International Crimes—UN Commissions Hariri Tribunal

The United Nations Security Council has unanimously passed Resolution 1664 (2006), calling for the establishment of a new UN‑backed international criminal tribunal for Lebanon.^[1] The tribunal will be dedicated solely to investigating the assassination of Lebanese Prime Minister Rafiq Hariri and to conducting the criminal trials of individuals accused of participating in the attack that killed Mr. Hariri and 22 other people in February 2005.^[2]

In a March 21, 2006 report to the Security Council, Secretary‑General Kofi Annan recommended that the tribunal be set up as a hybrid court, incorporating both international and Lebanese law.^[3] The new tribunal would most likely be modeled after the other UN-established hybrid courts in Sierra Leone, Cambodia, and East Timor. However, the Secretary‑General did not recommend locating the tribunal in Lebanon, citing “concerns of security, perceptions of objectivity,” and other factors.^[4] Perhaps after taking on the Charles Taylor trial for the Special Court of Sierra Leone, The Hague will be ready to host the Hariri Tribunal as well.

UN Resolution 1664 does not set a commencement date for the new tribunal, but keys all judicial activities to the results of investigations by the United Nations International Independent Investigation Commission (UNIIIC). The UNIIIC was commissioned in April 2005 to assist with Lebanese investigators in this matter specifically.^[5] Last December, we noted the appointment of former International Criminal Court (ICC) Deputy Prosecutor Serge Brammertz to head up the UN investigation into the death of Prime Minister Hariri.

Crimes of Terrorism
UN Resolution 1664 characterizes the assassination as an act of “terrorist bombing” and a “terrorist crime.”^[6] None of the existing international criminal tribunals include acts of terrorism in their statutory laws. In the Rome Statute of the ICC, so‑called “treaty crimes” are not included under the ICC’s jurisdictional umbrella, but the possibility exists that the Statute could be amended in the future to include the prosecution of terrorism and transnational drug crimes. A more remote possibility for trying a terrorist‑type crime in an international criminal tribunal would probably be under Article 8(2) of the Rome Statute, if the victims are UN personnel.^[7]

In Article 123, the Rome Statute specifies that amendments to the Statute will not be considered before a review conference to be held 7 years after the entry into force of the Statute.^[8] The Final Act of the Rome Conference, adopted in 2002, includes a direct recommendation that a review conference be convened to consider the inclusion of crimes of terrorism and drug crimes.^[9] Therefore, individuals will not be tried for alleged acts of terrorism at the ICC unless the Statute is amended on or after July 1, 2009 to include such a crime. If the Hariri Tribunal includes the crime of terrorism in its statute, it will be the first international criminal tribunal to do so.

---

[1] Security Council Requests Establishment of International Tribunal For Killing of Former Lebanese Prime Minister Hariri [hereinafter UN], UN Press Release SC/8677, Mar. 29, 2006. See also Lebanon: UN Adopts Resolution 1664 for International Tribunal, Ya Libnan, Mar. 30, 2006.
[2] UN supra note 1.
[3] UN supra note 1. See also Report of the Secretary-General Pursuant to Paragraph 6 of Resolution 1644 (2005), S/2006/174, Mar. 21, 2006.
[4] UN supra note 1.
[5] United Nations Security Council Resolution 1595, SC/1595 (2005).
[6] United Nations Security Council Resolution 1664, SC/1664 (2006).
[7] Rome Statute, art. 8(2)(e)(iii), 8(2)(b)(vii), and 8(2)(3)(iii).
[8] Rome Statute, art. 123.
[9] UN Doc. A/CONF.183/C.1/L.76/Add.14, at 8.