Corporate liability for contempt at the Special Tribunal for Lebanon: the saga continues

I have blogged previously on decisions (see here and here) regarding the STL's evolving jurisprudence on the liability of corporations for offences against the administration of justice. As will be recalled, on 2 October last year, the Appeals Panel of the STL overturned Contempt Judge Lettieri's finding that the Tribunal could not have jurisdiction over legal persons, and affirmed the case against the New TV news corporation. A little over a month later, Judge Lettieri once again ruled that the Tribunal had no jurisdiction over legal persons, this time in relation to the Al-Akhbar Beirut newspaper. Perhaps unsurprisingly, the Appeals Panel also overturned this finding in its most recent (and presumably, final) decision on the matter. 

The decision is, to my mind, the most coherent on the issue of jurisdiction over corporations for contempt offences. In line with an argument I made in my last blog post on this matter, it finds the strongest justification for such jurisdiction in the fact that Lebanese law, which the STL applies, provides for jurisdiction over corporations. In the words of the Appeals Panel (para 59), 'It would be an oddity for a Lebanese company to face criminal sanction in Lebanon for interfering with the administration of justice with respect to cases before Lebanese Courts and at the same time enjoy impunity for similar acts before an internationalised Tribunal guided by Lebanese law in carrying out its judicial work.' This is much more convincing than earlier decisions that referred to the vague principle of ending impunity or strained textual analyses of the Statute and Rules in finding that such jurisdiction over legal persons existed.

The reference to the tribunal as being 'internationalised', as opposed to the more frequent line of it being a 'tribunal of international character', is noteworthy. Indeed, a factsheet on the STL's website conflates the concepts of 'international' and 'hybrid or internationalised' tribunals by calling the STL both at different parts of the document. So, which is it? Following Schabas's suggestion in Unimaginable Atrocities, I think the wisest approach to distinguishing between 'international' and 'hybrid' tribunals is not to look at the judicial composition or the crimes prosecuted, but rather to ask whether the tribunal could be closed down by means of passing a domestic law. This is not the case for the STL, nor was it for the SCSL, so they are international tribunals. The ECCC, War Crimes Chambers in BiH and the SPSC, by contrast, were all founded by domestic legislation, and thus they are classified as 'internationalised' or 'hybrid' tribunals.

It is unfortunate that the decision did not directly tackle the issue of stare decisis, or whether lower chambers of the STL are bound by earlier appeals decisions. Instead, it referred rather vaguely to the principles of 'consistency, certainty and predictability' and underscored the similarities between this case and the New TV case. It found that it would have been 'preferable and important for judicial certainty' for the Contempt Judge to have followed the earlier Appeals Panel decision on that basis. In his November 2014 decision, Judge Lettieri had expressly dismissed the 'consistency' argument by referring to the fragmentation that would be caused by finding that one international criminal tribunal had jurisdiction over legal persons, where other tribunals do not have such jurisdiction. Rather than overturning the decision on such malleable principles as consistency, the Appeals Panel might have been better served by more explicitly following the approach taken by other tribunals, that existing jurisprudence should be departed from only where careful consideration has been given as to whether there are 'cogent reasons in the interests of justice' for such a departure. Ironically, the Appeals Panels decision leaves us without the 'certainty and predictability' it values in this respect.