The Daily Star - STL defense teams challenge Tribunal’s jurisdiction, May 11 2012

By Willow Osgood

BEIRUT: The defense teams for the four Hezbollah members indicted in the 2005 assassination of former Prime Minister Rafik Hariri have filed preliminary motions challenging the jurisdiction of the Special Tribunal for Lebanon, the U.N.-backed court announced Thursday.

Though each of the defense teams representing Salim Ayyash, Mustafa Badreddine, Hussein Oneissi and Assad Sabra filed separate motions, many of their arguments challenging the court’s jurisdiction overlap.

Among the challenges, the motions argue that the U.N. Security Council abused its powers by adopting Resolution 1757, which established the court, under Chapter VII of its charter because the attack that killed Hariri and 22 others did not constitute a threat to “international peace and security.”

According to a statement released by the STL, Badreddine’s defense team argues in its motion that “[t]he 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 ... That was an abuse of the Security Council’s powers under the United Nations Charter.”

The defense team of Badreddine filed its motion Thursday, while the three other motions challenging the court were filed in recent days. The motions are part of the pretrial phase, which began when the court decided in February to try the accused men in absentia. STL President David Baragwanath has said that if the court finds it has no jurisdiction, it will end its work.

Defense counsel for the accused also argue in the motions that the agreement between Lebanon and the U.N. to establish the court was illegal and violated Lebanon’s Constitution.

Attorneys for Oneissi say “Lebanon never consented to be bound by the ‘agreement’ which was a) negotiated, adopted and signed on behalf of the Lebanese Republic by persons acting without the requisite legal capacity, b) never ratified in compliance with the provisions of the Constitution of the Lebanese Republic as required by international law and c) consequently, never entered into force. As a result, the ‘agreement’ is illegal and as such, shall not have any legal effect.”

Other challenges to the court focus on the charges of terrorism. The STL is the first international tribunal to deal with terrorism as a distinct crime.

“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,” Badreddine’s attorneys argue.

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