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).