Jul 20, 2016

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.

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