1. The drafting history of the Statute of the Special Tribunal for Lebanon

The expression ‘tribunal of an international character’ first appeared in the letter that launched the process creating the Special Tribunal for Lebanon, sent by the prime minister of Lebanon to the Secretary-General on 13 December 2005.Footnote ⁴ The Security Council reacted promptly, ‘[a]cknowledg[ing] the Lebanese Government's request that those eventually charged with involvement in this terrorist attack be tried by a tribunal of an international character, request[ing] the Secretary-General to help the Lebanese Government identify the nature and scope of the international assistance needed in this regard’.Footnote ⁵

The Secretary-General then responded to the request, noting that

In addition to distinguishing between an ‘exclusively international tribunal’ and a ‘mixed tribunal’, the report of the Secretary-General also referred to ‘international or internationally assisted tribunals’,Footnote ⁷ and proposed to establish the Lebanese court on the basis of an agreement between the United Nations and Lebanon, leaving it to the Lebanese authorities to determine whether national legislative action was needed. ‘Such an approach would also not exclude the need for the [Security] Council to take complementary measures to ensure the effectiveness of and cooperation with the tribunal’, concluded the Secretary-General.Footnote ⁸ He noted further that the choice of applicable law ‘must take into account the types of crimes committed and respect the legal culture of Lebanon, as well as the international criminal justice standards that have developed over the past years in the work of other tribunals’.Footnote ⁹ The report discussed the importance of ‘significant international participation’ in the composition of the tribunal, relating this to issues of independence, objectivity, and impartiality.Footnote ¹⁰ It was also acknowledged that international financial support would be necessary.Footnote ¹¹

The Security Council ‘[w]elcom[ed] the report of the Secretary-General, and request[ed] him to negotiate an agreement with the government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice, taking into account the recommendations of his report and the views that have been expressed by Council members’.Footnote ¹² In November 2006 the Secretary-General responded to this mandate with a detailed report, including a draft agreement between the United Nations and Lebanon establishing the new tribunal, and the draft statute of the tribunal. He spoke directly regarding the meaning to be given to the concept of a ‘tribunal of an international character’:

The Secretary-General was distinguishing between tribunals that were ‘of an international character’ or had ‘international characteristics’, and those that ‘remain national in character’. He also observed certain distinctions between what was being proposed for Lebanon and the existing UN-inspired international tribunals, notably with regard to procedure. Previous tribunals had ‘included more common law elements’.Footnote ¹⁴ Perhaps all that this indicates is that the criminal procedure followed by any particular tribunal does not assist in determining whether or not it is ‘of an international character’. Nor does the temporal or personal jurisdiction seem relevant in examining the question. It is probably otherwise, however, with respect to the subject-matter jurisdiction and the applicable law, as the Secretary-General noted when he said ‘its subject matter jurisdiction or the applicable law remain national in character’.Footnote ¹⁵

The French text of the Statute of the Special Tribunal for Lebanon provides a further complication. The Security Council refers to the Tribunal as being a ‘tribunal international’,Footnote ¹⁶ and this succinct term suggests a higher level of internationalization than the English expression ‘tribunal of an international character’. But in at least one other document, including one for which the original was drafted in French by the most senior international lawyer in the UN Secretariat, the expression ‘tribunal à caractère international’ is employed.Footnote ¹⁷ Because of the discrepancies in the French terminology, it would be unwise to attach too much importance to the distinction between ‘tribunal of an international character’ and ‘tribunal international’.

2. Subject-matter jurisdiction

In Yerodia, the ICJ did not indicate how it proposed to distinguish between international criminal courts, before which immunity did not avail, and national courts, where it could be invoked as an obstacle to the exercise of jurisdiction. It seems unlikely that the Court considered the subject-matter jurisdiction to be the determining factor, however. Indeed, it had been one of Belgium's main arguments that there could be no immunity precisely because of the international nature of the crimes in question. The ICJ did not follow this reasoning, although it did form the basis of the dissent of the ad hoc judge, Christine van den Wyngaert, and was also commented upon by other judges. Judge van den Wyngaert reproached the majority for disregarding ‘the whole recent movement in modern international criminal law towards recognition of the principle of individual accountability for international core crimes’.Footnote ¹⁸ Judge Oda, on the other hand, said that the issue was ‘too new to admit of any definite answer’.Footnote ¹⁹ With respect to the Special Tribunal for Lebanon, the question is not, however, whether the institution is ‘international’ because it is prosecuting international crimes. One of the features of the Special Tribunal for Lebanon that sets it apart from the other UN ad hoc tribunals is the fact that its subject-matter jurisdiction comprises no international crimes whatsoever. What needs to be determined, therefore, is whether a court can be international if its subject-matter jurisdiction consists of purely national crimes.

Crimes may be ‘international’ as a result of their recognition either by treaty law or by customary law. When they are identified as ‘international’, the legal consequences of this determination may include an obligation to prosecute or extradite, formulated with varying degrees of strengthFootnote ²⁰ or weakness,Footnote ²¹ as well as an acknowledgement that third states may exercise universal jurisdiction over such a crime.Footnote ²² Some crimes are almost certainly international, essentially because they are transnational in nature or are committed in areas that are not within the territorial jurisdiction of any state. Piracy, which may be committed on the high seas against nationals of a state that has no realistic hope of punishing the crime, is an example. Other crimes are said to be international in nature because they ‘shock the conscience of humanity’. Such crimes – genocide, crimes against humanity, war crimes, and the crime of aggression – have been central to the jurisdiction of the international criminal tribunals since their inception. They are the ‘core crimes’ of the ICC. International tribunals may also prosecute crimes that are not even remotely international. For example, as a general rule, the international tribunals have jurisdiction over such crimes as false testimony or perjury.Footnote ²³ The justification is not that these are international crimes, but rather that they are in some way ancillary to the exercise of jurisdiction over the truly international crimes.

An unresolved issue in international criminal law echoes a familiar debate in national criminal justice, namely whether the crimes are mala in se or mala prohibita. For a crime to be genuinely international, is it enough for it to be declared as such by treaty, or by a resolution of the Security Council? Or is there something special or inherent in the nature of international crimes, a feature that elevates them, to use the words of the preamble of the Rome Statute, to being ‘the most serious crimes of concern to the international community as a whole’?Footnote ²⁴ The international character of the prohibition of genocide, crimes against humanity, and war crimes is often justified because they are mala in se. Indeed, this underpins their claim to being norms that are erga omnes and jus cogens. Yet in the case of other international crimes, such as piracy and drug trafficking, the mala prohibita rationale seems to prevail. This intriguing question need not be addressed in considering whether the Special Tribunal for Lebanon is an ‘international criminal court’, because the drafting history of the Statute makes clear the intent to give it jurisdiction only over crimes under national law.

One of the international tribunals, the Special Court for Sierra Leone, has jurisdiction over a mixture of international crimes and crimes provided for in the laws of Sierra Leone that are quite clearly not of an international nature, such as ‘abusing a girl under 13 years of age’, ‘abduction of a girl for immoral purposes’, and ‘setting fire to public buildings’.Footnote ²⁵ Nobody would suggest that a state can exercise universal jurisdiction with respect to ‘setting fire to public buildings’, or that all states have a duty to prosecute or extradite with respect to such a crime, or that it is erga omnes or jus cogens. In his report proposing the creation of the Special Court for Sierra Leone, the Secretary-General clearly distinguished between ‘crimes under international law’ (in other words, war crimes and crimes against humanity) and the crimes under Sierra Leonean law that he proposed to include in the subject-matter jurisdiction of the Court. He reasoned that

As no defendants have ever been charged under Article 6 of the Statute of the Special Court for Sierra Leone, there has been no determination as to whether an institution established by a treaty to which the United Nations is a party, but which prosecutes crimes that are not recognized as being international, may fall under the rubric of ‘certain international criminal courts’ as the term was used by the ICJ. Charles Taylor, the former president of Liberia, is being prosecuted before the Special Court for Sierra Leone on charges of crimes against humanity and war crimes. He is not accused of ‘abusing a girl under 13 years of age’, ‘abduction of a girl for immoral purposes’, or ‘setting fire to public buildings’.

Apparently there was a debate within the Security Council about the internationalization of the subject-matter jurisdiction of the Special Tribunal for Lebanon. We know this because the Secretary-General's report says that ‘the views expressed by interested members of the Security Council’ on the subject were considered in reaching a decision not to include international crimes.Footnote ²⁷ But we do not know exactly what these views were, because the session at which they were expressed was not public. The Secretary-General acknowledged that the issue of subject-matter jurisdiction was germane to determining the ‘international character’ of the tribunal. He explained that consideration was given to qualifying the terrorist crimes in Lebanon as crimes against humanity,

He continued,

Nevertheless, ‘there was insufficient support for the inclusion of crimes against humanity within the subject-matter jurisdiction of the tribunal. For this reason, therefore, the qualification of the crimes was limited to common crimes under the Lebanese Criminal Code’.Footnote ³⁰

In a supplement to the report, the legal advisor to the UN Secretariat elaborated the matter somewhat further:

We can only speculate on why there was ‘insufficient support’ for prosecution based on the undisputedly international category of crimes against humanity, and why, taking into account the views of ‘interested members of the Security Council’, the decision was taken to prosecute undisputedly national crimes on the basis of the domestic criminal code. One explanation might be that in extending the subject-matter jurisdiction of the Court to genuinely international crimes, framed broadly as crimes against humanity, it might inadvertently find itself with the authority to prosecute other atrocities committed on the territory of Lebanon in recent years. Indeed, one of the ironies of the new tribunal for Lebanon is that it will address the admittedly serious terrorist crimes committed on the country's territory since early 2005 but not the arguably more serious war crimes and crimes against humanity committed on that same territory in mid-2006.

Another explanation for the decision not to include crimes against humanity within the Tribunal's subject-matter jurisdiction may the be positioning of the institution generally as one that is national with international features, rather than as a truly international tribunal. By confining subject-matter jurisdiction to the national criminal code, the Security Council signals that the Tribunal is more ‘hybrid’ or ‘mixed’ than international, and that the international involvement is essentially that of technical assistance.

Finally, although the Secretary-General supported the view that terrorist crimes like those committed in Lebanon could be qualified as crimes against humanity, there are good arguments to the contrary. Basing prosecutions on an expansive interpretation of crimes against humanity might unnecessarily complicate prosecutions. It is beyond the scope of this article to address in a thorough manner the debate about the scope of crimes against humanity.Footnote ³² Echoing pronouncements of the International Law Commission, the Appeals Chamber of the ICTY has set a low threshold for crimes against humanity, describing them as more than merely ‘isolated or random acts’.Footnote ³³ The Rome Statute of the ICC, on the other hand, is more exigent, with its requirement that there be ‘a course of conduct involving the multiple commission of [punishable] acts. . . against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’.Footnote ³⁴ Cherif Bassiouni has argued persuasively that crimes against humanity, as formulated in Article 7 of the Rome Statute as well as under customary law, do not apply to the acts of non-state terrorist groups such as al Qaeda.Footnote ³⁵

Although terrorist crimes as such have not previously figured in the statutes of international criminal tribunals, there were proposals to include them in the Rome Statute of the ICC.Footnote ³⁶ The Final Act of the Rome Conference contains a reference to terrorist crimes, and it is likely that the issue will be revived at the Review Conference, expected to be held in late 2009 or early 2010. There are also 12 international treaties dealing with specific forms of terrorism. Although the treaties impose obligations concerning prosecution and mutual legal assistance, they fall short of declaring terrorism to be an ‘international crime’, and they do not hint at the exercise of universal jurisdiction over such crimes. In other words, they treat terrorist crimes as a matter of international concern, but along the same lines as piracy, money laundering, trafficking in persons, and cutting submarine cables. They are not in the same category as the ‘core crimes’ of international criminal law, namely genocide, crimes against humanity, war crimes, and aggression.

The Security Council resolutions that preceded creation of the Tribunal described the assassination of Rafik Hariri on 14 February 2005 as a ‘terrorist crime’Footnote ³⁷ or a ‘heinous crime’.Footnote ³⁸ However, they did not describe ‘terrorist crimes’ as ‘international crimes’. Nevertheless, according to Choucri Sader, who participated in the negotiations as a representative of Lebanon,

Judge Sader may be overstating the point, and perhaps his involvement in the discussions leads him to read more into the resolutions than would any reasonable observer who lacks insider knowledge. On a literal reading, one can just as easily conclude that the Security Council took great care to avoid characterizing the terrorist bombing and assassination of Rafik Hariri as an international crime. In any event, as Judge Sader explains, ‘the final version of the Statute differs substantially from the initial drafts’, notably by its exclusion of any suggestion that terrorist crimes are international crimes. ‘We regretfully note that the real aim of the UN Security Council was to strictly confine the Special Tribunal – which is, to date, the only international tribunal empowered to hear cases of terrorism – to the application of domestic laws, thus rendering problematic the possibility of considering terrorist offences as crimes falling under international criminal law’, says Judge Sader.Footnote ⁴⁰

When all of this is taken into account, the qualification of crimes in the Statute of the Special Tribunal for Lebanon tends to argue against the institution being considered as an ‘international criminal court’.

3. The role of the Security Council in the creation of the Tribunal

The role of the Security Council in creating the Special Tribunal for Lebanon provides a strong argument for claiming it is an ‘international criminal court’. It was in this context that the Appeals Chamber of the Special Court for Sierra Leone attempted to answer the question ‘Is the Special Court an International Criminal Tribunal?’Footnote ⁴¹ The initial intent of the Security Council was to establish a tribunal similar in many respects to the Special Court for Sierra Leone. It was to be created by agreement between the government of Lebanon and the United Nations, and not, as was the case with the ad hoc tribunals for the former Yugoslavia and Rwanda, by a Security Council resolution empowered with the authority of Chapter VII of the UN Charter. However, it proved impossible to establish a broad enough political consensus within Lebanon for the agreement, with the result that the Security Council imposed the Special Tribunal in a resolution that invoked Chapter VII. But the Security Council went out of its way to note the support of the Lebanese parliamentary majority for the Tribunal, ‘the demand of the Lebanese people that all those responsible for the terrorist bombing that killed former Lebanese Prime Minister Rafiq Hariri and others be identified and brought to justice’, and the fact that ‘all parties concerned reaffirmed their agreement in principle to the establishment of the Tribunal’. In other words, although Security Council intervention was necessary to resolve a constitutional impasse within Lebanon, the Tribunal was truly indigenous and widely supported.Footnote ⁴²

Moreover, even though the Special Court for Sierra Leone was created by agreement rather than by Security Council resolution, its judges have tended to blur the distinction. In ruling that the former president of a third state, Charles Taylor, did not benefit from immunity for acts committed while he was in office, the Appeals Chamber of the Special Court said,

The Appeals Chamber noted the ‘high level of involvement of the Security Council in the establishment of the court including, but not limited to, approving the Statute of the Special Court and initiating and facilitating arrangements for the funding of the Court’.Footnote ⁴⁴ The Chamber has also confirmed that the Security Council is authorized by the Charter of the United Nations to delegate authority for creating a tribunal or court to the Secretary-General,Footnote ⁴⁵ that the Secretary-General may conclude such an agreement on its behalf,Footnote ⁴⁶ and that the Security Council itself exercised its authority over an organ created at its behest through its representative on the Management Committee of the Court, created pursuant to Article 8 of the Agreement establishing the Court.Footnote ⁴⁷ Thus the Appeals Chamber decision strongly bolsters the claim of the Special Tribunal for Lebanon to being an ‘international criminal court’.

But it would probably be incorrect to conclude that any criminal court or tribunal created by the Security Council, even acting pursuant to Chapter VII of the UN Charter, would therefore be sanctified as an ‘international criminal court’ with all that this implies, especially with regard to immunities. Security Council authority also lies at the basis of institutions such as the Serious Crimes Unit and the Special Panels for Serious Crimes in Dili in Timor Leste,Footnote ⁴⁸ and the Kosovo war crimes prosecutions,Footnote ⁴⁹ which are generally viewed as classic examples of hybrid tribunals. In such so-called executive missions, the Security Council is in effect acting as the national government. Courts and tribunals established under its authority in such circumstances are no more international in nature than are institutions like the national police force.

Writing about the Special Tribunal for Lebanon, Bert Swart has distinguished between international and internationalized tribunals.Footnote ⁵⁰ Sometimes, internationalized tribunals have been called ‘hybrid tribunals’Footnote ⁵¹ or ‘mixed tribunals’.Footnote ⁵² According to Professor Laura A. Dickinson,

According to Professor Swart, the Special Tribunal for Lebanon is an internationalized rather than an international court, and this despite the fact that it was established by the Security Council. It seems implausible that the ICJ meant for internationalized or hybrid tribunals to be subsumed within the category of ‘certain international criminal courts’. This is not to say that the Security Council could not bestow upon an internationalized or a hybrid tribunal some of the attributes that are inherent to international criminal courts, such as obligations to co-operate or the absence of sovereign immunity.Footnote ⁵⁴ The Security Council can do this even with respect to national justice systems as it did, for example, in the Lockerbie case.Footnote ⁵⁵ But it would have to do so expressly. Such attributes of an international criminal court could not be inherent or implied.

In 1946, when its authority was challenged by some of the accused, the International Military Tribunal said that, in establishing the institution, the four powers had ‘done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law’.Footnote ⁵⁶ It added, ‘The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world’.Footnote ⁵⁷ The judgment noted that in addition to the four powers which actually created the Tribunal, by treaty, a large number of governments of the United Nations signalled their adhesion in accordance with Article 5 of the London Agreement. Consequently, to the extent that the Tribunal required the endorsement of the ‘civilized world’ (today, we would speak of the ‘international community’), it was not entirely accurate to suggest that the four powers had done collectively what each of them could have done singly. Rather, the Tribunal's status as an ‘international criminal court’ needed an additional element. The support of the ‘civilized world’ is the only indicator offered by the judgment capable of responding to this requirement.

4. Official capacity and head-of-state immunity

One of the intriguing features of the Statute of the Special Tribunal for Lebanon is the absence of a provision concerning the defence of official capacity. The terms are familiar, and they have appeared in essentially every international model since Nuremberg: ‘The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’.Footnote ⁵⁸ Why no comparable provision is included in the Statute of the Special Tribunal for Lebanon is not explained by the preparatory documents. Cécile Aptel, who headed the legal advisory services of the UN International Independent Investigation Commission in Lebanon, has observed,

After noting that such provisions have been systematically inserted into the applicable law of other international criminal tribunals, she goes on to consider the issue of immunities:

The classic provision on official capacity was possibly omitted because the drafters of the Statute considered it to be applicable only to international crimes. Since international crimes were excluded from the Statute, they might have deemed it inappropriate and legally unsound to deprive an accused person of a defence that was recognized under national legal systems at the time the crime was committed. But if this is the explanation, it is difficult to understand why other features of international criminal prosecution, such as superior responsibility and the denial of the defence of superior orders, are included in the Statute of the Special Tribunal for Lebanon.Footnote ⁶¹ There are, here, potential violations of the principle nullum crimen sine lege.

Withdrawal of the defence of official capacity is often confused with the issue of immunity, but the two concepts, although related in some respects, are quite distinct. This can be seen clearly in Article 27 of the Rome Statute of the ICC, which comprises two paragraphs, one addressing the defence of official capacity and the other concerning immunity.

The lawmaking authority of a given state is free to remove a defence of official capacity in proceedings before its own courts to the extent that one already exists. This is merely a decision about criminal law policy taken within the parameters of sovereign jurisdiction. To the extent that certain international crimes are concerned, a state is actually obliged to remove such a defence.Footnote ⁶² But a state may not remove the immunity of the head of state of another state, because this violates customary international law, as the ICJ affirmed in the Yerodia case. This holds true even for international crimes. The distinction between the defence of official capacity and a claim of immunity as a bar to exercise of jurisdiction was muddled by the Special Court for Sierra Leone in its ruling on Charles Taylor's claim of immunity. The Appeals Chamber seemed to equate Article 6(2) of the Statute of the Special Court for Sierra Leone, which removes the defence of official capacity, with Article 27(2) of the Rome Statute, where in fact the two provisions are legally quite different.Footnote ⁶³ Similarly, in the preliminary motion in the Milošević case, a trial chamber of the ICTY also seemed to confound the defence of official capacity and the issue of immunity of an incumbent or former head of state.Footnote ⁶⁴ The same problem can be seen in the dissent of Judge Van den Wyngaert in the Yerodia case.Footnote ⁶⁵

Although the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda do not speak to the issue of immunity directly (in contrast with Art. 27(2) of the Rome Statute), the oft-cited paragraph 61 in the Yerodia decision of the ICJ provides some authority for the position that there is no immunity for heads of state and similar officials before ‘certain international criminal courts’, even where this is not explicitly stated in the Statute. Paragraph 61 of Yerodia is somewhat puzzling, nevertheless, because it also refers to paragraph 27(2) of the Rome Statute as evidence for the proposition that there is no immunity before international courts. This suggests that the ICJ appreciated the distinction between paragraphs (1) and (2) of the Rome Statute. But the Court did not explain why there was, similarly, no immunity before the ad hoc tribunals despite the absence of any equivalent to paragraph 27(2). At the heart of the reasoning of the ICJ lies the principle that heads of state and similar officials do not enjoy immunity before ‘certain international criminal courts’. Accordingly, there should be no need to state this in the applicable legal instruments of such a tribunal. Perhaps, then, paragraph 27(2) of the Rome Statute does nothing more than state what is already inherent in the nature of an international criminal court.

All this leads to the conclusion that there is no need to include a provision dealing with immunity in the Statute of the Special Tribunal for Lebanon, if – and only if – it is indeed an ‘international criminal court’. The result is somewhat weird. Assuming the Special Tribunal for Lebanon is indeed an international criminal court, then if a head of state were to be prosecuted before it, he or she would not be able to invoke immunity but might, nevertheless, have a defence of official capacity. It seems unlikely that this is what the Security Council, the Secretary-General and the government of Lebanon intended. Rather, the omission of the defence of official capacity stands out as a conscious decision, given the inclusion of such provisions in all of the previous models. But that, in turn, seems to suggest that existing immunities under customary international law were to be respected as well. This is a further argument for the view that the Special Tribunal for Lebanon is not an international criminal court in the sense that this term is employed by the ICJ.