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

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

Amicus Prosecutor Submissions

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

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

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

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

Defense Submissions

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

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

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

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

Amicus Prosecutor Rebuttal

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

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

Defense Rebuttal

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

Sentence issued

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

The Death of Badreddine (Part 1): Evidence and Legal Submissions

  

On 13 May 2016, the Press Office of the STL took note of Lebanese and international media reports on Mustafa Badreddine, one of five principal defendants on trial for the assassination of former Prime Minister Hariri. According to these reports, Badreddine died as a result of an “explosion” at a Hezbollah base of operations near the Damascus airport in Syria. Hezbollah has since attributed this attack to artillery fire from “takfiri” rebel groups. For various media accounts of Badreddine’s death, see articles from the BBC, Al Jazeera, Haaretz, and Reuters.

At the time of its first hearings on the matter, the Tribunal had not yet received an official certification of the defendant’s death and was forced to consider circumstantial evidence. Because the proceedings surrounding the death of Badreddine were extensive and multifaceted, these summaries and analyses will be divided in three parts. This first post will outline the evidence and legal submissions pertaining to Badreddine’s death that were presented by the parties on 31 May and 1 June 2016. The respective transcripts can be accessed here and here.

The Evidence of Mustafa Badreddine’s Death (31 May)

The Challenges of Certifying the Death of Mustafa Badreddine

The Prosecution began by highlighting two main obstacles to obtaining certification of Badreddine’s death. Firstly, Hezbollah appears to have assumed “exclusive jurisdiction and control over the investigation of Mr. Badreddine’s death in Syria, the transportation of his body to Lebanon, the organization of his funeral, and his internment [sic] in Hezbollah’s Martyr’s Shrine.” When pressed on this characterization of Hezbollah’s authority by Presiding Judge Re, the Prosecution clarified that it does not believe Hezbollah maintains absolute de jure control over Badreddine’s death. The Prosecution did claim, however, that Hezbollah normally enjoys concurrent jurisdiction with the Lebanese authorities over members of its military wing. Nevertheless, the Prosecution asserted that Hezbollah currently retains total de facto control over the investigation, thus precluding the exercise of concurrent jurisdiction with Lebanon. Therefore, the Lebanese authorities have not been able to provide the Court with the results of any independent investigation.

The second barrier noted by the Prosecution is rooted in Hezbollah’s express hostility toward the STL. The Prosecution considers cooperation from Hezbollah to be unlikely given that the organization does not recognize the Tribunal’s legitimacy. On the basis of these obstacles, the Prosecution submitted that it is impossible to know if or when an official certification of death will be made available to the STL. Thus, the Prosecution deemed it appropriate to provide an array of circumstantial evidence of Badreddine’s death.

Evidence of Death Presented by the Prosecution

The Prosecution structured the evidence it presented around ten main events relating to the circumstances of the defendant’s death.

The first and sixth events include reports of Badreddine’s death reported by the Lebanese media, originating from statements issued by Hezbollah and circulated to the press. The second event was a condolence ceremony held in the Mujtaba Complex, which is a space associated with Hezbollah that has been used for other condolence ceremonies in the past. The Prosecution suggested that Hezbollah would not fabricate Badreddine’s martyrdom while using a compound tied to distinguished military and religious figures. The third event involves the delivering of speeches from dignitaries such as the Deputy Secretary-General of Hezbollah, in the presence of Badreddine’s casket, althugh the STL has not received any confirmation that Badreddine’s body was enclosed in this coffin. Fourth and fifth on the list is the procession from the Mujtaba compound to the Martyr’s Cemetery. Seventh, the Iranian Ambassador to Lebanon and the Iranian Deputy Foreign Minister for Arab and African Affairs visited Badreddine’s grave, accompanied by his three brothers. Eighth, a well-attended ceremony was conducted in a Damascus mosque, featuring photographic displays of notable figures such as Ayatollah Khomeini and Ayatollah Khamenei. Additionally, Mustafa Badreddine’s son traveled to Syria for the occasion. The penultimate event relates to yet another ceremony conducted in Lebanon. This service is particularly notable because it featured a speech by the Secretary-General of Hezbollah, Hassan Nasrallah who extolled the virtues of Badreddine and his martyrdom. Additionally, the Secretary-General made a point of using Badreddine’s “given name” (Sayyed Mustafa) rather than his “jihadi code-name” (Sayyed Zuylfiqar), because the latter is abandoned post-martyrdom according to Hezbollah tradition. Nasrallah also spared a few words for the STL, declaring that the Tribunal “does not exist as far as we are concerned.” The final ceremony—held in Tehran on 24 May 2016—was attended by Badreddine’s son and Ayatollah Khamenei, the Iranian supreme leader. There is photographic evidence of the Ayatollah presenting Badreddine’s son with a ring. The prominence of this event suggests that the death of Badreddine was taken very seriously.

The Prosecution faced a critical line of questioning from the Trial Chamber with respect to the validity of the circumstantial evidence it presented. The Prosecution suggested that the precise circumstances of Badreddine’s death are unimportant in the opaque “military context,” especially since it is unlikely that Hezbollah will be forthcoming about the particulars of the event. Nevertheless, Judge Re pressed that every death must have a cause and that without one, no independent verification of Badreddine’s demise may be ascertained.

Evidence of Death Presented by the Defense

The Defense presented its own materials to the Trial Chamber to prove the death of its client. This evidence covered the familial, civil, and religious aspects of proving death. First, Badreddine’s family had issued a widely-circulated statement announcing his death. Second, the Defense pointed to the communiqué of Badreddine’s death that Hezbollah sent to the Lebanese media in an official capacity. Lastly, the Defense cited the declaration of Badreddine’s death by the Vice-President of the Shiite Islamic Superior Council, which his attorney described as “the highest Shiite Islamic [body].”

The Process of Obtaining a Death Certificate and Legal Submissions (31 May - 1 June)

On 31 May 2016, the Prosecution made legal submissions regarding the process of obtaining a death certificate for Mustafa Badreddine. Between 31 May and 1 June 2016, all parties put forth legal submissions as to how the Trial Chamber should evaluate evidence of Badreddine’s death under both international and Lebanese criminal procedure. The respective transcripts may be found here and here.

The Prosecution’s Submissions

The Prosecution justified its use of circumstantial evidence by citing the International Criminal Court’s decision to terminate pre-trial proceedings against Saleh Jerbo. The Prosecution believes this case offers instructive precedent because it demonstrates an instance in which an international tribunal terminated proceedings on the basis of circumstantial evidence of the defendant’s death. Further, the Prosecution emphasized the fact that the ICC terminated the Jerbo proceedings without prejudice so that the trial may recommence if the defendant were found to be alive. The Prosecution also instructed the Trial Chamber on the process of obtaining a death certificate pursuant to Lebanese law.

The Badreddine Defense Team’s Submissions

According to Badreddine’s legal representative Article 30 of the 1951 Lebanese Law applies. Therefore it is incumbent upon the appropriate mokhtar to issue the death certificate within 30 days of Badreddine’s death. On 11 July 2016, the Appeals Chamber intimated in its written decision that a death certificate of questionable probative value was indeed issued by the Lebanese authorities pursuant to this procedure on 6 June 2016. 

 

On 1 June 2016, Badreddine’s defense team expounded upon the religious aspect of obtaining a certification of death, as opposed to the civil side. The lead defense attorney submitted that the Lebanese state affords its religious communities the “exclusive right” to announce a death. “The civil side of the equation, he added, “is only an administrative formality.” According to the Defense, the repute of certain members of the clergy requires that the Trial Chamber assume the veracity of their statements.

The Legal Representative of Victims’s Submissions

Unlike his counterparts on the Prosecution and the Badreddine defense team, the Legal Representative of Victims was not sufficiently satisfied of Badreddine’s death so as to recommend the termination of the proceedings against him. Moreover, it is the unanimous opinion of the represented victims that the trial should continue until “proper, cogent, [and] formal proof” of Badreddine’s death emerges. Preferably, the STL would evaluate DNA evidence or witness identification of Badreddine’s body, which is said to be quite distinctive due to past injuries. The procurement of a death certificate, according to the Legal Representative, is only a “last resort” as he believes this document is only the “minimum” requirement for proof of death.

The Legal Representative substantiated this last claim by briefly pointing to precedent set by the International Criminal Tribunal for the Former Yugoslavia in the Bobetko, Talic, and Alilovic cases. He further cited jurisprudence from the ICC, including the proceedings against Raska Lukwiya, whose case was terminated only once DNA evidence confirmed a positive match while Okot Odhiambo was also disinterred and had his DNA tested. On the other hand, an arrest warrant for Vincent Otti is still outstanding despite “numerous reports of his death” because sufficient proof has yet to emerge. The most prominent of these precedents is that set by the case of Muammar Gaddafi, whose proceedings were not terminated until a death certificate was issued even though his graphic death was widely distributed on social and news media.

The Legal Representative indicated that it would premature to terminate the proceedings against Badreddine by providing three possible means of identification. Firstly, he noted that Badreddine is known to be a man of considerable wealth. The Legal Representative surmised that if he is indeed dead, someone in the Badreddine family would have an interest in requesting a death certificate in order to inherit these assets. Secondly, the Representative noted that Badreddine had spent time in a Kuwaiti prison before escaping in the chaos of the Iraqi invasion. It is possible that fingerprint or other biometric records associated with Badreddine’s detention could be obtained and used to verify his death upon exhumation of the body buried at the Martyr’s Cemetery. Lastly, the Legal Representative submitted that, if anything, an individual who knew Badreddine well could identify his body through his distinctive features. In sum, the Legal Representative of Victims asserted that the Trial Chamber has enough time and means to reach an informed decision as to the personal status of Mustafa Badreddine at a later date.

Closing arguments in second contempt of court case against journalists

On 13 May closing argument were presented in the contempt of court case against the Lebanese newspaper Al-Akhbar Beirut and its editor-in-chief Ibrahim Al Amin.

The Amicus Curiae Prosecutor Mr Scott summarised its case: Al-Akbhar and Ibrahim Al Amin intentionally and willfully interfered with the administration of justice by their extreme and irresponsible conduct, that is disclosing the identity of alleged confidential witnesses. Mr Scott repeated that the case is not an attack on free speech or the entire Lebanese media (for criticising the tribunal), but directed against this specific criminal behaviour of the accused.

[screenshot of the court room during contempt proceedings - 1 March 2016]

The Prosecutor further explained that according to the law it does not need to prove any actual harm or interference, but only the objective likelihood that this will occur. The Prosecutor argued that the contempt judge has excluded evidence on the basis of narrow common law considerations whilst other international tribunals have taken a more liberal approach. According to him, the evidence must be considered as a whole and in a holistic evaluation, and hearsay evidence should be taken in consideration.

Conclusively, the Prosecutor stated that the press publications by the accused did create an objective likelihood that public confidence in the administration of justice by this Tribunal would be undermined; the evidence presented by the Prosecution, including the testimony of Dr Brouwer, shows this. The accused knew the effect of these disclosures, and the undermining of public confidence actually was the purpose of the publications.

Mr Abou Kasm, lead counsel for the Defence, started his closing speech by arguing that the Prosecution is trying to turn the case into a political trial; by linking the accused to Hezbollah, and by claiming that Hezbollah is an alleged source of threat to witnesses at the tribunal. The Defence denies any links between Al-Akhbar and Hezbollah. Further, the Defence stated that the situation in Lebanon is stable and save, contrary to the claims made by the Prosecution about the unstable security situation in which the names of the witnesses were disclosed. The Prosecution failed to prove the mens rea and actus rea of the accused; also it did not establish any suffered harm or the undermining of public confidence. Mr Kasm concluded that the Prosecutor failed to prove that Al-Akhbar or Mr Al Amin intended to obstruct the course of justice or that these publications undermined the public confidence in the ability of the Tribunal to keep its information confidential; therefore there should be an acquittal for both accused.

The case is now closed and awaiting judgment.

Evidence on the telephone networks: Thematic summary and witness Gary Platt

Thematic summary

On 4 April 2016 the Trial Chamber decided, after hearing from the parties (with only two Defence teams opposing) that because of the factual and technical complexity of the trial, periodic in-court thematic summaries of evidence will be held. This seems to be an advantage for the Prosecution, which has to present an active case and now has been given the opportunity to stress its interpretation of the evidence or add further detail and interpretation. Furthermore, one wonders whether it would have been preferable to have a lengthier indictment or Pre-Trial Brief or more detail in the bar table motions when requesting the admission of specific evidence instead of using additional court time, especially in light of the trial's length thus far.

The Prosecution provided an overview of the documentary and witness evidence in relation to the interconnected red, blue, green and yellow telephone networks. The Prosecution explained their theory as to which telephones from which networks belong to which accused, when the SIM cards were (de)activated, their user information, and their recharge information as well as handset acquisition and history. For example, all telephones from the yellow network were charged from sequential top-up cards, therefore showing their interconnection. Three phones operated as a closed circuit within the green network which, in total, consisted of 18 devices. These three phones operated from 13 October 2004 until 14 February 2005 (the day of Hariri's assassination) and belonged to the accused Merhi, Ayyash and Badreddine, according to the Prosecution's theory. Further, all eighteen phones of the green network were purchased with fraudulent IDs, activated as a group and deactivated because of lack of payment on 23 August 2005. The red network sim cards were all bought on 24 December, which is shown by the range of the bar codes. These were credited on one occasion only and the registered subscribers deny having bought these sim cards.

Witness Gary Platt (4-6, 14-15 April 2016)

After this summary of the Prosecution's evidence on the telephone networks, Prosecution investigator Gary Platt was heard as a witness in court. He was tasked by the Prosecution with organising the telecommunication evidence and putting it into evidentiary format. The questioning on 4 and 5 April dealt with the question of whether he is qualified as an expert in the field of telecommunications evidence and surveillance. The Defence challenged his expert qualifications, taking the position that he's an investigator and not an expert, and not impartial and objective as he is a member of the Prosecution. The Trial Chamber however declared Mr Platt an expert in two areas: the surveillance of criminal networks and the identification and organisation of covert communications networks.

[screenshot of witness Gary Platt testifying before the STL on 6 April 2016]

Mr Platt has been involved in telephone analysis during his work for the police in the United Kingdom. His work included monitoring individuals through cell site data for intelligence and police investigative purposes. He would use information coming from the telephone service providers. Mr Platt's police work involved dealing with the telephone evidence in the London transit bombings in 2005. He has been trained as a handset examiner and has experience in the field of (covert) surveillance. Mr Platt has given evidence in over forty criminal trials in the United Kingdom.

Mr Platt prepared five 'indictment reports' for the STL Prosecution. In these reports he used collected call data records, cell site evidence, subscriber details, customer notes, customer contracts, financial information (payment and top up records), and witness statements. Mr Platt also prepared a report on the functioning of the telephone networks in relation to the assassination of Hariri and a 'network analysis report', whose analysis is the topic of his current testimony in court.

The witness gave evidence on the level of covertness of the various phone networks allegedly used by the accused (red, green, yellow and blue). This covertness varies from no subscriber details to subscribers who knew nothing about the phone. He also explained the elements of organisation of the phone networks, including the financing, the setup and the cessation of the network, the areas in which the phones operated, and the level of call and SMS activity between the the network phones and with third parties, if any. The witness gave his thoughts about phone patterns typical for criminals, which according to him includes short duration of phone calls, switching off phones, and payment in cash. He also tried to explain why some of the phones of the green and blue network were used after the terrorist attack on 14 February 2005, including the possibility that these phones were used for another criminal purpose, and that they were considered to be covert enough to continue their usage. According to the witness, the patterns in usage, location, crediting, etc show the organisational structure of the four phone networks.

The evidence of this witness will be continued in the near future.

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.

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.

Closing arguments in the contempt case

On 18 and 19 June, the Special Tribunal for Lebanon heard the parties' arguments in the contempt case against Al Khayat and her news corporation Al Jadeed T.V. The Amicus Prosecutor started with his closing arguments. A short summary of the parties' arguments is set out below.

Amicus Prosecutor's closing arguments

[Screenshot of Amicus Prosecutor Kenneth Scott.]

Amicus Prosecutor Kenneth Scott argued that Ms Khayat and Al Jadeed endangered (potential) witnesses by disclosing information about persons alleged to be protected witnesses. Witnesses and potential witnesses will lose their confidence in the proceedings. He argued that the need to discourage this type of behaviour is a matter of great public interest. He argued that the case at hand constitutes behaviour falling within the scope of Rule 60 which prohibits "interference with the administration of justice". He argued that there need to be no actual interference where the conduct undermines the court's legitimacy, but a real risk that the conduct will result in that. He requested a 6 million euro fine for Al Jadeed and for Al Khayat two years' imprisonment and a 200,000 euro fine.

The Amicus Prosecutor argued that Al Jadeed did not have to identify the persons in question, they could have provided the same information that they deemed relevant without divulging their identities and without putting them at risk.

Defence closing arguments

The defence for Al Khayat and Al Jadeed presented its closing arguments. According to counsel for the defence, Karim Khan, QC, Mr. Scott mischaracterised the evidence. Whilst the Prosecutor had referred to people and witnesses at risk, that was not the charge in the indictment. The indictment states that the confidence in the tribunal was undermined. He further criticises the Prosecutor's closing brief where the Prosecutor shifted the burden of proof on the defence in arguing that there was no evidence that the email that was purportedly sent was not received by Al Khayat.

[Screenshot of Ms. Karma Al Khayat.]

Khan stated moreover that the journalists identified themselves in the broadcasts; they made jokes with the persons they were interviewing. They did not intimidate in any way. Further, Khan argues that there is no actus reus (the objective element of a crime), there is no confidence undermined, which is essential to proving interference within Rule 60 of the Rules. He stresses that Rule 60bis specifies that only conduct that undermines the proper administration of justice, and does not state may undermine or the risk of undermining. There is no mens rea (the mental element the commission of a crime) either, according to counsel for the defence, Al Khayat cooperated, and always operated to the best standards and best practice of journalists. Further, where the Amicus stated that identities were divulged, counsel for the defendants states that the faces were pixelated, their faces were not shown, their names were not provided. This provides evidence that Al Jadeed did not have criminal intent. Khan addresses Judge Lettieri when he states: "In order to convict Al Jadeed and Ms. Karma Khayat, you must be satisfied beyond reasonable doubt that the only plausible explanation for the broadcast was a criminal intent to undermine confidence in the Tribunal. If there is any other plausible option, an acquittal must result. And we say the Prosecutor has not discharged that burden of proof".

The contested email of 11 August 2012 from Mr Lodge from the STL sent to Ms Khayat is addressed by the Amicus Prosecutor in his rebuttal. This email contained the order of the Trial Chamber of 10 August 2012, directing Al Jadeed to stop the broadcast series containing the contested information. Ms Khayat claimed she never received the email, though the Amicus Prosecutor states he does not believe this, as it was sent to Ms Khayat's regular email address that she had used before and after. Mr Khan in his rebuttal stressed that Mr Lodge himself had testified that he had no idea whether the email had been received by Ms Khayat. 

Mr Khan further stresses that the rights of the accused are similar in this case to any other criminal case, and that the court should not convict unless convinced beyond reasonable doubt that they have committed the crimes they are charged with. In his opinion, this threshold has not been met in the instant case. 

Rodney Dixon, second counsel for the accused, set out arguments in relation to corporate liability. Stressing that this is the first case ever that a corporation is being tried for contempt of court in international criminal law, it is essential that it has to be right. Of course, Judge Lettieri had been against prosecuting the corporations (see our earlier blogs: here and here), but the Appeals Chamber had ruled against him. Whilst there is thus no use for the defence to revisit that argument, Dixon set out that the Amicus Prosecutor had failed to establish the elements of the offenses. Since there is no international case law on this matter, national jurisdictions have to be consulted, and the Amicus Prosecutor has failed to do so properly. 

In her final speech to the court, Ms Khayat stressed that "We will not be silent. We will not step back. We will not be afraid of you. We will never, never stop. You will never be above the rights of the Lebanese people", indicating that in her opinion this whole case is more about press freedom, and not about contempt of court, thus dismissing the Prosecution's argument that Al Jadeed put witnesses at real risk, and that they obstructed justice willfully and intentionally. 

The Judge indicated that a written judgment will be produced in approximately two months' time.

Start of the contempt case against Al Jadeed and Ms Karma Al Khayat: Opening statements

The first contempt case at the Special Tribunal for Lebanon started today. This is the case against Al Jadeed, a Lebanese media company, and its deputy head of news, Ms Karma Al Khayat. Al Jadeed and Ms Al Khayat have been indicted with two counts of contempt of court: (i) broadcasting and/or publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the tribunal; and (ii) violating a court order to remove from its website and YouTube channel information on these purported confidential witnesses.

The Amicus Curiae Prosecutor, Mr Kenneth Scott, starts his opening statement by stressing the importance of free speech. He states that this trial doesn't pose a threat to free speech, as there are limitations to free speech and the media must comply with the law. The Prosecutor cites from a previous decision in this case that "freedom of the press must find its limits where it impinges upon the tribunal's ability to function properly as a criminal court". Mr Scott further takes the opportunity to counter the claims that have been made in the last few months that this case is unprecedented, pointing to the fact that most international courts have prosecuted journalists for contempt of court, and this often has resulted in convictions. Mr Scott thus stresses that this is not new territory, and that the case is important to protect the proceedings and the integrity of justice, as evidence by witnesses is essential for the functioning of the tribunal.

[Amicus Curiae Prosecutor Mr Kenneth Scott in court during today's hearing]

With these initial comments, the Prosecutor seems to attempt to address the concerns that have been raised in the media and by the Defence that the tribunal is trying to curtail the Lebanese media in its criticism of the tribunal, and that this case is unprecedented. It's the Prosecutor's view however that this case is about a media company that wanted a scoop, and would do anything to get that scoop. Al Jadeed thus broadcasted five series of a program called “The Witnesses of the International Tribunal”, and the entire tenor of the program was the exposure of alleged confidential witnesses. Al Jadeed included eleven persons as alleged confidential witnesses, with some of them even being unaware of the fact that they had been filmed; and although some of the faces were distorted, their voices were often included as well as other identifying information such as the person’s job or place of employment. Immediately after the broadcasting, persons that were shown in the program were called by family or friends.

The Prosecutor subsequently shows a selection of the program, without showing any parts that would reveal any alleged confidential witness information, as these parts are subject to protective measures and won’t be shown to the public. The Prosecutor further stresses that after the Registrar sent a notice to Al Jadeed demanding to cease and desist their program, Al Jadeed made a claim that the decisions of the tribunal are not legally binding for Lebanese media. Also, Al Jadeed did not comply with a court order to remove any confidential information or material allegedly relating to confidential witnesses, as the episodes of the program were put on the internet. Al Jadeed’s claim that the information they used was leaked from the tribunal, is according to the Prosecutor an unsupported assertion and part of its campaign to undermine the tribunal.

Mr Scott thus concludes that Al Jadeed’s documentary was intended to reveal confidential information, and that Al Jadeed's message to the public was that protected witness would be exposed. According to the Prosecutor this reduced the confidence of actual witnesses and the public in the tribunal, and directly interfered with the Tribunal's core function and the administration of justice.

The Defence then take the stance for its opening statement. According to Mr Karim Khan, lead counsel for Al Jadeed and Ms Karma Al Khayat, the Prosecution's case is without any merits. Mr Khan starts by  describing Al Jadeed as a young, independent, objective and courageous TV station, with ground-breaking broadcasts, and unpopular with those in power and authority. Mr Khan stresses that freedom of speech is a value to be protected, and that it is of core importance in any democratic society. Restrictions on freedom speech should be strictly necessary, proportionate and in accordance with the law. According to the Defence, contempt of court has never been prosecuted in this manner, as the Prosecution is not pleading a specific paragraph under Rule 60bis (A), but has built its case on the general claim of undermining confidence in the tribunal. The Prosecutor is thus not alleging that actual protected witness information has been revealed or that witnesses have been interfered with, only that the confidence in the tribunal has been undermined. According to the Defence this has no legal basis, and is new territory with the Prosecution making up its case as it goes along.

Mr Khan states that there was no criminal intent on the part of Al Jadeed or Ms Al Khayat. Al Jadeed has not revealed any names and the faces were pixelated. Al Jadeed only showed that names of witnesses were available in the public domain and that action should be taken against this. At no time did Al Jadeed broadcast any of the names of the witnesses and Al Jadeed and its employees have been fully cooperating with the tribunal. Employees of Al Jadeed sat down with the Amicus Curiae Prosecutor to answer questions, including the reporter of the program and Ms Al Khayat herself.

In relation to the order by the Registrar, Mr Khan explains that after receiving this order, Al Jadeed took legal advice from the Media Council of Lebanon, which confirmed that they could continue broadcasting the program. Further, the order from a judge was not properly served on Ms Al Khayat, and therefore she was unaware of this order. Mr Khan also briefly touches upon the alleged corporate responsibility of Al Jadeed, which according to the Defence is a violation of the principle of nullem crime sine lege, as there is no legal basis for this international law. In our guest blog on the International Justice Monitor, we have expressed similar doubts about the tribunal's jurisdiction to prosecute legal persons.

[Ms Karma Al Khayat and her Defence counsel Mr Karim Khan]

Ms Karma Al Khayat also gives a short personal statement, talking about the duties of journalists to uncover the truth and question the authorities. She stresses the importance of freedom of speech and investigative journalism, and questions the amount of money spent on the tribunal by Lebanon. In her view Al Jadeed dared to reveal the failures of the Prosecution, and now it is standing trial for that.

Merhi defence opening statement

Today, Mr Aouini, counsel for fifth defendant Hassan Habib Merhi, held his opening statement in response to yesterday's opening statement by the Prosecution (see here for our blog post on yesterday's proceedings).

Hassan Habib Merhi (Photo: BBC)

Mr. Aouini started off by saying that he wanted to extend his deepest sympathy to the victims of the 14 February 2005 assassination on former Prime Minister Rafik Hariri along with 21 others. He stressed that he does not question their suffering and their pain, indicating that "we appear here for the sole purpose of uncovering the truth" and, "for the advancement of reconciliation among the Lebanese people".

This latter statement is interesting, that it is one of defence counsel's objectives to contribute to reconciliation in Lebanon, which normally is not one of the primary concerns for counsel for the defence. At a later stage, Mr Aouini indicated that his task is to safeguard the rights of the defendant, and acting with the idea that at a later stage, the defendant may appear before this tribunal. As we have observed on a previous occasion (see our previous blog post on in absentia trials), it will be interesting to see throughout these in absentia proceedings how defence counsel will interpret their role for their clients that they've never been in contact with. Will they merely challenge the Prosecution case, or will they bring forward their own, alternative theories?

The main part of Mr Aouini's opening statement was spent on stressing the inequality between on the one hand, the defence for Merhi's team and the Prosecution who has had nine years to investigate, and on the other hand between Merhi's defence team and the defence teams for the other accused persons, who had significantly more time to prepare for the proceedings. Although this indeed seems a valid point, this has been raised on several occasions before the judges and has been decided upon (see here for the Appeals Chamber decision). It is an important issue for the Merhi defence, and it was to be expected that counsel would highlight this during his opening statement.

The proceedings will continue next week with the continuation of Prosecution witnesses who will testify either in court in Leidschendam or through video link from Beirut.