Will the Hariri Tribunal get UN approval?

A number of political analysts are coming to the conclusion that the international tribunal that is has been called for by the UN to try the Hariri murder case will be established under chapter 7 status by the UN Security Council. This would mean that the approval of Lebanon's Parliament would not be required for the tribunal to move forward.

Nicolas Michel, UN Undersecretary General for Legal Affairs, is in Beirut to make an assessment on how to proceed. He says he came to Lebanon to forge an agreement between the governing coalition and the opposition if he can. Everyone thinks he will return to NY unsuccessful, thereby sparking a move to get the court established under Chapter 7.

An analyst friend of mine in Washington wrote the following assessment when I asked him whether he believed the UN would pass a Chapter 7 resolution even though Russia seems to be playing for time. He responded:

The tribunal is less driven by the fortunes of Bush than you think. There is a real bureaucratic and policy consensus at this point that drives the process. This is not a mere Bush fantasy, this is an consensual approach of the US, Canada, the EU, key Arab states, implemented though UNSC resolutions and actions. It won't survive after 2009, but until then, that's what policy toward Syria and Lebanon will look like.

I think that at this point, the tribunal would pass under chapter VII, not without some diplomatic involvement though. But China and Russia would not veto something that the EU wants so badly (and it is not just a Chirac thing – Merkel and Blair are fully behind it). For Russia, it is a matter of which fight to pick with the US. And it voted in favor of sanctions with Iran, contrary to what many expected. The Russians, Europeans and the Americans are engaged in a real strategic arm-wrestle in Eastern Europe and over energy. Not the moment to make things worse.

If Russia were brought on board, China would certainly not vetoed. China has a record of never casting the only veto. China will only veto if Russia does so. Worse-case scenario: they abstain.

Despite the tensions with the US, Russia is trying to build an image of a responsible power. What it would love is to broker a deal that is face-saving to Syria (ie. Bashar sacrifices Sleiman and/or Assef and survives). But for this, you need Syria to show some flexibility. Hasn't been the case so far. They turned down Egyptian and Saudi face-saving proposals, something that has been detrimental to any potential rapprochement with KSA.

But Russia calculates that even if the tribunal is set up, there will always be room to wiggle in the future.

Nicholas Blanford of the CSM reports from Beirut:

Analysts in Beirut doubt that Michel's mediation will resolve the crisis and suspect that the UN Security Council will resort to sidestepping the Lebanese parliament by adopting the tribunal under Chapter 7 of the UN charter, which allows for the use of sanctions and military force to implement resolutions.

"Michel is coming with some explanations and guarantees for the opposition, but they won't accept it," says Sateh Noureddine, a columnist with Lebanon's As Safir newspaper. "His mission will be a failure and he will propose Chapter 7." ….

Hizbullah charges that the tribunal no longer represents international justice, but has become a political club wielded by the US to threaten Washington's enemies in Syria and Lebanon.

"The Americans are pushing the political conflict in Lebanon," says Nawaf Mussawi, Hizbullah's foreign affairs adviser. "The Americans and Israelis are dreaming of pushing Lebanon into a civil war to beat us."

Certainly, the US and France are powerful champions of the Hariri murder investigation and reportedly have urged a hesitant China and Russia not to veto a Chapter 7 tribunal. Analysts say Washington is gambling on Syria being held responsible for Hariri's murder, believing that indictments against senior Syrian officials will effectively cripple the Damascus regime, even if the Syrian leadership refuses to hand over the suspects.

On Monday, French President Jacques Chirac, a personal friend of the slain Hariri, implicitly endorsed the use of Chapter 7, saying that the UN Security Council would have to "take responsibility" for the tribunal's creation if the Lebanese parliament failed to ratify it.

"It's a very powerful political tool against the Syrians and their allies," says Paul Salem, head of the Carnegie Endowment's Middle East Center in Beirut. "Had it been some ally of the US that had been suspected [of Hariri's murder] I may not be surprised if they had vetoed it."

Still, supporters of the tribunal insist that the internationalization of the Hariri investigation was inevitable given the weakness of Lebanon's judiciary.

"If the Lebanese judicial process were capable of handling it, it should go to it, but since we can see it is incapable of doing so, the resort to international justice becomes necessary," says Chibli Mallat, visiting professor of international law at Princeton University's Woodrow Wilson Center. …

"I think we are in for a long stalemate and we can't wait indefinitely for the tribunal. [Chapter 7] might help change Syria's attitude," says Walid Jumblatt, leader of Lebanon's Druze and leading member of the March 14 coalition.

Michel said in Beirut that the tribunal would not begin working for "at least one year" after it is adopted. However, legal experts say that the tribunal can begin working as soon as it is formally adopted, a location is set for the court and a panel of Lebanese and international judges are selected. Suspects can be indicted and tried before the court, even as the main UN investigation continues its work, legal experts say.

Michael Young, writing in the Daily Star, warns that the tribunal had better be established while France's president Chirac is in office, because "the front-runner, Nicolas Sarkozy, pointedly noted: "Lebanon is very important to me, [but] there is more than just Lebanon." Young adds:

Chirac's departure is accelerating what happens in New York, partly because he has good relations with Russian President Vladimir Putin and could help reassure the Kremlin; partly because the transfer of power to a new French president could delay the tribunal approval process, which senior UN officials, the United States, and France don't want to see happen…. Bush needs to better anchor his policy institutionally toward Syria, so it can endure once he leaves office.

Assistant Secretary of State David Welch made the case for tightening the noose on Syria before the House Subcommittee on the Middle East and South Asia.

The Daily Star writes: "Ruling coalition signals readiness to create Hariri court under Chapter 7."

The Wall Street Journal headlines: US Backs Plan on Trials for Hariri Killing

Comments (32)


1. Nur al-Cubicle said:

L’Orient-Le Jour says as long a Lahoud is President, there will be no trial. Meanwhile, Russian Foreign Minister Saltanov was in Damascus to discuss international monitoring of the Syrian-Lebanese frontier. Also, Mohammad Fneich (Hezbollah) has rejected any idea of a trial without a national unity government.

The Hariri trial obsession is just jaw-dropping. I mean, hello, shouldn’t Israel be forced to pay war reparations? On one side of the scale we have a head of government dead and on the other, hundreds of mostly Shi’a war dead. Why does Hariri weigh more than them? It’s like the US, Blair, Chirac, Merkel, etc have an agenda that is divorced from what the Lebanese as a whole want, or need!

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April 20th, 2007, 8:10 am

 

2. why-discuss said:

What about the numerous resolutions against Israel.. why not Chapter VII too? The UN wants to regain some power after the disaster of the Iraq war and Lebanon seems like an easy prey..

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April 20th, 2007, 9:16 am

 

3. Ford Prefect said:

Nur Al-Cubicle and Why-Discuss,
You are bringing up excellent points and valid questions. Evidently, many are using the blood of Hariri for political gains and a way to complete the re-arrangement of the Middle East in favor of Israel. They are counting (including some Syrian opposition groups in Paris, London, and Washington) on a complete capitulation of Syria based on the “process” of the tribunals and certainly not the outcome. So far, calculations have fallen short of the desired results. But look at who is doing the math: It is the same geniuses who designed and managed the war in Iraq and the 2006 Summer War against Lebanese civilians. Their algebra teacher needs to be fired.

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April 20th, 2007, 10:28 am

 

4. EHSANI2 said:

Dr. Landis:
Are you coordinating your posts with the Wall Street Journal?
Apologies for not being able to post only the link.

(From THE WALL STREET JOURNAL)
By Jay Solomon
WASHINGTON — The Bush administration is backing a Lebanese plan to
potentially bypass Beirut’s Parliament in establishing a United Nations court
to try suspects in the 2005 assassination of former Prime Minister Rafik
Hariri.
U.S. officials hope to use the court to step up pressure on Syria, which has
been linked to the murder, but the move could further destabilize Lebanon’s
already fractious political environment.
U.N. investigators have implicated elements of Syria’s intelligence services
in the car bombing that killed Mr. Hariri and 22 others, a charge Damascus
denies. But so far, Syrian President Bashar Assad’s political allies in
Lebanon, particularly the Shiite political party and militia, Hezbollah, have
blocked parliamentary approval for the establishment of a U.N. court.
Lebanon has been in political paralysis for nearly five months after
Hezbollah pulled out of Prime Minister Fuad Siniora’s coalition government in
November. The Shiite party cited, in part, the Siniora government’s endorsement
of a broad U.N. mandate in the Hariri tribunal; Hezbollah says Lebanese judges
should have more control over the process.
Parliamentary speaker Nabih Berri, a close ally of Hezbollah, has
subsequently refused to convene a vote on the Hariri court due to the lack of
Shiite ministers in the cabinet. Under Lebanon’s constitution, both the
country’s Parliament and cabinet membership must meet certain religious quotas.

Mr. Hariri’s death set off nationwide protests that forced Mr. Assad to
withdraw all Syrian troops from Lebanon for the first time in nearly three
decades. Syria has subsequently been charged with involvement in a string of
other political assassination and bombings in Lebanon, in what some allege has
been part of a bid to disrupt the establishment of the tribunal.
The Bush administration wants to use the Hariri probe to strengthen the
Siniora government, drive Syria permanently out of Lebanon and potentially
pressure Mr. Assad to stop funding militants operating in Iraq and the
Palestinian territories.
Eager to push the court forward, senior U.S. officials say they are now
prepared to support an expected call by Mr. Siniora for the U.N. Security
Council to circumvent Lebanon’s Parliament by passing a so-called Chapter 7
resolution, which would allow for the international tribunal to be established
independently. The U.N. Security Council approved its own draft regulations
governing the tribunal in February.
U.N. and Lebanese officials said they hope the court could be functioning
within the next 12 months, as a U.N. investigation team pushes to complete its
nearly two-year probe into Mr. Hariri’s death.
There is no guarantee that the U.S., France and Britain would succeed in
getting the Security Council to pass the Chapter 7 resolution. China and
Russia, as well as some nonpermanent members of the council, such as South
Africa and Qatar, are seen as potentially opposing its passage, diplomats said.

The Bush administration’s decision to push the tribunal at the U.N., while
intended in part to strengthen the Siniora government, could also further
destabilize an already tense political situation in Lebanon, Middle East
experts said.
Hezbollah’s leaders have said in recent days that Lebanon could fall into
civil war if the Hariri tribunal goes ahead without its consent. Hezbollah
supporters have camped outside Mr. Siniora’s office since December to oppose
his policies. Violence between Shiites and Sunnis, who make up Mr. Siniora’s
largest political base, has increased inside Lebanon in recent months.
Lebanese security officials said Syria could seek to further destabilize
Lebanon if the tribunal process moves forward. Lebanese police said hundreds of
battle-hardened militants from Iraq have infiltrated into northern Lebanon via
Syria in recent months. Some fear that these fighters may have been involved in
a string of recent bombings and shootings inside Lebanon.
Lebanese Prime Minister Siniora wrote U.N. Secretary General Ban Ki Moon last
week detailing the difficulties his government was facing in ratifying
legislation needed to establish the court. The Lebanese leader didn’t directly
ask for the Security Council to pass a Chapter 7 resolution, but said he was
seeking “alternative ways” for the tribunal to be established, Lebanese
diplomats said. The letter was accompanied by a petition signed by 70 of
Lebanon’s 128 legislators calling for the U.N. tribunal to go forward.
Mr. Ban this week dispatched the U.N.’s top legal counsel, Nicholas Michel,
to Beirut to try and educate Lebanon’s various political factions on the legal
mechanisms that could be used in establishing the court. Mr. Ban is scheduled
to meet next week with Mr. Assad in Damascus, and the two men are expected to
discuss the tribunal.
U.S. and Lebanese officials said they aren’t optimistic that the U.N. can
persuade Hezbollah and its political allies to support the court. Syria, along
with Iran, is Hezbollah’s principal supplier of arms and funds. Any indictments
of senior Syrian leaders could potentially upset Damascus’s military alliance
with Hezbollah, while potentially bringing economic sanctions against Syria.
Hezbollah and other Lebanese opposition figures have also voiced concerns in
recent months over the potential mandate of a U.N. tribunal. The U.N. and Mr.
Siniora’s government have widened the investigation beyond Mr. Hariri’s murder
to include 16 other politically motivated attacks, including last November’s
assassination of Lebanon’s anti-Syria industry minister, Pierre Gemayel.
Hezbollah officials have voiced concerns that the tribunal’s mandate could be
expanded further to include terrorist attacks that Washington alleges Hezbollah
has committed but that the party denies.
The moves to press ahead with the tribunal could undercut hopes driven by
Democrats that Washington might reach an accommodation with Damascus. A string
of lawmakers, including House Speaker Nancy Pelosi (D., Calif.), have visited
Mr. Assad in Syria over the past few months to try and strengthen ties.
Senior Bush administration officials, for their part, said they have seen no
signs that Damascus is serious about promoting stability in the Middle East.
They said they believe Syria, in cooperation with Hezbollah and Iran, is
actively seeking to topple Mr. Siniora’s government. Their action has
“effectively paralyzed the Lebanese government and is further eroding the
Lebanese economy,” said David Welch, assistant secretary of state.
With the political stalemate in Lebanon, many U.S. officials say pushing for
a Chapter 7 resolution may be inevitable. The U.S. has pressed Mr. Siniora’s
government to draft a new letter to Mr. Ban calling more specifically for the
Security Council to act. The timing, U.S. officials said, is critical, as two
of the strongest champions of the tribunal process, French President Jacques
Chirac and British Prime Minister Tony Blair, are scheduled to leave office in
the coming months.
“We have to do Chapter 7, and we have to do it quickly,” said one U.S.
official working on Lebanon.

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April 20th, 2007, 10:39 am

 

5. EHSANI2 said:

Dr. Landis,

I think that it is important to study what Chapter VII means. My understanding is that this chapter contains articles 39-51. The most relevant ones in this case seem to be articles 41 and 42. They state the following:

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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April 20th, 2007, 12:13 pm

 

6. EHSANI2 said:

Of THE WALL STREET JOURNAL

NEW YORK (Dow Jones)–After weeks of scorn from the White House and its
political allies, Speaker Nancy Pelosi told colleagues she was surprised to
hear from President Bush that he hadn’t personally criticized her trip to Syria
earlier this month.
The exchange occurred Wednesday in a side conversation between the president
and speaker when Pelosi attended a meeting at the White House on the Iraq war
funding bill. The California Democrat made no public mention of the matter when
she spoke to reporters afterwards, but she has since told other Democrats of
the incident and that the president had accepted her offer to brief him on her
trip.
(This story and related background material will be available on The Wall
Street Journal Web site, WSJ.com.)
“I would rather not go into the details of the conversation,” the speaker
said in an interview. But she confirmed that the president apparently drew a
distinction between his criticizing her and rebukes delivered by his press
office and others in the administration.
“He just said, ‘I didn’t criticize your trip to Syria,'” Pelosi said. “In the
course of the conversation, he said, ‘I didn’t criticize your trip.'”
Asked if she was surprised, Pelosi laughed. “Surprised? I’m beyond surprise.”

White House spokesman Tony Fratto said he couldn’t comment on the president’s
side of the conversation, but he confirmed that the Syria trip had been a topic
discussed and that Mr. Bush had spoken to National Security Adviser Stephen
Hadley about Ms. Pelosi coming in to report on her trip.
Mr. Fratto pointed to a Rose Garden press conference this month shortly after
Ms. Pelosi had arrived in Damascus. “Sending delegations hasn’t worked. It’s
just simply been counterproductive,” the president said then, and Mr. Fratto
argued that the administration had a consistent policy of criticizing lawmakers
visiting Syria, regardless of party.
“We have been consistently critical of anyone getting on a plane and going to
Damascus,” he said. “We were just asked about Ms. Pelosi more.”
Indeed, Democrats saw the criticism as personally aimed at Ms. Pelosi, who
was just coming off a major House vote challenging the administration’s on its
Iraq policy. The president’s spokeswoman, Dana Perino, issued several public
rebukes of the speaker taking her bipartisan delegation to Syria and meeting
with Syrian President Basher al-Assad. “We just think it’s a really bad idea,”
Ms. Perino said, and Vice President Cheney accused the speaker of “bad
behavior.”
By contrast, Lebanese-American lawmakers of both political parties supported
the visit as an effort to open up communications with the Assad government, and
Ms. Pelosi has argued that she was taking a page from the Iraq Study Group’s
recommendations that the U.S. pursue more diplomacy with Iraq’s neighbors.

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April 20th, 2007, 1:01 pm

 

7. SimoHurtta said:

This tribunal would be understandable if it would be the normal procedure in ALL political assignations. And there would be a legal framework and a reliable international (UN) police to inspect the actual crime.

It will certainly not increase UN authority if this Hariri case is the only case where this kind of tribunal is used. USA and Israel have among others both performed and tried assassinations of political leaders on foreign territory. Because murder crime doesn’t get old in most legal systems shouldn’t those cases inspected by UN and an brought to a tribunal?

Seems that even in UN there are three “behaviour demand” standards. One for Syria, Iran and some others. One for Israel = no standard at all. One for everybody else. If UN has not 100 percent solid proof in this case, it will loose its neutrality in the Israeli Arab conflict. Maybe that is the goal – to make UN irrelevant.

It is “amusing” that the countries fiercely against international courts (in their own cases) are in the front row demanding international tribunals for others.

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April 20th, 2007, 2:32 pm

 

8. ausamaa said:

Nice show, but I just do not see it happening, period. The boomrang effect would be too much for all. And mind you, are they sure yet that Syria is the prime suspect?

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April 20th, 2007, 3:07 pm

 

9. Ford Prefect said:

Ehsani,
Regarding the story in WSJ, somebody is putting words in Bush’s mounth? I am shocked and in complete denial.

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April 20th, 2007, 3:09 pm

 

10. norman said:

May be Pelosi got somthing in Syria and Bush wants to join in taking credit.

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April 20th, 2007, 3:17 pm

 

11. EHSANI2 said:

FP,

What do you mean that you are shocked and in complete denial? Complete denial of what?

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April 20th, 2007, 3:21 pm

 

12. Ford Prefect said:

Ausamaa,
Whether Syria is the prime suspect or not is irrelevant. It is the process of the tribunal (and the coercion that this process entails) that matters the most. None of the big players would care about who did it.

Note also, for example in WSJ article that Ehsani2 posted earlier today, how the media casually drop these sentences “[Syria] which has been linked to the murder,” and “U.N. investigators have implicated elements of Syria’s intelligence services in the car bombing that killed Mr. Hariri and 22 others.” Both of the statements appear regularly, but you rarely read that these statements were obtained from the earlier discredited Mehils report.

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April 20th, 2007, 3:23 pm

 

13. Atassi said:

Imad, Aussama…
Please remove this illusion thinking and start facing the fact. It’s too late for the BIG and empty talk; when the shit hit the fan, No groups will be coming for support the regime other then the mentally disturbed Islamic fanatics, hoping to reach Paradise over the ruin and blood of fellow Muslims.
The Hariri assassination was a BIG and grave mistake; it’s a case of self inflected act of political suicide and it’s more like delivering your head to the enemies on a tray. I hope the outcome and destabilizing factors that my effect the state of the regime will not trickles down so dreadfully on the common Syrian peoples.
Let’s hope this matter will not forcefully bring the regime down. Let’s hope this matter will force the regime to its right mind and wisely pass this critical moment…

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April 20th, 2007, 3:44 pm

 

14. Akbar Palace said:

Nur al-Cubicle said:

I mean, hello, shouldn’t Israel be forced to pay war reparations?

Hello, no country would be “forced to pay war reparations” for a war they didn’t start. Of course, Mr. al-Cubicle, Lebanon will receive the same or worse treatment, if Hezbollah is allowed to repeat their “victory”.

why-discuss said:

What about the numerous resolutions against Israel.. why not Chapter VII too? The UN wants to regain some power after the disaster of the Iraq war and Lebanon seems like an easy prey.

What about them? UNGA Resolutions against Israel are as common as recycled printer paper thanks to the anti-Israel Arab masses in the UN.

Even the new U.N. Secretary General Ban Ki-moon, has said he is “worried by its [the UNHRC’s] disproportionate focus on violations by Israel.” And, R. Nicholas Burns, U.S. Under Secretary of State for Political Affairs told the US Foreign Affairs Committee, “It [the UNHRC] spent the entire year slamming Israel.”

Ford Prefect said:

Nur Al-Cubicle and Why-Discuss,
You are bringing up excellent points and valid questions.

Of course, chastising Israel is never a waste of time, and cleaning up your own house is always a pain.

SimoHurtta said:

USA and Israel have among others both performed and tried assassinations of political leaders on foreign territory.

Name one “political leader” or cabinet minister Israel tried to assassinate that wasn’t in a declared war against Israel.

Seems that even in UN there are three “behaviour demand” standards. One for Syria, Iran and some others. One for Israel = no standard at all.

Yes, but if you existed in reality, you would see that Israel, by far, gets the most attention and resolutions passed against it. What planet do you live on?

Atassi said:

Please remove this illusion thinking and start facing the fact. It’s too late for the BIG and empty talk; when the shit hit the fan, No groups will be coming for support the regime other then the mentally disturbed Islamic fanatics, hoping to reach Paradise over the ruin and blood of fellow Muslims.
The Hariri assassination was a BIG and grave mistake; it’s a case of self inflected act of political suicide and it’s more like delivering your head to the enemies on a tray. I hope the outcome and destabilizing factors that my effect the state of the regime will not trickles down so dreadfully on the common Syrian peoples.
Let’s hope this matter will not forcefully bring the regime down. Let’s hope this matter will force the regime to its right mind and wisely pass this critical moment…

I can’t disagree with the above.

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April 20th, 2007, 4:18 pm

 

15. Ford Prefect said:

Ehsani2,
“Speaker Nancy Pelosi told colleagues she was surprised to
hear from President Bush that he hadn’t personally criticized her trip to Syria earlier this month.”

Isn’t a first for the straight talker Bush who got it all figured out?

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April 20th, 2007, 4:38 pm

 

16. Ford Prefect said:

AP,
Reading your comment above reminded me of an 80’s rock band called Twisted Sister.

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April 20th, 2007, 4:41 pm

 

17. majedkhaldoun said:

George Bush does not care about Asad regime change,what he wants is to weaken him,the chess game is getting too complicated for Bush,he has too many problems, and the next election will be the worst,and last for him.
Saad Hariri made mistake by going to france and USA,this is close to be treason, he could have gone to revenge,by buying some syrian officers in the syrian army,it would have cost him much less.
the lebanese problems are much less important than the most important subject, the defeat of USA in Iraq, this is sure is coming, and it is the major event in the next 10 years,it will bring back Iraq to the Arab camp,since the Arab are not strong till Iraq come back, it is either Syria or KSA will dominate the arab world.

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April 20th, 2007, 5:10 pm

 

18. norman said:

Attasi, how does it feel that AP agrees with you .

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April 20th, 2007, 5:42 pm

 

19. Akbar Palace said:

Ford Prefect said:

Reading your comment above reminded me of an 80’s rock band called Twisted Sister.

If the truth is “Twisted”, then so be it.

majedkhaldoun said:

George Bush does not care about Asad regime change,what he wants is to weaken him,the chess game is getting too complicated for Bush,he has too many problems, and the next election will be the worst,and last for him.

George Bush cares about American security and preventing another 9-11. So far (and inspite of some the posters on this website), GWB has succeeded. No other major terror attack has occurred since 9-11 on US soil. As part of this effort, George Bush is confronting states that support and employ terrorism. Check out the US Dept of State website for a list of those countries.

Saad Hariri made mistake by going to france and USA,this is close to be treason, he could have gone to revenge,by buying some syrian officers in the syrian army,it would have cost him much less.

Sorry, France and the USA never killed a Lebanese cabinet minister. I don’t know about you, but killing a cabinet minister seems to be a bit more treasonable. And if Syria is implicated, will you be criticizing the lovely Assad regime?

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April 20th, 2007, 5:51 pm

 

20. Alex said:

Akbar,

I heard somewhere from someone who is well informed, and neutral, that some African cabinet minister was killed after he refused to give a big government contract to a French company like he, and all his colleagues in that country, are supposed to.

But no one wanted to investigate that minister’s death.

Research it if you want.

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April 20th, 2007, 7:52 pm

 

21. Observer said:

This is from the Mayo Issue of Le Monde Diplomatique about the Tribunal No further comment is needed
UN manipulates international justice
Lebanon: a court without the law
A climate of distrust reigns in Lebanon, the scene of a silent civil war. The status of the international criminal court invented to prosecute the killers of the prime minister, Rafik Hariri, is part of the problem, further complicating the formation of a government of national unity.

By Géraud De Geouffre de La Pradelle, Antoine Korkmaz and Rafaëlle Maison

The United Nations Security Council began an exceptional international investigation after the death of the Lebanese prime minister, Rafik Hariri, in a bomb attack on 14 February 2005. It may lead to a special tribunal with extraordinary powers. There is nothing surprising about this; consider the jurisdictions established by the UN, or under its aegis, for former Yugoslavia, Rwanda, Sierra Leone and Cambodia (1). But in the case of Lebanon there are no actual international crimes to prosecute. Several aspects of the investigation suggest that international justice is being manipulated. It is too fragile to endure such ill treatment.

We should be in no doubt about the political nature of the Security Council. The UN Charter established it that way. The council enjoys far-reaching discretionary powers, with few legal checks or balances on its actions. However, under the pretence of upholding the law, there have been serious violations of civil liberties, while nothing has been done to resolve the situation in Lebanon. This is particularly so with the Hariri investigation. The special tribunal is still no more than a project, yet it is already worsening tension.

The Security Council set up the international independent investigation commission (IIIC) at the instigation of Beirut. It was to be headed by a German prosecutor, Detlev Mehlis (2). UN Resolution 1595 of 7 April 2005 instructed the commission to assist the Lebanese authorities in “identifying the perpetrators” of the terrorist bomb that killed Hariri and called “for the strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the government”. But it also noted that “the Lebanese investigation process suffers from serious flaws and has neither the capacity nor the commitment to reach a satisfactory and credible conclusion”.

On 3 June 2005 the UN and Beirut signed an agreement settling the terms for their cooperation. The IIIC would supervise the work of the Lebanese authorities, which were relegated to a secondary role. The commission would not restrict itself to independent fact-finding, but carry out a complete criminal investigation. None of the usual checks and balances applied. Lebanese authorities, especially the courts, could no longer act on their own initiative, their role being to answer the IIIC’s questions.

In Resolution 1636, adopted on 19 October 2005 after the IIIC’s presentation of its first report, the Security Council commended the Lebanese authorities for their full cooperation and congratulated them on “the courageous decisions they have already taken . . . upon recommendation of the commission, in particular the arrest and indictment of former Lebanese security officials suspected of involvement in this terrorist act”.

The Security Council considered that the crime and its implications were a threat to international peace and security, and so, for the first time, invoked chapter VII of its charter, which covers actions taken in response to such a threat. It required states to take measures against suspects identified by the IIIC. The first report alleged that there was plenty of evidence implicating high-ranking Syrian and Lebanese officials directly or indirectly in the assassination. The second report, submitted on 10 December 2005, prompted another resolution (1644, 15 December).

A new phase
The replacement of Mehlis, the controversial chief investigator, by a Belgian criminologist, Serge Brammertz, began a new phase, different from before. The IIIC became more cautious and less provocative in its behaviour in the field and the content of its reports. Resolution 1644 mentioned for the first time the creation of an international tribunal.

The IIIC presented its third report in March 2006. The Security Council then asked the secretary-general to “negotiate an agreement with the government of Lebanon aimed at establishing a tribunal . . . based on the highest international standards of criminal justice”. The document distinguished “the adoption of the legal basis of, and framework for, the tribunal” and “the gradual phasing-in of its components”. The start of its work would depend on progress with the investigation.

By doing that, the Security Council loosed a spectre that has since haunted both the enquiry and Lebanon’s internal affairs.

The affair became critical when the secretary-general sent a draft agreement to the Lebanese government on 10 November 2006, proposing that most of those who would serve on the special tribunal would be international judges; there would only be a few from Lebanon. The Office of the Prosecutor would be an independent body: a prosecutor appointed by the secretary-general plus a Beirut-appointed deputy prosecutor. The court would be empowered to judge those accused of involvement in the Hariri assassination, and of other murders committed after 1 October 2004.

A system of concurrent competence with the Lebanese courts would be set up to deal with the “other murders”, although the primacy of the international tribunal would be maintained. It would base its judgments on local criminal law. The agreement added: “Appropriate arrangements shall be made to ensure that there is a coordinated transition from the activities of the IIIC . . . to the activities of the Office of the Prosecutor”, confirming the IIIC’s criminal focus. It promised that “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 IIIC.”

The Lebanese government — without its Shia Amal and Hizbullah ministers who had resigned — approved the draft on 13 November 2006 but the court is still a long way from its first hearing. There are several legal and technical hurdles yet to be overcome. Unless the political situation in Lebanon changes, there will be no progress made with the internal constitutional procedure, which is delaying ratification of the agreement with the UN.

President Emile Lahoud, whose approval is required, is against the plan. Parliament must approve the agreement but its Shia speaker, Nabih Berri, has so far refused to do so.

A serious preliminary question
The particular powers of the tribunal raise a serious preliminary question. Under the terms of its draft statutes it will focus primarily on the Hariri assassination, referred to as a “terrorist act”. It can also prosecute other killings committed between 1 October 2004 and 12 December 2005, and even later crimes, if the Lebanese government and the Security Council agree. At least until now, the killings came under the jurisdiction of the Lebanese courts.

UN resolution 1595 originally qualified the attacks as acts of terrorism. Then resolution 1636 added that chapter VII of the UN charter applied to the Hariri assassination. Yet the laws of Lebanon still apply and its courts are still competent to judge these crimes. International conventions on acts of terrorism require states to condemn and prosecute such crimes, this being the preserve of national jurisdictions enforcing national law. Until resolution 1664 the bomb attacks did not count as crimes that needed to be tried by an international tribunal.

In fact, the UN has only previously taken such measures to prosecute the most serious international crimes. The courts set up to prosecute those responsible for ethnic cleansing in former Yugoslavia and the genocide of the Tutsis in Rwanda have competence over genocide, crimes against humanity and war crimes. They are not competent to prosecute any other crimes, even those covered by international conventions but which fall within the competence of national courts.

The special tribunal for Lebanon would be the first international jurisdiction established exclusively to prosecute less serious crimes that are only international because the Security Council decided they should be so. It would be the only international court with the task of enforcing national law, with the addition of provisions excluding capital punishment. This measure emphasises the importance the UN attaches to prosecuting the murder of leading Lebanese figures. It is unlikely that this episode will enhance the image of the UN or of international justice.

Last summer’s fighting between Hizbullah and Israeli forces claimed 40 civilian lives in Israel and more than 1,000 in Lebanon. On both sides of the border several hundred thousand refugees had to flee their homes under extreme duress. People who came home to Lebanon after the conflict are still in mortal danger and will go on being endangered by unexploded anti-personnel mines and other munitions. The war caused massive destruction of civilian sites in Lebanon and substantial damage on the Israeli side.

Some of the deaths, injuries, population displacement and destruction were the result of serious violations of the 1949 Geneva Conventions and the 1977 Protocol on the protection of the victims of international armed conflicts. These violations were serious war crimes, ranking with crimes against humanity and genocide. But no UN resolution has recognised them as such, or condemned them. There has never been any question of setting up an international commission, let alone a tribunal, to investigate the violations of humanitarian law committed during the 33 days of fighting.

Are some deaths more important than others?
This is in stark contrast with the treatment reserved for Hariri’s assassins. It suggests that the international community thinks some deaths are more politically important than others. It damages the credibility of humanitarian law and gives the impression that political considerations drive international justice.

Undeniably, international criminal justice is a way of restoring and maintaining peace, and as such may serve the fundamental aims of the UN. Until now international criminal tribunals never appeared to serve other aims but this is no longer the case.

The attitude of the forces competing for power in Lebanon towards the tribunal has been partial and self-seeking from the start. The supporters of the current parliamentary majority, which backs the government of Fuad Siniora, believe that only an international court would dare rule that Syrian agents infiltrated deep into the Lebanese state were implicated in the assassination (3). They have the obvious support of the United States, France and influential Arab states, such as Saudi Arabia; and they are convinced that by denouncing crimes said to be carried out on orders from Damascus they will help Lebanon free itself from foreign domination.

The Security Council seems to have been a party to this, and to have decided to encourage the projected tribunal. It is easy to understand why the Syrian authorities should oppose what they see as a hostile move. The Lebanese opposition, especially Hizbullah and the Free Patriotic movement led by General Michel Aoun, support this view. The opposition groups see themselves as the true defenders of Lebanese independence, combating its real enemies — the powers that enslave the peoples of the Middle East and want to disarm the Lebanese resistance led by Hizbullah. They are convinced the international tribunal is a tool in the hands of these powers and that talk of punishing Hariri’s killers is a pretext. They are afraid the UN might decide to extend the tribunal’s powers and have cited this as a reason for resigning from the government, which deprived the government of its legitimacy. (It now seems to be hardly more than a pawn moved by foreign powers.)

One side has always seen the court as a way of avenging the death of political figures while combating the Syrian regime; the other side saw it as a tool for the US, Israel and France. These views have mobilised opposing factions in Lebanese society, paralysed the country and triggered fighting. The court is a hostage in this conflict, having lost its way before it even had a chance to operate as a real court, prosecuting crimes.

Worse still, under the pretence of setting up the tribunal, rough justice has been meted out to the suspects taken into custody by the IIIC. They include four Lebanese generals, officially designated as the perpetrators of the attack on Hariri. The Security Council repeated this allegation in resolution 1636, intended to oblige the Syrian government to cooperate with the IIIC. Those in custody have been denied their legal rights, in violation of the most basic standards upheld by the UN, especially the international covenant on civil and political rights of 16 December 1966.

A succession of mistakes
As with the other prisoners, the predicament of General Jamil al-Sayed is the result of a succession of mistakes by the commission and the lack of an impartial independent court to which to appeal. The behaviour of the IIIC was reprehensible when Mehlis was in charge. Although al-Sayed said that he had no knowledge of the preparation and execution of Hariri’s assassination, he was pressed to name credible culprits — that is, to give false testimony. The IIIC has proof, provided by al-Sayed, of this attempt to pervert the course of justice. The offer was made in relatively friendly terms before his arrest, then repeated more forcefully once he was in custody.

He was arrested on 30 August 2005 on a search warrant issued by the commission, which alleged that he was directly implicated in the planning and execution of the attack on Hariri. Not until three days after his arrest did a Lebanese prosecutor formally register that after a brief interrogation he had been taken into custody. The IIIC subsequently ruled that al-Sayed should not be released on bail; officially it was not empowered to make arrests or to take decisions on bail.

Brammertz, the chief investigator, has since made it quite clear in his letters to the defence that only the Lebanese courts have such powers. But abuses of this sort are part of the rationale beneath the Security Council’s decision to set up the tribunal.

No specific charges have been brought against al-Sayed or the other suspects. They have not been able to consult evidence submitted to the Lebanese authorities during the IIIC investigation. Hearings have been conducted with or without defence lawyers, who have never been allowed to talk to their clients in private. Al-Sayed, despite repeated requests, has never been confronted with the “witnesses” cited by IIIC reports, apart from one person who was wearing a mask.

After Mehlis left office, these abuses stopped, and the IIIC has not interrogated al-Sayed since. Its conduct of the investigation now seems acceptable. All the evidence cited in its first two reports has been checked and shown to be unfounded; the last four reports do not refer to the suspicions to which the Security Council unwisely reacted.

However al-Sayed and his fellow suspects have not been able to lodge any complaints. Officially it is up to the Lebanese courts to uphold the law of the land. Having hurriedly complied with the commission’s recommendations when Mehlis was in command, they are now refusing to assume any responsibility for those in custody. There is no higher authority to which those in custody may appeal.

All the talk about an international criminal tribunal seems to have been a cover-up for a travesty of justice at national and international level. The problem is the system invented by the Security Council in resolution 1595. The projected international tribunal is a key factor in the failure to uphold law and order.

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April 20th, 2007, 8:58 pm

 

22. MSK said:

My dear FP,

remember the axiom “States don’t have friends, states have interests”?

–MSK

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April 20th, 2007, 9:42 pm

 

23. ausamaa said:

Good article, but still, Syria must be tried for something. Or the other!!!

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April 20th, 2007, 9:50 pm

 

24. Alex said:

After Mehlis left office, these abuses stopped, and the IIIC has not interrogated al-Sayed since. Its conduct of the investigation now seems acceptable. All the evidence cited in its first two reports has been checked and shown to be unfounded

Yet, as FP reminded us earlier, most opinion pieces and news reports covering the story continue to include a paragraph about “Syria was implicated of the Hariri murder in a UN report”

So thanks to whoever wants things to end up this way, the past few years resulted in this collection of changes of attitudes:

1) The Untied States is not trusted anymore by a majority or Arabs and Europeans

2) The United Nations and the security council are becoming more and more tools of the same hated American foreign policy…

3) Democracy in the Arab world became a dirty word. Soemthing to be scared of.

So with no moral anchors this planet is supposed to trust who? and be led and inspired by who? … China? Russia? religion? local leaders and ideologies?

I’ll be happy to see Royal win in France … we need some calm and peace.

But Sarko seems to be winning … more chaos.

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April 20th, 2007, 9:59 pm

 

25. Alex said:

MSK

Since you are “here” .. please read the article above and let us know if you have a position on this issue.

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April 20th, 2007, 10:00 pm

 

26. G said:

Of course, cause a piece written by Jamil al-Sayyid’s lawyer is very credible. So is Alex’s pontification about Mehlis being discredited, cause Alex is a big authority on the subject.

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April 20th, 2007, 11:15 pm

 

27. Alex said:

Sure G, why don’t you tell us how credible was Mehlis!

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April 20th, 2007, 11:23 pm

 

28. Ford Prefect said:

Dear MSK,
Got it, indeed. Syria is preserving its natural interests. It seems to be winning so far. Go Syrian people, you are the best regardless who is at the Palace. You will prevail soon.

AP, if Bush is protecting Americans, you can have him (and Cheney, Gonzalez, Scooter, and Abramoff too). True Americans have already spoken last November. Bye.

Alex, Have you heard the latest? Well, it is not public knowledge yet, but apparently since Bush and everyone in his incompetent administration have either been indicted, jailed, resigned, asked to resign, under investigation or in the process of being shown to the nearest shredder, Bush is holding a fire sale on all of his democracy-in-a-box merchandising (they still have about 95% inventory left). It comes complete with Israeli cluster bombs for an appetizer (one million minimum order), a super-sized Halliburton contract for the main course, and a fun-sized imported president puppet as a treat. I am so tempted and having second thoughts, dude.

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April 21st, 2007, 12:01 am

 

29. SimoHurtta said:

SimoHurtta said:

USA and Israel have among others both performed and tried assassinations of political leaders on foreign territory.

Name one “political leader” or cabinet minister Israel tried to assassinate that wasn’t in a declared war against Israel.

Akbar, when Hariri was murdered I suppose he was a opposition member, not a cabinet minister. Israel has murdered several Arab leaders. That is a fact. Many of those were not military leaders and the links to terrorism were unclear = not proven in any kind of international tribunals.

As you can see from the history of Hariri
* When he supported Hizbollah’s water plans in South Lebanon, Israeli Prime Minister, “peace dove and friend of Lebanon”, Sharon said that it was a reason for war.
* Harir was against Nato Bases in Lebanon and the long American dream of airbases in Lebanon.
* Hariri refused to hand over Hizbollah members to Americans which made the US regime very angry. You are either on our side or against us, you know Akbar.
* Hariri saw Hizbollah as a vital instrument to defend Lebanon against Israeli aggressions.
* The extreme rapid increase in Hariri’s family’s wealth in last years before the assassination also raises questions.

As you can see Akbar Hariri was a also blockade for many US and Israeli interests and they had also a good motive to get a more co-operative and less patriotic “Hariri” in power.

Anyway if evidence in the assassination trial are not completely full proof UN risks to loose completely its authority if it is used as a political “lynching court”. And that is not a good thing for the world, though a good thing for Israel, which anyway doesn’t respect UN.

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April 21st, 2007, 12:18 am

 

30. G said:

I won’t tell you anything. Just read the Brammertz reports and see that they have not departed from the basic Mehlis thesis. So you, your pals, and the Syrian government can say whatever you want. Reality is, the basic thrust is the same throughout.

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April 21st, 2007, 12:41 am

 

31. MSK said:

Dear Alex,

which one of those articles in particular?

–MSK

(Am currently in some strange parallel universe – the local population calls it “real world” – so am just popping in here @ SC every once in a while.)

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April 21st, 2007, 9:37 am

 

32. Alex said:

MSK,

Forget reading articles.

Enjoy your real world break 🙂

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April 21st, 2007, 3:37 pm

 

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