Closing arguments in second contempt of court case against journalists

On 13 May closing argument were presented in the contempt of court case against the Lebanese newspaper Al-Akhbar Beirut and its editor-in-chief Ibrahim Al Amin.

The Amicus Curiae Prosecutor Mr Scott summarised its case: Al-Akbhar and Ibrahim Al Amin intentionally and willfully interfered with the administration of justice by their extreme and irresponsible conduct, that is disclosing the identity of alleged confidential witnesses. Mr Scott repeated that the case is not an attack on free speech or the entire Lebanese media (for criticising the tribunal), but directed against this specific criminal behaviour of the accused.

[screenshot of the court room during contempt proceedings - 1 March 2016]

The Prosecutor further explained that according to the law it does not need to prove any actual harm or interference, but only the objective likelihood that this will occur. The Prosecutor argued that the contempt judge has excluded evidence on the basis of narrow common law considerations whilst other international tribunals have taken a more liberal approach. According to him, the evidence must be considered as a whole and in a holistic evaluation, and hearsay evidence should be taken in consideration.

Conclusively, the Prosecutor stated that the press publications by the accused did create an objective likelihood that public confidence in the administration of justice by this Tribunal would be undermined; the evidence presented by the Prosecution, including the testimony of Dr Brouwer, shows this. The accused knew the effect of these disclosures, and the undermining of public confidence actually was the purpose of the publications.

Mr Abou Kasm, lead counsel for the Defence, started his closing speech by arguing that the Prosecution is trying to turn the case into a political trial; by linking the accused to Hezbollah, and by claiming that Hezbollah is an alleged source of threat to witnesses at the tribunal. The Defence denies any links between Al-Akhbar and Hezbollah. Further, the Defence stated that the situation in Lebanon is stable and save, contrary to the claims made by the Prosecution about the unstable security situation in which the names of the witnesses were disclosed. The Prosecution failed to prove the mens rea and actus rea of the accused; also it did not establish any suffered harm or the undermining of public confidence. Mr Kasm concluded that the Prosecutor failed to prove that Al-Akhbar or Mr Al Amin intended to obstruct the course of justice or that these publications undermined the public confidence in the ability of the Tribunal to keep its information confidential; therefore there should be an acquittal for both accused.

The case is now closed and awaiting judgment.

Continuation of evidence by representative of Lebanese company Alfa

PRH707 has been working at the Lebanese mobile network company Alfa since April 2012. He has been delegated as a representative witness of Alfa by the Minister of Telecommunications of Lebanon. He has already testified earlier this year (see our blog of 21 March 2016), and has returned to the STL for the continuation of his examination-in-chief and cross-examination (which took place on 18-22 April and 3-4 May). The telephone data provided by Alfa is used by the Prosecution to attribute certain telephone use, movement and communications to the accused, activities which the Prosecution links to the terrorist attack of 14 February 2005.

The witness answered some clarifying questions by the Prosecution, including questions about the complaint logs of Alfa for 2004 and 2005 (which have not been kept), the change in cell ID of stations destroyed because of the war (the cell ID has been changed sometimes, if the location of the station changed), and the options for invoice payment in 2004 and 2005. The witness acquired information by consulting his colleagues from various departments and teams within Alfa. The witness also testified about the origin, creation process and accuracy of a number of documents produced by Alfa.

Mr Young, counsel representing the interests of the accused Sabra, questioned the witness about, among others, a big central database that has been created in 2014 by Alfa, the impossibility to confirm most of the values provided for 2004 or 2005, and the driving tests done by the Alfa. Mr Young also pointed the witness to wrongly included or missing cell cites in the best server maps created by the Prosecution for 2005. According to the witness, these maps reflect the reality of the coverage for 2005 by 60-70%. Counsel also asked the witness about a directed re-try: the situation in which a call is connected to a neighbouring cell if the best serving cell is too busy. In this case, the call data record will not record the best serving cell.

Ms Dimitri, representing the interests of the accused Badreddine, questioned the witness about the manner in which he was interviewed by the Prosecution, as the Defence is seeking to obtain disclosure of investigator's notes, draft statements and lists of questions in relation to these interviews. During the examination of witness PRH707, the Defence did receive various additional e-mails from the Prosecution, although it is seeking for the disclosure of further material. Part of the cross-examination of Ms Dimitri was postponed to allow her to analyse the material that has been disclosed. This might lead to the need for the witness to return and answer some further questions by the Defence in the near future.

The examination of this witness covered many exceedingly technical issues, which were discussed at great length and through the use of a large set of documents. The purpose of the Defence is to show the inaccuracies, uncertainties and mistakes in the data, which would have consequences for the Prosecution's theory, which is built on this information. Mr Young explained that their team takes the position that most of the key cell site data for 2005 is completely unknown, and that the Prosecution is relying upon theoretical predictive coverage on the basis of doubtful (shape file) values. According to the Defence, the best server plots are a poor representation of both the actual coverage and the location of a phone user, and therefore cannot be used for the forensic purposes the Prosecution is using them.