UN Security Council Resolution 1636: Determining the Assassination of Rafiq Hariri as a Threat to International Peace and Security under Chapter VII of the UN Charter

On 31 October 2023 the UN Security Council passed Resolution 1636 regarding the investigation of the death of former Lebanese Prime Minister Rafiq Hariri. Resolution 1636 was passed in light of the report of the United Nations International Independent Investigation Commission (the "Commission") established to investigate Hariri's death. In Resolution 1636, the Security Council determines Hariri's death is a terrorist act and constitutes a threat to international peace and security, invoking Chapter VII of the UN Charter. Additionally, Resolution 1636 orders Syria to cooperate fully with the continued work of the Commission.[1]

I. Background: UN Security Council Resolutions & Applicable International Law

The authority of the Security Council is derived from the United Nations Charter. Chapter V of the UN  Charter establishes the Security Council's organization and function.[2] Specifically, article 24(1) of the UN Charter provides that "in order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."[3]

Chapter VII of the Charter provides enforcement measures, if pacific settlement of disputes under Chapter VI is not available. Chapter VII of the UN Charter also delegates to the Security Council certain rights and responsibilities. The Security Council is charged by article 39 of the UN Charter to "determine the existence of any threat to the peace, breach of the peace, or act of aggression."[4] Under articles 40 and 41, after determining if such a threat to the peace, breach of the peace, or act of aggression exists, the Security Council may establish provisional measures or implement economic or diplomatic sanctions.[5] Article 42 also permits the Security Council to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."[6] For enforcement actions, the Security Council derives its authority from Chapter VII of the Charter, and Security Council resolutions often are promulgated as "acting under Chapter VII of the Charter of the United Nations" with no reference to specific provisions of Chapter VII.[7]

II. Security Council Resolution 1595 & the Establishment of the Independent Investigation Commission

On 7 April 2005, the Security Council passed Resolution 1595 establishing a Commission "to assist the Lebanese authorities in their investigation of all aspects of [Hariri's death], including to help identify its perpetrators, sponsors, organizers and accomplices."[8] Additionally, Resolution 1595  requests "all States and all parties to cooperate fully with the Commission, and in particular to provide it with any relevant information they may possess."[9] On 19 October 2023 the Commission submitted a report to the Security Council with preliminary conclusions.[10] Two significant conclusions from the report include: 

• "the Government of the Syrian Arab Republic’s lack of substantive cooperation with the Commission has impeded the investigation and made it difficult to follow leads established by the evidence collected from a variety of sources. If the investigation is to be completed, it is essential that the government of the Syrian Arab Republic fully cooperate with the investigating authorities, including by allowing for interviews to be held outside Syria and for interviewees not to be accompanied by Syrian officials;"
• "There is probable cause to believe that the decision to assassinate former Prime Minister Rafiq Hariri could not have been taken without the approval of top-ranked Syrian security officials and could not have been further organized without the collusion of their counterparts in the Lebanese security services."[11]
  

To continue the work of the Commission, the UN Secretary-General extended the mandate of  Commission until 15 December 2005, as authorized by Resolution 1595.[12]

III. Security Council Resolution 1636

In light of the Commission's report, Resolution 1636 determines the death of Hariri "and its implications" constitute a threat to international peace and security.[13] Under Article 39 of the UN Charter, the determination of any such "threat to the peace" enables the Security Council to utilize Chapter VII measures.[14] Accordingly, the measures provided for in Resolution 1636 are taken "acting under Chapter VII of the Charter of the United Nations." This is a general "acting under Chapter VII" pronouncement from the Security Council, with no reference to specific provisions of Chapter VII or any other article of the UN Charter. From this determination, Resolution 1636 provides several directives from the Security Council: 

• All individuals designated by the Commission or the Government of Lebanon as suspected of involvement in the planning, sponsoring, organizing or perpetrating" Hariri's death shall be subject to restricted travel through Member States and a freeze placed upon all financial assets of such individuals; 
• Determines that the involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism, in accordance with resolutions 1373 (2001) and 1566 (2004);
• Orders Syria to cooperate with the Commission fully and unconditionally and detain those Syrian  officials or individuals whom the Commission considers as suspected of involvement in the planning, sponsoring, organizing or perpetrating of Hariri's death, and make them fully available to the Commission; and,
  
• Insists that Syria not interfere in Lebanese domestic affairs, either directly or indirectly, refrain from any attempt aimed at destabilizing Lebanon, and respect scrupulously the sovereignty, territorial integrity, unity and political independence of this country.[15]

IV. Significance of Resolution 1636

Resolution 1636 makes the determination that the assassination of former Lebanese Prime Minister Rafiq Hariri and its "implications" are a threat to the peace under Article 39 of Chapter VII of the UN Charter. Under Article 39, the Security Council may use any enforcement measures provide for by Articles 41 and 42 "to maintain or restore international peace and security." By determining Hariri's death is an Article 39 threat to the peace, the enforcement measures of Chapter VII are made available to the Security Council and may be utilized against concerned and/or responsible parties to "restore international peace and security."

[1] U.N. SC, U.N. Doc. S/RES/1636 (2005).
[2] U.N. CHARTER chapter V.
[3] U.N. CHARTER art. 24, para. 1.
[4] Id. at art. 39.
[5] Id. at art. 40, 41.
[6] Id. at art. 42.
[7] See, e.g., U.N. SC, U.N. Doc. S/RES/1617 (2005).
[8] U.N. SC, U.N. Doc. S/RES/1595 (2005).
[9] Id.
[10] Report of the International Independent Investigation Commission established pursuant to Security Council resolution 1595, S/2005/662, October 19, 2005.
[11] Id. para. 35, 124.
[12] See U.N. SC, U.N. Doc. S/RES/1595, para. 8 (2005).
[13] U.N. SC, U.N. Doc. S/RES/1636 (2005).
[14] U.N. CHARTER art. 39.
[15] U.N. SC, U.N. Doc. S/RES/1636 (2005).