ilawyerblog.com

Defence Teams Challenge the Special Tribunal for Lebanon’s Jurisdiction

The Defence teams of the four accused indicted in the 2005 assassination of former Prime Minister Rafik Hariri have filed this week preliminary motions challenging the jurisdiction of the Special Tribunal for Lebanon.

Though each of the defense teams representing Salim Ayyash, Mustafa Badreddine, Hussein Oneissi and Assad Sabra filed separate motions, many of their arguments challenging the Tribunal’s jurisdiction overlap.

Among the challenges, the motions argue that the U.N. Security Council abused its powers by adopting Resolution 1757, which established the Tribunal, under Chapter VII of its Charter 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.

Moreover, for the Defence teams, the Security Council exceeded its powers by delegating the jurisdiction to exercise domestic law to an international body without consent. There is no basis in the UN Charter which empowers the Security Council to do so as the Security Council itself has no authority to apply Lebanese law or to delegate that competence to others. The UN Charter only refers to “international law” (not domestic law) as being within the realm of its competence.

Defense counsel for the accused also argued that the agreement between Lebanon and the U.N. to establish the court was illegal and violated Lebanon’s Constitution as Lebanon had never consented to be bound by the ‘agreement’ which was negotiated, adopted and signed on behalf of the Lebanese Republic by persons acting without the requisite legal capacity, and never ratified in compliance with the provisions of the Constitution of the Lebanese Republic as required by international law.

Being unlawfully and unconstitutionally established, the STL was thus not “established by law”, said the Defence, the minimum requirement for any judicial body worthy of the name, which entails that 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”.

The Defence added that whilst the Statute provides for a prohibition against non bis in idem, it is incapable of enforcing that guarantee in an effective manner as Lebanese courts could readily re-qualify the underlying conduct and re-prosecute any of the accused (acquitted or convicted).

The Defence also highlighted the hyper-selectivity of the Tribunal’s jurisdiction as in the history of criminal law, there is no case where a new jurisdiction was created to adjudicate upon only one criminal incident.

For the motion of Salim Ayyash’s Defence Team, click here.

For the motion of Mustafa Badreddine’s Defence Team, click here.

For the motion of Hussein Oneissi’s Defence Team, click here.

For the motion of Assad Sabra’s Defence Team, click here.