Reasons for Sentencing Judgment in the Case against Al-Amin and Al-Akhbar

As we previously reported, Judge Lettieri recently convicted Ibrahim and Al-Amin and Al-Akhbar Beirut S.A.L. of contempt and respectively issued each a fine of €20,000 and €6,000. This post will present an overview of the Contempt Judge’s written reasons with respect to sentencing and will provide additional commentary on a few matters.

Summary

Applicable Law

In his review of the applicable law, Judge Lettieri recalled that Rule 60bis of the Rules of Procedure and Evidence provides that the maximum penalty for contempt shall be seven years’ imprisonment and a fine not to exceed €100,000. He also demonstrated that Rule 171(D), which requires that a sentence be issued with respect to each count on the indictment, applies mutatis mutandis to contempt proceedings. Judge Lettieri stated that he is guided by both Rule 172(B) and sentencing practice at the ICTY in contempt matters. He highlighted the importance of the retributive and deterrent functions of criminal penalties for contempt of court.

Ibrahim Al-Amin

Judge Lettieri declared that Mr. Al-Amin’s absence from the proceedings “will have no bearing on the determination of the sentence in this case, except insofar that Mr. Al-Amin will not receive mitigation for cooperating with the Prosecution.” The Judge found Mr. Al-Amin’s crimes to be “particularly egregious” in light of their gravity, as well as Mr. Al-Amin’s decision to publish a second article despite public outcry in reaction to the first. The Judge reiterated that these articles served no journalistic purpose in revealing these individuals’ identities and portraying them as “witnesses against Hezbollah.”

The various aggravating factors highlighted in the written reasons include the fear experienced by witnesses, the overwhelmingly negative public discourse surrounding the publications, witnesses’ loss of confidence in the Tribunal’s ability to protect confidential information, and the direct harm suffered by at least one witness as a result of the publications.

Al-Akhbar Beirut

The Judge rejected the Amicus Prosecutor’s argument that the continuous nature of the Accused’s crimes allows the Tribunal to impose a separate fine for each day the impugned material remained published. The Amicus had requested a two-year prison sentence and a fine of €127,000. Judge Lettieri stated that the Rules of Procedure and Evidence are unequivocal: the STL may only impose one sentence for each count listed on the indictment, or issue a sentence that reflects a totality of the counts. Al-Akhbar was convicted of only one count and thus may only receive a maximum fine of €100,000.

In light of the fact that a corporate accused had not previously been tried under international criminal law, Judge Lettieri looked to Lebanese law in order to determine an appropriate sentencing range. He noted that similar conduct in Lebanon could carry a prison term of three months to two years and/or a fine of €5,935-17,820.

Judge Lettieri also noted the “separate penalty already imposed on Mr. Al-Amin as an individual” when determining Al-Akhbar’s sentence.

Commentary

While the grounds for Mr. Al-Amin’s sentence are predictable and seemingly uncontroversial, the reasoning behind Al-Akhbar’s sentence leaves more questions than answers. To recap, Judge Lettieri affirmed that:

I note that this is the first occasion in which a legal person has been convicted of the obstruction of justice in an international criminal setting. I find, however, that the same sentencing principles of retribution and deterrence that apply to natural persons, must equally apply to legal persons (emphasis added).

The Statute of the STL designates the Lebanese Code of Criminal Procedure (LCCP) as the Tribunal’s primary source of applicable law, and Rule 3(A) of the Rules of Procedure and Evidence (RPE) state that its provisions should be interpreted - in order of precedence - in consideration of customary international law, international human rights standards, general principles of law, and, “as appropriate,” the LCCP. In coming to his sentencing judgment, Judge Lettieri decided to look to Lebanese law for a principle source of guidance.

Article 24(1) of the STL Statute stipulates that, “the Trial Chamber shall, as appropriate, have recourse to international practice regarding prison sentences and to the practice of the national courts of Lebanon.” The Appeals Chamber ruled - in opposition to Judge Lettieri’s opinion - that the provisions of Rule 3(A) constitute sufficient guidance with respect to the trial of corporate accused, such that the principle of in dubio pro reo (when in doubt, side for the accused) enshrined in Rule 3(B) need not be activated. The Contempt Judge was led by Lebanese practice rather than international practice, and as acknowledged above, the practice of looking to Lebanese law with respect to procedural matters is well-established at the STL. 

A cursory review of corporate liability worldwide suggests that it is unusual that another Accused’s sentence can be considered a mitigating factor for the corporate accused’s sentence. Further research would be required to determine sentencing practices for corporate accused in Lebanon but of 12 European countries included in one overview, only the Netherlands was described as forming no distinction between legal and natural persons with respect to the imposition of fines. Several states, including Italy, specifically maintain trials of legal and natural persons independent from the other. Most simply give no indication that one accused’s sentence may constitute a mitigating factor in the sentence of another.[1]

Finally, it seems strange that the Tribunal issued an entire corporation - which presumably enjoys access to larger than the average individual - such a low fine. This penalty falls well below Al-Amin’s, and is actually the smallest fine ever issued in a contempt case at an international tribunal by about €1,500. The Defense did argue that a harsh financial penalty could punish Al-Akhbar’s employees and their families rather than the corporation itself, but this was not discussed in Judge Lettieri’s written decision

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[1] Clifford Chance LLP. (2012). Corporate Liability in Europe. London: Clifford Chance LLP.

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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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.