Contempt of court: a digest of the case law of contempt of court at international criminal tribunals and the International Criminal Court.

• Author: Akerson, David
• Position: Introduction through Listing of Cases Included A - B

INTRODUCTION

In 2006, Human Rights Watch ("HRW") published on its website a book entitled Genocide, War Crimes and Crimes Against Humanity, A Topical Digest of the Case Law of the International Tribunal for the Former Yugoslavia ("ICTY Digest"). (1) The 861-page HRW ICTY Digest contained the digests of every trial and appeal judgment of the Yugoslavia Tribunal from its inception in 1993 up through December 31, 2005. (2) It was an indispensible work because none of the commercial entities that comprehensively digested domestic judgments into "headnotes" did the same for the international tribunal decisions. Around 2003, the author personally contacted West Publishing (3) to ask them to consider "headnoting" the Yugoslavia Tribunal judgments. The representative the author spoke to politely declined, explaining that the audience that might use such a product was too limited to justify the expense of such an endeavor. (4)

Attorneys in the United States take for granted the fact that our domestic trial and appellate decisions will be automatically and quickly digested by several sources, organized into topical indexes and incorporated into sophisticated electronic research tools. (5) Those of us practicing at the international tribunals did not have that luxury prior to the ICTY Digest. What was available to us was the full text of the judgments, along with a smattering of our own internal memoranda and articles in the various legal journals scattered around the world. (6) The tribunal judgments are extremely lengthy, typically five hundred pages or more, and scanning these judgments for the kernels of law contained within them was inefficient to say the least. Memoranda and journal articles--while very useful and insightful--analyzed only specific areas of law.

The ICTY Digest represented the first and a very successful attempt at a comprehensive digesting of tribunal law. It was pithy, clear and well-organized. Human Rights Watch followed up the ICTY Digest in 2010 with a 500-page book that digested all of the trial and appeal judgments of the Rwanda Tribunal ("ICTR Digest"). (7) For the undersigned author, the two HRW digests are still the first resource to be consulted when conducting research on the law of the tribunals. (8) The one exception to this rule is the law of contempt. While the two Digests dealt with the judgments in the substantive trials, they did not deal with the tribunal judgments in the ancillary contempt of court trials.

All courts are imbued with the power to hold in contempt of court those who interfere with its administration of justice. (9) Interference may range from a spontaneous courtroom disruption to a well-orchestrated plan to intimidate a witness outside of the courtroom. From their inception, the international tribunals have had to prosecute individuals under their contempt powers in order to protect the integrity of their proceedings. (10) To date, nearly seventy judgments have been issued against contemnors at international tribunals.

This article is a comprehensive set of digests of the contempt trial and appeal judgments of the international tribunals. In homage the HRW Digests, we follow the format of those books as closely as possible. The article organizes topically the digested judgments (11) from the following tribunals: the ICTY, ICTR, The Special Court for Sierra Leone, The Extraordinary Chambers in the Courts of Cambodia, and The Special Tribunal for Lebanon. (12) It is intended to be a reference tool to assist practitioners and researchers as they familiarize themselves with the law of contempt of court at the international tribunals.

The digest includes judgments publicly available through July 1, 2015. A full list of the judgments included is listed on pages 101-105.

The digest is not intended to be and should not be used as a substitute for the reading of the actual decisions at the tribunals. The full text of the judgments can be found on the respective tribunal websites.

SUMMARY OF TABLE OF CONTENTS SUMMARY OF TABLE OF CONTENTS FULL TABLE OF CONTENTS SUMMARY OF JUDGEMENTS AGAINST THE ACCUSED LISTING OF CASES INCLUDED A) Contempt of Court i) Statutes ii) General elements iii) Underlying offenses B) Incitement to commit contempt C) Sufficient grounds for instigating contempt proceedings i) 'Reason to believe' standard to investigate ii) 'Sufficient grounds' standard satisfied by a prima facie case for contempt iii) Discretion to initiate contempt proceedings iv) Independence of contempt proceedings D) Punishment for contempt of court i) Penalty ii) Purposes E) Appeal of Contempt of Court i) Standard of review ii) Decisions to investigate and prosecute contempt reviewed for discernible errors iii) Decisions under Rule 77 subject to appeal FULL TABLE OF CONTENTS SUMMARY OF TABLE OF CONTENTS FULL TABLE OF CONTENTS SUMMARY OF JUDGEMENTS AGAINST THE ACCUSED LISTING OF CASES INCLUDED A) Contempt of Court i) Statutes (a) ICTY Rules of Procedure and Evidence, Rule 77: Contempt of Court (b) ICTR Rules of Procedure and Evidence, Rule 77: Contempt of Court (c) SCSL Rules of Procedure and Evidence, Rule 77: Contempt of the Special Court (d) Extraordinary Chambers Internal Rule 35 provides, in relevant part: (e) Rome Statute of the International Criminal Court (f) Special Tribunal for Lebanon Rules of Procedure and Evidence (g) Mechanism for International Criminal Tribunals Rules of Procedure and Evidence ii) General elements (a) inherent power to hold in contempt (i) to prevent frustration of jurisdiction, and to safeguard judicial functions (ii) conduct that interferes with the administration of justice (iii) sources of international law on contempt 1. London Charter/International Military Tribunals 2. International Court of Justice 3. common and civil law (iv) not designed to buttress mere affronts or insults (v) Rule 77 does not limit the Tribunal's inherent power over contempt (vi) judges may adopt rules of procedure and evidence (vii) adheres to the principle of legality (viii) authority to investigate contempt (b) liability for contempt (i) standard of proof 1. legal entities 2. judges (c) conduct punishable as contempt does have limits (d) mens rea (i) knowingly and willfully interfering with the administration of justice (ii) specific intent to interfere with the administration of justice 1. required 2. not required (e) actus reus (i) conduct that interferes with the administration of justice 1. conduct that undermines confidence in protective measures 2. conduct that undermines tribunal's legitimacy 3. conduct that undermines tribunal's appearance of independence and impartiality. (ii) Rule 77 conduct punishable as contempt is non- exhaustive (iii) includes non-criminal offenses (iv) seriousness of conduct has minimal probative value (iii) Underlying offenses (1) 'contumaciously refuses or fails to answer questions' (a) mens rea (i) knowingly and willfully interfering with the administration of justice (b) actus reus (i) refusal to answer questions in violation of a court order (2) 'discloses information relating those proceedings' (a) mens rea (i) in knowing violation of a court order 1. actual knowledge 2. willful blindness 3. reckless indifference is sufficient (ii) mere negligence is never enough (iii) misunderstanding of law is not a defense (b) actus reus (i) disclosure in violation of court order (ii) publication or passing confidential information to a third party (a) manner of possession is no consequence (iii) in objective breach of a court order (iv) court order must apply to accused, protect disclosed information, and exist when information was disclosed 1. information was confidential at time of disclosure (v) no actual interference required (vi) confidentiality protects legal reasoning (vii) closed session orders 1. applies to the public/media 2. written statements largely the same as closed session testimony 3. witnesses who testify entirely in closed session (iv) not for third parties to decide what should be protected (v) protective measures continue until rescinded, varied, or augmented (vi) confidentiality to secure cooperation of sovereign states (vii) disclosure by third parties is not a defense (viii) may restrict freedom of expression and press 3. as authorized by law and necessary to protect others. (3) 'fails to comply with an order to appear' (a) mens rea (i) knowing and willful conduct (b) actus reus (i) objective breach of an order (ii) Without good cause (4) 'threatens, intimidates, causes any injury, offers a bribe to, or otherwise interferes with a witness' (a) mens rea (i) knowingly and willfully (ii) intent to interfere (iii) motive has limited probative value (b) actus reus (i) threats (ii) intimidation (a) knowing and willful conduct likely to intimidate a witness (b) no proof of actual interference required (iii) bribe (iv) otherwise interfering with a witness (v) conduct may be direct or through intermediaries (vi) no proof of actual interference required (vii) undue influence B) Incitement to commit contempt C) Sufficient grounds for instigating contempt proceedings i) 'Reason to believe' standard to investigate (1) no open-ended investigations ii) 'Sufficient grounds' standard satisfied by a prima facie case for contempt iii) Discretion to initiate contempt proceedings (1) ensuring compliance with court orders (2) chamber may initiate contempt proceedings itself (a) indictment must contain precise charges iv) Independence of contempt proceedings D) Punishment for contempt of court i) Penalty (1) discretion (2) administrative sanctions ii) Purposes (1) retribution (2) gravity and deterrence (3) ensuring fair trial E) Appeal of Contempt of Court i) Standard of review ii) Decisions to investigate and prosecute contempt reviewed for discernible errors iii) Decisions under Rule 77 subject to appeal (1) plain meaning of the rule (2) decisions disposing of contempt cases and other circumstances (3) decisions involving...