The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hasan Sabra

Court	Special Tribunal for Lebanon (Appeals Chamber), The Netherlands
Case number	STL-11-01/I
Decision title	Interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging
Decision date	16 February 2011
Parties	The Prosecutor Salim Jamil Ayyash Mustafa Amine Badreddine Hussein Hassan Oneissi Assad Hassan Sabra
Categories	Terrorism
Keywords	Special Tribunal for Lebanon, Terrorism
Links	Interlocutory Decision
Other countries involved	Lebanon

Summary

On 14 February 2005, a bomb in downtown Beirut exploded, killing 22 people, including the former Prime Minister of Lebanon, Rafik Hariri. The Special Tribunal for Lebanon was established by the Security Council in order to prosecute persons responsible for the bombing.

In its interlocutory decision, the Appeals Chamber interpreted the STL Statute to require application of substantive Lebanese law as applied by Lebanese courts, but not before noting that binding international obligations, including customary international law, should inform any such interpretation. The Appeals Chamber held, inter alia, that not only does a customary rule exists between states to suppress terrorist act, but that terrorism is an individual international crime under customary law.

The Special Tribunal for Lebanon Appeals Chamber examined state practice and binding international covenants to assert that the crime of terrorism is “commonly accepted at the international level.” As such, the Chamber derived the key components in formulating a general definition of terrorism: (1) the perpetration of a criminal act; (2) the intent to spread fear among the population or coerce a national or international authority to take some action; (3) and the act involves a transnational element. For the first time, a tribunal of international character has established the existence of a customary rule of international law recognizing an international crime of terrorism in times of peace.

Procedural history

On 17 January 2011, the Prosecutor submitted a seal indictment to the Pre-Trial Judge to confirm. The Pre-Trial Judge responded by submitting 15 questions to the Appeals Chamber to resolve ab initio (from the outset), pursuant to Rule 68(G) of the Tribunal’s Rules of Procedure and Evidence, to clarify the applicable law governing the crimes of terrorism, conspiracy, and premeditated murder.

The Prosecutor and Defence Office filed written briefs to the Appeals Chamber on 31 January 2011 and 4 February 2011, respectively. The Appeals Chamber heard oral arguments at a public hearing on 7 February 2011 (para. 1). Additionally, the Appeals Chamber appointed third-party institutions to file amici curiae briefs by 11 February 2011 (para. 2).

The Appeals Chamber unanimously issued this interlocutory decision on 16 February 2011.

Related developments

The Prosecution originally filed an indictment against Hassan Habib Merhi on 5 June 2013 which was later joined in a consolidated indictment against Mr. Merhi and the other accused. After reports that Mr. Badreddine had been killed in May 2016, the Appeals Chamber terminated the proceedings against him without prejudice. See STL Press Release ‘The Appeals Chamber order termination of the proceedings against Mustafa Badreddine without prejudice’, 11 July 2016.

The trial in the Ayyash et al. case began with opening statements on 16 January 2014 and concluded with closing arguments on 21 September 2018.

At the time of this writing, the judges have withdrawn to deliberate whether the prosecution has met its burden of proof beyond a reasonable doubt regarding the charges against them and will issue a judgment in due course. See ‘Conclusion of the closing arguments in the Ayyash et al. case’, STL Press Release, 21 September 2018.

Relatedly, an English Court in 2012 addressed whether customary international law has developed a crime of terrorism within the context of armed conflicts, unlike the peace time qualification the Tribunal contemplated here. See Regina v. Gul, UK Supreme Court, 2013.

Legally relevant facts

In 2007, the Special Tribunal for Lebanon was established by UN Security Council Resolution 1757 (para. 16). The Tribunal’s mandate is to prosecute for terrorism, conspiracy, and other crimes the perpetrators responsible for the bombing attack near St. George Hotel in February 2005 which killed former Lebanese Prime Minister Rafik Hariri, among 22 others (para 13).

The Tribunal is compelled under Article 2 of the STL to apply substantive Lebanese criminal law, but it is nonetheless an international tribunal in “provenance, composition, and regulation” which must abide by the “the highest international standards of criminal justice.” (para. 16).

Core legal questions

Under the Statute of the Tribunal, is the applicable substantive law Lebanese or international for crimes prosecuted before it?

Does customary international law now recognize a distinct crime of terrorism in peace time?

Specific legal rules and provisions

Rules 68(A), (F) and (G) of the Rules of Procedure and Evidence of the Special Tribunal for Lebanon.
Article 2 of the Statute of the Special Tribunal for Lebanon.
Article 314 of the Lebanese Criminal Code.
Articles 6 and 7 of Law of 11 January 1958.
Articles 1 and 2 of the Arab Convention for the Suppression of Terrorism.
Articles 2(1)(b) and (3) of the International Convention for the Suppression of the Financing of Terrorism.

Court's holding and analysis

This decision was borne under Rule 68(G) of the Tribunal’s Rules of Procedure and Evidence whereby the Appeals Chamber issues an interlocutory decision to clarify, in advance of the trial, applicable law to guide the Trial Chamber in ruling on indictments before it (para. 9). Thus, the decision is one of making determinations of law in the abstract without reference to a specific set of facts or defendants (para. 7-11).

Under Article 2 of the Statute, the Tribunal must apply Lebanese substantive criminal law to facts coming within its jurisdiction (para. 33). However, the Tribunal, in applying Lebanese law as interpreted by national courts, may construe national legislation in such a manner consistent with international obligations binding on Lebanon (para 41). Thus, the Appeals Chamber asserted that Lebanese substantive criminal law, although applicable, is informed by customary and binding international obligations (para. 39).

The foundation of the Tribunal’s recognition of a customary international crime of terrorism relied on evidence of state practice in prosecuting terrorism and a bevy of treaties outlining state obligations regarding preventing and reducing terrorism (para. 63-113). Consequently, the Tribunal stated that a customary crime of terrorism in peace time had emerged as defined by the following three key elements: (1) the perpetration of a criminal act; (2) the intent to spread fear among the population or coerce an authority to take some action; (3) the act involves a transnational element (para. 83-85).

This presented a conflict with the crime of terrorism as defined by Lebanese criminal law, which enumerates specific means of committing a terrorist act, and customary international law as defined by the Tribunal (para. 47-52).

The Appeals Chamber concluded that the particular means employed in committing a terrorist act is not dispositive because a broader definition of terrorism exists under binding customary law (para. 129-130). Thus, Article 314, properly constructed in consonance with international law, requires: (1) a volitional commission of an act; (2) through means that are liable to create a public danger; and (3) the intent of the perpetrator to cause a state of terror (para. 147).