Special Tribunal for Lebanon Delivers Interlocutory Decision on Applicable Law

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.

The Appeals Chamber did not agree with either approach (paras. 210-211):

Several principles guide our analysis, and should also guide the Pre-Trial Judge and the Trial Chamber when they consider specific cases before them. The Tribunal must reconcile any inconsistencies between Articles 2 and 3 in light of the general principles of interpretation enunciated above. First, as discussed above regarding the definition of terrorism, the drafters of the Statute favoured Lebanese law over international criminal law in terms of substantive crimes, as set out in Article 2. However, and this is our second remark, Article 2 also includes the proviso that Lebanese law, including the regulation of “criminal participation”, should apply “subject to the provisions of this Statute”, and it is clear that the drafters of the Statute intended to incorporate through Article 3 modes of criminal responsibility recognised in international criminal law. The Appeals Chamber cannot just assume that Article 3 was a mistake and should not be considered part and parcel of the Statute. Third, the principle of nullum crimen (in particular, its non-retroactivity requirement) applies not only to substantive crimes, but also to modes of criminal responsibility.

Applying these three principles, we conclude that generally speaking the appropriate approach is to (i) evaluate on a case-by-case basis whether there is any actual conflict between the application of Lebanese law and that of the international criminal law embodied in Article 3; (ii) if there is no conflict, apply Lebanese law; and (iii) if there is a conflict, apply the law that would lead to a result more favourable to the rights of the accused.

The Chamber also touched upon the further issue whether JCE III, which in essence has a mens rea of foreseeability, can apply to specific intent crimes such as genocide or here terrorism. Contrary to the case law of the ICTY, the Chamber has held that JCE III could NOT apply to dolus specialis crimes (paras. 248-249).  The fragmentation of international criminal law is well and truly upon us! On a different note, the Chamber also added that the concept of perpetration by means, much-loved by German scholars and now employed in several cases before the ICC, is not a form of individual criminal responsibility under customary international law, nor before the STL (on the possible consequences of the non-customary nature of the perpetration by means, see more here).

The Chamber justified the application of international forms of responsibility by comparing them to forms of responsibility in Lebanese law, and concluding that they overlapped to a great extent. However, in its view it is the international forms of responsibility that may in some cases be more favourable to the defendant, and it is they that should then be applied (para. 262):

Should there be a conflict, however, the Pre-Trial Judge and (in due course) the Trial Chamber will have to consider which source of law leads to the greatest protection for the rights of the accused. One such situation has already presented itself in the course of our theoretical analysis: under JCE III as applied by the Tribunal, the extra foreseeable (but un-concerted) offence may not be a terrorist act (or other criminal offence that requires special intent), but only another offence requiring general intent such as homicide. On the other hand, under Lebanese law, one could be convicted of a terrorist act for which one harbours only dolus eventualis (that is, it was foreseeable that the terrorist act would occur, but the person accused did not specifically intend to spread terror). If such a case were to be presented to the Pre-Trial Judge, depending on the circumstances, the mode of responsibility under international criminal law-JCE Ill-might be applied as it is more protective of the rights of the accused.

Now this is something that we don’t see every day – JCE III as more protective of the rights of the accused. Whether the Chamber’s hypo will have practical relevance will of course depend on the application of Lebanese law to specific facts, something that we can’t consider at this time.  Also, I am not exactly sure why, but unless I’m mistaken the Chamber makes no mention of command or superior responsibility, even though it is set out in Art. 3(2) of the STL Statute, and even though it raises the same potential legality problems as JCE. Nonetheless, bearing in mind the general principles that the Chamber has articulated, it seems likely that the STL will in all but the most exceptional of situations be applying Lebanese law (as it should) BOTH with regard to definitions of crimes AND with regard to forms of responsibility. In essence, the approach it took allowed the Chamber to achieve a result that is consistent with the principle of legality, but at the same time avoid ruling that Art. 3 of the Statute is for practical purposes a nullity.

To sum up, this is a very important and very rich decision. Further comments on it would be most welcome.