The article provides an overview of the decision of the Special Tribunal for Lebanon (thereafter STL) interlocutory decision of 16 February 2011 issued by the Appeals Chamber[1], which proposes the idea that a common definition of terrorism is achievable. Critics of the STL decision question the STL's ruling by which there is international customary practice and therefore question whether a common definition can be asserted. The article sheds light on the STL decision and touches on the question of the extent to which the definition proposed by the STL is evidence of customary definition of terrorism in international law. To this end, the article might be of interest to those interested in the definitional aspects related to the complex, multi-faceted and polymorphic phenomenon of terrorism.
The definitional problems related to international terrorism have been the subject matter of much analysis. Yet, despite the universal condemnation of terrorism there is not currently a universally accepted definition of the phenomenon. As Justice Steward said 'I know terrorism when I see it'[2]. It could be argued that a definition of terrorism is not significant at all as is the case in the international law of minorities. Similarly to the law of terrorism, the question of what constitutes a minority in terms of international law has remains unanswered. The main reason is that no abstract definition is fully capable of covering the broad variety of relevant situations in the world involving some 3000 to 5000 different groups qualified as minorities in existing treaties[3]. Similarly terrorism has taken so many forms that it is impossible to render all the different manifestations of the phenomenon into a single definition. Obviously the major reason is the ambit of inclusiveness and exclusiveness of certain acts within such a definition. Professor Cassesse on the other hand, argues that there is currently a consensus with regards to the notion of terrorism and that terrorism amounts to a customary international law crime[4]. However, the practice of states in defining terrorism and the different approaches adopted indicate that there is no currently a universally accepted definition of terrorism.
Last year, the Special Tribunal for Lebanon, which was set up to try those responsible for the assassination of the former Lebanese Prime Minister and 22 more individuals, provided a landmark ruling by which it defined terrorism and set a precedent for international courts and the way terrorism should be defined. This article examines the SLT decision in order to ascertain the extent to which the proposed by the court definition might constitute evidence towards the development of a customary definition of terrorism in international law. Moreover, the impact that such a development might have on the international prosecution of terrorism is further highlighted.
Following the assassination of 23 individuals in Lebanon, the Special Tribunal for Lebanon was created by UN Resolution in order to 'prosecute persons responsible for the attacks of 14[th] of February 2005 resulting in the death of former Prime Minister Hariri and in the death and injury of other persons[5]'. On the 11[th] of February 2011, the Appeals Chamber of the Special Tribunal for Lebanon (following request from the pre-trial judge) was called to address the complicated question of defining terrorism. The Appeals Chamber ruled that the court is authorised to apply the Lebanese law on terrorism by reference to international treaties and customary international law[6]. Article 2 of the STL's Statute requires the Tribunal to apply domestic law (i.e. the Lebanese Criminal Code). [7] According to the definition of "terrorist acts" set out in Article 314 of the Lebanese Criminal Code terrorism is defined as "all acts intended to cause a state of terror and committed by means liable to create a public danger". Thus, the definition consists of three elements: (1) an act, (2) intention to "cause a state of terror" and (3) liability to "create a public danger" by the means used to commit the act.[8] Under Lebanese law the mens rea of a crime of terrorism is an act which is deliberate and intended to cause a state of terror and this special intent or dolus specialis does not require the mens rea of murder.[9] Likewise, the offence of terrorism is complete when this special intent to create a state of terror is present and death or injury is not necessary.[10] However without the means used liable to create a public danger as required by Article 314, there will
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be no crime of terrorism.[11] Hence it is the means used which restricts the Lebanese definition. The aforementioned Lebanese definition was perceived as sufficiently clear by both the defence and the prosecution.[12] However, the Appeals Chamber held that it was appropriate for the Lebanese court to resort to international law in order to define terrorism and held that 'a widely accepted definition of terrorism has gradually emerged'[13]. Such an approach goes beyond the use of international law as an interpretative aid to article 2 of the Tribunal Statute to a direct application of international law on domestic law. Thus, the court rejected the narrow interpretation of the definition of terrorism as found in the Lebanese criminal code by adopting a wider definition. As stated in the court's ruling 'while fully respecting the Lebanese jurisprudence relating to cases of terrorism brought before Lebanese courts, the tribunal cannot but take into account the unique gravity and transnational dimension of the facts at issue and as a result the tribunal is justified in applying a construction of Lebanese's criminal code's definition of terrorism that does not necessarily coincide with that the construction suggested by Lebanese courts'. The ruling was shortly afterwards characterised as a 'landmark' ruling as for the first time an international court defined terrorism and interestingly declared terrorism as a crime under customary international law[14]. The ruling provided the following customary international law definition of terrorism:
a) perpetration of a criminal act (such as murder, kidnapping, hostage taking, arson (and so on) or threatening such an act;
b) intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action or to refrain from taking it;
c) the act involves a transnational element.
Likewise, the main contention of the Lebanese decision is that an accepted definition of terrorism has emerged in customary international law.[15] The decision examined international treaties and national law for consistency [16] and found that in spite of the differences between national laws there is a "core concept" of terrorism as "a criminal action that aims at spreading terror or coercing governmental authorities and is a threat to the stability of society or the State."[17] This approach has been subject of strong criticism. As Saul observes the approach is weak for the following reasons: 1) not all the national laws cited contain a transnational element and in including national laws that address only domestic terrorism it is not meaningful to rely upon this source as evidence of widespread agreement 2) likewise definitions are included in the analysis that were not definitions creating criminal offences because for example they were designed to address non-criminal problems such as state emergency powers or immigration 3) the analysis ignores the disagreements about what terrorism is and the divergent ways in which terrorism is conceptualised as evidenced by the differences between national laws 4) the definition of terrorism in fact is diverse in approach as evidenced by what Saul has termed 'simple generic definitions' and 'composite generic definitions' and this diversity of approach does not support the argument there is sufficient agreement on the definition amounting to customary law practice 5) some of the national terrorism laws cited by the STL are unsound because the definitions are too broad or ambiguous and consequently violate international human rights standards.[18] Similarly, Ambos is not entirely convinced that there is a crime of terrorism under customary international law and therefore is not persuaded that a universally accepted definition has emerged. Moreover, he is critical of the STL basing its evidence on the fact of international condemnation of terrorism and the international obligation to criminalise terrorism.[19] Saul argues that the STL decision was incorrect and erroneous, concluding that the decision lacks evidentiary foundation for the proposition that there is an international customary law definition.[20] Therefore, what is proposed is a "modern interpretation" of hitherto those restrictive parts of the Lebanese definition (the "means" element) taking into account developments in international law.[21] The rationale for this is that this aligns "domestic practice with a nation's international obligations" [22] and in doing so does not create a new crime.[23] Saul however, criticises the Appeal Chamber for what he sees as broadening the terrorist offence defined in the Lebanese Criminal Code, creating a new offence and in the process taking a unilateral approach to the use of international law to aid domestic interpretation and offending the principle a court should not read in a meaning into a statutory provision which is plain and unambiguous.[24] The question is whether the STL approach to defining terrorism will become in time a customary international law practice.
In departing from previous interpretation by the Lebanese courts of means capable of causing a public danger the observation is made that "liability to create a public danger" can be interpreted broadly and has a different meaning today.[25] Whilst having broken the definition down into common elements, it is in deciding whether "liability to create a public danger" could be interpreted more broadly that it is implicitly recognised terrorism as a crime is more than the sum of definitional elements and its meaning can change. Indeed it is stated that there is a clear link
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between causing a state of terror and public danger and it is further argued that modern communication (global media) has had an effect on the meaning of public danger by the ability to communicate terrorist acts to a wide audience.[26]
The approach adopted by the Special Tribunal for Lebanon may potentially contribute to the international prosecution of terrorism once this is defined under international law. In particular, this may lead to a more consistent approach and development of international standards. However, the most important point about the STL decision is not whether a common definition of terrorism has emerged, but its illustration of how a way could be found to overcome a definition restricted by the means used to cause terrorism. Likewise, it may becomes unnecessary in the future to continually redefine terrorism by treaties whenever new means to commit terrorism are used. The STL decision therefore paves the way to depart from treaty law. This would enable a more fluid approach to terrorism and enable the law to keep pace with change. This arguably may be the most significant contribution of the STL decision irrespectively of all expressed criticisms of the decision.
Duffy argues that a lack of clear definition means that states' international obligations over counter-terrorist measures are ill-defined which enable states to be selective in how they interpret their obligations.[27] A common definition should make the state obligations more precise resulting in improved action and greater consistency. Agreement on the definition of terrorism is also seen as an essential step towards terrorism being included as a generic crime within the jurisdiction of the International Criminal Court.[28] As it was the 1998 Rome Conference on the International Criminal Court (ICC) on having omitted the crime of terrorism from the ICC Statute because of the absence of a generally agreed definition had recommended that when it came to reviewing the expansion of the ICC jurisdiction this included review with a 'view to arriving at an acceptable definition' and its inclusion in the list of international crimes.[29] International recognition of a crime of terrorism may overcome the existing problem with holding individuals to account for terrorism being dependent on the incorporation of terrorism conventions into domestic law.[30] This may in turn promote criminal prosecution of terrorism and therefore a criminal justice solution to the problem of terrorism. As Duffy notes: 'following the events of 9/11 there was a noticeable lack of prosecutions associated with this terrorist atrocity and aside from the issues of international cooperation the 'war on terror' has been overly militaristic in its response and less focused on criminal justice.[31] By reaching a generic definition of terrorism this may serve (at least at national level) to encourage prosecution of non-state actors in criminal courts and redirect the 'war on terror' away from military action.
Besides the issue of whether it has been the correct approach adopted by the Lebanese court to apply international law to domestic law definition, the true significance of the STL decision is that it suggests a way in which terrorism can be defined in the future. Whatever means are used to commit terrorist acts (and this includes technological changes in the future) the STL decision, with reference to the Lebanese definition restricted by the means used, shows that a simplified definition could be applied. The implication of this is that a definition could be applied without having to formulate specific treaty-based offences and incorporate this into national laws. Thus, if the definition of terrorism can be simplified to common elements of act and special intent (excluding additional special intent) then the STL approach of using international law to interpret a national law definition in consistency with international obligations is a potential solution to responding to international terrorism. The future adoption by the international community of the STL proposal to concentrate on the core elements of terrorism (minus the means used and additional special intent) could provide a more flexible approach to prosecuting terrorism and lead to the recognition of an international crime of terrorism.
Akehurst's, M., Modern introduction to international law. Routledge, 2003
Ambos, K, Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism under International Law? (2011) Leiden Journal of International Law 24 (3) 65, pp. 665-666.
Arend, A., and Beck, R., International law and the use of force. New York 2001
Cassesse, A., International criminal law. Oxford University Press, 2003
Duffy, H, The 'War on Terror' and the Framework of International Law. Cambridge University Press 2005
Paust, J., Addendum: prosecution of Ms. Bin Laden et al for violations of international law and civil lawsuits by various victims, 77 American Journal of International Law Insights. 21 September 2001
Saul, B, Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism' Leiden Journal of International Law 2011. 24 (3) 677, pp. 681-684. ■
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NOTES
[1] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I/AC/R176bis, 16 February 2011 ('Decision').
[2] Jocabilis v. Ohio US 378:184, 197 in Arend, A., and Beck, R., International law and the use of force. New York 2001. p. 140. I know a (national) minority where I see one. The High Commissioner Max van der Stoel has repeated this statement on several occasions. For example see: Van der Stoel, M., Prevention of minority conflicts, in Sohn, L.B., The CSCE and the turbulent new Europe, 1993. p. 148.
[3] Akehurst's, M., Modern introduction to international law, Routledge, 2003. p. 105.
[4] Cassesse, A., International criminal law, Oxford University Press, 2003. p. 120. Similar are the views of Paust, J., according to whom international terrorism is a recognizable international crime under customary international law, which confers universal jurisdiction over terrorism. See: Paust, J., Addendum: prosecution of Ms. Bin Laden et al for violations of international law and civil lawsuits by various victims, 77 American Journal of International Law Insight, 21 September 2001
[5] The Lebanon tribunal as the first international court with jurisdiction over terrorism (Statute of the Special Tribunal for Lebanon available at www.stl-tsl.org/x/file/TheRegistry/library/back-groundDocuments/RulesRegulations/Resolution_Agree-ment_Statute_ENT.df.) was set up by an agreement between the UN and the Lebanese Republic (pursuant to SC Res. 1664 (2005) to investigate the 2005 assassination of the former Prime Minister Hariri Rafiq and 22 others involved in a bomb attack . Following request from the pre-trial judge, the Appeals Chamber
[6] Decision para. 45, 62.
[7] Ibid, para. 44.
[8] Ibid, para. 49.
[9] Ibid, para. 57.
[10] Ibid, para. 59.
[11] Ibid, para. 60.
[12] Ibid, para. 62.
[13] Ibid, para. 83.
[14] The court ruling entitled 'interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative changing (www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20110216)
[15] Ibid, para. 83.
[16] Ibid, para. 88-96.
[17] Ibid, para. 97.
[18] Saul, B, Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism, (2011) Leiden Journal of International Law 24 (3) 677 at 681-684
[19] Ambos, K, Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism under International Law?, (2011) Leiden Journal of International Law 24 (3) 65, pp. 665-666
[20] Supra note 18, p.p. 677-700
[21] Decision, para. 144.
[22] Ibid, para. 135.
[23] Ibid, para. 144.
[24] Supra note 18, p. 680
[25] Decision, para. 128.
[26] Ibid, para. 128.
[27] Duffy, H, The 'War on Terror' and the Framework of International Law. Cambridge University Press 2005. p. 45.
[28] Ibid, p. 128.
[29] A/CONF.183/13(Vol.I) United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June-1 7 July 1998
Official Records Volume I Final documents Rome Statute of the International Criminal Court and Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court [with an annex containing the resolutions adopted by the Conference] ANNEX 1 RESOLUTION E pages 71-72 http://untreaty.un.org/cod/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf accessed 15 September 2011.
[30] Supra note 27, p. 62 and p.p. 89-90.
[31] Ibid, pp. 119-123.
Lábjegyzetek:
[1] The Author is Senior Lecturer in Law, London South Bank University, UK.
Visszaugrás
