“Try them all” – can Lebanese politicians be tried at the International Criminal Court?

Hundreds of Lebanese citizens filled the streets with one demand: A criminal trial. 

BEIRUT: Few days following a nuclear-like explosion in Beirut, Lebanese citizens have returned to the streets demanding accountability. Clashes between protestors and riot police have turned extremely violent as the political class fears its annihilation. Countless Lebanese people have filled social media with a new demand this time: an independent international investigation of the explosion, and a trial at the International Criminal Court for the perpetrators.

The latter finds a weak, if not an absent, legal basis. Here’s why:

The International Criminal Court, since its establishment in 2002, has been the epicenter of criminal trials for perpetrators of atrocious crimes that shake humanity. Its statute is the Rome Statute, which constitutes the basic legal reference for substantive and procedural rules in the trials of perpetrators in front of the ICC. This legal mechanism outlines the 4 international crimes over which the Court has jurisdiction: Genocide, Crimes Against Humanity, War Crimes, and Aggression

Gallows have been set up in Martyr’s Square for the distinct displeasure of Lebanese politicians.

Lebanese social media has witnessed a wave of demands, at the top of which has been an international investigation and consequently an international trial of the political class for “Crimes Against Humanity”. 

According to the Rome Statute, Crimes against humanity as defined in Article 7(1), are crimes involving three elements: a physical/material element, a contextual element, and a mental element.

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Rome Statute, Art. 1, Paragraph 1

First, the physical element must include one or more of the several acts listed in Article 7(1), including but not limited to: murder, extermination, torture, persecution, enforced disappearance of persons, and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or to physical health”. In referring to the mentioned criminal acts one can infer that the Beirut explosion, if later on deemed to be a result of criminal negligence of the political class according to investigators, did in fact result in inhumane acts causing great suffering. This is not to mention the resulting impact on hospitals, in the midst of a global deadly pandemic, which has caused over 50% of them to become temporarily out-of-service, according to the World Health Organization.

Via The Atlantic Council

However, the characterization of the crime does not end at this point.

The mental element which requires the prior “knowledge of the attack” is yet to be proven by investigators. 

Moreover, the contextual element, requiring the acts mentioned previously to be committed as part of a widespread or systematic attack directed against any civilian population, is also another impediment to the characterization of this international crime. The Beirut Port explosion is relatively independent of any other attack or any of the acts listed in Article 7(1). 

Finally, it is important to question whether the ICC has jurisdiction over the crime notwithstanding the fact that the crime does not amount to an international crime. 

The ICC has jurisdiction over crimes occurring after July 1, 2002, when committed by nationals of a State Party, or if the crimes were referred to it by the UN Security Council on the basis of a Resolution adopted under Chapter Seven of its Charter.

Therefore, since Lebanon is not a party to the Rome Statute (ICC Statute); the only way for Lebanese nationals to be tried at the ICC is in case the Lebanese Government itself refers the case to the ICC and thus granting the latter jurisdiction, or if the UN Security Council does so through its own legal mechanism.

Conclusively, the Beirut explosion does not amount to a Crime Against Humanity, neither can it be tried in front of the ICC for lack of jurisdiction. 

Finally, after another campaign that has called for a trial in front of the International Court of Justice, it is important to note that the mentioned court does not have jurisdiction to try individuals. The ICJ can only try States, and only States may appear before the Court in disputes between them, according to the Statute of the International Court of Justice. 

Rebecca Ego
Rebecca Ego

Sagesse | George Washington University

A threat to justice anywhere is a threat to justice everywhere.