The rulings issued in the case of [Lebanese bomb smuggler and former minister] Michel Samaha provoked a series of angry reactions. Most prominently, then-minister of justice Ashraf Rifi did not hesitate to “rebuke the military court” following its preliminary ruling, signaling his intent to submit a bill to prevent the exceptional courts from trying civilians by abolishing these bodies.[1] In the wake of the decision to release Samaha on January 15, 2016, Rifi referred his bill -titled “Establishing Courts and Departments Specialized in Cases of Terrorism and Major Crimes” and dated December 22, 2015- to the Council of Ministers. In his view, the bill “puts Lebanese justice in total harmony with international justice”. The bill’s mandating reasons cited, most importantly, its inclusion of a “precise and modern definition of the crime of terrorism” and its preference for “specialized criminal courts over exceptional courts” for trying crimes of terrorism and major crimes. The latter manifested in the propositions to abolish the Justice Council and to transfer broad competences from the Military Court to the proposed specialized court. From a rights perspective, these are welcomed moves.

However, the problem stems from the bill’s inclusion of a broad definition of terrorism and its establishment of a structure of parallel judicial organization whose judges are, to a certain extent, appointed via procedures that differ from those used in the regular judiciary. Subsequently, there is concern that the parallel judicial structure, supposedly a specialized judiciary, will slide towards or become a kind of exceptional judiciary, which would totally negate the advertised promises. There is also a large discrepancy between the stated goal of restricting the jurisdiction of the military court to trying military personnel on the one hand, and the bill’s text, on the other.

1.     Expanding the Definition of “Terrorism”

Establishing a precise definition of terrorism is very hard because of the numerous forms it may take in terms of nature, goals, and means employed, as well as its strong political and ideological character.[2] Some commentators consider establishing an objective definition of terrorism impossible and have warned against attempting to do so.[3] There is no international agreement on a unified definition of terrorism; some international documents merely specify some components of terrorism.[4]

Regarding the bill, the first article stipulates that “Irrespective of any other definition, ‘crimes of terrorism’ shall mean any destructive act, organized or unorganized, executed by a person or group of persons, by any means, with the goal of intimidating society and of harming its security or the economic, social, or political security of the state and undermining civil and national peace”. This definition is significantly broader than the current definition found in Article 314 of the Criminal Code.

The bill expands the definition of terrorist acts in four ways:

Firstly, it deletes the condition of planning [of the act]. The bill states that the act may be planned or not planned, and may even be perpetrated by a single person. In this regard, the bill goes a step further along the path set by all the Arab legislations pertaining to terrorism that have been issued recently, including the one that most broadly defines terrorism, Egypt’s Law 94 of 2015.[5] While this law omitted the condition that there must be “an individual or collective criminal undertaking” from its definition of terrorism, it did not go so far as to state that a terrorist act can be unplanned. Forsaking this condition means forsaking one of the main checks against a slide towards criminalizing motives. This point was raised, for example, during the parliamentary discussions over the French law on terrorism that was introduced in 1986.[6] At the time, emphasizing the notion of an “undertaking” was the main response to the concerns of some deputies that some of the loose terms used in the definition of terrorism would lead to the suppression of participants in union, or vocational protests whenever these protests slipped into violence:[7] “The true character of terrorist acts is only evident if they are the result of…an actual strategy”.[8] French jurisprudence proceeded in the same vein.[9]

Secondly, the bill expands the definition of the aim. According to the bill, a terrorist act must aim at “harming the economic, social, or political security of the state or undermining civil and national peace”. This differs from the current definition, which stipulates that a terrorist act must aim to “foment terror in society”. In this regard, too, the bill resembles the new Egyptian law, which referred to a series of general aims of designated terrorist acts, the most important of which are “disturbing public order”, “endangering the safety and security [of society]”, and “harming national unity, social peace, or national security”. There is fear that expanding the concept in this manner will jeopardize basic freedoms. Note that the International Convention for the Suppression of the Financing of Terrorism (1999) defined the aim of a terrorist act as “to intimidate a population”[10]. Security Council Resolution 1566 (2004) and the jurisprudence of the International Criminal Tribunal for the former Yugoslavia define the aim in a similar manner.[11]

Thirdly, the bill forsakes specifying the means used. According to it, a terrorist act may be perpetrated by any means. The current text, in contrast, lists some dangerous means, such as explosive devices, and requires that they be likely to create a public danger. In this regard, too, the bill’s definition resembles the definition found in the new Egyptian law, which made the use of specific means a dispensable condition for considering an act to be terrorism. The act must merely be perpetrated using “one of the means of terrorism” with “an intent to achieve or execute a terrorist goal”.

Fourthly, the bill uses loose terms in a manner that violates the principle of “no crime without law” (nullum crimen sine lege). These expressions include “intimidating society”, “economic security”, “social security”, “the political security of the state”, and “undermining civil and national peace”. The fear is that an arbitrary and distorted interpretation of these expressions could undermine basic rights and freedoms, especially freedom of expression and the freedom to protest. Such fear has been articulated by the United Nations’ Human Rights Committee,[12] as well as the Working Group on Arbitrary Detention.[13] The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms, while countering terrorism, stressed that “The adoption of overly broad definitions of terrorism therefore carries the potential for deliberate misuse of the term…as well as unintended human rights abuses”, and that “Properly defined, ‘terrorism’ and associated offences are also accessible, formulated with precision, non-discriminatory and non-retroactive”.[14]

2.     Who Tries Crimes of Terrorism? Courts Specialized in Terrorism or a New Exceptional  Judiciary for Examining Crimes with Political Dimensions?

The Ministry of Justice proposes establishing “courts and departments specialized in cases of terrorism and major crimes”, in a manner that “keeps pace with the civilizational progress of the international community in the area of combating terrorism and dangerous crimes”. In doing so, it relies on the conventional distinction between exceptional courts, which are a violation of the principles of due process, and specialized courts. Adhering to this distinction is necessary to win the battle to transfer the competence to try crimes of terrorism from the military court to the specialized court to be established under the guise of rights. Guided by this distinction and to demonstrate commitment to it, the bill also abolishes the Justice Council [15]. The Justice Council, like the Military Court, is considered an exceptional court as cases are referred to it on the basis of a discretionary governmental decree -a blatant violation of the principle of the separation of powers- and its rulings cannot be appealed.

However, a close examination of the bill reveals that things are not so clear. The rulings of the planned specialized courts are not subject to review by the Court of Cassation. Rather, they are, in all their bodies and levels, a parallel judicial system. Furthermore, they are subject in a number of aspects, such as the appointment of judges in the “supreme court” (the equivalent of the Court of Cassation), to exceptional provisions. Consequently, it is feared that the new structures will slide from specialization towards exceptionalism in a number of respects, and deviate from the principle of the natural judge, as similar structures in several other countries have done. The broad competence of these courts, which includes political crimes such as working to subvert the Constitution, and social crimes such as human trafficking, increases the risk of such a slide and makes it difficult to talk about specialization, as detailed below.

Structural Specialization

The bill’s second article “creates, in a special building in Beirut, courts and departments that are specialized in terrorism and major crimes and consist of the following bodies: 1) a supreme court that is specialized in cases of terrorism and major crimes, that is composed of two benches, and that has territorial jurisdiction over all of Lebanon; 2) a criminal court; 3) an indictment body; 4) a public prosecution department; and, 5) an investigations department”. The specialized indictment body is the appellate authority for the investigating judge’s decisions[16]. The first bench of the specialized supreme court is the cassation authority for decisions issued by the indictment body[17]. The second bench of the specialized supreme court is the cassation authority for decisions issued by the specialized criminal court[18]. The bill grants these departments territorial jurisdiction over all Lebanese territory.

Hence, the bill did not only adopt centralized competence like that seen in France[19] and some Arab countries such as Tunisia and Morocco, where crimes of terrorism can only be tried in the criminal court in the capital city. Rather, by establishing a complete specialized judicial structure, it also adopted the principle of structural specialization (and herein lies the bill’s exceptionalism). To this end, the bill went so far as to create 40 new judicial posts that reach even the level of the Court of Cassation. This violates the principle of judicial organization, according to which the Court of Cassation should be the guarantor of the unity of jurisprudence – even that of specialized courts.

The specialization also manifests in vesting these courts with greater capacities, and charging them with strengthening the specialization of its staff by working to consolidate the abilities of the judges specialized in terrorism matters. In France, judges receive assistance from experts in the field of terrorism, and both the Ministry of Justice and the National School for the Judiciary (the judicial studies institute) organize specialized courses in terrorism matters.

In the Ministry of Justice’s bill, judges in the specialized departments are appointed via the usual mechanism specified in Article 5 of the Judiciary Organization Law; a personnel chart prepared by the Supreme Judiciary Council and issued by a decree from the executive branch. However, the bill included a truly remarkable exception concerning the judges of the second bench of the specialized supreme court, namely the bench that reviews decisions by the specialized criminal court. They are appointed[20] “by a decree based on the minister of justice’s recommendation and the Supreme Judiciary Council’s approval”. Hence, the bill grants the executive authority an expanded role in appointing judges in the highest body within these specialized courts, which is a step backward in terms of judicial independence.

Jurisdiction Beyond the Specialization

The jurisdiction of specialized courts is usually restricted to very specific crimes.[21] In contrast to their comprehensive territorial jurisdiction, their subject-matter jurisdiction is narrow. This is not the case in the bill. Although the bill declares the establishment of courts and departments specialized exclusively in the “terrorism crimes and major crimes” mentioned in the third article, the list of competences is evidently very long, making it hard to describe these courts as “specialized”.

The bill transfers the competence to examine crimes that are currently within the military judiciary’s jurisdiction to the planned specialized courts. These crimes are those deemed crimes of terrorism[22], crimes related to weapons and munitions[23], as well as the crimes stipulated in Articles 273 to 287 of the Criminal Code (treason, espionage, and illegitimate links to the enemy), and in Articles 290 and 291 (the crime of recruitment to fight for a foreign country, and the crime of inciting soldiers of a foreign country to desert or engage in mutiny).

However, the bill promptly expands the jurisdiction of these courts to include a series of what it describes as “major crimes” that currently fall within the jurisdiction of the judicial, or regular, judiciary. While the military judiciary’s subject-matter jurisdiction is restricted to examining the crimes stipulated in Articles 273 to 287 of the Criminal Code, the bill transfers the competence to examine all crimes stipulated in Articles 270 to 339 of the Criminal Code, many of which are currently within the regular judiciary’s jurisdiction. These crimes include crimes against the state’s external security[24], among the most prominent of which is the crime of “undermining the prestige of the state and national sentiment”, and crimes against the state’s internal security[25], including “felonies against the constitution”, “usurping political or civil authority or military leadership”, “sedition”, “crimes that undermine national unity or disturb order between the components of the state”, and “harming the state’s credit”. The aforementioned articles also stipulate a number of crimes against public peace, the most important of which are “encroaching on civil rights and duties” and “illegitimate organizations”[26]. The notable point in this regard is that the bill grants the specialized courts the competence to examine the overwhelming majority of crimes that have a political nature.

Moreover, the bill includes within the jurisdiction of the specialized courts crimes of human trafficking[27] and money laundering, irrespective of the extent to which they are connected to terrorist acts, as well as all crimes stemming from arms and equipment deals made by the ministries concerned, and crimes that are associated with or branch from them. These crimes all [currently] fall within the jurisdiction of the judicial judiciary.
 

Expanding the jurisdiction in the manner poses several problems:

Firstly, it creates an unwarranted distinction in the treatment of crimes, and therefore undermines the principle of equality before the courts and the principle of the natural judge. Court specialization is warranted only when the crime, due to its nature and gravity, has a certain degree of complexity. On the other hand, it is absolutely unwarranted when the courts’ jurisdiction includes numerous crimes that have little gravity, or are no more complex in nature than other crimes.

Secondly, in practice it puts a series of crimes of a political nature in the class of crimes of terrorism and major crimes, which endangers political and general freedoms. While security considerations permit the establishment of special procedures for dealing with crimes of terrorism, the trying of crimes of a political nature should strictly adhere to the general procedures, especially with regards to the principles of the independence of the judiciary and the natural judge in order to avert any encroachment on political freedoms. The experiences of counter-terrorism legislations being used in some Arab regimes to silence political opposition are all too familiar.

3.     Restricting the Competence of the Military Court to Military Personnel?

The Ministry of Justice’s bill was, according to its mandating reasons, bound by a basic promise: to curb the jurisdiction of the military courts and restrict it to military personnel, and to abolish the competence of the exceptional courts to prosecute civilians. In this regard, too, a close examination of the text reveals breaches of this promise.

The bill was content to transfer the competence to examine some crimes -those mentioned above- from the military court to the specialized courts. On the other hand, clauses 5 to 9 of Article 24 of the Military Justice Law, which defines the competences of the military court, remain in effect[28]. These competences include crimes against a military person[29] and all crimes that harm the military’s interest[30]. The provisions of Article 27 of the Military Justice Law also remain in effect. These provisions govern the personal jurisdiction of the military judiciary and grant the military court the competence to prosecute military personnel[31] and civilian officials in some military departments[32], as well as any principal perpetrator, accomplice, accessory, or instigator in the crime for which the aforementioned people are being prosecuted, irrespective of its type (i.e., even if it is a regular crime or a crime committed against a civilian)[33]. Hence, if the bill is passed, the military court will remain competent to try civilians in numerous situations and to try military personnel in regular criminal cases. It is then no exaggeration to say that the criminal court will retain the overwhelming majority of the cases pending before it.

 

This article is an edited translation from Arabic.

 

 

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[1] See, for example, Amal Khalil, “The ‘Mockery” Ruling Disaffects the Future [Movement]: Rifi Launches the Samaha Trial”, al-Akhbar, May 14, 2015. On August 7, 2015, it was announced in a press conference that the preparation of the bill had finished.

[2] V. sur ce point D. Cumin, Tentative de définition du terrorisme à partir du jus in bello, RSC 2004, p.11.

[3] V. P. Martens, L'introuvable acte de terrorisme, in Actes du colloque de Bruxelles, Bruxelles, Éditions de l'Université Libre de Bruxelles, 1974, p. 26-49 ; J.-M. Sorel, Existe-t-il une définition universelle du terrorisme ?, in K. Bannelier, O. Corten (dir.), Le droit international face au terrorisme, Paris, Pedone, 2002, p. 35-68.

[4] V. par ex. la convention du Conseil de l'Europe du 10 novembre 1976 pour la répression du terrorisme, la convention des Nations Unies du 17 décembre 1979 sur la prise d'otages ou la convention des Nations Unies du 15 décembre 1997 sur la répression des attentats terroristes à l'explosif.

[5] Khalid Ali, A Critical View of the Counter Terrorism Legislations in Egypt, a study within the framework of “Evolving Arab State?”, Common Space Initiative and The Legal Agenda, 2015.

[6] Loi n° 86-1020 du 9 septembre 1986.

[7] V. Guy Ducoloné, J.O. déb., Ass. nat. 25 juin 1986, p. 2430 ; François Asensi, J.O. déb., Ass. nat. du 27 juin 1986, p. 2524. Et sur ce point J.-P. Marguénaud, La qualification pénale des actes de terrorisme, RSC 1990, p.1.

[8] Y. Mayaud, Répertoire de droit pénal et de procédure pénale, V. Terrorisme, spéc. no 109 .V. Crim. 7 mai 1987, no 87-80.822, Bull. crim. no186.

[9] Civ. 1re, 17 oct. 1995, no 93-14.837, Bull. civ. I, no 368 ; D. 1995. IR 245 ; RCA 1996. Comm. 72.

[10] Article 2-b).

[11] V. l'arrêt Krsti´c, TPIY, Jugement, § 138.

[12] Human Rights Committee, concluding observations for Canada, CCPR/C/CAN/CO/5, April 20, 2006, paragraph 12; and, Monaco, CCPR/C/MCO/CO/2, October 28, 2008, paragraph 11.

[13] See the report of the Working Group on Arbitrary Detention, E/CN.4/2004/3, December 2003, paragraph 65.

[14] Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/16/51, 2010, paragraphs 26 to 28.

[15] Article 14.

[16] Article 8.

[17] Article 9.

[18] Idem.

[19] La loi du 9 septembre 1986 précitée.

[20] Article 9 of the bill.

[21]V. F. Agostini, Répertoire de droit pénal et de procédure pénale, V. Compétence,  no 352 ; A.-S. Chavent-Leclère, Les juridictions interrégionales spécialisées : des compétences originales, AJ Pénal 2010, p.106.

[22] According to law 11/1/1958

[23] Legislative decree 59/137

[24] treason, espionage, illegal contact with the enemy, crimes violating international law, undermining the aura [haybah] of the state and of national sentiment, crimes of contractors

[25] Crimes committed against the constitution, usurpation of a political, civil, or military command power, divisive acts [fitna], terrorism, crimes that undermine national unity or perturbs harmony among the elements of the nation, undermining the financial status of the state.

[26] Excluding crimes of rape and tresspassing on the freedom of work and protest as well as riot gatherings.

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