Interlocutory Decision on the applicable law: terrorism, conspiracy, homicide, perpetration, Cumulative Charging (United Nations Special Tribunal for Lebanon, Appeals Chamber.

• Author: Bernhaut, Martin
• Position: Method of statutory interpretation and the substantive law of terrorism

I Factual background

The mandate of the United Nations (UN) Special Tribunal for Lebanon is to prosecute persons responsible for the attack of 14 February 2005 in Beirut, which resulted in the death of the former Lebanese Prime Minister Rafik Hariri and the death and injury of many more persons, as well as additional attacks connected with that killing. (1) The UN and the Republic of Lebanon first negotiated an agreement on the establishment of a hybrid international and domestic law tribunal pursuant to Security Council Resolution 1664 (2006). (2) Further to Security Council Resolution 1757 (2007), the Statute of the Special Tribunal entered into force on 10 June 2007. (3)

In the present case, (4) the Appeals Chamber was exercising its power under rule 68(G) of the Tribunal's Rules of Procedure and Evidence to clarify in advance the law to be applied by the Pre-Trial Judge and the Trial Chamber to enable them to rule on the indictment before them. (5) The Appeal Chamber's task was, thus, one of making legal findings in the abstract, without any reference to specific facts or defendants.

II The decision

The judgment of fudge Antonio Cassese, Presiding and Judge Rapporteur, outlined below, was adopted unanimously by all presiding members of the Appeals Chamber. The complex and extensive decision is significant for its identification of both the requirements of Lebanese law and the extent, if any, to which the application of that body of law is modified or overridden by the Tribunal's Statute. Crucial to the determination of that question was the issue of whether the relevant criminal law of Lebanon should be construed in light of international law.

The most important aspects of the decision are the Appeals Chamber's analysis of the relevant principles of statutory interpretation and the substantive law of terrorism to be applied, holding that although the Tribunal must look first to the Lebanese Criminal Code in this regard, international law binding upon Lebanon may also be relevant as an aid to interpretation. Controversially, the Appeals Chamber concluded that a customary rule of international law has now developed defining and outlawing terrorism, at least in time of peace. While that finding has been widely criticised by scholars, (6) it will no doubt serve as an authoritative statement, of the law, even if not strictly creating legal precedent.

This case note will outline the Appeals Chamber's: findings on the appropriate method of statutory interpretation to be applied by the Tribunal; findings on the definition of terrorism and the substantive law of terrorism to be applied; reconciliation of the modes of criminal responsibility contemplated by Lebanese law with those of international criminal law; and its analysis of whether charges brought against an accused should be stated alternatively or cumulatively. However, critical analysis of the decision will be limited to the most controversial of these matters, namely the appropriate method of statutory interpretation and the substantive law of terrorism.

A Interpretation of the Special Tribunal Statute

Given that the Statute entered into force pursuant to Security Council Resolution 1757, the Appeals Chamber found that in construing the Statute it was required take into account the statements made by members of the Security Council and its practice in relation to the adoption and implementation of that Resolution. As an overarching principle of interpretation, the Appeals Chamber held that it was bound to interpret the Statute in a way that 'best enables the Tribunal to achieve its goal to administer justice in a fair and efficient manner', failing which it should adopt that interpretation that is more favourable to the tights of the accused in accordance with the general principle of criminal law of favo rei ('in favour of the accused'). (7)

The implementation of the above principles of interpretation led the Appeals Chamber to conclude that article 2 of the Statute expressly and unequivocally requires the Tribunal to apply Lebanese law as the substantive law governing the crimes prosecuted within its jurisdiction. It held that in doing so, the Tribunal is bound to apply Lebanese law as interpreted and applied by Lebanese courts, which permits it to take into account international law binding upon Lebanon in accordance with the general presumption that Parliament does not intend to act in beach of international law. (8) It is the latent tension between the provisions of the Criminal Code and those of international law that ostensibly form part of the Statute--best typified by the contrast between articles 2 and 3 of the Statute--that informs much of the Appeals Chamber's decision. Indeed, much of the decision is concerned with the question of whether and, if so, to what extent and with what effect, the law of Lebanon may be held to have been overridden by international law.

B The applicable substantive criminal law

1 Terrorism

The Appeals Chamber observed that it is mandated under article 2 of its Statute to apply the provisions on terrorism contained in the Criminal Code, as well as articles 6 and 7 of the Lebanese law of 11 January 1958 on 'Increasing the penalties for sedition, civil war and interfaith struggle'.9 Accordingly, it concluded that the Tribunal must apply the criminal law of Lebanon and not international criminal law in order to define the crime of terrorism. However, it held that although the Tribunal may not apply international law directly, because of the express and unambiguous words of article 2 of the Statute, it may refer to international law--whether customary or treaty-based--in order to interpret and apply Lebanese law. It did so on the basis of the Tribunal's status as an international tribunal, the transnational character of the circumstances giving rise to its establishment, and the fact that the customary rule is binding upon Lebanon as a member of the international legal order.

The Appeals Chamber observed that Lebanese courts have generally placed a narrow interpretation on the notion of the means used to commit a terrorist attack under article 314 of the Criminal code. That provision provides as follows:

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. The Appeals Chamber found that Lebanese courts have tended to find that the means which are 'liable to create a public danger' under article 314 of the Criminal Code are limited to those that are expressly stated in the Criminal Code, to the exclusion of all other means. According to this interpretation, the means listed in article 314 are exhaustive, rather than illustrative, such that an attack perpetrated by way of an implement such as a firearm, knife or letter-bomb is not one which can amount to a terrorist attack for the purposes of article 314. In other words, 'the special intent to spread terror will not suffice, by itself, to make an offence terrorist in. nature, if the means used are not those required by Article 314'. (10)

Further, having conducted an extensive analysis of the jurisprudence 011 terrorism, the Appeals Chamber Found that a customary rule of international law has evolved defining and outlawing transnational terrorism in times of peace. Importantly, that rule was found not to contain any such limitation on the means used in carrying out an attack. (11) Accordingly, it declined to adopt the interpretation of article 314 propounded by Lebanese courts in favour of one devoid of any such limitation and asserted to be in accordance with international law. The customary rule, as applied by the Tribunal, was held...