This guest blog is written by Anne-Marie Verwiel and Karlijn van der Voort, defense lawyers specialized in international criminal law who are monitoring the proceedings at the Special Tribunal for Lebanon (http://lebanontribunal.blogspot.nl/). The views expressed below do not necessarily reflect the views of the Open Society Justice Initiative.
On September 18, 2015, the contempt judge at the Special Tribunal for Lebanon (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, Tahsin Al Khayat, have been charged with two counts of contempt of court. The television station produced a series of episodes on supposed witnesses of the tribunal, which were broadcast in Lebanon in August 2012 and subsequently put online. 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. They 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. The contempt judge acquitted Al Jadeed TV on both counts; Ms. Khayat was also acquitted on the first count, but found guilty on the second count.
The proceedings in this particular case have been problematic, in particular in relation to the issue of the tribunal’s jurisdiction over legal persons, such as corporations, as opposed to natural persons, such as individuals. At the beginning of the case, the defense contested the STL’s jurisdiction over legal persons and argued that the STL only had jurisdiction over natural persons. The contempt judge granted the defense’s motion and dismissed the charges against the news corporation, finding that there was no basis in the rule on contempt of court (Rule 60bis) for extending the tribunal’s jurisdiction to legal persons.
However, the appeals chamber reversed this decision. Emphasizing developing international standards on corporate criminal liability, the appeals chamber found that Rule 60bis encompassed legal persons. In earlier posts on this blog and on our own blog, we have criticized the manner in which the appeals chamber came to this conclusion.
This issue again came up in the contempt judgment. The contempt judge stated that in reversing his original jurisdiction decision, the appeals chamber failed to provide clear guidance on how to attribute criminal liability to legal persons charged with contempt at the STL. Therefore, the contempt judge concluded, he had to “identify these elements, recognizing that […] no international model of corporate criminal liability has emerged” (para. 55 of the Contempt Judgment). The contempt judge thus had to follow the appeals chamber reasoning (overturning his own decision) and—based on the principle that the court knows the law—determine and apply the law with respect to attributing corporate liability.
The contempt judge first concluded that “[n]either the Statute nor the Rules provide an answer,” and that “there is no relevant international convention with respect to the elements of corporate liability, nor international custom or general principles of law (there is indeed nothing approaching a universal model or a consensus across national systems) on which I can rely” (paras. 59 and 61). In the absence of any international consensus on this issue, he relied on Lebanese law on corporate liability, also noting that the corporation accused is based and operating in Lebanon (para. 68).
The applicable Lebanese provision, Article 210 of the Lebanese Criminal Code, states, “legal persons shall be criminally responsible for the activities of their directors, members of the administration, representatives and employees when such activities are undertaken on behalf of or using the means of such legal persons.” The contempt judge used this article, and the applicable jurisprudence of the Lebanese Court of Cassation, to establish the material elements for attributing criminal responsibility to the corporation accused for the two counts of contempt of court. This approach raises various questions, including whether the tribunal would find jurisdiction over similar behavior if committed by a corporation based outside of Lebanon, and what material elements would apply in such an instance. For example, it is unclear whether the court would rely on Lebanese law when considering the behavior of a non-Lebanese corporation.
The judge acquitted the corporation of the two contempt counts. He concluded that the amicus prosecutor had failed to show that the disclosure of identifying information of purportedly confidential witnesses was objectively likely to undermine public confidence in the STL’s ability to protect the confidentiality of witnesses’ information. The judge found that the broadcasts allowed for the identification of three purported witnesses, but found no proof that this created the likelihood of undermining public confidence in the tribunal. In coming to this conclusion, the contempt judge found particularly relevant that the evidence did not show that these three individuals were harmed in any way as a result of being identified as STL witnesses (although he also found that no actual proof of harm is required). Consequently, he held, the amicus prosecutor had failed to prove the actus reus of the crime, and acquitted both accused on this count.
The second count concerned the violation of a court order to remove the episodes from Al Jadeed’s website and its YouTube channel. It seems contradictory that the publication of specific information in itself does not constitute contempt of court, but the failure to remove this same information can lead to a conviction of contempt of court. However, the mere fact that one violates a clear court order can give rise to contempt of court. The contempt judge first established whether Ms. Khayat had in fact received the court order. This was highly contested by the accused, who denied having received the court order. The judge concluded that Ms. Khayat had in fact received the court order (and was at least willfully blind to the order), that Ms. Khayat was responsible for the publication of the episodes, and that she had the ability to remove them from the websites, but failed to do so in spite of the order. The amicus prosecutor, however, failed to prove that Ms. Khayat’s behavior could be attributed to Al Jadeed TV. Therefore, the judge acquitted the corporation on the second count.
Though the case is groundbreaking in expanding the STL’s jurisdiction to include corporate criminal liability, the judgment did not find the particular corporation criminally liable. Further, the interpretation of the material elements of the crime will not be easily applied in a situation outside the Lebanese context. The appeals chamber may however very well overturn the contempt judge’s verdict, especially since it made such an effort to create the legal space to prosecute corporations for contempt of court, and might have a different opinion on the applicable law and elements of the crime. The amicus prosecutor already filed his appeal brief, so the last word has not yet been spoken on this case.