Special Tribunal for Lebanon Finds Itself Legitimate

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A picture of slain former prime minister Rafiq al-Hariri hangs on the wall in a building. (Photo: Marwan Tahtah)

By: Legal Affairs Editor

Published Tuesday, July 31, 2012

Three years after it began its work, the Trial Chamber of the Special Tribunal for Lebanon (STL) has ruled that it is legal, and has jurisdiction over the February 2005 assassination of former prime minister Rafiq al-Hariri and all related crimes.

On Monday, the four-judge panel dismissed a series of preliminary motions challenging the STL’s jurisdiction that had been painstakingly prepared by the defense council appointed for the four Hezbollah members indicted in the case.

In so doing, the judges – including Lebanese judges Micheline Braidi and Walid Akoum – disregarded a finding made by the STL’s own former president, the late Italian jurist Antonio Cassese.

In 1995, the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), of which Cassese was president, issued a decree – presumably establishing a norm for international courts – that any court is entitled to reconsider its own legality, in effect its right to exist, or what is known as its “competence-competence.”

But Braidi and Akoum – along with judges David Re and presiding judge Robert Roth – allowed themselves to abandon this legal principle, in favor of a decree by the ICTY Trial Chamber which separated challenges to jurisdiction from challenges to legality. Even though that rule was contradicted and corrected by the decree issued by the appeals court headed by Cassesse.

The eight-member defense team are likely to appeal the decision. They had argued in their preliminary motions, citing scores of legal sources and references, that the STL was established illegally, that it violates Lebanon’s sovereignty, that its competence is selective, and that it does not ensure the accused a fair trial.

But the Trial Chamber decided that these are not challenges to the STL’s jurisdiction but to its legality, or validity, and cannot therefore be defined as preliminary motions.

The judges reasoned that the STL was established by the UN Security Council when it issued Resolution 1757 in May 2007, that this was “the sole basis” of its establishment, and that Lebanon had respected its obligations under the resolution. Accordingly, the Chamber found that it was not necessary to examine any issues in the defense motions demonstrating that the STL violates Lebanese domestic law.

The Trial Chamber maintained that the Lebanese state never claimed its sovereignty had been violated. The point was emphasized in a statement issued by the STL on Monday night. "To the contrary,” it said, “as a member state of the United Nations, Lebanon has honored its obligations specified in the annex to the resolution by taking all required steps, including: presenting a list of 12 persons to be appointed as judges by the secretary-general, appointing a deputy prosecutor, recognizing the juridical capacity of the Tribunal to enter into agreements with states by concluding the Memoranda of Understanding with the Tribunal, contributing significantly to financing the Tribunal, facilitating the establishment of the Tribunal's Beirut field office, complying with requests for assistance from the Tribunal, and deferring to the Tribunal's jurisdiction the cases related to the 14 February 2005 attack...The Trial Chamber thus cannot make a finding of any violation of Lebanese sovereignty."

The Trial Chamber also found that had it did not have the power to review the actions of the Security Council in establishing the STL, and that "no other judicial body possesses such a power of potential judicial review of the Security Council." As the UN is entitled to establish courts, the STL is therefore deemed to have been validly "established by law."

Regarding the issue of selectivity, the Trial Chamber found that the STL’s limited jurisdiction did not infringe on the accused's fundamental rights to a fair trial. It reasoned that "criminal investigation and prosecution is unavoidably selective in any system," that such "selectivity" is “a normal part” of international criminal jurisdictions such as the STL's, and “an inevitable consequence of establishing an international criminal court or tribunal."

This article is an edited translation from the Arabic Edition.

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