A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons

By Dov Jacobs [cross posted on Spreading the Jam]

In January 2014, a contempt judge of the Special Tribunal for Lebanon (STL) confirmed an indictment for contempt proceedings which included a legal person, a first for an international criminal tribunal. At the time, I raised some doubts about the reasoning of the judge, who applied a teleological reasoning that essentially allowed him to create law based on his own interpretative preferences. I also did not find convincing the idea that the interpretation of the term “person” for the purposes of contempt proceedings could be different than the interpretation of the same term in article 2 of the Statute of the Tribunal when it came to personal jurisdiction of the tribunal generally.

In July 2014, another contempt judge reversed the first ruling, considering that the term person should be interpreted narrowly in light of the principle of legality and could not include legal persons.

Last week, an Appeals Panel of the STL reversed this latter decision, held, by majority, that legal entities could be covered by contempt proceedings and, as a consequence, reinstated the proceedings against a media company. This decision is very interesting, and problematic, in the way it approaches the question of both inherent jurisdiction and general rules of interpretation and has just entered my top 10 worst argued decisions in ICL. It might even enter my top 3, along with the SCSL amnesty decision and the ICC Malawi decision on immunities.

It would take up too much space here to comment on the decision extensively, but I just want to highlight how the Appeals Panel has found the perfect Molotov cocktail to kill the principle of legality: the “spirit” of the statute combined with inherent jurisdiction.

  • The Spirit of the Statute

First of all, the decision seriously over-relies on what is called the “spirit” of the Statute as a source of interpretation, which, according to the judges, allows for a more “liberal” interpretation of the Rules (para. 27). This leads the judges to blame the contempt judge for interpreting the term “person” in accordance with the letter of the Statute rather than its spirit (!!!). The problem with that is that I don’t know what the “spirit” of the statute is. Trusting judges in relation to this spirit is like trusting the weird looking guy in the tent at the town fair that he can contact the spirit of your grandmother: he basically gets to tell you what he wants…

For the judges of the Appeals Panel, the spirit of the statute, in a nutshell, is the “fight against impunity” for those who obstruct the course of justice, which allows for a teleological interpretation that  includes legal entities. Once they have decided this, the judges look for anything under international law that would not allow them to interpret person in that way… At this point, it’s not even teleological interpretation anymore, it’s backwards reasoning in its purest form!

The Appeals Chamber makes an incredibly broad assessment of international and domestic pronouncements on corporate liability (in general, not necessarily for contempt!) to conclude that nothing prevents the judges from interpreting “person” in a broad way (para. 60).

Even  more amazing, the STL goes through the whole history of ICL where no legal entity was ever prosecuted for contempt or otherwise, but finds it unpersuasive, concluding that section with the extraordinary vague statement that “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

“On the verge of attaining”? What a marvelous new source of law. Following the progressive view of the Appeals Panel, I suggest that Article 38(1) of the ICJ Statute now read as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;


e. Any norm on the verge of attaining the formal status of any of the above

  • The inherent jurisdiction of the Court

Inherent jurisdiction has always been a problematic issue, useful for creative judges over the years. But surely there has to be a limit to it. The problem is that the way the Appeals Panel uses it makes it extraordinarily large. There are a number of pronouncements in the decision on the (lack of) scope of the inherent jurisdiction of the tribunal, but this one wins the prize for honesty:

When operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement

In other words, we don’t know what our jurisdiction is, you don’t know what our jurisdiction is, but don’t worry and trust us: we’ll tell you when we get there. This cannot be how jurisdiction (inherent or otherwise) should work, especially in the current case of contempt (i.e, criminal) proceedings.

  • The end of the principle of legality

The problem with everything I have described so far is that we are here dealing with criminal charges, not a innocuous rule of procedure relating to the extension of the number of pages in a brief. Inherent jurisdiction cannot be used to trump the principles that should apply in criminal law matters, notably the principle of legality and its corresponding rules of interpretation: strict interpretation and in dubio pro reo. In that respect, someone should have pointed the judges to Article 22 of the Rome Statute.

In light of this, as pointed out by the dissenting judge, both human rights law and general principles of ICL should have led the judges to consider these basic principles in interpreting the term “person” in the RPE.

  • Some concluding thoughts

First, a logical point: as I pointed out in my previous post on this, for me the interpretation of term “person” in the RPE should necessarily mirror the interpretation of the term “person” in the Statute. If the STL cannot prosecute legal entities for killing Hariri, it cannot prosecute them for contempt. If not, as I said in my previous post and as picked up by the dissenting judge (who forgot to quote me…), the “spirit” of the statute would be that legal entities should not commit the horrendous and humanity-offending crime of publishing a list of witness, but can commit murder, bodily harm and terrorism without being bothered…

Second, a legal reasoning point: as with the first contempt judge who accepted the indictment for legal persons, the Appeals Panel essentially give us reasons why corporate entities ought to be held responsible for contempt. These might be valid reasons, but it’s not their job.

Third,  an argumentation point: the judges refer in an amazingly broad way to the evil that corporate entities can wrought upon the world. And this is just to extend contempt jurisdiction! It seems like overkill to me. What will the first international judge to prosecute a company for genocide be able to say?

Fourth, and finally, an endless point of frustration: the drafters of the STL Statute, in their infinite (lack of) wisdom, still thought it was a good idea to let judges write their own RPE. As a result, the RPE are written by the judges, can be changed by the judges as they please, and then get interpreted by the judges. In this context, it is somewhat farcical to see them pretend to find the higher “spirit” of the Statute, fill 30 pages of analysis of domestic legislation and international pronouncements on the responsibility of legal entities and provide general moral musings on corporate liability in order to divine the true meaning of the word “person”. But, judges wrote the RPE! Adding up pages of argumentation will not bring us any closer to telling us what they were thinking when they drafted the rules on contempt in the first place and answer this ultimately very simple question which seems to have been ignored in the entirety of these proceedings: if they thought that corporate liability for contempt was so important, to the point of it verging on attaining a legal status, why did they not include it, just to make everyone life easier down the road?

In any case, I’m not sure things are over yet. It is now 3-2 for judges who want to extend contempt to legal persons. Not a large consensus. Let’s see what happens next…

CfP: Inaugural CGHR Conference on Genocide “Genocide: Pathways and Passages”

Friday, April 4, 2014


Rutgers University, Newark, USA

“Genocide: Pathways and Passages”

Genocide is crossed by pathways and passages. There are the pathways of the genocidal process, such as the historical and sociopolitical paths from which genocide emerges, the routes genocide takes once it has begun, and the post-conflict trajectories undertaken as individuals and societies seek a way forward in the aftermath. Such paths are mixed with passages, or processes of transformation, ranging from transformations of identities (e.g., perpetrators, victims, survivors, bystanders, witnesses, humanitarians, the “other,” and so forth) to those of sociopolitical states of being (e.g., authoritarianism, democratization, transitional justice, diaspora, and so forth). Continue reading

CfP: Genocide and its Aftermaths: Lessons from Rwanda (Undergraduate Conference)

University of Minnesota, Twin Cities, USA
April 17, 2014

The Center for Holocaust and Genocide Studies, the Human Rights Program and the
Institute for Global Studies are hosting three days of events to commemorate the 20th
anniversary of the genocide that took place in Rwanda in 1994. The events will include a
public conference (April 16th), a student conference (April 17th) and a K-12 teacher
workshop (April 19th). The objectives of the commemorative events are to promote public
understanding of what happened in Rwanda, analyze the immediate responses by the
international community, and discuss the long-term implications for international policy and
actions to prevent and respond to genocide. Continue reading

Assistant Lecturer in Leadership, Governance and Human Rights, University of the South Pacific, Fiji

School of Government, Development and International Affairs – FDS022

Build a legacy with us!
The USP is one of two regional universities in the world and is the leading tertiary education provider and research facility in the South Pacific. The USP recognises the importance of research activity to our academic staff and therefore provides incentives to encourage research and publications output. With over 26,000 students around the Pacific region, we are supported by 12 Pacific Island Countries; Cook Islands, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu.

The School of Government, Development and International Affairs (SGDIA), Faculty of Business and Economics (FBE) offers interesting and regionally relevant courses and programmes at the undergraduate and postgraduate levels in Leadership, Human Rights, Politics and International Affairs, Governance, Development Studies, and Diplomacy as well as Gender Studies. The school also offers the university wide second year undergraduate degree course, UU 200 Ethics and Governance. The school’s team of academic staff is very well qualified and experienced teachers committed to providing high quality and relevant courses and programmes. They are in fact amongst the best in the South Pacific region. Continue reading

Letters from Samoa: Samoa Celebrates International Day of Persons with Disabilities

With disability students and other Australian volunteers in front of the painting done by the students.

With disability students and other Australian volunteers in front of the painting done by the students.

This week is a very busy week in Samoa in the disability community. We are celebrating the International Day of Persons with Disabilities (IDPwD), with a whole week of events. An Opening Ceremony was held yesterday on the island of Savai’i. Generally, official ceremonies and events are held in the capital Apia, on the island of ‘Upolu. However, the organising committee wanted to ensure inclusion of persons with disabilities in Savai’i for this year’s ceremony, and so it was held in the village of Salealoga. It was well attended, by disability NGOs and service providers, as well as students and staff of special schools from around Samoa. The President of NOLA (Nuanua O le Alofa), a disability advocacy organisation based in Apia, gave an excellent speech about the need of inclusion of persons with disabilities in all fields of life in Samoa. This was in keeping with this year’s IDPwD theme, ‘Break barriers, open doors: to realise an inclusive society for all’. There was a speech competition for young school students, in which they had to speak on breaking barriers for inclusion of PwD. That was followed by a debate between students of Amoa College and the Australia-Pacific Technical College (APTC), who debated on whether PwD should be treated the same as other people. The debate demonstrated a need for education about PwD, including an understanding of correct terminology (e.g. to not refer to persons without disabilities as ‘normal’ compared to PwD). Maiava Toma, the Ombudsman, and I attended, and were seated in the Officials’ fale overseeing the proceedings. Maiava was appointed to present the prizes for the speech and debating competitions, and had generously donated the first prize for the speech competition. Continue reading

Lemkin Scholarship Program in Armenian Genocide Studies

The Armenian Genocide Museum-Institute announces 2014 LEMKIN SCHOLARSHIP program for foreign students and PhD candidates. Raphael Lemkin scholarship is intended to enable foreign students, who specialize in genocide studies, especially in the Armenian Genocide, to visit Armenia for a month to conduct research in local scientific institutions and libraries.

The Armenian Genocide Museum-Institute will provide researchers possibility to carry out their research in AGMI, including necessary research materials and consultation.

The deadline for application is on 15 December, 2013. The winner will be selected by the Scientific Council of the AGMI on 25 December, 2013.

The beginning of the scholarship program is on 1 January, 2014. Winners are free to select a month within 2014 except January, February and December. Continue reading

CfP: Third International Graduate Students’ Conference on Genocide Studies

The State of Research 100 Years after the Armenian Genocide

The Strassler Center for Holocaust and Genocide Studies at Clark University will host the Third International Graduate Students’ Conference on Genocide Studies on 9 -11 April 2015, in cooperation with the Danish Institute for International Studies, Department of Holocaust and Genocide Studies, Copenhagen. The conference will provide a forum for doctoral students to present their research projects to peers and established scholars. The keynote speaker will be Professor Eric Weitz, Dean of Humanities and Arts and Professor of History at the City College of New York.

This interdisciplinary conference will reflect the full range of issues, concepts, and methods in current Genocide Studies research. The keynote address and a focus on papers that explore the Armenian Genocide are planned in commemoration of the 100th anniversary of the events of 1915. Papers that put the Armenian Genocide in a broader perspective and examine the concept of Ottoman Genocide carried out against minority ethnic-religious groups, including Assyrians and Greeks, are especially encouraged. Topics may include forceful mass–deportations, expulsions, and massacres during the late Ottoman period. We also invite pertinent applications from students working on the Holocaust as well as those who focus on genocides in Africa, Asia, Australia, and America as well as on the aftermath and collective memorialization of genocides. Continue reading

Call for Nominations: The Lemkin Book Award

Institute for the Study of Genocide

The Institute for the Study of Genocide’s Lemkin Book Award honors Raphael
Lemkin, the originator of the concept of genocide and first exponent of a
United Nations Genocide Convention. The biennial award recognizes the best
non-fiction book published in English or translated into English that
focuses on explanations of genocide, crimes against humanity, state mass
killings and gross violations of human rights, and strategies to prevent
such crimes and violations. Edited volumes, memoirs, poetry, fiction and
drama are excluded.
The award consists of a citation and honorarium, and the winner is invited
to deliver a public address in New York at a meeting convened by the
Institute for the Study of Genocide.

The 2015 award cycle covers books published in 2013 and 2014. We are now
accepting nominations for books published in the 2013 calendar year
(January 1st-December 31, 2013).


Prior to sending books please contact Lemkin Award Committee Chair,
Professor Ernesto Verdeja at everdeja@nd.edu to confirm their eligibility.


The current (2013) award winner is:
Yang Jisheng, “Tombstone: The Great Chinese Famine 1958-1962” (Farrar,
Straus and Giroux, 2012).

Previous winners are:
2011: Emma Gilligan “Terror in Chechnya: Russia and the Tragedy of
Civilians in War” (Princeton, 2009)
2009: Darius Rejali “Torture and Democracy” (Princeton, 2007)
2007: Donald Bloxham “The Great Game of Genocide: Imperialism, Nationalism,
and the Destruction of the Ottoman Armenians” (Oxford, 2005)
2005: Peter Balakian “The Burning Tigris: The Armenian Genocide and
America’s Response” (Harper Collins, 2003)
2003: Samantha Power “A Problem From Hell: America and the Age of Genocide”
(Harper Perennial, 2002)
2000: Alison Des Forges “Leave None to Tell the Story: Genocide in Rwanda”
(Human Rights Watch and FIDH, 1999)

More information on the Institute for the Study of Genocide is available

CfP: International Network of Genocide Scholars Fourth Global Conference on Genocide

Cape Town, 4-7 December 2014

Genocide and Mass Trauma: Rising to the Challenges of Comprehension, Intervention, Prevention and Restitution

The International Network of Genocide Scholars (INoGS) was founded in
January 2005 in Berlin to provide genocide studies with a non-partisan
forum through which to present research and analysis on any aspect of
genocide as well as other forms of collective violence. Because genocide is
a highly contested legal, historical, sociological and political concept,
INoGS has since its founding maintained support of research-led analysis
rather than politically defined agendas. Continue reading

International Law Association Australia Annual Christmas Speech: Surveillance, Secrecy and a Fair Trial

Bret Walker SC presents the Annual Christmas Speech on ‘Surveillance, Secrecy and a Fair Trial’

Thursday, 12 December 2013, 5:30pm to 7:00pm
Baker & McKenzie
Level 27, AMP Building
50 Bridge Street, Sydney

The International Law Association (Australian Branch) is pleased to extend an invitation to the Annual Christmas Speech, this year to be delivered by Mr Bret Walker SC on the topic of surveillance, secrecy and the implications of national security legislation for fair trials. Mr Walker is the Independent National Security Legislation Monitor and brings a unique perspective to this important topic.

Prior to Mr Walker’s presentation the Annual General Meeting of the Australian Branch will be held from 5.00pm.

ILA Members: $10.00, Non-members: $20.00, payment at the door.

RSVP to secretary@ila.org.au or to the President, Dr Christopher Ward at cward@12thfloor.com.au