Home International Tribunals Archive for category "Special Tribunal for Lebanon"

Special Tribunal for Lebanon Delivers Interlocutory Decision on Applicable Law

Published on February 16, 2011        Author: 

Today the Appeals Chamber of the Special Tribunal for Lebanon delivered an interlocutory decision on several points of applicable law before the Tribunal. It has essentially done so in an advisory fashion, at the request of the pre-trial judge, in order to provide him with adequate guidance with respect to 15 questions of law. In other words, the Appeals Chamber rendered this decision without actually having a concrete case before it, after having heard the submissions of the prosecution and the defense office on the legal issues in question. The 150-page decision is available here; a summary read out by President Cassese is available here.

This is an incredibly rich decision – if you will (and appropriately enough bearing in mind Judge Cassese’s involvement), the STL’s Tadic. I am sure that it will provoke much discussion, and not a little bit of controversy. I had so far only given the decision a very quick skim, but let me try to point out some of the most interesting developments.

The Appeals Chamber held, inter alia, that customary international law now recognizes a distinct crime of terrorism in peacetime. Notably, the Chamber held not only that a customary rule exists between states that they need to suppress terrorist crimes, but that a customary rule applicable to individuals has evolved, directly creating a true international crime. This is of course a position that Judge Cassese has been advocating for some time extra-curially – see e.g. his International Criminal Law textbook. That position is however controversial to say the least – see e.g. the textbook by Cryer et al, 2nd ed., at p. 338 ff. Now, note that the STL is actually bound by its Statute to apply Lebanese substantive criminal law, and its own definition of terrorism (on which the Chamber has several things to say); to that extent whether or not customary international law recognizes a distinct crime of terrorism is beside the point. Its only relevance is that the Chamber has held that in cases of doubt it will interpret Lebanese law so that it conforms with international law, but it was hardly necessary for it to reach the very ‘activist’ conclusion that terrorism has now become a true international crime, like genocide, crimes against humanity and war crimes. Whether the Chamber’s analysis of the relevant state practice and opinio juris is to be considered persuasive outside the STL remains to be seen.

Several years ago, I published an article in the JICJ in which I anticipated another problem which the Chamber had to deal with today. Namely, while the STL Statute provides that the only body of applicable law is Lebanese law, it at the same time allows the application of uniquely international forms of individual criminal responsibility, namely common purpose (or joint criminal enterprise, particularly its third or extended type) and command responsibility. I argued that applying these forms responsibility to the individuals accused of assassinating Hariri would violate the principle of legality, nullum crimen sine lege, as it would allow for the punishment of individuals who could not be punished under Lebanese law, the only relevant body of substantive law. Before the Appeals Chamber, the defense office developed this legality argument in great detail, while the prosecution argued that under the plain language of the Statute it could rely on international forms of responsibility in all circumstances.

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Formation of Custom and the Inherent Powers of the Special Tribunal for Lebanon

Published on November 11, 2010        Author: 

Yesterday the STL Appeals Chamber issued its first substantive decision (h/t Bill Schabas’ blog), penned by Professor Antonio Cassese, who was not only the presiding judge but also the judge rapporteur in the Chamber. The decision delves in great detail into the concept of inherent powers of international courts and tribunals, and is strongly reminiscent of the ICTY Appeals Chamber’s first decision in Tadic, over which Judge Cassese obviously also presided.

Expansive invocations of inherent powers have not come without controversy. The STL decision, although ostensibly dealing with a very technical matter of the access of a potential suspect to documents in his case file, is well worth the read on several points of principle. I was particularly struck by the Appeals Chamber assertion (para. 43 of the decision) that a rule of customary international law now exists to the effect that international courts and tribunals possess an inherent jurisdiction, which confers on each of them the power to determine the scope of their own jurisdiction (competence de la competence; Kompetenz-Kompetenz). I was even more struck by how the Appeals Chamber went on to prove that such a customary rule existed (para. 47):

The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.

Fantastic, no? Note how custom now apparently equals what tribunals say is custom, plus lack of objection by anyone else. Note also how the Appeals Chamber does not refer to state practice and opinio juris, but to practice pure and simple, as well as to the ‘lack of any objection by States, non-state actors or other interested parties‘ and the ‘acquiescence of all the international subjects concerned.’ Hardly an orthodox account of the formation of custom!

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