Saturday, 17 May 2014

Corporate criminal responsibility at the Special Tribunal for Lebanon

In a fascinating order from January of this year that was made public last month, Judge Baragwanath of the Special Tribunal for Lebanon determined that two media organisations, together with two officials from the organisations, could be prosecuted for contempt. The question of whether corporations can be held accountable for international crimes has been the subject of much debate over the past number of years, and this is the first time that an international criminal tribunal has found itself to have jurisdiction over corporations.

Article 1 of the STL's Statute states that the Tribunal 'shall have jurisdiction over persons responsible...'. The contempt judge did not mention this provision in his analysis, but noted that 'no ... provision of the Statute or Rules expressly limits the scope of contempt proceedings to natural persons'.  Surprisingly, Article 31 of the Vienna Convention on the Law of Treaties is not mentioned once in the decision. It would be difficult to argue that the ordinary meaning of the term 'person' encompasses legal, as well as natural, persons, especially in the context of a Statute that mentions 'his or her', 'him or her' and 'himself or herself' in relation to the accused no less than 28 times, and does not use the term 'it' in relation to the accused once.

To overcome this hurdle, Judge Baragwanath rather bizarrely concluded (at paras. 23-24) that the Tribunal cannot have jurisdiction over legal persons for the core crimes, but that 'whether a legal person can be an accused under Articles 2 and 3 of the Statute is a very different question from whether a legal person can be held in contempt for knowingly and wilfully interfering with the administration of justice'. I am not sure that the two matters are so very different. Both concern the jurisdiction of the Tribunal - either it has jurisdiction over corporations, or it doesn't.

The contempt judge drew the distinction by stating that offences against the administration of justice are designed to preserve the integrity of the judicial process and 'under the highest procedural standards, corporate entities cannot be any more entitled than natural persons to interfere with the judicial process'. But this is not entirely convincing. It seems to suggest that corporate entities somehow have the capacity to decide to interfere with the judicial process, independently of those who are in charge of them, which is of course ridiculous. I am not convinced of the necessity of the extension of jurisdiction to the corporations in this case. The ICTY has had confidential information leaked by media organisations in the past, and has successfully prosecuted their editors and/or employees for contempt. It is not as if the responsible individuals from within the organisations were unidentifiable in the present case - they are now the co-accused of the companies that they work for!

Moreover, the reference to 'the highest procedural standards' seems to be out of place. The majority of the 'him/her' references in the Statute, which the judge sought to suggest did not apply in contempt cases, are found in Articles 15 and 16, on the rights of suspects and the accused. But of course, the same rights of the accused must apply, whether he or she is charged with the most serious crimes within the jurisdiction of the court, or offences against the administration of justice. The distinction between the two types of offence falling within the jurisdiction of the court on this basis simply does not withstand logical analysis, and might actually be read as suggesting that the individual charged with contempt is entitled to less than the highest standards of fairness.

While some might welcome the widening of the door to extending jurisdiction to corporations, the quality of the reasoning is questionable, This is another example of judicial activism from the Special Tribunal for Lebanon, and perhaps not its most well-reasoned decision to date.

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