The STL Contempt Cases in Context: An Empirical Review of International Practice

It is no secret that the available body of international criminal jurisprudence is still developing and expanding. The International Criminal Court (ICC) began hearing cases only a decade ago, and the Special Tribunal for Lebanon (STL) has not yet reached a verdict in its seven years of operation. The STL has nevertheless attracted considerable attention for its controversial indictment of four legal persons—two individuals and two corporations—for contempt of court. Though the first case against Ms. Karma Al-Khayat and Al-Jadeed S.A.L. ultimately resulted in an acquittal, the Contempt Judge recently convicted Ibrahim Al-Amin and Al-Akhbar Beirut S.A.L. He issued a fine of €20,000 and €6,000 respectively, but did not impose a prison sentence.

But what do these fines really mean in the broader context of “international” contempt cases? I decided to take an empirical approach to answering this question in light of the fact no systematic study of such contempt cases has been undertaken. In fact, it appears that data is rarely used to answer questions that are relevant to international criminal law (ICL) unless they fit within the broader context of international relations theory. Lawyers and judges must be informed by the facts just as much as political scientists do. This is especially true when it comes to sentencing in international contempt cases, as this represents relatively underdeveloped territory for ICL. As the title suggests, this piece will provide a rough overview of the state of contempt cases at international tribunals. Though the data that was collected is limited, it allows us to evaluate the STL’s decisions in the two contempt cases

Methodology

I attempted to generate the most exhaustive record of contempt cases that have been litigated in an international criminal tribunal. The list is comprised of proceedings from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the “Subsequent Nuremberg Trials,” (SNT), the ICC, and the STL. No cases from the International Military Tribunal (IMT), International Military Tribunal for the Far East, the British War Crimes Courts in Hong Kong, the Special Panels of the Dili District Court, or the Extraordinary Chambers in the Courts of Cambodia could be found. It is possible that some contempt cases have been handled confidentially, but these naturally cannot be included in this study.

Any set of proceedings regarded by the tribunal in question as a contempt case was considered in this analysis. A trial must have taken place and a verdict must have been issued. Thus, an interim order to detain an unruly witness or defendant would not qualify.

I then recorded the case, the court, the year the final judgment was issued, the defendant’s sentence in months (if applicable), the number of months that individual actually served in prison, the fine imposed in Euros (if applicable), whether the defendant was acquitted, and whether the defendant’s sentence was suspended or served concurrently with a separate (non-contempt) sentence.

Additionally, joined cases were separated where sentences differed in order to make a more accurate record of prison terms and fines that were imposed. For example, the case against Al-Amin and Al-Akhbar were separated in this dataset because each received a separate fine. On the other hand, the case against Al-Khayat and Al-Jadeed was left joined because each was ultimately acquitted.

Observations and Findings

Before passing judgment on the sentence imposed by Judge Lettieri, it is important to understand that contempt of court has not been adjudicated as frequently as “substantive” ICL cases. The data shows that only 42 cases have been completed, 71% of which have resulted in convictions. It bears noting that indictments have been issued against multiple individuals in four additional cases but two of the defendants remain at large, two are awaiting extradition, and five are awaiting judgment. The following graph illustrates the frequency of formal contempt proceedings being brought against defendants at all international criminal tribunals from 2000 to 2016, including three cases from 1947.

The graph demonstrates that apart from the first three cases at the SNT, contempt of court was first prosecuted at the turn of the century. The first such case, against Avramović and Simić, resulted in an acquittal for both defendants. Nevertheless, the number of contempt cases generally continued to grow as existing tribunals became more established and new ones came into existence. It is possible that different courts were more prone to try individuals for contempt but as the following graph illustrates, the ICTY—which was established before nearly every other tribunal in this sample—accounts for the vast majority of cases. This may be explained by the sheer number of defendants at the ICTY compared to other tribunals, but would not account for why the ICTR (which also processed a large number of defendants) produced so few contempt cases.

In any event, the positive correlation between the number of contempt cases and time appears somewhat robust (r=0.45, p-value<0.01; excluding SNT cases). Furthermore, this graph and measure of correlation under-represents the number of individuals tried for contempt by international tribunals. Every tribunal except the SNT joined multiple defendants into a single case in several instances. Most of these cases, including the ICC trial against Bemba and four others, concluded after 2013. This correlation would likely be even stronger if every defendant were included individually in this dataset.

Prison Sentences

The number of proceedings is, of course, only half the story. Comparing the sentences imposed by Judge Lettieri to the sentences handed down by other tribunals will provide a clearer picture of whether the STL is in line with current international practice. First of all, Judge Lettieri’s decision not to sentence Al-Amin to prison should be viewed in light of the fact that 83% of those convicted of contempt at an international tribunal were handed a prison term. The mean sentence doled out to these individuals totaled to 8.32 months, which is slightly inflated by the three separate contempt cases in which Vojislav Šešelj was sentenced by the ICTY to 15, 18, and 24 months in prison respectively.

Residual international tribunals such as the MICT (for the ICTY and ICTR) and the RSCSL (for the SCSL) tend to consider applications for early release once the offender has served two-thirds (67%) of his sentence.[1] In light of this practice and other factors (such as providing credit for time served and past human rights abuses), many defendants convicted of contempt have not served their full sentences. On average, an individual sentenced to prison for contempt will have served 5.61 months. Though this figure is almost exactly equal to two-thirds of the average sentence, a year-by-year analysis shows some variation (see the following graph). Moreover, if any sentences in which the defendant served no time in prison following their conviction (on account of credit for time served or other factors) are excluded, along with those from the SNT, then the average time served rises to 9.75 months. Thus in cases where the defendant was not confined to excessive time in prison pending trial, international tribunals tend to require nearly full completion of the sentence.

If anything, this data suggests that the average prison sentence being delivered by international tribunals in contempt cases is increasing and the average time served is increasing accordingly. Nevertheless, a look at the ratio of the average time served to the average sentence imposed reveals that no discernible trend exists with regards to the portion of the sentences that is actually served. Only time will tell whether the duration of prison terms for contempt sentences will align with the two-thirds standard that has been introduced by the MICT in later years.

Lastly, it bears mentioning that 46% of the prison sentences that were imposed were served to 0-60% completion, excluding pre-trial detention. Of these, 42% resulted in no additional prison time. Only 15% of the prison terms fell within the range of 61-71% completion (roughly corresponding to two-thirds), half of which were terminated at exactly 2/3 of the original sentence. Finally, 38% of those sentenced to prison were incarcerated for 72% or more of the length of their original sentence. Of these, 90% served their full sentence.

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Fines

Perhaps most relevant to evaluating the sentence imposed on Al-Amin and Al-Akhbar is, of course, a review of the history of contempt fines at international tribunals. However, there is little data to draw from because only 7 separate fines have been issued for such cases of contempt of court (including the separate fines handed down to Al-Amin and Al-Akhbar). This monetary penalty averages to about €12,216.75. Excluding the STL case, the mean drops to €11,903.45.

Analysis

For starters, the fact that Judge Lettieri merely imposed a fine on Al-Amin may suggest that his sentence was relatively lenient in light of the fact that the vast majority of those found in contempt received a prison sentence. But how do Al-Amin’s actions compare to the crimes committed by those who were sent to jail? Vojislav Šešelj was handed the three most severe sentences of all the contempt cases (15, 18, and 24 months) for precisely similar acts as Al-Amin and Al-Akhbar: disclosing confidential witness information and refusing to remove such information. To be sure, Šešelj was already detained pending the completion of a separate trial at the ICTY, perhaps encouraging the Tribunal to impose a harsher sentence. Moreover, Šešelj was particularly blatant about his contempt of the Court. But this disparity does call into question whether Al-Amin should have received a prison sentence in light of the fact that he too displayed open disregard for the Tribunal’s authority.

Other crimes resulting in prison terms were decidedly less grave than those committed by the defendants at the STL. For instance, Milan Tupajić was sentenced to two months in prison for refusing to comply with a subpoena ordering him to testify. In another case, Kosta Bulatović was sentenced to four months’ imprisonment for refusing to complete his testimony before the ICTY. Bulatović made this decision in light of the Trial Chamber’s ruling to continue the proceedings despite the accused’s absence from the courtroom on account of his ill health. The significance of any contempt case should not be downplayed, but these examples cast doubt on the appropriateness of Judge Lettieri’s sentence in the case against Al-Amin and Al-Akhbar.

Though Judge Lettieri may have been lenient in declining to issue a prison sentence, the fine he imposed on Al-Amin was comparatively strict. It lies well above the mean fine imposed by other international tribunals, and is exactly equivalent to the maximum amount ever levied in a case of contempt. Both tribunals—the ICTY and the STL—allow for a maximum fine of €100,000 according to their respective Rules of Procedure and Evidence. Thus, as far as the fine itself is concerned, Al-Amin received a harsh sentence.

The same may not be said of the Al-Akhbar news corporation. The fine of €6,000 is well below the international standard. Considering that Judge Lettieri labeled the acts committed by Al-Amin and Al-Akhbar as “particularly egregious” in the written reasons for his sentencing judgment, the €6,000 would appear relatively light. Moreover, a corporation cannot be sentenced to prison meaning the Contempt Judge could only ever issue a fine to Al-Akhbar. This dilutes the severity of the sentence further still.

Nevertheless, the sentence sought by the Amicus Prosecutor against Al-Amin and Al-Akhbar bears no connection to international practice whatsoever. As we reported in our previous STL Blog post, the Amicus Prosecutor sought a prison sentence of 24 months and a fine of €75,000 for Al-Amin, as well as a fine of €112,700 for Al-Akhbar. This length of prison sentence was only matched in the third case against Vojislav Šešelj. Though Al-Amin did demonstrate repeated indifference to the STL’s protection orders, the prison term sought by the Amicus appears unduly harsh for a first-time offender. It goes without saying that the fines sought by the Amicus for both defendants far exceed the international norm. With respect to Al-Akhbar, the Amicus Prosecutor would likely argue that the company is a repeat offender. In their view, each day the confidential information remained published constitutes a separate offense. Judge Lettieri handily dismissed this claims in the written reasons for his sentencing judgment.

Data Limitations

Any conclusions drawn from this data must be met with caution. At the outset, the strength of this analysis is weakened by the small population size. It is possible that this dataset only represents a sample of the total population of contempt cases but even so, there are simply too few cases from which we may establish any patterns or trends with certainty. Instead, this data provides a snapshot of what international practice has looked like for the past sixteen years, with the addition of the 1947 cases. Nevertheless, it is debatable whether the SNT proceedings should qualify for this dataset. Unlike the IMT, the SNT was staffed by American judges and prosecutors, thus undermining the “international” character of the tribunal. Moreover, singular cases that are nearly 70 years old are unlikely to be instructive with regards to current practice or future trends.

However, it could also be said that international contempt cases in general are too “singular” to allow for systematic analysis. Activities that have qualified as contempt of court in an international setting range from ignoring a subpoena to bribing a witness to releasing confidential witness information. The facts have often been highly particular to the case, and the gravity of the crime relative to these facts. The general inferences that may be drawn from this data would ignore these important details.

While the nature of the data itself presents its own challenges, the decisions made when constructing the dataset offer benefits and drawbacks. For instance, the decision to subtract credit for time served from the measure of time actually served deflates the latter figure. One may argue that the time was still served, but the sentence was simply completed (in whole or in part) before the final verdict. I justify this decision by pointing to the interplay between the brevity of a typical contempt sentence and the lethargy of the international justice apparatus. Many of those convicted of contempt were already detained for long periods of time in relation to other criminal cases. Including this time in the record of actual time served would often convert this figure into a measure of how long the detention/trial process lasted. This is an interesting issue, but for distinct reasons. Nevertheless, it may be useful to recalculate the measure of actual time served by including credit for time served in the final sum. Thus, only early releases would account for any difference between the sentence and the measure of actual time served.

I included three exceptions to this rule. I coded Vojislav Šešelj as having fully served each of his three sentences in light of the fact that he was incarcerated for over a decade but later acquitted of the separate charges filed against him. Keeping to the aforementioned coding guideline would have eliminated the three most significant sentences in the dataset. There are legitimate grounds for criticizing this form of cherry-picking, but I will simply reiterate that this piece is merely intended to provide a convenient overview of the topic. It does not rise to the standard of a formal study.

Lastly, the decision to separate joined cases where the sentences differ naturally inflates the number of entries in the dataset. However, I wanted to capture the most accurate range of sentences as possible in this dataset. Admittedly, restricting this separation to cases with differing sentences effectively eliminates one 18 month sentence and one €15,000 fine. However, separating all cases would massively inflate the number of cases even though most of these joined proceedings resulted in acquittals. Perhaps these two instances were appropriate opportunities for selective cherry-picking as described above. If included, the average prison sentence would increase to 8.7 months and the average fine would increase to €12,564.65.

Conclusion

Though it may be too soon to tell exactly what direction sentencing patterns in international contempt cases are taking, the cases that we have at our disposal paint a telling picture. International criminal tribunals appear to favor criminal sentences over fines for those convicted. However, it is unclear whether these tribunals are more or less likely to grant early release to those convicted of contempt. The data certainly shows that the Contempt Judge at the STL is not operating in a vacuum—his decision to impose a fine rather than a prison sentence does not follow a clear trend in international practice. Nevertheless, it is difficult to interpret the appropriateness of the fines issued to Al-Amin and Al-Akhbar given how few fines have been issued by other tribunals for contempt of court. What is certain is that the saga of the STL contempt cases will likely serve as important precedent not only for the prosecution of legal persons under international criminal law, but also sentencing practices that may have a profound impact on a defendant’s human rights.

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[1] For more data and analysis of post-conviction issues at international tribunals, see Holá, Barbora and Joris van Wijk. (2014). Life after Conviction at International Criminal Tribunals: An Empirical Overview. Journal of International Criminal Justice, 12(1), 109-132.

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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.

Continued Cross-Examination of Prosecution investigator Alasdair Macleod

The Trial Chamber continued to hear the testimony of Alasdair Macleod, a former investigator for the United Nations International Independent Investigation Commission (UNIIIC). The witness’s testimony was interrupted by the death of former accused Mustafa Badreddine, but recommenced on 13 July 2016. The cross-examination by counsel for Assad Sabra, Mr. Mettraux, and the re-examination by Mr. Milne for the Prosecution, spanned the course of seven days. Mr. Macleod was tasked with the investigation of the disappearance of Ahmad Abu Adass, the person who claimed responsibility for the bomb attack through a video message. Consequently, Mr. Mettraux’s examination concentrated on exposing flaws and alternate theories with respect to this investigation. The proceedings were often difficult to follow due to the use of private sessions, as well as the scope of the Defense’s line of questioning. For further information on the witness, consult our blog post on his previous testimony.

Mr. Mettraux’s cross-examination largely consisted of putting documents to Mr. Macleod and asking him to acknowledge their contents or clarify their relevance to aspects of the Abu Adass investigation. The Sabra Defense insisted that it did not seek to rely on the veracity of most of these documents, but rather their mere existence (the difference was disputed by the Prosecution). There were few instances in which Mr. Macleod was in a position to respond in detail to Mr. Mettraux’s questions, if he could confirm any relevant details at all. The witness often maintained that he was not involved with the aspects of the case to which the Defense referred.

13 July 2016

The Defense began its cross-examination by inquiring as to whether Mr. Macleod had any knowledge of a “story” relating to a person named “Mohammed” being “rewashed, reorganized, and reshaped to explain the departure of Mr. Abu Adass (...)”. Mr. Mettraux pointed to various witness statements that suggest that the story of an orphaned Christian convert to Sunni Islam emerged first in September 2004 and again in January 2005 when the UNIIIC adopted it. The original story is attributed to statements made by Taha Kanawati, an acquaintance of Abu Adass, which could potentially be corroborated by a neighbor of Abu Adass. The Sabra Defense presented a considerable number of UNIIIC witness statements to Mr. Macleod in order to inquire as to the relationships between Abu Adass, Hussam Mohsen, and Khaled Taha. The documents presented to Mr. Macleod suggested that Mohsen and Taha were tied by their fundamentalist views, thus implying that Abu Adass harbored these beliefs by extension.

Mr. Mettraux referred to the testimony of Mohammed Al-Bishti before a Lebanese investigative judge in which Bishti recounted the story of a grocer named Ahmad Freijeh. Freijeh allegedly witnessed the suspicious behavior of two individuals occupying a neighboring home. One, he said, was named Mohammed. According to his testimony before the investigative judge, Bishti recalled that Mohsen had told him that a man named Mohammed had taken Abu Adass to an unknown location immediately before his disappearance. It was alleged that the Lebanese authorities were able to track down this “Mohammed,” but Mr. Macleod had no knowledge of this. The Defense later put documents to witness that suggested that this Mohammed’s real name was Ibrahim Sbaneck, an individual who was under investigation by Lebanese authorities. Mr. Macleod had no recollection of this.

Counsel for Sabra further inquired into the movements of Khaled Taha around the date of the Hariri assassination. He referred to a UNIIIC report that put forward that Taha had returned to Lebanon from Syria the day before Abu Adass’s disappearance and left for Syria the day after. To the witness’s knowledge, UNIIIC investigated a possible connection but could not find one and that UNIIIC had eliminated the possibility that Taha had picked up Abu Adass (but could not recall how this determination was reached). The Defense then asked Mr. Macleod about his meetings with Syrian officials. Mr. Mettraux asked the witness whether these officials had labeled Taha as a “jihadist” with links to Al-Qaeda. Mr. Macleod responded that as far as he could recall, Taha was “involved in efforts to support the insurrection or the organizations in Iraq that were fighting the Americans.”

14 July 2016

After Mr. Macleod clarified that he stopped working on the Abu Adass investigation in late 2007 or early 2008, counsel for Sabra further inquired into Abu Adass and Taha’s possible affiliations with Al-Qaeda. One UNIIIC witness thought that the two may have carried out minor logistical functions within the organization while another suspected that Taha was involved with transporting fighters across the border to Syria. Mr. Macleod did not recall being provided this information and did not agree with the Defense’s characterization of Abu Adass’s increased religiosity as “radicalization.”

Another witness statement indicated that Abu Adass had said that he was leaving with Taha on the date of his disappearance and that Taha later called the Abu Adass household to mislead the family as to his whereabouts. Mr. Macleod had limited knowledge of this. The Defense also asked about any investigation into Bilal Zaaroura, a close associate of Taha’s who was known to use the public phone that called the Abu Adass household, but the witness could not recall the details of this aspect.

Of the many overlapping characteristics of Taha and “Mohammed’s” respective stories that were presented by the Defense, Mr. Macleod could only acknowledge that they shared a dislike of mobile phones, that they attended the Arab University mosque during separate time periods, and that Mohammed did call the Abu Adass home on 15 January while Taha may have made a call on the same date.

15 July 2016

The Sabra Defense’s cross-examination was structured around four points. First, Mr. Mettraux questioned Mr. Macleod about the movements of Khaled Taha’s family. According to a UNIIIC investigation, Khaled Taha’s mother left Lebanon with a son (not Khaled) and crossed into Syria on the day of the Hariri assassination. The witness had no knowledge of this and did not know of any investigation into this matter. The second point focused on the possibility that Taha’s movements into Syria were illegally facilitated.

The third area of the Defense’s cross-examination touched upon the selecting of Abu Adass for the video in which he claimed responsibility for the Hariri assassination. Mr. Mettraux presented an investigator’s note from the Prosecution that claims that the Syrian Military Intelligence (SMI) was monitoring the Hariri convoy in late 2002 or early 2003 through “Palestinian jihadists.” Though the witness had no knowledge of this information, he could confirm that both Abu Adass and Taha are Palestinians. After presenting more statements that suggested Syrian involvement, the Defense asked whether the witness was aware of an apparent “modus operandi of the SMI to use Palestinian jihadists to carry out jobs for them.” Again, Mr. Macleod was not aware of this information.

Additionally, Mr. Mettraux presented various witness statements that suggested Abu Adass and his family could have been targeted by the Al-Ahbash organization due to their religious disagreements. The Defense further speculated that an enmity may have developed after a cousin of Abu Adass was associated with the assassination of Al-Ahbash’s former leader. Mr. Mettraux further suggested that a fax sent by the organization to the Lebanese authorities laying blame for the Hariri assassination demonstrated intent to assign blame on Abu Adass. With the help of Khaled Taha, the Defense proposed that Al-Ahbash selected Abu Adass for the post-assassination video, that Taha lured him into the operation under false pretenses, and that Al-Ahbash attempted to point the finger at Abu Adass. While the witness was aware of certain aspects of this claim, he could not recall any investigation into this claim (which he viewed with skepticism).

18 July 2016

Mr. Mettraux’s final line of questioning from the previous session involved the Defense’s theory that the failed plot to bomb the Italian embassy in Beirut was in fact the first attempt on former Prime Minister Hariri’s life. According to the Defense, the truck bomb that was to be used in the embassy bore similarities to the one used in the Hariri killing. Furthermore, the Italian embassy may have been on the path to Parliament that Hariri’s convoy would have taken. The Defense presented possible connections between Abu Adass and those involved with the plot, but the witness was not aware of any connection between the embassy plot and Hariri’s assassination.

Counsel for Sabra also pointed to documents that the evidence that allowed the Prosecution to tie certain phone numbers to the accused in the Ayyash case originated from the SMI. Mr. Macleod admitted that he never saw the software that was supposedly used to obtain this information, and that he could not confirm its existence. The Mr. Macleod acknowledged that he was told that the paperwork surrounding this “breakthrough” was “destroyed,” and that the provenance of these attributed phone records could not be explained at the time.

Counsel for Oneissi cross-examined this witness in private session.

19 July 2016

The Prosecution spent half of the day re-examining Mr. Macleod in order to clarify various points. Mr. Macleod testified that he considered many statements upon which the Defense relied to be hearsay, including those which alluded to two calls to the Abu Adass household. He further characterized the two “stories” referenced by the Defense as a “mistaken conflation” of two accounts rather than a “shocking and sudden revelation of something previously hidden.”

The witness testified that although UNIIIC considered the possibility of Taha’s involvement in the Hariri assassination, no evidence was found to support the theory. In one interview conducted by Mr. Macleod, an acquaintance of Taha’s said that he seemed “surprised” and “upset” by Abu Adass’s disappearance, even showing tears in his eyes. Another witness had told Mr. Macleod that Taha was “gobsmacked” by his disappearance and that Taha had never recommended Abu Adass for operations of the “committee” (which refers to a group of militants). Taha himself was described as “bewildered” by the purpose of targeting Prime Minister Hariri. The Prosecution thus suggested that neither Ahmad Abu Adass nor Khaled Taha were likely to have taken part in the assassination.

Other Matters
On 15 June 2016, before Mr. Macleod took the stand, the Prosecution sought to formally admit evidence that the Trial Chamber had previously ruled admissible. These include subscriber notes from Alfa. The prosecution submitted various annexes, including 86 total pieces of evidence, relating to the details of the accused. These notes include the subscriber name, phone number, activation date, switch-off date, and call time. The Prosecution intends to use this information, in conjunction with civil records, to attribute phone numbers to the accused.