1. The applicable law at the STL and the role of international law
1.1. Lebanese criminal law in action and its limits
While the STL may be characterized as an international or mixed court due to its establishment by Security Council Resolution 1757 and its international composition,Footnote 7 it is quite different from other international and mixed tribunals in that its subject-matter jurisdiction and applicable law ‘remain national in character’.Footnote 8 Article 2 of the Tribunal's Statute unambiguously states that only ‘the provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism’ are applicable. Thus, ‘the Lebanese criminal law is the applicable law’, except certain penalties that have been considered too cruel to be included in a United Nations-backed court (e.g., death penalty and forced labour).Footnote 9 The drafters deliberately omitted the inclusion of international crimes, such as crimes against humanity,Footnote 10 as well as a reference to the Arab Convention against terrorism.Footnote 11 The international features of the Tribunal are limited, in normative terms, to high ‘standards of justice’ and ‘highest standards of international criminal procedure’.Footnote 12
Against this background, there are only two questions with regard to the applicable law. First, what does ‘provisions of the Lebanese Criminal Code’ exactly mean? Second, is there still a way in which international law can influence the applicable Lebanese law? As to the first question, there are two possible answers: this formulation only refers either to the positive, written law (the ‘law in the books’) or to the Lebanese law as interpreted by Lebanese jurisprudence and possibly doctrine (the ‘law in action’). Intuitively, one may think that the second option is the correct one, since, in any legal system, be it of common or civil law or any other origin, the ‘law’ is never limited to the positive, written law alone. Even in still quite positivist systems in which the judge is almost not much more than the famous ‘bouche de la loi’, as once coined by Montesquieu against judicial arbitrariness,Footnote 13 judges apply and thus interpret the law. Thus, the question is not about pure or interpreted positive law, but about more or less interpreted law with interpretation by case law in all systems and additional interpretation by doctrine in some of the more developed civil-law systems.Footnote 14 Thus, the recourse to Lebanese criminal law is to this law in action (with the exception of the already-mentioned excluded penalties). The Appeals Chamber takes the same view, holding that the Tribunal should generally apply the national law as understood by Lebanese courts.Footnote 15 The Chamber does not, however, limit this interpretation to past national jurisprudence, but pretends to ‘stand back and identify the principles that express the state of the art in Lebanese jurisprudence’.Footnote 16
There is, however, one caveat and this brings us to the second question. An international or mixed tribunal can only apply law that is compatible with international law. The STL must conform to the ‘high standards of justice’ mentioned in the Secretary-General's report.Footnote 17 Thus, international law, including general principles of law, may operate as a corrective in order to avoid ‘unjust’ or ‘unreasonable’ national law. For an international tribunal, including the STL, this means, as correctly held by the Appeals Chamber, that it must not follow the interpretation of domestic law by national courts if such interpretation is ‘unreasonable’, results in a ‘manifest injustice’, or is inconsistent with principles and rules of international law binding upon the respective national jurisdiction.Footnote 18
1.2. The role of international law: directly applicable or at least an interpretative aid?
The Chamber does not, however, limit the function of international law to correcting ‘unreasonable’ or ‘manifestly unjust’ national law. Rather, it seems to give international law an autonomous role with regard to the interpretation of the Statute.Footnote 19 Rejecting the prosecution's argument that there is no need to apply international law, since there is no lacuna in the applicable (Lebanese) law,Footnote 20 the Chamber holds that legal norms are always open to interpretation because words have many different meanings, especially if there are a number of them,Footnote 21 and because the (internal and external) context of norms must be taken into account.Footnote 22 Thus, according to the Chamber, the process of construing a legal provision is to read it in context from the start instead of in a two-step process, determining first whether there is a lacuna and then, if there is one, trying to close it by interpretation.Footnote 23 In this sense, the principle of teleological interpretation, or, more concretely, the principle of effectiveness, has overturned the infamous in dubio mitius rule,Footnote 24 paying deference to state sovereignty.Footnote 25 The latter principle has increasingly been set aside by universal values and human-rights interests promoted by inter-governmental organizations and the ‘world community’.Footnote 26
This position of the Chamber can be challenged on various grounds. First, its approach to the process of legal interpretation is questionable. While most words have several different meanings when considered in isolation, there are only a few plausible meanings once they are combined with other words to form a sentence. The process of reading legal provisions not just word for word, but as sentences and as part of a whole statute – that is, considering the ‘internal context’ – may indeed lead to a relatively clear meaning that makes recourse to a further (‘external’) context superfluous.Footnote 27 Thus, while it is quite obvious that the ‘description “unclear” is the result rather than the occasion of . . . [a] method of interpreting statutory texts’,Footnote 28 this does not exclude the possibility that this very process of interpretation can lead to a sufficiently ‘clear’ provision and thus the absence of a lacuna. Indeed, the prosecution has not argued with the in claris non fit interpretatio rule, as insinuated by the Chamber,Footnote 29 but only concluded, on the basis of and after an interpretation of Article 314 LCC, that this provision does not contain a lacuna. Second, it is not clear how the state sovereignty of Lebanon can be set aside in our context. While one can certainly make the case for a gradual displacement of state sovereignty in light of the increasing importance of the individual in international law, especially expressed by the ‘human-being-oriented approach’ of international humanitarian and criminal law,Footnote 30 I fail to see how this should play out against the deference to the sovereignty of Lebanon as explicitly demanded in Resolution 1757.Footnote 31 After all, the reference to international law in our context, as an instrument of interpretation of national Lebanese law, is not a question of human rights or any other individual values – as opposed to collective values – but only concerns the question of the correct applicable law of a mixed international tribunal.
Notwithstanding these rather abstract considerations, for many observers certainly more appropriate in an academic setting than in a court decision, the Chamber finds, as to the concrete issue at hand, that the clear wording of Article 2 of the STL Statute was unaffected by context and therefore did not allow for anything but the application of Lebanese law with respect to terrorism.Footnote 32 While the Lebanese law does not know a provision, of constitutional or other origin, that provides for the domestic application of customary international law,Footnote 33 Lebanese courts usually apply it, albeit not in criminal matters.Footnote 34 With regard to the status of international vis-à-vis domestic Lebanese law, the Chamber considers that it possesses at least the same rank as ordinary national law, with the consequence that general principles, such as lex posterior derogat priori and lex specialis derogat generali, apply in case of concurrence of international and national law.Footnote 35 These international-law-friendly considerations are not so much based on hard Lebanese law, but on judicial interpretation and public international law, especially human-rights considerations. They suggest that a domestic court has, at least, the power to interpret national law by taking recourse to customary law if a corresponding rule exists. Yet, even if, arguendo, this were admitted, it would not help much with regard to the interpretation of criminal-law offences, especially terrorism. First, there is, to the best knowledge of this author, no rule in Lebanese law – as a civil-law system based on the Romano-Germanic tradition – that allows for the application of customary international law with regard to criminal-law offences; such a rule would, however, be necessary in order to avoid a violation of the nullum crimen principle. For this very reason, the Appeals Chamber admits that customary international law ‘may not be applied in penal matters absent a piece of national legislation incorporating international rules into Lebanese criminal provisions’.Footnote 36 Second, even if Lebanese courts were allowed to apply customary international law in criminal matters, this would not, as correctly acknowledged by the Chamber, be possible for the STL, since Article 2 of the Statute refers only to a provision of the Lebanese Criminal Code (Article 314), not to any other source, especially not to customary international law.Footnote 37
Absent the possibility of a direct application of customary international law, the STL can only argue, and indeed argues, that international law may serve as an aid to interpreting the relevant Lebanese criminal-law provisions.Footnote 38 For the Chamber, this is justified by the fact that the respective events in Lebanon have been regarded as ‘threats to international peace and security’ by the Security Council. Further, these events have been brought before the STL as acts of transnational terrorism for which only international law offers the appropriate standards, which, in addition, are binding upon Lebanon.Footnote 39 This, again, is a questionable line of argument. The fact that the Security Council qualified the relevant acts as ‘threats to international peace and security’ served only as a trigger to establish the STL under Chapter VII of the UN Charter in the first place but it has not made the Council include crimes under international law (which ones?) in its Statute. Quite to the contrary, as we have already stated above, the reference to international crimes has explicitly been omitted. Similarly, the argument of the alleged transnational nature of the (terrorist) acts does not make international law, without further ado, applicable, not even as a means of interpretation. The acts have been committed on the territory of Lebanon; thus, Lebanon has territorial jurisdiction over them and the applicable (criminal) law is that of Lebanon. This is so in this case as in all other cases of apparently transnational terrorist offences committed in national jurisdictions. The fact that a terrorist act may threaten international peace and security does not change the applicable national law. Indeed, it is up to the territorial state to decide, pursuant to its domestic rules, whether it applies its national terrorist offences (if there are any) or takes recourse to international law. It could only be otherwise if the Security Council had expressly said so. But it has not done so here and indeed it could not have done so, since there is no internationally agreed definition of ‘terrorism’. We will return to this point after dealing with the (applicable) Lebanese terrorism definition.
1.3. The Lebanese terrorism definition
1.3.1. The objective elements (actus reus)
The objective part of the terrorism offence of Article 314 LCC consists of two components, namely (i) the commission of ‘any act’ and (ii) the application of ‘means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents’. In Lebanese practice, the first requirement has been interpreted broadly,Footnote 40 covering any act notwithstanding its criminal character.Footnote 41 In contrast, the means component has been interpreted restrictively, requiring either one of the enumerated means or another means capable of creating a public danger (danger commun), namely an uncontrollable threat to an uncertain number of third (‘neutral’) persons.Footnote 42 Thus, while a hand grenade would constitute a listed means (‘explosive device’), a machine gun would not and would not amount to another means either, since it is not uncontrollable per se.Footnote 43 On the other hand, to use an aeroplane as an (uncontrollable) weapon and fly it into a skyscraper could be considered as employing another (similar) means within the meaning of the provision.
The Chamber does not agree with this restrictive interpretation of the means requirement and suggests, on the basis of its international-law interpretation of the applicable law,Footnote 44 a broader understanding of public danger.Footnote 45 In its view, it suffices that persons not directly targeted are at the same location as the direct target of the terrorist attack and thus become exposed to the adverse consequences of the attack.Footnote 46 Going even further, the Chamber deems it sufficient that a terrorist attack entails certain indirect consequences leading to public danger, such as, as a result of the killing of a political leader, his supporters' resort to violence.Footnote 47
The Chamber's view can be challenged on various grounds. First of all, it leads to a limitless expansion of the offence. Given the structure of Article 314 LCC and the broad interpretation of its act requirement, a restriction of the otherwise far too broad actus reus can only be achieved by the means requirement.Footnote 48 While the list of the means is not exhaustive (‘such as’), the means listed share a common characteristic and that is the fact that, once they are employed or activated, they cannot be controlled. All the means are, as to their effects, uncontrollable per se. Their use entails uncontrollable risks for an undetermined number of persons and objects. Indeed, this is the justification to qualify the respective acts, on the objective level, as ‘terrorist’ and the perpetrators as ‘terrorists’. After all, ‘terrorism’ means to spread terror and fear in the population at large.Footnote 49
For the interpretation of the additional means not listed, this implies that they must be comparable to the means listed, namely they must also cause uncontrollable risks. If one severs the link between the listed and the additional means, as in fact suggested by the Chamber, the latter ones can no longer be reasonably defined. Ultimately, such a ‘liberal’ interpretation of the means requirement violates the lex certa element of the principle of legality (nullum crimen sine lege).Footnote 50 Admittedly, Article 314 has an ‘inbuilt’ certainty problem for the very fact that the means list is not exhaustive. However, once the national case law has clarified the meaning of an open-ended formula like ‘such as’, it is part and parcel of the national criminal law and therefore compatible with lex certa, at least in the sense of a relative certainty (Bestimmbarkeit).Footnote 51 It is, however, an entirely different matter if an international tribunal reinterprets an element of an offence, explicitly going beyond long-settled national practice. In such a situation, it can hardly be expected that the citizens of the respective state could follow this new interpretation; most probably, they would not even be aware of it. Apart from that, it would be an ex post facto interpretation of crimes already committed and would therefore also conflict with the lex praevia rule.
The Chamber itself sees that its interpretation broadens the offence definition and therefore conflicts with the principle of legality.Footnote 52 Yet, as a result, it sees no violation of this principle because, in essence, it considers that only foreseeability is required and that this standard is fulfilled if a certain judicial interpretation, including by an international court, was settled.Footnote 53 Thus, concretely speaking, any Lebanese national could be expected to foresee ‘that any act designed to spread terror would be punishable’ as terrorism ‘regardless of the kind of instrumentalities used as long as such instrumentalities were likely to cause a public danger’.Footnote 54 The flexibility with regard to the ‘instrumentalities’ follows, according to the Chamber, from the international instruments binding upon Lebanon that do not restrict the means employed, especially the Arab Convention against Terrorism.Footnote 55 In addition, the fact that Lebanon had ratified all UN terrorism conventions seems to allow, in the view of the Chamber, the drawing of certain analogies as to the punishable behaviour. Thus:
an individual . . . knowing that shooting passengers onboard an aircraft for the purpose of hijacking the plane was a prohibited terrorist act, can safely [sic] be expected to conclude that the same behaviour with the same intent to spread fear in other circumstances would also be regarded as terrorism.Footnote 56
It is clear from this cursory summary of the Chamber's position that it indeed takes quite a flexible stance as to the principle of legality. Yet, the recourse to international (criminal) law, which has converted the rather formal legality rule to a mere principleFootnote 57 of justiceFootnote 58 and, at best, requires ‘accessibility’ and ‘foreseeability’ of punishabilityFootnote 59 explicitly allowing for ‘the progressive development of the criminal law through judicial law-making’,Footnote 60 is not particularly helpful in our context. First of all, it presupposes that the applicable law, namely the Lebanese law, adopts the same flexibility as to the principle of legality. I have already stated in my amicus curiae that this is not the case, since the Lebanese legal system, as a civil-law jurisdiction, in principle, does not admit the ‘internationalization’ of domestic criminal-law offences.Footnote 61 In addition, in such a legal system, nullum crimen is understood strictly and therefore only allows for an ex post facto interpretation or analogy in bonam partem, that is, restricting the offence definition in favour of the accused.Footnote 62 This also applies for an interpretation based on international law.Footnote 63 Even if one were, arguendo, to follow the Chamber's internationalist approach, it is by no means clear whether, let's say, the European Court of Human Rights would agree with the Chamber as to the foreseeability of its reinterpretation of the means requirement of Article 314 LCC. After all, we are not talking here about the punishability of an international core crime within the meaning of Article 15(2) ICCPR and Article 7(2) ECHR, but about the correct interpretation of one single (objective) element of a mere treaty-based crime (on this distinction, see subsection 2.2). Thus, the gist of the matter as to foreseeability is whether one can really expect a citizen to be aware of a possible broader international interpretation of an element of a particular national offence and, in addition, of the direct applicability of this interpretation in his domestic legal order. Indeed, the Chamber itself does not seem to be entirely sure as to what can be expected or not with regard to ‘internationalized’ national criminal law. In one and the same paragraph,Footnote 64 it states, on the one hand, that ‘international criminalisation alone is not sufficient for domestic legal orders to punish’ but, on the other, that ‘individuals were expected and required to know that certain conduct is criminalised in international law’, although this is apparently not enough for punishment, since it shall only apply ‘at least from the time that the same conduct is criminalised in a national legal order’.
1.3.2. The subjective elements (mens rea)
Article 314 LCC requires the intent ‘to cause a state of terror’, namely to cause a substantial impact of fear and insecurity upon the population at large or a significant group thereof.Footnote 65 This is a special subjective element, more exactly, a here so-called ‘special general intent’ as opposed to a ‘special special intent’ aimed at certain political goals. We will return to this distinction when analysing a possible international offence of terrorism (see section 2). As the Chamber did not take issue with this element, suffice to say that the Lebanese courts have proposed certain facts to more precisely determine this intent.Footnote 66
As to the general mens rea with regard to the objective elements of the offence, one must first recall that the acts required need not be criminal by themselves; that is, for the general mental element, it suffices that the respective (neutral) acts are carried out consciously and willingly by the perpetrator.Footnote 67 Clearly, if an act constitutes a criminal offence, such as a killing, the perpetrator must act with the respective mental element of this offence. As to the means requirement, the perpetrator must be aware of their characteristics, particularly that they are ‘liable to create a public danger’.
1.4. Intermediate conclusion
According to the Lebanese law, terrorism is the commission of any act by means that are per se liable to create a public danger with the intent to cause a substantial terrorizing impact upon the population or a significant group thereof. Neither is this definition unreasonable, nor does it result in apparent injustice, nor is it inconsistent with international principles of law. Thus, there is no reason for the Tribunal to depart from it. Article 314 LCC can and should be applied as understood in Lebanese practice.
2. The substantive issue: terrorism as a crime under international law?
2.1. The Chamber's view: terrorism as a crime under customary international law
For the Chamber, a number of treaties and UN resolutions, and the legislative and judicial practice of states,Footnote 68 indicate that a customary rule of international law on the crime of terrorism has emerged.Footnote 69 There is ‘a settled practice concerning the punishment of acts of terrorism’ and ‘this practice is evidence of a belief of States that the punishment of terrorism responds to a social necessity (opinio necessitatis) and is hence rendered obligatory by the existence of a rule requiring it (opinio juris)’.Footnote 70 The existing rule imposes three obligations on states and non-state actors and grants them one right: (i) the obligation to refrain from engaging in acts of terrorism; (ii) the obligation to prevent and repress terrorism, particularly to prosecute and try alleged perpetrators; and (iii) the right to prosecute and repress the crime of terrorism committed on their territory by nationals and foreigners and the correlative obligation of third states to refrain from objecting to such prosecution and repression against their nationals.Footnote 71 As to the definition of ‘terrorism’, the rule provides for three elements: (i) the perpetration or threatening of a criminal act, (ii) the intent to spread fear among the population or coerce a national or international authority to take some action or to refrain from taking it, and (iii) a transnational element as part of the act.Footnote 72 With this definition, the Chamber rejects the so-far dominant view in the academic literature,Footnote 73 including by this author,Footnote 74 that there is no universally agreed definition of ‘terrorism’.
While it is difficult to disagree with the Chamber as to a customary rule outlawing terrorism and the ensuing obligations of states in its prevention and repression (the right to prosecute exists anyway on the basis of the territoriality principle and the Chamber stops short of imposing more far-reaching obligations on states, such as an obligation to co-operate in the fight against terrorismFootnote 75), it is a different matter to infer from this prohibition, without further ado, the existence of an international crime of terrorism. Indeed, the Chamber itself acknowledges that a customary prohibition does not automatically turn into an international criminal offence.Footnote 76 Taking recourse to the seminal ICTY Tadić Appeals Chamber jurisdictional decision,Footnote 77 the Chamber argues that ‘individual criminal liability at the international level’ presupposes the ‘individual criminal responsibility’ of the perpetrator.Footnote 78 Either this comes close to a petitio principii, since it equates an assumption to be proven (‘individual criminal responsibility’) with the actual conclusion (‘individual criminal liability at the international level’),Footnote 79 or the argument is nonsensical because assumption and conclusion cannot be equal. Thus, what the Chamber apparently really means to say or should have said is that the Tadić criteria, proposed to assimilate violations of international humanitarian law in international and non-international armed conflicts by also criminalizing the latter,Footnote 80 should be applied with a view to test whether the prohibition of terrorism has indeed risen to an international crime. Unfortunately, the Chamber does not pursue this methodologically more reasonable path, but directly jumps at the criteria for determining the existence of such a criminalization: the intention to criminalize the breach of the rule must be evidenced by statements of government officials and by punishment for such violations by national courts.Footnote 81 The Chamber claims to demonstrate this evidence in one paragraph (sic!),Footnote 82 pointing to the widespread domestic criminalization of terrorism, which, similarly to the case of war crimes, constitutes the basis for the (subsequent) internationalization of the offence. For the Chamber, this trend was indeed ‘strengthened by the passing of robust resolutions by the UN General Assembly and Security Council condemning terrorism, and the conclusion of a host of international treaties’.Footnote 83 The Chamber places a particular emphasis on the fact that the Security Council has characterized terrorism, as opposed to other transnational offences (e.g., money laundering and drug trafficking), as a ‘threat to peace and security’.Footnote 84 This special treatment of terrorism and its ‘perceived seriousness’, the Chamber concludes, ‘bears out’ that it ‘is an international crime classified as such by international law, including customary international law, and also involves the criminal liability of individuals’.Footnote 85 As a consequence, the customary rule identified by the Chamber has not only a collective dimension (addressed to states and state-like entities), but also an individual one, imposing on individuals the ‘strict obligation’ to refrain from terrorism coupled with the correlative right of any state ‘to enforce such obligations at the domestic level’.Footnote 86 The only limitation of this bold rule consists, according to the Chamber, of its application in times of peace, its extension to armed conflict being in statu nascendi.Footnote 87
2.2. The more convincing view: terrorism as a particularly serious treaty-based crime coming close to a ‘true’ international crime
Current international criminal law (‘ICL’) makes a distinction between mere treaty-based crimes and ‘true’ or core international/supranational crimes.Footnote 88 Examples of the latter are mainly the core crimes of Articles 5–8 of the ICC Statute,Footnote 89 while treaty-based crimes are essentially transnational crimes, objects of the so-called suppression conventions, such as the UN Torture Convention,Footnote 90 the Terrorist Bombing Convention,Footnote 91 or the UN Drugs Conventions.Footnote 92 The essential legal difference between these types of crime is that the treaty-based crimes can only be enforced by states at the domestic level – indeed, the suppression conventions provide for just that: the criminalization and suppression of these crimes at the domestic level by the competent state partiesFootnote 93 – while true international crimes create a proper international individual criminal responsibility (i.e., they are binding upon individuals)Footnote 94 with the correlative right of international enforcement by a supranational institution (such as the ICC) or by states, independent of domestic criminalizationFootnote 95 and traditional jurisdictional links (replacing territoriality, nationality, and the protective principle by universal jurisdiction stricto sensu).Footnote 96 Sometimes, this difference is clearly expressed by the law. Compare, for example, Article I of the Genocide Convention (‘crime under international law’) with Article 4(1) of the UN Torture Convention (‘Each State Party . . . offences under its criminal law’).Footnote 97 Still, even such clear-cut provisions do not settle the matter entirely, since it can always be argued, as indeed does the Chamber, that an originally treaty-based crime has risen to a true international crime by way of customary international law. Thus, for example, the fact that the torture prohibition has nowadays even attained the status of jus cogens Footnote 98 and must therefore be treated in the same way as the jus cogens prohibition of genocideFootnote 99 may lend support to the view, recently expressed by the Institute of International Law,Footnote 100 that torture has risen from a mere transnational to a truly international crime. Similarly, one may point to some suppression conventions that echo, albeit only in the preamble, international concern regarding ‘their’ crimesFootnote 101 and/or give prevalence to judicare (prosecute) over dedere (extradite) obligations,Footnote 102 following the so-called Hague model of the Hijacking ConventionFootnote 103 and thereby expressing a recognition of a genuine universal interest in the prosecution of the respective offences.Footnote 104 The problem with this, similarly to any customary international-law approach – as evidenced by the Chamber's considerations – is that it rarely produces unambiguous results. One should therefore stick to the more cautious and, in any case, more certain approach of requiring a clear statement of the law, such as Article I of the Genocide Convention. To be sure, such a statement is no substitute for the development of substantive criteria regarding ‘internationalization’Footnote 105 – we will come to these in a moment – but it makes unambiguously clear whether states want to ‘internationalize’ a crime at all.Footnote 106 What should be required at least, before starting a discussion about the possible internationalization of a crime, is an unambiguous declaration in soft law, such as in a General Assembly resolution or an authoritative statement of the ICJ to that effect. Otherwise, the alleged internationalization of a prohibited criminal conduct, such as by a ‘unilateral’ declaration of an international tribunal, will have little effect; it may even turn into a pyrrhic victory if states persistently object and fail to enforce it.
It is surprising that the ICL literature, apart from some notable exceptions,Footnote 107 hardly discusses in a systematic way the criteria that determine whether an offence has turned into a crime under international law. Indeed, the Appeals Chamber itself builds its argument around quite a confusing mix of a reference to the Tadić jurisdictional decision (albeit not the substantive criteria developed in this decision) and declarations expressing the seriousness of terrorism, especially contained in Security Council resolutions, without, however, presenting and discussing the possible criteria for internationalization in a systematic way.Footnote 108 This is all the more surprising since the president of the Tribunal himself is one of the notable exceptions mentioned above, having proposed several criteria in his leading textbook on ICL.Footnote 109 Be that as it may, taking into account the foregoing considerations, especially the Tadić criteria,Footnote 110 three criteria must be met in order to speak of a crime under international law:
1. the respective underlying prohibition (primary norm) must be part of international law;Footnote 111
2. a breach of this prohibition must be particularly serious, namely it must affect important universal values;Footnote 112 and
3. the breach must entail individual criminal responsibilityFootnote 113 in its own right, namely independently of any criminalization in domestic criminal law.Footnote 114
If one applies these criteria to terrorism, the first and second are clearly met – indeed, the Chamber uses the same criteriaFootnote 115 and convincingly demonstrates that terrorism is an attack on universal valuesFootnote 116 – yet the third, certainly the crucial one, deserves closer consideration. The Chamber itself acknowledges that the internationalization of a domestic offence requires ‘that States and intergovernmental organisations, through their acts and pronouncements, sanction this attitude by clearly expressing the view that the world community considers the offence at issue as amounting to an international crime’.Footnote 117 In other words, a clear declaration as to the international criminalization of the respective offence is required. This comes close to the view expressed aboveFootnote 118 that the international criminalization must be clearly stated by the law. Such a clear statement is, however, missing. Indeed, the fact that terrorism is not part of the core offences of the ICC Statute and that it has so far not been possible to adopt a comprehensive terrorism conventionFootnote 119 is rather evidence to the contrary, namely that terrorism is not (yet) recognized as an international crime in its own right.Footnote 120 The Chamber itself refers to the (indirect) enforcement ‘at the domestic level’Footnote 121 and thus confirms the general view that terrorism is only part of the suppression conventions that provide for implementation obligations of states. This, in turn, demonstrates that there is indeed no such offence as an international crime of terrorism independently of domestic criminal law (or, for that matter, domestic enforcement). Also, the Chamber's argument of a special treatment of terrorism as compared to other transnational offencesFootnote 122 only demonstrates that terrorism is a ‘special’ transnational offence that may come closer to a true international crime than ‘ordinary’ transnational offences. This special status of terrorism is indeed confirmed by the result of our three-pronged ‘international crime test’. The fact that terrorism fulfils the first two but not the third criterion shows that it stands between an ordinary transnational, treaty-based offence and an international crime proper; it is, so to say, on its way to the supreme level of a true international crime.
There is still another issue of principle that the Chamber does not address. As terrorist offences are typically committed by non-state (i.e., private) actors, their international criminalization would entail a qualitative shift from the hitherto international criminalization of ‘crimes of state’ to crimes of private individuals. This is not per se a fatal argument against such a criminalization but it would entail ‘a third generational step’ moving international criminal law ‘into the area of transnational conflicts between states and destructive private organisations’.Footnote 123 The consequences of such a move deserve careful consideration.
2.3. Future prospects: the elements of an international crime of terrorism
The elements of an emerging international crime of terrorism may be inferred from the various definitions of international and national sources by way of their systematic comparison. In this sense, the Chamber's overview of the several sources of national and international lawFootnote 124 is a useful contribution to the international debate on a terrorism definition.
2.3.1. The objective elements (actus reus)
The relevant regional conventions,Footnote 125 UN General Assembly resolutions (since 1994),Footnote 126 Security Council Resolution 1566 (2004),Footnote 127 the 1999 Financing Convention,Footnote 128 and the draft Comprehensive Convention on TerrorismFootnote 129 all provide for the commission of a criminal act causing harm to life, limb, and property,Footnote 130 including a concrete threatFootnote 131 or an attemptFootnote 132 to commit such an act, as the only objective element of the offence.Footnote 133 The act requirement is also part of the national law as surveyed by the Chamber.Footnote 134 One can also safely assume that most national laws will cover preparatory acts, by way of either general-attempt provisions or the inclusion of preparatory acts in the actual offence definition.Footnote 135
A number of specialized UN conventions go beyond the general-act requirement and criminalize specific acts of terrorismFootnote 136 such as the taking of hostages,Footnote 137 the hijacking of planes,Footnote 138 violent acts on board an aeroplane,Footnote 139 and the attacking of diplomatic representatives.Footnote 140 In addition, these conventions require a transnational element, which is the involvement of at least two countries in terms of territory and perpetrators/victims;Footnote 141 yet, this element is not part of the offence definition, but rather a jurisdictional rule that limits the application of the respective convention to terrorist offences with a cross-border dimension.Footnote 142 The Chamber comes to the same result, stating that this element ‘goes not [sic] to the definition of terrorism’Footnote 143 but its reasoning is unclear.Footnote 144 Also, one wonders how this element can be part of the customary rule suggested by the ChamberFootnote 145 if it shall not be part of the definition of the offence but, at the same time, this rule pretends to establish the actual elements of this definition.Footnote 146
The Chamber's further objective qualification of the act requirement, on the basis of its analysis of national legislation, namely that it must be ‘a threat to the stability of society or the State’,Footnote 147 is, in fact, not supported by this analysis. The Chamber seems here to confuse the objective and subjective sides of the offence – indeed, the Chamber does not clearly distinguish between these two sides in its presentation – since what it qualifies as objective is in fact subjective, given that any reference to the destabilizing effect of a terrorist act is normally linked to the (special) intent of the perpetrator (see sub-sub-subsection 2.3.2.1).Footnote 148 The only possible objective qualification of the act requirement following from some, albeit a limited number of, national legislationsFootnote 149 refers to the specific means or devices (e.g., explosives, toxic products; see Article 314 LCC quoted in sub-subsection 1.3.1) applied in carrying out the act.
In sum, the relevant sources indicate only one objective element of a possible international crime of terrorism, namely the commission, including a concrete threat, of a criminal act; this act must be of a serious nature.Footnote 150 While the act requirement corresponds to the first element of the Chamber's customary rule,Footnote 151 its generality highlights the very problem of this rule: the available sources allow one, at best, to infer, in the sense of the smallest common denominator of customary international law, an objective element so general that it can hardly conform to the lex certa requirement of the principle of legality.Footnote 152 While, in domestic legal systems, the definition of a criminal act follows from national criminal codes, statutes, or, exceptionally, deeply enshrined common-law crimes, namely a criminal act is what the national criminal law says it is, international law does not provide for such criminal acts. The qualification of the act as a serious one mitigates but does not resolve the issue.
2.3.2. Subjective elements (mens rea)
2.3.2.1. General and special intent. According to the Chamber, the available sources indicate a twofold subjective element: on the one hand, the perpetrator must act with the general intent with regard to the underlying criminal act, such as killing, injuring, or the taking of hostages. On the other hand, a special intent to spread fear or coerce an authority is required.Footnote 153
With regard to the general intent, the above-mentioned problem arises: if an international crime of terrorism only refers to a criminal act but this act is not specified, as in national law, by concrete offence definitions, the intent's object of reference is lacking. As to the special intent, I have already demonstrated in my amicus curiae briefFootnote 154 that the relevant sources generally provide for a ‘general’ (normal) special intent, as contained in Article 314 LCC (‘intended to cause a state of terror’),Footnote 155 while a ‘special’ special intent, namely a special intent that, going beyond the ‘general’ special intent of causing terror, requires a particular political or ideological purpose, such as ‘the purpose of coercing a state, or international organisation to do or refrain from doing something’,Footnote 156 is only provided for, if at all, in the alternative in the relevant instruments. Thus, the first part of the Chamber's special-intent definition (spreading fear among the population), referring to a ‘general’ special intent, has a solid basis in customary international law, while the second part (coercing an authority), referring to a ‘special’ special intent, may, at best, be provided for as an alternative requirement.
2.3.2.2. Relevance of political or ideological motive. According to the Chamber, relying on some selective sources,Footnote 157 the special intent ‘would often derive from an underlying political or ideological purpose’.Footnote 158 To be sure, the Chamber does not speak here of the ‘special’ special intent discussed just a moment ago, but of a possible ‘underlying political or ideological purpose’, namely the motive or motivation of the perpetrator. While such a motive may exist in some cases (where the terrorist indeed pursues certain political aims) but not in others (where the terrorist just pursues the aims of an ordinary criminal under the guise of an alleged political agenda), the crucial question with a view to the elements of the terrorist offence is whether such a motivation can belong to the offence definition at all. The Chamber seems to think so, since it says a few lines later that ‘it remains to be seen whether one day it [the said purpose requirement] will emerge as an additional element of the international crime of terrorism’.Footnote 159 Apart from the fact, recognized by the Chamber itself a few paragraphs earlier,Footnote 160 that the overwhelming number of the relevant sources indicate just the opposite, namely that motives should play no part in the offence,Footnote 161 the Chamber here seems to ignore – on the face of its considerations – the difference between intent and motive in criminal law. I have tried to explain this difference in my amicus curiae brief,Footnote 162 essentially arguing that the possible motive, namely the reason why a perpetrator performed a certain act, is irrelevant to his intent (‘irrelevance thesis’);Footnote 163 a motive may only be taken into account at the sentencing stage as a mitigating or aggravating factor. Exceptionally, though, a legislator may make certain motives part of the mens rea element of the offence, particularly of a special intent.Footnote 164 Maybe the Chamber had this in mind when mixing up intent and motive and making the latter part of the offence definition. Given the expertise and writings of its president,Footnote 165 it is difficult to believe that the Chamber ignored the underlying categorical questions but, in any case, the lack of clarity in this part of the decision certainly gives rise to confusion.
3. Conclusion
While the STL Appeals Chamber goes too far with its claim of an existing international crime of terrorism, it has indeed made an important contribution with a view to the emergence of such a crime and to its definition. To be sure, at this juncture, one may consider terrorism, at best, as a particularly serious transnational, treaty-based crime that is – probably comparable to torture – on the brink of becoming a true international crime. Also, extreme forms of terrorism may amount to war crimes or crimes against humanity and thus be punishable under international law.Footnote 166 While the elements of terrorism as suggested by the Chamber, a grosso modo, have a solid basis in customary international law, their lack of precision (especially the objective element of a criminal act) is proof of the lack of consensus of the international community as to the details of the definition of an international crime of terrorism.
