First person by MUHAMAD MUGRABY
Editor's note: The following is the second half of an article on the Lebanese legal system and the drive to try suspects in the murder of former Prime Minister Rafik Hariri. The article was first published by the Center for Democracy and the Rule of Law in Beirut and is republished with permission. The first part of the article appeared in Monday's issue of The Daily Star.
The Rise and Assassination of Rafik Hariri
Rafik Hariri was a tycoon who made his fortune in Saudi Arabia where he also lived most of his adult life. His main business vehicle was Saudi Oger, which he acquired from French owners. He had arrived in Saudi Arabia from his native Lebanon in the early 1970s penniless and with little education. His meteoric rise in wealth and power within a span of less than a decade is baffling and is reminiscent of the rise of the British media magnate Robert Maxwell. Rumors placed him as one of the principal front-men of Saudi royalty. Early in his career he came to Lebanon wearing Saudi headgear and bearing the title of the "Saudi mediator."
In 1983 he brought heavy equipment from Saudi Arabia and commenced the demolition of partially damaged, but mostly repairable, buildings in Beirut, or "the City," with the consent and support of President Amin Gemayel. In the early 1990s many of the buildings that could not be levelled by Oger bulldozers were demolished by Hariri-controlled crews using explosives. Officially, the demolition of the City was blamed on wartime militiamen, but many Lebanese believe that all this was part of the preparation for the takeover of the City by Solidere.
In 1989 Hariri played a central, though discreet, role in finalizing the Taif Accords. Enemies of Hariri and supporters of General Michel Aoun claim that Saudi money was poured generously into the pockets of the Lebanese MPs present at Taif to facilitate the results. On October 13, 1990, Lebanon fell under total Syrian hegemony. Hariri promptly returned to Lebanon and waited patiently as two successive cabinets expired before he was installed, under Syrian sponsorship, as prime minister in 1992. Great hopes were pinned on his ability to lead the country into an era of peace and prosperity.
Despite having absolutely no political experience from his time in Saudi Arabia, Hariri became the Syrian choice, partly due to his Saudi credentials and wealth. Furthermore, Hariri had succeeded in weaving bonds of close friendships and association with powerful Syrian figures such as Vice President Abdel Halim Khaddam, Army Chief of Staff Hikmat Shehabi and Syria's resident viceroy in Lebanon, General Ghazi Kenaan. Finally, he had become a supporter and confident of Jacques Chirac, who was soon to serve as president of France (1995-2007).
Khaddam, Shehabi and Kenaan enjoyed the confidence of President Hafez Assad and, between them, exercised control over Lebanon. They gave Hariri such firm support that he eclipsed the Syrian-chosen president whose office had already been stripped of most of its constitutional powers under the Taif-mandated constitutional amendments. Hariri, Chirac, Khaddam, Shehabi and Kenaan acted as senior partners in a consortium of sorts combining powerful political and economic interests.
Hariri's consortium appears to have survived him. The Lebanese government under Hariri ran huge budget deficits, borrowed heavily, and issued Lebanese treasury bonds to support borrowings, repayment and accumulated interest. As a result, the nation's public debt is currently estimated to have exceeded $50 billion with no plan in sight to amortize the debt.
When General Emile Lahoud was elected president in 1998, under the usual Syrian sponsorship, he wanted Syrian General Kenaan transferred away from Lebanon, but his wish was not granted by Syrian President Assad. In June 2000 Assad passed away and in the following month his son Bashar was installed in his place. In the early days of his presidency, Bashar Assad was influenced on Lebanese affairs by the more experienced Hariri associates Khaddam and Kenaan. Khaddam, helped by Kenaan, was instrumental in choosing Lebanese cabinet members and members of parliament.
Kenaan is widely credited with authoring Lebanon's general elections law of January 6, 2000, which was designed to further the political fortunes of Hariri and his close allies. Hariri won the elections of October 2000, and on October 26, 2000, was, on Bashar Assad's orders, appointed prime minister. Part of the price of Hariri's appointment was Bashar's eventual accession to Lahoud's request to transfer Kenaan out of Lebanon. Assad eventually transferred Kenaan to another assignment in Syria.
Kenaan did not leave until a lavish ceremony, hosted by Hariri, was held at the prime minister's office at the Grand Serail on October 9, 2003. The president of the Beirut municipality, a Hariri loyalist, gave a farewell speech and presented the outgoing Syrian general with the key to Beirut, which was followed by an acceptance and thank-you speech by Kenaan and, finally, by a speech by Hariri who lavished praise on Kenaan for his "accomplishments" in Lebanon.
President Bashar Assad had resolved, as one of the early goals of his presidency, to retire the old guard who had served his father. First General Shehabi was retired as the army's chief of staff, and he soon travelled to the United States via Beirut to settle there. Then Khaddam lost his powers bit by bit until his eventual retirement became inevitable. Kenaan had become the minister of interior of Syria, a position which yielded no military power.
Suddenly Hariri realized that he was losing valued Syrian pillars of his consortium, and with them his assured Syrian support. Nevertheless, Hariri supported the constitutional amendment to extend Lahoud's term. He attended parliament on September 4, 2004, and voted for the amendment. Upon the beginning of Lahoud's extended term, Hariri submitted his resignation in accordance with the constitution.
Several months after the assassination of Hariri, General Ghazi Kenaan reportedly committed suicide in his office at the Interior Ministry, Damascus. Soon thereafter Abdel Halim Khaddam was stripped of his office as vice president, defected to France and is currently being prosecuted in Syria for high treason. It is not impossible that some form of a conspiracy, never disclosed to the public, involved Khaddam, Kenaan and others with the aim of overthrowing President Assad, as suggested by author Nicholas Blanford in his book, Killing Mr. Lebanon. According to this version, Kenaan, when confronted with the evidence, chose to commit suicide rather than face disgrace. It is highly doubtful that Hariri had any personal knowledge or involvement in the conspiracy.
Political assassinations are not new to Lebanon. The first prime minister in the independence era, Riad al-Solh, was assassinated in 1951. The list of those assassinated before Hariri is long. Prominent journalists, members of parliament and Muslim religious leaders were assassinated as well, before, during and after the war on Lebanon. Starting from 1957 the list includes editors of daily or weekly papers: Nasib Metni, Riad Taha, Kamel Mroueh and Salim Lozi. Assassinated members of parliament include Mohammad Abboud, Naim Mghabghab, Marouf Saad, Kamal Jumblatt, and Nazem al-Qadri. Former MP, minister and militia leader Elie Hobeika and party leader and former militia leader Dany Shamoun were assassinated, the latter with his wife and two small children. MP Toni Franjieh was assassinated with his wife and little girl as part of the Ehden massacre that took over 30 other lives.
Four Muslim Sunni religious leaders were assassinated, namely, Grand Mufti Sheikh Hassan Khalid, Sheikh Sobhi Saleh, Sheikh Ahmad Assaf and Sheikh Nizar Halabi. A Shiite religious leader, Imam Mousa Sadr, disappeared without trace with two companions, journalist Abbas Badred-dine and Sheikh Mohammad Yakoub, while they were in Libya as guests of the Libyan government, and are presumed to have been assassinated. Many prominent writers, including Kamal el Haj, Husain Mroueh and Hasan Hamdan, were gunned down. Political party leaders such as Khalil Naous, Isam Arab, Ramzi Irani, Adnan Sinno and Wisam Zenid-dine were assassinated. Many foreign diplomats were murdered, including an American ambassador and two of his companions (the kidnappers were arrested and brought to trial but were freed pursuant to one of the amnesties), French, Iraqis and Jordanians.
Four Iranian diplomats were kidnapped and presumably assassinated. Two embassies, the American and the Iraqi, were blown up with heavy casualties.
Malcolm Kerr, president of AUB, was assassinated. A prominent Iraqi exile, Sheikh Taleb Tamimi, was murdered and his accused killers, diplomats with the Iraqi Embassy, were allowed to leave the country due to their diplomatic immunity. One sitting president, Rene Muawad, and one president-elect, Bashir Gemayel, were assassinated. A sitting prime minister, Rashid Karameh, was assassinated in 1987.
An attempt was made on the life of another sitting prime minister, Salim Hoss, from which he escaped miraculously, but others died.
Most of those crimes either went unresolved or unpunished or were whitewashed by general amnesty.
This long list of crimes does not make the assassination of Hariri a lesser crime or less deserving of prosecution and punishment. But there is no logical or moral basis for fully investigating, and eventually prosecuting, the Hariri case to the exclusion of all the previous cases.
Nor is there at this point sufficient evidence to justify the instant and persistent stigmatization of Syria in the assassination and every subsequent and preceding political crime.
The Hariri Tribunal is openly viewed by Syria's Lebanese adversaries, formerly its allies, as the vehicle to indict and bring down the entire Syrian regime. This approach may also be favored by the United States and France, which aim at obtaining major regional political concessions from the Syrian leadership. If true, it turns the proposed court into a potent political and strategic instrument.
Ideally, an investigation into the possible role of foreign governments should not start out by excluding any country. Western as well as Middle Eastern governments have in the past carried out political assassinations. The Israeli government, for one, cannot be excluded, as it has a proven history of such state-ordered crimes, particularly in Lebanon, which many Israeli leaders unabashedly brag about. This is not meant as an indictment of Israel in the Hariri murder. The point being raised is that the zeal to incriminate Syria has unjustifiably and prematurely eliminated all other options before any evidence has been presented.
The Judge Selection Process and the "Free Gasoline" Episode
The proposal for the Hariri Tribunal calls for the appointment by the UN secretary general of its judges from among Lebanese and non-Lebanese candidates.
Regardless of the legality issues affecting the Hariri court proposal, the process of judge selection ought to be open, transparent and subject to contribution by qualified jurists led by judges of the International Court of Justice.
The sad experience of the Solidere commissions should not be repeated. An open process could enhance the credibility of the Hariri court, especially since its purported raison d'etre is the perceived inability of the domestic Lebanese justice system to cope with the Hariri assassination case. The authority to appoint judges should be vested exclusively in the Lebanese government in accordance with due Lebanese constitutional and legal process. Judges should be accountable from all aspects in accordance with Lebanese law.
The "free gasoline" episode, described below, makes it very questionable that such a procedure can be followed.
On July 12, 2007, an application was brought before a chamber of the Lebanese Court of Cassation headed by Judge Ralph Riashi, to transfer, for legitimate suspicion, the Hariri murder investigation case, currently seized by Lebanese justice authorities, from Justice Investigating Judge Elias Eid who had been entrusted with it since March 24, 2005, to another judge.
Judge Riashi had been a key Lebanese negotiator on behalf of the Lebanese Ministry of Justice and had conducted discussions with the office of the secretary general over the drafts for the proposed Hariri court instruments. Riashi's conduct of negotiations on behalf of the minister of justice was obviously in blatant violation of the constitutional rule of separation of powers and of the constitution that plainly gives the president of the republic exclusive power over the negotiation of international agreements.
On September 6, 2007, the Riashi court admitted the request and recused Eid on the basis of solid evidence that he had been regularly receiving from the Surete Generale, Lebanon's political police and intelligence service, 300 litres of premium gasoline per month for free, beginning from February 2003.
General Jamil Al-Sayed, until recently director general of Surete Generale, is under arrest in the investigation of the Hariri murder.
Even more troubling, Judge Eid was not alone in receiving Surete Generale favors. It turns out from documentary evidence on file in Riashi's court that many other prosecutors and judges are or were in the same boat as Eid. Prominent among them are Said Mirza, chief public prosecutor before the Court of Cassation and Adnan Addoum, his predecessor. Documentary evidence received by the Riashi court on July 27, 2007, from the minister of the interior in the said recusal proceedings also implicates the last three presidents of Higher Judiciary Council: Mounir Hunain, Nasri Lahoud and Tanios el Khouri, judicial inspector general and former first investigating judge for Mount Lebanon Fawzi Dagher, and the public prosecutor for Beirut Joseph Maamari.
The Surete Generale is not exactly the KGB but has, by law, many of its functions. Why it would it deliver free premium gasoline to prosecutors and judges, and what it expected from them in return remains an open question. What is clear is that the key Lebanese prosecutors and the investigating judge designated for the Hariri murder investigation, who all worked closely with the UNSC-appointed commission, benefited illicitly from the Surete Generale free gasoline scheme. It is less clear how many of the nominees to the Hariri court have benefited similarly.
All this leads to the inevitable conclusion that the integrity of the Hariri murder investigation, as well the future process of the Hariri court, could have been seriously compromised.
The Power to Create Special International Courts
The Hariri court is based on an exception to the basic principle of national sovereignty in the United Nations Charter (Article 2, paragraph 1) namely the application of enforcement measures stipulated under Chapter VII (Article 2, paragraph 7 UNC). Enforcement measures presuppose the existence of an international dispute, likely to threaten international peace and security, arising between states that have failed to settle their conflicts under Chapter VI on the Pacific settlement of disputes. Article 33 of this chapter reads:
1. The parties to any dispute, the continuance of which is likely to endanger the international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice.
As a general rule, Article 36, paragraph 3 of the UNC requires that legal disputes be referred by the parties to the International Court of Justice. In fact, Article 7 UNC makes the International Court of Justice one of the principal organs of the United Nations on a par with the General Assembly and the Security Council, and Article 1 of the court's statutes recognizes it as the principal judicial department of the organization. It is therefore inconceivable that the Security Council derives from the UNC any power to create other courts of law.
Despite the fact that the UN Security Council lacks any such authority in the charter, it did act to create two international penal courts basing itself on Chapter VII UNC which provides it with no such power, namely the International Court for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, of May 25, 1993, and the International Tribunal for Rwanda, of November 8, 1994. The crimes and violations covered by the mandate of these tribunals were committed in war situations where multinational military forces, in the case of the former Yugoslavia, and UN Forces, in the case of Rwanda, had operated. In addition, the UNSC approved the establishment of the Special Court for Sierra Leone, of August 14, 2000, in agreement with the government.
In stark contrast to the these three tribunals, the Extraordinary Chamber in the Courts of Cambodia (ECCC) was established in 2001 by legislation passed by the Cambodian National Assembly and welcomed by Resolution 57/228 of the UN General Assembly which was followed by an assistance agreement between the Cambodian government and the secretary general. ECCC has a majority of Cambodian judges and operates in Cambodia as a part of the Cambodian judicial system. The common denominator of all the above mentioned courts is their mandate to prosecute and try individuals for crimes against humanity such as genocide and violations of the Geneva Conventions and international humanitarian law.
The proposed special court for Lebanon is different. To begin with, it totally ignores all previous crimes against humanity or in violation of international humanitarian law. The proposal also ignores similar criminal acts committed by state parties in the context of regional military conflicts involving Lebanon, such as Israel, the United States and other state parties. Some may argue that such a court is politically unfeasible but no one can deny that it is morally imperative. In ignoring the regional dimensions of Lebanon's bloody past, the UNSC has departed from former practices in Yugoslavia, Rwanda, Sierra Leone and Cambodia.
Moreover, the legal basis for the court, UNSC Resolution 1757 of May 30, 2007, has an inherent contradiction when "reiterating its call for the strict respect" for the sovereignty and political independence of the Republic of Lebanon under "the sole and exclusive authority" of its government, but at the same time deciding that the provisions of the agreement said to have been entered into between the government of Lebanon and the secretary general "shall come into effect."Article 52 LC requires the prior approval of parliament for the ratification of such agreements.
Furthermore, the power to enter such agreements and to ratify the same, after the authority of parliament is obtained where required, is vested exclusively with the president. The prime minister, though entitled by the constitution to speak for the Council of Ministers and its policy domestically, is not authorized by the constitution to represent the state, the Republic of Lebanon, either domestically or internationally.
Decreeing into force a draft of an agreement that has not been duly executed or duly ratified by the Republic of Lebanon in accordance with its constitutional process is, unquestionably, outside the powers of the Security Council. By accepting to force the tribunal through, the Council has unwittingly engaged in the domestic game of one-time exceptions, on the assumption that justice cannot not be done within a strictly Lebanese judicial environment.
Conclusion
The Security Council should not function in violation of UNC or the constitutions and internal legal systems of UN members with the impunity that is so characteristic of Middle Eastern politics. It is undeniable that something is grossly wrong with the judiciary in Lebanon, as this article has documented.
It is the duty of the Lebanese government to introduce such comprehensive reforms to the judicial system as may be reasonably necessary, possibly with the support of the United Nations. It is even understandable to provisionally borrow foreign judges, like the old "Mixed Courts" of pre-independence Lebanon did, in a possible imitation of the example of Cambodia, a country with a legal tradition largely similar to Lebanon's.
However, it is morally wrong to single out one murder case for a quasi international tribunal that would cost more that the entire Lebanese court system combined. While the author fully supports universal jurisdiction, he strongly believes that such jurisdiction should supplement, and not replace, domestic jurisdiction.
What is urgently needed to support the credibility of the United Nations, and more particularly the credibility of the Security Council and the office of the secretary general, is to also show prompt serious interest in swiftly achieving three much needed reforms:
First, a sweeping overhaul of Lebanon's justice system, with the utilization of available resources equal or superior to those used or to be used in the independent commission's investigation and the Hariri court itself, with the aim of ending the environment of impunity, immunity, none-accountability and establishing the rule of law.
Second, with strong UNSC support, establishing a potent international human rights court for the Middle East and North Africa with original jurisdiction over violations of human rights, humanitarian law, abuse of power, and denial of justice, which would have the power to hear original complaints, the power to hear appeals from decisions of domestic courts, and the power to order penalties, sanctions and reparations. Sovereign immunity should not be allowed to be pleaded as a defence in such a court.
Third, The UNSC should conduct itself strictly within the powers explicitly granted to it by the UN Charter and thereby set an example to the UN members of the fullest respect for the rule of law.
The Hariri court, with the proper and transparent selection of judges as herein proposed, can and should be set up in conformity with due Lebanese constitutional and legal process guided by the Cambodian example. Furthermore, the above mentioned vital reforms should concurrently, seriously and credibly be implemented, backed by adequate resources. All this could add to the rise of the rule of law, in Lebanon, the Middle East and North Africa and the world
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