Forth, back and forth on corporate criminal liability at the Special Tribunal for Lebanon

On Thursday 16 April 2015, a novel and important trial will begin at the Special Tribunal for Lebanon (“STL”). In a first for modern international criminal tribunals, Judge Lettieri will need to decide upon the guilt or innocence of a company. The prosecution will have until 22 April 2015 to present its case. The defence will have from 12 – 15 May 2015. Written closing briefs will be submitted 14 days after the presentation of evidence with oral closings seven days thereafter. This is the first in a series of three posts previewing what could be a significant few weeks for the field of international criminal law.

White smoke at the STL – a new era for ICL? (Credit: STL under Creative Commons)

This first post summarises the case and the STL’s back and forth on the question of corporate criminal liability. The second post, to be published on Monday 13 April 2015, will offer some comments on the STL’s approach. The third post, to be published on Thursday 16 April 2015, will preview some particular issues that might be expected to arise during the trial.

The defendants and the allegations

The trial involves two defendants: (1) Al Jadeed [Co] S.A.L. / New TV S.A.L. (N.T.V) (“Al Jadeed SAL”); and (2) Ms Karma al Khayat. Al Jadeed SAL is a Lebanese company which owns, manages and operates Al Jadeed TV. Ms Khayat was Al Jadeed TV’s Deputy Head of News and Political Programs and a shareholder.

The defendants are charged with two counts of contempt and interfering with the administration of justice. The charges relate to a series of broadcasts titled “Witnesses of the International Tribunal” aired on Al Jadeed TV in August 2012, together with internet posts on YouTube and the TV station’s website.

• The first count alleges that the defendants broadcast identifying information about “purported confidential witnesses” in the STL’s main trial. It is alleged that they thereby sought to undermine public confidence in the STL’s ability to protect confidential information and that this amounts to contempt of court.

• The second count alleges that the defendants failed to comply with a court order, issued by the STL, which directed that offending material be removed from websites.

The case became public in April 2014, when the STL published a previously confidential decision dated 31 January 2014. In that decision, the STL’s then President, Judge Baragwanath, approved charges in two cases, the second of which has since proceeded in parallel to that of Khayat and Al Jadeed SAL. The second case is mentioned here because it has added to the STL’s convoluted history on the question of corporate criminal liability. The defendants in the second case are: (1) Akhbar Beiruit SAL; and (2) Mr Ibrahim al Amin. Akhbar Beiruit SAL publishes a Lebanese newspaper. Mr Amin is the newspaper’s editor in chief. They too are charged with revealing confidential information thereby seeking to undermine public confidence in the STL. Judge Baragwanath recused himself from further involvement in either case. Judge Lettieri was on the STL’s rota for contempt issues for that calendar month so both cases passed to him.

Forth, back and forth … on the question of corporate liability

Round 1: Judge Baragwanath’s decision (31 January 2014)

In a decision citing Justinian, Jeremy Bentham, Victor Hugo and the law firm Clifford Chance, Judge Baragwanath held that despite an “ancient principle” that only natural persons can be charged with crimes (societas delinquere non potest) the STL’s inherent power to prosecute contempt extends to jurisdiction over legal persons.

Judge Baragwanath: pioneer of corporate liability (Credit: STL under creative commons)

Judge Baragwanath’s reasoning was short – a mere five pages. He reasoned that whereas the STL’s primary jurisdiction (over the Lebanese crimes of terrorism, offences against life and person integrity, illicit associations and failing to report) is limited to natural persons, its contempt jurisdiction is not so limited.

His explanation for this contrast was as follows. He presumed that “the principle societas delinquere non potest applies” and held that the use of gendered language in the provisions of the STL’s Statute relating to its primary jurisdiction precluded jurisdiction over legal persons in relation to those crimes. But he considered that the STL’s jurisdiction over contempt is different because it is inherent rather than provided for expressly in the STL’s Statute. This inherent jurisdiction is codified in Rule 60 bis of the STL’s (judge-made) Rules of Procedure as follows:

The Tribunal, in the exercise of its inherent power, may hold in contempt those who knowingly and wilfully interfere with its administration of justice … This includes, but is not limited to, the power to hold in contempt any person who…. (emphasis added)

Judge Baragwanath considered that his task was to interpret the reference to “person” in Rule 60 bis. Of “central importance” was Article 28 of the STL’s Statute, which requires that, in adopting Rules of Procedure, the judges:

shall be guided, as appropriate, by the Lebanese Code of Criminal Procedure, as well as by other reference materials reflecting the highest standards of international criminal procedure, with a view to ensuring a fair and expeditious trial.

Further, Rule 3 of the STL’s Rules “commands” that:

the Rules shall be interpreted in a manner consonant with the spirit of the Statute [and,] in order of precedence (i) principles of interpretation laid down in customary law […], (ii) international standards on human rights (iii) general principles of international criminal law and procedure, and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.

Judge Baragwanath also cited the STL Appeals Chamber’s earlier Decision on Applicable Law which, he considered, prioritised “effectiveness” as a principle of interpretation whereby he should:

search for the purpose and the object of a rule with a view to bringing to fruition as much as possible the potential of the rule.

Applying the above, Judge Baragwanath concluded that “person” in Rule 60 bis bore,

a different meaning compared to the STL’s Statute: the STL’s inherent jurisdiction over contempt was “very different” and,  in that context, “person” should be interpreted to include legal persons.

In reaching this conclusion, Judge Baragwanath explained that he was “mindful of its novelty in the international criminal justice context”. He relied on a 2012 survey of corporate criminal liability in Europe produced by Clifford Chance, which identified a “general trend in most countries towards bringing corporate entities to book”. He also relied on the Lebanese Criminal Code, Article 210 of which provides for corporate criminal responsibility for:

the actions of […] directors, management staff, representatives and employees when such actions are undertaken on behalf of or using the means provided by such legal persons.

The combination of the “general trend” and the specific Lebanese provision further persuaded Judge Baragwanath that the STL’s contempt jurisdiction encompassed legal persons, presumably rebutting his presumption that a general principle societas delinquere non potest which otherwise applied.

Round 2: Judge Lettieri in Al Jadeed SAL rejects Judge Baragwanath (24 July 2014)

With both contempt cases now before Judge Lettieri, the corporate defendant in Khayat and Al Jadeed SAL challenged the STL’s jurisdiction over legal persons. Judge Lettieri reached the opposite conclusion to Judge Baragwanath. His reasoning was similarly short – again only five pages.

Judge Lettieri noted that Rule 60 bis does not contemplate corporate liability explicitly. When interpreting “person”, Judge Lettieri emphasised the “basic canons of treaty interpretation” as invoked in Rule 3 which, in his view, compelled the finding that legal persons cannot be held liable for contempt. For Judge Lettieri, the “spirit” of the STL’s Statute was limited to natural persons and judges should not infer precise consequences from a lack of explicit language.

Judge Lettieri, contempt judge in both cases (Credit: STL under Creative Commons)

Judge Lettieri also noted that there is no reference to an “it” anywhere in the STL’s Statute and rejected the notion that the STL’s personal jurisdiction in contempt matters is broader than its personal jurisdiction for the assassination of Rafiq al-Hariri and the others who died in the bomb blast of 14 February 2005.

In relation to any principle of interpretation based on effectiveness, Judge Lettieri distinguished temporal and territorial jurisdiction, on the one hand, from personal jurisdiction, on the other hand. For contempt matters, which are ancillary to the STL’s primary purpose, Judge Lettieri reasoned that necessarily temporal and territorial jurisdiction are broader than the statutory provisions on the STL’s primary jurisdiction. To be restricted to the events of 2005 in Beirut would render any contempt jurisdiction meaningless. But Judge Lettieri considered that it was unnecessary and inappropriate to extend the STL’s personal jurisdiction to legal persons. In his view, any principle of interpretation based on effectiveness should not extend the meaning of “person” because proceedings against natural persons remained possible and were indeed being pursued against Ms Khayat.

Judge Lettieri further stressed that he could not discern a “consensus” in domestic systems which would permit the interpretation of “person” to include legal persons. Finally, he concluded that, even if there was ambiguity as to the interpretation of “person”, such ambiguity would be resolved in the corporate Accused’s favour. Judge Lettieri therefore dismissed the charges against the corporate defendant.

Round 3: Appeals Chamber overturns Judge Lettieri in Al Jadeed SAL (2 October 2014)

By a majority of 2:1, the Appeals Chamber reversed Judge Lettieri’s decision. Following reasoning of some 27 pages, it held that the STL’s contempt jurisdiction extends to legal persons. The majority consisted of Judge Nosworthy and Judge Hrdličková, whereas Judge Akoum dissented.

The majority held that Judge Lettieri erred when interpreting “person” in the STL’s Rules. The majority considered that “person” is ambiguous – it could refer to legal persons – but that rather than resolve such doubt in an Accused’s favour, the STL’s Rules prioritised an interpretation based on the “spirit” of the STL’s Statute. In the majority’s view, the “spirit” of the law is to make it effective and operational. For the majority, the interests of justice meant that they should interpret the STL’s contempt jurisdiction as encompassing legal persons.

The majority noted numerous domestic jurisdictions and developing standards of international human rights before concluding that, although international law “has not evolved to the stage where the subjection of a corporate person to criminal liability has become imperative on States”, corporate criminal liability is nevertheless “on the verge of attaining … the status of a general principle of law applicable under international law.”

Like Judge Baragwanath, the majority placed particular weight on Lebanese criminal law. The majority noted, however, that the STL’s Rule 3 only refers to Lebanon’s Code of Criminal Procedure rather substantive criminal law. And the STL’s Statute only refers to particular substantive provisions in the Lebanese Criminal Code (and does not address contempt). Nevertheless, the majority considered that Lebanese law was relevant as an “interpretative consideration” and, like Judge Baragwanath, the majority highlighted Article 210 of the Lebanese Criminal Code.

In the majority’s view, Judge Lettieri erred when he relied on the gendered language in the (English version of the) STL’s Statute as a basis to exclude jurisdiction over legal persons. Such gendered language does not appear in the French or Arabic versions. The majority also rejected the distinction drawn by Judge Lettieri between the STL’s personal jurisdiction, on the one hand, and its temporal or territorial jurisdiction on the other. In the majority’s view, Judge Lettieri was wrong to consider that personal jurisdiction could only be extended to legal persons if the STL’s contempt jurisdiction would otherwise be rendered meaningless.

Judge Akoum issued a 10-page dissent. In his view, the majority’s decision resulted in a “most unreasonable result” whereby the STL could convict a legal person for contempt, but a legal person would be immune from the STL’s primary jurisdiction. Judge Akoum considered that the STL’s provisions were insufficiently precise in order to provide jurisdiction over legal persons in contempt proceedings: “there must be some degree of positivism in the applicable law that indicates that responsibility can be extended to legal persons.” In the absence of express provisions, Judge Akoum thought that doubt should be resolved in the Accused’s favour. He concluded by warning that the absence of precise provisions in relation to contempt meant that a Contempt Judge would be faced with the difficult question of how to attribute the conduct of natural persons to a corporate entity and that any trial ingrained with such uncertainties “might be fatally compromised.”

Round 4: In Akhbar Beirut SAL Judge Lettieri declines to follow the Appeals Chamber’s decision in Al Jadeed SAL (6 November 2014)

It was then over to the second contempt case, also before Judge Lettieri. The corporate defendant in Akhbar Beirut SAL similarly challenged the STL’s jurisdiction over legal persons. Judge Lettieri therefore had to decide whether he was bound by the Appeals Chamber’s decision in Al Jadeed SAL.

In a much longer decision (46 pages overall), Judge Lettieri concluded that he was not bound. His reasoning on that point is interesting, but not the focus of this post. On the question of personal jurisdiction, Judge Lettieri refuted the Appeals Chamber’s reasoning, which he characterised as “misleading” and “impermissible judicial interpretation”. In his view, the natural and clear meaning of “person” excluded legal persons. In the absence of specific provisions, solidly rooted in concrete and precise notions, criminal law should not be engaged. Judge Lettieri explained that he could not fathom how the STL’s contempt jurisdiction could be interpreted based on “vague or aspirational” ideas like effectiveness or the interests of justice. Criminal provisions should be “clear and immediately perceivable”.

Judge Lettieri further explained that he was unable to find a single contemporary legal system where “person” means “legal person” without an explicit provision clarifying this to be so.  He criticised the Appeals Chamber’s interpretation as lacking any “real precedents”.  In Judge Lettieri’s view, “[a]ny persons who” in the STL’s Rules is not ambiguous: it refers to natural persons. He warned that to proceed with jurisdiction over legal persons without specific provisions would create a legal vacuum and risk arbitrary decision-making at trial.

Round 5: Appeals Chamber in Akhbar Beirut SAL overturns Judge Lettieri again (23 January 2015)

The question of the STL’s personal jurisdiction therefore returned to the Appeals Chamber, which reversed Judge Lettieri again. The panel, this time without Judge Akoum (the judges were Chamseddine, Nosworthy and Hrdličková) was unanimous. It confirmed the majority decision in Al Jadeed SAL and reiterated that prior reasoning, perhaps clarifying it somewhat with 10 pages of further reasoning.

The Appeals Chamber held that “person” is “generic and ambiguous”: it could refer to a legal or natural person. The Appeals Chamber further held that interpreting the term “person” did not collide with the legality principle because asserting jurisdiction did not create a new crime. The Appeals Chamber again reached for Lebanese law, recalling that the STL is “primarily mandated” to apply Lebanese criminal law rather than exclusively international law. It emphasised the STL’s “unique link” with Lebanese law and reasoned that it would be odd for a Lebanese company to face prosecution for contempt in Lebanon but enjoy impunity for similar acts before the STL.  The Appeals Chamber distinguished clarifying general principles through interpretation – which is legitimate – from transferring general principles to a novel area by way of analogy. In its view, the interpretation of “person” was the former rather than the latter and therefore entirely proper.

Conclusion

Proceedings will therefore go forth against both Al Jadeed SAL and Akhbar Beirut SAL. But it is the Khayat and Al Jadeed SAL trial that starts first – next Thursday, 16 April 2015.

The above summary cannot capture all the nuances of the five decisions issued over the past year: those decisions deluge the reader with latin, professed legal principles and extensive footnotes. The interesting result is that a judge who has repeatedly and forthrightly committed himself to the view that he does not have jurisdiction over legal persons, will nevertheless be called upon to decide a company’s guilt or innocence. In circumstances where he has stated that he would be operating in a legal vacuum, at risk of making arbitrary decisions.

The parties might have their work cut out to persuade Judge Lettieri what the details of corporate criminal liability look like. It promises to be a fascinating trial.