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Transcript
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Case Number:
Before:
BEFORE THE APPEALS CHAMBER OF THE
SPECIAL TRIBUNAL FOR LEBANON
STL-ll-01II
Judge Antonio Cassese, Presiding Judge
Judge Ralpb Riacby
Judge David Baragwanatb
.Judge Aftf Cbamsedinne
Judge KjelI Erik Bjornberg
Date of document: 31 January 2011
Original language: English
Distribution instructions: Public
DEFENCE OFFICE'S SUBMISSIONS PURSUANT TO RULE 176BIS(B)
Defence Office Mr. Franr;ois Roux, Head of the Defence Office
B. Interpretation of the Rules with regards to the fundamental rights of the accused 2
C. Scope and interpretation of Rules 68(G) and 176bis and the protection of fundamental rigbts of the accused 3 i. Rule 68(0) and the protection offundamenlal rights of the accused 3 ii. Rule I 76bls and the protection of fundamental rights of the accused 4
m. GENERAL CONSIDERATIONS ON APPLICABLE CR:IMINAL LAW 5
A. Verification of legality: The Secnrlty Council did not create new crlmillnllnw nnd need for judlcinl verification of statutory law 6
B. Relevant principles of interpretntion 8
C. The text of the Statute 10
D. Tbe context and travau." prlparllto{res 12 i. The position of the Government of Lebanon 12 ii. The positJon of the Uruted Nabons 14 ili. Conclusion 15
E. Object and purpose 16
F. I nterpretative function of the principle of legality 16
G. Conclusions as regard applicable crimlnallnw 18
H. Relevance aud npplicablllty of International law in the Lebanese criminallegai system 18
IV. TERRORIST ACTS 24
A. "Terrorism" under Lebanese criminal law 24 i. The definitlon 24 H. Accessibility and foreseeability of the definitJon 26 iil. ConclUSIOns 27
B. Irrelevance of Internntiollnllaw 27 I. No jurisdictional authonty to apply international law in regard to the crime ofterronsm 27 Ii. Irrelevance of customary mtemationallaw 28 iii. Irrelevance of the 1998 Arab Convention 37 a. Preliminary observations 37 b. ConclUSions 40
V. CONSPlRACY
A. COllsplracy to commit on oet of terrorism under Lebanese low
B. Conspiracy under cllstomary lnternationnllaw
C. Conspiracy nnd Article 3(1)(b) of the Tribunal's St.'1tute I. No Junsdlcbon over JCE 11. JCE and conspiracy are normatlvely distinct
VI. INTENTIONAL HOJ\lUCIDE WITH PREMEDITATION AND ATIEMPTED INTENTIONAL HOMICIDE WITH PREMEDITATION 46
A. Applicable law 46
n. Intentional homicide with premeditation 46
C. Attempted homicide with premeditation 48
VII. MODES OF RESPONSABILITY 49
A. Applicable criminnllnw 49
B. "Ha,mollisatioll" of Articles 2 aud 3 the Tribunal's Statute 50
C. Conclusions 53
VIll. CUMULATIVE CHARGING AND PLURALITY OF OFFENCES ("CONCOURS DE QUALIFICATIONS") 53
A. Cumulative charging in internntional practice - General considerations 1. Cumulative charging before the ad hoc Tribunals ii. Cumulative cha! gmg and plurahty of offences at subsequent intemational(ised) tribunals
B. Cumulative cbarging under Lebanese law
C. Cumulative charging and human rights
D. Preliminary conclusions
E. Suggested safeguards
IX. CONCLUSION
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31 January 2011
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I. PROCEDURAL BACKGROUND
1. On 17 January 2011, the Prosecution submitted an indictment to the Pre-Trial Judge
pursuant to Rule 68(A) of the Rules of Procedure and Evidence ("the Rules") for the
purpose of confmnation of charges.
2. On 21 January 2011, acting pursuant to Rule 68(G), the Pre-Trial Judge submitted to the
Appeals Chamber preliminary questions regarding the applicable law, which he deems
necessary in order to examine and rule on the indictment. l
\
3. On the same date, the President issued a Scheduling Order requesting the Prosecutor and
the Head of the Defence Office to file written submissions no later than 31 January 2011
in regard to those questions.2 Furthermore, the Prosecutor and the Head of the Defence
Office were ordered to file "skeleton arguments" in response to the other party's
submissions no later than 4 February 2011. The Scheduling Order also set the date of 7
February 2011 for oral arguments on these issues.3
4. Up to the date of the present filing, copies of the indictment and supporting material have
not been provided to the Defence Office.
5. The Defence Office hereby makes its submissions in response to the President's
Scheduling Order. These submissions are made in the framework of and subject to what
is said below in paragraph 7-8 of the present filing.
n. PRELIMINARY OBSERVATIONS
A. Limitations to DO's participation
6. The Defence Office takes the view that it falls within the remit of its mandate, as set out
in Article 13(2) of the Statute and Rule 57(F) of the Rules, to make submissions regarding
these questions, subject to a number of qualifications outlined below.
7. The Defence Office submits that it is not hereby taldng the place or replacing any future
defendant, nor is its involvement in any way qualifying or lessening the need for and the
right of the accused to a genuinely adversarial hearing to litigate each and all of the
I Order on Preliminary Questions Addressed to the Judges of the Appeals Chamber, pursuant to Rule 68 raragraph G of the Rules of Procedure and EVIdence.
Scheduling Older, President, 21 January 2011 ("Scheduling Order"), p. 3. 3 Scheduling Order, p. 3.
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preliminary questions. The Defence Office's submissions are therefore subject to the
following:
(i) They could not have the effect or be interpreted in such a way as to undermine, limit
or interfere with the effective enjoyment by a suspect or accused of his fundamental
rights as guaranteed by the Statute.4
(ii) They should not constitute, nor should be interpreted as, a waiver or as an
abandonment of a right or procedural entitlement of a suspect or accused person. In
particular, its submissions should not in any way preclude or limit the ability of any
potential suspect or defendant to raise a particular argument or objection. This is
particularly true of any position which a suspect or an accused might wish to take in
relation to the legality or otherwise of the creation of this Tribunal.
8. In its attempt to assist the Appeals Chamber, the Defence Office has sought to provide
relevant submissions in relation to those aspects of the Pre-Trial Judge's questions which,
it deemed were both consistent with the Defence Office's mandate and which do not risk
interfering with strategic decisions of future defendants. In this respect, The Defence
Office has refrained from making submissions which, in its view, might be reasonably
open to dispute on the part of future defendants. For the same reason, The Defence Office
has refrained from making submissions on subjects or issues which, in its view, are too
closely tied to the factual allegations underlying the charges and the evidence which
allegedly supports them to which The Defence Office has not been granted access. Such
submissions would therefore not be sufficiently informed and would unnecessarily risk
prejudicing future accused.
B. Interpretation of the Rules with regards to the fundamental rights of the accused
9. The Rules of the Special Tnbunal for Lebanon ("the Tribunal") are subsidiary norms,
which are subject to and must be interpreted in accordance with the Statute.5 In particular,
Article 28(2) of the Statute specifies that Judges are bound to adopt, interpret and apply
the Rules in a manner that is consistent with their overall duty and responsibility to ensure
a fair and expeditious trial for the accused.6
4 Article 16 of the Statute. S See, e.g., Prosecutor v Milosevic, Decision on Assigned Counsel's Motion for Withdrawal, 7 December 2004, para. 13 and fn. 47; Prosecutor v Haradmaj, Decision on Ramush Haradinaj's Modified Provisional Release, 10 March 2006, p. 21, fn 141. 6 See also, Prosecutor v Blagojevic, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 7 November 2003; Prosecutor v Vojis/av Sese/j, Decision on the Financing of the Defence of the Accused, 30 July 2007, paras. 33-36, 49; Prosecutor v B/agojevic, Decision on [ndependent
10. Pursuant to Article 28 of the Statute, the Judges of the Tribunal have the authority to
adopt Rules of Procedure and Evidence7 and, according to paragraph 2 "[i]n so doing, the
judges shall be guided, as appropnate, by the Lebanese Code of Criminal Procedure, as
well as by other reference materials reflecting the highest standards of international
criminal procedure, with a view to ensuring a fair and expeditious trial."s Furthennore,
Rule 3 of the Rules also provides indications as regard principles of interpretation
pertaining to the Rules, in particular Rule 3(B).
11. In light of the above, the Rules must be applied and interpreted in a manner that is
consistent with the text and spirit of the Statute and, in particular, with the fundamental
rights of the accused that are guarnnteed therein. 9
C. Scope and interpretation of Rules 68(G) and 176bis and the protection of
fundamental rights of the accused
12. The principles of interpretation outlined above are relevant to interpreting Rule 68(G) and
Rule 176bis.
i. Rule 68(G) and the protection of fundamental rights of the accused
13. Under Rule 68 as originally drafted, no issue going to the merit of the case was subject to
any sort of preliminary litigation. With the amendment of that Rule - and the addition of
paragraph (G) - and subject to the discretion of the Pre-Trial Judge to exercise his
authority under that Rule, legal issues relevant to the merit of the case (as they might
affect, for instance, the nature of evidence establishing the charges or the availability of a
particular defence) are now subject to a preliminary judicial process to which the
potential defendant 1S not a party. Because the issues now raised by the Pre-Trial Judge
could materially affect the case of potential defendants, the Appeals Chamber mllst
ensure that Rule 68(G) and Rule 176bis are mterpreted in such a way as to guarantee the
effectiveness of their ftmdamental rights. Particularly relevant here are the right of any
defendant to adversarial proceedings10 and the right to be tried in hislher presence.
Counsel for Vidoje Blagojevlc's Motion to Instruct the Registrar to Appomt New Lead and Co-Counsel, 3 July 2003, para. 112; Prosecutor v Milutinovic et ai, DeCISion on Interlocutor Appeal on Motion for Addillonal Funds, 13 November 2003, para. 21. 7 See Article 28(1) of the Statute. 8 Emphasis added. 9 See, in particular, Articles 16 and 22 of the Statute. 10 See e.g., Vermeulen v Belgium, Judgment of 20 February 1996, ECtHR, para. 33 ("That right means in principle the opporttmlty for the parties to a criminal or civil tnal to have knowledge of and comment 011 all evidence adduced or observations filed, even by an independent member of the national legal service, with a
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il, Rule 176bis and the protection of fundamental rights of the accused
14. Judges sitting in plenary have demonstrated an awareness of the risks posed to the rights
of the accused by the procedure in Rule 68(G), by allowing for submissions by the
Defence Office and also for the right of future defendants to request reconsideration of
the Appeals Chamber's decision in Rule 176bis. Because of the nature of the questions
submitted by the Pre-Tria1 Judge, the Defence Office submits that some of the rights of
potential defendants affected by this process could still be rendered ineffective despite
Rule 176bis. Accordingly, the Defence Office submits that a number of supplementary
safeguards should be put in place by the Appeals Chamber to guarantee the effectiveness
of these rights.
15. In particular, the Defence Office submits that the Appeals Chamber should interpret its
mandate pursuant to Rule 176bis in such a way as to provide the following safeguards:
(i) The Appeals Chamber's ruling pursuant to Rule 176bis should do no more than
provide general guidance to the Pre-Trial Judge as regards applicable law. The
ultimate decision as regard the defmition of crimes, forms of liability and other legal
issues relevant to the confirmation process should remam exclusively with the Pre
Trial Judge in accordance with his exclusive responsibility to "evaluate the
charges".ll
(ii) Any future defendant should be entitled to request a complete, un-conditional and un
qualified right to litigate each and all of the issues which he considers relevant to any
ofthe matters now subject to the Rule 176bis proceedings.
16. Concerning the safeguard mentioned under point (ii) above, the Defence Office submits
that by interpreting "reconsideration" in its technical sense,12 Rule 176bis(C) could
violate the fundamental rights of the accused, and particularly, his right to adversarial
view to influencmg the court's deciSIOn" (see, among other authorities and mutatis mutandis, the following judgments: Ruiz-Mateos, previously cited, p. 25, para. 63; MeMiehael v. the United Kingdom, 24 February 1995, Sedes A no. 307-8, pp. 53-54, para. 80; and Kerojiirvi v. Finland, 19 July 1995, Series A no. 322, p. 16, para. 42)." - emphasis added); Goe v Tlu-key, Judgement of 11 July 2002, ECthR, paras 56-57; Kress v France, Judgement of7 JlUle 2001, ECtHR, para. 65. 11 Explanatory Memorandum to the Rules of Pl"OCedure and Evidence, para. 12(ii),25 November 2010 12 See, e.g., Prosecutor v Bizimungu et. al., Decision on Defendant Bicamumpaka's Motion for Reconsideration of Oral Decision Regarding VIOlation of Prosecutor's OblIgatIOns Pursuant to Rule 66(8) of the Rules of Procedure and Evidence, 7 February 2008, para. 4. In some cases, the test has been plu-ased somewhat more loosely. See, e.g., Prosecutor v Haraqlja and Monna, DeCision on Haraqlja and Monna Request for Reconsideration of Schedulmg Order and for Certification for Appeal, 29 May 2008, p. 2 whele the Chamber notes that a Chamber has the inherent JWlsdictlOn to reconsider a prevIOus decision whele there has been a clear error of reasoning or if particular circumstances exist that Justify reconsideration in order to prevent an injustice and that such circumstances may include new facts or arguments that have ansen since the issuance of a decision.
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proceedings since matters that are directly relevant to his case and which might materially
affect that case are effectively litigated in his absence (but in tlle presence of the
Prosecutor) and are put beyond his reach unless he can meet the procedural threshold set
by the law of reconsideration (as described above). The reason why "reconsideration" in
Rule l76bis(C) may not be equated to either "reconsideration" in its technical sense is
plain to see. "Reconsideration" in the technical sense pertains to a situation where there is
an identity of parties in the original proceedings and those where reconsideration is being
sought. In other words, the party that is asking the Chamber to reconsider a previous
decision had the opportunity, during the initIal phase of the proceedings, to state its
position in full in relation to the original decision. In such a case, the moving party was
part of the original proceedings and all of his relevant trial rights were therefore fully
respected (his right to be heard, to be tried in his presence and to have an adversarial
hearing).
17. The situation is altogether different in the context of Rule 68(G)-176bis proceedings: the
accused is absent and has no opportunity to mal{e any submissions in relation to the issues
relevant to these proceedings, and as stated above the Defence Office's involvement
cannot and should not be assimilated to participation by a suspect or defendant.
18. His right to "reconsideration" under Rule 176bis(c) must therefore entitle him to an
automatic and unqualified right to a full re-hearing of these issues if and when he appears
before the Triblmal (or if there is a trial in absentia) and if he considers these issues to be
relevant to his case. In that sense, the right to seek reconsideration pursuant to Rule
176bis (C) is comparable in nature and effect to the unqualified nght of a defendant tried
in absentia to get a re-trial (unless he waives that right). 13
19. In light of the above submissions, compliance with the fundamental rights of the accused
demands that any defendant who would appear before the Tribunal should be entitled to
request a complete, unqualified and adversarial re-litigation of the issues that are now the
subject of Rule l76bis proceedings.
m. GENERAL CONSIDERATIONS ON APPLICABLE CRIMINAL LAW
13 Cassese, International Criminal Law (OUP, 2nd ed), at 390 ("the accused has the right to appear in court at any moment and request that proceedings be commenced again, even if he has already been convicted; in other words, he has the right to obtain from a court that has heard lus case 'a fresh determination of the merits of the charge' (Colozza v. Italy, §29; Krombach v. France, §§85, 87); indeed, 'the authorities have a positive obligation to afford the accused the opportunity to have a complete rehearing of the case in his or her presence' (Krombach v. France, §87).'~. See, also, Trechsel, Human Rights in Criminal Proceedings, at 254.
20. As previously detailed, the Defence Office's stated position as to the applicable criminal
law set out below should not be interpreted nor be considered as reflecting the position of
potential defendants. In particular, it should not undermine nor preclude their unrestricted
right to raise arguments with regard to the legality of the Tnbunal, the legal nature of the
Statute or issues pertaining to applicable criminal law.
A. Verification of legality: The Security Council did not create new criminal law
and need for judicial verification of statutory law
21. When adopting Resolution 1757, the Security Council did not create new criminal law
and nor was that its intention. Instead, the Council effectively brought into force a body
of rules that the Government of Lebanon (and the United Nations) had hoped would come
into force as a result of their joint agreement followed by the necessary process of
. Parliamentary approval in Lebanon. This was not to be the case, therefore the Security
Council intervened to bring that body of rules into effect by adopting Resolution 1757. To
determine what body of rules it was that the negotiating parties had foreseen for the
Tribunal, which came into force as a result of Resolution 1757, both the text of the Statute
and the circumstances leading up to its adoption are relevant.
22. Before turning to that question, the first matter to note is that whatever body of rules the
Lebanese Government and the United Nations had intended to adopt, they could not
validly have agreed to bring into force crlmmal prohibitions that did not exist at the time
of the acts or which for another reason were not applicable to those who might stand trial
before the Tribunal.
23. Whatever the intentions of the parties might have been in that regard, the Tribunal will,
therefore, have to verify that statutory crimes and forms of liability existed at the relevant
time and were applicable to potential defendants (two requirements that must be kept
separate). The need to ensure compliance of statutory law with the principle of legality
explains, for instance, that the ad hoc Tribunals were required to ensure that the
prohibitions contained in their Statute (crimes and forms of liability) reflected and were
consistent with "rules of international hwnanitanan law which are beyond doubt part of
customary law".14 This is also why, at Nuremberg, Judges of the International Military
14 See, for instance, regarding the creation of the ICTY, the Report of the Secretary-General Pursuant to Paragraph 2 of se Res. 808, 4 May 1993 ("Secretary-General Report 808"), para. 29, noting the following: "in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Secunty Council would not be creating or purporting to "legislate" that law. Rather, the International Tribunal would have the task of applymg existing international human~arian law". See,
Tribunal (IMT) verified that the law of the Charter had been applicable to the accused at
the time relevant to the charges15 despite the fact that the Tribunal Was technically bound
to apply the law of the Chart~r.16
24. In the context of verifying the existence and applicability of a criminal prohibition to
(future) defendants at the relevant time, it is the principle of legality that serves as the
ultimate limit to the Tribunal's permissible jurisdictional reach: the principle of legality is
the underlying principle that should be relied on to assess the subject-matter jurisdiction
of any criminal tribunal, domestic or international. 17
25. In all cases where a tribunal created after the facts cannot be satisfied "beyond doubt,,18
that a statutory prohibition existed at the time of the offence under the relevant body of
criminal law and that it was applicable to the accused, it must decline to apply that
prohibition to preserve justice and to shield the accused against the unfairness of
retroactive criminallaw. 19 This is so regardless of the existence of a statutory prohibition
which would theoretically have allowed for criminalisation as, to borrow the language of
a United States Military Tribunal in Nuremberg, anything in the statute of a court in
excess of existing applicable law would be a utilisation of power and not of law?O
26. Individual international and tribunals with "international character" apply different bodies
of law to determine the existence and define crimes and forms of liability which are,
statutorily, within their respective jurisdictions: customary intemationallaw (in the case
also, ibid, para. 34; Prosecutor v. Kordic and Cerkez" Decision on joint defense motion to dismiss the amended ind.Jctment for lack of jurisdiction based 011 the limited jurisdictional reach of arncles 2 & 3 ("Articles 2 and 3 JW'isdiction Decision',), 2 March 1999, para 20; Prosecutor v. Ojdanic, Decision on Dragoljub Ojdanic's motion challenging jurisdiction- joint criminal enterprise ("Ojdanic JCE Decision"), 21 May 2003, para. 9; and L. D. Johnson, 'Ten Years Later: Reflections on the Drafting', 2(2) JIC! 368 (2004) IS See, e.g., Opinion and Judgment, IMT, p. 48 Red Series ("The Chru1el' is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal. .. it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.") http://www.loc.gov/rr/tidlMilitary Law/pdfi'NT Nazi-opinion-judgment.pdf. See also Memorandum for Judge Biddle and Judge Parker, 5 October 1945 (referred to in G. Mettraux, "Trial at Nuremberg", in W. Schabas and N. Bernaz, Rout/edge Handbook of International Criminal Law (2010), p. 10. 16 IMT Judgment,refernng to the various paragraphs of A!1icle 6 of the Charter and noting that these provisions "are binding upon the Tribunal as the law to be applied to the case" and noting that the law of the Charter is decisive, and binding upon the Tribunal". See generally Q. Wright, 'Wru' Criminals', (1945) 39 American Journal of International Law 257. 17 Kordic and Cerkez, Articles 2 and 3 Jurisdiction Decision, 2 March 1999, para. 20. 18 Secretary"General Report 808, para 34. 19 See, e.g. Prosecutor v. Vaslljevlc, IT-98-32-T,Trial Judgment, 29 November 2002, paras 193-204. For the same reason, methods of submarine warfare lIsed by Germany during WWII and charges against Doenitz at Nuremberg did not lead to a conviction as the Tribunal was not satisfied that those methods of warfare had been criminalized at that time. 20 Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No. 10 ("Hostage case"), Vol. XI, p 1240.
of the ad hoc tribunals21), a mixture of customary international and domestic law (Special
Court for Sierra Leone and the Extraordinary Chambers in the Court of Cambodia) and,
in the case of this Tribunal, domestic criminal law only. This controlling law sets the
limits of what law these tribunals are competent to apply in the exercise of their
jurisdiction ratione materiae. This controlling law is also applied by the tribunals to
ensure and verify that any crime or mode of liability provided in their Statute and charged
against the accused did in fact form part of the controlling law at the time relevant to the
charges. To protect defendants against retroactive application of criminal law and to
ensure that it remains within the boundaries of its jurisdictional mandate, the Tribunal
will, therefore, have to ensure that any crime or mode of liability which forms part of the
charges existed under Lebanese criminal law at the time relevant to those charges. One
author has quite rightly pointed out in that regard that - "[t]he situation with the STL is
exactly the opposite from that in Tadlc. From the standpoint of the principle of legality,
the only pertinent legal system is the Lebanese one [ ... ],,?2
27. In the present case, the process of addressing the Chamber's questions, therefore, requires
answers to two preliminary questions:
(i) what is the body of law which the Statute says should apply to determining the nature
and scope of the Tribunal's jurisdiction ratione materiae? and
(ii) did the crimes and forms of liability provided for in the Statute exist under that body
of law at the time relevant to the charges and was it applicable to the defendants?
28. As discussed further below, the answer to the first question is inescapable: Lebanese
criminal law is the only body of criminal law which the Statute permits and directs the
Special Tribunal to apply. As for the second question, it will be shown that the Statute is
going further in some respects than applicable Lebanese criminal law in relation to certain
forms of participation so that the Tribunal will have to refrain from applying these to
protect the right of the accused not to be subject to retroactive law.
B. Relevant principles of interpretation
29. The Defence Office now turns to consider the question of the law that the Tribunal was
mandaled to apply to these crimes and forms of liability relevant to its jurisdiction.
Answering this question requires interpreting the Statute of the Tribunal.
21 See footnote 14. 22 M. Milanovic, "An Odd Couple - Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon" (2007)5 JICJ 1139, 1145. ("Milanovic: An Odd Couple'')
FQQQ1/ilQl1QI31/RQQQ)iH RQQQZl1~/I!N, .4, 30. When discussing applicable principles of interpretation, different phases of the
interpretative process must be distinguished:
• When interpreting Resolution 1757, principles of interpretation relevant to
interpreting resolutions of the Security Council must be applied.23
• When interpreting the text of the Statute, international practice provides for a rather
incoherent melange of interpretative methods, which combine principles of interpretation
applicable to treaties and rules of interpretation specific to criminal law?4 These
principles are relevant only, however, to the initial and preliminary dctermination of what
law is applicable before the Tribunal: once it has been established (as the Defence Office
submits) that Lebanese criminal law applies ratione materiae, the principles of
interpretation applicable to that legal system will apply to any further interpretative
endeavour before the Tribunal in relation, for instance, to the definition of statutory
crimes and forms of liability (and when verifying their existence and applicability at the
relevant time). Pure logic and the necessary coherence of that regime render this
conclusion unavoidable. Methods of interpretation that apply to a certain type of norms
(e.g., human rights treaty norms) could not be used to interpret other types of legal norms
that serve a different purpose and are subject to other principles (e.g. Lebanese criminal
law). This consideration stems in part from the necessary coherence of any regime of
norms and from the principle of legality; it may also clearly be gleaned from Lebanese
judicial practice?5 When interpreting Lebanese criminal law for the purpose of
identifyIng the elements of crimes and forms of liability that are relevant to the Tribunal's
jurisdiction (and when verifying that they existed under Lebanese law at the relevant
time), the following principles are fundamental to the interpretative process: strict
interpretation of criminal law including the prohibition of interpretation of a clear text
("interdiction d'interpreter un texte clair"),26 the prohibition against extension of the text
beyond the intention of the legislator,27 and prohibition of interpretation by analogy 28
23 See, M. Wood, "The Interpretation of Security Council Resolutions", (1998) 2 Mw: Planck YE UNL 73. 24 See generally W. Schabas, "Interpreting the Statutes of the Ad Hoc Tribunals", in A. Cassese et. al. (eds), Man's Inhumanity to Man (2003), 847-888. 2~ See Articles 1 to 11 of the Lebanese Criminal Code. See, generally, "Cdm. Cass. Decision 83 of 9 March 1962, Criminal Encyclopedia Alia, n0974.p. 254 and 255". 26 Cass. Crim. Decision of 15 November 1973 and 31 January 1972, Alia, no 604, p. 242. 27 Cass. Crim DeCision of6 February 1964, Revuejudiclaire libanaise - 1963, p 1191. 28 Dr. Mahmud Najib Husni, Explanation of Criminal law, general section, Al Halabi, Part 1, p. 134 (nanslated from Arabic). See also, Lebanese crim. Cass. 6th chtunber, Decision n02241 2001, of 11/1012001 (translated from Arabic) and Criminal Chamber of the Court of Cassation, Sixth Chamber, Decision 142, 9 November 1999, re-printed in Les arrets de la Cour de Cassation, (Sader Publishers, 200 I).
31. Based on the text of the Statute, the joint intentions of the Government of Lebanon and
the United Nations, as well as the context of its adoptlOn, only one conclusion is possible:
Lebanese criminal law is the sole body of criminal law relevant to determining whether a
statutory crime or form of liability existed at the relevant time; and the only body of law
relevant to defming those.
c. The text of the Statute
32. Any interpretative process must take the text in question as its starting point. The first
relevant element that is apparent from the text of the Tribunal's Statute is that unlike the
Statutes of other internationa1(ised) criminal tribunals, its jurisdictional provisions contain
no explicit reference to international criminallhumanitarian law. For interpretative
purposes, this silence is significant in that it creates a strong presumption that
international criminallhumanitarian law is not relevant to the Tribunal's jurisdiction?9
And so it is not: no reference is made to international criminallhumanitarian law in these
provisions because the view was taken that the Tribunal should not apply international
criminallhumanitarian law ratione materiae.3o
33. Article 2 of the Statute only refers to the "Lebanese Criminal Code" and "Lebanese law".
These express references to Lebanese criminal law - combined with the absence of any
statutory reference to any other body of law31 - makes it clear that Lebanese criminal law
was intended to be the only body of criminal law relevant to determining the scope of the
Tribunal's jurisdiction ratione materiae. Article 2, which deals generally with the issue of
"[a]pplicable criminal law", makes it clear that "[t]he provisions of the Lebanese
Criminal Code" are relevant and determinative, not just as regard punishable offences
within the Tribunal's jurisdiction, but also, inter alia, to "criminal participation", i.e.,
criminalized modes of liability, and "conspiracy".
34. There is another clear statutory indication that Lebanese criminal law is the sole
applicable law when it comes to the Tribunal's crimes and forms of liability is Article 5
of the Statute (non bis in idem). Unlike similar provisions of other international criminal
tribunals, this provision does not provide for an asymmetrical regime (i.e., a regime that
differs dependmg on whether the original tnal took place before the mtemational tnbunal
29 Canada-Term of Patent ProteCtion Report of WTO Appellate Body, WT/DS170/ABIR (2000), para. 78. See for an illustration of the application of that pnncipie of interpretation, e.g., Sovereignty over Pulau Lltlgan and Pu/au Sipadan (IndonesiaIMaiaysl!\) [2002] ICJ Reports 625, at 648, para 42. 30 See below section "D. The context and travaux prl!paratoires" (paras. 38-50). 31 See for an illustration of the interpretative effect of such an omission, House of Lords, HlSCOX v Ollthwazthe [1992] 1 AC 562, regarding the use of "made" rather than "Signed".
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or a local court) which is justified in these Tribunals by the fact that they apply a different
body of rules (international crimes and forms of liability) than domestic jurisdictions
(domestic crimes and forms of liability). 32 Article 5 of the Statute, by contrast, provides a
unitary ne bis regime whereby new proceedings are excluded absolutely - upwards or
downwards - if and where the accused has already been tried.33 Implicit in the absence of
specification of the law under which the accused was tried in the first trial (unlike other
comparable provisions in the Statutes of other international tribunals) is the fact that the
same body of law is understood to be applicable to the original trial (whether it takes
place at the STL or in a Lebanese tribunal) and any latter trial (whether in a Lebanese
tribunal or at the STL). That body of law is Lebanese criminal law.
35. There is another basic principle of interpretation which is of assistance here: "a treaty
should be interpreted as a whole and, in particular, its sections and parts should be read as
a whole".34 Accordingly, Articles 2 and 3 of the Statute must be read together. Such an
approach also makes sense in regard to a penal text because of the need for internal
coherence between applicable crimes and forms of liability. It is therefore only logical
that the same body of law (in this case, Lebanese criminal law) should apply to derming
both crimes and forms of liability. Such a proposition has been duly accepted in
international practice:
(i) The Statute of the Special Court for Sierra Leone gives the Court jurisdiction over two
sorts of crimes, serious violations of international humanitarian law (articles 2-4) and
crimes under Sierra Leonean law (article 5). Article 6 of the Statute, which provides
for modes of criminal participation, goes on to provide for different modes of liability
depending on the whether the crime charged falls in the first or second category. For
the second category (i.e., crimes under Sierra Leonean law - article 5), Article 6(5)
J2 See, generally, Articles 9-10 ICTV Statute; Articles 8-9 ICfR Statute; Articles 8-9 SCSL Statute; Article 20 ICC Statute; Art. 13 of Cambodia-UN ECCC Agreement; Section 4 of UNTAET Regulation No 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000 (as amended by RegulatIon 2001/25 of 14 September 2001); SectIOn 11 ("Ne bis in Idem") of UNTAET Regulation No. 2000/15 ("On the establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences"). See also, C. Van den Wyngaert and T. Ongena, 'Ne bis in idem Principle, Including the Issue of Amnesty', in A Cassese et al. (eds.), The Rome Statute of the International Crz'minal Court: A Commentary (2002),705; I. Tallgren and A. Reisll1ger Coracini, "Atticle 20: Ne bis in idem", in O. Triffierer et al. (eds), Commentary on the Rome Statllte of the International Criminal Court (2nd ed, 2008), 669; C. Van Den Wyngaert and G. Stessens, 'The Illtemational Non His In Idem PrinCiple. Resolving Some of the Unanswered QuestIons', (1999) 48 ICLQ 779. 33 Subject to the 'sham tnal' exception. 34 Report of the WTO Appellate Body, Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products, WTIDS981 AB/R, para. 81. See, also, Fitzmaurice et al., The Issue of Treaty Interpretation and the Vienna Convention on the Law of Treaties (2010) at 154-155 Section Ill, Yearbook of the ILC (1964), Vol n, p. SS-56, para. 12. (http l/untreatv.un.org/ilc/publicattonslyearbookslYbkvolumes(e)IILC 1964 v2 e.pdf)
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provides that "[i]ndividual criminal responsibility for the crimes referred to in article
5 shall be determined in accordance with the respective laws of Sierra Leone". In
other words, international modes of liability apply to international crimes and national
modes of liability apply to national crimes.
(ii) The Same principle has been judicially enforced at the ECCC, which has
acknowledged that the theory of joint criminal enterprise could not apply to domestic
offences (but only to international ones).35
It is clear, therefore, that the same body of law - Lebanese criminal law - must
necessarily apply to both the crimes (Article 2) and forms of liability (Article 3).
36. "Good faith" in interpreting the Statute, a recognised principle of interpretation, would
also prevent any interpretation that would read into these statutory provisions an element
(intemationallaw) that was intentionally omitted.36
37. Whilst the interpretative process would need to go no further to determine the law
applicable to crimes and forms of liability under the Tribunal's Statute, the Defence
Office will proceed to consider other indications that further reinforce its observations on
that point.
D. The context and travaux preparatoires
38. Understanding the process whereby the Statute came to be adopted and the discussions
that took place in that context helps determine what body of law was intended to apply to
proceedings before this Tribunal.
i. The position of the Government of Lebanon
39. During the negotiation of what was to become an agreement between Lebanon and the
United Nations, the Lebanese Government made it clear that it was its intention that
Lebanese criminal law - and no other body of criminal law - should be applied by the
future Tnbunal. This fact was clearly understood by the United Nations, the
3S Prosecutor Y. leng Sary et al., 002/19-09-2007-ECCC-OCIJ, Order on the Applicahon at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, 8 December 2009, para. 22; Prosecutor Y Ieng Sary et aI., 002/19-09-2007-ECCC/OClJ (PTC38), Decision on the Appeals agamst the Co-Investigative Judges Order on Joint Criminal Enterprise, 20 May 2010, paras 98 et seq, in particular para 102 36 See, e.g., R V Immigration Officer at Prague Airport e.:c parte European Roma Rights Center [2004] UKHL 55, in particular, Lord Steyn (at para 43.). http://www.parliament.the-stationeryoffice.co.11k1palld200405/Idj udgmVld041209/roma-l.htrn
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Government's negotiating partner. In its Report of 21 March 2006, for instance, the
Secretary-General noted the following:
"Consultations with the Lebanese authorities made it clear that applying Lebanese
substantive crirninallaw would play an important role in ensuring that the tribunal
would have a national dimension.,,37
40. When interpreting resolutions of the Security Council, "limitations of sovereignty may
not be lightly assumed".38 This holds true with regard to Resolution 1757. The record
mal(es it clear that when adopting this resolution, the Council intended to take away no
more of Lebanon's sovereignty than the Government had agreed to negotiate away with
the United Nations.39 In particular, and as noted above, the Lebanese Government had not
agreed to release any of its sovereignty as would have resulted from an agreement to see
crimes committed on its territory judged under a body of criminal law not applicable in its
own jurisdictions. Instead, the Government made it clear that the country's own criminal
law should apply. Having not agreed to give the Tribunal jurisdiction outside of
applicable Lebanese criminal law, and the Council having shown no mtenbon of going
beyond this, the sovereignty of Lebanon could not be further eroded by a process of
interpretation of the Statute that would result in another body of law or a distorted version
of Lebanese criminal law being applied before the Tribunal. Existing practice supports
the view that limiting criminal prosecutions to those crimes that have received explicit
recognition in national law is best able to protect and show some deference to the
sovereignty of the state, in this case Lebanon.4o
41. This view is entirely consistent with the principle of interpretation in dubio mitius which
calls for deference to the sovereignty of a state when interpreting a text that is binding on
it.41 According to that principle, when interpreting a legal text "that meaning is to be
preferred which is less onerous to the party assuming an obligation, or which interferes
less with the territorial and personal supremacy of a party, or involves less general
restrictions upon the parties".42 In this instance, the less onerous meaning (because it
37 Report of the Secretary-General pursuant to Paragraph 6 of R.esolubon 1644 (2005), 21 March 2006, S12006/176, para 8. 3S B. Simma et al. (eds), The Charter of the UN - A Commentary (2002), p. 713, para. 35. 39 See, generally, Velbatim Record, Security Council, 56851h Meeting, 30 May 2007, SIPV.5685. 40 See, e.g., Nulyarlmma v. Thompson, Federal Cowt of Australia (1999) 165 ALR 621, para. 52 (Whitlam J).and W. Ferdinandusse, Direct Application of International Criminal Law in National Courts (2005) p. 99, in Earticular, fn 626.
I Oppenheim's International Law (91h ed, 2008), Vol. 1, Part 1, p.1278. 42 Ibid, referring, inter alia, to Article 3. Paragraph 2 of the Treaty Of Lausanne (Frontier between Turkey and Iraq), PCIJ Advisory Opinion (1925), Series B, No. 12, p. 25; Access of Polish War Vessels to the Port of
takes less of Lebanon's sovereignty away from its courts and Parliament and sees the
Tribunal merely applying Lebanese laws on Lebanon's behalf) is the one where the
Statute is interpreted as applying only Lebanese criminal law to the Tribunal's
proceedings.
ii. The position ofthe United Nations
42. As a negotiating partner of the Lebanese Government, the United Nations had acceded to
the Lebanese request that Lebanese criminal law should determine the scope of the
Tribunal's jurisdiction. In its Report of 15 November 2006, for instance, the Secretary
General pointed out that-
"[w]hile in all of these respects the special tribunal has international
characteristics, its subject matter jurisdiction or the applicable law remain national
in character, however.'.43
43. In the same report, when referring to both paragraphs of Article 3 of the Statute, the
Secretary-General made it clear that the fortns of liability that were mentioned therein
were understood to form part of existing domestic Lebanese law at the relevant time (and,
in the case of those provided for in paragraph 2, part of international law too ).44
44. As a negotiating partner of the Lebanese Government, the United Nations had acceded to
the Lebanese request that Lebanese criminal law should determine the scope of the
Tribunal's jurisdiction. In an "Addendum" to the Secretary-General's Report, the Under
Secretary for Legal Affairs stated that as far as applicable law was concerned,
"[t]he prosecution and punishment of the crimes under the jurisdiction of the
tribunal shall be governed by Lebanese criminal law, specifically the provisions
mentioned in article 2 of the draft statute".45
Danzig, PCIJ Advisory Opinion (1931), Series A/B, No. 43, p. 142 and Nuclear Tests (Australia v. France), lCJ Judgment (1974), p. 267 .. 43 Report of the Secretary-General on the establishment of a special tnbunalfor Lebanon, 15 November 2006, Sl2006/893, para.7 in fine. See, also, Statement by Mr Nicolas Michel, Undel-Secretary-General for Legal Affairs, the Legal Counsel, at the informal consultations held by the Security Council on 20 November 2006 (addendum to Report of the Secretary-General on the establishment of a special tribunal for Lebanon), 21 November 2006, S12006/8931 Add. I. 44 Report of the Secretary-General on the establishment of a special tnbunal for Lebanon, 15 November 2006, S12006/893, para 26. 4S Statement by Mr Nicolas Michel, Under-Secretary-General for Legal Affairs, the Legal Counsel, at the informal consultations held by the Security Council on 20 November 2006 (addendum to Report of the Secretary-General on the establishment of a special tribunal for Lebanon), 21 November 2006, SI2006/893/Add.l ("Addendum to SO report").
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45. The Security Council appeared to be also of the view that international law should have
no relevance to the Tribunal's ratione materiae jurisdiction. A participant in the drafting
of the Statute made it clear that -
"the UN Security Council chose to establish an international tribunal mandated to
prosecute the series of terrorist attacks conducted in Lebanon exclusively
according to the Lebanese Penal Code. As a matter of fact, according to the
Statute currently in force, the Special Tribunal will exclusively apply the Lebanese
Penal Code.'#>
46. He also described the Security Council's intentions as regard the jurisdiction of the
Tribunal in the following terms:
"the real aim of the UN Security Council was to strictly confine the Special
Tribunal - which is, to date, the only international tribunal empowered to hear
cases of terrorism - to the application of domestic laws, thus rendering
problematic the possibility of considering terrorist offences as crimes failing under
international criminallaw".47
47. During the discussion of Resolution 1757, the representative of China to the Security
Council made observations that fully support that view:
''The establishment of the Special Tribunal is, in essence, Lebanon's own internal
affair. Lebanon's domestic laws provide the legal basis jor the operation.'048
48. That position and understanding is also duly accepted by the UNs, which has pointed out
that the Special Tribunal for Lebanon is -
"unique among the UNs and the UNs-assisted tnbunals in that the applicable law
is stated to be Lebanese criminal law, not any provision ojinternationallcfw,.49
iii. Conclusion
49. Whilst the Statute did not come into force as a result of an agreement between Lebanon
and the United Nations, but as a result of Resolution 1757, the views and intentions of the
Lebanese Government and the United Nations remain most directly relevant since it is
their combined intentions that have resulted in the text of the Tribunal's Statute.
46 C. Sad er, "A Lebanese Perspective on the Special Tribunal for Lebanon", (2007) 5 (5) JIC.! 1083, at 1087 (footnote omitted and emphasis added) ("Sader: Lebanese Perspective"). 47 Ibid, at 1088. 48 Security Council, 568511t Meeting, 30 May 2007, SIPV.5685, at 4 (emphasis added). 49 Report of the Secretary General (Piracy Tribunal), 512010/394, 26 July 2010, Annex l, para.! 1 (emphasis added).
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Furthermore, the relevance of their agreement is expressly acknowledged in the Preamble
of the Statute.
50. Based on their joint understanding on that point, all suggested references to international
law in relation to the Tribunal's jurisdiction were removed from the Statute. so
51. The absence of any reference to intemationallaw in the jurisdictional provisions of the
Statute is therefore what it appears to be: a clear and considered rejection of that body of
rules insofar as pertains to the Tribunal's jurisdiction ratione materiae. This conclusion
results both from the clear text of the Statute and from the joint intentions of the Lebanese
Government and the United Nations.
E. Object and purpose
52. This interpretation is also entirely consistent with the object and purpose of the Tribunal,
namely, "to assist Lebanon" in its search for truth and in holding those responsible to
account and "to support Lebanon" in its effort to bring culprits to justice (Security
Council resolution 1757). No course could better help achieve that end than the
application of Lebanon's own laws to the prosecution and punishment of those who have
committed crimes that are the subject of the Tribunal's jurisdiction.
F. Interpretative function of the principle of legality
53. The principle of legality plays a significant part in the interpretative process of any penal
text. From this principle, domestic and international legal orders have extracted a number
of general principles which are directly relevant to the interpretative process of criminal
law. Particularly prominent in this context are the principle of strict interpretation and the
prohibition of interpretation by analogy.Sl The requirement of "strict" interpretation of
so Concerning the removal of all references to the 1998 Arab Convention on Suppression of Terrorism, see below and, generally: Sader: Lebanese Perspective, p. 1087 and references cited therein; N. Nabil Jurdi, "The Subject-Matter Jurisdiction of the Special Tnbunal of Lebanon", (2007) 5 (5) JICf 1125, at 1128, in particular footnote 18 ("Jurdi: Subject Matter"). Concerning the removal of any reference to "crimes against humanity", Report of the Secretary-General on the establishment of a special tribunal for Lebanon, 15 November 2006, S/2006/893, paras. 23-25 and Statement by Mr Nicolas Michel, Addentum to SO report. See also Jurdi: Subject Matter at 1128, in particular footnote 12; Milanovic: An Odd Couple, p. 1141, both emphasising the insistence of one particular member of the Security Cowlcil to have these references removed. SI See, e.g., Prosecutor v. Delallc et. al., Judgment, 16 November 1998, para. 408 ("Celebicl Trial Judgment'') See, also, 8askaya and Okfuoglu v. Turkey, ECtHR, 8 July 1999, para. 36. (Baskaya, ECtHR); Commission on Human Rights, Sub-CommiSSIOn on the PlOmotion and Protection of Human Rights (55th Session), "Specific Human RIghts ]ssues: New Priorities ]n particular Terrorism", 8 August 2003, ElCN.4/Sub.2120031WP.1, para. 67. ("Commission 011 HLUnan Rights: New Priorities") (http://www2.ohchr org!enghshlissueslterrOlisrn/docs!WP l.pdf ) ElCN .4/Sub.212003/WP.I, para. 67. ("Commission on Human Rights: New Priorities"). See also Dr. Mahmud Najib Husni, Explanation of Criminal law, general section, Al Halabi, Part 1, p. 134 (title unofficially translated from Arabic). See also, Lebanese
criminal law requires the tribunal not to try to fill a void when an omission was deliberate
on the part of the legislator.52 In present context, international law could therefore not be
read into the Statute when it is absent from it and was in fact intentionally set aside.
54. The principle of legality also demands that conduct that does not clearly and evidently fall
within the realm of criminalized conduct should be regarded as falling outside the
criminal prohlbition.53 Therefore, modes of liability. that would enlarge the scope of
criminalized conducts as was applicable in Lebanese law at the time of the act or modes
of liability which would change or dilute the requirements of liability under that law
would be impermissible under that principle even if written into the Statute. Wherever a
doubt remains as to the meaning of a particular crime or form of liability exists, the
interpretation most favolu-able to the accused must apply. 54
55. The principle of legality also requires that only the law that existed at the time could be
applied.55 Criminal law can therefore never apply retroactively to the prejudice of the
accused.56 Compliance with the principle of legality also requires that the law should be
applied as it is, not as it should or could be.
56. Furthermore, general requirements of "foreseeability" and "accessibility" are recognized
under both Lebanese and international human rights law.57 To be applicable in a criminal
trial, a criminal offence (or mode of liability) should therefore possess a definition that is
"precise, unequivocal and unambiguous".58 This requirement, of course, would apply
crim. Cass. 6111 chamber, Decision n0224/2001, of 11110/2001 and Criminal Chamber of the Court of Cassation, Sixth Chamber, Decision 142, 9 November 1999, re-printed in Les arrets de la eour de Cassation, (Sader Publishers, 2001). S2 Celebici Trial Judgment, paras 408-413. See also Lebanese Cass. Crim. 6th Chamber, deCIsion n0127, of the 19/10/1999, Sader Cassation, 1999, p 483. S3 Celebicl Trial Judgment, paras 409-411. Lebanese Cass. Crim. 6th Chamber, decision n041, of the 14/0212001, Sader Cassation, 2001, part 1, p. 66. 54 Celebici Trial Judgment, para 413. See also The Prosecutor v. Kaylshema and Ruzindana, Judgment and Sentence, 21 May 1999, para 139: "If in doubt, a matter of mterpretation should be decided in favour of the accused; in this case, the inclusion of premeditation is favourable to the accused." See also Dr. Samir Alia, Explanation of the Cnrninal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 83 (title unofficially translated from Arabic). See also Baskaya, ECtHR para 36 (and references therem). ss See, e.g., Commission on Human Rights: New PriOlities, para 65. SIj See Celebicl Ttial Judgment, para. 408, see Commission Oil Human RIghts: New Pnonties, para. 67. See also Articles 3, 5,8, 10, 11 of the Lebanese Cnmil1al Code. See also Beirut Appeal Court, 7th Chamber, Decision n0214, of28/4/1983, AL Adel 1983, Part 3-4, p. 473, cited in thc Lebanese climinal Code, Antoll1c pubhcations 2009, p. 20. S7 See, e.g., SW v United Kingdom and eR v. United Kingdom, 22 November 1995, ECtHR, para. 32 (SW), para. 34 (CR). S8 Commission on Human Rights: New Prioritics paras 65 and 67. See also Human Rights Committee, [General Comment W 29, "States of emergency (article 4}", UN Doc. CCPR/C/21/Rev.lIAdd.ll of31 August 2001j, para. 7; Kokkinakis v. Greece, Judgment of25 May 1993, ECtHR, para. 52.
inter alia, to the definition of the crime of "terrorism" as discussed below (and any other
crime or form of liability provided for in the Statute).59
57. These principles will be directly relevant to verifying which crimes and forms of liability
provided for in the Statute existed under Lebanese criminal law at the time and what their
definition is under that law.
G. Conclusions as regards applicable criminal law
58. Therefore, it may be concluded that Lebanese criminal law, as defined, applied and
understood in the Lebanese legal order - is the only applicable criminal law relevant to
ensuring compliance with the principle of legality and, to define the crimes and forms of
liability over which the Tribunal may validly exercise its jurisdiction.
59. In light of the fact that Lebanese criminal law applies, the principles of interpretation that
are relevant to this law will also be those relevant to any interpretative effort on the part
of the Tribunal to define crimes and forms of liability provided in the Statute. In other
words, the Tribunal is not permitted and has not been jurisdictionaliy enabled to import
into the interpretative process methods or means of interpretation that are not recognised
as applicable to the interpretation of Lebanese criminal law in the Lebanese legal order.
H. Relevance and applicability of international law in the Lebanese criminal legal system
60. Considering that Lebanese criminal law applies to proceedings before this Tribunal, it is
necessary to consider whether international law could apply as "domesticated" Lebanese
law and, if so, to what extent. International law does not impose any obligation on States
that would contravene such an approach.6o As noted by Professor Denza,
"[n]ational constitutions are therefore free to choose how they give effect to treaties
and to customary international law. Their choice of methods is extremely varied".6l
S9 See, e.g., Specific Human Rights Issues: New Priorities in Particular Terrorism and Counter-Terrorism - A Preliminary Framework draft of principles and guidelines concerning human rights and terrorism, Commission on Human Rights, 22 June 2005, E/CNA/Sub.2/2005/39, para. 33(c); Corrumssion on Human Rights, 28 Dec 2005, E/CNA/2006/98, Promotion and Protection of Human rights - Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering ten'orism, para. 46. rCommission on Human Rights: Counter 109 Terr0l1sm Report") o See, generally, M. Mendelson, "The effect of customary international law on domestic law: An overview",
2004 (4) Non-State Actors and International Law 75 ("Mendelson, Customary Law''). 61 E. Denza, "The Relationship between international and nationallnw", in Yi. Evans (ed), International Law (2006) at 423 "There are almost as many ways of giving effect to international law as there are national legal systems" (at 429)
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61. Several countries refuse to apply customary law or treaties in their internal criminal law
order without a process of "domestication".62 Others apply it in all sorts of ways and
under different conditions.63 As discussed further below, Lebanon may be said to
generally exclude the applicability of international law in its criminal order - with a
number of qualified exceptions.
62. An issue of general relevance to both treaties and customary law pertains to the question
of hierarchy of nonns between domestic and international law. National approaches vary
considerably from one country to the other.64 As far as Lebanese law is concerned, the
difference between civil law on the one hand and criminal law on the other must be
clearly apprehended Article 2 of the Code of Civil Procedure provides that in Case of
contradiction between Lebanese civil law and international treaties (ratified by Lebanon),
the latter should prevai1.65 Lebanese law does not provide for a similar hierarchical
relationship with regard to customary law.
63. By contrast to the situation under Lebanese civi/- or, rather, non-penal - law, Lebanese
criminal law does not provide for a provision similar in nature or effect to Article 2 of the
Code of Civil Procedure. As far as Lebanese criminal law is concemed, the Lebanese
Criminal Code is the only relevant source of penally-sanctioned nonns.66 As far as
criminal law is concerned, there cannot, therefore, be a contradiction between Lebanese
criminal law and competing international law as only what is criminalized in the
Lebanese Criminal Code is pertinent to its internal criminal law system. Existing judicial
practice suggests that a treaty (even one that has been ratified) may not be applied in the
internal penal order unless its provisions have been "domesticated" through a legislative
process of implementation.67 In that sense, they cannot normatively contradict Lebanese
criminal law. And if they become part of - domesticated - Lebanese law, contradiction
becomes nonnatively impossible.
62 See, e.g., for illustrations regarding the non-application of the customary crime of genocide: Nulyarimma case (per Wilcox and Whitlam JJ) (Australia); Military Court of Appeal, In re N, 26 May 2000 and Military Cour de Cassation, In re N, 27 April 2001 (Switzerland), (refe\l'Cd to in Ferdinandusse, Direct Applicability, at 41) 63 As far as international criminal law is concerned, sec, generally, Ferdinandusse, Direct Applicability. 64 Mendelson, Customary Law, at 82. As Professor/Judge Cassese has pointed out, there are many countries, for instance, where customary law does not form part of the law of the land: A. Cassese, "Modem Constitutions and International Law", 192 RCADI (1985-III) 335 cited in Meudelson, Customary law, at 82 6S Article 2 of the Code of ClVll procedure reads as follows: "CoUlis shall abide by the principle of hierarchy of norms. In the event of conflict between the provisions of rnternatIonal treaties and the provisions of ordinary law, tbe former has supremacy over the latter in application. Courts may not declare the acts of tbe legislative authority invalId on the grounds that ordmary law does not conform to the proviSIOns of the ConstItution or international treaties." 66 See, again, Article 1 and 3 of the Lebanese Cnmrnal Code. 67 See footnote 72.
64. Finally, even where international law is capable of playing a part in the legal criminal
systcm, reliance thereupon is conditioned by the over-arching requirement of compliance
with the principle of legality.68 In no case could reliance upon international law result in a
violation of that principle and the elements that form part of that principle.
65. The principle under Lebanese law is that a treaty signed by Lebanon has no legal effect in
the internal legal order unless it has been ratified by Parliament69 and has been
implemented internally through a legislative process of "domestication". This principle is
applied with particular stringency in the context of criminallaw?O This state of affair is
the consequence of Lebanon's strict attachment to the requirement that criminalisation of
conduct may only result from an express prohibition to that effect in the Criminal Code
(principle of legality as applied in Lebanon) and its strict adherence to separation of
power (constitutional order).71 These two requirements - parliamentary ratification and
implementation of treaty provisions into domestic law - have been accepted judicially.
For instance, the Criminal Chamber of the Court of Cassation has refused to regard
conventions as directly applicable in the criminal order until its provisions had been
incorporated into Lebanese law.72
66. Lebanese criminal practice also seems to suggest that international treaties play a limited
interpretative role as far as criminal law is concerned. In particular, it results from
Lebanon's strong attachment to the idea of separation of powers, which is shared by
many other States, that only those treaties which have been ratified by Lebanon are relied
upon by the Lebanese judiciary to interpret Lebanese law.
68 See above, paras. 53-57. 69 Under Article 52 of the Lebanese Constitution: "The President of the Republtc negotiates international treaties in coordination with the Prime Minister. These treaties are not considered ratified except after agreement of the Councll of Ministers. They are to be made known to the Chamber whenever the national interest and security of the state permit. However, treaties involving the finances of the state, commercial treaties, and in general treaties that cannot be renounced every year are not considered ratified lmtil they have been approved by the Chamber." In this regard, then Lebanese President wrote to the Secretary-General on 15 May 2007, explaining the process of ratification of a treaty under Atticle 52 of the Lebanese Constitution. See Letter dated 16 May 2007 from the Secretary-General to the President ofthe Security Council, SI2007/286, pp. 2-3. 70 See, e.g., Criminal Chamber of the Court of Cassation, Sixth ChalDber, Decision 142,9. November 1999, reprinted in Les arrets de la Cour de Cassation, (Sader Publishers, 2001). In that case, it held that a father could not be convicted for a crime against his daughter in violation of the 1989 UNs Convention on the rights of children because that Convention, whilst it had been signed and ratified by Lebanon, had not been domesticated through the adoption of implementing legislation in the internal legal order as might have allowed for the cnmmallzation of such conduct ID the internal legal order. 71 See, in particular, Arbcle 1 of the Lebanese Criminal Code (and its insIstence tbat defuution be provided by Statute) and Article 3 of the Lebanese Crinunal Code (making it clear that the amendment of the definition of an offence may only be done by Statute). See also, below, discussion regardIng the applicability of customary law, paras. 71-74. 72 Criminal Chamber of the Court of Cassation, Sixth Chamber, DeciSIOn 142, 9. November 1999, re-printed in Les arrets de la Cour de Cassation, (Sader PublIshers, 2001). This position has also been supported extrajudicially. See Seminaile du 15 September 2009, p. 7.
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67. The Defence Office is of opinion that, since the only direct source of Lebanese criminal
law is the Lebanese Criminal Code:
(i) Lebanese judicial practice demonstrates that only those treaties and conventions that
have been ratified by Lebanon may be relied upon to interpret Lebanese law. This is,
again, the logical consequence of Lebanon's strong attachment to the idea of
separatIon of powers.
(ii) Only provisions from ratified treaties that aie drafted with precision and clarity could
serve an interpretative function. Also, and obviously, a provision of a convention
could only be relied upon in the interpretation process for the limited purpose that this
provision is intended to serve.
68. Reliance upon a treaty for the purpose of interpretation would be imperm.lssible if it
results in the criminalisation of a particular conduct or the dilution of existing
requirements of liability, as provided in the Lebanese Criminal Code. Interpretative
reliance upon a treaty or its provisions is only warranted and permissible where it is done
in favour of the accused. This explains, for instance, the readiness of Lebanese courts to
rely in criminal trials upon international human rights instruments to interpret and protect
the fundamental rights of the accused.
69. Reliance upon the provisions of a treaty ratified by Lebanon for the purpose of
interpreting the terms of the Criminal Code could not, therefore, result in a dilutIon of
definitional requirements (e.g., a lowering of the applicable mens rea), in an extension of
circumstances in which liability could be incurred (e.g., through the enforcement of a new
form of liability) or in the disappearance of an excuse, a defence or a mitigating factor
(e.g., as regard the application ofimmunities).
70. Finally, two general additional points should be made regarding reliance upon
international law to interpret domestic law:
(i) First, recourse to international law for interpretative purposes does not mean that
domestic law must be interpreted in the same way as international law (i.e., that the
practical effect of that canon of interpretation would be the adoption of international
norms through the process of interpretation). Instead, and at most, it would only
require an interpreter to interpret domestic law in a way that does not violate
international law. As noted elsewhere in this brief, intemationallaw does not require
domestic legal regimes to define "terrorism" in any particular way and States have in
fact exercised their discretion in that regard in many varied ways. The same is true of
criminalised forms of participation: each state is free to regulate this matter as it sees
fit for the purpose of its internal order. No state could be said to be violating
international law merely because it is applying a definition of terrorism that is
different from the one which is sometimes said by scholars to exist under international
law.
(ii) Second, interpretative reliance on international law may not result in the importation
into the domestic legal order of an element of international law that that does not form
part of the domestic legal order.73 This is because the interpretative process may not
result in a displacement or amendment of the norm to which it applies.
71. The Lebanese legal order is not alone in excluding the criminalisation of conduct through
the direct or indirect application of customary law. Instead, rules of customary
international law do not quite so readily come into force in domestic legal orders and
many such systems expressly reject that possibility.74 Academic literature agrees that suc~
rejection is common and perhaps even dominant among jurisdictions from the civil-law
tradition, such as Lebanon.75
72. With one limited exception discussed below, the Lebanese legal order does not permit
direct application of customary international law in its criminal legal order. That is both
because of its constitutional arrangement and because of its strict attachment to the
73 See, generally, R v Secretary of State for the Home Department, ex parte Brine! [1991] UKHL 4, and particularly per Lord Bridge of Harwich at page 2: ''When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international trC<'Ity obhgations is a mere canon of construction which involves no importation of international law into the domestic field." It should be noted that this matter was nol a criminal case, so that the import of that "canon of interpretation" ID the Btitish criminal legal order could not be inferred from that decision." 74 This is the case, for mstance, of Germany, Switzerland, France, the Netherlands (see W. Ferdinandusse, Direct Application of International Criminal Law in National Courts, at, respectively, 30, 41, 65-66, 67-69, and references cited therein) 7$ See, e.g., Professor Ambos has noted that "in general, the contInental system or the civil law ... does not permit a direct application of international criminal norms or a transformation of these norms through a reference to an international instrument due to the requirements of the prmciples nullum crimen sine lege and nulla poena sine lege" (Kai Ambos, Implementacion del estatuto de Rorna en la legislaction nacional', in K. Ambos and E. Malarino (eds.), Persecucion penal de crimenes internacionales en America Latina y Espana (Montevideo :2003), p. 26. - unofficial translation from the Spanish). FichetBoyle and Mosse have further noted that "la repression des infractIOns internationales definies par les conventions ne peut se faire sans le concours des normes de droit interne" (Fichet-Boyle and Mossl:, Fichet-Boyle, I. and M Mosse, 'L'obligation de prendre des meSlU'es internes necesSc'lires a la preveutlOn et la repression des infractions', in: A. Pellet (ed.) Droit international penal (Paris: Pedone, 2000), p. 872. 2000). Stirling-Zanda points out that it is commonly assumed that "the adoption of Implementing legislation is ... a Unlversal prerequisite for any application of criminal law principles in the national legal order" and goes on to note that "[c]riminal law is a branch of the law deeply rooted in the culture of a society. One only has to thmk of the many different, strongly held national views on the concept of particlpallon in a crime" (S. Stirling-landa, 'The deterntination of customary international law in European courts (France, Germany, Italy, The. Netherlands, Spain, Switzerland), (2004) 4 Non-State Actors and International Law 3, p.6).
requirement of a written legal basis for the purpose of criminalisation.76 The prohibition
of direct application of customary law in criminal matters has been duly recorded in the
Lebanese legal hterature:
• "It is worth noting that, in the criminal field, one cannot talk about criminal "customs"
and/or criminal ''usage'', unless provided for by law.'.77
• ''The principle of legality of offences and penalties implies that the Criminal Code has
only One source, which is the law or the written text. Every written legal rule
cmanating from a legislative authority is considered to be a written legal text.',78
• "If customs can be a direct source of legal rules in general and of branches of private
law in particular, they do not acquire this value in the field of criminal law with
regard to incrimination and penalties. As long as the written text is the only direct
source of the criminal law, customs shall not be considered a source for incrimination
and penalties in case it were, because this would expressly be contrary to the principle
of "no offence and no penalty without law".79.
73. The French legal system, from which the Lebanese system is inspired and remains quite
close, excludes that customary international law could provide a valid basis to criminalise
a conduct within the internal legal order.8o To the general prohibition mentioned above,
there is one exception. It is possible to apply customary internatIonal law where it
provides a defence or an exception to liability (and is, thus,favourable to the accused).8)
In this regard, Lebanese law is consistent with the approach of French COurts.82
76 See, generally, Article 8 of the ConstitutIOn, as well as Articles I and 2 of the Criminal Code. 77 Elias Abu Eid, Criminal Law, between texts and literature, a comparative study, 2008, p .8 (title unofficially translated from Arabic). The author further specifies that: "The following has been determined in this context: "Customs, ministerial publications pertaining to law implementation in addition to instructions given by senior figures in the judiciary are not considered to be a direct source of Criminal Code."" 78 Dr. Sanur Alia, Explanation of the Criminal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 53 (title unofficially translated from Arabic). 79 Alia: Explication, 63. 80 See Movement Against Racism and/or Peoples' Friendship v Aussaresses, Appeal judgment, Appeal no 02-80719; Decision no 122; lLDC 775 (FR 2003) (17 June 2003), para. 19. See also Javor, Cass.Crim., 26 March 1996, Bull.crim.1996. II. 379, No. 132.,93 AJ.I.L. 525, para.2). See also Ferdinandusse, Direct Application, pp. 65-66; J. Lelieur-Fisher, "Prosecuting the Crimes Against Humanity Committed during the Algerian War: an Impossible Endeavor?" (2004) 2 JICJ 231, pp 234-237; B. Stem, "International Decisions: In Re Javor and In re Munyeshyaka" (1999) 93 (2) AJlL 502, p. 529.; Benillouche, "Droit Francais" in A. Ca'!.'!Cse and M Delma~Marty, Juridictions NatlOnales et Crimes lnternationaux (2002), pp.171-176; G. Levasseur et. al., Droit penal general et procedure penale (13th ed., 1998), p. 38, para. 97. (noting that "[lja cou/wne ne peut paY etre source de droit penal »). 81 See e.g., Alia: Explication, p. 64: «La doctrine recente admet la possibilite 11 la coutume d 'avoir un effet en ce ~ui concerne lajustificatJOn et les causes d'imputabilite.» 8_ See, e.g., Court of Cassation ,Criminal Chamber, No. 00-87215, Appeal Judgment, DeCision No. 64; ILDC 774 (PR 2001) ("Gaddhqfi case"), taking the view that "Sitting foreign heads of state enjoyed immunity from jurisdtction before French courts by application of customary international law".
74. Likewise, reliance upon customary law for the purpose of interpretation is understood in
such a way that it could not result in an expansion of liability and can only be made where
it is done in favour of the accused.s3 As with treaties (see above), reliance upon
customary law for the purpose of interpreting the terms of the Criminal Code could not,
therefore, result in a dilution of defmitional requirements (e.g., a lowering of the
applicable mens rea), in an extension of circumstances in which liability could be
incurred (e.g., through the enforcement of a new fonn of liability) or in the disappearance
of an excuse, a defence or a mitigating factor (e.g., as regard the application of
immunities).
IV. TERRORIST ACTS
A. "Terrorism" under Lebanese criminal law
75. As noted above, the applicable criminal law regarding the definition of crimes within the
Tribunal's jurisdiction (Article 2 of the Statute) is Lebanese criminal law.84 This is the
law relevant to deflning "terrorism".
i. The definition
76. The definition of "terrorism" under Lebanese criminal law is provided in Article 314 of
the Lebanese Criminal Code. This provision, together with the jurisprudence relating to it,
provides for a sufficiently clear, accessible and foreseeable outline of the elements that
make up that crime (insofar as is necessary at this stage of the proceedings).
a. Actus reus
77. To constitute an act of ''terrorism'' pursuant to Article 314, the underlying conduct must
have been committed by means such as explosive devices, inflammable materials, toxic
or corrosive products or infectious or microbial agents. This requirement effectively sets a
limit regarding the range of acts that could qualify as terrorism under that provision.
Whilst the list of means IS not exhaustive, the principle ejusdem generis would lnnit any
culpable conduct to those similar in kind and nature to those listed in the provision ("such
83 See, e.g., P. Nasser, Droit Penal General, 1997, p. 48 (<<Quam a la cOlltllme, elle sert surtout a interpreter les te:ctes, et pe ut etre une source negative car elle empeche la sanction " plus particu/ierement en procedure penale, elle peut €tre une source yerltable.»). 84 See above, and in particular paras. 58-59.
as"). This explains that conduct such as ripping tires, putting glue in locks or sending
threatening letters do not qualify.8s
78. Case law suggests that the means used by the accused must be liable to create a public
danger,86 i.e., reach beyond those directly targeted by act and in a sufficiently broad group
that it is not merely the unintended consequence of the use of that means or method. This
has been said to exclude from the realm of that offence any crime committed by frreann.87
~e such acts may constitute a criminal offence under Lebanese law, could not qualify
as terrorism under Article 314.
79. The definition of what might qualify as explosive devices, inflammable materials,
poisonous or incendiary products or infectious or microbial agents is primarily an issue of
evidence in relation to which technical or expert evidence is called at trial88 and which
has to be determined on a case by case basis.89
80. It is useful, in this context, to remember that "terrorism" forms part of a category of
offences against the State's internal security thereby suggesting that its effect should be
directly relevant to the State's internal order and not just be limited to an identifiable
group of individuals. This explains, for instance, that the use of a small quantity of
explosive (whilst one of the means listed above) or a violent armed exchange between
two individuals is insufficient to bring the matter within the defmition of that crime. 90
h. Mensrea
81. The mens rea of terrorism under Article 314 consists of two sub-elements: a general
intent (i.e., knowledge of the relevant facts and conscious decision to act with that
8~ Court of Cassation, Judgment no 201\1998, 17 November 1998 (P. R.Rlachi). B6 Court of Cassation, Judgment no 332\2005, 15 December 2005 (P. R.Riaclu) (TOHME case). See also: Cassation Court, Judgment no 212\2003, 23 July 2003 (p. R.Riachi). See also Judgment, Case no. 79/1959, Military Court of Cassation, 29 December 1959. [In Arabic] Cited in Jibran Mansour, Majmoaat Qararat Mahkamat AI-Tamyeez AI-Aaskariya [The Decisions of the Military Court of Cassation] (Beirut: Lebanese Maronite Publishers), SS. [Arabic]. 87 Judgment 111975, Council of Justice, 23 June 1975. [In Arabic] Cited in Samir Aalieh, Ijtihad Al-Majlis AlAadli fi Al-Jarayem Aala Amn AI-Dawla 1949-1977 [Jurisprudence of the Council of Justice on Crimes against the Security of the State 1949-1977] (Beirut: University Collection for Studies, Publications and Distribution, 1987),58. [Arabic]; Judicial CounCIl, Judgment, 17 January 1997 (Case of Assassination ofNizar Al-Halabi). 83 Court of Cassatlon, Judgment no 85\1998, 16 April 1998 (P. R. Riachi); Cow'! of Cassation, Judgment no 249\2007,27 December 2007 (P. R.Rlacht) .. 89 Judicial Councll, Judgment, 13 July 1996 (saydet najat case); Criminal Court of Mount Lebanon, Case number 210\2003, Judgment, 17 Apnl 2003, Court of Cassation, Judgment no 221\2008, 11 December 2008 (P. R.Riachi). 90 Cruninal Cassation of 26/11/ 1979, mentioned in Nairn Mghabghab, Smuggling and Money Lalll1dering [ Yl~ JI"..)t1 u¥. J] , 2005, p. 231; Judgment, Case no. 85/1998, Pubhc Prosecution v. Shkeir, Chamber 6, Court of Cassation,16 April 1998. [In Arabic] In Sader, 'Sader Fi AI-Tamyeez, Al-Qararat AI-Jazaeya' [Court of Cassation:Penal Decisions] (Beirut: Sader Legal Publications, 2001), 490. [Arabic).
knowledge) to commit the underlying conduct that forms the basis of the charges and a
special intent (i.e. the knowledge and conscious decision) on the part of the accused to
create a state of terror.91 The special intent must be proven in relation to any person
charged with a crime under Article 314, i.e. regardless of the nature of his alleged
participation.92 Motives are not relevant, under Lebanese law, to the definition of that
offence although proof of their existence could be relevant to establishing the requisite
special intent.93
ii. Accessibility and foreseeability of the definition
82. The definition of terrorism in Article 314 of the Criminal Code, together with relevant
Lebanese case law,94 provides a degree of "accessibility" and "foreseeability" of the
prohibition that is necessary and sufficient at this stage of the proceedings.
83. One author has expressed personal reservations about the breadth of the Lebanese
definition of terrorism, but those are not such as to constitute a breach of any international
obligation of Lebanon.95 Nor are those reservations reflected in the judicial practice of
Lebanese judicial authorities (as would render all past convictions for that crime unsafe or
unfair). Instead, Lebanese authorities have successfully prosecuted terror cases and
applied that prohibition without any significant problem for more than half a century.
84. This definition of "terrorism" contained in Article 314 reflects the sovereign will of
Lebanon's Parliament and has been sanctioned and applied by Lebanese courts repeatedly
as a valid basis for criminal prosecutions (and convictions). This definition has not ceased
to be sufficient because an internationalized tribunal has been created. Instead, this very
91 Nidal Nabil Jurdi. The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon. nCJ 5 (2007). 1125"1138. at 1133 .. 92 Criminal Cassation of 13/12/1980. published In NaIrn Mghabghab, Smuggling and money laundering [ J ~ JI.,..YI ~). 2005. p. 231. 93 47 Judgment. c.'tSe no. 334/1953. Fathiye case. Court of Cassation, 16 November 1953. [In Arabic) Cited in Samir Aalieh. Mahkamaat Al-Naqqed fi Ashreen Aaman Minz Inshaeha 1950-1970 [The Court of Cassation in the Twenty Years smce its Establishment] (Bmut: The University InstitutIon for Studies. Publication and DistributIOn, 1993). [Arabic) 94 It IS a recognized principle of human rights law that the pdnciple of legality will not be breached merely because definitJonal clarification reqUIred limited Judicial intervention. In that sense. Lebanese jurisprudence on terrorism provides fi.u1her guidance and relevant nohce as regard the elements of the definition of that crime. See. e.g .• Veeber v Estonia. ECtHR. Judgment of 21 January 2003. para. 31; Koklanakis v. Greece. ECtHR, Judgment of 25 May 1993. Series A no. 260-A. p. 22. § 52. See. also the decision of Constitutional Court of Bosnia and Herzegovina in the.Abduladhim Maktouf case, "[ ... ] [n the mentioned Cc'tSe [Kokkinakis v. Greece]. the European Court specifically emphasized that this requirement of Article 7 of the European Convention [principle of legality] is met when an individual referred to in the relevant provision. if necessru-y, by means of the Court interpretation. can understand which cnminal achvities and mistakes can make lumlher subject to cnmmal prosecutIOn .... AdmissibIlity and merits on the appeal from the verdict of the court of Bosrua and Herzegovma. Case No. AP - 1785/06. 30 March 2007. para. 63. (emphasis added) 95 See Jurdi: Subject Matter. p. 1136.
(vi) An existing definition (as found in Article 314 and developed in Lebanese
jurisprudence) may not be displaced or replaced by another through a process of
interpretation. The interpretative process is limited to clarifying an existing legal
prohibition.
89. In light of the above, even if it assumed that customary international law provides for a
crime of terrorism and a definition to go with it, it would be inapplicable directly in the
criminal order and as a means of interpretation for the reasons outlined above. The
Tribunal would thus have no authority and would in fact be prohibited from relying upon
that body of law.
b. No definition under customary law
1) General considerations
90. There is overwhelming evidence that a definition of terrorism does not exist under
customary international law. In other words, terrorism does not, yet exist as a crime under
customary international law or, if it exists, a definition of that crime has yet to be
sanctioned in state practice and opinio jUris.
91. Whilst a number of scholars have suggested that a definition of "terrorism" exists under
customary international law, they have not managed to agree on what that definition is.
Rather than the uncovering of a customary definition of terrorism, these defmitional
efforts should be regarded as valuable scholarly contributions to the search for a viable
candidate, not as lex lata. Even if it were said, for the sake of argument, that one of these
proposed defmitions reflects customary law on that point, there is no indication that
potential defendants had or even could have had notice of that defmition. In that sense,
even if such a defmition had existed at the time, it would fail the principle of legality.
92. That supposed, and yet unidentified, defmition of international terrorism is not provided
in any known legal instrument that was applicable to potential defendants at the relevant
time. Nor is it based on any apparent state practice or opinio juris to which they could be
said to have had any sort of access or notice or which they should reasonably have
regarded as relevant to their conduct. The application of a definition of terrorism that
would not meet those minimum requirements of notice is prohibited by international
law.97 In particular, such a defmition must have existed, and must have been accessible to
97 Commission on Human Rights: New Priorities, paras 62-72. "Any legal definition of a crime, not only at the national (or domestic) but also at the international level, must bc in conformity with established principles of
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potential defendants, before an offense can be committed.98 It is not surplising, in those
circumstances that even the one author mentioned above who has expressed reservations
about the Lebanese definition of terrorism has also acknowledged that it has the merit of
clarity and consistency compared to "the fragmented and ambiguous definitions of
terrorism in internationallaw',.99 It would be most ironical if a definition that is relatively
clear on its face would come to be interpreted or shaped by one that is at best ambiguous
and, at worse (and most likely), inexistent as a matter of applicable law.
93. In light of the above, any effort to apply a customary defmition of "terrorism" to the
proceedings would fall short of minimum internationally-recognised requirements of
notice and would violate the cU$tomary right of any defendant not to be subject to
retroactive criminal law. As such, the Tribunal cannot validly have recourse to any such
definition for the purpose of confirmation, nor for the purpose of prosecution.
94. Proof of the existence of a customary prohibition of "terrorism" and the definition of a
definition under that body of law would require demonstration of a "settled practice"IOO
i.e. "a considerable degree of agreement" 10 I between states as to the content of customary
law and definition of that crime, that is, practice of States which, on that point, is
consistent and general in character. 102 When making that assessment, discrepancies of
approach and uncertainties or fluctuations in position should be regarded as evidence of
the absence of a "constant and uniform" practice among States and thus of a customary
prohibition. IO) In addition, such practice would have to be accompanied by "a belief that
this practice is rendered obligatory by the existence of a rule of law requiring if,.104 In the
absence of that sense of international obligation on the part of States vis-a-vis the
existence and definition of an international crime of terrorism, such a prohibition could
criminal law and of International human nghts law. [ ... ] Any legal definition of the crime of terrorism, be it a ~enera1 defmition or a definition relating to a specific act, cannot deviate from these principles", para. 62. 8 See e.g. Ecer and Zeyrek v. Turkey. ECtHR, 27 February 2001, paras 29-30. See also Digest of Jurisprudence
of the UN and Regional Organizations on the Protection of Human Rights while Countering Terrorism, (available at: www.ohchr org/documentslpublicationsldigestiurisprudenceen.pdD. pp. 63-64: Commission on Humnn Rights. Countering TerrOlism Report, para 46. See, also, above at paras 53-57 99 Jurdi: Subject Matter, p. 1136, noting that the benefit of applying Lebanese, rather than international law, to the defimtion of the Tribunal's jurisdiction ratione materiae is to "provide a solution to the fragmented and ambiguous definitions of terrorism in internatIOnal law". 100 rC], North Sea ContInental Self Cases, rC] Reports, 1969, p. 44. 101 rC], Nicaragua case, rC] Reports, 1986, p. 97. et seq. 102 See, generally, 1. Browniie, Principles of Public rnternational Law (OUP, 7'h ed) ("Brownhe, Principles"), at 6 et seq. See, also, rC], North Sea Continental Self Cases, rC] Reports, 1969, at 43, referring to "extensive and virtually uniform" practice. 103 See, generally, ICJ, Asylum case, rC] Reports (1950), at 276-277. See, also, references provided in Brownlie, Principles. p. 7, fn. 21. 104 rCJ, North Sea Continental Self Cases, rCJ RepOlts, 1969, p 44.
not be said to exist as a matter of customary law. In sum, there must be evidence of a
general recognition among states that "terrorism" exist as an international crime, that the
elements of its defInition m:e known ~d accepted and that this defmition, together with
the prohibition of that conduct under intemationallaw, is obligatory. That standard has
not been met and no such prohibition exists under customary law.
2) State practice
95. Having conducted the broadest of all surveys of State practice, Professor Saw's
conclusion is that:
"Arguments that terrorism is a customary international crime are premature."
96. As developed further below, there is neither consistent State practice to support a contrary
view, nor any clear indication of opinio juris to that effect. Within the boundaries set by
the principle of legality,I05 States are entirely free to define their criminal law (and their
crime of "terrorism", if any) as they see fit and have done so in a myriad of ways.106
There is no real convergence in the way domestic legal regimes have defined terrorism.
The collected record of state practice at the Counter-Terrorism Committee of the Security
Council reveals clear and continuing major distinctions in the approach of states
regarding the issue of defining (or not defming) "terrorism" in their national laws. 107 As
many as 87 states do not have a definition of "terrorism" in their penal order and
prosecute "terrorist" crimes as regular offences; in terms of criminalisation of the
terrorism phenomenon, this remains the dominant approach. 108 Other states have adopted
a variety of definitions that differ in breadth, nature, approach and elements. 109 Having
reviewed all existing national defInitions, Professor Saul concludes:
105 See, generally, Hwnan Rights Committee, Comments on Egypt, U.N. Doc. CCPR/CI79/Add.23, 9 August 1993, para 8.; Concluding observations of the Human Rights Committee on Egypt, U.N. Doc. CCPR/C0I76IEGY, 28 November 2002, para. 16; Concluding observations of the Human Rights Committee on Estonia, U.N. Doc. CCPR/C0I77fEST, 15 April 2003, para 8. See, also, Commission on Human Rights: New Priorities paras 68-69. (and references cited therein). 106 By one count, there is now seventy-three (73) types of definitions of terrorism that now exist (Weinberg, Pedzhm' and Hirsch-Hoefler, "The challenge of conceptuallzmg terrOiism" in Terrorism and Political violence, 2004, No 16); another study has counted more than one hundred (106) sorts of definitions of terrorism (albeit not necessarily alllegaUy-enforceable ones). See, generally, Smidt and Jongman, Political Terrorism, (N0l1h Holland publiShing co, Amsterdam, 1983). 107 See, generally, '2009 Global Survey of the implementation of Security Council resolution 1373 (2001) by member States', http.llwww.un.org!enlsc/ctddocs!gis-2009-09_en.pdf .. See.a1so.BenSal.ll. Defining Terronsm in international Law, Oxford University Press, 2006, p 262 ("close attention to national laws shows that wide divergences in national definitions make it difficult to ascertain any common, customary definition.") ("Saul' Terrorism") 108 Saul: Terrorism, pp. 264-265. 109 See, C Walker, Blackstorle's Guide to Anti-Terrorism Legislation (OUP, 2002). See, also Saul: Terrorism, pp.264-270.
"the divergence in generic definitions militates against abstracting - by
teleological reduction - a minimum core definition of terrorism in State practice,
Even the basic element of an intent to create terror is not found in all definitions,
Further, the influence of international definitions (as in the 1999 Terrorist
Financing Convention, the 1994 Declaration, Council resolutions, and the 1937
League Convention) on national criminal laws has been fairly limited, ,,110
97, There is also the added problem of different definitions of "terrorism" being adopted for
different purposes, including in one single jurisdiction, I11 These are internally
inconsistent and effectively preclude any suggestion that practice in that regard is
consistent or that it has hardened into a single, all-purposes, definition, National
definitions are often also not intended to provide a basis for criminal prosecutions, but are
relevant to deciding upon restrictions of fundamental liberties or are used for
jurisdictional purposes or budgetary and administrative purposes, 112
98, Judicial practice further reinforces the view that no unified international definition of
terrorism exists as a matter of international law, In Tel-Oren v Lybian Arab Republic, for
instance, Justices Edwards and Bork made the following observations: I 13
"Given this division, I do 110t believe that under current law telTorist attacks
amount to law of nations violations,"
"Given such disharmony, I cannot conclude that the law of nations--which, we
must recall, is defined as the principles and rules that states feel themselves bound
to observe, and do commonly observe--outlaws politically motivated terrorism, no
matter how repugnant it might be to our own legal system,"
"appellants' principal claim, that appellees violated customary principles of
international law against terrorism, concerns an area of international law in which
there is little Or no consensus and in which the disagreements concern politically
sensitive issues that are especially prominent in the foreign relations problems of
the Middle East,"
"no consensus has developed on how properly to define 'terrorism' generally",
110 Saul: Terrorism, p, 268, Saul adds that "National definitions of terrorism, while gradually drifting towards generic defmition, are still too divergent to support the existence of a customary internatIonal defInition or crime of terrorism", p, 270. 111 See, e,g., fora U.S, iIIustration,FlatDw v Iran 999 F SllPP I, 17 (cited by Salll: Ten'orism, p, 262) 112 Saul: Terrorism, at 262 113 Tel-Oren v, Libyan Arab Republic 726 F,2d 774 CAD.C. 1984, United States Court of Appeals, District of Columbia Circuit, February 03, 1984, pp. 405-406, 416, 417
99. In 2003, Tel-Oren was approved in YouseJ, a criminal case. 114 The court noted that "[w]e
regrettably are no closer now than eighteen years ago to an international consensus on the
definition of terrorism or even its proscription,,115 and added that terrorism is defined
variously by perpetrators' motives, methods, targets and victims." 116
100. In the 1998, Flatow v Islamic Republic of Iran, the conclusion of the court was no
different: 117
"Attempts to reach a fIXed, universally accepted definition of international
terrorism have been frustrated both by changes in terrorist methodology and the
lack of any precise definition of the term "terrorism."
10 1. It should be noted, however, that a number of isolated judicial decisions suggest that
there is in fact a definition of "terrorism" under international law, although these did not
really say what that definition is nor are they necessanly consistent with each other on
that point.118 Insofar as judicial practice points to the possible existence of an
international definition of terrorism, it suffers from three major flaws that limit or exclude
their relevance to the present situation:
(i) they disregard all practice that is contrary to their conclusion, and/or
(ii) are un-reasoned and, most relevantly in the present context,
(iii) are applied for non-criminaVpenal purposes. 1 19
102. International conventions tell a similar story. There are almost as many definitions of
"terrorism" as there are international and regional conventions on the subject. In her 2005
Report, the Special Rapporteur on the Promotion and Protection of Human Rights and
fundamental freedoms while countering terrorism noted that -
"None of the 13 anti-terrorism conventions contain a comprehensive definition of
the term "terrorism". Rather, the conventions are operational in nature and
confined to specific subjects, whether air safety, maritime navigation and
platforms, the protection of persons, or the suppression of the means by which
terrorist acts may be perpetrated or supported.,,120
114 U.S v. Yousef, 327 F2d 56,327 F.3d 56, C.A.2 (N.Y.),2003, United States COUli of Appeals, Second Circuit, Afril 04, 2003. 11 Ibid, p. 106. 116 Ibid, p. 107. 117 Flatow v Islamic Republic of [ran, 999 F Supp 1, D.D.C ,1998.at 17 , United States Distnct Court, District of Columbia, March 11, 1998. 118 See, references given In Saul: Terrorism, pp. 256-261. 119 See, again, Saul: Terrolism, pp 257-261 and 270. 120 Commission on Human Rlghts: Countering Terrorism Report ,para. 28.
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103. After coming to a similar conclusion ("fmding an all-encompassing and generally
acceptable defmition of terrorism is too ambitious an aim,,121), the United Nations Sub
Commission on the Promotion ana Protection of Human Rights made it clear that the
responsibility to define that offence therefore belonged to domestic - i.e., national -
legislative bodies:
"[s]ince there is no international definition of terrorism, the initial characterization
of an activity as 'terrorist' is made by the domestic legal system.,,122
104. The Inter-American Commission on Human Rights came to the very same, un
ambiguous, conclusion (in 2002).123 Regional conventions are of no greater assistance in
that regard either. They reveal an infinite variety of definitions. Having revIewed various
regional conventions on terrorism, including the 1998 Arab Convention for the
Suppression of Terrorism, the United Nations Sub-Commission on the Promotion and
Protection of Human Rights concluded that:
"despite their having certain elements m common, the different definitions
adopted by these three conventions and by the Council Framework Decision on
Combating Terrorism of the European Union diverge ill significant aspects".124
105. As a result of the above, there is a clear understanding in the community of States that
no universal or generally-applIcable defmition of terrorism has yet been formed under
international law. 125 In December 2005, for instance, the Special Rapporteur on the
121 Commission on Human Rights: New Priorities, para 23. See also, ibid, para.5i. (''The efforts and initiatives taken in the framework of the United Nations indicate very clearly the almost Universally insunnountable difficulties that, to this very day, stand in the way of fannulating a single, acceptable genel al definition of the crime of "terrorism". For long decades, States, experts and the legal community have been striving without success to work out a comprehensive generally acceptable defirutlon, which would be feasible and satisfactory from the legal point of view, in lme with the techniques ofincnmination in crirninallaw."). 122 Ibid, para. 49. This paragraph continues: "In this context, It will be recalled that Security Council resolution 1373 (2001), adopted on 2& September 2001, lmder Chapter vn of the United NatJons Chal1er, establIshes a long list of legal obligations with a view to fighting telTorism but does not contribute to the legal defimtion of the crime of terrorism. As appropriately stated by Jean-Fran90is Gayraud, and David Senat, this resolutlon 'decrees the universal hunt of terrorism without defining it'. Thus, to fulfil their obligations under resolution 1373 (2001) States have resorted to definitions of terrorism established under their own nationallegislations." ~footnote omitted) 23 Report on Terrorism and Human RIghts, IACtHR, OEAlSer.UVIII.116 Doe. 5 rev. 1 corr., 22 October 2002
para 15: "In defming the parameters of member states' obligations under current international law, it must also be recognized that to-date there has been no consensus on a comprehensIve international legal definition of terronsm. At best, as reflected in ArtIcle 2 of the Inter-Amencan Convention against Terrorism, it may be SaId that the internatIOnal commlmlty has identified celtain acts of vioLence that are generally considered to constitute particular forms of terronsm. These include, for example, the taking of hostages, the seizure and destruction of civilian aircraft, attacks agamst the life, physical integrity or libel1y of internationally protected persons mcluding diplomatic agents, and, in the context of armed conflicts, acts or threats of violence the primary purpose of which is to &l'read telTor among the CIvilian population". (footnotes omitted, emphasis added) 124 Cormnission on Human Rights: New Priorities, para S6 I2S Ibid.
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Promotion and Protection of Human Rights and Fundamental Freedoms while Countering
Terrorism noted that a general international framework on counter-terrorism existed
"without there being a comprehensive definition of the term" and further acknowledging
"the absence of a universal and comprehensive definition of "terrorism". 126 The United
Nations High-Level Panel on Threats, Challenge and Change (2004) came to the same
conclusion noting "the inability of the membership [of the United Nations] to agree on a
definition ofterrorism".127
106. On 16 April 2010, United Nations General Assembly ad hoc Committee on measures
to eliminate international terrorism concluded its 14th session on 16 April without being
able to reach an agreement on a definition of "terrorism" for the purpose of a draft
comprehensive convention on international terrorism. 128
107. The practice of the Security Council has not had the effect of hannoruzing state
practice. 129 The inability of States to agree to a defmition of "terrorism" for the purpose of
the ICC Statute is further indication of the ongoing difficulties, inability or unwillingness
of the community of States to agree to a definition of that offence. 13o During the Slh
Session of the Assembly of State Parties (200S), the Netherlands tabled a proposal to
make "terrorism" a part of the ICC's jurisdiction. The summary of discussions of that
proposal clearly demonstrates that there was a clear understanding .among states that no
defmition of terrorism exists under international law .131
lOS. The International Law Commission ("ILC") too opted not to include a definition of
terrorism in the last version of its draft Code of Crimes against the Peace and Security
(1996) because no consensus could have been reached among its members on that point.
126 Commission on Human Rights: Countenng TeITorism Report , paras 26 and 33, respectively. See also Terrorism and human nghts, Preliminary report prepared by Ms. Kalliopi K. Koufa, Special Rapporteur, Commission of Human Rights, E/CN.4/Sub.2/1999127, 7 June 1999. 127 United Nations, A More Secure World: Our Shared Responsibility (Report of the High-Level Panel on Threats, Challenge and Change) (2004) (available at htto:l!www.un.orglsecureworlQD.p.viii.Seealso.ibid. r:ara.157.
28 Available at: http://daccess-ods.un.orgITMP/3534140.58685303.html. See also UN Press Release Ll1993 of I February 2002 of the Ad Hoc Committee on Assembly ResolutIOn 51/210, 6th Sess., 26th mtg. (I February 2002) (indIcating that the Ad Hoc Committee Established by General Assembly Resolution 51120 I of December 17, 1996, which is charged With preparing a comprehensive international treaty on terrorism, had not reached an a~·eement on, inter alia, a definition of teITorism under Article 2 of the draft treaty). 12 Regarding the practice of the Security Council consult Saul: Terrorism, pp. 249-250. 130 See, Commission on Human Rights: New Prionties , para 54. III Official Records of the 81b Session of the meeting of States Parties (November 2009) (available Elt:
http://www.icc-cpi.intljccdocs/asp docs/ASP8/0RlOR-ASP8-Vol.I-ENG .Annexes.pdf), in particular, paras 41-42 and 48.
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Members of the ILe underlined "the difficulties of elaborating a definition of the crime of
terrorism that would satisfy the exigency of precision required by criminal law" .132
3) Opinio juris
109. There is a clear and complete absence of opinio juris in the community of States that
would support the view that state regard terrorism as an international crime and regard
themselves as bound by some particular - and yet un-identified - definition of that
offence. Without evidence of opinio juris on the part of States, there can be no rule of
customary law and none exi!.is in this instance so that no customary prohibition of
terrorism could yet be said to exist under customary international law.
Concluding remarks
110. Practice is far from "general" and far from "consistent" as would be necessary to
support the existence of a customary prohibition against terrorism (as an international
offence), nor does it provide for a generally-accepted definition of that offence. In
addition, there is no evidence of opinio juris attaching to anyone particular prohibition or
defInition of "terrorism" as an international crime. Accordingly, the conclusion is
unavoidable that no such cnme (and no such definition) exists as a matter of international
customary law.
c. No criminal definition
111. Whilst some might argue that practice has now grown mto a defmition of terrorism,
they fail to further consider (and establish) that the state practice (and opinio juris) on
which this definition is supposed to be based IS such that this defmition is the defmition of
an international crime, rather than one applicable, for instance, to regulating the
cooperation of states in counter-terrorism matters. In other words, these authors fail to
address the question of how definitions adopted in non-penal treaties and conventions
(l.e., instruments that are not intended to provide for the criminalisation of a pruticular
conduct, but for a generic defmition enabling state cooperation) have supposedly come to
give birth to a criminal offence and the definition to go with it.13J
III Comnussion on Human Rights: New Priorities, para 53. 133 See, e.g., Saul: Ten'orism, p. 213 Summarizing his fmdmgs regarding the practice of the United Nations General Assembly, Professor Saul makes the following observation: "In 1994, political agreement was reached on a working definition of terrorism - instIlling fear for political purpose - but f8Jling short of a legal defimtion. Thele is not yet sufficient evidence of a customary crime based on this defmition, given the absence of wider
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d. No definition relevant to interpreting Lebanese criminal law
112. Even if one accepts that a customary definition existed at the relevant time and if its
contours were said to have been sufficiently clear for the purpose of accessibility and
foreseeability and passing upon the merit of the various definitions that have been
proposed in the literature to serve that purpose, such a definition would still remain
irrelevant to proceedings before the Special Tribunal for the following reasons:
(i) As noted above, customary international law is not applicable in any shape or form
in this Tribunal nor is it applicable to criminalise conduct under Lebanese criminal
law. 134
(ii) The definitions provided in the legal literature have varied a great deal and none of
those appears to be comparable to the Lebanese definition. Relying upon them
would effectively result in a judicially-induced legislative amendment of that
definition. In that regard, and in light of the Pre-Trial Judge's comment in paragraph
5 of its Order of 21 January 2011, it needs to be recalled that whilst a legal concept
(original legal concept) may in some instance be interpreted with the assistance of
another (secondary legal concept), the latter may never come to replace the former
nor can the latter ever be preferred to that former since the interpretative process
would thus become a legislative one.
Hi. Irrelevance of the 1998 Arab Convention
a. Preliminary observations
113. Lebanon has signed a number of international and regional terrorism conventions. m
For the reasons mentioned above, conventions not ratified by Lebanon have neither
acquired any legal force nor any interpretative relevance within the Lebanese legal order.
As such, the 1997 Suppression of Financing Convention and other un-ratified
conventions, are incapable (directly or as interpretative vehicle) in the Lebanese legal
order (and, therefore, before this Tribunal).
State practice (such as national prosecutions or laws), and the ongoing disagreement on definition ID the treaty negotiation context. It is, however, plausible that a customary prohibition on terronsm, as minimally defined In
1994, has emerged, but not yet criminal liability for breaches of that prohibItion. [ ... ] While fulfilling these duties may require domestic criminalization or extradition of terrorists, divergences in national definitions r:reclude the existence of a customary crime". (footnote omitted) 34 See above, paras. 71-74.
114. As already noted, the provision of a ratified convention could only be relied upon for
the limited purpose for which it was adopted. It may not, therefore, be given proprieties or
an effect that it was not intended to have when adopted. Where, for instance, a treaty
defines "terrorism" broadly for the purpose of enabling cooperation between two or more
states (as with Article 1(2) of the Arab Convention), this definition could not be relied
upon to interpret a penal provision (Article 314) that has an altogether function (and has
been drafted much more narrowly as it protects and involves different interests and serves
an entirely different function). Normatively, these two sorts of provisions have nothing in
common and belong to entirely separate jurisdictional universes.
1) Excluded from jurisdiction of Tribunal
115. In paragraph 6 of its Order of 21 January 2011, the Pre-Trial Judge queries the
relevance and applicability, if any, of the definition of "terrorism" provided for in Article
1 (2) of the 1998 Arab Convention for the Suppression of Terrorism. 136 This definition is
both irrelevant and inapplicable to proceedings before the Tribunal.
116. The Tribunal been given no jurisdictional competence to apply international treaties
to criminalise or define criminalise conducts. In the case of the Arab Convention, that
competence was explicitly excluded by the removal of any reference to that instrument
during the negotiation process surrounding the Tribunal's Statute at the request of the
Security Council (or its members) based on the rejection of any reference to any
international instrument. 137 As a participant in the negotiation has pointed out, the
removal of the reference to the Arab Convention effectively:
"depriv[ ed] the Special Tribunal of the possibility of basing its proceedings in this
broad defmition of terrorism" that is provided for in the Convention.138 "the real
aim of the UN Security Council was to strictly confme the Special Tribunal -
which is, to date, the only international tribunal empowered to hear cases of
terrorism - to the application of domestic laws, thus rendering problematic the
136 Art 1(2) of the Arab Convention deflnes "terrorism" as follows: "Any act or threat of violence, whatever its motives or purposes, that occurs in the advancement of an individual or coIlectlVe crilIllnal agenda and seeking to sow panic among people, causing fear by hanning them, or placing their lives, liberty or security in danger, or seeking to cal.lse damage to the environment or to public or plivate installations or property or to occupying or seizing them, or seeking to jeopardize a national resources." 137 See Jurdi: Subject Matter, p.1l28, in particular fn 17-18. See also Sader: Lebanese Perspective, p.l087. 133 Sader: Lebanese Perspective, p. 1087
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possibility of considering terrorist offences as crimes failing under international
criminallaw.,,139
117. In those circumstances, the relevance of international treaties - in particular the Arab
Convention - could not be re-introduced in the face of the absence of any jurisdictional
basis for it and clear indications of the Council's intentions to exclude them from the
jurisdictional competence of the Tribunal.
2) Arab Convention did not become Lebanese criminal law
118. The Arab Convention was ratified by Parliament and Law No 57 made its provisions
part of the Lebanese legal order. These provisions, however, did not become pari of
Lebanese criminal law and none of them figure in the Lebanese Criminal Code. Instead,
the Convention and its provisions only provide a legal basis for the limited purposes for
which the Convention was adopted (i.e., enabling cooperation between states, not for the
purpose of creating a criminal offence).
3) Not intended to provide for criminalisation in Lebanon
119. The purpose and function of the Arab Convention should also be kept in mind: the
Convention was not intended to provide for the cnminalisation of acts of terrorism; nor
was it intended to provide for a binding definition of a crime that parties to the
Convention were bound to enforce in their internal legal orders. Instead, the purpose of
the Convention (and the raison d'etre of the definition contained in Article 1(2)) as is
made clear in the Convention's preamble was to enable states to cooperate in their
fighting against terrorism.140 Furthermore, Article 1(3) of the Convention explicitly
acknowledges that the legislative power to determine what constitutes a terrorist offence
is, and remains with, state parties, thereby making it clear that the Convention was not
intended to interfere with States' competence and independence in that regard. 141
4) No definition relevant to interpreting Lebanese criminal law
120. Furthermore, the definition contained in the Arab Convention is significantly different
from the one provided for in Article 314 and could not, therefore, serve to interpret the
139 [bId, p. 1088. 140 "Desiring to promote mutual cooperation in the suppression of terrOl'lst offences, which pose a threat to the security and stability ofthe Arab Nation and endanger Its vital intelests". 141 "Any offence or attempted offence cOmmItted in furtherance of a tel'ranst objective in any of the Contracting States, or against their nationals, property or interests, that IS punishable by their domestic law."
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latter. The significant expansion of potentially culpable conduct which would result from
the application of the Convention's definition is easily explained: as noted above, that
definition was never intended to provide a basis for criminalisation. Instead, it was
drafted as broadly as possible so as to ensure that it would be applicable extensively to
ensure the widest realm of permissible cooperation between states in their common anti
terrorist activities.
121. In light of the above, even assuming that the definition contained in the Arab
Convention was at all relevant to the penal area (and setting aside all other reasons why it
could not be relevant to the present matter), that definition would bring no clarity to the
intetpretation of Article 314. In addition, and to the extent that it would serve to expand
the definition provided for in Article 314, it would constitute a violation of the Tribunal's
jurisdictional boundaries and a violation of the principle of non-retroactivity of the law.
122. In sum, the definition contained in the Arab Convention is inapplicable, irrelevant and
un-helpful for the purpose of defining "terrorism" within the jUrisdiction of this Tribunal.
5) Other international conventions
123. In its Order (again, at paragraph 6), the Pre-Trial Judge also raised the question of
whether the defininon of "terrorism" contained in other international conventions could
be of relevance to interpreting Article 314 of the Lebanese Criminal Code.
124. The Defence Office has been unable to identify any Convention that would be
relevant and applicable in the present context. In any case, the same reasons as outlined
above in relation to the Arab Convention would apply and, unless any of those is shown
to have been relevant, applicable in the circumstances and favourable to the accused, it
would have no relevance to these proceedings.
b. Conclusions
125. In light of the above, and for the reasons given, intemationallaw (whether customary
or in its treaty form) is either inapplicable, irrelevant or of no assistance to interpreting the
scope of the criminal prohibition contained in Article 314. The text of that provision is
sufficiently clear and, to the extent that judges would identify an interpretative difficulty
in that text, they would be bound to rely upon the principles of interpretation known to
the Lebanese legal order as well as to any relevant Lebanese caselaw.
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V. CONSPIRACY
A. Conspiracy to commit an act of terrorism under Lebanese law
126. As with all other crimes under the Tribunal's Statute, the existence, applicability and
definition of conspiracy must be established pursuant to Lebanese criminal law. 142
127. Under Lebanese law, conspiracy constitutes an inchoate offence, not a mode of
liability. 143 Article 270 of the Lebanese Criminal and Article 7 of the 11 January 1958 law
defines conspiracy as follows: 144 "Any agreement concluded between two or more
persons to commit a felony by specific means shall be termed a conspiracy". This offence
has been said to consists of the following elements: "(i) the existence of an agreement (ii)
between two persons or more (iii) the airtl of this agreement is to commit a felony against
the internal or external security of the state (iv) of which the means to reach this aim are
determined and (v) criminal intent". 145
128. This definition mentioned above meets the general requirements of accessibility and
foreseeability (for the purpose of confirming the indictment). There is no apparent
definitional lacunae (relevant to this stage of the proceedings) which calls for the
application of international law (assuming that body of law would be applicable for that
purpose).
B. Conspiracy under customary international law
129. Customary international law does not provide for a general offence of conspiracy;
nor, logically, does it provide for a generic definition of this (non-existent) international
crime. Instead, conspiracy is criminalized as a matter of customary international law in
relation to genocide only (and, arguably, in relation to aggressive war). As far as
definitional guidance could be gained from recourse to international law, it could only be
had in relation to the offence of "conspiracy to commit genocide", a crime that that does
not form part of the Tribunal's jurisdiction and which is therefore irrelevant here.
130. Slgruficantly for the present purpose, conspiracy is not criminalized Wlder
international law in relation to any other international crime. In particular, there is no such
thing as an international crime of conspiracy to commit a war crime or a crime against
142 See above and, in partIcular, paras. 58 and 59. 143 In the Lebanese Criminal Code, "Conspiracy" is not provided in tbe list of forms of respollsibihty, as set forth under Chapter Il - Criminal participation. 144 See also Article 7 of the Law of 11 January 1958. 145 Prosecution Decision, Case No. 124/1994, Ballamand Monastery case, Council of Justice, 26 October 1994.
humanity.11\6 This state of affair was recently aclmowledged by the United States
Supreme Court. In Hamdan v Rumsfeld, the Supreme Court noted that:
"international sources confIrm that the crime charged here [conspiracy to commit
war crimes] is not a recognized violation of the law of war", that "none of the
major treaties governing the law of war identifIes conspiracy as a violation
thereof' and that "the only 'conspiracy' crimes that have been recognized by
international war crimes tribunals (whose jurisdiction often extends beyond war
crimes proper to crimes against humanity and crimes against the peace) are
conspiracy to commit genocide and common plan to wage aggressive war".147
131. Evidently, and in line with this state of affairs, a crime of conspiracy to commit a
terrorist act could not be said to exist under customary international law (even if one
assumes that "terrorism" exists as an international crime). There is neither state practice,
nor any opinio juris, to support such a conclusion. It is significant in that regard that none
of the major treaties on terrorism provide for an offence of conspiracy to commit a
terrorist act. 148
132. As a result, there is no definition under international law of an offence of ~'conspiracy
(to commit a terrorist act)" from which interpretative guidance could be sought for the
purpose of interpreting Article 270 of the Lebanese Criminal Code.
146 See e.g., concerning war crimes and crimes against humanity, Law Reports of Tnals of War Criminals (UNWCC), Vol. XV. 90 and references cited therein (also referring to isolated cases where the conspiracy-like concept of "association de ma/faiteurs" was made to apply to war crimes). On 9 July 1947, in a joint session in the so-called Justice and Doctors cases United States Military Tribunal found that ''neither the Charter of the International Military Tribunal nor Control Council Law No 10 has defined conspiracy to commit a war crime or crime against humanity as a separate crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offence.", Law Reports of Trials of War Criminals (UNWCC), Vol. VI, p. 5.). At Nuremberg, the crime of conspiracy applied only in relation to the crime of "aggressive war" (Le., crime against peace) whilst the Tribunal refused to apply it in relatIOn to other statutory crimes (war crimes and crimes against humanity) despite the Prosecution's msistence that it could and should do so. Before the IMT, the Tribunal expressly rejected the application of "conspiracy" to war crimes and crimes against humanity ("Count One [of the Indictment] charges not only the conspiracy to commit aggressive war, but also to commit War Crimes and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except one to commit acts of aggressive war" And "In the opinion of the Tribunal these words do not add a new and separate crime to those already listed."), p.56 147 548 US 557 (2006). The US Supreme Court also remarked that ''the sources that the Government and Justice Thomas rely upon to show that conspiracy to VIolate the law of war is itself a VIOlation of the law of war in fact demonstrate quite the opposite. Far from making the requisite substantial showing, the Government has failed even to offer a "merely colorable" case for inclusion of conspiracy among those offenses cognizable by law-ofwar mihtary commiSSIOn .. Because the cbarge does not support the comnussion's Jurisdiction, the commission lacks authority to try Hamdan." (internal quotations omitted) The ruling of the US Supreme Cowt IS cited with aEproval in A. Cassese, International Criminal Law (OUP, 2008, 2nd ed), p. 227. 1 8 See, e.g., Article 2 of International Convention for the Suppression of the Financing of Terrorism (2000); ArtIcle 2 of the International ConventIon agamst the Taking of Hostages (1979); Article 2 of the Convention on the PreventIon and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973); Article 2 ofthe Convention on the Suppression of Terrorist Bombings (1998).
C. Conspiracy and Article 3(l)(b) of the Tribunal's Statute
133. At paragraph 15 of his Order, the Pre-Trial Judge refers to as the notion of "enterprise
criminelle commune" mentioned in Article 3(1)(b) of the Statute and raises as a
potentially relevant interpretative course to compare this notion to the offence of
conspiracy.
i. No jurisdiction over JCE
134_ First, the Defence Office submits that the Special Tribunal does not have jurisdiction
to apply the doctrine of joint criminal enterprise ("JeE") as (a) it is not provided for in the
Statute, (b) was not applicable and was not known at the time in the controlling legal
order (i.e., Lebanese criminal law) and (c) in any case could not apply to domestic, as
opposed to international, crimes over which the Tribunal has jurisdiction. To the extent
that the concept included in Article 3(1)(b) of the Statute were to be said to constitute a
fonn of JeE, that particular fonn has no basis in either customary international law (with
no evidence of general and consistent state practice supporting that definition and no
evidence of opinio juris) or Lebanese criminal law (see above I49). Moreover, if it were
said to exist under customary law, it could in any case not apply to the domestic crimes
over which the Tribunal has Jurisdiction. lso Finally, even if the "mode of liability"
contained in Article 3(1)(b) were said to have existed in some fonn at the time, there is no
basis to conclude that it was in any way accessible and foreseeable to potential
defendants. IS I The principle of legality would therefore also prohibit any sort of reliance
on that concept for the purpose of criminal proceedings before the Tnbunal.
135. When comparing the two notions, it appears that: (i) JeE and conspiracy (under
Lebanese law and under international law in relation to the crimes of genoclde and
aggressive war) are nonnatively dlstinct and thus incomparable for interpretative
purposes and (ii) the elements of their respective definitions are distinct
ii. JCE and conspiracy are Ilormatively distinct
136. Even if the notion mentioned in Article 3(l)(b) was said to bc a derived category of
joint criminal enterprise, it would still be irrelevant to defining the crime of conspiracy.
149 See below paras. 158 to 164 ISO See above, paras. 33-35. 151 Ojdanic JCE Decision. para. 21.
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That is because conspiracy and joint criminal enterprise are distinct notions that may not
be equated in any meaningful way 01' for any meaningful purpose: one (conspiracy) is an
inchoate offence;152 the other (ICE) is a form ofliability.
137. After the Second World War, the United Nations War Crimes Commission clearly
insisted on the need to distinguish conspiracy from the concept of common design.153 The
same understanding, and the same conclusion, has been reached by contemporary
international criminal tribunals which have rejected (Defence) submissions that 'joint
criminal enterprise" could be compared to the inchoate offence of "conspiracy".154 The
same view has also been adopted by Judge Cassese in an affidavit:
"Under international criminal law conspiracy and joint criminal enterprise (or
common criminal purpose) are two distinct notions. Joint criminal enterprise
relates to a form of participation in a crime and is applicable to all international
crimes. In contrast, conspiracy is a crime in itself which customary international
criminal law undisputedly recognizes only for the offenses of 'conspiracy to
commit genocide'.
152 As noted above, conspiracy under Lebanese law is characterized as an "offence" and does not appear in the chapter of the Criminal Code relevant to forms of participation. See also JUl'di: Subject Matter, p. 1135, referring to it as a "crime" under Lebanese law. Under customary international law, conspiracy to commit genocide has likewise systematically been understood and characterized as a separate inchoate crime: at Nuremberg, for instance, conspiracy (to commit aggressive war) figured among the crimes in the Statute (Article 6(a) IMT Charter) and was treated as such by the IMT. See IMT Judgment ("The Law as to the Common Plan or Conspiracy") ("Planning and preparation are essential to the making of war. In the opinion of the TribwllIl aggressive war is a crime under international law. The Charter defines this offence as planning, preparation, initiation or waging of a war of aggression 'or participation in a common plan or conspiracy for the accomplishment ... of the foregoing. "'; "the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war"); Pnnciple VI of the Nuremberg Pnnciples which refers to conspiracy to commit aggressive war as one of the "crimes" recognized at Nuremberg (htlp://www.icrc.org/ihl.nsfJfullI390). See also H. Donnedieu de Vabres, "The Nuremberg Trial and the Modem Principles of lnternational Criminal Law" translated and re-printed in Mettraux, Perspectives on the Nuremberg Trial, pp. 213 and 242 et seq. More recently, international judicial pronOlmcements have clearly and consistently reiterated that point See, e.g., Musema Trial Judgment, paras 184-198; Nahimana Trial Judgment, paras 1048-1055; KajelijeJi Trial Judgment, para. 788; Akayesu Trial Judgment, para. 479; Ojdanic JCE Decision,in particular para 23. (and Separate Opinion of Judge Hunt); Law Reports o/Trials 0/ War Criminals (UNWCC), Vol. XV.90. (referring to conspiracy as "a separate offence"). That view is also generally accepted in the legal literature: G. Boas et ai, International Criminal Law Practitioner Library Volume J, Fonns 0/ Responsibility in International Criminal Law (CUP, 2007), pp. 283-284, in fine; A. Cassese, International Criminal Law (OUP, 2nd ed), p. 161 referring to conspiracy to war aggression as a "separate clime" and as an "inchoate crime" and at page 227, referring more generally to conspiracy as "a group offence", a "crime" and "a category of crime"; G. Mettraux, International Crimes and the ad hoc Tribunals (OUP, 2005),252-254, in farticular, at page 253 ("Conspiracy is an mchoate offence'~ and references cited therein.
53 Law Reports o/Trials 0/ War Criminals (UNWCC), Vol. XV. 91, 94-98. Superfluos quotation. 154 Ojdaruc JCE Decision, para. 23. See also, ibid, Separate Opinion of Judge David Hunt on Ojdanic lCE DeciSion, para. 23.
[ ... ] While joint criminal enterprise is found within current international criminal
law, conspiracy is not.,,155
138. In sum, JCE (if really that is what Article 3(1)(b) is supposed to reflect) and
conspiracy are two legally distinct notions. No useful interpretative guidance may be
gained from comparing a form of liability to interpret a crime.
139. JCE and the crime of conspiracy share one common definitional element ("the
existence of an agreement between two or more persons"). In all other respects, they
appear to be distinct. The simple observation that both of them require proof of the
existence of an agreement between participants in a joint criminal venture does not
provide any useful interpretative guidance in relation to one another.
D. Contradictory definitions
140. The Pre-Trial Judge also seeks guidance from the Appeals Chamber as to what he
would be required to do if and where the international defmition of conspiracy (if one
existed) conflicts with the Lebanese defmition of that crime.156 The answer is the same
for all similar enquiries: assuming that a definition of conspiracy exists under
international law and that it contradicts Lebanese law and considering that Lebanese law
is sole (and controlling) "applicable criminal law", the Pre-Trial Judge would have to
disregard international law as both inapplicable (for lack of jurisdiction) and as unhelpful
to interpreting applicable law (insofar as it provides no guidance for the purpose of
interpreting Lebanese law being contrary to it).
E. Conclusions
141. In light of the above, it may be concluded that customary international law does not
provide for a general definition of "conspiracy" as could be of relevance to interpreting
"conspiracy" under Lebanese law (assuming customary law could apply for that purpose).
If it exists, It does not satisfy the requirements of "accessibility" and "foreseeability".
And to the extent that contradictions would be said to exist between that international and
Lebanese definition of "conspiracy", the latter should always prevail.
ISS Affidavit of Antonio Cassese, "Conspiracy and Joint Criminal Enterprise lmder the Laws of War, David M. Hicks, v. George W. Bush et al., United States District Court for the Dbirict of Civ. Act No. 1:02-cv-00299-CKK, Exhibit A, 29 October 2004). http://www.pegc.us/archivelRasul vs Bush/hicks mot for judgement 20041101 ex A pdf. 156 PTJ's Order, para. 13.
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VI. INTENTIONAL HOMICIDE WITH PREMEDITATION AND ATTEMPTED
INTENTIONAL HOMICIDE WITH PREMEDITATION
A. Applicable law
142. As already noted, applicable criminal law is Lebanese law exclusively. Therefore,
both intentional homicide with premeditation and attempted homicide with premeditation
must be defined in accordance with Lebanese criminal law (Articles 547, 549 (1) and 200
of the Lebanese criminal code).
B. Intentional homicide with premeditation
143. The elements of this offence are as follows: (i) killing of a person (ii) through the
commission of a positive act (iii) carried out with the intention to kill, (iv) which caused
the death of that person; (v) whIch was preceded by calm and pwposeful preparation
("premedi tation").
144. Concerning element (ii), it should be underlined that this crime may only be
committed by a positive act. An omission cannot constitute the actus reus of that offence
in the absence of a legal duty to undertake a positive act to prevent the death of a
person. 157
145. Concerning element (iii) , and regarding question (xii) of the Pre-Trial Judge, the
Defence Office is aware of contradictory case law on that point. Some of that case law
would seem to support the view that premeditation needs not pertain to a given individual
and that it might be "transferrable" onto individuals who were not the intended target of
the crime, but whose death was a foreseeable consequence of the act and where the
accused accepted that risk158 In apparent contradiction to these cases, there is case law to
the effect that the element of "premeditation" must be established in relation to each
victim of the act and, if not, a conviction for that offence could only be entered in relation
only to the intended victim though not accidental victims. 159 Because of the fundamental
157 Dr. Ali Abdul Kader KahwaJi, Cnmmal Code, Special Section, Crimes agamst Persons and Property, AIHalabi 2010, p. 58. (Unofficial translation from Arabic) 1~8 See, e.g., Lebanese Republic Judicial Council, Case File No.: V97, [Assassination of Omar Karami] 25 June 1999, p.131; Judgement in the case concerning the attempted assassination of Minister Michel Murr, Case file No.: 3/95, 9 May 1997, p. 55. IS9 See, e.g., Judgement in the case of the homicide of Engineer Dany Chamoun, his Wife Ingrld llya Abdenour and their two sons, Tarek and Julian, 24 June 1995, Case file No. 411994, Jlldgement No. 5/1995, in particular pp. 70-74; Judgement in the case of the homicide of Sheikh Nizar al-Halabi, Case file No. 1/1996, Judgement No. 1/1997, 17 January 1997, p.53.
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importance of this question, the Defence Office submits, however, that the resolution of
this matter should be subject to full and adversariallitigation at trial.
146. Concerning element (iv), in accordance with Article 204 of the Lebanese Criminal
Code, Lebanese criminal law sanctions the theory of equivalence of conditions as the
principle whereby all events or actions which contributed to the result are regarded as
equivalent in principle l60 whilst acknowledging the possibility of this chain of causation
being broken where the cause is subsequent to the action of the perpetrator, is completely
independent of it and is sufficient in and of itself to cause the crime, 161
147. Concerning element (v), while the precise advance timing of the preparation of the
intentional homicide is unclear, it is clear that "premeditation" does require "quiet
planning and definite willingness [".] after full preparation of the methods of its
commission, in a way that is not in doubt',162 or have been preceded by "calm and
purposeful preparation,,,163 Therefore the preparation must have occurred away from the
location of the crime and must have been fully completed before commencement of the
implementation of the intentional homicide.
148. There is no evidence that a similar offence of intentional homicide with premeditation
exists under customary international law. Nor is it comparable from the defmitional point
of view to criminalized forms of killings under customary law. If compared to murder
(which is recognized as an underlying offence of, for instance, crimes against humanity or
willful killing as a war crime), for instance, intentional homicide with premeditation
under Lebanese law contains an element of "premeditatIOn" which caselaw generally
agrees does not fonn part of the definition of murder under international law. l64 Also, the
causal requirement (see element iv above) that forms part of the definition of that crime is
generally constmed much more strictly under Lebanese law than is the case under
international law (where certain fonns of participation have had the effect of diluting a
160 Cassation criminelle Libanaise 5eme cbambre, Decision 121,30 April 1975, Serie Alia, Vol. Tom. 4 n0704 p. 409 : A case whether the victim lost consciousness following a blow she had received on the head which had caused an accident and the death of this victim. The accused was conSidered responsible for the death of the victim. 161 Cassation criminelle Libanaise, DeciSion 318, 3JW1e 1963, Serie Alia 1965 p. 521 : "the chaID of causation is broken here between the fault of the driver who left the doors of the car open and the aCCident which resulted ID inJuries to others w~i:h was caused.by the person who stole the car." 16_ Cass. Ch. 7, DeCISion 83, 13Apnl 1999, Cassandre 1999, T 4, p.5 28. 163 Judgement in the case of the homicide of Sheikh Nizar al-Halabi, Case file No. 111996, Judgement No. 1/1997,17 January 1997,p. 51. 164 See, however, Muhimana. (Trial Chamber), April 28, 2005, para 569; Semanza, (Trial Chamber), May 15, 2003, para. 339; Kayishema and RllZindana, (Tlial Chamber), May 21, 1999, paras. 137-40 which do require a showing of premeditation for murder as a crime against humanity.
great deal that element).165 In sum, international law is inapplicable in this matter and it
would, in any case, be of no or limited interpretative value.
C. Attempted homicide with premeditation
149. The crime of attempted homicide with premeditation consists of the following
elements: (i) accomplishment of a positive act (ii) which are aimed directly at the
commission of an intentional homicide with premeditation (iii) carned out with the
intention to kill.
150. Submissions made above in relation to the necessary positive nature of the "acts" and
the requisite mens rea are equally applicable here. Regarding element (ii), this derives
from the defInition set forth in Article 200 of the Lebanese Criminal Code which requires
that attempt requires "acts aimed directly at its commission." As such, to ground liability
for attempted intentional homicide there must be proof of the commencement of the
execution of the intended offence in the form of overt positive acts directed towards the
accomplishment of the intentional homicide with premeditation in the manner planned. 166
151. It is questionable whether "attempt" is recognized either as an inchoate offence or as a
mode of participation under customary intemationallaw167 - aside and beyond the crime
of "attempt to commit genocide". 168 In any case, and furthermore, even if it were said to
exist, there is no clear and readily available defInition of that concept under customary
law. Nor, finally, does customary international law specifically recognizes a crime of
"attempted homicide with premeditation" so that any relJance placed upon international
law on that point would be of dubious reliability and r~levance. In that sense,
international law would again be of no or little assistance 10 defming this crime.
165 Applying the arguably looser causal standard of international law would effectively result in tbe application of a body of nlles less favorable to the accused. 166 Arret Lacour, Cass. Crim. 25 octobre 1962. 167 See Gerhard Werle, Principles of international crinunal law (Asser, 2005), ''the law of attempts has heretofore played no mdependent role in the practice of international criminal law, and no general rules on attempts have been found in codifications of intemanonal criminal law", p. 168. Although Werle claims that "attempts" IS part of international criminal law as it is assumed to be a "general principle of law." 168 See, Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948. [CTY Statute, Article 4(3)(d); ICTR Statute, Article 5(3)(d); Law on tbe Extraordinary Chambers in the Courts of Cambodia, ArtIcle 4.
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VII. MODES OF RESPONSABILITY
A. Applicable criminal law
}OQQQ 1:'iQllQ13 VRQQ81e1 RQQ8e19J~tVp ;k
152. As already noted, the law relevant to defining crimes and modes of liability listed in
the Statute is Lebanese criminal law. 169 The principles of interpretation relevant to
determining the nature, scope and definition of these are, therefore, the principles
provided for in Lebanese law.170
153. If the Tribunal's Statute provides for a particular mode of liability but that this
particular mode of liability did not exist in Lebanese criminal law (the controlling body of
criminal law) at the relevant time, the Tnbunal would have no authority to apply it. 171 The
same would be true where an international tribunal applies a form of liability that does
not exist in the contro/ltng legal order (Lebanese criminal law for the STL; customary
international law for the ICTY). In Stakic, for instance, the ICTY Appeals Chamber found
that the Trial Chamber had erred when relying upon a doctrine of liability ("co
perpetratorship") that did not exist in its controlling legal order (i.e., customary
intemationallaw).I72 Where a mode of liability is either absent from the text of the Statute
or is provided for in the Statute but did not exist under Lebanese criminal law at the
relevant time, the Tribunal would have to refuse to apply that particular mode of liability
as it would fall beyond the realm of Its permissible statutory framework (as is set by a
combination of the text of the Statute and a renvoi to Lebanese criminal law) and would
violate the principle of legality. 173
154. Prior to applying any form of liability listed in the Statute, the Tribunal must therefore
verify that it was indeed recognized in Lebanese criminal law at the relevant time. The
169 See above, paras. and, in particular 58 and 59. 170 See above, para. 30 and paras. 53-57. 171 Since the ad hoc Tribunals are mandated to apply customary international law - rather than domestic criminal law - that verification is conducted on the basis of customary international law. See, generally, Ojdamc JCE Decision, para. 21; Hadzihasanovic Article 7(3) Interlocutory Decision, para. 44. (footnote omitted) ("it has always been the approach of this Tribunal not to rely merely on a construction of the Statute to establIsh the applicable law on criminal responsibIlity, but to ascertain the state of customary law in force at the time the crimes were committed."); Prosecutor v Ojdanic et ai, Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect Co-Perpetration, 22 March 2006 ("OjdanicCo-Perpetration Decision',), par. 15. See also, again, Milanovic: Odd Couple, p. 1145. 172 Staldc Appeals Judgment, para. 62. ("the Appeals Chamber finds that the Trial Chamber erred ID conducting its analysis of the responsibility of the Appellant withm the framework of "co-perpetratorship". This mode of liability, as defIDed and applied by the Trial Chamber, does not have support in customary international law or In the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. [ ... ] In view of these reasons, it appears that the Trial Chamber erred in employing a mode of liability which is not valid law within the jurisdiction of this Tribunal. This invalidates the decision of the Trial Chamber as to the mode of liability it employed in the Trial Judgement."). See, also, Hadzlhasanovic Article 7(3) Interlocutory DeciSIOn, paras 32 et seq and 51 et seq. 173 See, also Ojdanic lCE Decision, para. 22; Ojdanic Co-Perpetration decision, para 15; Hadzihasanov/c Article 7(3) Interlocutory Decision, paras 32 et seq and 51 et seq.
fact that a particular crime or form of liability is mentioned in the Statute is not in itself
sufficient to warrant their application by the Tribunal. That is because the drafters of the
Statute did not have the authority or mandate to conduct a control of the legality; that
responsibility is the exclusive responsibility of the Tribunal.
B. "Harmonisation" of Articles 2 and 3 the Tribunal's Statute
155. As noted above, the "harmonization" of Articles 2 and 3 of the Statute is provided by
the Statute itself: a combined reading of these provisions makcs it clear that Lebanese
criminal law is the body of law ultimately relevant to detelmining the applicability and
definitions of both crimes and forms ofliability applicable before this Tribunal.174
156. Contrary to what the Order of the Pre-Trial Judge might suggest,175 the "international
character" of the Tribunal was never intended to enable the Tribunal to interpret its
jurisdiction ratIOne materiae in accordance with international law. As noted by the
Secretary-General's Report,
"[ w ]hile in all of these respects the special tribunal has international
characteriStiCS, its subject matter jurisdiction or the applicable law remain national
in character". 176
157. The "international" aspects of the jurisdiction of the Tribunal therefore pertain, not to
the Tribunal's applicable criminal law, but to the following: the mode of creation of the
Tribunal, the composition of its organs and the nature of its rules of procedure and
evidence.
158. The Pre-Trial Judge also queries the relevance, if any, of Articles 25 and 28 of the
ICC Statute upon the law of the Tribunal. 177 The Defence Office submits that these
prOVisions have no relevance to the Tribunal's jurisdiction ratione materiae, nor do they
impact in any way on the nature of that jurisdiction.
174 See above, paras. 33-35. 175 Pre-Trial Judge, Order, para 7(b). 176 "While the Lebanese criminal law is the applicable law, its applicability is limited to the crimes and offences provided for in article 2 of the statute. It is also subject to the provisions of the statute and therefore to the exclusion of penaltIes (e g. death penalty and forced labour) otherWIse applicable under Lebanese law." (SG Report on the STL, para. 22) See also Ibid. pma.7 in fine; Report of the Secretary-General pursuant to paragraph 6 of resolution 1644 (2005), 21 March 2006, para. 8 -: "The process of choosing the tribunal's npplicable law must take into account the types of crimes committed and respect the legal culture of Lebanon, as well as the international crirrunal justIce standards that have developed over the past years in the work of other tribunals. Consultations with the Lebanese authorities made it clear that applying Lebanese substantive criminal law would play an important role in ensuring that the tribunal would have a national dimension." 177 Pre-Trial Judge Order, paras 7(1) and 21-22.
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159. Whilst the Pre-Trial Judge appears to assume that both the concept of "command
responsibility" mentioned in Article 3(2) of the Statute and the concept of "common
purpose" in Article 3(1)(b) originated in the ICC Statute, a review of both the ICC Statute
and the - available - records of negotiations of the Tribunal's Statute contradict that view.
160. The version of the doctrine of "command responsibility" provided in Article 3(2)
corresponds neither to Article 28 of the ICC Statute (in particular as regard the latter'S
odd mens rea regime 178) nor to Article 6 of the SCSL Statute (from which Article 3(2)
was originally inspiredI7~. As the Secretary-General's Report makes clear, the form of
command responsibility provided for in Article 28 of the ICC is a "more fully
articulated"ISO version of it and it is, in reality, a different take on that doctrine. On that
basis already, the relevance (if any) of Article 28 to this Tribunal would be questionable
(assuming the applicability of the doctrine of superior responsibility in Lebanon at the
relevant time, a matter not considered here).
161. The situation is even plainer in relation to the "form of liability" mentioned in Article
3(1)(b) of the Tribunal's Statute. The ICC Statute does not contain this particular "mode
of liability" or, at least, not as defined in the Tribunal's Statute. Article 3(1)(b) could at
most be said to be a gravely diluted derivation of Article 25(3)(d) ICC Statute. ISI There is
Q(} indication that such a concept is or was recognized as a form of criminal liability under
customary intemationallaw and, as discussed next, there are good reasons to conclude
that this is not the case.
178 See e.g. J. Cockayne, "Foreword - The Special TriblIDal for Lebanon - A Cripple from Birth?", 5 nCJ 1061, at 1063 (2007), noting the discrepancy between the Statute and the ICC Statute. See also, "Symposium Editor'S Note" in Sader: Lebanese Perspective, p. 1088, fn 9, infine. 179 Sader: Lebanese Perspective, pp. 1087-1088. 180 SG Report on the STL, para. 26: "Al1icle 3, paragraph 2, reflects the principle of command responsibility both under international law and national criminal and military codes as more fully articulated in article 28, subparagraph (b), of the Statute of the International Criminal Com1. Under article 3, paragraph 3, obedience to superior order is no defence, but may be considered in mitigation of punishment." 18 See Milanovic: Odd Couple, p. 1145, noling in relation to Article 25(3)(d) of the ICC Statute that It "requires that the defendant to act 'with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court', while that of the STL Statute requires him to act 'with the aim of furthering the general criminal activity or purpose of the group' and concluding that "[t]he STL Statute is therefore less strict or specific than the Rome Statute of the ICC, when It comes to defining the cruninal common purpose of the JCE". The defirution of the form ofliablhty provided ID the 1997 Convention is much more demanding in nature than the version provided in Article 25(3)(d) ICC Statute ArtIcle 2(3)(c) 1997 Convention provides: "In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contlibutlon shall be intentional and eIther be made with the aim of furthering the general criminal activity or pw-pose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned." It therefore requires (i) a contribution to the crime committed, (ii) that is intentional, (iii) made with the aim of furthering the general criminal activity or purpose of the group or (iv) be made in the knowledge of the intention of the group to commit the offence or offences concerned.
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162. Instead of originating from Article 25 ICC Statute, as seemingly assumed by the Pre
Trial Judgc, Article 3(1)(b) appears to have been lifted from Article 2(3)(c) of the 1997
Convention for the Suppression of Terrorist Bombings. 182 This, in tum, mises serious
questions about the status of that notion as a recognized mode of liability under
customary international law.
(i) First, it should be noted that the 1997 Convention has not been ratified (nor been
signed) by Lebanon. As such it has no legal force and is not applicable in the
Lebanese legal order and, by the knock-on effect of the renvoi in Articles 2-3 of the
Statute, is not applicable to proceedings before this Tribunal.
(ii) Secondly, the Convention was never intended to create forms of liability applicable
to any form of terrorist crime. Instead, it was clearly limited in scope to one
particular type of terrorist crime, namely, "terrorist bombings". It would, therefore,
be inapplicable to any terrorist crime that does not meet the defInition of a
"terrorism bombing" as provided in the Convention.
(iii) Thirdly, it could not be said that it reflects customary international law as there is no
evidence of either (geneml and consistent) state pmctice and/or opinio juris that
would support that conclusion. This form of liability does not appear in any other
known terrorism convention.
(iv) Fourthly, this "form of liability" was neither foreseeable nor accessible to potential
defendants before this Tribunal. 183
(v) Finally, individual criminal responsibility could not result from a provision that was
not intended to have that direct effect, in the absence of domestic implementation. 184
163. Should the Prosecution seek to indict any in~vidual on the basis of that provision -
Article 3(1)(b) -, the Pre-Trial Judge would, therefore, be required to decline to do so with
a view to remain within the permissible boundaries of his jurisdiction and to protect the
principle of legality. However, to the extent that it has not sought to do so, the Defence
182 SG Report on the SIL, para. 26: "Under article 3, paragraph 1, of the statute, all those who committed., participated as accomplice, organized or directed others to commit the crime, or otherwise contributed to the commisslOn of the crime, shall be individually responsible. This is a reflection of the Lebanese Criminal Code and general crimmal law principles, evidenced, inter alia, by article 2, paragraph 3, of the International Convention for the Suppression of TelTorist Bombings of 1997 (General Assembly resolution 521164, annex)." 183 Ojdanic JCE Decision, para.21. 184 MIlanovlc: Odd Couple, p. 1146, notmg that the applIcation of that fonn of liability would be a direct violation of the principle of legality: "since the 1997 ConventIOn, like many simtlar instruments, obhges states parties to criminalise the acts it prohibits within their own domestic criminal law and sets out various modes of interparty cooperation, but it does not by itself create individual criminal responsibility either at the internanonal or at the domestic level. Only if Lebanon had indeed incorporated the JCE provision from the Convention IOtO its own Criminal Code would the nul/urn crimen problem be prevented, and to our knowledge, Lebanon has not done so."
Office submits that the Appeals Chamber should limit its fmdings to those matters that
are genuinely relevant to the confIrmation process.
164. Lastly, even if the "forms of liability" mentioned in Articles 3(1)(b) and 3(2) STL
Statute existed at the relevant time under customary intemationallaw and that they were
applicable to potential defendants as such, the Defence office is of opinion that they
would still be inapplicable to the domestic crimes over which the Tribunal has
jurisdiction. 185 They could only possibly apply to international crimes over which the
Tribunal has no jurisdiction.186
C. Conclusions
165. 10 light of the above, it may be concluded that the Pre-Trial Judge could only apply
those modes of liability that are provided in the Statute (which sets out the Tribunal's
outer jurisdictional framework) and in the Lebanese Criminal Code (which serves as a
basis to verify compliance with the principle of legality as mandated in Article 2 and 3 of
the Statute) and which were applicable to potential defendants at the time relevant to the
charges. Assessed against that standard, neither of the "modes of liability" provided in
Article 3(2) and 3(1)(b) of the Statl.1te are applicable to proceedings before this Tribunal.
VIIl.CUMULATIVE CHARGING AND PLURALITY OF OFFENCES
166. Neither the Statute, nor the Rules, of the Tribunal provide for clear principles
regarding the possibility or otherwise of charging an accused cumulatively or in the
alternative with more than one crime and/or mode of liability in relation to the same
conduct. 187 The principles relevant to interpreting the Rules have been outlined above and
the Defence Office refers to those submissions.
A. Cumulative charging in international practice - General considerations
167. There is no rule of customary law regulating the issue of cumulative charging. 188 Nor
is there any general principle that could be gathered from domestic practice. Whilst the
185 See above, paras. 33-35. 186 Ibid. 187 For tbe sake of simplicity, the question of the possibility, for the prosecution, to charge an accused in the alternative or cumulatively will be referred with the short-hand of cumulative charging. Cumulation of modes of liability is sometimes referred to as "concurrent" charging. 188 See, generally, Prosecutor v Delailc et ai, Judgement, 20 February 2001, Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Sennollna and authorities mentioned therein (cited with approval in Cassese, International Criminal Law, (2cd ed) at 178.
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body of international practice on this point is not entirely consistent, it provides for a
growing and increasingly consistent set of minimum safeguards relevant to this matter.
i. Cumulative charging before the ad hoc Tribuhals
168. The ad hoc Tribunals for the former Yugoslavia and Rwanda have generally allowed
the Prosecution to charge an accused cumulatively or in the alternative with more than
one crime or in relation to more than one head of liability, although the case law on that
point has been inconsistent. 189 This approach has resulted in exceedingly long and
protracted proceedings with multiple charges being made to cover the same underlying
conduct A trend towards increasingly strict constraints on the possibility of
cumulative/alternative charging has developed in response to these negative
consequences of un-restrained charging.
169. The practice of ad hoc Tribunals shows an increasing awareness of the potentially
prejudicial effect of the "overloading" of the indictment with multiple layers of
cumulative charges. This practice is regarded as having a negative impact on a whole
range of fundamental rights of the accused (in particular, his right to adequate
time/facilities to prepare, his right to adequate notice of the charges, his right to equality
of arms, his right to a trial without undue delay and his 'right to a fair trial).190 This
practice may also complicate the task, responsibility and ability of the tribunal to
guarantee a fair and expeditious process as it is required to. 191
170. The ad hoc tribunals have sought to discourage the multiplication of charges where
supplementary charges did not add anything to the substance of the "core" charges that
form part of the Prosecution case and where a risk exists that such supplementary charges
will impact negatively on the duration of the case. 192 They have also adopted procedural
mechanism to size down the prosecution case.193
189 See, generally, for references, G. Boas et ai, International Criminal Law Practitioner Library - Volume lJ Wlements ojCrimes under InternatIOnal Law (CUP, 2008), at 319-320.
90 See, again, e.g., Kupreskic Trial Judgment, para.724, noting in that context that the rights of the accused should be ''fully safeguarded". See, also, ibid, para.725. 191 See, for one of the first acknowledgment of that problem, Kupresldc Trial Judgment, para.728(c), holdmg that the Prosecution "should refram as much as pOSSible from making charges based on the same facts but under excessive multiple heads, whenever it would not seem warranted to contend, in line with the principles set out above in the section on the applicable law, that the same facts are simultaneously in breach of various provisions of the Statute". 192 In the Krnojelac case, for iastance, the ICIY Prosecutor was strongly advised to consider the relevance and value of bringing "grave breaches" charges (pursuant to Article 2 ICIY Statute) in addition to generic "war crimes" charges (pW'suant to Article 3 ICIY Statute). Prosecutor v Krnojelac, Transcript, 26 October 2000, at 126 (available at: http://www.icty.org/x/cases/krnojelacitranslenlOOI026it.htm). The Prosecutor duly heeded the
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171. Finally, preference for alternative, rather than cumulative, charging has been favoured
lD some jurisprudential instances with a view to reduce (somewhat) the burden of
combined charges.194
ii. Cumulative charging and plurality of offences at subsequent
international(ised) tribunals
172. Practice from subsequent international or international(ised) tribunals suggests a
growingly more restrictive approach to the possibility of multiple charges. The ICC, for
instance, has effectively confrrmed charges in all pending cases in relation to one mode of
liability only.195 In the Bemba case, for instance, the Pre-Trial Chamber only confrrmed
charges in relation to one mode of liability,196 and emphasized that the practice of
cumulative charging is detrimental to the rights of the accused, since it places an undue
burden on the Defence. It also found that cumulative charging for multiple offences under
several categories of crimes is possible only "if each statutory provision allegedly
breached in relation to one and the same conduct requires at least one additional element
not contained in the other."I97 Similarly, in both Katanga and Lubanga, charges were
confirmed in relation to one mode ofliability only.198
173. A similarly restrictive approach to cumulative charging appears to have been adopted
before the ECCC. In their discussions of the matter, the Extraordinary Chambers have
good-sensical advice of the Trial Chamber and formally sought leave to withdraw its Article 2 charges. Prosecutor v Krnojelac, Motion to Withdraw Article 2 Counts, 27 October 2000. 193 To place some restrictions onto such practice, judges of the ICTY have therefore adopted Rule 73b.s(E). This article provides that a 'Trial Chamber, having heard the parties and in the interest ofa fair and expechtious trial, may direct the Prosecutor to select the counts in the indictment on which to proceed' . 194 See, in particular, Kupreskic Trial Judgment, para 728(b). 195 See, e.g., Prosecutor v. Lubanga, 29 January 2007, Decision on the Confirmation of Charges, para.321 (regardmg modes of liability), paras. 204 and 284 (regardmg the possibility of cumulative charges regarding the underlying offence, depending on the nature of the armed conflict) (and, for a critic -of that ruling, P. Bekou, ""Prosecutor v Thomas Lubanga Dyilo - Decision on the Confmnation of Charges", Human Rights Law ReVIew 8:2 (2008), pp. 343-355); Prosecutor v. Katanga, 30 September 2008, Decision on the Confirmation of Charges, para.419 (regarding the test to allowing cumulative charging), 347-354 (regarding the applicatIOn of that test to the relevant charges) and para.461 (regarding the refusal of the Pre-Trial Chamber to allow for the cumulative charging ofa sub-summed offence); Prosecutor v. Gombo, IS June 2009, DeciSIOn Pursuant to Article 61n)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo. 196 See, generally, Prosecutor v., Pubhc Redacted Version Of the Amended Document contaming the charges filed on 30 March 2009, 30 March 2009; Prosecutor v. Bemba, 15 Jtme 2009, Decision Pursuant to Article 61/7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo. I91Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-Ol/05-01l08424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, 15 Jlme 2009, para 202; Bemba Decision on Prosecutor's Appeal, para. 28. 198 See references given above.
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had recourse to the Blockburger test which was applied by the ICC in the Bemba case.199
This test holds that "where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two
offences or only one, is whether each provision requires proof of a fact which the other
does not." 200 Relying on a similar test, the ECCC has taken the view that cumulative
charging should not be permitted where charges brought cumulatively or in the alternative
fall foul of that test.201
174. From the above, it can be inferred that current practice is moving towards a more
restrictive approach that excludes any cumulation of charges where each offence (or form
of liability) charged does not encompass a defmitional or material element not included in
the other.
B. Cumulative charging under Lebanese law
175. Lebanese law does not expressly regulates the issue of cumulative charging.
However, Article 181 of the Criminal Code regulates the issue of cumulation of offences.
Lebanese practice in that regard appear to allow in principle for cumulative charging of
multiple offences whilst providing limitations as regard its effect on sentencing where a
conviction has been entered
C. Cumulative charging and human rights
176. Rule 3(A)(ii) also provides that the regulatory regime of the Tribunal should be
interpreted in light of international standards on human rights. Regardless of the regime
that is adopted by the Tribunal in regard to this matter, it would have to ensure that this
regime protects and guarantees the effectiveness of, inter alia, the following rights of the
defendant: his right to adequate time/facilities to prepare, his right to adequate notice of
199 See, in particular, Prosecutor v. Kaing Guek Eav "Duch ", Decision on Appeal Against Closing Order Indicting Kaing Guek Eak Alias "Duch," 001l18-07-2007-ECCc/OCIJ, 5 December 2008, paras. 51-107; see also Prosecutor v. Ieng Sary, 001l19-09-2007-ECCC/OCIJ , Provisional Detention Order, 14 November 2007, para.9. It should be noted here that the Bloclcburger case was initially developed in the context of a different question, namely, cumulative conviction (rather than cumulative charging) and that it was conSIdered for that ptu1>ose in the Celebici Appeals Chamber (ICTY). Its relevance was later expanded - at the ICC and the ECCC - to the issue of cumulative charging. This extensioo of the test at the charging stage also has some support ID
the literature. See Cassese, International Criminal Law (2nd ed), at 178-182. 100See Blockburger v. United States, 284 U.S. 299, 304 (1932). Regarding the application of that test in international criminal law, see, generally, G. Mettraux, International Crimes and the ad hac Tribunals (OUP, 2005), at 315-319; G. Boas et 01, International Criminal Law Practihoner Library - Volume Il (Elements oJ Crimes under International Law (CUP, 2008), at 319-323. 201 Ibid.
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the charges, his right to equality of arms, his right to a trial without undue delay and his
right to a fair trial.
D. Preliminary conclusions
177. In light of the above, the following conclusions may be drawn as regard the scope of
permissible cumulation of charges as a matter of international and Lebanese practice:
(i) There is an increasingly restrictive approach to the practice of cumulative charging,
although not, strictly speaking, a fonnal prohibition of this practice. As reflected
before the ICC, that attitude is particularly evident in relation to the charging of
multiple forms of liability in relation to the same conduct which represents the
greatest challenge for both defence preparation and the overall duration of the
proceedings.
(ii) There is what could be characterized as a growingly converging body of
international prohibition of cumulative charges where charges fail the Blockburger
lest or a version thereof, whereby charges should not be brought cumulatively or in
the alternative at the beginning of proceedings when they could not pass the test for
cumulative convictions at the end of the proceedings.
(lii) International practice recognizes and sanctions a prohibition against "overloading"
of the indictment by the Prosecution.
(iv) Cumulative charging must in all cases be applied in such a way as to not affect the
effectiveness of the accused's fundamental rights and do not interfere with the
Tribunal's general responsibility to ensure a fair and expeditious trial.
(v) There is a stated preference - in some instances - for "alternative" rather than
"cumulative" charging.
E. Suggested safeguards
178. In light of the above, the Defence Office will offer a number of practical and
procedural solutions that might provide for the outline of a viable regime of cumulative
(or alternative) charging:
179. First, cumulative charging cannot be oppressive as this would result in an unfair trial
- in violation of Article 16 of the Statute. The Defence Office, therefore, submits that the (
Pre-Trial Judge should apply the Bloc!cburger standard to any proposal on the part of the
Prosecution to bring charges cumulatively or in the alternative and disallow those charges
that fail to pass that test.
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180. Second, cumulative charging should in no case put the defendant in a position where
he does not have adequate time or facilities to prepare for tria1.202 In that sense, both time
and resources should be commensurate to the allowance that is made for
cumulative/alternative charging.
181. Third, allowance for cumulation of charges should be conditioned on the fundamental
requirement that the indictment should, in all cases, provide the accused with detailed
notice of the charges.203 In particular, the Defence should be entitled to readily identify,
from the indictment, those material facts that are relevant to one charge rather than the
other or whether it is said to be relevant to both?04 The Pre-trial Judge should therefore
ensure that charges are confirmed only if and where they meet basic pleading principles
on fonn and clarity so as to provide the accused detailed notice of each aspect of the
charges - whether brought cumulatively, in the alternative or as a single charge.
IX. CONCLUSION
182. In light of the above, and in response to the questions of the Pre-Trial Judge, The
Defence Office's position is as follows:
With regard to the notion of terrorist acts:
(i) No. Only Lebanese criminal law is relevant to defining the crime ofterrorism.205
(ii) -
(iii) The elements of the crime of "terrorism" under Article 314 (as developed in Lebanese
jurisprudence) have been outlined above in paragraphs 75-81 of the present ftling and
are adopted here by reference. , (iv) Because this matter is necessarily and inextricably linked to factual allegations
contained in the charges, it is the Defence Office's position that this question should not
be decided until it has been subject to an adversarial process between the Prosecutor
and any future defendant.
With regard to the notion of conspiracy:
202 The ftmdamental right of the accused to adequate time and facilities is guaranteed by Article 16(4)(b) of the Statute. 203 That fundamental nght is guaranteed in Article 16( 4)(a) of the Statute. 204 Regarding the reqUIrement of pleading of "material facts", see, generally, Kupre§kic Appeals Judgment, para.88; Furundiija Appeals Judgement, para. 147; Krnojelac Decision of 24 February 1999, paras. 7 and 12; Krnojelac Decision of 11 February 2000, paras. 17 and 18; and Brlamn Decision of20 February 2001, par 18 205 See, above, paras. 87-125 on the irrelevance of intematlonallaw.
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(v) Only Lebanese criminal law is relevant and applicable concerning the crime of
conspiracy (to commit a terrorist act)?06
(vi) To the extent that any contradictions might exist between Lebanese and international
law (if "conspiracy" exists under customary international law), Lebanese criminal law
should prevail as the only applicable criminal law and so as to preserve the principle of
legality (as interpreted in the Lebanese legal order). In case of' contradiction,
international law (even if it were relevant for interpretative purposes) would therefore
have to be disregarded as irrelevant, inapplicable or as providing no interpretative
assistance. 207
(vii) The elements of the crime of "conspiracy" under Article 270 and Article 7 of the 11
Janu.:'U)' 1958 Law (as developed in Lebanese jurisprudence) have been outlined above
in paragraphs 126-128 of the present fJJing and are adopted here by reference.
(viii) Conspiracy and JCE are entirely different legal concepts, which are not comparable for
definitional purposes. Furthermore, JCE does not form part of the Tnbunal's
jurisdiction ratione materiae, nor was it part of the Lebanese criminal order at the
relevant time so that It could not be made to apply to the Jurisdiction of this Tribunal.
Nor, as the Pre-Trial Judge's order suggests, does JCE form part of the charges. In these
circumstances, the Defence Office submits that the Appeals Chamber should, therefore,
refrain from making any findings in relation to that particular mode of liability. 208
With regard to intentional homicide with premeditation and attempted intentional
homicide with premeditation:
(ix) Only Lebanese criminal law is relevant to defming these crimes (articles 547, 549 (1)
and 200 of the Lebanese criminal code )?09
(x) The Defence Office adopts for the present purpose the submissions it has made above in
response to question (vi).
(xi) The elements of these crimes (as developed in Lebanese jurisprudence) have been (
outlined above in paragraphs 143-147 and 149-150 of the present fIling and are adopted
here by referenc,e.
(xii) The Defence Office adopts for the present purpose the submissions it has made above in
lesponse to question (iv).2JO
206 See, above, para. 126. 107 See, above, paras. 129-132. lOB See, above, paras. 133-140. 2~See,above,para. 142.
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With regard to modes of responsibility:
(xiii) Only Lebanese criminal law is relevant to defming modes of liability set out in the
Statute?ll Any contradictions with intemationallaw, if they exist, should be treated in
the same way as it is submitted they should in the responses to questions (vi) and (x)
above.
Cumulative charging
(xiv) None of the relevant sources provide for a defmitive answer on that point. The Defence
Office has identified, however, a number of considerations and safeguards relevant to
that matter which, in its submissions, should be taken into consideration when adopting
a particular regime in this matter.2l2
(xv) The Defence Office agrees with the assertion that the same act can be defined in several
different ways, albeit within the limitations set out above in paragraphs 178-181. Both
cumulative and alternative charging would be subject to these limitations.
--Franyois Roux
Head of Defence Office
Dated this 31 SI day of January 2011 Leidschendam
Word count. 28,177
210 See also para. 145. 211 See, above, para. 152. m See, above, paras. 178-181.
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List of Authorities
Nuremberg Trials
International Military Tribunal - Opinion and Judgment http://www.loc.gov/rr/frdIMilitary Law/pdf/NT Nazi-opinion-judgmentpdf
Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Councill.aw No. 10. http://www.1oc.gov/rr/frdlMilitary LawlNTs war-criminals.htrnl
United Nations documents
Report of the Secretary-General on the establishment of a Special Tribunal for Lebanon, 15 November 2006, UN.Doc. S/2006/893 and Addendtlffi thereto S/2006/8931 Add.1.
Security Council, 5685th Meeting, 30 May 2007, SIPV.5685.
2009 Global Survey of the implementation of Security Council resolution 1373 (2001) by member States, Compiled by the Counter-Terrorism Committee, http://www.un.orglenlsc/ctc/docs/gis-2009-09 en.pdf.
Report of the Secretary-General pursuant to paragraph 6 of resolution 1644 (2005), 21 March 2006.
International Criminal Court (ICC)
Official Records of the 8th Session of the meeting of States Parties (October 2008) (available at: http://www.icc-cpi.intliccdocs/asp docs/ASP8/0RlOR-ASP8-Vol.I-ENG.Annexes.pdf
Prosecutor v. Lubanga, Decision on the Confinnation of Charges, 29 January 2007.
Prosecutor v. Katanga, Decision on the Confirmation of Charges, 30 September 2008.
Prosecutor v. Gombo, Decision Pursuant to Article 61/7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009.
Permanent Court ofIntemational Justice (pCIJ)
Article 3, Paragraph 2 ofthe Treaty of Lausanne (Frontier between Turkey and Iraq), PCU Advisory Opinion (1925), Series B, No. 12.
Access of Polish War Vessels to the Port of Danzig, PCIJ Advisory Opinion (1931), Series NB, No. 43.
PUBLIC RI43818
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Asylum case, ICJ Reports (1950).
International Court of Justice (ICJ)
North Sea Continental Self Cases, ICJ Reports, 1969.
Nuclear Tests (Australia v. France), rCI Judgment (1974).
Sovereignty over Pulau Litigan and Pula\.l Sipadan (IndonesialMalaysia) ICJ Reports 625.
International Criminal Tribunal for the former Yugoslavia (ICTY)
Prosecutor v. Blagojevic, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 7 November 2003.
Prosecutor v. Blagojevic, Decision on Independent Counsel for Vidoje Blagojevic's Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003.
Prosecutor v. Brdanin et al., Decision on Objections by Momir Talic to the Form of the amended Indictment, 20 Febmary 2001.
Prosecutor v. Mucic et al., (Celebici camp), Trial Judgment, 16 November 1998.
Prosecutor v. Delalic et. al., Trial Chamber, Judgment, 16 November 1998.
Prosecutor v. Delalic et aI, Appeals Chamber, Judgment, 20 February 2001, Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna.
Prosecutor v. Furundiija Appeals Chamber, Judgment, 21 July 2000.
ProsecutQr v. Hadzihasanovic, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003.
Prosecutor v. Haradinaj, Decision on Ramush Haradinaj's Modified Provisional Release, 10 March 2006.
Prosecutor v Haraqija and Morina, Decision on Haraqija and Morina Request for Reconsideration of Scheduling Order and for Certification for Appeal, 29 May 2008.
Prosecutor v. Kordic and Cerkez, IT-95-1412, Decision on joint defense motion to dismiss the amended indictment for lack of jurisdiction based on the limited jurisdictional reach of articles 2 & 3,2 March 1999.
Prosecutor v. Kupreskic, Appeals Chmaber, Judgment, 23 October 2001.
SICi i-OIlVAORi'76bls FuuU4J2U i iO i 3IIRUUU i24-RUUU249JENJpvK
Prosecutor v. Krnojelac, Transcript, 26 October 2000, at 126 (available at: http://www.icty.org/x/cases/krnojelac/trans/enlOOl026it.htm).
Prosecutor v Krnojelac, Motion to Withdraw Article 2 Counts, 27 October 2000.
Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999.
Prosecutor v. K.rnojelac, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000.
Prosecutor v. Kupreskic, Trial Chamber, Judgment, 14 January 2000.
Prosecutor v. Milosevic, Decision on Assigned Counsel's Motion for Withdrawal, 7 December 2004.
Prosecutor v Milutinovic et ai, Decision on Interlocutor Appeal on Motion for Additional Funds, 13 November 2003.
Prosecutor v. Ojdanic et ai, Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect CoPerpetration, 22 March 2006.
Prosecutor v. Stakic, Appeals Chamber, Judgment, 22 March 2006.
Prosecutor v Vojislav Seselj, Decision on the Financing of the Defence of the Accused, 30 July 2007.
Prosecutor v. Vasiljevic, Trial Chamber, Judgment, 29 November 2002.
Prosecutor v. Ojdanic, Decision on Dragoljub Ojdanic's motion challenging jurisdiction - joint criminal enterprise, 21 May 2003.
International Criminal Tribunal for Rwanda (ICTR)
Prosecutor v. Akayesu, Trial Chamber, Judgment, 2 September 12998.
Prosecutor v. Bizimungu et. al., Decision on Defendant Bicamumpaka's Motion for Reconsideration of Oral Decision Regarding Violation of Prosecutor's Obligations Pursuant to Rule 66(B) ofthe Rules of Procedure and Evidence, 7 February 2008.
Prosecutor v. Kajelije/i, Trial Chamber, Judgment, 1 December 2003.
Prosecutor v. Muhimana, Trial Chamber, April 28, 2005.
Prosecutor v. Kayishema and Ruzindana, Trial Chamber, May 21, 1999.
Prosecutor v. Musema, Trial Chamber, Judgment, 27 January 2000.
Prosecutor v. Nahimana Trial Chamber, Judgment, 3 December 2003.
Prosecutor v. Semanza, Trial Chamber, May 15,2003.
European Court of Human Rights (ECtHR)
Baskaya and Okc;uoglu v. Turkey, Grand Chamber, Judgment, 8 July 1999.
Eeer and Zeyrek v. Turkey, Judgment of27 February 2001. I
Kokkinakis v. Greece, Decision of25 May 1993.
Kress v. France, Judgment of7 June 2001.
s.w. and C.R. v. United Kingdom, Judgment of22 November 1995.
Vermeulen v Belgium, Judgment of20 February 1996.
Inter-American Court of Human Rights (IACtHR)
Report on Terrorism and Human Rights, OEAlSer.LNIII.116 Doc. 5 rev. 1 COrT., 22 October 2002.
Extraordinary Chambers in the Courts of Cambodia (ECCC)
Prosecutor v. Ieng Sary, 002/19-09-2007-ECCC/OCIJ , Provisional Detention Order, 14 November 2007.
Prosecutoff v Ieng Sary et al., Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise, 002/19-09-2007-ECCC/OCIJ, 20 May 2010.
Prosecutor v. Kaing Guek Bav "Duch ", Decision on Appeal Against Closing Order Indicting Kaing Guek Eak Alias "Duch,", 001/18-07-2007-ECCC/OCU, 5 December 2008.
Prosecutor v. Khieu Samphan et al., Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise (Office of the Co-Investigative Judges), 002/19-09-2007/ECCC-PTC, 8 December 2009.
PUBLIC Rl43821
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Lebanesejurispnldence
Court of Cassation
Court of Cassation, Judgment No. 201\1998,17 November 1998 (p. RRiachi).
Court of Cassation, Judgment No.332\2005, 15 December 2005 (p. R.Riachi) (TOHME case).
Court of Cassation, Judgment No. 212\2003, 23 July 2003 (p. R.Riachi). (Reference 9)
Military Court of Cassation, Jtldgment, Case no. 79/1959 29 December 1959. [In Arabic] Cited in Jibran Mansour, Majmoaat Qararat Mahkamat Al-Tamyeez Al-Aaskariya [The Decisions of the Military Court of Cassation] (Beirut: Lebanese Maronite Publishers),
Criminal Cassation of 26/1//1979, mentioned in Nairn Mghabghab, Smuggling and Money Laundering [~...*i J ~ JIJ",iJI], 2005.
Cass. Crim. 6th Chamber, Decision No. 127, of the 19/10/1999, Sader Cassation, 1999. (Reference 10)
Cass. Crim. 6th Chamber, Decision No. 41 of the 14/02/2001, Sader Cassation, 2001, part 1. (Reference 11)
\
Crim. Cass. 6th chamber, Decision No. 224, of 11 October 2001. (Reference 12)
Criminal Chamber of the Court of Cassation, Sixth Chamber Decision No. 142, 9 November 1999, re-printed in Les arrets de la Cour de Cassation, (Sader Publishers, 2001).
Criminal Cassation of 13/12/1980. published in Nairn Mghabghab, Smuggling and money laundering [~~ J ~ JI.,..\tI], 2005, p. 231.
47 Judgment, Case no. 334/1953, Fathiye case, Court of Cassation, 16 November 1953. [In Arabic] Cited in Samir Aalieh, Mahkamaat Al-Naqqed fi Ashreen Aaman Minz Inshaeha 1950-1970 [The Court of Cassation in the Twenty Years since its Establishment] (Beirut: The University Institution for Studies, Publication and Distribution, 1993). [Arabic]
Cass. Crim. Decision No. 83,9 March 1961, encyclopedie criminelle Alia, nO 974, pp. 254-255.
Cass. Crim. Decision of 15 November 1973 and 31 January 1972, Alie no. 604.
Cass. Crim. Decision of6 February 1964, Revuejudiciaire libanaise, 1963, p. 1191.
Decision of the Criminal Chamber of the de Criminal Chamber, Court of Cassation: Minor house servant, 9 November 1999. (Reference 13)",
Judgment, Case no. 85/1998, Public Prosecution v. Shkeir, Chamber 6, Court of Cassation, 16 April 1998. [In Arabic} In Sader, 'Sader Fi AI-Tamyeez, AI-Qararat Al-Jazaeya' [Court of Cassation: Penal Decisions] (Beirut: Sader Legal Publications, 2001), 490. [Arabic].
Court of Cassation, Judgment no 85\1998, 16 April 1998 (p. R. Riacbi); Court of Cassation, Judgment no 249\2007,27 December 2007 (P. R.Riacbi) (Reference 14)
Council of Justice
Judgment 111975, Cotmcil of Justice, 23 June 1975. [In Arabic] Cited in Samir Aalieh, Ijtihad AI-Majlis AI-Aadli fi AI-Jarayem Aala Amn AI-Dawla 1949-1977 [Jurisprudence of the Council of Justice on Crimes against the Security of the State 1949-1977] (Beirut: University Collection for Studies, Publications and Distribution, 1987), p. 58. [Arabic];
Judicial Council, Judgment, 17 January 1997 (Case of Assassination ofNizar AI-Halabi). http://www.stltsl.org/x/fileffheRegistry/LibrarylBackgroundDocumentslRelevantLebaneseCaseLaw/Nizan Ha labi Case Judgement English.pdf
Judicial Council, Judgment, 13 July 1996 (Saydit Najat case);
Judgment, Prosecution v. Jaajaa, EI-Khoury and Malek (Saydit Najat case), Council of Justice, 13 July 1996, p. 279.
Other Courts
Beirut Appeal Court, 7th Chamber, Decision No. 214, of 28/411983, AL Ade11983, Part 3-4, p. 473, cited in the Lebanese criminal Code, Antoine publications 2009. (Reference 15).
Criminal Court of Mount Lebanon, Case number 210\2003, Judgment, 17 April 2003, Court of Cassation, Judgment no 221 \2008, 11 December 2008 (p. R.Riacbi).
Single Criminal Judge, of the 19/1112007, case Prosecutor vs. Sabah Abbas Sarhan AI Akidi. (Reference 16).
Decision No. 142, In re Yahya and Abdalla (Before: Ralph Ri achy, Presiding Judge; Samir Aliya; and Rabia Amish)
Lebanese Authorities
Elias Abu Eid, Le Droit Penal, entre texte, doctrine et jurisprudence, une etude comparee, 2008, Tome 1 (Reference 1)
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Dr. Samir Alia, Explanation of the Criminal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 53 (title translated from Arabic) (Alia: Explication) (Reference 2)
Dr. Samir Alia, Explanation of the Criminal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 63 (title translated from Arabic) (Reference 3)
Dr. Samir Alia, Explanation of the Criminal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 64 (title translated from Arabic) (Reference 4)
Dr. Samir Alia, Explanation of the Criminal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 67 (translated from Arabic) (Reference 5)
Dr. Ali Abdul Kader Kahwaji, International Treaties before criminal jurisdictions, University House, Legal Library, p. 24 (title translated from Arabic). (Reference 6)
Dr. Mahmtid Najib Husni, Explanation of Criminal law, general section, Al Halabi, Part 1, p. 134 (title translated from Arabic). (Reference 7)
Dr. Samir Alia, Explanation of the Criminal Law General Section, University Association for Studies editions and publications, Beirut 2002, p. 83 (title translated from Arabic). (Reference 8)
Domestic case law
Australia
NUlyarimma v. Thompson, Federal Court of Australia (1999) 165 ALR 621.
France
Court of Cassation, Criminal Chamber, Appeal No. 00-87215, Appeal Judgment, Decision No. 64, ILDC 774, 13 March 2001 ("Gaddhafi case").
Court of Cassation, Criminal Chamber, Javor case, 26 March 1996, Bull.crim.1996. n. 379, No. 132.,93 AJ.I.L. 525.
Movement Against Racism and for Peoples' Friendship v Aussaresses, Appeal judgment, Appeal no 02-80719; Decision no 122, 17 June 2003.
Switzerland
Military Cour de Cassation, In re N, 27 April 2001.
United Kingdom
House of Lords, Brind v Secretary of State for the Home Department, [1991] 1 All ER 720.
House of Lords, Hiscox v 01.1thwaithe [1992] 1 AC 562.
House of Lords, Rv. Immigration Officer at Prague Airport ex parte European Roma Rights Center [2004] UKHL 55.
United States of America
Affidavit of Antonio Cassese, "Conspiracy and Joint Criminal Enterprise under the Laws of War, David M. Hicks, v. George W. Bush et al., United States District Court for the District ofCiv. Act No. 1 :02-cv-00299-CKK, Exhibit A, 29 October 2004. http://www.pegc.us/archive/Rast11 vs B1.1shlhicks mot for judgement 200411 0 1 ex Apdf
Blockburger v. United States, 284 US. 299, 304 (1932).
Flatow v Islamic Republic of Iran, 999 F Supp 1, D.D.C.,1998.at 17 , United States District Court, District of Columbia, March 11, 1998.
Hamdan v. USA, 548 US 557 (2006).
Tel-Oren v. Libyan Arab Republic 726 F .2d 774 C.AD.C. 1984, United States Court of Appeals, District of Columbia Circuit, February 03, 1984.
U.S. v. Yousef, 327 F2d 56, 327 F.3d 56, C.A2 (N.Y.),2003, United States Court of Appeals, Second Circuit, April 04, 2003.
World Trade Organization (WTO)
Canada-Term of Patent Protection Report ofWTO Appellate Body, WTIDS170/ABIR (2000)
Report of the WTO Appellate Body, Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products, WTIDS98/ABIR.
A.t'vlBOS, Kai: Implementacion del estatuto de Roma en la legislaction nacional', in K. Ambos and E. Malarino (eds.), Persecucion penal de crimenes internacionales en America Latina y Espana (Montevideo :2003)
BOAS, Gideon et aI, International Criminal Law Practitioner Library, Fonns of Responsibility in International Criminal Law, Vol. 1., Cambridge University Press, 2007.
BOAS, Gideon et ai, International Criminal Law Practitioner Library - Elements o/Crimes under International Law Vol. 2., Cambridge University Press, 2008.
BROWNLIE, lan: Principles of Public International Law, Oxfor University Press, 7th ed, 2008.
CASSESE, Antonio: International Criminal Law, Oxford University Press, 2008, 2nd ed.
CASSESE, Antonio and DELMAS-MARTY, M. (eds): Juridictions Nationales et Crimes Internationaux, Paris: PUF, 2002.
Em, Elias AbLl, Le Droit Penal, entre texte, doctrine et jurisprudence, une etude comparee, 2008.
FERDINANDUSSE, Ward N.: Direct Application of International Criminal Law in National Courts, TMC Asser Press, 2006.
JENNINGS, Rober and WATTS, Arthur: Oppenheim's International Law, Oxford University Press, 2008, (9th ed).
LEVASSEUR, G. et. al.: Droit penal general et procedure penale, 13th ed., 1998.
Memorandum for Judge Biddle and Judge Parker,S October 1945, referred to in G. Mettraux, ''Trial at Nuremberg", in SCHABAS, William and BERNAZ, N.: Routledge Handbook of International Criminal Law, ROlltiedge, 2010.
METTRAUX, Guenael: International Crimes and the ad hoc Tribunals, Oxford University Press 2005.
NASSER, P.: Droit Penal General, 1997.
SAUL, Ben: Defining Terrorism in International Law Terrorism, Oxford University Press, 2006.
SIMMA, Bruno et al. (eds): The Charter of the United Nations - A commentary, 2nd edition, Oxford University Press, 2002
SMIDT, Alex and JONGMAN, A.J.: Political terrorism: a new guide to actors, authors, concepts, data bases, theories, and literature. Amsterdam, Transaction Books, 1988.
TALLGREN, 1. and CORACINI, R.: Article 20: Ne bis in idem, in TRlFFrERER, Otto (ed), Commentary on the Rome Statute of the Intemational Criminal Court (2nd ed), C.H. Beck/HartlNomos.2008.
TRECHSEL, Stefan: Human Rights in Criminal Proceedings, Oxford University Press, 2006.
WALKER, C.: Blac/cstone's Guide to Anti-Terrorism Legislation, Oxford University Press, 2002.
WEINBERG et al.: The challenge of conceptualizing terrorism, Routledge, 2004.
WERLE, Gerhard: Principles of international criminal law, TMC Asser Press, 2005.
WYNGAERT, C. V. den and ONGENA, T.: Ne bis in idem Principle, Including the Issue of Amnesty', in CASSESE, Antonio et al. (eds.), The Rome Statute of the International Criminal Court; A Commentary, Oxford University Press, 2002.
Articles
BEKOU, P.: Prosecutor v Thomas Lubanga Dyilo - Decision on the Confinnation of Charges, Human Rights Law Review, 2 (2008)
BENll.LOUCHE, "Droit Francais", CASSESE, Antonio and DELMAS-MARTY, M. (eds) : Juridictions Nationales et Crimes Internationaux, Paris: PUF, 2002.
COCKAYNE, J.: Foreword - The Special Tribunal for Lebanon - A Cripple from Birth?, 5 Journal of International Criminal Justice (2007)
DENZA, E.: ''The Relationship between international and national law", in M. Evans (ed) , International Law (2006)
FICHET-BOYLE,1. and MOSSE, M.: 'L'obligation de prendre des mesures internes necessaires a la prevention et la repression des infractions', in: A. Pellet (ed.) Droit international penal (paris: Pedone, 2000), p. 872. 2000.
JOHNSON, L. D.: 'Ten Years Later: Reflections on the Drafting', 2 Journal of International Criminal Justice (2004).
JURDI, N. N.: The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon, 5 Journal of International Criminal Justice (2007).
LELIEUR-FISHER, "Prosecuting the Crimes Against Humanity Committed during the Algerian War: an Impossible Endeavor?" 2 Journal ofInternational Criminal Justice (2004).
MENDELSON, M.: "The effect of customary intemationallaw on domestic law: An overview", 2004/4 Non-State Actors and International Law 75.
Mll.ANOVIC, M.: "An Odd Couple - Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon", 5 Journal ofInternational Criminal Justice 1139 (2007).
SADER, C.: "A Lebanese Perspective on the Special Tribunal for Lebanon - Hopes and Disillusions", 5 Journal ofInternational Criminal Justice (2007).
SCHABAS, W.: Interpreting the Statutes of the Ad Hoc Tribunals, in VOHRAH, L. et al (eds), Man's Inhumanity to Man, Kluwer, 2003, 847-888.
STERN, International Decisions: In Re J avor and In re Munyehsyaka, 93 AJIL.
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STIRLING-ZANDA, S.: 'The determination of customary international law in European courts (France, Germany, Italy, The Netherlands, Spain, Switzerland), 4 Non-State Actors and International Law, 2004.
WOOD, M.: ''The Interpretation of Security Council Resolutions", 2 Max Planck YE UNL,73 (1998).
WRIGHT, Q.: 'War Criminals', (1945) 39 American Journal oflnternational Law
Other documents
Preliminary report prepared by Ms. Kalliopi K. Koufa, Special Rapporteur, Commission of Human Rights, E/CNAISub.211999/27, 7 June 1999.
Commission on Human Rights, Sub-Commission on the Promotion and protection of human rights, "Specific Human Rights Issues: New Priorities In particular Terrorism", E/CNAISub.212003IWP.1, 8 August 2003.
Specific Human Rights Issues: New Priorities in Particular Terrorism and Counter-Terrorism - A Preliminary Framework draft of principles and guidelines concerning human rights and terrorism, Commission on Hmnan Rights, 22 June 2005, E/CN.4/Sub.212005/39.
Commission on Human Rights, 28 Dec 2005, E/CNA12006/98, Promotion and Protection of Human rights - Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights while Countering Terrorism, www.ohchr.orgldocuments/publications/digesljurisprudenceen.pdf.
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Reference 1 Elias Abu Eid, Le Droit Penal, entre texte, doctrine et
La loi penale nouvelle ne dispose que pour l'avenir, elle n'a pas d'effet retroactif. Cependant, elle s'applique me me aux faits anterieurs si elle est plus douce.
