Special Tribunal for Lebanon Gives Ruling on Which Definition of Terrorism Applies in Hariri Case

The Special Tribunal for Lebanon (STL) has made an important procedural ruling on the definition of terrorism. The definition adopted by the tribunal draws on Lebanese and international law concepts of terrorism. The decision is important as there is currently no universal international law definition of terrorism. Some observers have suggested terrorism may now be open to international prosecution. However, it is important to note the limited subject-matter jurisdiction of the STL; it is the only international tribunal to prosecute exclusively domestic law crimes. This may mean its rulings will not necessarily translate to international law precedent.

The Daily Star, Lebanon and Reuters

February 17, 2011

The U.N.-backed Lebanon tribunal handed down a key procedural ruling Wednesday to settle legal points as it considers whether to confirm a charge sheet over the assassination of former Prime Minister Rafik Hariri.

The ruling took place with Lebanon still seeking to form a new government after Hezbollah and its allies toppled the government of Rafik's son, Saad, over his refusal to cut links with the tribunal.

In a unanimous ruling Wednesday, court judges clarified several legal issues that will allow pre-trial judge Daniel Fransen to decide whether to approve a draft indictment lodged by prosecutors at the Special Tribunal for Lebanon last month.

If approved, the court could then issue summons or arrest warrants against the accused.

The court gave guidance on what definition of terrorism would apply, ruling that it would use Lebanon's definition of terrorism as an act "intended to spread terror," but also apply a broader international interpretation of the "means" used in an attack, given the transnational gravity of Hariri's killing.

Presiding Judge Antonio Cassese explained that the definition of "terrorism" upheld in the Lebanese Criminal Code tends to place a "narrow interpretation" on the means to create a "public danger" or an "act of terror."

He cited the assassinations in 1995 of Al-Ahbash leader Sheikh Nizar al-Halabi and of the head of the National Liberal Party Dany Chamoun in 1990 as acts considered terrorism under most national legislation and international treaties, but that were instead categorized by the Lebanese judiciary as simple murders.

"[STL's] Appeals Chamber has noted that while fully respecting the Construction of the Lebanese Criminal Code propounded by Lebanese courts, the tribunal is authorized to construe Lebanese law with the assistance of international treaty and customary law that is binding in Lebanon," he said.

Cassese said the court judges hoped Wednesday's ruling "may help the tribunal take a firm, steady and rapid course in its pursuit of justice."

"When trials commence proper and defendants face charges made by the prosecutor, the legal principles we have now set out ... will guide the action of the trial chamber," Cassese said. He added, however, that the "abstract answers" handed down might still need to be revisited at a later date.

The still-sealed draft indictment is expected to accuse Hezbollah members of involvement in Hariri's assassination. Hezbollah denies any involvement and has warned anyone against taking action against its members.

It has also said the priority of Lebanon's new government should be to cut ties with the tribunal, end Lebanon's contributions to its funding, and withdraw Lebanese judges from the court. Cassese also said that Wednesday's ruling should prove that the tribunal intends to be "absolutely impartial, independent of any political pressure or interference."

The Lebanon tribunal, the world's first international court with jurisdiction over the crime of terrorism, was set up to investigate the 2005 bombing that killed Hariri and 22 others.

Prosecutor Daniel Bellemare sent an indictment on Jan. 17 to pre-trial Judge Fransen, who then posed to court judges 15 questions covering definitions of terrorism, conspiracy and homicide, and other issues such as criminal responsibility.

In January, the court initially said it would take Fransen at least six to 10 weeks to confirm the draft indictment, but this could take longer given the complex nature of the material.

Commenting on the Appeals Chamber's ruling Wednesday, the former head of General Security Jamil Sayyed said the presence of the STL Vice President, Lebanese Judge Ralph Riashi, at the meeting violated the principles and standards of international law because he contributed to the court's Rules of Procedure and Evidence and "shouldn't therefore act as a judge on material he contributed to drafting."

Sayyed said the presence of the two Lebanese judges at the court, Riashi and Afif Shamseddine, violated principles of neutrality and integrity, since the two were appointed by a government that supported the so-called "false witnesses" in the STL investigation.

Sayyed and three other security chiefs were arrested in 2005 on suspicion of involvement in the Hariri murder but released in 2009 due to lack of evidence. In March 2010, Sayyyed requested that the tribunal give him access to his investigation's files so that he could take legal action against witnesses he says submitted false testimony against him and his colleagues.