Reasons for Sentencing Judgment in the Case against Al-Amin and Al-Akhbar

As we previously reported, Judge Lettieri recently convicted Ibrahim and Al-Amin and Al-Akhbar Beirut S.A.L. of contempt and respectively issued each a fine of €20,000 and €6,000. This post will present an overview of the Contempt Judge’s written reasons with respect to sentencing and will provide additional commentary on a few matters.

Summary

Applicable Law

In his review of the applicable law, Judge Lettieri recalled that Rule 60bis of the Rules of Procedure and Evidence provides that the maximum penalty for contempt shall be seven years’ imprisonment and a fine not to exceed €100,000. He also demonstrated that Rule 171(D), which requires that a sentence be issued with respect to each count on the indictment, applies mutatis mutandis to contempt proceedings. Judge Lettieri stated that he is guided by both Rule 172(B) and sentencing practice at the ICTY in contempt matters. He highlighted the importance of the retributive and deterrent functions of criminal penalties for contempt of court.

Ibrahim Al-Amin

Judge Lettieri declared that Mr. Al-Amin’s absence from the proceedings “will have no bearing on the determination of the sentence in this case, except insofar that Mr. Al-Amin will not receive mitigation for cooperating with the Prosecution.” The Judge found Mr. Al-Amin’s crimes to be “particularly egregious” in light of their gravity, as well as Mr. Al-Amin’s decision to publish a second article despite public outcry in reaction to the first. The Judge reiterated that these articles served no journalistic purpose in revealing these individuals’ identities and portraying them as “witnesses against Hezbollah.”

The various aggravating factors highlighted in the written reasons include the fear experienced by witnesses, the overwhelmingly negative public discourse surrounding the publications, witnesses’ loss of confidence in the Tribunal’s ability to protect confidential information, and the direct harm suffered by at least one witness as a result of the publications.

Al-Akhbar Beirut

The Judge rejected the Amicus Prosecutor’s argument that the continuous nature of the Accused’s crimes allows the Tribunal to impose a separate fine for each day the impugned material remained published. The Amicus had requested a two-year prison sentence and a fine of €127,000. Judge Lettieri stated that the Rules of Procedure and Evidence are unequivocal: the STL may only impose one sentence for each count listed on the indictment, or issue a sentence that reflects a totality of the counts. Al-Akhbar was convicted of only one count and thus may only receive a maximum fine of €100,000.

In light of the fact that a corporate accused had not previously been tried under international criminal law, Judge Lettieri looked to Lebanese law in order to determine an appropriate sentencing range. He noted that similar conduct in Lebanon could carry a prison term of three months to two years and/or a fine of €5,935-17,820.

Judge Lettieri also noted the “separate penalty already imposed on Mr. Al-Amin as an individual” when determining Al-Akhbar’s sentence.

Commentary

While the grounds for Mr. Al-Amin’s sentence are predictable and seemingly uncontroversial, the reasoning behind Al-Akhbar’s sentence leaves more questions than answers. To recap, Judge Lettieri affirmed that:

I note that this is the first occasion in which a legal person has been convicted of the obstruction of justice in an international criminal setting. I find, however, that the same sentencing principles of retribution and deterrence that apply to natural persons, must equally apply to legal persons (emphasis added).

The Statute of the STL designates the Lebanese Code of Criminal Procedure (LCCP) as the Tribunal’s primary source of applicable law, and Rule 3(A) of the Rules of Procedure and Evidence (RPE) state that its provisions should be interpreted - in order of precedence - in consideration of customary international law, international human rights standards, general principles of law, and, “as appropriate,” the LCCP. In coming to his sentencing judgment, Judge Lettieri decided to look to Lebanese law for a principle source of guidance.

Article 24(1) of the STL Statute stipulates that, “the Trial Chamber shall, as appropriate, have recourse to international practice regarding prison sentences and to the practice of the national courts of Lebanon.” The Appeals Chamber ruled - in opposition to Judge Lettieri’s opinion - that the provisions of Rule 3(A) constitute sufficient guidance with respect to the trial of corporate accused, such that the principle of in dubio pro reo (when in doubt, side for the accused) enshrined in Rule 3(B) need not be activated. The Contempt Judge was led by Lebanese practice rather than international practice, and as acknowledged above, the practice of looking to Lebanese law with respect to procedural matters is well-established at the STL. 

A cursory review of corporate liability worldwide suggests that it is unusual that another Accused’s sentence can be considered a mitigating factor for the corporate accused’s sentence. Further research would be required to determine sentencing practices for corporate accused in Lebanon but of 12 European countries included in one overview, only the Netherlands was described as forming no distinction between legal and natural persons with respect to the imposition of fines. Several states, including Italy, specifically maintain trials of legal and natural persons independent from the other. Most simply give no indication that one accused’s sentence may constitute a mitigating factor in the sentence of another.[1]

Finally, it seems strange that the Tribunal issued an entire corporation - which presumably enjoys access to larger than the average individual - such a low fine. This penalty falls well below Al-Amin’s, and is actually the smallest fine ever issued in a contempt case at an international tribunal by about €1,500. The Defense did argue that a harsh financial penalty could punish Al-Akhbar’s employees and their families rather than the corporation itself, but this was not discussed in Judge Lettieri’s written decision

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[1] Clifford Chance LLP. (2012). Corporate Liability in Europe. London: Clifford Chance LLP.

Contempt Judge issues fine in case against Al-Amin and Al-Akhbar Beirut

On 29 August 2016, the Amicus Prosecutor and Defense for Ibrahim Al-Amin and Al-Akhbar Beirut S.A.L. submitted their positions vis-à-vis the sentencing of the accused. Judge Lettieri noted the absence of the accused in the courtroom and that the Registry attempted to serve Mr. Al-Amin with official notice of the proceedings. Though Mr. Al-Amin refused this notice, Judge Lettieri was satisfied that the accused had been made aware of the proceedings against him.

Amicus Prosecutor Submissions

The Amicus Prosecutor began his submission by noting that “[i]f there are no witnesses, there are no cases.” He added that if there are no cases, there naturally is no justice. He sustained that the gravity of the offense and the need for deterrence require a sufficient punishment. The Prosecutor insisted that nothing in this case was “left to the imagination.” Through the language and tone of the impugned articles, the actions of the accused sent a clear message that the witnesses whose personal details were published were to be regarded as “witnesses against Hezbollah.” The Prosecutor referred to a contempt case before the Special Court for Sierra Leone, in which the Court noted that the characteristics of a community can aggravate the violation of witness protection orders. The Prosecutor thus argued that the actions of the accused constitute grave offenses in the politically charged Lebanese context. To make the point abundantly clear, the Amicus Prosecutor conjectured that if Mr. Al-Amin were in court today, he would tell the STL “to go to Hell.”

According to the Prosecutor, the aggravating factors of this case include the accused’s consistent disregard for the authority of the Tribunal, the actual harm suffered by the purported confidential witnesses, the specific intent deduced from the articles, and the lack of remorse or regret shown by the accused. He further noted that Mr. Al-Amin’s initial appearance for his suspect interview should not be considered a mitigating factor because he merely used it as a political platform and did not cooperate with the investigators.

The Prosecution proceeded to present more recent evidence of the accused’s lack of cooperation. Mr. Al-Amin appeared on a Lebanese television network to denounce the work of the Tribunal. In the interview, the accused likened the STL to Israel, denouncing both as an “occupation tool.” The accused went on to say that he did not care if the Court seized his assets or sought his arrest, but declared that he would resist its authority. The Prosecution presented this exhibit to underscore the accused’s lack of respect for the Tribunal and absence of remorse for his actions.

The totality of these circumstances led the Amicus Prosecutor to request a prison term for Mr. Al-Amin of 2 years, accompanied by a fine of €75,000. Curiously, the Prosecution contends that with respect to Al-Akhbar, each day that the publications were available constitutes a separate offense. This amounts to a total of 1,127 days of criminal conduct, leading the Prosecutor to request a fine of €112,700 (or €100 per day). Judge Lettieri noted that this amount exceeds the maximum amount sanctioned by Rule 60bis. The Amicus Prosecutor responded that because Al-Akhbar’s offense constitutes an ongoing crime, it would be within the Contempt Judge’s power to issue a fine of €100,000 per day (for a total of €112,700,000).

Defense Submissions

The Defense opened by reminding the Court, “Let he who is without sin cast the first stone.” The Defense maintained that the unique nature of the charge against their clients requires a lenient sentence. In fact, the Defense stated that the moral condemnation resulting from the conviction of the accused functions as both a sufficient punishment and an adequate deterrent.

The Defense listed a number of mitigating factors. Firstly, they state that Mr. Al-Amin’s voluntary attendance of his suspect interview evidences his cooperation with the Tribunal. Contrary to what the Prosecution claims, the Defense believes that Mr. Al-Amin was cooperative during this interview and only reacted to provocative questions posed by the investigators as any person would. The Defense said that Mr. Al-Amin explained to the investigators that he intended to report on internal STL leaks, which are clearly relevant to public interest. At no point, according to the Defense, did the accused seek to obstruct the Prosecution’s contempt investigation.

The Defense additionally suggested that no significant tangible harm occurred as a result of his clients’ actions. Moreover, Counsel argued that the STL’s own attitude toward this case imply that the gravity of the conduct of the accused is minimal. The Defense highlighted the fact that it took three years for the Court to officially order the removal of the confidential information, at which time the accused complied. The Defense further argued that the number of confidential witnesses who testified in the contempt cases alone implies that public confidence in the Tribunal’s ability to protect witness confidentiality was not undermined. 

Counsel for the accused also argued that imposing a monetary penalty on Al-Akhbar would be unfair in light of the current financial crisis afflicting the Lebanese print media. The Defense claimed that a fine would only punish the Al-Akhbar’s employees and their families, amounting to a “tangible blow to freedom of the press in Lebanon.” Lastly, Counsel maintained that the facts of the present case would not amount to a crime under the Lebanese Criminal Code. Thus, it would be unfair to punish Mr. Al-Amin and Al-Akhbar for a crime that would not otherwise exist.

Amicus Prosecutor Rebuttal

The Amicus Prosecutor responded to the Defense’s submissions by emphasizing that “this is a court of evidence.” He noted that no evidence that suggests there was a leak within the STL has come to light. This would, in theory, undermine the journalistic integrity of the Al-Akhbar publications.  With respect to the Defense’s claim that moral condemnation is enough, the Prosecution referred to the interview that was presented and asked “Does that look like a man chastised?”

With regards to the financial situation of the Lebanese press, the Prosecutor noted, “This court is not charged with the responsibility for the health of the print media.” He went on to imply that the financial situation of Al-Akhbar could possibly be due to a number of causes including, provocatively, the poor quality of their journalists. Even more confrontational was the Prosecutor’s response to the suggestion that minimal tangible harm had occurred. He compared this defense to saying the same thing of a terrorist who carries a bomb into a crowded market but is unsuccessful in detonating it.

Defense Rebuttal

The most notable aspect of the Defense’s response to the Prosecution’s submissions pertains to the interview with Mr. Al-Amin that was later tendered into evidence. The Defense claimed that the context of this interview suggests that Mr. Al-Amin did not intend to voice hostility toward the Tribunal. According to the Defense, the program mainly covered topics relating to Israel. When the conversation shifted to the subject of Mustafa Badreddine, the Defense noted that Mr. Al-Amin did not take the opportunity to delegitimize the case against him. Furthermore, the clip that the Prosecution presented occurred during the end of the interview at around midnight. Counsel claimed that this interview was not broadcast by other stations. The Defense highlighted that in fact, their client has not undertaken a large media campaign in his personal defense despite ample opportunity to so.

Sentence issued

After a short break, the Contempt Judge issued the sentence: a € 20,000 fine for Mr. Al-Amin and a €6,000 fine for Al-Akhbar. Written reasons will follow in due course.

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.

First Instance Judgment in Second Contempt Case

On 15 July 2016, Contempt Judge Lettieri issued his judgment in the case against the Lebanese newspaper Al Akhbar Beirut S.A.L. and its editor-in-chief, Ibrahim Al Amin. Both Al Akhbar - as a legal person - and Al Amin are accused of acting in contempt of the Tribunal by “knowingly and wilfully 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.” For further information on this case, see our other blog posts on this case (here, here, and here).

Applicable Law

To prove the actus reus of the contempt charge, the Amicus Prosecutor was required to demonstrate that the accused had knowingly published the confidential information and that its publication created an objective likelihood of undermining public confidence in the Tribunal’s ability to protect witness confidentiality. Such undermining of public confidence constitutes interference with the Tribunal’s administration of justice, which is prosecutable under Rule 60bis of the Rules of Procedure and Evidence. The “objective likelihood” standard requires the application of ascertainable facts, rather than common sense or the testimony of a small sample of witnesses.

The proper mens rea requires “knowing and wilful interference with the Tribunal’s administration of justice.” Thus, it must be proven that the accused deliberately published the confidential material and knew that in doing so, their conduct was objectively likely to undermine public confidence in the Tribunal’s ability to protect witness confidentiality.

In terms of the Tribunal’s corporate jurisdiction, Contempt Judge Lettieri looked to Lebanese law in order to establish the material elements of attributing liability to legal persons. These are: (1) the criminal responsibility of a specific natural person; (2) the relationship of the natural person with the corporate accused; and (3) the authorization of the natural person’s criminal conduct on behalf of the corporate accused.

Findings

Actus Reus

Based on the subsequent articles published by Al Amin and Al Akhbar on the topic of the confidential witnesses, the Contempt Judge was satisfied that both accused released “highly detailed information which fully identified a total of 32 individuals as purported confidential Tribunal witnesses.” The Judge noted that the full contents of the original article - published on 15 January 2013 - remained available until 19 February, by which time the sensitive information and images had been blurred. The articles appeared to have been completely removed by 29 February.

Several witnesses testified to the effects of these articles. Witness AP06 claimed that following their publication, “he was the subject of gossip and fielded daily questions from people inquiring about his relationship with the Tribunal, his political affiliation and what he had done to have his picture published.” This witness further testified that he suffered business losses after the leaks. Witnesses AP07 and AP09 claimed that they feared being harmed by forces opposed to the STL. Two witnesses called on by the Defense testified that their faith in the Tribunal was not undermined, but still seemed to inadvertently imply that they suffered some degree of harm after the Al Akhbar publications were released. The Contempt Judge also considered a multitude of evidence in the form of Lebanese news articles and public reactions with respect to the negative perception of the Al Akhbar publications.

The Contempt Judge ruled on the basis of the above evidence that Al Amin and Al Akhbar adopted the role of a “political advocate” rather than a “neutral observer simply reporting on the results of an investigative inquiry.” Moreover, it was not demonstrated that publishing the witnesses’ personal details served any “journalistic purpose.” The testimony provided by witnesses for both the Amicus Prosecution and the Defense suggests that the individuals whose personal details were published suffered objective harm, or actively took measures to prevent such harm from occurring (including the purported recanting of testimony). Thus, the Contempt Judge Ruled that the Amicus Prosecutor had proved the actus reus beyond reasonable doubt.

Mens Rea

Contempt Judge Lettieri ruled that, on the basis of statements issued by Al Amin, it can be concluded that the accused had deliberately published witness details in spite (and because) of their confidentiality. Furthermore, in the 19 January article specific reference was made to the possibility of being found in contempt of the court as a result of publishing the witness information. Further analyses of the STL’s Rules of Procedure and Evidence published by Al Akhbar - and approved by Al Amin - demonstrate that the accused are aware of the functions of the Tribunal and the scope of its inherent power to prosecute contempt. Thus, the accused’s mens rea was proved beyond reasonable doubt.

Defense of Free Speech

Contempt Judge Lettieri again noted that “the journalistic profession may not be used as an impenetrable shield; where different legitimate interests are involved, they must be weighed in light of the priorities in a democratic society.” He pointed to the ICCPR, the Human Rights Committee, the ECHR, and Lebanese jurisprudence to demonstrate that reasonable limits to the freedom of expression are generally recognized.

Though the Contempt Judge recognized the press’s right to report on and criticize the Tribunal, he held that “there is a clear distinction between criticizing the Tribunal’s work and publishing the names (…) of 32 purported confidential witnesses.” It was not shown that this publication “was consistent with journalistic standards or ethics” or that it served any “journalistic value or pressing social need.” Furthermore, the inaccuracies contained within the Al Akhbar publications suggest that no meaningful attempt to verify the contents of the alleged “leaks” were made. This was found to be inconsistent with the basic tenets of investigative journalism. Thus, the Contempt Judge was not satisfied that Al Amin’s right to free expression exonerated him from prosecution.

The Judge further held that the requirements for attributing corporate liability to Al Akhbar for the actions taken by Al Amin on the organization’s behalf were satisfied. Under the by-laws of Al Akhbar and Lebanese criminal procedure, Al Amin’s notable positions within Al Akhbar allow the Tribunal to hold Al Akhbar liable for the criminal conduct perpetrated by Al Amin under the corporation’s auspices.

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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).

The Death of Badreddine (Part 2): The Trial Chamber's Decision to Continue the Proceedings

Submissions on potential consequences of Chamber's findings (1 June 2016)

Before issuing its decision on the personal status of Mustafa Badreddine, the Trial Chamber heard submissions from the parties on the potential consequences of its findings. The transcript may be found here.

The Prosecution submitted that is unlikely that better evidence of the defendant’s death will emerge. Therefore, the Trial Chamber should decide to terminate the case against Badreddine. If so, the the Court should issue an amended indictment that preserves Badreddine’s name as a co-conspirator. The Victims' Representative stressed that the Court should not issue an order to terminate the proceedings without prejudice. In the Representative’s view, if new evidence of Badreddine’s whereabouts were to emerge, it would be in several years’ time. The Legal Representative cautioned the Tribunal to exercise due care in terminating the proceedings against Badreddine, as the result would likely require a complete retrial if he were found alive. The Representative concluded that the “balance of convenience (…) lies in favor of allowing the proceedings to continue on the basis that [the STL is] not currently satisfied that the evidence is sufficient to conclude that Mustafa Badreddine is dead (…) whilst further inquires are conducted (…).”  The Defense vehemently disagreed with the Prosecution’s suggestion to re-characterize Badreddine as a co-conspirator on an amended version of the indictment in the event that the Trial Chamber terminates the proceedings against him. Instead, the Defense argued that all mentions of Badreddine should be wiped from the indictment and any outstanding arrest warrants should be voided.

The Trial Chamber’s Written Reasons for the Interim Decision to Continue the Proceedings

On 1 June 2016, the Tribunal ruled that “it did not believe that sufficient evidence has yet been presented to convince it that the death of Mustafa Amine Badreddine had been proved to the requisite standard.” Judge Braidy issued a dissent.

The Trial Chamber stated that it could not find evidence of an applicable international standard but nevertheless extrapolated several guiding international legal principles that govern the termination of proceedings against a deceased defendant. These are (citations omitted):

• “Where a court is satisfied on the available evidence that an accused person is no longer alive, it should terminate the proceedings against that person (...)”;
• “The doctrine of individual criminal responsibility provides that criminal jurisdiction may only be exercised over living persons. A court's personal jurisdiction (...) is therefore exclusive to that particular accused and ceases upon his or her death (...)”;
• “Termination or discontinuance of the proceedings may be either final and absolute or conditional and 'without prejudice' to reopening, resuming or continuing the case in appropriate circumstances, should the accused be found to be alive (...)”;
• “As a general rule, a certificate of death certified or authenticated by the State where death occurred or another interested state, is desirable though not essential, for a court to be satisfied as to the death of an accused. There may be circumstances in which a death certificate in the appropriate form or from an official source is unavailable, difficult to secure or the obtaining of which would result in unreasonable delay. In these circumstances other evidence supporting a finding of death may be accepted (...)”;
• “A death certificate alone may not suffice in all the circumstances and a court may seek additional evidence in the form of, for example, a post-mortem, coroner's report, other forensic report or document verifying that an accused is dead. DNA analysis, identification of the body may also be required to establish that the body purported to be that of an accused person—in respect of which there has been a funeral service and an interment—is in fact the accused's.”

In its majority opinion, the Trial Chamber decided that the termination of the proceedings against the accused in an in absentia trial is “an extreme step” which requires a “high standard of proof.” Though the standard need not reach the level of “beyond reasonable doubt” the majority directly refrained from specifying the appropriate threshold. The Trial Chamber further declared that in certain circumstances, a death certificate may amount to necessary, but insufficient proof of a defendant’s personal status. If no death certificate is available, however, the majority decided that “any other evidence” may be examined in order to be persuaded of the accused’s death.

On the basis of the evidence presented by the Prosecution and Defense counsel, the Tribunal decided that it is not yet satisfied of Badreddine’s death. The circumstantial and conflicting nature of the evidence, including the ambiguous circumstances of Badreddine’s death, made the Tribunal to determine that the proceedings must continue in the interim. The Court highlighted its belief that “[n]ot all avenues to obtain official proof from the Lebanese or any other State authorities certifying the death of Mr Badreddine have yet been exhausted.” The majority stressed that this is an interim decision that may be revisited upon receipt of additional evidence.

Judge Braidy's Dissent

Judge Braidy dissented from the majority decision to continue the proceedings. Judge Braidy agreed with the majority’s assessment of “guiding legal principles” that govern the termination of proceedings against a defendant in the event of their death. She further agreed that a “high standard of proof” is necessary to be satisfied of a defendant’s death. The judge did dissent, however, with respect to the application of these principles to the case against Badreddine.

Judge Braidy found the Jerbo case particularly instructive in light of the parallels between the ICC and the STL’s capacity to procure an official death certificate. In the Jerbo case, the Court heard circumstantial evidence of the defendant’s death given its inability to obtain a death certificate. Judge Braidy noted that the Prosecution maintained that it possesses “no information on ‘when a death certificate might be issued; and, second, whether there is any reasonable expectation that such a certificate would be issued on the basis of any additional evidence beyond that which is presently available (…)’” Thus, Judge Braidy considered it appropriate to evaluate the circumstantial evidence presented to the STL rather than wait for an official death certificate. On the basis of this evidence, Judge Braidy concluded that she was satisfied of Badreddine’s death.

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.

On 24 February second contempt case against journalist and media company will start

On 8 September 2015 the contempt judge at the STL issued a verdict in the first contempt case at that tribunal. In this much-debated 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 STL’s ability to protect the confidentiality of information about, or provided by, (potential) witnesses. Al Jadeed TV 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. Al Jadeed TV was acquitted on both counts; Ms. Al Khayat was found guilty on the second count and sentenced to pay a fine of 10,000 euro. Appeal is still pending in this case. See our blog on International Justice Monitor for a commentary on the judgement. We've also published an article on the relationship between freedom of speech and the prosecution of journalists at the STL in the International Crimes Database of the Asser Institute.

[screenshot of Contempt Judge Lettieri in court - 18 September 2015]

On 24 February the second contempt case against another Lebanese journalist and medial company will start. In this second case, similar charges have been brought against Lebanese newspaper Akhbar Beirut and its editor-in-chief Mr. Al Amin. On 11 December 2015 a Pre-Trial Conference was held. The Amicus Curiae Prosecutor requested a postponement of the proceedings to await the outcome of the appeal pending in the first contempt case. This request for postponement was dismissed in a written decision of 18 December 2015. Further, the Amicus Curiae Prosecutor requested an amendment of the indictment, witness list and exhibit list, which requests were partly granted by the Contempt Judge (click here for the written decision allowing an amendment of the witness and exhibit list, and here for the decision denying an amendment of the indictment).

Further, during the Pre-Trial Conference the representation of the accused was discussed, as the accused refuse to participate in the proceedings. Mr Abou Kasm has been assigned by the Defence office to defend their rights and interests (see also our interview with him). Mr Abou Kasm requested the trial to be classified as a trial in absentia, which will allow the accused to have a retrial. Judge Letterie denied this request as the accused have appeared in court and subsequently refused to participate. The Prosecution takes the position that the accused Mr Al Amin should be summoned to appear in court, with a failure to appear leading to an arrest warrant.

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!