General’s report on the establishment of a tribunal to try those charged with the Hariri murder will also appear in June, but in view of the complexities of the issues (and the pressure of other work in the Council), consideration is not expected in June.
The options with respect to Brammertz’s report are much more complex (and depend very much on his conclusions). They include:
adopting a resolution renewing calls on Syria to fully cooperate with UNIIIC;
adopting a resolution condemning Syria for a lack of cooperation if this is reported by Brammertz; or
triggering individual targeted sanctions if Brammertz reports names to the 1636 Sanctions Committee.
Consensus on the renewal of UNIIIC’s mandate for one year seems very likely. The Council would also like to maintain continuity and therefore is in favour of a prolongation of Brammertz’s role as Commissioner. At the time of writing, however, it is unclear whether Brammertz’s absence from the International Criminal Court can be extended.
Some members will be reluctant to adopt a resolution concerning Syria. Others will be keen to prevent a continuation of past procrastination by Syria and may press for a resolution. The tone of Brammertz’s report is likely to influence the debate in the Council significantly. Given the cautious approach taken by Brammertz to date, his report is likely to be carefully nuanced.
Differences seem likely on two major issues concerning the tribunal:
Lebanon is pushing for the process to move forward quickly. However, some Council members argue that, because its status will largely depend on the conclusions of the investigation, more time is needed. In addition, they argue, it seems certain that the investigation will not be completed for some time and as a result the UNIIIC report will therefore not contain sufficient details to progress the matter in June.
Lebanon also seems keen that the jurisdiction of the tribunal should encompass all terrorist attacks perpetrated in Lebanon since 1 October 2004. Some Council members will nevertheless want to see some evidence from the investigation of a clear link between the murder of Rafik Hariri and the other attacks.
So far, the Council has been keen to leave the matter to the Secretary-General but, given possible concerns on the proposed agreement (especially on the issues of location, jurisdiction, and timing of the creation and financing of the tribunal) Council members might want to initiate a discussion.
The first issue for Council members will be Brammertz’s assessment of the Syrian cooperation with the Commission. Syria initially asserted that it would only contribute to the investigation through its own special Judicial Commission, which it established in October 2005. But Brammertz signalled that his main interlocutors would only be the Syrian government, via the Ministry of Foreign Affairs, and that the only legal framework in which UNIIIC would operate is under the Council’s resolutions. It is unclear whether or to what extent this issue has presented problems for Brammertz in recent months.
The second issue will be the degree of connection between the Hariri assassination and the other attacks. Given that the last report by Brammertz already touched upon that subject, it is likely that the coming report will provide further details.
Another issue is the timing for commencing trials. Brammertz seems to consider that the process of establishing the tribunal should be carried out in parallel to the conduct of the investigation in order to have the necessary legal framework for the collection of evidence. On the other hand, the investigation will clarify the involvement of non-Lebanese nationals in the assassination, and this will impact the nature and scope of the tribunal and consequently the prospect for surrender of suspects by Syria for trial before the tribunal. A related issue is whether a two-stage approach may be necessary, not least because of the need in terms of due process to bring the five suspects currently in custody to trial in a reasonable timeframe.
The last issue is the possible replacement of Brammertz and whether his successor will be an interim investigator or continue through the trial phase as prosecutor.
Following the 14 February 2005 bombing in Beirut that killed Hariri, the Council unanimously adopted resolution 1595 establishing UNIIIC for an initial period of three months (renewable by three more months), to help the Lebanese authorities in their investigation of the murder. Detlev Mehlis of Germany was appointed Commissioner of UNIIIC on 13 May 2005.
On 30 August, three suspects were arrested: Brigadier General Jamil Al-Sayyed, the head of the Lebanese general security; General Ali Al-Hajj, the head of the former Lebanese internal security forces; and General Raymond Azar, former Lebanese military intelligence head. At the same time, Mustafa Hamdan, the head of the presidential guard handed himself in. A fifth former Lebanese security official, Ghassan Tufeili, was arrested in November after he was named in the Mehlis report. All five had close ties with Syria. To date, they are still detained in Lebanon.
UNIIIC’s first report, made public on 20 October, concluded, “There is probable cause to believe that the decision to assassinate former Prime Minister Rafik Hariri could not have been taken without the approval of top-ranked Syrian security officials and could not have been further organized without the collusion of their counterparts in the Lebanese security services.” Upon request from the Lebanese government, the Secretary-General agreed to extend the mandate of the Commission until 15 December.
On 31 October, the Council unanimously adopted resolution 1636 establishing a targeted sanctions regime, of travel bans and asset freezes, against individuals to be designated as suspects in the Hariri assassination. It also decided under Chapter VII that Syria must fully cooperate with UNIIIC. The resolution further specified that the initiative, both in terms of implementing the individual sanctions and triggering further Council consideration, lay with the head of UNIIIC. UNIIIC was requested to report to the Council at any time if its Commissioner considered that Syrian cooperation did not meet the requirements of resolution 1636.
In October 2005, Syria established by legislative decree a special judicial commission to deal with all matters relating to the mission of UNIIIC and imposed a travel ban on officials named in the report.
The second UNIIIC report submitted on 13 December reinforced the conclusions of the first report and noted Syrian “reluctance and procrastination” in its cooperation with UNIIIC and several Syrian attempts to “hinder the investigation internally and procedurally.” But the Commissioner also noted that Syria had made available for questioning five Syrian officials suspected by the Commission. The interviews took place at UN offices in Vienna.
Upon request by the Lebanese government, UNIIIC was extended by six months (in resolution 1644), and a new Commissioner, Serge Brammertz of Belgium, was appointed.
Between October 2004 and December 2005, there were more than 14 bombings and assassination attempts in Lebanon. Following a Lebanese request, the Council, in resolution 1644, authorised UNIIIC to extend its technical assistance to the Lebanese authorities with regard to their investigations of these terrorist attacks. Also, the Council requested the Secretary-General to work with the Lebanese authorities and report back to the Council on the nature of the international assistance needed for the trial of the perpetrators of the Hariri murder, in the view of the creation of a special tribunal, as requested by Lebanon.
Consultations with the Lebanese authorities over the international tribunal were undertaken by the Under-Secretary-General for Legal Affairs, Nicolas Michel, to determine the choice of law, the location of the tribunal and its financing.
On 21 March, the Secretary-General submitted the report requested by the Council in resolution 1644 (2005) on international assistance to Lebanon to try those responsible for the Hariri assassination (please see our March Update Report for more details). The Council welcomed the report in resolution 1664 and requested the Secretary-General to negotiate an agreement with the Lebanese government in order to establish the tribunal. At press time, consultations between representatives from Lebanon and the UN Office of Legal Affairs are ongoing. The Lebanese Justice Minister came to New York in April. It also seems that Syria is very keen to provide some input and would like to see a high degree of international composition of the tribunal.
|Security Council Resolutions
|Serge Brammertz (Belgium)
|Size and Composition of Commission
|As of December 2005 there are around 130 members including active investigators, translators, security guards, drivers and administrators of 14 different nationalities. The staff members are UN employees. More people are currently being hired to fulfil the expanded role of the Commission.
|The funding comes from the regular budget and was approved by the Advisory Committee on Administrative and Budgetary Questions of the General Assembly.
|The modalities of cooperation with the Lebanese government are defined in a Memorandum of Understanding between Lebanon and the UN (S/2005/393).