by John RWD Jones* - iLawyer and Co-Counsel to Mustafa Amine Badreddine before the STL
The Special Tribunal for Lebanon (STL) was created by the UN Security Council (UNSC) to try those responsible for killing former Lebanese Prime Minister Rafiq Hariri and 22 others in a bomb blast on 14 February 2005. The trial is scheduled to start on 25 March 2013, but with the significant absence of any defendants, the only trial which will be held before the STL will almost certainly be a trial in absence.
Four defendants have been indicted – Badreddine, Ayyash, Oneissi and Sabra – all allegedly members of Hezbollah, and counsel have been assigned to each of them. A number of significant motions have been filed by defence counsel to date, including challenges to the legality of the STL and to the decision to proceed to hold trials in absentia. The STL Trial and Appeals Chamber have ruled on these motions, holding that the tribunal was established lawfully and affirming the decision to hold trials in absence.
However, the Appeals Chamber’s reasons for rejecting the challenge to the STL’s legality are unconvincing, given in particular the chamber’s refusal (president Baragwanath (NZ) dissenting) to recognise any power on its part to review the legality of UNSC resolutions at all, and thus to entertain any serious challenge on the issue.
There are serious grounds for considering that the way in which the STL was created constituted an abuse of power by the UNSC. Although the UNSC has previously created judicial bodies, namely the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) in 1993 and 1994 respectively, there are significant differences between those tribunals and the STL.
First, the ICTY and the ICTR were established to deal with crimes committed on a massive or systematic scale, namely the murder, rape and ‘ethnic cleansing’ of tens of thousands of civilians.
The STL, on the other hand, was established to deal with a single incident, namely the killing of Rafiq Hariri and those that died with him.
Second, the ICTY and ICTR were set up to deal with the core international crimes under international law, namely genocide, crimes against humanity and war crimes. The STL, on the other hand, can only try domestic crimes under Lebanese law.
Third, the ICTY and ICTR are non-selective in jurisdiction, in that their jurisdiction is not defined by reference to a named perpetrator or victim, but by reference to a particular territory (the former Yugoslavia or Rwanda) in a certain time-period. The STL, on the other hand, is only competent to try the killers of Hariri, and any cases connected to that killing, and not, for example, killings of leaders of other political or denominational factions in Lebanon.
Fourth, and most significantly, in the cases of the ICTY and ICTR, the situations in the former Yugoslavia and Rwanda at the relevant time plainly posed a clear threat to international peace and security, and the UNSC referred specifically to the relevant threats when adopting the relevant resolutions (827 (1993) and 955 (1994) respectively).
In the former Yugoslavia, it was “reports of mass killing, massive and organised and systematic detention and rape of women, and… ‘ethnic cleansing’, including for the acquisition and holding of territory” (Res 827). In the case of Rwanda, it was “reports that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda” (Res 955). The cross-border effects of the Rwandan genocide took the matter outside the purely domestic arena, creating a threat to international peace and security.
In the case of Lebanon and the STL, however, there was no indication at all, in 2007 when the UNSC created the STL, as to what, if any, threat to international peace and security there was, entitling the UNSC to act under the UN Charter. Indeed, to the contrary, it is clear from the UNSC debates at the time that the only reason for the UNSC to intervene, using its enforcement powers under Chapter VII of the UN Charter, was because it had proved impossible to create the STL as a result of a treaty between the UN and Lebanon, as had been planned originally.
Thus the Russian Federation, abstaining on the vote to create the STL, said that “there is no basis for a reference to Chapter VII in the draft resolution. The South African delegate said the same and also warned that the imposition of the STL on Lebanon would “politicise international criminal law, thereby undermining the very foundations of international law”.
These are powerful words. The STL’s first faltering steps are, therefore, mired in controversy surrounding its creation, which has not been dispelled by the Appeals Chamber’s decision.
* This article was originally published in The Lawyer magazine.