2008

Special Tribunal for Lebanon
A Commentary on its Major Legal Aspects (*)

Gianluca Serra (**)

1. The Background to the Establishment of the Special Tribunal for Lebanon

A new criminal jurisdiction of an international (1) character is coming into being half a century after the Nuremberg and Tokyo trials. This happens while the two ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) are implementing their "completion strategy," and the situations referred by some African states and the United Nations Security Council (UN SC) are culminating in the first indictments at the International Criminal Court (ICC).

The official name of the new court is "Special Tribunal for Lebanon" (STL). Its origins are rooted in the wave of popular indignation and protest that led the government in Beirut to request the UN to create an ad hoc tribunal to try those responsible for the terrorist attacks against Mr. Rafik Hariri - on February 14, 2005 - and several exponents of the Lebanese political and cultural establishment. (2) A self-made billionaire and business tycoon, Mr. Hariri had been the prime minister of Lebanon from 1992 to 1998 and again from 2000 until 2004. After his resignation as head of the cabinet, he had strongly supported a political project aimed at restoring to life the myth of Lebanon as the "Switzerland of the Middle East," a myth destroyed by a 15-year civil war (from 1975 to 1990) and about 30 years of military occupation by Syria (from June 1976 to April 2005).

Welcoming the Lebanese request, the UN SC mandated the Secretary-General (SG) to identify "the nature and scope of the international assistance needed" (UN SC, 2005d, para. 6) (3) and negotiate, on its behalf, "an agreement with ... Lebanon aimed at establishing a tribunal ... based on the highest international standards of criminal justice" (UN SC, 2006a, para. 1). The negotiations, held throughout 2006, culminated in the "Agreement on the establishment of a STL" signed by Lebanon and the UN, respectively, on January 23 and February 6, 2007.

Had the Beirut authorities completed the constitutional procedure for ratification, the STL would have been the third criminal tribunal based on an international treaty between the UN and a member state - after the Special Court for Sierra Leone (SCSL) (4) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). (5) However, the impasse of the Lebanese Government, due to the resignation of the pro-Syrian Shiite ministers, (6) prevented the Parliament from being convened by its President (7) to pass the law on ratification. Backed by mere signature, (8) the agreement remained in a legal limbo (9) as long as the SG decided to submit the issue to the SC with the implicit recommendation to resort to enforcement measures: "Regrettably, all domestic options for the ratification ... now appear to be exhausted, although it would have been preferable ... a national consensus" (UN SG, 2007b).

The SC responded on May 30, 2007 by adopting Res. 1757 under Chapter VII, the only part of the UN Charter that allows the SC to pass decisions binding on all UN members once the existence of a threat to international peace and security is ascertained. The resolution reaffirmed that the terrorist attacks in Lebanon and their implications were a threat to international peace and security (10) and arranged for a de facto entry into three of the agreement annexed thereto. (11) Moreover, the SC unilaterally amended some of its provisions (12) thus exploring - and probably colonizing - a new scope of application for article 103 of the Charter, which stipulates the prevalence of the UN duties over all the other inter-national obligations contracted by the member states.

Obviously, the coming into effect of the agreement does ma imply that the Tribunal is already functioning. This one is gradually moving into a start-up phase: (a) Adequate funds for the first 12 months of operations have been voluntarily deposited by some UN member states into a trust land created on July 26, 2007, (13) (b) on December 21, 2007, the SG signed a headquarters agreement with a third state, (14) (c) on February 13, 2008, a Management Committee, composed of the main donors, has been established to provide advice and policy direction on all nonjudicial aspects and approve the annual budget, (d) the selection of the prosecutor, the judges, and the registrar has been completed in March 2008, and (e) a series of measures have been taken with a view to ensuring a coordinated transition from the activities of the preexisting UN International Independent Investigation Commission (IIIC) to the STL (UN SG, 2007a, 2006). (15)

2. The Exceptional Character of the Tribunal's Legal Basis

By resolution 1757 (2007), the SC did not adopt the Statute of the Tribunal (STLSt.) as it had linearly done in the cases of the ICTY in 1993 (16) and the ICTR in 1994. (17) Rather it went through a convoluted route. Probably acting out of a desire to maintain appearances, it endowed the unratified agreement and its accompanying statute with the legal force of the most powerful Chapter of the UN Charter. Explaining its abstention from the vote at the SC, Russia highlighted the terms of the issue: "[T]he arrangement chosen by the sponsors [i.e. the states proposing Res. 1757] is dubious from the point of view of international law. 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" (UN SC, 2007a, para. 5). Furthermore, Russia remarked, "[T]he draft should have focused on the implementation, under a Council decision, of the agreement between the United Nations and Lebanon, not on the entry into force of the agreement" (ib.).

The UN interference in matters of domestic jurisdiction went well beyond what could be reasonably allowed by the last sentence of article 2(7) of the UN Chapter: (18) Indeed, the SC took on itself the sovereign treaty-ratification power pertaining to the Lebanese counterpart in response to the latter's institutional incapability to fully meet the obligations undertaken in good faith with the signature. The SC intervention in a member state's domestic affairs is not a novelty, of course. If anything, the novelty resides in the kind of domestic matters - constitutional ones - which the SC interfered with this time. (19)

Nevertheless, a more thorough screening of the UN practice makes it possible to identify other interventions by the SC in the constitutional domain of some member states. Let us consider, for instance, the affaire Lockerbie, (20) whose factual context has to do with terrorism as well. (21) As the parties to the Lockerbie dispute, the United Kingdom and the United States on one hand and Libya on the other agreed on a trial to be conducted in The Netherlands by Scottish judges and according to the Scottish criminal law opportunely amended (the so-called Lockerbie court) Res. 1192/1998, adopted under Chapter VII, required the United Kingdom and The Netherlands "to take such steps as [were] necessary to implement the initiative, including the conclusion of arrangements ... to enabl[e] the [Lockerbie] court ... to exercise jurisdiction ..." (UN SC, 1998, para. 3). This resolution allowed the British government to amend by decree the criminal law so that a Scottish court could sit abroad and adjudicate without a jury. Thus the parliamentary legislative interventionwas not necessary as required by the British living constitution. Though not adopted against the will of the requested states, both Res. 1757 (2007) and 1192 (1996) interfered with their constitutional order. Nevertheless, the analogy shows some evident limits: Unlike Res. 1 192 (1998), Res. 1757 (2007) was not urged by a fully legitimate government. Given the effective control by Hezbollah over southern Lebanon, (22) it would be the case to wonder whether the Government sitting in Beirut was representative of the entire Lebanese population.

The exceptional character of Res. 1757 (2007) can hardly be denied. Truth to tell, SC's counterterrorism decisions show how the exception is more and more becoming the rule. One just needs to call to mind Res. 748 (1992) and 1373 (2001) both adopted under Chapter VII. In the former, the SC qualified Libya's refusal to extradite the alleged perpetrators of the Lockerbie terrorist attack as a threat to international peace and security and adopted enforcement measures against Tripoli (UN SC, 1992). The latter is a wide-ranging decision calling, without limits of time, on all UN members for measures against international terrorism in general (UN SC, 2001). Some eminent scholars have considered such a resolution as an exceptional exercise of legislative power by the SC (Condorelli, 2001, p. 834).

How can the UN SC resolutions on terrorism be considered? It is the case to wonder whether their exceptional character is symptomatic of a customary norm, already formed or in the process of formation, which identities the SC as the supreme material organ of the international community entitled to act - not necessarily under the UN Charter - in response to the breach by states, individuals, or both of the obligation owed to the international community as a whole (erga omnes)not to commit international terrorist acts (Picone, 1993, 1995, 2006). Within the same conceptual scheme, one could also ask whether the STL represents - given the exceptional modality of its creation - a collective exercise of the universal jurisdiction over the crime of international terrorism.

3. The Political Rationale Behind the Establishment of the Tribunal

The rationale behind a resolution of such a doubtful lawfulness can be searched through its eighth preambular paragraph where reference is made to "the letter of the Prime Minister of Lebanon to the Secretary-General of the United Nations (S/2007/281) which recalled that the parliamentary majority has expressed its support for the Tribunal" (UN SC, 2007b).

It cannot be omitted that the adoption of Res. 1757 (2007) was urged by the Lebanese premier, the Sunnite Muslim Fouad Siniora. In the mentioned letter, he explained that the impasse "had been created by the refusal of the Speaker of parliament to convene a session of parliament to formally ratify the ... bilateral agreement"; secondly, he stressed that "a parliamentary majority has expressed its ... readiness to formally ratify [the agreement] in parliament if only a session could be convened" (prime minister of Lebanon, 2007); (23) and, finally he argued that "the time has come for ( ... ) [to] binding decision ... on the part of the Security Council" (ib.).

According to the above-referred sources, one could assume that the entry into effect of the treaty by a resolution adopted under Chapter VII expressed the SC's intention (or rather the intention of the states that drafted Res. 1757/2007 (24)) to put the substantial reasons of the Lebanese Sunnite-Maronite parliamentary majority (i.e. to bring terrorists to justice) before the formal claims by the Shiite President of the Parliament (i.e., the reverence for the Constitution).

The statements of vote by the United States and Peru at the SC could support such a hypothesis. The latter pointed out that "the majority of the Lebanese parliament ha[d] given ample proof of its strong determination to approve the agreement" (UN SC, 2007a, para. 6);" (25) the former literally quoted the Premier's letter. However less explicit they sounded, the declarations by France. Belgium, and Slovakia at the SC were on the same wavelength. The British stance, on one hand, appeared in line with this position but on the other hand, it specified that "[t]he use of Chapter VII carrie[d] no connotation other than that it ma[de] this resolution binding" (ib.).

Accounting the British standpoint as an isolated declaratory reservation, one should query whether the STL is still to be considered a treaty-based jurisdictional organ, like the SCSL and the ECCC or rather it turned into a subsidiary organ of the SC similar to the ICTY and the ICTR. The way the treaty entered into force and the extent of the amendments brought by Res. 1757 (2007) (26) justifiably prompt such an apparently speculative question. Actually, the concrete performance of the Tribunal could strongly depend on the answer to this question. Let's consider, in particular, the cooperation with the Tribunal by third parties to the agreement, a matter in principle governed by the customary rule according to which a treaty binds the parties and only the parties and does not create obligations for a third state without its consent. (27) Is there any implicit obligation to cooperate with the STLin the agreement's entry into force by a Chapter VII resolution? (28) Or rather as suggested by the SG, will further recourse to Chapter VII be necessary to call on third states for cooperating with the STL, similar to what happened with the IIIC? (29)

4. Criticism of the United Nations' Action

Res. 1757 (2007) raised once again two critical issues related to the UN system and closely connected with each other: a) The limitless power enjoyed by the SC as the political organ responsible for the maintenance of international peace and security, b) the absence, within the Organization, of a jurisdictional organ entitled to bindingly interpret the Charter's provisions (or, at least, the most sensitive ones, like Chapter VII) and to adjudicate the legality of the acts that any statutory organ should adopt - as implicitly required by article 2(5) - in accordance with the Charter. (30)

Once again, the SC's interpretation reads too much into Chapter VII: Not only did it interfere with the inviolable constitutional order of a sovereign state but it also very likely violated the implicit obligation not to take sides in the confrontation between the different religious groups recognized by the Lebanese Constitution. The SC's behavior is far more irresponsible than it could seem as it forgets how highly explosive religious differences are in a country like Lebanon, which only recently was thrown in the vortex of an exhausting civil war. Therefore, by embracing the Sunnite Muslim and Maronite cause, the SC could have prejudiced the country's national unity and, paradoxically, also the overall security and stability in the Middle East region. (31)

The debate on Res. 1757 (2007) was a déjà vu of the traditional opposition between, on onehand, Kelsen's maxim no peace/security without justice and on the other hand, the more disenchanted - and perhaps more realistic - belief that beyond the reasonable need for bringing terrorists to justices a trade-off does exist between peace/security and justice. Whereas the latter was hacked by the abstained states, the former was typical of the states that voted in favor.

Apart from any possible speculation on the theoretical foundations of Res. 1757 (2007), it would have been opportune that the SG carried out a more accurate preliminary evaluation with a view to assessing the risks of an aborted ratification for the fragile Lebanese system. Perhaps a less dogmatic faith in the lesson learned from the so-called UN transitional justice (UN SG, 2004) (32) could have led to a more realistic consideration of the Lebanese interconfessional and interinstitutional dynamics. A far more cautious alternative could have been identified bearing in mind the ICTY and the ICTR genesis. (33) A sentence over-shadowed in the first SG's report on the STL rouses the suspicion that the SG was well aware of the risk of a failure in the ratification process: "[s]uch an approach [i.e. the institution of the STL by means of a treaty] would also not exclude the need for the Council to take complementary measures to ensure the effectiveness of ( ... ) the tribunal [italics added]" (UN SG, 2006b, para. 6). The most plausible hypothesis is anyway that the UN member states did not at all intend to bear heavy expenses to maintain another ICTY or ICTR - like international tribunal. (34)

5. Potential Implications of the Legal Basis on the tribunal's statutory authority

The close examination of the verbatim records of the SC session, which led to Res. 1757 (2007), has revealed to be very useful to understand the meaning (or rather, the meanings) attributed by the SC members to the invocation of Chapter VII (supra, section 3). It is more than an academic exercise to speculate on how the STL, once functioning, will consider Res. 1757 (2007), especially whenever its lawfulness and legitimacy will be preliminarily challenged by any indictee. Currently, the international case law shows at least two hermeneutic paths that the future judges of the STL could follow.

The first path was opened by the ICTY Appeals Chamber when it rejected Mr. Tadić's motion on jurisdiction (ICTY, 1995). The judges of The Hague qualified the Tribunal "as an instrument for the exercise of [the SC's] principal function of maintenance of peace" (ICTY, 1995, para. 38) thus identifying its legal basis in article 41 of the UN Charter. (35)

When it comes to evaluating the technical and legal feasibility to apply the ICTY reasoning to the STL, one should not ignore that beyond the common reference to Chapter Vii a significant formal difference does exist with respect to the ICTY. While the latter was directly established as an SC's subsidiary organ, the former was created by a Lebanon-UNinternational agreement entered into force by an SC binding resolution. Therefore, after careful consideration, the STL was only indirectly established under Chapter VII.

If the STL identified its own legal rationale in the treaty between Lebanon and the UN, a second interpretative path could be followed. To this end, inspiration could be drawn from the decision by which the Appeals Chamber of the SCSL rejected Mr. Taylor's preliminary motion on immunity (SCSL, 2004). The judges of Free Town considered the bilateral agreement between Sierra Leone and the UN as the mere derived legal basis of the SCSL and located the primary one in Chapter VII of the UN Charter. In particular, article 41 was deemed as the appropriate ground of the SC resolution (UN SC, 2000) mandating the SG to negotiate the aforementioned agreement. (36) The latter, in other words, would be backed - according to the SCSL - by a special force inferrable from the fact that it was negotiated and concluded by (and with) a special organ, namely, the SC. This, acting on behalf of the UN members, would have changed the bilateral treaty into "an agreement between all members of the United Nations and Sierra Leone ... an expression of will of the international community" (SCSL, 2004, para. 38).

If the SCSL dared to connect its constitutive treaty with Chapter VII by leveraging an SC resolution only implicitly referable to Art. 41, one can easily imagine how far the STL could go, heartened by the fact that it was established by an international treaty expressly encapsulated in a Chapter VII resolution!

6. On the Hybrid Nature of the Tribunal

To tell the truth, the STL cannot be simply classified in the category of international criminal courts. During the vote on Res. 1757 (2007), Russia correctly pointed out the STL's mixed (UN SC, 2007a), (37) or rather hybrid, nature. Such attributes betray the improper cataloguing of the STL within the range of international criminal jurisdictions (thus clarifying the use of italics at the beginning of section I): The former cannot be ascribed to the latter as a species could be ascribed to a genus, being more logical to consider hybrid courts as a completely new genus.

A satisfactory theoretical definition that comes close to the phenomenon of hybrid courts - also known as internationalized courts - describes them as transitional criminal jurisdictions, established under the UN aegis, in the aftermath of international crisis (including armed conflicts) marked by serious and widespread humanitarian law violations. With regard to their juridical and institutional form, hybrids are characterized by a modulation of national and international elements such as, amongst other things, the juridical base, the applicable (substantive and procedural) law, and the internal organs' composition. To be more explicit, within a hybrid court, foreign judges sit alongside domestic counter-parts to try alleged perpetrators of common and international crimes; they are in turn indicted and defended by local prosecutors and lawyers working alongside internationals. Moreover, hybrid courts usually enjoy a primacy position over the domestic judicial system and apply the local criminal law as amended by international standards (Serra, 2007).

The hybrid formula was tested for the first time in February 2000 within the UN InterimAdministration Mission in Kosovo (UNMIK), where it is still in progress, even amid the ongoing deployment of the EU Rule of Law Mission (EULEX); afterwards it has been applied in other postcrisis contexts: The UN Transitional Administration in East Timor (from July 2000 to May 2005), Sierra Leone (since July 200I), Bosnia-Herzegovina (since March 2005), and Cambodia (since July 2006). The hybrid paradigm could cross, once the STL will be operational, its last - certainly not definitive - frontier.

7. The Tribunal's Jurisdiction over Terrorism

The main difference between the STL and other hybrids, besides the anomalous juridical basis, reveals in the subject matter of competence. This includes some ordinary crimes as per the Lebanese criminal law in force. Terrorism appears among them as well. (38)

Therefore, the STL's jurisdiction does not cover crimes traditionally prosecuted and adjudicated by hybrid courts under international law: genocide, war crimes, and crimes against humanity. During the negotiation process, an attempt to qualify terrorism as a crime against humanity revealed to be unsuccessful.

The international dimension of the terrorist act against Mr. Hariri has been crystal clear since the first United Nations International Independent Investigation Commission report (UN IIIC, 2005), which in turn confirmed the results of a fact-finding mission sent by the SC a few days after the bombing: (39) "Many leads point directly towards the involvement of Syrian security official ..." (IIIC, 2005, para. 222). (40) Therefore, one should reconsider the SG's standpoint (2006b, pp. 2 and 7) - similar to Russia's (UN SC, 2007a, para. 5) - according to which the STL material competence would focus on terrorism as merely an ordinary crime. The factual situation behind the creation of the STL - as well as the spirit and the intent of the legal acts that directly and indirectly established it - suggest to consider terrorism as an international crime rather than an ordinary one. After all, the additional conditions amounting to the physical element of terrorism as an international crime appear to have been met, namely, (a) transnational scale (the effects of the criminal action must transcend - in terms of people involved, means utilized, violence developed - the boundaries of a single state); (b) support by a state, and (c) threat to international peace and security (Cassese, 2005, p. 166). (41)

The judges of the STL should try to reconstruct the criminal offence under the customaryinternational law in force at the time of the crime so as to qualify the attacks against Mr. Hariri and others as acts of international terrorism. However hard this task may be, it would be necessary to meet the universally recognized principle according to which no crime can be committed without a preexisting criminal law. (42) The internationalist interpretation of the ordinary crime of terrorism could be considered as a sort of "evolutionary adaptation" of the Lebanese criminal norms to the changed social conditions of the international community. To this end, the three requisites fixed by the European Court of Human Rights (ECHR) to legitimately derogate from the peremptory prevision of crimes seem to be met as well, at least at first sight: (a) coincidence of the new crime with the essential core of a typical criminal offence, (b) consistency with the fundamental principles of international criminal law, and (c) reasonable predictability by the concerned subjects (ECHR, 1995, para. 33).

The spirit and the intent of the agreement establishing the STL would not hinder the pro-posed interpretation. The future defendants could not claim to have suffered an unfavorable interpretation of the Lebanese applicable law as it would certainly be more onerous for the STL judges to prove the crime of international terrorism given the above-referred additional conditions.

If the ordinary crime of terrorism were not addressed - at least incidentally - as constituting criminal offence under international customary criminal law, the STL's stature would come out seriously lowered; the establishment of the Tribunal would be justified only by the less ideal (or rather more pragmatic) reasons that have prompted the creation of hybrid courts so far, that is, the national judiciaries' lack of technical capacity, and will to try serious crimes.

Only on these conditions, the STL could become the first internationalized (not purely international) criminal jurisdiction for the repression of international terrorism. (43) This would happen exactly 70 years after the League of Nations' unsuccessful draft treaty on the creation of an international criminal court having jurisdiction over violations of a contextual convention for the prevention and the repression of terrorism (November 1937). (44)

Moreover, notwithstanding the traditional flaw of selectivity, (45) an internationalist interpretation of terrorism by the. STL would represent a major innovation with respect to the most recent past, especially with respect to the diplomatic conference for the negotiation of the ICC Statute held in Rome in 1998. On that occasion, the participating states decided not to include international terrorism within the ICC's competence because of several reasons: the alleged lack of a shared definition of the crime, the worry about the risk of politicization, and the belief that terrorist phenomenon could be more effectively tackled by means of the international judicial cooperation.

To sum up, the STL could represent a small but important step by the international community in the direction of supranational institutions charged of guaranteeing a last generation human right already affirmed, even though with a different meaning, in the preamble of the 1948 Universal Declaration of Human Rights: "The freedom from fear." Today we should say, The freedom from terror.

References

• Cassese, A. (2005). Basics of international criminal law. Bologna, Italy: Il Mulino.
• Condorelli, L. (2001). The September 11 attacks and their consequences: Where is the international law going. Revue Générale de Droit International Public, 4, 829-848.
• Conforti, B. (2005). The United Nations. Padua: CEDAM.
• ECHR. (1995, 22 November). Judgement (C.R. v. The United Kingdom, Series A case No. 335-C).
• Hudson, M. O. (Ed.). (1950). International legislation: A collection of the texts of multipartite international instruments of general interest: 1919-1945. New York: Carnegie Endowment for International Peace.
• International Criminal Tribunal for the former Yugoslavia. (1995, 2 October). Decision of the Appeals Chamber on the defence motion for interlocutory appeal on jurisdiction (Prosecutor v. Dusko Tadić, case No. IT-94-1-AR 72).
• Picone. P. (1993). The United Nations and the erga omnes obligations. La Comunità Internazionale, 4, 709-730.
• Picone, P. (1995). The United Nations interventions and the erga omnes obligations. In P. Picone (Ed.), The United Nations' interventions and the international law (pp. 517-578). Milan: CEDAM.
• Picone. P. (2006). The international community and the "erga omnes obligations": Critical studies on international law. Naples, Italy: Jovene.
• Prime minister of Lebanon. (2005). Letter to the secretary-general of the United Nations (UN doc. S/2005/783 of 13 December 2005).
• Prime minister of Lebanon. (2007). Letter to the secretary-general of the United Nations (UN doc. S/2007/286 of 14 May 2007).
• Serra, G. (2007). "Hybrid" criminal courts: Towards a fourth generation of international criminal tribunals? The case of Kosovo. Naples, Italy: Editoriale Scientifica.
• Shehadi, N., & Wilmshurst, E. (2007). The Special Tribunal for Lebanon: The UN on trial? Middle East International Law Briefing Paper, 1.
• Special Court for Sierra Leone. (2004, 31 May). Decision of the appeals chamber on immunity from prosecution (Prosecutor v. Charles Ghankay Taylor, case No. SCSL-2003-01-I).
• United Nations Fact-Finding Mission to Lebanon. (2005). Report inquiring into the causes, circumstances and consequences of the assassination of former Prime Minister Rafik Hariri (UN doc. S/2005/203 of 24 March 2005).
• United Nations International Independent Investigation Commission. (2005). Report of the International Independent Investigation Commission established pursuant to Security Council resolution 1595 (2005) (UN doc. S/2005/662 of 20 October 2005).
• United Nations Secretary-General. (1993). Report pursuant to paragraph 2 of Security Council Resolution 808 (1993) (UN doc. S/25704 of 3 May 1993).
• United Nations Secretary-General. (2004). Report on the rule of law and transitional justice in conflict and post-conflict societies (UN doc. S/2004/616 of 23 August 2004).
• United Nations Secretary-General. (2006a). Report pursuant to paragraph 6 of resolution 1644 (2005) (UN doc. S/2006/176 of 21 March 2006).
• United Nations Secretary-General. (2006b). Report on the establishment of a special tribunal for Lebanon (UN doc. S/2006/893 of 15 November 2006).
• United Nations Secretary-General. (2007a). Report submitted pursuant to Security Council resolution 1757 (2007) of 30 May 2007 (UN doc. S/2007/525 of 4 April 2007).
• United Nations Secretary-General. (2007b). Letter dated 15 May 2007 to the president of the Security Council (UN doc. S/2007/281 of 16 May 2007).
• United Nations Secretary-General. (2008). Second report submitted pursuant to Security Council resolution 1757 (2007) of 30 May 2007 (UN doc. S/2008/173 of 12 March 2008).
• United Nations Security Council. (1992). Res. 748 on Libyan Arab Jamahiriya (UN doc. S/RES/748 of 31 March 1992).
• United Nations Security Council. (1993). Res. 827 on the Tribunal for the Former Yugoslavia (UN doc. S/RES/827 of 25 May 1993).
• United Nations Security Council. (1994). Res. 955 on Establishment of an International Tribunal and adoption of the Statute of the Tribunal (UN doc. S/RES/1994 of 8 November 1994).
• United Nations Security Council. (1998). Res. 1192 on Lockerbie case (UN doc S/RES/1998 of 27 August 1998).
• United Nations Security Council. (2000). Res. 1315 on the situation in Sierra Leone (UN doc. S/RES/2000 of 14 August 2000).
• United Nations Security Council. (2001). Res. 1373 on Threats to international peace and security caused by terrorist acts (UN doc. S/RES/1371 of 28 September 2001).
• United Nations Security Council. (2005a). Res. 1595 on the situation in the Middle East (UN doc. S/RES/1595 of 7 April 2005).
• United Nations Security Council. (2005b). Rev. 633 on the situation in Côte d'Ivoire (UN doc. S/RES/1633 of 21 October 2005).
• United Nations Security Council. (2005c). Res. 1636 on the situation in the Middle East (UN doc. S/RES/1636 of 31 October 2005).
• United Nations Security Council. (2005d), Res. 1644 on the situation in the Middle East (UN doc. S/RES/1644 of 15 December 2005).
• United Nations Security Council. (2006a). Res. 1664 on the situation in the Middle Last (UN doc. S/RES/2664 of 26 March 2006).
• United Nations Security Council. (2006b). Res. 1721 on the situation in Côte d'Ivoire (UN doc. S/RES/1721 of 1 November 2006).
• United Nations Security Council. (2007a). 5685th Meeting Record (UN doc. S/PV.5685 of 30 May 2007).
• United Nations Security Council. (2007b). Res. 1757 on the situation in the Middle East (UN doc. S/RES/1757 of 30 May 2007).
• United Nations Security Council. (2007c). Res. 1748 on the situation in the Middle East (UN doc. S/RES/1748 of 27 March 2007).

Notes

*. International Criminal Justice Review, Vol. 18, No. 3 (September 2008).

**. Second University of Naples.

1. The meaning of italics will be explained in section 6.

2. See prime minister of Lebanon (2005).

3. The SG submitted to the SC two technical reports which explored the available options. See SG (2006a, 2006b).

4. Agreement between the United Nations and the government of Sierra Leone on the establishment of the Special Court for Sierra Leone, January 16, 2002.

5. Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of democratic Kampuchea. June 6. 2003.

6. Lebanon is a confessionalist state: The religious identity and the underlying demographic dynamics are, according to the country's living constitution, the cornerstone of the political representation and a key parameter for evaluating the legality of major decisions by state organs.

7. According to the 1943 unwritten National Pact, the Parliament presidency is reserved to a Shiite Muslim.

8. The Lebanese signature is considered constitutionally unlawful by the Shiite Muslim parties (Amal and Hezbollah) because it was appended by the government when it was no more representative of the Shiite confession as well. See prime minister of Lebanon (2007, para. 3). The law of treaties between states and international organizations, codified in the 1986 Vienna Convention (not yet in force), hacks this objection: The consent given by a party in violation of internal rules of fundamental importance regarding competence to conclude treaties can be invoked as invalidating a treaty if the violation is objectively evident to any other party conducting itself in the matter in accordance with the normal practice and in good faith (Art. 46).

9. In the solemn procedure for the conclusion of an international agreement, the signature does not entail any duty for the parties; it just marks the closure of the negotiations and the authentication of the final draft agreement.

10. The existence of a threat to international peace and security had been already determined by the SC (2005c).

11. Formally, the resolution set a veiled ultimatum for the Lebanese authorities.

12. The first amendment concerned the seat of the Tribunal: It envisioned the possibility to opt for a bilateral agreement UN-host state instead of a tripartite scheme UN-Lebanon-host state. As to the second amendment, it contemplated the possibility to cover the expenses of the Tribunal by means of voluntary contributions, whereas the Lebanese resources would be inadequate.

13. As of February 27, 2008, the trust fund held nearly US$30 million, with additional firm pledges amounting to more than US$16 million. According to the SG's estimates (2007a, 2008), the Tribunal will require around US$140 million for the first three years of operations.

14. The Hague will host the SLT premises. The experience gained by the Netherlands in hosting several international courts and tribunals has thus been acknowledged.

15. The IIIC was created by the SC on the basis of the inquiry powers envisaged by Art. 34 of the UN Charter (see UN SC. 2005a) and represents "the core nascent prosecutor's office" of the STL (UN SG, 2006b, para. 8). The mandate of the IIIC is going to expire on June 15, 2008 (see UN SC, 2007c) and the findings gathered until then are very likely to be enough for the filing of the first indictments.

16. See UN SC (1993).

17. See UN SC (1994).

18. Pursuant to this provision, the adoption of enforcement measures under Chapter VII prevents any member state from raising a plea of domestic jurisdiction, that is, to assert that a given matter cannot be dealt with by the UN as it falls within the sphere of state discretionary authority.

19. The procedure for ratifying international treaties is ruled by the Lebanese Constitution (see Art. 52 and 54).

20. The terrorist bombing of the Pan American World Airways (PanAm) flight PA103 exploded over and crashed in Lockerbie, Scotland, on December 21, 1988. Two Libyan agents were tried under Scottish law in The Hague - only one was convicted in 2001.

21. Another less known precedent, subtended by a completely different factual context, concerns Côte d'Ivoire. The SC has interfered also with the Ivorian Constitution, as it strengthened the prime minister's powers to the detriment of the president's (2005b, 2006b). Such measures were deemed opportune to stop a devastating civil war started in November 2004.

22. Hezbollah is very likely funded by Iran and Syria.

23. Prime Minister Siniora referred to the petition signed by 70 out of the 128 members of Parliament.

24. The resolution was proposed by the US, the UK, France, Italy, Belgium, and Slovakia, and was passed with ten votes in favor (France, US, UK, Belgium, Peru, Slovakia, Congo, Ghana, Italy, and Panama) and five abstentions (two permanent members. China and Russia, and Qatar, Indonesia, and South Africa). It is worth noticing that the affirmative vote (or, at least, the abstention) of all permanent members (US, France, UK, Russia, and China) is necessary for a Chapter VII resolution to be passed.

25. Peru stressed the exceptional character of the resolution as well: "the ( ... ) exercise of the powers of the SC as set forth in Chapter VII ( ... ) must not constitute a precedent beyond this particular case" (UN SC, 2007a, para. 6).

26. Supra footnote 12.

27. In particular, one should look at arts. 34 and 35 of the 1986 Vienna Convention.

28. Arguments in this sense could be inferred from the international case law. One could quote the extensive definition of the SC's powers under Chapter VII as worked out by the ICTY (1995, para. 31). Moreover it could be useful to consider the SCSL Appeals Chamber's decision on the Taylor case, which stated the self executiveness of judicial decisions covered by Chapter VII (2004, para. 57). According to the first decision, Chapter VII would authorize the SC to exercise - by means of a subsidiary organ (namely the ICTY) - even jurisdictional power over individuals who threatened international peace and security. According to the second decision, SC's Chapter VII resolutions would not need to be transposed into the national legislation to become binding on states.

29. Sec UN SC (2005a, 2005c, 2005d). On the IIIC, see footnote 15.

30. Art. 2(5) of the UN Charter stipulates as follows: "[A]Il Members shall give the United Nations every assistance in any action it takes in accordance with the presentCharter ... [italics added]." On the principle of legality within the UN system see Confetti (2005, p. 12).

31. Egypt, Indonesia, South Africa, China, and Russia confirmed such a view when explained the meaning of their abstention during the vote on Res. 1757 (2007a).

32. Its conclusions on the ICTY and ICTR's flaws (above all the financial burden on the UN budget) certainly contributed to found the SG's preference for a treaty-based tribunal rather than a Chapter VII-based UN Security Council's subsidiary organ.

33. The ICTY (and, by analogy, the ICTR) was not established through an international treaty as the SG deemed it unlikely that such a treaty could be signed by all the states involved in the Yugoslav wars (UN SG, 1993, paras. 18-30).

34. The two tribunals absorb more than 15% of the UN's total regular budget, that is, about US$100 million per year (UN SG, 2004, para. 42).

35. This provision deals with the "measures not involving the use of the armed force," which may include complete or partial interruption of economic relations, relations, communication, and the severance of diplomatic relations.

36. Such a resolution was not explicitly based on Chapter VII. The linkage with Chapter VII was probably inferred from the phrase ''the situation in Sierra Leone continues to constitute a threat to international peace and security in the region" (UN SC, 2000, last preambular paragraph).

37. "By its nature, the tribunal is a mixed body [italics added] with considerable Lebanese participation that operates on the basis of the applicable criminal procedures of Lebanon."

38. See Art. 2 STLSt. Terrorism can be prosecuted in accordance with Art. 314 of the Lebanese Criminal Code.

39. See UN Fact-finding Mission to Lebanon (2005, p. 19).

40. According to the most plausible hypothesis, Mr. Hariri would have been assassinated by the Syrian secret service so as to stop his political attempt to remove Lebanon from Damascus' influence (Shehadi, Wilmshurst, 2007).

41. These conditions are additional to the ones that amount to the physical element of terrorism as ordinary crime: (a) commission of seriously criminal acts, (b) creation of a situation of terror within the population (or a group) with the intention to coerce the state to act or refrain from acting in a certain way, (c) pursuit of a political goal.

42. As regards the complementary principle "no punishment can be imposed without a pre-existing criminal flaws;" the application of the norms in force in Lebanon at the time of the crime (with the exception of the death penalty) remains the only solution available to not violate the non retroactivity principle.

43. UNMIK hybrid courts and the SCSL have already dealt with cases of terrorism. However, the former has been prosecuting terrorism (since March 2003) as an ordinary crime; as for the latter, terrorism is being prosecuted as a type of war crime.

44. For the texts of both conventions see M. O. Hudson (Ed.), 1950.

45. The Tribunal's personal competence is focused on Mr. Hariri's killers: To prove the existence of a linkage with this main case is necessary to prosecute the perpetrators of 17 other terrorist attacks (Art. 1 STLSt.).