The Security Council interferes
in the internal affairs of Lebanon again
Security Council resolutions under Chapter VII of the UN Charter [1] are meant to deal with “the existence of any threat to the peace, breach
of the peace, or act of aggression” to quote from Article 39, the first article
of Chapter VII.
If, at any time, the Council determines that a “threat to the peace”, or
a “breach of the peace”, or an “act of aggression” has occurred in this world,
the Council may propose measures under Article 40 of the Charter to remedy the situation,
and, if necessary, authorise enforcement action under Article 41 or Article 42
in an attempt to have these measures carried out. Article 41 allows the Council to impose economic
sanctions and Article 42 allows it to authorise the use of “all necessary
means”, that is, military action.
Remarkably, the Council has never, ever deemed an action by Israel to be
“threat to the peace”, or a “breach of the peace”, let alone an “act of
aggression”, despite its many acts of aggression against neighbouring states
and the annexation of parts of them. 40
years ago, Israel attacked Egypt, Jordan
and Syria and occupied the
West Bank and Gaza, annexed parts of Jerusalem and the Golan Heights,
and proceeded to colonise the area it conquered and still occupies 40 years
later. None of these actions have
merited a determination by the Council that a “threat to the peace”, or a
“breach of the peace”, or an “act of aggression” had occurred, and neither did Israel’s attack on Lebanon in the summer of 2006.
However, there is now “a threat to international peace and security” next
door in Lebanon,
which has required the attention of the Security Council under Chapter VII of
the UN Charter. That’s what it says in
Resolution 1757 [2]
passed on 30 May 2007.
What threat?
What is this threat? Lebanon hasn’t attacked any of its neighbours,
let alone annexed bits of their territory like Israel has done. So, what traumatic event could possibly merit
a Council determination that “a threat to international peace and security”
exists today in Lebanon? According to the Council, the act of
terrorism which killed the former Prime Minister of Lebanon, Rafik Hariri, and
22 others in Beirut
over two years ago on 14 February 2005 constitutes such an event. In Resolution 1757, the Council reaffirms
“its determination that this terrorist act and its implications constitute
a threat to international peace and security”
On the basis of that determination, the Council passed Resolution 1757
under Chapter VII of the Charter, bypassing Lebanon’s internal political
processes (as we will see), in order to establish an international tribunal –
the Special Tribunal for Lebanon – to investigate this act, and others, and to
try those responsible.
Remember, the Israeli aggression in the summer of 2006, which killed well
over a thousand people in Lebanon,
was not a sufficiently serious event at the time to merit the Security Council describing
it as “a threat to international peace and security” and taking action under Chapter
VII of the UN Charter. But, an event
within Lebanon
over a year earlier which caused the deaths of 22 people, albeit including a
former Prime Minister, merits such a description now more than two years after
it happened and required the Council to take action under Chapter VII of the
Charter. This would be laughable, if it
wasn’t for the fact that vast numbers of human lives in the Middle
East are at risk because of its decisions.
The Security Council is supposed to be the supreme law making body in
this world, which lays down the law for states.
In reality, the five permanent members of the Council – the US, the UK,
France, Russia and China – can
engage in aggression at will without fear of a slap on the wrist from the
Council, since they can veto any condemnatory resolution by the Council. And the same is true of allies of the
permanent five. In the summer of 2006,
the US (and the UK) prevented the Council passing any resolution
critical of Israel. This time, as we will see, the US, the UK
and France ganged up to
declare a threat to the peace to exist in Lebanon
and to pass Resolution 1757, and neither Russia
nor China
prevented it by vetoing it.
Internal interference
Another point. A founding
principle of the UN was that it should not interfere in the internal affairs of
member states. This is enshrined in
Article 2(7) of the UN Charter, which says [1]:
“Nothing contained in the
present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present
Charter, but this principle shall not prejudice the application of enforcement
measures under Chapter VII.”
The proper business of the Security Council should be regulating relations
between member states, in particular, preventing one state committing
aggression against another and punishing aggressor states so that they think
twice about repeating their aggression. It
should not be interfering in the affairs of a member state, contrary to Article
2(7) of the UN Charter.
In the summer of 2006, at the behest of the US
(and the UK) the Council failed
to do its proper business and punish Israel for its aggression. In the summer of 2007, at the behest of the US (and the UK
and France) the Council yet
again interfered in the internal affairs of Lebanon, which is not its proper
business.
The assassination of Rafik Hariri
Rafik Hariri’s assassination in February 2005 brought about a political
upheaval in Lebanon, which
has been to the great advantage of the US
and Israel. Syria
was widely held responsible for the assassination, even though the
assassination worked to its great disadvantage, forcing it to withdraw its
remaining 15,000 troops from Lebanon.
In October 2004, a few months before his assassination, Hariri had
resigned as Prime Minister. He had
served two terms as Prime Minister – from 1992 to 1996 and from 1998 to
2004. He is said to have resigned
because he was opposed to the extension (by 3 years) of the term of the
Lebanese president, Emile Lahoud, an extension which was allegedly done at the
behest of Syria
and which necessitated an amendment of the Lebanese Constitution. The Lebanese Parliament approved the
amendment on 3 September 2004 with the support of Hariri’s group in the
Parliament. However, a month later
Hariri resigned.
The present Government, with Fouad Siniora as Prime Minister, was formed
in July 2005. It is dominated by the
March 14 alliance led by Saad Hariri, son of Rafik Hariri. This alliance takes its name from the very
large anti-Syrian demonstration that took place on 14 March 2005, a month after
Rafik Hariri was killed. It is an
alliance of Hariri’s own mainly Sunni Future Movement, plus Christian elements
and Druze led by Walid Jumblatt. The
alliance won 72 seats in the 128-seat Chamber of Deputies in the national
election a few months later. The
dominance of the March 14 alliance gives the Government its pro-Western,
anti-Syrian flavour.
The remaining seats were won by the mainly Shiite Resistance and
Development Bloc, which won 35 seats (of which Hezbollah won 14 and Amal 15),
and by the Christian Aoun alliance led by Michel Aoun, which won 21 seats (of
which Aoun’s own Free Patriotic Movement won 14). For the first time, Hezbollah opted to go
into government and, together with its Shiite allies, it had 5 Ministries (of
which Hezbollah had 2). The Aoun
alliance is not represented in government.
Not a legitimate government?
The 5 Shiite Ministers resigned from the Government on 11 November 2006,
followed two days later by a Christian Minister. (Another Christian Minister, Pierre Gemayel, a
member of the March 14 alliance, was assassinated on 21 November 2006). Since Article 95(3) of the constitution
requires each confessional group to be represented “in a just and equitable
fashion in the formation of the Cabinet” [3], there is a good case for saying that Lebanon has not had a legitimate
government since.
The Shiite Ministers resigned because they failed to persuade Siniora to
form a government of national unity, by broadening the base of his government
to include Aoun’s Free Patriotic Movement (with whom Hezbollah has entered into
a “memorandum of understanding” in February 2006). Since consensus is the stuff of politics in Lebanon, this
is not an unreasonable demand. But,
Hezbollah’s motivation was clearly to rein in the pro-Western, anti-Syrian
stance of the Government by getting over a third of the Ministries for itself
and its Shiite and Christian allies.
Since altogether they have 56 out of the 128 seats in the Chamber of
Deputies, that is, over 40%, it is not unreasonable that together they should
have at least a third of the Ministries in any government of national unity.
Achieving this third is vitally
important because of Article 65(5) of the Lebanese Constitution [3]. This states that the Cabinet should, if
possible, make its decisions by consensus but, failing that, decisions on
important issues require a two-thirds majority of the whole Cabinet, not just
the Ministers present. Such issues
include “the amendment of the constitution”, “the declaration of a state of
emergency and its termination”, “war and peace”, “international agreements and
treaties”, and “the annual government budget”.
So, if over a third of Ministers do not support a proposal on such
issues, it falls.
Lebanon has a unique
confessional political system, in which, for example, seats are allocated in
Parliament to each of 18 sects (see, for example [4]). Shiites are allocated a little over 20% of
the seats – 27 out of the total 128 – of which Hezbollah won 14 in the election
in May-June 2005. But, it is generally acknowledged
that Shiites are significantly underrepresented in the political system, since
upwards of 40% of the population of Lebanon are Shiites. In other words, if Shiites had had their
proper allocation, Hezbollah might have had 25 or 30 seats, and together with
its Shiite allies might have upwards of 50 seats, that is, well over a third of
the total number of seats in Parliament.
Most likely, Shiites deserve to have blocking third in the Government on
their own.
Political
stalemate
For the past six months, a political
stalemate has existed in Lebanon. Opposition demands for a government of
national unity continue to be rebuffed by the Siniora Government, which is of
questionable legitimacy in the absence of Shiite Ministers. Attempts at mediation by the Arab League and
others have failed to yield a solution.
Under the National Pact drawn up in
1943, the President of the Republic must be a Christian, the Prime Minister a
Sunni Muslim and the President (Speaker) of the Parliament a Shiite Muslim
(see, for example [4]). By custom and practice, the President of the
Parliament determines when a parliamentary session is called. This is the mechanism whereby Shiites have a
measure of leverage within the political system. The current President of the Parliament is
Nabih Berri, the leader of the Shiite group Amal, and he is exercising this
leverage by refusing to call a parliamentary session, until the political
impasse is resolved.
(The extended term of the President
of the Republic, Emile Lahoud, runs out in September, and under Article 73 of
the Constitution, the President of the Parliament is obliged call a session to
elect a new President of the Republic “one month at least and two months at
most before the expiration of the term of office of the President of the
Republic”, otherwise the Parliament “meets of its own accord on the tenth day
preceding the expiration of the President’s term of office”.)
UN Investigation Commission
The assassination of Rafik Hariri in
February 2005 (and later political assassinations) have been under
investigation for the past two years by an International Independent
Investigation Commission, established by the Security Council by Resolution
1595 [5]
passed on 7 April 2005.
At the outset, the Commission was headed
by a German lawyer, Detlev Mehlis, who produced two reports in 2005 [6]. These reports backed up the narrative that Syria was
responsible, the first one in October 2005 famously stating that
“there is converging
evidence pointing at both Lebanese and Syrian involvement in this terrorist
act”
Bizarrely for an experienced
prosecutor, he published evidence in his report that should have been reserved
for a courtroom. He also complained
about lack of co-operation from Syria,
which prompted the Security Council to pass a Resolution 1636 [7]
on 31 October 2005, demanding that Syria co-operate. (This was a Chapter VII resolution, the
Council having determined that the “terrorist act [that killed Hariri] and its
implications constitute a threat to international peace and security”).
In January 2006, Mehlis resigned and
was replaced by a Belgian lawyer, Serge Brammertz. He has produced five reports up to now, the
last in March 2007. These appear to be
the product of a serious investigator, rather than somebody out to please his
Western sponsors, not least because they merely provide an overview of his
activities rather than a detailed account of ongoing investigations. There are no longer complaints about lack of
co-operation from Syria. However, the investigation has not yet reached
the stage where individuals can be indicted and the UN Secretary General, Ban
Ki-Moon, has extended Brammertz’s term as head of the Commission until the end
of 2007.
International
Tribunal
On 12 December 2005, the Lebanese
Government decided to request the UN (see [8])
“to establish a tribunal
of an international character to convene in or outside Lebanon, to try
all those who are found responsible for the terrorist crime perpetrated against
Prime Minister Hariri”
At the time of this decision, the
Lebanese Government contained Shiite Ministers, including two Hezbollah
Ministers. Contrary to the impression
given in the British media, the opposition forces in Lebanon have never been opposed in
principle to the establishment of an international tribunal. However, they have been anxious to make sure that
there was a well defined limit to the tribunal’s infringement of Lebanese
sovereignty.
A year later on 23 January 2007, the
Siniora Government, now without Shiite Ministers, signed an agreement with the
UN to establish an international tribunal – the agreement is appended to
Resolution 1757 – but it has never been approved by the Lebanese Parliament,
which hasn’t met since it was signed.
Article 19(1) of that agreement clearly states:
“This Agreement shall
enter into force on the day after the [Lebanese] Government has notified the
United Nations in writing that the legal requirements for entry into force have
been complied with.”
The legal requirements for the
“negotiation of international treaties” are set out in Article 52 of the
Lebanese Constitution, which says that “in general, treaties that cannot be
renounced every year are not considered ratified until they have been approved
by the Chamber [ie Parliament]”.
The purpose of Resolution 1757 is to
bypass this requirement of the Lebanese Constitution, and have the tribunal
established without the approval of the Lebanese Parliament. Paragraph 1 of Resolution 1757 states:
“[The Security Council] Decides,
acting under Chapter VII of the Charter of the United Nations, that:
(a) The provisions of the
annexed document, including its attachment, on the establishment of a Special
Tribunal for Lebanon shall enter into force on 10 June 2007, unless the
Government of Lebanon has provided notification under Article 19 (1) of the
annexed document before that date;”
(Similarly, Paragraph 1(b) overrides
the right of the Lebanese Parliament as required by the Constitution to approve
the location of the tribunal.)
There could hardly be a more blatant
interference in the affairs of a member state contrary to Article 2(7) of the UN
Charter. As the Indonesian Ambassador to
the UN, Hasan Klieb, said before the vote was taken [9]:
“There are no legal
grounds for the Security Council to take over an issue that is domestic in
nature. Article 2, paragraph 7, of the
Charter of the United Nations stresses that nothing contained in the Charter
shall authorize the United Nations to intervene in matters that are essentially
within the domestic jurisdiction of any State. Although that provision does not
prejudice the application of enforcement measures under Chapter VII, the
Security Council should not be involved in an exercise of interpreting, let
alone taking over, the constitutional requirements that a State should comply
with in the conduct of its authorities.”
However, Indonesia
did not vote against the resolution – it abstained, as did China, Qatar,
Russia and South Africa. The Russian Ambassador to the UN, Vitaly
Churchin, stated the matter more succinctly [9]:
“The treaty between the
two entities — Lebanon
and the United Nations — by definition cannot enter into force on the basis of
a decision by only one party. The constituent documents for the Tribunal,
imposed by a unilateral decision of a United Nations body — that is, a Security
Council resolution — essentially represent an encroachment upon the sovereignty
of Lebanon.”
However, despite this encroachment
contrary to the UN Charter, Russia
allowed the resolution to pass by 10 to 0, neither Russia
nor China
using their veto to prevent it passing.
(According to Article 27.3 of the UN
Charter, a resolution must have “the concurring votes of the permanent members”
in order to pass, in other words, all five permanent members must vote for a
resolution, if it is to pass. When the
Soviet Union boycotted the Security Council in the early 50s, absence was
interpreted as concurrence, and, from then on, as long as a resolution received
at least 9 votes, with no permanent member voting against, that is, vetoing it,
a resolution has been deemed passed.
Many, perhaps most, Security Council resolutions, including 1757, have
been deemed passed, despite the fact they never received “the concurring votes
of the permanent members”, as required by Article 27.3. )
President
not involved
Article 52 of the Lebanese Constitution
on the “negotiation of international treaties” has been infringed in another fundamental
way. The Article begins [3]:
“The President of the
Republic negotiates international treaties in coordination with the Prime
Minister.”
The President of the Republic, Emile
Lahoud, has not been involved in any way in the negotiations leading to the
agreement. As he said in a letter to the
UN Secretary General on 15 May 2007 [10]:
“Approval of the Tribunal
did not take place in Lebanon
in accordance with the provisions of the Constitution, beginning with the
negotiation phase. In that regard the competence of the President of the
Republic, as provided for in article 52 of the Constitution, was transgressed,
leading to a complete disregard, in the case of the Tribunal and its Statute,
of the procedure for approval of international treaties as set forth in the
Constitution. …
“I draw your attention,
Sir, to the fact that the constitutional institutions in Lebanon are not
closed to a Tribunal established by the discretionary decision of those in
charge of them, especially the Parliament. But it is the duty of the Parliament
not to bypass the Constitution and not to violate its provisions and the
competence of its authorities, beginning with the competence of the President
of the Republic under article 52 of the Constitution.”
So, a Special Tribunal has been
established in Lebanon
by an agreement between the UN and a Government of doubtful legitimacy, since
it has no Shiite Ministers. The process
excluded the President of the Republic, which is in flagrant violation of the
requirement of Article 52 of the Constitution that “the President of the
Republic negotiates international treaties in coordination with the Prime
Minister”. And the Article 52
requirement that treaties are not considered ratified until they have been
approved by the Lebanese Parliament has been overridden by a Chapter VII Security
Council resolution, contrary to Article 2(7) of the UN Charter.
It is true that the Prime Minister
Siniora requested that the Security Council establish the Tribunal in a letter
to the UN Secretary General on 14 May 2007 [11],
in which he also pointed out that the establishment of the Tribunal was
supported by a majority in the Lebanese Parliament.
But that doesn’t get around the fact
that the Security Council has overridden the internal political processes in Lebanon. These processes may be unusual, but, as a
state with three large minorities, and many small ones, Lebanon is
unusual and it has established unusual processes in an effort to cope with its
diversity. Simple majority rule is
non-functional as a political system in Lebanon,
as it is in Northern Ireland.
It ill becomes imperialist powers,
particularly France, which created
Lebanon by carving it out of
the Ottoman province
of Syria after World War
I, to interfere in these processes.
Tribunal: a
very powerful body
The Special Tribunal for Lebanon (which is to be based outside Lebanon) is a
very powerful body with powers to investigate, prosecute and try individuals. It resembles the International Criminal
Tribunal for the former Yugoslavia (ICTY), which is based in The Hague.
Eventually, it will presumably take over the investigative role of the
Brammertz Commission. But, since the
latter is months, if not years, away from reaching conclusions that might lead
to prosecutions, there was no need to rush into the creation of a Tribunal.
The Tribunal will have a Prosecutor, who will be
responsible for the investigation of acts falling within the tribunal’s
jurisdiction and the prosecution of persons he deems responsible (see Article 11 of its
Statute, which is appended to Resolution 1757 [2]). He will be non-Lebanese, as will the
Pre-Trial Judge, who determines if a prima facie case has been established by
the Prosecutor. If he so deems, the
accused will be tried by a panel of 3 judges, two of whom are not
Lebanese. A convicted person may appeal
to a panel of 5 judges, 3 of whom are not Lebanese.
The Tribunal’s jurisdiction is set out in Article 1 of its Statute, which
begins:
“The Special Tribunal shall have jurisdiction over persons responsible
for the attack of 14 February 2005 resulting in the death of former Lebanese
Prime Minister Rafiq Hariri and in the death or injury of other persons.”
However,
that is not the end of the matter.
Article 1 continues:
“If the Tribunal finds that other attacks that occurred in Lebanon
between 1 October 2004 and 12 December 2005, or any later date decided by the
Parties and with the consent of the Security Council, are connected in
accordance with the principles of criminal justice and are of a nature and
gravity similar to the attack of 14 February 2005, it shall also have
jurisdiction over persons responsible for such attacks.”
So,
there is a scope for the Tribunal to have its jurisdiction extended by the
Security Council to investigate many other “connected” incidents that have
taken place in Lebanon
since 1 October 2004. How is “connected”
defined? Article 1 continues:
“This connection includes but is not limited to a combination of the
following elements: criminal intent (motive), the purpose behind the attacks,
the nature of the victims targeted, the pattern of the attacks (modus operandi)
and the perpetrators.”
In
other words, it isn’t defined at all – in practice the Security Council will
determine what incidents are “connected”, and the Lebanese Government has
signed away any right to object.
In
its judicial function, the Tribunal is superior to domestic Lebanese
courts. Article 4 of its Statute states:
“Within its jurisdiction, the Tribunal shall have
primacy over the national courts of Lebanon.”
Article 5 states that a person tried by a Lebanese
court:
“may be subsequently tried by the Special Tribunal if
the national court proceedings were not impartial or independent, were designed
to shield the accused from criminal responsibility for crimes within the
jurisdiction of the Tribunal or the case was not diligently prosecuted.”
A
large (and unlimited) lump of Lebanese sovereignty has been transferred to the
Special Tribunal for Lebanon
by Resolution 1757.
Ironically,
in the preamble to Resolution 1757, the Security Council reiterates
“its call for the strict
respect of the sovereignty, territorial integrity, unity and political
independence of Lebanon
under the sole and exclusive authority of the Government of Lebanon”.
David
Morrison
Labour
& Trade Un ion Review
28 June
2007
References
[1] www.un.org/aboutun/charter/
[2] daccessdds.un.org/doc/UNDOC/GEN/N07/363/57/PDF/N0736357.pdf
[3] www.oefre.unibe.ch/law/icl/le00000_.html
[4] www.david-morrison.org.uk/lebanon/lebanon-pol-sys-outline.html
[5] daccessdds.un.org/doc/UNDOC/GEN/N05/299/98/PDF/N0529998.pdf
[6] www.un.org/apps/news/infocusRel.asp?infocusID=110&Body=Lebanon&Body1
[7] daccessdds.un.org/doc/UNDOC/GEN/N05/579/61/PDF/N0557961.pdf
[8] domino.un.org/UNISPAL.NSF/2ee9468747556b2d85256cf60060d2a6/ddc381b371f31242852570d800533d9e
[9] daccessdds.un.org/doc/UNDOC/PRO/N07/362/08/PDF/N0736208.pdf
[10] daccessdds.un.org/doc/UNDOC/GEN/N07/347/06/PDF/N0734706.pdf
[11] daccessdds.un.org/doc/UNDOC/GEN/N07/344/41/PDF/N0734441.pdf