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February 22nd, 2011

Special Tribunal for Lebanon issues Landmark Ruling on Definition of Terrorism

by Michael Scharf*

The Special Tribunal for Lebanon (STL), which was set up in The Hague to prosecute those responsible for the 2005 bombing that killed former Lebanese Prime Minister Rafiq Hariri and 22 others, is the world's first international court with jurisdiction over the crime of terrorism. On January 17, 2011, the Tribunal's Prosecutor, Daniel Bellemare, submitted a sealed indictment for the pre-trial judge to confirm. The pre-trial judge, in turn, requested that the Appeals Chamber resolve fifteen questions related to the law governing the indictment. In response, the Appeals Chamber of the U.N.-established Special Tribunal for Lebanon handed down a landmark ruling on February 16, 2011, which is available here.

In their unanimous decision, the five STL Appeals Chamber Judges decided that "the Tribunal is authorized to construe Lebanese law [defining terrorism"> with the assistance of international treaty and customary law that is binding in Lebanon." Notably, the Appeals Chamber found "although it is held by many scholars and other legal experts that no widely accepted definition of terrorism has evolved in the world society because of the marked difference of views on some issues, closer scrutiny reveals that in fact such a definition has gradually emerged." (para 83).

According to the Appeals Chamber, the customary international law definition of terrorism "requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element." (para 85). Among the sources cited by the STL for this important proposition was an article published in volume 36 of the Case Western Journal of International Law (2004). (note 127).

This is the first time in history that an international tribunal has authoritatively confirmed the crystallization of a general definition of terrorism under international law. This is likely to affect the decades-long effort of the United Nations to promulgate a broadly acceptable definition of terrorism. It will also facilitate enforcement of the several counter-terrorism obligations imposed on all States by the UN Security Council in the aftermath of 9/11.

The Appeals Chamber also confirmed that the STL was "an international tribunal in provenance, composition, and regulation." (para 16). Consistent with this, the Appeals Chamber held that the STL is to apply the international modes of responsibility, including joint criminal enterprise liability, which the other international tribunals have employed. (paras 211-249). However, the Appeals Chamber concluded that the form of liability known as "JCE III" would not be appropriate for the STL to apply because it utilizes a negligence standard whereas terrorism is a specific intent crime. (para 249).

Finally, while the Appeals Chamber did not address the question, it follows from the above analysis that the STL is likely to find that head of state immunity is not applicable to its proceedings, as the Special Court for Sierra Leone did in the Charles Taylor case.



*Michael Scharf is the John Deaver Drinko-Baker & Hostetler Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. Under an MOU with the Office of the Prosecutor, the Case Western Reserve University School of Law War Crimes Research Office provides legal research memoranda on issues pending before the Special Tribunal for Lebanon, and several other international tribunals.

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