Jul 20, 2016

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.

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