Whether the Tribunal should apply international law in defining the crime of terrorism; ifso, how the international law of terrorism should be reconciled with any differences in the Lebanese domestic crime of terrorism; and in either case, what are the objective and subjective elements of the crime of terrorism to be applied by the Tribunal.
The Appeals Chamber, applying general principles of construction enshrined in Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, concluded that, “unlike other international criminal tribunals,” the STL will only apply Lebanese law as interpreted by Lebanese courts. The Tribunal will sway from this mandate only if “such interpretation or application appears to be unreasonable, might result in manifest injustice, or appears not to be consonant with international principles and rules binding upon Lebanon.”
The STL began debate on the issue earlier this month in order to determine which laws to apply in the case against persons accused of involvement in the February 2005 truck bomb that killed Hariri and 22 other people.
Under the Lebanese Criminal Code the objective elements of terrorism are as follows: (i) an act whether constituting an offence under other provisions of the Criminal Code or not; and (ii) the use of a means “liable to create a public danger”. These means are indicated in an illustrative enumeration: explosive devices, inflammable materials, poisonous or incendiary products, or infectious or microbial agents. According to Lebanese case law, these means do not include such non-enumerated implements as a gun, a machine-gun, a revolver, a letter bomb or a knifo. The subjective element of terrorism is the special intent to cause a state of terror. The court states that:
Although Article 2 of the Statute enjoins the Tribunal to apply Lebanese law, the Tribunal may nevertheless take into account international law for the purpose of interpreting Lebanese law. In this respect, two sets of rules may be taken into account: the Arab Convention against Terrorism, which has been ratified by Lebanon, and customary international law on terrorism in time of peace.
The court elaborates on the ‘convincing evidence’ that a customary rule of international law has evolved on terrorism in time of peace, requiring the following elements: (i) the intent (dolus) of the underlying crime and (ii) the special intent (dolus special is) to spread fear or coerce authority; (iii) the commission of a criminal act, and (iv) that the terrorist act be transnational.
The court held that, under Article 314 of the criminal code, a conviction on the charge of terrorism requires proof of an act intended to spread terror and use of a means “liable to create a public danger.” In order to define the term “means,” the court examined Lebanese case law, which offered a narrow interpretation of the term, limiting the definition to a specific list enumerated in the code.
The court rejected the narrow interpretation for the purposes of the international tribunal, stating:
[W]hile 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 the Security Council’s consideration of them as particularly grave international acts of terrorism justifying the establishment of an international court. As a result, for the purpose of adjudicating these facts, the Tribunal is justified in applying, at least in one respect, a construction of the Lebanese Criminal Code’s definition of terrorism that does not necessarily coincide with that the construction suggested by Lebanese courts.
Instead of defining means by the enumerated list, the court held that the only requirement is that “the means used to carry out the terrorist attack be liable to create a common danger” and that the trial judges should be given latitude in determining whether the requirement was met after having considered the facts presented in the case.
Marko Milanovic adds:
The Appeals Chamber held, inter alia, that customary international law now recognizes a distinct crime of terrorism in peacetime. Notably, the Chamber held not only that a customary rule exists between states that they need to suppress terrorist crimes, but that a customary rule applicable to individuals has evolved, directly creating a true international crime.
The Tribunal summarizes:
In sum, and in light of the principles enunciated above, the notion of terrorism to be applied by the Tribunal consists of the following elements: (i) the volitional commission of an act; (ii) through means that are liable to create a public danger; and (iii) the intent of the perpetrator to cause a state of terror. Considering that the elements of the notion of terrorism do not require an underlying crime, the perpetrator of an act of terrorism that results in deaths would be liable for terrorism, with the deaths being an aggravating circumstance; additionally, the perpetrator may also, and independently, be liable for the underlying crime if he had the requisite criminal intent for that crime.
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