On the definition of terrorism according to the Special Tribunal for Lebanon
The definition of terrorism applied by the STL. Does a customary definition of the crime of terrorism exist?
Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism Under International Law?
On 21 January 2011, the pre-trial judge of the Special Tribunal for Lebanon (hereinafter ‘STL’) posed several questions to the Appeals Chamber (‘Chamber’) pursuant to Rule 68(G) of the Rules of Procedure and Evidence. Three of these questions dealt with the crime of terrorism. Should the Tribunal take into account international notions on terrorism even though Article 2 of the Statute only refers to the Lebanese Criminal Code (‘LCC’)? If so, is there an international definition of ‘terrorism’ and how should it be applied? If not, how is the Lebanese definition of ‘terrorism’ to be interpreted by the Chamber? Both the prosecution and defense submitted extensive briefs dealing, inter alia, with these questions. Additionally, two amicus curiae briefs were submitted. On 16 February 2011, the Chamber issued its (interlocutory) decision pursuant to Rule 176 bis (A). The Chamber argues, in a nutshell, that terrorism has become a crime under international law and that the respective international definition influences the (applicable) Lebanese law. In the first part of this paper, I will argue that the Chamber’s considerations, albeit innovative and creative, are essentially obiter, since the applicable terrorism definition can be found, without further ado, in the Lebanese law. There is no need to internationalize or reinterpret this law; it should be applied before the STL as understood in Lebanese practice. As to the Chamber’s affirmation that there is a crime of terrorism under international law, I will argue, in the second part of the paper, that the available sources indicate, at best, that terrorism is a particularly serious transnational, treaty-based crime that comes close to a ‘true’ international crime but has not yet reached this status.Notwithstanding, the general elements of this crime can be inferred from the relevant sources of international law.
The Multifaceted Criminal Notion of Terrorism in International Law
Contrary to what many believe, a generally accepted definition of terrorism as an international crime in time of peace does exist. This definition has evolved in the international community at the level of customary law. However, there is still disagreement over whether the definition may also be applied in time of armed conflict, the issue in dispute being in particular whether acts performed by freedom fighters in wars of national liberation may (or should) constitute an exception to the definition. As a consequence of disagreement on terrorism in armed conflict, states have so far been unable to lay down a general definition of the whole phenomenon of terrorism in a general treaty. The fact, however, remains that under current customary international rules terrorism occurring in a time of peace and which is international in nature (i.e. not limited to the territory of a state and showing transnational connections) may, depending on the circumstances, constitute a discrete international crime, or a crime against humanity. In time of armed conflict, terrorism (i.e. attacks on persons not taking an active part in armed hostilities, with a view to spreading terror among the civilian population) currently amounts to a specific war crime (crime of terror). In time of armed conflict, terrorist acts may also amount to crimes against humanity (if part of a widespread or systematic attack on the civilian population). The objective and subjective elements of each of these three classes of criminal conduct are set out in the article on the basis of existing international law. While in the view of the author, the current legal regulation of terrorism is thus sufficiently clear, the fact remains that states are politically and ideologically divided on whether the actions of freedoms fighters involving attacks on civilians should be defined as terrorist or instead lawful. In this contentious area three divergent political trends are emerging in the world community: (i) to sic et simpliciter exempt freedom fighters actions from the category of terrorism, without however specifying what law would regulate their actions or whether such actions are in any case always lawful; (ii) to exclude attacks against civilians in armed conflict from the legal regulation of the international rules on terrorism and thus assign such legal regulation to international humanitarian law solely; (iii) to combine the application of both international norms on terrorism and international humanitarian law to actions in armed conflict, classifying as terrorist (not as war crimes) attacks on civilians carried out in the course of such conflicts with a view to spreading fear.