Wednesday, 8 October 2014

Criminal Liability for Legal Persons for Contempt returns to the STL

I have previously blogged about a decision before the Special Tribunal for Lebanon where it was held that the Tribunal's inherent jurisdiction to prosecute persons for contempt extended to legal, as well as natural, persons. That position was reversed in July of this year. Last week, however, an Appeals Panel of the STL determined that the Tribunal does indeed have jurisdiction over legal persons in this regard. It is a very interesting decision, and worthy of reading in full. Some of the more controversial elements of the decision are discussed below.

The Status of Corporate Criminal Liability in Domestic States

A large portion of the decision discusses the extent to which domestic jurisdictions criminalise corporations, and the Appeals Panel ultimately concludes (at para. 60) that 'the Contempt Judge erred in not giving sufficient weight to domestic practice under Rule 3(A)'. There are three key errors with this approach, in my view. 

First, a number of the sources cited refer to corporate liability only for specific offences, such as money laundering, fraud, or corporate manslaughter. None of the state practice cited extends jurisdiction to corporate entities solely for offences against the administration of justice. This is significant, because the judgment distinguishes between contempt offences and other offences within the jurisdiction of the court, saying that there can be corporate criminal liability for the former but not the latter.

Second, it is difficult to determine the grounds for finding that weight needs to be given to domestic practice under Rule 3(A), which states that the Rules 'shall be interpreted in a manner consonant with the spirit of the Statute, and in order of precedence': the principles of interpretation codified in the Vienna Convention on the Law of Treaties; international standards of human rights; general principles of international criminal law and procedure; and the Lebanese Code of Criminal Procedure. Principles of domestic criminal law and procedure are not listed in this Rule at all, and no solid reasoning is given as to why the contempt judge should have taken them into account. Perhaps we can say that the examples given show state practice, thereby giving rise to customary international law, but the crucial opinio juris element is missing. If states had believed themselves to be bound to impose criminal liability on legal persons, they surely would have included such persons within the jurisdiction of the International Criminal Court when drafting the Rome Statute. Nor can this state practice be seen as reflecting 'international standards on human rights', which refer to the standards set down in international human rights law conventions, nor the general principles of international criminal procedure, where international criminal law is further defined in the online version of the Rules as 'the branch of international law which deals with criminal conduct recognised by the international community as particularly heinous. These crimes are principally genocide, crimes against humanity, war crimes, and aggression.' It would have been much more coherent to base this findings not on the practice of domestic states globally, but on the practice in Lebanon itself. While the Lebanese Code of Criminal Procedure does not mention liability for legal persons, it is clear when read in conjunction with the Lebanese Criminal Code (i.e. the applicable law to the Tribunal) that criminal jurisdiction does extend to legal persons.

Lastly, as pointed out by Judge Akoum in his dissent, the majority of these domestic sources are explicit in stating that 'persons' shall be defined as meaning both legal and natural persons, or otherwise spell out in detail the extent of their personal jurisdiction to cover corporations. This goes against the Panel's position that the ordinary meaning of 'persons' in the context of criminal law should be taken to mean corporate entities as well as natural persons.

Literal vs. Teleological Interpretation

The Appeals Panel found that the Contempt Judge had committed an error of law by invoking 'an interpretation of the word "person" in Rule 60bis that was consonant with the letter of the Statute rather than its spirit'. This relates to its finding (in para 27) that it is 'a cardinal principle of interpretation that texts should be applied in a manner consistent with the spirit of the law…[which] necessitates ascertaining the aim and scope of the Statute as a whole'.

The approach of 'ascertaining the aim of the Statute as a whole' looks beyond the aim of the drafters in drafting a specific provision (in the context of the policy pursued by the statute) when interpreting the meaning of that provision. The Panel's holistic approach is unsupported by its own reference to James Salmond, who stated that judges must 'ascertain from other sources, as best they can, the true intention which has thus failed to attain perfect expression.' The Panel might have found better support for their approach in some of the EU law cases that have referred to the aims of EU law as a whole. The approach taken is not guided by any apparent intention to include corporate entities within the scope of the STL's jurisdiction that was obfuscated by unclear wording, but rather by a general aim of the Statute as a whole to end impunity and bring perpetrators of terrorist crimes to justice. This is a slippery slope, as pointed out by Judge Akoum, who said that 'considerations against impunity [cannot] be read as carte blanche, allowing anything and everything to be done merely because they secure the Tribunal's noble aims.'

The 'Unconstrained' Nature of Inherent Jurisdiction

We might also be worried by the reference to the Tribunal's inherent jurisdiction over contempt offences as being 'unconstrained' (para 76). According to the Panel, 'our jurisdiction remains undefined, only to be determined upon the crystallisation of circumstances that call for a judicial pronouncement'. To draw this point to its furthest conclusion, we might wonder about what kinds of acts that interfere with the administration of justice that are not listed in Rule 60bis might also fall within the STL's unconstrained jurisdiction over such offences. If the presiding judge's pen was stolen by an intern, could he or she potentially find themselves in the dock for interfering with the administration of justice? And, seeing as the temporal jurisdiction over such offences is equally unconstrained, what about that person who distracted the judge in law school when he or she was trying to learn about a key principle of criminal law? These examples are obviously fantastical but they underscore a problem with allowing, through judge-made rules, unfettered jurisdiction over a matter that can give rise to up to seven years in prison and/or a hefty fine. 

The Future for Corporate Criminal Liability

The decision will be welcomed as opening the door for liability for corporations in other matters, and we might muse whether this was the underlying aim, given statements like 'modern history is replete with examples where great harm has been caused by corporations with the advantages that result from the recognition of their status as legal persons' in the judgment. It must be noted that the decision is actually quite convincing in parts. For example, I made the point in a previous post on this matter that the fair trial provisions refer to 'he or she', not 'it', but the Appeals Panel rightly pointed out that this gendered language does not appear in the French or Arabic versions of the Statute. 

Where this most recent decision falls down is in the illogical consequences of its ultimate conclusion - that corporate liability only attaches to contempt offences. Perhaps a wiser approach would have been to base the decision on the fact that the tribunal applies Lebanese law and that Lebanese law attaches criminal jurisdiction to legal, as well as natural, persons. Therefore, it could be argued, legal persons can fall within the jurisdiction of the Tribunal where offences are undertaken on behalf of or through that legal person, pursuant to Article 210 of the Lebanese criminal code. This rather straightforward point is obfuscated and diluted by the lengthy reference to extraneous matters, and some questionable legal conclusions, in this most recent decision.

1 comment:

Dov Jacobs said...

Yvonne, I have also blogged on this (see here I think you are far too generous with the decision. Happy to hear your thoughts.

Also, I'm not convinced with your concluding comment. The STL does not have jurisdiction to apply the Lebanese Criminal Code generally, only in terms of material jurisdiction and for very specific provisions (which do not include contempt by the way) laid down (albeit vaguely) in Article 2. The personal jurisdiction of the tribunal is set down in Article 1, which makes no reference to domestic Lebanese Law. So I find your point not so easy to susbstantiate.