STL MEDIA ADVISORY ON THE APPEALS CHAMBER RULING (16th February 2011)

Introduction:

The Appeals Chamber of the Special Tribunal for Lebanon has issued a 152-page interlocutory decision on the fifteen legal questions submitted by the Pre-Trial Judge. In reaching this decision the Appeals Chamber considered the oral submissions by the Prosecution and the Defence Office at a public hearing on 7^th February, as well as their written briefs and skeleton arguments.  The Appeals Chamber also received and considered amici curiae briefs (legal opinions) from two academics.

The key rulings of the Appeals Chamber:

1.Interpretation of the Statute

The Appeals Chamber notes that the STL, unlike other international courts, can only apply the rules of Lebanese substantive law about the definition of crimes.   However, the Appeals Chamber states that the Tribunal will apply Lebanese law as interpreted and applied by Lebanese courts, "unless such interpretation or application appears to be unreasonable, might result in manifest injustice, or proves not consonant with international principles and rules binding upon Lebanon".

2. The definition of terrorism

The Appeals Chamber confirms that the STL will apply Lebanese law on the crime of terrorism. The elements of which are:

(i)                  an intentional act, whether or not constituting an offence under other provisions of the Criminal Code, aimed at spreading terror;

(ii)                the use of a means "liable to create a public danger", such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.

 

In its detailed examination the Appeals Chamber notes that courts in Lebanon have often taken a narrow approach to part (ii), by only applying the crime of terrorism to the means specifically listed in the code - which excludes for example attacks with guns.  

The Appeals Chamber has concluded that the Code suggests that the list of means of attack is illustrative, not exhaustive, and therefore the definition in the code may be more broadly interpreted by the STL. 

3. Crimes and criminal responsibility

The Appeals Chamber has ruled that in relation to the crimes of homicide and conspiracy, Lebanese law applies.

The STL Statute has two references to the modes of criminal responsibility with Article 2 focusing on the Lebanese Criminal Code and with Article 3 outlining modes of responsibility that are based on international criminal law.

The Appeals Chamber has considered the possibility of conflict between the two legal systems and concludes that Lebanese and international law mostly overlap in this area.

When there is no conflict between Lebanese and international law, the Appeals Chamber states that Lebanese law must be applied. If there is conflict, then the legal system that proves more favourable to the accused must be applied.

4. Multiple offences and cumulative charging

This focuses on whether:

(a)    the same conduct (say, planting a bomb) by an individual may result in different charges (for example, murder and terrorism)?  

 

(b)   a defendant can be charged in a cumulative way (for both murder and terrorism) or should they be charged alternatively (for either murder or terrorism)?

 

The Appeals Chamber notes that Lebanese law allows for multiple charging and so concludes that this should be applied at the STL. The Appeals Chamber also reminds the Prosecutor that care should be taken to provide the utmost clarity to the accused about the charges that they face. Cumulative charging will only be allowed when the offences are truly distinct in nature.

Frequently asked questions

How long will it take for the Pre-Trial Judge to review the indictment?

The initial estimate for the review of the indictment was at leastsix to ten weeks. This timeframe still stands, although given the complexity of the subject and the volume of the supporting materials the process may well take more than ten weeks.

When will the contents of the indictment be made public?

During the review process the indictment remains confidential in part to protect the individual(s) named. There is an expectation that if the indictment is confirmed its contents will be made public. However in exceptional circumstances, both the Prosecution and the head of the Defence Office may request that in the 'interest of justice' a confirmed indictment remain confidential ('under seal'). The Pre-Trial Judge would rule on any such request.