Danger still stalks the Hariri tribunal

The Daily Star - Danger still stalks the Hariri tribunal, September 28, 2007

Unless the new president of Lebanon is fully committed to the mixed Lebanese-international tribunal to punish those involved in the assassination of the former prime minister, Rafik Hariri, creation of the tribunal will be further delayed, if not effectively stopped. The experience of United Nations-established tribunals, all five of them, underlines a simple fact: International justice benefits immensely in specific countries if the president is committed to it. The first prototype of international justice was the International Criminal Tribunal for the former Yugoslavia. The ICTY was established by the UN Security Council in May 1993, after a year-long UN commission of investigation. It was ineffective for crimes perpetrated in Serbia until President Slobodan Milosevic was driven from power in 1999, before later being surrendered to the court. In contrast, elsewhere in the Balkans the ICTY benefited from the early support of the president of Bosnia-Herzegovina, and eventually of Croatia. In addition, the establishment of the tribunal and the role of the UN prosecutor in the indictment of Milosevic during the Kosovo war played a key legitimizing role for the Serbian people's opposition to his considerable crimes.
The same pattern obtained with the International Criminal Tribunal for Rwanda, created in 1994; the International Criminal Court (ICC), established in 1998 by treaty, but which became effective in 2002; the Special Tribunal for Sierra Leone, also set up in 2002; and the Special Tribunal for Cambodia, established in 2007. In 2006, the ICC indicted two individuals in Darfur responsible for crimes against humanity, a year after the Security Council extended its jurisdiction to the Sudan conflict. However, the prosecution is finding it extremely difficult to operate with the government in Khartoum actively opposing the court. The Cambodia tribunal has just started its work. The long delay in its establishment - roughly three decades after the 1975-1979 genocide - was due to the opposition of successive Cambodian governments, which dallied and stonewalled, despite immense international pressure to bring to justice Khmer Rouge mass murderers. In contrast, the Rwanda tribunal and the Sierra Leone tribunal (after which the Lebanon tribunal is modeled) received the backing of their respective governments in a way that helped accelerate the tribunals' work, making both legal venues far more effective. Whatever lack of effectiveness they might have displayed came from internal bureaucratic slowness and the uneven quality of judges and prosecutors. An international pattern therefore emerges: Where the executive opposes international justice, a court's work becomes much more difficult, even if the tribunal is set up with the full backing of the UN Security Council. The emergence of the Lebanon tribunal confirms the international pattern. The tribunal has taken long to be established because of opposition to it by senior figures in the state when the idea first surfaced, as well as a systematic pattern of assassinations after June 2005. Then, even with a Siniora government generally supportive of the tribunal, the sometimes implicit, sometimes explicit opposition to the tribunal by the pro-Syrian camp, some of whose members were represented in the government, delayed establishment of the tribunal for several months. A president committed to justice would have ensured a far quicker tribunal. A noncommittal president, in turn, has the latitude to undermine the Lebanon tribunal by creating an adverse atmosphere and encouraging impunity. The full support of the presidency is also essential legally, because too many of the court's actions depend on Lebanese law for the tribunal to be wholly effective. Three examples that go to the heart of the tribunal's vulnerabilities are significant in this regard. First, under Article 2 of the tribunal's statutes, Lebanese law remains the central legal reference for the tribunal. A president opposed to, or even just lukewarm toward, the tribunal has the means to undermine its work in the way he chooses to apply Lebanese law. In the Lebanese Constitution, the president is officially "the protector of the Constitution," and he can use his prerogatives to argue that the tribunal's operations jar with Lebanese law in a variety of ways, including through a wide interpretation of the immunity of domestic and foreign officials, protecting eventual indictees. Second, another easy way for the president to oppose the Lebanon tribunal is through his power over Lebanese judges. Through the Ministry of Justice, the president can question the appointment of judges, make it difficult for them to carry out their duties in Lebanon, punish them by opposing their advancement once they complete their mandate, and create an atmosphere of intimidation that cripples their work.
Third, a president can gum up the legal and administrative machinery of the tribunal. Article 8 of the statutes states: "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." If the government, under the president's impulse and effective veto power, delays the office's work, or even opposes it, its establishment and operations may be seriously hindered. This is also true for the financing of the tribunal - just under half of whose expenses are covered by the government. The president's refusal to sign the disbursement decrees will directly affect funding of the tribunal. These potentialities should make us wary before assuming that the Lebanon tribunal's effectiveness is a foregone conclusion. The devil is in the details, and there are many ways the tribunal can yet be obstructed. Only if Lebanon has a president fully committed to international justice can the tribunal overcome the immense hurdles awaiting it.
Chibli Mallat, S.J. Quinney professor of law at the University of Utah and EU Jean Monnet
professor at Saint Joseph University in Beirut, has litigated major international criminal trials. He is a candidate for the Lebanese presidency. He wrote this commentary for THE DAILY STAR.