The concept of terrorism is controversial at an international level because there is no unique definition of this crime under customary international law. Thus, many consider that terrorism is better investigated and prosecuted at the national level. The criminalisation of terrorism began at the domestic level where many countries legislated against terrorist acts and tried those responsible for such acts before their courts. There was also a will in the 1930s to define the crime of terrorism at an international level, especially after the adoption of the Convention for the Prevention and Punishment of Terrorism and the Convention for the Creation of an International Criminal Court. The Terrorism Convention contemplated the criminalisation of terrorist acts under the national laws of the contracting parties. The Court Convention contemplated trial by a permanent international tribunal of persons accused of any offence under the Terrorism Convention.
The Special Tribunal for Lebanon (STL) was created in 2007 to prosecute those responsible for the attack that occurred on February 14 2005, killing the former Lebanese prime minister Rafic Hariri as well as 21 others and injuring more than 220 other people. After the attack, the Security Council established the UN International Independent Investigation Commission to assist the Lebanese authorities with their investigation, and on the initiative of the Lebanese authorities the UN entered into an agreement with Lebanon to create the Special Tribunal for Lebanon. The STL is not a UN subsidiary organ and it is also not a part of the Lebanese court system. According to article 4 (1) it has primacy over trials at the national level. It is a mixed court and according to article 1 of its statute it has jurisdiction over the ‘attack on Hariri and other related crimes of a similar nature and gravity committed within a limited time period’. In addition, the STL is the first international criminal tribunal since Nuremberg to hold a trial in absentia. Moreover, it is the first international tribunal charged not to apply international law but Lebanon’s criminal code and laws relating to terrorism. Accordingly, Antonio Cassese mentioned that ‘even in the only Statute of international tribunal envisaging such crime (that of the STL) no international definition of the offence is laid down, and instead a reference to Lebanese law is made.’ Therefore, it is the first international tribunal whose task was to try terrorism as a substantive crime.
What role did the international criminal tribunals play in the definition of terrorism and in the establishment of terrorism as an international crime ?
In order to define terrorism as an international crime, many conventions, resolutions of the Security Council as well as articles in domestic law, have played a crucial role in establishing the essential elements of this prohibited conduct.
First, article 314 of the Lebanese criminal code defines terrorist acts as ‘all acts intended to foment terror which are committed by means such as explosive devices, inflammable materials toxic or corrosive products and infectious or microbial agents that are liable to create a public emergency’.
Second, Security Council Resolution 1566 (2004) relating particularly to the establishment of the Counter-Terrorism Committee Executive Directorate (CTED) defined terrorism as ‘criminal acts, including against citizens , 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 [..] intimidate a population or compel a government or an international organization to do or abstain from doing any act which constitute offences […] are under no circumstances justifiable by considerations of a political, philosophical, ideological , racial, ethnic, religious or other similar nature’.
Third, Resolution 2199 refers to ‘threats to international peace and security caused by terrorist acts’.
These aforementioned elements provide a fair expression of international public policy as to what courts may fairly construe as ‘terrorism’. As a consequence, the Special Tribunal for Lebanon Appeal Chamber decision in 2011 confirmed that ‘a customary rule of international law regarding the international crime of terrorism at least in time of peace has indeed emerged’. It observed 3 key elements : first, the perpetration of a criminal act or threatening such an act; second, the intent to spread fear among the population which would generally entail the creation of public danger, or directly or indirectly coerce a national or international authority to take some action or to refrain from taking it; and third, when the act involves a transnational crime.
On the other hand, terrorism can also occur in armed conflict as a war crime. Article 33 (1) of the Fourth Geneva Convention stresses that terrorist acts are prohibited: ‘No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.’ Moreover, the two Additional Protocols of 1977, the first in its article 51(2) prohibits acts that spread terror among the civilian population, and the second one in its article 4 (2)(d) prohibits acts of terrorism as well. As for the elements that terrorism should consist of to be considered as a war crime, the first is a violent action or threat of such action against civilians or other persons who are not taking part in armed fighting; and second is in the purpose of this act, that of terrorising the population.
Furthermore, terrorism can also be considered as a crime against humanity under certain conditions, no matter if it is perpetrated in times of war or peace. The first element to consider here is the conduct that causes the terrorist act: murder, torture, rape, great suffering, serious injury to body or mental or physical health, or enforced disappearance of persons. The second element related to this criminal action is the support or tolerance by a state or by a non-state entity, of this criminal conduct. The third element concerns the victims, who are in this case both civilians and state officials. The fourth and most important element is the mental element which consists of the knowledge by the perpetrator that his action is part of a widespread attack. However, many consider that a widespread attack can only be considered a crime against humanity if it targets a civilian population.
Nevertheless, it is important to note that in the domestic context, criminal law is considered a significant element in securing values of peace and security. There is an understandable reluctance by some judges and jurists to allow external considerations, such as foreign jurisprudence, to play any part in domestic adjudication. However, successive Security Council resolutions demonstrate an ever-increasing global concern in relation to terrorism , as constituting a threat to international peace and security and thereby engaging its exceptional jurisdiction under Chapter VII of the Charter of the United Nations. Therefore, if terrorism is to be employed as a legal concept, it must be trimmed down in order to provide specificity. Hence, how terrorism as a legal concept should be described depends on the context in which it is employed. While ‘terrorism’ can be used in quite different senses in different contexts, in international law the need for a common legal usage is overwhelming. Nonetheless, we can always say that the law will always prevail and prohibit such criminal conduct to assure the protection of societies as well as the whole of humanity.