Al-Amin & Al-Akhbar Initial Appearance in Contempt Case

Prior to today's Initial Appearance, Al-Akhbar newspaper tweeted the following statement by Mr. Al-Amin:

Mr. Al-Amin appeared at his Initial Hearing in Leidschendam, close to The Hague, this afternoon, informing the Court that he will represent himself in court today through video link. The fact that on a previous occasion, the Court had ordered the defendant to either be in court or appear through video link with the requirement that his counsel be present in Leidschendam, did not withhold the judge today from accepting Mr Al-Amin to represent himself as well as Al-Akhbar today through video linkage.

Judge Lettieri initially allowed Mr. Al-Amin to make a statement to the Court. Unsurprisingly, given the above-quoted tweet, Al-Amin decided to make a political statement, indicating his distrust of the international community, the United Nations Security Council, and more in particular the Tribunal itself. Judge Lettieri stopped Mr. Al-Amin indicating that the latter could challenge the jurisdiction of this Court, but that this was not the occasion to do so, after which the defendant, some thirty minutes into the hearing, decided to walk out of the courtroom (that he attended by video link) "because the court will not grant [him his] basic rights".  The accused hoped or expected to be granted the right to give a political statement at his Initial Hearing, though there is no "basic right" to do so. The Contempt Judge was right in indicating to the accused that he has an inherent right to challenge the jurisdiction of the Tribunal, but not at this instance.

The Judge adjourned the proceedings for some ten minutes, which time he obviously used to make up his mind about how to proceed with a self-representing defendant relying on the right to remain silent and walking out of the proceedings. 

Judge Lettieri at today's hearing.

Upon his return, Judge Lettieri said that the Prosecutor must prove his case as he interpreted the defendant's behavior as a not-guilty plea. The Judge asked the parties' opinion on whether or not to impose counsel on the defendant. The Amicus Curiae Prosecutor argued that indeed, the defendant cannot represent himself if he chooses not to appear. The Head of the Defence Office Francois Roux argued, not very convincingly, that the right to self-representation is an absolute right. Roux suggested that a legal assistant or standby counsel be appointed to assist Al-Amin and Al-Akhbar in their defence, rather than represent them. He made reference to the case of Milosevic at the ICTY, where the latter was indeed allowed to represent himself. Judge Lettieri simply replied that the two cases are not comparable, given that Milosevic appeared in court. Roux attempted, in vain, to make a comparison to the practice at the Paris Bar, but Judge Lettieri simply responded that "We're not in Paris, and if we were you would not be here".

Judge Lettieri then requested the Head of the Defence Office to impose counsel on Al-Amin and Al-Akhbar pursuant to Rule 59f of the Rules of Procedure and Evidence, indicating that written reasons for his decision will follow soon, adjourning today's hearing.

Dilemma for Contempt Judge?

What will the Contempt Judge Lettieri do now that Mr. Al-Akhmin has chosen to self-represent, remain silent and disappear from the courtroom, all at the same time? Lettieri chose during today's Initial Appearance in the contempt case against Al-Amin and the newspaper Al-Akhbar to have counsel imposed on Al-Amin and Al-Akhbar by the Head of the Defence Office on the two defendants, natural and corporate persons.

However, given the attitude of Mr. Al-Amin during today's proceedings (see our blog post from earlier today), it remains to be seen what appointed counsel can in effect do. Expected is that the defendant chooses not to cooperate with the appointed lawyer, given that he indicated this afternoon that he will not accept a court-appointed lawyer. Mr. Al-Amin will probably choose not to voluntarily appear in court, and in any case will remain silent even if he decides to re-appear.

It looks like the Contempt Judge may have to issue an arrest warrant for Mr. Al-Amin, but will he be willing to go that far? If Mr. Al-Amin continues along this path, the Contempt Judge may be forced to do so, which may have serious consequences for the appearance of the Tribunal within Lebanese society that is already so deeply divided on this Tribunal.

At the end of today's hearing, Judge Lettieri indicated he would issue written reasons for his decision today, and announced that the hearing would be adjourned till a later stage. It will be interesting to see how he will deal with this complicated situation, and whether he will be able to find the right balance in weighing the rights of the accused, the reputation of the Tribunal, and the delicate political situation in Lebanon.

This afternoon: First Appearance of newspaper al-Akhbar and its editor Al-Amin

Initial hearing of 13 May was postponed to today

Today, the Initial Hearing for newspaper Al-Akhbar and its editor Ibrahim Mohamed Al-Amin took place. The hearing was initially scheduled alongside the other contempt cases on 13 May, but the defendant in this contempt case, Mr. Al-Amin, indicated before the hearing (in a letter dated 8 May 2014) that he had not yet been in a position to select counsel, also criticizing the Head of the Defence Office Mr. Francois Roux, for not showing a very organized approach.

Ibrahim Mohamed Al-Amin (photo by Al-Akhbar)

Al-Amin's concerns

Safety

Already in his aforementioned letter of 8 May, Al-Amin indicated to the Contempt Judge his concern about his personal safety and that of his family and colleagues at Al-Akhbar. At the hearing on 13 May Contempt Judge Lettieri mentioned this concern, but did not make any reference to it in relation to the postponement.

Again on 26 May, Mr. Al-Amin sent a letter to Judge Lettieri, informing the latter of his concerns in relation to this hearing, the first being that of safety for himself, his family and his employees. He specifically asks the Judge what measures will be taken for him and his family by the Tribunal during and after the proceedings, stating that

"I am considered, at this moment, and after the issuance of the indictment, a person hostile to Lebanese forces, which deals with any criticism of the STL's work as a form of involvement in the attack on Hariri and others. These forces have their own uncontrolled security, militia and armed forces."

Tribunal lacks legitimacy

The second concern raised in the 26 May letter relates to the principle of nulla poena sine lege, no punishment without law. What Al-Amin seems to argue here is that the Tribunal lacks legitimacy given the discrepancies between the Lebanese Criminal Cod and Law on Publications on the one hand, and the Tribunal's legal system on the other. This is, however, a substantive argument that should be raised during the proceedings. He does raise valid questions, though, that will have to be addressed during the proceedings.

Selectiveness

The third argument raised by the accused concerns the alleged selectiveness of this case. He states in his letter that "I cannot hide from you my strong feelings that there are latent intentions to target me and Al-Akhbar", referring to "political and judicial proceedings brought against Al-Akhbar and against me personally". He fails to further substantiate this concern in his letter, though it suggests that he is targeted for political reasons. He further refers to the campaign of solidarity by the Lebanese press society.

We have on previous occasions argued (see e.g. Al-Jazeera and The Daily Star) that the current case does not concern an attack on the freedom of press, indeed a right fundamental to the rule of law, but rather an attempt to stifle threats to witness safety.

Today's hearing

The First Appearance is scheduled to take place today at 3pm (you can watch the hearing online) and Mr Al-Amin and the news corporation Al-Akhbar are requested to appear either in person or through video-link if their counsel appear in court. In his above mentioned letter of 26 May, Mr Al-Amin suggests that he has not yet chosen counsel to represent him and the newspaper, which means that he will have to be present in Leidschendam himself.

Stay tuned to this blog, or follow us on Twitter (@karlijnvdvoort and @IntCrimLawNL) for regular updates!

Initial appearances in STL contempt cases against two journalists and two media companies

The hearing started in the morning with the initial appearances in the first contempt case, that is the case against NEW TV S.A.L. (Al Jadeed TV, represented by Mr. Khodr) and the case against Ms. Khayat, Al Jadeed’s Deputy Head of News. Both accused were present and will be represented by Mr. Khan and his legal team. After the indictment was read out, both entered a plea of not-guilty.

Subsequently Contempt Judge Lettieri gave various orders to ensure that the accused and its defence team will not disclose confidential material disclosed to them, as requested by the amicus curiae prosecutor through a written motion (click here for this motion). Further, Judge Lettieri set deadlines for disclosures pursuant to Rule 110, and reminded the prosecutor of its obligation under Rule 113 to disclose exculpatory material to the defence. The prosecutor indicated that Rule 110(A)(i) material will be disclosed by tomorrow, and Rule 110 A(ii) material by 30 May, as ordered by the Contempt Judge. Further, preliminary motions pursuant to Rule 90 have to be filed by 16 June, including challenges of the indictment; the prosecution has to submit a proposal on the further planning of the trial by 20 May.

Judge Lettieri also invited third parties to submit amicus curiae briefs on the jurisdiction of the STL, with a deadline of 30 May (parties may respond by 11 June). These briefs will almost certainly address the issue of jurisdiction over corporate entities, a novel and contested issue in international criminal law. At the request of the defence, the prosecutor will have to submit a clarification as to the indicted company (NEW TV S.A.L. or Al Jadeed TV) within 7 days. Another request by the defence for hard copies will be decided upon in due course.

During the afternoon session the initial appearances in the case against newspaper Al Akhbar and Mr. Al Amin, its editor-in-chief, were scheduled. However, Mr. Al Amin did not appear in court nor was he represented through counsel. Judge Lettieri read out parts of a letter sent to the Registry of the STL, through which Mr. Al Amin requested a postponement of the trial because, amongst others, he had not been able yet to select counsel and prepare for his defence. The Registry gave further details about its communications with Mr. Al Amin, who, it appeared, has attempted to contact the Registry on numerous occasions over the course of last week. The Head of the Defence Office, Mr. Roux, pointed to the rights of the defence and the time needed to assemble a defence team. Mr. Roux has been in contact with an attorney that has represented Mr. Al Amin before in other matters. Judge Lettieri granted the request for postponement, and a further hearing will be held on 29 May. Mr. Al Amin can appear by video-link if a lawyer is present in court.

Status Conference of 12 May 2014: A date has been set for the resumption of trial

Today during a status conference the Trial Chamber set a date for the resumption of trial. The Chamber had already requested the parties to file their position last Friday. The motion filed by the Merhi defence explained why the trial should not resume before the end of September, whilst the Prosecution outlined a plan on the order of the evidence to be called if the trial would resume. During the status conference the Trial Chamber requested the parties to orally reply to each other’s motions.

The Prosecution explained that during a meeting it had agreed with the Merhi Defence that the material identified as the first part of the Prosecution’s case is the only evidence that realistically can be called upon resumption of the trial. This evidence has been split into three groups, in order of contentiousness. This evidence would include forensic evidence, crime scene evidence, DNA and identification evidence, and – the third, most contentious, group of this part of the trial – evidence relating to the explosives.

The Merhi Defence subsequently explained the difficulties it is facing in preparing for trial, including the volume of disclosure, and the need to have an overview of the whole case before being ready to commence. Especially in relation to the evidence about the explosives, the Merhi Defence will need more time, as the defence expert will only have its report ready in August. The Defence for Merhi further explained that the issues relevant for the crime base are inseparable from the issues regarding the explosion, thus suggesting that their overall readiness (also) depends on this expert report.

Of special interest were the questions put by Judge Nosworthy to the Prosecution about the competing rights and interests in  relation to an expeditious trial, with the accused being the primary beneficiary of the right to a speedy trial (but absent in the current case). The Prosecution pointed to the interest of the Lebanese people to see justice to be done. Judge Nosworthy recalled that both the Prosecution and the victims have not indicated any risk of undue delay by facilitating the Merhi Defence’s request for more time. This line of questioning corresponds with the recent dissenting opinion rendered by Judge Nosworthy (Click here for this dissenting opinion) containing her views as to why the Merhi Defence should receive more time to file its Defence Pre-Trial Brief (which is, according to the majority decision, due on 26 May).

After deliberations, the Trial Chamber issued an oral decision setting 18 June as the date of the resumption of trial. On this day the Prosecution will start with its opening statement in relation to the accused Merhi, followed by an opening statement by the Merhi Defence if they choose to do so, and subsequently the resumption of witness evidence. Evidence directly going to the acts or conduct of the accused, including the telecommunication evidence, cannot be called before the judicial recess; also the parties will be heard before calling this type of evidence. Further, until the judicial recess the Chamber will sit on a reduced basis of several days a week, allowing the Merhi defence additional time to prepare. This sitting schedule is to be reassessed in July. The Chamber also left open the possibility to extend the judicial recess. The Merhi Defence requested leave to appeal the decision, which was granted.

Another matter discussed during the status conference was the cooperation of the government of Lebanon in relation to a number of requests for information by the Defence for Sabra. The Defence sought an order of non-compliance as only part of the requested information had been provided. The Chamber however issued an interim decision, encouraging Lebanon to provide all information to the defence. The Chamber will revisit the matter before the resumption of trial.

Contempt case against Lebanese journalists at the STL

What is this case about?

The Special Tribunal for Lebanon (STL) has recently lifted the confidentiality of contempt proceedings it started in January of this year against two Lebanese journalists and two news corporations in Lebanon. The STL accused them of having published "names of individuals alleged to be witnesses before the Tribunal". Lebanese journalists have acted in solidarity with the contempt accused, but a wider debate has ensued about the boundaries of press freedom and whether the current contempt case is an effort to silence the press in Lebanon.

The journalists published on several occasions names of individuals alleged to be witnesses before the Tribunal. The information was broadcast on websites, TV programs and YouTube. At no point does the Contempt Judge clarify whether the published names are in fact witnesses before the Tribunal or not. And indeed, the Judge should not clarify this for the obvious reason that he may have revealed confidential information by doing so. Thus, the mere fact that they are alleged to be witnesses is in itself a breach of confidentiality.

If convicted, the two natural persons charged with contempt face a maximum sentence of seven years in prison, a fine of 100,000 or a combination. The legal persons can only be fined for their role in the contempt case.

The two journalists and corporations have been summoned to appear before the STL in Leidschendam on 13 May 2014. The summons specifies that the initial appearance may be attended by video-conference, provided that counsel for the accused attends the appearance in person.

A third publication is currently still under investigation; the details thereof have not yet been made public.

Contempt decision of 31 January 2014 (public on 24 April 2014)

On 31 January 2014, Judge David Baragwanath, then the Contempt Judge, issued a Contempt Decision, in which e charged two individuals and two corporate entities with contempt of court. The Contempt Decision is unique in that, for the first time in international criminal law, it charged corporate entities with contempt of court. The investigation against the individuals and corporations was instigated after publication (on TV, website and YouTube) of names of individuals alleged to be witnesses before the Tribunal.

Law on contempt proceedings

In the Decision, Judge Baragwanath considered the purpose of contempt proceedings, which he determined to be "to protect the public from wrongful interference with the administration of justice". He looked at the applicable law and found that, though the Tribunal's Statute does not specifically provide for contempt, the Tribunal's power derives from its inherent jurisdiction to protect the integrity of the judicial process and to ensure the proper administration of justice. Rule 60bis of the Tribunal's Rules of Procedure and Evidence (RPE) provides for the authority to hold accountable those who knowingly interfere with the administration of justice. He found that, although there is no explicit provision on contempt, prosecuting for this crime is not in breach of the principle of legality. This seems to be in line with the jurisprudence of other tribunals, that have argued along similar lines. He further considers the fundamental right to freedom of information and press freedom, but concludes nonetheless that the media, like the rest of the community, must comply with the law. Judge Baragwanath adds that: "Nothing is more fundamental to the rule of law than that there must be no deliberate interference with the administration of justice."

Judge Baragwanath further decided to include legal persons in the contempt proceedings, a unique phenomenon in international law, the importance of which should not be underestimated. The applicable provisions of the STL do not specify whether or not it is possible to prosecute legal persons for breach of Rule 60bis RPE provisions. He further analyzes national case law, including Lebanese law that indeed allows for criminal prosecution of corporations. He notes that, indeed, no such prosecution has ever taken place under international law, but he emphasizes that there  is nonetheless an "international trend" toward criminal liability for legal persons, particularly, he states, with respect to contempt cases, where corporate entities hold great power in their ability to publicly disseminate information. This decision may lay a foundation for further development of liability of corporate entities in international criminal law.

Appointment of an amicus curiae investigator and a new Judge

The Judge appointed an amicus curiae to further investigate the matter. The amicus investigated the allegations, and recommended the issuance of orders in lieu of indictments against these persons, legal and natural. The amicus also investigated the source of the information, but did not come any further than indicating that it was "unlikely" that such information was leaked from within. 

Judge Baragwanath ordered the contempt proceedings to be initiated against Al Jadeed TV and Ms. Kharma Khayat, and Al Akhbar and Mr. Ibrahim Al Amin. This Judge subsequently, and after much deliberation of other cases, including the Hartmann case at the ICTY, decided to recuse himself from further proceedings against the four, as "this means I am now the prosecutor of the contempt issues. I cannot now become judge of the same issues".

Summons to appear - 18 March 2014

The first Contempt Judge Baragwanath designated Judge Nicola Lettieri as the new Contempt Judge in these proceedings. He then summoned the four, legal and natural, persons to appear before the Tribunal (Summons). At the time of the filing of the summons, the documents remained confidential, and only on 24 April was the confidentiality thereof lifted (Order lifting confidentiality). The persons are summoned to appear before the Contempt Judge on 13 May 2014, in person or by video-conference.

Der Spiegel: publication of sensitive information

The German weekly Der Spiegel on a previous occasion disclosed details of the then confidential indictment, including the names of potential suspects, before it had been made public by the Tribunal. The Canadian CBC revealed sensitive information about the STL's investigation, including information in relation to tracking of telephones used by the suspects of the Hariri assassination.

However, the publication of sensitive information is of a different nature than publishing names of potential witnesses. Witnesses may be at a personal risk by playing a role in the proceedings, and the Tribunal has an obligation to protect their safety.  If their situation is such that they may be at risk because of that, they may receive protective measures that will shield their identity from the public and/or other parties. By publishing names of potential witnesses that are deemed confidential, this system is compromised, the proper administration of justice may be endangered and the lives or health of individuals may be at risk. By instituting proceedings against these journalists and their employers, the Tribunal issues a very clear warning signal to the press community that such behavior is off limits.

Previous cases at the other tribunals

Other international tribunals have dealt with similar cases, as will be discussed below. Generally, there is consistent jurisprudence that the publishing of names of alleged witnesses is subject to contempt of court proceedings.

Rwanda Tribunal (ICTR)

The Rwanda Tribunal does not have many cases of prosecuting journalists for contempt in relation to the publication of witness-related information. However, in 2006 the ICTR prosecutor attempted to prosecute the French language paper Diplomatie Juridiciaire and war crimes reporter Thierry Cruvallier for an article (see here and here) revealing the identity of a potential prosecution witness in the Bagosora case and his possible involvement in the genocide. The then-Prosecutor Carla del Ponte sent a letter to the newspaper, warning that if it would not retract the article, she would bring the matter to the ICTR. The Prosecutor's request to prosecute the newspaper was, however, rejected by the Chamber dealing with the matter, and there is not much information available about the details of this case.

Yugoslavia Tribunal (ICTY)

When considering the case at hand, mainly the contempt case against Florence Hartmann at the ICTY comes to mind. She was previously spokesperson for the Office of the Prosecutor of the ICTY. Working for then Chief Prosecutor Carla del Ponte, she had obtained information in relation to the role the Serbian government had played during the Bosnian war. After she stopped working for the ICTY, Florence Hartmann continued to work as a journalist, and in that capacity published a book about the Milosevic case. In her book, she included details of decisions that had been redacted by the ICTY. The Appeals Chamber convicted her initially of a fine that was later transformed into seven day prison sentence; however, France has refused to extradite her.

There was further the contempt case against journalist Baton Haxhiu, who was convicted for contempt because of revealing the identity of a protected witness in an article he wrote as an editor of a Kosovo newspaper. There is the contempt case against Josip Jovic, who was found guilty of contempt as an editor-in-chief of Slobodna Dalmacija, he disclosed the identity and testimony of a protected witness. Journalist Domajov Margetic was found in contempt of court for publishing the names of 102 protected witnesses on a website. Dusko Jovanovic, editor-in-chief of the Montenegrin daily newspaper Dan, was charged with contempt of court for revealing the identity of a protected witness who had testified against Milosevic. The ICTY dropped the charges against Jovanovic after he had published an apology.

International Criminal Court (ICC)

The Kenya cases at the ICC are closely followed by the media in Kenya which are generally quite critical of the proceedings. There have been several incidents concerning the revealing of confidential information in relation to prosecution witnesses. Notably, the first witness in the case against Ruto was not named in court, and face and voice distortion were put in place during her testimony. Nonetheless, the BBC reported that, shortly after her testimony, numerous bloggers and social media entries published her supposed name. Judge Chile Eboe-Osuji subsequently warned that anyone revealing the identity of a protected witness could be guilty of contempt of court, in an attempt to prevent further disclosure of confidential witness information.

Walter Barasa, a Kenyan journalist, is accused of interfering with prosecution witnesses by paying them bribes. The ICC has requested his arrest, the first time for the ICC to issue an arrest warrant for trying to influence witnesses. Kenya has not yet transferred him to The Hague and the proceedings are on hold.

Commentary

The contempt case against the journalists seems to be a logical consequence of the publication of names of alleged witnesses. Given the case law of the other tribunals, there is a proper basis for doing so. The prosecution of the corporations for contempt of court is, however, unique in international criminal law (for an excellent analysis of this aspect of the case, see this blog by Dov Jacobs).

A heated debate has arisen within Lebanese society about the legality of the contempt cases (see e.g., this article in the Daily Star by Kareem Shaheen), and the STL must be very careful by not making matters worse for its perception. The Contempt Judge dealing with this case must ensure to provide very clear reasoning in her decisions, so as to avoid further unnecessary questioning of her assessment.

While the journalistic community within Lebanon seems united in support of the accused (see here), several members of cabinet involved themselves in the debate. The Minister of Justice urged the accused to respect the summons and to appear before the Tribunal on the 13th of May (see here), whilst the Information Minister supports the journalists, though at the same time indicating that the "important thing is that the two media outlets defend themselves properly by adopting all the legal means as per the tribunal's mechanism" (article Naharnet).

There is a fine line between press freedom, which is fundamental to the rule of law, and attempts to silence journalists. This is why this debate is so important and everyone's voice should be heard. Critical analysis of the decisions should be made by lawyers and journalists.

In this particular case, the publication of names of witnesses is one step too far: the fact that the Tribunal does not tolerate this is understandable. The critique that the source of the leaked information should be prosecuted rather than the publishers thereof is disputable. If the source is found by the investigator at some point in the future, naturally, measures should be taken against such person. However, this does not detract from the fact that the publication of such information in itself is prosecutable under the Tribunal's legal system.

Status Conference of 10 April 2014

Yesterday a status conference was held. Due to the joinder of the Ayyash et al. case with the Merhi case, resulting in five accused facing charges under the same indictment, the trial has been adjourned since mid-February in order to enable the defence team for Merhi to prepare for trial. The state of preparations of the Merhi Defence and other matters related to setting a date for the resumption of trial were the main topics discussed during this hearing. Other matters covered were the cooperation of Lebanon with the defence teams and some pending motions and requests.

The Defence for Merhi set out its progress with trial preparations, having just appointed various defence experts (including an explosives expert and a telecommunication expert) who have started to prepare their reports. The Merhi Defence further explained that it estimates to need another 4-5 months to file its Pre-Trial Brief, and expects to be trial-ready in 5-6 months. The Chamber made the observation that because the other four Defence teams have contested the entire Prosecution case in its Pre-Trial Briefs, the Merhi Defence will only need to set out the general framework of its defence, and no detailed or comprehensive Pre-Trial Brief is needed at this stage. The Merhi Defence however stated that it will need a full understanding of the case and analyse the complete case file before filing its Pre-Trial Brief and being ready to resume trial, thus also objecting to the approach of re-starting the trial with the least contentious evidence (for example so-called crime base witnesses), postponing calling evidence directly related to the accused Merhi to a later stage of the proceedings. In general, the Trial Chamber seemed to be suggesting that this is the approach they are currently considering, an approach that would not be out of line with the Prosecution’s approach so far in presenting its evidence. The Prosecution has started its case by calling mostly crime base witnesses, victims and experts in relation to the explosion and forensic investigations after the attack. The Prosecution indicated it would not oppose such a phased approach and suggested to identify groups of witnesses to start with after the resumption.

The Chamber further set a deadline of 24 April 2014 for the Merhi Defence to provide a Rule 161 notice in relation to five Prosecution expert witnesses – that is its position on the expert report and his or her expertise, and its wish to cross-examine the expert. These five experts are (largely) uncontested by the other four Defence teams. This also suggests that the Chamber is thinking of the possibility to call these five experts relatively soon. After deliberations the Chamber further ordered the Merhi Defence to file its Pre-Trial Brief by Monday 26 May 2014, giving the Defence significantly less time than requested. A Pre-Trial Conference will be held on Monday 16 June, with another status conference to be held before that time, that is some time in early May (written reasons for these orders will follow in due course). It’s very likely that the trial will resume soon after the Pre-Trial Conference.