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The Contribution of the Special Tribunal for Lebanon to the Notion of Terrorism: Judicial Creativity or Progressive Development of International Law?
Abstract
The Interlocutory Decision on the applicable law handed down on 16 February 2011 by the Appeals Chamber of the Special Tribunal for Lebanon revived the debate about the still controversial question of whether a generally accepted definition of terrorism as an international crime exists. This paper, after having considered the most debated points of the terrorism definition, provides a commentary on two specific terrorism-related aspects of the decision: (i) the court’s finding that terrorism has crystallized to form a distinct international crime under customary international law and (ii) the consistent expansive approach to the interpretation of Lebanese law which provides the basis for a nullum crimen sine lege challenge, given the clear legislative intent to apply the more restrictive Lebanese form of the crime of terrorism. This contribution is intended to answer questions such as: (i) what kind of contribution (if any) has the STL made to the progressive development of a definition of terrorism as an international crime?; (ii) is there room for doubt about its compliance with the legality principle, and more generally (iii) does respect for this principle stand in the way of the development of International Criminal Law?
... In this regard, another part of the doctrine argues that such a gap would depend on the mere "exhortative" character of international norms, where the same "impose" on States an obligation to do, that is, to foresee, through domestic law, these behaviours as unlawful 49 . But this type of obligation, which also translates into an obligation of result for the States, is immediately considered applicable to individuals, since doctrine qualifies it as an obligation having a customary nature (Ragni, 2013) "Provides (to) another person (s) useful for committing the crime, therefore he becomes liable in criminal matters in that with his conduct he helps (no) or knowingly favors the material author of an international crime, although not 49Article 5 (b) of the 2001 Protocol cited above; art. 10, on the activity of brokering, and 11, on the distraction of transfers, of the treaty on the arms convention. ...
The subject of this paper is the complicity of the State in the offense committed by an international organization in the exercise of its regulatory function. The framework in which the case in question unfolds logically presupposes that the complicit State is part of the agreement of the body which is the author of the main conduct. We would try to examination of a question that takes on a preliminary character with respect to the one we intend to address in the following pages. This is the possibility that the main crime is supplemented by a regulatory act. We are also interested to examine the conditions under which the concurrence in the resolution of a third degree legislative act must be qualified in terms of complicity pursuant to art. 58 DARIO
... 44-45). In this regard, even if there are some divergence in state practice, the decision is based on finding common elements of terrorism deducted from various precedents of International Court of Justice (ICJ), International Criminal Tribunal for the former Yugoslavia (ICTY) and other international courts (Ragni, 2013). Secondly, the elements of the definition are found in the academic consensus definition. ...
When the ultimate protector of the citizen defaults to such extent as to jeopardize the human security of individuals, the (international) harm caused to the groups becomes systematic, at which point the risk of ulterior infringements and of a spill-over effect increases. The legal injury sustained by the group becomes universal, a juridical interest is presumed and the locus standi requirement is dispensed with as a result of the breach of erga omnes obligations. The fine line between a right to intervene and a duty to intervene is evaluated by tracing the journey of the ‘responsibility to protect’ principle from an idea to a norm. The ICC Statute, designed to defeat structural impunity, has contributed towards this journey. When core crimes are committed on their territory, States forfeit their legitimacy ipso facto because of a blatant conflict of interest. A State cannot be perpetrator, prosecutor, judge and jury of its own cause, whereupon the State’s officials themselves are also accused. Owing to this conflict of interest, States auto-delegitimize themselves, opening the floodgates for external prosecutions. The seeds are sown for the consideration of the unwillingness or inability of States to prosecute core crimes committed within their territory, which will be assessed in the context of the complementarity principle and will be mentioned in the light of the positive obligations of States. The complementarity test operates at a vertical level, id est international institution versus State. The subsidiarity test operates at a horizontal (inter-State) level. Complementarity and subsidiarity mirror each other.
The acts of lawlessness committed on September 11, 2001 were followed by a 'war on terror'. This book sets out the essential features of the international legal framework against which the '9/11' attacks and the lawfulness of measures taken in response thereto fall to be assessed. It addresses, in an accessible manner, relevant law in relation to: 'terrorism', questions as to 'responsibility' for it, the criminal law framework, lawful constraints on the use of force, the humanitarian law that governs in armed conflict, and international human rights law. It indicates the existence of a legal framework capable of addressing events such as '9/11' and governing responses thereto. The author examines the compatibility of the 'war on terror' with this legal framework, and questions the implications for states responsible for violations, for third states and for the international rule of law.
Helen Duffy's analysis of international law and practice in relation to terrorism and counter-terrorism provides a framework for analysing the lawfulness of the many legislative, policy and judicial developments which have proliferated since 9/11. Among the many specific issues she addresses are targeted killings and the death of Osama bin Laden, detentions (including Guantanamo Bay), sanctions regimes, surveillance, extraordinary renditions, the prohibition on ‘association’ or ‘support’ for terrorism and the evolving preventive role of criminal law. She also considers the unfolding responses to political and judicial wrongs committed in the war on terror, such as the impact of the courts on human rights protection. While exploring areas of controversy, uncertainty and flux, she questions post-9/11 allegations of gaping holes, inadequacies or transformation in the international legal order and concludes by highlighting characteristics of the ‘war on terror’ and questioning its longer term implications.
Despite numerous efforts since the 1920s, the international community has failed to define or criminalize 'terrorism' in international law. This book first explores the policy reasons for defining and criminalizing terrorism, before proposing the basic elements of an international definition. Terrorism should be defined and criminalized because it seriously undermines fundamental human rights, jeopardizes the state and peaceful politics, and may threaten international peace and security. Definition would also help to distinguish political from private violence, eliminating the overreach of the many 'sectoral' anti-terrorism treaties. A definition may also help to confine the scope of UN Security Council resolutions since 11 September 2001, which have encouraged states to pursue unilateral and excessive counter-terrorism measures. Defining terrorism as a discrete international crime normatively recognizes and protects vital international community values and interests, symbolically expresses community condemnation, and stigmatizes offenders. Any definition of terrorism must also accommodate reasonable claims to political violence, particularly against repressive governments, and this book examines the range of exceptions, justifications, excuses, defences, and amnesties potentially available to terrorists, as well as purported exceptions such as self-determination struggles, 'state terrorism', and armed conflicts. While this book seeks to minimize recourse to violence, it recognizes that international law should not become complicit in oppression by criminalizing legitimate forms of political resistance. In the absence of an international definition, the remainder of the book explores how the international community has responded to terrorism in international and 'regional' treaties, the United Nations system, and in customary law. The final part of the book explores the distinctive prohibitions and crime of 'terrorism' in armed conflict under international humanitarian law.
The Appeals Chamber of the Special Tribunal for Lebanon (STL) recently issued its first major decision, setting out its interpretation of the elements of crimes under the STL's Statute, the definition of the crime of terrorism under customary international law, the application of the modes of individual liability and the permissibility of cumulative charging. The authors argue that the Appeals Chamber's decision is procedurally flawed because it was made possible only by an amendment to the Rules of Procedure and Evidence that is arguably ultra vires the Statute. They suggest that the expansion of the Appeals Chamber's powers jeopardizes the authority of the decision and sets a dangerous precedent that may ultimately be detrimental to the functioning of the Court. In relation to the crime of terrorism, the authors note that the Appeals Chamber's expansive approach to the interpretation of terrorism under Lebanese law provides the basis for a serious nullum crimen sine lege challenge, particularly given the clear legislative intent to apply the Lebanese form of the crime of terrorism. Similarly, the Appeals Chamber's definition of terrorism under customary international law is problematic in being both overinclusive and underinclusive. While the Appeals Chamber managed to avoid an overly formalistic and paralyzing approach to the formation of customary international law, its ultimate statement of the law lends itself to expansive interpretation and misuse by authorities seeking to repress opposition dissent. Other notable aspects of the decision, including the approach taken to modes of liability and cumulative charging are commented on in order to highlight the choices made by the Appeals Chamber and the issues that are likely to be revisited as proceedings before the Tribunal eventuate.
On 16 February 2011, the Appeals Chamber of the Special Tribunal for Lebanon (STL) handed down its unanimous Interlocutory
Decision on the Applicable Law in response to a number of questions put to them by the Pre-Trial Judge. The decision touched
on multiple legal issues arising from the court's unique jurisdictional attributes, including its jurisdiction ratione materiae over the crime of terrorism. This paper provides a commentary on two specific terrorism-related aspects of the decision:
(i) the court's finding that terrorism has crystallized to form a distinct international crime under customary international
law and (ii) its (re)interpretation of terrorism under Lebanese law (Article 314 of the Lebanese Criminal Code). In so doing,
it draws attention to the Appeals Chamber's unique approach to customary international law formation in light of prima facie differences in state practice and the implications of a fully fledged international crime of terrorism that includes a ‘transnational’
element. In addition, it highlights the Appeals Chamber's internationalist interpretative approach to domestic law but also
questions whether the STL should be deferential to the decisions and interpretations of Lebanese courts given its unique characteristics
which do not exist in any other international court. Due to its far-reaching implications, the decision merits the attention
of scholars and practitioners alike as it has the potential to affect both domestic and international approaches to, and prosecution
of, terrorism for many years to come.
When the subject of terrorism is discussed in the context of international law, the issue inevitably arises of how to define 'terrorism'. A substantial number of international conventions have been agreed which deal with various aspects of terrorism, but in all these conventions terrorism is defined in a way that is specific to the subject-matter of the particular convention. No universal definition of terrorism can thus be discerned from them. This approach has proved adequate in the past, but recent events, and the reactions to those events in the context of international law, have made it necessary for a comprehensive definition to be agreed. The first part of the article discusses this issue generally, and suggests a tentative but comprehensive definition of terrorism. The second part of the article discusses the fight against the financing of terrorism. The article discusses the 1999 Convention for the Suppression of the Financing of Terrorism, and the work of the Financial Action Task Force of the OECD. The article concludes that, though much good work has been done, there is still a long way to go in the fight against the financing of terrorism. Since it is difficult to consider together all the aspects of this broad subject a choice must be made from amongst its themes. At first sight, it is apparent that there is a problem with the nature of the definition of terrorism in relation to international law. What is terrorism and what is international law in application to terrorism? We need to know what it is that we are fighting against and what it is that international law needs to encompass. It is therefore a precondition of any useful discussion of terrorism to define it. (Section 1). In terms of the narrower field of the battle against the financing of terrorism, it seems that the instruments have not been adapted. The problem of the laundering of 'dirty' money is a big problem which has yet to be solved, quite simply because this money (analogous to the 'speculative bubble') is now intimately connected with the economic survival of people and even entire States (Section 2).
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This paper explores contemporary counterterrorism efforts as an instrument for attaining peace as a ‘global public good’. It notes the lack of an agreed definition of terrorism, the distinction between freedom-fighting and terrorism, and the issue of ‘excessive use of force’ by the state. It assessed the extent to which US counter-terrorism policy has influenced policy in the UN Security Council, and the shortcomings in Council policy that require redress. The paper concludes that counterterrorism will be successful only when a ‘global law enforcement’ approach prevails over the national security-driven ‘war-on-terror’ and when genuine efforts are undertaken to address the root causes of terrorism, including the forward basing of US forces in the Arab world.
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.
Terrorism can be defined as acts of violence directed against a civilian population or civilian objects for the purpose of spreading terror among civilians and with a view to intimidating persons in authority to submit to the demands of the perpetrators. Terrorism has been condemned by the international community and has indeed been recognized as a crime under customary international law. However, there are still those who believe that persons engaged in a war of liberation — that is, an armed struggle against colonial rule, foreign domination, or a racist regime — are entitled to resort to acts of terror in order to achieve their “noble objectives”, but following September 11th, that view has been discredited in several resolutions of the General Assembly on the United Nations and of the Security Council. Terrorism is not included in the subject-matter jurisdiction of the International Criminal Court (ICC) but can be prosecuted in the ICC as an added component of war crimes such as directing an attack against individual civilians not taking a direct part in hostilities. Terrorism is also not expressly included in the subject-matter jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (ICTY) but has been prosecuted in the ICTY under provisions in the Geneva Conventions of 12 August 1949 which prohibit acts of violence directed against civilians for the purpose of spreading terror in the civilian population. It should be noted, though, that terrorism does not only require the special intent to spread terror among the civilian population but also the further special intent of intimidating persons in authority to give in to the demands of the terrorists.
This article examines one of the most serious flaws of the Statute of the Special Tribunal for Lebanon (‘STL’): while it provides
that Lebanese domestic law is the sole source of crimes over which the STL will have jurisdiction, it at the same time applies
to these domestic crimes uniquely international forms of criminal responsibility, namely joint criminal enterprise and command
responsibility. By doing so, the Statute is in violation of the nullum crime sine lege principle, since it would allow for the conviction of persons who could not be held responsible under Lebanese law. The purpose
of this article is to highlight some ways out of this problem.
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.
Terrorism as an international crime
- Y Dinstein
Dinstein Y (1990) Terrorism as an international crime. Israel Yearb Hum Rights 19:55-73
The UN convention on the prevention and suppression of international terrorismed) International cooperation in counter-terrorism. The United Nations and regional organizations in the fight against terrorism
- A Gioia
La Cour Pénale Internationale: Un pas de géant (pourvu qu’il soit accompli…) Revue générale de droit
- L Condorelli
Are ad hoc tribunals an effective tool for prosecuting international terrorism cases?
- S L Hodgkinson
- SL Hodgkinson
Hodgkinson SL (2010) Are ad hoc tribunals an effective tool for prosecuting international
terrorism cases? Emory Int Law Rev 24:515-525
) I crimini di guerra e contro l’umanità nel diritto internazionale
- E Greppi
Judges gone astray-the fabrication of terrorism as an international crime by the special tribunal for Lebanon
- S Kirsch
- A Oehmichen
Kirsch S, Oehmichen A (2011) Judges gone astray-the fabrication of terrorism as an
international crime by the special tribunal for Lebanon. Durh Law Rev Online 1:1-20
Is ''terrorism'' worth defining?
- G Levitt
Levitt G (1986) Is ''terrorism'' worth defining? Ohio North Univ Law Rev 13:97-115
International cooperation in counter-terrorism. The United Nations and regional organizations in the fight against terrorism
- G Nesi
Nesi G (ed) (2006) International cooperation in counter-terrorism. The United Nations and
regional organizations in the fight against terrorism, Aldershot, Ashgate
Il contributo della Corte speciale per la Sierra Leone allo sviluppo del diritto internazionale
- C Ragni
Ragni C (2010) Il contributo della Corte speciale per la Sierra Leone allo sviluppo del diritto
internazionale. In: Oddenino et al. A (eds) La funzione giurisdizionale nell'ordinamento
internazionale e nell'ordinamento comunitario. Edizioni Scientifiche Italiane, Napoli,
pp 251-270
Il Tribunale speciale per il Libano: fondamento e competenza
- G Serra
Serra G (2008) Il Tribunale speciale per il Libano: fondamento e competenza. Rivista di diritto
internazionale 90:99-113
The exercise of criminal jurisdiction over international terrorists
- R Kolb
Kolb R (2004) The exercise of criminal jurisdiction over international terrorists. In: Bianchi A
(ed) Enforcing international norms against terrorists. Hart Publishing, Oxford-Portland,
pp 227-281
Terrorism: the definitional problem
- A Schmid
Schmid A (2004) Terrorism: the definitional problem. Case West Reserv J Int Law 36:375-419
Judicial lawmaking in an era of “proliferation” of international courts and tribunals: development or fragmentation of international law? (eds) Developments of international law in treaty making
- T Treves
International law: achievements and challenges
- T Treves
Treves T (2006) International law: achievements and challenges. Cursos Euromediterraneos
Bancaja de Derecho Internacional 10:45-270
Terrorisme et droit international
- Mj Glennon
- S Sur
Le droit international face au terrorisme. Editions Pedone
- K Bannelier
- O Corten
- T Christakis
- B Delcourt
Bannelier K, Corten O, Christakis T, Delcourt B (eds) (2002) Le droit international face au
terrorisme. Editions Pedone, Paris
The STL interlocutory decision on the definition of terrorism-judicial ingenuity or radicalism?
- B Saul
Saul B (2006) Defining terrorism in international law. Oxford University Press, Oxford
Saul B (2011) The STL interlocutory decision on the definition of terrorism-judicial ingenuity
or radicalism? Leiden J Int Law 24:651-654
Judicial lawmaking in an era of ''proliferation'' of international courts and tribunals: development or fragmentation of international law?
- T Treves
Treves T (2005) Judicial lawmaking in an era of ''proliferation'' of international courts and
tribunals: development or fragmentation of international law? In: Wolfrum R, Röben V (eds)
Developments of international law in treaty making. Springer, Berlin, pp 587-620
Fragmentation of international law: the judicial perspective
- Treves
Treves (2007) Fragmentation of international law: the judicial perspective. Comunicazioni e
Studi 23:821-875
- Icty Statute
ICTY Statute, contained in the annex to the Report of the Secretary-General Pursuant to para 2
of Security Council Resolution 808 (1993), UN Doc. S/RES/808 (3 May 1993).
- Prosecutor Icty
ICTY, Prosecutor v. Stanislav Galić, IT-98-29-A, Appeals Chamber, Judgment (30 November
2006), para 85, cf. Hodgkinson 2010; Van der Vyver 2010.
Terrorisme et droit international. Nijhoff, Leiden-Boston Graham K (2005) The security council and counterterrorism: global and regional approaches to an Elusive public good
- E Greppi
- Torino Utet
- M J Glennon
- S Sur
Greppi E (2001) I crimini di guerra e contro l'umanità nel diritto internazionale. UTET, Torino
Glennon MJ, Sur S (eds) (2008) Terrorisme et droit international. Nijhoff, Leiden-Boston
Graham K (2005) The security council and counterterrorism: global and regional approaches to
an Elusive public good. Terror Polit Violence 17:37-65
Terrorism according to the STL’s interlocutory decision on the applicable law a defining moment or a moment of defining?
- M J Ventura
- MJ Ventura