NOTE : Coup de théâtre at the Special Tribunal for Lebanon over Corporate Criminal Liability

Nadia BERNAZ

As I discussed in a previous post, the Appeals Panel of the Special Tribunal for Lebanon unexpectedly decided in October that the Tribunal has jurisdiction over corporations in contempt proceedings. The decision was taken in relation to case STL-14-05, a contempt case against a news corporation, New TV S.A.L., and Ms Karma Khayat, the company’s Deputy Head of News and Political Programmes Manager. They are both accused of an offence against the administration of justice for having disclosed names of witnesses of the Tribunal in a TV programme.

Here is the coup de théâtre: in a decision on jurisdiction made public today, the contempt judge of the Tribunal held in the twin case STL-14-06, a contempt case against another news corporation, Akhbar Beirut S.A.L. (who owns the newspaper Al Akhbar in which similar information about witnesses was published), and Mr Al Amin, the newspaper’s editor in-chief and chairman of the board of directors, that he was not bound by the Appeals Panel decision. In the contempt judge’s view, the Tribunal does not have jurisdiction over corporate defendants. This in turn was unexpected as it is not every day that international criminal tribunal’s appeals decisions get disregarded. Clearly, corporate criminal liability under international law is a highly contentious issue.

Why did the contempt judge deliberately choose to disregard the Appeals Panel’s decision?

1. In his view, it is a highly debatable decision, with which he strongly disagrees [para. 35-65]. In a nutshell, he considered that the Appeals Panel was wrong in their interpretation of the word “person”, that their use of analogy was improper, that the lack of existing legal precedents was highly problematic and that it was wrong to have recourse to teleological interpretation.

2. He nevertheless acknowledged that he may not have a choice and may be bound to follow the Appeals Panel decision, whether or not he agrees with it [para. 66].

3. In the end he decided that he was not bound by the Appeals Panel’s decision, and he put forward four reasons for this:

a/ because it is an isolated, and indeed unique decision. No other international tribunal has ever prosecuted a corporation for contempt [para. 67].

b/ because there is no stare decisis rule before international criminal tribunals so, being asked to rule on the STL-14-06 case, he is formally not bound by an Appeal Panel’s decision in the STL-14-05 case [para. 68-71].

c/ because the decision of the 3-judge Appeals Panel was not unanimous but instead included a detailed and compelling dissenting opinion [para. 72].

d/ because in his view the STL-14-06 case can be distinguished from the STL-14-05 case. To him, not prosecuting Akhbar Beirut S.A.L. in the STL-14-06 case would not lead to impunity (avoiding impunity was one of the reasons why the Appeals Panel held that the Tribunal should have jurisdiction over corporations) because Mr Al Amin, the newspaper’s editor in-chief and chairman of the board of directors, is also an accused. Although it is not entirely clear, I assume he considers that the STL-14-05 is different in that respect because the natural person charged with contempt in this case, Ms Karma Khayat, is “only” Deputy Head of News and Political Programmes Manager, and not chairman of the board of directors, and therefore cannot be said to represent the company as such. Arguably, it would be wrong to have her “pay” for the acts committed, and to leave the company off the hook.

This important decision is now likely to be appealed and the Appeals Panel will have to look at the issue of jurisdiction over corporate defendants once again. Watch this space for more on this when the Appeal Decision comes out.

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