Hariri Tribunal: Conflict of Interest

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The defence council of the U.N. Special Tribunal for Lebanon (STL) (front row, L to R) R. Maison, Pauline Baranes, S. Codde and Antoine Korkmaz attend the opening of the public hearing at the court in Leidschendam, near The Hague 13 June 2012. (Photo: Reuters - Robert Vos - Pool)

By: Legal Affairs Editor

Published Thursday, June 14, 2012

Arguments are underway at the STL over the legality of the court, with the defense making a strong argument that the international tribunal violates Lebanon’s sovereignty. But given that the judges are employed and paid by the STL, it is unlikely that they will agree.

The Special Tribunal for Lebanon (STL) Prosecutor Norman Farrell is expected to prove the legality of United Nations Security Council (UNSC) decision to establish the STL under Chapter VII of the UN Charter. But due to the political nature of the council’s resolutions, proving its legitimacy will be impossible.

It is unlikely that the judges will declare the institution that employs them and pays their salaries illegal, even though they might be convinced of the arguments of the defense team. Legitimacy, however, does not exist as the Lebanese parliament, the legitimate representative of the Lebanese people, has not approved the STL’s regulations.

“It is difficult to cut off the hand that feeds us, but this is up to you. It is your role as judges. If you are convinced of the illegality of the STL, the crime can return to the jurisdiction of the local courts,” defense lawyer Antoine Korkmaz said yesterday morning.

He was replying to a question by the (reserve) Lebanese judge Walid Akoum during a meeting of the Trial Chamber judges of the special tribunal set up in The Hague for the trials in the case of the assassination of [former Lebanese Prime Minister] Rafik Hariri. They were debating the legality of the special tribunal’s establishment and the legitimacy of its jurisdiction.

The session was presided over by Swiss judge Robert Roth, and attended by Lebanese judge Micheline Braidi and Australian judge David Re. The second reserve judge Janet Nosworthy was also present.

Before getting into the arguments of the defense and prosecution, it should be noted that the second session of the discussion on the legality of the court will be held on Thursday. Defense lawyer Peter Haynes, assisted by Nada Abdelsater-Abusamra and Mohammad Farid Matar will present the case for the plaintiffs.

Following Thursday’s session, the Trial Chamber judges will study the arguments and observations presented by the two sides and will decide on the jurisdiction and legality of the court. The date for the ruling has not been set yet and it could take several weeks to do so.

If the Trial Chamber judges decide against the STL’s jurisdiction over the crimes that fall under its specialization according to its statutes annexed to UNSC Resolution 1757 (30 May 2007), the court cannot continue to function as an institution. But this remains highly unlikely, unless the judges decide to “cut off the hand that feeds them.”

The Defense on the Offense

Wednesday’s session began with the argument of the French (of Lebanese origins) lawyer Antoine Korkmaz. He spoke about the question of the UNSC’s 2007 description of the crime of assassinating Hariri as a threat to international peace and security, although there were no armed clashes.

In the meantime, the council still refuses to describe the Israeli invasion of Lebanese territories, the killing of hundreds of civilians, and the destruction of the infrastructure in 2006, as a threat to international peace and security.

The defense lawyer concluded that UNSC Resolution 1757 which created the STL was not lawful, since the crime of 14 February 2005 did not pose a threat to international peace and security. He pointed out that the resolution did not mention any facts that indicate such a threat.

Korkmaz raised the issue of the Security Council’s violation of Article 52 of the Lebanese Constitution which stipulates that “the President of the Republic shall negotiate and ratify international treaties.” He also referred to Paragraph J of the preamble to demonstrate the illegitimacy of the government of Fouad Siniora that ratified the international agreement to set up the court.

Korkmaz continued his statement by accusing the Security Council of violating the Vienna Convention on the Law of Treaties and the UN Charter that prohibit the violation of Lebanon’s sovereignty. He insisted that the UNSC had abused its powers and forcibly interfered in Lebanon’s affairs through imposing an international treaty without being ratified by the Chamber of Deputies.

He replied to judge Nosworthy who had implied that the assassination of Hariri is an international crime and thus poses a threat to international peace and security. He said that describing crimes as international is the decision of the legislature and not the court.

As for the enormity of the crime and its threat, Korkmaz reminded the court that many crimes, such as the 11 September 2001 attack on New York, have not been designated international and no international courts were set up to punish their perpetrators.

Lebanese lawyer Emile Aoun, who assists lawyer Eugene O’Sullivan in defending Salim Ayyash, gave the second plea. He maintained that the UNSC had never invoked Chapter VII of the UN Charter at any time in the history of the Lebanese crisis, not even in the 1975-1990 civil war.

This was in spite of the dramatic and bloody events and the blatant violations of human rights. He added that the international community was never concerned with setting up an international inquiry on the issue. None of the crimes committed in that war were investigated.

Aoun reminded the court that Resolution 1757 was issued on 30 May 2007. The Security Council decided to invoke Chapter VII and enter into force the provisions of the annexed document related to the creation of the court on 10 June 2007.

The resolution’s preamble reiterates the UNSC’s call to respect the sovereignty, territorial integrity, and unity of Lebanon. He noted that the council contradicted itself in the lines below, literally stating that there is a violation of the provisions of the Lebanese Constitution by noting that “that the establishment of the tribunal through the constitutional process is facing serious obstacles.”

Aoun questioned how the sovereignty of a state, on the one hand, could be linked to the violation of its constitution through imposing a draft treaty on Lebanon, against the wishes of its constitutional bodies and without being ratified by the president of the republic or the parliament, on the other.

He held that international law and the UN charter communicate with states and international organizations exclusively through their constitutions. But UNSC Resolution 1757 attempted to interfere in local Lebanese affairs through taking sides in internal disputes “to ensure the success of one political party over the other,” a precedent in international law.

Aoun pointed out that “for over 60 years, human rights have been slaughtered every day in Palestine and the international community does not care. There is summer and winter together under the roof of so-called international justice.”

French lawyer Vincent Courcelle-Labrousse defending Hussein Anaissi presented the third plea. He evoked the positions of the Chinese and Russian representatives in the 30 May 2007 session. They had insisted that 1757 violated Lebanese sovereignty.

He added that international agreements between two sides calls for both to have the legal authority to sign, but this does not apply to the agreement annexed to Resolution 1757, reiterating that the Security Council ignored the message of Lebanese President Emile Lahoud to the UN Secretary General about the illegality of the international treaty.

The Prosecutor Forbids Criticism

Answering the defense lawyers’ statements, Assistant Prosecutor Daryl Mundis said that “the Rules of Procedure and Evidence do not include defense against the legality of its establishment.” He asked the judges not to accept any defense about the jurisdiction or legitimacy of the court.

Mundis argued that pleading against jurisdiction based on the illegality of the court is not admissible. He explained that Article 90 of the Rules of Procedure and Evidence aims to provide juridical efficiency and avoid the disruption of proceedings.

He maintained that most criminal courts around the world do not look into the issue of jurisdiction, pointing to the fact that the case has not yet been referred to the Trial Chamber, and thus such claims cannot be presented.

Mundis explained that only the Lebanese Republic has the capacity to present issues regarding sovereignty, and it has not claimed the violation thereof. He indicated that the defense arguments about sovereignty are null and that counsel does not have the capacity to introduce the subject.

Prosecutor Norman Farrell replied to the arguments by saying that Lebanon is a signatory to the UN Charter and thus has ceded its sovereignty in the case of binding resolutions adopted by the UNSC.

Farrell emphasized that decisions under Chapter VII of the UN Charter has precedence over the Vienna Convention on the Law of Treaties, and therefore has the right to impose the agreement on Lebanon.

As for the positions taken by some members in the Security Council about the illegitimacy of the court, Farrell replied that none of the members of the council had voted against 1757.

This article is an edited translation from the Arabic Edition.

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