The defense team for Mustafa Badreddine -- who is accused of
involvement in the 2005 assassination of ex-PM Rafik Hariri -- on Friday filed
a motion challenging the legality of the establishment of the U.N.-backed
Special Tribunal for Lebanon which has been probing the case since 2007, the
STL said in a statement.
“In its Motion the Badreddine team argue that the STL was
unlawfully established and that the Security Council abused its powers by
adopting resolution 1757 (2007),” said the STL.
The relief requested by the Defense is that the Trial Chamber
state that the STL has been unlawfully established. The Defense also filed a
motion challenging the Trial Chamber’s decision to proceed to hold a trial in
absence.
The Badreddine team is represented by lead counsel Antoine
Korkmaz, a Lebanese and French national admitted to the Paris Bar, co-counsel
John RWD Jones of Britain, and legal officers Pauline Baranes and Sandra
Delval.
In October 2011, the head of the STL Defense Office Francois Roux
assigned a primary duty counsel and a co-counsel to each of the accused.
“The purpose of these assignments is to ensure that the rights and
interests of the accused are individually protected while the Trial Chamber
considers whether to initiate in absentia proceedings,” the Defense Office
explained.
“The eight duty counsel have been selected based on their relevant
experience, skills and competences, including experience in Lebanon, terrorism
cases, or international tribunals as well as their language abilities,” it
added.
“The selection of the Lead counsel was done by the Defense Office,
with no involvement from any of the four accused,” it continued.
In August 2011, the STL published the indictment in the 2005
assassination of Hariri along with arrest warrants against four Hizbullah
members -- Badreddine, Salim Ayyash, Hussein Oneissi and Assad Sabra, who were
accused of being involved in the crime.
The Lebanese authorities were given 30 days to arrest the
suspects, but they failed to do so and the accused remain at large. Hizbullah
has refused to cooperate with the STL, which party chief Sayyed Hassan
Nasrallah has deemed a “U.S.-Israeli plot” against his group.
The main arguments put forward by the Defense are as follows:
“- The Security Council abused its powers when it adopted
resolution 1757 (2007) as the assassination of former Prime Minister Hariri,
and the deaths and wounding of many others, on 14 February 2005, while tragic,
could not in any sense be considered to pose a threat to international peace
and security. It did not constitute an armed conflict and it did not create any
cross-border effects. While the Security Council had a wide margin of
appreciation in deciding on threats to international peace and security, its
powers were not unlimited, and were subject to review by the Courts, including
by the STL;
- The Security Council invoked a putative threat to international
peace and security in the case of resolution 1757, merely as a formal step to
enable it to exercise its powers under Chapter VII of the United Nations
Charter, when no such threat existed. In fact, it resorted to its Chapter VII
powers only because the creation of the STL by means of treaty had failed. That
was an abuse of the Security Council’s powers under the United Nations Charter;
- The STL’s creation was discriminatory. The creation of a
Tribunal to try not simply a category of crimes committed in a region at a
certain time, as had been done at the ICTY and ICTR, but only one criminal
incident, was impermissibly selective, without precedent and an abuse of the
Security Council’s solemn powers;
- The Security Council had favored one political tendency in
Lebanon by establishing a Tribunal solely to try crimes associated with the
assassination of Hariri and not, for example, other terrorist crimes or crimes
resulting from the Israeli aggression in 2006;
- The Security Council had never before established an
international tribunal to deal with terrorist crimes, not even in the case of
international terrorism (such as the events of 9/11). The Hariri killing was
properly characterized as a political assassination, which could only
tendentiously be described as terrorism; it had no aspect whatsoever of
international terrorism;
- The establishment of the STL was not an appropriate step,
considering international law, the powers of the United Nations and state
practice. Rather than promoting peace and security in the region, the STL’s
creation had had the opposite, de-stabilizing effect – it had polarized
Lebanese society, fragmented its confessional and political communities and
jeopardized its fragile peace after years of internecine strife;
- That the Security Council’s Chapter VII powers were improperly
used is further revealed by the fact that the only State in the world which is
obliged to cooperate with the STL is Lebanon, which would not be the case if
the STL had been established by a bona fide exercise of Chapter VII powers by
the Security Council in the name of the world community in response to a
genuine threat to international peace and security;
- The STL was established in flagrant violation of Lebanon’s
Constitution and its sovereign equality under international law. Moreover the
Security Council was well aware of this both before and at the time of the
STL’s creation since the Lebanese President repeatedly informed the U.N.
Secretary-General of the fact. Moreover its establishment was procured by fraud
and false representations, within the meaning of the Vienna Convention on the
law of treaties. This vitiated resolution 1757 and the annexed agreement
establishing the STL;
- Under international law, in particular the Vienna Convention, a
treaty cannot be brought into force coercively, against the will of one of the
State Parties. Yet this is what the Security Council did when it coercively
brought into force an agreement between Lebanon and the United Nations to set
up the STL;
- Being unlawfully and unconstitutionally established, the STL was
not “established by law”, the minimum requirement for any judicial body worthy
of the name. Accordingly the STL could not provide a fair trial to any accused,
since an accused has a fundamental right to be tried by a tribunal “established
by law”;
“The Badreddine team argue, based partly on the Tadic
interlocutory appeal jurisdiction decision of the ICTY Appeals Chamber of 2
October 1995, that the STL has the jurisdiction to review the lawfulness of its
own establishment (the principle known as la competence de la competence or
Kompetenz Kompetenz), and by extension, the legality of the Security Council
resolutions establishing the Tribunal,” said the STL in its statement.
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http://www.naharnet.com/stories/en/39769
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