STL Publishes Key Details about June 13-14 Jurisdiction Hearing

The Special Tribunal for Lebanon on Tuesday released a media advisory reminding that its Trial Chamber will hold sessions on June 13 and 14 to hear arguments from the Prosecution, the defense counsel and the legal representatives of victims on the tribunal’s jurisdiction and the legality of its creation.

Below is the full text of the media advisory:

“The defense counsel for the four accused -- Salim Ayyash, Mustafa Badreddine, Hussein Oneissi and Assad Sabra – in the case relating to the assassination of former Prime Minister Rafik Hariri filed motions in early May challenging the legality and jurisdiction of the STL.

In the motions the defense counsel argued that the STL was unlawfully established and that the United Nations Security Council (UNSC) abused its powers by adopting resolution 1757 (2007). They argued that the UNSC considered the attack of 14 February 2005 posed a threat to international peace and security as a way to exercise its powers under Chapter VII of the United Nations (U.N.) Charter, when the attack posed no such threat. They also submitted that the resolution violates the law on treaties and U.N. law and that it is unconstitutional under Lebanese law.

The purpose of the hearing is to allow the participants to present their arguments following the recent response by the Prosecution, and the observations of the legal representatives of victims, both filed on 6 June. This will be the first time that the recently appointed legal representatives of victims and the defense counsel speak in a public hearing at the STL.

Prosecution's response to the motions

The Prosecution's response requested the Trial Chamber to dismiss the defense motions due to the following arguments:

- The Defense motions fall outside the scope of the Tribunal's rule allowing challenges to its jurisdiction. The Prosecution argues that the challenge to jurisdiction should be limited to whether the scope of the indictment goes beyond the Tribunal's mandate.

- The Defense do not have standing to raise violations of Lebanon's sovereignty.

- The Security Council did not abuse its powers when it established the Tribunal under Chapter VII of the U.N. Charter, as a measure to maintain international peace.

- The Defense challenges fail to demonstrate any illegality in the establishment of the Tribunal because:

- The request to establish a Tribunal with an "international character" was submitted to the U.N. following a decision from the Council of Ministers of Lebanon.

- The Lebanese President was involved in the negotiations, which led to the approval of the agreement.

- The agreement was approved by the Council of Ministers in accordance with the Lebanese Constitution.

- Lebanon's conduct towards the STL confirms that no breach of its sovereignty has taken place.

- Lebanon agreed to comply with the provisions of the annexed document, including the STL Statute.

Victims' observations

The legal representatives of the victims participating in the proceedings stated in their observations that the STL "is not only an institution with a sound legal basis, but is also the only forum competent or capable of giving effect to the rights of the victims to the 14 February [2005] attack". They also argued that "far from contravening fundamental international human rights standards, the establishment of the Tribunal was necessary to uphold and protect the fundamental human rights of the victims".

Precedents in challenging jurisdiction and legality of international tribunals

During the trial of Duško Tadić at the International Criminal Tribunal for the former Yugoslavia (ICTY), the Defense argued that the tribunal was illegal because the Security Council did not have the authority to establish international criminal tribunals under the U.N. Charter. In its interlocutory decision of 2 October 1995, the ICTY Appeals Chamber held that the establishment of the tribunal fell directly within the powers of the UNSC under Article 41 of the U.N. Charter and was consequently legal. The judges also added that the tribunal was lawful as it had been established in accordance with the appropriate U.N. procedures and provided all the necessary safeguards of a fair trial.

The ICTY Appeals Chamber also stated that the tribunal had the judicial authority to review the legality of its own establishment, despite having been set up by the Security Council. With this decision, the ICTY demonstrated its independence of the Security Council because it was able to judicially review its political decisions, although only from the viewpoint of the U.N. Charter and general principles of international law.

Following steps

After the hearings, the Trial Chamber will consider the arguments and observations submitted by the parties and participants and it will rule on its own jurisdiction and competence to try the case. This will be a major step forward as it is a fundamental question that needs to be determined before a trial can commence. If the Trial Chamber determines that the STL has no competence to deal with the crimes under its jurisdiction, this could mean that, pending an appeal, the STL could no longer operate as an institution.

In the meantime, the Trial Chamber at the STL is also seized of other matters. The defense counsel filed, in late May, motions for reconsideration of the decision to start proceedings in absentia. Further, the Pre-Trial Judge set 25 June as a deadline for the Defense to assess and make submissions on alleged defects in the form of the indictment, to seek the separation of counts in the indictment or seek separate trials. This is part of his obligation to ensure that the process is not unduly delayed and to prepare the case for a fair and expeditious trial. According to the Tribunal's rules, all preliminary motions are to be dealt with by the Trial Chamber, except for objections based on the refusal of a request for assignment of counsel, which is not applicable in this case."