Aug 22, 2017

No further blog posts on the STL

Unfortunately, due to our busy domestic practice, we have not been able to monitor the proceedings at the STL during the last year. We still hope that our blog as it currently stands, provides valuable insights into the cases before the STL. We also hope to be able to provide further analyses of the proceedings at the STL again in the future, through this blog or otherwise. 

In the meantime, for general information and summaries of the evidence, we would like to refer you to the STL monthly bulletin that can be found on the STL website.


Anne-Marie Verwiel & Karlijn van der Voort

Oct 11, 2016

Reasons for Sentencing Judgment in the Case against Al-Amin and Al-Akhbar

As we previously reported, Judge Lettieri recently convicted Ibrahim and Al-Amin and Al-Akhbar Beirut S.A.L. of contempt and respectively issued each a fine of €20,000 and €6,000. This post will present an overview of the Contempt Judge’s written reasons with respect to sentencing and will provide additional commentary on a few matters.

Summary

Applicable Law
In his review of the applicable law, Judge Lettieri recalled that Rule 60bis of the Rules of Procedure and Evidence provides that the maximum penalty for contempt shall be seven years’ imprisonment and a fine not to exceed €100,000. He also demonstrated that Rule 171(D), which requires that a sentence be issued with respect to each count on the indictment, applies mutatis mutandis to contempt proceedings. Judge Lettieri stated that he is guided by both Rule 172(B) and sentencing practice at the ICTY in contempt matters. He highlighted the importance of the retributive and deterrent functions of criminal penalties for contempt of court.

Ibrahim Al-Amin
Judge Lettieri declared that Mr. Al-Amin’s absence from the proceedings “will have no bearing on the determination of the sentence in this case, except insofar that Mr. Al-Amin will not receive mitigation for cooperating with the Prosecution.” The Judge found Mr. Al-Amin’s crimes to be “particularly egregious” in light of their gravity, as well as Mr. Al-Amin’s decision to publish a second article despite public outcry in reaction to the first. The Judge reiterated that these articles served no journalistic purpose in revealing these individuals’ identities and portraying them as “witnesses against Hezbollah.”

The various aggravating factors highlighted in the written reasons include the fear experienced by witnesses, the overwhelmingly negative public discourse surrounding the publications, witnesses’ loss of confidence in the Tribunal’s ability to protect confidential information, and the direct harm suffered by at least one witness as a result of the publications.

Al-Akhbar Beirut
The Judge rejected the Amicus Prosecutor’s argument that the continuous nature of the Accused’s crimes allows the Tribunal to impose a separate fine for each day the impugned material remained published. The Amicus had requested a two-year prison sentence and a fine of €127,000. Judge Lettieri stated that the Rules of Procedure and Evidence are unequivocal: the STL may only impose one sentence for each count listed on the indictment, or issue a sentence that reflects a totality of the counts. Al-Akhbar was convicted of only one count and thus may only receive a maximum fine of €100,000.

In light of the fact that a corporate accused had not previously been tried under international criminal law, Judge Lettieri looked to Lebanese law in order to determine an appropriate sentencing range. He noted that similar conduct in Lebanon could carry a prison term of three months to two years and/or a fine of €5,935-17,820.

Judge Lettieri also noted the “separate penalty already imposed on Mr. Al-Amin as an individual” when determining Al-Akhbar’s sentence.

Commentary

While the grounds for Mr. Al-Amin’s sentence are predictable and seemingly uncontroversial, the reasoning behind Al-Akhbar’s sentence leaves more questions than answers. To recap, Judge Lettieri affirmed that:
I note that this is the first occasion in which a legal person has been convicted of the obstruction of justice in an international criminal setting. I find, however, that the same sentencing principles of retribution and deterrence that apply to natural persons, must equally apply to legal persons (emphasis added).
The Statute of the STL designates the Lebanese Code of Criminal Procedure (LCCP) as the Tribunal’s primary source of applicable law, and Rule 3(A) of the Rules of Procedure and Evidence (RPE) state that its provisions should be interpreted - in order of precedence - in consideration of customary international law, international human rights standards, general principles of law, and, “as appropriate,” the LCCP. In coming to his sentencing judgment, Judge Lettieri decided to look to Lebanese law for a principle source of guidance.

Article 24(1) of the STL Statute stipulates that, “the Trial Chamber shall, as appropriate, have recourse to international practice regarding prison sentences and to the practice of the national courts of Lebanon.” The Appeals Chamber ruled - in opposition to Judge Lettieri’s opinion - that the provisions of Rule 3(A) constitute sufficient guidance with respect to the trial of corporate accused, such that the principle of in dubio pro reo (when in doubt, side for the accused) enshrined in Rule 3(B) need not be activated. The Contempt Judge was led by Lebanese practice rather than international practice, and as acknowledged above, the practice of looking to Lebanese law with respect to procedural matters is well-established at the STL. 

A cursory review of corporate liability worldwide suggests that it is unusual that another Accused’s sentence can be considered a mitigating factor for the corporate accused’s sentence. Further research would be required to determine sentencing practices for corporate accused in Lebanon but of 12 European countries included in one overview, only the Netherlands was described as forming no distinction between legal and natural persons with respect to the imposition of fines. Several states, including Italy, specifically maintain trials of legal and natural persons independent from the other. Most simply give no indication that one accused’s sentence may constitute a mitigating factor in the sentence of another.[1]

Finally, it seems strange that the Tribunal issued an entire corporation - which presumably enjoys access to larger than the average individual - such a low fine. This penalty falls well below Al-Amin’s, and is actually the smallest fine ever issued in a contempt case at an international tribunal by about €1,500. The Defense did argue that a harsh financial penalty could punish Al-Akhbar’s employees and their families rather than the corporation itself, but this was not discussed in Judge Lettieri’s written decision


[1] Clifford Chance LLP. (2012). Corporate Liability in Europe. London: Clifford Chance LLP.

Sep 26, 2016

The STL Contempt Cases in Context: An Empirical Review of International Practice

It is no secret that the available body of international criminal jurisprudence is still developing and expanding. The International Criminal Court (ICC) began hearing cases only a decade ago, and the Special Tribunal for Lebanon (STL) has not yet reached a verdict in its seven years of operation. The STL has nevertheless attracted considerable attention for its controversial indictment of four legal persons—two individuals and two corporations—for contempt of court. Though the first case against Ms. Karma Al-Khayat and Al-Jadeed S.A.L. ultimately resulted in an acquittal, the Contempt Judge recently convicted Ibrahim Al-Amin and Al-Akhbar Beirut S.A.L. He issued a fine of €20,000 and €6,000 respectively, but did not impose a prison sentence.

But what do these fines really mean in the broader context of “international” contempt cases? I decided to take an empirical approach to answering this question in light of the fact no systematic study of such contempt cases has been undertaken. In fact, it appears that data is rarely used to answer questions that are relevant to international criminal law (ICL) unless they fit within the broader context of international relations theory. Lawyers and judges must be informed by the facts just as much as political scientists do. This is especially true when it comes to sentencing in international contempt cases, as this represents relatively underdeveloped territory for ICL. As the title suggests, this piece will provide a rough overview of the state of contempt cases at international tribunals. Though the data that was collected is limited, it allows us to evaluate the STL’s decisions in the two contempt cases

Methodology

I attempted to generate the most exhaustive record of contempt cases that have been litigated in an international criminal tribunal. The list is comprised of proceedings from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the “Subsequent Nuremberg Trials,” (SNT), the ICC, and the STL. No cases from the International Military Tribunal (IMT), International Military Tribunal for the Far East, the British War Crimes Courts in Hong Kong, the Special Panels of the Dili District Court, or the Extraordinary Chambers in the Courts of Cambodia could be found. It is possible that some contempt cases have been handled confidentially, but these naturally cannot be included in this study.

Any set of proceedings regarded by the tribunal in question as a contempt case was considered in this analysis. A trial must have taken place and a verdict must have been issued. Thus, an interim order to detain an unruly witness or defendant would not qualify.

I then recorded the case, the court, the year the final judgment was issued, the defendant’s sentence in months (if applicable), the number of months that individual actually served in prison, the fine imposed in Euros (if applicable), whether the defendant was acquitted, and whether the defendant’s sentence was suspended or served concurrently with a separate (non-contempt) sentence.

Additionally, joined cases were separated where sentences differed in order to make a more accurate record of prison terms and fines that were imposed. For example, the case against Al-Amin and Al-Akhbar were separated in this dataset because each received a separate fine. On the other hand, the case against Al-Khayat and Al-Jadeed was left joined because each was ultimately acquitted.

Observations and Findings

Before passing judgment on the sentence imposed by Judge Lettieri, it is important to understand that contempt of court has not been adjudicated as frequently as “substantive” ICL cases. The data shows that only 42 cases have been completed, 71% of which have resulted in convictions. It bears noting that indictments have been issued against multiple individuals in four additional cases but two of the defendants remain at large, two are awaiting extradition, and five are awaiting judgment. The following graph illustrates the frequency of formal contempt proceedings being brought against defendants at all international criminal tribunals from 2000 to 2016, including three cases from 1947.


The graph demonstrates that apart from the first three cases at the SNT, contempt of court was first prosecuted at the turn of the century. The first such case, against Avramović and Simić, resulted in an acquittal for both defendants. Nevertheless, the number of contempt cases generally continued to grow as existing tribunals became more established and new ones came into existence. It is possible that different courts were more prone to try individuals for contempt but as the following graph illustrates, the ICTY—which was established before nearly every other tribunal in this sample—accounts for the vast majority of cases. This may be explained by the sheer number of defendants at the ICTY compared to other tribunals, but would not account for why the ICTR (which also processed a large number of defendants) produced so few contempt cases.


In any event, the positive correlation between the number of contempt cases and time appears somewhat robust (r=0.45, p-value<0.01; excluding SNT cases). Furthermore, this graph and measure of correlation under-represents the number of individuals tried for contempt by international tribunals. Every tribunal except the SNT joined multiple defendants into a single case in several instances. Most of these cases, including the ICC trial against Bemba and four others, concluded after 2013. This correlation would likely be even stronger if every defendant were included individually in this dataset.

Prison Sentences

The number of proceedings is, of course, only half the story. Comparing the sentences imposed by Judge Lettieri to the sentences handed down by other tribunals will provide a clearer picture of whether the STL is in line with current international practice. First of all, Judge Lettieri’s decision not to sentence Al-Amin to prison should be viewed in light of the fact that 83% of those convicted of contempt at an international tribunal were handed a prison term. The mean sentence doled out to these individuals totaled to 8.32 months, which is slightly inflated by the three separate contempt cases in which Vojislav Šešelj was sentenced by the ICTY to 15, 18, and 24 months in prison respectively.

Residual international tribunals such as the MICT (for the ICTY and ICTR) and the RSCSL (for the SCSL) tend to consider applications for early release once the offender has served two-thirds (67%) of his sentence.[1] In light of this practice and other factors (such as providing credit for time served and past human rights abuses), many defendants convicted of contempt have not served their full sentences. On average, an individual sentenced to prison for contempt will have served 5.61 months. Though this figure is almost exactly equal to two-thirds of the average sentence, a year-by-year analysis shows some variation (see the following graph). Moreover, if any sentences in which the defendant served no time in prison following their conviction (on account of credit for time served or other factors) are excluded, along with those from the SNT, then the average time served rises to 9.75 months. Thus in cases where the defendant was not confined to excessive time in prison pending trial, international tribunals tend to require nearly full completion of the sentence.


If anything, this data suggests that the average prison sentence being delivered by international tribunals in contempt cases is increasing and the average time served is increasing accordingly. Nevertheless, a look at the ratio of the average time served to the average sentence imposed reveals that no discernible trend exists with regards to the portion of the sentences that is actually served. Only time will tell whether the duration of prison terms for contempt sentences will align with the two-thirds standard that has been introduced by the MICT in later years.

Lastly, it bears mentioning that 46% of the prison sentences that were imposed were served to 0-60% completion, excluding pre-trial detention. Of these, 42% resulted in no additional prison time. Only 15% of the prison terms fell within the range of 61-71% completion (roughly corresponding to two-thirds), half of which were terminated at exactly 2/3 of the original sentence. Finally, 38% of those sentenced to prison were incarcerated for 72% or more of the length of their original sentence. Of these, 90% served their full sentence.
.

Fines

Perhaps most relevant to evaluating the sentence imposed on Al-Amin and Al-Akhbar is, of course, a review of the history of contempt fines at international tribunals. However, there is little data to draw from because only 7 separate fines have been issued for such cases of contempt of court (including the separate fines handed down to Al-Amin and Al-Akhbar). This monetary penalty averages to about 12,216.75. Excluding the STL case, the mean drops to 11,903.45.

Analysis

For starters, the fact that Judge Lettieri merely imposed a fine on Al-Amin may suggest that his sentence was relatively lenient in light of the fact that the vast majority of those found in contempt received a prison sentence. But how do Al-Amin’s actions compare to the crimes committed by those who were sent to jail? Vojislav Šešelj was handed the three most severe sentences of all the contempt cases (15, 18, and 24 months) for precisely similar acts as Al-Amin and Al-Akhbar: disclosing confidential witness information and refusing to remove such information. To be sure, Šešelj was already detained pending the completion of a separate trial at the ICTY, perhaps encouraging the Tribunal to impose a harsher sentence. Moreover, Šešelj was particularly blatant about his contempt of the Court. But this disparity does call into question whether Al-Amin should have received a prison sentence in light of the fact that he too displayed open disregard for the Tribunal’s authority.

Other crimes resulting in prison terms were decidedly less grave than those committed by the defendants at the STL. For instance, Milan Tupajić was sentenced to two months in prison for refusing to comply with a subpoena ordering him to testify. In another case, Kosta Bulatović was sentenced to four months’ imprisonment for refusing to complete his testimony before the ICTY. Bulatović made this decision in light of the Trial Chamber’s ruling to continue the proceedings despite the accused’s absence from the courtroom on account of his ill health. The significance of any contempt case should not be downplayed, but these examples cast doubt on the appropriateness of Judge Lettieri’s sentence in the case against Al-Amin and Al-Akhbar.

Though Judge Lettieri may have been lenient in declining to issue a prison sentence, the fine he imposed on Al-Amin was comparatively strict. It lies well above the mean fine imposed by other international tribunals, and is exactly equivalent to the maximum amount ever levied in a case of contempt. Both tribunals—the ICTY and the STL—allow for a maximum fine of €100,000 according to their respective Rules of Procedure and Evidence. Thus, as far as the fine itself is concerned, Al-Amin received a harsh sentence.

The same may not be said of the Al-Akhbar news corporation. The fine of €6,000 is well below the international standard. Considering that Judge Lettieri labeled the acts committed by Al-Amin and Al-Akhbar as “particularly egregious” in the written reasons for his sentencing judgment, the €6,000 would appear relatively light. Moreover, a corporation cannot be sentenced to prison meaning the Contempt Judge could only ever issue a fine to Al-Akhbar. This dilutes the severity of the sentence further still.

Nevertheless, the sentence sought by the Amicus Prosecutor against Al-Amin and Al-Akhbar bears no connection to international practice whatsoever. As we reported in our previous STL Blog post, the Amicus Prosecutor sought a prison sentence of 24 months and a fine of €75,000 for Al-Amin, as well as a fine of €112,700 for Al-Akhbar. This length of prison sentence was only matched in the third case against Vojislav Šešelj. Though Al-Amin did demonstrate repeated indifference to the STL’s protection orders, the prison term sought by the Amicus appears unduly harsh for a first-time offender. It goes without saying that the fines sought by the Amicus for both defendants far exceed the international norm. With respect to Al-Akhbar, the Amicus Prosecutor would likely argue that the company is a repeat offender. In their view, each day the confidential information remained published constitutes a separate offense. Judge Lettieri handily dismissed this claims in the written reasons for his sentencing judgment.

Data Limitations

Any conclusions drawn from this data must be met with caution. At the outset, the strength of this analysis is weakened by the small population size. It is possible that this dataset only represents a sample of the total population of contempt cases but even so, there are simply too few cases from which we may establish any patterns or trends with certainty. Instead, this data provides a snapshot of what international practice has looked like for the past sixteen years, with the addition of the 1947 cases. Nevertheless, it is debatable whether the SNT proceedings should qualify for this dataset. Unlike the IMT, the SNT was staffed by American judges and prosecutors, thus undermining the “international” character of the tribunal. Moreover, singular cases that are nearly 70 years old are unlikely to be instructive with regards to current practice or future trends.

However, it could also be said that international contempt cases in general are too “singular” to allow for systematic analysis. Activities that have qualified as contempt of court in an international setting range from ignoring a subpoena to bribing a witness to releasing confidential witness information. The facts have often been highly particular to the case, and the gravity of the crime relative to these facts. The general inferences that may be drawn from this data would ignore these important details.

While the nature of the data itself presents its own challenges, the decisions made when constructing the dataset offer benefits and drawbacks. For instance, the decision to subtract credit for time served from the measure of time actually served deflates the latter figure. One may argue that the time was still served, but the sentence was simply completed (in whole or in part) before the final verdict. I justify this decision by pointing to the interplay between the brevity of a typical contempt sentence and the lethargy of the international justice apparatus. Many of those convicted of contempt were already detained for long periods of time in relation to other criminal cases. Including this time in the record of actual time served would often convert this figure into a measure of how long the detention/trial process lasted. This is an interesting issue, but for distinct reasons. Nevertheless, it may be useful to recalculate the measure of actual time served by including credit for time served in the final sum. Thus, only early releases would account for any difference between the sentence and the measure of actual time served.

I included three exceptions to this rule. I coded Vojislav Šešelj as having fully served each of his three sentences in light of the fact that he was incarcerated for over a decade but later acquitted of the separate charges filed against him. Keeping to the aforementioned coding guideline would have eliminated the three most significant sentences in the dataset. There are legitimate grounds for criticizing this form of cherry-picking, but I will simply reiterate that this piece is merely intended to provide a convenient overview of the topic. It does not rise to the standard of a formal study.

Lastly, the decision to separate joined cases where the sentences differ naturally inflates the number of entries in the dataset. However, I wanted to capture the most accurate range of sentences as possible in this dataset. Admittedly, restricting this separation to cases with differing sentences effectively eliminates one 18 month sentence and one €15,000 fine. However, separating all cases would massively inflate the number of cases even though most of these joined proceedings resulted in acquittals. Perhaps these two instances were appropriate opportunities for selective cherry-picking as described above. If included, the average prison sentence would increase to 8.7 months and the average fine would increase to €12,564.65.

Conclusion

Though it may be too soon to tell exactly what direction sentencing patterns in international contempt cases are taking, the cases that we have at our disposal paint a telling picture. International criminal tribunals appear to favor criminal sentences over fines for those convicted. However, it is unclear whether these tribunals are more or less likely to grant early release to those convicted of contempt. The data certainly shows that the Contempt Judge at the STL is not operating in a vacuum—his decision to impose a fine rather than a prison sentence does not follow a clear trend in international practice. Nevertheless, it is difficult to interpret the appropriateness of the fines issued to Al-Amin and Al-Akhbar given how few fines have been issued by other tribunals for contempt of court. What is certain is that the saga of the STL contempt cases will likely serve as important precedent not only for the prosecution of legal persons under international criminal law, but also sentencing practices that may have a profound impact on a defendant’s human rights.


[1] For more data and analysis of post-conviction issues at international tribunals, see Holá, Barbora and Joris van Wijk. (2014). Life after Conviction at International Criminal Tribunals: An Empirical Overview. Journal of International Criminal Justice, 12(1), 109-132.

Aug 29, 2016

Contempt Judge issues fine in case against Al-Amin and Al-Akhbar Beirut

On 29 August 2016, the Amicus Prosecutor and Defense for Ibrahim Al-Amin and Al-Akhbar Beirut S.A.L. submitted their positions vis-à-vis the sentencing of the accused. Judge Lettieri noted the absence of the accused in the courtroom and that the Registry attempted to serve Mr. Al-Amin with official notice of the proceedings. Though Mr. Al-Amin refused this notice, Judge Lettieri was satisfied that the accused had been made aware of the proceedings against him.

Amicus Prosecutor Submissions
The Amicus Prosecutor began his submission by noting that “[i]f there are no witnesses, there are no cases.” He added that if there are no cases, there naturally is no justice. He sustained that the gravity of the offense and the need for deterrence require a sufficient punishment. The Prosecutor insisted that nothing in this case was “left to the imagination.” Through the language and tone of the impugned articles, the actions of the accused sent a clear message that the witnesses whose personal details were published were to be regarded as “witnesses against Hezbollah.” The Prosecutor referred to a contempt case before the Special Court for Sierra Leone, in which the Court noted that the characteristics of a community can aggravate the violation of witness protection orders. The Prosecutor thus argued that the actions of the accused constitute grave offenses in the politically charged Lebanese context. To make the point abundantly clear, the Amicus Prosecutor conjectured that if Mr. Al-Amin were in court today, he would tell the STL “to go to Hell.”

According to the Prosecutor, the aggravating factors of this case include the accused’s consistent disregard for the authority of the Tribunal, the actual harm suffered by the purported confidential witnesses, the specific intent deduced from the articles, and the lack of remorse or regret shown by the accused. He further noted that Mr. Al-Amin’s initial appearance for his suspect interview should not be considered a mitigating factor because he merely used it as a political platform and did not cooperate with the investigators.

The Prosecution proceeded to present more recent evidence of the accused’s lack of cooperation. Mr. Al-Amin appeared on a Lebanese television network to denounce the work of the Tribunal. In the interview, the accused likened the STL to Israel, denouncing both as an “occupation tool.” The accused went on to say that he did not care if the Court seized his assets or sought his arrest, but declared that he would resist its authority. The Prosecution presented this exhibit to underscore the accused’s lack of respect for the Tribunal and absence of remorse for his actions.

The totality of these circumstances led the Amicus Prosecutor to request a prison term for Mr. Al-Amin of 2 years, accompanied by a fine of €75,000. Curiously, the Prosecution contends that with respect to Al-Akhbar, each day that the publications were available constitutes a separate offense. This amounts to a total of 1,127 days of criminal conduct, leading the Prosecutor to request a fine of €112,700 (or €100 per day). Judge Lettieri noted that this amount exceeds the maximum amount sanctioned by Rule 60bis. The Amicus Prosecutor responded that because Al-Akhbar’s offense constitutes an ongoing crime, it would be within the Contempt Judge’s power to issue a fine of €100,000 per day (for a total of €112,700,000).

Defense Submissions
The Defense opened by reminding the Court, “Let he who is without sin cast the first stone.” The Defense maintained that the unique nature of the charge against their clients requires a lenient sentence. In fact, the Defense stated that the moral condemnation resulting from the conviction of the accused functions as both a sufficient punishment and an adequate deterrent.

The Defense listed a number of mitigating factors. Firstly, they state that Mr. Al-Amin’s voluntary attendance of his suspect interview evidences his cooperation with the Tribunal. Contrary to what the Prosecution claims, the Defense believes that Mr. Al-Amin was cooperative during this interview and only reacted to provocative questions posed by the investigators as any person would. The Defense said that Mr. Al-Amin explained to the investigators that he intended to report on internal STL leaks, which are clearly relevant to public interest. At no point, according to the Defense, did the accused seek to obstruct the Prosecution’s contempt investigation.

The Defense additionally suggested that no significant tangible harm occurred as a result of his clients’ actions. Moreover, Counsel argued that the STL’s own attitude toward this case imply that the gravity of the conduct of the accused is minimal. The Defense highlighted the fact that it took three years for the Court to officially order the removal of the confidential information, at which time the accused complied. The Defense further argued that the number of confidential witnesses who testified in the contempt cases alone implies that public confidence in the Tribunal’s ability to protect witness confidentiality was not undermined. 

Counsel for the accused also argued that imposing a monetary penalty on Al-Akhbar would be unfair in light of the current financial crisis afflicting the Lebanese print media. The Defense claimed that a fine would only punish the Al-Akhbar’s employees and their families, amounting to a “tangible blow to freedom of the press in Lebanon.” Lastly, Counsel maintained that the facts of the present case would not amount to a crime under the Lebanese Criminal Code. Thus, it would be unfair to punish Mr. Al-Amin and Al-Akhbar for a crime that would not otherwise exist.

Amicus Prosecutor Rebuttal
The Amicus Prosecutor responded to the Defense’s submissions by emphasizing that “this is a court of evidence.” He noted that no evidence that suggests there was a leak within the STL has come to light. This would, in theory, undermine the journalistic integrity of the Al-Akhbar publications.  With respect to the Defense’s claim that moral condemnation is enough, the Prosecution referred to the interview that was presented and asked “Does that look like a man chastised?”

With regards to the financial situation of the Lebanese press, the Prosecutor noted, “This court is not charged with the responsibility for the health of the print media.” He went on to imply that the financial situation of Al-Akhbar could possibly be due to a number of causes including, provocatively, the poor quality of their journalists. Even more confrontational was the Prosecutor’s response to the suggestion that minimal tangible harm had occurred. He compared this defense to saying the same thing of a terrorist who carries a bomb into a crowded market but is unsuccessful in detonating it.

Defense Rebuttal
The most notable aspect of the Defense’s response to the Prosecution’s submissions pertains to the interview with Mr. Al-Amin that was later tendered into evidence. The Defense claimed that the context of this interview suggests that Mr. Al-Amin did not intend to voice hostility toward the Tribunal. According to the Defense, the program mainly covered topics relating to Israel. When the conversation shifted to the subject of Mustafa Badreddine, the Defense noted that Mr. Al-Amin did not take the opportunity to delegitimize the case against him. Furthermore, the clip that the Prosecution presented occurred during the end of the interview at around midnight. Counsel claimed that this interview was not broadcast by other stations. The Defense highlighted that in fact, their client has not undertaken a large media campaign in his personal defense despite ample opportunity to so.

Sentence issued
After a short break, the Contempt Judge issued the sentence: a € 20,000 fine for Mr. Al-Amin and a €6,000 fine for Al-Akhbar. Written reasons will follow in due course.

Aug 24, 2016

Continued Examination of Prosecution Investigator Gary Platt on Covert Phone Networks

In the last two days before the Tribunal’s judicial recess, the Prosecution finished its examination of Gary Platt while the Sabra Defense began with its cross-examination. Mr. Platt is a Prosecution investigator who the Trial Chamber designated as an expert witness in covert networks. Consult our previous post on this witness for further information on his qualifications and prior testimony.

[Screenshot of witness Gary Platt testifying before the STL on 26 July 2016]

On 26 July 2016, the Prosecution recommenced its examination of the witness after previously having discussed the setup, initialization, and recharging of the Red Network phones. The Prosecution began by attempting to establish the covert nature of the Red Network (among others) through the witness’s investigatory expertise. Mr. Platt testified that various elements point to the covert and criminal nature of the Red Network. For instance, no subscriber details were provided by the Network purchaser while false identification was supplied by the dealer. Furthermore, the lack of a financial trail led the investigator to conclude that every purchase associated with the phones (including the Network lines, handsets, and SIM cards) were paid for in cash. Additionally, no SMS messages were sent by Red phones, suggesting that the users took many precautions to ensure that their conversations were not recorded.

Mr. Platt testified that the nature of the Red Network’s activity further evidences its covert nature. He said that the phones made calls in a “cohesive and pattern and manner,” usually being switched off when not in use. Furthermore, the phones were not used after the day of the Hariri assassination, suggesting that they were of no use past that date and were only a liability to the covert operation. Approximately 88% of the Red phones’ calls were between other Red Network devices, the rest constituting service calls to Alfa and five misdials. Only three of the misdials were the fault of a Red phone user, thus suggesting that this was a closed network.

The Prosecution presented data uncovered by the witness his investigation that showed the duration of Red Networks calls. Excluding service calls and misdials, 80% of the calls lasted between zero and one minute while the longest did not surpass six minutes. The witness believes that this is another indication of the Network’s covertness as it is his experience that certain criminal enterprises often use telecommunication for short, information-sharing calls. Mr. Platt later stated that the chronology of these short calls further demonstrates that information was passed from one user to the next.

The Prosecution subsequently displayed a visual aid depicting the location of the Red Network calls. The Prosecution discovered that 83% of the calls occurred in the Beirut area, 12% in Zouq Mosbeh and Faraya, and 5% in Tripoli the area. This information is important for identifying Red network activities. Many of the calls occurred in areas around Parliament, Hariri’s residences, and the crime scene. Mr. Platt testified that it was typical for a terrorist cell’s final calls to be made from the crime scene right before the attack, as is the case with the Hariri assassination.

Afterward, the Prosecution expanded the scope of its examination to include the connectivity among all of the identified Networks. Mr. Platt testified that the networks demonstrated coordinated activity periods, and that each paid for their devices and lines in cash. He also said that the Blue and Yellow Networks shared top-up cards and handsets, and that they tended to top-up at the same time and location. Furthermore, the Blue and Green phones initialized in the same area, and the Yellow and Blue phones were present during the Red Network initialization.

Mr. Platt testified about the financing of these networks as well. He stated that approximately $6000 was spent to finance the Green Network, despite its limited usage. The Blue Network, for example, was left with $5000 of unclaimed credit. Similarly, the Red Network retained $500 of credit which was never recovered by a user. According to Mr. Platt, this suggests that the organization maintaining these networks was well-financed, which reveals a high level of coordination. Furthermore, the fact that no one sought to claim the substantial amount of credit that was left on these phones suggests that the users did not want to risk the secrecy of their operation.

Afterward, the Sabra Defense commenced its cross-examination of the witness. Mr. Mettraux’s line of questioning largely followed the same style as his recent cross-examination of Mr. Macleod, where the witness was asked to comment on non-evidentiary documents that were read to him. In the present case, the Sabra Defense accompanied this tactic with an alternate theory of the purpose of the Red Network. Though Mr. Mettraux agrees with the Prosecution in that the so-called Australian Pilgrims were not involved with the Hariri plot, he theorized that they were the targets of a setup by those who were. In a four-pronged approach, the Defense intends to show that 1) there was an effort to set up the Pilgrims, 2) the culprits attempted to tie the Red phones to the Hariri plot, 3) the culprits succeeded in identifying the Pilgrims as suspects, and 4) the Red network lines were allowed to be uncovered for the purpose of the setup. In response to a subsequent question by Judge Re, Mr. Mettraux stated that the Sabra Defence would provide explanations for the purposes of the other phone networks in due course.

Though Mr. Platt repeatedly insisted that he was not familiar with the case of the Australian pilgrims and that he had no knowledge of an investigation into a possible setup, the Sabra Defence continued to put documents to the witness for him to comment upon. Many of these sought to establish the movements of the Pilgrims, putting their place of residence in Lebanon at Minieh, near where the Red Network lines were activated. Furthermore, their residence was near several phone shops that were possible connected to the sale of the Red phones. However, the witness pointed out that it was impossible to trace the ultimate sale of the handsets. Furthermore, Mr. Platt noted that even though the Red phones may have activated the Minieh cell site, this does not mean they were near the Pilgrims’ residence or the phone shops. This is because rural cell sites tend to have a wider coverage.

Additionally, the Defense inquired as to why the assassins purchased a van whose steering wheel was located on the right-hand side of the vehicle, as is the custom in countries such as Australia, rather than the left-hand side (as is typical of Lebanon). The witness could not answer, but Mr. Mettraux suggested that this was another effort to pin the blame on the Pilgrims.

On 27 July, the Sabra Defense recommenced its cross-examination by proposing the theory that the true assassins provided the Red phones to third-parties, tasking them to follow Hariri’s whereabouts and make phone calls amongst each other. This supposedly explains the handset swapping acknowledged by the Prosecution and the lack of nighttime calls.

The rest of the cross-examination largely sought to implicate Lebanese government officials with ties to Syria. By putting further documents to the witness, the Defense sought to establish that the Sûrete Général of Lebanon had access to the Pilgrims’ entry/exit records. Having attempted to show that certain actors within the government had access to the Pilgrims’ whereabouts, the Defence questioned Mr. Platt about how the Red network was originally uncovered. The witness responded that they were discovered by Ghassan Toufaili, the head of the technical department of the Lebanese military intelligence unit. Mr. Mettraux suggested that it was unbelievable that Toufaili could have uncovered this network in merely six weeks’ time. The witness admitted that the Prosecution replicated Toufaili’s investigation using computer software and that they never received evidence of the Lebanese official’s handiwork. The Defense then questioned the witness about the relationship between Toufaili and Rustom Ghazaleh, the head of Syrian military intelligence in Lebanon at the time. The two were said to be close friends.

The witness pointed out several oddities within Mr. Mettraux’s working hypothesis. For instance, the Defense was forced to admit that the Pilgrims were in Saudi Arabia during the time of the Red network’s activation. Mr. Platt further observed that if the Lebanese had “infinite access to this [travel] information,” then the assassins would not have chosen individuals who were not in the country. Additionally, it is unclear to the witness how the assassins could have coordinated the bombing location such that it perfectly coincided with the Pilgrims’ departure.

Another odd aspect of this cross-examination is the Defense claim that it is the practice of these groups to blame Sunnis tied to jihadist groups for their attacks. The only example the Defense draws upon for this assertion is the unusual disapperance of Ahmad Abu Adass. Further, by the Defense’s own admission, the Australian Pilgrims bear no responsibility for any terrorist activities. As in the Macleod cross-examination, implicated individuals are cast as “jihadists,” which seem to be very charged terms to use on such tenuous footing.