It is no secret that the available body of
international criminal jurisprudence is still developing and expanding. The
International Criminal Court (ICC) began hearing cases only a decade ago, and
the Special Tribunal for Lebanon (STL) has not yet reached a verdict in its
seven years of operation. The STL has nevertheless attracted considerable
attention for its controversial indictment of four legal persons—two individuals
and two corporations—for contempt of court. Though the first case against Ms.
Karma Al-Khayat and Al-Jadeed S.A.L. ultimately resulted in an acquittal, the
Contempt Judge recently convicted Ibrahim Al-Amin and Al-Akhbar Beirut S.A.L.
He issued a fine of €20,000 and €6,000 respectively, but did
not impose a prison sentence.
But what do these fines really
mean in the broader context of “international” contempt cases? I decided to
take an empirical approach to answering this question in light of the fact no
systematic study of such contempt cases has been undertaken. In fact, it
appears that data is rarely used to answer questions that are relevant to
international criminal law (ICL) unless they fit within the broader context of
international relations theory. Lawyers and judges must be informed by the
facts just as much as political scientists do. This is especially true when it
comes to sentencing in international contempt cases, as this represents relatively
underdeveloped territory for ICL. As the title suggests, this piece will
provide a rough overview of the state of contempt cases at international
tribunals. Though the data that was collected is limited, it allows us to
evaluate the STL’s decisions in the two contempt cases
Methodology
I attempted to generate the most exhaustive record
of contempt cases that have been litigated in an international criminal
tribunal. The list is comprised of proceedings from the International Criminal
Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal
for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the “Subsequent
Nuremberg Trials,” (SNT), the ICC, and the STL. No cases from the International
Military Tribunal (IMT), International Military Tribunal for the Far East, the
British War Crimes Courts in Hong Kong, the Special Panels of the Dili District
Court, or the Extraordinary Chambers in the Courts of Cambodia could be found.
It is possible that some contempt cases have been handled confidentially, but
these naturally cannot be included in this study.
Any set of proceedings regarded by the tribunal in
question as a contempt case was considered in this analysis. A trial must have
taken place and a verdict must have been issued. Thus, an interim order to
detain an unruly witness or defendant would not qualify.
I then recorded the case, the court, the year the
final judgment was issued, the defendant’s sentence in months (if applicable),
the number of months that individual actually served in prison, the fine
imposed in Euros (if applicable), whether the defendant was acquitted, and
whether the defendant’s sentence was suspended or served concurrently with a
separate (non-contempt) sentence.
Additionally, joined cases were separated where
sentences differed in order to make a more accurate record of prison terms and
fines that were imposed. For example, the case against Al-Amin and Al-Akhbar
were separated in this dataset because each received a separate fine. On the
other hand, the case against Al-Khayat and Al-Jadeed was left joined because
each was ultimately acquitted.
Observations and Findings
Before passing judgment on the sentence imposed by
Judge Lettieri, it is important to understand that contempt of court has not
been adjudicated as frequently as “substantive” ICL cases. The data shows that
only 42 cases have been completed, 71% of which have resulted in convictions. It
bears noting that indictments have been issued against multiple individuals in
four additional cases but two of the defendants remain at large, two are
awaiting extradition, and five are awaiting judgment. The following graph
illustrates the frequency of formal contempt proceedings being brought against
defendants at all international criminal tribunals from 2000 to 2016, including
three cases from 1947.
The graph demonstrates that apart from the first
three cases at the SNT, contempt of court was first prosecuted at the turn of
the century. The first such case, against Avramović and Simić, resulted in an
acquittal for both defendants. Nevertheless, the number of contempt cases generally
continued to grow as existing tribunals became more established and new ones
came into existence. It is possible that different courts were more prone to
try individuals for contempt but as the following graph illustrates, the
ICTY—which was established before nearly every other tribunal in this
sample—accounts for the vast majority of cases. This may be explained by the
sheer number of defendants at the ICTY compared to other tribunals, but would
not account for why the ICTR (which also processed a large number of
defendants) produced so few contempt cases.
In any event, the positive correlation between the
number of contempt cases and time appears somewhat robust (r=0.45, p-value<0.01;
excluding SNT cases). Furthermore, this graph and measure of correlation under-represents
the number of individuals tried for
contempt by international tribunals. Every tribunal except the SNT joined
multiple defendants into a single case in several instances. Most of these
cases, including the ICC trial against Bemba and four others, concluded after
2013. This correlation would likely be even stronger if every defendant were included
individually in this dataset.
Prison
Sentences
The number of proceedings is, of course, only half
the story. Comparing the sentences imposed by Judge Lettieri to the sentences
handed down by other tribunals will provide a clearer picture of whether the
STL is in line with current international practice. First of all, Judge
Lettieri’s decision not to sentence Al-Amin to prison should be viewed in light
of the fact that 83% of those convicted of contempt at an international
tribunal were handed a prison term. The mean sentence doled out to these
individuals totaled to 8.32 months, which is slightly inflated by the three
separate contempt cases in which Vojislav Šešelj was sentenced by the ICTY to
15, 18, and 24 months in prison respectively.
Residual international tribunals such as the MICT (for
the ICTY and ICTR) and the RSCSL (for the SCSL) tend to consider applications
for early release once the offender has served two-thirds (67%) of his sentence.[1] In
light of this practice and other factors (such as providing credit for time
served and past human rights abuses), many defendants convicted of contempt
have not served their full sentences. On average, an individual sentenced to
prison for contempt will have served 5.61 months. Though this figure is almost
exactly equal to two-thirds of the average sentence, a year-by-year analysis
shows some variation (see the following graph). Moreover, if any sentences in
which the defendant served no time in prison following their conviction (on
account of credit for time served or other factors) are excluded, along with those
from the SNT, then the average time served rises to 9.75 months. Thus in cases where the
defendant was not confined to excessive time in prison pending trial,
international tribunals tend to require nearly full completion of the sentence.
If anything, this data suggests that the average
prison sentence being delivered by international tribunals in contempt cases is
increasing and the average time served is increasing accordingly. Nevertheless,
a look at the ratio of the average time served to the average sentence imposed
reveals that no discernible trend exists with regards to the portion of the
sentences that is actually served. Only time will tell whether the duration of
prison terms for contempt sentences will align with the two-thirds standard
that has been introduced by the MICT in later years.
Lastly, it bears mentioning that 46% of the prison
sentences that were imposed were served to 0-60% completion, excluding
pre-trial detention. Of these, 42% resulted in no additional prison time. Only
15% of the prison terms fell within the range of 61-71% completion (roughly
corresponding to two-thirds), half of which were terminated at exactly 2/3 of
the original sentence. Finally, 38% of those sentenced to prison were
incarcerated for 72% or more of the length of their original sentence. Of
these, 90% served their full sentence.
.
Fines
Perhaps most relevant to evaluating the sentence imposed on
Al-Amin and Al-Akhbar is, of course, a review of the history of contempt fines
at international tribunals. However, there is little data to draw from because
only 7 separate fines have been issued for such cases of contempt of court
(including the separate fines handed down to Al-Amin and Al-Akhbar). This
monetary penalty averages to about €12,216.75.
Excluding the STL case, the mean drops to €11,903.45.
Analysis
For starters, the fact that Judge Lettieri merely
imposed a fine on Al-Amin may suggest that his sentence was relatively lenient
in light of the fact that the vast majority of those found in contempt received
a prison sentence. But how do Al-Amin’s actions compare to the crimes committed
by those who were sent to jail?
Vojislav Šešelj was handed the three most severe sentences of all the contempt
cases (15, 18, and 24 months) for precisely similar acts as Al-Amin and
Al-Akhbar: disclosing confidential witness information and refusing to remove
such information. To be sure, Šešelj was already detained pending the
completion of a separate trial at the ICTY, perhaps encouraging the Tribunal to
impose a harsher sentence. Moreover, Šešelj was particularly blatant about his
contempt of the Court. But this disparity does call into question whether
Al-Amin should have received a prison sentence in light of the fact that he too
displayed open disregard for the Tribunal’s authority.
Other crimes resulting in prison terms were
decidedly less grave than those committed by the defendants at the STL. For
instance, Milan Tupajić was sentenced to two months in prison for refusing to
comply with a subpoena ordering him to testify. In another case, Kosta
Bulatović was sentenced to four months’ imprisonment for refusing to complete
his testimony before the ICTY. Bulatović made this decision in light of the
Trial Chamber’s ruling to continue the proceedings despite the accused’s
absence from the courtroom on account of his ill health. The significance of
any contempt case should not be downplayed, but these examples cast doubt on
the appropriateness of Judge Lettieri’s sentence in the case against Al-Amin
and Al-Akhbar.
Though Judge Lettieri may have been lenient in
declining to issue a prison sentence, the fine he imposed on Al-Amin was
comparatively strict. It lies well above the mean fine imposed by other
international tribunals, and is exactly equivalent to the maximum amount ever
levied in a case of contempt. Both tribunals—the ICTY and the STL—allow for a
maximum fine of €100,000 according to their respective Rules of
Procedure and Evidence. Thus, as far as the fine itself is concerned, Al-Amin
received a harsh sentence.
The same may not be said of the
Al-Akhbar news corporation. The fine of €6,000 is well below the international
standard. Considering that Judge Lettieri labeled the acts committed by Al-Amin
and Al-Akhbar as “particularly egregious” in the written reasons for his
sentencing judgment, the €6,000 would appear relatively light. Moreover, a
corporation cannot be sentenced to prison meaning the Contempt Judge could only
ever issue a fine to Al-Akhbar. This dilutes the severity of the sentence
further still.
Nevertheless, the sentence sought by the Amicus
Prosecutor against Al-Amin and Al-Akhbar bears no connection to international
practice whatsoever. As we reported in our previous STL Blog post,
the Amicus Prosecutor sought a prison sentence of 24 months and a fine of €75,000 for Al-Amin, as well as a fine of €112,700 for Al-Akhbar. This
length of prison sentence was only matched in the third case against Vojislav Šešelj.
Though Al-Amin did demonstrate repeated indifference to the STL’s protection
orders, the prison term sought by the Amicus appears unduly harsh for a first-time
offender. It goes without saying that the fines sought by the Amicus for both
defendants far exceed the international norm. With respect to Al-Akhbar, the
Amicus Prosecutor would likely argue that the company is a repeat offender. In
their view, each day the confidential information remained published
constitutes a separate offense. Judge Lettieri handily dismissed this claims in
the written reasons for his sentencing judgment.
Data Limitations
Any conclusions drawn from this data must be met with
caution. At the outset, the strength of this analysis is weakened by the small
population size. It is possible that this dataset only represents a sample of
the total population of contempt cases but even so, there are simply too few
cases from which we may establish any patterns or trends with certainty. Instead,
this data provides a snapshot of what international practice has looked like
for the past sixteen years, with the addition of the 1947 cases. Nevertheless,
it is debatable whether the SNT proceedings should qualify for this dataset.
Unlike the IMT, the SNT was staffed by American judges and prosecutors, thus
undermining the “international” character of the tribunal. Moreover, singular
cases that are nearly 70 years old are unlikely to be instructive with regards
to current practice or future trends.
However, it could also be said that international contempt cases in general are too “singular” to allow
for systematic analysis. Activities that have qualified as contempt of court in
an international setting range from ignoring a subpoena to bribing a witness to
releasing confidential witness information. The facts have often been highly
particular to the case, and the gravity of the crime relative to these facts.
The general inferences that may be drawn from this data would ignore these
important details.
While the nature of the data itself presents its
own challenges, the decisions made when constructing the dataset offer benefits
and drawbacks. For instance, the decision to subtract credit for time served
from the measure of time actually served deflates the latter figure. One may
argue that the time was still served, but the sentence was simply completed (in
whole or in part) before the final verdict. I justify this decision by pointing
to the interplay between the brevity of a typical contempt sentence and the
lethargy of the international justice apparatus. Many of those convicted of
contempt were already detained for long periods of time in relation to other
criminal cases. Including this time in the record of actual time served would
often convert this figure into a measure of how long the detention/trial
process lasted. This is an interesting issue, but for distinct reasons.
Nevertheless, it may be useful to recalculate the measure of actual time served
by including credit for time served in the final sum. Thus, only early releases
would account for any difference between the sentence and the measure of actual
time served.
I included three exceptions to this rule. I coded
Vojislav Šešelj as having fully served each of his three sentences in light of
the fact that he was incarcerated for over a decade but later acquitted of the
separate charges filed against him. Keeping to the aforementioned coding
guideline would have eliminated the three most significant sentences in the
dataset. There are legitimate grounds for criticizing this form of
cherry-picking, but I will simply reiterate that this piece is merely intended
to provide a convenient overview of the topic. It does not rise to the standard
of a formal study.
Lastly, the decision to separate joined cases
where the sentences differ naturally inflates the number of entries in the
dataset. However, I wanted to capture the most accurate range of sentences as
possible in this dataset. Admittedly, restricting this separation to cases with
differing sentences effectively eliminates one 18 month sentence and one €15,000 fine. However, separating all cases would massively inflate
the number of cases even though most of these joined proceedings resulted in
acquittals. Perhaps these two instances were appropriate opportunities for
selective cherry-picking as described above. If included, the average prison
sentence would increase to 8.7 months and the average fine would increase to €12,564.65.
Conclusion
Though it may be too soon to tell exactly what
direction sentencing patterns in international contempt cases are taking, the
cases that we have at our disposal paint a telling picture. International
criminal tribunals appear to favor criminal sentences over fines for those
convicted. However, it is unclear whether these tribunals are more or less
likely to grant early release to those convicted of contempt. The data
certainly shows that the Contempt Judge at the STL is not operating in a
vacuum—his decision to impose a fine rather than a prison sentence does not
follow a clear trend in international practice. Nevertheless, it is difficult
to interpret the appropriateness of the fines issued to Al-Amin and Al-Akhbar
given how few fines have been issued by other tribunals for contempt of court. What
is certain is that the saga of the STL contempt cases will likely serve as
important precedent not only for the prosecution of legal persons under
international criminal law, but also sentencing practices that may have a
profound impact on a defendant’s human rights.
[1]
For more data and analysis of post-conviction issues at international
tribunals, see Holá, Barbora and
Joris van Wijk. (2014). Life after Conviction at International Criminal
Tribunals: An Empirical Overview. Journal
of International Criminal Justice, 12(1), 109-132.
