On Thursday the 16th of April, the trial against journalist Karma Al Khayat and television network Al Jadeed started at the Special Tribunal for Lebanon (STL) in Leidschendam, the Netherlands. Both Ms. Karma Al Khayat and Al Jadeed are charged with contempt of court and obstruction of justice. Because the alleged crimes are media-related and the accused have argued that the trial threatens the freedom of press, the case has already attracted much attention. However, what is more striking is the fact that this is the first time a legal person is prosecuted by an international or internationalized criminal court.
By F. de Jonge
Previous international courts and tribunals have only prosecuted natural persons and the concept of corporate criminal liability is highly contested in international criminal law. This blog will set out the facts and legal history of the case, as well as a short history of corporate criminal liability in international criminal law and a short review of the two decisions relevant to this case.
Facts and Legal History
On 31 January 2014, the President of the STL, acting as a Contempt Judge to review allegations of contempt of court, issued a decision which stated that there was prima facie evidence that Al Jadeed and Ms. Karma Al Khayat, who is Deputy Head of News and Political Programmes at Al Jadeed, knowingly and willfully interfered with the administration of justice by publishing information on confidential witnesses. In August 2012, Al Jadeed had broadcasted a series on witnesses testifying in the Ayyash et al. case before the STL, which provided viewers with identifying information about eleven witnesses and the evidence provided to the STL by these witnesses. After the series was broadcasted, it was additionally published on both the website of Al Jadeed and its YouTube channel. Subsequently, the Pre-Trial Judge in the Ayyash et al. case ordered that any materials related to the witnesses should be removed from Al Jadeed’s website and YouTube channel. Both the accused failed to comply with this order. These acts constituted a prima facie breach of Rule 60 bis (A) and Rule 60 bis (A) (iii) of the STL Rules of Procedure and Evidence (RPE), according to the President. The President subsequently directed the Registry of the STL to appoint an Amicus Curiae Prosecutor to prosecute those involved and recused himself as Contempt Judge. However, the Defense challenged the jurisdiction of the STL over legal persons, which was accepted by the Contempt Judge, but rejected by the Appeals Chamber. Thus the case against both defendants was allowed to go trial.
Corporate Criminal Liability in History
The question of corporate criminal liability under international law is not a recent one. Discussions on its inclusion in international law can be traced back to the International Military Tribunal of Nuremberg, created after the Second World War. This tribunal, created to prosecute German officials, had the ability under its charter to declare any group or organization a criminal organization. However, it has been argued that this provision was included simply as a tool to ensure criminal accountability for individuals who were members of such criminal organizations – not to provide for corporate criminal accountability. Indeed, it was the Nuremberg Tribunal which held that crimes are “committed by men, not by abstract entities”.
The option of corporate criminal liability was not included in the Statutes of the two ad hoc international criminal tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), but was again discussed during the negotiations on the Rome Statute of the International Criminal Court. Nevertheless, the negotiating parties rejected the possibility because of practical considerations and the fact that some of the major legal systems in the world did not provide for corporate criminal liability in their respective criminal codes.
The STL’s Perspective
So why did the President of the STL and subsequently the Appeals Chamber, take a different course of action? Two things must be kept in mind in this regard. First of all, the accused in this case are prosecuted for contempt of court – not for any of the core crimes under the jurisdiction of the STL, and not for the core crimes under international criminal law: genocide, war crimes and crimes against humanity. This argument was used by the President in his first decision. The President stated that, although Articles 2 and 3 of the STL Statute which concern the personal jurisdiction of the STL only provide for individual criminal liability, Rule 60 bis (A) RPE does not limit itself to individuals – it simply refers to “persons”. According to the President, there was an important difference between liability for crimes under the STL Statute and contempt of court. The protection of the fair and expeditious administration of justice requires that liability for contempt is not limited to natural persons, especially as “corporate entities hold great power in their ability to publicly broadcast and otherwise disseminate information.”
Secondly, one can consider the STL to be more “internationalized” than “international” in nature, especially when compared to criminal tribunals such as the ICTY and ICTR. While these two tribunals apply international law, the STL applies Lebanese law with some modifications – according to Article 2 of the STL Statute. Under Lebanese criminal law, more specifically under Article 210 (2) of the Lebanese Criminal Code, legal persons can be held criminally accountable. This argument, amongst others, was applied by the Appeals Chamber to uphold the decision of the President. Both the Contempt Judge and the Appeals Chamber referred to this provision to support their arguments. Additionally, the Appeals Chamber undertakes an extensive examination of the principles of interpretation according to the Vienna Convention on the Law of Treaties (1969), international standards on human rights, general principles of international criminal law and procedure and a multitude of domestic jurisdictions, to come to the conclusion that legal entities can be held accountable for contempt of court. In the end, the true impact of these decisions is limited, as they only concern the offence of contempt and are, at least partially, based on Lebanese law. Nevertheless, both decisions have received considerable criticism.
It will be interesting to see how the proceedings will unfold in the coming weeks. This week the Amicus Curiae Prosecutor will continue presenting his case and from 12 to 15 May the Defense will present its arguments to the court.
- Alamuddin, A. (et al.) (eds.),The Special Tribunal for Lebanon: Law and Practice, Oxford, Oxford University Press, 2014.
- Ambos, K., “Article 25: Individual Criminal Responsibility”, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, München; Oxford, Beck; Hart, 2008, pp. 743-770.
- Fauchald, O. and Stigen, J., “Corporate Responsibility before International Institutions”, The George Washington International Law Review, 40 (2009), pp. 1025-1100.
- Frulli, M., “Jurisdiction Ratione Personae”, in Cassesse (et al.) (eds.), The Rome Statute of the ICC: A Commentary, Oxford, Oxford University Press, 2002, pp. 527-543.
- Verrydt, L., “Corporate Involvement in International Crimes: An Analysis of the Hypothetical Extension of the International Criminal Court’s Mandate to Include Legal Persons”, in Brodowski, D. (et al.) (eds.), Regulating Corporate Criminal Liability, Cham, Springer, 2014, pp. 281-296.
- Bernaz, N., “The New TV S.A.L. Case at the Special Tribunal for Lebanon – Corporate Criminal Liability under International Law”, Blog at Rights as Usual, 31 October 2014.
- Jacobs, D., “The Dream Factory Strikes Again: the Special Tribunal for Lebanon recognizes International Criminal Corporate Liability”, Blog at Spread the Jam, 28 April 2014.
- Jacobs, D., “A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons”, Blog at Spread the Jam, 6 October 2014.
- McDermott Rees, Y., “Criminal Liability for Legal Persons for Contempt returns to the STL”, Blog at PhD Studies in Human Rights, 8 October 2014.
- McDermott Rees, Y., “Corporate criminal responsibility at the Special Tribunal for Lebanon”, Blog at PhD Studies in Human Rights, 17 May 2014.