The Special Tribunal for Lebanon’s Appeals Chamber Wednesday issued a decision on 15 questions related to specific points of law raised by the pre-trial judge as he reviews and decides whether or not to confirm an indictment. NOW Lebanon spoke with Habib Nassar, a lawyer with the International Center for Transitional Justice, about the four points the court highlighted in reading a summary decision in open session on Wednesday.
Lebanon, like many other states, has legally defined terrorism. The chamber ruled that the definition in Lebanese law shall be applied in cases considered by the tribunal, but notes Lebanese courts have interpreted it very narrowly. The Lebanese Criminal Code, in defining terrorism, lists means by which terrorist acts can be carried out (explosive devices, inflammable materials, poisonous or incendiary products, or infectious or microbial agents). Lebanese courts have interpreted that list to be exhaustive, meaning any crime committed by a means not on that list – or not very similar to one of the means on the list – cannot be considered terrorism. The Appeals Chamber disagreed, and ruled that the list seems only to be illustrative – meaning it provides examples of means of committing terrorist acts without limiting the possible means in which a terrorist act is committed. To reach this conclusion, the Appeals Chamber noted that many argue there is “no agreement in the world community on what is meant by terrorism.” However, the judges noted, “we have pored over State practice, the national legislation of a great many countries, the numerous international conventions on terrorism, Security Council and General Assembly resolutions, as well as decisions of national courts. We are not unanimously satisfied that a customary rule of international law has evolved on terrorism in time of peace.” In plain terms, what is “a customary rule of international law” and how might this decision, and decisions issued later by trial judges based on this decision, impact international law and court proceedings in the future, particularly in terms of precedent and coming to an international legal definition of terrorism?
Habib Nassar: There are various ways in which international law can be created. The two main ones are by treaty or by custom. For a rule to be created by custom, two things have to be shown: that a sufficient number of states have acted in such a way to indicate the development of a common practice, and that they have behaved this way because they believe there is a legal obligation to do so. The importance of this is that states do things for all sorts of reasons, very often political. The issue is to prove that they have acted in such a way due to a sense of law rather than politics or expedience.
In terms of precedent, in international law there is no formal doctrine of precedent. Strictly speaking, courts decide all cases on their own merits. In practice they look to previous decisions for considerable guidance.
In terms of coming to a definition of terrorism, it has to be understood that a customary rule in international law is every bit as much a part of international law as a treaty provision. The court has indicated that the customary norm defining international terrorism already exists. This does not mean that an international agreement among states cannot happen. It just means that the matter, according to this court, is already a matter of established customary international law.
The Appeals Chamber decided that tribunal will apply Lebanese law as interpreted and applied by Lebanese courts unless such interpretation or application appears to be unreasonable, might result in manifest injustice, or proves not consonant with international principles and rules binding upon Lebanon. If, therefore, many of the tribunal’s rulings are based on Lebanese law, what role might tribunal decisions play in the future when it comes to precedents in international law (i.e., if a ruling is made based on Lebanese law, might it be disregarded – or viewed as irrelevant – by future tribunals or international courts that are trying cases based on international law)?
Nassar: The development of international law depends on whether the matter being considered by a court – national or international – relates to international law. In principle, if the matter is one of national law it is not generally relevant for the development of international law. Where there are concepts not well-developed in international law, national law-based decisions can be important in guiding the development of the international rule. Where national judicial authorities have developed a clear line of thought on a particular concept, international law may develop according to the influence of such decisions. In the case of the STL, for the most part, the decisions will be based on national substantive criminal law. Most of those issues have been well-developed now. The impact of the application of national law to the cases in question on international law is likely to be small.
Can you please explain, in layman’s terms, the chamber’s ruling pertaining to the third question about joint criminal enterprise. Specifically, what do they mean by JCE III and why is terrorism singled out as not having JCE III apply to it?
Nassar: The ICTY developed a practice saying that there were three elements to the idea of a joint criminal enterprise. The first is where all parties to a common plan act with the same intention, e.g. they all plan together to rob a bank. The second is very close to the first and is related to persons “acting pursuant to a concerted plan,” for example people operating the concentration camps would be caught under this. The idea of JCE III is that where a common plan is made but a person carries out an act which is not part of the plan, if that act could reasonably have been anticipated as going to happen in the effort to put the plan into effect, all parties would also be liable for that unplanned but foreseeable act.
The Appeals Chamber is saying that because of the kind of intention needed in the commission of the crime of terrorism it rules out the idea of JCE III. Basically it is saying a person cannot be found guilty of terrorism if the act in question resulted not as part of the explicit plan but only as a foreseeable consequence of putting the plan into effect. For terrorism, the court is saying, the persons in the group must have had the clear idea of achieving a particular result by a particular means and can only be convicted if those two matters are proved. If something happens on the way to doing that that members of the group had not formed a clear idea about carrying out, they cannot be convicted for it.
The Appeals Chamber also ruled that when an act can be considered two crimes (e.g., terrorism and murder), the accused should not be charged with two crimes unless they are substantially different and one does not encompass the other. (So, for example, if a person robs a bank and shoots someone in the process, they should be charged with two crimes, but if someone commits a terrorist act that results in deaths, they should be tried only with terrorism, correct?) What significance might this have on the trial process (e.g., potentially fewer charges filed, speedier trial)?
Nassar: The decision here seems to be closer to the view taken by the International Criminal Court but different from the practice of the ICTY, the ICTR and the Special Court for Sierra Leone, which all allowed for cumulative charging. However this is a summary of the decision and it is not especially clear. The logic that the tribunals mentioned was that a court could determine what charges should stay only once it had heard the evidence.
The decision to charge alternatively rather than cumulatively has a potential impact on the speed of a trial but should not be presumed to be great. In essence, if a charge is made in the alternative, the court listens to the evidence, decides if there is enough to convict on charge A, and if not looks to the alternative to decide if there is enough to convict on charge B. It means that evidence is led only in respect of the principle charge, which should effectively encompass the alternative charge.
In cumulative charging it is possible that the same basic conduct is charged under different crimes requiring separate evidence to be led to establish the different elements of the respective crimes. This can lead to potentially longer trials, but it really depends on the kinds of crimes being cumulatively charged and how much different evidence is needed.
Whether cumulative or alternative charging is preferred is a matter of some controversy and is not settled. It is most important when it comes to the issue of sentencing. If a person is charged with different crimes in relation to the same conduct it is obvious he or she may face a much bigger penalty. Under cumulative convictions one still has to show that there is a genuinely different aspect in the different crimes that makes them worth punishing separately, even if it resulted from the same conduct. What the court is saying here is that “unless the charges reflect substantially different values” alternative charges are preferred. This means the court wants to see people charged for one crime in respect of specific conduct, not for various crimes in respect of the same conduct.