Global Policy Forum

UN Manipulates International Justice

By Géraud De Geouffre de La Pradelle, Antoine Korkmaz and Rafaí«lle Maison*

The United Nations Security Council began an exceptional international investigation after the death of the Lebanese prime minister, Rafik Hariri, 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). But in 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 Security Council. The UN Charter established it that way. The council enjoys far-reaching discretionary powers, with few legal checks or balances on its 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 a project, yet it is already worsening tension.

The Security Council set up the international independent investigation commission (IIIC) at the instigation of Beirut. It was to be headed by a German prosecutor, Detlev Mehlis (2). UN Resolution 1595 of 7 April 2005 instructed the commission to assist the Lebanese authorities in "identifying the perpetrators" of the terrorist bomb that killed Hariri 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 and credible 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's questions.

In Resolution 1636, adopted on 19 October 2005 after the IIIC's presentation of its first report, the Security Council commended the Lebanese 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 first time, invoked chapter VII of its charter, which covers actions taken in response to such a threat. It required states to take measures against suspects identified by the IIIC. 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 its behaviour 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 . . . based on the highest international standards of criminal justice". The document distinguished "the adoption of the legal basis of, and framework for, the tribunal" and "the gradual phasing-in of its components". 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 appointed by 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 set up 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 the Prosecutor", 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, taking into account the progress of the work of the IIIC."

The Lebanese government -- without its Shia Amal and Hizbullah ministers who had resigned -- approved the draft on 13 November 2006 but the court is still a long way from its first hearing. There are several legal and technical hurdles yet to be overcome. Unless the political situation in Lebanon 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

The particular powers of the tribunal raise 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 12 December 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 charter applied 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 as crimes that needed to be tried by an international tribunal.

In fact, the UN has only previously taken such measures to prosecute the most serious international crimes. The courts set up to prosecute those responsible for ethnic cleansing in former Yugoslavia and the genocide of the Tutsis in Rwanda have competence over genocide, crimes against humanity and war crimes. They are not competent to prosecute any other crimes, even those covered by international conventions but which fall within the competence of national courts.

The special tribunal for Lebanon would be the first international jurisdiction established exclusively to prosecute less serious crimes that are only international because the Security Council decided they should 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 UN attaches 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 40 civilian lives in Israel and more than 1,000 in Lebanon. On both sides of 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. The war caused massive destruction of civilian sites in Lebanon and substantial damage on the Israeli side. Some of the deaths, injuries, population displacement and destruction were the result of serious violations of the 1949 Geneva Conventions and the 1977 Protocol on the protection of the victims of international armed 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 a tribunal, 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 some deaths 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 and maintaining 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 the tribunal 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 court would dare rule that Syrian agents infiltrated deep into the Lebanese state 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 Free Patriotic movement led by General Michel Aoun, support this view. The opposition groups see themselves as the true defenders of Lebanese independence, combating its real enemies -- the powers that enslave the peoples of the Middle East and want to disarm the Lebanese resistance led by Hizbullah. 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 and triggered 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 government to cooperate with the IIIC. Those in custody have been denied their legal rights, in violation of the most basic standards upheld by the UN, especially the international covenant on civil and political rights of 16 December 1966.

A succession of mistakes

As with the other prisoners, the predicament of General Jamil al-Sayed is the result of a succession of mistakes by the commission and the lack of an impartial independent court to which to appeal. The behaviour of the IIIC was reprehensible when Mehlis was in charge. Although al-Sayed said that he had no knowledge of the preparation and execution of Hariri's assassination, he was pressed to name credible culprits -- that is, to give false testimony. The IIIC has proof, provided by al-Sayed, of this attempt to pervert the course of justice. The offer was made in relatively friendly terms before his arrest, then repeated more forcefully once he was in custody.

He was arrested on 30 August 2005 on a search warrant issued by the commission, which alleged that he was directly implicated in the planning and execution of the attack on Hariri. Not until three days after his arrest did a Lebanese prosecutor formally register that after a brief interrogation he had been taken into custody. The IIIC subsequently ruled that al-Sayed should not be released on bail; officially it was not empowered to make arrests or to take decisions on bail. Brammertz, the chief investigator, has since made it quite clear in his letters to the defence that only the Lebanese courts have such powers. But abuses of this sort are part of the rationale beneath the Security Council's decision to set up the tribunal.

No specific charges have been brought against al-Sayed or the other suspects. They have not been able to consult evidence submitted to the Lebanese authorities during the IIIC investigation. Hearings have been conducted with or without defence lawyers, who have never been allowed to talk to their clients in private. Al-Sayed, despite repeated requests, has never been confronted with the "witnesses" cited by IIIC reports, apart from one person who was wearing a mask.

After Mehlis left office, these abuses stopped, and the IIIC has not interrogated al-Sayed since. Its conduct of the investigation now seems acceptable. All the evidence cited in its first two reports has been checked and shown to be unfounded; the last four reports do not refer to the suspicions to which the Security Council unwisely reacted. However al-Sayed and his fellow suspects have not been able to lodge any complaints. Officially it is up to the Lebanese courts to uphold the law of the land. Having hurriedly complied with the commission's recommendations when Mehlis was in command, they are now refusing to assume any responsibility for those in custody. There is no higher authority to which those in custody may appeal.

All the talk about an international criminal tribunal seems to have been a cover-up for a travesty of justice at national and international level. The problem is the system invented international tribunal is a key factor in the failure to uphold law and order.

Footnotes:

(1) A distinction must be drawn between these special tribunals and the International Criminal Court, in the Hague, established in July 2002. It prosecutes genocide, war crimes and crimes against humanity committed all over the world. Neither the United States nor Israel have recognised the 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. See also Robert Parry, "The dangerously incomplete Hariri report", Consortiumnews.com, 23 October 2005.

(3) See Georges Corm, "Lebanon, a cedar ready to fall", Le Monde diplomatique, English language edition, April 2005, and Alain Gresh, "Syria, a concerted offensive", Le Monde diplomatique, English language edition, December 2005.

Translated by Harry Forster.

About the Authors: Géraud de Geouffre de La Pradelle is Emeritus Professor of Law at Paris University X-Nanterre; Antoine Korkmaz is a barrister in Paris; and Rafaí«lle Maison lectures at the University of Picardie.