Amicus Curiae Brief on the Question of the Applicable Terrorism Offence with a Particular Focus on a 'Special' Special Intent and/or a Special Motive as Additional Subjective Requirements
Criminal Law Forum, Vol. 22, pp. 389-408, 2011
12 Pages Posted: 14 Dec 2011
Date Written: February 11, 2011
The following Amicus Curiae Brief was written pursuant to the Scheduling order of the President of the Special Tribunal for Lebanon (‘STL’) of 21 January 2011 regarding case STL-11-01/I. On this same date the Pre-Trial Judge of the Special Tribunal for Lebanon (hereinafter ‘STL’) posed several questions to the Appeals Chamber (‘Chamber’) pursuant to Rule 68 (G) of the Rules of Procedure and Evidence. Three of these questions dealt with the crime of terrorism: (1) Should the Tribunal take into account international notions on terrorism even though Article 2 of the Statute only refers to the Lebanese Criminal Code (‘LCC’)? (2) If so, is there an international definition of terrorism and how should it be applied? (3) If not, how is the Lebanese definition of terrorism to be interpreted by the Chamber? Both the Prosecution and Defense submitted extensive briefs dealing, inter alia, with these questions. Additionally, two Amicus Curiae briefs were submitted, among them this one, which focused on the subjective side of the crime of terrorism.
On February 16, 2011, the Chamber issued its (interlocutory) decision pursuant to Rule 176 bis (A). The Chamber argues, in a nutshell, that terrorism has become a crime under international law and that the respective international definition influences the (applicable) Lebanese law. It refers to the Brief published here essentially to support its proposal of the subjective side of an international crime of terrorism. The Brief itself does not, however, support the conclusion of the Chamber; in fact, it did not deal with the question whether there exists an international crime of terrorism at all. I have dealt with this question afterwards, critically examining the terrorism part of the Appeals Chamber decision. I have there essentially argued that the Chamber’s considerations, albeit innovative and creative, are essentially obiter since the applicable terrorism definition can be found, without further ado, in the Lebanese law. There is no need to internationalize or re-interpret this law, it should be applied before the STL as understood in Lebanese practice. As to the Chamber’s affirmation that there is a crime of terrorism under international law, I argued that the available sources indicate, at best, that terrorism is a particularly serious transnational, treaty-based crime which comes close to a ‘true’ international crime but has not yet reached this status. Notwithstanding, the general elements of this crime can be inferred from the relevant sources of international law.
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