Daoud Khairallah: STL Can’t Judge Lebanese Justice

Will the judges of the Special Tribunal for Lebanon, charged with investigating the assassination of former Lebanese Prime Minister Rafik Hariri, issue a historic judgement on the illegitimacy of the creation of the tribunal on an international level or will they not dare to put the principles of justice above power politics?

Al-Akhbar: The Trial Chamber at the Special Tribunal for Lebanon (STL) held two sessions last week to hear arguments by the defense counsel challenging the legality of the tribunal’s creation in accordance with United Nations Security Council (UNSC) resolution 1757 (2007). A ruling is expected to be made in the coming few weeks. What are your predictions based on your experience as a professor of international law at Georgetown University (Washington DC) and a person who has followed the case from the very beginning?

Daoud Khairallah: If the STL has integrity, independence and competence, I expect it to accept the motions challenging its legality.

AA: Why?

DK: To answer this question, I have to go back to the first tribunal established by the UNSC, The International Criminal Tribunal for Former Yugoslavia (ICTY), and specifically to the case of the accused Dusko Tadic whose lawyers argued for the tribunal’s illegality on the grounds that the UNSC does not have the power to establish these tribunals. Their argument was that the UN Charter does not give the UNSC this power.

The court rejected the arguments on the grounds that it doesn't have the power to determine the validity of what is established by the Security Council (SC).

When the lawyers appealed the court’s decision and the matter was referred to the Appeals Chamber, the late Judge Antonio Cassesse (who presided over the STL after it was established) ruled that the UNSC can not be free of all legal limitations, but is rather bound by certain standards, such as the UN Charter and jus cognes (binding international law).

The Appeal Chamber decided that the UNSC did not exceed those standards by establishing the ICTY whose jurisdictions, it was determined, applied to war crimes and crimes against humanity committed during an armed conflict extending in time and place and that those crimes constituted a threat to international peace and security.

This, the court decided, justified the establishment of an international tribunal by the UNSC, which enjoys wide discretionary powers to maintain international peace and security.

But all these criteria do not exist in the case of the Hariri assassination. There was no threat to international peace and security and no war crimes, crimes against humanity or crimes against international law were committed [which is why the STL applies Lebanese and not international law].

The UNSC established the ICTY unilaterally and under Chapter VII of the UN Charter, whereas the legal basis for the STL is an agreement [between the Lebanese government and the UNSC] that does not satisfy constitutional requirements, which makes it a non-existent agreement. The [Lebanese] President did not negotiate it and the parliament did not discuss it as article 52 of the constitution stipulates.

AA: But Prosecutor Norman Farrell argued that Speaker [of the Lebanese parliament] Nabih Berri violated the parliament’s rules of procedure by not calling the parliament to convene in order to discuss and vote on the agreement...

DK: I will not discuss Speaker Berri’s justifications, but what the prosecutor is reported to have said is considered a blatant interference in Lebanese affairs and this tribunal has no right to look into the constitutionality of laws. This is a complete surrender of national sovereignty and I hope the Lebanese judges at the STL will take note of that!

AA: The STL said that the Lebanese judiciary is unable to achieve justice. Wouldn’t that allow for the acquittal of Israel’s spies who were found guilty by Lebanese courts?

DK: The STL has no jurisdiction to consider the ability or lack thereof of the Lebanese judiciary to achieve justice. It is within the jurisdiction of the Lebanese judiciary to look into crimes committed on Lebanese soil and no foreign party has the right to make decisions about that.

One reason the STL justifies resorting to an international tribunal to investigate Hariri’s assassination is the inaptitude of the Lebanese judiciary. But no court has the right to decide whether the Lebanese judiciary is capable of considering any case that falls under its jurisdiction. This is at the heart of Lebanese sovereignty.

AA: What about the Lebanese judges at the STL?

DK: They have a chance to rehabilitate the Lebanese justice system that has been deemed unable to make right and achieve justice. They have an opportunity to defend Lebanon’s sovereignty and preserve all the marks of sovereignty that lie with the Lebanese judiciary.

AA: Will a Lebanese judge bite the hand that feeds him a salary multiple times higher than those of his colleagues at Lebanese courts?

DK: This depends on the character of the judge and how much respect he has for himself. What drives him to fulfill his duty is supposed to be above any compensation.

AA: Who sold Lebanese sovereignty?

DK: The government that signed the agreement that led to the establishment of the STL. It was a complete surrender of sovereignty.

AA: Do you mean the 2007 government of former Prime Minister Fouad Siniora?

DK: I mean the party that consented to the agreement. I think it is unlikely that the Lebanese party had the intention of surrendering Lebanese sovereignty.

AA: Are you saying that the Siniora government was unaware of what it was doing, that by accepting this agreement it was surrendering national sovereignty?

DK: I want to mitigate Siniora’s blame by saying that he was acting out of ignorance. Nothing in the agreement indicates an intention to surrender sovereignty in view of the constitutionality of the actions of the parliament, its speaker and the rest of the official Lebanese institutions. I do not think Siniora intentionally wanted to do that.

AA: Is it possible for this tribunal to hold the UNSC accountable for its decision to establish it?

DK: The tribunal has to consider the legitimacy and legal justifications of UNSC decisions. If it finds them wanting, it should declare that, and its decision should reflect its convictions.

AA: Is it true that a judgement on the illegality of the UNSC decision would not result in sanctions but would constitute a precedence that could strip some of its powers?

DK: Such a precedent will not strip the UNSC of any powers it has in accordance with the UN Charter but it would put limits on the SC’s violations of the Charter and international law.

AA: Do you think the SC and specifically the powerful forces within it will be lenient with a judicial body passing judgement on the legality of one of its decisions?

DK: The beauty of the justice system rests in the judge’s commitment to the principles of justice. A judge’s loyalty to these principles is the most important value and the primary drive behind bold decisions. Herein lies the difference between an honest, courageous and independent judge and a judge who is swayed by the winds.

---

Antonio Cassesse: This Is Politics!

Al-Akhbar asked the former President of the Special Tribunal for Lebanon the late judge Antonio Cassesse, on 23 April 2009 why 1,300 Lebanese were killed in the 2006 Israeli war on Lebanon and no international tribunal was established for them while one man was assassinated and he will have an international tribunal?

Cassesse said: “I agree with you, but this is politics. You should blame the politicians in New York who decide not to take any measures regarding the crimes in Gaza and South Lebanon while they take measures in the case of Rafik Hariri’s assassination. This is politics. Don’t blame us, we are outside politics. We are not politicians. We are professionals who were asked to achieve justice in a specific case. I personally signed a petition directed to the United Nations Secretary General demanding that a fact-finding mission be sent to Gaza. But nothing happened.”

This article is an edited translation from the Arabic Edition.