The Developing Trend of Corporate Criminal Liability: The New TV S.A.L. Case and its Implications
Multinational corporations have long been able to hide behind the shield of legal personhood, escaping meaningful consequences for the violations of human rights they perpetrate. The first international criminal tribunal, the International Military Tribunal at Nuremberg, failed to extend the threshold of culpability from natural persons to legal persons.[1] The international tribunals that followed similarly refused to consider legal persons. Since the impetus of the modern international legal order, corporations have understood that their actions, even when rising to serious crimes, will go unpunished.[2]
In response to corporate human rights abuses, States and international organizations have begun implementing varying solutions. Most notably, the UN Guiding Principles on Business and Human Rights (UNGPs) has seen some success[3] in transforming the way corporations display their human rights impact. However, current initiatives do not themselves go far enough to deter human rights abuses by corporations and provide judicial remedies to victims.[4] It is necessary to build on the growing call for corporate accountability by implementing effective corporate criminal liability (CCL) at the international level.
Efforts by international courts to crystallize corporate criminal accountability have not succeeded in creating international norms but could be the essential foundation for their implementation. The most probative example of CCL comes from the Special Tribunal for Lebanon (STL), in their New TV S.A.L. (2014)[5] decision. There, the STL found a basis in international law for extending their criminal jurisdiction to corporations.[6] In basing their decision in international law, the tribunal sought to establish CCL as customary international law. The tribunal originated from the assassination of the former Prime Minister of Lebanon. In response to the attack, the government requested the establishment of a “tribunal of international character” to prosecute those involved.[7] The UN Security Council complied and created the STL to prosecute the assassins involved, later prosecuting the assassins in the Ayyash trial.[8]
The New TV S.A.L. case came in response to a corporation’s misconduct in disseminating confidential information from the original Ayyash case.[9] The privately owned news station, Al Jadeed, aired a series that publicized confidential interviews from the Ayyash case.[10] When ordered by the trial judge to take down these interviews, the corporation refused and was charged with two counts of contempt of court for disseminating confidential information about court witnesses, and refusing to comply with a court order.[11]
This case brought two novel questions before the STL court: whether a legal entity can be found guilty of contempt of court in international law and whether the STL has jurisdiction to prosecute a legal entity. First, the court confronted ambiguity over the entities they could charge with contempt. The rules of procedure the STL follows do not explicitly limit contempt to natural persons, although neither does it advocate for contempt of legal persons.[12] However, Article 3 of their statute does expressly limit the court to prosecuting natural persons. Still, the STL’s acting contempt Judge David Baragwanath was able to find ambiguity and thus rely on international law for further interpretation.[13] In doing so, Baragwanath found that CCL was a “familiar and increasingly pervasive legal construct in national systems,” including in Lebanon.[14] Therefore, he found that the STL cannot be bound by the antiquated principles that prevent jurisdiction over corporations.[15] Citing the decades of major changes in civil law States, he finds an international trend towards the creation of criminal liability, attributing this trend to corporations’ greater power as actors.[16]
In his decision, Judge Baragwanath appears to go out of his way to find a general principle of international law based on an ambiguity over rules of contempt, which do not explicitly implicate legal persons. Arguably, Baragwanath finds ambiguity where there is none for the purposes of the “administration of justice”[17] but goes too far by making an unsupported statement about CCL in international law. On appeal, Judge Lettieri critically refutes Baragwanath’s decision and instead relies on statutory interpretation and refuses to find a general principle of law allowing the interpretation of person as legal persons in the statute.[18] However, Lettieri’s decision is also overturned on appeal by a majority on the STL Appeals Panel.[19] The majority’s opinion here serves as the final decision and fully affirms CCL as a general principle of law.[20]
The basis of this decision is replicable in other courts that are able to apply international law against corporations. Through its empirical study of CCL in most of the world’s legal systems,[21] the hybrid tribunal strengthens the case for CCL and provides further evidence of opinio juris. After the court’s finding of jurisdiction, Al Jadeed’s contempt of court case moved to trial where the STL did not find the corporation guilty.[22] However, its extension of CCL was followed in the subsequent Akhbar Beirut S.A.L case where the STL affirmed the New TV S.A.L. and found a corporate defendant guilty.[23] Even still, other international judicial bodies have declined to capitalize on this emerging international trend.
The STL’s decisions have thus far failed to be influential to other judicial bodies applying international law. Following the STL’s decision, no international court or prosecutor, other than the STL itself, has cited the New TV S.A.L. and Akhbar Beirut S.A.L decisions to expand their court’s jurisdiction to a corporation.[24] If the basis for CCL in international law was strong enough to generate new custom and find a corporation guilty, as the STL court did, then it should be expected that another international court would have followed its reasoning since the decision. Yet, no courts have. Some scholars point to the decision as a premature declaration of custom that has yet to crystallize.[25] While potentially premature, the STL’s decisions lend legitimacy to and lay an essential foundation for the establishment of CCL under international customary law.
Nadia Bernaz, Corporate Criminal Liability Under International Law, 13 J. INT’l CRIM. JUST. 313, 320 (May 2015).↑
See Osama Alkhawaja, In Defense of the Special Tribunal for Lebanon and the Case for International Corporate Accountability, 20 CHI. J. INT’l L. 450, 450 (Winter 2020).↑
Bernaz, supra note 1 at 318.↑
Id.↑
In the Case Against New TV S.A.L Karma Mohamed Thasin Al Khayat, STL-14-05/I/CJ, Decision in Proceedings for Contempt with Order in Lieu of an Indictment (Special Trib. for Leb. Jan. 31, 2014).↑
Bernaz, supra note 1 at 321.↑
S.C. Res. 1757, Attachment, Statute for the Special Tribunal for Lebanon, art 2, art. 4.↑
Id. at 2 ¶ 1.↑
See Contempt Cases: Al Jadeed S.A.L. & Ms Khayat, (STL-14-05), The Special Tribunal for Lebanon.↑
Id.↑
Id.↑
See Special Tribunal for Lebanon, Rules of Procedure and Evidence, STL-BD-2009-01-Rev.10, (Mar. 20, 2009).↑
New TV S.A.L Karma Mohamed Thasin Al Khayat, supra note 5, at ¶ 4.↑
Id. ¶ 18.↑
Id. ¶¶ 18, 24.↑
Id. ¶¶ 26–27. ↑
Id. at ¶ 12.↑
Id. ¶¶ 68, 75.↑
In re New TV S.A.L. & Al Khayat, Case No. STL-14-05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, ¶ 60 (Oct. 2, 2014).↑
Id. at ¶ 67.↑
Id.↑
New TV S.A.L Karma Mohamed Thasin Al Khayat, supra note 5.↑
See Akhbar Beirut S.A.L. & Mr Al Amin (STL-14-06).↑
Alkhawaja supra note 2, at 475.↑
See generally Desislava Stoitchkova, Towards Corporate Liability In International Criminal Law (2010).↑
