The Contempt Cases in Comparison: A View toward Lessons Learned

[Screenshot of Judgement in the Contempt Case against Akhbar Beirut S.A.L. and Mr. Ibrahim Al Amin]

As we blogged last month, the Contempt Judge recently found both Ibrahim Al Amin and Al Akhbar Beirut S.A.L. guilty of:

“contempt (…) for knowingly and willfully interfering with the administration of justice by: publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.”

This follows the Appeals Chamber’s March 8 ruling on the contempt case against Karma Al Khayat and Al Jadeed S.A.L./NEW T.V. S.A.L. The defendants were charged with the same count of contempt as above, with the additional count of “failing to remove…information on purported confidential witnesses, thereby violating the 10 August 2012 order.” The defendants in that case were each acquitted on both counts.

This post will contrast various factual and legal aspects of the two cases in order to determine why the outcomes may have differed. Once the Contempt Judge delivers his sentencing ruling on 29 August 2016, however, the parties to the Al Amin/Al Akhbar case may decide to appeal the decision.

The Charges

The most striking divergence between the two contempt cases arises from the charges themselves. The Amicus Prosecutor for the Al Khayat/Al Jadeed cases attempted to prove that the accused had knowingly and willfully ignored a court order instructing the accused to remove the impugned materials from Al Jadeed’s website and YouTube channel. Because the claim that Ms. Al Khayat willfully ignored the order that was sent to her via email was not the only reasonable inference that could be drawn from the circumstantial evidence presented, the Appeals Chamber reversed the Contempt Judge’s conviction of Ms. Al Khayat on count 2 (para. 104). The Appeals Chamber upheld the Contempt Judge’s acquittal of Al Jadeed on this second charge on account of its inability to attribute corporate responsibility to any Al Jadeed employee beyond reasonable doubt (Judge Hrdličková concurring, para. 4)

It is possible that the Amicus Curiae Prosecutor chose to concentrate his efforts on proving one main count of contempt in the Al Amin/Al Akhbar case, rather than introduce the unnecessary complexities of a second charge related to the violation of a court order. The Amicus argued that both Mr. Al Amin and Al Akhbar were served a cease-and-desist notice by the STL Registry on 20 January 2013 and that Al Akhbar was served with a further order to remove the relevant content on 5 June 2013 (para. 125). The Defense argued, however, that neither client received a true judicial order from the STL. It characterized the initial cease-and-desist letter as a “mere opinion” and that it was not served on Mr. Al Amin personally in contravention of Lebanese law (para. 133). The Defense also claimed that Al Akhbar was not served a proper order until 27 January 2016, at which time its client complied with its instructions (para. 134). Even though these arguments were summarized in the Contempt Judge’s judgment, they were not reviewed on their merits. This may be attributed to the fact that the second count of violating a court order was not included on the Amended Order in Lieu of an Indictment. If the Defense’s arguments have any merit, it is possible that any charge of violating a court order would have presented a considerable obstacle to the Amicus just as it did in the Al Khayat/Al Jadeed case.

Availability of the Impugned Material

A significant portion of the Al Khayat/Al Jadeed decision was dedicated to evaluating the time frame during which the impugned material was available on Al Jadeed’s website, YouTube channel, and Facebook page. Because the Amicus relied heavily upon partially uncorroborated hearsay evidence, the Contempt Judge had ruled that the material’s availability could be proven beyond reasonable doubt only for a limited span of time on Al Jadeed’s website, and not at all on their YouTube Channel or Facebook page (para. 124). These findings were reversed in part by the Appeals Chamber, but only on account of the Contempt Judge’s errors of law in evaluating the evidence (and the Contempt Judge’s finding was upheld with respect to Al Jadeed’s Facebook page).

One could assume that the Amicus took a more cautious approach to proving the impugned material’s continued availability in the Al Amin/Al Akhbar case in order to avoid the technical acquittal that they narrowly missed in the previous case. Rather than rely on a witness who had limited knowledge of the Prosecutor’s efforts to record the material’s availability, the Amicus hired a consultant to consistently monitor the availability of the material on Al Akhbar’s website and social media. This witness provided a screenshot for every day he visited the websites (para. 57). This evidence, in conjunction with further witness testimony, was enough to render the material’s availability virtually undisputed.

Establishing Objective Likelihood

The Appeals Chamber in the Al Khayat/Al Jadeed case maintained that the actus reus of the crime requires that the Amicus establish that the alleged conduct foster an “objective likelihood” that public confidence in the Tribunal would be undermined (para. 27). Of the various witnesses purportedly identified as a result of the Al Jadeed episodes, only two reliably testified about the negative consequences they suffered as a result of Al Jadeed’s conduct (para. 99). However, the Appeals Chamber ruled that this evidence amounted to “a small number of subjective accounts” which could not be used to prove the actus reus beyond reasonable doubt (para. 102).

In contrast, the Amicus for the Al Amin/Al Akhbar case was able to produce three witnesses who could reliably attest to the “ascertainable facts” that proved they were harmed as a direct result of the Al Akhbar publications. One witness, for example, testified that he suffered a loss of business as a result of the Al Jadeed’s conduct (para. 66). Furthermore, the two witnesses presented by the Defense inadvertently furthered the Amicus' case by suggesting or otherwise implying that they feared the consequences of the Al Akhbar publications (paras. 86, 89). Thus, the Amicus went to greater lengths in order to prove “ascertainable facts” that spoke of the “objective likelihood” undermining the public’s confidence in the Tribunal.

However, one may ask why the testimony of three to five witnesses amounts to anything more than “small and subjective accounts,” as in the Al Khayat/Al Jadeed case. The Appeals Chamber in the Al Khayat/Al Jadeed case qualified their ruling by stating, “[h]owever, if corroborated and supported by other evidence on the record, this evidence [the witness testimony] may form the basis for finding an objective likelihood of the public's confidence in the Tribunal being undermined” (para. 102). The Amicus presumably met this threshold in the Al Amin/Al Akhbar case by offering a multitude of documentary evidence in the form of media reports that corroborated the claims of an objective likelihood of undermining public confidence having occurred (Contempt Judge, para. 102). The Appeals Chamber in the Al Khayat/Al Jadeed case had rejected similar documentary evidence on the basis that it could not be verified for its authenticity, noting that only the URLs had been provided. It is unclear why the documentary evidence in the Al Amin/Al Akhbar case was accepted by the Contempt Judge since all of the forms of verification would have presumably been available to the Appeals Chamber in the Al Khayat/Al Jadeed decision as well. Thus, this issue may arise if the Defense for Mr. Al Amin and Al Akhbar appeal the Contempt Judge’s decision.

Corporate Liability

Though the Appeals Chamber had previously ruled that the STL may try corporate accused, it refrained from attributing liability to Al Jadeed through Ms. Al Khayat or her superior, Ms. Al Bassam. The Amicus could not prove beyond reasonable doubt that either employee of Al Jadeed had the necessary control or authority over the newspaper’s online content such that the corporation may have been held liable for their conduct (para. 203; Judge Hrdličková concurring, para. 4). Mr. Al Amin’s position within the hierarchy of the Al Akhbar organization, on the other hand, was relatively straightforward. The fact that Mr. Al Amin served as editor-in-chief of the publication and chairman of its corporate Board remained incontrovertible. Furthermore, Mr. Al Amin stated in his suspect interview that he is the “only person responsible” for publications by Al Akhbar with respect to the STL (para. 169). Thus, it was not as difficult to link the allegedly criminal conduct to individuals who were acting on behalf of the corporate accused.

Conclusion

It appears that the Amicus benefited from its strategy shift and the more favorable factual circumstances of the Al Amin/Al Akhbar proceedings, which allowed it to secure convictions on both counts. It remains to be seen whether these convictions are upheld on appeal, but the Amicus’ prospects may be greater as a result of the key differences outlined above. It is encouraging that the Tribunal is capable of retaining institutional memory, but the STL contempt cases remain controversial due to their impact on international fair trial and free speech rights. It may be said that a prosecutorial success in these cases does not, in fact, spell good news for international justice.

The Death of Mustafa Badreddine (Part 3): Appeals Chamber's Decision Terminating the Proceedings

Badreddine Defense Interlocutory Appeal of the Trial Chamber’s Interim Decision

On 15 June 2016, the Defense for Mustafa Badreddine filed an interlocutory appeal of the Trial Chamber’s “Interim Decision on the Death of Mr Mustafa Amine Badreddine and Possible Termination of Proceedings.” First, the Defense claimed that the Trial Chamber “erred in law by only identifying the requisite standard of proof [of death] ex post facto.” Second, the Defense asserted that the Trial Chamber “erred in law in failing to precisely articulate the requisite standard.” Counsel was unsatisfied with the vagueness of the threshold provided by the Trial Chamber in its written reasons. Counsel additionally stated that the Trial Chamber erred in fact in its assessment of media reports on the circumstances of Mr Badreddine’s reported death. The Defense also contended that the Trial Chamber did not afford due consideration to the “evidence of a religious nature” that was presented before the Tribunal. Finally, the Defense believed that the Trial Chamber erred in neglecting to properly analyze the totality of the evidence presented before it.

Appeals Chamber's Majority Decision

On 11 July 2016, the Appeals Chamber issued its 3-2 written decision on the Badreddine defense’s appeal of the Trial Chamber’s interim decision to continue the proceedings. The Appeals Chamber first considered the Defense’s request to introduce evidence in the form of a Lebanese death certificate issued for Mustafa Badreddine, as well as an accompanying medical report. The Defense submitted that the certificate and medical report further corroborate their client’s death. However, the Appeals Chamber agreed with the Prosecution in that this evidence was improperly introduced and that its authenticity could not be verified. Thus, the majority did not consider this evidence in its decision.

The majority then considered the claim that the Trial Chamber erred in applying a standard of proof ex post facto and failing to articulate this standard. The Appeals Chamber maintained that it is “indisputable that a Chamber cannot properly determine whether a fact or state of affairs exists without applying the relevant standard of proof to that determination.” In light of this, the majority held that the Trial Chamber reached its decision “without knowing which standard of proof it was to apply.” The Appeals Chamber declared that this error of law invalidates the Trial Chamber’s decision.

The Appeals Chamber subsequently reviewed relevant national and international criminal jurisprudence to determine what standard of proof is generally appropriate for assessing “evidence of facts not going to the guilt of the accused.” The Appeals Chamber determined that the “balance of probabilities” (“preponderance of evidence”) is the appropriate threshold of proof of death. This standard was used by the ICTY in relation to the termination of proceedings against an accused on the basis of his mental health, as well as to determining the deaths of multiple witnesses. 

With this new standard of proof in mind, the Appeals Chamber decided that it was in a “good” position to review the matter of Badreddine’s death itself rather than remand it to the Trial Chamber. Based on a “holistic” review of the evidence presented before it, the Appeals Chamber concluded that the balance of probabilities points to Badreddine’s death. The majority noted that the entirety of the evidence supports this conclusion, and that no evidence to the contrary was submitted. Furthermore, it found that “there is no evidence on the record suggesting a false claim of death. The Appeals Chamber thus ordered the termination of the proceedings against Mustafa Badreddine without prejudice, leaving open the possibility for the proceedings to resume “should evidence that he is alive be adduced in the future.”

Dissenting Opinion of Judge Nsereko

In his dissent from the majority opinion, Judge Nsereko concurred with the majority in that the correct standard of proof is the balance of probabilities. Judge Nsereko did, however, note that this standard must be “commensurate with the seriousness of the finding,” leading him to conclude that the correct threshold in this particular case is “high.”

Judge Nsereko dissented from the majority’s opinion that the Appeals Chamber was in “as good a position as the Trial Chamber” to apply this new standard of proof to the facts. He sustained that due to the Trial Chamber’s “organic familiarity with the case, the Trial Chamber is considerably more suited to accomplishing this task than the Appeals Chamber.” Though Judge Nsereko stated that an assessment of the facts is best left to the Trial Chamber, he nonetheless decided to comment on the matter. Judge Nsereko was unimpressed with the circumstantial nature of the evidence presented by the Prosecution, adding that because most of the pieces of evidence emanate from one source - Hezbollah - they merely replicate each other and cannot be considered independent. Furthermore, Judge Nsereko described the evidence presented by the Badreddine Defense as “speculative.”

Finally, Judge Nsereko noted that the Lebanese government “refused to execute” the death certificate presented by Badreddine counsel because it “suffers from certain deficiencies which have presented the Lebanese authorities from legally determining that Mr Badreddine is deceased.” Because this evidence is confidential, its content can only be gleaned from the majority and dissenting opinions.

Dissenting Opinion of Judge Baragwanath

On 13 July 2016, Judge Baragwanath followed with his own dissent from the majority decision. He began by concurring with the Appeals Chamber’s conclusion that the balance of probabilities is the correct standard of proof to be applied in the case of the defendant’s death. Judge Baragwanath added, however, that this threshold may rise to the level of beyond reasonable doubt in the event that death becomes an element of the crime for which the defendant may be tried. The standard must be elevated, according to Judge Baragwanath, due to the defendant’s “failure to submit to the custody of the court,” and the resulting difficulties of a trial in absentia.

Judge Baragwanath then addressed the issue of whether the Trial Chamber erred in articulating the standard of proof it applied ex post facto. He agreed that the Trial Chamber erred in failing to articulate a standard of proof in its Oral Decision, but dissented from the majority by stating that the error did not invalidate the Trial Chamber’s decision pursuant to Rule 176(A). Judge Baragwanath noted that:

“The fact that the Written Reasons confirm the result of the Oral Decision suggests that the Trial Chamber carried out this re-evaluation exercise and concluded that the determination reached in its Oral Decision was correct according to the standard of proof it was now able to articulate.”

Thus, Judge Baragwanath concluded that the Trial Chamber corrected its error in its written decision, thus removing the Defense’s grounds for appeal on this point.

Judge Baragwanath further disagreed with the majority’s decision to exclude the evidence presented to the Appeals Chamber by the Defense. In contrast with the majority, Judge Baragwanath was satisfied that the Defense fulfilled the four requirements set out by Rule 186 of the STL Rules of Procedure and Evidence. Given the proper introduction of this evidence, Judge Baragwanath held that the Appeals Chamber should not have used its power to rule on its admissibility. Rather, the Trial Chamber is best suited to conduct a holistic review. According to Judge Baragwanath, the majority opinion reduces the quality of its decision and deprives the parties of their right to appeal any new decision made by the Trial Chamber on the basis of the correct standard of proof. Judge Baragwanath concluded that the evidence on the record was insufficient to prove Badreddine’s death on the balance of probabilities, taking into account the gravity of this finding.

Consolidated Amended Indictment

Pursuant to the Trial Chamber’s order, the Prosecution submitted the consolidated amended indictment for the four remaining accused in the case of Ayyash et. al. Mustafa Badreddine’s name remains on the indictment as a co-conspirator (rather than as an accused).

Full acquittal by STL Appeals Panel in first contempt case against journalist and media company

In its judgment of 8 March 2016, the Appeals Panel partly granted the appeal by the Defence, and reversed the conviction for contempt of court of Ms Al Khayat. This results in a full acquittal of both accused (Ms Al Khayat and company Al Jadeed) for contempt of court.

In this case, Al Jadeed TV broadcasting corporation and its deputy head of news, Ms Al Khayat, were charged with two counts of contempt of court. The television station produced a series of episodes on supposed witnesses of the Tribunal. The two accused were charged with publishing information on purported confidential witnesses in the main case, thereby undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, (potential) witnesses. Al Jadeed and Ms Al Khayat were also charged with failure to comply with a court order to remove that particular information from Al Jadeed's website and its YouTube Channel. In his Judgment (subject to the current appeal), the Contempt Judge acquitted Al Jadeed on both counts; Ms. Al Khayat was found guilty on the second count and sentenced to pay a fine of 10,000 euro. 

[the accused Ms Al Khayat and her defence lawyers in court - screenshot taken on 18 June 2015]

Although the Appeals Panel identified a number of mistakes made by the Contempt Judge in evaluating the evidence, in its view none of these factual errors had any impact on the conclusions that could be drawn from the evidence. For example, the Appeals Panel was critical about the evaluation of the evidence of two witnesses who had been portrayed as Tribunal witnesses in the episodes, and who also testified that they had suffered negative consequences because of this (Appeals Judgment, paras. 99-102). However, the Appeals Panel still upheld the finding by the Contempt Judge that the Amicus Curiae Prosecutor had not proven beyond reasonable doubt (part of) the actus reus of count 1, namely the existence of an objective likelihood of the episodes undermining the public's confidence in the Tribunal's ability to protect confidential information (Appeals Judgment, para. 104). Further, the Appeals Panel also found that the Contempt Judge was not unreasonable in requiring  the Amicus Curiae Prosecutor "to prove, as a distinct element of the offence, the objective likelihood of the public's confidence being undermined", which serves as a link between the purported disclosures by the Accused and the interference with the administration of justice (Appeals Judgement, para. 95). The Appeals Panel therefore upheld the acquittal for both accused on count 1.

Count 2 deals with a disclosure in breach of a court order; therefore, the undermining of the public's confidence is no element of the crime. The Contempt Judge found Ms Al Khayat guilty for her failure to comply with a court order to remove the episodes from the internet. He used circumstantial evidence to establish that Ms Al Khayat had received the court order by e-mail, as there exists no direct proof of receipt and Ms Al Khayat denies receiving this e-mail. The Appeals Panel explained that "when the prosecution relies on circumstantial evidence to prove the facts constituting the elements of an offence (here the mens rea) by inference, that inference must be the only reasonable conclusion available from the evidence" (Appeals Judgment, para. 167). Consequently, the Appeals Panel reversed the finding by the Contempt Judge because he failed to consider the existence of these other reasonable inferences; for example, that the e-mail did not reach Ms Al Khayat's e-mail without triggering any notification for the sender, or that the e-mail ended up in the junk folder of Ms Al Khayat's e-mail account (Appeals Judgment, para. 168). The Appeals Panel thus concluded that the Amicus Curiae Prosecutor failed to prove that Ms Al Khayat had the requisite mens rea for Count 2 (Appeals Judgment, para. 172).

An interesting aspect of the Judgment is that the Appeals Panel (with Judge Akoum dissenting) confirmed that the applicable law in relation to the elements for the attribution of criminal liability to legal persons is Lebanese law and that these were foreseeable to the corporate accused Al Jadeed (Appeals Judgment, paras. 188-196). The majority of the Appeals Panel found that the other main sources mentioned in Rule 3(A) on the interpretation of the Rules - principles of interpretation laid down in customary international law, international standards on human rights and the general principles of international criminal law and procedure - "are ill-suited, in the present case, to address the precise question of how the acts and conduct of natural persons are to be attributed to legal persons" (Appeals Judgment, para. 191). After the Appeals Chamber previously held that the Tribunal held jurisdiction over legal persons for contempt of court, emphasizing developing international standards on corporate criminal liability, the apparent failure to identify the elements of the crime through sources of international law seems to direct towards a different conclusion (see also one of our previous blogs criticizing the manner in which the Appeal Chamber came to its jurisdiction finding). Judge Akoum in his separate opinion also explained that "the absence of clear and unambiguous provisions setting out the elements of corporate responsibility" should result in Al Jadeed's acquittal, as required by the principle of legality. Previously, Judge Akoum also dissented the majority view that the Tribunal possesses jurisdiction over legal persons for contempt.

In another interesting, and completely different, dissenting opinion, Judge Nosworthy finds that a conviction of Al Jadeed should have been entered on count 2, but on the basis of the acts and conduct of Ms Al Bassam, Ms Al Khayat's direct superior officer. According to Judge Nosworthy, Ms Al Bassam was notified of the order, had the ability and authority to remove the episodes from Al Jadeed TV's online platforms, and her conduct is attributable to Al Jadeed (although for this last conclusion Judge Nosworthy has to adopt a purposive/teleological approach to the interpretation and selection of Lebanese case law, which seems to be quite a stretch in view of the legality principle). Interestingly, and Judge Nosworthy also refers to this in her opinion, Ms Al Bassam has not been charged before the Tribunal. Therefore, if this line of reasoning had been followed, Al Jadeed would have been convicted for the acts of a person who had not been given an opportunity to defend herself before a court of law. Strictly speaking this would not have been a violation of the rights of the accused, with Al Jadeed and not Ms Al Bassam being charged. However, one wonders whether this approach is the most favorable in view of these same fair trial rights, with Ms Al Bassam's acts and conduct being the only basis for the conviction of Al Jadeed. Her defence in person would then certainly constitute an important, if not essential, contribution to a fair and balanced outcome of the proceedings.

Courageous decision by STL Contempt Judge ignoring Appeals Chamber decision to prosecute corporate entities

On 6 November Judge Lettieri, the Contempt Judge in the two contempt cases, decided to bypass a previous ruling by the Appeals Chamber, and instead ruled that the Lebanon Tribunal does not have the right to prosecute corporate entities, thereby ignoring the legal precedent previously set by the Appeals Chamber.

The cases

The Lebanon Tribunal (STL) is currently dealing with two separate contempt cases, dealing with similar substantive issues. The first is against NEW TV S.A.L. and Ms. Karma Al Khayat (Case No. STL-14-05) and the second against Akhbar Beirut S.A.L. and Mr. Ibrahim Mohamed Al Amin (Case No. STL-14-06). In both cases, the defendants, both natural and corporate, are accused of having published names of individuals alleged to be witnesses before the Tribunal. If proved, the defendants will be guilty of contempt of court. 

In the first contempt case against Ms. Al Khayat and her media corporation NEW TV S.A.L., Judge Lettieri had previously come to the conclusion that Ms. Khayat could indeed be prosecuted for contempt of court, but that her employer, the media corporation NEW TV, could not be prosecuted, as there is no basis in the laws governing the Tribunal for the prosecution of legal persons. The Amicus Prosecutor in charge of the contempt prosecutions appealed against Judge Lettieri's decision, and the Appeals Chamber ruled in favour of the Amicus appeal and concluded that not only natural persons, but also legal persons could be prosecuted by the Tribunal for contempt of court.

The second contempt case: Largely the same substance

In case STL-14-06, Judge Lettieri now faced the same legal issue as in the first case (though he argues in paragraph 73 that the facts of the case slightly differ). Having a clear previous ruling from the higher legal body of this Tribunal on this very particular issue, Judge Lettieri nonetheless decided to bypass the unambiguous ruling by the Appeals Chamber by insisting that the Tribunal does not have the jurisdiction to prosecute legal persons.

Discussion: Principle of legality

The substance of the discussion boils down to the principal of legality, i.e. whether the defendant, in this case the legal person of NEW T.V., could have been aware of the possibility of prosecution by this Tribunal for contempt of court. Judge Lettieri convincingly argues that NEW T.V. could not have been aware of this, and then the conclusion must be that the Tribunal has no jurisdiction, for an accused must be able to foresee that his behaviour will be judged criminal by a court.

Judge Lettieri extensively criticises the Appeals Chamber's analysis and argumentation in concluding that it could prosecute the legal person, even accusing the Appeals Chamber of citing "misleading" developments (paragraph 47) and of violating the legality principle (paragraph 51). Judge Lettieri considers:

45. In sum, the interpretation of Rule 60 bis is clear: the Rule is not ambiguous. It does not explicitly provide for the prosecution of legal persons. Even if one were to resort to interpretation as to what Rule 60 bis might implicitly mean, I believe that, in accordance with the ordinary meaning to be given to the terms of the Rules in their context and in the light of their object and purpose (as required by Rule 3), an interpretation of "any person who" encompassing legal persons would not sufficiently put on notice a corporate accused that it could incur criminal liability (footnotes omitted).

In his critique of the Appeals Chamber's decision, Judge Lettieri notably argues that in the same line of reasoning, the Tribunal could then prosecute States and international organisations for contempt of court (paragraph 53). He further criticises the Appeals Chamber's motive of effectiveness in concluding that legal persons should be included in its jurisdiction (paragraph 59). 

The discussion here is whether the Judge should indeed blindly follow the jurisprudence set by the Appeals Chamber, or whether he ultimately has to follow his own legal reasoning and instinct in coming to a conclusion in such matter.

Conclusion

We fully agree with the substance of the reasoning of Judge Lettieri (see here and here for our criticism of the Appeals Chamber's decision to allow prosecution of corporate entities), though at the same time acknowledging that in principle, the Judge should have been bound by the Appeals Chamber's decision. Blatantly ignoring jurisprudence of a higher body in the legal hierarchy is not done, to say the very least.

In principle, decisions by a higher legal authority are binding over lower judicial instances. Judge Lettieri discusses this in a separate section of his appeal (paragraph 66 ff.), acknowledging "the general need for consistency, certainty and predictability in the judicial decision-making at this Tribunal". However, Judge Lettieri correctly considers that at this Tribunal the Appeals Chamber's decisions do not create binding precedents. 

It is clear from the wording of Judge Lettieri's decision that he has not come to this conclusion lightly, but that his sense of justice required him to do this. He could have easily followed the Appeals Chamber decision, and no one could have criticised him for doing that, but instead, he decided to go against the flow and follow his own conscience. It was an unexpected and unconventional step to take, but a courageous one nonetheless.

The Appeals Chamber will undoubtedly again reverse this legal reasoning by Judge Lettieri. However, the fact that this Judge reiterated his position in this second contempt decision, combined with the fact that the Appeals Chamber decision was only decision by majority (Judge Akoum dissented), gives force to the argument that this Tribunal should not prosecute legal entities, and it may very well have an effect on this decision forming a precedent for future tribunals and courts trying to build on this for establishing jurisdiction over legal entities.

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!

Appeals Chamber of the STL decides it can prosecute legal persons for contempt

For our analysis of the 2 October 2014 Appeals Chamber decision on the jurisdiction over the media corporation, please see our guest blog on the website of the International Justice Monitor.