The Dream Factory Strikes Again: the Special Tribunal for Lebanon recognizes International Criminal Corporate Liability

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.

The starting point of the reasoning is that the statute and the RPE do not define what a “person” is. In fact, the Statute of the STL, contrary to the Rome Statute, does not limit the personal jurisdiction of the tribunal to natural persons. These provisions therefore need to be interpreted in order for their meaning to be identified.

Judge Baragwanath therefore refers to the rules of interpretation of the RPE as laid down in Rule 3 of the RPE:

The Rules shall be interpreted in a manner consonant with the spirit of the Statute and, in order of precedence, (i) the principles of interpretation laid down in customary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969), (ii) international standards on human rights (iii) the general principles of international criminal law and procedure, and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.

Personally, I don’t know what the “spirit of the Statute” is. I know that legal interpretation is not an exact science, but it needn’t be presented a ouija board session either! How hard is it to say that “the RPE shall be interpreted in conformity with the Statute”? Putting that aside, I always found discussions on the rules of interpretation slightly schizophrenic when coming from those who draft the rules to be interpreted, such as the RPE of the ICTY or the STL, or the Regulations of Court at the ICC.

In any case, this reference to the Rules of interpretation is purely for show, because they don’t reappear in the remainder of the decision. Essentially, what Judge Baragwanath does is give us his (moral) opinion on the justice of holding legal persons liable for contempt (or anything else for that matter, as we will see below).

What makes Judge Baragwanath’s life complicated is that even though both the Statute and the RPE use the word “person” without defining it, he has to find a way to say that it should be defined differently in both situations because it is commonly accepted that ICL, at this point in time, only applies to natural persons. And this is what makes his reasoning all the less convincing.

Indeed, he first explains, in one paragraph (§22), why the personal jurisdiction of the Statute itself should be only natural personal, by, for example, referring to the modes of liability, or by saying that there is “no reference to an “it” in the context of an accused anywhere in the statute”. But there is no “it” either in rule 60bis. Moreover, he considers that that there should be a presumption that the principle of societas delinquere non potest applies (§23). I don’t see why and there is no explanation on where this presumption might come from. What Judge Baragwanath should have done is actually apply the rules of interpretation of the statute and checked, for example, what the drafters of the Statute actually intended.

Moving on to the RPE, Judge Baragwanath finds a justification for having a different definition of “person” for the purposes of the Statute and the RPE, by saying that these are two different questions (§24). But I’m not sure I see how. We are talking about the personal jurisdiction of a criminal court. If the legislator gives that court a jurisdiction limited to natural persons, the court (i.e, its judges) cannot proprio motu extend that jurisdiction, irrespective of the material jurisdiction that might be considered. These are two separate issues: 1) who can be prosecuted and 2) for what can they be prosecuted.

Judge Baragwanath is therefore trying to have his cake and eat it. This is illustrated by the remainder of the decision, which struggles to find arguments specific to contempt. For example, the claim that “under the highest procedural standards [I don’t know what that means], corporate entities cannot be any more entitled than natural persons to interfere with the judicial process”, applies equally to any crime within the jurisdiction of the Court. Indeed, once you accept the principle of corporate liability, why should corporate entities be any more entitled than natural entities to commit genocide, crimes against humanity or acts of terrorism?

It therefore turns out that all the reasoning of the single Judge revolves around the need for corporate responsibility in general, rather than for contempt.

There is a reference to a number of civil jurisdictions, notably Lebanon, which provide for corporate criminal responsibility, as part of a trend in that direction, and the following conclusion: “it would be bizarre for this Tribunal to deny protection of its due process against corporate interference because of an ancient maxim [societas delinquere non potest] that the state it serves has rejected” (§26). But, again, isn’t that equally true for the crimes within the jurisdiction of the Court? If a corporate entity were behind the Hariri assassination, would it not be “bizarre” to deny victims justice against such entity that they would have gotten before a Lebanese court for the same acts?

The same idea applies to the following claim (§28):

It would not only be naïve but dangerous to accept that only natural persons can interfere with the administration of justice. To limit criminal liability for contempt to individual natural persons risks undermining the justice process; for the actual and most powerful culprits of any proved interference with justice would go untried .

How is that not true of criminal liability for worse crimes than contempt, such as genocide or crimes against humanity, especially given the collective nature of these acts? Moreover, and more importantly, the opinion, however justified, that a rule is “naive and dangerous” does not give a judge the power to just change it.

It therefore seems that taking a “moral” position is risky in this case, because it would justify extending the whole personal jurisdiction of the tribunal to corporate entities, because not doing so, would be immoral. This is illustrated by the concluding sentence of Judge Baragwanath on this point: “I decline to impute to the Plenary [of Judges] an intention to immunize legal persons against liability for interfering with due process” (§28). Fair enough, but seen through this lens, this means that Judge Baragwanath is imputing to the drafters of the Statute (i.e, Lebanon and the UN) the intention to immunize legal persons against liability for murder and terrorism. That’s not very nice of them…

In sum, I have two problems with the decision.

First of all, I find it inconsistent in the way it attempts to distinguish between the Statute and the RPE because the arguments raised in favor of corporate responsibility for contempt apply equally to corporate responsibility for any criminal conduct.

Second of all, I find that the arguments raised in the decision belong more to a policy paper than a judicial decision. The claim that a rule is preferable does not itself ground its legal status, nor grant those who are tasked with applying the law the power to design it. I would have in fact much preferred the single Judge to stick to the litteral reading of the RPE, which indeed does not specify what a “person” means, rather than these policy arguments.

Now, let me be clear, I do not have a problem, on principle, with corporate liability. I’ve always found the arguments against it ultimately weak because they usually rely on this idea that legal persons cannot have an “intent” that can be determined, while forgetting that the whole notion of “intent”, even applied to individuals, is a legal fiction to start with, which itself stems from the philosophical fiction that we are autonomous moral beings who actually consciously and freely make decisions and therefore should bear responsibility for their consequences. Anyone who has spend five minutes in the real world knows that this does not in fact take us very far in understanding human action.

But all this is beside the point, because, ultimately, and to the risk of sounding like a broken record, it is not for judges to make these policy choices. What Judge Baragwanath seems to be saying, in a nutshell, is: “if we don’t hold corporate entities accountable, who will?”. The STL is customary of the fact. Some years ago, it granted standing to a former suspect, who should not, under the Statute have had standing, because “if we don’t give him a remedy, who will?”. Moreover, this is the reasoning of  Judge Baragwanath’s separate opinion in the legality decisions at the STL, where he basically said “if we don’t control the UNSC, who will?”.

This is not, in my view, a sound argument for judges to extend the jurisdiction of any tribunal beyond what it says. I have the utmost sympathy and respect for the substance of Judge Baragwanath’s positions here, as in the legality decisions. It does make sense to hold corporate entities accountable for knowingly interfering with the judicial process, just as it is in theory not acceptable that no body be allowed to control the legality of UNSC decisions.

However, going a step further and taking on himself to correct these wrongs, is in my opinion,  shortsighted and ultimately not conducive to the rule of law. If someone takes upon himself to kill the murderer of his child who got away on a “technicality”, we might have sympathy for that person, but it will remain a murder. The judicial vigilantism that pervades a lot of activist decisions in ICL is exactly the same: ignoring the law, ignoring the procedures and the processes that were put in place to adopt and implement it, in the name of a higher notion of “justice”.

This decision might be a dream come true for some, but it was reasoned in a way that will one day turn out to be a nightmare for those who genuinely are trying to promote due process and the rule of law, in ICL and beyond.