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Special Tribunal for Lebanon Defines "Terrorism"

This past week, the Appeals Chamber of the Special Tribunal for Lebanon (STL) handed down a unanimous decision answering several key legal questions posed by the Pre-Trial Judge. Of particular importance, the Appeals Chamber decided that (1) the tribunal will apply the Lebanese domestic definition of the crime of terrorism, while expanding certain elements of the definition in accordance with international conventional and customary law; and (2) will allow cumulative charging, with a preference for alternative charging, when “separate elements of the charged offences make these offences truly distinct.”

Of particular interest, the Appeals Chamber indicated the tribunal will apply the Lebanese definition of terrorism, which criminalizes terrorism as “(i) an act, whether or not constituting an offence under other provisions of the Criminal Code, [that] is intended to spread terror; and (ii) the use of a means liable to create a public danger.” Lebanese courts have interpreted the definition of “means” narrowly under an illustrative enumeration to the Criminal Code. The enumeration provides that “means” can include the use of “explosive devices, inflammable materials, poisonous or incendiary products, or infectious or microbial agents.” However, the Appeals Chamber found that, for the “unique gravity and transnational dimension of the crime at issue,” this list is not exhaustive, and may be expanded on. In other words, the Appeals Chamber found that the “only firm requirement is that the means used to carry out the terrorist attack also be liable to create a common danger, either by exposing bystanders or onlookers to harm or by instigating further violence in the form of retaliation or political instability.”

In order to come to the above conclusion, the Appeals Chamber interpreted Lebanese domestic law using international law that is binding on Lebanon, including the Arab Convention against Terrorism and customary international law on terrorism in time of peace. In President Cassese’s announcement of the ruling, he emphasized that the Appeals Chamber is satisfied that terrorism has risen to the level of customary internatio

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nal law.

Now that the Appeals Chamber has handed down it’s decision, the Pre-Trial Judge is expected to decide whether or not to confirm the indictment before him. If the indictment is confirmed, the tribunal’s next step will be to either summon the accused or issue an arrest warrant.

The STL was set up to investigate the 2005 assassination of former Prime Minister Rafik Hariri. After a complex preliminary investigation, the prosecutor submitted the sealed indictment on January 17, 2011. While the contents of the indictment are not public, news sources have speculated that members of Hezbollah may be the primary suspects. Hezbollah has denied any involvement in the 2005 attack, and has pledged to cut off all assistance to the international tribunal if any Hezbollah members are indicted including threatening withdrawal of the mandatory Lebanese funding for the tribunal. Additionally, due to rising tensions over the tribunal, 11 ministers withdrew from the coalition cabinet on January 12th forcing Prime Minister Saad Hariri, the son of the assassinated Rafik Hariri, to resign. The new Prime Minister Najib Mikati is forming a new cabinet and is backed by Hezbollah.

Despite Hezbollah efforts, the STL’s recent rapid progress in the last few weeks makes clear that the tribunal is not losing momentum. In President Cassese’s words, “we have proved that our Tribunal intends to be absolutely impartial, independent of any political pressure or interference or consideration, and simply dispense justice in the most fair manner, yet with all the necessary rapidity in the interest of any potential defendant and the Lebanese society at large.” The international community including the European Union and United Nations continues to encourage Lebanon to cooperate with the work of the tribunal.

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