Continued Examination of Technical Witness PRH707 (Alfa)

On 25 July 2016, the Trial Chamber continued to hear testimony from confidential witness PRH707, an employee of the Alfa telecommunications company. For further information on this witness, refer to our March 21 and June 13 blog posts.

Mr. Courcelle-Labrousse, representing the interests of accused Oneissi, questioned the witness on very technical matters related to network coverage and cell station configuration. The Defense’s main concern stemmed from perceived inconsistencies between the lists of cell site azimuth (tilt) values provided by Alfa in 2007 and 2010. The witness repeatedly insisted that it is not unusual for azimuth values to be changed over time. However, these lists were theoretically meant to detail the values that corresponded to February 2005. The witness then surmised, but could not confirm, that the OTP phrased its respective requests for assistance (RFA) in 2007 and 2010 such that the requests did not actually ask for the values for February 2005. This explanation would account for both the inconsistent azimuth values and the cell sites missing from the 2007 list. When questioned by Judge Braidy on whether the missing sites were relevant to the calls allegedly made on the day of Hariri’s assassination, the Defense stated that its aim was to prove that Alfa simply could not confirm important technical details going to the attribution of the accused’s cell phone.

The witness also noted that a difference in azimuth values of 10-15 degrees is not significant. The Defense pointed out greater differences between Security Main and Cell ID logs, but the witness could not put that discrepancy into perspective without being provided the timeframe of the cells’ operation.

The Defense further questioned the witness about the cell sites’ power supply in the event that Électricité du Liban, the Lebanese national energy company, experiences an outage. The witness testified that the sites are equipped with battery power that allows them to transition to generator usage without service interruption.

The witness then clarified certain terms and processes related to MSC capacity and network congestion. He stated that the network would have been at capacity on the day of Hariri’s assassination, and that this may have prevented redirect retries (cell site handovers) from succeeding. In short, it would have been very difficult to place a call in the Beirut area at that time, especially near the PHOENICIA and PALM BEACH cell stations.

Mr. Courcelle-Labrousse further inquired about processes that may inhibit cell signal. For instance, “fast fading” occurs when a physical obstruction interferes with the signal, whereas “Doppler fading” occurs when the caller is continuously moving, resulting in a  site handover to a  cell that would not normally correspond to the user’s geographical location.

The Defense then asked the witness about the inaccuracies of a predicted coverage map for the Beirut area in February 2005. Counsel noted that one station on the map did not exist in February, but was constructed later in the year. The witness believed that the RFA did not specify the month the OTP desired to capture, so Alfa included all cell stations for that year. This change could affect the predicted coverage area but regardless, the witness estimated that 20-30% of the map could be inaccurate.

On re-examination by the Prosecution the witness was asked to clarify the labeling of the coverage map, but could not provide an answer. He was further asked about the process through which the azimuth value lists were requested, and the witness repeated his belief that the two documents display data for separate years. Lastly, the witness confirmed for the Prosecution that a call data record being registered in spite of congestion is indicative of cell site functionality.

Continued Examination of Technical Witness PRH705 (Touch)

The Prosecution resumed its examination of witness PRH705, an employee of Touch, followed by cross-examination from the Ayyash Defense (transcripts of 19-21 July). Much of the witness’s testimony refers to documents that were disclosed only to the parties, compounding the difficulty of following the technical line of questioning. Refer to our previous post for details on the beginning of this witness’s testimony.

On 19 July 2016, the Prosecution took the opportunity to summarize the thematic content of PRH705’s testimony up to that point. The witness had previously provided information on the services offered by Touch, the organization of the company, the subscriber database, call data and SMS records, network operations, and cell site materials, as well as other technical and corporate matters. 

The subsequent day, the Prosecution first asked for exhibit numbers for university records of the accused, which will be used to establish a relationship between a third party (through their phone number) and the accused. The Prosecution did the same for entry/exit, banking, medical, and civil records pertaining to Ayyash, Oneissi, Badreddine (aka Issa), Merhi, and Sabra, as well as their family members.

The Prosecution then requested witness PRH705 to confirm paragraphs of his statements, including the amendments provided by Touch. Most of the content of these statements is not immediately known, but they concern to the topics mentioned above. The Prosecution further clarified technical terminology, Touch’s billing practices, and third-party provisioning of SIM cards. Judge Akoum sought explanation of the differences between personal and commercial post-paid accounts.

Mr. Hannis for the Ayyash Defense subsequently began his cross-examination of the witness. The Defense began by inquiring about the organizational structure of Touch’s various departments, including the Legal and Government Affairs departments, and how they handle requests for assistance. The witness further testified about the creation of a quality control unit within Touch’s Technical Department, in addition to the process of logging changes to cell site configurations. This questioning indicated that the Defense may later submit that during 2004 and 2005, Touch did not adequately record modifications that could affect cell phone attribution.

Most notably for this day, the Defense asked the witness about various technical errors that might lead to inaccurate call data records. For instance, the witness testified that certain cell sites may produce overlapping coverage that can “overshoot” the location of the caller. PRH705 stated that the “propagation model” used by the company produced inaccurate locations 20% of the time. 

The second day of the Ayyash team’s questioning, on 21 July, revealed potential arguments against the Prosecution’s use of call data records to prove its case. The witness was questioned about the frequencies at which Touch transmitted cell signals between 2004 and 2005. Witness PRH705 testified that “frequency hopping” (whereby the cell site used to transmit a call is changed) occurs when the network becomes congested, the user is located on the border of two adjacent sites’ coverage areas, or a physical obstruction interferes with the signal. The Defense intimated that this may obscure the location of the caller, thus inhibiting cell phone attribution.

The witness testified that further instances of such “normal handover” may occur when the caller is moving and comes within range of a different cell site. After the Defense questioned the witness about the call logs that Touch stored between 2004 and 2005, the witness testified that Touch did not store end cell data at that time. Thus, a user’s location would have been recorded at the start of their call, but if they had moved by the time they disconnected, this would not be reflected in Touch’s logs.

Witness PRH705 also stated that it may not be possible to recreate actual coverage predictions for each cell site from 2004 to 2005 because these “snapshots” require certain data inputs that may not be available. Even if they could be generated, the witness said that they still may contain inaccuracies. Furthermore, the witness testified that to his knowledge, the propagation model used to generate the best predicted coverage sites could have been generated any time between 1997 and 2004. It is unclear from his evidence whether the witness was referring to one model used for the entire country or multiple models used for individual cell sites.

The witness additionally confirmed that Touch used relatively less accurate GPS devices between 2004 and 2005 compared to today. On another note, the witness said that he was not sure if “azimuth values” were stored during the same period. These inputs affect cell sites’ coverage and, therefore, their ability to locate callers’ positions. Moreover, PRH705 testified that Touch’s “mobile switching centers” were configured manually such that they did not all register call times in a synchronized fashion. The witness said these inaccuracies could range from a few seconds to ten minutes. Though the witness said that these discrepancies can be discovered, he admitted that they may be misleading.

In another matter on 19 July, members of the Prosecution read onto the record three summaries of separate witness statements that were previously admitted into evidence. The first witness, Timothy Holford, was a Prosecution investigator who stated that he undertook a GPS mission near the office of the Lebanese Ministry of Telecommunications to verify its location. This is where the telecarte used to make the false claim of responsibility to Al Jazeera was allegedly sold. The second witness statement pertains to Elvis Stana, who is an information management analyst with the Prosecution. Mr. Stana had performed a statistical analysis in order to evaluate the level of synchronization or variation among the clocks within various Beirut cell towers, which were used to record call times. This data is, of course, relevant to the call sequence tables that are used by the Prosecution to establish the activity of the colored networks. The third witness, PRH696, claimed in his statement that the text message that he sent in January 2005 from his phone to one of the phones in the red network (used by Mr. Ayyash), was sent by accident. This supports the Prosecution's theory that the red network was closed and covert.

On 21 July, the Prosecution requested several documents be marked for identification, including subscriber records that will be used to attribute various cell phone numbers to the deceased Badreddine. The Prosecution also provided summaries of two more witness statements admitted as evidence. Both statements were made by PRH045, a Lebanese journalist who personally provided political updates to Rafiq Hariri. The witness served as a liaison between the former prime minister and many political groups, including Hezbollah. PRH045 thus provided information on the political context of Hariri's assassination. Furthermore, Hariri had told this witness that Syrian president Bashar al-Assad had threatened Hariri, saying that if he did not approve the extension of Lahoud's presidency, Assad would "break the country over his head." The witness conveyed several ways in which Hezbollah would have benefited from Hariri's assassination, including the resulting void in Sunni leadership.

The Contempt Cases in Comparison: A View toward Lessons Learned

[Screenshot of Judgement in the Contempt Case against Akhbar Beirut S.A.L. and Mr. Ibrahim Al Amin]

As we blogged last month, the Contempt Judge recently found both Ibrahim Al Amin and Al Akhbar Beirut S.A.L. guilty of:

“contempt (…) for knowingly and willfully interfering with the administration of justice by: publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.”

This follows the Appeals Chamber’s March 8 ruling on the contempt case against Karma Al Khayat and Al Jadeed S.A.L./NEW T.V. S.A.L. The defendants were charged with the same count of contempt as above, with the additional count of “failing to remove…information on purported confidential witnesses, thereby violating the 10 August 2012 order.” The defendants in that case were each acquitted on both counts.

This post will contrast various factual and legal aspects of the two cases in order to determine why the outcomes may have differed. Once the Contempt Judge delivers his sentencing ruling on 29 August 2016, however, the parties to the Al Amin/Al Akhbar case may decide to appeal the decision.

The Charges

The most striking divergence between the two contempt cases arises from the charges themselves. The Amicus Prosecutor for the Al Khayat/Al Jadeed cases attempted to prove that the accused had knowingly and willfully ignored a court order instructing the accused to remove the impugned materials from Al Jadeed’s website and YouTube channel. Because the claim that Ms. Al Khayat willfully ignored the order that was sent to her via email was not the only reasonable inference that could be drawn from the circumstantial evidence presented, the Appeals Chamber reversed the Contempt Judge’s conviction of Ms. Al Khayat on count 2 (para. 104). The Appeals Chamber upheld the Contempt Judge’s acquittal of Al Jadeed on this second charge on account of its inability to attribute corporate responsibility to any Al Jadeed employee beyond reasonable doubt (Judge Hrdličková concurring, para. 4)

It is possible that the Amicus Curiae Prosecutor chose to concentrate his efforts on proving one main count of contempt in the Al Amin/Al Akhbar case, rather than introduce the unnecessary complexities of a second charge related to the violation of a court order. The Amicus argued that both Mr. Al Amin and Al Akhbar were served a cease-and-desist notice by the STL Registry on 20 January 2013 and that Al Akhbar was served with a further order to remove the relevant content on 5 June 2013 (para. 125). The Defense argued, however, that neither client received a true judicial order from the STL. It characterized the initial cease-and-desist letter as a “mere opinion” and that it was not served on Mr. Al Amin personally in contravention of Lebanese law (para. 133). The Defense also claimed that Al Akhbar was not served a proper order until 27 January 2016, at which time its client complied with its instructions (para. 134). Even though these arguments were summarized in the Contempt Judge’s judgment, they were not reviewed on their merits. This may be attributed to the fact that the second count of violating a court order was not included on the Amended Order in Lieu of an Indictment. If the Defense’s arguments have any merit, it is possible that any charge of violating a court order would have presented a considerable obstacle to the Amicus just as it did in the Al Khayat/Al Jadeed case.

Availability of the Impugned Material

A significant portion of the Al Khayat/Al Jadeed decision was dedicated to evaluating the time frame during which the impugned material was available on Al Jadeed’s website, YouTube channel, and Facebook page. Because the Amicus relied heavily upon partially uncorroborated hearsay evidence, the Contempt Judge had ruled that the material’s availability could be proven beyond reasonable doubt only for a limited span of time on Al Jadeed’s website, and not at all on their YouTube Channel or Facebook page (para. 124). These findings were reversed in part by the Appeals Chamber, but only on account of the Contempt Judge’s errors of law in evaluating the evidence (and the Contempt Judge’s finding was upheld with respect to Al Jadeed’s Facebook page).

One could assume that the Amicus took a more cautious approach to proving the impugned material’s continued availability in the Al Amin/Al Akhbar case in order to avoid the technical acquittal that they narrowly missed in the previous case. Rather than rely on a witness who had limited knowledge of the Prosecutor’s efforts to record the material’s availability, the Amicus hired a consultant to consistently monitor the availability of the material on Al Akhbar’s website and social media. This witness provided a screenshot for every day he visited the websites (para. 57). This evidence, in conjunction with further witness testimony, was enough to render the material’s availability virtually undisputed.

Establishing Objective Likelihood

The Appeals Chamber in the Al Khayat/Al Jadeed case maintained that the actus reus of the crime requires that the Amicus establish that the alleged conduct foster an “objective likelihood” that public confidence in the Tribunal would be undermined (para. 27). Of the various witnesses purportedly identified as a result of the Al Jadeed episodes, only two reliably testified about the negative consequences they suffered as a result of Al Jadeed’s conduct (para. 99). However, the Appeals Chamber ruled that this evidence amounted to “a small number of subjective accounts” which could not be used to prove the actus reus beyond reasonable doubt (para. 102).

In contrast, the Amicus for the Al Amin/Al Akhbar case was able to produce three witnesses who could reliably attest to the “ascertainable facts” that proved they were harmed as a direct result of the Al Akhbar publications. One witness, for example, testified that he suffered a loss of business as a result of the Al Jadeed’s conduct (para. 66). Furthermore, the two witnesses presented by the Defense inadvertently furthered the Amicus' case by suggesting or otherwise implying that they feared the consequences of the Al Akhbar publications (paras. 86, 89). Thus, the Amicus went to greater lengths in order to prove “ascertainable facts” that spoke of the “objective likelihood” undermining the public’s confidence in the Tribunal.

However, one may ask why the testimony of three to five witnesses amounts to anything more than “small and subjective accounts,” as in the Al Khayat/Al Jadeed case. The Appeals Chamber in the Al Khayat/Al Jadeed case qualified their ruling by stating, “[h]owever, if corroborated and supported by other evidence on the record, this evidence [the witness testimony] may form the basis for finding an objective likelihood of the public's confidence in the Tribunal being undermined” (para. 102). The Amicus presumably met this threshold in the Al Amin/Al Akhbar case by offering a multitude of documentary evidence in the form of media reports that corroborated the claims of an objective likelihood of undermining public confidence having occurred (Contempt Judge, para. 102). The Appeals Chamber in the Al Khayat/Al Jadeed case had rejected similar documentary evidence on the basis that it could not be verified for its authenticity, noting that only the URLs had been provided. It is unclear why the documentary evidence in the Al Amin/Al Akhbar case was accepted by the Contempt Judge since all of the forms of verification would have presumably been available to the Appeals Chamber in the Al Khayat/Al Jadeed decision as well. Thus, this issue may arise if the Defense for Mr. Al Amin and Al Akhbar appeal the Contempt Judge’s decision.

Corporate Liability

Though the Appeals Chamber had previously ruled that the STL may try corporate accused, it refrained from attributing liability to Al Jadeed through Ms. Al Khayat or her superior, Ms. Al Bassam. The Amicus could not prove beyond reasonable doubt that either employee of Al Jadeed had the necessary control or authority over the newspaper’s online content such that the corporation may have been held liable for their conduct (para. 203; Judge Hrdličková concurring, para. 4). Mr. Al Amin’s position within the hierarchy of the Al Akhbar organization, on the other hand, was relatively straightforward. The fact that Mr. Al Amin served as editor-in-chief of the publication and chairman of its corporate Board remained incontrovertible. Furthermore, Mr. Al Amin stated in his suspect interview that he is the “only person responsible” for publications by Al Akhbar with respect to the STL (para. 169). Thus, it was not as difficult to link the allegedly criminal conduct to individuals who were acting on behalf of the corporate accused.

Conclusion

It appears that the Amicus benefited from its strategy shift and the more favorable factual circumstances of the Al Amin/Al Akhbar proceedings, which allowed it to secure convictions on both counts. It remains to be seen whether these convictions are upheld on appeal, but the Amicus’ prospects may be greater as a result of the key differences outlined above. It is encouraging that the Tribunal is capable of retaining institutional memory, but the STL contempt cases remain controversial due to their impact on international fair trial and free speech rights. It may be said that a prosecutorial success in these cases does not, in fact, spell good news for international justice.

Continued Cross-Examination of Prosecution investigator Alasdair Macleod

The Trial Chamber continued to hear the testimony of Alasdair Macleod, a former investigator for the United Nations International Independent Investigation Commission (UNIIIC). The witness’s testimony was interrupted by the death of former accused Mustafa Badreddine, but recommenced on 13 July 2016. The cross-examination by counsel for Assad Sabra, Mr. Mettraux, and the re-examination by Mr. Milne for the Prosecution, spanned the course of seven days. Mr. Macleod was tasked with the investigation of the disappearance of Ahmad Abu Adass, the person who claimed responsibility for the bomb attack through a video message. Consequently, Mr. Mettraux’s examination concentrated on exposing flaws and alternate theories with respect to this investigation. The proceedings were often difficult to follow due to the use of private sessions, as well as the scope of the Defense’s line of questioning. For further information on the witness, consult our blog post on his previous testimony.

Mr. Mettraux’s cross-examination largely consisted of putting documents to Mr. Macleod and asking him to acknowledge their contents or clarify their relevance to aspects of the Abu Adass investigation. The Sabra Defense insisted that it did not seek to rely on the veracity of most of these documents, but rather their mere existence (the difference was disputed by the Prosecution). There were few instances in which Mr. Macleod was in a position to respond in detail to Mr. Mettraux’s questions, if he could confirm any relevant details at all. The witness often maintained that he was not involved with the aspects of the case to which the Defense referred.

13 July 2016

The Defense began its cross-examination by inquiring as to whether Mr. Macleod had any knowledge of a “story” relating to a person named “Mohammed” being “rewashed, reorganized, and reshaped to explain the departure of Mr. Abu Adass (...)”. Mr. Mettraux pointed to various witness statements that suggest that the story of an orphaned Christian convert to Sunni Islam emerged first in September 2004 and again in January 2005 when the UNIIIC adopted it. The original story is attributed to statements made by Taha Kanawati, an acquaintance of Abu Adass, which could potentially be corroborated by a neighbor of Abu Adass. The Sabra Defense presented a considerable number of UNIIIC witness statements to Mr. Macleod in order to inquire as to the relationships between Abu Adass, Hussam Mohsen, and Khaled Taha. The documents presented to Mr. Macleod suggested that Mohsen and Taha were tied by their fundamentalist views, thus implying that Abu Adass harbored these beliefs by extension.

Mr. Mettraux referred to the testimony of Mohammed Al-Bishti before a Lebanese investigative judge in which Bishti recounted the story of a grocer named Ahmad Freijeh. Freijeh allegedly witnessed the suspicious behavior of two individuals occupying a neighboring home. One, he said, was named Mohammed. According to his testimony before the investigative judge, Bishti recalled that Mohsen had told him that a man named Mohammed had taken Abu Adass to an unknown location immediately before his disappearance. It was alleged that the Lebanese authorities were able to track down this “Mohammed,” but Mr. Macleod had no knowledge of this. The Defense later put documents to witness that suggested that this Mohammed’s real name was Ibrahim Sbaneck, an individual who was under investigation by Lebanese authorities. Mr. Macleod had no recollection of this.

Counsel for Sabra further inquired into the movements of Khaled Taha around the date of the Hariri assassination. He referred to a UNIIIC report that put forward that Taha had returned to Lebanon from Syria the day before Abu Adass’s disappearance and left for Syria the day after. To the witness’s knowledge, UNIIIC investigated a possible connection but could not find one and that UNIIIC had eliminated the possibility that Taha had picked up Abu Adass (but could not recall how this determination was reached). The Defense then asked Mr. Macleod about his meetings with Syrian officials. Mr. Mettraux asked the witness whether these officials had labeled Taha as a “jihadist” with links to Al-Qaeda. Mr. Macleod responded that as far as he could recall, Taha was “involved in efforts to support the insurrection or the organizations in Iraq that were fighting the Americans.”

14 July 2016

After Mr. Macleod clarified that he stopped working on the Abu Adass investigation in late 2007 or early 2008, counsel for Sabra further inquired into Abu Adass and Taha’s possible affiliations with Al-Qaeda. One UNIIIC witness thought that the two may have carried out minor logistical functions within the organization while another suspected that Taha was involved with transporting fighters across the border to Syria. Mr. Macleod did not recall being provided this information and did not agree with the Defense’s characterization of Abu Adass’s increased religiosity as “radicalization.”

Another witness statement indicated that Abu Adass had said that he was leaving with Taha on the date of his disappearance and that Taha later called the Abu Adass household to mislead the family as to his whereabouts. Mr. Macleod had limited knowledge of this. The Defense also asked about any investigation into Bilal Zaaroura, a close associate of Taha’s who was known to use the public phone that called the Abu Adass household, but the witness could not recall the details of this aspect.

Of the many overlapping characteristics of Taha and “Mohammed’s” respective stories that were presented by the Defense, Mr. Macleod could only acknowledge that they shared a dislike of mobile phones, that they attended the Arab University mosque during separate time periods, and that Mohammed did call the Abu Adass home on 15 January while Taha may have made a call on the same date.

15 July 2016

The Sabra Defense’s cross-examination was structured around four points. First, Mr. Mettraux questioned Mr. Macleod about the movements of Khaled Taha’s family. According to a UNIIIC investigation, Khaled Taha’s mother left Lebanon with a son (not Khaled) and crossed into Syria on the day of the Hariri assassination. The witness had no knowledge of this and did not know of any investigation into this matter. The second point focused on the possibility that Taha’s movements into Syria were illegally facilitated.

The third area of the Defense’s cross-examination touched upon the selecting of Abu Adass for the video in which he claimed responsibility for the Hariri assassination. Mr. Mettraux presented an investigator’s note from the Prosecution that claims that the Syrian Military Intelligence (SMI) was monitoring the Hariri convoy in late 2002 or early 2003 through “Palestinian jihadists.” Though the witness had no knowledge of this information, he could confirm that both Abu Adass and Taha are Palestinians. After presenting more statements that suggested Syrian involvement, the Defense asked whether the witness was aware of an apparent “modus operandi of the SMI to use Palestinian jihadists to carry out jobs for them.” Again, Mr. Macleod was not aware of this information.

Additionally, Mr. Mettraux presented various witness statements that suggested Abu Adass and his family could have been targeted by the Al-Ahbash organization due to their religious disagreements. The Defense further speculated that an enmity may have developed after a cousin of Abu Adass was associated with the assassination of Al-Ahbash’s former leader. Mr. Mettraux further suggested that a fax sent by the organization to the Lebanese authorities laying blame for the Hariri assassination demonstrated intent to assign blame on Abu Adass. With the help of Khaled Taha, the Defense proposed that Al-Ahbash selected Abu Adass for the post-assassination video, that Taha lured him into the operation under false pretenses, and that Al-Ahbash attempted to point the finger at Abu Adass. While the witness was aware of certain aspects of this claim, he could not recall any investigation into this claim (which he viewed with skepticism).

18 July 2016

Mr. Mettraux’s final line of questioning from the previous session involved the Defense’s theory that the failed plot to bomb the Italian embassy in Beirut was in fact the first attempt on former Prime Minister Hariri’s life. According to the Defense, the truck bomb that was to be used in the embassy bore similarities to the one used in the Hariri killing. Furthermore, the Italian embassy may have been on the path to Parliament that Hariri’s convoy would have taken. The Defense presented possible connections between Abu Adass and those involved with the plot, but the witness was not aware of any connection between the embassy plot and Hariri’s assassination.

Counsel for Sabra also pointed to documents that the evidence that allowed the Prosecution to tie certain phone numbers to the accused in the Ayyash case originated from the SMI. Mr. Macleod admitted that he never saw the software that was supposedly used to obtain this information, and that he could not confirm its existence. The Mr. Macleod acknowledged that he was told that the paperwork surrounding this “breakthrough” was “destroyed,” and that the provenance of these attributed phone records could not be explained at the time.

Counsel for Oneissi cross-examined this witness in private session.

19 July 2016

The Prosecution spent half of the day re-examining Mr. Macleod in order to clarify various points. Mr. Macleod testified that he considered many statements upon which the Defense relied to be hearsay, including those which alluded to two calls to the Abu Adass household. He further characterized the two “stories” referenced by the Defense as a “mistaken conflation” of two accounts rather than a “shocking and sudden revelation of something previously hidden.”

The witness testified that although UNIIIC considered the possibility of Taha’s involvement in the Hariri assassination, no evidence was found to support the theory. In one interview conducted by Mr. Macleod, an acquaintance of Taha’s said that he seemed “surprised” and “upset” by Abu Adass’s disappearance, even showing tears in his eyes. Another witness had told Mr. Macleod that Taha was “gobsmacked” by his disappearance and that Taha had never recommended Abu Adass for operations of the “committee” (which refers to a group of militants). Taha himself was described as “bewildered” by the purpose of targeting Prime Minister Hariri. The Prosecution thus suggested that neither Ahmad Abu Adass nor Khaled Taha were likely to have taken part in the assassination.

Other Matters
On 15 June 2016, before Mr. Macleod took the stand, the Prosecution sought to formally admit evidence that the Trial Chamber had previously ruled admissible. These include subscriber notes from Alfa. The prosecution submitted various annexes, including 86 total pieces of evidence, relating to the details of the accused. These notes include the subscriber name, phone number, activation date, switch-off date, and call time. The Prosecution intends to use this information, in conjunction with civil records, to attribute phone numbers to the accused.

First Instance Judgment in Second Contempt Case

On 15 July 2016, Contempt Judge Lettieri issued his judgment in the case against the Lebanese newspaper Al Akhbar Beirut S.A.L. and its editor-in-chief, Ibrahim Al Amin. Both Al Akhbar - as a legal person - and Al Amin are accused of acting in contempt of the Tribunal by “knowingly and wilfully interfering with the administration of justice by: publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the Tribunal's ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.” For further information on this case, see our other blog posts on this case (here, here, and here).

Applicable Law

To prove the actus reus of the contempt charge, the Amicus Prosecutor was required to demonstrate that the accused had knowingly published the confidential information and that its publication created an objective likelihood of undermining public confidence in the Tribunal’s ability to protect witness confidentiality. Such undermining of public confidence constitutes interference with the Tribunal’s administration of justice, which is prosecutable under Rule 60bis of the Rules of Procedure and Evidence. The “objective likelihood” standard requires the application of ascertainable facts, rather than common sense or the testimony of a small sample of witnesses.

The proper mens rea requires “knowing and wilful interference with the Tribunal’s administration of justice.” Thus, it must be proven that the accused deliberately published the confidential material and knew that in doing so, their conduct was objectively likely to undermine public confidence in the Tribunal’s ability to protect witness confidentiality.

In terms of the Tribunal’s corporate jurisdiction, Contempt Judge Lettieri looked to Lebanese law in order to establish the material elements of attributing liability to legal persons. These are: (1) the criminal responsibility of a specific natural person; (2) the relationship of the natural person with the corporate accused; and (3) the authorization of the natural person’s criminal conduct on behalf of the corporate accused.

Findings

Actus Reus

Based on the subsequent articles published by Al Amin and Al Akhbar on the topic of the confidential witnesses, the Contempt Judge was satisfied that both accused released “highly detailed information which fully identified a total of 32 individuals as purported confidential Tribunal witnesses.” The Judge noted that the full contents of the original article - published on 15 January 2013 - remained available until 19 February, by which time the sensitive information and images had been blurred. The articles appeared to have been completely removed by 29 February.

Several witnesses testified to the effects of these articles. Witness AP06 claimed that following their publication, “he was the subject of gossip and fielded daily questions from people inquiring about his relationship with the Tribunal, his political affiliation and what he had done to have his picture published.” This witness further testified that he suffered business losses after the leaks. Witnesses AP07 and AP09 claimed that they feared being harmed by forces opposed to the STL. Two witnesses called on by the Defense testified that their faith in the Tribunal was not undermined, but still seemed to inadvertently imply that they suffered some degree of harm after the Al Akhbar publications were released. The Contempt Judge also considered a multitude of evidence in the form of Lebanese news articles and public reactions with respect to the negative perception of the Al Akhbar publications.

The Contempt Judge ruled on the basis of the above evidence that Al Amin and Al Akhbar adopted the role of a “political advocate” rather than a “neutral observer simply reporting on the results of an investigative inquiry.” Moreover, it was not demonstrated that publishing the witnesses’ personal details served any “journalistic purpose.” The testimony provided by witnesses for both the Amicus Prosecution and the Defense suggests that the individuals whose personal details were published suffered objective harm, or actively took measures to prevent such harm from occurring (including the purported recanting of testimony). Thus, the Contempt Judge Ruled that the Amicus Prosecutor had proved the actus reus beyond reasonable doubt.

Mens Rea

Contempt Judge Lettieri ruled that, on the basis of statements issued by Al Amin, it can be concluded that the accused had deliberately published witness details in spite (and because) of their confidentiality. Furthermore, in the 19 January article specific reference was made to the possibility of being found in contempt of the court as a result of publishing the witness information. Further analyses of the STL’s Rules of Procedure and Evidence published by Al Akhbar - and approved by Al Amin - demonstrate that the accused are aware of the functions of the Tribunal and the scope of its inherent power to prosecute contempt. Thus, the accused’s mens rea was proved beyond reasonable doubt.

Defense of Free Speech

Contempt Judge Lettieri again noted that “the journalistic profession may not be used as an impenetrable shield; where different legitimate interests are involved, they must be weighed in light of the priorities in a democratic society.” He pointed to the ICCPR, the Human Rights Committee, the ECHR, and Lebanese jurisprudence to demonstrate that reasonable limits to the freedom of expression are generally recognized.

Though the Contempt Judge recognized the press’s right to report on and criticize the Tribunal, he held that “there is a clear distinction between criticizing the Tribunal’s work and publishing the names (…) of 32 purported confidential witnesses.” It was not shown that this publication “was consistent with journalistic standards or ethics” or that it served any “journalistic value or pressing social need.” Furthermore, the inaccuracies contained within the Al Akhbar publications suggest that no meaningful attempt to verify the contents of the alleged “leaks” were made. This was found to be inconsistent with the basic tenets of investigative journalism. Thus, the Contempt Judge was not satisfied that Al Amin’s right to free expression exonerated him from prosecution.

The Judge further held that the requirements for attributing corporate liability to Al Akhbar for the actions taken by Al Amin on the organization’s behalf were satisfied. Under the by-laws of Al Akhbar and Lebanese criminal procedure, Al Amin’s notable positions within Al Akhbar allow the Tribunal to hold Al Akhbar liable for the criminal conduct perpetrated by Al Amin under the corporation’s auspices.

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The Death of Mustafa Badreddine (Part 3): Appeals Chamber's Decision Terminating the Proceedings

Badreddine Defense Interlocutory Appeal of the Trial Chamber’s Interim Decision

On 15 June 2016, the Defense for Mustafa Badreddine filed an interlocutory appeal of the Trial Chamber’s “Interim Decision on the Death of Mr Mustafa Amine Badreddine and Possible Termination of Proceedings.” First, the Defense claimed that the Trial Chamber “erred in law by only identifying the requisite standard of proof [of death] ex post facto.” Second, the Defense asserted that the Trial Chamber “erred in law in failing to precisely articulate the requisite standard.” Counsel was unsatisfied with the vagueness of the threshold provided by the Trial Chamber in its written reasons. Counsel additionally stated that the Trial Chamber erred in fact in its assessment of media reports on the circumstances of Mr Badreddine’s reported death. The Defense also contended that the Trial Chamber did not afford due consideration to the “evidence of a religious nature” that was presented before the Tribunal. Finally, the Defense believed that the Trial Chamber erred in neglecting to properly analyze the totality of the evidence presented before it.

Appeals Chamber's Majority Decision

On 11 July 2016, the Appeals Chamber issued its 3-2 written decision on the Badreddine defense’s appeal of the Trial Chamber’s interim decision to continue the proceedings. The Appeals Chamber first considered the Defense’s request to introduce evidence in the form of a Lebanese death certificate issued for Mustafa Badreddine, as well as an accompanying medical report. The Defense submitted that the certificate and medical report further corroborate their client’s death. However, the Appeals Chamber agreed with the Prosecution in that this evidence was improperly introduced and that its authenticity could not be verified. Thus, the majority did not consider this evidence in its decision.

The majority then considered the claim that the Trial Chamber erred in applying a standard of proof ex post facto and failing to articulate this standard. The Appeals Chamber maintained that it is “indisputable that a Chamber cannot properly determine whether a fact or state of affairs exists without applying the relevant standard of proof to that determination.” In light of this, the majority held that the Trial Chamber reached its decision “without knowing which standard of proof it was to apply.” The Appeals Chamber declared that this error of law invalidates the Trial Chamber’s decision.

The Appeals Chamber subsequently reviewed relevant national and international criminal jurisprudence to determine what standard of proof is generally appropriate for assessing “evidence of facts not going to the guilt of the accused.” The Appeals Chamber determined that the “balance of probabilities” (“preponderance of evidence”) is the appropriate threshold of proof of death. This standard was used by the ICTY in relation to the termination of proceedings against an accused on the basis of his mental health, as well as to determining the deaths of multiple witnesses. 

With this new standard of proof in mind, the Appeals Chamber decided that it was in a “good” position to review the matter of Badreddine’s death itself rather than remand it to the Trial Chamber. Based on a “holistic” review of the evidence presented before it, the Appeals Chamber concluded that the balance of probabilities points to Badreddine’s death. The majority noted that the entirety of the evidence supports this conclusion, and that no evidence to the contrary was submitted. Furthermore, it found that “there is no evidence on the record suggesting a false claim of death. The Appeals Chamber thus ordered the termination of the proceedings against Mustafa Badreddine without prejudice, leaving open the possibility for the proceedings to resume “should evidence that he is alive be adduced in the future.”

Dissenting Opinion of Judge Nsereko

In his dissent from the majority opinion, Judge Nsereko concurred with the majority in that the correct standard of proof is the balance of probabilities. Judge Nsereko did, however, note that this standard must be “commensurate with the seriousness of the finding,” leading him to conclude that the correct threshold in this particular case is “high.”

Judge Nsereko dissented from the majority’s opinion that the Appeals Chamber was in “as good a position as the Trial Chamber” to apply this new standard of proof to the facts. He sustained that due to the Trial Chamber’s “organic familiarity with the case, the Trial Chamber is considerably more suited to accomplishing this task than the Appeals Chamber.” Though Judge Nsereko stated that an assessment of the facts is best left to the Trial Chamber, he nonetheless decided to comment on the matter. Judge Nsereko was unimpressed with the circumstantial nature of the evidence presented by the Prosecution, adding that because most of the pieces of evidence emanate from one source - Hezbollah - they merely replicate each other and cannot be considered independent. Furthermore, Judge Nsereko described the evidence presented by the Badreddine Defense as “speculative.”

Finally, Judge Nsereko noted that the Lebanese government “refused to execute” the death certificate presented by Badreddine counsel because it “suffers from certain deficiencies which have presented the Lebanese authorities from legally determining that Mr Badreddine is deceased.” Because this evidence is confidential, its content can only be gleaned from the majority and dissenting opinions.

Dissenting Opinion of Judge Baragwanath

On 13 July 2016, Judge Baragwanath followed with his own dissent from the majority decision. He began by concurring with the Appeals Chamber’s conclusion that the balance of probabilities is the correct standard of proof to be applied in the case of the defendant’s death. Judge Baragwanath added, however, that this threshold may rise to the level of beyond reasonable doubt in the event that death becomes an element of the crime for which the defendant may be tried. The standard must be elevated, according to Judge Baragwanath, due to the defendant’s “failure to submit to the custody of the court,” and the resulting difficulties of a trial in absentia.

Judge Baragwanath then addressed the issue of whether the Trial Chamber erred in articulating the standard of proof it applied ex post facto. He agreed that the Trial Chamber erred in failing to articulate a standard of proof in its Oral Decision, but dissented from the majority by stating that the error did not invalidate the Trial Chamber’s decision pursuant to Rule 176(A). Judge Baragwanath noted that:

“The fact that the Written Reasons confirm the result of the Oral Decision suggests that the Trial Chamber carried out this re-evaluation exercise and concluded that the determination reached in its Oral Decision was correct according to the standard of proof it was now able to articulate.”

Thus, Judge Baragwanath concluded that the Trial Chamber corrected its error in its written decision, thus removing the Defense’s grounds for appeal on this point.

Judge Baragwanath further disagreed with the majority’s decision to exclude the evidence presented to the Appeals Chamber by the Defense. In contrast with the majority, Judge Baragwanath was satisfied that the Defense fulfilled the four requirements set out by Rule 186 of the STL Rules of Procedure and Evidence. Given the proper introduction of this evidence, Judge Baragwanath held that the Appeals Chamber should not have used its power to rule on its admissibility. Rather, the Trial Chamber is best suited to conduct a holistic review. According to Judge Baragwanath, the majority opinion reduces the quality of its decision and deprives the parties of their right to appeal any new decision made by the Trial Chamber on the basis of the correct standard of proof. Judge Baragwanath concluded that the evidence on the record was insufficient to prove Badreddine’s death on the balance of probabilities, taking into account the gravity of this finding.

Consolidated Amended Indictment

Pursuant to the Trial Chamber’s order, the Prosecution submitted the consolidated amended indictment for the four remaining accused in the case of Ayyash et. al. Mustafa Badreddine’s name remains on the indictment as a co-conspirator (rather than as an accused).

The Death of Badreddine (Part 2): The Trial Chamber's Decision to Continue the Proceedings

Submissions on potential consequences of Chamber's findings (1 June 2016)

Before issuing its decision on the personal status of Mustafa Badreddine, the Trial Chamber heard submissions from the parties on the potential consequences of its findings. The transcript may be found here.

The Prosecution submitted that is unlikely that better evidence of the defendant’s death will emerge. Therefore, the Trial Chamber should decide to terminate the case against Badreddine. If so, the the Court should issue an amended indictment that preserves Badreddine’s name as a co-conspirator. The Victims' Representative stressed that the Court should not issue an order to terminate the proceedings without prejudice. In the Representative’s view, if new evidence of Badreddine’s whereabouts were to emerge, it would be in several years’ time. The Legal Representative cautioned the Tribunal to exercise due care in terminating the proceedings against Badreddine, as the result would likely require a complete retrial if he were found alive. The Representative concluded that the “balance of convenience (…) lies in favor of allowing the proceedings to continue on the basis that [the STL is] not currently satisfied that the evidence is sufficient to conclude that Mustafa Badreddine is dead (…) whilst further inquires are conducted (…).”  The Defense vehemently disagreed with the Prosecution’s suggestion to re-characterize Badreddine as a co-conspirator on an amended version of the indictment in the event that the Trial Chamber terminates the proceedings against him. Instead, the Defense argued that all mentions of Badreddine should be wiped from the indictment and any outstanding arrest warrants should be voided.

The Trial Chamber’s Written Reasons for the Interim Decision to Continue the Proceedings

On 1 June 2016, the Tribunal ruled that “it did not believe that sufficient evidence has yet been presented to convince it that the death of Mustafa Amine Badreddine had been proved to the requisite standard.” Judge Braidy issued a dissent.

The Trial Chamber stated that it could not find evidence of an applicable international standard but nevertheless extrapolated several guiding international legal principles that govern the termination of proceedings against a deceased defendant. These are (citations omitted):

• “Where a court is satisfied on the available evidence that an accused person is no longer alive, it should terminate the proceedings against that person (...)”;
• “The doctrine of individual criminal responsibility provides that criminal jurisdiction may only be exercised over living persons. A court's personal jurisdiction (...) is therefore exclusive to that particular accused and ceases upon his or her death (...)”;
• “Termination or discontinuance of the proceedings may be either final and absolute or conditional and 'without prejudice' to reopening, resuming or continuing the case in appropriate circumstances, should the accused be found to be alive (...)”;
• “As a general rule, a certificate of death certified or authenticated by the State where death occurred or another interested state, is desirable though not essential, for a court to be satisfied as to the death of an accused. There may be circumstances in which a death certificate in the appropriate form or from an official source is unavailable, difficult to secure or the obtaining of which would result in unreasonable delay. In these circumstances other evidence supporting a finding of death may be accepted (...)”;
• “A death certificate alone may not suffice in all the circumstances and a court may seek additional evidence in the form of, for example, a post-mortem, coroner's report, other forensic report or document verifying that an accused is dead. DNA analysis, identification of the body may also be required to establish that the body purported to be that of an accused person—in respect of which there has been a funeral service and an interment—is in fact the accused's.”

In its majority opinion, the Trial Chamber decided that the termination of the proceedings against the accused in an in absentia trial is “an extreme step” which requires a “high standard of proof.” Though the standard need not reach the level of “beyond reasonable doubt” the majority directly refrained from specifying the appropriate threshold. The Trial Chamber further declared that in certain circumstances, a death certificate may amount to necessary, but insufficient proof of a defendant’s personal status. If no death certificate is available, however, the majority decided that “any other evidence” may be examined in order to be persuaded of the accused’s death.

On the basis of the evidence presented by the Prosecution and Defense counsel, the Tribunal decided that it is not yet satisfied of Badreddine’s death. The circumstantial and conflicting nature of the evidence, including the ambiguous circumstances of Badreddine’s death, made the Tribunal to determine that the proceedings must continue in the interim. The Court highlighted its belief that “[n]ot all avenues to obtain official proof from the Lebanese or any other State authorities certifying the death of Mr Badreddine have yet been exhausted.” The majority stressed that this is an interim decision that may be revisited upon receipt of additional evidence.

Judge Braidy's Dissent

Judge Braidy dissented from the majority decision to continue the proceedings. Judge Braidy agreed with the majority’s assessment of “guiding legal principles” that govern the termination of proceedings against a defendant in the event of their death. She further agreed that a “high standard of proof” is necessary to be satisfied of a defendant’s death. The judge did dissent, however, with respect to the application of these principles to the case against Badreddine.

Judge Braidy found the Jerbo case particularly instructive in light of the parallels between the ICC and the STL’s capacity to procure an official death certificate. In the Jerbo case, the Court heard circumstantial evidence of the defendant’s death given its inability to obtain a death certificate. Judge Braidy noted that the Prosecution maintained that it possesses “no information on ‘when a death certificate might be issued; and, second, whether there is any reasonable expectation that such a certificate would be issued on the basis of any additional evidence beyond that which is presently available (…)’” Thus, Judge Braidy considered it appropriate to evaluate the circumstantial evidence presented to the STL rather than wait for an official death certificate. On the basis of this evidence, Judge Braidy concluded that she was satisfied of Badreddine’s death.