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

  

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

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

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

The Challenges of Certifying the Death of Mustafa Badreddine

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

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

Evidence of Death Presented by the Prosecution

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

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

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

Evidence of Death Presented by the Defense

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

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

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

The Prosecution’s Submissions

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

The Badreddine Defense Team’s Submissions

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

 

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

The Legal Representative of Victims’s Submissions

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

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

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

Examination of technical witness PRH705

Between 5 and 12 May, the next Prosecution witness came to testify: PRH705. This witness testified about the generation, storage, and maintenance of business records, specifically, call data records, cell site-related data, and the Touch subscriber database. This evidence will in turn be relied on by the Prosecution to attribute telephones to the accused. Like some of the previous witnesses, also the testimony of this witness was very technical and detailed.

Given that this witness needs protective measures, testifying under a pseudonym, parts of his testimony were conducted in private session in order to protect his identity. The witness is specialized in radio network planning and network optimization, and quickly the content of his testimony became quite technical, speaking of suppliers who may have access to make changes to the network and the details of the network and its specificities.

Within the company Touch, all requests for cooperation and information from third parties are processed by the governmental affairs unit, and the witness is extensively questioned about the internal process within the company.  At the relevant time, 2004-2005, the IT department was responsible for the call data record in the whole process of mediation, filtering and its billing. It is the commercial department that's responsible for the processing of the application forms of potential subscribers. The witness is questioned about the cell site data and possibilities for optimizing the network.

The witness was taken through his earlier statements and draft statements, but since only the parties to the proceedings have access to those statements, it is impossible for us to assess the precise content thereof. The ultimate statement that was signed by this witness was 73 pages in total. The initial statement had been prepared by someone else from his company, and he has not been able to verify all aspects thereof. The defence raised the fact that this situation is less than ideal, because the defence cannot cross-examine the witness on those issues that he does not have personal knowledge about, and they cannot cross-examine the witness's predecessor either.

Since the parties are still waiting for additional information from the authorities regarding this witness's testimony, the defence for Ayyash objected to proceeding with cross-examination; the defence for Badreddine wanted to start the cross-examination of this witness, but were unfortunately not available on that particular day, so the witness ended his testimony until the additional information concerning his testimony arrives at the court.

Closing arguments in second contempt of court case against journalists

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

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

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

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

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

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

The case is now closed and awaiting judgment.

Continuation of evidence by representative of Lebanese company Alfa

PRH707 has been working at the Lebanese mobile network company Alfa since April 2012. He has been delegated as a representative witness of Alfa by the Minister of Telecommunications of Lebanon. He has already testified earlier this year (see our blog of 21 March 2016), and has returned to the STL for the continuation of his examination-in-chief and cross-examination (which took place on 18-22 April and 3-4 May). The telephone data provided by Alfa is used by the Prosecution to attribute certain telephone use, movement and communications to the accused, activities which the Prosecution links to the terrorist attack of 14 February 2005.

The witness answered some clarifying questions by the Prosecution, including questions about the complaint logs of Alfa for 2004 and 2005 (which have not been kept), the change in cell ID of stations destroyed because of the war (the cell ID has been changed sometimes, if the location of the station changed), and the options for invoice payment in 2004 and 2005. The witness acquired information by consulting his colleagues from various departments and teams within Alfa. The witness also testified about the origin, creation process and accuracy of a number of documents produced by Alfa.

Mr Young, counsel representing the interests of the accused Sabra, questioned the witness about, among others, a big central database that has been created in 2014 by Alfa, the impossibility to confirm most of the values provided for 2004 or 2005, and the driving tests done by the Alfa. Mr Young also pointed the witness to wrongly included or missing cell cites in the best server maps created by the Prosecution for 2005. According to the witness, these maps reflect the reality of the coverage for 2005 by 60-70%. Counsel also asked the witness about a directed re-try: the situation in which a call is connected to a neighbouring cell if the best serving cell is too busy. In this case, the call data record will not record the best serving cell.

Ms Dimitri, representing the interests of the accused Badreddine, questioned the witness about the manner in which he was interviewed by the Prosecution, as the Defence is seeking to obtain disclosure of investigator's notes, draft statements and lists of questions in relation to these interviews. During the examination of witness PRH707, the Defence did receive various additional e-mails from the Prosecution, although it is seeking for the disclosure of further material. Part of the cross-examination of Ms Dimitri was postponed to allow her to analyse the material that has been disclosed. This might lead to the need for the witness to return and answer some further questions by the Defence in the near future.

The examination of this witness covered many exceedingly technical issues, which were discussed at great length and through the use of a large set of documents. The purpose of the Defence is to show the inaccuracies, uncertainties and mistakes in the data, which would have consequences for the Prosecution's theory, which is built on this information. Mr Young explained that their team takes the position that most of the key cell site data for 2005 is completely unknown, and that the Prosecution is relying upon theoretical predictive coverage on the basis of doubtful (shape file) values. According to the Defence, the best server plots are a poor representation of both the actual coverage and the location of a phone user, and therefore cannot be used for the forensic purposes the Prosecution is using them.

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

Thematic summary

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

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

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

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

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

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

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

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

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

The Defence presents its witnesses in contempt case against journalist and newspaper

On 7 and 8 April the Defence for the Lebanese newspaper Akhbar Beirut and its editor-in-chief Ibrahim Al Amin presented its case.

The first witness called by the Defence was Mr Najib El-Kharrat. Newspaper Akhbar published personal information about this witness, including his picture, alleging that he was a Prosecution witness. The witness stated in court that the publication of the article did not have any effect on his professional or personal life. Further, the witness continued to have trust in the Special Tribunal for Lebanon (STL), and claimed that no confidential information was disclosed. The cross-examination by the Prosecution was held in private session.

The second witness to appear was Mr Mahmoud Assi, another person who was discussed in an article in Akhbar newspaper. The article included his name and picture, and cited him as one of the Prosecution witnesses. Mr Assi was surprised by the article and contacted Akhbar newspaper. He met with the accused Mr Al Amin and a clarification submitted by the witness was subsequently published. The witness was not worried or afraid after the article was published, and he was not subject to any threat or harassment. His life was not affected because of the article, although some people were asking about his role in the case before the STL. Mr Assi works for a Lebanese insurance company, and goes to car accident sites as a court expert. He has testified in the main case, because one of the accused before the STL had called him to attend an accident location. The Prosecution established in cross-examination that his testimony was limited and technical, and not a direct issue for the Hariri case, thus suggesting that for this reason the impact of the article was limited.

Mr Elias Aoun was the third and last witness for the Defence. He is the President of the Order of the Lebanese Press Editors, an association acting on behalf of, and regulating, journalists. He was called to give evidence as an expert on freedom of press in Lebanon. He has written a report on the situation in Lebanon as to the press, freedom of press (also in relation to confidentiality of investigations), the obligations and norms governing the work of journalists, and journalism. The witness avoids answering most of the questions put to him. Instead he is making general comments about the prosecution of Lebanese journalists before the STL; in his view the accused should have been brought before a Lebanese court. The witness also holds the opinion that the STL has been selective in deciding not to prosecute journalists from other countries, and should instead focus on its main case concerning the bombing that killed Hariri and others.

The closing arguments by the parties in this second contempt case are scheduled to take place on 13 May. 

Second contempt case against Lebanese newspaper Al-Akhbar and its editor-in-chief Al Amin

On 24 February the second contempt case started at the STL, against Lebanese newspaper Akhbar Beirut and its editor-in-chief Ibrahim Al Amin. With the recent acquittal by the Appeals Panel of the accused in the first contempt case (see our previous blog), it will be very interesting to see whether the Prosecution has changed its case strategy.

 [screenshot of STL court room - 1 March 2016]

Opening statements
The second contempt case began with the opening statements by the Amicus Curiae Prosecutor and the Defence.

According to the Amicus Curiae Prosecutor Mr Kenneth Scott, Al-Akhbar newspaper and Mr Al Amin published on 15 January 2013 an article about Tribunal leaks, clearly identifying 17 alleged protected Prosecution witnesses in the Ayyash case, including full names and pictures. On 19 January the same accused published an article identifying another 15 alleged protected Prosecution witnesses. According to the Prosecutor, the accused were determined to obstruct justice and to interfere with the willingness of witnesses to testify. They knew exactly what they were doing. They republished the confidential information after they were ordered by the Tribunal to stop disseminating this information, and even after they were charged for contempt of court. According to the Prosecutor, Al-Akhbar published “what it deemed necessary to counter the international campaign of fabrication targeting the resistance”, that is Hezbollah.

[screenshot of the Amicus Curiae Prosecutor Mr Kenneth Scott - 1 March 2016]

The Defence in its opening statement highlighted the importance of the media and freedom of press, also in criticizing the work of the Tribunal and monitoring judicial proceedings. According to Defence counsel Mr Abou Kasm, the press in Lebanon has a tradition of publishing names of so-called confidential witnesses, acting as a watchdog to monitor judicial activities of Lebanese courts to redress any undesirable situations. It is not the intention of the Lebanese press to harm other persons, but it “considers the publication of any information unknown to the public as a means to set things right, encourage reform, and promote the rule of law, justice, and equality.” Further, Defence counsel stressed the lack of any relation between Al-Akhbar and Hezbollah, as confirmed by the secretary-general of Hezbollah and the critical content of the articles published in Al-Akhbar. Due to the current prosecution of Al-Akhbar “some news outlets opted for keeping clear of the STL, not daring to make any criticism, and others no longer care about covering the Tribunal's activities including the newspaper I was assigned to defend”. Defence counsel stressed the high number of attacks against and murders of journalists in Lebanon. According to the Defence there is no proof of actual threatening of witnesses or a loss of confidence of witnesses or the public in the Tribunal. The Prosecution is making a mistake because “[i]nstead of prosecuting those who leaked and continue to leak information, he is prosecuting those who published some of this information for journalistic purposes.” Al-Akhbar only published a sample to warn the Tribunal, a “legitimate criticism in line with the policy of the newspaper and in line with its editorial line, which refuses to ignore and turn a blind eye to wrong-doing.”

[screenshot of Defence counsel Mr Abou Kasm - 1 March 2016]

Prosecution's case
Also on 24 February, the evidence of the first Prosecution witness, AP14, was heard in closed session. Subsequently, Prosecution witness Mr John Comeau appeared before the court, with again most of his evidence being heard in private session. Mr Comeau worked for the Tribunal until December 2013 as the human source coordinator. Mr Comeau gave evidence about the two news articles in Al-Akhbar in January 2013, which according to him contain clearly identifiable purported Prosecution witnesses, including their full name, picture and other identifying information.

Further, on 25 February, witness Akram Rahal was called by the Prosecution. Mr Rahal worked for ISF (the Lebanese police) as an officer at the Central Criminal Investigation Sections until 2015. On 20 January 2013 Mr Rahal, together with his colleague, was tasked by the public prosecutor at the Lebanese Court of Cassation to serve a document from the Tribunal on Mr Al Amin and Mr Pierre Abi-Saab, the vice-editor of Al-Akhbar; this document was a decision of the President of the STL of 18 January 2013. The document was served on Mr Al Amin’s lawyer, Mr Saghieh, as they could not reach Mr Al Amin.

Subsequently, the evidence of witnesses AP07 (26 February), AP09 and AP06 (29 February) was heard in closed session. On 1 March witness Moukelad Al-Araki gave evidence about him being tasked by the Prosecution to monitor on a daily basis the availability of the Al-Akhbar articles on the internet. Mr Al-Araki started monitoring on 23 December 2015, and the articles remained available until this very date. The witness took daily screenshots of the online articles and sent them to the Prosecution. In February 2016 the witness noticed the blurring of the article of 15 January, and later also the blurring of the information and photos of the witnesses. Most of the cross-examination of this witness was in private session. This cross-examination apparently revealed that the witness had a contract with the Prosecution and was paid to perform his tasks. The Defence refused to continue its cross-examination because of this lack of transparency. Judge Lettieri suggested that the Defence could file a motion to exclude the evidence, but that nothing prevented it from continuing its cross-examination.

The last Prosecution witness to appear was Anne-Marie De Brouwer, who also testified in the first contempt case against Al Jadeed and Ms Al Khayat.. In that case, the Contempt Judge found that her evidence did not address the effects of disclosures in Lebanon or in the region, and therefore was of limited value. In the meantime she did look at some reports on Lebanon, but her views seem largely based on information and conclusions from Tribunal decisions to hold trials in absentia, quite a different topic and context.

Ms De Brouwer is an associate professor in (international) criminal law at Tilburg University and has been working in the field of victimology for more than 15 years. Ms De Brouwer has written a report addressing 
(i) the effects of disclosure of identifying information of (alleged) witnesses/victims in an international case on on actual or potential witness, and the public, and the impact on the administration of justice;
(ii)  the consequences of publishing identifying information of (alleged) witnesses/victims for actual/potential witnesses in international cases, taking into consideration geographical, political, ethnic or religious circumstances in the country of origin, as well as the nature of the crime(s) concerned, and the nature of their involvement;
(iii) "[t]he impact disclosure by national and local media of identifying information about alleged victims and/or witnesses related to or involved with international criminal tribunals located outside their residing country can have on actual or potential victims/witnesses, their sense of security and protection and willingness to testify as well as on the administration of justice."

Ms De Brouwer testified that from the experience at the various tribunals in relation to protective measures, it can be concluded that if the security situation is very difficult or if the political tensions are grave, it is very difficult for victims to feel safe. It is very difficult to testify against your own or another group, because if your identity is known, you will have serious concerns about your safety. According to Ms De Brouwer this analysis can also be applied to Lebanon, a very small and populated country where the media is very intensive, and with its delicate and sensitive security situation. The witness further explains in general the impact of disclosure of identities on witnesses and she comments on media articles about the publication by Al-Akhbar of the list of witnesses, and their impact on (potential) witnesses and public opinion.

This witness concluded the Prosecution's case. It is impossible to assess the strength of the Prosecution's case without knowing the evidence of most of the witnesses heard in closed session. The Defence case, if any, is scheduled to start on 7 April.