Hello, good to see you again. We have now discussed multiple times the idea that the ICC should address the most serious crimes that are of concern to the international community as a whole. With this idea in mind, I would like to ask you what about terrorism? Is this not one of the most serious threats to contemporary international society? Today we will speak about terrorism and more specifically we will broach the question whether we are in need of a dedicated international terrorism tribunal. To this end we will inquire how the ad hoc tribunals and the ICC have dealt with terrorism if at all and we'll explore the Special Tribunal for Lebanon. So, first a few words on terrorism in general. The phenomenon of terrorism has been on the international agenda for a long time. In fact, in 1937, India made the first proposal ever to create an international criminal court precisely to prosecute terrorism. The League of Nations convention proposing a tribunal was signed by a number of states, but there were not enough ratifications, and the convention never entered into force. Remarkably, the convention was focused on state terrorism. It was only after 9/11/2001 that terrorism moved up from being a matter of international concern to being perceived as a threat to peace. Despite the long international engagement with this phenomenon, it has proved tremendously difficult to find international agreement on a definition of terrorism. The most contentious issues are first, whether States and National Liberation Movements can be authors of terrorism, so this includes the question whether States can commit terrorist acts. And second, whether acts committed during armed conflict must be excluded from the generic definition or not. In times of armed conflict there are specific rules also in relation to terrorism. The laws of armed conflict, the international humanitarian law, prohibit acts or threats of violence which have as their primary purpose to spread terror among the civilian population. This we find in Article 51 of Additional Protocol I to the Geneva conventions for international armed conflicts and Article 13 of Additional Protocol II for non-international armed conflicts. Serious violations of these prohibitions amount to war crimes and they have been prosecuted as such by the ICTY and a Special Court for Sierra Leone. For instance, in the Galic case, in the Milosevic case, ICTY and the Brima and Charles Taylor case, a Special Court for Sierra Leone. Notably the war crime of terrorizing civilian population has not been included in the ICC statute. There can just be no similar prosecution on this crime charge before the ICC. Yet, certain terrorist acts, also if committed outside a situation of armed conflict, may qualify as a crime against humanity or even genocides. In addition, there have been efforts to include terrorism as a separate international crime in the ICC statute, both in 1998, as well as in 2010 at the review conference in Kampala, but to no avail. Hence, under the current ICC list of crimes, the effects of terrorism can be prosecuted, but not the act of terror itself. Despite this gap in the legal framework, in the ICC's practice, we do see attention for acts of groups that are labeled as terrorist groups. For instance, upon the request of Mali, self-referral, the prosecutor has opened investigations to examine alleged crimes by individuals associated with groups such as al-Qaeda in the Islamic Maghreb. And in this context an arrest warrant was issued against Ahmed Al Faki, allegedly a member of Ansar Dine on charges of attacking and destroying historic and religious buildings. In addition to this concrete case, the prosecutor may at some point in time also look at the acts of foreign fighters in Syria and Iraq, in particular if they joined a leadership ranks or IS as we already discussed in video two. The only tribunal in the Hague that was established specifically to deal with terrorism or rather with one terrorist act in particular, was a Special Tribunal for Lebanon. This tribunal was created to address the assassination of the former Lebanese Prime Minister, Rafic Hariri. The tribunal was supposed to be established by treaty. But as the Lebanese parliament failed to ratify, ultimately the tribunal was established by security council resolution, just like the ad hoc tribunals. Nonetheless, the tribunal is not purely international in character. Like the Special Court for Sierra Leone, the Special Tribunal for Lebanon is a hybrid court including national as well as international judges. It is an international creation, a jurisdiction over the Lebanese crime of terrorism and not over international crimes. Despite this domestic orientation as regards to substantive jurisdiction, domestic crimes, the tribunal did deliver a noteworthy decision in 2011, in which it offered an international definition of terrorism, which it proclaimed, existed under customary international law. It held on the basis of treaties, UN resolutions, and the legislative and judicial practice of states, there is convincing evidence that a customary rule of international law has evolved from terrorism in times of peace, requiring the following elements. One, the intent (dolus) of the underlying crime and two, the special intent (dolus specialis) to spread fear or coerce authority. Three, the commission of a criminal act, and four, that the terrorist act be transnational. This finding has been intensely criticized as going beyond existing law. At best, the decision can thus be seen as lending some weight to a crystallizing norm of customary international law. But of course, one decision alone cannot conclusively establish custom. One final noteworthy aspect of the Special Tribunal for Lebanon is that it permits in absentia proceedings, hence proceedings without the accused present. We have seen in the previous video that the ICC has amended the rules of procedure and evidence to allow for occasional absence of the accused during the proceedings in the very special circumstances that the accused is the incumbent head of state, and thus required to perform official duties. But overall, article 63, paragraph one of the ICC statute requires presence of the accused. The Lebanon tribunal in contrast allowed for the entire case to proceed without the accused ever present. At the domestic level, trials in absentia are accepted to some extent in countries with a civil law system, and much less in countries with a common law system. Also at the international level we see that the Special Tribunal for Lebanon is the great exception and that trials in absentia are generally not accepted. The Special Tribunal for Lebanon is thus exceptional in many respects but it may still leave footprints beyond its own existence. In fact, calls for a special dedicated international terrorism tribunal going beyond one specific attack have and will continue to be made, especially since it is unlikely that terrorism will become a separate ICC crime anytime soon. In parallel with these schools, the ICC may still play a role in combating terrorism despite the gap in its legal framework. As we explained, even though the ICC Statute is lacking on some points, the existing ICC crimes may be sufficient to capture crimes committed by groups that are designated as being terrorists. In addition, practice illustrates that the ICC prosecutor is keeping a close eye on such groups. Hence, in relation to terrorism, we can observe a similar trend as with international criminal law more generally. Namely, the possibility of a mosaic of courts, domestic, regional, as well as, international and both generic and universal, as well as, ad hoc and tailor-made for one situation or attack. We should thus visualize the future of International Criminal Justice as a kaleidoscope with some pieces of the spectrum focused on the Hague and others elsewhere or working in tandem and moving towards a common vision of international justice. I thank you for watching.
