The Oddity that is the Hariri Tribunal

This article analyzes the nascent Special Tribunal for Lebanon, recently established by the UN Security Council to try those responsible for the assassination of the former Lebanese Prime Minister, Mr. Rafik Hariri. This Tribunal is deserving of scrutiny not simply because it is new, but also because it is rather unique among its siblings, the other international criminal courts and tribunals, in several respects. First, the circumstances of the Hariri Tribunal's creation are, to put it mildly, somewhat out of the ordinary. It has been established to try the perpetrators of a single murder (and certain related crimes), while all other international criminal tribunals were created to try perpetrators of mass atrocities. Furthermore, even though the Tribunal was originally meant to be an 'internationalized', hybrid criminal court, akin to the Special Court for Sierra Leone (SCSL) or the Extraordinary Chambers in the Courts of Cambodia (ECCC), it was in fact created by the Security Council by a resolution passed under Chapter VII of the UN Charter, due to the inability of the Lebanese government to ratify the treaty establishing the Tribunal for internal political reasons. Probably acting out of a desire to maintain appearances, however, the Council decided to promulgate into force that same unratified treaty by its resolution, instead of opting for a somewhat clearer solution of a UN court as the Council's subsidiary organ, as it did in the cases of the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In Section 2, this article tries to ascertain how the Council's decision fits within the framework of the UN Charter, and analyzes the issue of the Tribunal's legality, which will undoubtedly be raised by defence counsel in a future case. The second distinctively odd thing about the Hariri Tribunal is the untidy assortment of substantive and procedural law that it will be applying. First of all, even though the Report on the creation of the Tribunal by the UN Secretary-General, prepared by the UN Legal Counsel, entertained the possibility that the assassination of Mr. Hariri satisfied the customary requirements for a crime against humanity, making it therefore a crime against international law, the final Statute of the Tribunal as adopted by the Council does not make that qualification. Consequently, the Tribunal is the first international criminal court which will try persons who are accused solely of violating domestic, not international criminal law. Indeed, Article 2 of the Tribunal's Statute prescribes that the source of substantive criminal law that the Tribunal will be applying is the Lebanese Criminal Code. In another odd development, however, Article 3 of the Statute applies to these crimes forms of individual criminal responsibility which are almost uniquely international in character, such as common purpose liability (joint criminal enterprise) and superior (command) responsibility. In Section 3, this paper attempts to establish whether this poses any nullum crimen sine lege problems for the Tribunal's operation. The Tribunal, moreover, introduces some significant features of civil law systems, most notably trials in absentia, for the first time in international judicial practice. These are also addressed in Section 3, while Section 4 provides some concluding remarks. Note: Paper presented at the annual AHRI/COST conference held in Belgrade in September 2007. A revised version of section 3 of this paper is forthcoming in a symposium edition of the Journal of International Criminal Justice (Vol. 5, 2007, published by Oxford University Press).