International criminal law - contempt - interference with prosecution - liability of corporate entities - definition of 'person.'

Author:Stewart, David P.


Special Tribunal for Lebanon, August 29, 2016.

On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal's proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri. (1) The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist's freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.

Akhbar Beirut & Al Amin arose out of two January 2013 articles that appeared in the Al Akhbar newspaper and on its Arabic and English language websites. The articles were available online until February 2016. They listed the names, photographs, and other personal identifying information of thirty-two people who were alleged to be witnesses before the Tribunal. In addition, they provided summary accounts of a few purported witness statements before the Tribunal. One article claimed that "close observers of the 'Hariri Tribunal' can confirm that most of its files, if not all of them, are disclosed to those who wish to obtain them." (2) Both articles were attributed to Ibrahim Al Amin, the editor in chief and chairman of the board of directors of Al Akhbar.

Al Akhbar's corporate entity, Akhbar Beirut, and Mr. Al Amin were charged with contempt under Rule 60bis(A) of the Tribunal's Rules of Procedure and Evidence. That rule provides that "[t]he Tribunal, in the exercise of its inherent power, may hold in contempt those who knowingly and wilfully interfere with its administration of justice...." (3) The rule then contains a nonexhaustive list of conduct that qualifies as contemptuous interference. The list includes intimidating or interfering with a Tribunal witness. But the charge in this case was not that the published articles obstructed or interfered with actual Tribunal witnesses; it was that publishing information about purported witnesses interfered with the administration of justice by undermining public confidence in the Tribunal's ability to protect the confidentiality of information relating to Tribunal witnesses.

Comparable charges were simultaneously filed against a different media organization, New TV, and one of its employees, Karma Al Khayat. The New TV and the Akhbar Beirut defendants all appeared before the same contempt judge, Judge Nicola Lettieri. However, the New TV defendants were ultimately acquitted. (4)

Judge Lettieri issued a redacted version of his judgment in Akhbar Beirut &AlAmin on July 15, 2016. The judgment asserted that the actus reus in this case would be satisfied if: (1) the accused published information on purported confidential witnesses; and (2) such publication created a likelihood of undermining public confidence in the Tribunal's ability to protect the confidentiality of information relating to Tribunal witnesses. Judge Lettieri underscored that, for the second element, he did not have to find that the Al Akhbar publications actually eroded public confidence in the Tribunal; it would suffice if the publications created the likelihood of that effect. The mens rea for the offense is, under the plain text of Rule 60bis(A), knowledge and willfulness (Judgment, paras. 37-43).

After reviewing the evidence, including the testimonies of five people the articles identified as witnesses, Judge Lettieri found that Mr. Al Amin had committed the offense of contempt--specifically, that his articles "created an objective likelihood that public confidence in the Tribunal would be undermined and that moreover, such a likelihood was intended by the Articles' authors" (Judgment, para. 111). To support that finding, Judge Lettieri noted that the articles divulged details about alleged witnesses "in a politically charged environment with sectarian tensions and significant, powerful opposition to the Tribunal... " and that "individuals publicly denounced as opponents of the Resistance were placed at an elevated risk of harm" (id.). In this environment,

[t]he allegation that anyone desiring confidential information from the Tribunal can obtain it, in conjunction with the publication of photographs and personal information allegedly associated with such confidential information, strongly contribute[d] to the negative impact on public confidence in the Tribunal's ability to protect confidentiality. (Id.) (5) After determining that Mr. Al Almin committed the offense of contempt, Judge Lettieri assessed whether Mr. AJ Almin's conduct could nevertheless be excused by his freedom of expression. Judge Lettieri stated that, under international and Lebanese law, an individual's freedom of expression must be balanced against other societal interests, including "the need to protect the integrity of judicial proceedings and to ensure the safety of justice system participations" (Judgment, para. 158). Judge...

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