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There are three problems with Raad’s attack on the STL Agreement.

First, Raad paints over several important facts, which hit at the consistency of his otherwise impressive challenge of the STL Agreement. Raad conceals that Lebanon’s institutional paralysis had much to do with the strategy of negation adopted by Hizbullah and Amal to prevent, and then derail, the STL’s establishment. Lahoud, the Shiite ministers in cabinet, and Parliament Speaker Nabih Berri basically stonewalled for three years. Of course, Lahoud was well within his right as President to participate in or resist international treaty negotiations. At first glance, there appears to be no answer to Raad’s point on the presidency. However, Raad is mistaken in asserting that Shiites lacked representation in cabinet. In fact, there were five Shiite ministers – and they boycotted cabinet sessions, but did not resign. Furthermore, Berri’s closure of Parliament, an act that Raad and other Hizbullah MP’s backed, blatantly disregarded Article 32 of the Lebanese Constitution, which sets out “ordinary [parliamentary] sessions.”

Second, Raad misunderstands the “rules of the game” within Lebanon’s domestic constitutional framework. In arguing that the principles of “coexistence” require a Shiite veto power (and corresponding Maronite and Sunni veto power), Raad assumes that the transient balance of power shapes Lebanon’s rules. While this is true to a certain extent, cabinet and parliament are based on Christian-Muslim parity rather than on narrower communal imperatives. It is one thing to argue that the law should reflect a new communal equation; it is an entirely different question to assert that it already does. But even if “coexistence” pointed towards a tri-polar balance, the principle is meant to protect communities instead of political parties or foreign participants. Conflating Hizbullah with the Shiite community distorts the rules, and so too does conflating the Future Movement with the Sunni community or the Lebanese Forces with the Maronite community. That other Lebanese parties, like the Phalange, sometimes agree with Hizbullah’s approach, though perhaps not its conclusions, only demonstrates how these parties lay claim to their communities and further distorts the system

Third, Raad and many other politicians, regardless of their stance, adhere to a caricature view of Lebanon’s constitutional interaction with the international system. International law is part of Lebanese law (to the extent that the latter exists!). The Lebanese Constitution’s preamble states, in part, that Lebanon is “a founding and active member of the United Nations Organization and abides by its covenants […]” Besides this explicit constitutional incorporation of international law, membership in the U.N. generally requires ceding sovereignty in exchange for some measure of collective security. Within that context, Chapter VII of the U.N. Charter empowers the Security Council to adopt measures necessary to maintaining international peace and security: in addition to the use of armed force (Article 42) and other provisional measures (Article 40), Article 41 of the U.N. Charter authorizes the Security Council to adopt measures “not involving the use of armed force.”

Special courts and tribunals are within the Security Council’s authority. Resolution 1757 invokes Chapter VII authority, as do several preceding resolutions relating to crimes against Lebanon. All other considerations are secondary from a legal point of view, including the charge that Lahoud did not participate in the STL Agreement’s negotiation. In essence, Resolution 1757 expressly overrode Lebanon’s stalled domestic process, and effectively stated that the STL would come into existence by June 10, 2007 (with or without the Lebanese state’s notification or approval).

Ultimately, given the content of the Lebanese Constitution’s preamble and the general requirements of U.N. membership, it is simply nonsensical to argue that the international process in question unduly transcended Lebanon’s constitutional framework. In any case, despite these holes in Hizbullah’s argument, it is certainly a positive sign that the party’s members (and Raad in particular) have engaged their opponents on the battlefield of ideas, rather than taking to the streets. Whether debate will give way to war remains to be seen.

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At a press conference earlier this week, Hizbullah MP Mohammad Raad basically argued that the Special Tribunal for Lebanon (STL) is unconstitutional, from a Lebanese perspective, and thus cannot pursue justice in the name of the Lebanese. To be precise, Raad and a retired Lebanese judge, Salim Jreisati, assailed the “Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon” (STL Agreement).

To be brief, alongside U.N. Security Council Resolution 1757, the STL Agreement gave rise to the STL. The domestic impetus for the STL came on December 13, 2005, when former Prime Minister Fouad Siniora requested that the U.N. “establish a tribunal of an international character [...] to try all those who are found responsible for the terrorist crime perpetrated against [Hariri].” At that time, Lebanon’s cabinet – including the Hizbullah-led opposition coalition – was fully functioning. Both these points are beyond dispute.

But Raad and Jreisati contest subsequent developments, pointing out four main flaws in the process leading up to the STL’s formation:

• First, the negotiations on the STL Agreement were unconstitutional in form. In particular, these negotiations were unconstitutional because they took place without former Lebanese President Emile Lahoud’s participation (by late 2006, when these negotiations were ongoing, Lahoud’s presence in Baabda Palace had all but paralyzed the presidency). Article 52 of the Lebanese Constitution states that the “President of the Republic negotiates international agreements in coordination with the Prime Minister.” Clearly, then, the President should have had a role. Raad’s view is strongest here.

• Second, the government that signed and pushed through the agreement was illegitimate. Raad sees this as a crucial point: when the Siniora-led cabinet signed the STL Agreement in 2007, none of the Shiite ministers were participating in government sessions. Although Lebanon’s constitutional quorum was met by March 14′s grouping, Raad believes that the constitutional norm of “coexistence” precludes such important decisions absent Shiite representation in cabinet. Under Article 52 of the Lebanese Constitution, treaties and agreements do not enter into force without cabinet’s approval. If the cabinet was illegitimate, then its approval of the STL Agreement is invalid.

• Third, March 14 partisans and the international community disregarded a host of constitutional processes in their rush to form the Tribunal. The STL Agreement – either because of its impact on the budget or because it cannot be withdrawn from annually – falls within a class of agreements that requires parliamentary approval. Parliament did not convene to ratify the agreement, so the agreement did not enter into force.

• Fourth, the international mechanisms that overrode Lebanon’s political deadlock are themselves illegitimate, because they “transcend” the common framework that governs all Lebanese parties and communities. Here, Raad is referring to the fact that the STL Agreement took force despite Lebanon’s institutional inability to ratify it somehow.

As one would expect from Hizbullah’s sophisticated party machine – particularly from Raad, doubtlessly a man of great intellect – these arguments are serious attacks on the Tribunal and tie in nicely with one another. But his views are ultimately incorrect.

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