Middle-east Arab News Opinion | Asharq Al-awsat

Will the Tribunal Wreak Havoc on Lebanon? | ASHARQ AL-AWSAT English Archive 2005 -2017
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Beirut, Asharq Al-Awsat- On the third day after the UN Security Council’s (UNSC) resolution to set up an international tribunal court took effect, staunch anti-Syrian Lebanese parliamentarian, Walid Eido, and his son Khalid sacrificed their lives for the cause. The tribunal was established with the intention of investigating the assassination of former Lebanese Prime Minister Rafik Hariri and a number of assassinations and bombings.

Last Wednesday 13 June, the Lebanese MP and his son, accompanied by two bodyguards and six others were killed after a bomb was planted in Eido’s car in Beirut. [The explosion took place near Beirut’s seafront in the Sunni Muslim western part of the city].

Secretary-General of the UN, Ban Ki-Moon blasted what he called a “terrorist attack” and has urged the Lebanese government to bring the perpetrators to trial and appealed to all Lebanese to unite in the face of “acts of intimidation.”

The UNSC issued a statement in which it said, “The Security Council unequivocally condemns the terrorist attack which killed at least nine persons, including MP Walid Eido and injured several others.” It added that council members “condemn any attempt to destabilize Lebanon, including political assassination or other terrorist attacks.”

All that the majority of the Lebanese parliament could offer was to call for Arab and international action for the protection of Lebanon and its people from assassinations, and also to focus on running effective parliamentary elections to fill in the vacant seats of the assassinated MPs Walid Eido and Pierre Gamayel before him. However, President Lahoud refused to sign the decrees for that to take into effect.

The first practical step taken towards setting up of the international tribunal was by Lebanon’s Supreme Judicial Council, which at the beginning of this week selected 12 judges (who remain anonymous for security reasons) to be presented by the Lebanese government to Secretary-General of the UN, Ban Ki-Moon who will then select four names to be part of the tribunal’s two committees. The aforementioned committees will review the issues on two levels.

Regarding the mechanism for the selection of the judges, Lebanese Minister of Education Khaled Qabbani told Asharq Al-Awsat, “Appointing the judges will comply with strict international standards that operate on impartiality, objectivity and equity. It will rely upon the agreement that has been reached between Ban Ki-Moon and the Lebanese government. The agreement states that the preliminary tribunal will be comprised of three foreign judges and two Lebanese ones. The Court of Appeal will follow the same structure. In accordance with that, the Lebanese government will submit a list of 12 Lebanese judges, which will be chosen by the Supreme Judicial Council. Immediately following the selection of names, the list will be submitted to the UN Secretary-General who will then advance the process to the next level by appointing the foreign judges, in accordance with the criteria set by the international tribunal court. This will be accompanied by the appointment of a prosecutor and a judge before the tribunal commences, the judge will then receive the case from the Attorney-General. If he finds it satisfactory then he will submit it to court, and if not, then he returns it to the Attorney-General. Additionally, the Lebanese government will propose the appointment of a Lebanese Deputy Attorney-General in cooperation and agreement with Ban Ki-Moon.”

However, Qabbani doubts that the internal political struggle will cause any problems when it comes to the nomination of the judges. “There are no politics involved in the selection of judges as the matter is entrusted to the Supreme Judicial Council. Therefore, politics will not figure into this equation. The appointment of the judges is left to the Supreme Judicial Council, which possess absolute jurisdiction and full freedom and independence in choosing the names that it deems qualified in terms of expertise, knowledge and specialization. This is particularly so since the government’s role is limited to the submission of names to the secretary-general of the UN without the right to evaluate, assess or classify,” he said.

And yet the complexities of the situation in the Lebanese political arena have led to the establishment of the Security Council’s international tribunal under Chapter VII [of the UN Charter which states upon ‘action with respect to threats to the peace, breaches of peace, and acts of aggression. It deals with threats to international peace and allows for military enforcement as a basis for resolution].

Qabbani believes that, “the opposition’s silence means that all the Lebanese people are in agreement as to the necessity of setting up the tribunal to serve justice. The biggest concern is to stop this cycle of crime, which has erupted since the assassination of President Hariri and continues to this day. As such, establishing the tribunal is needed to reassure the Lebanese of their future because they will continue to feel threatened until these criminals are stopped. But the problem lies in some of the observations made by the opposition about the tribunal court system. They link these observations to the formation of a national unity government before carefully examining the matter first. Following the UNSC’s setting up of the tribunal came this silent and ambiguous stance amongst some in the opposition.”

The defendants in the Rafik Hariri assassination case are: head of the Syrian Presidential Guard, Mostafa Hamdan; former director-general of Lebanon’s Sureté Générale [General Security Directorate], Major-General Jamil al Sayyid; head of the Lebanese Internal Security Force Brigadier, General Ali Salah Haj; and former chief of Lebanese military intelligence, Raymond Azzar. Also involved in the case are bothers Ahmed and Mohammed Abdul-Aal who are affiliated with the Islamic Charitable Projects Association, (ICPA) [also known as Al-Ahbash], in addition to Ayman Tarabay and Mustapha Talal Mesto, who work in a mobile phone shop [in Tripoli] and who are privy to the identity of the persons who bought phone lines and used them to make calls related to the crime. The Syrian Mohammed Zuhair as-Saddiq, who resides in Paris and is wanted by the Lebanese authorities, and Hussam Hussam who had entered into the line of investigations in a manner that evoked much ambiguity and which has yet to be clarified to this day. Moreover, there are witnesses in possession of information whose identities are protected for security reasons and in order to prevent the politicization of their evidence, as was the case with the Syrian witnesses.

Moreover, there is a present fear among the Lebanese that Takfiri cells (Muslims holding other Muslims disbelievers) will be the cause of major blood shed that could lead to the destruction of Lebanon. It is as though the price of the tribunal is reflected in the harrowing battles between Fatah al Islam and the Lebanese army and that perhaps it might only be one in the line of many punishments imposed on Lebanon following the decision to establish the tribunal, which leaves the impression that this tribunal will not fulfill its purpose but rather become a gateway for a new civil war in Lebanon.

The Hezbollah bloc in parliament has asserted that that setting up the UN international tribunal will be succeeded with “destructive repercussion on the country,” and added that, “the country’s national unity, stability and civil peace will be subject to upheaval if the court tribunal did not apply the Chapter VII mandate.

Farid al Khazan deputy of the Free Patriotic Movement (FPM) Parliamentary bloc (headed General Michel Aoun) told Asharq Al-Awsat, “I reject the argument that establishing the tribunal will destroy the country’s stability. We cannot make that argument; it is neither logical nor humane. There are those who committed murder and Lebanon is witnessing a dire situation. How can it be argued that the tribunal will threaten stability? Why have all the events that have taken place in Lebanon happened?”

He added, “There can be no sanctioning in legal issues to choose what we want to keep within the legal framework and what might be best to overlook so that we do not disrupt the situation. If we follow this approach, the county will be lost. There are officials and citizens who have a right to know the truth behind these crimes. It cannot be said that this tribunal will annihilate civil peace. In our present predicament here are smaller issues causing larger problems. How can the tribunal be the issue when all its findings remain hidden and in the hands of Serge Brammertz, Deputy Prosecutor for Investigations of the International Criminal Court, who will need a year to submit his hypothetical report.”

For his part, Dr. Shafik al Masri, legal expert and professor of international law at the American University of Beirut told Asharq Al-Awsat that “in the legal field there is no room for objections against the articles in Chapter VII, however at this stage this chapter is not worrying since it is presently at an application and not punitive. No Lebanese group can stop its impact and the Syrian and Lebanese governments can only abide by it.”

In light of it being the first international judicial mechanism of its kind in the Middle East, al Khazan said, “It is not only the court that is unique within the context of international justice, everything that is taking place in the Lebanese arena does not resemble anything else in the world. However, we in Lebanon are bound to the court and the only thing we can do is cooperate. If there are any signs of lack of cooperation present the Lebanon will bear all the action taken by the Security Council, including punishments. Part of the Lebanese state is cooperating with the government and most parties have supported the tribunal while the government has officially demanded it.”

Syria rushed to refuse abiding with the UNSC court and various Syrian officials have confirmed that Syria has nothing to do with it. Syrian Deputy Foreign Minister Faisal Miqdad stated, “The Lebanese government has no faith in its legitimacy or its ability to lead the Lebanese people.” He added that “those who are targeting Syria now will not reap anything but failure,” furthermore stressing that “Syria will not be bound except by its own laws.”

Syrian jurists were quick to proclaim the court unconstitutional in their analysis based on the fact that five countries abstained from voting [on the grounds that it bypassed the Lebanese parliament’s constitutional role in approving international agreements], including Russia and China, both of which have veto power.

Such analysis aimed at the tribunal’s legitimacy led Lebanese Minister of Culture and Acting Lebanese Foreign Minister Tarek Mitri to state in a televised appearance that, “Those skeptical of the legitimacy of Resolution 1757 counted the populations of Russia and China as those against the tribunal to say that half the world’s population do not support it.”

In terms of the Syrian position regarding the tribunal, Farid al Khazan said, “the tribunal is legitimate as is the UNSC. If Syria rejects its resolutions and questions its legitimacy then it leads us to question the likelihood of its withdrawal from the UN. Part of the UNSC system is that some countries can abstain from voting, this does not nullify the legitimacy of the resolution, which could have been stopped by a veto. Thus, the mechanism utilized is 100 percent legitimate.”

He believes that, “the innocent do not adopt a position of rejection in the face of a tribunal court, despite the crisis situation in Lebanon of which the tribunal is a part of. Not commenting on its establishment creates a problem. If the majority were to take these observations into consideration the situation would have been better. If it was regarded as legitimate then it could proceed, and if not, then it could be removed from Lebanon back to the UNSC using the mechanism that it follows. Nabih Berri proposed an initiative, which was praised by the Saudi ambassador to Lebanon Abdulaziz Khoja, in which Berri proposed that the tribunal should be approved first before the discussing matters related to a new government.”

However, Qabbani was reproachful in his response to that and said, “According to our information, the government accepted Berri’s initiative and the formation of a four-member committee two of which represent the government; Judges Ralph Riachi and Choukry Sader along with two others members from the opposition. The committee is to be entitled with examining and discussing observations in addition to agreeing on the final form of the project. After which it will be followed by the expansion of the government and the setting up of the tribunal simultaneously. However, this did not happen and things stopped at that.”

Bani Ki-Moon’s visit to Damascus last month primarily revolved around the Lebanese issue. He studied the matter of the international tribunal with Syrian officials and extensively studied the Syrian position and the extent of its connection with the Lebanese opposition and its level of determination to not allow the tribunal in Lebanon. But the UN Secretary-General’s visit did not alter the Syrian position regarding the tribunal.

Damascus advised the Secretary-General against setting up the tribunal except in the case of unanimous approval so that the UN would not be supporting one Lebanese side against another, which would only exacerbate the present tension and deadlock. The opposition forces fear the politicization of the tribunal and its exploitation by the US as a tool against parties such as Hezbollah, which is classified as a ‘terrorist organization’ in the eyes of Americans.

But Assistant Secretary for Bureau of International Organizations, Kristen Silverberg, indicated that the matter was different, stressing that the US “will not make any deal with Syria or anyone else in the international community at the expense of the freedom of Lebanon.” He emphasized that the tribunal was impartial and that the US administration did not have a say over it since it was the fruit of a huge cooperation between the UN and Lebanon and that it included Lebanese judges and was in accordance with the Lebanese legislative system.

“I see no contradiction between Lebanese law and international law,” said Qabbani, “because the tribunal is independent and implements international law principles, whilst being familiar with Lebanese laws, including the Code of Criminal Procedure and the Lebanese Penal Code. It will place a system for operation and procedure that is related to the protection of witnesses, defendants and suspects whilst providing all the guarantees so as to ensure their protection. Moreover, lawyers will be appointed to defend them. Therefore, this tribunal’s work is surrounded by legal and judicial guarantees to ensure impartiality, integrity and the protection of the rights of both the accused and those defending them. It will also act in act in accordance with the international standards adopted in this form of court system.”

Likewise, al Khazan has faith in the tribunal. He excluded the politicization of the tribunal because the Security Council will be entitled with strict and precise supervision to monitor its performance. He added that the spotlight was on Lebanon since it is embroiled in the midst of the regional conflict, unlike the situation in Rwanda which is not affected by and does not influence others. It is not a simple matter because it intersects with all the regional problems that occupy the international community. The Lebanese situation is entangled with the Syrian, the Iranian, Israeli and terrorism, he said.

He added, “even if there were attempts to politicize it there is international supervision and international standards available and no judge with a questionable record will be appointed and the international media will not spare anyone on this matter.”

“Russia and China, both of which abstained from voting will be watching all the details of the tribunal closely. It’s true that that this tribunal constitutes a precedent in that it deals with the assassination of Rafik Hariri, however the various bombings and assassinations that followed also contributed to its establishment. The situation is, as we can see, is still open to further events, whether assassinations, bombings or what we are presently witnessing.”

Bechara Menassa, prominent legal counselor and expert in the Lebanese constitution said, “After the situation in Rwanda, the UN felt remorse after the blame that was directed at it for its failure to prevent the escalation of the situation. This is why it rushed to set up the tribunal under Chapter VII amidst its growing fears of those who are using violence to impose their will on the land. After it realized that dialogue will not solve the matter and thus decided that if it did not set up an international tribunal that everyone who dares to take a stance against a political ‘class’ will be in danger.” He hoped that, “Lebanon could avoid entering a maze of military and war-related matters if it does not heed the international resolution. Chapter VII allows for the formation of a Military Staff Committee (MSC) whose mission is to interfere to implement resolutions.

In terms of the level of cooperation required of all parties, al Khazan said, “The tribunal will determine the defendants, suspects and the witnesses after the investigation and it will summon them. This is where lack of response will lead to difficult situations – especially if certain officials are called in. If there is no cooperation from those where evidence proves they are involved, there will be a problem.” He added, “The demarcation line between politics and law is so fine that it’s almost nonexistent. However, emphasizing that separation will depend on strong and precise evidence and information, which no one can refute so that it leaves no room for doubt. The evidence lies in the hands of the judges and it is the required legal weapon.

Al Qabbani concluded, “The tribunal has now been set into motion. There is a commitment by the UNSC and various countries to provide guarantees with the aim of revealing the truth behind the assassination and bombings. It is no longer possible for any group or party to stand in its way.”