Daily Star - STL defense attorneys argue that court has no jurisdiction, October 2 2012

By Willow Osgood

BEIRUT: Defense attorneys for the Special Tribunal for Lebanon argued Monday that the court had no jurisdiction over the case of the assassination of former Prime Minister Rafik Hariri and should be dissolved before the trial begins. Speaking before the Appeals Chamber, the defense challenged the Trial Chamber’s decision in July, which rejected the pretrial motions challenging the court’s jurisdiction and legality.

Responding to the Trial Chamber’s assertion that the court does not have the authority to review U.N. Security Council Resolution 1757, which established it, the defense argued that the STL is the only body that can examine the legality of its founding.

“Resolution 1757 is not a holy scripture and the Security Council is not God,” argued Yasser Hasan, an attorney for Hussein Oneissi, one of four members of Hezbollah indicted by the court. “What other body is entitled to review the Security Council especially when the resolutions have legal consequences?”

Echoing his colleague, Vincent Courcelle-Labrousse said that resolutions passed under Chapter VII of the U.N. Charter, which allows the United Nations to act to restore peace, must be assessed by the courts they create.

Building on this contention, the defense argued that the Security Council abused its power when it passed Resolution 1757 under Chapter VII because the 2005 attack which killed Hariri and 22 others was not a threat to international peace and security.

“In May 2007, there was no threat to international peace, only serious political trouble of a national scope,” said Antoine Korkmaz, who represents Mustafa Badreddine, another of the defendants.

The defense maintained that political assassinations have never been considered an international threat, and suggested an alternative motivation for the Security Council.

“In reality, there was no matter of an attempt to avert a threat to international peace but [only] to support certain Lebanese political factions against others,” Korkmaz said.

Opponents of the STL have long maintained that the court is selective, a claim also taken up by the defense.

“Two other Lebanese presidents were assassinated in the past – Rene Mouwad and Bashir Gemayel – and yet no international tribunal was set up to examine those crimes,” said Emile Aoun, adding that the accused were all members of one political party and belong to the same religious group.

The indicted men, Oneissi, Badreddine, Salim Ayyash and Asad Sabra, remain at large and were appointed attorneys by the STL.

Pretrial Judge Daniel Fransen has set March 25 as the tentative start date for the trial in absentia.

The Trial Chamber said in its July decision that it was not necessary to examine defense arguments that Lebanese law was violated when the court was established because it was based on a U.N resolution. It added that Lebanon, as a member of the U.N., was subject to action under Chapter VII.

But the defense redoubled its arguments Monday that the resolution that had given rise to the STL violated Lebanese sovereignty.

“In international law we cannot mix contractual and coercive measures,” said Aoun, who represents Ayyash. “One cannot engage in negotiations on a contractual basis and if one is not happy then he resorts to coercive measures under Chapter VII.”

“The Security Council cannot replace Lebanon and ignore provisions of Lebanese Constitution,” he added.

Resolution 1757 was passed after years of negotiations between Lebanon and the U.N. to establish a special court stalled amid domestic opposition.

Last week Sabra’s defense attorneys filed a motion claiming the Lebanese government was not responding to their requests for materials, including documents on the negotiations that took place in the run-up to Resolution 1757.

“The defense has repeatedly sought the assistance of Lebanon, but has yet to receive even a single document in response,” said the filing.

For its part, the prosecution focused on arguing against defense claims that there was a precedent for an international tribunal to review its own legality, as well challenging arguments that the STL had the authority to determine what constituted a threat to international peace and security.

“It’s a discretionary decision,” prosecutor Norman Farrell said.

The Appeals Chamber, composed of three international and two Lebanese judges, has yet to hear the appeal on a motion requesting the court to reconsider its February decision to try the defendants in absentia.

http://www.dailystar.com.lb/News/Politics/2012/Oct-02/189851-stl-defense-attorneys-argue-that-court-has-no-jurisdiction.ashx#axzz2816QG51z