From the Tribunal that brought you an international customary law of terrorism and trials in absentia, a new dream has come true: international criminal corporate liability…
Last week, the Special Tribunal for Lebanon made public a January decision in relation to the initiation of contempt proceedings for the publication, among other things, of alleged witnesses.
There isn’t much point in revisiting here the idea itself that judges are free to include issues of contempt into the rules of procedure and evidence, on the basis of “inherent powers”, even when it is not in the Statute. That ship has apparently sailed since the ICTY, even if it is noteworthy that both the MICT and the ICC include such issues in the statute rather than the rules, which would tend to show that this might not be such an “inherent power” after all. I discuss this issue at more length here.
In fact, while a strong defender of a strict interpretation of the principle of legality, I agree with Judge Baragwanath that it is not an issue in the particular instance because, however shoddy their legal foundations may be, contempt prosecutions have been around for a while now in international criminal proceedings and therefore no defendant can reasonably claim that it was not foreseeable that such proceedings would possibly be initiated for conduct such as the one under consideration here.
I won’t delve either on the discussion on the compatibility of the contempt provisions with freedom of the press. As a argue here, international judges misapply, in my view, the proportionality test that is required by human rights case law, when a balance needs to be struck in the curtailing of some rights. Judge Baragwanath’s reasoning, which is done in the abstract, essentially implies that the application of rule 60bis can NEVER violate the freedom of the press because “the media must comply with the law” (decision, §16). However, the proportionality test should be applied on a case by case basis and there cannot be a blanket seal of approval for any provision.
No, what really deserves attention is this new revolution proposed by the STL: the recognition that legal persons can be the target of contempt proceedings. In other words, the STL has now recognized corporate liability in international criminal law. As Judge Baragwanath acknowledges in the decision, this is a first in contempt proceedings, so it required some explanation on his part. Continue reading