Court/Tribunal: Special Tribunal for Lebanon

Decision Title: Decision on the Defense appeals against the Trial Chamber’s “Decision on the Defense Challenges to the jurisdiction and legality of the tribunal”

Chamber: Appeal Chamber

Case Name: Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra

Date: 24 October 2012

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Decision Background: The Defense teams for the four defendants at the Special Tribunal for Lebanon filed a motion with the Trial Chamber, challenging the legality of the Tribunal’s existence, and its ability to try the individuals for the February 14, 2005 bombing that killed the former Lebanese prime minister. Each defense team filed separately in the Trial Chamber and then to the Appeals Chamber, although the claims made by each were substantively the same.

The Defense contended that the establishment of the Tribunal violated international law, in that it violated the constitution of Lebanon, one of the parties affected by Resolution 1757, passed by the Security Council to create the Special Tribunal. They contended that the passage of the Resolution abused and went beyond the scope of the powers granted to the Security Council by the United Nations charter. Specifically, the Defense argued that the Resolution was invalid under international law, because it amounted to the enforcement of a treaty upon Lebanon, which the country did not ratify [an agreement between Lebanon and the United Nations to create an international tribunal had been drafted and signed by the parties, but had not been ratified by Lebanon]. Likewise, they contend that the Resolution abused Security Council authority because its jurisdiction – over the 2005 bombing incident—was too narrow and selective.

Furthermore, they contended that it was within the Tribunal’s provenance to review the legality of its creation by the Security Council as a jurisdictional matter, and to determine whether or not the Tribunal can actually exist in this situation. The Defense argued against the Security Council’s sovereignty as an international body, and stated that the Tribunal is therefore legally entitled to review Security Council decisions.

The Trial Chamber found that the Security Council properly created the Resolution and the Tribunal pursuant to its duties under the U.N. Charter. It did not find the scope of the Resolution or the Tribunal too narrow. Apart from the merits of the Defense’s case, the Trial Chamber also found that it did not have the power to review or rule on a Security Council resolution, or the legality of its own existence pursuant to that review.

The Defense appealed to the Appeals Chamber, claiming errors in law for the decisions reached by the Trial Chamber.

An oral hearing in the appeal was heard by the Chamber on October 1, 2012.

In addition to the question appealed from the Trial Chamber’s ruling, the Appeals Chamber had to make additional procedural rulings due to the nature of the Appeals at this early stage in the proceedings. Under the rules of the Tribunal, only preliminary motions on jurisdiction can be filed and appealed to the Appeals Chamber pre-trial. Otherwise, only certified appeals can be before the Appeals Chamber pre-trial. Since the four Defense parties were filing separately, an issue evolved as to whether all the Defense appeals met the procedural requirements of the Court.

Thus, the issues on appeal were as follows: Whether the appeals from the Defendants were properly before the Appeals Chamber; whether Security Council Resolution 1757 was an appropriate and legitimate legal basis for the Tribunal; and whether the Tribunal was competent to review the Security Council resolution establishing its own creation.

Decision Review: The Court began by laying out the standard of review in any appealed matter. Under Article 26 of the Statute and Rule 176 of the Rules of Procedure and Evidence, an appeal is appropriate in cases challenging a question of law reached in error by the lower court, which would invalidate the decision. An appeal is also appropriate on errors of fact that have created miscarriages of justice. Furthermore, citing precedent out of the International Tribunal for the former Yugoslavia, the Court stated that such errors must have had a material affect on the outcome of the trial. Therefore, an appeal on an arguable error that had no bearing on the ultimate outcome of or decision in the trial, is not reviewable by the Appeals Chamber.

On the issue of whether the Defendants’ appeals were properly before the Chamber, the Court ruled that only two of the Defendants’ appeals met the requirements, rejecting the appeal from defendant Ayyash. In their briefs, all Defendants argued that their challenges to the Tribunal’s existence constituted preliminary motions challenging the jurisdiction of the Court to hear the case. As such, the Defendants argued that they come under Rule 90(A)(i) of the Rules, where appeal on such issues of jurisdiction lie as a matter of right.

The Court, however, rejected the Defenses’ characterization of their challenge. Under Rule 90, the Court found that there are several types of preliminary motions that can be brought and appealed pre-trial, among them a challenge to jurisdiction. The Court found, however, that the definition of “jurisdiction” for Rule 90 purposes is defined in Rule 90(E), which specifically lists the reasons a defendant can give for challenging the Court’s ability to hear a certain case. The legality of the Tribunal’s existence is not one of the listed reasons. Therefore, the Court found, challenges to legality are not jurisdictional challenges, and therefore the Defendants’ motions do not qualify as preliminary motions, and thus do not qualify for automatic appeal under Rule 90(B). The Court specifically rejected the Defense’s arguments that the notion of a Tribunal’s legality is tied to jurisdictional questions for Rule 90 purposes, nor is the appeal operative through a concept of inherent jurisdiction. The Court recognized that the Appeals Chamber can, in rare circumstances, can hear appeals outside of the Rules, when a situation arises that was unforeseen by the Rules. The Court, however, found that challenges to jurisdiction were not such a situation.

Despite the appeals not meeting the Rule requirements, the Court found that the appeals from two of the defendants – Mr. Badreddine and Mr. Onessi – were properly before the Appeals Chamber as certified appeals. The Court found that both parties requested and received certification to appeal pursuant to rule 126(C) of the Rules. Under the rule, the Court noted that motions “other than preliminary motions” can be certified for appeal to the Chamber. Since the Court found the Defense motions were not preliminary motions, and did not meet the requirements for other types of preliminary motions, they qualified as “other.” The Court also found, however, that the defense team for Mr. Ayyash did not seek certification of the motion once the Court rendered its decision regarding the nature of their motion. As such, the Court found that his appeal was improperly before the Court, and would be dismissed. The Court noted that this decision should not unduly prejudice the defendant, as the substantive arguments in his appeal are essentially the same as those in the appeals by the other defendants properly before the Court, and any decision made therein will have like effects on Mr. Ayyash’s case.

Pursuant to 126(B) of the Rules, “other” motions can only be certified after a case has gone to the Trial Chamber. Under Rule 95, a matter is considered assigned to the Trial Chamber once the Pre-trial judge has transferred the case file to the Trial Chamber. The current case has not yet been assigned to the Trial Chamber; the Court found, however, that because the motions were initially filed as preliminary motions and were therefore qualified to be filed prior to assignment of the case to the Trial Chamber, once the Court determined that they did not qualify as preliminary motions, the Court acted properly in certifying them nonetheless as “other” motions.

The Court noted practical decisions of time and delay of trial in reaching this conclusion, noting that requiring the Defense to wait to re-file the motions after the case has gone to trial, would allow undue and unnecessary delay in the proceedings. As such, the Court found that the requirement of “assignment” is not absolute, and that exigent circumstances—such as time—can allow a Trial Chamber to dispose of an issue before the technical transfer of the case file.

The Court further found that the Trial Chamber did not err in finding favorably the legality of the Tribunal and the Resolution used to create it. The Trial Chamber found that the Resolution constitutes the sole legal basis for the Tribunal’s establishment, and that therefore considerations such as domestic Lebanese law did not play into a determination of the Tribunal’s legality. And under the Resolution, the Tribunal’s existence is fully legitimate as a measure taken by the Security Council pursuant to Chapter VII and its powers under Article 25 of the UN Charter.

The thrust of the Defense’s argument on this point was that the Tribunal is illegal under international law, because it attempts to put into force a treaty agreement not ratified by Lebanon. The basis for their argument was the fact that initially, the United Nations and the government of Lebanon had reached an agreement to establish an international tribunal for Lebanon. The agreement had been drafted and signed, but not ratified by Lebanon. The Defense argued that, in light of a failure to ratify and thus absence of binding force on Lebanon, Security Council used its resolution power to enforce upon Lebanon the terms of the unratified agreement. Specifically, the Resolution 1757 stated that in absence of ratification and creation of the Tribunal, the creation of the Tribunal – one of the provisions of the unratified agreement—would go into force on a given date by power of the Resolution.

The Court found that the Security Council’s decision to create the Tribunal without the explicit consent of Lebanon was entirely within its legitimate authority under the UN Charter. The Court drew a distinction between the unratified treaty as a whole agreement, and the individual provisions of that agreement. Specifically, it found that the specific provision’s – the establishment of the Tribunal – was given binding effect by its incorporation into a Security Council resolution properly created pursuant to the Security Council’s powers under Chapter VII of the Charter. The fact that a provision of the agreement was being enforced pursuant to a Resolution, was separate from and does not mean the unratified treaty as a whole and complete agreement, was being enforced against Lebanon. It is, according to the Court, the actual provision by way of the Security Council, and not the treaty itself, that has been made binding.

Furthermore, the Court found that the Security Council’s implementation of an agreement’s provisions through a binding resolution is neither unprecedented, nor outside of the Council’s authority under Chapter VII to impose binding legal consequences on party members of the UN. The Court specifically noted that Lebanon was a founding member of the UN, and both agreed to and is obliged to follow the powers granted to the Security Council under Article 25, and must adhere to its Chapter VII decisions. The Court also noted that the government of Lebanon has cooperated with the Tribunal, requested its creation, and has been fulfilling its obligations under the Tribunal’s Statute and the Resolution.

Finally, the Court found that the Trial Court did not err by finding that the Tribunal does not have the legal authority to rule on the legality of its existence and, by extension, the legality of a Security Council resolution. The Defense argued that the Security Council’s implementation of the Tribunal by Resolution was an abuse of its power, because the assassination in Lebanon of its prime minister did not constitute a threat to international peace and security. Thus, the Defense argued, the creation of the Tribunal was inappropriate and illegal, and that the proceedings against the Defendants should be dismissed.

The Court reviewed the mandate of the Security Council, which is a principal organization of the United Nations. Its primary responsibility is to ensure the maintenance of international peace and security, and it has the authority under Articles 39 and 41 of the UN Charter to determine when a situation constitutes a threat to international security and peace. The Security Council also has the power to make decisions regarding the appropriate measures the international community should take to address the situation. The Security Council does so by vote of its 15 members, which the Court found sufficient to ensure a “check” on the Security’s power and authority. All UN member states, as per the UN Charter, are bound by the decisions of the Security Council.

The Court found that for the Tribunal to make a determination as to the legality of the Resolution, would be asking the Tribunal to make a judicial review of a Security Council decision. To do so would ask the Tribunal to essentially decide upon the validity of the Security Council’s Chapter VII determination that a threat to international security existed, and to decide whether the Security Council acted with proper authority under the Charter in creating a specific  remedy to the threat.

The Court found that the Tribunal is not competent to make a such judgments through judicial review and that in face, these decisions are not subject to judicial review.

The Court found that no authority grants it the power to review Security Council decisions. The Statute of the Tribunal does not grant it any power to make a binding order or a legally-binding declaration with respect to Security Council decisions. Likewise, the UN Charter does not speak to the possibility of judicial review of Security Council decisions and resolutions. Under the UN Charter, the Court found that only the other organs of the UN have the power to review Security Council decisions.

In support of its position, the Court specifically noted that since the Lebanon tribunal is an independent body created by the Security Council independent of the UN body, the Court reasoned that its powers regarding the UN organs would be much more limited than that of the ICJ, which has categorically stated that it does not possess the power of judicial review over Security Council decisions. As a judicial body not integrated with the larger UN, the Tribunal does not have any authority to supervise the operations of any organ of  the UN.

Furthermore, the Court found that it would be practically impossible to review the Security Council’s decision regarding the existence of a threat to international security. The UN Charter does not provide any legal framework, elements, or definitions of “threat,” “peace,” or “security” by which the Council must conform its determinations. The findings made by the Security Council are necessarily subjective, and thus any review of whether the Council made the right decision, would be speculation by the Court.

Finally, the Court found that the Security Council is granted broad leeway under the UN Charter to determine the measures it will take to maintain or restore international security. The Court found that the creation of tribunals has been used on prior occasions, and is a legitimate use of the Security Council’s authority under the Charter. Because it is a political decision, the Court found that it is not practically possible to subject it to judicial legal review.

One judge, Judge Baragwanath, dissented from the majority on the issue of whether the Tribunal can review a Security Council decision to create the Tribunal.

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