Middle-east Arab News Opinion | Asharq Al-awsat

Nicola Michel, legal adviser to the UN secretary general discuses the Al-Hariri Tribunal | ASHARQ AL-AWSAT English Archive 2005 -2017
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(Asharq Al-Awsat) There is talk in the media that venue for the international tribunal is either going to be Cyprus, Italy, or the Netherlands. Has a decision been made?

(Michel) What is agreed on now is that the tribunal venue should be outside Lebanon. No one has objected to this point. It is early to talk now about the tribunal’s venue because we have not decided it yet. All the press talk about the venue is just assumptions. But there are criteria for choosing the venue which have to be taken into consideration. These are the criteria of justice, security, and administrative efficiency. For example, regarding efficiency, we are searching for a venue where the necessary facilities are available which allow us to adapt easily to the place and allow us to gain time and funds. We will also take into consideration the victims’ rights and the ease with which the eyewitnesses can reach the venue, that is, not to be forced to make long trips. We have to find a balance between all these criteria. We must balance the proximity criteria with the security one. This is something we have to decide.

(Asharq Al-Awsat) Did you receive offers from some countries to host the tribunal? Are there countries excluded because of their close relationship with Lebanon?

(Michel) My information is that no country has offered to host the tribunal. No, we have not excluded any choice. We will apply objectively the clauses of the agreement to establish the tribunal. Moreover, approval of the venue will be according to the relative clause.

(Asharq Al-Awsat) What about the formation of the tribunal itself, the judges, their number, the mechanism for choosing them?

(Michel) The international tribunal will be made up of four bodies: The chambers, the attorney general, the recorder, and the defense office. Regarding the tribunal’s chambers, there are three components: The investigating judge, the court of first instance, the court of appeal. Regarding the first body, it will be made up of one judge, unlike the other chambers. The court of first cassation chamber will include three judges, one of them Lebanese. Finally, the court of appeal will be made up of five judges, among them two Lebanese. The law establishing the tribunal noted the choice of two reserve judges. This means that all the tribunal’s three chambers will include11 judges.

The criteria for choosing the judges are extremely important, particularly in terms of ensuring independence and non bias. The mechanism for selecting the Lebanese and international judges will be different. For the Lebanese, the secretary general will appoint them from a list of 12 persons submitted by the Lebanese Higher Judiciary Council to the Lebanese Government which in turn forward it to the secretary general. The latter can seek the help of a special selection committee whose task is to offer recommendations and advice and is made up of three judges, two international ones and the secretary general’s representative. To give an additional guarantee of the tribunal’s independence, the secretary general has to present the formation to the Security Council [UNSC] to get its approval for appointing the judges. There are in fact many guarantees to ensure the Lebanese judges’ independence. As to the international ones, the member states will submit proposals after we open the way for nominations. All these applications have to be subject to the advice of the selection committee which will present its recommendations to the UN secretary general.

(Asharq Al-Awsat) Do the countries have a quota for selecting the tribunal’s judges?

(Michel) This matter is not observed in the agreement but the selection committee will take this factor into consideration when assessing the independence of the nominee, that is, according to nationality, experience, and other factors. Therefore there is not a definite factor in the selection but the committee will be sensitive about this matter when assessing the judges’ independence.

(Asharq Al-Awsat) Will the tribunal judges have special immunities?

(Michel) Under the law to establish the tribunal, we considered that the judges should have immunity that allows them to carry out their duties with total independence. The immunity they will have is the diplomatic one and its aim is to enable them to exercise their work in independence and not to protect them from committing acts punishable by law. It is immunity for protecting them from the possibility of being pursued by special courts because of the action they did within the framework of their exercise of their roles as judges in the international tribunal.

(Asharq Al-Awsat) What kind of laws will the tribunal apply and will it adopt Lebanese ones?

(Michel) Clause 2 of the law to establish the tribunal stipulates that it will apply the Lebanese penal law but will not apply all its articles because some of them are incompatible with the kind of the crimes that were committed. As to procedural matters, the agreement to establish the tribunal takes into consideration internationally recognized guarantees, particularly in connection with the independence of the judges and the rights of the defendants, defense, eyewitnesses, and those summoned. In addition to this, when the judges are appointed, they must adopt rules for procedures and evidence as derived from the Lebanese law but also respect the international criteria that are agreed upon.

(Asharq Al-Awsat) Will the tribunal have the power to summon republics’ presidents?

(Michel) The question is raised at the level of the individual criminal responsibility of the concerned persons or the level of their positions. Here, there has to be distinction whether these persons have a special position inside Lebanon or in other countries. The agreement to establish the tribunal notices in Clause 3 Para 2 that the president can be held responsible for an action carried out by his subordinates. But it is not an automatic responsibility and requires evidence made up of three elements: First, that the president deliberately and consciously ignored information which clearly indicated that his subordinates were trying to commit a crime or had committed it; second, that these crimes came under this president’s actual responsibility and under his supervision; and third, that the president failed to take the necessary measures to prevent these crimes from taking place.

(Asharq Al-Awsat) But ascertaining the responsibility becomes in this case extremely difficult or practically unlikely to be achieved?

(Michel) We want to tell those claiming that the tribunal is a politicized means targeting leaders they are wrong because it is established on very solid principles and rules that are compatible with the international criteria. There is no way that the tribunal will make political decisions. I know that the task is going to be very difficult. Some have to stop making the accusations because the criteria governing the tribunal’s work are clear. The difficulty of the current crisis should not be underestimated but we should also hope that the Lebanese leaders will return to their previous stand of considering justice a very necessary matter for stability in the country.

(Asharq Al-Awsat) But the Lebanese opposition is saying there is no clear defendant in international Judge Serge Brammertz’s investigation. Why the tribunal now?

(Michel) Establishing the tribunal now is necessary because the lack of confidence in establishing it was a source for the instability in the country and because its establishment is necessary for completing the investigation. Eyewitnesses want to be sure that their testimonies will be presented to an international tribunal. Some of them do not want to present their testimonies except under this condition. The third factor is that we have to organize in harmony the transitional stage between the investigation and the tribunal’s future actions.

(Asharq Al-Awsat) And does this mean that the investigation has reached clearer information about the identity of those who committed the assignations of Rafik al-Hariri and his colleagues?

(Michel) What I know about this is what you know from the media. Investigator Brammertz is very serious in his work and I am confident that the investigators will present more precise and detailed information to the tribunal at the proper time. My work is not separate from that of investigator Brammertz in terms of organization and planning but we do not exercise any influence on the investigation and we respect its independence.

(Asharq Al-Awsat) Was there no way of reaching agreement on establishing the tribunal according to Lebanese laws without resorting to Chapter 7?

(Michel) I met the Lebanese leaders from all affiliations during my visit to Lebanon and can say we tried very seriously to help our Lebanese interlocutors to reach an internal solution. The difficulty was not with the tribunal itself but with the relationship between it and forming the new government. That was a principal precondition on the part of the opposition for accepting even to start the dialogue about the tribunal. We told Hezbollah that we really wished to listen to their observations and we imagined some of them. But they said they would present their observations only to a government they believed has constitutional legitimacy. We reached the end of our efforts and I told the secretary general: I did not make any progress. On this basis, the UNSC decided to take action taking into consideration other factors, including the initiatives of Saudi Arabia and the Arab League in particular and other countries.

(Asharq Al-Awsat) Is there a timetable for starting the tribunal’s proceedings?

(Michel) It is in fact a major action. So far, we are optimistically estimating that we will start our action within one year. The investigation committee will continue its work during that time.

(Asharq Al-Awsat) Do you not fear that the tribunal will be used as a political means and come under pressure despite all the guarantees?

(Michel) I am convinced that the rules have included all the guarantees that the tribunal will be independent, not biased, and not a political means. History will show whether achievement of justice will bring changes. We do not have any political objective to change regimes but we will see whether the establishment of justice will bring about changes.

(Asharq Al-Awsat) Finally, do you not fear for your life?

(Michel) It is difficult to answer this question. It is a great honor for me to be in my post. I am fully aware of the dangers and believe that our task must be achieved. It is a noble one.