SECURITY COUNCIL AUTHORIZES ESTABLISHMENT OF SPECIAL TRIBUNAL TO TRY SUSPECTS IN ASSASSINATION OF RAFIQ HARIRI
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| Department of Public Information • News and Media Division • New York |
Security Council
5685th Meeting (PM)
Security Council authorizes establishment of special tribunal
to try suspects in assassination of rafiq Hariri
Resolution 1757 (2007) Adopted by 10-0-5;
China , Indonesia, Qatar, Russian Federation, South Africa Abstain
The United Nations Security Council today authorized the formation of an international tribunal to try suspects in the 2005 assassination of former Lebanese Prime Minister Rafiq Hariri, although some members warned that the move could have serious political repercussions because the Council was exceeding its authority and interfering in Lebanese affairs.
By a vote of 10 in favour to none against, with 5 abstentions ( China, Indonesia, Qatar, Russian Federation and South Africa), the Security Council, acting under Chapter VII of the Charter, adopted resolution 1757 (2007) authorizing the creation of the Special Tribunal for Lebanon. It gives the Lebanese Government until 10 June “to notify the United Nations in writing that the legal requirements for entry into force have been complied with”, thus allowing Lebanese factions 10 days to reach an agreement internally before it goes into effect.
The requirements agreed between the world body and Lebanon last November are attached to the resolution, along with the Tribunal’s 30-article founding statute. The measure responds to a request from Lebanese Prime Minister Fouad Siniora, but the country’s Parliament has not approved the plan because speaker Nabih Berri has not convened the chamber.
Mindful of the Lebanese people’s demand that all those responsible for the 14 February 2005 terrorist bombing that killed the former Lebanese Premier and 22 others be identified and brought to justice, the Council also requested Secretary-General Ban Ki-moon, coordinating with, when appropriate, the Lebanese Government, to take the steps and measures necessary to establish the Tribunal “in a timely manner” and to report to the Council within 90 days on the implementation of the resolution. The site of the tribunal would be decided in consultations with Beirut and the country that would host it. Expenses for the tribunal would be borne by United Nations Member States, unless Lebanon could take that responsibility.
Immediately hailing the adoption of the resolution, the representative of the United Kingdom, who had been among the text’s co-sponsors, said the proposed Tribunal was vital for Lebanon, for justice and for the region. Efforts to establish an internal tribunal had been thwarted and the Council’s decision was, therefore, not a capricious intervention or interference in the domestic affairs of a sovereign State. It was a decision properly taken for action to break a long-standing impasse. “The adoption of the text under Chapter VII carries no connotation other than making it binding,” he said, adding that, hopefully, all parties in Lebanon would now be able to move forward.
The Council President, the representative of the United States, which had also sponsored the resolution, said that, by adopting the text the Council had demonstrated its commitment to the principle that there would be no impunity for political assassinations, in Lebanon or elsewhere. Those who had killed Rafiq Hariri and so many others would be brought to justice and held responsible for their crimes. Those who might be tempted to commit similar crimes would know there would be consequences for perpetuating Lebanon’s troubled history of political violence and intimidation. “It was necessary and right for the Council to act,” he said.
Recalling that the Council had approved the tribunal agreement and statute last November, he said, since that time, Lebanon’s legitimate and democratically elected Government and parliamentary majority had tried every possible means to convince the Speaker of Parliament to fulfil his constitutional responsibility to convene Parliament so that final action could be taken, but to no avail. Several influential parties had visited Lebanon in an effort to find a framework in which Parliament could be convened, also to no avail. After five months of tireless efforts, the Prime Minister had sent the Secretary-General a letter asking that the matter be put before the Council for a “binding” decision to establish the special tribunal. The Secretary-General had endorsed that request one day later, after concluding that all diplomatic efforts had been exhausted.
Speaking before the vote, Qatar’s representative said that, while his delegation remained committed to helping Lebanon seek the truth surrounding Mr. Hariri’s assassination, the resolution before the Council “entailed legal encroachments known to all”. It might not promote national détente, and could further complicate the situation in a country, that, at present, was in dire need of national cohesion and political stability.
He said that the insistence of the sponsors to submit the text under Chapter VII went beyond the designated aim of endorsing the establishment of the tribunal, especially in light of the “complicated, delicate, political situation in Lebanon”. Qatar was simply apprehensive that the draft under Chapter VII would not bring stability to the country. Qatar would, therefore, continue to pursue its good offices to bring points of view in Lebanon closer, and help ensure national unity in support of the Agreement to establish the Tribunal through national mechanisms.
“It is not appropriate for the Security Council to impose such a tribunal on Lebanon, especially under Chapter VII,” said South Africa’s representative. Also speaking before the vote, he said his delegation had often called on the Council to be judicious in its invocation of that Article. By resorting to such a measure, the Council was contravening its own mandate under the Charter. Adopting the text as it stood might politicize international law, he said, adding that South Africa was also concerned about the precedent that today’s action would be setting.
Tarik Mitri, Lebanon’s Minister of Culture and Minister of Foreign Affairs, said the co-sponsors of the resolution had enhanced the credibility of the Council and that of the wider United Nations. Even those that had abstained in the vote had nevertheless expressed their commitment to the prime importance of the establishment of a tribunal, and the need to bring about justice and end impunity in his country. He assured the Council that all efforts had been taken, right up to the time of the present meeting, to ensure that domestic actions would lead to the acceptance of the agreement on the establishment of the Tribunal. But, despite the fact that a majority of Parliamentarians had supported the Tribunal, its adoption had met with countless obstacles.
The Tribunal would act as a deterrent to those who would commit heinous acts, and would enhance freedom and allow the people of the country to live free from fear of such action. The Council’s creation of the Tribunal was not a victory of one party over another: “Justice will be the victor,” he declared. The resolution did not pit one group against another or play one part of the international community against another. It would strengthen unity, strengthen judicial systems and strengthen the hopes of the Lebanese people, all of whom were striving to move forward in the name of justice and stability.
In April 2005, the Security Council set up the International Independent Investigation Commission after an earlier United Nations mission found that Lebanon’s own inquiry into the Hariri assassination was seriously flawed and that Syria was primarily responsible for the political tensions that had preceded the attack. Serge Brammertz, current head of the Commission, told the Council last September that evidence thus far suggests that a young, male suicide bomber, probably non-Lebanese, detonated up to 1,800 kilograms of explosives inside a van to assassinate Mr. Hariri. The International Independent Investigation Commission’s mandate expires at the end of the year.
The Agreement on the establishment of the Tribunal states that, if the court finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties, and with the consent of the Council, are connected in […] and are of a nature and gravity similar to the attack on Mr. Hariri, the Tribunal “shall also have jurisdiction over persons responsible for such attacks”. That connection includes, but is not limited to, a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.
On the composition of the Special Tribunal and appointment of judges, the resolution states that the court would consist of the following organs: the Chambers, the Prosecutor (appointed by the Secretary-General for a three-year term), the Registry (headed by a Registrar, who would be a United Nations staff member appointed by the Secretary-General for a three-year term), and the Defence Office. The Chambers shall be composed of a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber, with a second Trial Chamber to be created if, after the passage of at least six months from the commencement of the functioning of the Special Tribunal, the Secretary-General or the President of the Special Tribunal so requests.
The Chambers shall be composed of no fewer than 11 independent judges and no more than 14 such judges, who shall serve as follows: (a) a single international judge shall serve as a Pre-Trial Judge; (b) three judges shall serve in the Trial Chamber, of whom one shall be a Lebanese judge and two shall be international judges; (c) in the event of the creation of a second Trial Chamber, that Chamber shall be likewise composed in the manner contained in subparagraph (b) above; (d) five judges shall serve in the Appeals Chamber, of whom two shall be Lebanese judges and three shall be international judges; and (e) two alternate judges, of whom one shall be a Lebanese judge and one shall be an international judge.
According to the resolution, the Tribunal’s judges, who would be appointed to serve for a three-year period and could be eligible for re-appointment for a further period to be determined by the Secretary-General in consultation with the Government, “shall be persons of high moral character, impartiality and integrity, with extensive judicial experience, and […] shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source”.
Lebanese judges would be appointed by the Secretary-General to serve in the Trial Chamber or the Appeals Chamber or as an alternate judge from a list of 12 persons presented by the Government, upon the proposal of the Lebanese Supreme Council of the Judiciary. International judges would be appointed by the Secretary-General to serve as Pre-Trial Judge, a Trial Chamber Judge, an Appeals Chamber Judge or an alternate judge, upon nominations forwarded by States at the invitation of the Secretary-General, as well as by competent persons.
The Government and the Secretary-General would consult on the appointment of judges and the Secretary-General would appoint judges, upon the recommendation of a selection panel he has established after indicating his intentions to the Security Council. The selection panel shall be composed of two judges, currently sitting on or retired from an international tribunal, and the representative of the Secretary-General.
Also speaking today, were the representatives of Indonesia, China, Russian Federation, France, Peru, Belgium, Slovakia and Italy.
The meeting began at 3:10 p.m. and ended at 4:05 p.m.
Background
The Security Council met this afternoon to take action on a draft resolution on the Special Tribunal for Lebanon (document S/2007/315), sponsored by Belgium, France, Italy, Slovakia, United Kingdom and United States, which reads as follows:
“The Security Council,
“Recalling all its previous relevant resolutions, in particular resolutions 1595 (2005) of 7 April 2005, 1636 (2005) of 31 October 2005, 1644 (2005) of 15 December 2005, 1664 (2006) of 29 March 2006 and 1748 (2007) of 27 March 2007,
“Reaffirming its strongest condemnation of the 14 February 2005 terrorist bombings as well as other attacks in Lebanon since October 2004,
“Reiterating its call for the strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the Government of Lebanon,
“Recalling the letter of the Prime Minister of Lebanon to the Secretary-General of 13 December 2005 (S/2005/783) requesting inter alia the establishment of a tribunal of an international character to try all those who are found responsible for this terrorist crime, and the request by this Council for the Secretary-General to negotiate an agreement with the Government of Lebanon aimed at establishing such a Tribunal based on the highest international standards of criminal justice,
“Recalling further the report of the Secretary-General on the establishment of a special tribunal for Lebanon on 15 November 2006 (S/2006/893) reporting on the conclusion of negotiations and consultations that took place between January 2006 and September 2006 at United Nations Headquarters in New York, The Hague, and Beirut between the Legal Counsel of the United Nations and authorized representatives of the Government of Lebanon, and the letter of its President to the Secretary-General of 21 November 2006 (S/2006/911) reporting that the Members of the Security Council welcomed the conclusion of the negotiations and that they were satisfied with the Agreement annexed to the Report,
“Recalling that, as set out in its letter of 21 November 2006, should voluntary contributions be insufficient for the Tribunal to implement its mandate, the Secretary-General and the Security Council shall explore alternate means of financing the Tribunal,
“Recalling also that the Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon was signed by the Government of Lebanon and the United Nations respectively on 23 January and 6 February 2007,
“Referring to the letter of the Prime Minister of Lebanon to the Secretary-General of the United Nations (S/2007/281), which recalled that the parliamentary majority has expressed its support for the Tribunal, and asked that his request that the Special Tribunal be put into effect be presented to the Council as a matter of urgency,
“Mindful of the demand of the Lebanese people that all those responsible for the terrorist bombing that killed former Lebanese Prime Minister Rafiq Hariri and others be identified and brought to justice,
“Commending the Secretary-General for his continuing efforts to proceed, together with the Government of Lebanon, with the final steps for the conclusion of the Agreement as requested in the letter of its President dated 21 November 2006 and referring in this regard to the briefing by the Legal Counsel on 2 May 2007, in which he noted that the establishment of the Tribunal through the Constitutional process is facing serious obstacles, but noting also that all parties concerned reaffirmed their agreement in principle to the establishment of the Tribunal,
“Commending also the recent efforts of parties in the region to overcome these obstacles,
“Willing to continue to assist Lebanon in the search for the truth and in holding all those involved in the terrorist attack accountable and reaffirming its determination to support Lebanon in its efforts to bring to justice perpetrators, organizers and sponsors of this and other assassinations,
“Reaffirming its determination that this terrorist act and its implications constitute a threat to international peace and security,
“1. Decides, acting under Chapter VII of the Charter of the United Nations, that:
(a) The provisions of the annexed document, including its attachment, on the establishment of a Special Tribunal for Lebanon shall enter into force on 10 June 2007, unless the Government of Lebanon has provided notification under Article 19 (1) of the annexed document before that date;
(b) If the Secretary-General reports that the Headquarters Agreement has not been concluded as envisioned under Article 8 of the annexed document, the location of the seat of the Tribunal shall be determined in consultation with the Government of Lebanon and be subject to the conclusion of a Headquarters Agreement between the United Nations and the State that hosts the Tribunal;
(c) If the Secretary-General reports that contributions from the Government of Lebanon are not sufficient to bear the expenses described in Article 5 (b) of the annexed document, he may accept or use voluntary contributions from States to cover any shortfall;
“2. Notes that, pursuant to Article 19 (2) of the annexed document, the Special Tribunal shall commence functioning on a date to be determined by the Secretary-General in consultation with the Government of Lebanon, taking into account the progress of the work of the International Independent Investigation Commission;
“3. Requests the Secretary-General, in coordination, when appropriate, with the Government of Lebanon, to undertake the steps and measures necessary to establish the Special Tribunal in a timely manner and to report to the Council within 90 days and thereafter periodically on the implementation of this resolution;
“4. Decides to remain actively seized of the matter.”
Resolution Annex
Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon
Whereas the Security Council, in its resolution 1664 (2006) of 29 March 2006, which responded to the request of the Government of Lebanon to establish a tribunal of an international character to try all those who are found responsible for the terrorist crime which killed the former Lebanese Prime Minister Rafiq Hariri and others, recalled all its previous resolutions, in particular resolutions 1595 (2005) of 7 April 2005, 1636 (2005) of 31 October 2005 and 1644 (2005) of 15 December 2005,
Whereas the Security Council has requested the Secretary-General of the United Nations (hereinafter “the Secretary-General”) “to negotiate an agreement with the Government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice”, taking into account the recommendations of the Secretary-General’s report of 21 March 2006 (S/2006/176) and the views that have been expressed by Council members,
Whereas the Secretary-General and the Government of the Lebanese Republic (hereinafter “the Government”) have conducted negotiations for the establishment of a Special Tribunal for Lebanon (hereinafter “the Special Tribunal” or “the Tribunal”),
Now therefore the United Nations and the Lebanese Republic (hereinafter referred to jointly as the “Parties”) have agreed as follows:
Article 1
Establishment of the Special Tribunal
1. There is hereby established a Special Tribunal for Lebanon to prosecute persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks. This connection includes but is not limited to a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.
2. The Special Tribunal shall function in accordance with the Statute of the Special Tribunal for Lebanon. The Statute is attached to this Agreement and forms an integral part thereof.
Article 2
Composition of the Special Tribunal and appointment of judges
1. The Special Tribunal shall consist of the following organs: the Chambers, the Prosecutor, the Registry and the Defence Office.
2. The Chambers shall be composed of a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber, with a second Trial Chamber to be created if, after the passage of at least six months from the commencement of the functioning of the Special Tribunal, the Secretary-General or the President of the Special Tribunal so requests.
3. The Chambers shall be composed of no fewer than eleven independent judges and no more than fourteen such judges, who shall serve as follows:
(a) A single international judge shall serve as a Pre-Trial Judge;
(b) Three judges shall serve in the Trial Chamber, of whom one shall be a Lebanese judge and two shall be international judges;
(c) In the event of the creation of a second Trial Chamber, that Chamber shall be likewise composed in the manner contained in subparagraph (b) above;
(d) Five judges shall serve in the Appeals Chamber, of whom two shall be Lebanese judges and three shall be international judges; and
(e) Two alternate judges, of whom one shall be a Lebanese judge and one shall be an international judge.
4. The judges of the Tribunal shall be persons of high moral character, impartiality and integrity, with extensive judicial experience. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.
5. (a) Lebanese judges shall be appointed by the Secretary-General to serve in the Trial Chamber or the Appeals Chamber or as an alternate judge from a list of twelve persons presented by the Government upon the proposal of the Lebanese Supreme Council of the Judiciary;
(b) International judges shall be appointed by the Secretary-General to serve as Pre-Trial Judge, a Trial Chamber Judge, an Appeals Chamber Judge or an alternate judge, upon nominations forwarded by States at the invitation of the Secretary-General, as well as by competent persons;
(c) The Government and the Secretary-General shall consult on the appointment of judges;
(d) The Secretary-General shall appoint judges, upon the recommendation of a selection panel he has established after indicating his intentions to the Security Council. The selection panel shall be composed of two judges, currently sitting on or retired from an international tribunal, and the representative of the Secretary-General.
6. At the request of the presiding judge of a Trial Chamber, the President of the Special Tribunal may, in the interest of justice, assign alternate judges to be present at each stage of the trial and to replace a judge if that judge is unable to continue sitting.
7. Judges shall be appointed for a three-year period and may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government.
8. Lebanese judges appointed to serve in the Special Tribunal shall be given full credit for their period of service with the Tribunal on their return to the Lebanese national judiciaries from which they were released and shall be reintegrated at a level at least comparable to that of their former position.
Article 3
Appointment of a Prosecutor and a Deputy Prosecutor
1. The Secretary-General, after consultation with the Government, shall appoint a Prosecutor for a three-year term. The Prosecutor may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government.
2. The Secretary-General shall appoint the Prosecutor, upon the recommendation of a selection panel he has established after indicating his intentions to the Security Council. The selection panel shall be composed of two judges, currently sitting on or retired from an international tribunal, and the representative of the Secretary-General.
3. The Government, in consultation with the Secretary-General and the Prosecutor, shall appoint a Lebanese Deputy Prosecutor to assist the Prosecutor in the conduct of the investigations and prosecutions.
4. The Prosecutor and the Deputy Prosecutor shall be of high moral character and possess the highest level of professional competence and extensive experience in the conduct of investigations and prosecutions of criminal cases. The Prosecutor and the Deputy Prosecutor shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.
5. The Prosecutor shall be assisted by such Lebanese and international staff as may be required to perform the functions assigned to him or her effectively and efficiently.
Article 4
Appointment of a Registrar
1. The Secretary-General shall appoint a Registrar who shall be responsible for the servicing of the Chambers and the Office of the Prosecutor, and for the recruitment and administration of all support staff. He or she shall also administer the financial and staff resources of the Special Tribunal.
2. The Registrar shall be a staff member of the United Nations. He or she shall serve a three-year term and may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government.
Article 5
Financing of the Special Tribunal
1. The expenses of the Special Tribunal shall be borne in the following manner:
(a) Fifty-one per cent of the expenses of the Tribunal shall be borne by voluntary contributions from States;
(b) Forty-nine per cent of the expenses of the Tribunal shall be borne by the Government of Lebanon.
2. It is understood that the Secretary-General will commence the process of establishing the Tribunal when he has sufficient contributions in hand to finance the establishment of the Tribunal and twelve months of its operations plus pledges equal to the anticipated expenses of the following 24 months of the Tribunal’s operation. Should voluntary contributions be insufficient for the Tribunal to implement its mandate, the Secretary-General and the Security Council shall explore alternate means of financing the Tribunal.
Article 6
Management Committee
The parties shall consult concerning the establishment of a Management Committee.
Article 7
Juridical capacity
The Special Tribunal shall possess the juridical capacity necessary:
(a) To contract;
(b) To acquire and dispose of movable and immovable property;
(c) To institute legal proceedings;
(d) To enter into agreements with States as may be necessary for the exercise of its functions and for the operation of the Tribunal.
Article 8
Seat of the Special Tribunal
1. The Special Tribunal shall have its seat outside Lebanon. The location of the seat shall be determined having due regard to considerations of justice and fairness as well as security and administrative efficiency, including the rights of victims and access to witnesses, and subject to the conclusion of a headquarters agreement between the United Nations, the Government and the State that hosts the Tribunal.
2. The Special Tribunal may meet away from its seat when it considers it necessary for the efficient exercise of its functions.
3. An Office of the Special Tribunal for the conduct of investigations shall be established in Lebanon subject to the conclusion of appropriate arrangements with the Government.
Article 9
Inviolability of premises, archives and all other documents
1. The Office of the Special Tribunal in Lebanon shall be inviolable. The competent authorities shall take appropriate action that may be necessary to ensure that the Tribunal shall not be dispossessed of all or any part of the premises of the Tribunal without its express consent.
2. The property, funds and assets of the Office of the Special Tribunal in Lebanon, wherever located and by whomsoever held, shall be immune from search, seizure, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.
3. The archives of the Office of the Special Tribunal in Lebanon, and in general all documents and materials made available, belonging to or used by it, wherever located and by whomsoever held, shall be inviolable.
Article 10
Funds, assets and other property
The Office of the Special Tribunal, its funds, assets and other property in Lebanon, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process, except insofar as in any particular case the Tribunal has expressly waived its immunity. It is understood, however, that no waiver of immunity shall extend to any measure of execution.
Article 11
Privileges and immunities of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar and the Head of the Defence Office
1. The judges, the Prosecutor, the Deputy Prosecutor, the Registrar and the Head of the Defence Office, while in Lebanon, shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic agents in accordance with the Vienna Convention on Diplomatic Relations of 1961.
2. Privileges and immunities are accorded to the judges, the Prosecutor, the Deputy Prosecutor, the Registrar and the Head of the Defence Office in the interest of the Special Tribunal and not for the personal benefit of the individuals themselves. The right and the duty to waive the immunity in any case where it can be waived without prejudice to the purposes for which it is accorded shall lie with the Secretary-General, in consultation with the President of the Tribunal.
Article 12
Privileges and immunities of international and Lebanese personnel
1. Lebanese and international personnel of the Office of the Special Tribunal, while in Lebanon, shall be accorded:
(a) Immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Such immunity shall continue to be accorded after termination of employment with the Office of the Special Tribunal;
(b) Exemption from taxation on salaries, allowances and emoluments paid to them.
2. International personnel shall, in addition thereto, be accorded:
(a) Immunity from immigration restriction;
(b) The right to import free of duties and taxes, except for payment for services, their furniture and effects at the time of first taking up their official duties in Lebanon.
3. The privileges and immunities are granted to the officials of the Office of the Special Tribunal in the interest of the Tribunal and not for their personal benefit. The right and the duty to waive the immunity in any case where it can be waived without prejudice to the purpose for which it is accorded shall lie with the Registrar of the Tribunal.
Article 13
Defence counsel
1. The Government shall ensure that the counsel of a suspect or an accused who has been admitted as such by the Special Tribunal shall not be subjected, while in Lebanon, to any measure that may affect the free and independent exercise of his or her functions.
2. In particular, the counsel shall be accorded:
(a) Immunity from personal arrest or detention and from seizure of personal baggage;
(b) Inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;
(c) Immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed in his or her capacity as counsel. Such immunity shall continue to be accorded after termination of his or her functions as a counsel of a suspect or accused;
(d) Immunity from any immigration restrictions during his or her stay as well as during his or her journey to the Tribunal and back.
Article 14
Security, safety and protection of persons referred to in this Agreement
The Government shall take effective and adequate measures to ensure the appropriate security, safety and protection of personnel of the Office of the Special Tribunal and other persons referred to in this Agreement, while in Lebanon. It shall take all appropriate steps, within its capabilities, to protect the equipment and premises of the Office of the Special Tribunal from attack or any action that prevents the Tribunal from discharging its mandate.
Article 15
Cooperation with the Special Tribunal
1. The Government shall cooperate with all organs of the Special Tribunal, in particular with the Prosecutor and defence counsel, at all stages of the proceedings. It shall facilitate access of the Prosecutor and defence counsel to sites, persons and relevant documents required for the investigation.
2. The Government shall comply without undue delay with any request for assistance by the Special Tribunal or an order issued by the Chambers, including, but not limited to:
(a) Identification and location of persons;
(b) Service of documents;
(c) Arrest or detention of persons;
(d) Transfer of an indictee to the Tribunal.
Article 16
Amnesty
The Government undertakes not to grant amnesty to any person for any crime falling within the jurisdiction of the Special Tribunal. An amnesty already granted in respect of any such persons and crimes shall not be a bar to prosecution.
Article 17
Practical arrangements
With a view to achieving efficiency and cost-effectiveness in the operation of the Special Tribunal:
(a) Appropriate arrangements shall be made to ensure that there is a coordinated transition from the activities of the International Independent Investigation Commission, established by the Security Council in its resolution 1595 (2005), to the activities of the Office of the Prosecutor;
(b) Judges of the Trial Chamber and the Appeals Chamber shall take office on a date to be determined by the Secretary-General in consultation with the President of the Special Tribunal. Pending such a determination, judges of both Chambers shall be convened on an ad hoc basis to deal with organizational matters and serving, when required, to perform their duties.
Article 18
Settlement of disputes
Any dispute between the Parties concerning the interpretation or application of this Agreement shall be settled by negotiation or by any other mutually agreed upon mode of settlement.
Article 19
Entry into force and commencement of the functioning of the Special Tribunal
1. This Agreement shall enter into force on the day after the Government has notified the United Nations in writing that the legal requirements for entry into force have been complied with.
2. 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 International Independent Investigation Commission.
Article 20
Amendment
This Agreement may be amended by written agreement between the Parties.
Article 21
Duration of the Agreement
1. This Agreement shall remain in force for a period of three years from the date of the commencement of the functioning of the Special Tribunal.
2. Three years after the commencement of the functioning of the Special Tribunal the Parties shall, in consultation with the Security Council, review the progress of the work of the Special Tribunal. If at the end of this period of three years the activities of the Tribunal have not been completed, the Agreement shall be extended to allow the Tribunal to complete its work, for a further period(s) to be determined by the Secretary-General in consultation with the Government and the Security Council.
3. The provisions relating to the inviolability of the funds, assets, archives and documents of the Office of the Special Tribunal in Lebanon, the privileges and immunities of those referred to in this Agreement, as well as provisions relating to defence counsel and the protection of victims and witnesses, shall survive termination of this Agreement.
In witness whereof, the following duly authorized representatives of the United Nations and of the Lebanese Republic have signed this Agreement.
Done at __________ on __________ 2006, in three originals in the Arabic, French and English languages, all texts being equally authentic.
For the United Nations:
For the Lebanese Republic:
_________________
__________________
Attachment
Statute of the Special Tribunal for Lebanon
Having been established by an Agreement between the United Nations and the Lebanese Republic (hereinafter “the Agreement”) pursuant to Security Council resolution 1664 (2006) of 29 March 2006, which responded to the request of the Government of Lebanon to establish a tribunal of an international character to try all those who are found responsible for the terrorist crime which killed the former Lebanese Prime Minister Rafiq Hariri and others, the Special Tribunal for Lebanon (hereinafter “the Special Tribunal”) shall function in accordance with the provisions of this Statute.
Section I
Jurisdiction and applicable law
Article 1
Jurisdiction of the Special Tribunal
The Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks. This connection includes but is not limited to a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.
Article 2
Applicable criminal law
The following shall be applicable to the prosecution and punishment of the crimes referred to in article 1, subject to the provisions of this Statute:
(a) The provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, including the rules regarding the material elements of a crime, criminal participation and conspiracy; and
(b) Articles 6 and 7 of the Lebanese law of 11 January 1958 on “Increasing the penalties for sedition, civil war and interfaith struggle”.
Article 3
Individual criminal responsibility
1. A person shall be individually responsible for crimes within the jurisdiction of the Special Tribunal if that person:
(a) Committed, participated as accomplice, organized or directed others to commit the crime set forth in article 2 of this Statute; or
(b) Contributed in any other way to the commission of the crime set forth in article 2 of this Statute by a group of persons acting with a common purpose, where such contribution is intentional and is either made with the aim of furthering the general criminal activity or purpose of the group or in the knowledge of the intention of the group to commit the crime.
2. With respect to superior and subordinate relationships, a superior shall be criminally responsible for any of the crimes set forth in article 2 of this Statute committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(a) The superior either knew, or consciously disregarded information that clearly indicated that the subordinates were committing or about to commit such crimes;
(b) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
3. The fact that the person acted pursuant to an order of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Tribunal determines that justice so requires.
Article 4
Concurrent jurisdiction
1. The Special Tribunal and the national courts of Lebanon shall have concurrent jurisdiction. Within its jurisdiction, the Tribunal shall have primacy over the national courts of Lebanon.
2. Upon the assumption of office of the Prosecutor, as determined by the Secretary-General, and no later than two months thereafter, the Special Tribunal shall request the national judicial authority seized with the case of the attack against Prime Minister Rafiq Hariri and others to defer to its competence. The Lebanese judicial authority shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any. Persons detained in connection with the investigation shall be transferred to the custody of the Tribunal.
3. (a) At the request of the Special Tribunal, the national judicial authority seized with any of the other crimes committed between 1 October 2004 and 12 December 2005, or a later date decided pursuant to article 1, shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any, for review by the Prosecutor;
(b) At the further request of the Tribunal, the national authority in question shall defer to the competence of the Tribunal. It shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any, and persons detained in connection with any such case shall be transferred to the custody of the Tribunal;
(c) The national judicial authorities shall regularly inform the Tribunal of the progress of their investigation. At any stage of the proceedings, the Tribunal may formally request a national judicial authority to defer to its competence.
Article 5
Non bis in idem
1. No person shall be tried before a national court of Lebanon for acts for which he or she has already been tried by the Special Tribunal.
2. A person who has been tried by a national court may be subsequently tried by the Special Tribunal if the national court proceedings were not impartial or independent, were designed to shield the accused from criminal responsibility for crimes within the jurisdiction of the Tribunal or the case was not diligently prosecuted.
3. In considering the penalty to be imposed on a person convicted of a crime under this Statute, the Special Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.
Article 6
Amnesty
An amnesty granted to any person for any crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution.
Section II
Organization of the Special Tribunal
Article 7
Organs of the Special Tribunal
The Special Tribunal shall consist of the following organs:
(a) The Chambers, comprising a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber;
(b) The Prosecutor;
(c) The Registry; and
(d) The Defence Office.
Article 8
Composition of the Chambers
1. The Chambers shall be composed as follows:
(a) One international Pre-Trial Judge;
(b) Three judges who shall serve in the Trial Chamber, of whom one shall be a Lebanese judge and two shall be international judges;
(c) Five judges who shall serve in the Appeals Chamber, of whom two shall be Lebanese judges and three shall be international judges;
(d) Two alternate judges, one of whom shall be a Lebanese judge and one shall be an international judge.
2. The judges of the Appeals Chamber and the judges of the Trial Chamber, respectively, shall elect a presiding judge who shall conduct the proceedings in the Chamber to which he or she was elected. The presiding judge of the Appeals Chamber shall be the President of the Special Tribunal.
3. At the request of the presiding judge of the Trial Chamber, the President of the Special Tribunal may, in the interest of justice, assign the alternate judges to be present at each stage of the trial and to replace a judge if that judge is unable to continue sitting.
Article 9
Qualification and appointment of judges
1. The judges shall be persons of high moral character, impartiality and integrity, with extensive judicial experience. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.
2. In the overall composition of the Chambers, due account shall be taken of the established competence of the judges in criminal law and procedure and international law.
3. The judges shall be appointed by the Secretary-General, as set forth in article 2 of the Agreement, for a three-year period and may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government.
Article 10
Powers of the President of the Special Tribunal
1. The President of the Special Tribunal, in addition to his or her judicial functions, shall represent the Tribunal and be responsible for its effective functioning and the good administration of justice.
2. The President of the Special Tribunal shall submit an annual report on the operation and activities of the Tribunal to the Secretary-General and to the Government of Lebanon.
Article 11
The Prosecutor
1. The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for the crimes falling within the jurisdiction of the Special Tribunal. In the interest of proper administration of justice, he or she may decide to charge jointly persons accused of the same or different crimes committed in the course of the same transaction.
2. The Prosecutor shall act independently as a separate organ of the Special Tribunal. He or she shall not seek or receive instructions from any Government or from any other source.
3. The Prosecutor shall be appointed, as set forth in article 3 of the Agreement, by the Secretary-General for a three-year term and may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government. He or she shall be of high moral character and possess the highest level of professional competence, and have extensive experience in the conduct of investigations and prosecutions of criminal cases.
4. The Prosecutor shall be assisted by a Lebanese Deputy Prosecutor and by such other Lebanese and international staff as may be required to perform the functions assigned to him or her effectively and efficiently.
5. The Office of the Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor shall, as appropriate, be assisted by the Lebanese authorities concerned.
Article 12
The Registry
1. Under the authority of the President of the Special Tribunal, the Registry shall be responsible for the administration and servicing of the Tribunal.
2. The Registry shall consist of a Registrar and such other staff as may be required.
3. The Registrar shall be appointed by the Secretary-General and shall be a staff member of the United Nations. He or she shall serve for a three-year term and may be eligible for reappointment for a further period to be determined by the Secretary-General in consultation with the Government.
4. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, and such other appropriate assistance for witnesses who appear before the Special Tribunal and others who are at risk on account of testimony given by such witnesses.
Article 13
The Defence Office
1. The Secretary-General, in consultation with the President of the Special Tribunal, shall appoint an independent Head of the Defence Office, who shall be responsible for the appointment of the Office staff and the drawing up of a list of defence counsel.
2. The Defence Office, which may also include one or more public defenders, shall protect the rights of the defence, provide support and assistance to defence counsel and to the persons entitled to legal assistance, including, where appropriate, legal research, collection of evidence and advice, and appearing before the Pre-Trial Judge or a Chamber in respect of specific issues.
Article 14
Official and working languages
The official languages of the Special Tribunal shall be Arabic, French and English. In any given case proceedings, the Pre-Trial Judge or a Chamber may decide that one or two of the languages may be used as working languages as appropriate.
Section III
Rights of defendants and victims
Article 15
Rights of suspects during investigation
A suspect who is to be questioned by the Prosecutor shall not be compelled to incriminate himself or herself or to confess guilt. He or she shall have the following rights of which he or she shall be informed by the Prosecutor prior to questioning, in a language he or she speaks and understands:
(a) The right to be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Special Tribunal;
(b) The right to remain silent, without such silence being considered in the determination of guilt or innocence, and to be cautioned that any statement he or she makes shall be recorded and may be used in evidence;
(c) The right to have legal assistance of his or her own choosing, including the right to have legal assistance provided by the Defence Office where the interests of justice so require and where the suspect does not have sufficient means to pay for it;
(d) The right to have the free assistance of an interpreter if he or she cannot understand or speak the language used for questioning;
(e) The right to be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 16
Rights of the accused
1. All accused shall be equal before the Special Tribunal.
2. The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Tribunal for the protection of victims and witnesses.
3. (a) The accused shall be presumed innocent until proved guilty according to the provisions of this Statute;
(b) The onus is on the Prosecutor to prove the guilt of the accused;
(c) In order to convict the accused, the relevant Chamber must be convinced of the guilt of the accused beyond reasonable doubt.
4. In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her;
(b) To have adequate time and facilities for the preparation of his or her defence and to communicate without hindrance with counsel of his or her own choosing;
(c) To be tried without undue delay;
(d) Subject to the provisions of article 22, to be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;
(f) To examine all evidence to be used against him or her during the trial in accordance with the Rules of Procedure and Evidence of the Special Tribunal;
(g) To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the Special Tribunal;
(h) Not to be compelled to testify against himself or herself or to confess guilt.
5. The accused may make statements in court at any stage of the proceedings, provided such statements are relevant to the case at issue. The Chambers shall decide on the probative value, if any, of such statements.
Article 17
Rights of victims
Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.
Section IV
Conduct of proceedings
Article 18
Pre-Trial proceedings
1. The Pre-Trial Judge shall review the indictment. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If he or she is not so satisfied, the indictment shall be dismissed.
2. The Pre-Trial Judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest or transfer of persons, and any other orders as may be required for the conduct of the investigation and for the preparation of a fair and expeditious trial.
Article 19
Evidence collected prior to the establishment of the Special Tribunal
Evidence collected with regard to cases subject to the consideration of the Special Tribunal, prior to the establishment of the Tribunal, by the national authorities of Lebanon or by the International Independent Investigation Commission in accordance with its mandate as set out in Security Council resolution 1595 (2005) and subsequent resolutions, shall be received by the Tribunal. Its admissibility shall be decided by the Chambers pursuant to international standards on collection of evidence. The weight to be given to any such evidence shall be determined by the Chambers.
Article 20
Commencement and conduct of trial proceedings
1. The Trial Chamber shall read the indictment to the accused, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment and instruct the accused to enter a plea.
2. Unless otherwise decided by the Trial Chamber in the interests of justice, examination of witnesses shall commence with questions posed by the presiding judge, followed by questions posed by other members of the Trial Chamber, the Prosecutor and the Defence.
3. Upon request or proprio motu, the Trial Chamber may at any stage of the trial decide to call additional witnesses and/or order the production of additional evidence.
4. The hearings shall be public unless the Trial Chamber decides to hold the proceedings in camera in accordance with the Rules of Procedure and Evidence.
Article 21
Powers of the Chambers
1. The Special Tribunal shall confine the trial, appellate and review proceedings strictly to an expeditious hearing of the issues raised by the charges, or the grounds for appeal or review, respectively. It shall take strict measures to prevent any action that may cause unreasonable delay.
2. A Chamber may admit any relevant evidence that it deems to have probative value and exclude such evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
3. A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.
4. In cases not otherwise provided for in the Rules of Procedure and Evidence, a Chamber shall apply rules of evidence that will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
Article 22
Trials in absentia
1. The Special Tribunal shall conduct trial proceedings in the absence of the accused, if he or she:
(a) Has expressly and in writing waived his or her right to be present;
(b) Has not been handed over to the Tribunal by the State authorities concerned;
(c) Has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.
2. When hearings are conducted in the absence of the accused, the Special Tribunal shall ensure that:
(a) The accused has been notified, or served with the indictment, or notice has otherwise been given of the indictment through publication in the media or communication to the State of residence or nationality;
(b) The accused has designated a defence counsel of his or her own choosing, to be remunerated either by the accused or, if the accused is proved to be indigent, by the Tribunal;
(c) Whenever the accused refuses or fails to appoint a defence counsel, such counsel has been assigned by the Defence Office of the Tribunal with a view to ensuring full representation of the interests and rights of the accused.
3. In case of conviction in absentia, the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgement.
Article 23
Judgement
The judgement shall be rendered by a majority of the judges of the Trial Chamber or of the Appeals Chamber and shall be delivered in public. It shall be accompanied by a reasoned opinion in writing, to which any separate or dissenting opinions shall be appended.
Article 24
Penalties
1. The Trial Chamber shall impose upon a convicted person imprisonment for life or for a specified number of years. In determining the terms of imprisonment for the crimes provided for in this Statute, the Trial Chamber shall, as appropriate, have recourse to international practice regarding prison sentences and to the practice of the national courts of Lebanon.
2. In imposing sentence, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
Article 25
Compensation to victims
1. The Special Tribunal may identify victims who have suffered harm as a result of the commission of crimes by an accused convicted by the Tribunal.
2. The Registrar shall transmit to the competent authorities of the State concerned the judgement finding the accused guilty of a crime that has caused harm to a victim.
3. Based on the decision of the Special Tribunal and pursuant to the relevant national legislation, a victim or persons claiming through the victim, whether or not such victim had been identified as such by the Tribunal under paragraph 1 of this article, may bring an action in a national court or other competent body to obtain compensation.
4. For the purposes of a claim made under paragraph 3 of this article, the judgement of the Special Tribunal shall be final and binding as to the criminal responsibility of the convicted person.
Article 26
Appellate proceedings
1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds:
(a) An error on a question of law invalidating the decision;
(b) An error of fact that has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber.
Article 27
Review proceedings
1. Where a new fact has been discovered that was not known at the time of the proceedings before the Trial Chamber or the Appeals Chamber and that could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit an application for review of the judgement.
2. An application for review shall be submitted to the Appeals Chamber. The Appeals Chamber may reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate:
(a) Reconvene the Trial Chamber;
(b) Retain jurisdiction over the matter.
Article 28
Rules of Procedure and Evidence
1. The judges of the Special Tribunal shall, as soon as practicable after taking office, adopt Rules of Procedure and Evidence for the conduct of the pre-trial, trial and appellate proceedings, the admission of evidence, the participation of victims, the protection of victims and witnesses and other appropriate matters and may amend them, as appropriate.
2. In so doing, the judges shall be guided, as appropriate, by the Lebanese Code of Criminal Procedure, as well as by other reference materials reflecting the highest standards of international criminal procedure, with a view to ensuring a fair and expeditious trial.
Article 29
Enforcement of sentences
1. Imprisonment shall be served in a State designated by the President of the Special Tribunal from a list of States that have indicated their willingness to accept persons convicted by the Tribunal.
2. Conditions of imprisonment shall be governed by the law of the State of enforcement subject to the supervision of the Special Tribunal. The State of enforcement shall be bound by the duration of the sentence, subject to article 30 of this Statute.
Article 30
Pardon or commutation of sentences
If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the Special Tribunal accordingly. There shall only be pardon or commutation of sentence if the President of the Tribunal, in consultation with the judges, so decides on the basis of the interests of justice and the general principles of law.
Statements
Speaking before the vote, NASSIR ABDULAZIZ AL-NASSER ( Qatar) affirmed his Government’s position on the establishment of justice and opposing impunity, which was consistent with the Charter. Like other delegations, Qatar continued to call for uncovering the truth regarding Mr. Hariri’s assassination, in line with the aspirations of the Lebanese people, in all its factions, in order to punish the perpetrators of that “outrageous crime”. In that spirit, Qatar had not hesitated to support the establishment of the International Independent Investigation Commission and subsequently voted in favour of relevant Council resolutions. That had paved the way for the establishment of the Tribunal, which enjoyed consensus among all Lebanese factions. Qatar had clearly indicated its position on the legal aspects of the constitutional process by which agreement was concluded between the United Nations and the Lebanese Government to establish the Tribunal.
He said that Qatar remained committed to helping Lebanon seek the truth and hold accountable those involved in those crimes, but it felt at the same time, that the draft now before the Council “entailed legal encroachments known to all”. That might not promote national détente, and could further complicate the situation in a country, that, at present, was in dire need of national cohesion and political stability. In spite of those difficulties, Qatar had been quite willing to consider the draft in a positive spirit in hopes of reaching a consensus formula, but the insistence of the sponsors to submit the text under Chapter VII -- although all Security Council resolutions were mandatory according to Article 25 of the Charter -- went beyond the designated aim of endorsing the establishment of the Tribunal, especially in light of the “complicated, delicate, political situation in Lebanon”.
Qatar was simply apprehensive that the draft under Chapter VII would not bring stability to the country. Qatar would, therefore, abstain in the vote, but would continue to pursue its good offices to bring points of view in Lebanon closer, to help ensure national unity in support of the Agreement to establish the Tribunal through national mechanisms.
HASAN KLEIB ( Indonesia) pointed out that Article 19 of the tribunal agreement stated clearly that it would enter into force on the day after the Government of Lebanon had notified the United Nations that the internal legal requirements for entry into force had been met. If adopted, the draft resolution would bypass constitutional procedure and national processes. There was no legal ground for the Security Council to take over an issue that was domestic in nature. Article 2 (7) of the United Nations Charter stressed that nothing contained in it would authorize the United Nations to intervene in matters that were essentially within the domestic jurisdiction of any State.
He said that, although that provision did not prejudice the application of enforcement measures under Chapter VII, the Council should not be involved in interpreting, let alone taking over, the constitutional requirements that a State should comply with in the conduct of its authorities. Before taking action on the text, which was intended to uphold justice, the Council should consider fully the domestic situation in Lebanon, he stressed. The Council’s interference in the national constitutional process on the establishment of the Tribunal would not serve the greater interests of the Lebanese people, namely reconciliation, national unity, peace and stability. Seeking justice should neither create new problems nor exacerbate the already intricate situation in Lebanon. In light of those considerations, the Indonesian delegation would abstain from the vote.
DUMISANI S. KUMALO ( South Africa) said that his delegation unequivocally condemned the assassination of Mr. Hariri and other Lebanese leaders. Indeed, there was a consensus among all Lebanese parties of the need to bring the perpetrators of those crimes to justice. That had been the motive behind establishing the International Independent Investigation Commission and had paved the way for the establishment of a Special Tribunal. South Africa expected the Tribunal to act within the highest standards of international law, and it placed high importance on Lebanese ownership of the Tribunal and its work. South Africa hoped that the Lebanese Government would use the time between today and 10 June to reach a consensus decision at the domestic level on the establishment of the Tribunal, so that it would not be imposed by the Council.
Indeed, he said that his delegation believed that it was inappropriate for the Council to impose such a Tribunal on Lebanon, particularly under Chapter VII. To that end, South Africa had often called on the Council to be judicious in its invocation of that Article. By resorting to such a measure, the Council was contravening its own mandate under the Charter. With this action today, there was the possibility of further destabilizing the already fragile Lebanese State. Adopting the text as it stood might also politicize international law. South Africa was also concerned about the precedent that today’s action would be setting, he said, adding that South Africa would, regrettably, abstain in the vote.
WANG GUANGYA ( China) said his delegation would abstain from the vote, while deeply deploring the assassination of former Prime Minister Hariri and others. China had all along supported a fair and independent investigation into that crime and hoped that the tribunal initiative would help establish, as soon as possible, the truth of the matter and do justice for the victims. China also hoped that political and diplomatic efforts would facilitate a solution as soon as possible.
Stressing that the tribunal was essentially a domestic matter for Lebanon, he said that, by invoking Chapter VII, the resolution was arbitrarily deciding on the statute’s entry into force, which would give rise to problems and create a precedent of Council interference in the internal affairs of a sovereign State. Several members had expressed the hope that the draft would be more prudent and balanced, but that had not been the case. China had no choice but to abstain. Hopefully, at the present trying moment, the Council would stand united in promoting stability and peace in Lebanon, and refrain from triggering new tensions in the already volatile region.
VITALY I. CHURKIN ( Russian Federation) said that his delegation had consistently advocated establishing the truth regarding Mr. Hariri’s assassination. Considering the fragility of the political situation on the ground in Lebanon, and the deep rift in Lebanese society and government structures, it was incumbent upon the Council to adopt a balanced resolution that would not cause further problems. The Russian Federation had negotiated for a more balanced text, but the one before the Council, which unilaterally imposed a decision on Lebanon, was fraught with legal inconsistencies.
He said that a basis for adopting the resolution under Chapter VII did not exist. That measure had been invoked in the establishment of the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda, which both dealt with international crimes against humanity and genocide, which was not the case for Lebanon. The Council’s action today, before negotiations had been concluded in Lebanon, could be seen as interfering in Lebanese affairs. The hasty tabling of a vote on a resolution with considerable legal shortcomings had forced Russia to abstain.
JEAN-MARC DE LA SABLIÈRE ( France), welcoming the text’s adoption, said that, since an internal solution had not been found, it was an important decision for reasons of justice. It opened the door for the trial of those who were guilty of the assassination of the former Prime Minister and other such terrorist assassinations committed since October 2004. It was also important for peace in Lebanon. The refusal to accept impunity was an essential guarantee of peace. The Council could be proud of not having resigned itself to the stalemate in Lebanon and that of having assumed its responsibility to help Lebanon.
EMYR JONES PARRY ( United Kingdom), also welcoming the adoption of the resolution, said the proposed Tribunal was vital for Lebanon, for justice and for the region. Efforts to establish an internal tribunal had been thwarted and the Council’s decision was, therefore, not a capricious intervention or interference in the domestic affairs of a sovereign State. It was a decision properly taken for action to break a long-standing impasse. The adoption of the text under Chapter VII carried no connotation other than making it binding. Hopefully, all parties in Lebanon would now be able to move forward.
JORGE VOTO-BERNALES ( Peru) reiterated his delegation’s firm position to combat impunity and end all acts of terrorism in all its forms. With that in mind, Peru had supported the Council’s action today, especially given the need to ensure that justice was done, which was essential to restoring peace and security in Lebanon and elsewhere. Further, a majority of the Lebanese Parliament had clearly supported the establishment by the Council of the Tribunal. He hoped that the Parliament could be convened so that it could complete the internal constitutional process that would lead to the establishment of the Tribunal in the allotted time. Peru believed that the imposition of Chapter VII should not constitute a precedent and should only apply to this particular case.
JOHAN C. VERBEKE ( Belgium) said that, through the adoption of the resolution, the Council had reaffirmed its stance to ensure stability and peace in Lebanon. The fight against impunity was essential to that effort. His delegation had decided to support and co-sponsor the text and believed that it was not an attempt to prejudice the decisions to be made by the Government. He hoped that implementation of the resolution and the establishment of the Tribunal would promote stability and strengthen the rule of law, which was the aim of the Lebanese Government.
DUŠAN MATULAY ( Slovakia), stressing that impunity must never be tolerated, said the establishment of the Tribunal was necessary in order to bring the perpetrators of the assassination to justice. Unfortunately, all available means had been exhausted and the Council had to assume its responsibilities. The resolution of the issue would contribute to national reconciliation in Lebanon.
MARCELLO SPATAFORA ( Italy) said the text flagged the Council’s strong support for the sovereignty and independence of Lebanon, and the belief that justice was a condition for national reconciliation and stability. Hopefully, internal players would find the right path to implement the Tribunal agreement in the coming weeks.
Council President ZALMAY KHALILZAD ( United States), speaking in his national capacity, said that, by adopting the text, the Council had demonstrated its commitment to the principle that there would be no impunity for political assassinations, in Lebanon or elsewhere. Those who had killed Rafiq Hariri, and so many others, would be brought to justice and held responsible for their crimes. Those who might be tempted to commit similar crimes would know there would be consequences for perpetuating Lebanon’s troubled history of political violence and intimidation. It had been necessary and right for the Council to act.
Recalling that the Council had approved the tribunal agreement and statute on 21 November 2006, he said that, since that time, Lebanon’s legitimate and democratically elected Government and parliamentary majority had tried every possible means to convince the Speaker of Parliament to fulfil his constitutional responsibility to convene Parliament so that final action could be taken, but to no avail. Several influential parties had visited Lebanon in an effort to find a framework in which Parliament could be convened. They included the Arab League, United Nations Legal Counsel Nicolas Michel and the Secretary-General himself. After five months of tireless efforts to reach a solution, the Prime Minister had sent the Secretary-General a letter asking that the matter be put before the Council for a “binding” decision to establish the Special Tribunal. The Secretary-General had endorsed that request one day later, after concluding that all diplomatic efforts had been exhausted.
He said the United States would have preferred that the Lebanese ratify the tribunal agreement and statute, but that had not been possible. In the days ahead, all parties were urged to act responsibly and abide by their obligations to support Lebanon’s sovereignty and political independence. The United States had concluded that failure to act in support of Lebanon was unacceptable. There could be no peace and stability without justice. The United States reaffirmed its support for Lebanon and, with the passage of the resolution, it was confident that the Security Council would live up to its commitment to support Lebanon in its pursuit of justice.
TARIK MITRI, Minister of Culture and Minister of Foreign Affairs of Lebanon, said that the Security Council had never hesitated in expressing its support and commitment to Lebanon and its sovereignty and independence in the wake of the Mr. Hariri’s assassination and the political assassination of other Lebanese leaders. The Council’s action today, binding under Chapter VII, left no doubt of its continued support. The Council had also stood by Lebanon in the face of Israeli aggression last year and had called on the international community to play its role in ending that crisis. He reiterated that the Council’s action today, which had been “meticulously considered”, would underpin efforts to ensure peace and stability in Lebanon.
The sponsors of the text had enhanced the credibility of the Council and the wider United Nations, he said, adding that even those that had abstained in the vote had, nevertheless, expressed their commitment to the prime importance of the establishment of a tribunal to bring about justice and end impunity. He also thanked the Secretary-General for his unswerving commitment to the establishment of the Special Tribunal, which had been “at the top of his list” since his election. He assured the Council that all efforts had been taken, right up to the time of the present meeting, to ensure that domestic actions would lead to the acceptance of the agreement on the establishment of the Tribunal. Nevertheless, despite the fact that a majority of Parliamentarians had supported the Tribunal, its adoption had met with countless obstacles.
The Tribunal would act as a deterrent to those who would commit heinous acts, and would enhance freedom and allow the people of the country to live free from fear of such action. The Council’s creation of the Tribunal was not a victory of one party over another: “Justice will be the victor,” he declared. The resolution did not pit one group against another or play one part of the international community against another. It would strengthen unity, strengthen judicial systems and strengthen the hopes of the Lebanese people, all of whom were striving to move forward in the name of justice and stability. With the resolution just adopted, the Council was bearing in mind all assassinations in Lebanon, which threatened peace and security in Lebanon and around the world. With the adoption of the text, his Government would commemorate the memory of Mr. Hariri and all martyrs brought down by terrorist hands.
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For information media • not an official record