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 Subject-Matter Jurisdiction of the Special Tribunal for Lebanon
The Special Tribunal for Lebanon (‘STL’) represents a sui generis international tribunal on various levels. It is the first time a treaty-based Tribunal has been established through a resolution of the Security Council adopted under Chapter VII. A further unique feature is its sole dependence on domestic substantive crimes. The attempt to include crimes against humanity in the Statute did not succeed, despite the fact that the elements of a crime against humanity seem to be discernable in the conduct that falls within the jurisdiction of the STL. References to international and regional terrorism instruments, such as the Arab Convention for the Suppression of Terrorism, were also abandoned. The Tribunal will rely on Lebanese criminal provisions regarding terrorism, illicit associations, crimes and offences against life and personal integrity. Lebanese law provides an old but concrete definition of terrorism. This raises the question of whether the Lebanese definition, with its strengths and weaknesses, could assist in the evolution of a well-structured definition of international terrorism. The possibility of ‘internationalizing’ the Lebanese definition will depend on two factors: the judges’ approach in adopting the Tribunal’s rules of evidence and procedure, and then more importantly their creativity in developing the jurisprudence of the Tribunal.