The Special Tribunal for Lebanon and Terrorism as an International Crime: Reflections on the Judicial Function

THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW, W. Schabas, Y. McDermott, N. Hayes and M. Varaki, eds., Ashgate: Farnham, Forthcoming

Sydney Law School Research Paper No. 12/64

17 Pages Posted: 6 Sep 2012  

Ben Saul

The University of Sydney Law School

Date Written: September 6, 2012

Abstract

The surprising Decision by the Special Tribunal for Lebanon in 2011 that transnational terrorism in peacetime is a customary international law crime sparked controversy. Until then there was a widespread belief that there existed neither an agreed definition nor an international crime of terrorism. This article first outlines how international law dealt with terrorism in a criminal context up until the decision of the Tribunal in 2011. It then briefly critiques the Tribunal’s assessment of the various material sources purportedly evidencing a customary international law crime of transnational terrorism. That critique demonstrates that even on the Tribunal’s own criteria for identifying customary law, there is no crime of terrorism. The core of the article then asks a series of background questions about what the Tribunal’s Decision reveals about its approach to judging and the judicial function. Here the chapter considers in turn the expansive judicial definition of contested issues; the confused methodological approach to custom formation which led the Tribunal into error; the fatal inattention to utilizing the writings of jurists and amicus briefs in an area of chronic indeterminacy; the issue of disqualifying a judge (President Cassese) for perceived lack of impartiality in respect of his prior academic publications on the subject matter at hand; and the vexed line between acceptable and unacceptable judicial ‘law-making’. The article ends by pointing to some factors which may affect the future persuasive value of the Decision in relation to the customary law status of terrorism.

Keywords: terrorism, international criminal law, customary international law, custom formation, sources of international law, United Nations Special Tribunal for Lebanon, judicial function, international courts and tribunals, disqualification of judges

JEL Classification: K10. K14, K30, K33

Suggested Citation

Saul, Ben, The Special Tribunal for Lebanon and Terrorism as an International Crime: Reflections on the Judicial Function (September 6, 2012). THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW, W. Schabas, Y. McDermott, N. Hayes and M. Varaki, eds., Ashgate: Farnham, Forthcoming; Sydney Law School Research Paper No. 12/64. Available at SSRN: https://ssrn.com/abstract=2142324

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://www.law.usyd.edu.au/about/staff/BenSaul/index.shtml

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