Prosecution's case against Mr Merhi

Today the proceedings at the Lebanon Tribunal were all about the case against the accused Mr Merhi. Mr Merhi is alleged to have been part of the same conspiracy as the other accused in the case against Ayyash et al. As the joinder of Mr Merhi has taken place after the commencement of trial, the Prosecution gave an opening statement exclusively dealing with its case against Mr Merhi (click here and here for the transcripts of the initial opening statement of the Prosecution given in January). During the proceedings, one victim was present in the courtroom, the wife of the late Mr Fuleihan, who was part of the convoy that included Hariri, and who died because of severe burning injuries caused by the explosion.

The Prosecution started its opening statement by discussing the bomb explosion that killed Hariri and other members of his convoy, at the same time killing and injuring many bystanders. In the coming weeks, the Prosecution will call further forensic and DNA experts dealing with the explosion and its consequences.

The Prosecution subsequently focused on the anticipated evidence that is most related to Mr Merhi. According to the Prosecution’s case, four vital tasks were required for the completion of the conspiracy aimed at committing the terrorist act that killed Hariri: (i) identifying the location where the explosion should be detonated; (ii) gathering information about Hariri’s movement; (iii) preparing the bomb; and (iv) creating the false claim of responsibility for the attack. The nature of the conspiracy was sufficiently complex to require a division of labour and a hierarchy in its membership, and extensive and coordinated preparation was needed for this attack, so the Prosecution claims.

Mr Merhi played a significant and leading role in this operation, although it's the Prosecution's case that Mr Badreddine coordinated Mr Ayyash and Mr Merhi. Mr Merhi was only responsible for the fourth task (the false claim of responsibility), which included identifying a candidate for the false claim, befriending the potential candidate Mr Abu Adass and luring him away from his family, preparing a tape and a letter with the false claim and providing these to the Lebanese media after the attack.

For the time period from 1 October 2004 until 14 February 2005, the Prosecution has divided the conspiracy into five phases; the following slide shows Merhi’s responsibilities in these phases:

The Prosecution then explained the relevance of the data on phone networks - the main evidence that is linking the accused to the bomb explosion – for the Merhi case: Mr Merhi had two different phones that can be used to connect him to the conspiracy: Green 071 (from 24 September 2004 until 7 February 2005) and Purple 231 (from 19 December 2004 until 14 February 2005). Mr Merhi is connected to Mr Badreddine and Mr Ayyash through the green phone network, and to Mr Sabra and Mr Oneissi through the purple phone network. The specific characteristics of these phone networks or groups, who communicated through these phones, and where and when these phones went - this is all important for the Prosecution’s case that with the use of these phones the conspiracy was organised. See the following slide used during the Prosecution’s presentation, which contains the distinctive features of the green phone network.

The Prosecution continued to provide extensive detail about the phone data evidence it will present to prove that Mr Merhi, Mr Sabra, and Mr Oneissi cooperated as a team in arranging the abduction of Mr Abu Adass, the preparation of the false claim, and the spreading of the false claim through the media. This included a number of maps showing the locations of phone calls by the green and purple phone networks, from which according to the Prosecution the involvement of these phones, and thus the accused, in the conspiracy can be inferred.

As a last important aspect of the case against Mr Merhi (and the other accused for that matter), the Prosecution shortly discussed how these phones can be attributed to Mr Merhi. Again this will need to be inferred, this time from a comparison in the characteristics and locations of phones purple 231 and green 071 with a phone that can be directly connected to the Merhi family through official documentation, including a tax form submitted by Mr Merhi. Finally, the Prosecution describes Mr Merhi as a ‘grey man’ with a family with five children but no recorded employment, who does most of his payments in cash. This would also confirm the Prosecution’s theory on the criminal activities of Mr Merhi. Tomorrow we will hear what the Defence for Mr Merhi has to say in response.

The resumption of the proceedings at the STL: Pre-Trial Conference of 16 June 2014

With the opening statement of the Prosecution in relation to the accused Merhi scheduled for this Wednesday, today a pre-trial conference was held to discuss the procedural aspects of the resumption of trial. Because of the joinder with the case against the accused Merhi, no evidence has been called in the Ayyash case since February of this year. Scheduling issues were the main topic of today’s conference. After the Prosecution’s opening statement this Wednesday, the Defence for Merhi will give its opening statement on Thursday.

The first witness after the resumption of trial is scheduled to appear next week, on Tuesday 24 June. However, in relation to many of the witnesses to be called in the coming weeks, it remains unsure whether the Prosecution will be able to arrange their presence in the courtroom in Leidschendam. Therefore, it is to be expected that most of them will testify via video-conference link. Further, the Merhi Defence is still opposing the calling of a number of Prosecution expert witnesses at this stage of the proceedings, as its defence experts have not yet finished their analyses.

Other issues discussed were (i) upcoming guidelines on the inspection of exhibits by the parties, including the need to request prior authorisation from the Chamber by parties wishing to unseal or remove exhibits; and (ii) on-going problems regarding the cooperation between the government of Lebanon and the defence teams that are seeking to obtain specific documentation.

After several of these procedural hearings in the last few months, with the opening statements of Wednesday and Thursday, the Lebanon Tribunal will finally return to the substance of its main case.

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.