Rights as Usual

On 2 October 2014, the Appeals Panel of the Special Tribunal for Lebanon (described on its website as “the Tribunal of international character whose primary mandate is to hold trials for the people accused of carrying out the attack of 14 February 2005 which killed 22 people, including the former prime minister of Lebanon, Rafiq Hariri”) ruled in the New TV S.A.L. case that the Tribunal has jurisdiction over legal persons in contempt proceedings. It is the first time an international tribunal recognises that corporations may be criminally liable under international law. The case is limited in scope because it is “only” about an offence against the administration of justice, and not about a core crime over which the Tribunal has jurisdiction. Nevertheless, this decision is a major step in the development of corporate liability under international law, and could have important consequences in the business and human rights field.

I. The New TV S.A.L. case

The case’s point of departure is the broadcast of TV programmes mentioning “names asserted to be those of alleged confidential witnesses in the Tribunal’s proceedings” [Indictment, para. 4] on Al Jadeed TV, operated by the private company New TV S.A.L., and the subsequent online publication of the programmes on the video sharing website YouTube. Similar information was published in AI Akhbar, a newspaper operated by another private company, Akhbar Beirut S.A.L. The information was also published on the paper’s website. The indictment led to two separate cases, one against New TV S.A.L. and its Deputy Head of News and Political Programmes Manager, Ms Karma Khayat (STL-14-05). The other is against Akhbar Beirut S.A.L and its Editor-in-Chief  Ibrahim Al-Amin (STL-14-06).

In July, in the case against New TV S.A.L. and Karma Khayat, the contempt judge had dismissed all the charges against the company on the grounds that Rule 60 bis (on Contempt and Obstruction of Justice) of the Rules of Procedure and Evidence applies to natural persons only, and not to corporate entities. The Appeals Panel’s decision of 2 October reverses his decision.

II. What consequences for the future of business and human rights?

While limited in scope, the Appeals Panel’s decision is the first of its kind and, as noted by other commentators, was “completely unexpected”. It will hopefully bring an end to statements such as the US Court of Appeals for the Second Circuit’s when it asserted in Kiobel v Royal Dutch Petroleum that “although international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation”.

Now that the Tribunal has established the principle that corporations can commit offences which can be prosecuted by an international tribunal, it makes the often heard argument that corporations cannot be subjected to international law, and for our purposes to international criminal law and international human rights, even more difficult to support. And this of course is good news from a business and human rights’ perspective.

In short, it is a small but significant first step towards the full recognition of the notion of corporate criminal liability under international law.