Freedom of Expression and Contempt of Court before International Criminal Court: Selected Issues. Introductory note

In 2014, the Special Tribunal for Lebanon (STL) issued two summons to appear against two Lebanese journalists and their respective media for contempt of court. As a reminder, this ad hoc tribunal was created to try and punish the perpetrators of the “terrorist” crime[s] that killed former Prime, Rafic Hariri, and other linked murders. Previously, the journalist Florence Hartmann had been sentenced by ICTY to imprisonment because she disclosed information about the Milosevic case, even after the case was closed due to the death of the former President. She has been arrested and serves currently her sentence in The Hague. In both cases the Courts issued Orders forbidding disclosures of any information related to the case. But whereas Florence Hartmann based her defense on freedom of expression, and the conditions of its restriction, this issue was totally absent from the pleadings of the parties before the STL, where the parties built their defense on errors of law and errors of fact. The offense of contempt was unknown in Lebanon, which follows the civil law system. LCIS found it useful to hold a Study Day to explore the relevant doctrine and jurisprudence, and study the scope of their application STL Rule 60 bis is the disposition of interest. It seems clear that the rules set forth by all ad hoc international criminal tribunals and by the ICC have all inspired the drafters of the STL Rules. However, the STL also integrated principles developed by the jurisprudence of the international courts and tribunals. An exhaustive study cannot be proposed here because the lack of time imparted to the presentation of this paper. We have tried to show the major trends regarding this very technical and procedural issue. Common rule 77 of the Rules of Procedure and Evidence to the ad hoc Tribunals (ICTY, ICTR, SCSL) criminalizes what they call “contempt”; article 70 of the Rome Statute mentions “Offences against the administration of justice”. However, Rule 60 bis of the STL Rules tackles “Contempt and Obstruction to Justice”, whereas Rule 90 of the RPE of the newly created Mechanism for International Criminal Tribunals (MICT) which will continue the residual cases remaining after the closure of the ICTY and ICTR, dryly states “Contempt”. This variation in the use of terms does not bring any difference to the notion or the principle of contempt of court. Indeed, the content of all relevant dispositions is similar to a large extent. The use of the expression “obstruction to justice” does not change the content of the principle. Furthermore, certain dispositions were inspired by the ICC Rules of Procedure and Evidence, such as paragraph A (i) that was inspired by the ICC Rules (false statements in situations other than those covered by Rule 152). However, in different areas valuable principles followed by ICC were totally disregarded, such as the “Period of limitation”, either for triggering a prosecution or for enforcement of sanctions. Some dispositions were proper to the STL Rules. For example, paragraph A (vii) of Rule 60 bis is very interesting, because it tackles a very sensitive issue, which is the issue of contradiction between the prohibition of disclosing information and freedom of expression. This disposition does not exist in other RPEs but it was developed by the jurisprudence of the ad hoc tribunals. Paragraph G also integrated principles developed by the jurisprudence of the ICTY and ICTR at the occasion of trials for contempt. Criminalizing contempt of court is important to judiciary institutions. The integrity of any judicial system depends on the possibility for all the actors of a trial to act according …