Ali Hamade testifies at the Lebanon Tribunal

This witness, Mr. Ali Hamade, is the younger brother of Mr. Marwan Hamade, who testified earlier in this case (see our blog post). Ali Hamade testified on 13 and 14 April for the Prosecution. This witness is a jounrliast at the An-Nahar newspaper. He writes one of the political editorials. He accompanied Mr. Hariri on official and non-official visits. After he started covering Rafik Hariri's activities, the two became very close. The witness acted as an intermediary between Hariri and President Bashar Al-Assad of Syria.

The witness informed the Trial Chamber of his idea of a future movement network that he presented to Hariri in the summer of 2004. Lebanon was divided on the presidential extension, and the witness was among those who opposed Lahoud's extension. Rafik Hariri was also challenging the extension, and trying to change the political scene. The idea Hariri and the witness discussed that summer was to start a media campaign opposing the extension. Rafik Hariri was heavily pressured by the Syrians to stop this campaign against the extension; there was pressure on his television station and Future TV (Al-Mustaqal TV) suffered from a rocket attack. No investigation resulted, but they knew it was the Syrians who were behind this. This was not official information, but there were many rumours to that extent.

 [Screenshot of Mr. Ali Hamade testifying in court.]

Mr. Hamade understood that Mr. Hariri was under great pressure, including by President Lahoud himself. After the attack on the Future TV had taken place in June 2003, and things changed after that, Hariri was less involved in direct confrontation with the Syrians and even President Lahoud. Future TV had reduced its political tone afterwards. During 2004, Hariri became more involved in the opposition movement. 

After Lahoud's term was extended, the witness met with Rafik Hariri, and the latter informed him that "the show will continue. The battle has started". The Prime Minister had two meetings in Damascus, the second of which took place in August of 2004. Hariri attended the meeting "because he did not want the country to explode", testifies Hamade. 

In cross-examination, the witness is asked about the attack on Future TV and who was behind that. The witness remains confident it was the Syrians who must have been behind that, in spite of a Jihadi group who claimed responsibility. The witness further testifies about some of the Lebanese judiciary exerting influence or pressure on Lebanese politicians. 

El-Sabeh testifies at the STL

Witness El Sabeh appeared in court between 16 and 19 March 2015, testifying on the role Syria played in Lebanese internal affairs and ultimately in the 14 February 2005 attack that killed former President Rafik Hariri. Again, this witness was a longtime friend and confidant and political ally of the late Prime Minister.

[Screenshot of witness El-Sabeh in court.]

The Prosecution started examining this witness about the relationship between Hariri and the Syrian regime, Syrian interference in Lebanese politics, and its evolvement throughout the years. The witness testified about three meetings between Rafik Hariri and Syrian officials, that took place between 1999 and 2004. In 1999, Hariri for the first time met with Bashar al Assad at the request of Syrian President Hafaz al Assad. The witness accompanied Hariri on his trip to Damascus, though he did not attend the actual meeting. After the meeting, Hariri told El-Sabeh, referring to Bashar al Assad, "God help Syria, Syria will be ruled by a child".

In December of 2003, another meeting was held in Damascus, this time with Bashar al Assad in power. The witness did not accompany Mr. Hariri on this trip, but the latter briefed the witness about the meeting the same day. The meeting had been with President Assad, Brigadier-General Ghazi Kanaan, Rustom Ghazaleh and Brigadier-General Mohammad Khallouf. Whilst President Assad was quiet during most of the meeting, the other three men all threw accusations against Hariri. He said afterwards that

"I thought for a second that I should stand up and leave because of the harsh words I heard from them, words given by officers to a prime minister, subordinates saying those words, and I felt personally insulted and I felt my country was insulted."

 And the witness repeats what Hariri had said to him the three officials had said to him during that meeting:

"Who are you? What's your worth without Syria? You're nothing without Syria. You're nothing without His Excellency President Bashar Al-Assad. We made you prime minister and we can make you prime minister." 

According to this witness, Hariri was also informed to do something about the media and their reporting on the role of Syria in Lebanon.

The third, and last, meeting was held in late August 2004, and later that day, Hariri met with the witness and others. Hariri informed them that the meeting had not gone well. The topic was the extension of President Emile Lahoud's term, and the Syrian officials had asked Hariri to submit the extension to Parliament. The witness says that Hariri interpreted the words of Bashar al Assad as an order, not as a question.

Whilst the Syrian officials requested Hariri to support Lahoud's extension on the one hand, on the other hand Hariri became part of the Bristol Group, which was considered to constitute a form of national reconciliation; a project aiming to reject the Syrian presence in Lebanon. This Bristol Group was the founding force of a new political movement in Lebanon. The new political opposition in Lebanon was founded by its creation, and preparing for the 2005 parliamentary elections.

On 1 February 2005, two weeks before his assassination, Hariri was met by Walid Moallem, Syria's Deputy Foreign Minister, on behalf of the Syrian regime. The main point of this meeting was "an attempt by the Syrian leadership to say that they are talking to Rafik Hariri following the problems which were getting more acute and the differences that were growing between the Syrian point of view and Rafik Hariri's point of view." This meeting was the last time Rafik Hariri met with the Syrian leadership.

[Screenshot of video clip played in court during El-Sabeh's testimony. 

The still shows Rafik Hariri in front of microphones.]

The witness testifies about Hariri's position immediately preceding his assassination, and that he was ready to join the opposition unequivocally. That was a process that had been going on for months already. He was starting to build up political alliances for the upcoming parliamentary elections.

Judge Lettieri asked the witness about the role of Hezbollah. Possibly important for the defence, the witness responded that Hezbollah was then not at the forefront of the political confrontation; it was in dialogue with Hariri. He states:

"I can say with a tranquil mind that I didn't live and I didn't witness a political confrontation between Hezbollah and Rafik Hariri in 2005. I say that with a clear conscience."

The Syrian authorities issued a campaign targeting Hariri, already in 1998, to oust him from the government, by violating article 53 of the Constitution.

The witness is further asked about the organisation Al-Ahbash in Lebanon, they are referred to as the Association of Islamic Philanthropic projects, a religious association that you will find in mosques and that will appear in rallies. The witness believes they are Sunnis, but he does not have a lot of knowledge about the topic presented to him by the defence.

Hariri's intermediary with Hezbollah testifies at the Lebanon Tribunal

The witness who testified between 9 and 13 April was Mr. Mustapha Nasser, an advisor to former Prime Minister Rafik Hariri. Though called as a witness for the Prosecution, the Defence definitely benefited from his testimony, as will be clear from the summary below. Also, the Defence attempts to highlight Israel's involvement in Lebanon, so as to deflect Syria's possible responsibility.

From 1992 until the day of his assassination, the witness acted as an intermediary between Hariri and several Hezbollah members, in particular Hassan Nasrallah, the organization's Secretary General, and his right hand Hussein Khalil. Mr. Khalil was in charge of the political relations between Nasrallah and prominent figures from other organizations. The witness says that he was chosen to act in that manner by Hariri because he was a journalist, and it was easy for him to communicate with all the political parties and figures, in particular Hezbollah.

From August 2004 until Hariri's assassination in February 2005, the meetings between him and Hezbollah became more frequent than in the period prior to that; in total they met four or five times during that period. Mr. Hariri would request the witness to set up a meeting by contacting Mr. Khalil by phone, although most requests came from Nasrallah's side, says the witness.

Initially, meetings were held at different locations in Dahyieh, Hezbollah's headquarters; some of the meetings were held at the witness's residence. From August 2004 until February 2005, the meetings were all held in Dahyieh. After the meetings, Mr. Hassan and Mr. Hariri would return to Quraitem Palace to discuss the meeting. The meetings were all attended by Mr. Nasrallah, Mr. Khalil for Hezbollah and Mr. Hariri and the witness. During the route to the meeting, they would be accompanied by one or two of Hariri's bodyguards, Wissam el-Hassan and Abou-Tareq, but they would never attend the meetings. After the extension of President Lahoud's term in September 2004, the focus of the meetings was more on the electoral alliance and about the adoption of UN Resolution 1559. Hezbollah was concerned about the adoption of that resolution because it called for the disarmament of Hezbollah. According to the witness, Mr. Hariri was politically close to the Americans, the French and the Saudis. Mr. Hariri had to convince Mr. Nasrallah that his allegiance did not lie outside of Lebanon. The witness states:

"Mr. Nasrallah said to Mr. Hariri, 'We are afraid to have an alliance with you because before the dialogue started with you we felt that you are a person who will implement Resolution 1559 against us because the text of that resolution is against us. the previous governments were corrupt. to have an alliance with you, we need to agree on an interpretation of Resolution 1559 because we fear that you want to participate in the elections and win those elections and then disarm the resistance.'"

According to the witness, Mr. Hariri was a very patient man who was very experienced in negotiations and in trying to convince the other party in negotiations. Sometimes the political situation required confrontation, but essentially he was a man of negotiations and dialogue, and this was reflected in the relationship between Hezbollah and Hariri. According to Mr. Nasser, Hariri saw Hezbollah as a political party and as a (legitimate) resistance to the Israeli enemy in south Lebanon.

In cross-examination, the witness testifies that a few days prior to his assassination, Mr. Hariri had asked the witness to convey to Mr. Nasrallah that President Chirac of France would prevent putting Hezbollah's name on the list of terrorism in Brussels.

Also, the role of Israel in Lebanon was discussed by the witness, and Mr. Hariri's attempts to navigate this issue. The witness described the history of political assassinations by Israel in Lebanon, and indicated that Hezbollah does not have such a history of attacks in Lebanon. The cross-examination then focused on the role of Syria. Through mediation by Hezbollah, the dialogue between Syria and Hariri was always kept open and focused on the future of Lebanese-Syrian relations. Until the day of the assassination, Mr. Khalil was preparing a meeting between Mr. Hariri and Bashar al-Assad, in order to complete the negotiations regarding the forthcoming period, and aiming at improving relations in respect of Resolution 1559.

Three days after the assassination, Mr. Nasrallah went with his bodyguard and Mr. Khalil to pay their respects to the Hariri family at their residence. The family asked Mr. Nasrallah to help them uncover the truth behind the assassination and establish an Arab tribunal led by Saudi judges. President Assad was also contacted to this extent, and he informed Nasrallah that he was willing to assist with that. When the witness communicated this to the Hariri family, they informed him that they were no longer interested in an Arab tribunal, but rather an international tribunal.

Former Lebanese Prime Minister Fouad Siniora testifies at the STL

From 23 to 25 March, Mr. Fouad Siniora, former Prime Minister of Lebanon, testified for the Prosecution at the Special Tribunal for Lebanon, starting with questions from counsel for the Prosecution, and on 27 and 28 May, he finalized his evidence. He was another former friend and ally of the assassinated Rafik Hariri, whose assassination is under investigation by this tribunal. From 1992 to 2004 he was a minister, after which he became Prime Minister from 2005 until 2009.

[Screenshot of Mr. Siniora in court.]

Not surprisingly, given the testimony of the previous Prosecution witnesses, Mr. Siniora was asked by the Prosecution to respond to questions with respect to his relationship to Syria and more specifically Bashar al Assad. He testified about the heavy involvement and interference by the Syrian regime in Lebanese politics and the security system.

Mr. Siniora described the visits abroad that Hariri would make, and how each of these would upset some of his political opponents, and every time Hariri used to say "God help us when we return to Beirut", pointing at the response of his opponents to his visits. In both Lebanon and Syria, Hariri's visits would be sabotaged. False accusations were uttered against Hariri, accusing him of treason in spite of the latter's attempts to move Lebanon forward.

At some point, Mr. Siniora and Mr. Hariri discussed Hezbollah's threats and assassination attempts against Hariri. Siniora was shocked to hear of this, and testified that "[t]his was extremely sudden and astonishing for me, and that was followed by silence and I never asked him another question about this". This would have been at the end of 2003 or beginning of 2004.

The last time Mr. Siniora visited Hariri was at the latter's residence, the Saturday two days prior to his assassination. He testified that Mr. Hariri looked sombre and angry, and looking very upset.

In response to a question by defence counsel whether he or Mr. Hariri could have entered government without Syria's consent, the witness makes the following statement:

"The Syrian presence contributed to achieving internal peace in Lebanon at the time, and therefore Prime Minister Hariri took office through a democratic -- a comprehensive democratic process at the time. The circumstances prevailing in Lebanon at the time imposed and made it necessary. [...] So this issue, no one can say, no one can undermine the support or underestimate the importance of the Syrian support at the time, but it was a support given to someone who had already been given full support by the Lebanese and by the elected Members of Parliament."

The subsequent day of his testimony, 25 March, Mr. Siniora testified about the judiciary of Lebanon, and how it was manipulated. He gives an example of a law that had been adopted by Parliament to strengthen the judiciary, and how that law had been rescinded some ten days later because of political interference by the Lebanese-Syrian security apparatus. Furthermore, he testifies that even though the law guarantees judicial independence, the reality is different. He also provides some examples of security services interference with politicians. Also, in 1998, legal proceedings were initiated against a number of individuals who were close to former Prime Minister Hariri.

On 27 and 28 May, the cross-examination by the defence continued. Counsel Korkmaz for Badreddine questioned the witness on the arrest of the four Lebanese generals after the assassination of Mr. Hariri. The witness maintained that "These were not political decisions being made against these people", and thus denied that there was a political motive behind the arrests and detention. Counsel indicated to the witness that two years after they had been arrested, there were signs that there was insufficient evidence to maintain the accusations against them, but they remained in prison for a further period of almost two years. The witness said that he was not aware of these warnings that occurred in 2007. At that time the witness was satisfied that the detention was legal and justified and not arbitrary. Until the order from the STL Pre-Trial Judge Fransen in 2009, the witness had never received an order to release the generals.

The following topic addressed by counsel Korkmaz was the political ties between Hezbollah and Hariri. The witness was personally opposed to an extension of Emile Lahoud's term as President. The witness states that everybody knew that Hezbollah supported the Syrian regime. They did not support Mr. Hariri's candidacy and they never gave a vote of confidence to the governments established by Hariri between 1992 and 1998. The witness further states that the relationship between Hariri and Lahoud was not a good one; Hezbollah was clearly loyal to and supporting Lahoud.

With respect to Resolution 1559, the witness shared Mr. Hariri's opinion: he was against Resolution 1559, but in agreement with the Taif Agreement. The Resolution put a responsibility on the Lebanese that they could not shoulder. After the year 2000, the role of Hezbollah in Lebanese society changed. Prior to that they were heading the Lebanese resistance in the country. From 2006 onwards, Hezbollah no longer spoke in the name of the Lebanese, and they were no longer pointing to the Israeli occupation of Lebanon. The witness also responded to questions about the relationship between Lebanon and the US, whilst denying that his government and the US were allies. The US is a major power, though, and it played a big role in Resolution 1701, which called for the withdrawal of Israeli forces from all the territories in Lebanon it occupied in 2006.

The last topic of interest discussed with this witness concerned the 26 August 2004 meeting Hariri had with Assad regarding the extension of Lahoud's mandate. The witness confirmed that Mr. Assad had told Mr. Hariri "I will break Lebanon over your head", as several other witnesses already testified. 

Interview with STL assigned contempt lawyer Abou Kasm

On 9 April, our intern Ms. Sivan Serbest interviewed Dr. Antonios Farouk Abou Kasm about his position as assigned defence counsel for Akhbar Beirut S.A.L. and Mr. Al Amin. The interview is published below.

[Screenshot of Dr. Abou Kasm in court, 12 September 2014.]

Can you briefly describe how you were assigned to this case?

At the initial appearance of the Accused Mr. Ibrahim Mohamed Ali Al Amin and Akhbar Beirut S.A.L. on 29 May 2014, he Mr. Al Amin, representing himself and Akhbar Beirut S.A.L., attended the first part of the hearing via video-link from Beirut, but then left before the hearing had concluded because of a misunderstanding with the Contempt Judge Nicola Lettieri, who interrupted him during the reading of his statement which considered beyond the Tribunal's jurisdiction. Before asked for permission to leave, Mr. Al Amin informed the Judge that due to his interruption, he would henceforth remain silent and would refuse to appoint any lawyer to represent him or Akhbar Beirut S.A.L. and indicated that he would remain silent adding that he did not recognize the Special Tribunal and that he was not willing to accept "oppressive and repressive measures".

Then and orally, the Contempt Judge ordered the Head of Defence Office to assign counsel to represent the two Accused in the proceedings under Rule 59 (F) of the Tribunal’s Rules of Procedure and Evidence. This order was followed by written reasons provided on 5 June 2014, where the Judge Lettieri stated that despite his order, which was made to safeguard the rights of the Accused, the Accused remained free to participate in the proceedings and to appoint counsel of their own choosing at any time.

Subsequently, on 18 June 2014, the Contempt Judge ordered the Accused to make submissions on (1) their intention to participate in the proceedings and, if so, (2) to state whether they would appoint counsel or represent themselves. One week later, on the 25th, the Accused filed a submission in which they raised a number of allegations with respect to the neutrality and impartiality of Judge Lettieri in hearing the case. 

When Mr AI Amin did not respond to the several requests for clarifications on whether he intends to 
participate in the proceedings, on 30 June 2014, and following a written order by the Contempt Judge, the Head of Defence Office, and being admitted on the list of the STL’s counsel since 2011, Me Francois Roux took the decision to assign me as a Lead Counsel to defend the interests of the accused under the legal aid programme of the Defence Office, he believes that I am the adequate person who can lead the defence of the Accused in that critical case. I accepted this assignment as a challenge after the consultation of the President of the Beirut Bar, who told me that it is an obligation to defend an accused who cannot or refuse to defend himself.

What would you say are the main problems in this case for you?

There are several major problems.

First, and as you may know, it is the first time that a legal person is sued before an international or internationalized criminal tribunal and because there is no legal provision within the Statute or the Rules of procedure and Evidence of the Tribunal or even within the jurisprudence of other international criminal courts, this involve to innovate with regard to the elements of the offense apply to a legal person.

Then, the Accusation did not make available to the Accused the exhibits accompanied the indictment and all the witness statements and all supporting material. It is not fair at all to charge an accused and to ask him to participate in to his trial without being informed of his charges because he is represented by an assigned counsel! 

For example, in Lebanese law (Code of the criminal procedures), if the Proceedings that are conducted without ensuring that the indictment and the list of witnesses for the prosecution have been served on the accused, as well as the resulting judgement, are liable to annulment. Indeed, it’s a violation of the principle of equal arms mentioned in the Article 6§3 of the European Convention on Human Rights, mainly that the accused are not judged in absentia. The Statute of the Tribunal accord to him minimum guarantees as the rights to examine all incriminating evidence produced during the proceedings, mainly to examine the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Because the Accused have not received this material, their rights are being violated, leading to prejudice and the lack of contact between me and the Accused should not deprive them of their rights to see the case file.

To date, the Accused have not had cognizance of the evidence disclosed by the Amicus and do not have in their possession other items from the case file. Under the current circumstances, the prejudice caused to the Accused is compounded in view of the seriousness of the charges laid against them and the sentences that might be imposed. Furthermore, in the absence of disclosure of all the evidence in the case file, the Accused are deprived of their right to consider an informed defence strategy which might encourage them to reconsider their position vis-à-vis their mode of participation in the proceedings.

As well, it is impossible for the Assigned Counsel to do an inquiry and to search for witnesses to defend the accused without his approbation, we are defending a free and innocent man, the accused shall be presumed innocent until proved guilty by the Judge and not by the Accusation. And till now, the Accused have, from the outset, respected the confidentiality of the investigation conducted by the Amicus and didn’t violate the confidentiality and protective measures imposed by the Judge's decisions. So, pretending that the Accused will divulgate the Prosecution’s exhibits is an inadequate presumption, as if we are judging the pre-intention of the Accused not based on any concrete fact.

You have a client who refuses all contact with you, but a judge who tells you it’s your responsibility to effect disclosure to him. How do you go about with this?

The judge has considered that Counsel's responsibility reaches its limits where an accused refuses to cooperate with him. But if the Accused decline to receive the material disclosed by the Amicus from Counsel, or even be in contact with Counsel, it is not up to the Court to dictate to them whether and how to exercise their right. This is the Accused's choice alone.

Such decision can be interpreted that the Tribunal prefers not to disclose the exhibits to the Accused, because they are aware that he will refuse to be in contact with the Assigned Counsel in order to examine his exhibits. In the light of this decision, I asked the cooperation of the Defence Office in order to give the chance to the Accused to examine the disclosed material.

Do you think the rights of the accused are safeguarded in this manner?

Not at 100%! In criminal justice, the role and the presence of the accused during the trials is essential and prominent, mainly that the Mens rea constitutes a basic element of the Defence strategy. But in case that an accused refuses to participate in his proceedings, to have an Assigned Counsel to defend his rights constitutes at least a guarantee that his rights and interests are protected during the proceedings. Despite the effectiveness of a Defence team, the presence of the accused still essential, an Assigned Counsel cannot pretend the Accused intentions.

How do you think the judge would have better solved this situation?

I think that the Judge should grant to the Accused or the Defence the certification of the Appeal of his decision on assignment of counsel in order to give them the opportunity to submit an appeal before an Appeal panel who can decide on this particular case of assignment before the STL. Mainly, that before my assignment, the Accused filed on 12 June 2014 a request in which they sought certification to appeal the Judge decision "Reasons for Decision on Assignment of Counsel" dated 5 June 2014, as well as suspension of that decision on a Decision. On 17 July 2014, the Judge rendered the decision entitled "Decision on the Request for Certification to Appeal Decision on Assignment of Counsel" by way of which he dismissed the Request of the Accused seeking leave to lodge an appeal of the contested decision. On August 1^st and after my assignment, we submit a request for reconsideration of the Judge decision above. By its decision dated September 1^st 2014, the Judge dismisses also our motion.

What further steps are you intending to take in this regard?

I am managing a delicate situation: I am defending momentarily the interests of the Accused, as if I am trying to rescue shipwrecked people of a sinking ship. The ultimate solution is the participation of the Accused to defend themselves or to appoint counsel from their choice. It is the ideal period to take such decision before the beginning of trials, mainly that the Defence Case file is ready and up to date. And if they still refuse to participate, I will think what decision I shall take to guarantee the safety of the Accused and to avoid any bad situation can be occur. For me, I respect the will of the Accused if they don’t want to participate, but also they are responsible finally of their decision’s effects.

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.

International explosion experts: Professor Daniel Ambrosini and Professor Bibiano Luccioni

During the last week of February, Professor Ambrosini and Professor Luccioni from Argentina gave evidence. Professor Ambrosini is a structural engineer specialised in the effects of explosions on buildings. Professor Luccioni is a civil engineer with a similar specialisation. 

[Professor Ambrosini (top) and Professor Luccioni testifying before the Tribunal]

Jointly these two professors have submitted a number of reports to the Lebanon Tribunal providing studies of the explosion of 14 February 2005, with the main report entitled “Final Report on the Quantity of Explosives” and prepared in September 2010. This report deals with a numerical determination of the explosive mass based on an analysis of the crater and the damage to the surrounding buildings. These experts calculated with computer models - based on real-life experiments - the amount of explosives that could have created the crater and the damage to the surrounding buildings. The experts also looked into the location of the explosives in terms of height above the ground, and the shape of the explosives. Unfortunately, the expert reports of these two professors, though public in nature, are not (easily) accessible to the public, and without these reports the testimony of these experts was difficult to follow.

Together with other researchers, Professor Ambrosini and Professor Luccioni conducted a series of explosion experiments, which included experiments above the ground, on the ground and underground. This was done in the northern part of Argentina, at a flat location completely void of trees or vegetation; the differences in craters and the amount of soil expelled up above due to the explosions are shown on photographs. These tests were used as one of the sources for the calibrations of the numerical simulations done with computers. For example, the results of various explosion experiments done in France (one using a van elevated on bricks as a container for the explosives) were used as well. According to Professor Ambrosini, the three most important variables that determine the size of the crater are the quantity of explosives, the shape of the explosive, and the location of the explosive.

With a three-dimensional model to reflect the actual situation in Beirut before the blast occurred, Professor Ambrosini explains how the blast wave occurred, and at which buildings it was reflected, including the St. Georges and the Byblos buildings. Professor Ambrosini also explains that from the perspective of the perpetrator it would be the most effective to locate the detonation point on the opposite side of the target’s location. However, the analysis does not permit one to identify the detonation point within the explosive mass. Professor Ambrosini also participated in a real-time, real-life explosion experiment in 2010 in France at the suggestion of the Prosecutor of the Lebanon Tribunal. In this experiment a canter van was used with 2.467 kg TNT equivalent explosives in rectangular form in the back of the van; attempts were made to reproduce as closely as possible the circumstances of the road and surrounding vehicles. A series of pressure sensors were put in positions around the vehicle to locate and identify blast overpressures. The results of this experiment came back as very close to the numerical model designed beforehand.

Professor Luccioni explains the different types of analyses used to analyse the damage to the buildings: a surrounding urban ambient scale analysis (to provide the bigger picture), a building scale damage analysis and a structure scale analysis. Professor Luccioni gives quite some detail about these complex technical analyses, which provide information about for example the blast wave and the overpressure values, and thus about the quantity and shape of the explosives used. One of the main conclusions of the overall analysis is that a "distributed explosive load with a TNT equivalence of between 2.500 to 3.000 kilogrammes, located above ground, at a height between 50 and 80 centimetres from the pavement surface, is compatible with the observed crater and structural damage."

During cross-examination the following topics, among others, are explored by defence counsel: the initial contacts between the Prosecutor and the experts, the review of their scientific work by peers, the uncertainties in the measurement of the diameter of the crater, the alterations that took place after the explosion, and the possibility of an underground explosion. When reviewing the initial information about the explosion, Professor Ambrosini had also thought that the explosion had been underground, but after carrying out the study, they were able to demonstrate that it was in fact not. Professor Luccioni also excludes the possibility of an underground explosion during her testimony. About the way the explosion has been carried out - through a car, a bomb, a missile or otherwise - Professor Ambrosini remarks that “in no moment in time in our report did we say that it was a car bomb or a truck” and “a concentrated load such as a bomb could have generated this crater, created this crater, but it would have caused other types of damage as well.”