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Just out of Jurisdictional Reach: The Rafik Hariri Case Eludes the ICC
By Kristen Heim
The Armenian Weekly
www.armenianweekly.com
September 23, 2006
`We should rule out the establishment of future ad hoc tribunals similar to
those for the former Yugoslavia, or for Rwanda. I think this is no longer an
option, as they are too expensive, [the] trials are too lengthy, and they
will be superfluous because of [the presence] of the International Criminal
Court.'
-Antonio Cassese(1)
Cassese's words echo the general consensus on the dwindling role of ad hoc
tribunals today. With the signing of the Rome Statue in 1998, the
international community was able to celebrate the long-awaited establishment
of an international judicial body capable of bringing the world's most
heinous crimes to justice. Today, the International Criminal Court (ICC) has
gained a solid foothold in trans-sovereign sanctioning, with three
large-scale conflicts on its agenda (Uganda, the Democratic Republic of the
Congo and Darfur) and 130 signatories to its Statute. After more than a
century of efforts, the international community has felt the inclination - an
entitlement, even - to place its faith in this newfound instrument.
And rightly so. Ad hoc tribunals, like the International Criminal Tribunal
for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR), have been criticized for taking from the international
community almost as dearly as they have given. There has been heated debate
over their limited contribution to local judicial systems, from which they
are derived, as well as over the cost to the already modest UN budget. In
addition, the geographical distance from the crime scenes remains a problem:
evidence and witnesses are difficult to obtain, judges and prosecutors are
seen as being out of touch with local cultural norms, and victims of the
crimes are left detached from the cathartic effects of a local trial(2). As
a result of these concerns and in light of the establishment of the ICC,
ad-hoc tribunals have been deemed obsolete alternatives in the pursuit of
international justice.
Yet, with precedents now set in Cambodia, Sierra Leone, Kosovo and East
Timor, a new form of tribunal, the so-called `hybrid tribunal,' has emerged
on the scene. Although sustained by local resources and the personnel of its
national judicial systems, hybrid tribunals combine both national and
international staff and resources(3) seeking to remedy some of the
contentious aspects of purely ad-hoc tribunals.
Despite these efforts, however, internationalized tribunals continue to be a
financial burden, and their internationalized nature raises new concerns
over the maintenance of consistent international legal procedures and
interpretation(4).
Plans to establish yet another hybrid tribunal to try those responsible for
the assassination of the former Lebanese Prime Minister Rafik Hariri, and
calls for the establishment of more tribunals of the same nature(5), leads
one to ask why such situations are not being referred to the body originally
established for this very purpose - the ICC.
To get to the heart of the matter, the court's reach must be systematically
taken into account through a review of ratione loci and personae(6), ratione
temporis(7), the principle of complimentarity(8) and ratione materiae(9).
At first glance, it seems all too apparent that the Hariri case falls
outside the scope of ICC jurisdiction. While states that have ratified the
Rome Statute agree to refer crimes committed on their soil or by their
nationals to the ICC, neither Lebanon nor Syria - states with jurisdiction
over the main suspects in the Hariri assassination - have done so. Vital to
this matter is the authority entrusted to the UN Security Council; that is,
if it deems a matter to be a `threat to international peace and security,'
it may still refer it to the ICC under the UN chapter VII mandate,
regardless of its commitment to the Rome Treaty(10). Thus, since the
Security Council has the last word in matters of rationae loci and rationae
personae, the Hariri case could have easily been referred to the ICC.
Similar conclusions can be reached when looking at the issue of
complimentarity. While the ICC has limited itself to involvement in matters
in which the state in question is unwilling or unable to bring the crime to
justice, its stance on this, too, remains somewhat flexible: The
interpretation and application of the principle of complimentarity rests
upon the digression of the Court on a case by case basis(11). Thus, the
willingness of the Lebanese government to try the Hariri case is unlikely to
be disputed. Should the ICC, however, deem the Lebanese judiciary unable to
process the case on its own, the Court could again declare it within its
jurisdictional reach(12).
Jurisdictional constraints stemming from the third criteria - ratione
temporis - are largely inapplicable to the Lebanese tribunal. Because the
assassination occurred in 2004, the case remains well within the authority
of the ICC. Concerns may have arisen only if the host state, like others
before it, had pushed for an extension of this date in order to `put events
in historical perspective,' so as to include events occurring before July 1,
2002(13).
Since the afore-mentioned jurisdictional limitations of the Court do not
provide a convincing argument for the ICC's lack of involvement in the
Hariri case, we turn our attention to ratione materiae - the true culprit, as
it were. According to Article 5 of the Rome Statute, only crimes
encompassing genocide, crimes against humanity, war crimes and (pending an
approved definition) crimes of aggression are considered by the Court. Acts
of terrorism, as the Hariri assassination has been defined, are not included
in the Statute for fear that the court would be `overburdened with
apparently less important cases(14).' Thus, the assassination will not be
tried by the ICC, but rather by a hybrid tribunal - the consequences and
merits of which remain to be seen.
If one conclusion can be drawn from this brief inquiry, however, it is the
continued relevance of the tribunal, in general terms, even in the shadow of
the ICC. Indeed, imperfect institutions that they may be, superfluous they
most certainly are not.
Kristen Heim is a graduate student of international politics and peace at
the Eberhard-Karls University in Tuebingen, Germany. She is currently
researching the political implications of the establishment of the Hariri
Tribunal in Lebanon.
Endnotes
1 Cassese, 12: professor of international law of Florence University and
former president of the ICTY
2 Cassese, book preface: evidence and witnesses are most easily obtained and
accessed locally
3 Shraga, 28: including national and international judges, prosecutors, and
administrative staff
4 Condorelli, Boutruche, 432-433: for details on how the case of Cambodia
challenged this consistency
5 various news sources have reported on a push for the establishment of a
tribunal to try Israel for alledged war crimes and crimes against humanity
in the recent war in Lebanon
6 Where the Court presides jurisdiction only over those parties to the Rome
Statute in which those persons who are either nationals (personae) of a
State Party to the Statute or where the crimes have occurred on the
territory(loci) of a State Party of the Statute. See Benzing, Bergsmo, 408
7 Where the Court may only try cases committed after 1 July 2002. See
Benzing, Bergsmo, 408
8 Where the Court may only intervene in cases where states are unable or
unwilling to do so. Benzing, Bergsmo, 408
9 Where the Court may only adjudicate over the most serious crimes, Benzing,
Bergsmo, 408
10 Colitti, 421
11 Benzing, Bergsmo, 413-414: interpretation is made possible through
article 17 of the Statute
12 here, the `ability' to adjudicate would most likely be based upon
security concerns
13 Shraga, 28: with the exception of the ICTY, all governments have
requested a termporal extentions
14 Colitti, 422
From: Emil Lazarian | Ararat NewsPress
By Kristen Heim
The Armenian Weekly
www.armenianweekly.com
September 23, 2006
`We should rule out the establishment of future ad hoc tribunals similar to
those for the former Yugoslavia, or for Rwanda. I think this is no longer an
option, as they are too expensive, [the] trials are too lengthy, and they
will be superfluous because of [the presence] of the International Criminal
Court.'
-Antonio Cassese(1)
Cassese's words echo the general consensus on the dwindling role of ad hoc
tribunals today. With the signing of the Rome Statue in 1998, the
international community was able to celebrate the long-awaited establishment
of an international judicial body capable of bringing the world's most
heinous crimes to justice. Today, the International Criminal Court (ICC) has
gained a solid foothold in trans-sovereign sanctioning, with three
large-scale conflicts on its agenda (Uganda, the Democratic Republic of the
Congo and Darfur) and 130 signatories to its Statute. After more than a
century of efforts, the international community has felt the inclination - an
entitlement, even - to place its faith in this newfound instrument.
And rightly so. Ad hoc tribunals, like the International Criminal Tribunal
for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR), have been criticized for taking from the international
community almost as dearly as they have given. There has been heated debate
over their limited contribution to local judicial systems, from which they
are derived, as well as over the cost to the already modest UN budget. In
addition, the geographical distance from the crime scenes remains a problem:
evidence and witnesses are difficult to obtain, judges and prosecutors are
seen as being out of touch with local cultural norms, and victims of the
crimes are left detached from the cathartic effects of a local trial(2). As
a result of these concerns and in light of the establishment of the ICC,
ad-hoc tribunals have been deemed obsolete alternatives in the pursuit of
international justice.
Yet, with precedents now set in Cambodia, Sierra Leone, Kosovo and East
Timor, a new form of tribunal, the so-called `hybrid tribunal,' has emerged
on the scene. Although sustained by local resources and the personnel of its
national judicial systems, hybrid tribunals combine both national and
international staff and resources(3) seeking to remedy some of the
contentious aspects of purely ad-hoc tribunals.
Despite these efforts, however, internationalized tribunals continue to be a
financial burden, and their internationalized nature raises new concerns
over the maintenance of consistent international legal procedures and
interpretation(4).
Plans to establish yet another hybrid tribunal to try those responsible for
the assassination of the former Lebanese Prime Minister Rafik Hariri, and
calls for the establishment of more tribunals of the same nature(5), leads
one to ask why such situations are not being referred to the body originally
established for this very purpose - the ICC.
To get to the heart of the matter, the court's reach must be systematically
taken into account through a review of ratione loci and personae(6), ratione
temporis(7), the principle of complimentarity(8) and ratione materiae(9).
At first glance, it seems all too apparent that the Hariri case falls
outside the scope of ICC jurisdiction. While states that have ratified the
Rome Statute agree to refer crimes committed on their soil or by their
nationals to the ICC, neither Lebanon nor Syria - states with jurisdiction
over the main suspects in the Hariri assassination - have done so. Vital to
this matter is the authority entrusted to the UN Security Council; that is,
if it deems a matter to be a `threat to international peace and security,'
it may still refer it to the ICC under the UN chapter VII mandate,
regardless of its commitment to the Rome Treaty(10). Thus, since the
Security Council has the last word in matters of rationae loci and rationae
personae, the Hariri case could have easily been referred to the ICC.
Similar conclusions can be reached when looking at the issue of
complimentarity. While the ICC has limited itself to involvement in matters
in which the state in question is unwilling or unable to bring the crime to
justice, its stance on this, too, remains somewhat flexible: The
interpretation and application of the principle of complimentarity rests
upon the digression of the Court on a case by case basis(11). Thus, the
willingness of the Lebanese government to try the Hariri case is unlikely to
be disputed. Should the ICC, however, deem the Lebanese judiciary unable to
process the case on its own, the Court could again declare it within its
jurisdictional reach(12).
Jurisdictional constraints stemming from the third criteria - ratione
temporis - are largely inapplicable to the Lebanese tribunal. Because the
assassination occurred in 2004, the case remains well within the authority
of the ICC. Concerns may have arisen only if the host state, like others
before it, had pushed for an extension of this date in order to `put events
in historical perspective,' so as to include events occurring before July 1,
2002(13).
Since the afore-mentioned jurisdictional limitations of the Court do not
provide a convincing argument for the ICC's lack of involvement in the
Hariri case, we turn our attention to ratione materiae - the true culprit, as
it were. According to Article 5 of the Rome Statute, only crimes
encompassing genocide, crimes against humanity, war crimes and (pending an
approved definition) crimes of aggression are considered by the Court. Acts
of terrorism, as the Hariri assassination has been defined, are not included
in the Statute for fear that the court would be `overburdened with
apparently less important cases(14).' Thus, the assassination will not be
tried by the ICC, but rather by a hybrid tribunal - the consequences and
merits of which remain to be seen.
If one conclusion can be drawn from this brief inquiry, however, it is the
continued relevance of the tribunal, in general terms, even in the shadow of
the ICC. Indeed, imperfect institutions that they may be, superfluous they
most certainly are not.
Kristen Heim is a graduate student of international politics and peace at
the Eberhard-Karls University in Tuebingen, Germany. She is currently
researching the political implications of the establishment of the Hariri
Tribunal in Lebanon.
Endnotes
1 Cassese, 12: professor of international law of Florence University and
former president of the ICTY
2 Cassese, book preface: evidence and witnesses are most easily obtained and
accessed locally
3 Shraga, 28: including national and international judges, prosecutors, and
administrative staff
4 Condorelli, Boutruche, 432-433: for details on how the case of Cambodia
challenged this consistency
5 various news sources have reported on a push for the establishment of a
tribunal to try Israel for alledged war crimes and crimes against humanity
in the recent war in Lebanon
6 Where the Court presides jurisdiction only over those parties to the Rome
Statute in which those persons who are either nationals (personae) of a
State Party to the Statute or where the crimes have occurred on the
territory(loci) of a State Party of the Statute. See Benzing, Bergsmo, 408
7 Where the Court may only try cases committed after 1 July 2002. See
Benzing, Bergsmo, 408
8 Where the Court may only intervene in cases where states are unable or
unwilling to do so. Benzing, Bergsmo, 408
9 Where the Court may only adjudicate over the most serious crimes, Benzing,
Bergsmo, 408
10 Colitti, 421
11 Benzing, Bergsmo, 413-414: interpretation is made possible through
article 17 of the Statute
12 here, the `ability' to adjudicate would most likely be based upon
security concerns
13 Shraga, 28: with the exception of the ICTY, all governments have
requested a termporal extentions
14 Colitti, 422
From: Emil Lazarian | Ararat NewsPress