31 May Ready or Not, Here Comes the International Criminal Tribunal for Lebanon
The U.N. Security Council has narrowly approved the creation of an international criminal tribunal to investigate the 2005 assassination of former Lebanese Prime Minister Rafik Hariri. According to the BBC, Lebanon has until June 10 to ratify the tribunal. If there is no ratification by Lebanon, the the tribunal will be created.
I have to say I haven’t been following this issue that closely, but it doesn’t seem obvious to me than an international criminal tribunal is going to be particularly helpful here. I seriously doubt that, as the U.S. is claiming, the tribunal will deter political assassinations (see statement here).
It is certainly an unprecedented action by the UN Security Council since it is a tribunal set up to investigate a single crime that may not even rise to the level of a violation of international law. But the UN Security Council’s powers appear to be pretty broad under Chapter VII, and no doubt any questions will be settled by Lebanon’s acquiescence.
The SC resolution 1757 is now available here. It is, as Julian notes, most interesting that the Security Council is creating an international tribunal which will not be deciding on a violation of international law. Hariri’s killing was not genocide, a crime against humanity or a war crime, i.e. none of the crimes which traditionally fall within the jurisdiction of international tribunals. One could certainly argue that it was an act of terrorism (with all the definitional problems such a qualification would entail), but for such acts individual criminal responsibility just doesn’t seem to exist at the international level. Indeed, Art. 2 of the Tribunal’s Statute, which is annexed to the SC Resolution, provides that the law that the Tribunal will apply will be the Lebanese Criminal Code. So, what we have here is an international tribunal which will try people for violations of municipal criminal law. That would be a first, and it would make this Tribunal more akin to the solution adopted after the Lockerbie bombing (a Scottish court applying Scots law but sitting in the Netherlands) than to the ICTY/R or the Special Court for Sierra Leone. Yet, somewhat bizarrely, though Art. 2 of the Statute provides… Read more »
Dear Marko,
Please elaborate how this would raise a ne bis in idem problem. Thanks.
Anon,
I apologize, I had a minor neural malfunction – when I said ne bis in idem, I meant nullum crimen sine lege, i.e. the prohibition of punishment without law, which is found in all major human rights treaties (see e.g. Art. 15 ICCPR). Specifically, the problem is in applying modes of responsibility which exist in international criminal law, such as command responsibility, to crimes which exist only under domestic criminal law, such as (common) murder.
In relation to the previous question, the Tribunal would come into being even without ratification by the Lebanese authorities, as the resolution has been passed under Chapter VII of the Charter.