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STL Judge Baragwanath’s Separate and Partially Dissenting Opinion Contributes to the Ongoing Debate on Judicial Review Powers Over Security Council Resolutions

by Mariya Nikolova

A version with footnotes and references is available here.

On 24 October 2012, the Appeals Chamber (AC) of the Special Tribunal for Lebanon (STL) delivered its decision on the Defence challenges to the jurisdiction and legality of the STL.

The AC dismissed the appeals, confirming the Trial Chamber’s (TC) previous ruling that the STL was established as an independent institution (i.e., not a UN subsidiary organ, and not a treaty-based hybrid jurisdiction) by SC Resolution 1757 (2007). The AC adopted the view of the TC ruling that the Security Council did not abuse its powers when adopting Resolution 1757 creating the STL. By virtue of this Resolution, the AC said, the Security Council effectively integrated the provisions of a draft agreement, previously negotiated between the UN and Lebanon but not ratified by the latter.

According to the AC, the Security Council did not therefore impose an agreement on Lebanon (which would have probably been ultra vires), but rather gave its provisions binding effect by virtue of Resolution 1757. Finally, the AC held by a majority that the STL cannot judicially review the Security Council’s actions, not even when they pertain to the question of the legality of the Tribunal.

This followed the somewhat disappointing reasoning of the TC, which had also summarily set aside the Tadic precedent of limited incidental authority to review UNSC resolutions (as well as a host of subsequent international judicial practice). The practical effect of the AC majority’s view is to put beyond the scope of judicial review the actions of the Security Council. From the point of view of persons subjected to its jurisdiction, this directly affects and undermines their rights to access to justice and to an effective remedy in relation to any violation of their rights which might have resulted from the actions of the Council. The majority’s position on that point could also affect the appearance of independence and impartiality of the Tribunal vis-à-vis its political creator.

It is precisely on the issue of judicial review that the Separate and Partially Dissenting Opinion by Judge Baragwanath provides some interesting reflections. While not questioning the “uniquely high status of the Security Council […] and the fact that [it] has primary responsibility for the maintenance of international peace and security, coupled in particular with its expansive powers under Chapter VII” , Judge Baragwanath appropriately asked the question “whether the rule of law requires any, and if so what, scope for some limited review” by the STL?

According to him, “the high public interest in not interfering with the difficult and important work of the Security Council is opposed by nothing less than the rule of law itself.” In this instance, the “rule of law” manifested itself in the challenge of the appellants that the court before which they stood is not established by law, which is an absolute right of any defendant and which the STL, by virtue of its very creation, has to afford to the accused.

Judge Baragwanath held that a court must be understood to have an inherent power to engage in judicial review of a specific conduct which, if unlawful, will provide an effective defence to an accused. This appears essential to maintain the Tribunal’s commitment to uphold the rule of law and draw a line of (judicial) independence between the Tribunal and the political body that gave it life.

In relation to the Security Council, Judge Baragwanath suggests that “the rule of law requires the legality of the conduct of any body lacking plenary authority be subject to judicial review”, and that “that principle is of special importance where it concerns a political power’s conduct which affects fundamental human rights, including the right to liberty and the absolute right of fair trial”. Judicial review, according to Judge Baragwanath, is indispensable to ensure that powerful decision-makers comply with the law. In the absence of any alternative tribunal available or designated to perform such review on SC Resolution 1757, it is up to the STL to do so. To be sure, the STL would be performing an “incidental” review of the legality of Security Council’s resolutions, and not a primary one. For the STL to refuse to engage in such judicial review would amount to “abdicating the judicial responsibility to ensure the highest standards of international criminal procedure stipulated in Article 28(2) of the STL Statute.”

After examining the Nada, Kadi, and Al-Jedda cases, Judge Baragwanath concluded that Kadi provided the closest legal analysis to the question at hand, namely that the United Nations Charter and its fundamental principles – agreed to by all states when joining the United Nations organization – should prevail in case of any inconsistency between a SC resolution and the Charter. In this particular case (concerning the creation of an independent judicial body), the SC resolution should specifically be checked against the Purposes and Principles of Article 24(2) of the UN Charter.

Judge Baragwanath appears to suggest an original and perceptive analysis for the performance of this type of judicial review through a “sliding scale” depending on the nature of the issue that is subject to the review. According to him, judicial review can take many forms – it can be minimal (on issues relating to high policy/national security) or extensive (e.g. habeas corpus). In his opinion, in determining exactly how far to go in performing a judicial review of SC resolution 1757 (and, more generally, of this type of UNSC actions), one should consider the following elements:
- The subject matter of Chapter VII of the Charter;
- Its scheme (member States according broad powers on the SC to act promptly);
- The language of both Articles 39 and 41 of the Charter;
- The implications of a decision to apply Articles 39 and 41 of the Charter;
- The particular expertise lying with the Security Council and not the Tribunal (e.g. as regards the assessment of a ‘threat to international peace and security’ and the measures that should be taken to address the situation);
- The context of the decision.

Such a sliding scale is derived from several cases before national jurisdictions, where the courts had exercised judicial review over administrative acts (in a broad sense) and in relation to questions concerning fundamental human rights. Notwithstanding the question of whether the Security Council can be likened to a domestic executive organ and an international tribunal – to a domestic court of law, this approach seems to be based on concrete examples of significance for the claims made by the Defence in this case. It is also evidently based on the need to ensure that a tribunal performs its function as an enforcer of the rule of law.

Upon performing such a contextual review in the case at hand, Judge Baragwanath concluded that the Defence had neither shown that, at the time when SC Resolution 1757 was adopted, the Security Council erred in establishing that there was a threat to international peace and security, nor that the establishment of the STL had been selective or prejudicial to the accused in any way. An interesting remark in this respect is the one according to which the review to be performed is not a review of the legitimacy of UNSC resolution 1757 per se, but rather of its effects.

In other words, according to Judge Baragwanath, tribunals should always examine not so much whether the UNSC had the authority to issue a certain resolution (the UN Charter does not provide for this power of general review). Rather, a criminal tribunal charged with ensuring fair trial rights to the accused must simply satisfy itself that the effects of the resolution in question (in this case, the effects created by the Statute annexed to UNSC resolution 1757) would not create breaches of fundamental human rights to the accused. According to Judge Baragwanath, this would tally with the presumed original intention of the UNSC itself, which could not have wanted – in creating a court of law – anything less than a tribunal endowed with effective independent vis-à-vis its creator.

Judge Baragwanath’s powerful remarks, echoing not only the reflections of the Appeals Chamber in Tadic, but also similar opinions by Judge Malinverni in Nada and several distinguished commentators, invite us to revisit the debate on the scope of judicial review of Security Council resolutions. In fact, building upon previous jurisprudence, Judge Baragwanath has effectively demonstrated how such a review could be executed in practice. The majority’s opinion, in contrast, seems unconvincing in its reasoning and result.

The question remains, of course, what the consequences would have been for the STL, had he arrived to the opposite conclusion – that the SC had erred in assessing the threat as one falling under Chapter VII, or that the STL was not an appropriate measure to take in the circumstances of the case. From that perspective, it is unclear which option is better – to renounce exercising judicial review of SC 1757 altogether as a matter of principle (as the TC and AC majority favored), or to exercise judicial review with the risk that a positive conclusion is interpreted as merely justifying the existence of the STL, while a negative one would lead to its possible nullification.

It is helpful to put Judge Baragwanath’s remarks in context. So far, instances of ‘judicial review’ of SC resolutions have concerned either cases of review over the implementing legislation giving effect to a SC resolution (e.g. sanctions), or review given on the basis of jus cogens considerations. In the case of the ICJ, that court has itself proclaimed that it has no general power to judicially review SC resolutions. The consensus today seems to be that no judicial instance, domestic or international, has the general or unlimited power to perform judicial review of SC resolutions.

Judge Baragwanath’s observations do not depart from this consensus. However, he does seem to take the debate a step further (or rather, back to Tadic) by performing the (albeit limited) judicial review over the very Security Council resolution that created the STL. In contrast, the AC majority effectively rolled back what had been, for the past fifteen years or so, the practice of international criminal tribunals, without providing compelling reasons for such reversal.

Judge Baragwanath’s sliding scale approach may be potentially useful to apply to other situations where conflicts of norms seem to exist between the effects of a SC resolution and a given legal order. This scale seems to be premised on the careful balance between the impact on the exercise and enjoyment of human rights that a SC resolution may have and the scope of the review itself.

The greater the impact, the more substantial the review. It may be that in this proposition, Judge Baragwanath has just given the beginnings of a blueprint for the ECHR, ECJ, and other courts on how to perform judicial review without undermining the authority of SC resolutions.

Mariya Nikolova holds an LLM in International Humanitarian Law from the ADH Geneva Academy of International Humanitarian Law and Human Rights Law. She was previously a Legal Trainee at the Special Tribunal for Lebanon and Editorial Assistant of the International Review of the Red Cross, ICRC.