Guest Post from Xavier Rauscher: The Crime of Terrorism as Customary International Law?

The Special Tribunal for Lebanon’s Appeal Chamber delivered a very important decision (PDF) on Wednesday 16 February 2011 following a request by the Pre-Trial Judge to clarify certain points of law, not least of which the definition of terrorism to be applied.

The decision is 152 pages long, and is incredibly rich and dense over many points of law. We will focus here however on the definition of terrorism, which is subject to much debate, and now a rather daring decision by the Special Tribunal for Lebanon.

Indeed, the Appeals Chamber of the STL, presided by renowned international jurist Antonio Cassese, has declared that the crime of terrorism in peacetime is now part of customary international law, making it – in principle at least – binding on all States.

What is Customary International Law?

For those unfamiliar with the sources of international law, customary international law is considered to be the second most important normative source after international treaties and conventions, and reflects the general practice of States. Just like customs in human society, customary international law is binding to all the members of the international community (States). It is composed of two elements: an objective aspect, that is an identified consistent international practice on the part of States, and a “psychological” element known as opinio juris: the belief that “the practice is rendered obligatory by the existence of a rule of law requiring it” (North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para 77).

The STL and the Crime of Terrorism

The Special Tribunal for Lebanon is a special hybrid tribunal set up by the UN Security Council and the Lebanese authorities to judge those responsible for the assassination of former Lebanese Prime Minister Rafik Hariri, considered widely as an act of terrorism. Therefore at the center of its judicial mandate lies the Crime of Terrorism, its raison d’être to quote Wednesday’s decision (§42).

As a hybrid tribunal, the STL is bound by Article 2 of its Statute to apply Lebanese law, including on the definition of terrorism. However, the Tribunal decided that it could, in applying Lebanese law, interpret it in the light of existing international law, whether conventional or customary.

The limits of the Lebanese definition of the Crime of Terrorism

It is Article 314 of the Lebanese Criminal Code that defines the Crime of Terrorism. Article 314 provides:

Terrorist acts are all acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.

From this definition, the Appeals Chamber has identified two elements: i) a specific intent to spread terror, which is commonly found in most definitions of terrorism around the world, and ii) objective elements of using means that are liable to cause a public danger.

It is the second element that poses a problem for the STL and makes the Lebanese law so restrictive: the law and the interpretation that was made of it by Lebanese jurisprudence mean that an act can only be qualified as terrorism if the means used in the act may cause a “public danger” – interpreted as a means which may harm innocent victims who are not specifically targeted. For example, a 1995 decision by a Lebanese court has judged that the assassination of a religious leader was not terrorism because guns, not bombs, were used.

As the Appeals Chamber notes at §54, such an interpretation of article 314 could mean that the assassination of public officials and their families would not qualify as “terrorist” acts if such attacks were carried out with means which are not likely per se to cause a danger to the general population. And, although it is not clearly stated, this could mean that the assassination of Rafik Hariri, even though a bomb was used, would not be qualified as an act of terrorism under Lebanese law should it be considered that the bomb did not pose a danger to the general population. That is, understandably, something of a problem for the STL.

A Way Out: Crimes of Terrorism as Customary International Law

Faced with this unfortunate obstacle, the Tribunal turned to international law for the solution: “[w]e conclude […] that although the Tribunal may not apply those international source of law directly because of clear instruction of Article 2 of the Tribunal’s Statute, it may refer to them to assist in interpreting and apply Lebanese law.” (§62)

After looking at international conventions ratified by Lebanon with directly applicable definitions of terrorism – in particular the 1998 Arab Convention for the Suppression of Terrorism – and finding none, the Tribunal turned to international customary law. It found that, despite the notorious lack of consensus in the international community regarding the Crime of Terrorism, “we are unanimously satisfied that a customary rule of international law has evolved on terrorism in time of peace” (STL President Antonio Casseses speech, p. 7).

Sparing you the legal details of the reasoning (which will be discussed in a longer upcoming post over at The International Jurist), the Appeals Chamber found that this customary crime of terrorism in times of peace is constituted by:

  1. the perpetration of a criminal act or the threat of such act;
  2. the intent to spread fear among the population or to coerce a national or international authority to take some action or to refrain from taking it;
  3. a transnational element – that is, an international character.

Invoking the fact that the list of means in the Lebanese Criminal Code is illustrative and not exhaustive, and that the unique gravity and transnational dimension of the facts the Tribunal is considering (Cassese speech, 11), the STL has decided it would interpret and apply Lebanese law with these customary elements in mind.

Legacy and Controversy

This is very interesting on many aspects, but most importantly  because it is the first time that an international (albeit hybrid) court has made such a clear-cut decision on the issue of terrorism. What is more, they suggest evidence of international customary law, specifying the customary elements of the crime, which would be binding to all States.

It remains to be seen what legacy this decision will have. Simply put: will it stick? Only time will tell just how much an impact this interlocutory decision will have, and controversy among lawyers and jurists over the reasoning and procedures behind the decision has already erupted (see Marko Milanovic’s great post over at EJIL: Talk! and the discussion in the comments section, as well as Dov Jacobs’ post at his blog Spreading the Jam if you’re interested in deeper legal discussion).

As for me, I intend to publish my own more legalistic take on this recent development over at The International Jurist in the next few days.

Xavier Rauscher is a recent LLM graduate who specializes in international law with a focus on international counter-terrorism. He regularly blogs at The International Jurist, and you can follow him on Twitter @xrauscher_

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