Apr 16, 2015

Start of the contempt case against Al Jadeed and Ms Karma Al Khayat: Opening statements

The first contempt case at the Special Tribunal for Lebanon started today. This is the case against Al Jadeed, a Lebanese media company, and its deputy head of news, Ms Karma Al Khayat. Al Jadeed and Ms Al Khayat have been indicted with two counts of contempt of court: (i) broadcasting and/or publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the tribunal; and (ii) violating a court order to remove from its website and YouTube channel information on these purported confidential witnesses.

The Amicus Curiae Prosecutor, Mr Kenneth Scott, starts his opening statement by stressing the importance of free speech. He states that this trial doesn't pose a threat to free speech, as there are limitations to free speech and the media must comply with the law. The Prosecutor cites from a previous decision in this case that "freedom of the press must find its limits where it impinges upon the tribunal's ability to function properly as a criminal court". Mr Scott further takes the opportunity to counter the claims that have been made in the last few months that this case is unprecedented, pointing to the fact that most international courts have prosecuted journalists for contempt of court, and this often has resulted in convictions. Mr Scott thus stresses that this is not new territory, and that the case is important to protect the proceedings and the integrity of justice, as evidence by witnesses is essential for the functioning of the tribunal.

[Amicus Curiae Prosecutor Mr Kenneth Scott in court during today's hearing]

With these initial comments, the Prosecutor seems to attempt to address the concerns that have been raised in the media and by the Defence that the tribunal is trying to curtail the Lebanese media in its criticism of the tribunal, and that this case is unprecedented. It's the Prosecutor's view however that this case is about a media company that wanted a scoop, and would do anything to get that scoop. Al Jadeed thus broadcasted five series of a program called “The Witnesses of the International Tribunal”, and the entire tenor of the program was the exposure of alleged confidential witnesses. Al Jadeed included eleven persons as alleged confidential witnesses, with some of them even being unaware of the fact that they had been filmed; and although some of the faces were distorted, their voices were often included as well as other identifying information such as the person’s job or place of employment. Immediately after the broadcasting, persons that were shown in the program were called by family or friends.

The Prosecutor subsequently shows a selection of the program, without showing any parts that would reveal any alleged confidential witness information, as these parts are subject to protective measures and won’t be shown to the public. The Prosecutor further stresses that after the Registrar sent a notice to Al Jadeed demanding to cease and desist their program, Al Jadeed made a claim that the decisions of the tribunal are not legally binding for Lebanese media. Also, Al Jadeed did not comply with a court order to remove any confidential information or material allegedly relating to confidential witnesses, as the episodes of the program were put on the internet. Al Jadeed’s claim that the information they used was leaked from the tribunal, is according to the Prosecutor an unsupported assertion and part of its campaign to undermine the tribunal.

Mr Scott thus concludes that Al Jadeed’s documentary was intended to reveal confidential information, and that Al Jadeed's message to the public was that protected witness would be exposed. According to the Prosecutor this reduced the confidence of actual witnesses and the public in the tribunal, and directly interfered with the Tribunal's core function and the administration of justice.

The Defence then take the stance for its opening statement. According to Mr Karim Khan, lead counsel for Al Jadeed and Ms Karma Al Khayat, the Prosecution's case is without any merits. Mr Khan starts by  describing Al Jadeed as a young, independent, objective and courageous TV station, with ground-breaking broadcasts, and unpopular with those in power and authority. Mr Khan stresses that freedom of speech is a value to be protected, and that it is of core importance in any democratic society. Restrictions on freedom speech should be strictly necessary, proportionate and in accordance with the law. According to the Defence, contempt of court has never been prosecuted in this manner, as the Prosecution is not pleading a specific paragraph under Rule 60bis (A), but has built its case on the general claim of undermining confidence in the tribunal. The Prosecutor is thus not alleging that actual protected witness information has been revealed or that witnesses have been interfered with, only that the confidence in the tribunal has been undermined. According to the Defence this has no legal basis, and is new territory with the Prosecution making up its case as it goes along.

Mr Khan states that there was no criminal intent on the part of Al Jadeed or Ms Al Khayat. Al Jadeed has not revealed any names and the faces were pixelated. Al Jadeed only showed that names of witnesses were available in the public domain and that action should be taken against this. At no time did Al Jadeed broadcast any of the names of the witnesses and Al Jadeed and its employees have been fully cooperating with the tribunal. Employees of Al Jadeed sat down with the Amicus Curiae Prosecutor to answer questions, including the reporter of the program and Ms Al Khayat herself.

In relation to the order by the Registrar, Mr Khan explains that after receiving this order, Al Jadeed took legal advice from the Media Council of Lebanon, which confirmed that they could continue broadcasting the program. Further, the order from a judge was not properly served on Ms Al Khayat, and therefore she was unaware of this order. Mr Khan also briefly touches upon the alleged corporate responsibility of Al Jadeed, which according to the Defence is a violation of the principle of nullem crime sine lege, as there is no legal basis for this international law. In our guest blog on the International Justice Monitor, we have expressed similar doubts about the tribunal's jurisdiction to prosecute legal persons.

[Ms Karma Al Khayat and her Defence counsel Mr Karim Khan]

Ms Karma Al Khayat also gives a short personal statement, talking about the duties of journalists to uncover the truth and question the authorities. She stresses the importance of freedom of speech and investigative journalism, and questions the amount of money spent on the tribunal by Lebanon. In her view Al Jadeed dared to reveal the failures of the Prosecution, and now it is standing trial for that.

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