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: Listing of Cases Included A

(c) conduct punishable as contempt does have limits

Sary, (Supreme Court Chamber), April 17, 2012, para. 19: "However, the scope of Internal Rule 35 is not limitless. Each of the specific prohibitions set out in Internal Rules 35(a) through (f) entails an effort to frustrate the mandate or functioning of the Court. Paragraphs (a), (b) and (e) concern non-compliance with an order of the Court. Paragraphs (c) and (d) concern interference with the evidence to be given in proceedings before the Court. Paragraph (f) concerns assistance to an accused person to evade the jurisdiction of the Court. In accordance with the esjudem generis rule of statutory construction, only conduct that is analogous to these enumerated grounds should be considered to be within the scope of Internal Rule 35. This analysis is supported by the plain meaning of the phrase 'interference with the administration of justice,' which suggests an effort to obstruct the functioning or execution of court proceedings."

Chea (Supreme Court Chamber), September 14, 2012, para. 34: "Each of the specific prohibitions set out in Rule 35(1)(a) through (g) entails an effort to frustrate the mandate and functioning of the Court. Sub-paragraphs (a), (b) and (e) concern noncompliance with an order of the Court. Sub-paragraphs (c) and (d) address interference with evidence to be given in proceedings before the Court. Sub-paragraph (f) governs assistance to an accused person for purposes of evading the jurisdiction of the Court. In accordance with the ejusdem generis rule of statutory construction, only conduct analogous to these enumerated grounds should be considered to be within the scope of Rule 35."

(d) mens rea

(i) knowingly and willfully interfering with the administration of justice

Aleksovski, (Appeals Chamber), May 30, 2001, para. 30: "[T]he Tribunal possesses the inherent power to deal with conduct which interferes with its administration of justice ... Those who knowingly and wilfully interfere with the Tribunal's administration of justice in such a way may therefore be held in contempt of the Tribunal."

Nshogoza, July 7, 2009, para. 155: "Rule 77 (A) provides the general actus reus and mens rea for contempt. The actus reus is interference with the administration of justice, and the mens rea is the knowledge and will to interfere."

Nshogoza, (Trial Chamber), July 7, 2009, para. 174: "The Chamber considers that the plain language of the Rule dictates that any deliberate (knowing and wilful) conduct that interferes with the administration of justice is sufficiently serious to be punished as contempt."

Chea, (Supreme Court Chamber), September 14, 2012, para. 37: "Under Rule 35(1), proscribed conduct must be 'knowing and willful.' Strict liability is not foreseen. In other words, there is no liability under Rule 35 on the basis of an objective fact itself and irrespective of whether the conduct in question stems from direct intent, indifference or the lack of realisation of the nature and/or consequences of the conduct. Indeed, the procedural options available to the Court pursuant to Rule 35(2) refer to 'a person [who] may have committed any of the acts set out in sub-rule I.' Rule 35(4), likewise, speaks of 'sanctions imposed on a person found to have committed any act set out in sub-rule 1.' Thus, pursuant to the plain language of Rule 35, the whole regime is designed to provide a punitive response, that is, sanction or referral to appropriate authorities of a person attributed with intent to interfere with the administration of justice."

Ngirabatware, (Trial Chamber), February 21, 2013, para. 4: "Pursuant to Rule 77(A)(i)-(v) of the Rules, the Tribunal may hold in contempt those who knowingly and wilfully interfere with its administration of justice. Rule 77(A)(iv) provides that this includes any person who 'threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness.' In addition, Rule 77(B) provides that '[ajny incitement or attempt to commit any of [these acts] is punishable as contempt of the Tribunal with the same penalties.'"

(ii) specific intent to interfere with the administration of justice

1. required

   Beqaj, (Trial Chamber), May 27, 2005, para. 22: "For each actus reus encompassed by Rule 77(A), the Prosecution must establish that the accused acted wilfully and knowingly, that is with specific intent to interfere with the Tribunal's administration of justice. Such intent may be separately proved or inferred from the facts of each case."

   Brdjanin, (Trial Chamber), March 19, 2004, para. 16: "There are differences in the states of mind required for each of the various types of conduct envisaged in Rule 77(A). The mens rea has to be established on a case by case basis in relation to each of the conducts referred to in Rule 77(A)(i) to (v). For each form of criminal contempt, the Prosecution must establish that the accused acted with specific intent to interfere with the Tribunal's due administration of justice."

   Brdjanin, (Trial Chamber), March 19, 2004, para. 24: "As to the mens rea of the offence of intimidation of a witness as contempt of court, the Prosecution must establish that the accused had knowledge that his conduct is likely to intimidate a witness. Proof is also required that the accused acted with the specific intent to interfere with the Tribunal's due administration of justice."

   Chea, (Trial Chamber), May 11, 2012, para. 22: "Where criminal culpability is alleged, the threshold for intervention by a Chamber is higher. In this regard, a person may be found liable for interference with the administration of justice and sanctions imposed only where it is shown that the individual in question has 'knowingly and wilfully' interfered or attempted to interfere with the administration of justice. ICTY Rule 77(A) contains an equivalent provision, which ICTY Trial Chambers have interpreted to require proof of "specific intent to interfere with the Tribunal's administration of justice.' The Chamber agrees with this interpretation and adopts it in respect of Internal Rule 35(1). For the reasons that follow, no issue of criminal culpability arises in this case pursuant to this sub-rule."

   Samura, (Trial Chamber), October 26, 2005, para. 18: "Rule 77(A) provides specifically that any person may be punished for contempt for knowingly and wilfully interfering with the administration of justice. I am of the view that the mens rea requirement of 'knowingly and wilfully' does apply to those various types of conduct listed under Rule 77 and forms part of the specific intent."

2. not required

   Hartmann, (Specially Appointed Chamber), September 14, 2009, para. 53: "The Chamber, however, considers this jurisprudence to have been developed by the more recent Appeals Chamber rulings that a violation of a Chamber's order as such interferes with the Tribunal's administration of justice. This Chamber considers that any knowing and wilful conduct in violation of a Chamber's order meets the requisite mens rea for contempt and is committed with the requisite intent to interfere with the administration of justice."

   Hartmann, (Specially Appointed Chamber), September 14, 2009, para. 55: "[T]he definition of mens rea for conduct under Rule 77(A)(ii) as including an additional element, i.e. the 'specific intent to interfere with the administration of justice,' [is] an erroneous characterisation of the law."

   Seselj, (Trial Chamber), July 24, 2009, para. 27: "[T]he mens rea element for the form of commission of contempt charged under Rule 77(A)(ii) is solely the knowledge of the alleged contemnor that his disclosure of a particular piece of information is done in violation of an order of a Chamber. Therefore, the Amicus Prosecutor was not required to demonstrate that the Accused had intended to intimidate the Protected Witnesses by disclosing their identities."

   (e) actus reus

   (i) conduct that interferes with the administration of justice

   Aleksovski, (Appeals Chamber), May 30, 2001, para. 30: "[T]he Tribunal possesses the inherent power to deal with conduct which interferes with its administration of justice. Such interference may be by way of conduct which obstructs, prejudices or abuses the Tribunal's administration of justice."

1. conduct that undermines confidence in protective measures

   Marijacic and Rebic, (Trial Chamber), March 10, 2006, para. 50: "Any deliberate conduct which creates a real risk that confidence in the Tribunal's ability to grant effective protective measures would be undermined amounts to a serious interference with the administration of justice. Public confidence in the effectiveness of such orders is absolutely vital to the success of the work of the Tribunal."

2. conduct that undermines tribunal's legitimacy

   Chea, (Supreme Court Chamber), September 14, 2012, para. 35: "The Supreme Court Chamber further observes that the significance of a particular act's interference with the administration of justice under Rule 35(1) is measured by its abstract as well as by its concrete impact. Actual interference with the course of proceedings is not necessary where the conduct undermines the Court's legitimacy with the parties and the general public."

3. conduct that undermines tribunal's appearance of independence and impartiality

   Chea, (Supreme Court Chamber), September 14, 2012, para. 36: "[A]ctions undermining the independence and impartiality of ECCC judges, such as exerting pressure, constitute interference prohibited under Rule 35(1). Other prohibited conduct may include causing disorder in the courtroom, harassing Court officials and staff, undermining the logistical functioning of the Court, and otherwise bringing about circumstances that damage the Court's appearance of independence or impartiality. Notably, damaging the Court's appearance of independence and impartiality is...