(3)   If CDR decides to use, as its agent[MSOffice4] , such real estate company, then its creation must be authorized by the Council of Ministers pursuant to Article 21 CUR. Under this article, the company shall be organised by and between the landlords, the leaseholders and the government. The landlords and leaseholders shall contribute their rights and the government shall contribute property and funds. Nothing in this law suggests that participation in the company is anything but voluntary. 

None of those conditions was fulfilled. The Council of Ministers did not issue a decree directing CDR to perform any project in the City. Solidere was organised without reference to Legislative Decree 107 of June 30, 1977. CDR did not recognize Solidere as its agent and gave it no mandate to perform any project. The consent of landlords and leaseholders was not solicited or obtained. It was not envisaged to allow them to return to their premises.

Many landlords and tenants who took exceptions to Solidere refused to surrender their rights and went to court. Their actions were all dismissed both in regular courts and before the administrative court, the council of state, by judges who ruled unanimously in favor of Solidere. Buildings which were not damaged and were still occupied by the landlords and/or tenants were possessed, and their occupants evicted by force.

To the shock and grief of tens of thousands of dispossessed Lebanese, the appraisal commissions decreed very low values which were, pursuant to Law 117, uncontestable before a court of law. Several applications brought before the General Panel of the Court of Cassation claiming gross errors in the lack of adversarial proceedings before the commissions were summarily dismissed and the applicants fined. The General Panel ruled that it had no jurisdiction over the judges who headed the commissions because the commissions were not part of the justice judiciary.

When it came to transferring the properties to Solidere, no procedure could be found in the statutes book. The transaction did not fit any of the categories recognized by Article 228 of the law on real property for the acquisition of title. There was no contract. No expropriation decree was issued by the government.

The Real Estate Registry is part of the Ministry of Finance. Prime Minister Rafiq Hariri held the portfolio personally until the year 1998. In fact the ministry was run de facto by Hariri’s assistant, Fouad Siniora, who was Minister of State for Finance but had no direct authority over the Finance Ministry. Nevertheless, Siniora ordered the Real Estate Registry on June 2, 1994, to transfer title to the properties to Solidere “as the transfer does not violate the laws in force.”²⁴ The Real Estate Registry secretariat complied. A massive transfer of title was put into effect in favor of Solidere on the say so of a minister without portfolio.

On other occasions, a simple letter by Solidere’s chairman would suffice. One such letter, dated December 2, 1995, and addressed by Solidere’s chairman to the Secretary of the Central Real Estate Registry, Beirut, stated:

“Ref. Registration of properties in the name of Solidere SAL

Further to our letter of June 7, 1994, related to the captioned subject              which stated that we will later provide you with a list of properties that may be returned where the owners did not exercise that right.

Please find attached a list of the properties that should be transferred to the name of our company.”²⁵

Members of the appraisal and distribution commissions received compensation from the state budget. As it turned out they also received compensation from CDR for and on behalf of Solidere. When the court of accounts discovered the CDR payments, which were not authorized in its budget, it ordered CDR to recover the amount of nearly LL 5 billion (Euro 2.5 million) from Solidere. So CDR brought action against Solidere in 1999 naming names and amounts. The action was brought in the court of a judge who was one of the recipients. He eventually recused himself. The action remains pending to this day.

The assumption by the government of the power to order changes in the records of the Real Estate Registry has not, however, been confined to Solidere. On August 22, 2007, it issued Decree No. 655 changing the name of the owner on 71 real estate lots in Beirut from “Trustees of the American University of Beirut” to “American University of Beirut” based on the petition by the university. The trustees themselves did not join in the petition. A trust is an independent legal entity. The university (known as AUB) is a New York corporation with head office in New York and no registration in Lebanon. Both the trust and AUB are foreign and subject to statutory restrictions on the ownership by non-Lebanese of real estate in Lebanon. No transfer fees were assessed or paid based on the value of the property as required by law.  Both in the case of Solidere and of AUB there is a drastic violation of the strict and formal procedures established by the statutes on real estate and on foreign ownership.

Another case of indirect taking of property without compensation involved the Mohammad Al Amine Society. Organised in 1950 but officially registered in 1965, this association was collecting donations that it used to buy properties for the construction of a mosque on Martyrs Square in the City. By the 1990s it had managed to assemble a large tract of prime real estate with an area of 1559 Square Meters with a value of over $10 million, and was looking to finance the construction itself. The association had bad relations with Solidere and many of its members were among the opposition to Solidere. On 20 August 2002, Presidential Decree No. 8572 was issued under the signatures of President Lahoud, Prime Minister Hariri and Minister of the Interior Michel al-Murr, dissolving the association. Based on this decree, the ownership of the real estate was administratively transferred to the Islamic Awqaf Department that reports to the office of the Prime Minister, a de facto expropriation. Subsequently, Hariri built a big mosque on this property which was joined to an adjacent property purchased from Solidere, and donated to the project, by the Saudi Prince Al-Walid Bin Talal. When Hariri was assassinated his body was laid to rest in a spacious tomb adjacent to the new mosque.   

The serial rape of Article 49 LC

The one article of the Constitution that stirred the most controversy (and was eventually to constitute part of the raison d’etre of UNSCR 1559) is Article 49 which forbids the election to the office of President of the Republic any person who is not entitled to run for Parliament, and forbids the re-election of the incumbent president for a another term. The violations or attempted violations of this one constitutional article could be described in lengthy volumes. For the purposes hereof they could be summarized, starting from Independence Day, as follows:

A. President Beshara al-Khouri, one of the heroes of independence who were detained by the French, arranged for an exceptional constitutional amendment of Article 49 permitting him to run for, and win, a second term. The parliament that complied was the one elected in May, 1947, in a general election widely seen to have been openly rigged. The elections were called less than six months after the final departure of the French and British soldiers from Lebanon on December 31, 1946. Khouri served only two years of his second term then resigned under local and international  pressure..

B. Khouri was succeeded by President Camille Shamoun, who was one of the vocal critics of the Khouri constitutional amendment. Soon Shamoun developed aspirations for a second term, which, coupled with his foreign policy, stirred popular resentment leading to a rebellion. All went well after the landing of the American Marines in the summer of 1958 and a new president, General Fouad Shehab got the office notwithstanding Article 49 which bans military officers from running for parliament lest they have resigned six months prior to being elected.

C. The leaders of the rebellion against the Shamoun Presidency were all indicted by a senior Justice Investigating Judge on 21 different offenses. The judge almost literally “threw the book” on them.²⁶ The defendants’ names were prominent in any Lebanese or even international who-is-who directory and included former prime ministers, speakers of parliament, ministers and MPs. Following Shehab’s election, a general amnesty law was adopted by parliament on 24 December 1958, which wiped the slates clean without further process.

D. Shehab considered the option of a constitutional amendment giving him a second term, but opted to have Charles Helou succeed him and maintain his policies. Helou’s term was, for most intents and purposes, Shehab’s second term.

E. The succession of Helou was contested between Elias Sarkis, a high civil servant who had not resigned six months in advance, and MP Suleiman Franjieh and was won by Franjieh by one vote. Franjieh had earlier been prosecuted for alleged involvement in a Maronite Church massacre at Meziarah, North Lebanon, in 1957 but became a beneficiary of the 1958 Amnesty.

F. Elias Sarkis, who had become Governor of the Central Bank, was elected by the 1972 parliament to succeed Franjieh without having resigned his office six months earlier as required.

G. The 1972 Parliament elected Bashir Gemayel, a militia commander openly allied with Israel, to succeed Sarkis, but he was soon assassinated and succeeded by his brother Amine. Amine’s term of office expired in September, 1988 without the election of a new president. Just before his term expired he appointed a care-taker cabinet headed by the army commander General Michel Aoun.

H. The 1972 Parliament met in November, 1989, and elected a new president, Rene Muawad who was soon assassinated on Independence Day of that year.  The 1972 Parliament then met and elected Elias Hrawi to succeed him. Hrawi’s term was to expire on November 24, 1995. On October 19, 1995, Article 49 LC was amended for the exceptional extension of Hrawi’s term of office for three more years.

I. The name of Army Commander, General Emile Lahoud, was put forward to succeed Hrawi. In the meantime, an additional requirement had been added to Article 49 LC in 1990 precluding high civil servants and judges, which would include high army officers such as Lahoud, from being considered for election to the office of president unless their service shall have actually ended two years earlier. Hence Article 49 LC was amended to permit a one time exception to both requirements.

J. Article 49 was amended on September 3, 2004, to extend Lahoud’s term of office for three years in exactly the same way Hrawi’s term was extended, and the amendment was published in the Official Gazette on the following day.

K. In December 2007, the name of the army commander since 1998, General Michel Suleiman, was advanced as a consensus candidate with wide local and international support. At that time the amendment of Article 49 to remove the two pre-conditions posed no problem. On May 25, 2008, the parliament met and 118 out of 127 MPs voted to elect Suleiman to the office of president without any constitutional amendment, but six MPs turned in blank ballots and one vote went to each of two former MPs. This event was met with the enthusiastic support of the United States and other world powers.

The Constitutional Council in disarray

The Constitutional Council is a constitutional court with jurisdiction restricted to challenges to new legislation made by the President, the Speaker of Parliament, the Prime Minister, or ten or more MPs, and, only with respect to freedom of religion and/or religious instruction, heads of recognized religious communities. It also has the jurisdiction over challenges to presidential and parliamentary elections. The Constitutional Council consists of ten members, five elected by Parliament and five appointed by the Council of Ministers.  When a new parliament was elected in July, 2005, the term of five members of the Constitutional Council, including its president, had expired several years back. The prior Parliament had elected three new members who were never sworn in. Two more members remained to be appointed by the Council of Ministers, but none was appointed.  The members whose term expired took the position that they may not step down until their successors are appointed and sworn in. On July 19, 2005, Parliament passed a law suspending all cases before the Constitutional Council until the missing members were appointed and sworn in. Eleven challenges were pending to the election of new MPS in the Baabda District, where Hizbullah decisively intervened in support of the list of MP Walid Jumblat and his allies and led to the defeat of the list of General Michel Aoun. That victory gave the parliamentary majority to the Hariri-led political alliance, including Jumblat. Should the Constitutional Council rule in favor of the challengers only in five of those cases, the Hariri-led majority would evaporate. On June 6, 2006, Parliament passed an amendment to the Constitutional Council law which was not timely challenged. Under this amendment the election of the three new Council members was nullified. At the time of this writing, over 18 months later, neither Parliament nor the Council of Ministers has appointed any members to the Council which remains inactive.

The rise and assassination of Rafiq Hariri

Rafiq Hariri was a tycoon who made his fortune in Saudi Arabia where he also lived most of his adult life. His main business vehicle was “Saudi Oger” which he acquired from French owners. He had arrived in Saudi Arabia from his native Lebanon in the early 1970s penniless and with little education. His meteoric rise in wealth and power within a span of nearly one decade is baffling and is reminiscent of the rise of the British media magnate Robert Maxwell. Rumors placed him as one of the principal front persons of Saudi royalty. Early in his career he came to Lebanon wearing Saudi headgear and bearing the title of the “Saudi mediator.” In 1983 he brought heavy equipment from Saudi Arabia and commenced the demolition of partially damaged, but mostly repairable, buildings in the City with the consent and support of President Amin Gemayel. In the early 1990s many of the buildings that could not be leveled by Oger bulldozers were demolished by Hariri-controlled crews using explosives. Officially, the demolition of downtown Beirut was blamed on war-time militiamen, but many Lebanese believe that all this was part of the preparation for the takeover of downtown Beirut by Solidere.

In 1989 Hariri played a central, though discreet, role in finalizing the Ta’if Accords. Enemies of Hariri and supporters of General Michel Aoun claim that Saudi money was poured generously into the pockets of the Lebanese MPs present at Ta’if to facilitate the results.  On October 13, 1990, Lebanon fell under total Syrian hegemony. Hariri promptly returned to Lebanon and waited patiently as two successive cabinets expired before he was installed, under Syrian sponsorship, as Prime Minister in 1992. Great hopes were pinned on his ability to lead the country into an era of peace and prosperity.

Despite having absolutely no political experience from his time in Saudi Arabia, Hariri became the Syrian choice, partly due to his Saudi credentials and wealth. Furthermore, Hariri had succeeded in weaving bonds of close friendships and association with powerful Syrian figures such as Vice President Abdel Halim Khaddam, Army Chief of Staff Hikmat Shehabi and Syria’s resident Viceroy in Lebanon, General Ghazi Kinaan. Finally, he had become a supporter and confident of Jacques Chirac, who was soon to serve as President of France (1995-2007). Khaddam, Shehabi and Kinaan enjoyed the confidence of President Assad and, between them, exercised control over Lebanon. They gave Hariri such firm support that he eclipsed the Syrian-chosen president whose office had already been stripped of most of its constitutional powers under the Ta’if-mandated constitutional amendments. Hariri, Chirac, Khaddam, Shehabi and Kinaan acted as senior partners in a consortium of sorts combining powerful political and economic interests. Hariri’s consortium appears to have survived him. The Lebanese Government under Hariri ran huge budget deficits, borrowed heavily, and issued Lebanese treasury bonds to support borrowings, repayment and accumulated interest. As a result, the nation’s public debt is currently estimated to have exceeded $50 billion with no plan to amortize the debt in sight.²⁷

When General Lahoud was elected president in 1998, under the usual Syrian sponsorship, he wanted Syrian General Kinaan transferred away from Lebanon, but his wish was not expediently granted by Syrian President Assad. In June 2000 Assad passed away and in the following month his son Bashar was installed in his place. In the early days of his presidency, Bashar was influenced on Lebanese affairs by the more experienced Hariri associates Khaddam and Kinaan. Khaddam, helped by Kinaan, was instrumental in choosing Lebanese cabinet members and members of parliament.  Kinaan is widely credited with authoring Lebanon’s general elections law of January 6, 2000, which was designed to further the political fortunes of Hariri and his close allies. Hariri won the elections of October, 2000, and, on October 26, 2000, was, at Bashar. Assad’s orders, appointed prime minister. Part of the price of Hariri’s appointment was Bashar’s eventual accession to Lahoud’s request to transfer Kinaan out of Lebanon. Assad eventually transferred Kinaan to another assignment in Syria. Kinaan did not leave until a lavish ceremony, hosted by Hariri, was held at the Prime Minister’s office at the Grand Serail on October 9, 2003.  The president of the Beirut municipality, a Hariri loyalist, gave a farewell speech and presented the outgoing Syrian General with the Key to Beirut which was followed by an acceptance and thank-you speech by Kinaan and, finally, by a speech by Hariri who lavished praise on Kinaan for his “accomplishments” in Lebanon.²⁸

President Bashar Assad of Syria had resolved, as one of the early goals of his presidency, to retire the old guard who had served his father. First General Shehabi was retired as the Army’s Chief of Staff, and he soon traveled to the United States via Beirut to settle there. Then Khaddam lost his powers bit by bit until his eventual retirement became a foregone conclusion. Kinaan had become the Minister of Interior of Syria, a position which yielded no military power. Suddenly Hariri realised that he was losing valued Syrian pillars of his consortium, and with them his assured Syrian support. Nevertheless, Hariri supported the constitutional amendment to extend Lahoud’s term. He attended Parliament on September 4, 2004, and voted for the amendment. Upon the beginning of Lahoud’s extended term, Hariri submitted his resignation in accordance with the constitution.

Several months after the assassination of Hariri, General Ghazi Kinaan reportedly committed suicide in his office at the Interior Ministry, Damascus. Soon thereafter Abdel Halim Khaddam was stripped of his office as vice president, defected to France and is currently being prosecuted in Syria for high treason. Indications are that some form of a conspiracy, never disclosed to the public, involved Khaddam, Kinaan and others with the aim of overthrowing President Assad. According to this version, Kinaan, when confronted with the evidence, chose to commit suicide rather than face disgrace. It is highly doubtful that Hariri had any personal knowledge or involvement in the conspiracy.

Political assassinations are not new to Lebanon. The first prime minister in the independence era, Riad al-Solh, was assassinated in 1951. The list of those assassinated before Hariri is long. Prominent journalists, members of parliament and Muslim religious leaders were assassinated as well, before, during and after the Lebanese Civil War. Starting from 1957 the list includes editors of daily or weekly papers: Nasib Metni, Riad Taha, Kamel Mroueh and Salim Lozi. Assassinated Members of Parliament include Mohammad Abboud, Naim Mghabghab, Marouf Saad, Kamal Jumblat, and Nazem al Qadri.  Former MP, minister and militia leader Elie Hobeiqah and party leader and former militia leader Dany Shamoun were assassinated, the latter with his wife and two little children. MP Toni Franjieh was assassinated with his wife and little girl as part of the Ehden massacre that took over thirty other lives. Four Muslim Sunni religious leaders were assassinated, namely, Grand Mufti Sheikh Hassan Khalid, Sheikh Sobhi Saleh, Sheikh Ahmad Assaf and Sheikh Nizar Halabi. A Shiite religious leader, Imam Mousa Sadr, disappeared without trace with two companions, journalist Abbas Badred-dine and Sheikh Mohamad Yakoub, while they were in Libya as guests of the Libyan Government, and are presumed to have been assassinated. Many prominent writers, including Kamal el Haj, Husain Mroueh and Hasan Hamdan, were gunned down. Political party leaders such as Khalil Naous, Isam Arab, Ramzi ‘Irani, Adnan Sinno and Wisam Zenid-dine, were assassinated. Many foreign diplomats were murdered including an American Ambassador and two of his companions (the kidnappers were arrested and brought to trial but were freed pursuant to one of the amnesties), French, Iraqis and Jordanians. Four Iranian diplomats were kidnapped and presumably assassinated. Two embassies, the American ad the Iraqi, were blown up with heavy casualties. Malcolm Kerr, President of AUB, was assassinated. A prominent Iraqi exile, Sheikh Taleb Tamimi, was murdered and his accused killers, diplomats with the Iraqi Embassy, were allowed to leave the country due to their diplomatic immunity. One sitting president, Rene Muawad, and one president-elect, Bashir Gemayel, were assassinated. A sitting prime minister, Rashid Karameh, was assassinated in 1987. An attempt was made on the life of another sitting Prime Minister, Salim Hoss, from which he escaped miraculously, but others died. Most of those crimes either went unresolved or unpunished or were whitewashed by general amnesty. This long list of crimes does not make the assassination of Hariri a lesser crime or less deserving of prosecution and punishment. But there is no logical or moral basis for fully investigating and, eventually prosecuting, the Hariri Case to the exclusion of all the previous cases.  

The instant stigmatisation of Syria in the assassination

After the murder of Hariri, accusations were instantly thrown against the government of Syria.  Similar accusations followed every subsequent and preceding political crime. This stigma depicted the Syrian Government as a criminal gang of serial killers. The Hariri Tribunal is openly viewed by Syria’s Lebanese adversaries, formerly its allies, as the vehicle to indict the Syrian leadership all the way up to President Bashar Assad or his close relatives, and to punish them appropriately along with everyone involved. This approach, purportedly favored by the United States and France, is aimed at obtaining major regional political concessions from the Syrian leadership. If true, it turns the proposed court into a potent political and strategic instrument. The Syrian Government, while obviously denying any such involvement  is visibly uncomfortable with the progress of the proposal to establish the Hariri court.

Ideally speaking, an investigation into the possible role of foreign governments should not start out by excluding any country. Western as well as Middle Eastern governments have in the past carried out political assassinations. The Israeli government, for one, cannot be excluded, for it has a proven history of such state-ordered crimes, particularly in Lebanon which many Israeli leaders unabashedly and openly brag about.²⁹

This is not meant as an indictment of Israel in the Hariri murder. The point being raised is that the zeal to incriminate Syria has unjustifiably and prematurely eliminated all other options.

The judge selection process

The proposal for the Hariri Tribunal calls for the appointment by the UN Secretary General of its judges from among Lebanese and non-Lebanese candidates.

Regardless of the legality issues affecting the Hariri Court proposal, the process of judge selection ought to be open, transparent and subject to contribution by qualified jurists led by judges of the International Court of Justice. The sad experience of the Solidere commissions should not be repeated. An open process could enhance the credibility of the Hariri Court, especially since its purported raison d’etre is the perceived inability of the domestic Lebanese justice system to cope with the Hariri assassination case.

The authority to appoint judges should be vested exclusively in the Lebanese Government in accordance with due Lebanese constitutional and legal process. Judges should be accountable from all aspects in accordance with Lebanese law.

The free gasoline episode

On 12 July 2007, an application was brought before a chamber of the Lebanese Court of Cassation headed by Judge Ralph Riashi, to transfer, for legitimate suspicion, the Hariri murder investigation case, currently seized by Lebanese justice authorities, from Justice Investigating Judge Elias Eid who had been entrusted with it since March 24, 2005, to another judge.  Judge Riashi had been a key Lebanese negotiator on behalf of the Lebanese Ministry of Justice who conducted discussions with the office of the Secretary General over the drafts for the proposed Hariri Court instruments. Riashi’s conduct of negotiations on behalf of the Minister of Justice was obviously in blatant violation of the constitutional rule of separation of powers and of the Constitution that plainly gives the President of the Republic exclusive power over the negotiation of international agreements. On September 6, 2007, the Riashi Court admitted the request and recused Eid on the basis of solid evidence that Eid had been regularly receiving from the Directorate of General Security (“Surete Generale”, Lebanon’s political police and intelligence service) three hundred liters of premium gasoline per month for free beginning from February, 2003. General Jamil Assayed, until recently Director General of Surete Generale, is under arrest in the investigation of the Hariri murder.

What is highly troubling is that Judge Eid was not alone in receiving the Surete Generale favors. It turns out from documentary evidence on file in Riashi’s court that many other prosecutors and judges are or were in the same boat as Eid. Prominent among them are Said Mirza, Chief Public Prosecutor before the Court of Cassation and Adnan Addoum, his predecessor. Documentary evidence received by the Riashi Court on July 27, 2007, from the Minister of the Interior in the said recusal proceedings also implicates the last three presidents of HJC: Mounir Hunain, Nasri Lahoud, and Tanios el Khouri, Judicial Inspector General and former First Investigating Judge for Mount Lebanon Fawzi Dagher, and the Public Prosecutor for Beirut Joseph Maamari.

The Surete Generale is not exactly the KGB but has, by law, many of its functions. Why would it deliver free premium gasoline to prosecutors and judges, and what did it expect from them in return?

A vocal Lebanese politician, Walid Jumblat, charged in a newspaper interview published on August 23, 2007 ³⁰, that the list of Lebanese judges submitted to the Secretary General by the Justice Minister was “booby trapped” and could be loaded with “Syrian agents.” Similarly, Michel Aoun, charged in a press release that 62 other judges were, and are still, regularly receiving free gasoline from the Surete Generale and are in the same position as Eid. 

While it is clear that the key Lebanese prosecutors and the investigating judge designated for the Hariri murder investigation, who all worked closely with the UNSC-appointed commission, benefited illicitly from the Surete Generale free gasoline scheme, it is not clear yet how many of the nominees to the Hariri Court have similarly benefited. All this leads to the inevitable conclusion, that the integrity of the Hariri murder investigation, as well the future process of the Hariri Court, could have been seriously compromised.

The power to create special international courts

The United Nations Charter (UNC) is anchored on the principle of the sovereign equality of all its members (Article 2, Paragraph 1 UNC).  The Charter recognises an exception to this principle in the application of enforcement measures by the Security Council, under Chapter VII (Article 2, Paragraph 7 UNC).

Enforcement measures presuppose the existence of an international dispute, likely to threaten international peace and security, arising between state parties that failed to settle the same after a good faith attempt for settlement was made under Chapter VI on the Pacific Settlement of disputes. Article 33 of this chapter reads:

“1. The parties to any dispute, the continuance of which is likely to endanger the international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice.”  

As a general rule, Article 36, Paragraph 3, UNC requires that legal disputes be referred by the parties to the International Court of Justice. In fact, Article 7 UNC makes the International Court of Justice one of the principal organs of the United Nations on par with the general Assembly and the Security Council, and Article 1 of the Court’s Statutes recognizes it as the principal judicial department of the organisation. It is therefore inconceivable that the Security Council derives from the UNC any power to create other courts of law.

Despite the fact that the UN Security Council lacks any such authority in the Charter, it did act to create two international penal courts basing itself on Chapter VII UNC which provides it with no such power, namely

The International Court for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, of May 25, 1993, andThe International Tribunal for Rwanda, of November 8, 1994.

The crimes and violations covered by the mandate of these tribunals were committed in war situations where multi-national military forces, in the case of the former Yugoslavia, and UN Forces, in the case of Rwanda, had operated.

In addition, the UNSC approved the establishment, pursuant to an agreement between the government concerned and the UN Secretary General, of the Special Court for Sierra Leone, of August 14, 2000.

In stark contrast to the these three tribunals, the Extraordinary Chamber in the Courts of Cambodia (ECCC) was established in 2001 by legislation passed by the Cambodian National Assembly and welcomed by Resolution 57/228 of the UN General Assembly which was followed by an assistance agreement between the Cambodian Government and the Secretary General.  ECCC has a majority of Cambodian judges and operates in Cambodia as a part of the Cambodian judicial system.

The common denominator of all the above mentioned courts is their mandate to prosecute and try individuals for crimes against humanity such as genocide and violations of the Geneva Conventions and international humanitarian law.

The proposed special court for Lebanon is different. To begin with, it totally ignores all previous crimes against humanity and is in violation of international humanitarian law. The proposal also ignores similar criminal acts committed by state parties in the context of regional military conflicts involving Lebanon, such as Israel the USA and other state parties. Some may argue that such a court is politically unfeasible but no one can deny that it is morally imperative. In ignoring the regional dimensions of Lebanon’s bloody past, the UNSC has departed from former practices in Yugoslavia, Rwanda, Sierra Leone and Cambodia.

Under its Resolution 1757 of May 30, 2007, the Council spoke from both sides of its mouth in “reiterating its call for the strict respect” for the sovereignty and political independence of the Republic of Lebanon under “the sole and exclusive authority” of its government, but deciding that the provisions of the agreement said to have been entered between the Government of Lebanon and the Secretary General “shall go into effect,” despite its defectiveness according to Lebanon’s Constitution.

Article 52 LC requires the prior approval of Parliament for the ratification of such agreements. Furthermore, the power to enter such agreements and to ratify the same, after the authority of parliament is obtained where required, is vested exclusively with the President. The Prime Minister, though entitled by the Constitution to speak for the Council of Ministers and its policy domestically, is not authorized by the Constitution to represent the state, the Republic of Lebanon, either domestically or internationally.

Decreeing into force a draft of an agreement that has not been duly executed or duly ratified by the Republic of Lebanon in accordance with its constitutional process is, unquestionably, outside the powers of the Security Council.

Worse than that, the Council has unwittingly engaged in the domestic game of one-time-exceptions, on the assumption that justice will not be done within a strictly Lebanese judicial framework.

CONCLUSION

The Security Council should not function in violation of UNC or the constitutions and internal legal systems of UN Members with the impunity that is so characteristic of Middle Eastern politics.   

It is undeniable that something is grossly wrong with the judiciary in Lebanon and it is the duty of the Lebanese government to introduce such comprehensive reforms to the judicial system as may be reasonably necessary, possibly with the support of the United Nations. It is even understandable to provisionally borrow foreign judges in an imitation of the old “Mixed Courts” which were abolished shortly after Lebanon attained its independence, in a possible imitation of the example of Cambodia that shares with Lebanon to a considerable extent a similar legal tradition.

It is morally wrong to single out one murder case for a quasi-international tribunal that would cost more that the entire Lebanese court system combined.

While the author fully supports universal jurisdiction, he strongly believes that such jurisdiction should supplement, and not replace, domestic jurisdiction. What is urgently needed to support the credibility of the United Nations, and more particularly the credibility of the Security Council and the office of the Secretary General, is to also show prompt serious interest in swiftly achieving three much needed reforms:

A. A sweeping overhaul of Lebanon’s justice system, with the utilization of available resources equal or superior to those used or to be used in the Independent Commission’s investigation and the Hariri Court itself , with the aim of ending the environment of impunity, immunity, none-accountability and establishing the rule of law.

B. Constitute, with strong UNSC support a potent international human rights court for the Middle East and North Africa with original jurisdiction over violations of human rights, humanitarian law, abuse of power, and denial of justice, which would have the power to hear original complaints, the power to hear appeals from decisions of domestic courts, and the power to order penalties, sanctions and reparations.  Sovereign immunity should not be allowed to be pleaded as a defense in such court.

C. The Security Council should conduct itself strictly within the powers explicitly granted thereto by UNC and thereby set an example to the UN Members in the fullest respect for the rule of law.

The Hariri Court, with the proper and transparent selection of judges as herein proposed, can and should be set up in conformity with due Lebanese constitutional and legal process guided by the Cambodian example. Furthermore, the above mentioned vital reforms should concurrently, seriously and credibly be implemented, backed by adequate resources. All this could[MSOffice5]  lead to the rise of the rule of law, in Lebanon, the Middle East and North Africa and the World.

Notes

1. Press release by the office of the UN Secretary General, An-Nahar, Beirut, 8 September 2007.

2. A public attitude survey conducted in 2006 by Information International, Beirut, for the Center of Democracy and the Rule of Law, headed by the author, indicated that most Lebanese had conflicting loyalties between their respective communal group and Lebanon, and that, in the event of conflict, many Lebanese will identify with their respective community rather than with the country. The survey also established that the absence of the rule of law contributed to that state of affairs and that many, who decided to side with their community, would change and identify with Lebanon if their rights are assured through a credible justice system under the rule of law.

3. Armstrong, 2001: 3.

4. Hitti, 1959: 394, and Marsi, 2004: 398.

5. Riquet, 1977 : 6.

6. Armstrong, 2001: 450.

7. Debs, 1994: 335.

8. Fromkin, 1989: 8.

9. Hakim, 1986: 47.

10. Ibid: 197.

11. Salibi, 2002: 209.

12. Ibid: 211.

13. The general elections laws of 24 April 1957 and 26 April1960, which remained in force till the Taef Amendments.

14. This was incorporated in one of the Taef Amendments of the Constitution. Article 24 LC provides that, until Parliament adopts a non-sectarian electoral law, parliamentary seats shall be equally divided among Christians and Muslims.

15. Unnamed bishops of the Maronite Church, in a press interview, expressed their apprehension in estimating one fourth of the population left the country during the last year alone, International Herald Tribune, Paris, 10 October 2007. See also Feghali, 2002: 9.

15. Jisr, 1978: 142-151

16. Khazen, 2005: 194, 219.

17. Ibid: 455.

18. On December 12, 2003, US President Bush signed the Syria Accountability and Lebanese Sovereignty Restoration Act (SAA) as Public Law 108-175. The US Congress passed the SAA to sanction Syria for its purported support for terrorism, occupation of Lebanon, weapons of mass destruction programs, illegal imports of Iraqi oil, and its role in the ongoing security problems in the Middle East. Section 5(a)(1) of the SAA requires a prohibition on the export to Syria of all items on the Commerce Control List (CCL). The SAA also requires the US President to select at least two of the six additional sanctions defined in Section 5(a)(2)(A) - (F). As provided in Executive Order 13338 of May 11, 2004, President Bush chose to implement Sections 5(a)(2) (A) and (D) at that time. Section 5(a)(2)(A) is a prohibition on the export or re-export to Syria of all products of the United States, with the exception of food and medicine. Source: US Department of Commerce Website.

19. An-Nahar, 25 August 2004.

20. Blaiq, 1978: 777.

21. Hitti, 1959: 443.

22. A detailed documented narrative of those events is found in Tueni, 1998.

23. Among the Lebanese towns which witnessed horrible massacres are: Bireh, Bmaryam, Maaser Beiteddine, Maaser el Shouf, Burjain, Shartoon, Krarmatta, Binayeh, Sibneih, Ghouarna, Aishieh, Bsaba, Barouk, el Qaa, Deir Dourite, Ameeq, Rahbeh, Ihden, Nahr el Mawt, and the Palestinian settlements at Dbayeh, Jisr el Basha, Tel el Zaatar and Beirut. Occupants of a van carrying AUB staff were massacred. So where children in a school bus.

24. A copy of this document is on file with the author.

25. A copy of this document is on file with the author.

26. Justice Investigating Judge Adel Takieddine issued an indictment on 25 September 1957 for over 300 accused including Ahmad Assaad, a former speaker of Parliament, Sabri Himadeh, another former speaker of parliament, Abdallah Yafi, a former prime minister, Saeb Salam, aother former prime minister, Hamid Franjieh, a former foreign minister, Nasim Majdalani, a former minister, Abdallah Mashnouk, a journalist, and Ali Bazzi, a former minister

27. In the absence of published and reliable official figures, this is one estimate of many. The estimates range from a low of $40 billion to a high of $60 billion.

28. As-Safir, 10 October 2002.

29..

30. See for example a recently published book on the assassination of Robert Maxwell which details covert Israeli involvement (Thomas and Dillon, 2003: 3-48 and 278). For evidence from Lebanon, see Pappe, 2007: 58. The names of the living witnesses, who are close personal friends of the author, are withheld for security reasons.

31. Supplement to An-Nahar, August 23, 2007.

Sources

A. General

1. The author, Lebanese by nationality and residence, is a living witness of many of events described in this article. His statement thereof, often without citing references, is of the nature of oral history.

2. Details of court cases and prosecutions are based on the documents in court files which were accessed by the author.

3. Texts of statutes and official appointments of judges, prime ministers and cabinet members are taken from the Official Gazette of the Republic of Lebanon.

4. Texts of UN resolutions and documents are taken form the United Nations Organizations’ official website.

5. Texts of US congressional acts are taken from the US Government’s websites.

B. Daily papers

1. An-Nahar, Beirut.

2. As-Safir, Beirut.

3. International Herald Tribune, Paris.

C. Books

Armstrong, Karen, Holy War, The Crusades and Their Impact on Today’s World, Anchor Books, New York, Second Edition, 2001.

Blaiq, Izzeddine, Minhaj As-Saliheen (in Arabic), Dar AlFateh, Beirut, 1978.

Debs, Yousuf (Bishop), The Religious and Secular History of Syria, Volume 6, 1903, Dar Nazir Abboud, Second Printing, Beirut, 1994.

Fghali, Kamal, Religious Communities in Lebanon, a Demographic Reading, Mokhtarat, Zalka, Lebanon, 2002.

Fromkin, David, A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York, Owl, 1989.

Hakim, Yousuf, Syria in the Faical Era (in Arabic), Dar An-Nahar, Beirut, 1986.

Hitti, Philip K., Lebanon in History, Arabic Edition, Franklin Corporation, Beirut-New York, 1959.

Jisr, Bassem, The National Pact (in Arabic), Dar An-Nahar, Beirut, 1978.

Khazen, Farid,  Breakdown of the State in Lebanon, 1967-1976 (Arabic Edition), Dar An-Nahar, Beirut, 2005.

Marsi, Mati, The Maronites in History (In Arabic), Cadmos publishing, Beirut, 2004.

Riquet, Pere Michel, Les Maronites au Liban, Centre d’Information et de Documentation sur le Moyen-Orient, Geneva, 1977.

Pappe Ilan, The Ethnic Cleansing of Palestine, One-World Publications, Oxford, 2007.

Salibi, Kamal, Modern History of Lebanon (in Arabic), Dar An-Nahar, Beirut, 2002.

Sneifer, Regina, J’ai depose les armes, Les Editions de l’Atelier, Paris, 2006.

Thomas, Gordon and Dillon, Martin, The Assassination of Robert Maxwell, Robson Books, London, 2003.

Tueni, Gassan, Book of Independence in Pictures and Documents (in Arabic), Dar An-Nahar, Beirut, 1998.