The Special Tribunal for Lebanon Declines to Review UN Security Council Action: Retreating from Tadić's Legacy in the Ayyash Jurisdiction and Legality Decisions
(2013) 11(3) Journal of International Criminal Justice 615-641
28 Pages Posted: 16 Apr 2013 Last revised: 29 Jun 2013
Date Written: April 1, 2013
The question whether an international tribunal created by the United Nations Security Council has the power to review its own legality has recently been answered in the negative by the Special Tribunal for Lebanon (STL) in Ayyash, directly contradicting the much celebrated Tadić decision of the International Criminal Tribunal for the former Yugoslavia. This paper critically analyses the reasoning of the trial and appeals chambers of the STL as well as that of President Baragwanath in his partially dissenting opinion. The authors question the conclusion that an international tribunal - created via a Chapter VII resolution - has no duty to verify whether it was lawfully established before it exercises its primary jurisdiction. Such an approach goes against existing authorities, moves away from the general trend of exercising judicial scrutiny over Security Council action, and creates an impression that the STL shies away from demonstrating its impartiality and independence as well as its compliance with the highest standards of international justice. The authors argue that it would have been more judicially sound to affirm the inherent power of the STL to rule on whether it was lawfully established (or not). They submit that President Baragwanath’s approach - although not perfect - offers the more persuasive and nuanced legal reasoning to the issue at hand. Lastly, the practical and legal consequences of an international tribunal finding that their creation was illegal are considered.
Keywords: compétence de la compétence, jurisdiction, inherent jurisdiction, legality, judicial review, UN Security Council, UN Charter, Chapter VII, Tadić, Ayyash
JEL Classification: K14, K33, K41, K42
Suggested Citation: Suggested Citation