Continued Cross-Examination of Prosecution investigator Alasdair Macleod

The Trial Chamber continued to hear the testimony of Alasdair Macleod, a former investigator for the United Nations International Independent Investigation Commission (UNIIIC). The witness’s testimony was interrupted by the death of former accused Mustafa Badreddine, but recommenced on 13 July 2016. The cross-examination by counsel for Assad Sabra, Mr. Mettraux, and the re-examination by Mr. Milne for the Prosecution, spanned the course of seven days. Mr. Macleod was tasked with the investigation of the disappearance of Ahmad Abu Adass, the person who claimed responsibility for the bomb attack through a video message. Consequently, Mr. Mettraux’s examination concentrated on exposing flaws and alternate theories with respect to this investigation. The proceedings were often difficult to follow due to the use of private sessions, as well as the scope of the Defense’s line of questioning. For further information on the witness, consult our blog post on his previous testimony.

Mr. Mettraux’s cross-examination largely consisted of putting documents to Mr. Macleod and asking him to acknowledge their contents or clarify their relevance to aspects of the Abu Adass investigation. The Sabra Defense insisted that it did not seek to rely on the veracity of most of these documents, but rather their mere existence (the difference was disputed by the Prosecution). There were few instances in which Mr. Macleod was in a position to respond in detail to Mr. Mettraux’s questions, if he could confirm any relevant details at all. The witness often maintained that he was not involved with the aspects of the case to which the Defense referred.

13 July 2016

The Defense began its cross-examination by inquiring as to whether Mr. Macleod had any knowledge of a “story” relating to a person named “Mohammed” being “rewashed, reorganized, and reshaped to explain the departure of Mr. Abu Adass (...)”. Mr. Mettraux pointed to various witness statements that suggest that the story of an orphaned Christian convert to Sunni Islam emerged first in September 2004 and again in January 2005 when the UNIIIC adopted it. The original story is attributed to statements made by Taha Kanawati, an acquaintance of Abu Adass, which could potentially be corroborated by a neighbor of Abu Adass. The Sabra Defense presented a considerable number of UNIIIC witness statements to Mr. Macleod in order to inquire as to the relationships between Abu Adass, Hussam Mohsen, and Khaled Taha. The documents presented to Mr. Macleod suggested that Mohsen and Taha were tied by their fundamentalist views, thus implying that Abu Adass harbored these beliefs by extension.

Mr. Mettraux referred to the testimony of Mohammed Al-Bishti before a Lebanese investigative judge in which Bishti recounted the story of a grocer named Ahmad Freijeh. Freijeh allegedly witnessed the suspicious behavior of two individuals occupying a neighboring home. One, he said, was named Mohammed. According to his testimony before the investigative judge, Bishti recalled that Mohsen had told him that a man named Mohammed had taken Abu Adass to an unknown location immediately before his disappearance. It was alleged that the Lebanese authorities were able to track down this “Mohammed,” but Mr. Macleod had no knowledge of this. The Defense later put documents to witness that suggested that this Mohammed’s real name was Ibrahim Sbaneck, an individual who was under investigation by Lebanese authorities. Mr. Macleod had no recollection of this.

Counsel for Sabra further inquired into the movements of Khaled Taha around the date of the Hariri assassination. He referred to a UNIIIC report that put forward that Taha had returned to Lebanon from Syria the day before Abu Adass’s disappearance and left for Syria the day after. To the witness’s knowledge, UNIIIC investigated a possible connection but could not find one and that UNIIIC had eliminated the possibility that Taha had picked up Abu Adass (but could not recall how this determination was reached). The Defense then asked Mr. Macleod about his meetings with Syrian officials. Mr. Mettraux asked the witness whether these officials had labeled Taha as a “jihadist” with links to Al-Qaeda. Mr. Macleod responded that as far as he could recall, Taha was “involved in efforts to support the insurrection or the organizations in Iraq that were fighting the Americans.”

14 July 2016

After Mr. Macleod clarified that he stopped working on the Abu Adass investigation in late 2007 or early 2008, counsel for Sabra further inquired into Abu Adass and Taha’s possible affiliations with Al-Qaeda. One UNIIIC witness thought that the two may have carried out minor logistical functions within the organization while another suspected that Taha was involved with transporting fighters across the border to Syria. Mr. Macleod did not recall being provided this information and did not agree with the Defense’s characterization of Abu Adass’s increased religiosity as “radicalization.”

Another witness statement indicated that Abu Adass had said that he was leaving with Taha on the date of his disappearance and that Taha later called the Abu Adass household to mislead the family as to his whereabouts. Mr. Macleod had limited knowledge of this. The Defense also asked about any investigation into Bilal Zaaroura, a close associate of Taha’s who was known to use the public phone that called the Abu Adass household, but the witness could not recall the details of this aspect.

Of the many overlapping characteristics of Taha and “Mohammed’s” respective stories that were presented by the Defense, Mr. Macleod could only acknowledge that they shared a dislike of mobile phones, that they attended the Arab University mosque during separate time periods, and that Mohammed did call the Abu Adass home on 15 January while Taha may have made a call on the same date.

15 July 2016

The Sabra Defense’s cross-examination was structured around four points. First, Mr. Mettraux questioned Mr. Macleod about the movements of Khaled Taha’s family. According to a UNIIIC investigation, Khaled Taha’s mother left Lebanon with a son (not Khaled) and crossed into Syria on the day of the Hariri assassination. The witness had no knowledge of this and did not know of any investigation into this matter. The second point focused on the possibility that Taha’s movements into Syria were illegally facilitated.

The third area of the Defense’s cross-examination touched upon the selecting of Abu Adass for the video in which he claimed responsibility for the Hariri assassination. Mr. Mettraux presented an investigator’s note from the Prosecution that claims that the Syrian Military Intelligence (SMI) was monitoring the Hariri convoy in late 2002 or early 2003 through “Palestinian jihadists.” Though the witness had no knowledge of this information, he could confirm that both Abu Adass and Taha are Palestinians. After presenting more statements that suggested Syrian involvement, the Defense asked whether the witness was aware of an apparent “modus operandi of the SMI to use Palestinian jihadists to carry out jobs for them.” Again, Mr. Macleod was not aware of this information.

Additionally, Mr. Mettraux presented various witness statements that suggested Abu Adass and his family could have been targeted by the Al-Ahbash organization due to their religious disagreements. The Defense further speculated that an enmity may have developed after a cousin of Abu Adass was associated with the assassination of Al-Ahbash’s former leader. Mr. Mettraux further suggested that a fax sent by the organization to the Lebanese authorities laying blame for the Hariri assassination demonstrated intent to assign blame on Abu Adass. With the help of Khaled Taha, the Defense proposed that Al-Ahbash selected Abu Adass for the post-assassination video, that Taha lured him into the operation under false pretenses, and that Al-Ahbash attempted to point the finger at Abu Adass. While the witness was aware of certain aspects of this claim, he could not recall any investigation into this claim (which he viewed with skepticism).

18 July 2016

Mr. Mettraux’s final line of questioning from the previous session involved the Defense’s theory that the failed plot to bomb the Italian embassy in Beirut was in fact the first attempt on former Prime Minister Hariri’s life. According to the Defense, the truck bomb that was to be used in the embassy bore similarities to the one used in the Hariri killing. Furthermore, the Italian embassy may have been on the path to Parliament that Hariri’s convoy would have taken. The Defense presented possible connections between Abu Adass and those involved with the plot, but the witness was not aware of any connection between the embassy plot and Hariri’s assassination.

Counsel for Sabra also pointed to documents that the evidence that allowed the Prosecution to tie certain phone numbers to the accused in the Ayyash case originated from the SMI. Mr. Macleod admitted that he never saw the software that was supposedly used to obtain this information, and that he could not confirm its existence. The Mr. Macleod acknowledged that he was told that the paperwork surrounding this “breakthrough” was “destroyed,” and that the provenance of these attributed phone records could not be explained at the time.

Counsel for Oneissi cross-examined this witness in private session.

19 July 2016

The Prosecution spent half of the day re-examining Mr. Macleod in order to clarify various points. Mr. Macleod testified that he considered many statements upon which the Defense relied to be hearsay, including those which alluded to two calls to the Abu Adass household. He further characterized the two “stories” referenced by the Defense as a “mistaken conflation” of two accounts rather than a “shocking and sudden revelation of something previously hidden.”

The witness testified that although UNIIIC considered the possibility of Taha’s involvement in the Hariri assassination, no evidence was found to support the theory. In one interview conducted by Mr. Macleod, an acquaintance of Taha’s said that he seemed “surprised” and “upset” by Abu Adass’s disappearance, even showing tears in his eyes. Another witness had told Mr. Macleod that Taha was “gobsmacked” by his disappearance and that Taha had never recommended Abu Adass for operations of the “committee” (which refers to a group of militants). Taha himself was described as “bewildered” by the purpose of targeting Prime Minister Hariri. The Prosecution thus suggested that neither Ahmad Abu Adass nor Khaled Taha were likely to have taken part in the assassination.

Other Matters
On 15 June 2016, before Mr. Macleod took the stand, the Prosecution sought to formally admit evidence that the Trial Chamber had previously ruled admissible. These include subscriber notes from Alfa. The prosecution submitted various annexes, including 86 total pieces of evidence, relating to the details of the accused. These notes include the subscriber name, phone number, activation date, switch-off date, and call time. The Prosecution intends to use this information, in conjunction with civil records, to attribute phone numbers to the accused.

First Instance Judgment in Second Contempt Case

On 15 July 2016, Contempt Judge Lettieri issued his judgment in the case against the Lebanese newspaper Al Akhbar Beirut S.A.L. and its editor-in-chief, Ibrahim Al Amin. Both Al Akhbar - as a legal person - and Al Amin are accused of acting in contempt of the Tribunal by “knowingly and wilfully interfering with the administration of justice by: publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the Tribunal's ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.” For further information on this case, see our other blog posts on this case (here, here, and here).

Applicable Law

To prove the actus reus of the contempt charge, the Amicus Prosecutor was required to demonstrate that the accused had knowingly published the confidential information and that its publication created an objective likelihood of undermining public confidence in the Tribunal’s ability to protect witness confidentiality. Such undermining of public confidence constitutes interference with the Tribunal’s administration of justice, which is prosecutable under Rule 60bis of the Rules of Procedure and Evidence. The “objective likelihood” standard requires the application of ascertainable facts, rather than common sense or the testimony of a small sample of witnesses.

The proper mens rea requires “knowing and wilful interference with the Tribunal’s administration of justice.” Thus, it must be proven that the accused deliberately published the confidential material and knew that in doing so, their conduct was objectively likely to undermine public confidence in the Tribunal’s ability to protect witness confidentiality.

In terms of the Tribunal’s corporate jurisdiction, Contempt Judge Lettieri looked to Lebanese law in order to establish the material elements of attributing liability to legal persons. These are: (1) the criminal responsibility of a specific natural person; (2) the relationship of the natural person with the corporate accused; and (3) the authorization of the natural person’s criminal conduct on behalf of the corporate accused.

Findings

Actus Reus

Based on the subsequent articles published by Al Amin and Al Akhbar on the topic of the confidential witnesses, the Contempt Judge was satisfied that both accused released “highly detailed information which fully identified a total of 32 individuals as purported confidential Tribunal witnesses.” The Judge noted that the full contents of the original article - published on 15 January 2013 - remained available until 19 February, by which time the sensitive information and images had been blurred. The articles appeared to have been completely removed by 29 February.

Several witnesses testified to the effects of these articles. Witness AP06 claimed that following their publication, “he was the subject of gossip and fielded daily questions from people inquiring about his relationship with the Tribunal, his political affiliation and what he had done to have his picture published.” This witness further testified that he suffered business losses after the leaks. Witnesses AP07 and AP09 claimed that they feared being harmed by forces opposed to the STL. Two witnesses called on by the Defense testified that their faith in the Tribunal was not undermined, but still seemed to inadvertently imply that they suffered some degree of harm after the Al Akhbar publications were released. The Contempt Judge also considered a multitude of evidence in the form of Lebanese news articles and public reactions with respect to the negative perception of the Al Akhbar publications.

The Contempt Judge ruled on the basis of the above evidence that Al Amin and Al Akhbar adopted the role of a “political advocate” rather than a “neutral observer simply reporting on the results of an investigative inquiry.” Moreover, it was not demonstrated that publishing the witnesses’ personal details served any “journalistic purpose.” The testimony provided by witnesses for both the Amicus Prosecution and the Defense suggests that the individuals whose personal details were published suffered objective harm, or actively took measures to prevent such harm from occurring (including the purported recanting of testimony). Thus, the Contempt Judge Ruled that the Amicus Prosecutor had proved the actus reus beyond reasonable doubt.

Mens Rea

Contempt Judge Lettieri ruled that, on the basis of statements issued by Al Amin, it can be concluded that the accused had deliberately published witness details in spite (and because) of their confidentiality. Furthermore, in the 19 January article specific reference was made to the possibility of being found in contempt of the court as a result of publishing the witness information. Further analyses of the STL’s Rules of Procedure and Evidence published by Al Akhbar - and approved by Al Amin - demonstrate that the accused are aware of the functions of the Tribunal and the scope of its inherent power to prosecute contempt. Thus, the accused’s mens rea was proved beyond reasonable doubt.

Defense of Free Speech

Contempt Judge Lettieri again noted that “the journalistic profession may not be used as an impenetrable shield; where different legitimate interests are involved, they must be weighed in light of the priorities in a democratic society.” He pointed to the ICCPR, the Human Rights Committee, the ECHR, and Lebanese jurisprudence to demonstrate that reasonable limits to the freedom of expression are generally recognized.

Though the Contempt Judge recognized the press’s right to report on and criticize the Tribunal, he held that “there is a clear distinction between criticizing the Tribunal’s work and publishing the names (…) of 32 purported confidential witnesses.” It was not shown that this publication “was consistent with journalistic standards or ethics” or that it served any “journalistic value or pressing social need.” Furthermore, the inaccuracies contained within the Al Akhbar publications suggest that no meaningful attempt to verify the contents of the alleged “leaks” were made. This was found to be inconsistent with the basic tenets of investigative journalism. Thus, the Contempt Judge was not satisfied that Al Amin’s right to free expression exonerated him from prosecution.

The Judge further held that the requirements for attributing corporate liability to Al Akhbar for the actions taken by Al Amin on the organization’s behalf were satisfied. Under the by-laws of Al Akhbar and Lebanese criminal procedure, Al Amin’s notable positions within Al Akhbar allow the Tribunal to hold Al Akhbar liable for the criminal conduct perpetrated by Al Amin under the corporation’s auspices.

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The Death of Mustafa Badreddine (Part 3): Appeals Chamber's Decision Terminating the Proceedings

Badreddine Defense Interlocutory Appeal of the Trial Chamber’s Interim Decision

On 15 June 2016, the Defense for Mustafa Badreddine filed an interlocutory appeal of the Trial Chamber’s “Interim Decision on the Death of Mr Mustafa Amine Badreddine and Possible Termination of Proceedings.” First, the Defense claimed that the Trial Chamber “erred in law by only identifying the requisite standard of proof [of death] ex post facto.” Second, the Defense asserted that the Trial Chamber “erred in law in failing to precisely articulate the requisite standard.” Counsel was unsatisfied with the vagueness of the threshold provided by the Trial Chamber in its written reasons. Counsel additionally stated that the Trial Chamber erred in fact in its assessment of media reports on the circumstances of Mr Badreddine’s reported death. The Defense also contended that the Trial Chamber did not afford due consideration to the “evidence of a religious nature” that was presented before the Tribunal. Finally, the Defense believed that the Trial Chamber erred in neglecting to properly analyze the totality of the evidence presented before it.

Appeals Chamber's Majority Decision

On 11 July 2016, the Appeals Chamber issued its 3-2 written decision on the Badreddine defense’s appeal of the Trial Chamber’s interim decision to continue the proceedings. The Appeals Chamber first considered the Defense’s request to introduce evidence in the form of a Lebanese death certificate issued for Mustafa Badreddine, as well as an accompanying medical report. The Defense submitted that the certificate and medical report further corroborate their client’s death. However, the Appeals Chamber agreed with the Prosecution in that this evidence was improperly introduced and that its authenticity could not be verified. Thus, the majority did not consider this evidence in its decision.

The majority then considered the claim that the Trial Chamber erred in applying a standard of proof ex post facto and failing to articulate this standard. The Appeals Chamber maintained that it is “indisputable that a Chamber cannot properly determine whether a fact or state of affairs exists without applying the relevant standard of proof to that determination.” In light of this, the majority held that the Trial Chamber reached its decision “without knowing which standard of proof it was to apply.” The Appeals Chamber declared that this error of law invalidates the Trial Chamber’s decision.

The Appeals Chamber subsequently reviewed relevant national and international criminal jurisprudence to determine what standard of proof is generally appropriate for assessing “evidence of facts not going to the guilt of the accused.” The Appeals Chamber determined that the “balance of probabilities” (“preponderance of evidence”) is the appropriate threshold of proof of death. This standard was used by the ICTY in relation to the termination of proceedings against an accused on the basis of his mental health, as well as to determining the deaths of multiple witnesses. 

With this new standard of proof in mind, the Appeals Chamber decided that it was in a “good” position to review the matter of Badreddine’s death itself rather than remand it to the Trial Chamber. Based on a “holistic” review of the evidence presented before it, the Appeals Chamber concluded that the balance of probabilities points to Badreddine’s death. The majority noted that the entirety of the evidence supports this conclusion, and that no evidence to the contrary was submitted. Furthermore, it found that “there is no evidence on the record suggesting a false claim of death. The Appeals Chamber thus ordered the termination of the proceedings against Mustafa Badreddine without prejudice, leaving open the possibility for the proceedings to resume “should evidence that he is alive be adduced in the future.”

Dissenting Opinion of Judge Nsereko

In his dissent from the majority opinion, Judge Nsereko concurred with the majority in that the correct standard of proof is the balance of probabilities. Judge Nsereko did, however, note that this standard must be “commensurate with the seriousness of the finding,” leading him to conclude that the correct threshold in this particular case is “high.”

Judge Nsereko dissented from the majority’s opinion that the Appeals Chamber was in “as good a position as the Trial Chamber” to apply this new standard of proof to the facts. He sustained that due to the Trial Chamber’s “organic familiarity with the case, the Trial Chamber is considerably more suited to accomplishing this task than the Appeals Chamber.” Though Judge Nsereko stated that an assessment of the facts is best left to the Trial Chamber, he nonetheless decided to comment on the matter. Judge Nsereko was unimpressed with the circumstantial nature of the evidence presented by the Prosecution, adding that because most of the pieces of evidence emanate from one source - Hezbollah - they merely replicate each other and cannot be considered independent. Furthermore, Judge Nsereko described the evidence presented by the Badreddine Defense as “speculative.”

Finally, Judge Nsereko noted that the Lebanese government “refused to execute” the death certificate presented by Badreddine counsel because it “suffers from certain deficiencies which have presented the Lebanese authorities from legally determining that Mr Badreddine is deceased.” Because this evidence is confidential, its content can only be gleaned from the majority and dissenting opinions.

Dissenting Opinion of Judge Baragwanath

On 13 July 2016, Judge Baragwanath followed with his own dissent from the majority decision. He began by concurring with the Appeals Chamber’s conclusion that the balance of probabilities is the correct standard of proof to be applied in the case of the defendant’s death. Judge Baragwanath added, however, that this threshold may rise to the level of beyond reasonable doubt in the event that death becomes an element of the crime for which the defendant may be tried. The standard must be elevated, according to Judge Baragwanath, due to the defendant’s “failure to submit to the custody of the court,” and the resulting difficulties of a trial in absentia.

Judge Baragwanath then addressed the issue of whether the Trial Chamber erred in articulating the standard of proof it applied ex post facto. He agreed that the Trial Chamber erred in failing to articulate a standard of proof in its Oral Decision, but dissented from the majority by stating that the error did not invalidate the Trial Chamber’s decision pursuant to Rule 176(A). Judge Baragwanath noted that:

“The fact that the Written Reasons confirm the result of the Oral Decision suggests that the Trial Chamber carried out this re-evaluation exercise and concluded that the determination reached in its Oral Decision was correct according to the standard of proof it was now able to articulate.”

Thus, Judge Baragwanath concluded that the Trial Chamber corrected its error in its written decision, thus removing the Defense’s grounds for appeal on this point.

Judge Baragwanath further disagreed with the majority’s decision to exclude the evidence presented to the Appeals Chamber by the Defense. In contrast with the majority, Judge Baragwanath was satisfied that the Defense fulfilled the four requirements set out by Rule 186 of the STL Rules of Procedure and Evidence. Given the proper introduction of this evidence, Judge Baragwanath held that the Appeals Chamber should not have used its power to rule on its admissibility. Rather, the Trial Chamber is best suited to conduct a holistic review. According to Judge Baragwanath, the majority opinion reduces the quality of its decision and deprives the parties of their right to appeal any new decision made by the Trial Chamber on the basis of the correct standard of proof. Judge Baragwanath concluded that the evidence on the record was insufficient to prove Badreddine’s death on the balance of probabilities, taking into account the gravity of this finding.

Consolidated Amended Indictment

Pursuant to the Trial Chamber’s order, the Prosecution submitted the consolidated amended indictment for the four remaining accused in the case of Ayyash et. al. Mustafa Badreddine’s name remains on the indictment as a co-conspirator (rather than as an accused).

The Death of Badreddine (Part 2): The Trial Chamber's Decision to Continue the Proceedings

Submissions on potential consequences of Chamber's findings (1 June 2016)

Before issuing its decision on the personal status of Mustafa Badreddine, the Trial Chamber heard submissions from the parties on the potential consequences of its findings. The transcript may be found here.

The Prosecution submitted that is unlikely that better evidence of the defendant’s death will emerge. Therefore, the Trial Chamber should decide to terminate the case against Badreddine. If so, the the Court should issue an amended indictment that preserves Badreddine’s name as a co-conspirator. The Victims' Representative stressed that the Court should not issue an order to terminate the proceedings without prejudice. In the Representative’s view, if new evidence of Badreddine’s whereabouts were to emerge, it would be in several years’ time. The Legal Representative cautioned the Tribunal to exercise due care in terminating the proceedings against Badreddine, as the result would likely require a complete retrial if he were found alive. The Representative concluded that the “balance of convenience (…) lies in favor of allowing the proceedings to continue on the basis that [the STL is] not currently satisfied that the evidence is sufficient to conclude that Mustafa Badreddine is dead (…) whilst further inquires are conducted (…).”  The Defense vehemently disagreed with the Prosecution’s suggestion to re-characterize Badreddine as a co-conspirator on an amended version of the indictment in the event that the Trial Chamber terminates the proceedings against him. Instead, the Defense argued that all mentions of Badreddine should be wiped from the indictment and any outstanding arrest warrants should be voided.

The Trial Chamber’s Written Reasons for the Interim Decision to Continue the Proceedings

On 1 June 2016, the Tribunal ruled that “it did not believe that sufficient evidence has yet been presented to convince it that the death of Mustafa Amine Badreddine had been proved to the requisite standard.” Judge Braidy issued a dissent.

The Trial Chamber stated that it could not find evidence of an applicable international standard but nevertheless extrapolated several guiding international legal principles that govern the termination of proceedings against a deceased defendant. These are (citations omitted):

• “Where a court is satisfied on the available evidence that an accused person is no longer alive, it should terminate the proceedings against that person (...)”;
• “The doctrine of individual criminal responsibility provides that criminal jurisdiction may only be exercised over living persons. A court's personal jurisdiction (...) is therefore exclusive to that particular accused and ceases upon his or her death (...)”;
• “Termination or discontinuance of the proceedings may be either final and absolute or conditional and 'without prejudice' to reopening, resuming or continuing the case in appropriate circumstances, should the accused be found to be alive (...)”;
• “As a general rule, a certificate of death certified or authenticated by the State where death occurred or another interested state, is desirable though not essential, for a court to be satisfied as to the death of an accused. There may be circumstances in which a death certificate in the appropriate form or from an official source is unavailable, difficult to secure or the obtaining of which would result in unreasonable delay. In these circumstances other evidence supporting a finding of death may be accepted (...)”;
• “A death certificate alone may not suffice in all the circumstances and a court may seek additional evidence in the form of, for example, a post-mortem, coroner's report, other forensic report or document verifying that an accused is dead. DNA analysis, identification of the body may also be required to establish that the body purported to be that of an accused person—in respect of which there has been a funeral service and an interment—is in fact the accused's.”

In its majority opinion, the Trial Chamber decided that the termination of the proceedings against the accused in an in absentia trial is “an extreme step” which requires a “high standard of proof.” Though the standard need not reach the level of “beyond reasonable doubt” the majority directly refrained from specifying the appropriate threshold. The Trial Chamber further declared that in certain circumstances, a death certificate may amount to necessary, but insufficient proof of a defendant’s personal status. If no death certificate is available, however, the majority decided that “any other evidence” may be examined in order to be persuaded of the accused’s death.

On the basis of the evidence presented by the Prosecution and Defense counsel, the Tribunal decided that it is not yet satisfied of Badreddine’s death. The circumstantial and conflicting nature of the evidence, including the ambiguous circumstances of Badreddine’s death, made the Tribunal to determine that the proceedings must continue in the interim. The Court highlighted its belief that “[n]ot all avenues to obtain official proof from the Lebanese or any other State authorities certifying the death of Mr Badreddine have yet been exhausted.” The majority stressed that this is an interim decision that may be revisited upon receipt of additional evidence.

Judge Braidy's Dissent

Judge Braidy dissented from the majority decision to continue the proceedings. Judge Braidy agreed with the majority’s assessment of “guiding legal principles” that govern the termination of proceedings against a defendant in the event of their death. She further agreed that a “high standard of proof” is necessary to be satisfied of a defendant’s death. The judge did dissent, however, with respect to the application of these principles to the case against Badreddine.

Judge Braidy found the Jerbo case particularly instructive in light of the parallels between the ICC and the STL’s capacity to procure an official death certificate. In the Jerbo case, the Court heard circumstantial evidence of the defendant’s death given its inability to obtain a death certificate. Judge Braidy noted that the Prosecution maintained that it possesses “no information on ‘when a death certificate might be issued; and, second, whether there is any reasonable expectation that such a certificate would be issued on the basis of any additional evidence beyond that which is presently available (…)’” Thus, Judge Braidy considered it appropriate to evaluate the circumstantial evidence presented to the STL rather than wait for an official death certificate. On the basis of this evidence, Judge Braidy concluded that she was satisfied of Badreddine’s death.

The Death of Badreddine (Part 1): Evidence and Legal Submissions

  

On 13 May 2016, the Press Office of the STL took note of Lebanese and international media reports on Mustafa Badreddine, one of five principal defendants on trial for the assassination of former Prime Minister Hariri. According to these reports, Badreddine died as a result of an “explosion” at a Hezbollah base of operations near the Damascus airport in Syria. Hezbollah has since attributed this attack to artillery fire from “takfiri” rebel groups. For various media accounts of Badreddine’s death, see articles from the BBC, Al Jazeera, Haaretz, and Reuters.

At the time of its first hearings on the matter, the Tribunal had not yet received an official certification of the defendant’s death and was forced to consider circumstantial evidence. Because the proceedings surrounding the death of Badreddine were extensive and multifaceted, these summaries and analyses will be divided in three parts. This first post will outline the evidence and legal submissions pertaining to Badreddine’s death that were presented by the parties on 31 May and 1 June 2016. The respective transcripts can be accessed here and here.

The Evidence of Mustafa Badreddine’s Death (31 May)

The Challenges of Certifying the Death of Mustafa Badreddine

The Prosecution began by highlighting two main obstacles to obtaining certification of Badreddine’s death. Firstly, Hezbollah appears to have assumed “exclusive jurisdiction and control over the investigation of Mr. Badreddine’s death in Syria, the transportation of his body to Lebanon, the organization of his funeral, and his internment [sic] in Hezbollah’s Martyr’s Shrine.” When pressed on this characterization of Hezbollah’s authority by Presiding Judge Re, the Prosecution clarified that it does not believe Hezbollah maintains absolute de jure control over Badreddine’s death. The Prosecution did claim, however, that Hezbollah normally enjoys concurrent jurisdiction with the Lebanese authorities over members of its military wing. Nevertheless, the Prosecution asserted that Hezbollah currently retains total de facto control over the investigation, thus precluding the exercise of concurrent jurisdiction with Lebanon. Therefore, the Lebanese authorities have not been able to provide the Court with the results of any independent investigation.

The second barrier noted by the Prosecution is rooted in Hezbollah’s express hostility toward the STL. The Prosecution considers cooperation from Hezbollah to be unlikely given that the organization does not recognize the Tribunal’s legitimacy. On the basis of these obstacles, the Prosecution submitted that it is impossible to know if or when an official certification of death will be made available to the STL. Thus, the Prosecution deemed it appropriate to provide an array of circumstantial evidence of Badreddine’s death.

Evidence of Death Presented by the Prosecution

The Prosecution structured the evidence it presented around ten main events relating to the circumstances of the defendant’s death.

The first and sixth events include reports of Badreddine’s death reported by the Lebanese media, originating from statements issued by Hezbollah and circulated to the press. The second event was a condolence ceremony held in the Mujtaba Complex, which is a space associated with Hezbollah that has been used for other condolence ceremonies in the past. The Prosecution suggested that Hezbollah would not fabricate Badreddine’s martyrdom while using a compound tied to distinguished military and religious figures. The third event involves the delivering of speeches from dignitaries such as the Deputy Secretary-General of Hezbollah, in the presence of Badreddine’s casket, althugh the STL has not received any confirmation that Badreddine’s body was enclosed in this coffin. Fourth and fifth on the list is the procession from the Mujtaba compound to the Martyr’s Cemetery. Seventh, the Iranian Ambassador to Lebanon and the Iranian Deputy Foreign Minister for Arab and African Affairs visited Badreddine’s grave, accompanied by his three brothers. Eighth, a well-attended ceremony was conducted in a Damascus mosque, featuring photographic displays of notable figures such as Ayatollah Khomeini and Ayatollah Khamenei. Additionally, Mustafa Badreddine’s son traveled to Syria for the occasion. The penultimate event relates to yet another ceremony conducted in Lebanon. This service is particularly notable because it featured a speech by the Secretary-General of Hezbollah, Hassan Nasrallah who extolled the virtues of Badreddine and his martyrdom. Additionally, the Secretary-General made a point of using Badreddine’s “given name” (Sayyed Mustafa) rather than his “jihadi code-name” (Sayyed Zuylfiqar), because the latter is abandoned post-martyrdom according to Hezbollah tradition. Nasrallah also spared a few words for the STL, declaring that the Tribunal “does not exist as far as we are concerned.” The final ceremony—held in Tehran on 24 May 2016—was attended by Badreddine’s son and Ayatollah Khamenei, the Iranian supreme leader. There is photographic evidence of the Ayatollah presenting Badreddine’s son with a ring. The prominence of this event suggests that the death of Badreddine was taken very seriously.

The Prosecution faced a critical line of questioning from the Trial Chamber with respect to the validity of the circumstantial evidence it presented. The Prosecution suggested that the precise circumstances of Badreddine’s death are unimportant in the opaque “military context,” especially since it is unlikely that Hezbollah will be forthcoming about the particulars of the event. Nevertheless, Judge Re pressed that every death must have a cause and that without one, no independent verification of Badreddine’s demise may be ascertained.

Evidence of Death Presented by the Defense

The Defense presented its own materials to the Trial Chamber to prove the death of its client. This evidence covered the familial, civil, and religious aspects of proving death. First, Badreddine’s family had issued a widely-circulated statement announcing his death. Second, the Defense pointed to the communiqué of Badreddine’s death that Hezbollah sent to the Lebanese media in an official capacity. Lastly, the Defense cited the declaration of Badreddine’s death by the Vice-President of the Shiite Islamic Superior Council, which his attorney described as “the highest Shiite Islamic [body].”

The Process of Obtaining a Death Certificate and Legal Submissions (31 May - 1 June)

On 31 May 2016, the Prosecution made legal submissions regarding the process of obtaining a death certificate for Mustafa Badreddine. Between 31 May and 1 June 2016, all parties put forth legal submissions as to how the Trial Chamber should evaluate evidence of Badreddine’s death under both international and Lebanese criminal procedure. The respective transcripts may be found here and here.

The Prosecution’s Submissions

The Prosecution justified its use of circumstantial evidence by citing the International Criminal Court’s decision to terminate pre-trial proceedings against Saleh Jerbo. The Prosecution believes this case offers instructive precedent because it demonstrates an instance in which an international tribunal terminated proceedings on the basis of circumstantial evidence of the defendant’s death. Further, the Prosecution emphasized the fact that the ICC terminated the Jerbo proceedings without prejudice so that the trial may recommence if the defendant were found to be alive. The Prosecution also instructed the Trial Chamber on the process of obtaining a death certificate pursuant to Lebanese law.

The Badreddine Defense Team’s Submissions

According to Badreddine’s legal representative Article 30 of the 1951 Lebanese Law applies. Therefore it is incumbent upon the appropriate mokhtar to issue the death certificate within 30 days of Badreddine’s death. On 11 July 2016, the Appeals Chamber intimated in its written decision that a death certificate of questionable probative value was indeed issued by the Lebanese authorities pursuant to this procedure on 6 June 2016. 

 

On 1 June 2016, Badreddine’s defense team expounded upon the religious aspect of obtaining a certification of death, as opposed to the civil side. The lead defense attorney submitted that the Lebanese state affords its religious communities the “exclusive right” to announce a death. “The civil side of the equation, he added, “is only an administrative formality.” According to the Defense, the repute of certain members of the clergy requires that the Trial Chamber assume the veracity of their statements.

The Legal Representative of Victims’s Submissions

Unlike his counterparts on the Prosecution and the Badreddine defense team, the Legal Representative of Victims was not sufficiently satisfied of Badreddine’s death so as to recommend the termination of the proceedings against him. Moreover, it is the unanimous opinion of the represented victims that the trial should continue until “proper, cogent, [and] formal proof” of Badreddine’s death emerges. Preferably, the STL would evaluate DNA evidence or witness identification of Badreddine’s body, which is said to be quite distinctive due to past injuries. The procurement of a death certificate, according to the Legal Representative, is only a “last resort” as he believes this document is only the “minimum” requirement for proof of death.

The Legal Representative substantiated this last claim by briefly pointing to precedent set by the International Criminal Tribunal for the Former Yugoslavia in the Bobetko, Talic, and Alilovic cases. He further cited jurisprudence from the ICC, including the proceedings against Raska Lukwiya, whose case was terminated only once DNA evidence confirmed a positive match while Okot Odhiambo was also disinterred and had his DNA tested. On the other hand, an arrest warrant for Vincent Otti is still outstanding despite “numerous reports of his death” because sufficient proof has yet to emerge. The most prominent of these precedents is that set by the case of Muammar Gaddafi, whose proceedings were not terminated until a death certificate was issued even though his graphic death was widely distributed on social and news media.

The Legal Representative indicated that it would premature to terminate the proceedings against Badreddine by providing three possible means of identification. Firstly, he noted that Badreddine is known to be a man of considerable wealth. The Legal Representative surmised that if he is indeed dead, someone in the Badreddine family would have an interest in requesting a death certificate in order to inherit these assets. Secondly, the Representative noted that Badreddine had spent time in a Kuwaiti prison before escaping in the chaos of the Iraqi invasion. It is possible that fingerprint or other biometric records associated with Badreddine’s detention could be obtained and used to verify his death upon exhumation of the body buried at the Martyr’s Cemetery. Lastly, the Legal Representative submitted that, if anything, an individual who knew Badreddine well could identify his body through his distinctive features. In sum, the Legal Representative of Victims asserted that the Trial Chamber has enough time and means to reach an informed decision as to the personal status of Mustafa Badreddine at a later date.

Examination of technical witness PRH705

Between 5 and 12 May, the next Prosecution witness came to testify: PRH705. This witness testified about the generation, storage, and maintenance of business records, specifically, call data records, cell site-related data, and the Touch subscriber database. This evidence will in turn be relied on by the Prosecution to attribute telephones to the accused. Like some of the previous witnesses, also the testimony of this witness was very technical and detailed.

Given that this witness needs protective measures, testifying under a pseudonym, parts of his testimony were conducted in private session in order to protect his identity. The witness is specialized in radio network planning and network optimization, and quickly the content of his testimony became quite technical, speaking of suppliers who may have access to make changes to the network and the details of the network and its specificities.

Within the company Touch, all requests for cooperation and information from third parties are processed by the governmental affairs unit, and the witness is extensively questioned about the internal process within the company.  At the relevant time, 2004-2005, the IT department was responsible for the call data record in the whole process of mediation, filtering and its billing. It is the commercial department that's responsible for the processing of the application forms of potential subscribers. The witness is questioned about the cell site data and possibilities for optimizing the network.

The witness was taken through his earlier statements and draft statements, but since only the parties to the proceedings have access to those statements, it is impossible for us to assess the precise content thereof. The ultimate statement that was signed by this witness was 73 pages in total. The initial statement had been prepared by someone else from his company, and he has not been able to verify all aspects thereof. The defence raised the fact that this situation is less than ideal, because the defence cannot cross-examine the witness on those issues that he does not have personal knowledge about, and they cannot cross-examine the witness's predecessor either.

Since the parties are still waiting for additional information from the authorities regarding this witness's testimony, the defence for Ayyash objected to proceeding with cross-examination; the defence for Badreddine wanted to start the cross-examination of this witness, but were unfortunately not available on that particular day, so the witness ended his testimony until the additional information concerning his testimony arrives at the court.