Report of the Secretary-General on the establishment of a special tribunal for Lebanon - Addendum

United Nations S/2006/893/Add.1
Security Council
Distr.: General
21 November 2006
English
Original: French
06-62604 (E) 211106 211106
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Report of the Secretary-General on the establishment of a
special tribunal for Lebanon

Addendum

Statement by Mr. Nicolas Michel, Under-Secretary-General for
Legal Affairs, the Legal Counsel, at the informal consultations
held by the Security Council on 20 November 2006
Mr. President,
Ladies and Gentlemen members of the Security Council,
It is both a great honour and a heavy responsibility for me to submit this
introductory report to you today. The issue before you is an important and
sensitive
one, and the stakes are substantial, both in Lebanon and elsewhere. I will
begin by
recalling various aspects of the process that is under way. I will then
point out the
key features of the draft document before you. Lastly, I will highlight the
principal
challenges involved.
By Security Council resolution 1664 (2006) you requested the Secretary-
General to negotiate an agreement with the Government of Lebanon aimed at
establishing a tribunal of an international character based on the highest
international standards of criminal justice, taking into account the
recommendations
in the report of the Secretary-General of 21 March 2006 and the views that
had been
expressed by Council members. The negotiations were conducted on that basis
and
in that spirit. The report of the Secretary-General on the establishment of
the
tribunal provides a glimpse of the negotiations. The following additional
information will be useful. First, it must be emphasized that the Lebanese
negotiators were designated by a consensus decision of the Government of
Lebanon,
under the leadership of the President himself. Accordingly, the Lebanese
delegation
was fully empowered to negotiate on behalf of the national authorities.
Secondly,
both the principle and the substance of the negotiations benefited from the
unanimous support for the establishment of the tribunal expressed by the
Lebanese
national dialogue at its first meeting. Thirdly, the Lebanese constitutional
process
for the conclusion of an agreement with the United Nations has not been
completed.
Major steps remain to be taken, in particular formal approval by the
Government,
which is the prerequisite for the signature of the treaty and its submission
for
parliamentary approval and, ultimately, its ratification. Only after this
process has
been completed will Lebanon have entered into an internationally binding
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commitment. Although the decision by the Government on Monday, 13 November
2006, to support the draft agreement and statute is of considerable
political
importance, it is not a formal step in the process of concluding the treaty.
Accordingly, and pending a decision by the Government, at this stage the
Republic
of Lebanon has not entered into an internationally binding commitment. It
will have
done so only once the constitutional process has been completed and the
treaty has
been ratified.
I will turn now to the second part of my introductory statement. Before
going
into some of the specifics of the agreement and the statute I would note
with
satisfaction that the draft documents before you meet the criterion you
established in
calling for a tribunal based on the highest international standards of
criminal justice.
As currently envisaged, the tribunal will be a purely jurisdictional entity
whose
independence and impartiality will be guaranteed in full.
I shall focus on six characteristics of the tribunal, although this is not
an
exhaustive list:
(1) Jurisdiction of the tribunal. The tribunal will be competent to try
those
responsible for the attack on former Prime Minister Hariri. It will have
jurisdiction over the perpetrators of other attacks only under very strict
conditions: the attacks must be on the list of 14 attacks annexed to the
report; they must be connected to the attack on Mr. Hariri, in accordance
with the principles and criteria set out in the agreement and the statute;
they must be similar to that attack in nature and gravity; and, lastly, the
tribunal itself, that is, the judges, ultimately will determine whether
these
conditions have been met.
(2) Applicable criminal law. The prosecution and punishment of the crimes
under the jurisdiction of the tribunal shall be governed by Lebanese
criminal law, specifically the provisions mentioned in article 2 of the
draft statute. Early in the negotiations the possibility was raised of
incorporating legal grounds that would enable the judges, in certain
circumstances and with sufficient proof, to qualify crimes as crimes
against humanity. The draft document before you does not include this
possibility. The text of the statute, the language of the report, the
preparatory work and the background of the negotiations clearly
demonstrate that the tribunal will not be competent to qualify the attacks
as crimes against humanity.
(3) Appointment of judges. In the initial phase, the procedure for
appointing
Lebanese judges will differ slightly from the procedure for appointing
international judges. However, the international phase of the selection
process will be the same for all judges. The Government and the
Secretary-General will consult each other in this regard. The objectivity
and impartiality of the process will be assured through the establishment
of a selection panel consisting of two international judges and a
representative of the Secretary-General, who will have indicated his
intentions to the Security Council prior to the panel's establishment.
Finally, the Secretary-General will appoint the judges upon the
recommendation of the selection panel. The same procedure will be
followed for the appointment of the prosecutor.
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(4) Funding. The Council had requested the Secretary-General to submit
funding options. This is why article 5 of the draft agreement was left
blank. The options are given in the report, which indicates that the list is
not exhaustive.
(5) Entry into force of the agreement and commencement of the functioning
of the tribunal. The agreement draws a clear distinction between these
two phases. Entry into force is contingent upon the completion of
domestic constitutional procedures in Lebanon and the notification of
such completion to the United Nations. The tribunal is to commence
functioning on a date to be determined by the Secretary-General in
consultation with the Government of Lebanon, taking into account the
progress of the work of the International Independent Investigation
Commission. Practical arrangements will be made to ensure that there is
a coordinated transition from the activities of the Commission to the
activities of the tribunal, with a view to achieving efficiency and
costeffectiveness
in the tribunal's operation.
(6) Duration of the agreement. The agreement includes provisions designed
to keep the duration of the process under control. It is envisaged that the
agreement will remain in force for three years from the date of the
commencement of the tribunal's functioning. Subsequently, the
agreement provides for a review of the progress of the tribunal's work.
This review will be conducted by the parties in consultation with the
Security Council. If at the end of this three-year period the activities of
the tribunal have not been completed, the agreement provides for an
extension to be determined by the Secretary-General in consultation with
the Government and the Security Council.
In the third part of my introduction, I should like to touch upon certain
aspects
of the issues at stake in your deliberations on the draft texts before you.
When the Council unanimously decided to request the Secretary-General to
negotiate an agreement with Lebanon, it was responding to a request for
assistance
from the Lebanese authorities. Faced with a series of heinous attacks, in
particular
the highly symbolic one that took the life of former Prime Minister Hariri,
those
authorities, with the support of an entire people, called for justice to be
done. But
they were convinced that, given the circumstances, the national justice
system
would not be able to meet that objective. Let us recall that Lebanon has
suffered
greatly for too many years. It had embarked on a reconstruction effort, with
remarkable courage and effectiveness. It was advancing on the path to
greater wellbeing,
the independent exercise of its sovereignty and a more stable domestic
peace,
when the attacks were perpetrated. Since then, Lebanon has sought to resume
progress towards a prosperous and peaceful future, but the difficulties and
obstacles
seem to be multiplying. Today, Lebanon needs the help of the international
community to lay the foundation for lasting peace in the country and to
become a
force for peace in the region. As a precondition for this, steps must be
taken to end
the impunity of the perpetrators of odious crimes such as the assassination
of former
Prime Minister Hariri. To that end, the truth must be revealed and justice
must be
done. Lebanon has called upon you to help. You have before you today a draft
text
that will enable you to make a decisive contribution to justice and peace in
Lebanon.
The Lebanese authorities have asked you to establish an international
tribunal. On
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behalf of the Secretary-General, I invite you today to take a decisive step
in that
direction by supporting the draft text on the tribunal's establishment and
by fully
supporting the rest of the process.
It is true that this process has not been completed. As I said at the
beginning of
my statement, a number of major hurdles in the domestic constitutional
process
remain to be cleared. Given the situation, of which we are all aware, this
process
must be pursued with both determination and wisdom: with determination
because
there are obscure forces that will stop at nothing to prevent the tribunal's
establishment, and with wisdom because, in order to advance the cause of
peace, the
judicial process must enjoy the necessary support. In this connection,
however, it is
important to recall that prudence consists not of retreating in the face of
difficulty,
but of choosing the best ways of reaching the legitimate goal.