The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon

The Special Tribunal for Lebanon (STL) represents a sui generisinternational tribunal on various levels. It is the first timea treaty-based Tribunal has been established through a resolutionof the Security Council adopted under Chapter VII. A furtherunique feature is its sole dependence on domestic substantivecrimes. The attempt to include crimes against humanity in theStatute did not succeed, despite the fact that the elementsof a crime against humanity seem to be discernable in the conductthat falls within the jurisdiction of the STL. References tointernational and regional terrorism instruments, such as theArab Convention for the Suppression of Terrorism, were alsoabandoned. The Tribunal will rely on Lebanese criminal provisionsregarding terrorism, illicit associations, crimes and offencesagainst life and personal integrity. Lebanese law provides anold but concrete definition of terrorism. This raises the questionof whether the Lebanese definition, with its strengths and weaknesses,could assist in the evolution of a well-structured definitionof international terrorism. The possibility of ‘internationalizing’the Lebanese definition will depend on two factors: the judges’approach in adopting the Tribunal's rules of evidence and procedure,and then more importantly their creativity in developing thejurisprudence of the Tribunal.     

The Universal Terrorist: The International Community Grappling with a Definition

Steps have been taken on the international level towards determininga widely acceptable definition of terrorism as a basis for internationalconventions. One basic distinction in this context is betweenstate-sponsored ‘official’ terrorism and individualterrorism directed against those in power. With respect to ‘individual’terrorism, a widely accepted definition refers to acts or threatsof violence committed with the intention to intimidate a populationin furtherance of some non-economic goal. The old problem ofdistinguishing terrorists from legitimate freedom fighters hasbeen alleviated but not yet totally resolved. Another issueconcerns the question of whether to exempt actions of and/ordirected against armed forces from the definition of terrorism.Overbreadth rather than vagueness is a problem of many currentdefinitions of terrorism: since they include as ‘baseoffences’ less serious violations of individual or communalinterests and even the mere intention or threat to commit them,they fail to reserve the stigma of terrorism to those offencesthat truly threaten the social fabric.     

The Mass Media, Crime and Terrorism

The mass media play a large role in the public perception andacceptance of criminal behaviour by the United States of America.Public acceptance of illegal actions by the US government inthe Iraq War, as well as steps taken to combat terrorism, havebeen influenced by entertainment media content and media logicabout crime and fear. The focus of the article is on the culturaland mass communication contexts that have promoted fear of crimeon the one hand, while also justifying illegal state actionsto combat crime — and now terrorism — on the other.Propaganda and news management (e.g. the military-media complexand the failure of journalism) contribute to a discourse offear and symbolic negation of the ‘other’ —as criminal or terrorist — and, in the process, valorizecriminal conduct as necessary and heroic.     

The Duty to Bring Terrorists to Justice and Discretionary Prosecution

In Res. 1373 (2001), the Security Council laid down the dutyto bring terrorists to justice and to deny them safe haven.Whereas such duty expressed a clear political imperative inthe aftermath of 11 September 2001, it is less clear how nationalauthorities are supposed to translate it into a set of enforceablelegal obligations. If it is interpreted as ‘obliging’states to prosecute and try terrorists, as the Security CouncilCounter Terrorism Committee seems to suggest, the power of prosecutorsto decide whether or not to bring a case to court may be severelyimpaired. An unconditional obligation to bring terrorists tocourt would not necessarily strengthen states’ judicialresponse to the threat of international terrorism. A sensibleexercise of prosecutorial discretion may be instrumental inarticulating a flexible and more effective response in variouscircumstances. Moreover, a rigid interpretation of the requirementto bring terrorists to justice does not find support in SecurityCouncil and General Assembly resolutions on terrorism. Far frommandating that alleged offenders be unconditionally broughtto trial, the universal counter-terrorism conventions and protocolslimit themselves to requiring that the jurisdiction of nationalcourts be established, which is conceptually different fromimposing its actual exercise.     

A Full Stop to Amnesty in Argentina: The Simon Case

In Simón, the Argentine Supreme Court held that two amnestylaws, adopted in the late 1980s in order to shield authors ofserious human rights violations committed during the so-called‘Dirty War’ (1976–1983), were unconstitutionaland void. Although the Argentine Congress had already repealedthe two laws in 2003, uncertainty about the validity of thisparliamentary decision had led to some controversy. With itsdecision in Simón, the Supreme Court puts an end to thelegal uncertainty concerning the prosecution of serious humanrights violations committed under the military regime and definitivelyclears the path for judicial actions against their authors.Setting aside deeply rooted national legal principles —such as statutory limitations, the principle of legality andamnesties — the Argentine Supreme Court has confirmedthe role of human rights principles and of public internationallaw in general in dealing with the most heinous crimes againsthumanity.     

Security Council's Anti-terror Resolutions and their Implementation by Member States: An Overview

In the framework of the fight against international terrorismthe UN Security Council (SC) has adopted targeted sanctionsagainst individuals and corporate entities. Furthermore, ithas imposed on states a number of obligations of a general nature.The implementation of all these measures — some of whichbear on sensitive aspects of criminal law and procedure —is left to the Member States. This article attempts to providean overview of national implementation practices, based on thenational reports submitted by states pursuant to the relevantSC resolutions. Besides the many difficulties encountered bystates in implementing SC resolutions, the encroachment of anti-terrormeasures on human rights is a cause for concern. The currentattitude of the SC, which has integrated human rights considerationsinto the security concerns that inspire its action under ChapterVII of the Charter, should enhance the perception of legitimacyof its anti-terror policy and, arguably, improve the effectivenessof its measures.     

The fight against terrorism and crime in the context of National, Regional, and Global security

The large quantity of illegal drugs remaining in Afghanistan since the fall of the Taliban regime presents an opportunity for both drug dealers and terrorists. The potential for generating vast sums of money could lead to“ narcoterrorism,” sustaining and financing terrorism over the long term. Narcoterrorism is not specifically recognized as a crime in many countries, nor is“ state sponsored terrorism.” The Republic of Georgia is currently drafting legislation to do this. That project, described here, is managed by the National Security Council of Georgia and includes several tasks to determine the causes and nature of the threats as well as the development of tools to combat them.     

全球反恐形势下的媒体角色

自从“9．11”袭击之后，反恐成为一个严峻的全球问题。国家安全成为一顼至上的公共利益，很多国家采取了新的反恐措施，新的问题也随之而来。全球性的国家安全面临的新威胁致使很多政府采取了过激的措施来打击恐怖主义，损害了值得珍惜的价值准则和人权。恐怖主义对人权造成了严重的威胁，而一些不必要的、激烈的反恐措施亦将人权置于危险境地，其产生的负面结果之一即为——借国家安全之名削减新闻自由。     

The Impact of Technology and Communications upon International and Transnational Terrorism

The purpose of this inquiry is to examine the nature of terrorism, primarily in European and Western industrial nations. Specifically the article (1) examines the impact that has resulted from technological advances in communication and weapons and (2) discusses the necessity of international cooperation in the effort to defeat terrorism. The article documents that terrorism is a serious threat to Western democracies including the United States as well as an international threat. The conclusion of the article is that it has become more difficult to counter terrorism due to technological advances which have delivered greater destructive power into the hands of a few fanatics. The primary technological effects discussed are (1) those relating to communication which has enabled terrorists to establish a “world-wide network” and (2) the addition of toxins and nuclear weapons to the arsenal of the terrorist. As an international problem, however, the difficulty of countering terrorism is not rooted in the technological sophistication of the terrorist but in international disputes about the question, “what is terrorism”. Nations appear to be unable to mount an international assault against terrorism due to the great difficulty of arriving at a commonly accepted definition of terrorism. This article discusses the obstacles to defining terrorism encountered by the international community and the role that bilateral and multinational agreements have played in countering terrorism.     

COMPETITION POLICY WITH OPTIMALLY DIFFERENTIATED RULES INSTEAD OF "PER SE RULES VS RULE OF REASON"

Both in U.S. antitrust and EU competition policy, a developmentto a broader application of rule of reason instead of per serules can be observed. In the European discussion the attemptto base competition policy on a "more economic approach" ismainly viewed as improving the economic analysis in the assessmentof specific cases. In this paper it is shown from a generallaw and economics perspective that the application of rulesinstead of focussing on case-by-case analyses can have manyadvantages (lower regulation costs, rent-seeking, and knowledgeproblems), although an additional differentiation of rules througha deeper assessment can also have advantages in regard to thereduction of decision errors of type I and II. After introducingthe notion of a continuum of more or less differentiated rules,we show—based upon law and economics literature upon theoptimal complexity of rules—in a simple model that a competitionrule is optimally differentiated if the marginal reduction ofthe sum of error costs (as the marginal benefit of differentiation)equals the marginal costs of differentiation. This model alsoallows for a more detailed analysis of the most important determinantsof the optimal degree of rule-differentiation. From this lawand economics perspective, competition policy should consistmainly of (more or less differentiated) rules and should onlyrarely rely on case-by-case analysis. Therefore the main taskof a "more economic approach" is to use economics for the formulationof appropriate competition rules.     

ECONOMIC ANALYSIS AND "BRIGHT-LINE" TESTS

Economists testifying in antitrust cases often encounter thedemand by attorneys and judges for "bright-line" tests –simple rules supposedly based on economic analysis. This paperargues that, although such tests can have their uses, they arevery likely to lead to error without a clear understanding ofthe purposes of the tests and the economics behind them. Issuesdiscussed include: market definition, market share, the roleof profits, and, especially, anti-competitive conduct (includingthe Areeda-Turner) test for predatory pricing. Examples aredrawn from actual court cases (mostly in the U.S.), in manyof which the author was an expert witness. The best known ofthese was the U.S. case against Microsoft, but there are manyothers.     

The American Immigration System: A Structural Change with a Different Emphasis

When the US Immigration and Naturalization Service (INS) wasdisbanded in 2003 many of its components were absorbed intothe new Department of Homeland Security (DHS). One of thesenew entities, called US Citizenship and Immigration (USCIS),now has the formidable task of processing and keeping trackof all the applicants for entry into the United States. Itsgoal is to serve the immigrant community effectively, efficiently,and fairly, while avoiding the problems and deserved criticismsof its predecessor organization. USCIS is expected to achievethis goal under the administrative authority of DHS that hasgoals that may not be compatible. The primary mission of DHSis to fight terrorism, and providing good service to clientsmay be incidental. In this reorganization many members of theimmigrant community fear they are viewed as potential terrorists.That it also has responsibility for refugee applicants raisesthe issue of the blurring of immigration and asylum —the former is about control whereas the latter should be focusedon protection. The possible effects of these organizationalchanges on immigrants, refugees, and the nation are reviewedin this paper.     

Trusts in prime jurisdictions * By Alon Kaplan and Barbara R Hauser, Eds

It is six years since the first edition of this book was reviewedin Trusts & Trustees (See Trusts & Trustees Volume 7,Issue 5, April 2001, pp. 30–33. The new edition reflectsmany of the changes in international trust jurisdictions. Geoffrey Shindler sets the scene in his preface. His commentthat we have barely seem to have drawn breath since that firstedition is reflected in the numerous new and revised chaptersof the book. In every jurisdiction where trusts are practised,he says, the overriding concern is the extent that our thoughtshave been dominated by regulation and anti-money launderingmeasures. The trust has been used as the scapegoat for the government'sinability to deal with crime—internal and external. Heuses succinct phrases in referring to the occasional assumptionby governments that: ‘trusts must, by definition, be involvedin money laundering in     

澳大利亚反恐怖主义立法述评

为应对日益严重的恐怖主义威胁,澳大利亚加快了反恐怖主义立法的进程,澳大利亚反恐怖主义法对基础性概念进行界定,增设了恐怖主义犯罪罪名,完善恐怖主义犯罪的诉讼程序,对有关部门进行特殊授权,并且严格了对澳大利亚本土的防范措施.澳大利亚反恐怖主义立法采用附属式的立法模式,并涉及预防、处置及制裁等多重内容,体现了普通法系的"程序优先"的特征,极大地扩张了国家行政权力.随着反恐斗争的开展,普通法系国家愈加重视制定法的作用.但是,反恐怖主义立法引发的人权问题、民族问题和宗教问题也是值得深思的.     

The Quest for a Satisfactory Definition of Terrorism: R v Gul

The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide‐raging implications for the UK's counter‐terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root‐and‐branch’ review of counter‐terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.     

The Progression Towards Ecological Quality Standards

Environmental law still lacks coherence in many respects. Twokey areas of UK and EC law—water pollution control andbiodiversity protection—are examined to see whether itis possible to adopt more common approaches. A key developmentin pollution control law was its redirection in the last twentyyears from a largely reactive instrument towards one embeddedin the realisation of environmental quality objectives throughprecisely stated quality standards. On closer inspection, manyof these standards, though, are anthropocentric in origin. Theapproach of using the law purposively to achieve defined objectivesis much better developed in pollution legislation as comparedto the law on biodiversity protection. The latter area now needsto see a similar development in ecological quality standards,while recognising that their formulation is a significantlydifferent exercise from that of establishing environmental qualitystandards. The use of ecological quality standards in the WaterFramework Directive is commendable, but there remain substantialreservations about the criteria adopted and the underlying basisfor ecological valuation.     

关于反对国际恐怖主义的若干国际法问题研究

反对恐怖主义的实践包含了很多值得研究的国际法问题 ,特别是以下问题 :恐怖主义的定义 ;反恐对传统国际性框架的影响 ;联合国在反恐中的法律地位 ,这些问题似乎显得格外突出 ,急需我们去思考和研究。     

略论反恐多边条约的国内实施

国际恐怖(主义)犯罪是目前日炽的一种国际犯罪,国际社会非常重视对恐怖(主义)犯罪的惩治、预防和打击,缔结了一系列反恐多边条约。反恐多边条约的实施主要是缔约国的实施(即国内层面上的实施),可以分为直接实施和间接实施两种模式。反恐多边条约的国内实施于惩治和预防国际恐怖主义犯罪发挥了重要作用。反恐多边条约在我国得到了很好的实施,但在实施过程中仍存在某些弊端或不足,亟须完善,关键是要尽快制定一部专门的反恐特别法。     

Meanings of terrorism

Terrorism is a notoriously plastic word, depending on user, audience, and political context. This paper focuses on shifts in its meanings since the early 1970s. As federal statutes made terrorism a criminal offense, common usage changed from a broad meaning to one that specified terrorism as a political crime. The argument is that the state shapes meaning and public discourse through law. Peircean semiotics and the semiotic philosophy of Russian linguist Vološinov provide a framework to explore relationships among politics, law, and civil life. Applied to the events of September 11, 2001 such an analysis further allows better understanding of certain interpreters of the September 11 attacks, notably Jean Baudrillard, Jacques Derrida, and Jürgen Habermas.