* This text was reproduced and reformatted from the text available at the Special Tribunal for Lebanon website (visited March 4, 2013) http://www.stl-tsl.org/index.php?option=com_k2&view=item&task=download&id=1896_c560779c8576c735c89c37b12f3e3704.

* This text was reproduced and reformatted from the text available at the Special Tribunal for Lebanon website (visited March 4, 2013) http://www.stl-tsl.org/index.php?option=com_k2&view=item&task=download&id=1949_bd4fb49deb9e69d5db34cd04997ef082.

1 S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007).

2 Wayne Jordash and Tim Parker, Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law, 8 J. Int. Crim. Just. 487 (2010).

3 Ayyash et al., Case No. STL-11-01, Indictment (June 10, 2011).

4 Lebanese Government Collapses, Al Jazeera (Jan. 13, 2011), http://www.aljazeera.com/news/middleeast/2011/01/2011112151356430829.html.

5 UN Court to Implicate Hezbollah, Al Jazeera (July 22, 2010), http://www.aljazeera.com/news/middleeast/2010/07/2010722195048884802.html. According to the enforced agreement between the United Nations and the Lebanese Republic, Lebanon is responsible for forty-nine percent of the Tribunal’s annual finances.

6 Opposition Officially Refuses to Join ‘‘Hezbollah’s Government’’ in Lebanon, YaLibnan (Feb. 28, 2011), http://www.yalibnan.com/2011/02/28/opposition-officially-refuses-to-joinhezbollahs-government-in-lebanon-march14/.

7 Full Text of the Lebanese Cabinet’s Ministerial Statement, Daily Star Leb. (July 2, 2011), http://www.dailystar.com.lb/News/Politics/2011/Jul-01/Lebanons-Cabinet-ministerial-statement---political-clause.ashx#axzz2JNcouQTa.

8 PM’s Office Pays Lebanon’s STL Dues, Daily Star Leb. (Nov. 30, 2011), http://www.dailystar.com.lb/News/Politics/2011/Nov-30/155617-lebanon-to-fund-stl-source.ashx#axzz-2JNcouQTa.

9 S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993); S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994).

10 Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Int’l Crim. Trib. for the former Yugoslavia Oct. 2, 1995).

11 The Special Tribunal for Lebanon: Selective Justice, Amnesty International, Feb. 2009.

12 S.C. Res. 1757, supra note 1.

13 Christoph Safferling, Trial in Absentia, in The Oxford Companion to International Criminal Law 543 (Antonio Cassese ed., 2009).

14 Antonio Cassese, International Criminal Law 392 (2008).

15 Press Release, Special Trib. for Leb., Pre-Trial Judge Sets Tentative Date for Trial (July 19, 2012), http://www.stl-tsl.org/en/media/press-releases/19-07-2012-pre-trial-judge-setstentative- date-for-trial.

1 This Headnote does not constitute part of the decision of the Appeals Chamber. It has been prepared for the convenience of the reader, who may find it useful to have an overview of the decision. Only the text of the decision itself is authoritative.

2 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/AC/AR90.1, Interlocutory Appeal on Behalf of Mr. Ayyash Against the Trial Chamber’s ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’ Dated 30 July 2012, 24 August 2012 (‘‘Ayyash Appeal’’). All further references to filings and decisions relate to this case unless otherwise stated.

3 Appellate Brief of the Defence for Mr Badreddine against the ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’, 24 August 2012 (‘‘Badreddine Appeal’’).

4 Appeal Brief of the Oneissi Defence Against the Trial Chamber Decision Relating to the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 24 August 2012 (‘‘Oneissi Appeal’’).

5 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/TC, Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 27 July 2012 (‘‘Impugned Decision’’).

6 Ayyash Appeal; Badreddine Appeal, para. 114; Oneissi Appeal, paras 58-60.

7 Prosecution Consolidated Response to the Ayyash, Badreddine and Oneissi Defence Appeals of the Trial Chamber’s ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’, 14 September 2012 (‘‘Prosecutor’s Consolidated Response’’); Observations of the Legal Representative of Victims on the Interlocutory Appeal Briefs and Responses to the Trial Chamber’s Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 19 September 2012 (‘‘LRV Observations’’); Badreddine Defence Reply to ‘‘Prosecution Consolidated Response to Ayyash, Badreddine and Oneissi Defence Appeals of the Trial Chamber’s ‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’’, 19 September 2012 (‘‘Badreddine Reply’’).

8 Scheduling Order on Interlocutory Appeals, 27 August 2012; see also Decision on the Badreddine Defence Request for a Right of Audience to be Granted to Professor Ma1son, 20 September 2012 (denying the request); Scheduling Order for- Appeals Hearing, 20 September 2012 (setting out a timetable and inviting the parties to address a number of specific questions).

9 Ayyash Appeal, paras 7-11; Badreddine Appeal, paras 10-33; Oneissi Appeal, paras 4-22, 56.

10 Ayyash Appeal, paras 12-19.

11 Id. at paras 20-23.

12 Id. at paras 24-25.

13 Badreddine Appeal, paras 34-50.

14 Id. at paras 51-65; see also Badreddine Reply, para. 11.

15 Badreddine Appeal, paras 66-113.

16 Oneissi Appeal, paras 4-22.

17 Id. at paras 23-29.

18 Id. at para. 30.

19 Id. at para. 43.

20 Id. at paras 47-52.

21 Prosecutor’s Consolidated Response, para. 4.

22 Id.. at paras 5-8.

23 Id. at paras 16-31.

24 Id. at paras 32-38.

25 Id. at paras 39-85.

26 LRV Observations, paras 3-8.

27 Id. at paras 9-20.

28 The Statutes of the International Criminal Tribunal for the former Yugoslavia (‘‘ICTY’’) and the International Criminal Tribunal for Rwanda (‘‘ICTR’’), respectively, contain the same grounds for appeal as the Statute of the Special Tribunal for Lebanon, see Art. 25 ICTYSt, Art. 24 ICTRSt. The Statutes of the International Criminal Court (‘‘ICC’’) and the Special Court for Sierra Leone (‘‘SCSL’’) have similar grounds of appeal.

29 ICTY, Prosecutor v D Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009 (‘‘Milošević Appeal Judgment’’), paras 13-14 (with further references to the case-law of the ICTY Appeals Chamber); see also ICTR, Gatete v The Prosecutor, Case No. ICTR-00-61-A, Judgement, 9 October 2012, para. 8 (with further references to the case-law of the ICTR Appeals Chamber); SCSL, Prosecutor v. Sesay et al., Case No SCSL-04-15-A, Judgment, 26 October 2009, para. 31; ICC, Prosecutor v. Banda et al., Case No. ICC-02/05-03/09 OA 2, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber IV of 12 September 2011 entitled ‘‘Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and Additional Instructions on Translation’’, 17 February 2012, para. 20.

30 ICTY, Prosecutor v Kunarac et al., Case Nos IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, para 38.

31 We note that, in exceptional circumstances, we may also address legal issues that would not lead to the invalidation of a Trial Chamber’s decision, but are nevertheless of general significance to the Tribunal’s jurisprudence, see Milošević Appeal Judgment, para. 12.

32 Badreddine Appeal, para. II; Ayyash Appeal, para. II; Oneissi Appeal, para. 10; The Defence for Mr. Hussein Hassan Oneissi Request for Extension of the Time and Word Limit to File an Appeal to the ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’, 1 August 2012, paras 2-3.

33 Badreddine Appeal, paras 15-23; Ayyash Appeal, para. 9.

34 Prosecutor’s Consolidated Response, para. 5.

35 ‘‘Preliminary motions, being motions which [...]’’. [Emphasis added]. Contrary to the submissions by counsel for Badreddine during the appeals hearing (Appeals Hearing Transcript, 1 October 2012 [’’Appeals Hearing’’], p. 160), Rule 89(F), (G), and (H) do not support a broader definition of the term ‘‘preliminary motion.’’ All they stand for is that the Pre-Trial Judge may set specific time-limits for the filing of such motions, other than the 30-day limit provided in Rule 90(A). Indeed, this is what happened in this case, when the Pre- Trial Judge set 4 May 2012 as the deadline for the filing of preliminary motions on jurisdiction, explicitly basing his decision on Rule 89(F), see STL, Prosecutor v. Ayyash et al., Case No STL-11-01/PT/PTJ, Status Conference Transcript, 12 April 2012 (‘‘Status Conference’’), p. 47.

36 Impugned Decision, para. 37.

37 Id. at para 38.

38 See Badreddine Appeal, paras 15-23; see also Ayyash Appeal, para. 10.

39 Below, paras 14-23.

40 ICTY, Prosecutor v. Tadić, Case No. IT-94-1-AR 72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (‘‘Tadić Appeal Decision’’), para. 6.

41 See Rule 73 of the relevant ICTY Rules of Procedure and Evidence at the time (IT/32/Rev. 5, 15 June 1995), which merely provided that ‘‘[p]reliminary motions by the accused shall include: (1) objections based on lack of Jurisdiction [...].’’

42 See Rule 72(D) ICTY RPE.

43 See ICTY, Prosecutor v. Tolimir, Case No. IT-05-88/2- AR72.2, Decision on Zdravko Tolimir’s Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest, 12 March 2009 (‘‘Tolimir Appeal Decision’’), paras 11-12, with further references in fn. 23; see also ICTY, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion Challenging the Legal Validity and Legitimacy of the Tribunal, 7 December 2009 (‘‘Karadžić Trial Decision’’), para. 8.

44 ICTR, Prosecutor v Kanyabashi, Case No. ICTR-96-15-T, Decision on the Defence Motion on Jurisdiction, 18 June 1997 (‘‘Kanyabashi Decision’’), paras 4-6. Rule 73 of the relevant ICTR Rules of Procedure and Evidence at the time (5 July 1996) only provided that ‘‘[p]reliminary motions by the accused shall include: (i) objections based on lack of jurisdiction [...].’’

45 Under the Rules in place at the time, a party seeking to appeal a Trial Chamber’s decision on Jurisdiction had to first seek leave from a three-member bench of the Appeals Chamber, which had to determine whether the appeal fell within the definition of jurisdiction provided by the Rules.

46 ICTR, Nzirorera v. The Prosecutor, Case No. ICTR-98-44- AR72, Decision Pursuant to Rule 72(E) of the Rules of Procedure and Evidence on Validity of Appeal of Joseph Nzirorera Regarding Chapter VII of the Charter of the United Nations, 10 June 2004, paras 9-10; see Rule 72(D) ICTR RPE.

47 Badreddine Appeal, paras 21-22.

48 Ayyash Appeal, paras 9-11; Counsel for Badreddine, Appeals Hearing, pp. 155-158.

49 STL, In the Matter of El Sayed, Case No. CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, para. 43.

50 Id. at para. 38.

51 Id. at para. 45

52 Id. at para. 48.

53 Id. at para. 54.

54 See for example the statement of Lord Westbury in the English House of Lords decision of Attorney-General v. Sillem et al.: ‘‘The creation of a new right of appeal is plainly an act which requires legislative authority. The court from which the appeal is given and the court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal or both collectively to create any such right.’’ (UK, House of Lords, 6 April 1864, 10 H.L. Cas. 704 (1864)), p. 721.

55 The Appeals Chambers of the ICTY, the SCSL, and the ICC have all rejected appeals that were filed even though certification to appeal was not granted, or attempts to appeal such certification decisions. For example, the ICTY Appeals Chamber decided that there was no right of appeal against a decision denying the amendment of the indictment because ‘‘there is no lacuna in the Rules, which justifies the Appeals Chamber considering this appeal proprio motu’’ and because ‘‘the Appeals Chamber has no inherent authority to intervene in an interlocutory decision of a Trial Chamber, not subject to a right of appeal and to which certification has been denied [...] on the basis of an allegation by the Prosecution that the Trial Chamber has abused its discretion by not allowing the Prosecution amendments.’’ (ICTY, Prosecutor v. R. Delić:, Case No IT-04-83-Misc.l, Decision on Prosecution’s Appeal, 1 November 2006, p. 3). The SCSL Appeals Chamber held that it ‘‘may have recourse to its inherent jurisdiction, in respect of proceedings of which it is properly seized, when the Rules are silent and such recourse is necessary in order to do justice. The inherent jurisdiction cannot be invoked to circumvent an express rule. [...] Where the Rules make provision for a particular situation, it is not a proper exercise of inherent jurisdiction for a tribunal to substitute its own view of what the rules should have been for what the Rules are.’’ (SCSL, Prosecutor v. Norman et al., Case No. SCSL-04-l4-T, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal, 17 January 2005, paras 32, 41). The ICC Appeals Chamber held that ‘‘the Statute defines exhaustively the right to appeal against decisions of first instance courts, namely decisions of the Pre-Trial or Trial Chambers. No gap is noticeable in the Statute with regard to the power claimed in the sense of an objective not being given effect to by its provisions. The lacuna postulated [...] as inexistent.’’ (ICC, Situation in the Democratic Republic of the Congo, Case No. ICC-01/04 Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, para. 39).

56 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/TC, Decision Certifying for Appeal the ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’, 23 August 2012 (‘‘Certification Decision’’), pp. 2-3.

57 Rule 126(A) provides that ‘‘[t]his Rule applies to all Motions other than preliminary motions, motions relating to release, and others for which an appeal lies as of right according to these Rules.’’

58 See above fn. 35.

59 STL, Prosecutor v. Ayyash et al, Case No. STL-11-01/PT/AC, Decision on the Pre-Trial Judge’s Request Pursuant to Rule 68(G), 29 March 2012, para. 19.

60 See Karadžić Trial Decision, para. 10; ICTY, Prosecutor v. Karadžić, Case No. IT-95-5/18T, Decision on the Accused’s Holbrooke Agreement Motion, 8 July 2009, para. 43; ICTY, Prosecutor v. Dragan Nikoilić, Case No. IT-94-2-AR72, Decision on Notice of Appeal, 9 January 2003, p. 2; see also Tolimir Appeal Decision, para. 13. We note that the Trial Chamber did not spec1fy in the Impugned Decision any provision in the Rules on which it based its decision to address the Defence motions. However, in the Certification Decision, the Trial Chamber referred to Rule 126(C) as the basis for certification, see Certification Decision, paras 5-6.

61 See Status Conference, p. 47.

62 See Appeals Hearing, p. 42.

63 See Prosecution Consolidated Response to the Badreddine Defence and Oneissi Defence Requests for Extensions of Time and Page Limits for Filing Appeals to the Trial Chamber ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’, 2 August 2012, para. 5.

64 Decision on Defence Requests for Extension of Word and Time Limits, 6 August 2012, para. 12.

65 See STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/TC, Requête de la Défense de M. Badreddine aux fins de certification de l’appel de la «Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal»,8 August 2012, para. 2 (‘‘Toutefois, à titre conservatoire et à toutes fins utiles, [la Defence] saisit par la présente la Chambre de céans aux fins de certification d’appel au cas où la Chambre d’appel considérerait que cet appel relèverait du régime de la certification’’).

66 This was also the Prosecutor’s position in the Appeals Hearing, see Appeals Hearing, pp. 113-114.

67 Impugned Decision, para. 46;

68 Id at para. 50.

69 Badreddine Appeal, para. 66.

70 Oneissi Appeal, para. 46; see also para. 45.

71 Oneissi Appeal, paras 43-45.

72 Prosecutor’s Consolidated Response, paras 32-38.

73 See S/RES/1644 (2005) (acknowledging the request of the Lebanese Government for the establishment of a tribunal of an international character and requesting ‘‘the Secretary-General to help the Lebanese Government identify the nature andscope of the international assistance needed in this regard’’); see also S/RES/1664 (2006) (requesting the Secretary– General to ‘‘negotiate an agreement with the Lebanese Government aimed at establishing a tribunal of international character [...]’’); see also Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, S/2006/893 (2006), paras 2-5.

74 Impugned Decision, para. 48; see also para. 49.

75 Oneissi Appeal, paras 43-44.

76 We need not decide whether the Security Council in fact possesses such powers. However, we note that under the relevant international legal instruments, including the Vienna Convention on the Law of Treaties (23 May 1969, 1155 U.N.T.S 331 ), the proper conclusion of an agreement requires the consent of both parties (see specifically Arts 2, 11).

77 See S/RES/687(1991):

78 S/RES/1874 (2009) (incorporating into the text of the resolution various obligations of parties to the Non-Proliferation Treaty and imposing them on the Democratic People’s Republic of Korea, which had previously withdrawn from that treaty); S/RES/1284 (1999) (modifying the content of an already existing treaty between the United Nations and Iraq, unilaterally imposing new provisions upon Iraq); S/RES/748 (1992) (overruling a treaty provision from the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation by requiring Libya to extradite certain individuals to the United States of America or the United Kingdom).

79 See S/RES/1373(2001), imposing on all States, including those that had not ratified it, obligations stemming from the text of the International Convention for the Suppression of the Financing of Terrorism (9 December 1999, 2178 U.N.T.S. 197); see also UN Doc. A/56/PV.17, 3 October 2001, at 6.

80 Art. 25 of the Charter provides that ‘‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’’; see also LRV Observations, para. 10.

81 Impugned Decision, paras 7-10, 14.

82 Oneissi Appeal, para. 31.

83 Impugned Decision, para. 55.

84 Id. at para. 55.

85 Badreddine Appeal, paras 7-8, 45-76, 114; Oneissi Appeal, paras 14-30.

86 Badreddine Appeal, paras 77-114; Oneissi Appeal, paras 52, 59.

87 Prosecutor’s Consolidated Response, paras 39-64; see also LRV Observations, para. 4.

88 Art. 7(1) UN Charter.

89 Art. 24( I) UN Charter.

90 Art. 24(2) UN Charter.

91 Art. 25 UN Charter.

92 S/RES/1636 (2005); S/RES/1644(2005).

93 S/RES/1757 (2007), p. 2.

94 S/RES/1757 (2007), p. 2.

95 Belgium, Congo, France, Ghana, Italy, Panama, Peru, Slovakia, United Kingdom of Great Britain and Northern Ireland, United States of America, see UN Security Council Verbatim Record, UN Doc. S/PV.5685 (2007)

96 China, Indonesia, Qatar, Russian Federation, South Africa, see UN Security Council Verbatim Record, UN Doc. S/PV.5685 (2007).

97 UN Security Council Verbatim Record , UN Doc. S/PV.5685 (2007), pp. 5-6.

98 Impugned Decision, para. 54.

99 Id. at para. 55.

100 See Nico Krisch, ‘‘Article 39’’, in Bruno Simma et al (eds), The Charter of the United Nations, A Commentary, 3rd ed. (Oxford University Press 2012) (‘‘Charter of the United Nations’’, and ‘‘Krisch, Article 39’’, respectively), margin number 4.

101 ICJ, Conditions of Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, I.C.J. Reports 57 (1948), p. 64.

102 See Krisch, Art1cle 39, margin number 6 with further references (noting that ‘‘SC members regularly debate the limits of the scope of action under Art. 39, thus indicating their conviction that the concepts carry some meaning and are not completely indeterminate’’).

103 See Anne Peters, ‘‘Article 24’’, in Charter of the United Nations, margin number 5; see also Andreas Zimmermann, ‘‘Article 27’’, in Charter of the United Nations, margin number 155.

104 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 16 (1971) (‘‘Legal Consequences Opinion’’), para. 89.

105 Ibid.

106 See ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 3 (1992) (‘‘Lockerbie Order’’), Dissenting Opinion of Judge Weeramantry, p. 66: ‘‘However, once we enter the sphere of Chapter VII, the matter takes on a different complexion, for the determination under Article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the Security Council in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decisions the Council may make under that Chapter. Thus, any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal.’’ See also ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 325 (1993), Separate Opinion of Judge Lauterpacht, para. 99.

107 The Tribunal is not part of the United Nations, as demonstrated by its operating mechanisms. For instance, although following the United Nations common system in several areas of its work, the Tribunal is not funded through the United Nations budget approved by its General Assembly. While created by a Security Council Resolution, the Tribunal is not an organ of the United Nations. The Convention on Privileges and Immunitites of the United Nations (13 February 1946, 1 U.N.T.S. 15) does not apply per se to the Tribunal. Thus, the Tribunal does not enjoy a status similar to that of the ICTY and ICTR. It is a separate subject of international law.

108 We need not address case-law advanced by the Defence that does not relate to judicial review of Security Council resolutions. (See Badreddine Appeal, paras 35-36, 39; Oneissi Appeal, para. 25).

109 Tadić Appeal Decision, para. 22.

110 Id. at para. 25.

111 Tadić Appeal Decision, Dissenting Opinion of Judge Li, paras 2-4.

112 ICTY, Prosecutor v Tadić, Case No. IT-94-1-T, Decision on the Defence Motion on Jurisdiction, 10 August 1995, para. 5 (holding that the ICTY was ‘‘not a constitutional court set up to scrutinise the actions of organs of the United Nations’’ and did not have the authority to ‘‘investigate the legality of its creation by the Security Council’’.).

113 Prosecutor’s Consolidated Response, paras 48, 50-55.

114 Tadić Appeal Decision, paras 20-21.

115 Legal Consequences Opinion, para. 1.

116 ICJ, Effect of Awards of Compensation Made by the U.N. Administrative Tribunal, Advisory Opinion, I.C.J. Reports 47 (1954), p. 48.

117 See ICJ, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 177 (1989), para. 31 (holding that ‘‘[t]he jurisdiction of the Court [...] to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with law. These opinions are advisory, not binding’’). See also ICJ, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, I.C.J. Reports 65 (1950), p. 71.

118 ICTY, Prosecutor v. Krajšnik, Case No. IT-00-39-AR73.2, Decision on Krajšnik’s Appeal Against the Trial Chamber’s Decision Dismissing the Defense Motion for a Ruling that Judge Canivell is Unable to Continue Sitting in the Case, 15 September 2006, paras 14-16 (stating that ‘‘[...] the Appellant appears not to be disputing the procedural validity of the UN Security Council Resolution 1668/2006 [extending the mandate of a particular Judge], but argues that it is not binding upon the Tribunal since the Statute has not been amended. The Appeals Chamber recalls that the UN Security Council, acting under Chapter VII of the UN Charter as a legislator, has adopted the Statute and established the Tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security [...]. Without assuming competence to adjudicate on the validity of a resolution passed by the Security Council, the Appeals Chamber considers that the UN Security Council Resolution 1668/2006 was directed to administrative matters and did not interfere with the Tribunal’s judicial function’’ [emphasis added].)

119 Badreddine Appeal, paras 38, 46.

120 Kanyabashi Decision, para. 26.

121 Id. at para. 22.

122 ICTR, Prosecutor v. Karemera, Case No. ICTR-98-44-T, Decision on the Defence Motion, Pursuant to Rule 72 of Rules of Procedure and Evidence, Pertaining to, Inter Alia, Lack of Jurisdiction and Defects in the Form of the Indictment, 25 April 2001, para. 25.

123 CJEU, Kadi et al. v. Council of the European Union et al., Case Nos C-402/05 P & C-415/05 P, Judgment, 3 September 2008 (‘‘Kadi Judgment’’), para. 286.

124 Kadi Judgment, para. 287.

125 ECtHR, Nada v. Switzerland, App. No. 10593/08, Judgment, 12 September 2012 (‘‘Nada Judgment’’), para. 212.

126 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222.

127 Nada Judgement, para. 212.

128 Nada Judgment, Separate Opinion of Judge Malinverni, para. 15.

129 Id. at para. 20.

130 See above, paras 16-17.

131 lbid.

132 See also Lockerbie Order, Dissenting Opinion of Judge Weeramantry, p. 55: ‘‘However, unlike in many domestic systems where the judicial arm may sit in review over the actions of the executive am, subjecting those acts to the test of legality under the Constitution, in the United Nations system the International Court of Justice is not vested with the review or appellate jurisdiction often given to the highest courts within a domestic framework. [...] An important difference must also be noted between the division of powers in municipal systems and the distribution of powers between the principal organs of the United Nations, for there is not among the United Nations organizations the same strict principle of separation of powers one sometimes finds in municipal systems. [...] Nor is there a hierarchical arrangement of the organs of the United Nations[...] and each principal organ is par inter pares.’’

133 See fn. 107 above.

134 See Krisch, Art1cle 39, margin number 2 (stating that ‘‘[t]he SC was to enjoy great freedom in its decision on the existence of a threat to the peace, a breach of the peace, or an act of aggression’’); see also margin number 4.

135 See also Kanyabashi Decision, para. 20 (holding that ‘‘the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber’’).

136 See above para. 33, see also Nico Krisch, ‘‘Article 41’’, in Charter of the United Nations, margin number 12.

137 S/RES/827 (1993) (establishing the ICTY); S/RES/955 (1994) (establishing the ICTR).

138 Badreddine Appeal, para. 65.

139 Art. 41 UN Charter.

1 Compare the various approaches in ICTY, Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction , 2 October 1995 (‘‘Tadić: Jurisdiction Decision’’).

2 Art 28(2) STLSt.

3 Article 9(1) STLSt.

4 Appeals Hearing, p. 164.

5 Appeals Hearing, p. 170.

6 At which stage appeal is permitted by Art1cle 26 of the Statute, echoed by Rule 176. N

7 That would entail reading ‘‘[a]fter a case is assigned to the Trial Chamber’’ as including ‘‘whenever the Trial Chamber has jurisdiction to deal with an issue.’’

8 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011 (‘‘Interlocutory Decision on the Applicable Law’’).

9 Interlocutory Decision on the Applicable Law, paras 19-32.

10 R v Bow St Magistrate ex p Pinochet (No 2) [2000] 1 AC 119 (HL).

11 STL, In the Matter of El Sayed, Case No. CH/AC/2011 /01, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing, 10 November 2010; STL, In the Matter of El Sayed, Case No. CH/AC/2011/01, Decision on Partial Appeal by Mr. El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, 19 July 2011.

12 New Zealand, Court of Appeal, In re Aldridge ( 1893) 15 N.Z.L.R. 361; see UK, House of Lords, Boddington v British Transport Police [1999] 2 AC 143.

13 For the distinction between major and minor classes of ‘‘jurisdiction’’, see UK House of Lords, Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147 (HL).

14 See Sir Michael Wood, The UN Security Council and International Law, Hersch Lauterpacht Memorial Lecture, 7 November 2006, p. 7, para. 21: ‘‘The Security Council is often referred to as a political organ. That expression is presumably used to distinguish it from ‘‘legal’’ organs, or perhaps technical and administrative organs. But the term ‘‘political organ’’ may carry the unfortunate implication that the Council need pay little attention to the law.’’

15 Id. para. 23.

16 Art. 2(1) and (7) UN Charter.

17 Art. 103 UN Charter.

18 Art. 24(1) UN Charter.

19 Art. 25 UN Charter.

20 Emphasis added

21 This report is cited by the Grand Chamber of the European Court of Human Rights in Care of Al-Jedda v The United Kingdom (2011), 53 ECtHR 23, para. 57.

22 Article I of the Charter provides:

• 1.

  1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

• 2.

  2. To develop friendly relations among nations based on respect for the principle of equal rights and self– determination of peoples, and to take other appropriate measures to strengthen universal peace;

• 3.

  3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

• 4.

  4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

23 Article 2 provides: The Organization and its Members, in pursuit of the Purposes stated in Article l, shall act in accordance with the following Principles.

• 1.

  1. The Organization is based on the principle of the sovereign equality of all its Members.

• 2.

  2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.

• 3.

  3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

• 4.

  4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

• 5.

  5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

• 6.

  6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

• 7.

  7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

24 It is notable that even at the domestic level courts have been reluctant to engage with the kinds of decision the Security Council is called upon to make under Chapter VII, which include the use of military force. For example, in UK, House of Lords, Chandler v Director of Public Prosecutions (UK, [1964] AC 763 the appellants had been refused permission to cross-examine government officials in support of a claim that their trespass on Ministry of Defence land to protest against nuclear weapons was justified. Dismissing the appeal Lord Radcliffe stated at 798-9:

Those matters would appear even less amenable to judicial examination when they concern the conduct of the senior operative international institution, the Security Council which, unlike the Executive of a State whose conduct is nowadays often subject to review for legality by the courts of the same State, is acting as the delegate of all States, and with the authority whose breadth has been emphasised.

25 See Majority Decision, fn. 106.

26 Art. 14(1) of the International Covenant on Civil and Political Rights.

27 See UK, Court of Appeal, Douglas v Hello! Ltd [2001] 1 QB 967, 1005 where the human rights principles of privacy and freedom of expression were in dispute. Sedley LJ held that ‘‘Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights. It will be remembered that in the Jurisprudence of the [European] Convention [of Human Rights] proportionality is tested by, among other things, the standard of what is necessary in a democratic society.’’

28 Impugned Decision, paras 53-55. See further Badreddine Appeal, para. 47.

29 Boddington, above fn. 12.

30 Art 9(1) STLSt.

31 Art. 28(2) STLSt.

32 Ayyash Appeal, para. 23.

33 See para. 39 and fn 103 of the Majority Decision.

34 Badreddine Appeal, paras 35 ff.

35 Tadić Jurisdiction Decision, para. 6.

36 Tadić Jurisdiction Decision, para. 2l.

37 SCSL, Prosecutor v. Kallon et al, Case No. SCSL-2004-15- AR72(E), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 37.

38 ICTR, Prosecutor v. Kanyabashi, Case No. ICTR-96-15-T, Decision on the Defence Motion on Jurisdiction, 18 June 1997, paras 19-22.

39 Id. para 21.

40 CJEU, Kadi el al v. Council of the European Union et al., Case Nos C-402/05 P & C-415/05 P, Judgment, 3 September 2008 (‘‘Kadi Judgment’’), paras 299-300.

41 ECtHR, Nada v Switzerland, App. No. 10593/08, Judgment, 12 September 2012 (‘‘Nada Judgment’’), paras 172 ff.

42 Nada Judgment, Separate Opinion of Judge Malinverni, paras 14-15.

43 Emphasis added.

44 UK, House of Lords, R (Al-Jedda) v Defence Secretary of State for Defence (2007), [2007] UKHL 58, paras 35-39.

45 Compare Individual opinion of Committee member Sir Nigel Rodley (concurring), pages 36-37 in Human Right Committee, Communication No. 1472/2006, CCPR/C/94/D/1472/2006, 29 December 2008.

46 Dame Rosalyn Higgins has recalled ‘‘the Security Council should ...take into account that legal disputes should as a general rule be referred to the International Court of Justice’’, cited in Sir Michael Wood, The UN Security Council and International Law, Hersch Lauterpacht Memorial Lecture, 7 November 2006, p. 5, para. 15 But since that did not occur the question, analogous to those discussed by Campbell McLachlan (in Lis Pendens in International Law, Collected Courses of the Hague Academy of International Law, Vol. 336, The Hague, 2009), has not arisen and we must deal with the matter.

47 The notion that cases involving high issues of state are beyond consideration by the court was flatly rejected by the Supreme Court of Canada in Operation Dismantle v The Queen [l985] l SCR 441. In that case the Supreme Court rejected the contention that such argument in relation to the decision of the Canadian government to permit the United States to test its cruise missiles in Canada was non-justiciable. Having cited the passage from Chandler reproduced at fn 24 above Wilson J stated at 54:

At 61, she cited and emphasised a passage from Lord Devlin’s speech in Chandler (at 811): ‘‘It is the duty of the courts to be as alert now as they have always been to prevent abuse of the prerogative’’. She continued:

The decision better represents the ‘‘highest standards of international ... procedure’’, a fortiori when applied to a criminal case, than domestic authorities which wholly decline to embark upon judicial review.

48 As recognized by the unanimous Appeals Chamber in Interlocutory Decision on the Applicable Law, para.76.

49 Art. 9(1) STLSt.

50 Such was the consensus of the 2010 Congress, in Sydney and Canberra, of the International Association of Supreme Administrative Court Jurisdictions attended by senior Judges of more than 50 states, embracing each continent and the world’s major legal systems. The former common law notion, that the statutes of an elected parliament are immune from judicial review for breach of fundamental rights, has been largely abandoned.

51 Operation Dismantle, above, fn. 47.

52 See G. Cornu, Vocabulaire Juridique, 7^eme édition, Presses Universitaires de France, Paris 2005, where recours pour excès de pouvoir is defined as «Recours contentieux tendant à l’annulation d’une décision administrative et fondé sur la violation par cette décision d’une règle de droit».

53 See the major decision of the Conseil d’État, Dame Lamotte, (CE Ass. 17 février 1950, Ministre de l’agriculture c. Dame Lamotte, Rec. 110), published in M. Long et al , Les grands arrêts de la jurisprudence administrative, 15^ème édition, Dalloz, 2005, 1999, p. 406.

54 UK Court of Appeal, R (Mahmood) v Home Secretary, [2001] 1 WLR 840, at 18-19.

55 Cf. New Zealand, High Court, Mihos v. Attorney-General [2008] NZAR 177 (HC), para. 107.

56 UK, House of Lords, Secretary of State for Education and Science v. Metropolitan Borough Council of Tameside, [1977] AC 1014, 1047.

57 Emphasis added.

58 ICTY, Prosecutor v Krajišnik, Case No. IT-00-39-AR73.2, Decision on Krajišnik’s Appeal against the Trial Chamber’s Decision Dismissing the Defence Motion for a Ruling that Judge Canivell is Unable to Continue Sitting in this Case, 15 September 2006, paras 15-16 (internal citations omitted; emphasis added).

59 ICJ, Nottebohm case (Preliminary Objection), Judgment of November 18th, 1953, I.C.J. Reports 111 (1953), p. 119 (emphasis added).

60 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 16 (1971), para. 89 emphasis added). An advisory opinion—though not binding by itself—states the law (which is itself binding).

61 Thus, for instance, in S/RES/1966 (20 l 0), the Security Council ensured a continuation strategy for the ICTY and ICTR, by ‘‘[r]eaffirming its determination to combat impunity ... and reaffirming the need to establish an ad hoc mechanism to carry out a number of essential functions of the Tribunals, including the trial of fugitives ... after the closure of the Tribunals,’’ instead of simply closing down the two institutions or passing verdicts itself.

62 It may be noted that the States which abstained in the Security Council at the time of the adoption of S/RES/1757 (2007) considered the need for justice and fair trial as paramount. This supports the proposition that the Tribunal must act and be seen to act with justice at the forefront of its mission. See in particular the statements of South Africa (‘‘South Africa fully supports the establishment of the tribunal and expects it to operate with impartiality and in accordance with Lebanese law and the highest international standards of criminal justice’’), China (‘‘We understand and support the request of all Lebanese parties for the establishment a special tribunal. We hope that that initiative will help to establish the truth as soon as possible, hold the perpetrators accountable and ensure Justice for the victims’’), Qatar (‘‘The State of Qatar remains committed to helping Lebanon seek the truth, hold accountable all those involved in those crimes and bring them to justice’’), Indonesia (‘‘Impunity must not be tolerated; justice must prevail. Those who are found responsible for the assassination of the late Prime Minister Hariri and for other related assassinations must therefore be brought to justice’’), Russian Federation (‘‘The Russian Federation has consistently advocated establishing the truth with respect to the murder of Rafik Hariri. The perpetrators of that crime must be brought to justice. We fully share with the sponsors of the draft resolution their primary objective of preventing impunity and political violence in Lebanon’’). See UN Security Council Verbatim Record, UN Doc. S/PV.5685 (2007).

63 Appeals Hearing, p. 17.

64 Appeals Hearing, p. 17.

65 Appeals Hearing, p. 23.

66 Appeals Hearing, pp. 24, 34.

67 Appeals Hearing, p. 164.

68 Appeals Hearing, pp. 157-158.

69 Badreddine Appeal, para. 65.

70 UN Doc. S/23500 of 31 January 1992, p. 3 (referred to by LRV Observations, para. 15).

71 See, e.g., S/RES/1515 (2003) (Middle East); S/RES/1516 (2003) (Turkey); S/RES/1465 (2003) (Colombia); S/RES/1530 (2004) (Spain), S/RES/1611 (2005) (United Kingdom); see also S/RES/1618 (2005) in relation to attacks in Iraq, without labelling them ‘‘international’’ terrorism. Moreover, see UNSC Presidential Statements S/PRST/2004/14, S/PRST/2004/31 (Russian Federation); S/PRST/2005/55 (Jordan); S/PRST/2006/30 (India); S/PRST/2009/22 (Indonesia); S/PRST/2007/50, S/PRST/2008/19, S/PRST/2008/35 (Pakistan); S/PRST/2007/10, S/PRST/2007/32, S/PRST/2007/45, S/PRST/2008/31 (Algeria).

72 See, e.g, UNSC Presidential Statement S/PRST/19/2010). Since 2003, therefore, the Security Council has been broadening the scope of terrorist acts falling within Chapter VII by omitting ‘‘international’’ from Resolutions and Presidential Statements condemning such acts.

73 See, e.g., above, fn.71.

74 Vienna Convention on the Law of Treaties (1980), 1155 U.N.T.S. 331, Art. 31(3)(b).

75 S/RES/1373 (2001).

76 See, e g., S/RES/1267(1999), S/RES/1333 (2000), S/RES/1390 (2002) and following ones.

77 S/RES/1757 (2007).

78 See also VLR Observations, para. 11.

79 Ayyash Appeal, para. 25. In AXA General Insurance Ltd v HM Advocate UK Supreme Court, [2011] UKSC 46, para. 97 Lord Mance stated:

80 ‘‘Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.’’ (UN Human Rights Committee, General Comment No 32, Article 14, Right to Equality Before Courts and Tribunals and to Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 22 ). The European Court of Human Rights focuses on independence and impartiality enshrined in the rules applicable to the tribunal in question, rather than on selectivity and special status within the system. See, e g., ECtHR: Findlay v United Kingdom, App. No. 22107/93 (1997); Ari v. Turkey, App. No. 29281/95 (2001); Selçuk Yildirim v. Turkey, App. No. 30451/96 (2001). While the Inter-American Court of Human Rights has adopted a stricter approach to special courts and tribunals (‘‘[I]n respect of the prosecution of civilians, this requires trial by regularly constituted courts that are demonstrably independent from the other branches of government and comprised of judges with appropriate tenure and training, and generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians’’, Reports of the Inter-American Commission on Human Rights on Terrorism and Human Rights: Exec. Summary and Recommendations. OEA/Ser.L/V/II.116, Doc. 5 rev. l corr., paras 18, 230, 261 (22 October 2002) (emphasis added)). Even under this regime, ex post facto jurisdictions are not completely proscribed, if they are established as independent and impartial.

1 See Rule 126(A).

2 Our Rules of Procedure and Evidence allow parties to bring two types of appeals before the Appeals Chamber: (i) appeals as of right; and (ii) certified appeals. Certification is contemplated in Rule 126 and Rule 90(B)(n) for preliminary motions other than those challenging jurisdiction. Appeals of right are otherwise addressed in specific rules.

3 See ICTY, Prosecutor v. Tolimir, Case No. IT-05-88/2- AR72.2, Decision on Zdravko Tolimir’s Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest, 12 March 2009, paras 11-12.

4 This is a general principle under Lebanese law. A concrete application of this principle appears in both the Lebanese Code of Criminal Procedure and the Lebanese Code of Civil Procedure (applicable to criminal proceedings pursuant to its Article 6). Pursuant to Article 303 of the Lebanese Code of Criminal Procedure, the prosecution is allowed to appeal ‘‘on points of law’’ (pourvoi en cassation) before the Court of Cassation a decision by the Court of Appeal, whereby the latter considered the crime committed to be a petty offence, and the prosecution considers it to be a misdemeanour. This is an exception to the principle that ‘‘appeals on points of law’’ cannot be brought before the Court of Cassation in matters of petty offences. In other words, the basis on which the decision can be appealed is determined by the grounds submitted by the party and not by the characterization given by the lower court. Articles 62 and 640 of the Lebanese Code of Civil Procedure are also an application of this general principle: the right to appeal in civil procedures in Lebanon is determined by the value of the dispute. If a lower court decides that the value is less than what is appealable by law, but the party disagrees with this finding, the matter remains appealable, i.e. the grounds submitted by the party determine whether the appeal is admissible or not. See Ahmad Abou el Wafa, Ousoul al mouhakamat al madaniya [Civil Procedure], 4th edition, 1989 p. 288. See also: arts 4 and 536 of the French Code of Civil Procedure referring to the same principle.

5 Stefani, G., Levasseur, G. et Bouloc, B., Procédure pénale, Dalloz, 16ème édition, 1996, p. 403 Google Scholar, para. 395.

6 United States, Court of Appeals of North Carolina, Pinner v Pinner, 234 S.E.2d 633 (1977): ‘‘Jurisdiction is the power of the court to decide a matter in controversy, and presupposes the existence of a duly constituted court withcontrol over the subject matter and the parties.’’

7 See Arts 1 and 2 of the UN Charter.

8 The International Court of Justice has held that ‘‘[...] when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’’, see ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, 20 July 1962, I.C.J. Reports 1962, p. 168.

9 See also Tadić Appeal Decision, para. 44:

10 See Art. 24 of the UN Charter.

1 This Headnote does not constitute part of the decision of the Appeals Chamber. It has been prepared for the convenience of the reader, who may find it useful to have an overview of the decision. Only the text of the decision itself is authoritative.

2 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/I/TC, Decision to Hold Trial In Absentia, 1 February 2012 (‘‘In Absentia Decision’’).

3 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Assignment of Counsel for the Proceedings Held In Absentia Pursuant to Rule 106 of the Rules, 2 February 2012.

4 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/TC Request of the Defence for Mr Badreddine for Reconsideration of the ‘‘Decision to Hold Trial In Absentia’’ Rendered by the Trial Chamber on 1 February 2012, 22 May 2012 (‘‘Badreddme Reconsideration Request’’); Sabra Motion for Reconsideration of the Trial Chamber’s Order to Hold a Trial In Absentia, 23 May 2012 (‘‘Sabra Reconsideration Request’’); Request by the Oneissi Defence for Reconsideration of the Decision to Hold Trial In Absentia of 1 February 2012 (‘‘Oneissi Reconsideration Request’’), 24 May 2012; Ayyash Motion Joining Sabra Motion for Reconsideration of the Trial Chamber’s Order to Hold a Trial In Absentia. 24 May 2012.

5 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/TC, Decision on Reconsideration of the Trial In Absentia Decision, 11 July 2012 (‘‘Impugned Decision’’).

6 STL, Prosecutor v. Ayyash et al., Case No STL-11-01/PT/AC/AR126.1, Appeal of the Oneissi Defence Against the Trial Chamber Decision on Reconsideration of the Trial In Absentia Decision, 5 September 2012 (‘‘Oneissi Appeal’’); Sabra’s Appeal against Decision on Reconsideration of the Trial In Absentia Decision, 5 September 2012 (‘‘Sabra Appeal’’); Appeal of the Badreddine Defence against the ‘‘Decision on Reconsideration of the Trial In Absentia Decision’’, 5 September 2012 (‘‘Badreddine Appeal’’); Ayyash Joinder in ‘‘Sabra’s Appeal against Decision on Reconsideration of the Trial In Absentia Decision’’, 5 September 2012. All further references to filings and decisions relate to this case number unless otherwise stated. We rejected an attempt by counsel for Mr Ayyash to file an appeal without obtaining certification, see STL, Prosecutor v. Ayyash et al., Case No. STL-11-OIIPT/AC, Decision on Request by Defence for Mr Ayyash for Extension of Time to File an Appeal, 17 August 2012.

7 Oneissi Appeal, paras 12-17; Sabra Appeal, paras 13-18, Badreddine Appeal, paras 4, 10, 11.

8 Oneissi Appeal, paras 7-21, 23-41; Sabra Appeal, paras 13- 15, 17, 30-34; Badreddine Appeal, paras 4, 10-15.

9 Badreddine Appeal, paras 10-15.

10 Badreddine Appeal, paras 16-39; Oneissi Appeal, paras 42- 63; Sabra Appeal, para. 57.

11 Sabra Appeal, paras 53-60.

12 Sabra Appeal, paras 14(b-d), 19-24, Oneissi Appeal, paras 23-41.

13 Sabra Appeal, paras 46-48, 50-52; Badreddine Appeal, paras 42-44, Oneissi Appeal, para. 64.

14 Sabra Appeal, paras 25-29.

15 Oneissi Appeal, paras 64-73, Sabra Appeal, paras 32, 35-44, 49-52; Badreddme Appeal, paras 45-47.

16 Prosecution Consolidated Response to Defence Appeals agamst ‘‘Decision on Reconsideration of the Trial In Absentia Decision’’, 26 September 2012 (‘‘Prosecutor’s Consolidated Response’’), paras 2, 10-12, 52-68 (in relation to the scope of Trial Chamber’s review); paras 4, 13 (in relation to the reconsideration standard); paras 5, 28-34 (in relation to whether the accused is alive); paras 2, 52-68 (in relation to the legality of In absentia proceedings); paras 35-40 (in relation to notification measures outside Lebanon); paras 41-43 (in relation to the content of notification); paras 35-40 (in relation to notification measures outside Lebanon); paras 44-49 (in relation to the use of the term ‘‘absconded’’); paras 14-18 (in relation to the absence of counsel in the process leading to the In Absentia Decision); paras 19-27 (in relation to whether the decision to proceed in absentia was discretionary); paras 56, 62, 65 (in relation to the right to a retrial). We rejected the Defence request to file a reply to the Prosecutor’s Consolidated Response, see Order on Defence Request for Leave to File a Reply, 8 October 2012.

17 Rule 140 STL RPE: ‘‘A Chamber may [... ] reconsider a decision [ ...] [emphasis added)’’. We note that, contrary to the recognized standard before international tribunals which we adopt above, in some national jurisdictions, discretionary powers of Judges have a broader scope, see G. Cornu, Vocabulaire Juridique, 7èmé edition, Presses Universitaires de France, Paris, 2005 where the term discrétionnaire (as procedurally applicable to judges) is defined as such:

18 ICTR, Bagosora et al. v. Prosecutor, Case No. ICTR-98-41- A, Interlocutory Appeal from Refusal to Reconsider Decisions Relating to Protective Measures and Application for a Declaration of ‘‘Lack of Jurisdiction’’, 2 May 2002, para. 10; ICTR, Prosecutor v. Karemera et al., Case No. ICTR-98-44-AR 73.14, Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008, 30 January 2009 (‘‘Karemera et al. 2009 Decision’’) para. 12; ICTY, Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.16, Decision on Jadranko Prlić’s Interlocutory Appeal against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 3 November 2009 (‘‘Prlić et al Decision’’) para. 6

19 Prlić et al. Decision, para. 6; ICTR,’’ Ngirabatware v. Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009 (‘‘Ngirabatware Decision’’) para. 8; Karemera et al. 2009 Decision, para. 18. These cases refer to caselaw relating to appellate review of discretionary decisions in general, see, e g, ICTY, Prosecutor v. Stanišić, Case No. IT- 04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mico Stanišić’s Provisional Release, 17 October 2005, (‘‘Stanišić Decision’’), para. 6; ICTY, Prosecutor v S Milošević, Case No. IT-99-37-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, (‘‘Milošević Decision on Joinder’’) paras 4-5; see also ICC, Prosecutor v. Kony et al., Case No. ICC- 02/04-01/05 OA 3, Judgment on the appeal of the Defence against the ‘‘Decision on the admissibility of the case under article 19(1) of the Statute’’ of 10 March 2009, 16 September 2009, paras 79-81.

20 Prlić et al Decision, para. 6; Ngirabatware Decision, para. S; Karemera et al. 2009 Decision, para. 15. See also Milošević Decision on Joinder, paras 4-6; Stanisić Decision, para. 6.

21 Prlić et al Decision, para. 6.

22 Oneissi Appeal, para. 75; Badreddine Appeal. para. 6.

23 See Rule 116 bis ICTY RPE.

24 See Rule 117 ICTR RPE.

25 See Rule 156(3) ICC RPE.

26 ICTR, Prosecutor v. Karemera et al., Case No ICTR-98-44- AR.91, Decision on ‘‘Joseph Nzirorera’s Appeal From Refusal to Investigate [a] Prosecution Witness for False Testimony’’ and on Motion for Oral Arguments, 22 January 2009, para. 14; see also ICC, Prosecutor v. Ruto et al., Case No. ICC-OI/09-01/11 OA, Decision on the ‘‘Request for an Oral Hearing Pursuant to Rule 156(3)’’, 17 August 2011, para. 10 (holding that the Appeals Chamber ‘‘must be furnished with cogent reasons that demonstrate why an oral hearing in lieu of, or in addition to, written submissions is necessary.’’)

27 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/TC, Decision Certifying for Appeal the ‘‘Decision on Reconsideration of the Trial In Absentia Decision, 23 August 2012 (‘‘Certification Decision’’).

28 See Rules 11(D), 11(F), 17(H), 60 bis(L), 81(C), 88(B), 90(B)(1), 92(D), Rule 102(C), 108(C), 116(D), 118(K), 119(D), 135(G), 152(I), 170(C) STL RPE.

29 See Rule 73 ICTY RPE; Rule 73 ICTR RPE; Art. 82(1)(d) ICC St.

30 See, e.g., ICTR, Prosecutor v. Karemera et al, Case No. ICTR- 98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (‘‘Karemera et al. 2006 Decision’’), para. 17 (holding that ‘‘[i]nterlocutory appeals [ ... ] Interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, In the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber’’); see also ICC, Situation in Uganda, Case No. ICC-02/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal In Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest under Article 58, 19 August 2005, para. 19. We note that the standard of Rule 126(C) also applies to Rule 90(B)(ii).

31 See, e g, ICTY, Prosecutor v. Mladić, Case No IT-09-92-T, Decision on the Defence Motion for Certification to Appeal the Decision on Submissions Relative to the Proposed ‘‘EDS’’ Method of Disclosure, 13 August 2012, para 3 (holding that the ‘’purpose of a request for certification to appeal is not to show that an impugned decision is incorrectly reasoned, but rather to demonstrate that the two cumulative conditions set out in Rule 73(B) have been met’’); ICTR, Prosecutor v. Nizeyimana, Case No. ICTR-00-55C-T, Decision on Defence Motion for Certification of the Trial Chamber 12 July 2011 Decision on Defence Motion to Take Judicial Notice of Adjudicated Facts, 8 August 2011, para. 8 (holding that ‘‘[c]ertification to appeal may be granted only if both criteria are satisfied’’); ICC, Prosecutor v. Banda et al , Case No. ICC- 02/05-03/09, Decision on the Prosecution’s Application for Leave to Appeal the ‘‘Reasons for the Order on Translation of Witness Statements (ICC-02/0503/09-199) and Additional Instructions on Translation’’, 1 November 2011, para. 6 (noting that ‘‘the requirements [ ...] are cumulative’’).

32 Certification Decision, para. 5.

33 Of course a decision could potentially relate to only one issue (see Karemera et al. 2006 Decision, para. 16). However, this was not the case here.

34 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/AC/R176bis. Decision on Defence Requests for Reconsideration of the Appeals Chamber’s Decision of 16 February 2011, 18 July 2012 (‘‘Rule 176 bis Reconsideration Decision’’), paras 20, 24-25.

35 See below, paras 22-33.

36 Contrary to Defence assertions (Badreddine Appeal, paras 31- 39; Oneissi Appeal, paras 42-63), this right is guaranteed by both the Statute and Rules. As we have made clear in our Decision of 24 October 2012 (STL, Prosecutor v Ayyash et al., Case No. STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals Against the Trial Chamber’s ‘‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’’, 24 October 2012, para. 31), the United Nations Security Council adopted the Tribunal’s Statute under Chapter VII of the United Nations Charter, thus issuing a binding decision, inter alia, that ‘‘[I]n case of conviction in absentia, the accused [ ... ] shall have the right to be retried [ ... ] before the Special Tribunal’’ (Art. 22(3) of the Statute), and that this right be effectively respected. The right of retrial is fundamental to the use of Article 22. On this basis, we agree with the Trial Chamber that there is ‘’no reason to believe that this right guaranteed by the Statute will not be respected (Impugned Decision, para. 27).’’ There is no need at this stage to consider how the right to retrial would play out in practice. Further, in light of the clear provisions of Rules 108 and 109, there is no substance to the argument advanced by counsel for Mr Badreddine that the Accused could be found to have de facto waived their right to retrial by ‘‘accepting counsel’’ because they have not appeared for trial (Badreddine Appeal, paras 33-34).

37 See Rules 108 and 109 STL RPE.

38 See below, paras 22-33.

39 Rule 176 bis Reconsideration Decision, para. 18.

40 See above, para. 14.

41 Oneissi Appeal, paras 7-17.

42 Oneissi Appeal, paras 18-21.

43 See Badreddine Appeal, para. 4.

44 Sabra Appeal, paras 13-18.

45 Rule 176 bis Reconsideration Decision, para. 24.

46 Rule 176 bis Reconsideration Decision, para. 25.

47 See, e.g., Karemera et al. 2009 Decision, para. 15 (finding that although it would have been preferable for the Trial Chamber to articulate the test more explicitly, the test had been applied correctly and did not amount to an abuse of discretion by the Trial Chamber).

48 Impugned Decision, para. 6; see also para. 7.

49 Oneissi Appeal, paras 66, 73.

50 Sabra Appeal, para. 32.

51 Oneissi Appeal, para. 71; Sabra Appeal, paras 32, 35-44, 49; Badreddine Appeal, paras 46-47.

52 Oneissi Appeal, para. 64-73; Sabra Appeal, paras 32, 35-44, 49-52; Badreddine Appeal, paras 45-47.

53 Prosecutor’s Consolidated Response, paras 35-44, 50-51.

54 Rule 76(E) STL RPE.

55 See Art. 22(2)(a) STLSt. of the French version (« L’acte d’accusation a été notifié ou signifié à l’accusé, ou que celuici en a été avisé par voie d’insertion dans les médias ou de communication addresseé à son État de résidence ou de nationalité »); see also Article 22(2)(a) STLSt. of the Arabic version:

56 Arts 14(3)(a) and (d) of the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (‘‘ICCPR’’).

57 UN Human Rights Committee, General Comment No 32: Article 14: Right To Equality Before Courts And Tribunals And To A Fair Trial, UN Doc. CCPRlC/GC/32, 23 August 2007 (‘‘General Comment No 32’’), para. 36 (stating that ‘‘[p]roceedings In the absence of the accused may In some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present’’).

58 UN Human Rights Committee, Maleki v. Italy, UN Doc. CCPR/C/66/D/699/1996 (1999), para. 9.4; see also UN Human Rights Committee, Mbenge v Zaire, UN Doc. CCPR/C/OP/2 (1990), para. 14.1 (finding that waiver can be inferred if all the necessary steps have been taken to inform the accused person of the charges and notify them of the proceedings); General Comment No. 32, para. 36.

59 General Comment No. 32, para. 36.

60 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222 (‘‘European Convention’’).

61 Art. 22(3) STLSt., Rules 108, 109, STL RPE.

62 Rules 103, 104, 105 STL RPE,

63 Art. 22(2)(c) STLSt.; Rule 105 bis(B) STL RPE.

64 Art. 6 of the European Convention provides a right of an accused to ‘‘defend himself in person’’. We also note that the Tribunal’s Statute was drafted in such a way as to ‘‘take account of the relevant case law of the [ECtHR), which determined the regularity of trials in absentia in full respect for the nghts of the accused’’ (Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893 (2006), para. 33 [footnote omitted)).

65 ECtHR, Sejdovic v Italy, App. No. 56581/00, Judgment (GC), 1 March 2006 (‘‘Sejdovic v. Italy’’), para. 86; ECtHR, Demebukov v. Bulgana, App. No. 68020/01, Judgment, 28 February 2008 (‘‘Demebukov v. Bulgaria’’), para. 47; see also ECtHR, Colozza v. Italy, App. No 9024/80, Judgment, 12 February 1985 (‘‘Colozza v. ltaly’’), para. 28.

66 Sejdovic v. Italy, para. 99.

67 Ibid.; ECtHR, T. v. ltaly, App. No. 14104/88, Judgment, 12 October 1992 (‘‘T. v. Italy’’), paras 28-29; ECtHR, Somogyi v Italy, App. No. 67972/01, Judgment, 18 May 2004 (‘‘Somogyi v. Italy’’), para. 75.

68 However, contrary to assertions by counsel for Oneissi (Oneissi Appeal, para. 66; Oneissi Reconsideration Request, para. 35) this case-law cannot be read to imply that waiver can only be inferred from the accused’s absence if the accused was notified officially and in person. In all three cases (Sejdovic v. Italy, T v. Italy, and Somogyi v. Italy) the official notification was clearly insufficient to constitute effective notification and the State was found to have violated Article 6 of the European Convention. It should also be taken into consideration that the ECtHR makes a general determination on whether a breach has occurred after considering a number of different factors bearing on the decision, including the procedural law of the domestic system. In the above cases, the limited availability of a right to retrial or comprehensive appeal may have been one such factor contributing to a finding of breach.

69 See Somogyi v Italy, para. 67; see also Sejdovic v. Italy, para. 83.

70 Sejdovic v. Italy, para. 87 (holding that ‘‘before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be’’); Demebukov v. Bulgaria, para. 48; see also ECtHR, Jones v UK, App. No. 30900/02, Decision on Admissibility, 9 September 2003. It should be noted that the guaranteed right to a retrial, notwithstanding whether the accused knew about the proceedings available at this Tribunal, provides an additional safeguard of the rights of the accused to that existing in some of the domestic jurisdictions to which the ECtHR cases relate.

71 Contra Oneissi Appeal, para. 66. We note that under Rule 76(A) and (B) STL RPE, State officials effect personal service by giving the accused a copy of the indictment and other relevant documents.

72 Impugned Decision, para. 24.

73 In Absentia Decision, paras 21-22.

74 Id. at para. 29.

75 Rule 104 STL RPE sets out a number of ways an accused can participate in the proceedings without being physically present. Rule 105 STL RPE provides for the participation of an accused in the proceedings by way of video-conference.

76 In Absentia Decision, para. 30.

77 Id. at paras 31-39; see also Rule 3 STL RPE.

78 Id, at paras 28-39.

79 Id. at para. 32.

80 Ibid.

81 Impugned Decision, paras 16-19; 24, 35-36.

82 In Absentia Decision, para. 45.

83 Id. at paras 45-51. The Trial Chamber explicitly stated that it did not ‘‘believe that posting documents in the [Tribunal’s] Beirut field office constitutes an effective means of informing an accused person of the existence of an indictment or of his or her rights to participate in the trial, and will accordingly not consider this requirement under Lebanese law in determining whether ‘all reasonable steps’ have been taken’’, see In Absentia Decision, para. 50.

84 In Absentia Decision, paras 52-56.

85 Id. at para. 56.

86 Id. at para. 59.

87 Id. at para. 63.

88 Id. at para. 67.

89 Ibid.

90 Id. at paras 71-74.

91 Id. at para. 74.

92 Id. at para. 68; see also para. 58.

93 Id. at para. 70.

94 Id. at paras 75-104.

95 Id. at paras 107-110; see also paras 71-111.

96 Id. at para. 107-108.

97 Id. at para. 106; see also para. 111.

98 Sabra Appeal, paras 35-44; Oneissi Appeal, paras 71-72; Badreddine Appeal, paras 45-47.

99 In Absentia Decision, para. 25.

100 Impugned Decision, paras 17-18, 36.

101 See Prosecutor’s Consolidated Response, para. 36, referring to Art. 22(2)(a) STLSt.

102 Impugned Decision, para. 36.

103 Badreddine Reconsideration Request, paras 15-18, Sabra Reconsideration Request, paras 43-45; Oneissi Reconsideration Request, para. 43.

104 Badreddine Appeal, paras 45-47; Sabra Appeal, paras 35-42; Oneissi Appeal, para. 71.

105 See In Absentia Decision, paras 5 (noting that ‘‘the Pre-Trial Judge issued four international arrest warrants and authorised the Prosecutor to request Interpol to transmit ‘red notices’’’), 59 (noting that the Trial Chamber had ‘‘reviewed a wealth of material, published in the Lebanese and international print, broadcast and electronic media’’); see also above, para. 42.

106 Sabra Appeal, paras 25-29.

107 Sabra Appeal, paras 27-28.

108 Prosecutor’s Consolidated Response, paras 28-34.

109 Impugned Decision, para. 35.

110 See e.g., ICTY, Prosecutor v S. Milošević, Case No. IT-02- 54-T, Order Terminating the Proceedings, 14 March 2006, p. 2 (noting that ‘‘in the case of the death of an accused, the proceedings have to be terminated’’).

111 It is implicit in the Trial Chamber’s findings that the Accused had been notified and had absconded that it regarded them to be alive, see In Absentia Decision, para. 111.

112 Impugned Decision, para. 35.

113 Sabra Appeal, para. 49.

114 See In Absentia Decision, paras 106, 111.