Oct 16, 2014

Some further thoughts on the STL Appeals Chamber decision on criminal liability for legal entities

In a ruling entitled ‘Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings’ (‘Decision’), the Appeals Chamber of the Special Tribunal for Lebanon ruled that the defendant NEW TV S.A.L., a Lebanese media corporation, can be prosecuted for contempt of court in relation to the publication of names of persons alleged to be witnesses. Together with the media corporation’s Deputy Head of News and Political Programmes Manager, Ms. Karma Al Khayat, NEW TV S.A.L. is charged with knowing and willful interference with the administration of justice. In an earlier blog, we discussed the merits of this case.

In a guest blog on the International Justice Monitor website, we concluded that the legal analysis underlying this decision is quite unconvincing, however, the outcome is groundbreaking in that it lays the ground for criminal responsibility for corporate entities under international law. Never before has an international criminal tribunal held that it could prosecute non-natural persons. This blog post does not attempt to provide a detailed analysis of the Decision, but rather mentions a few aspects thereof that are food for discussion. 

According to Rule 60bis of the Tribunal’s Rules of Procedure and Evidence any person can be held in contempt of court if they, inter alia, “disclose[] information relating to proceedings in knowing violation of an order of a Judge or Chamber”. The question is thus whether “person” includes legal persons, or only refers to natural persons. There are various methods of interpretation of legal clauses, and normally, one first looks at the actual text of the provision to find its ordinary meaning. In looking at all three official languages of the Tribunal—English, Arabic and French—the Appeals Chamber concludes in paragraph 36 that “the ordinary definition of the term ‘person’ in a legal context can include a natural human being or a legal entity (such as a corporation) that is recognized by law as the subject of rights and duties”. It may have been preferable for the Chamber to stop its legal reasoning after arriving at that conclusion. The Decision then goes on to attempt to find a basis in international law for the conclusion that legal persons can be held criminally liable, but from then on, the logic of argumentation in the Decision decreases.

The Decision notes that “there is an emerging shared international understanding on the need to address corporate responsibility” (para. 46). It firstly notes in that respect that international human rights standards and the positive obligations arising therein are equally applicable to legal entities. The legal basis the Decision provides for this important conclusion is, to put it mildly, very thin.
It first cites General Comment 31 of the UN Human Rights Committee, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev. lIAdd.13, 29 March 2004, para. 8:

“the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities".

First, a “General Comment” is not binding international law. Second, the wording of the General Comment does not suggest that international human rights standards are binding on legal entities, it merely indicates that States Parties can only discharge of their duties if individuals are protected against legal entities. The second source cited in this respect is the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. First, as the title suggests, these are mere ‘principles’, and again not binding international law. Secondly, Principle 25 is quoted, which states that "[a]ll States must take necessary measures to ensure that non-State actors which they are in a position to regulate, as set out in Principle 25, such as private individuals and organisations, and transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights". It merely says that states must take action, no more than that.

The Decision continues to argue that a report by the Human Rights Committee on the issue of human rights and transnational corporations and other business enterprises and “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” represent a “concrete movement on an international level backed by the United Nations for, inter alia, corporate accountability” (para. 46), which really means not much in a legal context.

In the subsequent sentence, the Chamber indeed acknowledges the non-binding nature of the sources cited. It seems to conclude nonetheless that criminal prosecutions are possible, in an impossibly formulated sentence:
“Although we are wary that such instruments are non-binding, in light of the fact that corporations have been considered subjects of international law, the possibility of proceeding against a corporation through criminal prosecution cannot discarded but rather criminal regimes are regarded as an available remedy.” [footnote omitted]
It then comes to the convenient conclusion that “[t]he Appeals Chamber considers these factors to be evidence of an emerging international consensus regarding what is expected in business activity, where legal persons feature prominently, in relation to the respect of human rights”. It states there is an emerging international consensus, but then fails to formulate what this consensus is about.

Was the Chamber here merely lazy in only referring to non-binding principles and comments by UN bodies, or did it attempt to find stronger evidence for its far-stretching conclusion, but was it non-existent? The Chamber readily admits that there is no norm of customary international law that provides for criminal liability for corporations (see para. 50), it indicates that it does not have to be constrained by that fact (para. 59), given its inherent jurisdiction over contempt of court.

In conclusion, it can be said that the decision is indeed groundbreaking in that, for the first time in international criminal law, a tribunal has held that it can prosecute a legal person. However, whilst the development itself may be praiseworthy, the legal foundations of the Decision are questionable.

And whilst it may be praiseworthy to hold all actors that may be involved in human rights violations accountable, we have to be mindful that this conclusion, based on such weak arguments, violates the principle of in dubio pro reo, as indeed indicated by Judge Akoum in his Dissenting Opinion. The Chamber’s focus on holding corporations accountable for their behavior should not supersede the more important principle that no one should be prosecuted without a prior basis in law, and that any doubt as to the interpretation of such criminal provision should be explained in favour of the accused person, in this case the legal person. Paradoxically, the Chamber by attempting to secure the protection of human rights at large, failed to protect the human rights of one of its accused that it was supposed to protect. 

There are many more aspects of this Decision that deserve a closer analysis than the few thoughts discussed here, and we are eagerly awaiting discussion by other international lawyers and interested persons!

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