Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism under International Law?

Abstract

On 21 January 2011, the pre-trial judge of the Special Tribunal for Lebanon (hereinafter 'STL') posed several questions to the Appeals Chamber ('Chamber') 1 pursuant to Rule 68(G) of the Rules of Procedure and Evidence. (2) Three of these questions dealtwith the crime of terrorism. (3) (i) 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')? (ii) If so, is there an international definition of 'terrorism' and how should it be applied? (iii) If not, how is the Lebanese definition of 'terrorism' to be interpreted by the Chamber? Both the prosecution and defence submitted extensive briefs dealing, inter alia, with these questions. 4 Additionally, two amicus curiae briefs were submitted. 5 On 16 February 2011, the Chamber issued its (interlocutory) decision pursuant to Rule 176 bis (A). 6 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.