On 4 May 2012, the defence team for Mustafa Badreddine filed a motion challenging the legality of the establishment of the Special Tribunal for Lebanon (‘STL’). According to the Badreddine team, the Security Council exceeded its powers when it adopted Resolution 1757(2007) establishing the Tribunal. The Badreddine team argued, based partly on the Tadic interlocutory appeal jurisdiction decision of the ICTY Appeals Chamber of 2 October 1995, that the STL has the jurisdiction to review the lawfulness of its own establishment (the principle known as la competence de la competence or Kompetenz Kompetenz), and by extension, the legality of the Security Council resolutions establishing the Tribunal. On this basis, the Badreddine defense requested that the Trial Chamber state that the STL has been unlawfully established.
The key arguments put forward by the Badreddine team in support of its position that the establishment of the STL was unlawful are as follows:
• The Security Council abused its powers when it adopted resolution 1757 (2007) as the assassination of former Prime Minister Hariri, and the deaths and wounding of many others, on 14 February 2005, while tragic, could not in any sense be considered to pose a threat to international peace and security. It did not constitute an armed conflict and it did not create any cross-border effects. While the Security Council had a wide margin of appreciation in deciding on threats to international peace and security, its powers were not unlimited, and were subject to review by the Courts, including by the STL;
• The Security Council invoked a putative threat to international peace and security in the case of resolution 1757, merely as a formal step to enable it to exercise its powers under Chapter VII of the United Nations Charter, when no such threat existed. In fact, it resorted to its Chapter VII powers only because the creation of the STL by means of treaty had failed. That was an abuse of the Security Council’s powers under the United Nations Charter;
• The STL’s creation was discriminatory. The creation of a Tribunal to try not simply a category of crimes committed in a region at a certain time, as had been done at the ICTY and ICTR, but only one criminal incident, was impermissibly selective, without precedent and an abuse of the Security Council’s solemn powers;
• The Security Council had favoured one political tendency in Lebanon by establishing a Tribunal solely to try crimes associated with the assassination of Hariri and not, for example, other terrorist crimes or crimes resulting from the Israeli aggression in 2006;
• The Security Council had never before established an international tribunal to deal with terrorist crimes, not even in the case of international terrorism (such as the events of 9/11). The Hariri killing was properly characterised as a political assassination, which could only tendentiously be described as terrorism; it had no aspect whatsoever of international terrorism;
• The establishment of the STL was not an appropriate step, considering international law, the powers of the United Nations and state practice. Rather than promoting peace and security in the region, the STL’s creation has had the opposite, de-stabilising effect – it had polarised Lebanese society, fragmented its confessional and political communities and jeopardised its fragile peace after years of internecine strife;
• That the Security Council’s Chapter VII powers were improperly used is further revealed by the fact that the only State in the world which is obliged to cooperate with the STL is Lebanon, which would not be the case if the STL had been established by a bona fide exercise of Chapter VII powers by the Security Council in the name of the world community in response to a genuine threat to international peace and security;
• The STL was established in flagrant violation of Lebanon’s Constitution and its sovereign equality under international law. Moreover the Security Council was well aware of this both before and at the time of the STL’s creation since the Lebanese President repeatedly informed the UN Secretary-General of the fact. Moreover its establishment was procured by fraud and false representations, within the meaning of the Vienna Convention on the law of treaties. This vitiated resolution 1757 and the annexed agreement establishing the STL;
• Under international law, in particular the Vienna Convention, a treaty cannot be brought into force coercively, against the will of one of the State Parties. Yet this is what the Security Council did when it coercively brought into force an agreement between Lebanon and the United Nations to set up the STL; and
• Being unlawfully and unconstitutionally established, the STL was not “established by law”, the minimum requirement for any judicial body worthy of the name. Accordingly the STL could not provide a fair trial to any accused, since an accused has a fundamental right to be tried by a tribunal “established by law”.
Mustafa Amine Badreddine is indicted in relation to the killing of former Lebanese Prime Minister Rafik Hariri. He is charged with committing and conspiracy to commit a Terrorist Act, intentional homicide with premeditation of Mr Hariri and 21 other persons and attempted intentional homicide with premeditation of 231 further people. Mr Badreddine is currently at large. On 1 February 2012, the STL Trial Chamber decided to proceed to the trial of Mr Badreddine and three others in absentia, a decision currently challenged by another motion filed by the Badreddine defence.
Mr Badreddine is represented by Mr Antoine Korkmaz (lead counsel), Mr John RWD Jones (co-counsel), Ms Pauline Baranes and Ms Sandra Delval (legal officers).