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SPECIAL TRIBUNAL FOR LEBANON

TRIBUNAL SPÉCIAL POUR LE LIBAN

STL CASEBOOK

2011

Major rulings issued by the

Special Tribunal for Lebanon

STL

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STL CASEBOOK 2011

Major rulings issued by theSpecial Tribunal for Lebanon

Special Tribunal for Lebanon

Leidschendam

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Special Tribunal for LebanonLeidschendam Netherlands

©2013 Special Tribunal for Lebanon

Documents published in this book do not constitute the ofcial record of the Special Tribunal forLebanon and are intended for public information only.

ISBN 978-94-90651-05-3

Printed in The Netherlands

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TABLE OF CONTENTS

Preface 7

1. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Order on the PreliminaryQuestions Addressed to the Judges of the Appeals Chamber pursuant to Rule68, Paragraph (G) of the Rules of Procedure and Evidence, Case No.: STL-11-01/I, 21 January 2011 (“Preliminary Questions PTJ”)

9

2. The Prosecutor v. Ayyash et al., Appeals Chamber, Interlocutory Decisionon the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration,Cumulative Charging, Case No.: STL-11-01/I, 16 February 2011(“Applicable Law”)

27

3. In the matter of El Sayed, Pre-Trial Judge, Decision on the Disclosure ofMaterials from the Criminal File of Mr El Sayed, Case No.: CH/PTJ/2011/08,12 May 2011 (“El Sayed Decision PTJ”)

205

4. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Decision Relating to theExamination of the Indictment of 10 June 2011 Issued against Mr Salim JamilAyyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi & MrAssad Hassan Sabra, Case No.: STL‑11‑01/I, 28 June 2011 (“Conrmationof Indictment”)

225

5. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Indictment, Case No.:

STL‑11‑01/I/PTJ, Document led: 10 June 2011. Public Redacted Version published: 16 August 2011 (not indexed)

273

6. In the matter of El Sayed, Appeals Chamber, Decision on Partial Appeal by Mr El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, Case No.:CH/AC/2011/01, 19 July 2011 (“El Sayed Decision AC”)

317

7. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Decision on Languages inthe Case of Ayyash et al ., Case No.: STL-11-01/I/PTJ, 16 September 2011(“Decision on Languages”)

371

8. In the matter of El Sayed, Appeals Chamber, Order Allowing in Part andDismissing in Part the Appeal by the Prosecutor against the Pre-Trial Judge’sDecision of 2 September 2011 and Ordering the Disclosure of Documents,Case No.: CH/AC/2011/02, 7 October 2011 (“Disclosure Decision AC”)

399

9. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Order to Seize the TrialChamber Pursuant to Rule 105 bis (A) of the Rules of Procedure andEvidence in order to Determine whether to Initiate Proceedings In Absentia,Case No.: STL-11-01/I, 17 October 2011 (“Rule 150 bis Order”)

423

Index 435

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PREFACE

This casebook is part of a collection of volumes that the Special Tribunal for Lebanon

plans to publish throughout its life, containing the most signicant rulings delivered

by its Judges each year. It is part of the outreach efforts of the Tribunal. Its purpose

is to improve access to the jurisprudence of the Tribunal in Lebanon and beyond.

This volume contains eight major decisions issued by the Tribunal in 2011 and the

Indictment in the Ayyash et al. case which was conrmed that year. These decisionsare also accessible on the Tribunal’s website (www.stl-tsl.org). The volume also

contains an analytical index aimed at facilitating research by students and scholars.

As the rst tribunal of international character with jurisdiction over terrorism, the

signicance of the STL jurisprudence goes well beyond our courtroom. I hope that

this publication will assist students, professors, academics, scholars, judges, lawyers,

other members of the legal profession and even the general public – both in Lebanon

and elsewhere – in accessing, studying, and commenting on the Tribunal’s case law.

David Baragwanath

President

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Case name: The Prosecutor v. Ayyash et al.

Before: Pre-Trial Judge

Title: Order on Preliminary Questions Addressed tothe Judges of the Appeals Chamber pursuant

to Rule 68, Paragraph (G) of the Rules of

Procedure and Evidence

Short title: “Preliminary Questions PTJ”

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THE PRE-TRIAL JUDGE

Case No.: STL-11-01/I

Filed before: The Pre-Trial Judge

Mr Daniel FransenRegistrar: Mr Herman von Hebel

Date: 21 January 2011

Original language: French

Type of document: Public

[Case Name: The Prosecutor v. Ayyash et al.]

ORDER ON PRELIMINARY QUESTIONS ADDRESSED TOTHE JUDGES OF THE APPEALS CHAMBER PURSUANT TO

RULE 68, PARAGRAPH (G) OF THE RULES OF

PROCEDURE AND EVIDENCE

Ofce of the Prosecutor:

Mr Daniel Bellemare, MSM, QC

Defence Ofce: Mr François Roux

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Preliminary Questions PTJ

1. Pursuant to Rule 68, paragraph (G) of the Rules of Procedure and Evidence

of the Special Tribunal for Lebanon (“Rules” and “Tribunal” respectively), the Pre-

Trial Judge of the Tribunal (“Pre-Trial Judge”) hereby has the honour to submitrespectfully to the Appeals Chamber of the Tribunal (“Appeals Chamber”) some

preliminary questions relating to the interpretation of the Statute. These questions are

intended to clarify the applicable law in order to examine the indictment submitted

by the Prosecutor of the Tribunal (“Prosecutor”) on 17 January 2011 and issue, with

full knowledge of the facts, a decision on whether or not to conrm the indictment.

Preliminary observations

2. On reading the counts in the indictment, the Pre-Trial Judge considers that,

in the interest of justice, several questions with regard to the interpretation of the

applicable law should be determined in limine litis by the Appeals Chamber. These

questions relate to the offences, modes of responsibility and cumulative charging

and plurality of offences covered in the indictment. Indeed, as will be examined

subsequently in detail, the provisions of the Statute relating to these questions are

open to differing interpretations. Should all or part of the indictment be conrmed

without having claried these provisions at this stage of the proceedings, the

proceedings might commence on incorrect legal bases which would not be rectied

until the end of the proceedings when the appeals ruling is issued. This method of

proceeding, in addition to being time-consuming and costly, would not assist the

proceedings in terms of coherency and transparency, nor would it be in the interest

of the accused. A specic denition of the applicable law from the outset would

allow the accused to gain a better understanding of the scope of the counts against

them and prepare their defence accordingly. Likewise, to invalidate all or part of theindictment without having claried ab initio the aforementioned provisions of the

Statute might unjustiably compromise the future proceedings.

1. The offences

3. Amongst the offences covered in the indictment are terrorist acts, conspiracy

with a view to committing a terrorist act (“conspiracy”), intentional homicide

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with premeditation and attempted intentional homicide with premeditation. In the

interests of clarity, the Pre-Trial Judge will examine the aforementioned questions

individually using the denition of each of these offences.

4. It should be noted that the counts mentioned in the indictment are founded on

both Articles 1 and 3 of the Statute, Articles 188, 200, 212, 213, 270, 314, 547, 549

(1) and (7) of the Lebanese Criminal Code and Articles 6 and 7 of the Lebanese Law

enacted on 11 January 1958.

A. Terrorist acts

5. Although it does not give a specic denition of the notion of terrorist acts,

Article 2 of the Statute refers to Article 314 of the Lebanese Criminal Code relating

to the prosecution and punishment of these acts. The Pre-Trial Judge questions

whether it is necessary for the Tribunal to take into account conventional and

customary international law in order to understand fully this notion. If it should be

taken into account, he likewise questions the way in which any conict which might

arise between the denition given by the Lebanese Criminal Code and that given by

international law can be resolved.

6. The rst question raised by the denition of the notion of terrorist acts could

therefore be set out as follows: taking into account the fact that Article 2 of the

Statute refers exclusively to the relevant provisions of the Lebanese Criminal Code

to dene the notion of terrorism, should the Tribunal likewise take into account

applicable international law in this regard? In particular, should it rely on the general

denition of terrorism as set out in Article 1, paragraph 2 of the Arab Convention

on the Suppression of Terrorism,1 or indeed those denitions mentioned in otherinternational conventions or, if appropriate, those which could be drawn from

customary international law?

1 Article 1, paragraph 2 of the Arab Convention on the Suppression of Terrorism (which entered into force 22April 1998 and was ratied by Lebanon on 31 March 1999) denes terrorism as follows: “Any act or threatof violence, whatever its motives or purposes, that occurs in the advancement of an individual or collectivecriminal agenda and seeking to sow panic among people, causing fear by harming them, or placing their lives,liberty or security in danger, or seeking to cause damage to the environment or to public or private installationsor property or to occupying or seizing them, or seeking to jeopardize a national resource[s]” [unofcial

translation].

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7. In order to support these questions, the Pre-Trial Judge submits the following

considerations to the Appeals Chamber:

a. The text of Article 2 of the Statute. As mentioned above, Article 2 of the Statute

does not provide a denition of terrorist acts but refers in this respect to the

Lebanese criminal provisions in force. As such, Article 314 of the Lebanese

Criminal Code denes this notion in the following manner: “Terrorist acts are

all acts intended to cause a state of terror and committed by means liable to

create a public danger such as explosive devices, inammable materials, toxic

or corrosive products and infectious or microbial agents”.2 Article 2 of the

Statute appears consequently to refer solely to national Lebanese law with theexception of conventional and customary international law.

b. The international character of the Tribunal. Although clearly inuenced

by Lebanese law, the Tribunal has an international character which results

principally from the way in which it was established, its composition and the

rules relating to the way in which it functions. It is therefore legitimate to

question whether it is necessary for the Tribunal to refer to conventional and

customary international law, in order to specify – indeed supplement – the provisions of substantive law that the Tribunal should apply. It is appropriate

to note in this respect that the other ad hoc international criminal tribunals

were quite prepared to go beyond the rigid frameworks of their Statutes and to

refer to international conventions and customary principles in force in order to

specify the offences which were mentioned therein.3

c. The evolution of the notion of terrorism. As mentioned above, Article 2 of the

Statute refers to the Lebanese Criminal Code which was adopted on 1 March1943. Since that date, numerous conventions have entered into force worldwide

(internationally and regionally) in order to create specic terrorist offences

2 It should be noted that the term corresponding to “état d’alarme” in the Arabic version of the Lebanese CriminalCode is “رعذ ” and that in the Tribunal ofcial Arabic to English translation, this term is translated by “stateح لof terror”.

3 International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. 94-1-AR72, The Prosecutor v.

Tadić, IT-94-1-AR72, Decision of 2 October 1995, paras 94-95.

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– some of which have been ratied by Lebanon4 – or to combat the crime

of terrorism generally as envisaged by the aforementioned Arab Convention.

In extending these conventions, the United Nations General Assembly, theSecurity Council and the Commission on Human Rights have also adopted

several resolutions on this issue.5 Furthermore, faced with the upsurge in

terrorist acts during the last four decades, numerous States, in order to respond

to the specic characteristics of this offence, have created a specic legislative

arsenal which itself has been inuenced by the case law of their courts and

tribunals.6 Taken together, these texts – conventions, resolutions, laws and

4 Conventions relating to this issue which have been ratied by Lebanon include: the Convention on Offences andCertain Other Acts Committed On Board Aircraft (date of ratication: 11 June 1974); the Convention for theSuppression of Unlawful Acts against the Safety of Civil Aviation (date of ratication: 23 December 1977); theConvention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (date of accession:16 December 1994); the Protocol for the Suppression of Unlawful Acts of Violence at Airports ServingInternational Civil Aviation (date of ratication: 27 May 1996); the International Convention against the Takingof Hostages (date of accession: 4 December 1997); and the Convention on the Prevention and Punishment ofCrimes against Internationally Protected Persons, including Diplomatic Agents (date of accession: 3 June 1997).These conventions recognise as offences certain specic acts or provide for specic legal rules to be applied tothese offences without necessarily referring to the concept of “terrorism”.

5 Cf. Security Council resolutions 1269 (1999), preamble para. 1; 1373 (2001), para. 4; 1377 (2001), para. 6;

1456 (2002), preamble paras 3 and 6; 1540 (2004), preamble para. 8 and 1566 (2004). Paragraph 3 of this lastresolution is particularly informative as – without providing in the strictest sense a denition of terrorism – itrecalls that “criminal acts, including against civilians, committed with the intent to cause death or serious

bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an internationalorganization to do or to abstain from doing any act , which constitute offences within the scope of and as denedin the international conventions and protocols relating to terrorism, are under no circumstances justiable byconsiderations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature” (italicsadded). Cf. Likewise, General Assembly resolutions 3034 (XXVII) (1972), para. 1; 31/102 (1976), para. 1;32/147 (1977), para. 1; 34/145 (1979), para. 1; 36/109 (1981), para. 1; 48/122 (1993), preamble para. 7; 49/185(1994), preamble para. 9; 50/186 (1995), preamble para. 12; 52/133 (1998), preamble para. 11; 54/164 (2000),

preamble para. 13; 56/160 (2002), preamble para. 18; 58/136 (2003), preamble para. 8; 58/174 (2004), preamble

para. 12; 59/153 (2004), preamble para. 10; and 59/194 (2004), preamble para. 3 and paras 2, 4 and 14. Cf. TheCommission on Human Rights, resolutions 2001/37, preamble para. 16 and para. 2; and 2004/44, preamble para. 7.

6 Cf. Article 83.01(1) of the Criminal Code of Canada which denes terrorist activity as follows: “an act oromission that is committed in or outside Canada [...] committed both: (A) in whole or in part for a political,religious or ideological purpose, objective or cause; (B) in whole or in part with the intention of intimidatingthe public, or a segment of the public, with regard to its security, including its economic security, or compellinga person, a government or a domestic or an international organization to do or to refrain from doing any act,whether the public or the person, government or organization is inside or outside Canada […]”. The SupremeCourt of Canada also recognised that the denition of terrorism set out in Article 2 (1) (b) of the InternationalConvention for the Suppression of the Financing of Terrorism “... catches the essence of what the worldunderstands as ‘terrorism’”. (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 R.C.S. 3,

2002 SCC 1, para. 98). This Convention, which entered into force on 10 April 2002, denes terrorism in the

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case law – could provide information as to the evolution, at international level,

of the notion of terrorism and its constituent elements. In this context, the

question arises of whether the Tribunal, given its specic character, shouldinterpret Article 314 of the Lebanese Criminal Code and relevant Lebanese

case law by taking into account this evolution in so far as: rstly, this would

be effectively established by one or more international conventions ratied

by Lebanon or would reect a customary law resulting from a practice of

States which is accepted by law; and secondly, this or these conventions or

this customary law would be applicable in the national Lebanese criminal

justice system.

d. The rule of criminal law. If it should be supplemented in the light of

international law, the notion of terrorism should be applied in accordance with

the fundamental rule of criminal law.7 In this respect, it is worth recalling that

Article 15 of the International Covenant on Civil and Political Rights, which

was ratied by Lebanon on 3 November 1972 and entered into force on 23

March 1976, provides that a person can be held guilty of an act or omission

which constituted a criminal offence at the time it was committed, not only

under the relevant national law, but also under the international law in force.8

e. The clarication of the constituent elements of terrorism. Article 314 of

following manner: “Any [other] act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organizationto do or to abstain from doing any act”. Cf. Also the United Kingdom legislation on this matter (UK TerrorismAct 2000, Section 1) drawn up as follows: “Terrorism means the use or threat of action where […] (b) the use orthreat is designed to inuence the government or to intimidate the public or a section of the public, and (c) the

use or threat is made for the purpose of advancing a political, religious or ideological cause”.

7 The principle of nullum criminel sine lege is established by most national legal systems – including Lebaneselaw (cf. Article 1 of the Lebanese Criminal Code) – as well as by numerous instruments for the protectionof human rights, in particular by Article 11, paragraph 2 of the Universal Declaration of Human Rights of1948, Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of1950, Article 15 of the International Covenant on Civil and Political Rights of 1966, Article 9 of the AmericanConvention on Human Rights of 1969 and Article 7, paragraph (2) of the African Charter on Human andPeoples’ Rights of 1981.

8 Article 15, paragraph 2 of the International Covenant on Civil and Political Rights is drawn up as follows:“Nothing in this article shall prejudice the trial and punishment of any person for any act of omission which,at the time when it was committed, was criminal according to the general principles of law recognized by the

community of nations”.

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the Lebanese Criminal Code and relevant case law place the emphasis on

the means by way of which the terrorist offence is committed (explosive

devices, inammable materials, toxic or corrosive products and infectiousor microbial agents).9 On the other hand, they are less forthcoming with

regard to the special intent10 as a requisite on the part of the perpetrator of the

offence,except for a reference to “state of terror”.11 Yet the aforementioned

international conventions, resolutions, laws and case law generally refer to

special intent as the distinguishing feature of an act of terrorism in comparison

to common law offences and dene it in reference to two principle factors: the

intention to exert pressure on a State or an international organisation and the

intimidation of all or part of the public. Consequently, should the Tribunal rely

on international law in order to specify the constituent elements of this offence

and, in particular, the intent, in order notably to ensure better certainty of the

law and strengthen the rights of the accused?

f. Harmonisation of Articles 2 and 3 of the Statute. For a denition of the modes

of responsibility falling within the jurisdiction of the Tribunal, Article 3 of

the Statute relies directly on international law by drawing up this Article in

a similar fashion to Articles 25 and 28 of the International Criminal Court

(“ICC”). In the interests of aligning the provisions of the Statute relating to the

offences and to the modes of responsibility, this reference to international law

would justify the judge making use of these articles as a basis for clarifying

the denition of the offence.

8. Should there be a positive response to the questions raised in paragraph 6,

it would be appropriate to consider, and in accordance with which principles, how

to reconcile the notion of terrorism as set out in Article 2 of the Statute (which

places the emphasis above all on the material element of the offence) with that drawn

9 The Judicial Council of Lebanon, Case Nizar Al-Halabi, 17 January 1997 and Case Michel Al-Murr , citedin Nidal Nabil Jurdi, “The Subject Matter Jurisdiction of the Special Tribunal for Lebanon”, Journal of

International Criminal Justice, 5 (2007), 1125-1138, p.1134, nos 49-50.

10 The intentional element of a terrorist offence is often deduced from the means used to commit the offence (cf. The Judicial Council of Lebanon, Case Michel Al-Murr ).

11 Cf. footnote 2.

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from international law (which gives predominance to the intentional aspect). After

considering this, it would be appropriate to determine the constituent elements,

material and intentional, of this notion to be applied by the Tribunal. In this respect,the Pre-Trial Judge notes that Article 2 of the Statute must indeed be interpreted in

the light of the customary principles established by Articles 31 to 33 of the Vienna

Convention on the Law of Treaties which entered into force on 27 January 1980,

the statements made by representatives of Member States of the Security Council at

the time of the adoption of Council resolution 1757 (2007) or of other resolutions

dealing with the same issue in addition to recent practices of the United Nations and

States that affect the resolutions in question.12 However, with regard to a criminal

offence, the principle according to which the interpretation of the Statute texts cannot

be made to the detriment of the rights of the accused must be fully respected.

9. Should there be a negative response to the questions raised in paragraph

6, it would be advisable to determine precisely the constituent elements, material

and intentional, of the terrorist acts that should be taken into consideration by the

Tribunal in light of Lebanese law and case law pertaining thereto.

10. Furthermore, in addition to the questions of a general nature relating tothe denition of the notion of terrorism, in light of the charges contained in the

indictment, the Pre-Trial Judge respectfully submits to the Appeals Chamber the

following question. If the perpetrator of acts of terrorism aimed at creating a state of

terror 13 through the use of explosive devices intended to commit this act by killing a

specic individual, how can his or her criminal responsibility be dened in the case

where death and injury are caused to persons who might be considered not to have

been the personal or direct object of such acts?

B. Conspiracy

11. As for the notion of terrorist acts, Article 2 of the Statute refers to the Lebanese

Criminal Code with regard to conspiracy. Article 270 of this Code denes it in the

12 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independencein respect of Kosovo, 22 July 2010, para. 94.

13 Cf. footnote 2.

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following terms: “Any agreement concluded between two or more persons to commit

a felony by specic means shall be qualied as a conspiracy.” In this regard, the

application of Article 315 of this Code, which specically recognises “a conspiracyaimed at the commission of one or more acts of terrorism”, was suspended by Article

1 of the Law enacted on 11 January 1958. Article 7 of this same law states, without

specifying further, that “[e]very person who enters into a conspiracy with a view to

the commission of any of the offences contemplated in the preceding articles shall

be liable to the death penalty”, which includes acts of terrorism.

12. In the light of considerations similar to those mentioned in paragraph 7 of

this Order, the Pre-Trial Judge questions whether the Tribunal must rely, not onlyon Lebanese law, but also on conventional and customary international law, in order

to interpret the constituent elements of the notion of conspiracy. For this reason, the

Pre‑Trial Judge notes that, in international law, conspiracy is recognised as a specic

offence where genocide14 is concerned and, in national law, sometimes as a specic

offence,15 sometimes as a mode of responsibility.16

13. Should there be a positive response to the question raised in the preceding

paragraph, it would be appropriate to examine whether there is any conict betweenthe denition of conspiracy as recognised in Lebanese law (mentioned in Article 7 of

the Law enacted on 11 January 1958 and substantiated by the relevant applicable case

law) and that arising out of international law and, where necessary, how to resolve

it in accordance with the relevant applicable international norms, in the interests of

certainty of the law and respect for the rights of the accused.

14 International Criminal Tribunal for Rwanda (ICTR), Case No. ICTR-96-13-T, The Prosecutor v. Musema,Judgement of 27 January 2000 , paras 185‑191; ICTR, Case No. ICTR‑99‑52‑T , The Prosecutor v. Nahimana, Judgement of 3 December 2003, para. 1043.

15 Cf. concerning conspiracy as a specic offence: G. Werle, Principles of International Criminal Law, T.M.C.Asser Press, The Hague, 2005, p.166, para. 489 ; G. Fletcher, Rethinking Criminal Law , Oxford UniversityPress, Berlin, 2000, pp. 646 et seq.; Article 465 of the Criminal Code of Canada; Section 120‑A, Indian PenalCode (1860); Case R. v. Lam, [2005] ABQB 849.

16 Cf. G. Boas, J. L. Bischoff and N. L. Reid, International Criminal Law Practitioner Library: Forms of Responsibility in International Criminal Law, Vol. I, p. 283, n.13 referring to A. M. Danner and J. S. Martinez,“Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of InternationalCriminal Law”, California Law Review 93 (2005), 75-169, p.119.

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14. Should there be a negative response to this question, it would be advisable to

precisely determine the constituent elements of this notion that must be taken into

consideration by the Tribunal from the point of view of Lebanese law and the caselaw pertaining thereto.

15. In addition, in so far as the notion of conspiracy and that of joint criminal

enterprise – referred to in paragraph b) of Article 3 of the Statute and constituting

a mode of responsibility in international law – share points in common initially, it

would be advisable to specify their respective distinguishing features.

C. Intentional homicide with premeditation and attempted intentional

homicide with premeditation

16. Homicide counts among the “crimes and offences against life and personal

integrity” referred to in Article 2 of the Statute. It is made an offence under Article 547

of the Lebanese Criminal Code in the following terms: “[a]nyone who intentionally

kills another person shall be punishable by hard labour for a term of between 15 and

20 years.” Premeditation is referred to in Article 549 of the Lebanese Criminal Code

and the element of intent specically set out in Articles 188 and 189 of this sameCode. Article 188 provides that “[i]ntent consists of the will to commit an offence as

dened by law” and Article 189 that “[a]n offence shall be deemed to be intentional,

even if the criminal consequence of the act or omission exceeds the intent of the

perpetrator, if he had foreseen its occurrence and thus accepted the risk.” As regards

the attempt to commit a criminal offence, this is made an offence under Article 200

of the Lebanese Criminal Code, which species that: “[a]ny attempt to commit a

felony that began with acts aimed directly at its commission shall be deemed to

constitute the felony itself if its completion was prevented solely by circumstances

beyond the control of the perpetrator.”

17. In the light of similar considerations to those mentioned in paragraph 7 of

this Order, the Pre-Trial Judge questions whether the Tribunal must rely, not only

on Lebanese law, but also on conventional and customary international law, in order

to interpret the constituent elements of the notions of intentional homicide with

premeditation and attempted intentional homicide with premeditation.

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18. Should there be a positive response to the question raised in the preceding

paragraph, it should be examined whether there is any conict between the denitions

of the notions of intentional homicide with premeditation and attempted intentionalhomicide with premeditation as recognised by Lebanese law and those that arise out

of international law and, where necessary, how to resolve them in accordance with

the relevant applicable international norms, in the interests of certainty of the law

and respect for the rights of the accused.

19. Should there be a negative response to this question, it would be advisable

to determine precisely the constituent elements of these notions that must be taken

into consideration by the Tribunal in the light of Lebanese law and the case law pertaining thereto.

20. In addition, it would be appropriate if the Appeals Chamber were to indicate

whether an individual may be prosecuted for intentional homicide with premeditation

for offences committed against persons who were not specically targeted in the

alleged criminal act.

2. Modes of responsibility

21. From a general viewpoint, the Pre-Trial Judge notes that the Statute says

nothing about the issue of whether the provisions relating to modes of responsibility

are to be interpreted in the light of Lebanese criminal law or international law.

Indeed, with regard to complicity in a criminal offence, Article 2, paragraph a) of

the Statute refers to the Lebanese Criminal Code. However, Article 3 of this same

Statute entitled “Individual criminal responsibility” draws heavily on international

law as shown in particular by paragraph 2, which relates to responsibility of thesuperior and draws on Articles 25 and 28 of the Statute of the ICC. However, the

Statute provides no information on how to resolve any conict that this situation

might bring about.

22. In this context, the Pre-Trial Judge respectfully requests the Appeals Chamber

to reply to the following questions. In order to apply criminal modes of responsibility

before the Tribunal, should reference be made to Lebanese law, international law or

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both Lebanese and international law? In this last case, how, and on the basis of

which principles, should any conict between these laws, with specic reference to

commission and co-perpetration, be resolved?

3. Cumulative charging and plurality of offences

23. The Statute is silent on the issue of cumulative charging and plurality of

offences. The question that then arises is whether cumulative charging and plurality

of offences should be regulated by Lebanese criminal law, by international law or by

both Lebanese criminal law and international law. In this last case, how, and on the

basis of which principles, should these two laws be reconciled in the event of conict between them?

24. It should be noted in this regard that the international criminal tribunals have,

generally, allowed cumulative charging and plurality of offences in indictments in

so far as the charges laid against the accused are only conrmed at the end of the

proceedings, if appropriate.17 However, the ICC, like some national jurisdictions, has

dismissed, under some circumstances, such charging, in that it can be detrimental to

the rights of the accused18 and lead to lengthy and weighty proceedings.19 Additionally,according to the ICC, the responsibility for legally dening the allegations made

against the accused falls to the judges.20

25. In the light of the responses provided to these questions, it would be appropriate

to determine whether – and under what conditions – the Prosecutor may dene one

and the same act in several different ways, namely, for example, at the same time

as terrorist conspiracy, terrorist acts and intentional homicide with premeditation or

attempted intentional homicide with premeditation. If this is indeed possible, may

17 ICTY, Case No. IT-95-16-A, The Prosecutor v. Kupreškić, Appeal Judgement of 23 October 2001, para. 385recalling Case No. IT-96-21-A, The Prosecutor v. Delalić et al. [Čelebiči], Appeal Judgement of 20 February2001, para. 400.

18 ICC, Case No. ICC-01/05-01/08-14 ENG, The Prosecutor v. Jean-Pierre Bemba Gombo, “Decision on theProsecutor’s Application for a Warrant of Arrest Against Jean‑Pierre Bemba Gombo” of 8 June 2008, para. 25.

19 Ibid .

20 Ibid .

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he use these classications cumulatively or as alternatives? Where applicable, under

what conditions?

FOR THESE REASONS,

PURSUANT TO Rule 68, paragraph (G) of the Rules,

THE PRE-TRIAL JUDGE has the honour to respectfully submit to the Appeals

Chamber the following preliminary questions:

With regard to the notion of terrorist acts:

i) Taking into account the fact that Article 2 of the Statute refers exclusivelyto the relevant provisions of the Lebanese Criminal Code in order to dene

the notion of terrorist acts, should the Tribunal also take into account the

relevant applicable international law?

ii) Should the question raised in paragraph i) receive a positive response, how,

and according to which principles, may the denition of the notion of terrorist

acts set out in Article 2 of the Statute be reconciled with international law?

In this case, what are the constituent elements, intentional and material, ofthis offence?

iii) Should the question raised in paragraph i) receive a negative response,

what are the constituent elements, material and intentional, of the terrorist

acts that must be taken into consideration by the Tribunal, in the light of

Lebanese law and case law pertaining thereto?

iv) If the perpetrator of terrorist acts aimed at creating a state of terror 21

bythe use of explosives intended to commit those acts to kill a particular

person, how is his criminal responsibility to be dened in the event of

death of or injury caused to persons who may be considered not to have

been personally or directly targeted by such acts?

21 Cf. note 2.

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With regard to the notion of conspiracy:

v) In order to interpret the constituent elements of the notion of conspiracy,

should the Tribunal take into account, not only Lebanese law, but also

conventional or customary international law?

vi) Should the question raised in paragraph v) receive a positive response, is

there any conict between the denition of the notion of conspiracy as

recognised by Lebanese law and that arising out of international law and,

if so, how should it be resolved?

vii) Should the question raised in paragraph v) receive a negative response,what are the constituent elements of the conspiracy that must be taken into

consideration by the Tribunal, from the point of view of Lebanese law and

case law pertaining thereto?

viii) As the notions of conspiracy and joint criminal enterprise might, at rst

sight, share some common elements, what are their respective distinguishing

features?

With regard to intentional homicide with premeditation and attempted

intentional homicide with premeditation:

ix) In order to interpret the constituent elements of the notions of intentional

homicide with premeditation and attempted intentional homicide with

premeditation, should the Tribunal take into account not only Lebanese

law, but also conventional or customary international law?

x) Should the question raised in paragraph ix) receive a positive response,is there any conict between the denitions of the notions of intentional

homicide with premeditation and attempted intentional homicide with

premeditation as recognised by Lebanese law and those arising out of

international law and, if so, how should it be resolved?

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xi) Should the question raised in paragraph ix) receive a negative response,

what are the constituent elements of these notions in Lebanese law in the

light of case law pertaining thereto?

xii) Can an individual be prosecuted before the Tribunal for intentional homicide

with premeditation for an act which he is alleged to have perpetrated

against victims who might be considered not to have been personally or

directly targeted by the alleged criminal act?

With regard to modes of responsibility:

xiii) In order to apply modes of criminal responsibility before the Tribunal,should reference be made to Lebanese law, to international law or to both

Lebanese and international law? In this last case, how, and on the basis of

which principles, should any conict between these laws be resolved, with

specic reference to commission and co‑perpetration?

With regard to cumulative charging and plurality of offences:

xiv) Should cumulative charging and plurality of offences applicable before theTribunal be regulated by Lebanese criminal law, by international law or by

both Lebanese criminal law and international law? In this last case, how,

and on the basis of which principles, are these two laws to be reconciled in

the event of conict between them?

xv) Can one and the same act be dened in several different ways, namely,

for example, at the same time as terrorist conspiracy, terrorist acts and

intentional homicide with premeditation or attempted intentional homicidewith premeditation. If so, can these classications be used cumulatively or

as alternatives? Under what conditions?

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Done in English, Arabic and French, the French version being authoritative.

Leidschendam, 21 January 2011.

Daniel FransenPre-Trial Judge

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Case name: The Prosecutor v. Ayyash et al.

Before: Appeals Chamber

Title: Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration,

Cumulative Charging

Short title “Applicable Law”

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BEFORE THE APPEALS CHAMBER

Case No.: STL-11-01/I

Before: Judge Antonio Cassese, Presiding,

and Judge Rapporteur

Judge Ralph Riachy

Judge Sir David Baragwanath

Judge Af Chamsedinne

Judge Kjell Erik Björnberg

Registrar: Mr Herman von Hebel

Date: 16 February 2011

Original language: English

Type of document: Public

[Case Name: The Prosecutor v. Ayyash et al.]

INTERLOCUTORY DECISION ON THE APPLICABLE LAW:

TERRORISM, CONSPIRACY, HOMICIDE, PERPETRATION,

CUMULATIVE CHARGING

Counsel:Ofce of the Prosecutor: Mr Daniel A. Bellemare, MSM, QCMr Daryl A. MundisMr Iain Morley, QCMr Ekkehard Withopf Mr Kwai Hong IpMr Jean-Philippe DuchesneauMs Marie-Sophie Poulin

Defence Ofce: Mr François RouxMs Alia Aoun

For the Defence Ofce: Mr Raymond ChedidMr Guenael Mettraux

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HEADNOTE1

I. The Questions of Law Submitted by the Pre-Trial Judge

Pursuant to Rule 68(G) of the Special Tribunal for Lebanon’s Rules of Evidence and Procedure, the Pre-Trial Judge has submitted to the Appeals Chamber 15 questionsof law that require resolution before the Pre-Trial Judge can determine whether toconrm the indictment currently before him. Those questions can be grouped into

ve categories:

1. Whether the Tribunal should apply international law in dening the crime ofterrorism; if so, how the international law of terrorism should be reconciledwith any differences in the Lebanese domestic crime of terrorism; and in eithercase, what are the objective and subjective elements of the crime of terrorismto be applied by the Tribunal.

2. Whether the Tribunal should interpret the elements of the crimes ofintentional homicide and attempted homicide under both Lebanese domesticand international law; if so, whether there are any differences between theinternational and Lebanese denitions of intentional homicide and attempted

homicide and how those differences should be reconciled; and what are theelements of intentional homicide and attempted homicide to be applied by theTribunal.

3. Whether the Tribunal should interpret the elements of conspiracy (complot) under both Lebanese domestic and international law; if so, whether thereare any differences between the international and Lebanese denitions ofconspiracy and how those differences should be reconciled; what are theelements of the crime of conspiracy to be applied by the Tribunal; and tothe extent that the notion of conspiracy overlaps with that of joint criminal

enterprise (a mode of liability), how to distinguish between them.4. Regarding modes of liability for crimes prosecuted before the Tribunal (in

particular perpetration and co-perpetration), whether the Tribunal shouldapply Lebanese domestic or international law or both; how and on what basisto resolve any contradictions between Lebanese and international legal notionsof such modes of liability; and whether accused before the Tribunal can be

1 This Headnote does not constitute part of the decision of the Appeals Chamber. It has been prepared for theconvenience of the reader, who may nd it useful to have an overview of the decision. Only the text of the

decision itself is authoritative.

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convicted on the basis of advertent recklessness or constructive intent (doluseventualis) for terrorism (which requires a special intent (dolus specialis) to

spread terror among the population) or for intentional homicide (when theaccused did not intend particular victims as the result of an act of terrorism).5. Whether the Tribunal should apply Lebanese or international law to the

regulation of cumulative charging and plurality of offences; how anydifferences between Lebanese and international law on this point shouldbe reconciled and on what basis; and whether different criminal offencesregarding the same conduct should be charged cumulatively or alternativelyand under what conditions.

II. The Decision of the Appeals Chamber

A. Interpretation of the STL Statute

In interpreting the Statute, the task of the Tribunal is to establish the proper meaningof the text so as to give effect to the intent of its drafters as fully and fairly as

possible; in particular the Tribunal must give consistency to seemingly inconsistentlegal provisions. This task shall be discharged based on the general principle ofconstruction enshrined in Article 31(1) of the 1969 Vienna Convention on the Law

of Treaties (and the corresponding customary rule of international law) whereby atreaty must be construed “in good faith in accordance with the ordinary meaning tobe given to the terms of the treaty in their context in light of its object and purpose.”With specic regard to the Tribunal’s Statute, this principle requires an interpretationthat better enables the Tribunal to achieve its goal to administer justice in a fairand efcient manner. If however this yardstick does not prove helpful, one shouldchoose that interpretation which is more favourable to the rights of the suspect orthe accused, utilising the general principle of criminal law of favor rei (in favour ofthe accused) as a standard of construction.

Unlike other international criminal tribunals, which apply international law (or, in some limited instances, both international law and national law) to the crimes withintheir jurisdiction, under the Tribunal’s Statute the Judges are called upon primarilyto apply Lebanese law to the facts coming within the purview of the Tribunal’s

jurisdiction. Thus, the Tribunal is mandated to apply domestic law in the exerciseof its primary jurisdiction, and not, as is common for most international tribunals,only when exercising its incidental jurisdiction. In consonance with internationalcase law, generally speaking, the Tribunal will apply Lebanese law as interpreted

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and applied by Lebanese courts, unless such interpretation or application appears tobe unreasonable, might result in manifest injustice, or appears not to be consonant

with international principles and rules binding upon Lebanon. Also, when Lebanesecourts take different or conicting views of the relevant legislation, the Tribunal may place on that legislation the interpretation which it deems to be more appropriateand attuned to international legal standards.

B. The Notion of Terrorism To Be Applied by the Tribunal

The Tribunal shall apply the Lebanese domestic crime of terrorism, interpreted inconsonance with international conventional and customary law that is binding on

Lebanon.

Under Lebanese law the objective elements of terrorism are as follows: (i) an actwhether constituting an offence under other provisions of the Criminal Code or not;and (ii) the use of a means “liable to create a public danger”. These means areindicated in an illustrative enumeration: explosive devices, inammable materials,

poisonous or incendiary products, or infectious or microbial agents. According to Lebanese case law, these means do not include such non-enumerated implements asa gun, a machine-gun, a revolver, a letter bomb or a knife. The subjective element ofterrorism is the special intent to cause a state of terror.

Although Article 2 of the Statute enjoins the Tribunal to apply Lebanese law, theTribunal may nevertheless take into account international law for the purpose ofinterpreting Lebanese law. In this respect, two sets of rules may be taken into account:the Arab Convention against Terrorism, which has been ratied by Lebanon, andcustomary international law on terrorism in time of peace.

The Arab Convention enjoins the States Parties to cooperate in the prevention and suppression of terrorism and denes terrorism for that purpose, while leaving each

contracting party freedom to simultaneously pursue the suppression of terrorism onthe basis of its own national legislation.

A comparison between Lebanese law and the Convention shows that the two notionsof terrorism have in common two elements: (i) they both embrace acts; and (ii) theyrequire the intent of spreading terror or fear. However, the Convention’s denitionis broader than that of Lebanese law in that it does not require the underlying actto be carried out by specic means, instrumentalities or devices. In other respectsthe Arab Convention’s notion of terrorism is narrower: it requires the underlying

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act to be violent, and it excludes acts performed in the course of a war of nationalliberation (as long as such war is not conducted against an Arab country).

On the basis of treaties, UN resolutions and the legislative and judicial practiceof States, there is convincing evidence that a customary rule of international lawhas evolved on terrorism in time of peace , requiring the following elements: (i) theintent (dolus) of the underlying crime and (ii) the special intent (dolus specialis) to

spread fear or coerce authority; (iii) the commission of a criminal act, and (iv) thatthe terrorist act be transnational. The very few States still insisting on an exceptionto the denition of terrorism can, at most, be considered persistent objectors. Acomparison between the crime of terrorism as dened under the Lebanese Criminal

Code and that envisaged in customary international law shows that the latter notionis broader with regard to the means of carrying out the terrorist act, which are notlimited under international law, and narrower in that (i) it only deals with terroristacts in time of peace, (ii) it requires both an underlying criminal act and an intent tocommit that act and (iii) it involves a transnational element.

While fully respecting the Lebanese jurisprudence relating to cases of terrorismbrought before Lebanese courts, the Tribunal cannot but take into account theunique gravity and transnational dimension of the crimes at issue and the Security

Council’s consideration of them as particularly grave international acts of terrorism justifying the establishment of an international court. As a result, for the purpose ofadjudicating these facts, the Tribunal is justied in applying, at least in one respect, aconstruction of the Lebanese Criminal Code’s denition of terrorism more extensivethat than suggested by Lebanese case law. While Lebanese courts have held thata terrorist attack must be carried out through one of the means enumerated in theCriminal Code, the Code itself suggests that its list of implements is illustrative,not exhaustive, and might therefore include also such implements as handguns,machine-guns and so on, depending on the circumstances of each case. The only

rm requirement is that the means used to carry out the terrorist attack also be liableto create a common danger, either by exposing bystanders or onlookers to harm orby instigating further violence in the form of retaliation or political instability. Thisinterpretation of Lebanese law better addresses contemporary forms of terrorismand also aligns Lebanese law more closely with the relevant international law thatis binding on Lebanon.

This interpretation does not run counter to the principle of legality (nullum crimensine lege) because (i) this interpretation is consistent with the offence as explicitly

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dened under Lebanese law; (ii) it was accessible to the accused, especially giventhe publication of the Arab Convention and other international treaties ratied by

Lebanon in the Ofcial Gazette (none of which limits the means or implements bywhich terrorist acts may be performed); (iii) hence, it was reasonably foreseeableby the accused.

In sum, and in light of the principles enunciated above, the notion of terrorismto be applied by the Tribunal consists of the following elements: (i) the volitionalcommission of an act; (ii) through means that are liable to create a public danger;and (iii) the intent of the perpetrator to cause a state of terror. Considering that theelements of the notion of terrorism do not require an underlying crime, the perpetrator

of an act of terrorism that results in deaths would be liable for terrorism, with thedeaths being an aggravating circumstance; additionally, the perpetrator may also,and independently , be liable for the underlying crime if he had the requisite criminalintent for that crime.

C. Other Crimes Falling under the Jurisdiction of the STL

The Tribunal shall apply the Lebanese law on intentional homicide, attemptedhomicide and conspiracy. As these are primarily domestic crimes without equivalentsunder international criminal law (conspiracy in international law being only a modeof liability in the case of genocide), the Appeals Chamber does not evaluate thesecrimes in light of international criminal law.

Under Lebanese law the elements of intentional homicide are as follows: (i) an act, orculpable omission, aimed at impairing the life of a person; (ii) resulting in the deathof a person; (iii) a casual connection between the act and the result of death; (iv)knowledge (including that the act is aimed at a living person and conducted throughmeans that may cause death); and (v) intent, whether direct or dolus eventualis.

Premeditation is an aggravating circumstance, not an element of the crime, and canapply to an intentional homicide committed with dolus eventualis.

Under Lebanese law the elements of attempted homicide are as follows: (i) preliminary action aimed at committing the crime (beginning the execution of thecrime); (ii) the subjective intent required to commit the crime; and (iii) absence of avoluntary abandonment of the offence before it is committed.

Under Lebanese law the elements of conspiracy are as follows: (i) two or moreindividuals; (ii) who conclude or join an agreement; (iii) aimed at committing crimes

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against State security (for the purposes of this Tribunal, the aim of the conspiracymust be a terrorist act); (iv) with an agreement on the means to be used to commit the

crime (which for conspiracy to commit terrorism must satisfy the “means” elementof Article 314); and (v) the existence of criminal intent.

D. Modes of Criminal Responsibility

Article 2 of the Statute requires the Tribunal to apply Lebanese law regarding“criminal participation” (as a mode of responsibility) and “conspiracy”, “illicitassociation” and “failure to report crimes and offences” (as crimes per se ). Article3 species various modes of criminal liability utilised in international criminallaw: commission, complicity, organising or directing others to commit a crime,contribution to crimes by a multitude of persons or an organized group, superiorresponsibility, and criminal liability for the execution of superior orders.

Either Lebanese or international criminal law (as contained in Article 3 of the Statute)could apply to modes of liability. The Pre-Trial Judge and the Trial Chamber must(i) evaluate on a case-by-case basis whether there is any actual conict between theapplication of Lebanese law and that of international criminal law; (ii) if there isno conict, then Lebanese law should apply; and (iii) if there is a conict, then thebody of law that would lead to a result more favourable to the accused should apply.

1. Perpetration and Co-Perpetration

Under both international criminal law and Lebanese law, the perpetrator physicallycarries out the prohibited conduct, with the requisite mental element. When a crimeis committed by a plurality of persons, all persons performing the same act and

sharing the same mens rea are termed co-perpetrators. To the extent that Lebaneselaw recognises a broader denition of co-perpetration, that concept is treated hereas “participation in a group with common purpose.”

2. Complicity (Aiding and Abetting)

To a large extent the Lebanese notion of complicity and the international notion ofaiding and abetting overlap, with two important exceptions. First, Lebanese lawexplicitly lists the objective means by which an accomplice can provide support, whileinternational law only requires “substantial assistance” without any restriction onwhat form that assistance can take. Second, under Lebanese law accomplice liabilityrequires the accused know of the crime to be committed, join with the perpetrator

in an agreement to commit the crime and share the intent to further that particular

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crime; instead, international law only requires the intent to further the generalillegality of the principal’s conduct. Generally speaking, the Lebanese concept of

complicity should be applied as it is more protective of the rights of the accused,including the principle of legality (nullum crimen sine lege).

3. Participation in a Group with Common Purpose

The main question that arises here is whether and to what extent the variousmodes of responsibility contemplated in Lebanese law (co-perpetration, complicity,instigation) overlap or can be harmonised with the notion of joint criminal enterprise(JCE) provided for in customary international law (reference should be made to JCE

I and III, namely the “basic” and the “extended” notion of such enterprise).

The two bodies of law coincide in requiring a subjective element: both rely on intentor advertent recklessness (dolus eventualis). Thus, Lebanese law and internationalcriminal law overlap in punishing the execution of a criminal agreement, where allthe participants share the same criminal intent although each of them may play adifferent role in the execution of the crime.

The two bodies of law also overlap in punishing those participants in a criminalenterprise who, although they had not agreed upon the perpetration of an “extra”

crime, could be expected to know and did know of the reasonable possibility that such crime may be committed and willingly took the risk of its occurrence (so-called JCE III). However, under international criminal law, this notion cannot apply to“extra” crimes requiring special intent (as is the case with terrorism).

The Pre-Trial Judge and the Trial Chamber will have to evaluate on a case-by-case basis whether there is any actual conict between the application of Lebaneseand that of international criminal notions of joint criminality. If there is no conict,then Lebanese law should apply. Where there is a conict, the body of law that

would lead to a result more favourable to the accused should apply. In particular, as Lebanese law would allow conviction of an individual for a terrorist act effectuatedby another person, even if the individual only had dolus eventualis as to that terroristact, the international criminal concept of JCE should be applied to this particular

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circumstance because it would not allow the conviction of an individual under JCE III for terrorist acts.

E. Multiple Offences and Multiple Charging

These matters are largely regulated along the same lines by Lebanese law andinternational criminal law. Both provide for multiple offences and also allowmultiple charging and thus there is no cause—at least as can be foreseen before the

presentation of any particular facts—to envisage, let alone reconcile any conictbetween the two bodies of law.

There is no clear general rule under either Lebanese or international criminal law as

to whether cumulative or alternative charging are to be preferred. Notwithstanding,the Pre-Trial Judge, in conrming the indictment, should be particularly carefulto allow cumulative charging only when separate elements of the charged offencesmake these offences truly distinct. In particular, when one offence encompassesanother, the Judge should always choose the former and reject pleading of the latter.

Likewise, if the offences are provided for under a general provision and a special provision, the Judge should always favour the special provision. Additionally, modesof liability for the same offence should always be charged in the alternative.

The Pre-Trial Judge should also be guided by the goal of providing the greatest clarity possible to the defence. Thus, additional charges should be discouraged unless theoffences are aimed at protecting substantially different values. This general approach

should enable more efcient proceedings while avoiding unnecessary burdens on thedefence, thus furthering the overall purpose of the Tribunal to achieve justice in a

fair and efcient manner.

With regards to the hypothetical posed by the Pre-Trial Judge, we make the followingobservations: under Lebanese law, the crimes of terrorist conspiracy, terrorism

and intentional homicide can be charged cumulatively even if based on the sameunderlying conduct because they do not entail incompatible legal characterisations,and because the purpose behind criminalising such conducts is the protection of

substantially different values. Therefore, it would in most circumstances be moreappropriate to charge those crimes cumulatively rather than alternatively.

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

I. The Provenance and Purpose of the Rule 68(G) Power and Its Exercise in

This Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

II. The Jurisdiction Conferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

III. General Principles on the Interpretation of the Lebanese Criminal Law and

the STL Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

A. Principles on the Interpretation of the Provisions of the Statute . . . . . . . . . . 49

B. Principles on the Interpretation of Lebanese Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

SECTION I:

CRIMES FALLING UNDER THE TRIBUNAL’S JURISDICTION . . . . . . . . . . . . . . . . 64

I. Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

A. The Notion of Terrorism under the Lebanese Criminal Code . . . . . . . . . . . . . 67

B. The Notion of Terrorism in International Rules Binding Upon Lebanon 73

1. Treaty Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74

a) The Arab Convention for the Suppression of Terrorism . . . . . . . . . . . . 74

b) Implementation of Treaties under Lebanese Law . . . . . . . . . . . . . . . . . . . . 78

2. Customary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

a) Customary International Law on Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . 87

b) Applicability of Customary International Law in the LebaneseLegal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

3. Reliance on International Law for the Interpretation of

Lebanese law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

a) The Question of the Means or Instrumentalities Used for

Carrying out a Terrorist Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

b) Nullum Crimen Sine Lege and Non-Retroactivity . . . . . . . . . . . . . . . . 123

C. The Notion of Terrorism Applicable before the Tribunal. . . . . . . . . . . . . . . . . 131

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II. Crimes and Offences Against Life and Personal Integrity . . . . . . . . . . . . . . . . . . . 132

A. Intentional Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

1. Actus reus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

a) Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

b) Result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

c) Nexus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

2. Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

3. Premeditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

B. Attempted Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144C. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

III. Conspiracy (Complot ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

SECTION II: MODES OF RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

I. Harmonising Articles 2 and 3 of the Tribunal’s Statute . . . . . . . . . . . . . . . . . . . . . . 156

II. Modes of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

A. Perpetration and Co-Perpetration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

1. Lebanese Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

2. International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

3. Comparison between Lebanese and International Criminal Law . . . 162

B. Complicity (Aiding and Abetting) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

1. Lebanese Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162



C. Other Modes of Participation in Criminal Conduct . . . . . . . . . . . . . . . . . . . . . . . 168

1. Lebanese Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168


a) Joint Criminal Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

b) Article 3(1)(b) of the STL Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

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c) Perpetration by Means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179


III. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

SECTION III: MULTIPLE OFFENCES AND MULTIPLE CHARGING . . . . . . . . 184

I. Lebanese Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

A. Multiple Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

B. Multiple Charging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

II. International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191A. Multiple Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

B. Multiple Charging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

III. Comparison between Lebanese and International Criminal Law . . . . . . . . . . . 197

DISPOSITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

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INTRODUCTION

1. The Pre-Trial Judge of the Special Tribunal for Lebanon (“Tribunal”) iscurrently seized with an indictment led by the Tribunal’s Prosecutor on 17 January

2011. On 21 January 2011, the Pre-Trial Judge submitted to the Appeals Chamber

15 questions of law raised by this indictment, pursuant to Article 68(G) of the

Tribunal’s Rules of Procedure and Evidence (“Rules”).2 The Pre-Trial Judge has

asked the Appeals Chamber to resolve these questions ab initio (from the outset) to

ensure that this and any future indictments are conrmed—if they are conrmed—

on sound and well-founded grounds.3 On the basis of the President’s Scheduling

Order of the same day,4 the Ofce of the Prosecutor (“Prosecution”) and the Head of

the Defence Ofce (“Defence Ofce”) led written submissions on these questions

on 31 January 20115 and 4 February 20116 and presented oral arguments at a public

hearing on 7 February 2011.

2. On 7 February 2011, the Appeals Chamber further announced its intention

to allow intergovernmental organisations, national governments, non-governmental

organisations and academic institutions to le amici curiae briefs by 11 Februaryon specic issues related to the 15 questions.7 The parties did not object to this in

principle, simply announcing that they might wish to respond to such briefs, should

2 Order on Preliminary Questions Addressed to the Judges of the Appeals Chamber pursuant to Rule 68, paragraph(G), of the Rules of Procedure and Evidence, STL-11-01/I, 21 January 2011 (“Pre-Trial Order pursuant to Rule68(G )”). Rule 68(G) provides: “The Pre-Trial Judge may submit to the Appeals Chamber any preliminaryquestion, on the interpretation of the Agreement, Statute and Rules regarding the applicable law that he deemsnecessary in order to examine and rule on the indictment.”

3 Pre-Trial Order pursuant to Rule 68(G), para. 2.

4 “Scheduling Order”, STL-11-01/I, 21 January 2011.

5 “Prosecutor’s Brief Filed Pursuant to the President’s Order of 21 January 2011 Responding to the QuestionsSubmitted by the Pre-Trial Judge (Rule 176bis)”, STL‑11‑01/I, 31 January 2011 (“Prosecution Submission”);“Defence Ofce’s Submissions Pursuant to Rule 176bis(B)”, STL‑11‑01/I, 31 January 2011 (“Defence OfceSubmission”).

6 “Prosecutor’s Skeleton Brief in Response to ‘Defence Ofce Submissions Pursuant to Rule 176bis(B)’ andCorrigendum to Prosecutor’s Brief STL-11-01/I/AC-R176bis of 21 [ sic] January 2011”, STL-11-01/I, 4February 2011; « Résumé des arguments du bureau de la defense », STL‑11‑01/I, 4 February 2011.

7 Hearing of 7 February 2011, T. 6. All references to a transcript page in this decision are to the unrevised English

version.

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they be presented.8 On 11 February, the War Crimes Research Ofce at American

University Washington College of Law (USA) led a brief on “The Practice of

Cumulative Charging before International Criminal Bodies” (“War Crimes ResearchOfce Brief”). On the same day, the Institute for Criminal Law and Justice of Georg‑

August Göttingen University (Germany) led an “Amicus Curiae brief on the

question of the applicable terrorism offence in the proceedings before the Special

Tribunal for Lebanon, with a particular focus on a “special” special intent and/or a

special motive as additional subjective requirements” (“Institute for Criminal Law

and Justice Brief”). On 14 February 2011, the Registry received another amicus

curiae brief on “The Notion of Terrorist Acts”, submitted by Professor Ben Saul

of the Sydney Centre of International Law at the University of Sydney. Since this

amicus brief was submitted outside time, the Appeals Chamber was unable to take

it into account.

3. There is a threshold question whether the Appeals Chamber should exercise

jurisdiction to answer the questions posed. Although the course proposed is supported

by both the Ofce of the Prosecutor and counsel for the Defence Ofce, the potential

accused (if the indictment which we have not seen is conrmed) have not been heard.

4. For reasons that follow, the Appeals Chamber has decided to answer these 15

questions of law and does so in this decision.

5. These questions can be grouped into three general categories: the

substantive criminal law of terrorism, homicide, and conspiracy; modes of criminal

responsibility; and the concurrence of offences. In Section I of this opinion, we will

address questions 1-12, regarding the elements of the crimes of terrorism, intentional

homicide, attempted homicide, and conspiracy to be applied by the Tribunal. InSection II, we will address question 13, regarding the modes of responsibility to

be applied by the Tribunal, in particular perpetration, co-perpetration, complicity

(aiding and abetting), joint criminal enterprise, and liability based on dolus eventualis

(a notion roughly equivalent to constructive intent, also at times dened as advertent

recklessness). Finally, in Section III, we will address questions 14-15, regarding how

the Tribunal should handle conduct that may be categorised under multiple criminal

8 Hearing of 7 February 2011, T. 159.

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headings, including whether such multiple offences should be charged cumulatively

or alternatively.

6. First, however, we pause to consider three overarching matters that will inform

the remainder of this opinion: (i) the provenance and purpose of the Rule 68(G)

power and its exercise in this case; (ii) the scope of the Tribunal’s jurisdiction and its

exercise in this case; and (iii) the general principles of interpretation that the Appeals

Chamber will apply in addressing the questions of the Pre-Trial Judge.

I. The Provenance and Purpose of the Rule 68(G) Power and Its Exercise in

This Case

7. The Tribunal’s Judges adopted Rules 68(G) and 176bis(A)9 to enable the

Appeals Chamber to clarify in advance the law to be applied by the Pre-Trial Judge

and the Trial Chamber, thereby expediting the justice process in a manner supported

by both the Prosecutor and the Head of the Defence Ofce. In establishing these

Rules, the Judges were guided by Articles 21 and 28 of the Tribunal’s Statute, which

require the Tribunal to avoid unreasonable delay in its proceedings and to adopt rules

of procedure and evidence “with a view to ensuring a fair and expeditious trial.”10

8. Thus the present function of the Appeals Chamber is not to apply the law to

some specic set of facts. Rather, it is requested only to set out the law applicable

to any future case on the specic issues raised, without encroaching on the right of

future defendants to seek reconsideration of these matters in light of the particular

9 “The Appeals Chamber shall issue an interlocutory decision on any question raised by the Pre-Trial Judge underRule 68(G), without prejudging the rights of any accused.”

10 Article 21 (“Powers of the Chambers”) provides in part: “The Special Tribunal shall conne the trial, appellateand review proceedings strictly to an expeditious hearing of the issues raised by the charges, or the grounds forappeal or review, respectively. It shall take strict measures to prevent any action that may cause unreasonabledelay.[…]”Article 28 (“Rules of Procedure and Evidence”) further states:

1. The judges of the Special Tribunal shall […] adopt Rules of Procedure and Evidence for theconduct of the pre-trial, trial and appellate proceedings, the admission of evidence, the participation ofvictims, the protection of victims and witnesses and other appropriate matters and may amend them,as appropriate.2. In so doing, the judges shall be guided, as appropriate, by the Lebanese Code of Criminal Procedure,as well as by other reference materials reecting the highest standards of international criminal

procedure, with a view to ensuring a fair and expeditious trial .

(Emphasis added.)

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facts of a case. It is important to emphasise that neither the Appeals Chamber nor

the Defence Ofce has seen the indictment (which is currently under seal), much

less the evidence submitted by the Prosecutor to the Pre-Trial Judge to support theindictment’s conrmation. In other words, the Appeals Chamber is invited to make

legal ndings in abstracto (in the abstract), without any reference to facts. This

procedure, sometimes encountered in civil proceedings of some countries, is less

common in the context of criminal proceedings.

9. There are signicant reasons for the normal practice of refraining from giving

judgment, even on interpretation of a statute, in the absence of a specic factual

context. The experience of the law is that general observations frequently requiremodication in the light of particular facts, which can provide a sharper focus and

trigger a more nuanced response. But the decision whether to adopt Rule 176bis(C)

required election between two alternatives: (i) to accept the risk that the Pre-Trial

Judge or the Trial Chamber might adopt an interpretation of the law with which

this Appeals Chamber ultimately disagrees, unnecessarily delaying the resolution of

cases and thereby causing an injustice to the parties and to the people of Lebanon;

or (ii) to authorise the Appeals Chamber to pronounce on the applicable law in the

abstract, with a view to expediting proceedings in the interests both of potential

defendants and the good administration of justice.

10. In this case we are conscious of the advantage we would enjoy as an appellate

court of having as our starting point a reasoned decision of the lower court reached

in the light of arguments based on specic facts, which we do not possess. We are

however satised that that advantage is outweighed by three considerations. We

have mentioned the rst: the need for expedition. The second is that the questions

asked by the Pre-Trial Judge have been the subject of careful written submissions

and oral arguments of counsel at a reasonable level of specicity. The third is that no

prejudice will arise against any future accused. If an accused were to challenge any

of our conclusions, in the light of specic evidence, the fact that he was not heard

at this stage will be a major factor in deciding whether to revisit any of the issues

decided herein, pursuant to Rule 176bis(C).11

11 “The accused has the right to request the reconsideration of the interlocutory decision under paragraph A,

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11. The function of the Appeals Chamber is to decide the issues raised by the

Pre‑Trial Judge in the light of the arguments of counsel. We endorse what a great

international authority, Hersch Lauterpacht, wrote in 1933: “[T]he function of the judge to pronounce in each case quid est juris [what is the law?] is pre-eminently

a practical one. He is neither compelled nor permitted to resign himself to the

ignorabimus [it shall be ignored] which besets the perennial quest of the philosopher

and the investigator in the domain of natural science.”12 It is the responsibility of the

Appeals Chamber to accomplish this task by stating the applicable law in the clearest

and most coherent way possible.

II. The Jurisdiction Conferred

12. The crimes which are the subject of any indictment must, in terms of the

Statute of the Tribunal, be conned to certain particularly serious offences against

the criminal law of Lebanon. One of the purposes of this judgment is to identify with

some precision both what the law of Lebanon requires and to what extent, if at all, its

application is modied by the Statute. Among the questions we must discuss is the

extent to which the relevant criminal law of Lebanon is to be construed in the light

of international developments.

13. It would be wrong to assume that this Tribunal’s jurisdiction is closely

comparable to that of other criminal tribunals with an international composition.

Compared to them, one of the several novelties of the Tribunal relates to the scope

of offences over which it has jurisdiction. The statutes of other international criminal

courts and tribunals do not conne their subject‑matter except by reference to one or

more categories of crimes: it is for the prosecutor of each court or tribunal to select

cases whose facts he regards as falling under one or more of those categories and

to identify the persons suspected of criminal conduct within those categories. In

contrast, this Tribunal’s Statute submits to the Tribunal’s jurisdiction a set of specic

allegations: the killing of the former Prime Minister Hariri and 22 other persons, which

pursuant to Rule 140 without the need for leave from the presiding Judge. The request for reconsideration shall be submitted to the Appeals Chamber no later than thirty days after disclosure by the Prosecutor to the Defenceof all material and statements referred to in Rule 110(A)(i).”

12 H. Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933), at 64.

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occurred in Beirut on 14 February 2005, as well as additional attacks connected with

that killing (if the Tribunal nds that the connection meets the standards enumerated

in Article 113). The Statute then requires the Tribunal to determine whether thoseallegations are made out and can be characterised, under Lebanese law, as (i) “acts

of terrorism”, (ii) “crimes and offences against life and personal integrity”, (iii) the

crime of “illicit association”, (iv) a crime of conspiracy (complot ), or as (v) the crime

of “failure to report crimes and offences.”14 Thus, the Tribunal’s Statute reverses the

approach to jurisdiction taken in other statutes of international criminal