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2012 Jura: A Pecsi Tudomanyegyetem Allam- es Jogtudomanyi Karanak Tudomanyos Lapja 78 (2012)
Defining Terrorism: The Contribution of the Special Tribunal for Lebanon

handle is hein.journals/jura2012 and id is 78 raw text is: Emmanouela Mylonaki: Defining terrorism: the contribution of the Special Tribunal for Lebanon Emmanouela Mylonaki Senior Lecturer in Law London South Bank University, UK Defining terrorism: the contribution of the Special Tribunal for Lebanon The article provides an overview of the decision of the Special Tribunal for Lebanon (thereafter STL) interlocutory decision of 16 February 2011 issued by the Appeals Chamber', which proposes the idea that a common definition of terrorism is achievable. Critics of the STL decision question the STL's ruling by which there is international customary practice and therefore question whether a common definition can be asserted. The article sheds light on the STL decision and touches on the question of the extent to which the definition proposed by the STL is evidence of customary definition of terrorism in international law. To this end, the article might be of interest to those interested in the definitional aspects related to the complex, multi-faceted and polymorphic phenomenon of terrorism. 1. Introduction The definitional problems related to international terrorism have been the subject matter of much analysis. Yet, despite the universal condemnation of terrorism there is not currently a universally accepted definition of the phenomenon. As Justice Steward said 'I know terrorism when I see it'2. It could be argued that a definition of terrorism is not significant at all as is the case in the international law of minorities. Similarly to the law of terrorism, the question of what constitutes a minority in terms of international law has remains unanswered. The main reason is that no abstract definition is fully capable of covering the broad variety of relevant situations in the world involving some 3000 to 5000 different groups qualified as minorities in existing treaties3. Similarly terrorism has taken so many forms that it is impossible to render all the different manifestations of the phenomenon into a single definition. Obvi- ously the major reason is the ambit of inclusiveness and exclusiveness of certain acts within such a deli- nition. Professor Cassesse on the other hand, argues that there is currently a consensus with regards to the notion of terrorism and that terrorism amounts to a customary international law crime4. However, the practice of states in defining terrorism and the different approaches adopted indicate that there is no currently a universally accepted definition of terrorism. Last year, the Special Tribunal for Lebanon, which was set up to try those responsible for the assassina- tion of the former Lebanese Prime Minister and 22 more individuals, provided a landmark ruling by which it defined terrorism and set a precedent for international courts and the way terrorism should be defined. This article examines the SLT decision in order to ascertain the extent to which the proposed by the court definition might constitute evidence towards the development of a customary defini- tion of terrorism in international law. Moreover, the impact that such a development might have on the international prosecution of terrorism is further highlighted. 2. The Special Tribunal for Lebanon on the definition of 'terrorism' Following the assassination of 23 individuals in Lebanon, the Special Tribunal for Lebanon was cre- ated by UN Resolution in order to 'prosecute persons responsible for the attacks of 14' of February 2005 resulting in the death of former Prime Minister Hariri and in the death and injury of other persons'. On the 11t of February 2011, the Appeals Chamber of the Special Tribunal for Lebanon (following request from the pre-trial judge) was called to address the complicated question of defining terrorism. The Ap- peals Chamber ruled that the court is authorised to apply the Lebanese law on terrorism by reference to international treaties and customary international law6. Article 2 of the STL's Statute requires the Tribu- nal to apply domestic law (i.e. the Lebanese Criminal Code). ' According to the definition of terrorist acts set out in Article 314 of the Lebanese Criminal Code terrorism is defined as all acts intended to cause a state of terror and committed by means li- able to create a public danger. Thus, the definition consists of three elements: (1) an act, (2) intention to cause a state of terror and (3) liability to create a public danger by the means used to commit the act.8 Under Lebanese law the mens rea of a crime of terrorism is an act which is deliberate and intended to cause a state of terror and this special intent or dolus specialis does not require the mens rea of mur- der.9 Likewise, the offence of terrorism is complete when this special intent to create a state of terror is present and death or injury is not necessary.10 However without the means used liable to create a public danger as required by Article 314, there will JURA 2012/1. 78

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