Second contempt case against Lebanese newspaper Al-Akhbar and its editor-in-chief Al Amin

On 24 February the second contempt case started at the STL, against Lebanese newspaper Akhbar Beirut and its editor-in-chief Ibrahim Al Amin. With the recent acquittal by the Appeals Panel of the accused in the first contempt case (see our previous blog), it will be very interesting to see whether the Prosecution has changed its case strategy.

 [screenshot of STL court room - 1 March 2016]

Opening statements
The second contempt case began with the opening statements by the Amicus Curiae Prosecutor and the Defence.

According to the Amicus Curiae Prosecutor Mr Kenneth Scott, Al-Akhbar newspaper and Mr Al Amin published on 15 January 2013 an article about Tribunal leaks, clearly identifying 17 alleged protected Prosecution witnesses in the Ayyash case, including full names and pictures. On 19 January the same accused published an article identifying another 15 alleged protected Prosecution witnesses. According to the Prosecutor, the accused were determined to obstruct justice and to interfere with the willingness of witnesses to testify. They knew exactly what they were doing. They republished the confidential information after they were ordered by the Tribunal to stop disseminating this information, and even after they were charged for contempt of court. According to the Prosecutor, Al-Akhbar published “what it deemed necessary to counter the international campaign of fabrication targeting the resistance”, that is Hezbollah.

[screenshot of the Amicus Curiae Prosecutor Mr Kenneth Scott - 1 March 2016]

The Defence in its opening statement highlighted the importance of the media and freedom of press, also in criticizing the work of the Tribunal and monitoring judicial proceedings. According to Defence counsel Mr Abou Kasm, the press in Lebanon has a tradition of publishing names of so-called confidential witnesses, acting as a watchdog to monitor judicial activities of Lebanese courts to redress any undesirable situations. It is not the intention of the Lebanese press to harm other persons, but it “considers the publication of any information unknown to the public as a means to set things right, encourage reform, and promote the rule of law, justice, and equality.” Further, Defence counsel stressed the lack of any relation between Al-Akhbar and Hezbollah, as confirmed by the secretary-general of Hezbollah and the critical content of the articles published in Al-Akhbar. Due to the current prosecution of Al-Akhbar “some news outlets opted for keeping clear of the STL, not daring to make any criticism, and others no longer care about covering the Tribunal's activities including the newspaper I was assigned to defend”. Defence counsel stressed the high number of attacks against and murders of journalists in Lebanon. According to the Defence there is no proof of actual threatening of witnesses or a loss of confidence of witnesses or the public in the Tribunal. The Prosecution is making a mistake because “[i]nstead of prosecuting those who leaked and continue to leak information, he is prosecuting those who published some of this information for journalistic purposes.” Al-Akhbar only published a sample to warn the Tribunal, a “legitimate criticism in line with the policy of the newspaper and in line with its editorial line, which refuses to ignore and turn a blind eye to wrong-doing.”

[screenshot of Defence counsel Mr Abou Kasm - 1 March 2016]

Prosecution's case
Also on 24 February, the evidence of the first Prosecution witness, AP14, was heard in closed session. Subsequently, Prosecution witness Mr John Comeau appeared before the court, with again most of his evidence being heard in private session. Mr Comeau worked for the Tribunal until December 2013 as the human source coordinator. Mr Comeau gave evidence about the two news articles in Al-Akhbar in January 2013, which according to him contain clearly identifiable purported Prosecution witnesses, including their full name, picture and other identifying information.

Further, on 25 February, witness Akram Rahal was called by the Prosecution. Mr Rahal worked for ISF (the Lebanese police) as an officer at the Central Criminal Investigation Sections until 2015. On 20 January 2013 Mr Rahal, together with his colleague, was tasked by the public prosecutor at the Lebanese Court of Cassation to serve a document from the Tribunal on Mr Al Amin and Mr Pierre Abi-Saab, the vice-editor of Al-Akhbar; this document was a decision of the President of the STL of 18 January 2013. The document was served on Mr Al Amin’s lawyer, Mr Saghieh, as they could not reach Mr Al Amin.

Subsequently, the evidence of witnesses AP07 (26 February), AP09 and AP06 (29 February) was heard in closed session. On 1 March witness Moukelad Al-Araki gave evidence about him being tasked by the Prosecution to monitor on a daily basis the availability of the Al-Akhbar articles on the internet. Mr Al-Araki started monitoring on 23 December 2015, and the articles remained available until this very date. The witness took daily screenshots of the online articles and sent them to the Prosecution. In February 2016 the witness noticed the blurring of the article of 15 January, and later also the blurring of the information and photos of the witnesses. Most of the cross-examination of this witness was in private session. This cross-examination apparently revealed that the witness had a contract with the Prosecution and was paid to perform his tasks. The Defence refused to continue its cross-examination because of this lack of transparency. Judge Lettieri suggested that the Defence could file a motion to exclude the evidence, but that nothing prevented it from continuing its cross-examination.

The last Prosecution witness to appear was Anne-Marie De Brouwer, who also testified in the first contempt case against Al Jadeed and Ms Al Khayat.. In that case, the Contempt Judge found that her evidence did not address the effects of disclosures in Lebanon or in the region, and therefore was of limited value. In the meantime she did look at some reports on Lebanon, but her views seem largely based on information and conclusions from Tribunal decisions to hold trials in absentia, quite a different topic and context.

Ms De Brouwer is an associate professor in (international) criminal law at Tilburg University and has been working in the field of victimology for more than 15 years. Ms De Brouwer has written a report addressing 
(i) the effects of disclosure of identifying information of (alleged) witnesses/victims in an international case on on actual or potential witness, and the public, and the impact on the administration of justice;
(ii)  the consequences of publishing identifying information of (alleged) witnesses/victims for actual/potential witnesses in international cases, taking into consideration geographical, political, ethnic or religious circumstances in the country of origin, as well as the nature of the crime(s) concerned, and the nature of their involvement;
(iii) "[t]he impact disclosure by national and local media of identifying information about alleged victims and/or witnesses related to or involved with international criminal tribunals located outside their residing country can have on actual or potential victims/witnesses, their sense of security and protection and willingness to testify as well as on the administration of justice."

Ms De Brouwer testified that from the experience at the various tribunals in relation to protective measures, it can be concluded that if the security situation is very difficult or if the political tensions are grave, it is very difficult for victims to feel safe. It is very difficult to testify against your own or another group, because if your identity is known, you will have serious concerns about your safety. According to Ms De Brouwer this analysis can also be applied to Lebanon, a very small and populated country where the media is very intensive, and with its delicate and sensitive security situation. The witness further explains in general the impact of disclosure of identities on witnesses and she comments on media articles about the publication by Al-Akhbar of the list of witnesses, and their impact on (potential) witnesses and public opinion.

This witness concluded the Prosecution's case. It is impossible to assess the strength of the Prosecution's case without knowing the evidence of most of the witnesses heard in closed session. The Defence case, if any, is scheduled to start on 7 April.

Full acquittal by STL Appeals Panel in first contempt case against journalist and media company

In its judgment of 8 March 2016, the Appeals Panel partly granted the appeal by the Defence, and reversed the conviction for contempt of court of Ms Al Khayat. This results in a full acquittal of both accused (Ms Al Khayat and company Al Jadeed) for contempt of court.

In this case, Al Jadeed TV broadcasting corporation and its deputy head of news, Ms Al Khayat, were charged with two counts of contempt of court. The television station produced a series of episodes on supposed witnesses of the Tribunal. The two accused were charged with publishing information on purported confidential witnesses in the main case, thereby undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, (potential) witnesses. Al Jadeed and Ms Al Khayat were also charged with failure to comply with a court order to remove that particular information from Al Jadeed's website and its YouTube Channel. In his Judgment (subject to the current appeal), the Contempt Judge acquitted Al Jadeed on both counts; Ms. Al Khayat was found guilty on the second count and sentenced to pay a fine of 10,000 euro. 

[the accused Ms Al Khayat and her defence lawyers in court - screenshot taken on 18 June 2015]

Although the Appeals Panel identified a number of mistakes made by the Contempt Judge in evaluating the evidence, in its view none of these factual errors had any impact on the conclusions that could be drawn from the evidence. For example, the Appeals Panel was critical about the evaluation of the evidence of two witnesses who had been portrayed as Tribunal witnesses in the episodes, and who also testified that they had suffered negative consequences because of this (Appeals Judgment, paras. 99-102). However, the Appeals Panel still upheld the finding by the Contempt Judge that the Amicus Curiae Prosecutor had not proven beyond reasonable doubt (part of) the actus reus of count 1, namely the existence of an objective likelihood of the episodes undermining the public's confidence in the Tribunal's ability to protect confidential information (Appeals Judgment, para. 104). Further, the Appeals Panel also found that the Contempt Judge was not unreasonable in requiring  the Amicus Curiae Prosecutor "to prove, as a distinct element of the offence, the objective likelihood of the public's confidence being undermined", which serves as a link between the purported disclosures by the Accused and the interference with the administration of justice (Appeals Judgement, para. 95). The Appeals Panel therefore upheld the acquittal for both accused on count 1.

Count 2 deals with a disclosure in breach of a court order; therefore, the undermining of the public's confidence is no element of the crime. The Contempt Judge found Ms Al Khayat guilty for her failure to comply with a court order to remove the episodes from the internet. He used circumstantial evidence to establish that Ms Al Khayat had received the court order by e-mail, as there exists no direct proof of receipt and Ms Al Khayat denies receiving this e-mail. The Appeals Panel explained that "when the prosecution relies on circumstantial evidence to prove the facts constituting the elements of an offence (here the mens rea) by inference, that inference must be the only reasonable conclusion available from the evidence" (Appeals Judgment, para. 167). Consequently, the Appeals Panel reversed the finding by the Contempt Judge because he failed to consider the existence of these other reasonable inferences; for example, that the e-mail did not reach Ms Al Khayat's e-mail without triggering any notification for the sender, or that the e-mail ended up in the junk folder of Ms Al Khayat's e-mail account (Appeals Judgment, para. 168). The Appeals Panel thus concluded that the Amicus Curiae Prosecutor failed to prove that Ms Al Khayat had the requisite mens rea for Count 2 (Appeals Judgment, para. 172).

An interesting aspect of the Judgment is that the Appeals Panel (with Judge Akoum dissenting) confirmed that the applicable law in relation to the elements for the attribution of criminal liability to legal persons is Lebanese law and that these were foreseeable to the corporate accused Al Jadeed (Appeals Judgment, paras. 188-196). The majority of the Appeals Panel found that the other main sources mentioned in Rule 3(A) on the interpretation of the Rules - principles of interpretation laid down in customary international law, international standards on human rights and the general principles of international criminal law and procedure - "are ill-suited, in the present case, to address the precise question of how the acts and conduct of natural persons are to be attributed to legal persons" (Appeals Judgment, para. 191). After the Appeals Chamber previously held that the Tribunal held jurisdiction over legal persons for contempt of court, emphasizing developing international standards on corporate criminal liability, the apparent failure to identify the elements of the crime through sources of international law seems to direct towards a different conclusion (see also one of our previous blogs criticizing the manner in which the Appeal Chamber came to its jurisdiction finding). Judge Akoum in his separate opinion also explained that "the absence of clear and unambiguous provisions setting out the elements of corporate responsibility" should result in Al Jadeed's acquittal, as required by the principle of legality. Previously, Judge Akoum also dissented the majority view that the Tribunal possesses jurisdiction over legal persons for contempt.

In another interesting, and completely different, dissenting opinion, Judge Nosworthy finds that a conviction of Al Jadeed should have been entered on count 2, but on the basis of the acts and conduct of Ms Al Bassam, Ms Al Khayat's direct superior officer. According to Judge Nosworthy, Ms Al Bassam was notified of the order, had the ability and authority to remove the episodes from Al Jadeed TV's online platforms, and her conduct is attributable to Al Jadeed (although for this last conclusion Judge Nosworthy has to adopt a purposive/teleological approach to the interpretation and selection of Lebanese case law, which seems to be quite a stretch in view of the legality principle). Interestingly, and Judge Nosworthy also refers to this in her opinion, Ms Al Bassam has not been charged before the Tribunal. Therefore, if this line of reasoning had been followed, Al Jadeed would have been convicted for the acts of a person who had not been given an opportunity to defend herself before a court of law. Strictly speaking this would not have been a violation of the rights of the accused, with Al Jadeed and not Ms Al Bassam being charged. However, one wonders whether this approach is the most favorable in view of these same fair trial rights, with Ms Al Bassam's acts and conduct being the only basis for the conviction of Al Jadeed. Her defence in person would then certainly constitute an important, if not essential, contribution to a fair and balanced outcome of the proceedings.

January & February at the STL: Prosecution investigator Macleod and a representative of Alfa

Alasdair Macleod (12-14 January 2016)

Mr Macleod is an investigator for the Prosecution, who has previously worked for UNIIIC, the ICTY and the British government. The witness is called to court at the request of the Defence to be examined about his investigative work, including interviewing witnesses and taking statements. More specifically, the witness is questioned about the statements he took in relation to Abu Adass (the person who made the false claim of responsibility), the delivery of the video with the claim of responsibility to Al-Jazeera, and the Al Qaeda 13 group. The witness was tasked with finding evidence on what happened with Abu Adass. The Defence for Mr Sabra asked the witness about these investigations, which again led to discussions about the relevance of the witness confirming the content of statements given by other persons (see also the cross-examination of Ms Kamei, discussed in our previous blog).

Further, most of the cross-examination of this witness remains unknown or impossible to follow, as a large part of his evidence is in closed session, and in open session the names of the persons about whom the witness was questioned, were not revealed to the public. The Defence for Mr Sabra asked the witness to comment on his investigation work in relation to certain persons and information that seem relevant for the Defence case, for example their alternative theories on Abu Adass’ role. The cross-examination of this witness is still to be continued.

[screenshot of hearing at the STL - 28 October 2015]

Closed session

On 20-22 and 26-29 January the Court heard the evidence of a witness in closed session.

PRH707 (29 January, 9-12, 15-18 February 2016)

The evidence of PRH707 was heard in open session, although the witness’ identity was kept away from the public. PRH707 is an electrical engineer and has worked in telecommunication for about 25 years. The witness has worked at the Lebanese mobile network company Alfa since April 2012. He has been delegated as a representative witness of Alfa by the Minister of Telecommunications of Lebanon. Alfa is a company that manages the mobile phone network owned by the Lebanese state. At Alfa the witness deals with corporate reporting and the technical systems. 

PRH707 gave evidence about three types of records generated by Alfa in the ordinary course of business: call data records, cell site-related data and the database holding customer information (the so-called "subscriber database"). The Prosecution relies on these records to link certain telephones to the accused. A discussion was held in court if part of the witness' written statement could be tendered into evidence - in addition to the evidence he will give in court - with the Defence objecting to this. The Chamber still has to decide on this matter, but the amount of discussion shows that this is an important witness to the parties, with the telecommunication evidence constituting the core of the Prosecution's case. The witness explained that in order to create his statement, he consulted people from other departments within his company. These requests included confirming certain business records and procedures.

The unit in charge of the subscriber database does not fall under the authority of the witness and therefore he cannot say anything about its accuracy. The witness explained that two years ago they set up a new system to ensure that the database of subscribers is more reliable than it used to be. Identification papers, a photograph and personal collection of the card are now required to obtain a SIM card. The information in the subscriber database is for example used by the Alfa call centre dealing with customer complaints. The witness explained the procedure at Alfa in relation to the sale, activation, payment and recharging of pre-paid and post-paid SIM cards.

PRH707 further explained that the call data records were created for the billing system. Alfa only used the fields useful for this billing system, although other fields could be interesting for marketing for example. The witness explained the functioning of the data warehouse system, which is used to store information used for statistical or marketing purposes. This is the one of the three sources of call data records, in addition to the raw records themselves (with the main source being the switching centres, which create a call data record for each event passing through) and the billing system.

The cell site-related data is used by the team that is dealing with the coverage of specific areas (the radio team). The witness gave evidence about how new stations or new sites can be built to extend or improve the coverage. Various values were manually measured after the installation of the station, including the value of the azimuth, or the direction of the antenna. Customer complaints or the construction of additional stations occasionally required the modification of these antennae. The recorded values for 2004 and 2005 cannot be double-checked by Alfa.

About the functioning of the Alfa network, PRH707 explained that in principle a mobile phone will connect with the best serving cell or signal, although a low percentage of handsets will connect to another signal, causing complaints about the quality of the sound. Normally the best serving cell would be the closest geographically, although for example buildings blocking the signal or the station's limited capacity will create exceptions. Alfa used a software program called Aircom Asset to create maps showing the strength of the signal and maps showing the best serving cell for a certain location, the so-called shape files. These shape files were created using different models predicting the coverage. PRH707 and his colleagues have prepared a diagram of the structure of the Alfa network in 2004-2005. The witness testified about the functioning of this network. 

The witness further gave evidence about how the company dealt with the requests for data and records by the Tribunal. PRH707  commented on many of the documents provided by Alfa to the Tribunal, confirming their authenticity and explaining their content and origin. This includes documents about telephones that were part of the blue, green, yellow and red networks used by the accused according to the Prosecution.

The examination-in-chief by the Prosecution of this witness took more than two weeks (although there was quite some repetitive evidence). The cross-examination of PRH707 has been postponed, but, in view of the importance of this evidence, will be expected to take very long as well.

On 24 February second contempt case against journalist and media company will start

On 8 September 2015 the contempt judge at the STL issued a verdict in the first contempt case at that tribunal. In this much-debated case, Al Jadeed TV broadcasting corporation and its deputy head of news, Ms Al Khayat, were charged with two counts of contempt of court. The television station produced a series of episodes on supposed witnesses of the tribunal. The two accused were charged with publishing information on purported confidential witnesses in the main case, thereby undermining public confidence in the STL’s ability to protect the confidentiality of information about, or provided by, (potential) witnesses. Al Jadeed TV and Ms Al Khayat were also charged with failure to comply with a court order to remove that particular information from Al Jadeed's website and its YouTube Channel. Al Jadeed TV was acquitted on both counts; Ms. Al Khayat was found guilty on the second count and sentenced to pay a fine of 10,000 euro. Appeal is still pending in this case. See our blog on International Justice Monitor for a commentary on the judgement. We've also published an article on the relationship between freedom of speech and the prosecution of journalists at the STL in the International Crimes Database of the Asser Institute.

[screenshot of Contempt Judge Lettieri in court - 18 September 2015]

On 24 February the second contempt case against another Lebanese journalist and medial company will start. In this second case, similar charges have been brought against Lebanese newspaper Akhbar Beirut and its editor-in-chief Mr. Al Amin. On 11 December 2015 a Pre-Trial Conference was held. The Amicus Curiae Prosecutor requested a postponement of the proceedings to await the outcome of the appeal pending in the first contempt case. This request for postponement was dismissed in a written decision of 18 December 2015. Further, the Amicus Curiae Prosecutor requested an amendment of the indictment, witness list and exhibit list, which requests were partly granted by the Contempt Judge (click here for the written decision allowing an amendment of the witness and exhibit list, and here for the decision denying an amendment of the indictment).

Further, during the Pre-Trial Conference the representation of the accused was discussed, as the accused refuse to participate in the proceedings. Mr Abou Kasm has been assigned by the Defence office to defend their rights and interests (see also our interview with him). Mr Abou Kasm requested the trial to be classified as a trial in absentia, which will allow the accused to have a retrial. Judge Letterie denied this request as the accused have appeared in court and subsequently refused to participate. The Prosecution takes the position that the accused Mr Al Amin should be summoned to appear in court, with a failure to appear leading to an arrest warrant.

Witnesses testify about accused Mr Badreddine

Background of Mr Badreddine

This blog post analyses the evidence that was brought forward by the Prosecution over the last few months specifically in relation to the accused Mustafa Amine Badreddine.

(Picture of accused Badreddine from STL official website) 

The Indictment (para. 3 under a) specifies that "BADREDDINE monitored and, together with AYYASH, coordinated: (i) the surveillance of HARIRI in preparation for the attack; and (ii) the purchase of the van which was used to perpetrate the attack. BADREDDINE monitored the physical perpetration of the attack. In addition, BADREDDINE monitored and, together with MERHI, coordinated the preparation of the false claim of responsibility."

In November and December, the Prosecution called several witnesses to testify about the role that Badreddine allegedly played in the attack on former Lebanese Prime Minister Rafik Hariri on 14 February 2005.

Witness Nicole Blanch (19 November, 16 December 2015)

Ms Blanch works as an associate analyst within the Prosecution section of the Lebanon Tribunal. Her witness statement is provided an MFI exhibit number, but since no summary of that was read onto the record, it was difficult to follow her narrative in the courtroom.

She was tasked to review the SMS content for a phone attributed to the accused Badreddine (a telephone called PMP 663). She located a number of SMS messages between Badreddine's phone and  a phone number ending with 432, addressed as 'Jad'. These messages concerned refueling of vehicles and meeting at particular times and places, with Jad using the term 'boss'.

The witness prepared a document about this for demonstrative purposes in court, and also a sheet with the phone contacts between these two numbers. This sheet shows that there is frequent but short contact between these phones, and that there is the shared phone number of witness PRH416 (who has still to appear as a witness in court). Further, on 21 January 2005, the phones attributed to Mr Badreddine and Jad were in the Jounieh area back to Beirut; this corroborates the evidence of PRH416. According to the witness, this shows that "Jad was present with Sami Issa in Jounieh, and this was part of his role as a bodyguard for Sami Issa," and that Jad was responsible for the vehicles.

The witness is cross-examined by Mr Edwards representing the accused Mr Badreddine, who challenged the witness's evidence, suggesting that she made a selection of SMS messages that was most persuasive to her purposes (to show that Jad was a driver for Mr Badreddine, and that these SMS messages support the evidence of PRH416) and that a lot of different conclusions--at least different from hers--can be drawn from the SMS content. He thus suggested the possibility of an alternative theory or theories to the Prosecution's theory.

PRH416 (1-4 and 7 December)

Witness PRH416 was an employee of someone he knew as Sami Issa, a proprietor of a jewelry store part of a company called Samino. According to the Prosecution, Sami Issa is the same person as the accused Badreddine. The Defence challenges this theory. The witness was a security guard in one of the jewelry shops owned by Issa in the summer of 2002, and then worked as a bodyguard for Sami Issa  from fall 2002 until late January 2005. 

The witness identifies the phone number of Mr Issa and various of his employees and bodyguards, and he identifies manager Chaker and Mr Issa on photos. Mr Issa had a team of four bodyguards who carried weapons, and together they would be in one car with very tinted glass and Mr Issa in another car with no or lightly tinted glass. The witness thinks Mr Issa had another team of bodyguards. Generally, the witness's team would work from 2pm until midnight, and would receive a phone call as to where to meet with Mr Issa and where to pick up a car. Cars were picked up and dropped off at parking lots. They always dropped off Mr Issa at highways or main roads. The witness went with Mr Issa to restaurants and bars in Beirut. They were instructed to prevent anybody of taking pictures of Mr Issa.  The witness does not know why Mr Issa needed bodyguards; he did not carry around jewelry or cash. The witness further comments on a number of phone records between Mr Issa and him between 24 and 26 September 2014, when they used to frequent the Jounieh area in Beirut, and describes various other locations he accompanied Mr Issa to. 

Mr Issa had a briefcase with several mobile phones. At one particular moment, the witness saw him carry five phones. Mr Issa made sure he never left finger prints, e.g. he would use a cloth to touch a handset in a shop, and would pick up his cutlery with tissues or clean his cutlery after usage. He would often wear a baseball cap or sunglasses. Mr Issa had something in his right knee and used to limp. He was registered at a university in Beirut. He had various license plates for each of the cars he used, and would instruct the witness and his fellow bodyguards which plate to put on the vehicle. This included a license plate used by the intelligence directorate and a military license plate. Upon Mr Issa's instructions, the witness also made sure nobody followed him by taking circuitous routes, different routes, or park far away from his home.

A large part of this witness's testimony was conducted in closed session, and the content thereof was shielded from the audience.

During cross-examination the witness agreed with the suggestion by counsel for Mr Badreddine that the security measures taken by Mr Issa would be quite normal and reasonable for a successful jeweler, in view of the risks of robbery and kidnapping. The witness was also questioned about his phone calls with Mr Issa in 2006 and 2007, that is, after he had left his job. He was questioned about a text message he had received from Mr Issa, stating 'today is off'. The witness denied being reemployed by Mr Issa after January 2005, although later on during cross-examination he did admit that he did some more work for Mr Issa in 2007 as a bodyguard, on perhaps ten to twelve occasions.

PRH306 (7, 8 and 9 December)

Again, for Witness PRH306 several statements have been made available to the parties and the judges that the audience does not have access to, nor was a summary thereof read out in court. The parties'  questions to this witness are however based on that undisclosed information, which makes it difficult for outsiders to understand the exact context of the testimony. This witness, as well as witnesses PRH264 and PRH089 below, all testified about a jewelry trader in Beirut, Mr Issa, and his likeliness to accused Mr Badreddine. 

This witness is currently working in a managerial position in a large jewelry business outside of Lebanon, and because of his experience he is supposed to have an understanding of both the business aspects and the sales aspects of the jewelry business. He worked for Mr Issa sometime in 2002 or 2003 in the latter's shop called Samino. The witness testifies that Mr Issa did not know much about the jewelry trade; Mr Issa did not seem to be very much interested in the jewelry shops or the details of the business. The witness and his colleagues did not understand why Mr Issa owned jewelry shops. 

When Mr Issa would visit the jewelry shop, he would always bring one of his girlfriends along, but at a later stage he would also bring his bodyguards. The witness testifies that the manager of all three jewelry shops was a man named Mohammed Chukr, also referred to as Estez Chaker. In the beginning he did not know much about the jewelry trade, but he began to learn on the job. In Mr Issa's office there was no computer, the witness recalls. Sometimes the witness would find a paper and a pen, but nothing much. The witness further recalls that the brother of Rustom Ghazaleh (Rustom Ghazaleh was the head of Syrian security in Lebanon) visited the shop on one occasion, but that Mr Sami said he should go to another shop; this was approximately late 2004. The witness further states that Mr Issa did not do any work in his office on the top floor of the jewelry shop. He did take naps in that particular place, though, and he would bring girls there. He said he wanted to take advertisement photos of the girls, but he never did. In March of 2005 the witness stopped working for this jewelry shop.

The witness is asked by counsel for the Prosecutor to identify several phone numbers that were used by Sami Issa at the time, and similarly for the aforementioned person Mohammed Chukr, as well as employees from the jewelry shop.

The witness is then asked more questions about this person Chukr, who was an accountant, according to the witness.

The witness concluded that Mr Issa belonged to the Shia sect of Islam, from his accent which was mostly that of a Shia Muslim, the fact that he did not specify to which confession he belonged, and that he wore a beard and black clothes during the Ashura festivities, which is a Shia religious occasion. The witness is also presented with photographs by the Prosecutor, and asked to identify the  building on those photos, which is the jewelry shop. He is further asked to indicate on a map the exact location of the shop. He further identifies other jewelry shop branches from the same owner.  The Bourj-Hammoud shop was closed on the day of the assassination of Rafik Hariri, and never reopened again. The witness had been told they wanted to keep that shop closed because the economy was going down, although the witness said the economic situation was good.

Mr Issa didn't like his pictures taken; the witness describes him as tall, thin, completely bald, and he walked with a limp. The witness and his colleagues all found him a mysterious person; he didn't say much about his family background. The witness further details that he found Mr Issa a calm, quiet and understanding person.

The witness had found a picture on the internet, and he had subsequently contacted the Office of the Prosecutor. The person looked like the Sami that witness knew, but in the picture he had hair, and he looked younger. But otherwise, the features were the same. And this photo was of Mr Badreddine on his application for the Lebanese American University. 

Mr Issa's girlfriend had sent text messages to Mr Issa from the witness's phone when she had forgotten her own phone, and some of these are read out in court.

In cross-examination by Mr Edwards, defending the interests of Mr Badreddine, the witness is lead to testify that Mr Issa was in fact more interested in the business aspects of the jewelry store than came out in his testimony-in-chief. Judge Akoum further questions the witness about his conversations with Mr Issa. They had many phone conversations, some of them lasting up to about an hour, but the witness does not recall the content of those conversations.

PRH264 (10, 14 December 2016)

On 10 and 14 December, witness PRH 264 testified in court for the Prosecution. This witness was a friend of witness PRH089, who testified on 15 December (see below for a summary of his testimony). Witness PRH264 was a friend of Mr Issa, and assisted the latter in his jewelry businesses.


[Screenshot of pixelated face of witness PRH264 testifying in court under protective measures.]

This witness currently works as an assistant to a relative of Rafik Hariri, as he did in 2004 and 2005; the witness is also befriended to that person. Sami Issa also formed part of this group of friends; they used to all go out together at that time and several of them attended university. Sami Issa was also referred to by Safi by his friends. The witness regarded Mr Issa as a close friend. Mr Issa never wanted his photographs taken, nor would he ever talk about his personal life or his family. They never talked about politics in their group when they went out, perhaps only superficially. They went out very often, perhaps four times a week. Witness PRH089 was not part of this group. The witness visited Mr Issa in his apartment on several occasions. The apartment had been mainly empty. The witness describes Mr Issa as neither fat, nor thin, had very little hair and had a whitish skin color, between 1.75 and 1.80 meter tall. Sometimes he wore glasses, sometimes he didn't. Like the former witness, this witness testifies that Mr Issa had a problem with his leg, that he had burnt it, though it wasn't a noticeable limp, he just walked slowly. Mr Issa was a Muslim of Shia confession. He had never told the witness that directly, but the witness concluded that from the Muslim festivities that he would celebrate, also referring to the Ashura festival, though unlike the former witness, this witness did not notice any difference in Mr Issa's appearance during that festival. "You don't need to be an expert to understand that", the witness added. Mr Issa was a calm and quiet man, the witness states.  Mr Issa would wear a baseball cap most of the time. When he wasn't wearing it, the witness would not notice anything, just his hair, of which he had rather little. The witness is presented a photograph, and the witness indicates that that person looks similar to Mr Issa, though indicating that the picture is not very clear. "So it looks like him but no 100 per cent."

After the attack on Mr Rafik Hariri they had all been upset and sad, including Mr Issa, though they didn't go into the details of what had happened in their discussions. On the day of the assassination, Mr Issa had sent a text message to the witness in which he had asked him to call him back, but the witness does not recall the content of that conversation, which lasted approximately three minutes.

When the witness knew Mr Issa in 2004-2005, he estimates the latter was between 35 to 40 years old. The friendship remained until 2010, after which they all lost contact with each other.  He stopped calling the witness and the others from their group and he disappeared. Nobody knew what had happened; his phone lines were disconnected.

PRH089 (15 December, cross-examination will follow)

This witness was the employer of witness PRH264, the previous witness summarized in this blog and also a friend of Mr Issa. In 2002, the witness had been a student at university in Beirut, and that is where he first met Mr Issa. The witness did not know this person as Safi Badr. In mid-2004 the witness left university to start his own company. This witness saw Mr Issa three to four times a week, in a group of friends. The witness does not know what Mr Issa had studied at university. They had active telephone contact during 2003 and mid-2005, after which it became increasingly less frequent. During their meetings they discussed general topics including cars, clothing, and phones. The witness recalls that, regarding political opinions, Mr Issa's opinions were quite different from the witness's. Whilst they followed the former Prime Minister's, i.e. Rafik Hariri's, Mr Issa was from the other political side. The witness knew nothing about Mr Issa's family, though he knew he had not been married at the time, nor did he have any children. Mr Issa had a boat named Samino.

Mr Issa used to bring several bodyguards with him, and in his car he had a machine gun. The witness was not scared by seeing the machine gun in the car, and he did not think it was strange for Mr Issa to have this kind of security. He was a jewelry businessman. Mr Issa had a luxury car and a luxury watch, the witness testified.

This witness also testifies that Mr Issa is a Shia Muslim, Mr Issa had told him that during a conversation. He had also informed the witness that he had traveled to Syria, though the witness couldn't say the reason for that. The witness described Mr Issa as being between 170 and 175 centimeters tall, in his early 30s. He used to shave his hair very short, and he used to wear a baseball cap most of the time. He would have a goatee, though he would change it, nothing was permanent. The witness describes Mr Issa as having average weight. The only distinctive feature was an injury in his leg, probably his right leg. It had happened during a car crash, according to this witness. On one occasion the witness had seen Mr Issa's legs, and he saw the injured leg was thinner than the other. When he walked, Mr Issa had a slight limp. The witness further describes the kind of glasses Mr Issa had been wearing, thin and dark, he thought they were prescription glasses. He wore them most of the time. Mr Issa did not have a particular accent, the witness states, though Mr Issa had told him he came from the south of the country.

After Rafik Hariri had been killed, the witness and Mr Issa had had a phone conversation during which Mr Issa had told the witness that Mr Hariri had been doing good, charitable work, and that he should not have been stopped.

The witness is shown a photograph, and he says "I could say that he looks like Sami Issa, but I couldn't swear to it."

This witness was not yet cross-examined during this session in December 2015, because the defence for Badreddine needed more time given that the Prosecution had provided more evidence on this witness's testimony at the last moment. The Chamber had ruled that the defence would be given more time, and cross-examination of this witness would be permitted to postpone until somewhere in the new year. This portion of this witness's evidence will be added to this blog at a later stage. 

Members of the OTP testify in court

During the last few months of 2015 the Prosecution called many of its own team members to give evidence, an unusual practice in (international) criminal proceedings (with the exception of investigators and actual experts working for the Prosecution, who appear more often in court). Some of these witnesses were primarily questioned by the judges and seem to be called to provide information on technical aspects of the Prosecution’s case, including the creation of call data records and databases. Other members of the Prosecution are extensively questioned by the defence, whilst especially the investigators hardly received any questions. Below a summary of the evidence given by these Prosecution members (and one expert), divided into three main topics.

1. CALL DATA RECORDS (DATABASE AND ANALYSIS)

Mr Spartak Mkrtchyan (14-15 September)

Mr Mkrtchyan is the Prosecution computer information systems officer and the database administrator. He and his team are responsible for the Prosecution's call data record structured query language (or SQL) database. This includes the design of the database, the upload of the call data records, and the design of the database's built-in analytical functions or stored procedures. The Chamber has ordered the Prosecution to call witnesses to provide further evidence about the production of the call sequence tables and the underlying data (see decision of 5 May 2015, para. 115). Mr Mkrtchyan provides evidence on the format in which the raw call data and SMS content was received by the Prosecution, the database he created and filled with the raw data, and the stored procedures he wrote to search the database, which enabled the creation of some of the call sequence tables.

Professor Peter Sommer (15 September)

Although not a member of the Prosecution, Professor Sommer was hired by the Prosecution to audit the work of Mr Mrktchyan and therefore his testimony is included in this blog. Professor Sommer appeared as an expert witness on computer and information systems and the storage and security of data, including digital evidence. He wrote a report called “STL-OTP: Audit of Telephone Database Administration Processes” dated 17 July 2012. Professor Sommer visited the STL three times, and during two of these visits he met with witness Mr Mkrtchyan. He did an audit of the database system as set up by Mr Mkrtchyan, that is how the data received from the mobile phone companies was converted into a database, and to “get a clear overview of what the system is supposed to do, and constantly ask oneself: What could possibly go wrong, what is being done to prevent those things from going wrong, and what tests can one apply afterwards to establish that nothing has gone wrong.”

Professor Sommer concluded in his report that the system in relation to the handling and storage of the call data and SMS records was very thorough, and included a detailed manual, records of particular activities, and a unique number for each entry (making it easy to track back to the material provided by the phone companies). Professor Sommer further concluded that because of the processes employed, significant errors in the upload of data or data corruption are manifest or immediately apparent. Further, the fact that separate and matching records for calls between Alfa and MTC phones can be seen, provides some confidence in the accuracy and completeness of the records produced by the two mobile phone companies.

During cross-examination by Defence Counsel Mr Roberts, Professor Sommer explained that he thought he was asked to the audit, because the work was considered something of a novelty and there was a need to reassure the Tribunal that the work was done properly. Further Professor Sommer agreed that the errors he analyses in his report will not reveal data manipulation by the mobile phone companies. The witness does not have any knowledge about the data provided by two additional Lebanese phone companies to the Prosecution, and did not review the hard disks with data received by the Prosecution from the mobile phone companies.

Mr Elvis Stana (28 October)

Mr Stana is an analyst with the Prosecution, who did a statistical analysis of the call data records to determine the extent of synchronisation between the clock recordings in the call data records of the providers Alfa and MTC Touch. He explained that the mobile switching centres in Lebanon - that are recording and routing the call - were not centrally synchronised. This means that there could be a slight variation in the time recorded in the call data records for the incoming and outgoing side of a call. Some difference are only a few seconds, but especially in relation to one specific switching centre, the witness recorded a time difference of around 75 seconds. The Prosecution expects that the telephone companies will provide evidence to explain these large differences.

[Screenshot of Mr Stana testifying in court on 28 October 2015]

Ms Kei Kamei (16-19 November 2015 - cross-examination only)

Ms Kamei, an analyst working for the Prosecution, appeared in court in July and has already been cross-examined about the creation of the call sequence tables (see our blog on the five witnesses responsible for the creation of CSTs). This cross-examination is about additional topics. Defence Counsel Mr Mettraux for the accused Mr Sabra questioned the witness about information she received whilst interviewing witnesses, especially in relation to the person who claimed responsibility for the attack, Mr Abu Adass. The questions cover Mr Abu Adass’s visits to the mosques, the persons who accompanied him and his relation to certain organisations (including Al-Ahbash), the information found at his place and on his computer (including material on jihadist sites, a list on Hariri’s properties and foundations in Lebanon, and a series of maps), and phone calls made with the landline of the family Abu Adass. This results in a lot of hearsay evidence from Ms Kamei, of which the value seems questionable. She also does not remember many of the details put to her and explained that her role at that time was to focus on communication analysis. Mr Mettraux explains that he will seek to tender the actual statements of the witnesses in the future, mostly to establish the truth of their contents.

[Screenshot of Ms Kamei testifying in court]

The witness is also asked to comment on the video with the claim of responsibility, and on an alternative scenario on whom bought the phone card that was used to call Reuters and Al-Jazeera. This alternative scenario is to challenge the Prosecution’s scenario that it was the accused Sabra that was involved in this. Mr Mettraux further explains that they are not actually putting a positive case, but just an alternative possibility for the person who called the media about the claim of responsibility. The Chamber requests Mr Metttraux to further explain their defence position on this matter, and Mr Mettraux gives a lengthy explanation in court (see transcript of 19 November, p.101 and further). The Defence for the accused Sabra agree with the Prosecution that Mr Abu Adass was not the suicide bomber and that the video and letter were used to shield the identity of the real perpetrators. The information in their possession suggests that Hariri has been killed by a very sophisticated group of high-ranking state officials who used associates to commit the crimes. This includes members of Al-Ahbash and the Syrian and Lebanese security apparatus. Mr Mettraux also presents their very detailed views on how Abu Adass was lured into this. The Defence for Sabra thus does seem to present a positive case, at least on this topic, which is an interesting position to take in a trial in absentia.

Defence Counsel Mr Larochelle questions Ms Kamei about the investigations into the links and contacts between Abu Adass and members of a group called Al-Qaeda 13, including her analysis of the calls made through the landline of the family Abu Adass. He also questions the witness about the methods she used in attributing phone numbers to certain persons.

2. ELECTRONIC PRESENTATION SYSTEM

Andrew Fahey (16-17 September, 27 October)

Mr Fahey is an analyst with the Prosecution, and since November 2012 the project manager of the development of the electronic presentation of evidence software. The evidence of Mr Fahey can be divided into three parts: (i) the electronic presentation of evidence system; (ii) the associated area of what choices he made in respect of the cell site data that he used; and (iii) the various locations that have been plotted into the presentation system. His testimony on 16-17 September 2015 only dealt with the first subject.

Mr Fahey was taken through a presentation of this system, that the Prosecution intends to use to present its telecommunication evidence. The system has a database that holds evidence that the Prosecution is tendering, and creates the ability to search that database and display and record selected aspects of evidence. During his testimony the following matters were discussed:

• the five types of evidence that can be displayed in the system: a) the map of Lebanon; b) relevant locations, including routes taken by Hariri; c) cell site information (mast location, orientation and coverage); d) telephone call information (taken from the CSTs); and e) attribution (assigning of short names) of telephone numbers to users (including the accused) or networks;
• how these types of evidence are shown together;
•  record keeping (creating pdfs with screenshots and log tables); and
• quality assurance.

This system enables the Prosecution to visualise complex patterns of telephone usage. The question arises why court time would be used to explain software used by the parties, something that could easily be explained through an internal training? If there are any challenges to this software, a more logical option would be to file a written motion, or to suggest the use of different software if needed. From the transcript it appears that the parties have already met 14 times on this topic, and there seem to be no challenges to the functioning of the system, only to the selection of material used by the Prosecution.

The evidence of Mr Fahey on 27 October dealt with the map coordinates established by the witness of eight residences associated with the accused. On the basis of his analysis of documents, Mr Fahey has created a number of maps. Mr Fahey also established the map coordinates for 144 places and landmarks relevant to the Prosecution case, both for the movement of Hariri and the phone networks allegedly used by the accused in undertaking surveillance of Hariri in preparation of the attack.

Bastiaan van der Laken (9-11 November)

Mr Van der Laken works within the Prosecution and explained the functionality of the electronic presentation of evidence system, including the data management tasks associated with uploading data to the software. Like witness Fahey he explained the type of evidence stored in the system, and that this data is uploaded using an excel workbook. The witness also explained how two sides of a phone call are paired using the differences in the time records as established by Mr Stana (see above). The Defence has located  mistakes and/or differences in comparing the evidence presentation system and the call sequence tables, and confronted the witness with these mistakes. The witness explained that the software is functioning as intended, but that there always has to be a manual check of the underlying (call) data before presenting anything in court. The data set is still in progress. The Defence also attacks the underlying data, but that seems an issue to be raised with the telecommunication providers.

[Screenshot of Mr Van der Laken testifying in court]

3. INVESTIGATORS

Toby Smith (27 October)

Mr Smith is an investigator working for the Prosecution. He explained some documentary evidence he reviewed to establish the location of property allegedly belonging to the accused Merhi or his family, one of which was subsequently confirmed by witness PRH647 (see our previous blog on evidence and phones owned by the accused). The witness also reviewed documents in relation to a property for which the accused Sabra had an electricity prescription. The witness provides comments on various documents. A less time-consuming approach would be to put these comment in a bar table motion, as this is the Prosecution's view and the Defence does not cross-examine the witness. The Prosecution explains that the location of the residences of the accused are relevant to establish which phones belonged to the accused.

Timothy Holford (28 October)

Mr Holford is an investigations coordinator in the STL Beirut office. He went into the field to establish the GPS coordinates of a number of landmarks in the Prosecution's case and explained the methodology used. The locations include the Mitsubishi canter van dealer in Tripoli, branches of Samino jewellery owned by the accused Badreddine, the office of witness PRH078, residences of Hariri and other places Hariri visited, cell shops were network phones were purchased, and the Al-Jazeera and Reuters offices.

Erich Karnberger (28 October)

Mr Karnberger is an investigator in the STL Beirut office who photographed a number of locations which were plotted by the previous witness Mr Holford.

Evidence on phones and property owned by the accused

During the last few months of 2015, the Prosecution presented various witnesses (and documents; see our previous blog) as evidence that certain phones or houses were owned by the accused. The testimonies of these witnesses were relatively short, with the witnesses mostly commenting on documents the Prosecution wanted to tender into evidence. There was also very limited cross-examination; this raises questions about the need to hear these witnesses in court, as their evidence seems largely unchallenged.

PRH067 (30 September) on Oneissi's phone

The evidence of PRH067 is to establish that the so-called purple phone was owned by Mr Oneissi. The witness came into contact with Mr Oneissi around 1999. Mr Oneissi was a client of the witness, and they had over 80 professional appointments, with the last appointment on 21 August 2004. PRH067 testified that Mr Oneissi - who he knew as Hussein Hassan Issa - provided his office with a contact number, and this number is the same as the purple phone appearing in the Prosecution's case. The phone number and the meetings were recorded in a client file and business records. The witness's two office numbers had repeated contacts with the phone number of Mr Oneissi, the last time being approximately two weeks before the attack of 28 January 2005.

Witness PRH371, an analyst, observed that the phone number of Mr Oneissi's purple phone activated cells providing coverage in the area of the PRH067's workplace on 40 occasions, 37 of which were on days Mr Oneissi had an appointment with this witness.

Mahmoud Assi (1 October) on Ayyash's phone

The witness's evidence is to establish that a personal mobile phone was owned by Mr Ayyash. The name of this witness appears on two insurance documents for a claim for an accident that took place on 20 November 2004. However, Mr Assi is not the person who prepared the expert report, but his colleague Mr Kalash did. The witness is a vehicle accident expert with an insurance company and testified about what happens when accidents occur in Lebanon and when experts get called. The insurance documents also contain Mr Ayyash's name, and the phone number that the Prosecution claims to be Mr. Ayyash's.

PRH651 (2 October) on Merhi's phone

This evidence is about the attribution of phones to Mr Merhi. Witness PRH651 is a a senior manager for a furniture manufacturer and seller. He testified about certain business documents on the delivery of furniture on 24 and 26 November 2004 to the Merhi family. One document is an order that the phone number that the Prosecution claims to be owned by Mr Merhi and his family; another document is signed by Mr Merhi. The furniture was sold through a retailer but directly delivered to the customer.

PRH647 (9 November 2015) on Merhi's house

Witness PRH647 describes the Gardenia building in Beirut. The witness was shown a photograph of a man who looked like someone who lived in the Gardenia building in 2010-2012 and whose family name is Merhi. The witness believes that the same man has two sons. He may have had some limited contact with Merhi but does not recall the contact specifically.

PRH688 (10 November 2015) on Merhi's father's house

This witness gave evidence about the lease of a real estate in Haret-Hreik by Mr Habib Ali Merhi in the period 2005-2008, which he used to run a cloth shop. Mr Merhi, the father of the accused Merhi, lived across the street from these business premises, although after the building was partially destroyed during the 2006 war they moved temporarily to Aley. Mr Merhi had children, including a son called Haidar, and another son identified by the witness in a picture. According to the Prosecution, this evidence is relevant because the location of the home of the father of the accused is relevant to establish that three phones used in (preparing) the bomb attack were owned or used by the accused Merhi.

In addition, in September there was a witness testifying about Abu Adass, the person who claimed the responsibility for the attack through a video message.

PRH087 (29 September) on Abu Adass

PRH087 lived nearby the Abu Adass family in February 2005. He described them as a conservative, religious and well-mannered family who had no problems in the neighbourhood. The witness did not have much contact with the family. Ahmad Abu Adass was introvert and became more religious from 2001 or 2002; he let his beard grow and wore religious clothes like a Salafist. The witness never heard Ahmad express any political views, although he had seen Ahmad’s elder brother working for the Hariri election campaign in 1996 and he thought the family supported Hariri. The witness saw Ahmad going to the Arab University mosque on Friday, andAhmad would be reserved and sitting alone. Once, about a week before Ahmad’s disappearance, the witness saw him talking to a young man with a dark skin in the mosque. PRH087 describes meeting Ahmad’s father Taysir, who told him Ahmad had been missing for a couple of days, and that they had received a phone call from someone saying that he was in the north and that the car had broken down and he couldn’t come home. The witness has seen the tape with Ahmad claiming responsibility for the attack. Ahmad looked very different from the person he had known before and the family of Ahmad was totally destroyed after this.