SECURITY COUNCIL’S HARIRI RESOLUTION –a review

-by Barr. Stephen Edetanlen.

The Security Council, on 30th May 2007, adopted Resolution 1757 establishing a Special Tribunal for Lebanon to come into force on 10th June, 2007। Essentially, the Tribunal is to “try” those found to be responsible for the February 14th 2005 assassination of former Lebanese Prime Minister Rafik Hariri। Earlier, in its investigations, the UN had indicted officers in both the Syrian and Lebanese administrations of some level of culpability.
Summarily, according to the Security Council, the pivot of this Resolution is founded upon two premises: a request by the Lebanese Prime Minister, Fouad Siniora to the Secretary-General of the UN in December 2005 (S/2005/783) and Chapter VII of the UN Charter. The request was expressed in a letter of December 13th, 2005 “requesting inter alia the establishment of a tribunal of an international character to try all those who are found responsible for this terrorist crime”. Afterwards, the Security Council requested the Secretary-General to negotiate an agreement with the Government of Lebanon aimed at establishing such a Tribunal based on the highest international standards of criminal justice. There is no doubt that this request is a valid invitation to the UN to act. The question I find hard put to reconcile is whether the Council, whereas there is a competent judicial body (the International Court of Justice) established by the Charter to exercise judicial functions, ought to constitute a separate body, particularly bearing in mind the basic principle of nemo dat non quod habet? Therefore, the question that arises is, albeit the request may be justified, is the Council’s Tribunal? Secondly, although, in its characteristic form in its resolutions, the Security Council does not specify the specific Charter provisions it relies on, for all intents and purposes, the relevant provision under Chapter VII would be Article 39 which states: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. No stretch of interpretation of the above provision would ground the kind of descent by the Security Council into the internal affairs of a sovereign state, particularly when read vis-à-vis Articles 41, 42 and 2(7) of the Charter. Had Lebanon investigated and came out with allegations that the terrorist act was sponsored by another state, then as in the Nicaragua case, the UN would be called in –more appropriately, the matter referred to the ICJ. In my humble submission, it is only and after this fails that Chapter VII may come into play. For the avoidance of doubt, I firmly agree that Prime Minister Hariri’s assassination was horrific and gravely condemned. But the point I am making is these are criminal or terrorist acts which fall under the purview of the affected state’s internal affairs, though it may involve third states, occasionally. However, as long as it can be processed with the state or states, and does not degenerate into a situation that threatens regional or international peace, there is no place for the UN there. And, should it become a matter coming under the ambit of the UN, it should be properly directed to the appropriate body constituted to deal with the arisen matter. Not forgetting that even the Prime Minister’s request for intervention will be invalidated if the proper constitutional procedure has been followed which would make the request an effectual one. In the circumstances, it was not necessary for me to look into the merits of the request, being that the Security Council’s action was already flawed, even if the request resulted from due observance of constitutional processes.