Who takes away the sins of the world?"
Christopher Rossi is a professor at the University of Iowa and teaches courses in public international law. He has worked on the Psychology of Deterrence project at the Arms Control Association of the Carnegie Endowment for International Peace in Washington, D.C., on verification and public information issues for the United Nations International Atomic Energy Agency in Vienna, Austria, and as an assistant professor of international relations and American foreign policy at American University in Washington, D.C. In 1997-1998, he served as a director on the National Security Council in the Clinton White House in the office of Democracy, Human Rights and Humanitarian Affairs. Professor Rossi was the Guest Editor for The War Crimes Symposium.
A huge street bomb explodes in Beirut on February 14, 2005, assassinating Lebanon's former Prime Minister, Rafik Hariri.1 Mass protests ensue.2 The White House points a quick and accusing finger toward Syria;3The United Nations Security Council empowers a commission to investigate.4The United States, France, and Great Britain threaten U.N. sanctions against Syria5 but veto-wielding China and Russia balk.6 A Security Council resolution, noting damaging evidence against Syria, produces only a demand for Syrian cooperation in the investigation.7 Threats are made against the investigation team.8 More than one year passes. Discussions gravitate toward creating a hybrid tribunal composed of Lebanese and international judges to Page 2 try those responsible for Hariri's assassination.9 Yet, questions remain as to how tribunal expenses will be covered, what law will be applied, where the case will be heard, and who will provide security. Undercurrents of suspicion, based on perceived foreign power agendas and Lebanese political infighting, spawn a parliamentary impasse steeped in diplomatic intrigue, cutting short these other considerations.
Another year passes. The retiring chief investigator is replaced.10 The Security Council extends for a second time the fact-finding mandate of the commission.11 A pattern of seventeen political assassinations and attempts linked to the Hariri killing emerges; the commission's investigative mandate expands to cover these crimes.12 The U.N.'s chief legal officer attempts to jump-start stalled tribunal talks but fails.13 The United Nations Secretary- General Ban Ki-moon appeals to Syrian President Bashar al-Assad to break the stalemate,14 but a U.N. report implicating Syria in the killing and in the stonewalling of the investigation15 renders that initiative stillborn. Could the U.N. sidestep the impasse by setting up a special court using its Chapter VII powers? The United States insists the Security Council must take action if Lebanon fails to do so.16 Some Lebanese warn of chaos if any foreign or Page 3 international solution is imposed.17 Pro-Western forces legitimize the tribunal by referencing an agreement signed by the Lebanese Prime Minister and the U.N.18 Pro-Syrian factions protest that agreement, claiming it violates Lebanon's Constitution.19 Moscow, problematically, expresses concern for Lebanese sovereignty20 but nevertheless exercises influence with the Syrians.21 Improbably, an agreement is reached: with Russia and China abstaining, the Security Council creates a Hariri Court,22 a tribunal founded in part on the hope of forestalling a civil war that already may be under way.23 Ironically, this tribunal established to punish violence ultimately may contribute to its spread, destabilizing along the way Lebanon and its enfeebled rule of law.
It is now three years since Hariri's assassination. A third prosecutor heads the investigation commission.24 The key Lebanese investigator working with the commission is dead, blown up by a street bomb25-the eighteenth additional death for the commission to investigate.26 In a cabaletta worthy of the operatic tragedy that is Lebanon, the Netherlands agrees to host the tribunal, but only if others cover expenses and deal with the political Page 4 consequences of imprisoning those persons convicted.27 Diplomats indicate another year is needed to establish a functioning court,28 but one formerly closest to the process sees no movement in the last two years, worries about a stalled process, and fears no trial may take place in the next two or three years.29 Indeed, "a tribunal does not a trial make."30 And until there is a trial, only the victims pay.
Lebanon's agony provided but one backdrop to the many topics examined during the University of Iowa College of Law's War Crimes Symposium, held on February 9, 2007. Panel presentations canvassed legal responses to war, developments in international criminal law, and evolutions in dispute settlement techniques. Discussions involved the United Nation's principal judicial organ, the International Court of Justice; the Rome Statute of the International Criminal Court; the two ad hoc international tribunals established by the Security Council (the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda); the Special Court for Sierra Leone; the hybrid process in Kosovo; the Extraordinary Chambers agreement between the United Nations and the Kingdom of Cambodia governing the Cambodian genocide trials; the recent trial of Saddam Hussein and its gruesome denouement; and prospects for alternative dispute settlement involving truth and reconciliation commissions.
These discussions, variations on themes suggested by the Hariri case, underscore the symposium's major chord: war crimes deliberations have moved far from the Nuremberg and Tokyo Tribunal context. Configuring international courts and tribunals through a complicated and unsettled- certainly fragile and at times even dangerous-political environment is now the fate of international law. A new legal engineering enterprise has emerged, one never conceived of as part of the post-war "Judgment at Nuremberg" plan. The enterprise deals with the highest crimes of state as well as sundry but astonishingly nettlesome issues such...