1. Indeed, even some of the states that supported the resolution were keen to emphasize that the use of Chapter VII powers should not ‘constitute a precedent beyond this particular case’. See statement of Peruvian representative in Security Council Meeting Record, UN Doc. S/PV.5685 (2007), at 6.

2. See F. Mégret, ‘The Security Council’, in P. Alston and F. Mégret (eds.), The Security Council and Human Rights: A Critical Appraisal (2008).

3. See Prosecutor v. Tadić, Decision on the Defence Motion on Jurisdiction, Case No. IT-94-I-T, T.Ch. II, 10 August 1995, at para. 2. Tadić argued that the ICTY was illegal because the Security Council had violated the sovereignty of the former Yugoslav states.

4. M. Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, (2001) 64 Law and Contemporary Problems 13.

5. For example, the Indonesian representative noted that ‘[t]here are no legal grounds for the Security Council to take over an issue that is domestic in nature’. See Security Council Meeting Record, supra note 1, at 3.

6. I. Black, ‘Syria Brands Hariri Tribunal as Harmful Ploy by Washington’, Guardian, 1 June 2007.

7. See Prosecutor v. Tadić, Decision on the Defence Motion on Jurisdiction, Case No. IT-94-I-T, T.Ch. II, 10 August 1995, at paras. 41–44.

8. See Prosecutor v. Kanyabashi. Decision on the Defence Motion on Jurisdiction, Case No. ICTR 96–15-T, T.Ch. II, 18 June 1997, at paras. 13–16.

9. On that issue see F. Mégret, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, (2001) 12 EJIL 247.

10. For example, the representative from Qatar stressed the country's ‘firm, established position of advocating the need to establish justice and oppose impunity’. The Indonesian representative likewise underlined the need that ‘[t]hose who are found responsible for the assassination of the late Prime Minister Hariri and for other related assassinations must therefore be brought to justice.’ See Security Council Meeting Record, supra note 1, at 2–3.

11. See UN Docs. S/RES/827 (1993) and S/RES/955 (1994). Russia cast a ‘yes’ vote for both the ICTY and the ICTR, while China supported the ICTY but abstained on the establishment of the ICTR. South Africa, Indonesia, and Qatar were not members of either of the Councils that established the ad hoc tribunals.

12. Report of the Secretary-General on the establishment of a special tribunal for Lebanon, UN Doc. S/2006/893, Ann. I, Art. 19(1).

13. According to a Human Rights Watch memorandum released in October 2002, the ICTR Prosecutor reported Rwanda's non-co-operation with the Tribunal to the Security Council. In her report, the Prosecutor indicated that the Rwandan government failed to facilitate the travel of witnesses and to provide access to documentary materials necessary to the work of the Tribunal. The Prosecutor also suggested in her report that the government's non-co-operation was tied to the indictment of Rwanda Patriotic Army (RPA) soldiers by the Tribunal. See Human Rights Watch, ‘Action Urged Regarding Non-co-operation with ICTR and ICTY’, available at http://hrw.org/press/2002/10/noncooperation-ltr.htm.

14. Report of the Secretary-General pursuant to para. 6 of Resolution 1644(2005), UN Doc. S/2006/176 (2006), at 2.

15. See ICC-OTP, Annex to the ‘Paper on Some Policy Issues before the Office of the Prosecutor’: Referrals and Communications (Policy Paper September 2003), at 5. (‘Where the Prosecutor receives a referral from the State in which a crime has been committed, the Prosecutor has the advantage of knowing that that State has the political will to provide his Office with all the cooperation within the country that it is required to give under the Statute.’)

16. C. Mallat, ‘Danger Still Stalks the Hariri Tribunal’, Daily Star, 28 September 2007, available at www.dailystar.com.lb/article.asp?edition_ID=10&article_ID=85626&categ_id=5.

17. Report of the Secretary-General, supra note 12, at 4.

18. The Indonesian representative stated that ‘[i]f the draft resolution is adopted, it will bypass constitutional procedure and national processes’. See Security Council Meeting Record, supra note 1, at 3.

19. Letter dated 15 May 2007 from the President of Lebanon addressed to the Secretary-General, UN Doc. S/2007/286, Ann. I.

20. One report of the UN Secretary-General states that ‘[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives’. See Report of the UN Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (2004), at 1.

21. See C. Lynch and E. Knickmeyer, ‘UN Council Backs Tribunal for Lebanon’, Washington Post, 31 May 2007.

22. The Indonesian representative stated that ‘the Council should not fail to take into consideration that there is no unified voice among Lebanese leaders. The domestic political situation in Lebanon has created difficulty for the international community to act further on that request.’ See Security Council Meeting Record, supra note 1, at 3.

23. Letter from the President of Lebanon, supra note 19, Ann. I, at 3.

24. For example, Indonesia emphasized that ‘the Security Council should not be involved in an exercise of interpreting, let alone taking over, the constitutional requirements that a State should comply with in the conduct of its authorities’. See Security Council Meeting Record, supra note 1, at 3.

25. Letter from the President of Lebanon, supra note 19, Ann. I, at 3.

26. Ibid.

27. See Security Council Meeting Record, supra note 1, at 3.

28. Ibid.

29. Ibid., at 6, statement by French representative.

30. Ibid., at 7 (emphasis added).

31. Ibid., at 6, statement by the British representative.

32. UN Doc. S/RES 1757 (2007).

33. UN Doc. S/RES/1748 (2007), preamble.

34. See Security Council Meeting Record, supra note 1, at 6 (emphasis added).

35. Ibid., at 7 (emphasis added).

36. Ibid., at 6, Statement by the British representative.

37. UN Doc. S/RES/1664 (2006).

38. See statement by the UN Secretary-General on the agreement between the United Nations and Lebanon regarding the Establishment of a Special Tribunal for Lebanon, UN Doc. SG/SM/10871 (2007).

39. Letter of the Prime Minister of Lebanon to the Secretary-General of 13 December 2005, UN Doc. S/2005/783 (2005).

40. See, for example, the statements of the representative of Qatar, who stated that the goal is ‘to ensure the maintenance of [Lebanon's] independence, sovereignty, national unity and political stability’. Security Council Meeting Record, supra note 1, at 2. See also, more generally, UN Doc. S/2007/262 (2007).

41. See UN Doc. S/RES/1636 (2005).

42. See Security Council Meeting Record, supra note 1, at 6, statement by the Peruvian representative.

43. Ibid., at 7.

44. Ibid., at 8.

45. UN Doc. S/RES 1757 (2007), Preamble. The resolution referred to the ‘unanimous demand of the Lebanese people that those responsible be identified and held accountable’.

46. ‘Divided UN Security Council Creates Hariri Tribunal’, Indo-Asian News Service, 31 May 2007.

47. See UN Doc. S/23500 (1992), which declared economic, social, humanitarian, and ecological problems to be ‘threats to international peace and security’.

48. In the last paragraph of its preamble, Resolution 1757 notes the Security Council's ‘determination that this terrorist act and its implications constitute a threat to international peace and security’. UN Doc. S/RES 1757 (2007), preamble.

49. With some minor exceptions. See Peruvian statement in which justice is seen as ‘essential in promoting peace and security’. Security Council Meeting Record, supra note 1, at 6.

50. Ibid., at 7

51. Ibid., at 6.

52. Ibid., at 7.

53. Ibid., at 6.

54. Ibid., at 7.

55. Ibid.

56. No Peace Without Justice, http://www.npwj.org/.

57. Ibid.

58. See UN Doc. S/RES/1315 (2000).

59. See UN Doc. S/RES/1593 (2005).

60. See UN Docs. S/RES/1422 (2002) and S/RES/1487 (2003). Security Council Resolution 1422, which was renewed as Resolution 1487 in June 2003, granted immunity to personnel from ICC non-states parties involved in UN established or authorized missions for a renewable 12-month period. Despite US efforts to renew this resolution again in 2004, they could not secure enough votes on the Security Council to support it and it was thus withdrawn.

61. In saying this, I am well aware that I am not making an orthodox positivist argument. If that were the perspective, then it would always be possible to rely simply on some ever expanding definition of international peace and security as being the last word on the matter. However, what I am proposing is a more sophisticated, legally pluralist, and constructivist rendering of what I think is increasingly going on, as ‘values’ surrounding Council practice increasingly transform the way its ‘rules’ are seen. In this context the practice of international criminal judicial creation is itself a deeply normative process, even though its own systemic internal rules may not be as clearly revealed as those that preside over Council activity. Behind the ‘values’ and the ‘rules’, I see powerful ‘ideas’ at work, which constrain what is seen as possible and desirable, in making the most of conflicting goals.

62. A. Cassese, ‘Is the ICC Still Having Teething Problems?’, (2006) 4 Journal of International Criminal Justice 434, at 436.

63. UN Doc. S/RES/1315 (2000).

64. See Statute of the Special Court for Sierra Leone, 16 January 2002, 2178 UNTS 145, Art. 1(3) (hereinafter Sierra Leone Statute).

65. UN Doc. S/RES/1688 (2006) 147.

66. Although this was suggested. See UN Doc. S/1999/231 (1999).

67. Report of the Secretary-General, supra note 12, para. 53.

68. This was complemented with the thinly veiled threat that ‘adoption of the statute of the “special tribunal” in such a manner will firmly establish our belief that Syria has no connection with this tribunal’. Identical letters dated 21 November 2006 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and to the President of the Security Council, UN Doc. S/2006/909.

69. Asia Society, International Center for Transitional Justice, and Human Rights Watch, ‘Transitional Justice for Cambodia: Challenges and Opportunities’, Symposium Report, 9 September 2003.

70. T. Perriello and M. Wierda, ‘The Special Court for Sierra Leone under Scrutiny’, International Center for Transitional Justice, March 2006, available at http://www.ictj.org/en/news/pubs/index.html.

71. D. Cohen, ‘“Hybrid Justice” in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future’, (2007) 43 Stanford Journal of International Law 2.

72. W. Schabas, ‘Le Tribunal spécial pour le Liban fait-il partie de la catégorie de “certaines juridictions pénales internationales”’, (2007) (hors-série) Revue Québécoise de droit international 119–31.

73. Establishment of a special tribunal for Lebanon, supra note 12, Art. 2(5(a)).

74. UN Doc. S/RES/1757 (2007).

75. See Mallat, supra note 16. ‘[T]he full support of the presidency is also essential legally, because too many of the court's actions depend on Lebanese law for the tribunal to be wholly effective.’

76. See Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, (1993) 32 ILM 1159, as amended by Security Council Resolution 1660 of 28 February 2006, Arts. 2–5; Statute of the International Criminal Tribunal for Rwanda, (1994) 33 ILM 1602, as amended by Security Council Resolution 1534 of 26 March 2004, Arts. 2–4.

77. See Sierra Leone Statute, supra note 64, Arts. 2–5.

78. E. Skinnider, ‘Experiences and Lessons from “Hybrid” Tribunals: Sierra Leone, East Timor and Cambodia’, paper for Symposium on the International Criminal Court, Beijing, China, 3–4 February 2007, at 16–17.

79. See Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), Art. 5.

80. At the 15th meeting of the International Law Commission in 1949 the chairman noted ‘that the expression “conscience of mankind” was currently used in international instruments and that it had been sanctioned by the second Hague Conference in 1907’. See Summary Record of the 15th Meeting, Topic: Fundamental rights and duties of States, Extract from the Yearbook of the International Law Commission, 1949, vol. I, UN Doc. A/CN.4/SR.15 (1949).

81. Report of the Secretary-General, supra note 12, at paras. 23–25. That possibility was dropped, despite its prima facie plausibility, because ‘considering the views expressed by interested members of the Security Council, there was insufficient support for the inclusion of crimes against humanity’.

82. See UN Doc. S/RES/1757 (2007), preamble. ‘Willing to continue to assist Lebanon in the search for the truth and in holding all those involved in the terrorist attack accountable and reaffirming its determination to support Lebanon in its efforts to bring to justice perpetrators, organizers and sponsors of this and other assassinations’.

83. M. Plachta, ‘The Lockerbie Case: The Role of the Security Council in the Enforcing of the Principle Aut Dedere Aut Judicare’, (2001) 12 EJIL 125, at140.

84. UN Doc. S/PRST/2005/61 (2005).

85. See B. Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’, (1998) 23 Yale Journal of International Law 383, at 410–11.

86. F. Mégret, ‘L'articulation entre tribunaux pénaux et juridictions nationales: centralité et ambiguïté dans l'ordre juridique international’, doctoral thesis, Université Paris 1 and Institut universitaire de hautes etudes internationales, 2005.

87. See Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, UN Doc. S/25704 (1993), Section II, Art. 8(D), para. 64, at 16.

88. F. Mégret, Le Tribunal Pénal International pour le Rwanda (2002), 25–6.

89. Y. Beigbeder, Judging Criminal Leaders: The Slow Erosion of Impunity (2002), 179.

90. K. Southwick, ‘Investigating War in Northern Uganda: Dilemmas for the International Criminal Court’, (2005) Yale Journal for International Affairs 108.

91. See L. Yang, ‘On the Principle of Complementarity in the Rome Statute of the International Criminal Court’, (2005) 4 Chinese Journal of International Law 123. See also J. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’, (2003) 1 Journal of International Criminal Justice 86, at 88–9.

92. UN Doc. S/PRST/2005/4 (2005).

93. UN Doc. S/PREST/2005/61 (2005).

94. UN Doc. S/2006/176, (2006), at 2 (emphasis added).

95. UN Doc. S/RES/1595 (2005), preamble.

96. Report of the Secretary-General, supra note 12, at 3.

97. ‘Security Council Votes to Establish Hariri Assassination Tribunal’, UN News Centre, 30 May 2007.

98. Security Council Meeting Record, supra note 1, at 6, statement by UK representative.

99. Ibid., at 7, statement by Slovakian representative.

100. Letter dated 15 May 2007 from the Secretary-General to the President of the Security Council, UN Doc. S/2007/281 (2007).

101. Security Council Meeting Record, supra note 1, at 7, statement by US representative.