Despite the recent storms of criticism facing the International Criminal Court, particularly from the African Union, there are many good reasons for states to join the Rome Statute, the founding treaty of the ICC. Lebanon is not a member of the ICC, but it should seriously consider becoming one.
The ICC was created in Rome in 1998, on the experience of unimaginable atrocities that threatened the peace, security and well-being of the world. The ICC’s goal is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community: war crimes, crimes against humanity and genocide. It is designed by its drafters to contribute to the prevention of such crimes.
States that have joined the ICC carry the primary obligation to investigate and prosecute serious crimes committed on their territory. The ICC can take over this responsibility only as a complementary court of last resort, if such a state cannot or refuses to fulfill its duties.
Citizens of member states can thus be assured of accountability, according to the same single standard of law set by the Rome Statute, whether investigated and prosecuted by their national authorities or by the ICC.
Lebanon’s history is marked by internal conflict, foreign invasions and occupations, and political assassinations. Due to its strategic location, its multiconfessional society, and its demographics, Lebanon has been shaped, largely, by regional and international developments and interests. In the past half-year alone, a number of incidents marked Lebanon’s fragile security state, colored by regional events, with factions operating on Lebanese territory with little control by state authorities.
Unfortunately, the struggle for survival has resulted in Lebanon’s political elite paying little attention to the rule of law, including accountability for crimes. The comprehensive amnesty law passed in 1991, following Lebanon’s Civil War, is particularly telling in this regard.
Generally, probes launched after violent incidents often lack satisfying, tangible outcomes, such as the prosecution of alleged perpetrators in national courts.
The string of assassinations and attacks in 2004-05, spurred – perhaps for the first time – a momentum of interest in Lebanon, or at least in certain parts of society, for legal accountability. In this regard, the establishment of the Special Tribunal for Lebanon and its endeavors, as a first “terrorism tribunal,” to investigate and prosecute the perpetrators of the Feb. 14, 2005, attack, in which 23 people, including former Prime Minister Rafik Hariri, were killed, may be welcomed from the perspective of contributing to ending impunity in Lebanon.
At the same time, the STL presents by no means a comprehensive justice effort; it was not designed to be such, with its focused mandate and limited jurisdiction. Indeed, in terms of gravity, other incidents would deserve as much Lebanon’s and the world’s attention.
Concern over or criticism of this limited focus is best directed to Lebanon’s political decisionmakers (rather than the STL itself). More comprehensive discussions about accountability for crimes, and rule of law more generally, are necessary. The ICC should be an integral part of these discussions; joining would serve Lebanon perhaps more than any other country.
The STL and its location close to other international judicial institutions, including the ICC, have already increased awareness and understanding of international criminal justice among Lebanese civil society, students and bar associations. Unfortunately, Lebanese politics has largely remained behind, with exchanges limited to small inner circles.
In the MENA region only Jordan and Tunisia have joined the ICC. Syria and Israel, for instance, have not, though calls for the ICC’s intervention in these situations are made on a regular basis, despite the legal limitations for the ICC to do so in current circumstances.
Lebanon, by joining the ICC, would not only confirm its commitment toward the rule of law, and underline its seriousness toward investigation and prosecution of crimes; it would also – and more importantly – gain an important instrument of peace and security, a tool available in times of crisis, without losing any of its sovereignty.
The preventive aspect of the ICC may be of particular value for a country so often rigged by internal and cross-border conflict and overrun by foreign factions. The mere existence of the ICC, including the possibility of a case being presented before the court, generates a dissuasive effect.
If Lebanon does not join the ICC, action by the court regarding alleged crimes committed in the country would largely be dependent upon the United Nations Security Council, which may refer to the ICC prosecutor any situation for investigation and prosecution.
Practice shows that little consistency can be found in such decisions of the Security Council, which in the past has referred to the ICC prosecutor the situations of Darfur/Sudan and Libya, but not Syria, Somalia or any other situations currently outside the ICC’s jurisdiction.
By contrast, as a member state of the ICC, Lebanon may itself refer a situation where alleged crimes within the jurisdiction of the ICC appear to have been committed to the ICC prosecutor.
This possible access to the ICC may have a strong preventive effect, and may actually help deter foreign powers or groups operating on Lebanese soil from committing crimes. The ICC can thus become a stabilizing factor in an unstable region, serving as a means of protection.
Lebanese interlocutors in discussions about the ICC often reference the 2006 war. In current circumstances, alleged crimes committed in that context remain outside the ICC’s jurisdictional scope. In retrospect, while it’s difficult – if not impossible – to assess or verify, it may well be that parties involved in the 2006 war would have acted with much more restraint should Lebanon have been an ICC member at that time, for fear of investigation and prosecution. When joining the ICC, Lebanon could still make an express declaration to extend the scope of the court’s jurisdiction to past crimes.
In a few years, the ICC will be able to exercise jurisdiction over the crime of aggression. In addition, prosecution of other crimes over which the ICC already has jurisdiction can meaningfully serve Lebanese and regional interests.
The fact that to date Lebanon and Israel officially remain at war, for example, may have significant bearing on the assessment of whether certain acts may amount to war crimes under the Statute.
This knowledge alone may have a strong preventive impact.
In a country that has been seeking for lasting stability since its birth, the ICC may well be the institution Lebanon has been waiting for all that time.
Fabio Rossi, associate international cooperation adviser, Office of the Prosecutor, International Criminal Court. The views expressed herein are solely the author’s and do not necessarily reflect those of the Office of the Prosecutor or the Court.