Aug 2, 2016

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.

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.

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