Prosecution witnesses who were working for Mr. Hariri

The week of 11 November saw the end of the first phase of the Prosecution's case. The first witness to testify this week from Leidschendam, the seat of the Tribunal, was Mr. Mohammed Mneimneh who was the assistant to the head of protocol office of Lebanon's former Prime Minister Rafik Hariri. He testified about his role and responsibilities in the protocol office, Mr. Hariri's typical daily schedule and lifestyle patterns and his agenda, including his visits to Quraitem Palace.

First witness this week: Mr. Mneimneh

[Screenshot of Mr. Mohammed Mneimneh.]

The witness started working for Mr. Hariri in 1999 and worked under the late Wissam Al-Hassan where he was responsible for keeping Mr. Hariri's agenda. He arranged the appointments and visitors, organised his trips; he and his team would travel in advance to arrange for Mr. Hariri's trips inside and outside of Lebanon. The witness describes a typical day of Mr. Hariri, waking up early and would meet with people that he knew, close associates and businessmen, who did not have appointments but who wanted to meet with him. He describes the nine floor building of Quraitem Palace where Mr. Hariri's office was located. The appointments Mr. Hariri had with representatives of Hezbollah were not noted down in the agenda as they were not arranged through the Protocol Department but through intermediaries or through Mr. Hariri himself. The witness would only know of these appointments after they had occurred. The Prosecution tenders parts of Mr. Hariri's agenda into evidence, and some of the details thereof are discussed in the courtroom.

That same day, 11th November, the Defence started its cross-examination of Mr. Mneimneh. One of the issues Mr. Korkmaz, counsel for accused Mr. Baddreddine, questions the witness about Mr. Wissam El-Hassan's absence from work on Monday 14 February 2005, the day of the assassination. Mr. El-Hassan called the witness the preceding Saturday to inform the latter that he would have an exam at the Lebanese university on Monday and hence would be absent from work that day. Mr. Korkmaz's cross-examination continued on 12th November. The witness is asked about a scheduled appointment with Mr. Ayad Allawi on 14th February 2005 that had been cancelled, though the witness states he was unaware of that. The next in line to cross-examine the witness is Mr. Young defending the interests of accused Sabra. Mr. Young questioned the witness about, inter alia, the importance of the election time in January and February 2005. Mr. Young further discusses the resignation of Mr. Wissam El-Hassan from the Internal Security Forces (ISF) on 10 February 2005, four days before the fatal assassination. Also, prior to his assassination, Mr. Hariri had personal concerns about his safety and sometimes failed to give advance notice of his movements, even to his protocol team. Ms. Le Fraper, lawyer defending the interests of the fifth accused Mr. Merhi, also questions the witness in respect of the scheduling of the secret meetings Mr. Hariri had, which, the witness states, were organised by Mr. Wissam El-Hassan or through Mr. Hariri himself or intermediaries, but there was no clear record of that type of visitors.

Second witness this week: Mr. Al-Daouq
The second, and last, witness to testify this week on 12 and 13 November, was Mr. Maarouf Al-Daouq, who was the head of the Lebanese Press Office for the President of the Council of Ministers. In his testimony-in-chief, he talked about his role and responsibilities in the creation of press releases, the publishing and circulation thereof and the structure and format of such press releases. When Mr. Hariri resigned as Prime Minister, the witness was asked to work with Mr. Hariri on a full-time basis at the Quraitem Palace. His responsibilities included covering news, activities and events related to Mr. Hariri and he would make arrangements to cover those events. Counsel for the Prosecution, Ms. Bari, takes the witness through several of the press releases that were issued prior to the assassination of Mr. Hariri. The witness discussed the resignation of Mr. Hariri as Prime Minister on 20 October 2004, and his involvement in the formation of the subsequent government; there were attempts to nominate Mr. Hariri again as Prime Minister in the new government. However, when all discussions and negotiations on this topic failed, he submitted his final resignation. Mr. Iain Edwards for the accused Badreddine started the cross-examination of this witness. The 171 press releases that this witness provided on a CD to the Prosecution have not yet been admitted into evidence, and the questioning of this witness is not about the content of those documents. Unfortunately, when they will be admitted, the STL website will probably not allow the public to read these exhibits.

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.

Witnesses testify about the jammers in Hariri's motorcade at the Lebanon Tribunal

In the week preceding 20-23 October 2014 (see here, here and here) several Prosecution witnesses testified about jammers in the motorcade, blocking transmissions by cell phones by emitting signals that block electronic devices that may be used to set off bombs. And again on 12 December another witness testified about the jamming systems.

Three of the cars of the former Prime Minister's motorcade had jammers installed. The witnesses all testify that at the beginning of each trip they made with Mr. Hariri,  they would turn on the jammers and verify whether they were operational. If their cell phones or car radios were still operational, the jammer would not have been properly turned on.

The Prosecution's case seems to be that, given that all cars in the convoy contained such jamming devices, the bomb killing the former Prime Minister could not have been set off by a remote electronic device. The defence has cast doubt on this theory by revealing evidence from some of the Prosecution witnesses that at least one of the jammers was not functioning properly, thus allowing for an alternative assassination theory.

The week of 20-23 October saw two further witnesses testify about the technology of electronic countermeasures.

On 20th and 21st October, witness PRH507 testified under protective measures. This person has been working in the field of electronic countermeasures, more specifically, jammers and he delivered the jamming systems for Mr. Hariri's convoy. He explains that a jammer works within a specified band of frequencies within which it distributes signals that prevent receivers from communicating with the transmitters that belong to them. The transmitters cannot reach the receivers anymore, because the signal is being blocked.

Witness PRH507 inspected the jammers in three of the vehicles in January 2005, one month before the assassination, and they were functioning properly at that time. He further speaks about the impact of weather conditions on the functioning of the systems. The witness is also asked about the possibility of someone having used a satellite telephone to set off the bomb; the witness explains that topographically, Beirut is a complicated city, and using a satellite telephone for such purpose would be difficult.

After the explosion, the jammers were examined at the Beirut police headquarters; all of the switches were in "on" position (though one was completely destroyed). Also the jammer in the fifth convoy vehicle was switched on. However, the antenna cables were violently torn out of the plugs, and the witness indicates that this is strange. It is impossible to know whether they had been working at the time of the explosion.

At the end of the first day of his testimony, cross-examination of this witness commenced, and continued into the next day. The witness was presented three different possibilities regarding the setting off of the bomb, and asked to comment upon those. The first concerns the theory of a suicide bomber who receives a call, and he can see the convoy and then triggers the detonation. In the second theory there is no suicide bomber, but a timer that receives a call from a transmitter via a relay post. The call is logged before the jammers turn up, and a few seconds later the bomb goes off. The witness says these two theories are feasible. The third theory, however, he does not find feasible. In this theory, a phone connected to a transmitter is hanged up by a person, and that hanging up triggers the bomb to go off. The witness indicates that the act of hanging up on the part of the transmitter becomes more unlikely the closer the convoy gets to the recipient. The witness says that he has never seen a device that triggers the detonation of a bomb through the mere act of hanging up, though he concedes such device may exist.

The witness then testifies about the second car in the convoy, and how they found that several of the cables had been professionally deinstalled, while others had been ripped out by sheer brute force, and the witness adds that "[i]t's difficult to imagine that it could have been caused by the explosion". He also tells the court that the control light of the jammers would have still been on in the second convoy car, in spite of them not being operational given that the linking equipment to the antennae was disassembled or cut, though they would control the device by checking their mobile phones which would have warned them of the mechanical problem.

The witness is confronted with a statement from another witness who worked close to the place of the assassination. The latter witness testifies that she was watching television when the convoy of Mr. Hariri passed by. Normally, the jammers would affect her television, but on this particular day, the television was not affected. Witness PRH507 indicated in response that normally, one would conclude from this that the jammers were switched off.

The subsequent Prosecution witness PRH256, testifying on 22 and shortly 23 October, was one of the drivers for the Hariri family. Normally he would drive the former Prime Minister around in Lebanon, but on occasion they would travel abroad. The witness was in charge of activating the jammers in his vehicle, and they were constantly turned on. On the particular day, 14 February 2005, the witness drove the ambulance that followed Mr. Hariri's convoy. During the route, the radio was turned on, though it was interrupted once or twice. Normally, he would drive at a distance behind the other vehicles. In case of an explosion, the ambulance and people driving it must be safe. He is asked extensively about the distance of his vehicle to the convoy itself, but the witness states he no longer remembers this precisely, though stresses it would be no more than 15 metres. However, in a previous statement, the witness had indicated that when driving 50 metres away from the convoy, they would be able to listen to the radio.

In a previous statement to the UN investigation commission, the witness had indicated he thought the convoy had been followed by a suspicious car, an Opel Senator car, though he didn't consider it a threat at the time.

On 12 December, Mr. Diab testified by video-link from the office in Beirut about jammers in Mr. Hariri's motorcade. The witness worked for the Hariri family as an electronic technician, working specifically on the jamming system in the cars of the motorcade. Mr. Diab was in charge of the security equipment an systems, and, besides his colleague witness PRH507 (mentioned above), he was the only person who was allowed to touch  the jamming devices.

Mr. Diab, his colleague witness PRH507, Mr. Hariri himself and Mr Yahya El-Arab's head of security knew their specifications. Two days prior to the attack, on 12 February 2005, the systems were checked by the bodyguards, and Mr. Diab testifies that it functioned properly, for if it hadn't, the bodyguards would have informed him. The witness further indicates that even if one of the jamming systems was turned off, the other two would still work.  The jammers sent strong signals in forward directions, and weaker signals behind. The last car in the convoy was the ambulance, as indeed testified by many other witnesses before. The witness testifies that it would have been difficult to tamper with the jamming system. Mr. Diab further testified that the cars in the convoy could use radios amongst themselves, although that depended where they were. 

Witness at Lebanon Tribunal describes the assassination: "And I saw hell"

On 16 October the next Prosecution witness was also a surviver from the convoy of Mr. Hariri that was attacked on 14 February 2005 and killed former Lebanese Prime Minister Mr. Rafik Hariri and 21 others.  Like the previous testimony, Mr. Amer Chehadeh was a security guard for Mr. Hariri and had been working for the Hariri family since 1985. When Mr. Hariri became Prime Minister the witness became a close protection officer for him until the time of his assassination. This witness also traveled with Mr. Hariri throughout Lebanon and abroad.

On the day of the assassination, there was only one car of the Internal Security Forces (ISF) in Mr. Hariri's convoy, that was the lead vehicle. When Mr. Hariri was still Prime Minister, he had much more security than afterwards. At the time of the assassination, there were only some 35 to 40 ISF members assigned to his protection, whilst during his premiership there were some 400 protecting him.

[Screenshot of Mr. Amer Chehadeh.]

Normally, Mr. Chehadeh did not drive in the convoy, but would only do so when the team was not complete.

In the weeks leading up to the bomb attack, Mr. Abou-Tareq, the head of security, had given instructions to the security personnel to remain alert, though he testifies that they never felt any danger or threat; they never expected what happened, they never thought of that. They sometimes used a decoy technique, where they would create a second convoy, sent to act as a decoy.

In each car of the convoy, it would be the person in charge of the car who was responsible for the turning on and off of the jamming device (see yesterday's blog for Witness 76 on jamming devices). To check whether the device worked, they would turn the radio on: if the radio would no longer be operational, the device would work. Even television sets in the nearby areas would stop working when the jammers were turned on. They discuss one of Mr. Chehadeh's colleagues who was absent on 14 February 2005, the day of the assassination. That person will also be testifying in court under the pseudonym PRH247. This person still works for the Hariri family.

Mr. Chehadeh further testifies about that day, that he did not notice anything that caused him concern on that day and when reaching the St. Georges Hotel; he saw nothing out of the ordinary. This witness remembers the explosion itself, and he testifies:

"As far as I remember, I heard a loud noise and the vehicle flew. It was no longer on the ground and then it hit the ground very hard. I asked the person next to me: Are you okay? He said: Yes. I went out of the car and looked to my back and I saw hell. It was fire everywhere, smoke, and I understood that it was an explosion."

In cross-examination, the witness is asked about the vehicles of Mr. Hariri's convoy, and who would have access to them overnight. This would be virtually anyone within the residence; there were no locked doors but CCTV cameras.

Regarding the jammers, the witness testifies that they would normally check whether they were working immediately after switching them on; they would not check them again whilst driving.

The witness testifies about an ambulance that was at quite a close distance behind the convoy. In an earlier statement (a public document, but unfortunately not available on the Court's website) the witness had indicated that he had heard that the radio was on in the ambulance. Given that the effective range of the jammers was approximately hundred meters, and the ambulance was much closer to the convoy than that, the logical conclusion would be that something was wrong with the jammers.

When they arrived at the St. Georges Hotel on the particular day, the witness had not seen anything out of the ordinary; he did not see any truck or van parked outside the hotel. Double-parked vehicles were a very normal sight in Lebanon, but he saw nothing unusual. This witness finished his testimony within the day, and the subsequent witness, Mr. Dia, was sitting in the same convoy car as Mr. Chehadeh on the day of the assassination.

Witness 76: Survivor of the convoy

In the week of 14 to 17 October 2014, the Special Tribunal for Lebanon saw three Prosecution witnesses testify about their experiences as victims of the attack on former Prime Minister Rafik Hariri's convoy on 14 February 2005.

The first witness testified on 14 and 15 October under protective measures and is indicated by the pseudonym PRH076, or in short "Witness 76". His identity and voice were obscured during his testimony in court.

[Screenshot of witness PRH076 testifying with protective measures.]

Witness 76 had been employed by Mr. Hariri since 1995 and from 2000 onwards had been his close protection officer.

In his testimony, Witness 76 explains the protection of Rafik Hariri, who at the time that he was Prime Minister was usually guarded by his personal body guards as well as officers from the Internal Security Forces (ISF). He normally drove an armoured car that provided protection against light bombs and bullets. The other cars in such convoy were not armoured. The witness testifies that the cars in the convoy were fitted with jammers, except for Mr. Hariri's vehicle. These devices would jam any remotely detonated explosives. Also on the 14th of February 2005, these jammers had been turned on. When the explosion occurred, the witness had lost his consciousness and when he awoke he was in the hospital; an hour after the explosion he realised that Mr. Hariri had been assassinated.

The witness testifies about meetings Mr. Hariri had had with Syrian President Bashar Al-Assad in Syria. He mentions one particular trip to Syria, when Mr. Hariri met the Syrian President. Mr Hariri returned from that meeting and he was very upset. According to the witness, they had discussed the extension of Mr. Hariri's presidential term; this was between 2004 and 2005. The witness describes that the bodyguards were warned about the threat posed by Hezbollah. Prior to the assassination, there had been an unspecified security threat that they had been informed of.

Witness 76 describes the details of the convoy on the day of the assassination up until the explosion took place. The witness also testifies about a threat he received some two years after the assassination, when he received a phone call and a person told him that "[i]f you do not change what you said to the Tribunal, you are going to follow your colleagues who died before you". The witness, however, does not seem too concerned about it when he tells the court that "if someone really wanted to hurt me, they would have done so after the first phone call that I've received".  The witness informs the court that all information relating to his testimony had been broadcast by some Lebanese television stations, and that all that information had been accessible to the public.

On the second day of his testimony in court, Witness 76 was cross-examined by defence counsel Mr. Edwards, representing the interests of defendant Badreddine. He confronted Witness 76 with evidence that not all the jammers in all the cars functioned properly on the day in question. A witness testifying in court next week would make such declaration in court, therewith undermining this witness's statement that all the jammers were functioning properly. The witness was also confronted with Mr. Wissam Al-Hasan, Mr. Hariri's chief of protocol who was absent at the day of the assassination, which arouse suspicion at a later stage, and this obviously forms an interesting theory for defence counsel representing the interests of the five absent accused. 

Another survivor from Mr. Hariri's convoy: Mr. Dia

The subsequent witness on 16 and 17 October was Mr. Mohammed Jamal Dia, another survivor from Mr. Hariri's convoy that was attacked on 14 February 2005, and he was sitting in the same car as the previous witness, Mr. Chehadeh (see here for our blog post on his testimony). The witness was the person in charge in that particular car at that day and he was specifically assigned to be on the lookout. He states he saw nothing out of the ordinary on that day.

Mr. Dia was a close protection officer for Mr. Hariri, having worked for the Hariri family since 1984. He would travel abroad with Mr. Hariri when required to do so. The witness describes the motorcade of Mr. Hariri, including the ISF (Internal Security Forces) jeep in front, the Mercedes that Mr. Hariri drove in, the ambulance at the back of the convoy and several other cars. This witness is also questioned about the jamming devices. When he was Prime Minister, the convoy had been much more extensive than afterwards. Also, when he was still Prime Minister, usually ahead of the convoy there would be an ISF reconnaissance drive to explore the area; this no longer happened when Mr. Hariri was no longer Prime Minister.

Regarding the jammers, the witness recalls on the 14th of February 2005, the day of the explosion, that the son of Mr. Hariri had tried to call him, but had failed to reach him due to the active jamming devices. This evidence is based on hearsay, the witness heard this four or five hours later, when he was at Quraitem Palace. 

On the second day of his testimony, the witness is asked about his (unnamed) colleague who was unexpectedly absent from work on 14 February 2005, due to migraine, from which he sometimes suffered. That day, Mr. Dia was sitting in the car next to the previous witness, Mr. Chehadeh, who was driving the vehicle. After the explosion, Mr. Dia lost his consciousness for a few minutes. After he regained his consciousness, he stepped out of the car. He saw a person lying on the ground, and he was able to identify that person as Mr. Hariri; he could identify him by his wedding ring, and he does not remember seeing his face, and it was clear that he had passed away. 

After the incident, the witness stayed at home for three months to rest. He is cross-examined by defence counsel Mr. Edwards for defendant Mr. Badreddine. Mr. Edwards asks the witness whether there was a debriefing after the attack. The witness denies this, but seems to have suggested something different in an earlier statement Mr. Dia made to the UNIIIC (UN commission investigating the assassination prior to the existence of the STL). In his earlier statement to the UNIIIC, the witness had mentioned authorization documents issued by Rustom Ghazaleh, the head of the Syrian security in Lebanon. When confronted with that information, the witness no longer recalls this information. 

The witness is then shown a security document, a laissez-passer, issued by Syria to Lebanese security personnel, belonging to (protected) witness PRH247. The witness confirms that such documents are very common in Lebanon. About the value of such cards, he states that they have no value, but some people like to have them, others don't.  The witness does not recall ever having been offered such a document, and he never obtained one. 

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!