Contempt Judge issues fine in case against Al-Amin and Al-Akhbar Beirut

On 29 August 2016, the Amicus Prosecutor and Defense for Ibrahim Al-Amin and Al-Akhbar Beirut S.A.L. submitted their positions vis-à-vis the sentencing of the accused. Judge Lettieri noted the absence of the accused in the courtroom and that the Registry attempted to serve Mr. Al-Amin with official notice of the proceedings. Though Mr. Al-Amin refused this notice, Judge Lettieri was satisfied that the accused had been made aware of the proceedings against him.

Amicus Prosecutor Submissions

The Amicus Prosecutor began his submission by noting that “[i]f there are no witnesses, there are no cases.” He added that if there are no cases, there naturally is no justice. He sustained that the gravity of the offense and the need for deterrence require a sufficient punishment. The Prosecutor insisted that nothing in this case was “left to the imagination.” Through the language and tone of the impugned articles, the actions of the accused sent a clear message that the witnesses whose personal details were published were to be regarded as “witnesses against Hezbollah.” The Prosecutor referred to a contempt case before the Special Court for Sierra Leone, in which the Court noted that the characteristics of a community can aggravate the violation of witness protection orders. The Prosecutor thus argued that the actions of the accused constitute grave offenses in the politically charged Lebanese context. To make the point abundantly clear, the Amicus Prosecutor conjectured that if Mr. Al-Amin were in court today, he would tell the STL “to go to Hell.”

According to the Prosecutor, the aggravating factors of this case include the accused’s consistent disregard for the authority of the Tribunal, the actual harm suffered by the purported confidential witnesses, the specific intent deduced from the articles, and the lack of remorse or regret shown by the accused. He further noted that Mr. Al-Amin’s initial appearance for his suspect interview should not be considered a mitigating factor because he merely used it as a political platform and did not cooperate with the investigators.

The Prosecution proceeded to present more recent evidence of the accused’s lack of cooperation. Mr. Al-Amin appeared on a Lebanese television network to denounce the work of the Tribunal. In the interview, the accused likened the STL to Israel, denouncing both as an “occupation tool.” The accused went on to say that he did not care if the Court seized his assets or sought his arrest, but declared that he would resist its authority. The Prosecution presented this exhibit to underscore the accused’s lack of respect for the Tribunal and absence of remorse for his actions.

The totality of these circumstances led the Amicus Prosecutor to request a prison term for Mr. Al-Amin of 2 years, accompanied by a fine of €75,000. Curiously, the Prosecution contends that with respect to Al-Akhbar, each day that the publications were available constitutes a separate offense. This amounts to a total of 1,127 days of criminal conduct, leading the Prosecutor to request a fine of €112,700 (or €100 per day). Judge Lettieri noted that this amount exceeds the maximum amount sanctioned by Rule 60bis. The Amicus Prosecutor responded that because Al-Akhbar’s offense constitutes an ongoing crime, it would be within the Contempt Judge’s power to issue a fine of €100,000 per day (for a total of €112,700,000).

Defense Submissions

The Defense opened by reminding the Court, “Let he who is without sin cast the first stone.” The Defense maintained that the unique nature of the charge against their clients requires a lenient sentence. In fact, the Defense stated that the moral condemnation resulting from the conviction of the accused functions as both a sufficient punishment and an adequate deterrent.

The Defense listed a number of mitigating factors. Firstly, they state that Mr. Al-Amin’s voluntary attendance of his suspect interview evidences his cooperation with the Tribunal. Contrary to what the Prosecution claims, the Defense believes that Mr. Al-Amin was cooperative during this interview and only reacted to provocative questions posed by the investigators as any person would. The Defense said that Mr. Al-Amin explained to the investigators that he intended to report on internal STL leaks, which are clearly relevant to public interest. At no point, according to the Defense, did the accused seek to obstruct the Prosecution’s contempt investigation.

The Defense additionally suggested that no significant tangible harm occurred as a result of his clients’ actions. Moreover, Counsel argued that the STL’s own attitude toward this case imply that the gravity of the conduct of the accused is minimal. The Defense highlighted the fact that it took three years for the Court to officially order the removal of the confidential information, at which time the accused complied. The Defense further argued that the number of confidential witnesses who testified in the contempt cases alone implies that public confidence in the Tribunal’s ability to protect witness confidentiality was not undermined. 

Counsel for the accused also argued that imposing a monetary penalty on Al-Akhbar would be unfair in light of the current financial crisis afflicting the Lebanese print media. The Defense claimed that a fine would only punish the Al-Akhbar’s employees and their families, amounting to a “tangible blow to freedom of the press in Lebanon.” Lastly, Counsel maintained that the facts of the present case would not amount to a crime under the Lebanese Criminal Code. Thus, it would be unfair to punish Mr. Al-Amin and Al-Akhbar for a crime that would not otherwise exist.

Amicus Prosecutor Rebuttal

The Amicus Prosecutor responded to the Defense’s submissions by emphasizing that “this is a court of evidence.” He noted that no evidence that suggests there was a leak within the STL has come to light. This would, in theory, undermine the journalistic integrity of the Al-Akhbar publications.  With respect to the Defense’s claim that moral condemnation is enough, the Prosecution referred to the interview that was presented and asked “Does that look like a man chastised?”

With regards to the financial situation of the Lebanese press, the Prosecutor noted, “This court is not charged with the responsibility for the health of the print media.” He went on to imply that the financial situation of Al-Akhbar could possibly be due to a number of causes including, provocatively, the poor quality of their journalists. Even more confrontational was the Prosecutor’s response to the suggestion that minimal tangible harm had occurred. He compared this defense to saying the same thing of a terrorist who carries a bomb into a crowded market but is unsuccessful in detonating it.

Defense Rebuttal

The most notable aspect of the Defense’s response to the Prosecution’s submissions pertains to the interview with Mr. Al-Amin that was later tendered into evidence. The Defense claimed that the context of this interview suggests that Mr. Al-Amin did not intend to voice hostility toward the Tribunal. According to the Defense, the program mainly covered topics relating to Israel. When the conversation shifted to the subject of Mustafa Badreddine, the Defense noted that Mr. Al-Amin did not take the opportunity to delegitimize the case against him. Furthermore, the clip that the Prosecution presented occurred during the end of the interview at around midnight. Counsel claimed that this interview was not broadcast by other stations. The Defense highlighted that in fact, their client has not undertaken a large media campaign in his personal defense despite ample opportunity to so.

Sentence issued

After a short break, the Contempt Judge issued the sentence: a € 20,000 fine for Mr. Al-Amin and a €6,000 fine for Al-Akhbar. Written reasons will follow in due course.

Continued Examination of Prosecution Investigator Gary Platt on Covert Phone Networks

In the last two days before the Tribunal’s judicial recess, the Prosecution finished its examination of Gary Platt while the Sabra Defense began with its cross-examination. Mr. Platt is a Prosecution investigator who the Trial Chamber designated as an expert witness in covert networks. Consult our previous post on this witness for further information on his qualifications and prior testimony.

[Screenshot of witness Gary Platt testifying before the STL on 26 July 2016]

On 26 July 2016, the Prosecution recommenced its examination of the witness after previously having discussed the setup, initialization, and recharging of the Red Network phones. The Prosecution began by attempting to establish the covert nature of the Red Network (among others) through the witness’s investigatory expertise. Mr. Platt testified that various elements point to the covert and criminal nature of the Red Network. For instance, no subscriber details were provided by the Network purchaser while false identification was supplied by the dealer. Furthermore, the lack of a financial trail led the investigator to conclude that every purchase associated with the phones (including the Network lines, handsets, and SIM cards) were paid for in cash. Additionally, no SMS messages were sent by Red phones, suggesting that the users took many precautions to ensure that their conversations were not recorded.

Mr. Platt testified that the nature of the Red Network’s activity further evidences its covert nature. He said that the phones made calls in a “cohesive and pattern and manner,” usually being switched off when not in use. Furthermore, the phones were not used after the day of the Hariri assassination, suggesting that they were of no use past that date and were only a liability to the covert operation. Approximately 88% of the Red phones’ calls were between other Red Network devices, the rest constituting service calls to Alfa and five misdials. Only three of the misdials were the fault of a Red phone user, thus suggesting that this was a closed network.

The Prosecution presented data uncovered by the witness his investigation that showed the duration of Red Networks calls. Excluding service calls and misdials, 80% of the calls lasted between zero and one minute while the longest did not surpass six minutes. The witness believes that this is another indication of the Network’s covertness as it is his experience that certain criminal enterprises often use telecommunication for short, information-sharing calls. Mr. Platt later stated that the chronology of these short calls further demonstrates that information was passed from one user to the next.

The Prosecution subsequently displayed a visual aid depicting the location of the Red Network calls. The Prosecution discovered that 83% of the calls occurred in the Beirut area, 12% in Zouq Mosbeh and Faraya, and 5% in Tripoli the area. This information is important for identifying Red network activities. Many of the calls occurred in areas around Parliament, Hariri’s residences, and the crime scene. Mr. Platt testified that it was typical for a terrorist cell’s final calls to be made from the crime scene right before the attack, as is the case with the Hariri assassination.

Afterward, the Prosecution expanded the scope of its examination to include the connectivity among all of the identified Networks. Mr. Platt testified that the networks demonstrated coordinated activity periods, and that each paid for their devices and lines in cash. He also said that the Blue and Yellow Networks shared top-up cards and handsets, and that they tended to top-up at the same time and location. Furthermore, the Blue and Green phones initialized in the same area, and the Yellow and Blue phones were present during the Red Network initialization.

Mr. Platt testified about the financing of these networks as well. He stated that approximately $6000 was spent to finance the Green Network, despite its limited usage. The Blue Network, for example, was left with $5000 of unclaimed credit. Similarly, the Red Network retained $500 of credit which was never recovered by a user. According to Mr. Platt, this suggests that the organization maintaining these networks was well-financed, which reveals a high level of coordination. Furthermore, the fact that no one sought to claim the substantial amount of credit that was left on these phones suggests that the users did not want to risk the secrecy of their operation.

Afterward, the Sabra Defense commenced its cross-examination of the witness. Mr. Mettraux’s line of questioning largely followed the same style as his recent cross-examination of Mr. Macleod, where the witness was asked to comment on non-evidentiary documents that were read to him. In the present case, the Sabra Defense accompanied this tactic with an alternate theory of the purpose of the Red Network. Though Mr. Mettraux agrees with the Prosecution in that the so-called Australian Pilgrims were not involved with the Hariri plot, he theorized that they were the targets of a setup by those who were. In a four-pronged approach, the Defense intends to show that 1) there was an effort to set up the Pilgrims, 2) the culprits attempted to tie the Red phones to the Hariri plot, 3) the culprits succeeded in identifying the Pilgrims as suspects, and 4) the Red network lines were allowed to be uncovered for the purpose of the setup. In response to a subsequent question by Judge Re, Mr. Mettraux stated that the Sabra Defence would provide explanations for the purposes of the other phone networks in due course.

Though Mr. Platt repeatedly insisted that he was not familiar with the case of the Australian pilgrims and that he had no knowledge of an investigation into a possible setup, the Sabra Defence continued to put documents to the witness for him to comment upon. Many of these sought to establish the movements of the Pilgrims, putting their place of residence in Lebanon at Minieh, near where the Red Network lines were activated. Furthermore, their residence was near several phone shops that were possible connected to the sale of the Red phones. However, the witness pointed out that it was impossible to trace the ultimate sale of the handsets. Furthermore, Mr. Platt noted that even though the Red phones may have activated the Minieh cell site, this does not mean they were near the Pilgrims’ residence or the phone shops. This is because rural cell sites tend to have a wider coverage.

Additionally, the Defense inquired as to why the assassins purchased a van whose steering wheel was located on the right-hand side of the vehicle, as is the custom in countries such as Australia, rather than the left-hand side (as is typical of Lebanon). The witness could not answer, but Mr. Mettraux suggested that this was another effort to pin the blame on the Pilgrims.

On 27 July, the Sabra Defense recommenced its cross-examination by proposing the theory that the true assassins provided the Red phones to third-parties, tasking them to follow Hariri’s whereabouts and make phone calls amongst each other. This supposedly explains the handset swapping acknowledged by the Prosecution and the lack of nighttime calls.

The rest of the cross-examination largely sought to implicate Lebanese government officials with ties to Syria. By putting further documents to the witness, the Defense sought to establish that the Sûrete Général of Lebanon had access to the Pilgrims’ entry/exit records. Having attempted to show that certain actors within the government had access to the Pilgrims’ whereabouts, the Defence questioned Mr. Platt about how the Red network was originally uncovered. The witness responded that they were discovered by Ghassan Toufaili, the head of the technical department of the Lebanese military intelligence unit. Mr. Mettraux suggested that it was unbelievable that Toufaili could have uncovered this network in merely six weeks’ time. The witness admitted that the Prosecution replicated Toufaili’s investigation using computer software and that they never received evidence of the Lebanese official’s handiwork. The Defense then questioned the witness about the relationship between Toufaili and Rustom Ghazaleh, the head of Syrian military intelligence in Lebanon at the time. The two were said to be close friends.

The witness pointed out several oddities within Mr. Mettraux’s working hypothesis. For instance, the Defense was forced to admit that the Pilgrims were in Saudi Arabia during the time of the Red network’s activation. Mr. Platt further observed that if the Lebanese had “infinite access to this [travel] information,” then the assassins would not have chosen individuals who were not in the country. Additionally, it is unclear to the witness how the assassins could have coordinated the bombing location such that it perfectly coincided with the Pilgrims’ departure.

Another odd aspect of this cross-examination is the Defense claim that it is the practice of these groups to blame Sunnis tied to jihadist groups for their attacks. The only example the Defense draws upon for this assertion is the unusual disapperance of Ahmad Abu Adass. Further, by the Defense’s own admission, the Australian Pilgrims bear no responsibility for any terrorist activities. As in the Macleod cross-examination, implicated individuals are cast as “jihadists,” which seem to be very charged terms to use on such tenuous footing.

Continued Examination of Technical Witness PRH707 (Alfa)

On 25 July 2016, the Trial Chamber continued to hear testimony from confidential witness PRH707, an employee of the Alfa telecommunications company. For further information on this witness, refer to our March 21 and June 13 blog posts.

Mr. Courcelle-Labrousse, representing the interests of accused Oneissi, questioned the witness on very technical matters related to network coverage and cell station configuration. The Defense’s main concern stemmed from perceived inconsistencies between the lists of cell site azimuth (tilt) values provided by Alfa in 2007 and 2010. The witness repeatedly insisted that it is not unusual for azimuth values to be changed over time. However, these lists were theoretically meant to detail the values that corresponded to February 2005. The witness then surmised, but could not confirm, that the OTP phrased its respective requests for assistance (RFA) in 2007 and 2010 such that the requests did not actually ask for the values for February 2005. This explanation would account for both the inconsistent azimuth values and the cell sites missing from the 2007 list. When questioned by Judge Braidy on whether the missing sites were relevant to the calls allegedly made on the day of Hariri’s assassination, the Defense stated that its aim was to prove that Alfa simply could not confirm important technical details going to the attribution of the accused’s cell phone.

The witness also noted that a difference in azimuth values of 10-15 degrees is not significant. The Defense pointed out greater differences between Security Main and Cell ID logs, but the witness could not put that discrepancy into perspective without being provided the timeframe of the cells’ operation.

The Defense further questioned the witness about the cell sites’ power supply in the event that Électricité du Liban, the Lebanese national energy company, experiences an outage. The witness testified that the sites are equipped with battery power that allows them to transition to generator usage without service interruption.

The witness then clarified certain terms and processes related to MSC capacity and network congestion. He stated that the network would have been at capacity on the day of Hariri’s assassination, and that this may have prevented redirect retries (cell site handovers) from succeeding. In short, it would have been very difficult to place a call in the Beirut area at that time, especially near the PHOENICIA and PALM BEACH cell stations.

Mr. Courcelle-Labrousse further inquired about processes that may inhibit cell signal. For instance, “fast fading” occurs when a physical obstruction interferes with the signal, whereas “Doppler fading” occurs when the caller is continuously moving, resulting in a  site handover to a  cell that would not normally correspond to the user’s geographical location.

The Defense then asked the witness about the inaccuracies of a predicted coverage map for the Beirut area in February 2005. Counsel noted that one station on the map did not exist in February, but was constructed later in the year. The witness believed that the RFA did not specify the month the OTP desired to capture, so Alfa included all cell stations for that year. This change could affect the predicted coverage area but regardless, the witness estimated that 20-30% of the map could be inaccurate.

On re-examination by the Prosecution the witness was asked to clarify the labeling of the coverage map, but could not provide an answer. He was further asked about the process through which the azimuth value lists were requested, and the witness repeated his belief that the two documents display data for separate years. Lastly, the witness confirmed for the Prosecution that a call data record being registered in spite of congestion is indicative of cell site functionality.

Continued Examination of Technical Witness PRH705 (Touch)

The Prosecution resumed its examination of witness PRH705, an employee of Touch, followed by cross-examination from the Ayyash Defense (transcripts of 19-21 July). Much of the witness’s testimony refers to documents that were disclosed only to the parties, compounding the difficulty of following the technical line of questioning. Refer to our previous post for details on the beginning of this witness’s testimony.

On 19 July 2016, the Prosecution took the opportunity to summarize the thematic content of PRH705’s testimony up to that point. The witness had previously provided information on the services offered by Touch, the organization of the company, the subscriber database, call data and SMS records, network operations, and cell site materials, as well as other technical and corporate matters. 

The subsequent day, the Prosecution first asked for exhibit numbers for university records of the accused, which will be used to establish a relationship between a third party (through their phone number) and the accused. The Prosecution did the same for entry/exit, banking, medical, and civil records pertaining to Ayyash, Oneissi, Badreddine (aka Issa), Merhi, and Sabra, as well as their family members.

The Prosecution then requested witness PRH705 to confirm paragraphs of his statements, including the amendments provided by Touch. Most of the content of these statements is not immediately known, but they concern to the topics mentioned above. The Prosecution further clarified technical terminology, Touch’s billing practices, and third-party provisioning of SIM cards. Judge Akoum sought explanation of the differences between personal and commercial post-paid accounts.

Mr. Hannis for the Ayyash Defense subsequently began his cross-examination of the witness. The Defense began by inquiring about the organizational structure of Touch’s various departments, including the Legal and Government Affairs departments, and how they handle requests for assistance. The witness further testified about the creation of a quality control unit within Touch’s Technical Department, in addition to the process of logging changes to cell site configurations. This questioning indicated that the Defense may later submit that during 2004 and 2005, Touch did not adequately record modifications that could affect cell phone attribution.

Most notably for this day, the Defense asked the witness about various technical errors that might lead to inaccurate call data records. For instance, the witness testified that certain cell sites may produce overlapping coverage that can “overshoot” the location of the caller. PRH705 stated that the “propagation model” used by the company produced inaccurate locations 20% of the time. 

The second day of the Ayyash team’s questioning, on 21 July, revealed potential arguments against the Prosecution’s use of call data records to prove its case. The witness was questioned about the frequencies at which Touch transmitted cell signals between 2004 and 2005. Witness PRH705 testified that “frequency hopping” (whereby the cell site used to transmit a call is changed) occurs when the network becomes congested, the user is located on the border of two adjacent sites’ coverage areas, or a physical obstruction interferes with the signal. The Defense intimated that this may obscure the location of the caller, thus inhibiting cell phone attribution.

The witness testified that further instances of such “normal handover” may occur when the caller is moving and comes within range of a different cell site. After the Defense questioned the witness about the call logs that Touch stored between 2004 and 2005, the witness testified that Touch did not store end cell data at that time. Thus, a user’s location would have been recorded at the start of their call, but if they had moved by the time they disconnected, this would not be reflected in Touch’s logs.

Witness PRH705 also stated that it may not be possible to recreate actual coverage predictions for each cell site from 2004 to 2005 because these “snapshots” require certain data inputs that may not be available. Even if they could be generated, the witness said that they still may contain inaccuracies. Furthermore, the witness testified that to his knowledge, the propagation model used to generate the best predicted coverage sites could have been generated any time between 1997 and 2004. It is unclear from his evidence whether the witness was referring to one model used for the entire country or multiple models used for individual cell sites.

The witness additionally confirmed that Touch used relatively less accurate GPS devices between 2004 and 2005 compared to today. On another note, the witness said that he was not sure if “azimuth values” were stored during the same period. These inputs affect cell sites’ coverage and, therefore, their ability to locate callers’ positions. Moreover, PRH705 testified that Touch’s “mobile switching centers” were configured manually such that they did not all register call times in a synchronized fashion. The witness said these inaccuracies could range from a few seconds to ten minutes. Though the witness said that these discrepancies can be discovered, he admitted that they may be misleading.

In another matter on 19 July, members of the Prosecution read onto the record three summaries of separate witness statements that were previously admitted into evidence. The first witness, Timothy Holford, was a Prosecution investigator who stated that he undertook a GPS mission near the office of the Lebanese Ministry of Telecommunications to verify its location. This is where the telecarte used to make the false claim of responsibility to Al Jazeera was allegedly sold. The second witness statement pertains to Elvis Stana, who is an information management analyst with the Prosecution. Mr. Stana had performed a statistical analysis in order to evaluate the level of synchronization or variation among the clocks within various Beirut cell towers, which were used to record call times. This data is, of course, relevant to the call sequence tables that are used by the Prosecution to establish the activity of the colored networks. The third witness, PRH696, claimed in his statement that the text message that he sent in January 2005 from his phone to one of the phones in the red network (used by Mr. Ayyash), was sent by accident. This supports the Prosecution's theory that the red network was closed and covert.

On 21 July, the Prosecution requested several documents be marked for identification, including subscriber records that will be used to attribute various cell phone numbers to the deceased Badreddine. The Prosecution also provided summaries of two more witness statements admitted as evidence. Both statements were made by PRH045, a Lebanese journalist who personally provided political updates to Rafiq Hariri. The witness served as a liaison between the former prime minister and many political groups, including Hezbollah. PRH045 thus provided information on the political context of Hariri's assassination. Furthermore, Hariri had told this witness that Syrian president Bashar al-Assad had threatened Hariri, saying that if he did not approve the extension of Lahoud's presidency, Assad would "break the country over his head." The witness conveyed several ways in which Hezbollah would have benefited from Hariri's assassination, including the resulting void in Sunni leadership.

The Contempt Cases in Comparison: A View toward Lessons Learned

[Screenshot of Judgement in the Contempt Case against Akhbar Beirut S.A.L. and Mr. Ibrahim Al Amin]

As we blogged last month, the Contempt Judge recently found both Ibrahim Al Amin and Al Akhbar Beirut S.A.L. guilty of:

“contempt (…) for knowingly and willfully 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.”

This follows the Appeals Chamber’s March 8 ruling on the contempt case against Karma Al Khayat and Al Jadeed S.A.L./NEW T.V. S.A.L. The defendants were charged with the same count of contempt as above, with the additional count of “failing to remove…information on purported confidential witnesses, thereby violating the 10 August 2012 order.” The defendants in that case were each acquitted on both counts.

This post will contrast various factual and legal aspects of the two cases in order to determine why the outcomes may have differed. Once the Contempt Judge delivers his sentencing ruling on 29 August 2016, however, the parties to the Al Amin/Al Akhbar case may decide to appeal the decision.

The Charges

The most striking divergence between the two contempt cases arises from the charges themselves. The Amicus Prosecutor for the Al Khayat/Al Jadeed cases attempted to prove that the accused had knowingly and willfully ignored a court order instructing the accused to remove the impugned materials from Al Jadeed’s website and YouTube channel. Because the claim that Ms. Al Khayat willfully ignored the order that was sent to her via email was not the only reasonable inference that could be drawn from the circumstantial evidence presented, the Appeals Chamber reversed the Contempt Judge’s conviction of Ms. Al Khayat on count 2 (para. 104). The Appeals Chamber upheld the Contempt Judge’s acquittal of Al Jadeed on this second charge on account of its inability to attribute corporate responsibility to any Al Jadeed employee beyond reasonable doubt (Judge Hrdličková concurring, para. 4)

It is possible that the Amicus Curiae Prosecutor chose to concentrate his efforts on proving one main count of contempt in the Al Amin/Al Akhbar case, rather than introduce the unnecessary complexities of a second charge related to the violation of a court order. The Amicus argued that both Mr. Al Amin and Al Akhbar were served a cease-and-desist notice by the STL Registry on 20 January 2013 and that Al Akhbar was served with a further order to remove the relevant content on 5 June 2013 (para. 125). The Defense argued, however, that neither client received a true judicial order from the STL. It characterized the initial cease-and-desist letter as a “mere opinion” and that it was not served on Mr. Al Amin personally in contravention of Lebanese law (para. 133). The Defense also claimed that Al Akhbar was not served a proper order until 27 January 2016, at which time its client complied with its instructions (para. 134). Even though these arguments were summarized in the Contempt Judge’s judgment, they were not reviewed on their merits. This may be attributed to the fact that the second count of violating a court order was not included on the Amended Order in Lieu of an Indictment. If the Defense’s arguments have any merit, it is possible that any charge of violating a court order would have presented a considerable obstacle to the Amicus just as it did in the Al Khayat/Al Jadeed case.

Availability of the Impugned Material

A significant portion of the Al Khayat/Al Jadeed decision was dedicated to evaluating the time frame during which the impugned material was available on Al Jadeed’s website, YouTube channel, and Facebook page. Because the Amicus relied heavily upon partially uncorroborated hearsay evidence, the Contempt Judge had ruled that the material’s availability could be proven beyond reasonable doubt only for a limited span of time on Al Jadeed’s website, and not at all on their YouTube Channel or Facebook page (para. 124). These findings were reversed in part by the Appeals Chamber, but only on account of the Contempt Judge’s errors of law in evaluating the evidence (and the Contempt Judge’s finding was upheld with respect to Al Jadeed’s Facebook page).

One could assume that the Amicus took a more cautious approach to proving the impugned material’s continued availability in the Al Amin/Al Akhbar case in order to avoid the technical acquittal that they narrowly missed in the previous case. Rather than rely on a witness who had limited knowledge of the Prosecutor’s efforts to record the material’s availability, the Amicus hired a consultant to consistently monitor the availability of the material on Al Akhbar’s website and social media. This witness provided a screenshot for every day he visited the websites (para. 57). This evidence, in conjunction with further witness testimony, was enough to render the material’s availability virtually undisputed.

Establishing Objective Likelihood

The Appeals Chamber in the Al Khayat/Al Jadeed case maintained that the actus reus of the crime requires that the Amicus establish that the alleged conduct foster an “objective likelihood” that public confidence in the Tribunal would be undermined (para. 27). Of the various witnesses purportedly identified as a result of the Al Jadeed episodes, only two reliably testified about the negative consequences they suffered as a result of Al Jadeed’s conduct (para. 99). However, the Appeals Chamber ruled that this evidence amounted to “a small number of subjective accounts” which could not be used to prove the actus reus beyond reasonable doubt (para. 102).

In contrast, the Amicus for the Al Amin/Al Akhbar case was able to produce three witnesses who could reliably attest to the “ascertainable facts” that proved they were harmed as a direct result of the Al Akhbar publications. One witness, for example, testified that he suffered a loss of business as a result of the Al Jadeed’s conduct (para. 66). Furthermore, the two witnesses presented by the Defense inadvertently furthered the Amicus' case by suggesting or otherwise implying that they feared the consequences of the Al Akhbar publications (paras. 86, 89). Thus, the Amicus went to greater lengths in order to prove “ascertainable facts” that spoke of the “objective likelihood” undermining the public’s confidence in the Tribunal.

However, one may ask why the testimony of three to five witnesses amounts to anything more than “small and subjective accounts,” as in the Al Khayat/Al Jadeed case. The Appeals Chamber in the Al Khayat/Al Jadeed case qualified their ruling by stating, “[h]owever, if corroborated and supported by other evidence on the record, this evidence [the witness testimony] may form the basis for finding an objective likelihood of the public's confidence in the Tribunal being undermined” (para. 102). The Amicus presumably met this threshold in the Al Amin/Al Akhbar case by offering a multitude of documentary evidence in the form of media reports that corroborated the claims of an objective likelihood of undermining public confidence having occurred (Contempt Judge, para. 102). The Appeals Chamber in the Al Khayat/Al Jadeed case had rejected similar documentary evidence on the basis that it could not be verified for its authenticity, noting that only the URLs had been provided. It is unclear why the documentary evidence in the Al Amin/Al Akhbar case was accepted by the Contempt Judge since all of the forms of verification would have presumably been available to the Appeals Chamber in the Al Khayat/Al Jadeed decision as well. Thus, this issue may arise if the Defense for Mr. Al Amin and Al Akhbar appeal the Contempt Judge’s decision.

Corporate Liability

Though the Appeals Chamber had previously ruled that the STL may try corporate accused, it refrained from attributing liability to Al Jadeed through Ms. Al Khayat or her superior, Ms. Al Bassam. The Amicus could not prove beyond reasonable doubt that either employee of Al Jadeed had the necessary control or authority over the newspaper’s online content such that the corporation may have been held liable for their conduct (para. 203; Judge Hrdličková concurring, para. 4). Mr. Al Amin’s position within the hierarchy of the Al Akhbar organization, on the other hand, was relatively straightforward. The fact that Mr. Al Amin served as editor-in-chief of the publication and chairman of its corporate Board remained incontrovertible. Furthermore, Mr. Al Amin stated in his suspect interview that he is the “only person responsible” for publications by Al Akhbar with respect to the STL (para. 169). Thus, it was not as difficult to link the allegedly criminal conduct to individuals who were acting on behalf of the corporate accused.

Conclusion

It appears that the Amicus benefited from its strategy shift and the more favorable factual circumstances of the Al Amin/Al Akhbar proceedings, which allowed it to secure convictions on both counts. It remains to be seen whether these convictions are upheld on appeal, but the Amicus’ prospects may be greater as a result of the key differences outlined above. It is encouraging that the Tribunal is capable of retaining institutional memory, but the STL contempt cases remain controversial due to their impact on international fair trial and free speech rights. It may be said that a prosecutorial success in these cases does not, in fact, spell good news for international justice.