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STL CASEBOOK2015

Major rulings issued by the Special Tribunal for Lebanon

STL

احملمكة اخلاصة بلبنانSPECIAL TRIBUNAL FOR LEBANONTRIBUNAL SPÉCIAL POUR LE LIBAN

STL CASEBOOK 2015

STL CASEBOOK2015

Major rulings issued by the Special Tribunal for Lebanon

Special Tribunal for LebanonLeidschendam

Special Tribunal for LebanonLeidschendamNetherlands

©2017 Special Tribunal for Lebanon

Documents published in this book do not constitute the official record of the Special Tribunal for Lebanon and are intended for public information only.

ISBN 978-94-90651-17-6

Printed in The Netherlands

Table of ConTenTs

Preface 9

1. In the Case against Akhbar Beirut S.A.L, Ibrahim Mohamed Ali Al Amin, Appeals Panel Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Case No.: STL-14-06/PT/AP/AR126.1, 23 January 2015 (“Personal Jurisdiction AP”, “Personal Jurisdiction in Contempt Case AP (Opinion of Judge Chamseddine)”, “Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy)”)

11

2. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Simultaneous or Concurrent Testimony of Expert Witnesses, Case No.: STL-11-01/T/TC, 17 February 2015 (“Testimony of Expert Witnesses TC”)

61

3. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Updated Request for a Finding of Non-Compliance, Case No.: STL-11-01/T/TC, 27 March 2015 (“Finding of Non-Compliance TC”)

81

4. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Prosecution Motion to Amend its Exhibit List and Oneissi Defence Request to Stay the Proceedings, Case No.: STL-11-01/T/TC, 13 April 2015 (“Exhibit List Amendment and Stay of Proceedings TC”)

115

5. Pre-Trial Judge, Decision on Request from Counsel for Mr El Hajj Received on 23 October 2014, Case No.: STL-El Hajj/PTJ, 30 April 2015 (“Request for Access to Documents PTJ”)

139

6. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Seventh Decision on Victims’ Participation in the Proceedings, Case No.: STL-11-01/T/PTJ, 5 May 2015 (“Victim Participation in Proceedings PTJ”)

153

7. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution, Case No.: STL-11-01/T/TC, 6 May 2015 (“Admissibility of CSTs and Transfer of CDRs TC”)

163

5

6

8. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on the Admissibility of Documents Published on the WikiLeaks Website, Case No.: STL-11-01/T/TC, 21 May 2015 (“Admissibility of WikiLeaks Documents TC”)

213

9. The Prosecutor v. Ayyash et al., Trial Chamber, Order Clarifying Decision on Updated Request for A Finding of Non-Compliance of 27 March 2015, Case No.: STL-11-01/T/TC, 22 May 2015 (“Clarification of Finding of Non-Compliance TC”)

231

10. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Oneissi Defence Request to Interview and Prosecution Motion to Admit the Statement of Witness PRH662, Case No.: STL-11-01/T/TC, 19 June 2015 (“Witness Interview and Admission of Witness Statement TC”)

237

11. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Prosecution Application for a Summons to Appear for Witness 012 and Order Issuing a Summons for a Witness, Case No.: STL-11-01/T/TC, 1 July 2015 (“Summons to Appear TC”)

247

12. The Prosecutor v. Ayyash et al., Trial Chamber, Decision Denying Certification to Appeal the ‘Decision on Admissibility of Documents Published on the WikiLeaks Website’, Case No.: STL-11-01/T/TC, 3 July 2015 (“Denial of Certification to Appeal WikiLeaks Decision TC”)

261

13. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on ‘Prosecution Motion for the Admission of Locations Related Evidence’, Case No.: STL-11-01/T/TC, 9 July 2015 (“Admission of Locations Related Evidence TC”)

269

14. The Prosecutor v. Ayyash et al., Trial Chamber, Decision Denying Certification to Appeal the Trial Chamber’s Decision on Issuing a Summons to Witness 012, Case No.: STL-11-01/T/TC, 10 July 2015 (“Denial of Certification to Appeal Summons TC”)

297

7

15. The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Appeal by Counsel for Mr Oneissi Against the Trial Chamber’s Decision on the Legality of the Transfer of Call Data Records, Case No.: STL-11-01/T/AC/AR126.9, 28 July 2015 (“Transfer of CDRs AC”, “Transfer of CDRs AC (Opinion of Judge Riachy)”, “Transfer of CDRs AC (Opinion of Judge Baragwanath)”)

309

16. The Prosecutor v. Ayyash et al., Appeals Chamber, Reasons for Decision on Applications Filed by Counsel for Witness PRH012 and Order on Confidentiality, Case No.: STL-11-01/T/AC, 28 July 2015 (“Witness Right to Appeal AC”, “Witness Right to Appeal AC (Opinion of Judge Baragwanath)”)

361

17. In the Case against Al Jadeed [CO.] S.A.L./New T.V.S.A.L. (N.T.V.), Karma Mohamed Tahsin Al Khayat, Contempt Judge, Public Redacted Version of Judgment, Case No.: eSTL-14-05/T/CJ, 18 September 2015 (“Contempt Judgment CJ”)

395

18. In the Case against Karma Mohamed Tahsin Al Khayat, Contempt Judge, Reasons for Sentencing Judgment, Case No.: STL-14-05/S/CJ, 6 October 2015 (“Sentencing Judgment in Contempt Case CJ”)

469

19. The Prosecutor v. Ayyash et al., Trial Chamber, Invitation to the Government of the Lebanese Republic to Make Submissions in Relation to the Sabra Defence Request for a Finding of Non-Compliance, Case No.: STL-11-01/T/TC, 17 November 2015 (“Invitation to Lebanese Government to Make Submissions TC”

481

Index 489

9

PREFACE

This collection of the jurisprudence of the Special Tribunal for Lebanon, published in English, French and Arabic, contains a selection of the most important decisions rendered during 2015, all of which are accessible on the Tribunal’s website (www.stl-tsl.org). It also contains an analytical index designed to facilitate research by students and scholars.

I would like to thank the Appeals Chamber team and all of the lawyers and linguists of the Tribunal who have contributed to its production. As the STL is the first international tribunal mandated with the responsibility to try terrorist cases, the reach of its jurisprudence is important for international criminal law. A law which we hope balances legal traditions and embraces normative and linguistic pluralism.

I am confident that this publication will assist students, professors, academics, scholars, judges, lawyers, and other members of the legal profession as well as the general public – both in Lebanon and elsewhere – who would like to access, study, and comment on the Tribunal’s case law, and will promote greater engagement with the practice of international criminal law.

Ivana Hrdličková President

1.Case name: In the Case Against

Akhbar Beirut S.A.L. Ibrahim Mohamed Ali Al Amin

Before: Appeals Panel

Title: Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings

Short title: Personal Jurisdiction in Contempt Case AP

Personal Jurisdiction in Contempt Case AP (Opinion of Judge Chamseddine)

Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy)

11

13

THE APPEALS PANELCase No.: STL-14-06/PT/AP/AR126.1

Before: Judge Afif Chamseddine, Presiding Judge Janet Nosworthy Judge Ivana Hrdličková

Registrar: Mr Daryl Mundis

Date: 23 January 2015

Original language: English

Classification: Public

IN THE CASE AGAINST

AKHBAR BEIRUT S.A.L. IBRAHIM MOHAMED ALI AL AMIN

DECISION ON INTERLOCUTORY APPEAL CONCERNING PERSONAL JURISDICTION IN CONTEMPT PROCEEDINGS

Amicus Curiae Prosecutor: Mr Kenneth Scott

Counsel for Akhbar Beirut S.A.L. and Mr Ibrahim Mohamed Ali Al Amin: Mr Antonio Abou Kasm

14

Personal Jurisdiction in Contempt Case AP

I. HEADNOTE1

1. In this interlocutory appeal, the Appeals Panel is tasked with determining whether or not the Contempt Judge erred in his deciding that the Tribunal does not have jurisdiction to charge legal persons with contempt and whether such error, if any, led to the invalidation of his decision. The Appeals Panel examines: (1) whether the Contempt Judge erred in considering that there is no ambiguity in the term “person” under Rule 60 bis; (2) whether the Contempt Judge erred in his application of the principle of legality; and (3) the similarities between the current Appeal’s Panel Decision and a previous appeals panel decision in the contempt proceedings against New TV S.A.L. (a legal person) and Al Khayat (“New TV Jurisdiction Appeal Decision”).

2. The facts giving rise to this appeal originate from Judge Baragwanath, in his capacity as the initial contempt judge, issuing an order in lieu of an indictment containing charges against both Akhbar Beirut S.A.L., a legal person operating as Al Akhbar, and Mr Ibrahim Mohamed Ali Al Amin, Editor-in-Chief of Akhbar Beirut S.A.L. Judge Lettieri, as the subsequent Contempt Judge, dismissed the charges against Akhbar Beirut S.A.L. having found that the Tribunal has no personal jurisdiction to hold contempt proceedings against legal persons and certified this issue for appeal. In so doing, Judge Lettieri expressly departed from the reasoning adopted in the New TV Jurisdiction Appeal Decision. The Amicus Prosecutor filed an appeal challenging the Contempt Judge’s determination on whether the New TV Jurisdiction Appeal Decision was binding upon him and his decision not to proceed against legal persons for the crime of contempt. The Defence responds that the decision of the Contempt Judge should be upheld as the Amicus Prosecutor has not established any errors in his decision.

3. The Appeals Panel considers that the current Appeal attracts the same reasoning as the New TV Jurisdiction Appeal Decision, since the legal issue at stake is the same in both cases. Having found that the Contempt Judge erred in considering that there is no ambiguity in the term “person” under Rule 60 bis, the

1 This headnote does not constitute a part of the decision. It has been prepared for the convenience of the reader, who may find it useful to have an overview of the decision. Only the text of the decision itself is authoritative.

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Appeals Panel finds that the Contempt Judge further erred in his consideration of the nullum crimen sine lege principle as the New TV Jurisdiction Appeal Decision’s interpretation of Rule 60 bis did not create a new offence as the status of the perpetrator, legal or natural person, is not an element of the crime of contempt. As such, the New TV Jurisdiction Appeal Decision did not rely on analogical reasoning to come to its conclusion. Additionally, the Appeals Panel reiterates that the criminal responsibility of legal persons for the crime of contempt is permissible under Lebanese law and that the Tribunal, unlike other international criminal tribunals, is substantially guided by Lebanese law in the performance of its judicial duties. As such, it was foreseeable that Akhbar Beirut S.A.L. could be prosecuted for contempt before the Tribunal. These errors of law are of such a nature that they invalidate the Contempt Judge’s decision.

4. With respect to the Contempt Judge’s findings related to the binding effect of the New TV Jurisdiction Appeal Decision, the Appeals Panel, Judge Nosworthy dissenting, considers that it would have been preferable and important for judicial certainty as well as to avoid the fragmentation of the law, for the Contempt Judge to have followed the conclusions of the New TV Jurisdiction Appeal Decision.

5. Accordingly, the Appeals Panel upholds the appeal and reinstates the Order in Lieu of an Indictment of 31 January 2014 which includes Akhbar Beirut S.A.L. as an accused in this case.

6. Judge Chamseddine appends a separate opinion. Judge Nosworthy appends a separate and partially dissenting opinion.

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II INTRODUCTION

7. The Appeals Panel is seized of an interlocutory appeal2 filed by the Amicus Curiae Prosecutor (“Amicus Prosecutor”) pursuant to Rule 126 (E) of the Rules of Procedure and Evidence (“Rules”) seeking to challenge the Decision on Motion Challenging Jurisdiction rendered by Judge Lettieri (“Contempt Judge”).3 The assigned Defence Counsel for Akhbar Beirut S.A.L. and Mr Ibrahim Mohamed Ali Al Amin (“Defence”) responded that the Appeal should be rejected.4

8. In the Impugned Decision, the Contempt Judge dismissed the charges against Akhbar Beirut S.A.L., a corporate entity, having found that the Tribunal has no personal jurisdiction (jurisdiction ratione personae) to hold contempt proceedings against legal persons.5

9. We grant the Appeal for the reasons set out below. Consequently, the Impugned Decision is reversed and the Order in Lieu of an Indictment of 31 January 2014 is reinstated.

III PROCEDURAL BACKGROUND

10. On 31 January 2014, Judge Baragwanath, acting as the initial contempt judge found that there were sufficient grounds to justify the issuance of an order in lieu of an indictment for contempt against Akhbar Beirut S.A.L., the legal person operating the newspaper Al Akhbar and its Arabic and English websites, and Mr Ibrahim Al Amin, Akhbar Beirut S.A.L.’s Editor-in-Chief and the Chairman of its Board of Directors (the “Accused”).6 They were both charged with knowing and wilful interference

2 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/AP/AR126.1, F0001, Interlocutory Appeal against the Decision on Motion Challenging Jurisdiction, 13 November 2014 (“Appeal”).

3 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/CJ, F0069, Decision on Motion Challenging Jurisdiction, 6 November 2014 (“Impugned Decision”).

4 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/AP/AR126.1, F0003, Response from Assigned Counsel to the “Interlocutory Appeal against the Decision on Motion Challenging Jurisdiction’ dated 13 November 2014, 24 November 2014 (“Response”).

5 Impugned Decision, disposition.

6 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/I/CJ, F0001, Redacted Version of Decision in Proceedings for Contempt with Orders in Lieu of an Indictment, 31 January 2014 (“Indictment

17


with the administration of justice in breach of Rule 60 bis (A) of the Rules.7 As he had charged the Accused, Judge Baragwanath proceeded to recuse himself from the contempt proceedings and designated Judge Lettieri as the Contempt Judge on the basis of the Judges’ roster.8 It is noted that two other accused, New TV S.A.L., a legal person and Ms. Al Khayat, were also charged for contempt by Judge Baragwanath on the same day in a separate order in lieu of an indictment.9

11. On 18 August 2014, the Defence filed a motion challenging the jurisdiction of the Tribunal to hear cases of contempt in general under Rule 90 (A) (i) and against legal persons in particular.10 On 29 August 2014, the Amicus Prosecutor opposed the Defence Preliminary Motion asserting that the Tribunal has inherent jurisdiction to indict legal persons for contempt under Rule 60 bis.11

12. On 2 October 2014, an appeals panel consisting of Judges Nosworthy, Akoum, and Hrdličková, Judge Akoum dissenting, overturned a prior decision of the Contempt Judge.12 In that decision dated 24 July 2014, the Contempt Judge found that the Tribunal had jurisdiction over contemptuous acts but had dismissed the contempt charges against New TV S.A.L., a legal person, on the basis that the Tribunal had no jurisdiction ratione personae to hold contempt proceedings against

Decision”), paras 4, 50.

7 Ibid.

8 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/I/PRES, F0002, Order Designating Contempt Judge, 31 January 2014.

9 STL, In the case against New TV S.A.L. and Al Khayat, STL-14-05/I/CJ, F0001, Redacted Version of Decision in Proceedings for Contempt with Orders in Lieu of an Indictment, 31 January 2014 (“New TV Indictment Decision”), para. 4.

10 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/CJ, F0055, Preliminary Motion Presented by Counsel Assigned to Represent Akhbar Beirut S.A.L. and Mr Ibrahim Mohamed Ali Al Amin, 18 August 2014 (“Defence Preliminary Motion”).

11 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/CJ, F0058, Response to the Preliminary Motion Presented by Counsel Assigned to Represent Akhbar Beirut S.A.L. and Mr Ibrahim Mohamed Ali Al Amin, 29 August 2014 (“Response to Defence Preliminary Motion”).

12 STL, In the case against New TV S.A.L and Al Khayat, STL1405/PT/CJ, F0054, Decision on Motion Challenging Jurisdiction and on Request for Leave to Amend Order in Lieu of an Indictment, 24 July 2014 (“New TV Jurisdiction Decision”).

18


legal persons. The appeals panel seized ordered the reinstatement of the charges of contempt against New TV S.A.L pursuant to Rule 60 bis.13

13. On 6 November 2014, the Contempt Judge granted the Defence Preliminary Motion in part and reiterated that the Tribunal has inherent jurisdiction over contempt cases. After considering the findings of the New TV Jurisdiction Appeal Decision, the Contempt Judge “decline[d] to follow its legal reasoning and result”.14 In accordance with his prior finding in the case against New TV S.A.L. and Al Khayat (“New TV S.A.L. case”), the Contempt Judge found that the Tribunal has no jurisdiction ratione personae to hold contempt proceedings against legal persons as Rule 60 bis applies to natural persons only. Therefore, he dismissed the charges against Akhbar Beirut S.A.L.15 Consequently, he ordered the Amicus Prosecutor to file a proposed amended order in lieu of an indictment removing all references to Akhbar Beirut S.A.L.16

14. With respect to possible appeals of the Impugned Decision, the Contempt Judge held that an interlocutory appeal pursuant to Rule 90 (B) (i) may be directed against the Impugned Decision as a whole and considered that its different parts should not be read in isolation. Therefore, he stated that additional certification would not be required.17 However, mindful that an appeals panel might disagree with his analysis, he certified proprio motu for appeal the issue of “whether the Tribunal in exercising its inherent jurisdiction to hold contempt proceedings pursuant to Rule 60 bis has the power to charge Akhbar Beirut S.A.L., a legal person, with contempt” pursuant to Rule 126 (“Certified Issue”).18

15. On 13 November 2014, the Amicus Prosecutor filed the Appeal. Judge Baragwanath, in his capacity as President of the Tribunal, issued an order pursuant

13 STL, In the case against New TV S.A.L. and Al Khayat, STL1405/PT/AP/AR126.1, F0012, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 2 October 2014 (“New TV Jurisdiction Appeal Decision”).

14 Impugned Decision, para. 74.

15 New TV Jurisdiction Decision, paras 61-65, disposition.

16 Id. at disposition.

17 Id. at paras 95-97.

18 Ibid.

19


to Rules 60 bis (M) and 30 (B) of the Rules designating the Appeals Panel on 14 November 2014.19 The President, in his administrative capacity, ordered the composition of the present panel based on a predetermined roster of judges for all appeals in contempt matters.20 This was pursuant to Article 2 (3) of the Practice Direction in Matters of Contempt.21 According to the Practice Direction, the Judges listed to deal with appeals in contempt were Judges Braidy, Hrdličková and Lettieri. However, because Judge Lettieri issued the Impugned Decision and Judge Braidy was not able to hear the appeal,22 the President designated Judge Nosworthy as the next international Judge and Judge Chamseddine as the next Lebanese Judge named on the roster. The Defence responded to the Appeal on 24 November 2014 requesting that it be dismissed.23

IV. SUBMISSIONS OF THE PARTIES

A. The Amicus Prosecutor

1. On the binding effect of the New TV Jurisdiction Appeal Decision

16. In the Appeal, the Amicus Prosecutor argues that the Contempt Judge violated the audi alteram partem principle by discussing the binding effect of the New TV Jurisdiction Appeal Decision without giving the parties an opportunity to make submissions on the matter.24

17. With respect to the Contempt Judge’s decision to depart from the New TV Jurisdiction Appeal Decision, the Amicus Prosecutor submits that the Contempt

19 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/PRES/AR126.1, F0002, Order Designating Appeals Panel, 14 November 2014 (“Order”), disposition.

20 Order, para. 4.

21 STL, Practice Direction on Designation of Judges in Matters of Contempt, Obstruction of Justice and False Testimony, STL/PD/2013/06/Rev.2, 2 July 2014 (“Practice Direction”).

22 Order, para. 3.

23 Response, p. 17.

24 Appeal, para. 15, referring to ICTY, Prosecutor v. Jelisić, Case No. IT9510A, Appeal Judgement, 5 July 2001, paras 2728.

20


Judge erred in law by failing to find that that Decision was binding upon him.25 He adds that the rule of law and the process of appeal would be undermined if every judge could determine whether or not to be bound by an appeal decision.26

18. Although the principle of stare decisis originates in common law jurisdictions, the Amicus Prosecutor argues that civil law jurisdictions, in practice, also follow the decisions of higher courts.27 Referring to the jurisprudence of other international criminal tribunals, he adds that the Contempt Judge should have followed the ratio decidendi of the previous appeals panel.28

19. According to the Amicus Prosecutor, the Impugned Decision is “in essence, an ‘appeal’ from, or a motion to reconsider” the New TV Jurisdiction Appeal Decision.29 He further argues that the Contempt Judge failed to justify departing from the New TV Jurisdiction Appeal Decision as trial judges can only depart from appeals decision if there are new or different facts that were not considered in the previous decision or if the relevant law has materially changed.30 He argues that the contempt proceedings against New TV S.A.L are not different from the contempt proceedings against Akhbar Beirut S.A.L. as both relate to charges against legal entities and their respective senior managers.31

20. In addition, referring to the Contempt Judge’s decision to wait for the New TV Jurisdiction Appeal Decision before issuing the Impugned Decision, the Amicus

25 Appeal, para. 12, referring to STL, In the case against New TV S.A.L. and Al Khayat, STL1405/PT/AP/AR126.1, F0012, Decision on Interlocutory Appeal Concerning Personal Jurisdiction on Contempt Proceedings, 2 October 2014.

26 Appeal, para. 17.

27 Appeal, para. 18, quoting ICTY, Prosecutor v. Aleksovski, Case No. IT9514/IA, Appeal Judgement, 24 March 2000, paras 92-93.

28 Appeal, para. 21. See Appeal, paras 19-20, 22, referring to ICTY, Prosecutor v. Aleksovski, Case No. IT9514/IA, Appeal Judgement, 24 March 2000, paras 97, 110, 112-113; ICTY, Prosecutor v. Blagojević et al., Case No. IT0260AR65.2, Decision on Provisional Release of Vidoje Blagojević and Dragan Obrenović, 3 October 2002, para. 2; ICTR, Prosecutor v. Rutaganda, ICTR963A, Appeal Judgement, 26 May 2003, para. 26; ICTR, Prosecutor v. Kajelijeli, ICTR9844AA, 23 May 2005, para. 202.


30 Ibid.

31 Appeal, para. 25. See Appeal, paras 23-24.

21


Prosecutor contends that the Contempt Judge implicitly recognised that “the two cases are identical”.32 Consequently, he submits that the ratio decidendi of the previous decision should apply in the “identical case here”.33

2. On the alleged errors of law in the Impugned Decision

21. The Amicus Prosecutor refers to his prior submissions made in the case against New TV S.A.L. and elaborates certain arguments in more detail.34

22. First, the Amicus Prosecutor argues that the Impugned Decision repeats previous arguments rejected in the New TV Jurisdiction Appeal Decision, namely on the principles of legality (nullum crimen sine lege), specificity (nulla poena sine lege certa) and the prohibition of analogy (nulla poena sine lege stricta).35 With respect to the principle of legality argument, the New TV Jurisdiction Appeal Decision held that the “interpretation of Rule 60 bis does not create a new offence where before there was none – therefore, it is not in violation of the principle of nullum crime sine lege”.36 The Amicus Prosecutor further submits that the New TV Jurisdiction Appeal Decision specifically addressed the Contempt Judge’s assertions on the “expansive interpretation” of Rule 60 bis as a violation of the rights of the accused37 and the foreseeability of the crime38 as well as the prohibition of analogy.39

23. Second, the Amicus Prosecutor argues that the Contempt Judge erred with regard to the definition of “person”.40 He states that the New TV Jurisdiction Appeal Decision analysed the word “person” in its ordinary meaning, in the Tribunal’s


33 Appeal, para. 22, referring to ICTY, Prosecutor v. Aleksovski, Case No. IT9514/IA, Appeal Judgement, 24 March 2000, para. 110.

34 Appeal, paras 27-38.


36 Appeal, para. 28, quoting New TV Jurisdiction Appeal Decision, para. 85.

37 Appeal, para. 29, quoting New TV Jurisdiction Appeal Decision, paras 34, 35.

38 Appeal, para. 30, quoting New TV Jurisdiction Appeal Decision, para. 91.

39 Appeal, para. 31, quoting New TV Jurisdiction Appeal Decision, paras 74, 91.


22


official languages and basic documents as well as in the practice of other international tribunals.41

24. Third and with respect to the alleged lack of precedents for the New TV Jurisdiction Appeal Decision, the Amicus Prosecutor argues that the Contempt Judge failed to consider that decision’s reasoning and that of the Indictment Decision which found that the lack of legal pronouncements on the criminal responsibility of legal entities for contempt is explained by prosecutors simply not initiating such proceedings.42

25. The Amicus Prosecutor contends that there is no need for any special regime for contempt cases against legal entities,43 in response to the Contempt Judge’s assertion that if the interpretation of “person” in the New TV Jurisdiction Appeal Decision is upheld, the Contempt Judge would operate in a “legal vacuum”. In support of a pragmatic interpretation of the texts in order to fight impunity, the Amicus Prosecutor relies on examples of legal development by the International Criminal Tribunal for the former Yugoslavia (“ICTY”), in particular with respect to the definition of rape and joint criminal enterprise.44 He submits that, as such, the “principle nullum crimen sine lege does not ‘preclude the progressive development of the law by the court’”.45

B. The Defence

1. On the binding nature of the New TV Jurisdiction Appeal Decision

26. With regard to the audi alteram partem principle, the Defence contends that the Contempt Judge did not err by determining whether or not he was bound by the ratio decidendi of the New TV Jurisdiction Appeal Decision – without hearing from

41 Ibid.

42 Appeal, para. 35, quoting New TV Jurisdiction Appeal Decision, paras 41, 63-67.



45 Appeal, para. 38, quoting ICTY, Prosecutor v. Milutinović et al., Case No. IT9937AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 38.

23


the parties before deciding on the merits – as a judge must be able to determine the principles and decisions he is bound to apply before ruling on the matter. 46

27. The Defence further responds that the Contempt Judge committed no error by finding that the New TV Jurisdiction Appeal Decision was not binding on him47 as there is no formal system of precedent at the Tribunal and the New TV Jurisdiction Appeal Decision could not constitute persuasive authority.48 The New TV case should be distinguished from the case at hand as “it does not involve the same parties, cause and object”49 and the two cases are legally distinct.50

28. In addition, the Defence refers to Article 28(2) of the Statute and submits that the Rules must be interpreted in light of the Lebanese Code of Criminal Procedure.51 It argues that the Lebanese judicial system does not recognise judicial decisions as a source of law52 and that decisions will be binding only on the parties of the case.53 It quotes the Civil Division of the Court of Cassation which held that the Appeals Court is guided but not absolutely bound by the decisions of the Chambers of the Court of Cassation.54 Finally, in the Lebanese judicial system, an “isolated decision cannot be considered a legal trend”.55

29. Consequently, contrary to the Amicus Prosecutor’s submission that new facts would be the only basis for departing from the New TV Jurisdiction Appeal Decision, the Defence argues that judges from the civil law system and those of this Tribunal

46 Response, para. 14.

47 Response, paras 7-40.


49 Response, para. 11, referring to ICTY, Prosecutor v. Martić, Case No. IT-95-11-A, Decision on Veselin Šljivančanin’s Motion Requesting Simultaneous Adjudication of the Prosecutor v. Milan Martić and Prosecutor v. Mile Mrkšić and Veselin Šljivančanin Cases, 16 April 2008, paras 6-7.




53 Response, para. 24, referring to Articles 306 and 6 of the Lebanese Code of Civil Procedure.

54 Response, para. 24, referring to Court of Cassation, Civ. Div., Judgment, No.13/2013, 7 February 2013.


24


can depart from prior decisions which they find to be “erroneous in law and contrary to their convictions”.56

30. The Defence submits that should the Appeals Panel find that the principle of stare decisis is applicable at the Tribunal, it should determine whether the New TV Jurisdiction Appeal Decision was erroneous in law and if so, the Appeals Panel should depart from it.57 In any event, it asserts that the New TV Jurisdiction Appeal Decision is an “isolated and individual decision”.58

2. On the legal analysis and the applicable principles with regard to the jurisdiction over legal persons

a. On the principle of legality

31. In response to the Amicus Prosecutor’s submission that the New TV Jurisdiction Appeal Decision considered the principle of legality and its corollaries, the Defence argues that that Decision “merely” indicated that it did not create a new offence.59 It posits that the fight against impunity or the effectiveness of the jurisdiction of the Tribunal cannot be employed when interpreting the applicable law and, instead, the principle of legality should be relied upon.60 Based on the principle of strict interpretation of criminal law, it also argues that the scope of criminal provisions cannot be extended by analogy.61

32. The Defence relies on the European Court of Human Rights’ (“ECtHR”) jurisprudence that a person must know from the provision or its interpretation what constitutes a criminal offence and that the interpretation by the court must be







25


accessible and reasonably foreseeable to him.62 As there was no legal provision or a prior interpretation on this matter when the alleged acts of contempt took place, it was not foreseeable that proceedings might be initiated against Akhbar Beirut S.A.L.63

33. The Defence also posits that courts cannot create new offences by giving new definitions to a crime or by criminalising new acts.64 It also highlights the general principle of law that uncertain or ambiguous provisions must be interpreted in favour of the accused.65

b. On the interpretation of “person”

34. According to the Defence, the Amicus Prosecutor failed to demonstrate that the Contempt Judge erred in law when interpreting “person” as natural person for the purpose of Rule 60 bis. Contrary to the New TV Jurisdiction Appeal Decision, unless there is an express provision to that effect, no contemporary legal system understands the term “person” as also meaning a legal person.66

35. The Defence submits that the legal provisions and sources relied on in the New TV Jurisdiction Appeal Decision are not applicable before the Tribunal.67 In addition, the principle of effectiveness should not be used to achieve “substantive justice” in contempt proceedings.68 The New TV Jurisdiction Appeal Decision has erroneously set aside the favor rei principle.69 The Defence also argues that the

62 Response, para. 50, referring to ECtHR, M. V. Germany, No. 19359/04, Judgment, 17 December 2009, para. 119, Maktouf and Damjanović v. Bosnia and Herzegovina, Nos 2312/08 and 34179/08, Judgment (GC), 18 July 2013, para. 66, S.W. v. United Kingdom, No. 20166/92, Judgment, 22 November 1995, paras 34-35, Dragotoniu and Militari-Pidorni v. Romania, Nos 77193/01 and 77196/01, Judgment, 24 August 2007, para. 43.


64 Response, para. 52, referring to ICTY, Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002, paras 193, 196.






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teleological approach in the New TV Jurisdiction Appeal Decision contradicts its conclusion that Article 2 of the Statute does not provide for corporate criminal liability.70 On this point, the Defence refers to the spirit of the Statute as well as interviews of Mr Nicolas Michel and President Baragwanath to argue that according to the spirit of the Statute, the Tribunal was established to prosecute natural persons only.71

c. On the lack of precedents, clear provisions and specific mechanisms for proceeding against legal persons

36. The Defence recalls that although there have been contempt proceedings held against journalists, no legal persons have been indicted before any international court72 and that the New TV Jurisdiction Appeal Decision was selective in its sources and disregarded uncertainties in State practice.73 The Defence refers to the practice of Lebanon where the Court of Cassation held that “Article 210 of the Criminal Code […] has recognised, on an exceptional basis, that legal persons are criminally liable for the acts of their agents or representatives and not the other way around”.74 Finally, the Defence recalls the Contempt Judge’s comments that the Tribunal does not have the requisite and specific procedural mechanisms to charge legal persons.75


71 Response, para. 68, referring to Letter from the Chargé d’affaires a.i. of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General, UN Doc. S/2005/783, 13 December 2005; United Nations Security Council Resolution, UN Doc. S/RES/1644(2005), 15 December 2005; United Nations Security Council Resolution, UN Doc. S/RES/1664(2006), 29 March 2006; Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893,15 November 2006; Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, Addendum, S/2006/893/Add.1, 21 November 2006, p. 2, para. 1; Nicholas Michel, Le TSL ne jugera que des individus, An-Nahar (Lebanon), 7 February 2008; President Baragwanath, Interview Al-Akhbar (Lebanon), No. 1678, 6 April 2012, available at http://english.al-akhbar.com/print/5958.


73 Response, para. 77, referring to New TV Jurisdiction Appeal Decision, para. 51.



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V. DISCUSSION

A. Standard of review

37. Under Article 26 of the Statute and Rule 176 of the Rules, an appeal may be lodged on the grounds of “[a]n error on a question of law invalidating the decision” or “[a]n error of fact that has occasioned a miscarriage of justice”. The Amicus Prosecutor asserts that the Contempt Judge committed errors of law that invalidate the Impugned Decision.76

38. The Appeals Chamber has adopted the following standard of appellate review applicable to alleged errors of law as informed by the jurisprudence of other international tribunals:

A party alleging an error of law must identify the alleged error, present arguments in support of its claim, and explain how the error invalidates the decision. An allegation of an error of law that has no chance of changing the outcome of a decision may be rejected on that ground. However, even if the party’s arguments are insufficient to support the contention of an error, the Appeals Chamber may still conclude, for other reasons, that there is an error of law. […] The Appeals Chamber reviews the Trial Chamber’s findings of law to determine whether or not they are correct.77

39. As stated by the Appeals Chamber, “not every error of law leads to a reversal or revision of a decision of a Trial Chamber”.78 While we will mainly review errors of law that have the potential to invalidate the Contempt Judge’s Decision, we may also address legal issues that would not lead to the invalidation of the Impugned decision, but are nevertheless of general significance to the Tribunal’s jurisprudence.79


77 STL, The Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, F0020, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012 (“Jurisdiction Decision”), para. 10 (with reference to case-law of the ICTY, ICTR, SCSL and ICC).

78 Jurisdiction Decision, para. 10 referring to ICTY, Prosecutor v. Kunarac et al., Case Nos IT-96-23 & IT9623/1A, Judgement, 12 June 2002, para. 38.

79 Jurisdiction Decision, para. 10, fn. 31.

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B. Scope of the Appeal

40. We are seized of an interlocutory appeal filed under Rule 126 related to the Tribunal’s jurisdiction ratione personae vis-à-vis legal persons in contempt proceedings, for which certification has been granted.

41. We recall that the Contempt Judge held that the arguments relating to the Tribunal’s jurisdiction ratione materiae over the crime of contempt attracted the application of Rule 90 as a preliminary motion.80 Indeed, Rule 90 (A) (i) (challenges to jurisdiction) “refers exclusively to a motion that challenges an indictment on the ground that it does not relate to the subject-matter, temporal or territorial jurisdiction of the Tribunal [...]”.81 The Contempt Judge considered that the arguments relating to the Tribunal’s jurisdiction ratione personae over legal persons did not fall under Rule 90 as this was not a ground listed in Rule 90 (E). Instead, he held that these arguments attracted the application of Rule 12682 as “motions other than preliminary motions”.83 We concur with this approach which is reflective of the Appeals Chamber’s approach to jurisdictional arguments.84

42. However, the Impugned Decision held that “an interlocutory appeal under Rule 90 (B) (i) may be directed against the decision as a whole”85 and because the different parts of the Impugned Decision “should not be read in isolation, additional certification [wa]s not required”. 86 Nevertheless, the Contempt Judge proceeded to elucidate the Certified Issue proprio motu by addressing the certification elements contained in Rule 126 (C).87 This was done in order “to avoid any doubt, and in the event the Appeals Panel […] disagrees with this [Rule 90] analysis [...]”.88


81 Rule 90 (E) (emphasis added).


83 Rule 126 (A).

84 Jurisdiction Decision, paras 11-23.



87 Impugned Decision, paras 96-97.

88 Impugned Decision, para. 96 (emphasis added).

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43. Having considered the Impugned Decision’s reasoning and the content of the relevant Rules, the Appeals Panel does not concur with the Contempt Judge’s approach. In circumstances where a motion contains a mix of issues that can be appealed as of right – such as jurisdictional challenges as defined in Rule 90 (E) – and those that cannot, the correct approach is to differentiate the application of the Rules depending on the nature of the matters raised. In the present case, this means that only those matters concerning the Tribunal’s jurisdiction ratione materiae could be appealed as of right. Arguments relating to the Tribunal’s jurisdiction ratione personae required certification, which in this case was granted by the Contempt Judge proprio motu.

44. Accordingly, we consider that the Appeals Panel’s jurisdiction is limited to those issues that are in fact certified.89 In this case, our jurisdiction is therefore limited to:

[W]hether the Tribunal in exercising its inherent jurisdiction to hold contempt proceedings pursuant to Rule 60 bis has the power to charge Akhbar Beirut S.A.L., a legal person, with contempt.90

All arguments relating to issues that have not been certified are liable to be summarily dismissed.91

C. Merits of the Appeal

45. The question before the Appeals Panel is whether the Contempt Judge erred in finding that the Tribunal lacks jurisdiction to charge Akhbar Beirut S.A.L., a legal person, with contempt. For the reasons discussed below, we conclude that the Contempt Judge erred and we reverse the Impugned Decision.

89 See New TV Jurisdiction Appeal Decision, para. 25, referring to STL, The Prosecutor v. Ayyash et al., STL1101/T/AC/AR126.6, F0003, Decision on Appeal by Counsel for Mr Oneissi Against Pre-Trial Judge’s “Decision on the Oneissi Defence’s Request for Disclosure Regarding a Computer”, 12 May 2014, para. 11.

90 Impugned Decision, para. 97, Disposition.

91 See New TV Jurisdiction Appeal Decision, para. 25 referring to STL, The Prosecutor v. Ayyash et al., STL1101/T/AC/AR126.7, F0013, Decision on Appeal by Counsel for Mr Merhi Against Trial Chamber’s “Decision on Trial Management and Reasons for Decision on Joinder”, 21 May 2014, para. 17.

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1. The interpretation of the word “person” in Rule 60 bis in light of the principle of legality

a. Whether the Contempt Judge erred in considering that there is no ambiguity in the term “person” under Rule 60 bis

46. The Contempt Judge considered that Rule 60 bis “provides for criminal responsibility of natural persons who have knowingly and wilfully interfered with the Tribunal’s administration of justice”.92 He emphasized several times that this Rule is clear and unambiguous. In his view:

[W]ith the word “person” in Rule 60 bis, the Plenary expressed a clear and precise concept, given that “[a]ny person who” clearly refers to “person” in its natural meaning, namely, a human being.93

He further mentioned:

If we understand “ambiguous” as a concept, term or phrase with more than one meaning, then in my view the expression cannot be ambiguous, because – in the absence of any additional qualification – it only has one meaning, related to human beings.94

Similarly, he said:

[T]he Rule is anchored to a concrete and well-defined concept (the term “person”), with clear contours.95

47. We note that the Contempt Judge’s view that there is no ambiguity under Rule 60 bis is contrary to his prior view expressed in the New TV Jurisdiction Decision96





96 New TV Jurisdiction Decision, para. 70 (inquiring as to “whether Rule 60 bis can be said to implicitly allow prosecution of legal persons for contempt and obstruction of justice”).

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and in the Impugned Decision.97 In both decisions, the Contempt Judge considered whether the term “person” could have a different meaning in its implicit reading and in doing so, he acknowledged the lack of clarity or uncertainty of the term.98

48. We find that if the word “person” can implicitly (rather than explicitly) refer to legal persons, it follows that the term “person” is subject to interpretation. A word that can potentially have more than one meaning in a legal context is ambiguous. Furthermore, the Contempt Judge twice granted proprio motu certification for appeal of the issue of the Tribunal’s jurisdiction to charge legal person with contempt, at the heart of which is the interpretation of the word “person” in Rule 60 bis.

49. We consider that the Contempt Judge erred in concluding that Rule 60 bis is not ambiguous insofar as it relates to the word “person”.

50. In any event, even if, as the Impugned Decision suggests, there were no ambiguity present, that would by no means mark the end of the discussion. In this respect, we note the Appeals Chamber’s previous view on this subject:

Interpretation is an operation that always proves necessary when applying a legal rule. One must always start with a statute’s language. But that must be read within the statute’s legal and factual contexts. Indeed, the old maxim in claris non fit interpretatio (when a text is clear there is no need for interpretation) is in truth fallacious, as has been rightly emphasised by distinguished scholars.99

51. Further, the Appeals Chamber recognised that “society alters over time and interpretation of a law may evolve to keep pace”, and as such “a statute is presumed

97 Impugned Decision, para. 45 (original emphasis):Even if one were to resort to interpretation as to what Rule 60 bis might implicitly mean, […] an interpretation of

‘any person who’ encompassing legal persons would not sufficiently put on notice a corporate accused that it could incur criminal liability.

98 It also runs counter to Judge Baragwanath’s initial decisions in lieu of indictments that initiated both contempt cases. He too identified that “[o]n its face, Rule 60 bis neither embraces nor rejects such liability in the contempt context. […] No other provision of Rule 60 bis in terms limits the Rule’s application to natural persons”. See New TV Indictment Decision, para. 19; see also Indictment Decision, para. 19.

99 STL, The Prosecutor v. Ayyash et al., STL-11-01/I, F0936, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011 (“Interlocutory Decision”), para. 19 (footnote omitted).

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to be ‘always speaking’”.100 The Appeals Panel fully concurs with the reasoning of the Appeals Chamber. This is of course subject to limitations, such as the nullum crimen sine lege principle, a matter to which we now turn.

b. Whether the Contempt Judge erred in his application of the principle of legality

52. The Contempt Judge considered that interpreting “any person who” in Rule 60 bis as including legal persons violates the principle of nullum crimen sine lege and implies that the prior Appeals Panel ‘created’ an offence via the interpretation of Rule 60 bis.101

53. This, in our view, is incorrect. Rather, the Appeals Panel in the New TV case interpreted who could be criminally responsible under Rule 60 bis, but did not create a new crime, nor did it alter the mens rea or the actus reus of an already existing crime. The lack of specificity as to who can potentially be prosecuted for contempt results from the ambiguity of Rule 60 bis, which, in turn, required interpretation consistent with Rule 3.

54. We consider that the Contempt Judge’s application and conclusion with respect to the nullum crimen sine lege principle to this case was erroneously based on his interpretation of the New TV Jurisdiction Appeal Decision. He asserted that specificity requires “the precise identification of the ingredients of the crime and, among them, of who can potentially be the accused in a criminal case”.102 He concluded that “since the term ‘person’ is part and parcel of the definition of an element of the crime of contempt, an expansive interpretation of this term collides with the fundamental rule of nullum crimen sine lege”.103 In his view, since a “person” under Rule 60 bis is confined to natural persons, the New TV Jurisdiction Appeal Decision violated the nullum crimen sine lege principle.

100 Id., para. 21 (footnote omitted).

101 Impugned Decision, paras 39-42.

102 Impugned Decision, para. 32 (i).


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55. This is an error. While the status, identity or even the function of the perpetrator may indeed, depending on the offence, be an element of the crime, – such as the crime of high treason committed by “citizens” who betray their country for example, – that is simply not the case here. The actus reus of the offence of contempt are enumerated in, but are not limited to, Rule 60 bis (A) (i) to (vii), whilst the mens rea is found in Rule 60 bis (A): the intention to commit that criminal conduct while “knowingly and wilfully interfer[ing] with [the] administration of justice”. In neither of these two ingredients which collectively constitute the crime of contempt, is the status of the perpetrator of any relevance. In other words, contrary to the Impugned Decision, the status of the perpetrator as a legal or physical person is not, as such, an element of the crime under Rule 60 bis.

c. Foreseeability of the application of Rule 60 bis to legal persons and consideration of Lebanese Law

56. The Contempt Judge considered that the application of Rule 60 bis to legal persons would violate the rights of the accused by making the contours of the offence of contempt unforeseeable. He held the following:

[I]f it were true that the provision in question […] is ambiguous, this lack of clarity would amount to an infringement of the nullum crimen sine lege principle and particularly its corollary, the principle of specificity (nullum crimen sine lege certa), unless it is interpreted strictly in favour of the accused. This is because ambiguity in the wording of a law and vagueness of legal notions could make the crime in question unforeseeable at the time of the conduct. This, in practice, would prevent potential accused from knowing in advance if their conduct constitutes an offence.104

57. We recall that, unlike other ad hoc tribunals, this Tribunal is primarily mandated to apply Lebanese criminal law and not exclusively international law.105

104 Impugned Decision, para. 39, footnotes omitted.

105 Interlocutory Decision, para. 33: [I]t is indisputable that under Article 2 of the Statute, the Tribunal is to apply Lebanese law as the substantive

law governing the crimes prosecuted before it. In this regard, our Tribunal is different from most international tribunals. These tribunals apply international law when exercising their primary jurisdiction […] but may need to have recourse to national law incidentally (incidenter tantum), in order to decide whether the precondition for the applicability of an international rule has been satisfied […]. In contrast, under our Statute we are called upon

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As such, the Tribunal has consistently looked to the Lebanese legal order to inform its work in various areas – even when it does not directly concern the offences over which the Tribunal has primary jurisdiction.106 In that respect, we concur with the holding of the New TV Jurisdiction Appeal Decision that it is foreseeable under Lebanese Law that a legal person owning a journalistic publication or a television station may be held criminally liable for contempt provided that actual complicity in the crime committed is proven.107 Indeed, article 26 of Law on Publications as amended by Legislative Decree No. 104/77 (30 June 1977) states that:

Liability for penalties imposed as a result of crimes committed by means of journalistic publications shall be incumbent upon the responsible executive and the writer of the article as the principal perpetrators. In this regard, the provisions of the [Lebanese] Criminal Code relating to co-perpetration or criminal complicity shall also apply. The owner of the journalistic publication shall be held jointly liable in respect of civil claims and legal costs. He shall not incur criminal liability unless his actual complicity in the crime committed is proven.

primarily to apply national law to the facts coming within our jurisdiction. In other words, we are mandated to apply national law – in particular, Lebanon’s – principaliter (that is, in the exercise of our primary jurisdiction over particular allegations).

106 See for example, STL, In the matter of El Sayed, CH/AC/2011/01, Decision on Partial Appeal by Mr. El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, 19 July 2011, paras 53-61 (considering Lebanese law on the matter of a suspect’s access to his criminal file during an investigation); STL, The Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, F0020, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal” – Separate and Partially Dissenting Opinion of Judge Riachy, 24 October 2012, para. 7 (considering Lebanese law on the matter of the admissibility of an appeal); STL , The Prosecutor v. Ayyash et al., STL-11-01/PT/AC, F1178, Decision on Application by Counsel for Messrs Badreddine and Oneissi Against President’s Order on Composition of the Trial Chamber of 10 September 2013, 25 October 2013, para. 16 (considering Lebanese law on the matter of whether the Defence could challenge the irregular composition of a bench).

107 New TV Jurisdiction Appeal Decision, paras 69-71. See also Lebanese Court of Cassation, Criminal Chamber 9, Decision No. 21/2014, 8 May 2014 (published in Almarjaa-Cassandre); Lebanese Court of Cassation, Criminal Chamber 9, Decision No. 41/2014, 10 July 2014 (published in Almarjaa-Cassandre). In these two decisions, the legal person was not held criminally liable because its complicity in the crime had not been proven. A contrario, if complicity had been established, there would have been no legal impediment on the legal person being held criminally responsible.

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And article 210, paragraph 2 of the Lebanese Criminal Code reads:

Legal persons shall be criminally responsible for the actions of their directors, management staff, representatives and employees when such actions are undertaken on behalf of or using the means provided by such legal persons.

58. Consequently, under Lebanese law, a legal person can be criminally liable for its own actions as well as the actions of its agents and employees acting on its behalf or using its means. Furthermore, a legal person may be criminally liable for similar offenses related to the administration of justice. For example, according to the Lebanese Law on Publications, all publications are prohibited from publishing:

The facts of felony and misdemeanour investigations prior to their being read out in a public hearing […];

The facts of investigations by the Central Inspection and Judicial Inspection Department, with the exception of decisions and statements issued by the aforementioned Department;

Letters, documents, files, or any parts of files of any public administrations and which are affixed with a stamp containing the word “Confidential […];

The facts of any legal case the publication of which the court has prohibited […].108

59. It would be an oddity for a Lebanese company to face criminal sanction in Lebanon for interfering with the administration of justice with respect to cases before Lebanese courts and at the same time enjoy impunity for similar acts before an internationalised Tribunal guided by Lebanese law in carrying out its judicial work. In light of Lebanese law on this subject and the unique link between that body of law and this Tribunal, it was not unforeseeable for a Lebanese company to be prosecuted for contempt before the Tribunal under Rule 60 bis.

108 Article 12 of the Lebanese Law on Publications as amended by the Legislative Decree No. 104/77 (30 June 1977).

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d. Interpretation, analogy and the progressive development of the law

60. According to the Contempt Judge, interpreting the Rules in a way that permits the charging of legal persons with contempt violates the rights of the accused and constitutes an application of the doctrine of substantive justice that allows judges to expand criminal law through analogy.109

61. We understand that in its consideration of the term “person”, the previous appeals panel in the New TV Jurisdiction Appeal Decision did not apply an interpretation by analogy or the doctrine of substantive justice. It simply applied the principles of interpretation under Rule 3 in order to resolve an ambiguity in an existing criminal provision in a manner compatible with international criminal law. The process of bringing clarity to the law through interpretation is an ordinary and core function of the judiciary. The Appeals Panel concurs with the finding of the New TV Jurisdiction Appeal Decision that “this outcome does not create any new and/or unforeseeable crime and is therefore consistent with the rights of the accused as contained in Rule 69”.110

62. In the view of the Appeals Panel, the Impugned Decision confuses analogy with interpretation. As one scholar has explained:

Interpretation and analogy share the same logical structure […] insofar as interpretation is also arrived at by way of a process of analogy; namely it is based on identifying points of contact, correspondences and interconnections on the one hand, and differences and discordance on the other, in order to determine whether or not the law which is being interpreted covers the particular factual situation which must be judged. But between the two, there is a qualitative difference […] Interpretation exists when one remains within the confines whereby it is still possible to give a literal meaning […] to the terms of a provision; analogy exists when one has gone beyond those confines – in this case what we have is nothing less than the creation of a new law by the judge. In other words, analogy goes beyond interpretation and is based


110 New TV Jurisdiction Appeal Decision, para. 91.

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on a legislative shortcoming which has become evident at the very time of interpreting and applying the law within the legal system.111

63. In any event, the Impugned Decision’s understanding of analogical reasoning is mistaken in part. Whilst the Impugned Decision was correct in stating that the nullum crimen sine lege principle forbids “[t]he use of analogy in criminal law [which] entails convicting and punishing an accused on the basis of a legal provision that is formally inapplicable […] but covers over similar cases (analogia legis)”, it was an error to then state that analogia juris (the application of a rule by reference to general principles of the legal system in question) was also forbidden.112 In the words of the late President Cassese:

ICL [International Criminal Law] only prohibits the so-called analogia legis (that is, the extension of a rule so as to cover a matter that is formally unregulated by law). It does not bar the regulation of a matter not covered by a specific provision or rule, by resorting to general principles of ICL, or to general principles of criminal justice, or to principles common to the major legal systems of the world (so-called analogia juris). National and international criminal courts have repeatedly affirmed that it is permissible to rely upon such principles for establishing whether an international rule covers a specific matter in dispute. […] It should, however, be clear that drawing upon general principles should never be used to criminalize conduct that was previously not prohibited by a criminal rule. […] [T]his approach may only be resorted to for the interpretation of existing rules, not for the creation of new classes of criminal conduct.113

64. Further, the Appeals Panel notes that a progressive approach to legal interpretation is compatible with human rights standards and has been long practiced at the international criminal tribunals.114

111 Mario Romano, Commentario sistematico del codice penale, Vol. I (Giuffrè 1987), pp. 45-46 (emphasis omitted). STL unrevised translation.

112 Impugned Decision, para. 32(ii). As the Impugned Decision put it, the approach of the New TV Jurisdiction Appeal Decision “is a typical example of interpretation by analogy, because it means to convict and punish an accused on the basis of a legal provision that is formally not applicable in the particular context of a case but is derived from general principles of other legal systems [...]” Impugned Decision, para. 43.

113 Antonio Cassese et al., Cassese’s International Criminal Law, 3rd ed. (Oxford University Press ), p. 34.

114 See for example the ICTY Appeal Chamber’s interpretation of the term “nationals” in Article 4 of the Fourth Geneva Convention (1949) in Tadić. In that case, it was held that this term refers not to nationality, but

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65. We stress, however, that the interpretation of a criminal provision should be consistent with the essence of the offence, its object and purpose, and should be reasonably foreseen by the accused in order to align with international human rights standards. This was the case with respect to the New TV Jurisdiction Appeal Decision. We concur with the European Court of Human Rights position in that regard:

However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.115

instead hinged on substantial relations and allegiance more than formal bonds, despite the relative clarity as to when a person is a “national” or not of a State. We emphasize that in this example, unlike Rule 60 bis, the status of the victim(s) as a “national” is an element of the offence under Article 2 of the ICTY Statute: ICTY, Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, paras 163-166. Further, in a previous jurisdictional decision in the Tadić case, the view was expressed, in a progressive interpretation of the law at that time, that war crimes could be committed in international as well as non-international armed conflicts. The Appeals Panel notes that in light of the charges against Mr Tadić and the state of international law in 1995, the ambiguity with respect to this question was not resolved in a manner that favoured the accused: ICTY, Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras 96-136. This holding, and its prompt acceptance by States, has been described by one academic as an example of a “Grotian Moment” in international law. See Michael P. Scharf, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments (Cambridge University Press 2013), pp. 139-156. In Hadžihasanović, the ICTY Appeals Chamber similarly determined the existence of command responsibility in non-international armed conflicts, which the late President Cassese stated was warranted by “an ‘adaptation’ of existing rules (corroborated by a logical construction)”: Antonio Cassese et al., Cassese’s International Criminal Law, 3rd ed. (Oxford University Press), p. 32. See ICTY, Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, paras 10-36.

115 ECtHR, S.W. v. The United Kingdom, Application No. 20166/92, Judgment, 22 November 1995, para. 36; ECtHR, C.R. v. The United Kingdom, Application No. 20190/92, Judgment, 22 November 1995, para. 34.

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2. The similarities between the current Appeal’s Panel Decision and the New TV Jurisdiction Appeal Decision

66. The Contempt Judge found that he was not formally bound by the ratio decidendi of the New TV Jurisdiction Appeal Decision positing that the Tribunal has jurisdiction to charge legal persons with contempt.116 He further held that the specific facts of the present case must be distinguished from the New TV case:

In particular, the charges here are directed against both Akhbar Beirut S.A.L. as the legal person doing business as the newspaper Al Akhbar and Mr Al Amin, as the newspaper’s editor in-chief and chairman of the board of directors. In these circumstances the prosecution of a natural person alone can hardly be said to “potentially lead to unacceptable impunity for criminal actions”, which was one of the rationales of the Appeals Panel to uphold corporate criminal liability in case STL-14-05.117

67. We note that, contrary to the finding of the Contempt Judge, the legal issue that arose in both the New TV case and in the present case concerning the jurisdiction of the Tribunal to charge legal persons with contempt cannot be distinguished. The fact that the newspaper’s editor in-chief and chairman of the board of directors of Al Akhbar stands as an accused in the present case does not mean that the impunity gap referred to in the New TV Jurisdiction Appeal Decision – i.e. impunity of the legal person - is nullified.

68. We emphasise that the legal person Akhbar Beirut S.A.L. is a distinct entity from its managers and employees. The mere fact that Mr Al Amin is senior representative of Akhbar Beirut S.A.L. does not mean that he is the only person (potentially) responsible for the charged offences. Prosecuting a legal person is not the equivalent of prosecuting the senior representative of a corporation as a natural person. This, in our view, is identical to the New TV case, where a natural person and a legal person are jointly charged with contempt. In sum, we underline that there are no distinguishing features in the present case from those in the New TV case.


117 Impugned Decision, para. 73, footnotes omitted.

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69. In any event, as recalled by the Amicus Prosecutor, the Contempt Judge had himself acknowledged the direct link between the two cases on the jurisdictional issue and thought that “it might be wise to await the decision by the Appeal Panel on the Amicus challenge to [his] decision in case 14-05 [New TV case]”118, before issuing a decision on the preliminary motion challenging jurisdiction in the present case.

70. Furthermore, Article 16 (1) of the Statute provides that “[a]ll accused shall be equal before the Special Tribunal” whereas following the Contempt Judge’s reasoning, the Tribunal would try New TV S.A.L. for Contempt, while the charges against Akhbar Beirut S.A.L. would be dismissed. This would be difficult to reconcile with the principle of equality of all accused before the Tribunal.

71. In these circumstances, regardless of the discussion on the applicability of the stare decisis principle raised in the Impugned Decision, the Appeals Panel, Judge Nosworthy dissenting, considers that it would have been preferable and important for judicial certainty as well as to avoid the fragmentation of the law, for the Contempt Judge to have followed the conclusions of the New TV Jurisdiction Appeal Decision.

VI. CONCLUSION

72. In light of the above, we consider that the current Appeal attracts the same reasoning as the New TV Jurisdiction Appeal Decision, since the legal issue at stake is exactly the same: whether the Tribunal in exercising its inherent jurisdiction to hold contempt proceedings pursuant to Rule 60 bis, has the power to charge a legal person with contempt. We see no reason to depart from the reasoning adopted in the New TV Jurisdiction Appeal Decision. As a result, the Impugned Decision is invalidated for the same reasons that the New TV Jurisdiction Decision was invalidated.

73. In particular, we find that the Contempt Judge erred in considering that Rule 60 bis is a clear and unambiguous provision that provides for criminal responsibility for contempt for natural persons only. We consider that the word “person” in Rule 60 bis is generic and does not refer strictly to natural persons.

118 STL-14-06, In the case against Akhbar Beirut S.A.L. and Al Amin, Transcript of 12 September 2014, p. 24 (EN).

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It does not explicitly include or reject legal persons. This ambiguity justifies an interpretation according to the Rules. We refer and adhere to the interpretation of the term “person” adopted by the previous appeals panel in the New TV Jurisdiction Appeal Decision, which includes legal persons as well as natural persons.119

74. We concur with the New TV Jurisdiction Appeal Decision that the “interpretation of Rule 60 bis does not create a new offence where there was none before – therefore, it is not in violation of the principle of nullum crimen sine lege”.120 We further consider that the Impugned Decision’s arguments related to foreseeability isolate the Tribunal’s operations from Lebanese law and jurisprudence by which this Tribunal is guided in its work. Consistent with the analysis contained in the New TV Jurisdiction Appeal Decision and the reasons previously discussed, we hold that the application of Rule 60 bis to legal persons is consistent with the essence of the offence, its object and purpose, and was reasonably foreseeable. As such, the Contempt Judge erred in holding to the contrary.

75. Consequently, we reverse the Impugned Decision and reinstate the Order in Lieu of Indictment of 31 January 2014.

119 New TV Jurisdiction Appeal Decision, paras 33-74.


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DISPOSITION

FOR THESE REASONS,

PURSUANT to Rules 60 bis and 126;

THE APPEALS PANEL

GRANTS the Appeal;

REVERSES the Impugned Decision;

REINSTATES the Order in Lieu of an Indictment of 31 January 2014;

Judge Chamseddine appends a separate opinion;

Judge Nosworthy appends a separate and partly dissenting opinion.

Done in Arabic, English and French, the English version being authoritative. Leidschendam, 23 January 2015

Afif Chamseddine, Presiding Judge

Janet Nosworthy, Judge Ivana Hrdličková, Judge

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Separate Opinion of Judge Afif Chamseddine

1. I voted in favour of reversing the Impugned Decision. But I would like, in this separate opinion, to raise a specific matter worthy of discussion: the possible referral of part of the case, related to the legal person, to the Lebanese authorities.

2. In his Preliminary Motion before the Contempt Judge, the Defence Counsel had asked that “the case against Mr Ibrahim Mohamed Ali Al Amin be referred to the authorities of the Lebanese Republic, so that those authorities might submit this case to the competent national courts”.1 The Contempt Judge found no basis for considering such a referral because, among other reasons, the “Tribunal’s ability to ensure the integrity of its proceedings cannot and should not be dependent on action by, or the standards of, another judicial system”.2

3. In my view, the Contempt Judge should have given more consideration to a possible referral of part of the case to the Lebanese authorities, especially after he had decided that the Tribunal had no jurisdiction to prosecute Akhbar Beirut S.A.L., a legal person.

4. The prosecution of a crime is an issue of public order. When seized of a criminal case, a Judge should not close a file for lack of jurisdiction without indicating an alternative competent authority that could potentially prosecute the alleged crime.

5. The application of the principle of legality by the Contempt Judge in the Impugned Decision should not lead to impunity or to exemption from punishment, assuming that criminal liability is established. No crime should remain unpunished.

1 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/CJ, F0055, Preliminary Motion Presented by Counsel Assigned to Represent Akhbar Beirut S.A.L. and Mr Ibrahim Mohamed Ali Al Amin, 18 August 2014, p. 22.


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6. Akhbar Beirut S.A.L. resides in Lebanon and the crime was committed in Lebanon, which would give jurisdiction to the Lebanese judiciary to prosecute the alleged crime, according to article 9 of the Lebanese Code of Criminal Procedure.3

7. Therefore, I consider that the Contempt Judge could have at least informed the Lebanese authorities that he considers having no jurisdiction to prosecute a legal person for contempt, and then it would have been for them to decide what to do with this information.

Afif Chamseddine, Judge

3 Article 9 of the Lebanese Code of Criminal Procedure stipulates: “The public prosecution shall be initiated before the criminal authority which has jurisdiction over the area in which the offence was committed, the place of residence of the defendant, or the place in which the defendant was arrested”.

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Separate and Partially Dissenting Opinion of Judge Nosworthy

1. Introduction

1. I write this separate and partially dissenting opinion confined to the issue of whether or not the Contempt Judge erred in law when, in the Impugned Decision, he departed from the New TV Jurisdiction Appeal Decision with respect to the Tribunal’s jurisdiction ratione personae in contempt proceedings under Rule 60 bis (A).

2. While I agree with the outcome of the present Appeal, I differ fundamentally from my learned judicial colleagues in their view that it would merely have been ‘preferable’ that the Contempt Judge follow the New TV Jurisdiction Appeal Decision on the issue of the Tribunal’s jurisdiction ratione personae.1 Instead, I consider that it has binding and obligatory force for the reasons set forth in this opinion and that the Contempt Judge was not entitled to disregard it.

3. I recall that in the Impugned Decision, the Contempt Judge, acting proprio motu, undertook a critical examination of the New TV Jurisdiction Appeal Decision in order to ascertain whether it had binding and compelling force on him. It is of some relevance and materiality that the New TV Jurisdiction Appeal Decision concerned the very same issue with which the Appeals Panel is seized in this case: the Tribunal’s jurisdiction ratione personae over legal persons in contempt cases under Rule 60 bis (A) in factual circumstances where both cases are virtually indistinguishable. The Impugned Decision held that as a matter of law, the Contempt Judge was not obliged to follow the New TV Jurisdiction Appeal Decision and resorted to the reasoning and outcome in the New TV Jurisdiction Decision which a prior appeals panel had previously rejected. As a consequence, the Contempt Judge dismissed all charges against the corporate Accused in the present proceedings, Akhbar Beirut S.A.L. In doing so, the Contempt Judge committed errors of law invalidating the Impugned Decision.

1 STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 23 January 2015 (“Akhbar Beirut Jurisdiction Appeal Decision”), para. 71.

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4. I am of the view that the Contempt Judge’s refusal to follow the prior ratio decidendi of the New TV Jurisdiction Appeal Decision amounts, in and of itself, to an error of law invalidating the Impugned Decision. This error inevitably resulted in him resolving the issue of the Tribunal’s jurisdiction ratione personae over legal persons under Rule 60 bis (A) erroneously and with equal invalidating effect.

2. Preliminary matter: Whether the Contempt Judge breached the audi alteram partem principle in failing to hear the parties on the binding effect of the New TV Jurisdiction Appeal Decision before handing down the Impugned Decision

5. The Amicus Prosecutor contends that the Contempt Judge violated the audi alteram partem principle and the rule of law as the parties were deprived of the opportunity to make submissions on the issue of the binding effect of the New TV Jurisdiction Appeal Decision before the Impugned Decision was handed down.2 Regrettably, the majority did not address this argument, despite it being raised by the Amicus Prosecutor. In my view, this matter raises the question of whether, in the circumstances of this case, the Contempt Judge was duty bound to hear the parties before rendering the Impugned Decision in so far as it concerned the question of the precedential value of the New TV Jurisdiction Appeal Decision which in turn materially affected its outcome.

6. I note that the Appeals Chamber has previously recognized the importance and relevance of the audi alteram partem principle before this Tribunal:

Pursuant to the audi alteram partem principle, a decision that is not entirely and unconditional [sic] favourable to an individual must not be taken without allowing that individual to state their position on that issue. In a criminal trial, the right to adversarial trial means that “both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party”[…].3

2 Appeal, para. 15.

3 STL, The Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, F0009, Decision on Appeal by Legal Representative of Victims Against Pre-Trial Judge’s Decision on Protective Measures, 10 April 2013, para. 28, fn. 64 (citation omitted).

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7. I fully concur. Nevertheless, I also recognize the inherent power of a Chamber to raise matters proprio motu where it believes it is necessary in the exercise of its judicial discretion. This was stated by the ICTY Appeals Chamber in Erdemović4 and has been exercised countless times since. However, it is important to stress that the exercise of this inherent power is not unlimited.

8. In Jelisić, the ICTY Office of the Prosecutor raised the violation of the audi alteram partem principle on appeal after the Trial Chamber had denied its motion to be heard on whether the evidence it had presented at trial was sufficient to sustain a conviction for genocide. As the ICTY Appeals Chamber correctly stated:

[T]he fact that a Trial Chamber has a right to decide proprio motu entitles it to make a decision whether or not invited to do so by a party; but the fact that it can do so does not relieve it of the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made. Failure to hear a party against whom the Trial Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial. The Rules must be read on this basis, that is to say, that they include the right of the parties to be heard in accordance with the judicial character of the Trial Chamber. […] The prosecution therefore had a right to be heard on the question of whether the evidence was sufficient to sustain a conviction; it was denied that right.5

9. Indeed, when a Chamber raises legal issues proprio motu that have not been previously submitted by the parties, it is common practice for that Chamber to ask the parties to address them on such matters before a decision or judgment is rendered. In these instances, it is particularly important, as the Jelisić case states, to hear the party against whom the judge was inclined to rule. In this respect, I see no reasons why this notion would not apply here as argued to the contrary in the Defence’s Response.6

4 ICTY, Prosecutor v. Erdemović, Case No. IT-96-22-A, Appeal Judgement, 7 October 1997, para. 16: “The Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties”.

5 ICTY, Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeal Judgement, 5 July 2001 (“Jelisić Appeal Judgment”), paras 27, 28 (footnotes omitted).


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10. In this case, the parties were not formally put on notice by the Contempt Judge that the precedential value of the New TV Jurisdiction Appeal Decision was a live issue in the litigation before the Impugned Decision was handed down. Further, and as the Amicus Prosecutor highlights,7 the Contempt Judge informed the parties that he would wait until the New TV Jurisdiction Appeal Decision was handed down before issuing the Impugned Decision.8

11. In my view, the actions of the Contempt Judge created a reasonable expectation that he would follow the ratio decidendi of the New TV Jurisdiction Appeal Decision in this case. Indeed, unless he felt compelled to follow its outcome, there would appear to be little reason to wait for the New TV Jurisdiction Appeal Decision to be handed down – the Impugned Decision could have been rendered regardless of the outcome of the jurisdictional appeal in the New TV case.

12. While it could be said that, under the circumstances, the parties were aware that the New TV Jurisdiction Appeal Decision would play a role, in some form or another, in the Impugned Decision, this was only apparent after they had submitted their filings on the issue of the Tribunal’s jurisdiction ratione personae over legal persons in contempt proceedings. The parties simply had no way of knowing in advance that the Impugned Decision would be rendered after the New TV Jurisdiction Appeal Decision.

13. Given that the Contempt Judge, seized of a motion challenging the Tribunal’s jurisdiction ratione personae in this case, had not been briefed by the parties on the question of the precedential value, if any, of the New TV Jurisdiction Appeal Decision, and in light of the aforementioned Jelisić case, it was in the interests of justice that the parties be heard on the matter. As such, it was the Contempt Judge’s duty to hear the parties – particularly the party against whom he was inclined to rule. This is even more pertinent in instances where a judge issues a decision that has

7 Appeal, para. 13.

8 STL-14-06, In the case against Akhbar Beirut S.A.L. and Al Amin, Transcript of 12 September 2014, p. 24 (EN), lines 7-12: “So that any disclosure has been made and you are happy about your proposed timeline, whereas the Defence counsel proposes an alternative timeline, so that I will give the dead-lines after I have issued my decision on the preliminary motion challenging jurisdiction. I think it might be wise to await the decision by the Appeals Panel on the Amicus challenge to my decision in case 14-05 [the New TV case]”.

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no contemporary equal – I can find no prior decision in international criminal law that has so expressly and categorically refused to follow the decision of a superior chamber on a specific legal issue as the Impugned Decision purported to do in the present case.

14. In these circumstances and for the reasons expressed above, I find that the Contempt Judge violated the audi alteram partem principle by not affording the Amicus Prosecutor and the Defence the opportunity to be heard on the matter of the precedential value of the New TV Jurisdiction Appeal Decision before reaching his contrary finding. This was markedly against the interest of the Amicus Prosecutor. It occasioned prejudice to the presentation of argument and of his case, one of the fundamental bases of natural justice, and is contrary to the rule of law.

15. The subsequent question that arises is that of an appropriate remedy. In this respect, in an appellate function, a court is afforded some discretion.9 In exercising this discretion, I am cognizant of the various factors at play that are relevant in this case. Chief among them is the fact that the Amicus Prosecutor has ultimately succeeded in this appeal: the Impugned Decision has been overturned and the Appeals Panel has reinstated the Order in Lieu of an Indictment of 31 January 2014. In my view, this outcome serves to redress the unfairness that has arisen from the conduct of the proceedings by the Contempt Judge. No useful or practical purpose would be served by sending this case back to the Contempt Judge on a limited issue only to have another round of appellate litigation on the same matter. Such a process would be an unjustified waste of the Tribunal’s valuable resources. Indeed, the issue of remedy could even be said to be moot, considering that the disposition in this case aligns with the relief requested by the Amicus Prosecutor in the Appeal.10

9 See for example ICTR, Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Appeal Judgement, 23 May 2005, para. 324 (reducing the sentence of the accused despite the absence of any express provision to that effect); ICTR, Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 75 (providing financial compensation or a reduction in the accused’s sentence despite the absence of any express provision to that effect). See also Jelisić Appeal Judgment, para. 73.

10 See Appeal, para. 40.

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16. For these reasons, I would hold that while the Contempt Judge erred in his conduct of the proceedings, the Amicus Prosecutor has been remedied by the final outcome of this appeal. In these circumstances, this serves as a sufficient and adequate remedy.

3. Discussion: the need to determine the issue of the precedential value of the New TV Jurisdiction Appeal Decision, the effect of not doing so and the binding force of that decision

17. I unreservedly consider it a duty and absolutely essential that the Appeals Panel should determine the issue of the precedential value of the New TV Jurisdiction Appeal Decision as there is no third tier appellate body or other higher judicial entity to which the Amicus Prosecutor may resort as matter of principle and procedure.11 I have considered too that beyond an appeal as provided for in Rule 60 bis (M), there is no other mechanism or provision that offers the opportunity for a final decision on the issue to satisfy the requirements of finality and certainty.

18. It is also crucial that there be a clear and definite ruling in Rule 60 bis proceedings generally, given the high importance of the proper administration of justice at the Tribunal, the integrity of the judicial process and precepts of fairness as it relates to the guaranteed rights of suspects and accused persons as well as the rights and interests of parties to contempt proceedings. I have not overlooked the Tribunal itself and its legitimacy.

19. In addition, I have considered that the potential practical consequences of not so doing are farreaching and may result in perpetual conflict and multiplicity, to the detriment of the proper administration of justice. If each contempt judge sitting at first instance in a new contempt case may disregard prior decisions of other appeals panels, then the probability looms of several different cases with different outcomes under Rule 60 bis (A).

11 See Appeal, paras 12-25; Response, paras 7-39.

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20. There is an acute probability and dangerous risk of a future, incongruous judicial scenario with some contempt judges finding that legal persons may be charged and, by contrast, others finding that they ought not to be charged.

21. There would also be no clear or definitive ratio decidendi to apply in view of the fact of multiplicity, as any particular decision would only be binding within the limited ambit of a specific case and need not be followed in any subsequent case. This raises the spectre of different ratio decidendi, each becoming a law unto itself alone.

22. This is highlighted by the extraordinary result of the course adopted by the Contempt Judge, if allowed to continue unabated and without a remedy, in the present case and the New TV case. In the New TV case, New TV S.A.L. – a legal person – continues to appear before the Contempt Judge as an accused properly charged. By contrast, in the present case, Akhbar Beirut S.A.L. – also a legal person – would have all charges against it dismissed and would take no further part in these proceedings. The havoc that situations like these would wreak on the proper administration of justice, the prospect of effective remedial redress in contempt proceedings, and the deterrent effect of contempt offences are both shocking and unthinkable. The situation that results from the Impugned Decision and its rejection of stare decisis in contempt cases before the Tribunal – vis-à-vis legal persons – is the very definition of a “manifestly absurd or unreasonable” result as referred to in Article 32 of the Vienna Convention on the Law of Treaties (1969).12 As Rule 3 (A) commands, this treaty, in so far as it reflects customary international law, is relevant to the interpretation of the Rules.13

23. This state of affairs certainly could not be countenanced. Legal persons constituting prospective suspects and accused persons before the Tribunal must

12 See also PCIJ, Polish Postal Service in Danzig, Advisory Opinion, PCIJ Series B, No. 11 (1925), p. 39: “It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd”.

13 The ICJ has previously held that Articles 31 and 32 of the Vienna Convention on the Law of Treaties (1969) are codifications of customary international law: ICJ, Case Concerning Sovereignty over Palau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 625 (2002), p. 645, para. 37; ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection Judgment, I.C.J. Reports 803 (1996), p. 812, para. 23.

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know whether or not they may properly be charged for contempt. It cannot be merely left to the dictates of each judge to decide as he chooses, resulting in one group of corporations/legal persons being charged and tried, and conversely another group having all charges against them being dismissed in the preliminary stages of proceedings.

24. Prosecutors would, equally, be adversely affected. Not only would they be uncertain as to whether or not to proceed to indict legal persons, but the matter of the settlement of the indictment itself and the crafting of pleadings would now present clear challenges were the matter not clearly and definitively decided rather than left open ended. The same would obtain for Defence Counsel in advising their clients as to corporate liability under Rule 60 bis. They would decidedly be disadvantaged. And finally, and perhaps most importantly, future contempt judges, in following the procedural steps in contempt proceedings contained in Rules 60 bis (E)-(F), must know from the outset against whom they may or may not proceed.

25. The possibility of future contempt proceedings also requires that the matter be fully, adequately and definitively addressed. Future contempt judges in Rule 60 bis proceedings should understand clearly and in an unqualified manner whether they are bound by a decision of other appeals panels or whether they may indeed disregarded them and adjudicate according to his or her own peculiar judicial dictates. Were it otherwise, the entire trial process in contempt proceedings and the administration of justice within the Tribunal would be reduced to nothing more than a wager. I have difficulty in giving judicial sanction to a situation that reduces the law to a ludicrous and unwarranted game of chance.

26. Lastly, this ignoble state of affairs would serve to gravely undermine the statutory requirement and mandatory guarantee of a fair trial. This judicial free-for-all is not a legally sustainable procedure or an acceptable part of the judicial process, whose object is the provision of justice to all and which provides for the equal treatment of accused persons as per Article 16(1) of the Statute. The legitimacy of the Tribunal would flounder and perish under such conditions to the detriment of accused persons and suspects who are alleged to have fall afoul of the Tribunal’s contempt provisions.

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27. It is the duty of the judiciary to ensure that the judicial landscape is not left submerged under a heavy fog and in darkness, without the benefit of any clarity of course or conduct, pushing beyond the sustainable boundaries of reason, logic or justice. As such, it is absolutely essential, in my view, to chart the judicial path ahead in this significant area of the Tribunal’s jurisprudence. There is now a pressing and inescapable necessity to definitively decide on the precedential value of the New TV Jurisdiction Appeal Decision. This is particularly true in view of the fact that this is the first time in the history of the Tribunal that the matter has been raised and that it is the first time that a judge acting in a pre-trial capacity has challenged the correctness of the ruling of a superior court, and in such an acutely robust manner. In these circumstances, it is the responsibility of the Appeals Panel to rule on the issue. The fact that the Contempt Judge himself in the Impugned Decision acknowledged the “need for consistency, certainty and predictability”14 seemingly underscores the correctness of this approach.

28. I have considered the Defence’s submission that the Lebanese legal system does not generally regard judicial decisions as a source of law and that they are binding only to the parties in the relevant case – the one exception, according to the Defence, being jurisprudence constante.15 The Amicus Prosecutor has not offered any argument in response on this point.

29. As the Appeals Panel has stated, the Tribunal has previously looked to and considered Lebanese law in informing its judicial work.16 Lebanon’s approach of jurisprudence constante – and not stare decisis17 – should have factored into the Appeals Panel’s reasoning. Notwithstanding, in my view, there are convincing reasons why, before this Tribunal, stare decisis – and not jurisprudence constante – ought to be judicially recognized.

14 Impugned Decision, para. 67 (emphasis added).

15 Response, paras 21, 24, 26. I note that the Lebanese jurisprudence proffered by the Defence does not support its position on the binding nature of jurisprudence constante in the Lebanese legal order.

16 Akhbar Beirut Jurisdiction Appeal Decision, para. 57.

17 As the Appeals Chamber has previously held, “Lebanon is not a country where a formal doctrine of binding precedent (stare decisis) is adopted”: Interlocutory Decision, para. 142. See also Impugned Decision, para. 69: “Lebanese law – like that of many civil law countries – does not know a concept of binding precedent or stare decisis”.

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30. At the outset, I note the Defence’s argument that the New TV Jurisdiction Appeal Decision, as a singular isolated decision, does not attract the force of jurisprudence constante as recognised in the Lebanese legal order.18 That may be true. But in my view there is an inherent contradiction in making this submission: jurisprudence constante does not appear overnight. It takes a first pronouncement, time and an indeterminate number of decisions on the same legal question before a particular line of case law can be said to have attained such status. If the Defence were correct in its submission, this would mean that in each and every instance where a decision on a novel legal issue is handed down for the first time, jurisprudence constante’s requirement of an initial judicial pronouncement on the matter would never occur. In other words, taking the Defence’s position to its logical conclusion would serve to fatally undermine the very thing that jurisprudence constante is supposed to facilitate.

31. The consideration of this initial point also touches upon particularly powerful reasons why I believe the jurisprudence constante approach to jurisprudence is not applicable or apposite to the particular circumstances of this Tribunal. There is generally no impediment for such a system to work in the domestic legal systems of States that adhere to the rule of law: the judiciary, and the decisions they render, are not easily displaced. It is this permanency and the complexity and diversity of the societies they serve that ensures both that the same legal issues relating to criminal offences will eventually be brought before the courts in sufficient number and affords the opportunity for domestic judges to rule upon them. Without these, the emergence of jurisprudence constante would be a very difficult task indeed.

32. This Tribunal could not be further from such an environment. First, unlike the domestic criminal courts of Lebanon, we are not a permanent judicial institution. Rather, the Tribunal has a limited (albeit renewable) life span in which to fulfil its mandate.19 Given this fact, it would simply not be practical or realistic to expect the Tribunal to develop over time a long line of case law on criminal offences in order to achieve a legal trend.


19 Article 21, Agreement between the United Nations and Lebanon, 10 June 2007.

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33. Second, and again unlike the domestic criminal courts of Lebanon, the Tribunal is not envisaged to adjudicate over large numbers of criminal cases. Our jurisdiction only extends to the attack of 14 February 2005, connected attacks that occurred between 1 October 2004 and 12 December 2005, and potentially further attacks that occurred beyond these dates, but only when this is decided by the United Nations and Lebanon together with the consent of the UN Security Council.20 At present, only three cases have been held to satisfy the requirements of connected cases pursuant to Article 1 of the Statute and are still under investigation by the Prosecutor.21 In contempt matters, the Tribunal is currently seized of the New TV case and the present case, while one further matter is also under consideration.22 Such a small number of cases, and considering the differing substantive law that govern them, serves only to further frustrate the formation of jurisprudence constante.

34. In short, the Tribunal lacks both permanency and the number of cases that are conducive to the crystallisation of jurisprudence constante.

35. One final point concerning Lebanon’s legal system is worth mentioning. As a country of the civil law tradition, the laws that govern Lebanon are highly codified by its legislature. They are expressed in a relatively clear and comprehensive manner so as to cover most eventualities and have been adapted over time to best serve the Lebanese people. In such an environment, a Lebanese judge is afforded less interpretative latitude and discretion than his or her counterparts of the common law tradition. Whilst I am certain that the Tribunal’s Statute and Rules were drafted with precision and forethought, it is true that many of the provisions governing this Tribunal remain untested and are novel at international criminal law and in Lebanon. Indeed, in certain instances the law of the Tribunal is not codified comprehensively

20 Art. 1 STL St.

21 See STL-11-02/D/PTJ, F0004, Order Directing the Lebanese Judicial Authority Seized with the Case Concerning the Attack Perpetrated Against Mr Marwan Hamadeh on 1 October 2004 to Defer to the Special Tribunal for Lebanon, 19 August 2011; STL-11-02/D/PTJ, F0005, Order Directing the Lebanese Judicial Authority Seized with the Case Concerning the Attack Perpetrated Against Mr George Hawi on 21 June 2005 to Defer to the Special Tribunal for Lebanon, 19 August 2011; STL-11-02/D/PTJ, F0006, Order Directing the Lebanese Judicial Authority Seized with the Case Concerning the Attack Perpetrated Against Mr Elias ElMurr on 12 July 2005 to Defer to the Special Tribunal for Lebanon, 19 August 2011.

22 See New TV Indictment Decision, paras 3 (iii), 5, 75; Indictment Decision, paras 3 (iii), 5, 75.

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at all. One area where this is particularly true is in the exercise of our inherent power: “[w]hen operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement”.23

36. When operating within a legal system that codifies the law to a high degree, there is less need to rely on binding judge-made law as stare decisis commands. The same cannot be said of this Tribunal.

37. Additionally, I consider that the role of jurisprudence constante in international criminal law is clouded in many respects by stare decisis. To be fair, jurisprudence constante features – as a concept – more prominently at the International Court of Justice (“ICJ”).24 However, as the Contempt Judge correctly pointed out, the ICJ is not an international criminal court, but instead adjudicates over disputes between States, and “the language of Art[icle] 38 of the [ICJ’s] Statute […] assigns a relatively low degree of importance to previous judicial decisions [...]”.25

38. More relevant in this enquiry are the positions of the various international criminal tribunals. In this respect, both the ICTY and the ICTR have recognised the core feature of stare decisis: “that the ratio decidendi of [Appeals Chamber] decisions is binding on Trial Chambers [...]”.26 The SCSL, although not specifically seized of the issue, stated that “[t]he Appeals Chamber […] is the final arbiter of


24 See ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 624 (2012), p. 661, para. 100 (French); ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 61 (2009), p. 101, para. 118 (French); ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 3 (2002), p. 12, para. 26 (French); ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 3 (1980), p. 18, para. 37 (French); ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Jurisdiction Judgment, I.C.J. Reports 3 (1973), p. 7, para. 12 (French).

25 Impugned Decision, para. 68, fn. 165.

26 ICTY, Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeal Judgement, 24 March 2000 (“Aleksovski Appeal Judgment”), para. 113. See also ICTR, Semanza v. The Prosecutor, Case No. ICTR-97-21-A, Décision, para. 92: « La Chambre d’appel reprend les conclusions de la Chambre d’appel du TPIY dans l’affaire Aleksovski, et rappelle que dans l’intérêt de la sécurité et de la prévisibilité juridiques, la Chambre d’appel doit suivre ses décisions antérieures mais reste libre de s’en écarter si des raisons impérieuses lui paraissent le commander dans l’intérêt de la justice ».

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the law for this Court, and the decisions of other courts are only persuasive, not binding, authority”.27 The ICC, as the only permanent international criminal tribunal in existence, has not yet definitively ruled on the question of stare decisis and it may be too early in its life to speak of jurisprudence constante in respect of the crimes over which it has jurisdiction.28 However, I note that the ICC Statute permits it to “apply principles and rules of law as interpreted in its previous decisions”.29 This constitutes an explicit and formal recognition that prior decisions of the ICC are a source of law that it may apply. Whilst I do not deny that numerous references have been made to “established case law”, “established jurisprudence”, “jurisprudence constante” or the equivalent at the ICTY and ICTR,30 such pronouncements are difficult to detach from the fact that these tribunals recognise the binding force of Appeals Chamber decisions. It is unclear to me whether such pronouncements would have been made in the absence of stare decisis. In my view, in international criminal law it is an open question whether jurisprudence constante, stare decisis, or a mixture of both, have played a harmonizing role in ensuring consistency and predictability in the jurisprudence. This fact goes further against the applicability of jurisprudence constante before the Tribunal. In my view, given the particularities of the Tribunal I have previously outlined, this principle would be more prohibitive of justice, fairness and the proper administration of justice.

27 SCSL, Prosecutor v. Taylor, SCSL-03-01-A, Appeal Judgment, 26 September 2013, para. 472.

28 However, the ICC has recognised “established jurisprudence” in relation to procedural law. See for example ICC, Prosecutor v. Ruto and Sang, ICC-01/09-01/11-460, Decision on Victim’s Representation and Participation, 3 October 2012, para. 11; ICC, Prosecutor v. Ruto and Sang, ICC-01/09-01/11-912, Decision on Prosecutor’s Request for Leave to Appeal the Decision Rejecting the Amendment of the Charges (ICC-01/09-01/11-859), 6 September 2013, para. 18.

29 Art. 21(2) ICC St.

30 See ICTY, Prosecutor v. Šešelj, Case No. IT-03-67-T, Décision sur la demande de mise en liberté provisoire présentée par l’accusé Vojislav Šešelj, 23 March 2012, para. 10; ICTY, Prosecutor v. Prlić et al., Case No. IT04-74-T, Décision relative à la demande de mise en liberté provisoire de l’accusé Stojić, 17 June 2009, para. 7; ICTY, Prosecutor v. Đorđević, Case No. IT-05-87/1-A, Appeal Judgement, 27 January 2014, para. 574; ICTY, Prosecutor v. Lukić and Lukić, Case No. IT-98-32/1-A, Decision on Sredoje Lukić’s Motion Seeking Reconsideration of the Appeal Judgement and on the Application for Leave to Submit an Amicus Curiae Brief, 30 August 2013, p. 3; ICTR, Ndahimana v. The Prosecutor, Case No. ICTR-01-68-A, Appeal Judgement, 16 December 2013, para. 10; ICTR, Mugenzi and Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Appeal Judgement, 4 February 2013, para. 14.

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39. For these reasons, and despite the recognition of jurisprudence constante in the Lebanese legal order, I nonetheless hold that cogent reasons exist for the Tribunal to recognise stare decisis. In my view, it matters not that the New TV Jurisdiction Appeal Decision was a single isolated decision. What matters is that it was properly issued by an appeals panel – an appellate chamber that sits above the Contempt Judge. That, in of itself, was sufficient to attract the application of stare decisis. The Contempt Judge was simply not at liberty to decide on the binding effect of the ratio decidendi of the New TV Jurisdiction Appeal Decision and substitute, in its place, his own mistaken views on the jurisdiction ratione personae of the Tribunal in contempt proceedings.

40. I am cognisant of the fact that the present Appeals Panel has no formal jurisdiction over matters in the New TV case. Our jurisdiction extends to the case with which we have been seized: the Akhbar Beirut case. The New TV case has its own appeals panel composed of a different bench. Therefore, two distinct appeals panels have exclusive jurisdiction over different cases and may in theory rule differently on similar issues. Situations such as these, at least in common law systems, would be countenanced by the existence of a third appellate tier that would resolve disputes on the interpretation of the law of lower appellate courts. We do not have that luxury. Yet, the need for certainty, predictability and consistency is equally compelling. Consequently, I consider that in our unique circumstances, it is in the interests of justice to hold that any contempt judge at this tribunal is bound by any earlier pronouncement by an appeals panel. As such, it is my view that the Contempt Judge in the New TV case is bound by the decisions rendered by this Appeals Panel, notwithstanding the fact that we do not possess de jure jurisdiction over matters in that case.

41. With respect to the binding force of decisions rendered by one appeals panel on subsequent appeals panels, I concur with the view set out by the ICTY Appeals Chamber in Aleksovski: appeals panels should follow the decisions of prior appeals panels “but should be free to depart from them for cogent reasons in the interests of justice. […] [However,] the normal rule is that previous decisions are to be followed, and departure from them is the exception”.31 In contempt proceedings, this means that an appeals panel may depart from the position taken by another appeals panel

31 Aleksovski Appeal Judgment, paras 107, 109.

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provided that cogent reasons exist and only “after the most careful consideration has been given […] both as to the law, including the authorities cited, and the facts”.32 In other words, an appeals panel may reconsider and, perhaps, alter or change their view on a particular legal matter that has been previously determined by that appeals panel or by another panel in circumstances that include:

[W]here the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law”.33

42. After having examined all the circumstances in our case, I find there are no grounds for departing from the New TV Jurisdiction Appeal Decision.

4. Conclusion

43. Based on the above reasoning, I reiterate that while I agree with the outcome in this case, I consider that the question of the binding effect of the New TV Jurisdiction Appeal Decision on the issue of the Tribunal’s jurisdiction ratione personae should have been raised more substantively and definitively addressed by the Appeals Panel. In my view, the ratio decidendi of the New TV Jurisdiction Appeal Decision was binding on the Contempt Judge and he did not have the power to depart from it for the reasons set forth in this opinion. In addition, I find that the Contempt Judge committed an additional error in violating the audi alteram partem principle by not allowing the Amicus Prosecutor to be heard on this issue.

44. Finally, for the sake of completeness and clarity, I must indicate here that I concur with the disposition of the Appeals Panel in this case to grant the Appeal, reverse the Impugned Decision and reinstate the Order in Lieu of an Indictment of 31 January 2014.

Janet Nosworthy, Judge

32 Aleksovski Appeal Judgment, para. 109.

33 Aleksovski Appeal Judgment, para. 108 (reference omitted).

2.Case name: The Prosecutor v. Ayyash et al.

Before: Trial Chamber

Title: Decision on simultaneous or concurrent testimony of expert witnesses

Short title: Testimony of Expert Witnesses TC

61

63

THE TRIAL CHAMBERCase No.: STL-11-01/T/TC

Before: Judge David Re, Presiding Judge Janet Nosworthy Judge Micheline Braidy Judge Walid Akoum, Alternate Judge Judge Nicola Lettieri, Alternate Judge


Date: 17 February 2015



THE PROSECUTOR v.

SALIM JAMIL AYYASH MUSTAFA AMINE BADREDDINE

HASSAN HABIB MERHI HUSSEIN HASSAN ONEISSI

ASSAD HASSAN SABRA

DECISION ON SIMULTANEOUS OR CONCURRENT TESTIMONY OF EXPERT WITNESSES

Office of the Prosecutor: Mr. Norman Farrell Mr Graeme Cameron Mr Alexander MilneVictims’ Legal Representatives: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra

Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan, Mr Emile Aoun and Mr Thomas HannisCounsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz, Mr John Jones and Mr Iain EdwardsCounsel for Mr Hassan Habib Merhi: Mr Mohamed Aouini, Ms Dorothée Le Fraper du Hellen and Mr Jad KhalilCounsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse, Mr Yasser Hassan and Mr Philippe LarochelleCounsel for Mr Assad Hassan Sabra: Mr David Young, Mr Guénaël Mettraux and Mr Geoffrey Roberts

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Testimony of Expert Witnesses TC

BACKGROUND

1. The Prosecution intends to call two Argentinian professors of civil engineering to provide expert testimony in the trial. Professor Bibiana Luccioni (Witness PRH187) and Professor Daniel Ambrosini (Witness PRH188) jointly co-authored two reports, dated September 2010 and 15 December 2012, about the crater and the damage caused by the explosion in Beirut on 14 February 2005. In a decision issued on 21 August 2014, the Trial Chamber found that both witnesses were qualified as experts within the meaning of Rule 161 of the Special Tribunal’s Rules of Procedure and Evidence.1 The Trial Chamber held the first report to be admissible into evidence under Rule 161 but deferred a final decision on the admissibility of the second until the testimony of one or both experts.2 It also decided that, as both witnesses have comparable expertise, only Professor Ambrosini was required to appear for cross-examination.3 Defence counsel, however, could make an application—showing good cause—to cross-examine Professor Luccioni after Professor Ambrosini had completed his testimony.4

SUBMISSIONS

2. On 17 December 2014, the Prosecution filed a motion asking the Trial Chamber to allow the two expert witnesses to testify ‘simultaneously’ in the courtroom.5 The Prosecution argued that having both witnesses present in the courtroom to answer questions at the same time would be the most efficient method of receiving and testing their reports. Although they had produced two joint reports, each had contributed separate expertise, and either expert could explain his or her own analysis and conclusions for a particular aspect of the report. Professor Ambrosini, the Prosecution

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi, and Sabra, F1646, Decision on twelve expert witnesses, 21 August 2014, paras 62-64. The two reports are entitled, respectively, ‘Final forensic report – quantity of explosives’ (R91-606433), September 2010 and ‘Final report of experts regarding the attack on 14 February 2005 against Rafic Hariri’ (R91-100473), 15 December 2012.

2 Decision of 21 August 2014, paras 65-70.

3 Decision of 21 August 2014, paras 67 and 70.

4 Decision of 21 August 2014, para. 67.

5 F1794, Request to Call Witnesses PRH187 and PRH188 Simultaneously, 17 December 2014.

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explained, specializes in bomb crater analysis, while Professor Luccioni specializes in analysing the damage to buildings caused by explosions.6 Having the two experts testify simultaneously would ensure that the two could fully answers all questions posed, thereby guaranteeing an efficient use of court time.7

3. Defence counsel for three of the Accused opposed the application. Counsel for Mr Salim Jamil Ayyash argued that simultaneous testimony would result in a serious violation of the Defence’s right to confront the two witnesses, and, further, that hearing witnesses simultaneously is not supported by any international jurisprudence.8 Simultaneous testimony would ‘result in reducing or negating entirely the Defence’s ability to probe or expose forgetfulness, confusion, or evasion’.9

4. Counsel for Mr Mustafa Amine Badreddine opposed the motion, describing it as a ‘novel and, it would appear, unprecedented form of relief’ that is not based on anything in the Special Tribunal’s Rules. Moreover, the Prosecution had not shown any cogent reasons for departing from ordinary adversarial international criminal procedure where witnesses are called consecutively rather than simultaneously. Further, the proposed measure may undermine the effectiveness of cross-examination.10

5. Counsel for Mr Assad Hassan Sabra described the motion as an attempt to ‘circumvent’ the Trial Chamber’s decision of August 2014. They argued that the motion is unsubstantiated and that the proposed measure would decrease the probative value of the evidence. Moreover, the Prosecution has not provided a legal basis or shown good cause as to why the two witnesses could not be heard consecutively.

6 Prosecution motion, paras 4-5.

7 Prosecution motion, paras 1 and 6.

8 F1805, Response by the Ayyash Defence to the Prosecution Request to Call Witnesses PRH187 and PRH188 Simultaneously, 31 December 2014, paras 1-2 and 4.

9 Ayyash Defence Response, para. 3.

10 F1804, Badreddine Defence Response to Prosecution’s “Request to Call Witnesses PRH187 and PRH188 Simultaneously”, 31 December 2014, paras 3-9.

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The Prosecution motion also failed to take into account the ‘serious risk of witness contamination and the very purpose of calling witnesses to determine the truth’.11

6. The Prosecution—at the request of the Trial Chamber, in its attempt to find any supporting international or national legislation, case-law or any other material12—filed some case-law, legislation and reference material.13

7. On 4 February 2015, the Trial Chamber heard further oral submissions from the Prosecution, Defence counsel and the Legal Representative of Victims. The Prosecution explained that Rule 130 gave the Trial Chamber a wide discretion to apply any directions it thought fit.14 That Rule states that the Trial Chamber, ‘after hearing the parties, may give directions on the conduct of the proceedings as necessary and desirable to ensure a fair, impartial, and expeditious trial.’ The Prosecution argued that there was some precedent in decisions of the Extraordinary Chambers in the Court of Cambodia (ECCC) and the International Criminal Tribunal for the former Yugoslavia (ICTY) for calling expert witnesses to testify simultaneously, in civil law jurisdictions, including in criminal proceedings in the Court of Bosnia and Herzegovina, and in arbitration.15 The Prosecution, however, was unable to identify any national or international precedent where the Prosecution had called multiple

11 F1806, Sabra Response to Prosecution ‘Request to Call Witnesses PRH187 and PRH188 Simultaneously’, 31 December 2014, paras 2-10.

12 F1834, Order Requesting Further Clarifications in Relation to the Testimony of Witnesses PRH187 and PRH188, 29 January 2015.

13 F1839, Prosecution Further Submissions Regarding Simultaneous Testimony, 2 February 2015. The Annex to this submission included portions of judgments and transcripts (ECCC, Case No. 001 (Kaing Guek Eav alias Duch), Case No. 001/18-07-2007/ECCC/TC, Judgement, 26 July 2010; ECCC, Case No. 001 (Kaing Guek Eav alias Duch), Case No. 001/18-07-2007/ECCC/TC, Transcripts, 31 August 2009 and 1 September 2009; Court of Bosnia and Herzegovina, Prosecutor’s Office of Bosnia and Herzegovina v. Novak Đukić, Case No. X-KR-07/394, First Instance Verdict, 12 June 2009 (Verdict published 14 September 2009); Court of Bosnia and Herzegovina, Prosecutor’s Office of Bosnia and Herzegovina v. Novak Đukić, Case No. S1 1 K 015222 14 Krž, Second-Instance Verdict, 11 April 2014; Australia, District Court of New South Wales (Australia), R. v. Stanyard, Case No. 2009/62492, Judgment, 25 May 2012; Federal Court of Australia, Strong Wise Limited v. Esso Australia Resources Pty Ltd, Case No. VID 1060 of 2008, Judgment, 18 March 2010); examples of domestic legislation, and an article by Justice Steven Rares of the Federal Court of Australia, Using the “Hot Tub” – How Concurrent Expert Evidence Aids Understanding Issues, available at http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20131012. The article explains that the practice is known colloquially as ‘hot-tubbing’.

14 T. 114, 4 February 2015, p. 23.

15 T. 114, 4 February 2015, p. 28. See above, fn. 13, for the relevant cases.

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expert witnesses to testify concurrently in criminal proceedings.16 Nonetheless, it considered it preferable to call the witnesses simultaneously.17 That the two experts wrote a joint report suggested that there was little room for the Defence to seek contradiction between the two witnesses.18 In view of the Defence estimates for cross-examination, however, the Prosecution was now confident that the testimony of the two witnesses could be completed within the five days scheduled in the week of 23 to 27 February 2015.19

8. The Legal Representative of Victims urged the Trial Chamber not to be afraid of ‘novelty’ in the proceedings. He stated that he would support the Prosecution’s motion if there was a substantial risk of delay to the proceedings, but if the evidence of both experts could be heard within the allocated week, he would be ‘neutral’.20

9. Counsel for Mr Badreddine agreed that the overall testimony of the two witnesses could be completed within five days.21 He described the application as ‘an extraordinary motion requesting an extraordinary departure from the normal rules of procedure […] in international criminal courts generally’ that ‘demands extraordinary justification for it, and there is none’.22 No time would be saved, and any overlap in the testimony could be dealt with by calling the witnesses in the normal manner, consecutively. Moreover, it raised practical difficulties.23 Two witnesses testifying in this manner would mutually corroborate each other and in an artificial way would significantly minimize the ability of the Defence to properly test the evidence.24 Counsel was very concerned with the manner in which the witnesses would answer

16 T. 114, 4 February 2015, p. 28.

17 T. 114, 4 February 2015, p. 32.

18 T. 114, 4 February 2015, pp 30, 36 and 40.

19 T. 114, 4 February 2015, pp 32-33.

20 T. 114, 4 February 2015, pp 42-43.

21 T. 114, 4 February 2015, p. 46.

22 T. 114, 4 February 2015, p. 46.

23 T. 114, 4 February 2015, pp 47-52.

24 T. 114, 4 February 2015, p. 55.

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questions posed by the Trial Chamber.25 Counsel for Mr Sabra supported these arguments.26

10. Counsel for Mr Ayyash underlined the fact that simultaneous testimony in the manner foreshadowed; (i) was unprecedented in international criminal law as far as ‘guilt or evidence or the actus reus of the crime charges’ are concerned, but not regarding procedural matters, and (ii) would raise practical problems such as, when questions are asked, who decides which of the two experts is best suited to answer them.27

11. Counsel for Mr Hassan Habib Merhi stated that the witnesses should be called to testify separately, and submitted that Articles 253 and 255 of the Lebanese Code of Criminal Procedure do not allow confrontations between experts.28

DISCUSSION

12. The first expert report, dated September 2010 and entitled ‘Quantity of explosives’, used a ‘computational study’ to provide an opinion on the quantity and location of the explosives used in the explosion in Beirut on 14 February 2005. The second, dated 15 December 2012, analyses the explosion, including the location of the explosion vis-à-vis the vehicles in Mr Rafik Hariri’s convoy, the type, quantity, positioning and carrier of the explosives, how the triggering mechanism could have been activated, the complexity of the attack and the role of the perpetrators. Because Defence counsel had contested one section (3.5.3) of the second report, the Trial Chamber deferred deciding its admissibility under Rule 161 until the testimony of at least one of the experts.

13. The Prosecution, however, has now clarified that it relies only upon two annexes in the second report,29 and that both Professor Ambrosini and Professor

25 T. 114, 4 February 2015, pp 56-57.

26 T. 114, 4 February 2015, p. 58.

27 T. 114, 4 February 2015, pp 58-66.

28 T. 114, 4 February 2015, pp 69-72.

29 T. 114, 4 February 2015, p. 21.

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Luccioni should testify live.30 Defence counsel for at least two of the Accused want to cross-examine the two witnesses.31 The Trial Chamber has now re-examined the two reports and accepts the Prosecution’s argument that both experts should testify, meaning that they will be cross-examined. The Trial Chamber’s decision requiring only Professor Ambrosini to appear for cross-examination was based on the reports not specifying the respective contributions of the two experts.

14. The disagreement here is as to the manner of in-court testimony. The Prosecution submits that the interests of justice would permit concurrent or simultaneous expert testimony, while Defence counsel strongly oppose the motion and submit that the Trial Chamber should follow the normal practice of consecutive testimony.

15. One commentator has summarised the advantages of concurrent expert evidence as; (i) the evidence may proceed directly to the critical points of difference between experts, (ii) counsel and judges are more easily able to understand the issue—assisted by the availability of multiple advisors in the courtroom, (iii) the procedure may expedite proceedings and save costs, and (iv) the intellectual discussion among the experts may remove some of the tension typical of a conventional trial. On the other hand, concurrent testimony raises concerns about the integrity of the whole process, and in particular, that it might delay proceedings, and could allow the more persuasive, confident or assertive expert to win over the judge’s mind by overshadowing the others.32

16. Against this theoretical background, the starting point for analysis is the Special Tribunal’s Rules. These, however, are silent on the issue, neither specifically authorising nor prohibiting concurrent expert witness testimony. For guidance, the Trial Chamber may turn to Rule 3, ‘Interpretation of the Rules’, which provides:

30 Prosecution motion, para. 9; T. 114, 4 February 2015, pp 16-17.

31 T. 114, 4 February 2015, pp 16-17, 46, and 67; see also F1485, Badreddine Defence Response to “Updated Prosecution Notice of Expert Witnesses and their Statements” dated 4 March 2014, 4 April 2014, confidential Annex, pp 1 and 12; F1563, Merhi Defence Response to the “Prosecution Motion Regarding Upcoming Expert Witnesses”, 10 June 2014, para. 16.

32 Rares, above, fn. 13, pp 7-12.

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the Rules shall be interpreted in a manner consonant with the spirit of the Statute and, in order of precedence, (i) the principles of interpretation laid down in customary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969), (ii) international standards on human rights, (iii) the general principles of international criminal law and procedure, and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.

17. The Trial Chamber believes that attempting to search for evidence of customary international law—as specified in (i)—on this procedural point, would be fruitless.

18. Next, turning to ‘international standards on human rights’, the Trial Chamber has not found any directly applicable legal authority. However, allowing concurrent expert testimony in the manner requested could not infringe any of the ‘Rights of the Accused’ enumerated in Article 16 of the Statute, and in particular in paragraph (4) (e) ‘to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her’. The two witnesses will be attending the court to testify and will be available for examination by the Defence. Additionally, Rule 150 (C) permits expert witnesses to be present during the testimony of other experts, and no counsel have sought to have either expert excluded from the courtroom during the testimony of the other.

19. The third source of law is the general principles of international criminal law and procedure. The Trial Chamber has found precedent in one international criminal tribunal (ICTY) and in two hybrid domestic courts using international judges and prosecutors (the ECCC, and the Court of Bosnia and Herzegovina).

20. No international court or tribunal using international criminal procedural law has a rule either specifically authorizing or prohibiting concurrent expert testimony. Regulation 44 (5) of the International Criminal Court’s (ICC) Regulations of the Court gives a Chamber a wide margin of appreciation in that it ‘may issue any order as to the subject of an expert report, the number of experts to be instructed, the mode of their instruction, the manner in which the evidence is to be presented and the time limits for the preparation and notification of their report.’ However, the ICC does not, as of yet, appear to have allowed concurrent expert testimony.

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21. Rule 90 (C) of the ICTY’s Rules of Procedure and Evidence—replicated in Rule 150 (C) of the Special Tribunal’s Rules—provides that a witness ‘other than an expert, who has not yet testified, shall not be present when the testimony of another witness is given’.33 At the ICTY, in Kovačević, in conducting a hearing into the fitness of an accused person to enter a plea and to stand trial, a Trial Chamber allowed seven medical experts, psychiatrists and psychologists, to testify simultaneously. They appeared in the courtroom at the same time to answer questions from the parties and the judges.34 Two were court experts appointed by the ICTY’s Registrar upon the Trial Chamber’s order, while the others were Defence and Prosecution experts.35 Each of the three groups had authored joint reports.36 After the experts had taken a solemn declaration at the beginning of the hearing, they were then questioned, first by the parties, and then by the Trial Chamber.37 Each expert remained in the courtroom ready to answer any questions.38 The Presiding Judge explained the procedure to be followed as:

As far as the order of this afternoon is concerned, I suggest to the parties the following. At the beginning, I’d like to ask all experts that have appeared and that have reported on the mental health of Mr. Kovačević to make a solemn declaration, to confirm that they did write their reports to the best of their abilities, and having given this solemn declaration, I would like to invite the parties to put any additional questions to experts, whether it be experts called by themselves or called by the other party, and to do that in approximately 45

33 The rationale for ICTY Rule 90 (C) (previously Rule 90 (D)) was explained in ICTY, Prosecutor v. Delalić, IT-96-28-T, Decision on the Motion by the Prosecution to Allow the Investigators to Follow the Trial during the Testimonies of the Witnesses, 20 March 1997, para. 12: ‘The rationale for the Sub-rule seems to be for the protection of witnesses of fact from contamination. It is a fundamental consideration of the administration of justice that the purity of its stream should be protected from pollution. This principle is attainable by ensuring that witnesses do not have access to one another before giving their testimony. The provisions of [this Rule] are designed to ensure the purity of testimony admitted in evidence.’ (emphasis added).

34 ICTY, IT-01-42/2-I, Prosecutor v. Vladimir Kovačević, Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial, 12 April 2006, paras 19-20; ICTY, IT-01-42/2-I, Hearing of 7 December 2005, transcript p. 367. In the subsequent Strugar case, the procedure instead followed the ordinary course. See ICTY, IT-01-42-T, Prosecutor v. Pavle Strugar, Hearings of 28 and 29 March 2004.

35 Kovačević decision, para. 5.

36 Kovačević decision, para. 19.

37 Kovačević decision, paras 19-20; ICTY, IT-01-42/2-I, Hearing of 7 December 2005, transcript pp 367-374.

38 ICTY, IT-01-42/2-I, Hearing of 7 December 2005, transcript pp 367-472.

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minutes first round. Then we have a break. And on the basis of the answers given by the experts, the Chamber may have some additional questions as well, and the parties will have another possibility responding to what the experts have told us to put more questions to the experts in approximately 25 to 30 minutes. So altogether, that would be 75 minutes for each party.39

22. The issue there was not the guilt of the Accused but rather his fitness to stand trial, and no Party opposed the course adopted by the Trial Chamber.

23. At the ECCC, in the lengthy trial of Kaing Guek Eav (a.k.a. Duch), the ECCC Trial Chamber allowed a psychologist and a psychiatrist who had jointly drafted a report upon the request of the Co-Investigating Judges, to testify ‘together’, as to the Accused’s character.40 In giving the experts the floor, the Presiding Judge stated of the procedure:

[Y]ou can make a joint report or an individual report based on your mutual understanding or one of you representing the two. In relation to responding to questions to be put by the Chamber and the parties to the proceedings after your presentation, if the questions are too general and not for any specific expert, any one of you can respond to that question and another expert can add or supplement the question or remain silent. In relation to the presentation of the report or the answerings [sic] of the questions, you two are entitled to choose who is going to respond to the questions.41

After their joint presentation, the two experts responded to questions by the Trial Chamber and by the parties.42

24. The Court of Bosnia and Herzegovina has also authorised the joint in-court examination of opposing experts but, it appears, using a rule that authorises in-court witness confrontation, thus allowing experts to be confronted with the views of

39 IT-01-42/2-I, Hearing of 7 December 2005, transcript p. 368.

40 ECCC, 001/18-07-2007/ECCC/TC, Hearing of 31 August 2009, transcript pp 4-11. ECCC Internal Rule 91 bis states that ‘the President of the Trial Chamber shall determine the order in which the judges, the Co-Prosecutors and all the other parties and their lawyers shall have the right to question the Accused, the witnesses, experts and Civil Parties.’

41 ECCC, 001/18-07-2007/ECCC/TC, Hearing of 31 August 2009, transcript pp 12-13.

42 ECCC, 001/18-07-2007/ECCC/TC, Hearing of 31 August 2009, transcript pp 14-119; ECCC, 001/18-07-2007/ECCC/TC, Hearing of 1 September 2009, transcript pp 5-26.

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opposing experts.43 In one case, the court explicitly stated that this confrontation was used when ‘expert witnesses […] held diametrically opposing views’.44

25. Some national court systems—both civil law and common law—also allow opposing experts to testify concurrently. The apparent rationale is to reduce court time and to facilitate the proper understanding of the evidence by narrowing the issues of contention.45 However, the national practices the Trial Chamber has surveyed appear generally confined to civil (i.e. non-criminal) proceedings, and to arbitration.46

26. Some countries using civil law procedural regimes, for example, France,47 Belgium48 and Lebanon may allow expert witnesses to testify simultaneously, although this is not specifically authorized in the relevant codes. Some common law countries, for example, Australia,49 Canada,50 the United Kingdom (England

43 Pursuant to Article 85 (2) of the Criminal Procedure Code of Bosnia and Herzegovina (‘At all times during the proceedings, witnesses may be confronted with other witnesses or with the suspect or accused’): Court of Bosnia and Herzegovina, X-KR-07/394, Prosecutor’s Office of Bosnia and Herzegovina v. Novak Đukić, First Instance Verdict (12 June 2009), in particular paras. 8, 103, 107, 278 and 319; S1 1 K 015222 14 Krž, Prosecutor’s Office of Bosnia and Herzegovina v. Novak Đukić, Second Instance Verdict (11 April 2014), paras 69 and 109-114.

44 Court of Bosnia and Herzegovina, X-KR-07/394, Prosecutor’s Office of Bosnia and Herzegovina v. Novak Đukić, First Instance Verdict (12 June 2009), in particular paras 107, 278 and 319.

45 See Rares, above in fn. 13.

46 With respect to arbitration proceedings, see International Bar Association Rules on the Taking of Evidence in International Arbitration, 29 May 2010, Article 8, Rule 3(f).

47 According to article 331 of the French Code of Criminal Procedure, witnesses must give evidence separately. However, article 168 does not provide for a similar rule regarding experts (see Crim. 19 déc. 1979, Bull. Crim., No 368).

48 Article 309 of the Belgian Code d’instruction criminelle states: ‘L’accusé et la partie civile peuvent demander, après que les témoins auront déposé, que ceux qu’ils désigneront se retirent de la salle d’audience, et qu’un ou plusieurs d’entre eux soient introduits et entendus de nouveau, soit séparément, soit en présence les uns des autres. Le procureur général a la même faculté. Le président peut aussi l’ordonner d’office.’

49 See Rule 23.15 (g) and (i) of the Federal Court Rules (Australia); Regulation 31.35 of the Uniform Civil Procedure Rules 2005 (New South Wales); see also Federal Court of Australia, Wingecarribee Shire Council v. Lehman Bros. Austl. Ltd (in liq) [2012] FCA 1028 (21 September 2012), para. 13; Australia, Federal Court of Australia, Bathurst Regional Council v. Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 (5 November 2012), para. 796; Strong Wise Limited v. Esso Australia Resources Pty Ltd, Case No. VID 1060 of 2008, Judgment, 18 March 2010, paras 93-97– a maritime statute of limitations case in which eight experts; master mariners, naval architects, structural, metallurgical and mechanical engineers, testified concurrently in relevant evidence sessions.

50 See Rule 282.1, 282.2 and para. 52.6 (1) of the Federal Court Rules (Canada). See, for instance, Apotex Inc. v. Astranzeneca Canada Inc. 2012 FC 559, related to a civil claim arising from pharmaceutical regulations,

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and Wales),51 and the United States52 permit concurrent expert testimony. The Trial Chamber, however, has found only very limited support for this practice, or examples of its use, in criminal proceedings—and in some common law jurisdictions.53

27. The Trial Chamber must always consider that it must ‘prevent any action that may cause unreasonable delay’, as specified in Article 21 (1) of the Special Tribunal’s Statute. In this respect, Rule 130 (A) gives the Trial Chamber a wide discretion in the conduct of the proceedings, allowing it ‘to give directions on the

especially para. 10 (‘At the end of the testimony of [two experts in Canadian regulatory practices,] I conducted a “hot tubbing” [as the practice of concurrent testimony is colloquially referred to—see Rares, above, fn. 13] examination in which each of them took the stand at the same time, remaining under oath. They answered questions put to them by me and responded to the answers given by each other. At the end of this process, each Counsel was invited to put follow-up questions to these witnesses.’ para. 10. But this was ‘after each had been examined and cross-examined by Counsel in the usual way’, para. 6.).

51 See Practice Direction 35/Experts and assessors (Civil Procedure Rules), England and Wales, para. 11 (‘At any stage in the proceedings the court may direct that some or all of the experts from like disciplines shall give their evidence concurrently’); for example, see High Court of Justice, Re Baby X [2011] EWHC 590 (Fam) (15 March 2011), paras 22-23, in care proceedings where three experts testified concurrently, and Ryder J. remarked, ‘The resulting coherence of evidence and attention to the key issues rather than the adversarial point scoring is marked’, para. 23.

52 For example, the United States Tax Court (a U.S. Federal court) allows experts to testify concurrently: see U.S. Tax Court, John Crimi, et al. v. Commissioner of Internal Revenue, T.C. Memo. 2013-51 (14 February 2013), pp 34, 41, 59-60; United States, U.S. Tax Court, Rovakat, LLC, A Partnership, Shant S. Hovnanian, Tax Matters Partner v. Commissioner of Internal Revenue, T.C. Memo. 2011-225 (20 September 2011), pp 29-30. The Trial Chamber has not found criminal cases adopting this approach, and the Federal Rules of Evidence (in particular, Rule 611 on the Mode and Order of Examining Witnesses and Presenting Evidence and Article VII on Opinions and Expert Testimony) are drafted on the assumption that witnesses will testify individually in court.

53 For example, Australia, Supreme Court of Western Australia, State of Western Australia v. Rayney (No 3) [2012] WASC 404, para. 971. In this murder case heard by a single judge (and without a jury) two experts testified concurrently about artefacts and the deceased’s boots and clothing, but at the suggestion of both Prosecution and Defence counsel. It is also permitted in Victoria, Australia, see County Court of Victoria Practice Note: Expert Evidence in Criminal Trials, PNCR 1-2014, section 11.1 ‘Where—(a) two or more parties have served expert evidence relating to the same issue or relating to two or more closely related issues; (b) the commissioning parties agree; and (c) the Court so orders, evidence may be given by the experts consecutively (ie one after the other) or concurrently (ie with all of the experts present in court, sworn or affirmed at the same time). 11.2 The procedure to be followed for consecutive or concurrent evidence is to be determined by the Court, with the expectation that the parties will have conferred in advance and attempted to agree on the procedure.’ See also, District Court of New South Wales, R v. Stanyard [2012] NSWDC 78 (25 May 2012), para. 31. In this trial by judge alone case of dangerous driving causing serious injuries, two experts—one called by the Prosecution and one by the accused—had prepared a joint report as the speed of the vehicle setting out where one expert’s opinion had changed, where they had reached agreement and where they continued to disagree. The Judge explained that he detected no bias in either witness, and considered that they were both complying with their obligations to assist the court, see para. 31.

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conduct of the proceedings as necessary and desirable to ensure a fair, impartial, and expeditious trial.’

28. Further to Rule 3, Rule 149 (B) under the heading ‘General Provisions’ of ‘Section 3, Rules of Evidence’, provides:

In cases not otherwise provided for in these Rules or in the Lebanese Code of Criminal Procedure, a Chamber shall apply rules of evidence which best favour a fair determination of the matter before it and are consonant with the highest standards of international criminal procedure.

The Lebanese Code of Criminal Procedure does not prohibit experts from testifying concurrently, and several decisions of the Lebanese Cour de Cassation have held that, acting under Articles 247 and 263, the Presiding Judge has the discretion to hear witnesses separately or simultaneously.54 This includes expert witnesses.

29. The Trial Chamber has already endorsed the definition in international criminal law of an expert witness, namely, a person who by virtue of some specialized knowledge, skill or training can assist the trier of fact to understand or determine an issue in dispute.55 One of the distinctions between an expert witness and a fact witness is that, due to the qualifications of the expert, he or she can give opinions and draw conclusions, within the confines of his or her expertise.56 Additionally, they apply their specific expertise to events about which they have no first-hand knowledge, and, before drawing conclusions they consider relevant information. And they may work alone or with others.

54 Article 263 of the Lebanese Code of Criminal Procedure states that after ‘the witness has finished his testimony, the Presiding Judge of the Court may order—of his own motion or in response to an application from the representative of the Public Prosecution Office, the accused, or the civil party—the removal of specific witnesses from the courtroom and the readmission of one or more of those removed to hear their testimony again separately or in the presence of the others or of some of them, to arrange a confrontation between them, to show them impounded items to discuss them with the accused.’ See also Lebanon, Cour de cassation, Judgment n. 82/2006 of 16 March 2006 (republished in Sader on Cassation Proceedings, Law Publications, 2006, part one, p. 760); Cour de cassation, Judgment n. 137/2007 of 12 June 2007 (republished in Sader on Cassation Proceedings, Law Publications, 2007, part two, p. 736).

55 F1610, Decision on Expert Witness PRH120, Professor Fouad Hussein Ayoub, and Expert Witness PRH508, Dr. Issam Mansour, 7 July 2014, para. 6 and references therein.

56 Prosecutor v. Vujadin Popović, Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 27. On the application of these principles to Professor Luccioni and Professor Ambrosini, see Decision of 21 August 2014, paras 62-70.

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30. The only precedent known to the Trial Chamber of concurrent expert testimony in an international criminal court or tribunal is that of the ICTY’s Kovačević case. However, in that case, the three groups of experts—one called by the Trial Chamber, one by the Prosecution, and one by the Defence—were called to confront opposing views, in proceedings relating only to fitness to stand trial, and where the Parties did not oppose the procedure. And the Kovačević Trial Chamber did not provide a reasoned decision sourcing any legal authority for its departure from the normal course of consecutive expert testimony.57

31. The Special Tribunal and the ICTY have an identical rule permitting experts to remain in the courtroom during the testimony of other witnesses. Presumably, the Kovačević Trial Chamber implicitly considered its own Rule 90 (C) before adopting its novel procedure. But, significantly, the Trial Chamber has not found any international precedent of concurrent testimony of experts called to testify by the same Party, although, on its face, the ICC’s Regulation 44 (5) potentially could allow it.

32. Does this combination of international precedent, legal principles and the Special Tribunal’s Rules therefore permit the Trial Chamber to allow concurrent courtroom expert evidence, and if so, when? This brief survey of international and national case-law and legislative instruments reveals that concurrent expert testimony in criminal trials may, in certain circumstances, be permissible. In this sense—in the absence of explicit case-law or statutory provision forbidding it—there appears to be no absolute bar to the practice.

33. However, it is evident that concurrent testimony is permitted only when a court is convinced that—without violating the right of the opposing party to fully cross-examine the witnesses—it would significantly facilitate the elucidation of expert evidence and speed up the proceedings. Otherwise, just like any other witness, experts should generally provide their evidence individually.

57 In fact, its substantive decision on the merits of the application does not even mention that the expert testimony was concurrent; this is only apparent from reading the (non-redacted portion of the) transcript of proceedings.

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34. The Trial Chamber is thus satisfied that it may in appropriate circumstances—using the combination of Rules 130 (A) and 150 (C)—allow expert witnesses to testify concurrently or simultaneously. However, to justify a departure from the normal practice of individual testimony in criminal trials using international criminal procedural law, the circumstances must be compelling.

35. The next issue is, therefore, whether the Prosecution has persuaded the Trial Chamber that these are the appropriate compelling circumstances. Here, the Prosecution argues that because each expert has contributed separate expertise to the joint reports, the expertise of one complements the other.58 The Prosecution conceded, however, that should these experts be heard consecutively, the examination-in-chief would not last more than a day per expert and the testimony of both witnesses would be completed within the week scheduled.59 The Prosecution also filed an estimate of five days combined testimony for both witnesses.60 Counsel for Mr Badreddine seemed to agree with this overall assessment.61 It thus appears that the original imperative for simultaneous testimony, as set out in the Prosecution’s motion, has dissipated.

36. In exercising its discretion, the Trial Chamber should also give weight to the objections, if any, of the opposing party. One such consideration is whether experts testifying concurrently are likely—as Defence counsel asserted—to influence each other’s testimony while testifying. Common sense, however, dictates that experts who have worked together and prepared a joint report are already likely to have ‘influenced’ each other well before their courtroom testimony. The fact that the report is jointly signed normally indicates an agreement as to methodology and conclusions. Moreover, their permissible presence in the courtroom, under Rule 150 (C), during the testimony of a ‘co-expert’ detracts significantly from the argument that only consecutive expert testimony can prevent one expert from influencing the testimony of another.


59 T. 114, 4 February 2015, p. 32-33.

60 F1851, Prosecution Witness Schedule for the Week Commencing 23 February 2015, 13 February 2015.

61 T. 114, 4 February 2015, p. 46.

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37. However, Defence counsel expressed a concern that simultaneous testimony of these witnesses could interfere in their effective cross-examination. Although, for the same preceding reasons, the Trial Chamber does not entirely agree with this argument, it must carefully consider this possibility. That is, in circumstances where; Professor Luccioni and Professor Ambrosini’s evidence is highly technical, concerns matters of forensic importance to the case in the analysis of the crater and of the damage to surrounding buildings caused by the explosion of 14 February 2005, and, significantly, that the Prosecution has now specified their differing contributions to the two reports.62 In these circumstances, the Trial Chamber, in exercising its discretion under Rule 130 (A), is prepared to give this argument some weight.

38. The Trial Chamber also explored with the Parties the possibility of allowing concurrent testimony during examination-in-chief, but followed by the consecutive cross-examination of each witness. The Prosecution and counsel for two of the Accused, however, saw no advantage in this approach.63 The Trial Chamber therefore sees no need to explore this option.

CONCLUSION

39. The difficulties the Prosecution originally envisaged in the timing and the organization of consecutive testimonies of experts working and living far from the seat of the Tribunal in different parts of Argentina64—and when balanced against the Defence objections—do not appear compelling enough to override the normal practice of consecutive testimony. The Trial Chamber is accordingly not convinced that the Prosecution has demonstrated that hearing the two witnesses concurrently would be more efficient than hearing them individually or that it would significantly shorten the proceedings. For these reasons, the Trial Chamber is not satisfied that compelling reasons exist to justify a departure from the ordinary practice of hearing expert witnesses individually rather than consecutively, and dismisses the motion.

62 Prosecution motion, para. 5.

63 T. 114, 4 February 2015, pp 33-34, 56-57, and 72-73.

64 T. 114, 4 February 2015, pp 16-17, and 19.

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DISPOSITION

FOR THESE REASONS, the Trial Chamber:

DISMISSES the Prosecution’s motion.

Leidschendam, The Netherlands 17 February 2015

Judge David Re, Presiding

Judge Janet Nosworthy Judge Micheline Braidy



Title: Decision on Updated Request for a Finding of Non-Compliance

Short title: Finding of Non-Compliance TC

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Date: 27 March 2015


Type of document: Public, with Confidential and Ex Parte annexes

THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON UPDATED REQUEST FOR A FINDING OF NON-COMPLIANCE

Office of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneDefence Office: Mr François RouxLegal Representatives of Participating Victims: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-AbusamraThe Government of the Lebanese Republic

Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan, Mr Emile Aoun and Mr Thomas HannisCounsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz, Mr John Jones and Mr Iain EdwardsCounsel for Mr Hassan Habib Merhi: Mr Mohamed Aouini, Ms Dorothée Le Fraper du Hellen and Mr Jad KhalilCounsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse, Mr Yasser Hassan and Mr Philippe LarochelleCounsel for Mr Assad Hassan Sabra: Mr David Young, Mr Guénaël Mettraux and Mr Geoffrey Roberts

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Finding of Non-Compliance TC

BACKGROUND AND PROCEDURAL HISTORY

1. The Defence of the Accused, Mr Assad Hassan Sabra, requested the Trial Chamber to make a finding that the Government of Lebanon has not complied with the Trial Chamber’s orders to cooperate with the Special Tribunal. On 8 January 2015, they filed a motion under Rule 20 (C) of the Special Tribunal’s Rules of Procedure and Evidence, one version ex parte the Prosecution, asking the Trial Chamber to find that the Government of Lebanon had not complied with several of its orders under Rule 20 (A), seeking an order to the Lebanese Government to obtain and provide information to counsel for Mr Sabra.1 The Prosecution filed a response to the redacted version of the motion,2 to which Defence counsel subsequently replied.3 The Trial Chamber heard oral submissions on 19 and 20 March 2015.4

Trial Chamber’s decision of 31 January 2014

2. In a decision of 31 January 2014, the Trial Chamber—acting pursuant to Article 15 (1) of the Annex to United Nations Security Council resolution 1757 (2007), and Rule 20 (A)—ordered the Government of Lebanon to cooperate with the Special Tribunal by providing certain information to the Defence of Mr Sabra.5 The orders related to 11 requests for assistance that they had sent to the Government of Lebanon through the Head of the Special Tribunal’s Defence Office pursuant to the ‘Memorandum of Understanding between the Government of the Lebanese Republic and the Defence Office on the Modalities of their Cooperation’.

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1810, Updated Request for a Finding of Non-Compliance, 8 January 2015, Confidential and ex parte. A confidential version, F1811, (redacted version of F1810) Updated Request for a Finding of Non-compliance, was filed the same day, as was a public redacted version of F1810.

2 F1824, Prosecution Response to the Sabra Defence’s Updated Request for Finding of Non-Compliance, Confidential and ex parte, 22 January 2015. A redacted confidential version has been filed.

3 F1830, Sabra Defence Reply Regarding its Updated Request for a Finding of Non-Compliance, 28 January 2015, Confidential. A public redacted version has been filed.

4 Transcript of 19 March 2015, pp 51 – 98; Transcript of 20 March 2015, pp 59 – 76.

5 F1379, Decision on Second and Fifth Motions by Counsel for Assad Hassan Sabra and Two Orders to Lebanon to Cooperate with the Tribunal, 31 January 2014.

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Trial Chamber’s decision of 31 March 2014

3. On 31 March 2014, the Trial Chamber issued four further orders to the Lebanese Government to cooperate with the Special Tribunal. These related to 32 requests for assistance that counsel for Mr Sabra had previously sent to the Government of Lebanon, through the Head of the Special Tribunal’s Defence Office.6 The fourth order was ex parte the Prosecution.7

Trial Chamber’s interim decision of 12 May 2014

4. On 14 April 2014, counsel for Mr Sabra filed a motion under Rule 20 (C) asking the Trial Chamber to find that the Government of Lebanon had not complied with some of the Trial Chamber’s orders of 31 January 2014.8 In an interim decision, on 12 May 2014, the Trial Chamber noted that some responses to those orders had been received, but it also expressed its concerns that attempts to comply with one order were ‘at best partial’.9 The Trial Chamber deferred its final determination of the motion because, although it was not yet satisfied that Lebanon had clearly failed to comply with the Trial Chamber’s orders, it wished to monitor its compliance.10

Sabra Defence motion, 12 June 2014—subsequently withdrawn

5. On 5 May 2014, the Lebanese Minister of Justice returned the Trial Chamber’s orders of 31 March 2014 (relating to the 32 outstanding requests for assistance) to the Special Tribunal’s Registrar, without enforcing them.11 Due to an internal Registry administrative oversight, this was not communicated to the Trial Chamber and the

6 F1471, Further Decision on Motions under Rule 20 (A) by Counsel for Assad Hassan Sabra and Four Orders to Lebanon to Cooperate with the Tribunal, 31 March 2014.

7 Further decision, paras 12 and 17.

8 F1495, Consolidated Request for Finding of Non-Compliance, Public with Confidential and Ex Parte annex, 14 April 2014. This motion was filed following the withdrawal on 14 April 2014 of both F1449, Request for Finding of Non-Compliance, which had been filed on 13 March 2014, and F1451, Notification to “Request for Finding of Non-Compliance”, which had been filed on 19 March 2014.

9 Transcript of 12 May 2014, p. 6 (status conference).

10 Transcript of 12 May 2014, pp 6 – 7 (status conference).

11 F1590, Clarification regarding Orders to Lebanon to Cooperate with the Special Tribunal, 23 June 2014, paras 5 – 7.

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Defence Office until 13 June 2014.12 Meanwhile, on 12 June 2014, counsel for Mr Sabra had filed another motion asking the Trial Chamber to find that the Lebanese Government had not complied with the Trial Chamber’s orders of 31 March 2014.13 This motion was filed because the Defence had received no response to the 32 requests for assistance dealt with in the Trial Chamber’s orders of 31 March 2014.14

Trial Chamber’s clarification decision of 23 June 2014

6. On 23 June 2014, the Trial Chamber issued a clarifying decision carefully distinguishing the orders in its decisions of 31 January and 31 March 2014 from requests for assistance sent to the Lebanese Government through the Defence Office’s Memorandum of Understanding. This clarification decision noted that the Lebanese Government had returned the orders under a misunderstanding and explained that the Trial Chamber’s two sets of orders must be enforced by the Lebanese Government, pursuant to Rule 20 (A) and Article 15 (1) of the Annex to United Nations (UN) Security Council resolution 1757.15 As a result, on 1 July 2014, Defence counsel withdrew their motion on 12 June 2014.16

SUBMISSIONS

Defence submissions

7. The Defence submissions explain that the Trial Chamber’s orders relate to 43 requests for assistance sent to the Lebanese Government. The motion details the Lebanese Government’s responses to the orders, the documents that Defence counsel have received, deficiencies in some responses and which of the requests for assistance have been met. The motion notes that between 11 July and 11 September

12 Clarification, para. 5.

13 F1570, Second Request for Finding of Non-Compliance, 12 June 2014.

14 Second request, para. 7.

15 Clarification, para. 12.

16 F1605, Notification of Withdrawal of “Second Request for Finding of Non-Compliance”, 1 July 2014.

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2014, the Defence received material on eleven different dates from the Lebanese Government.17

8. The Trial Chamber’s extended deadline for cooperation by the Government of Lebanon was 8 September 2014, yet, according to Defence counsel, 27 requests for assistance remain outstanding.

9. Counsel for Mr Sabra submit, consequently, that the Lebanese Government has not complied with some of the Trial Chamber’s orders, stating that there ‘are a significant number of glaring omissions in the level of cooperation received from the Lebanese authorities which make it manifestly clear that the Government of the Lebanese Republic is objectively failing to comply with judicial orders of the Tribunal’.18 They therefore ask the Trial Chamber to:

i. find that the Government of Lebanon has not complied with specific orders of the Trial Chamber;

ii. inform the President of the Special Tribunal of this finding so that she may engage in consultations with the Government of Lebanon to obtain the required cooperation; and

iii. request bi-weekly updates from the Government of Lebanon as to the status of the outstanding requests, detailing the steps taken to comply.19

Requests for assistance – annex A to Trial Chamber’s orders of 31 January 2014

10. The schedule to annex A to the Trial Chamber’s orders of 31 January 2014 is ex parte the Legal Representative of Victims, and relates to requests for assistance sent to the Lebanese Government seeking telecommunications information. Counsel for Mr Sabra consider that the Lebanese Government has complied with four of the requests for assistance in the schedule to annex A to the Trial Chamber’s orders of

17 Updated request, para. 13.



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31 January 2014.20 While the Lebanese Government has responded to the remaining requests for assistance, the Defence submits that three responses require further action by the Lebanese Government, and that the fourth was incomplete.21

Requests for assistance – annex B to Trial Chamber’s orders of 31 January 2014

11. The schedule to annex B to the Trial Chamber’s orders of 31 January 2014 is also ex parte the Legal Representative of Victims, and relates to requests for assistance to the Lebanese Government on investigatory information in respect of a Lebanese mobile telephone referred to in the consolidated indictment22 and the Prosecution’s pre-trial brief23 as ‘Purple 018’, namely 3419018. The Defence motion submits that the Lebanese Government has not responded to any of the three requests for assistance listed in the schedule.24 The Lebanese Government, however, has responded to a separate request regarding similar information in relation to the same telephone.

Requests for assistance – annex A to Trial Chamber’s orders of 31 March 2014

12. The schedule to annex A to the Trial Chamber’s orders of 31 March 2014 is likewise ex parte the Legal Representative of Victims, and relates to requests for assistance to the Lebanese Government on telecommunications information. Counsel for Mr Sabra agree that the Lebanese Government has complied with six of the ten requests for assistance in the schedule.25 Although the Lebanese Government


21 Updated request, paras 34-36, Annex A.

22 F1444, Consolidated indictment, 7 March 2014, para. 15 (e).

23 STL-11-01/PT/TC, F1077, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, Redacted Version of the Prosecution’s Updated Pre-Trial Brief, dated 23 August 2013, 31 October 2013, para. 31.

24 Updated request, para. 37 and Annex A.


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has responded to the remaining four requests for assistance, the Defence submits those responses are insufficient, as they simply reiterate previous replies.26

Requests for assistance – annex B to Trial Chamber’s orders of 31 March 2014

13. The schedule to annex B to the Trial Chamber’s orders of 31 March 2014 is ex parte the Legal Representative of Victims, and also relates to requests for assistance to the Lebanese Government seeking telecommunications information. Defence counsel state the Lebanese Government has not responded to the three requests for assistance in that schedule.27

Requests for assistance – annex C to Trial Chamber’s orders of 31 March 2014

14. The schedule to annex C to the Trial Chamber’s orders of 31 March 2014 is ex parte the Legal Representative of Victims, and relates to 16 requests for assistance to the Lebanese Government on a number of issues—a mobile telephone referred to by the Prosecution as ‘Purple 018’, telecommunications information, terrorist groups, and personal details regarding Mr Sabra and his associates.28 Counsel for Mr Sabra consider that the Lebanese Government has complied with four of these.29 While the Lebanese Government has responded to eleven of the remaining twelve requests for assistance, Defence counsel submit that the responses are unsatisfactory,30 either because they do not include replies from some relevant government departments or private companies,31 or because the full request remains unanswered.32

Requests for assistance – annex D to Trial Chamber’s orders of 31 March 2014

26 Updated request, paras 38 – 39 and Annex A.

27 Updated request, para. 40 and Annex A




31 Updated request, paras 43 – 48.


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15. The schedule to annex D to the Trial Chamber’s orders of 31 March 2014 is ex parte the Prosecution and the Legal Representative of Victims, and relates to three requests for assistance sent to the Lebanese Government asking for telecommunications and general investigatory information. Defence counsel agree that the Lebanese Government has complied with two of the three requests for assistance listed in the schedule.33 According to Defence counsel, although the Lebanese Government has responded to the remaining request for assistance, it is incomplete as it does not include replies from relevant government bodies.34

General Defence submissions

16. Defence counsel submit that the Lebanese Government’s lack of response to certain requests for assistance is indicative of its continued failure to assist the Defence and to comply with the Trial Chamber’s orders.35 Receiving some material does not negate this.36

17. The Defence and the Trial Chamber, it is submitted, have now exhausted all available recourse, and, relying upon a decision of the International Criminal Court (ICC) in Kenyatta, the Defence submits that it is insufficient for ‘the Lebanese Government to act as a post box in which it merely sends out the requests in the vain hope that the responses will be adequate’.37 As a consequence, a number of the Defence’s telecommunication-related investigations have been placed on hold for over two years or remain incomplete, pending receipt of material from Lebanon.38 The lack of satisfactory responses or further explanation has caused serious prejudice, particularly in relation to the telecommunication evidence soon to be led





37 Updated request, paras 58 – 59, referring to ICC, Prosecutor v Uhuru Muigai Kenyatta, Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87 (7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908, 31 March 2014, para. 48.


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by the Prosecution.39 This risks frustrating the course of Defence investigations, and jeopardises the fairness and expeditiousness of the proceedings.40

18. Relying upon an International Criminal Tribunal for the Former Yugoslavia (ICTY) decision in Milutinović, Defence counsel submit that the onus is on the Lebanese Government to ensure that the ‘individual requests for assistance are sent to all relevant department[s] and agencies, in particular where the request itself explicitly directs the request to a specific authority’.41 And, referring to an ICC pre-trial decision in December 2014, in Gaddafi, counsel submitted that ‘a finding of non-compliance only requires an objective failure to comply’, meaning that it was ‘irrespective of the Lebanese Government’s underlying reasons or motives’.42 A finding of non-compliance and referral to the Special Tribunal’s President, at this stage, is therefore appropriate. They seek the orders referred to in paragraph 9 above.

Prosecution’s response

19. The Prosecution filed two responses, one of which was partly ex parte all Defence counsel, the Legal Representative for Victims, and the Defence Office. The ex parte and redacted part of the response refers to a decision of the Trial Chamber, dated 2 November 2011, relating to Lebanon’s co-operation with the Special Tribunal.43 The Prosecution subsequently conceded that it had erroneously filed the response ex parte, as the Trial Chamber decision had already been classified inter-partes by a later decision. The response has now been filed inter-partes.44



41 Updated request, para. 58, referring to Prosecutor v Milutinović et al., IT-05-87-PT, Decision on Sreten Lukić’s Amended Rule 54 bis Application, 29 September 2006, para. 9.

42 Updated request, para. 63, referring to Prosecutor v Saif Al-Islam Gaddafi, Decision on the non-compliance by Libya with requests for cooperation by the Court referring the matter to the United Nations Security Council, ICC-01/11-01/11-577, 10 December 2014, para. 33.

43 STL-11-01/I/TC, F0066, Confidential, Decision on the Confidential and ex parte Prosecution’s Request for a Judicial Finding that the Lebanese Authorities Have Failed to Comply with the Arrest Warrants pursuant to Rule 20 (C), 2 November 2011.

44 Transcript of 17 March 2015, p. 34, referring to F1588, Decision on the Prosecution Motion to Reclassify Two Decisions, 20 June 2014 (which contains a limited redaction to one paragraph). The Trial Chamber ordered the Prosecution’s ex parte response to be reclassified as inter-partes.

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20. The Prosecution submitted, generally, that a process of cooperation between the Sabra Defence and the Lebanese Government is now underway, and that the Government of Lebanon has responded to almost all requests for assistance.45 Consequently, the Trial Chamber should consider the efforts of the Lebanese Government to comply with all aspects of the orders of 31 January 2014 and 31 March 2014, rather than just those relied upon by the Sabra Defence.46

21. Where the Lebanese Government has responded, an assertion by the Defence that the response is inadequate does not by itself demonstrate non-compliance,47 but rather demonstrates at least an attempt to comply.48 Further, a finding of non-compliance would require a factual determination that the Lebanese Government’s compliance was inadequate; this does not seem possible based on the information before the Trial Chamber,49 because ‘such a finding cannot be made on the basis that the Sabra Defence asked for more information or material than was provided’.50

22. The Trial Chamber must first find that the further information or material exists, and is in the hands of the Lebanese Government.51 To illustrate, in relation to the responses to three specific requests for assistance,52 Defence counsel submitted that the relevant telecommunications company had responded, saying that the information was unavailable, and that ‘the employees that may help to find such data had left the company’. However, although the Defence had the names of these employees, it submitted that neither the Lebanese Government nor the company had

45 Prosecution Response, para. 2.


47 Prosecution Response, para. 15 (regarding the Trial Chamber’s Orders of 31 January 2014, Annex A).

48 Prosecution Response, para. 16 (regarding the Trial Chamber’s Orders of 31 January 2014, Annex A).

49 Prosecution Response, para. 18 (regarding the Trial Chamber’s Orders of 31 January 2014, Annex A), paras 21 – 27 (regarding the Trial Chamber’s Orders of 31 January 2014, Annex B), para. 29 (regarding the Trial Chamber’s Orders of 31 March 2014, Annex A), paras 33 – 35 (regarding the Trial Chamber’s Orders of 31 March 2014, Annex C). The Prosecution states (in para. 37) that it is unable to make submissions regarding Annexes B and D of the Trial Chamber’s Orders of 31 March 2014. Annex D relates to the fourth order which was made ex parte the Prosecution.

50 Prosecution response, para. 35.


52 From Trial Chamber’s Orders of 31 January 2014, Annex A, requests 40(84), 42(86) and 44(90).

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conducted any follow-up.53 The Defence had not articulated what further steps it would have expected the Lebanese authorities to have taken in these circumstances nor have Defence counsel cited any legal authority supporting that failing to conduct such additional steps means that there has been a non-compliance with the cooperation orders.54

23. The Prosecution cannot comment upon the accuracy of the response, however, the passage of time and the absence of other information regarding record keeping could explain why no other answer was possible. To find non-compliance, the Trial Chamber must first factually determine that the response was inadequate.55

24. Further, the Defence has provided no legal authority supporting any submission that the Lebanese Government has some obligation to engage in ‘quality control’ on the responses received from ‘source providers’.56 Similarly, the Defence submitted that certain responses to requests for assistance—in circumstances where a company had merely reiterated its earlier responses, but without additional comment—were insufficient.57 However, the Trial Chamber had made no finding of non-compliance; and to do so, it would first have to find that the company possessed, and did not provide, the necessary additional information.58 Moreover, any claim of prejudice, from alleged non-compliance is speculative. The only issue before the Trial Chamber is of compliance with its orders, not unfairness resulting from purported non-compliance.59

25. The standard for finding non-compliance is not objective; the Trial Chamber’s and Pre-Trial Judge’s decisions have held that Lebanon should be heard before such






58 Prosecution response, paras 28 – 29.

59 Prosecution Response, paras 38 – 39.

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a finding is made.60 Moreover, the ICC case of Gaddafi is distinguishable because, in that case, the Court’s orders obliged Libya to surrender an Accused—already long detained by the Libyan authorities—to the Court and to return seized documents to his lawyers.61

26. Further, the Prosecution was unaware of any finding of non-compliance in circumstances where a party had argued that a response to a Tribunal’s orders was argued to be inadequate or incomplete. Coercive or punitive measures are used on an exceptional basis and cooperative processes are favoured wherever possible—and, referring to the International Criminal Tribunal for Rwanda (ICTR) case of Nahimana—‘as a matter of policy and in order to foster good relations with States’.62 The ICTY case of Milutinović was also distinguishable because there the ICTY could reasonably have determined that Serbia’s response, in the circumstances, was inadequate.63

27. Finally, a finding by the Trial Chamber that the Government of Lebanon had not complied with its orders, at this stage, would only result in consultations between the President and the Government of Lebanon, under Rule 20 (C). Those consultations may obviate the need for the bi-weekly reporting sought by the

60 Prosecution Response, para. 6, referring to STL-11-01/I/PTJ, F0099, Decision on Prosecution’s Confidential and ex-parte Request for a Judicial Finding that the Lebanese Authorities Have Failed to Comply with the Arrest Warrants pursuant to Rule 20 (C) of the Rules, 22 December 2011; and Transcript of 12 May 2014, pp 3 – 7 (status conference).


62 Prosecution Response, para. 9, referring to ICTR, Prosecutor v Nahimana, ICTR-99-52-T, Decision on the Motion to Stay the Proceedings in the Trial of Ferdinand Nahimana’, 5 June 2003, para. 10.

63 Prosecution Response, para. 10. This decision concerned an order to the Republic of Serbia to produce documents, before non-compliance could be asserted. The Lukić Defence had asked the Serbian authorities for certain information, at least in part, pertaining to criminal charges against Serbians, Albanians and others. The Serbian authorities forwarded the request only to their Military Intelligence Agency, which responded that it did not have the requested information. The Trial Chamber noted that the information sought by the Lukić Defence was likely to be in the possession of other entities, such as the Ministry of Justice and that the request had not been limited to the Military Intelligence Agency. Noting the extensive efforts of the Lukić Defence to obtain voluntary cooperation, the Trial Chamber ordered Serbia to produce the requested documents. ICTY, Prosecutor v. Milutinović et al., IT-05-87-T, Decision on Sreten Lukić’s Amended Rule 54 bis Application, 29 September 2009, para. 9.

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Defence,64 therefore reporting should not be ordered at this time.65 And, if the Trial Chamber does not dismiss the updated request, the Lebanese Government should be given an opportunity to be heard.66

Defence reply

28. In their reply, counsel for Mr Sabra sought an order requesting reclassification as inter-partes the documents referred to the Prosecution’s redacted response. This has been dealt with in paragraph 19 above and is now moot. Defence counsel disputed that the Trial Chamber should allow the Lebanese Government an opportunity to be heard.67

29. Counsel argued that the Special Tribunal’s statutory framework does not require that a State be heard before a finding can be made that the State has not complied with orders, whereas, for example, Regulation 109 (3) of the ICC’s Regulations of the Court has such a requirement.68 Further, while agreeing that a finding of non-compliance is a serious matter, Rule 20 (C) has a two-step process, and the most serious consequences do not arise at the first step, which only involves consultation between the Special Tribunal’s President and the Lebanese Government.69 The obligation to hear a State is for the Special Tribunal’s President alone, following, not before, a finding of non-compliance.70 The consultation suggested by the Prosecution would ‘further delay a process that has already taken years and which has negatively affected the Defence ability to prepare’.71 The Trial Chamber has already given the

64 Updated request, paras 67 and 70; see para. 9 above.


66 Prosecution Response, para. 20 (regarding the Trial Chamber’s Orders of 31 January 2014, Annex A); para. 27 (regarding the Trial Chamber’s Orders of 31 January 2014, Annex B); para. 30 (regarding the Trial Chamber’s Orders of 31 March 2014, Annex A); and para. 36 (regarding the Trial Chamber’s Orders of 31 March 2014, Annex C). Regarding the Trial Chamber’s Orders of 31 March 2014, Annexes B and D, see para. 37, where it is submitted only that if the Trial Chamber was not minded to dismiss the Updated request, that it should allow the Lebanese Government to be heard on the issue. See also, transcript of 12 May 2014, pp 3 – 7 (status conference).

67 Sabra reply, paras 2 and 19.

68 Sabra reply, para. 7.

69 Sabra reply, paras 9 – 11.


71 Sabra reply, para. 13.

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Lebanese Government ample time and opportunity to be heard, as it had notice that its compliance would be carefully monitored.72


DISCUSSION

30. As a preliminary matter, the Trial Chamber agrees with the Prosecution’s submission that it should confine its determination to whether the Lebanese Government has complied with its orders, rather than dealing with any prejudice that may flow from a finding of non-compliance. To consider the issue of prejudice, the Trial Chamber should first make a finding of non-compliance. The issue for determination is therefore whether Lebanon has failed to comply with the Trial Chamber’s orders issued on 31 January and 31 March 2014, and if so, should the Trial Chamber make a finding of non-compliance. This also involves deciding whether the relevant legal standard for making such a finding simply requires, as is argued by Defence counsel, an objective non-compliance. A finding of non-compliance would trigger the consultation mechanism between the President of the Special Tribunal and the ‘Lebanese authorities’ envisaged in Rule 20 (C) and therefore possibly a referral to the UN Security Council.

31. The Trial Chamber has also already decided that it will not make such an order without first allowing the Lebanese Government to make submissions.73

The relevant legal principles

32. The Special Tribunal’s Rules specify a four-step process in circumstances of an alleged non-compliance; the first is a finding of non-compliance by a Chamber while the second requires the President to consult the Lebanese authorities. Third, a Chamber must then be of the view that a satisfactory response is still unforthcoming within a reasonable timeframe, and fourth—and only then—the President has a duty to refer it to the UN Security Council. This is set out in Rule 20 (C), which provides:

73 Transcript of 12 May 2014, pp 6 – 7 (‘The Trial Chamber will not, at this stage, make such a finding. And if it were considering making such an order, it would first seek to hear submissions from the Lebanese government’).

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where the Lebanese authorities fail, within thirty days of notification of an order under paragraphs (A) and (B), to comply with it, the Pre-Trial Judge or a Chamber, as appropriate, may make a finding to that effect. The President shall engage in consultations with the relevant Lebanese authorities with a view to obtaining the required cooperation. If, in the view of the Pre-Trial Judge or a Chamber, after consultation with the President, a satisfactory response has still not been provided within a reasonable timeframe, the President shall make a judicial finding to that effect and refer the matter to the Security Council for consideration and further action, as the Council deems appropriate. (italics added)

33. Rule 20 (C) plainly provides—by using ‘may’ instead of ‘shall’—that the Chamber’s decision under the Rule is discretionary. Defence counsel, however, in their submissions, and relying upon the case-law of the ICC, have argued that the Chamber’s decision is ‘objective’. It is somewhat unclear, however, what this actually means.

34. The cooperation and compliance regimes of other international courts and tribunals differ in some technical details. Although a failure to cooperate may ultimately also lead to a referral to the Security Council—or, in the case of the ICC, also or alternatively to its Assembly of States Parties—they are similar in principle to the Special Tribunal’s, but with variations in the intermediate steps. For example, the ICTY’s Rules of Procedure and Evidence skip the second and third steps in the Special Tribunal’s Rule 20 (C) of further consultations before the President shall

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make a report to the Security Council.74 The ICTR’s equivalent is almost identical.75 The Special Court for Sierra Leone (SCSL), like the Special Tribunal for Lebanon, and the ICTY and ICTR—created pursuant to a Security Council resolution passed under Chapter VII of the Charter of the United Nations—has a similar agreement between the UN and a Government and a similar Rule to the ICTR’s.76 Article 87 (7) of the ICC’s Rome Statute—under the heading ‘Requests for cooperation: general provisions’—is closer to the Special Tribunal’s in the first step, and provides:

where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. (italics added)

35. To summarise: for a finding of non-compliance, both the Special Tribunal’s Rules and the ICC’s Rome Statute provide that the Chamber may make such a finding after a failure to comply with an order; whereas those of the ICTY, ICTR and SCSL provide that a Chamber may advise the President if it is satisfied that non-compliance

74 Rule 7 bis (A) provides, ‘where a Trial Chamber or a permanent Judge is satisfied that a State has failed to comply with an obligation under Article 29 of the Statute which relates to any proceedings before that Chamber or Judge, the Chamber or Judge may advise the President, who shall report the matter to the Security Council’. (italics added)

The ICTY Statute was annexed to Security Council Resolution 827 of 1993 passed under Chapter VII of the Charter of the United Nations, thereby obligating all member states to comply with the Resolution, including Article 29 of the Statute.

Article 29 provides ‘1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence;

(c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal’.

75 Rule 7 bis providing relevantly, ‘where a Trial Chamber or a Judge is satisfied that a State has failed to comply with an obligation under Article 28 of the Statute relating to any proceedings before that Chamber or Judge, the Chamber or Judge may request the President to report the matter to the Security Council’.

76 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002. The SCSL’s Rules of Procedure and Evidence Rule 8 is in similar terms to the ICTY and ICTR’s Rule 7 bis (A), providing relevantly: ‘where a Chamber or a Judge is satisfied that the Government of Sierra Leone has failed to comply with a request made in relation to any proceedings before that Chamber or Judge, the Chamber or Judge may refer the matter to the President to take appropriate action’. (italics added)

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has occurred. Thus the Special Tribunal and ICC’s statutory instruments specify that the finding is discretionary. While those of the other three are silent on this, their case-law holds that such a decision is discretionary.77

The standard for making a finding of non-compliance – objective or non-objective?

36. The Defence motion—citing to a single unsourced paragraph in the ICC Pre-Trial decision in Gaddafi—argues that the Trial Chamber should adopt ‘an objective standard’ in deciding whether Lebanon had failed to comply with the Trial Chamber’s orders of 31 January and 31 March 2014. No contrary sources were cited. In oral submissions on 19 March 2015, counsel for Mr Sabra elaborated on this argument by submitting that, whereas the decision of what to do about non-compliance is subjective, the finding of non-compliance is purely objective. The Trial Chamber may only make the objective determination of non-compliance, while the subjective decision rests with the President,78 as opposed to other international tribunals where the same judicial organ does both.79

37. However, when questioned on the meaning of the word ‘may’ in Rule 20 (C), counsel accepted that it allows the Trial Chamber to give the State more time.80 In this respect, the submission on this point appears to be self-contradictory; having an objective standard simpliciter is incompatible with having a discretion allowing a State more time.

38. Counsel for Mr Sabra attempted to further clarify this position by submitting that it was not that the Trial Chamber has no discretion under Rule 20 (C), but

77 For example, the ICTY’s Rules 54 and 54 bis authorize Chambers to issue orders to States to produce documents, and its Appeals Chamber has held that it such a decision is discretionary, meaning that it ‘will not conduct a de novo review’ of such a decision; see Prosecutor v. Milutinović et al., IT-05-87-AR108bis.2 Decision on Request of the United States of America for Review, 12 May 2006, para. 6.

78 See, e.g., Transcript of 19 March 2014, p. 61 (‘Rule 20 (C)…distribute[s] the competence and the responsibility of those two issues, the responsibility of making a finding of non-compliance and the responsibility of what to do about it, to two different judicial authorities. The first question goes to … the Trial Chamber…; the second question, the question of relief and potentially the transfer of the matter to the Security Council goes to the President’).

79 Transcript of 19 March 2015, pp 59 – 62, 71 – 74 and 79.

80 Transcript of 19 March 2015, pp 79 – 80.

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rather ‘the discretion of the Chamber … is only a discretion as to whether or not to make a finding to that effect. It doesn’t affect the preliminary question of the test to be applied for the Chamber to satisfy itself whether or not there had been non-compliance’.81 This, however, reduced the submission supporting an objective standard to the point where counsel effectively conceded that the Trial Chamber has a discretion in deciding whether to make a formal finding of non-compliance. In other words, the standard for making the determination of non-compliance may have a subjective element, or one of reasonableness.

39. At the conclusion of the oral arguments, the Sabra Defence position appeared to have contracted to arguing that some objective non-compliance necessarily precedes a formal finding of non-compliance. But this is self-evident; an objective failure—in the strict sense of not having done something—must necessarily precede a finding of non-compliance. And this does not mean that a finding of non-compliance should be based solely on an objective failure.

40. Counsel for Mr Mustafa Amine Badreddine, on invitation of the Trial Chamber, in oral submissions on 19 March 2015, also argued that the test was, firstly, objective, but then conceded that this step would be followed by ‘an examination of whether there is any excuse, justification, [or] any motives for the non-compliance, and that’s clearly a subjective test’.82

41. This can only mean the test is partly subjective or has an element of reasonableness. But counsel then attempted to reconcile the two competing standards by submitting that ‘you can have an objective test and yet there be a discretion because the Trial Chamber could decide, yes, there’s been non-compliance but we’re not going to make that finding for the moment for whatever reason’.83

42. In every other international decision that the Trial Chamber can find—including those cited by Defence counsel in their oral submissions in support of their

81 Transcript of 20 March 2015, pp 75 – 76.

82 Transcript of 19 March 2015, p. 87. Submissions by Mr John R. W. D. Jones, who is also assigned lead counsel for Mr Saif Al-Islam Gaddafi at the ICC, and who had submitted the Defence submissions leading to the ICC Pre-Trial’s decision in Gaddafi.

83 Transcript of 19 March 2015, p. 89.

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argued objective standard84—the relevant Court or Tribunal has either determined otherwise, or decided the issue consistently with having used a standard that includes a determination of reasonableness.

43. This includes the Gaddafi decision itself where the ICC Pre-Trial Chamber held, at paragraph 33, that a finding of non-compliance under Article 87 (7) ‘only requires an objective failure to comply, regardless of the State’s underlying motives…’85 The Gaddafi decision, however, is footnoted only to a filing by the Defence of Mr. Saif Al-Islam Gaddafi,86 which itself only sources Article 12 of the International Law Commission’s (ILC) 2001 Draft Articles on State Responsibility.87

44. The decision itself does not cite these Draft Articles, nor any case-law or commentary on Article 12. That article provides, ‘[t]here is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation regardless of its origin or character.’ And while the United Nations Commentaries to the Draft Articles88 suggest that the

84 Transcript of 19 March 2015, pp 67 – 84, citing ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-PT, Décision sur la requête urgente de Callixite Nzabonimana demandant à la Chambre d’ordonner à la France coopération et assistance, 2 July 2009; ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-T, Decision on Nzabonimana’s Motion Asking the Chamber to Request the President to Report the Matter of France’s Refusal to Cooperate to the Security Council, 19 October 2009; ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-T, Decision on Nzabonimana’s Motion for a Stay of Proceedings; Reconsideration and/or Certification of Decision rendered on 29 October 2009; and Reconsideration and/or Certification of the Decision rendered on 30 October 2009, 13 November 2009; ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-T, Decision on Defence Motion to Reconsider Prior Trial Chamber Decisions on France’s Cooperation with the Tribunal, 4 March 2010. Counsel for Mr Sabra also submitted that Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, ICC-02/05-01/07, Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan, dated 25 May 2010, employed an objective standard. The Trial Chamber, having attempted to comprehend the indecipherable wording of the decision, cannot see how it supports the Defence’s position in any meaningful way.

85 Updated request, para. 63, referring to Prosecutor v. Saif Al-Islam Gaddafi, Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577, 10 December 2014, para. 33.

86 But without providing any commentary or authority that for particular interpretation; ICC-01/11-01/11-533, Gaddafi Defence Response to “Libyan Application for extension of time related to the Pre-Trial Chamber I’s ‘Decision requesting Libya to provide submissions on the status of the implementation of its outstanding duties to cooperate with the Court”, 5 June 2014, para. 89.

87 Responsibility of States for Internationally Wrongful Acts, 2001, Annex to General Assembly resolution 56/83 of 12 December 2001, corrected by document A/56/49 (Vol. I)/Corr. 4.

88 Article 2 of the Draft Article, Elements of an internationally wrongful act of a State, ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under

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standard for determining a State’s non-compliance may be objective,89 the ILC’s 2001 Report states about Article 12:90

But in the final analysis, whether and when there has been a breach of an obligation depends on the precise terms of the obligation, its interpretation and application, taking into account its object and purpose and the facts of the case.

45. Interpretation, obviously, depends upon the circumstances. And, it may be more nuanced than suggested by either paragraph 33 of the Gaddafi decision, or the Sabra Defence submissions.91

46. The Prosecution, in its oral arguments of 19 and 20 March 2014, urged the Trial Chamber to examine what the Gaddafi decision actually did, rather than what it said.92 This is what the Trial Chamber has done.

international law; and (b) constitutes a breach of an international obligation of the State.’ The commentary reads, ‘A related question is whether fault constitutes a necessary element of the internationally wrongful act of a State. This is certainly not the case if by “fault” one understands the existence, for example, of an intention to harm. In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of a State that matters, independently of any intention’; Report of the International Law Commission, United Nations, New York, 2001, General Assembly, A/56/10, p. 73.

89 See Brownlie’s Principles of Public International Law, eighth edition, Crawford, James, Oxford, 2012, at pp. 556, 559, footnoted at p. 559 to two international arbitration cases. Citing to international arbitration cases, on ‘objective responsibility’ Judge Crawford writes, ‘The practice of states and the jurisprudence both of arbitral tribunals and the International Court [of Justice] have followed the theory of objective responsibility as a general principle (which may be modified or excluded in certain cases)’. And, on the issue of motive,

‘Indeed, the principle of objective responsibility dictates the irrelevance of intention to harm as a condition of responsibility. Yet general propositions of this sort should not lead to the conclusion that intention plays no role. For example, the existence of a deliberate intent to injure may have an effect on remoteness of damage as well as helping to establish the breach of duty’.

90 Report of the International Law Commission, United Nations, New York, 2001, General Assembly, A/56/10, p. 124.

91 For example, see Report of the International Law Commission, United Nations, New York, 2001, General Assembly, A/56/10, pp 69-70, about Article 2: ‘Whether there has been a breach of a rule may depend upon the intention or knowledge of relevant State organs or agents and in that sense may be “subjective”. For example article II of the Genocide Convention […]. In other cases, the standard for breach of an obligation may be “objective” in the sense that the advertence or otherwise of relevant State organs or agents may be irrelevant. Whether responsibility is “objective” or “subjective” in this sense depends on the circumstances, including the content of the primary obligation in question. The articles lay down no general rule in that regard. The same is true of other standards, whether they involve some degree of fault, culpability, negligence or want of due diligence. Such standards vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation. Nor do the articles lay down any presumption in this regard as between the different possible standards. Establishing these is a matter for the interpretation and application of the primary rules in the given case’.

92 Transcript of 19 March 2015, pp 91– 94; Transcript of 20 March 2015, p. 65.

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47. An objective standard, as opposed to one of strict liability, normally includes an assessment of the reasonableness of the actions under scrutiny. The Gaddafi decision, however, on one hand, holds that it is applying an ‘objective’ standard, but then, on the other, appears to interpret Article 87 (7) according to strict liability principles. Gaddafi states that the standard for determining non-compliance only ‘requires an objective failure to comply’ but paradoxically then states that this is ‘regardless of the State’s underlying motives’, and further, that Article 87 (7) is ‘value-neutral’. This appears to remove from the test any assessment of the reasonableness of a State’s action, thereby applying a test of strict liability to Article 87 (7). Ultimately this may come down to a matter of terminology in using the words ‘objective failure to comply’ instead of ‘strict liability’. But there is a large legal difference between using an objective standard, under which reasonableness may be assessed, and strict liability test, in which it is not. This is a crucial distinction in assessing the actions of a State.

48. The Gaddafi decision’s finding at paragraph 33 actually seems to contradict the Pre-Trial Chamber’s actions and decisions in the protracted proceedings preceding its finding that Libya had failed to comply with the Court’s orders, and other parts of the decision. For example, at paragraph 12, the Chamber explained that five months earlier, it had allowed Libya to ‘submit, at a later time, any relevant information to both the implementation of the duty to surrender Saif Al-Islam Gaddafi and the political and security situation in the country’. And, further, at paragraph 23, it held that ‘a determination on whether to make a finding of non-compliance and decide to refer the matter to the Security Council is discretionary in nature and is part of the broader consideration of the most effective modality to ensure that the Court’s cooperation requests are implemented’. These two paragraphs contradict the finding in paragraph 33 that a finding of non-compliance is ‘value-neutral’.

49. Further, the Gaddafi findings related to the failure to surrender a person who was in the custody of the Libyan authorities—although not necessarily that of the Libyan Government—and to return specified documents that were in the hands of those same authorities.93 Those facts were uncontested and it was evident that the


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Libyan Government had, in this sense at least, objectively failed to comply with the Court’s two requests for cooperation. By contrast, here, the Trial Chamber has not found that the information which is the subject of the supposedly outstanding requests for assistance either (a) exists or (b) is in the Lebanese Government’s possession. On this basis alone—despite the internal inconsistency in Gaddafi—that decision is distinguishable.

50. The Gaddafi decision is also at odds with the decision in Kenyatta, issued a week earlier, which held that:

…even where it has been determined that a State has failed to comply with a request for cooperation and that this failure has prevented the Court from exercising its functions under the Statute, the Chamber has to consider whether making a finding pursuant to Article 87 (7) of the Statute is appropriate in the circumstances.

and

In determining that a State has failed to comply with a request for cooperation under the first part of Article 87 (7) of the Statute, the Chamber considers that a certain restraint is appropriate ….

51. In an earlier decision, the Kenyatta Trial Chamber, although not mentioning any standard for determining non-compliance, issued orders to ‘direct’ the Prosecution and the Government of the Republic of Kenya to ‘engage in cooperation’, and emphasised that ‘this process should be carried out in good faith and it is expected that timely and meaningful efforts will be made on an inter partes basis to resolve any difficulties which may arise during the course of the cooperation’.94 This is also consistent with the ICTY and ICTR’s case-law.95

94 Kenyatta, Decision of 31 March 2014, paras 100 – 101 and p. 46 (disposition).

95 For example, the ICTY Appeals Chamber has held, in relation to its Prosecutor’s allegation that the Republic of Croatia had not complied with an order of the Tribunal, that it ‘must be satisfied that the State has clearly failed to comply with the order or request’, and that to make a finding, the Tribunal must act on ‘all the principles and rules of judicial propriety’ to ‘scrutinise[] the behaviour of a certain State in order to establish formally whether or not that state has breached its international obligation’; Prosecutor v Tihomir Blaškić, IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 35. ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-T, Decision on Nzabonimana’s Motion Asking the Chamber to Request the President to Report the Matter of France’s Refusal to Cooperate to the Security Council, 19 October 2009, para. 18 (calling the resort to a referral to the Security

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52. Finally, as a matter of statutory interpretation under Rule 3,96 the Trial Chamber, before examining external sources, must first look to the Special Tribunal’s statutory instruments. Rule 20 (C), on its face, in specifying that the decision is discretionary, provides for a non-objective standard of determination.

53. From this, the Trial Chamber concludes that an objective standard—even including an assessment of reasonableness—may suffice for determining a finding of non-compliance against a State. However, such a failure of itself does not mandate a finding of non-compliance. Whether a failure simpliciter suffices will thus depend upon the circumstances. For example, a complete and repeated failure to respond without any explanation may justify a finding on those grounds. That, however, is not the case here. The Trial Chamber therefore declines to follow paragraph 33 of the decision in Gaddafi.

54. In view of this analysis, the Trial Chamber reiterates the importance of not selectively citing case-law in submissions. To assist the Trial Chamber to make an informed decision, the Parties should cite the relevant case-law both for and against the proposition argued, bearing in mind the entirety of the reasoning in the decision, and then submit why the Trial Chamber should prefer one over any other.

55. The following principles emerge from the international case law—including that of the Special Tribunal:

• compliance is a continuing process;97

Council a remedy of last resort); ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-T, Decision on Nzabonimana’s Motion for a Stay of Proceedings; Reconsideration and/or Certification of Decision rendered on 29 October 2009; and Reconsideration and/or Certification of the Decision rendered on 30 October 2009, 13 November 2009, paras 39 – 40; ICTR, Prosecutor v. Callixite Nzabonimana, ICTR-98-44D-T, Decision on Defence Motion to Reconsider Prior Trial Chamber Decisions on France’s Cooperation with the Tribunal, 4 March 2010, para. 31.

96 Rule 3 (A): ‘The Rules shall be interpreted in a manner consonant with the spirit of the Statute and, in order of precedence, (i) the principles laid down in customary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969), (ii) international standards on human rights, (iii) the general principles of international criminal law and procedure, and, as appropriate (iv) the Lebanese Code of Criminal Procedure.’

97 Kenyatta, Decision of 3 December 2014, para. 40. See also, Gaddafi, Decision of 10 December 2014, para. 23 (‘…a determination on whether to make a finding of non-compliance and decide to refer the matter to the Security Council is discretionary in nature and is part of the broader consideration of the most effective modality to ensure that the Court’s cooperation requests are implemented’).

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• a presumption exists of good faith on the part of States in cooperating with the relevant international court or tribunal;98

• making a finding of non-compliance against a State is discretionary;99

• a certain restraint is appropriate in making findings of non-compliance;100

• a court must act on all the principles and rules of judicial propriety to scrutinise the behaviour of a State to establish formally whether it has breached its international obligation to cooperate;101

• where there is some compliance and explanation for any non-execution of a request for assistance or an order for cooperation, it may be necessary to rebut a presumption of good faith;102 and

• a State should be heard before a Chamber makes a finding of non-compliance.103

56. In determining whether the Government of Lebanon has failed to comply with its orders, the Trial Chamber will use these principles.

Has the Government of Lebanon complied with the Trial Chamber’s orders?

57. In its orders of 31 January and 31 March 2014, the Trial Chamber ordered the Government of Lebanon to comply with 43 Defence requests for assistance. Counsel

98 Kenyatta, Decision of 3 December 2014, para. 40. See also, Nzabonimana, Decision of 19 October 2009, para. 18 (‘…the Trial Chamber is not prepared at this stage to conclude that [France’s] failure to fully comply … is deliberate, in bad faith, or is intended to impede the fair and expeditious conduct of the proceedings’ (italics added)).

99 Nzabonimana, Decision of 19 October 2009, para. 18; Nzabonimana, Decision of 4 March 2010, para. 30; Kenyatta, Decision of 3 December 2014, paras 39 – 40; Gaddafi, Decision of 10 December 2014, para. 23.

100 Blaškić, Decision of 29 October 1997, para. 31 (endorsing the use of cooperative processes before resort to mandatory compliance); Kenyatta, Decision of 3 December 2014, para. 39.

101 Blaškić, Decision of 29 October 1997, para. 35; Kenyatta, Decision of 3 December 2014, para. 39.

102 Kenyatta, Decision of 3 December 2014, para. 40.

103 STL-11-01/I/TC, F0066, Confidential, Decision on the confidential and ex parte Prosecution’s request for a judicial finding that the Lebanese authorities have failed to comply with the arrest warrants pursuant to Rule 20 (C), 2 November 2011, para. 10; Gaddafi, Decision of 10 December 2014, para. 24. See Kenyatta, Decision of 3 December 2014, para. 40.

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for Mr Sabra consider that 16 have been complied with to their satisfaction.104 On their assessment, they have received no response to seven requests for assistance, and the Lebanese Government has replied to another 20, although, according to the Defence, in an incomplete or otherwise unsatisfactory manner.

58. These 27 seven requests for assistance may be classified in the following six (overlapping) categories:

(i) Four requests for assistance in relation to Lebanese telephone number 3419018, supposedly without reply or inadequate reply;105

(ii) Five requests for assistance in relation to a named person where replies have been received, but the Defence submits that further materials should have been provided,106 and one in relation to the same person to which the Lebanese Government has not responded;107

(iii) One request for assistance in relation to ‘terrorist groups’ where there was a response from a Government body, and the Defence considers other bodies should also have replied;108

(iv) Eight requests for assistance where the replies do not include a response from a Lebanese Ministry specified by the Defence, and which the Defence considers should be included;109

(v) Three requests for assistance made in relation to a telecommunications company, where there has been no reply,110 and six where the replies


105 Requests (1) 108, (2) 109 and (3) 110 in the schedule to annex B to the orders of 31 January 2014, and request 107 from the schedule to annex C of the orders of 31 March 2014.

106 Requests 111 – 115 in the schedule to annex C to the orders of 31 March 2014.

107 Request 116 in the schedule to annex C to the orders of 31 March 2014.

108 Request 99 in the schedule to annex C to the orders of 31 March 2014.

109 Request 30 (41) in the schedule to annex A to the orders of 31 January 2014. Requests 114, 115, 64, 66, 70 and 71 in the schedule to annex C to the orders of 31 March 2014. Request 117 in the schedule to annex D to the orders of 31 March 2014.

110 Requests 4, 15 and 23 in the schedule to annex B to the orders of 31 March 2014.

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received do not include a response from the same company, where the Defence considers they should have responded;111

(vi) Three requests for assistance where a different company replied that it does not have the information requested,112 and four requests for assistance where the company replied by referring to previous responses to earlier requests for assistance, without providing any further information, despite the different phrasing of the earlier requests for assistance.113

59. The Trial Chamber’s overall evaluation is that the Lebanese Government’s responses are considerable, and that the ‘continuing process’ of compliance is advanced, although not yet complete. But despite this progress, some concerns remain. For example, the Trial Chamber noted on 12 May 2014 that there had been no reply in relation to any of the three requests for assistance in the schedule to annex B to the orders of 31 January 2014, relating to Lebanese telephone number 3419018.114 The situation regarding both the lack of responses to these three requests for assistance, and the concerns of the Trial Chamber, therefore remains unchanged. The Lebanese Government, however, responded to a separate request for similar information about that telephone number. Any conflict between the non-response to one request for assistance and a response to a similar one thus needs to be resolved. However, the Trial Chamber is unable, at this stage, without any further information from the Lebanese government, to make a qualitative assessment of the alleged non-compliance.

60. The situation regarding other matters is not clear cut. For example, Defence counsel previously acknowledged that the company specified in paragraph 58 (v) above, has provided responses to numerous other requests for assistance.115 Further, the relevant Ministry, referred to in paragraph 58 (iv), actively obtained the relevant

111 Requests 112, 114, 115, 70, 71 in the schedule to annex C to the orders of 31 March 2014.

112 Requests 40 (84), 42 (86) and 44 (90) in the schedule to annex A to the orders of 31 January 2014.

113 Requests 16, 23, 47 and 63 in the schedule to annex A to the orders of 31 March 2014.

114 Transcript of 12 May 2014, p. 6.

115 Consolidated request, Annex A.

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telecommunications information from other companies.116 And while Defence counsel are not satisfied with some responses from the telecommunications company mentioned in paragraph 58 (vi), they acknowledge that this organisation has provided satisfactory responses to other requests for assistance.117

61. In the totality of the circumstance, the Trial Chamber therefore still considers it premature to find, as sought by Defence counsel, that the Lebanese Government has failed to assist the Defence and comply with the Trial Chamber’s orders.118 However, the issue of possible non-compliance has to be resolved in a timely manner. The Trial Chamber will accordingly allow the Government of Lebanon a further period of 21 days from its receipt of this decision, in Arabic, to finalise its responses to any outstanding Defence requests for assistance the subject of this motion. These deficiencies—as alleged by Defence counsel—are set out in the annexes to this decision.

62. Annex I is a straightforward list, based on the Defence submissions, of possible deficiencies in relation to the responses (or lack of), to each request for assistance in the schedules to the annexes to the orders of 31 January and 31 March 2014.

63. To assist the Government of Lebanon to identify any particular difficulties in finalising the process of compliance, annex II contains the same information as annex I, but is organised in themes similar to those identified in paragraph 58 above. The alleged deficiencies are listed by organisation or topic, or whether it is claimed the Lebanese Government has not responded. Annex III contains information about request 117, which was contained in the schedule to annex D to the Trial Chamber’s orders of 31 March 2014 and is ex parte the Prosecution.

64. The orders and schedules annexed to the Trial Chamber’s orders of 31 January and 31 March 2014 are definitive of the outstanding requests for assistance as of those dates, but the Trial Chamber hopes that the annexes to this decision will assist the Government of Lebanon to finalise this process as soon as possible.


117 Consolidated request, Annex A. Updated request, para 32 and Annex A.


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65. The Trial Chamber understands that, in some cases, the Lebanese Government may neither possess the information sought, nor be able to obtain it. However, in this respect, the Trial Chamber reminds the Government of Lebanon that it should—if it cannot provide any of the information in the Defence requests for assistance listed in the annexes to this decision—simply specify this in its response to the relevant request for assistance. It is insufficient for the Special Tribunal’s purposes—as set out in Article 15 (1) of the Annex to United Nations Security Council resolution 1757 (2007)—not to respond. The Trial Chamber directs the Government of Lebanon to respond to each of the requests listed in the annex with an explanation as to whether it can comply with the request for assistance, and if not, to explain why not.

66. The Trial Chamber therefore expects that shortly, at the end of this process, the Lebanese Government will provide definitive responses to each of the requests for assistance—from the relevant companies, Government Agencies, Departments and Ministries. Defence counsel will then know whether they will receive all of the information they have sought.

CONCLUSION

67. The Trial Chamber has determined that the decision whether there has been non-compliance is discretionary, the standard for determining this is not necessarily objective and the Trial Chamber may examine the reasons for the non-compliance. Having done so, the Trial Chamber is not yet convinced that it should make the finding of non-compliance the motion seeks. Rather, at this stage it is satisfied that the most appropriate manner of progressing this is for the Registrar to write to the Government of Lebanon, enclosing this decision and its annexes, and annexing copies of the Trial Chamber’s orders of 31 January and 31 March 2014.

68. The Government of Lebanon must respond to the Defence Office within 21 days of receiving this decision in Arabic. The Registrar should inform Defence counsel of the date of service of these documents on the Lebanese Government; counsel for Mr Sabra should provide the Trial Chamber with a progress update two weeks after the date of service and an update every two weeks thereafter.

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69. The fourth order of the Trial Chamber’s orders of 31 March 2014 is ex parte the Prosecution.119 Those concerned with its implementation must take all necessary measures to ensure its confidential status.120 All orders are ex parte the Legal Representatives of Participating Victims.

Orders to Lebanon in respect of requests for assistance of counsel for Mr Mustafa Amine Badreddine

70. On a related matter, while not the subject of this motion, the Trial Chamber—at the request of counsel for Mr Mustafa Amine Badreddine—issued orders for cooperation on 13 January and 30 May 2014 to the Government of Lebanon.121 If counsel for Mr Badreddine believe that the Lebanese Government has not responded satisfactorily to any request for assistance the subject of those orders, they should immediately notify the Registrar to enable him to communicate this to the Lebanese Government when notifying this decision.

119 Dealt with in Annex D to the Further decision.

120 Further decision, paras 12, 17 and 36; Clarification, paras 13 – 15.

121 STL-11-01/PT/TC, F1316, Decision on Motion filed by Counsel for Mr Badreddine and Order to Lebanon to Cooperate with the Special Tribunal, 13 January 2014; STL-11-01/T/TC, F1552, Second decision on Badreddine Defence Motion for Order to Lebanon to Cooperate with the Special Tribunal and Orders to Lebanon, 30 May 2014.

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DISPOSITION


INSTRUCTS the Registrar to immediately notify the Government of the Lebanese Republic of this decision, and to annex to it;

(1) Decision on Second and Fifth Motions by counsel for Assad Hassan Sabra and Two Orders to Lebanon to Cooperate with the Tribunal of 31 January 2014,

(2) Further Decision on Motions Under Rule 20 (A) by counsel for Assad Hassan Sabra and Four Orders to Lebanon to Cooperate with the Tribunal of 31 March 2014,

(3) Updated Request for a Finding of Non-Compliance, dated 8 January 2015,

(4) Prosecution Response to the Sabra Defence’s Updated Request for a Finding of Non-Compliance, dated 22 January 2015, and

(5) Sabra Defence Reply Regarding its Updated Request for a Finding of Non-Compliance, dated 28 January 2015;

EXTENDS the date for enforcement by Lebanon of these orders to 21 days from the date of notification of this decision, in Arabic, of the outstanding Defence requests for assistance—as set out in annexes I, II and III to this decision;

DIRECTS the Government of Lebanon to respond to each of the requests listed in the annexes with an explanation as to whether it can comply with the request for assistance, and if not, to explain why not; and

INSTRUCTS counsel for Mr Assad Hassan Sabra to provide the Trial Chamber, within two weeks of the Government of Lebanon receiving these documents in Arabic, with an update as to any progress and an update every two weeks thereafter.

AND WITH REGARD TO MUSTAFA AMINE BADREDDINE, the Trial Chamber:

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INVITES counsel for Mr Badreddine to immediately inform the Registrar of any request for assistance the subject of either the Trial Chamber’s Decision on Motion filed by counsel for Mr Badreddine and Order to Lebanon to Cooperate with the Special Tribunal of 13 January 2014, or the Trial Chamber’s Second Decision on Badreddine Defence Motion for Order to Lebanon to Cooperate with the Special Tribunal and Orders to Lebanon of 30 May 2014, to which counsel for Mr Badreddine believe that they have not received a satisfactory response from the Lebanese Government.

Done in Arabic, English, and French, the English version being authoritative. Leidschendam, The Netherlands 27 March 2015





Title: Decision on Prosecution Motion to Amend its Exhibit List and Oneissi Defence Request to Stay the Proceedingss

Short title: Exhibit List Amendment and Stay of Proceedings TC

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Date: 13 April 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON PROSECUTION MOTION TO AMEND ITS EXHIBIT LIST AND ONEISSI DEFENCE REQUEST TO STAY THE PROCEEDINGS

Office of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneVictims’ Legal Representatives: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra

Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan, Mr Emile Aoun and Mr Thomas HannisCounsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz, Mr John Jones and Mr Iain EdwardsCounsel for Mr Hassan Habib Merhi: Mr Mohamed Aouini, Ms Dorothée Le Frape du Hellen and Mr Jad KhalilCounsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse, Mr Yasser Hassan and Mr Philippe LarochelleCounsel for Mr Assad Hassan Sabra: Mr David Young, Mr Guénaël Mettraux and Mr Geoffrey Roberts

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Exhibit List Amendment and Stay of Proceedings TC

INTRODUCTION

1. The Prosecution seeks leave to amend its exhibit list filed under Rule 91 of the Special Tribunal’s Rules of Procedure and Evidence by adding 133 exhibits.1

2. Counsel for the Accused, Mr Salim Jamil Ayyash, Mr Hassan Habib Merhi and Mr Hussein Hassan Oneissi, responded to the motion.2 Counsel for Mr Oneissi, in addition to objecting to the Prosecution’s motion, requested an order to the Prosecution to complete disclosure, to re-file its witness and exhibit lists, and to re-submit its pre-trial brief. They also request a stay of proceedings until the Prosecution has complied.3 The Prosecution subsequently replied to these submissions.4

MOTION TO AMEND THE EXHIBIT LIST

3. The Prosecution has divided the proposed additional evidence into six categories; a) communications-related data, b) call sequence tables, c) subscriber notes, d) witness statements related to locations, e) exhibits provided by Witness PRH052, and f) information from the Special Syrian Judicial Commission.5

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1791, Redacted Version of the Prosecution Request to Amend its Exhibit List dated 15 December 2014, 16 December 2014, para. 1.

2 F1799, Response by the Ayyash Defence to the Prosecution Request of 15 December 2014 to Amend its Exhibit List, 19 December 2014; F1801, Merhi Defence Response to the Prosecution Request of 15 December 2014 to Amend its Exhibit List, 29 December 2014; F1803, The Defence for Hussein Hassan Oneissi Response to “Prosecution Request to Amend its Exhibit List” Filed 15 December 2014 and Request for Stay of Proceedings Until Completion of Prosecution Disclosure, Filing of Final Rule 91 Lists and Re-submission of Pre-Trial Brief, 30 December 2014. Counsel for Mr Oneissi also filed a corrigendum and corrected version of their filing. F1803, Corrigendum to the Defence for Hussein Hassan Oneissi Response to “Prosecution Request to Amend its Exhibit List” Filed 15 December 2014 and Request for Stay of Proceedings Until Completion of Prosecution Disclosure, Filing of Final Rule 91 Lists and Re-submission of Pre-Trial Brief, 6 January 2015; Corrected Version of “The Defence for Hussein Hassan Oneissi Response to “Prosecution Request to Amend its Exhibit List” Filed 15 December 2014 and Request for Stay of Proceedings Until Completion of Prosecution Disclosure, Filing of Final Rule 91 Lists and Re-submission of Pre-Trial Brief”, 6 January 2015.

3 F1803, Corrected Version of “The Defence for Hussein Hassan Oneissi Response to “Prosecution Request to Amend its Exhibit List” Filed 15 December 2014 and Request for Stay of Proceedings Until Completion of Prosecution Disclosure, Filing of Final Rule 91 Lists and Re-submission of Pre-Trial Brief”, 6 January 2015, para. 3.

4 F1816, Prosecution Response to Oneissi Defence Request for Stay of Proceedings, 16 January 2015.


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4. The Prosecution submits that all of the proposed amendments are prima facie relevant and probative and that their addition is in the interests of justice.6 It also submits that the vast majority of the proposed additional evidence comprises extracts of material already on its exhibit list; that it has good cause in seeking the amendment; that the amendment will not result in undue delay; and that all materials that are the subject of the motion have been disclosed to the Defence as of the date of filing.7

a) Communications-related data

Prosecution submissions

5. The Prosecution’s case against the Accused relies heavily on telecommunications data and records. This includes call data records, which, as defined in another Prosecution motion, are collections of metadata from telephone calls.8 These are electronic business records maintained in the usual course of business by Lebanese communication service providers, containing information for systems management and billing purposes.9 The Prosecution also relies on cell site data, which is information about the cell tower to which a mobile telephone was connected during a call.10 The Prosecution collected these sources of raw data from Lebanese communication service providers and formatted them into what it terms ‘call sequence tables’ to present the telephone calls made or received by a specific number over a defined period.11 Call sequence tables, according to the Prosecution, are collections of relevant portions of call data business records generated and maintained by three Lebanese communication service providers.12


7 Prosecution motion, paras 2, 4 and 22.

8 F1831, Prosecution Motion For the Admission of Red Network-Related Call Sequence Tables and Related Statement (‘red network motion’), 28 January 2015, para. 2.

9 Red network motion, para. 2.

10 Red network motion, paras 5 and 31.



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6. The Prosecution seeks leave to add to its exhibit list four communications-related data records it obtained from Lebanese communication service providers in 2014. Three of these records are end cell call data records. These detail the location of a telephone at the termination of a call. These records complement the start cell data records that are already on the exhibit list, thereby providing a more complete record of the movement of relevant telephones.13

7. The fourth communication-related data record is a list of non-Lebanese mobile telephone providers, in particular, the short codes and countries where those providers operate. A short code is a four or five character abbreviation for a telecommunications carrier in a particular country, e.g. GBRVF corresponds to Vodafone in the United Kingdom.14 The Prosecution submits that this will assist in interpreting roaming data already contained on its exhibit list and in forming the call sequence tables which it will use to demonstrate the movement of persons of interest outside of Lebanon.15

8. The Prosecution disclosed all of these communications-related materials to the Defence shortly after obtaining them16 and submits that the Defence will have sufficient time to prepare.17

Defence submissions

9. Counsel for Mr Merhi object to adding the four communications-related records. They submit that the Prosecution provides no valid reason for adding the data which it only sought in February, June and September 2014, and that adding the materials will prejudice their case. Given that the Prosecution has taken several years to identify this end cell data and months for several experts to analyse it, counsel for Mr Merhi argue that, with their one telecommunications expert, they will not be able


14 ERN D0413621-D0413621, a list provided by MTC Touch.


16 ALFA’s first set of end cell call data records was disclosed on 29 May 2014. The second was disclosed on 25 July 2014. The third set of end cell call data records was disclosed on 11 September 2014. This list of short codes was disclosed on 1 December 2014. Prosecution motion, para. 29, footnote 37.


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to effectively analyse the evidence by spring 2015, when the Prosecution foresees calling this evidence.18

b) Call sequence tables


10. The Prosecution seeks to add to its exhibit list 96 call sequence tables, detailing 90 telephone calls and six SMSs (short message service texts). The Prosecution submits that these call sequence tables represent the most comprehensive, reliable and relevant extracts of the call data for the relevant telephones. Fifty-nine of these call sequence tables replace call sequence tables currently on the exhibit list.

11. Out of the remaining 37 call sequence tables, 31 were extracted from data sources already contained on the exhibit list, and the remaining six incorporate end cell data or newly received roaming information.19

12. The Prosecution submits that 13 of the call sequence tables are relevant to establishing the chronology of events leading to the assassination of former Lebanese Prime Minister, Mr Rafik Hariri, in Beirut on 14 February 2005, especially in relation to his movements and meetings. One call sequence table contains call data of a contact common to two of the Accused, Mr Mustafa Amine Badreddine and Mr Merhi, and another three show call data of frequent communication with the Accused, Mr Badreddine. Eight call sequence tables provide evidence relevant to the movements of the Accused, Mr Ayyash and Mr Badreddine.20 Twelve call sequence tables show the call data of telephones relevant to the disappearance of Mr Ahmad Abu Adass on 16 January 2005, and his claim of responsibility for the attack on Mr Hariri on a videotape given to Al-Jazeera television in Beirut on 14 February 2005, and broadcast that day.21

18 Merhi Defence response, para. 2.


20 Prosecution motion, annex A.

21 Prosecution motion, para. 14. F1444, Redacted Version of the Consolidated Indictment, paras 23, 27-28 and 44.

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13. The Prosecution submits that the Defence had all but four of the data sources used to produce these call sequence tables, and the four new sources were disclosed shortly after the Prosecution received them.22 Moreover, it produced these call sequence tables to facilitate the presentation of evidence, so adding them to the exhibit list should not unduly impact Defence preparation nor cause significant delay.23 The Prosecution submits that there is good cause to add all of these call sequence tables as it produced them as the result of further investigative work and analysis, and that their addition will assist in the presentation of communications evidence.24

Defence submissions

14. Counsel for Mr Merhi object to 34 of the call sequence tables extracted from the three proposed data sets with end cell call data. They also object on the basis of lack of relevance to six call sequence tables pertaining to political meetings that Mr Hariri attended.25

15. Counsel for Mr Oneissi object on the basis of lack of prima facie relevance and probative value to the seven call sequence tables relating to the chronology of events leading to the 14 February 2005 attack on Mr Hariri, and specifically, to Mr Hariri’s political meetings. They object to eight call sequence tables of telephone numbers that were in contact with telephone number 3598095. They also object to three call sequence tables related to the false claim of responsibility. Counsel submit that they were only made aware of the existence of the 56 amended call sequence tables on the date of their disclosure. They also submit that the Prosecution has included in its exhibit list call data records for all Lebanese telephone numbers from 2003 to 2005, and the mere existence of large databases on the exhibit list cannot serve as good cause to adduce new call sequence tables.26

22 For the dates of disclosure, see footnote 15, above.

23 Prosecution motion, paras 23 and 25-26.


25 Merhi Defence response, paras 2-3.

26 Oneissi Defence response, paras 7-11.

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c) Subscriber notes


16. The Prosecution also seeks leave to add 16 subscriber notes to its exhibit list. A subscriber note is an extract of records produced by Lebanese telecommunications service providers for their internal databases. Subscriber notes contain information about the subscriber to a particular telephone number, along with an address for the subscriber, an alternate telephone number, the activation date of the telephone line and the type of subscription (for example, pre-paid).27

17. Twelve subscriber notes provide details for telephone lines in Mr Hariri’s residences—Quraitem Palace in Beirut and a villa in Faqra—used to organise Mr Hariri’s meetings and provide relevant information to establish Mr Hariri’s movements in the months before his death. Another note provides subscriber information for a telephone number belonging to a member of Mr Hariri’s security convoy, therefore relevant to establishing Mr Hariri’s movements. Two subscriber notes contain information about telephones of members of the Lebanese Parliament who met Mr Hariri and who were involved in relevant political events in the months before Mr Hariri’s assassination.28 The last subscriber note provides information on a telephone line in contact with those responsible for organizing meetings with Mr Hariri, attributing that line to Mr Hasan Nasrallah, the Secretary-General of Hezbollah, thus providing relevant evidence of Mr Hariri’s movements and meetings.29

18. The Prosecution also submits that the subscriber notes are extracted from databases already on the exhibit list, and will streamline the presentation of evidence and support the reliability of other exhibits which are relevant to the attribution of these telephone numbers.30

27 Prosecution motion, annex A.

28 Bassem Yammout and Nasser Kandil. Prosecution motion, para. 15 and footnote 18.


30 Prosecution motion, paras 15-16 and 24.

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Defence submissions

19. Counsel for Mr Merhi and Mr Oneissi object, on the basis of lack of relevance, to two subscriber notes related to the Lebanese Parliament members and the subscriber note for the telephone in contact with people responsible for arranging meetings for Mr Hariri.31

d) Witness statements related to locations


20. The Prosecution seeks leave to add five witness statements relating to relevant locations from witnesses already on its witness list. These include: locations in Greater Beirut relevant to the false claim of responsibility and the disappearance of Mr Ahmad Abu Adass; locations in Tripoli relevant to the purchase of red network handsets and SIM cards and the Mitsubishi Canter van allegedly used to transport the explosives to the blast site;32 a location in southern Lebanon relevant to the movements of persons related to the Accused, Mr Ayyash; locations relevant to Mr Hariri’s movements; and locations relevant to the Accused, Mr Badreddine’s movements.33 Three statements are by Prosecution investigators who went to, photographed or took global positioning satellite (GPS) readings of relevant locations, and two statements are from witnesses scheduled to testify later in the proceedings. One of the statements renders a statement already on the exhibit list compliant with the relevant Practice Direction.34 Three of the statements were taken in the last three months of 2014, and the Prosecution recently assessed the fifth statement—taken in May 2014 and disclosed in June 2014—as providing relevant evidence.35

31 Merhi Defence response, para. 3; Oneissi Defence response, para. 7.

32 F1444, Redacted Version of the Consolidated Indictment, 7 March 2014, paras 4, 26, 32.


34 STL-PD-2010-02, Practice Direction on the Procedure for Taking Depositions under Rules 123 and 157 and for Taking Witness Statements for Admission in Court under Rule 155, 15 January 2010.

35 Prosecution motion, para. 30. The Prosecution also notes that this witness, although anticipated to testify live, is not scheduled for the next few months.

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Defence submissions

21. Counsel for Mr Oneissi object, on the basis that no good cause exists for these additions. They submit that the delay was of the Prosecution’s own making, since the Prosecution has had the witnesses on its witness list since 15 November 2012 and has had ample time to interview them.36

e) Exhibits provided by Witness 052, Mohamad Hammoud


22. On 10 October 2014, the Prosecution interviewed Witness 052, Mr Mohamad Hammoud, and during this interview, Mr Hammoud provided ten new relevant documents and a video. The Prosecution seeks leave to add them to its exhibit list. These include: an annotated extract of a map of Beirut; two statements of the Qornet-Chehwan group—a Lebanese political coalition of Maronite Christians37—dated 4 September and 18 December 2004; seven documents relating to meetings held at the Bristol Hotel in 2004 by various political groups; and a video recording of portions of the Bristol Group meetings.38 The Prosecution submits that the annotated map, an extract of the Zawarib Greater Beirut Atlas 2005 edition,39 shows an office of Brigadier-General Rustom Ghazaleh, the former Chief of Syrian intelligence in Lebanon, and is relevant to the relationship between Syrian and Lebanese officials.40 The remaining materials are records of political events, helpful to provide a more complete understanding of the political context in Lebanon. They were disclosed to the Defence on 6 November 2014, shortly after their receipt by the Prosecution. These materials are not unduly burdensome to Defence preparation, as they comprise one-page newspaper articles or similarly short records.41

36 Oneissi Defence response, para. 11.

37 Transcript of 20 November 2014, pp. 22-25.

38 Prosecution motion, para. 19. Footnote 28 incorrectly cites one of the documents as 60301212-60301224, when the correct ERN is 60301222-60301224.

39 Exhibit P298.



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23. On 16 January 2015, during the testimony of Dr Ghattas Khoury, the Trial Chamber viewed the video recording of portions of the Bristol Group meetings, and admitted the video into evidence.42

Defence submissions

24. Counsel for Mr Ayyash, Mr Merhi and Mr Oneissi object to all of the documents in this category as lacking prima facie relevance and probative value.43

f) Information from the Special Syrian Judicial Commission


25. The Prosecution seeks leave to add a document, dated 13 April 2007, from the Special Syrian Judicial Commission—a body established by the Syrian Arab Republic to deal with matters related to the United Nations International Independent Investigation Commission (UNIIIC)—to its exhibit list.44 The Special Syrian Judicial Commission provided the document in response to a UNIIIC request for assistance to the Syrian government. The document provides subscriber information—in particular, ownership information—for specific Syrian telephone lines and is relevant to the contact between Syrian and Lebanese officials.45 The Prosecution recently assessed this document as being relevant to its case and adding this one 13-page document should not unduly impact Defence preparation.46

Defence submissions

26. Counsel for Mr Ayyash, Mr Merhi and Mr Oneissi object to this document as lacking prima facie relevance and probative value.47 Counsel for Mr Oneissi also

42 Exhibit P365. Transcript of 16 January 2015, pp. 9-10 (marking the video for identification) and p. 34 (admitting the video into evidence).

43 Ayyash Defence response, para. 4; Merhi Defence response, para. 3; Oneissi Defence response, para. 7.




47 Ayyash Defence response, para. 4; Merhi Defence response, para. 3; Oneissi Defence response, para. 7.

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submit that no good cause exists to allow this proposed amendment, as the document is dated 2007, has been in the possession of the Prosecution since the establishment of the Special Tribunal and any delay was therefore caused by the Prosecution itself.48

ONEISSI DEFENCE REQUEST TO STAY THE PROCEEDINGS

Defence submissions

27. In addition to responding negatively to the Prosecution motion, counsel for Mr Oneissi made a request—but contained in their response—seeking an order to stay the proceedings. Based on the repeated amendments to the Prosecution’s witness and exhibit lists, they seek an order directing the Prosecution to complete disclosure, re-file its witness and exhibit lists, and resubmit its pre-trial brief. Their request for a stay of proceedings is to allow the Prosecution to comply with this order.49

28. Counsel for Mr Oneissi objected broadly to all of the proposed amendments, submitting that the Prosecution has failed to demonstrate the prima facie relevance and probative value of the proposed additional evidence, the existence of good cause for not seeking these additions to its exhibit list earlier, or the appropriateness of the stage of the proceedings. They submit that, given the current stage of the proceedings and the fact that this evidence was not shown to the Pre-Trial Judge, the Prosecution was under a heightened obligation to demonstrate the relevance of the proposed exhibits and how they fit into the Prosecution case.50

29. They submit that the purpose of the exhibit list is to provide, during the pre-trial phase, a summary of the evidence to be tendered at trial—to assist the Pre-Trial Judge and Trial Chamber—but that the role of the exhibit and witness lists has been in effect annulled by repeated amendments. They argue that late and significant amendments undermine the purpose of the pre-trial phase and cause delay by forcing the Defence to constantly adapt its preparation to an evolving case revealed piecemeal


49 Oneissi Defence response, paras 18-28.


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via newly disclosed elements.51 Additionally, counsel for Mr Oneissi complained of Prosecution disclosures not under a rule but under the heading ‘other’ as not giving sufficient notice as to how the disclosed material was relevant.52

30. Counsel argue that disclosure after the start of trial undermines the purpose of the pre-trial disclosure obligations. The commencement of trial in the context of an ever-shifting and uncertain Prosecution case is a serious breach of the rights of the Accused to a fair trial.53 This ongoing disclosure and amendments to the witness and exhibit lists is proof that the alleged unfairness will continue throughout trial.


31. The Prosecution opposes the requests. It submits that nothing in the Special Tribunal’s Statute or Rules of Procedure and Evidence either requires the Prosecution to have completed disclosure before the end of the pre-trial phase or prohibits amendments to its witness and exhibit lists after the commencement of trial. Although the Prosecution must disclose exhibits and witness statements when it files its witness and exhibit lists, it is not prohibited from subsequently continuing its investigations or seeking the Trial Chamber’s leave to amend these.54

32. The Prosecution submits that, in applying the standard for permitting amendments to its witness and exhibit lists, the Trial Chamber ensures the rights of the Accused to a fair trial. The Prosecution, once allowed to amend its witness and exhibit lists, must disclose new exhibits and witness statements, but, in practice, it discloses proposed exhibits and witness statements in advance of seeking leave to amend the lists.55 Also, disclosure obligations under Rule 11356 are another reason

51 Oneissi Defence response, paras 13-14 and 16.


53 Oneissi Defence response, paras 20-24 and 26-27.


55 Prosecution response, paras 7-9.

56 Rule 113 (A): ‘Subject to the provisions of Rules 116, 117 and 118, the Prosecutor shall, as soon as practicable, disclose to the Defence any information in his possession or actual knowledge, which may reasonably suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecutor’s evidence.’

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why disclosure remains an ongoing process.57 As counsel for Mr Oneissi did not demonstrate prejudice to their preparations for trial as a result of any disclosure made after the start of trial, the Trial Chamber is in a position to ensure the fair trial rights of the Accused and a stay is unwarranted.58

33. In response to the Defence complaint about disclosure under the heading ‘other’, the Prosecution explained its use of the heading for situations where disclosure under a specific rule is inapplicable. These include: before requesting permission to amend the witness or exhibit list, thus making disclosure under Rule 91 inappropriate; when the materials in question will be used in support of a motion, such as demonstrating indicia of reliability; or when removing materials from its witness and exhibit lists.59 Moreover, the Prosecution submits that counsel for Mr Oneissi is aware of how it uses the heading, as it sends a letter to the Defence when it discloses materials under this heading, explaining the use of the heading. The Prosecution provided three examples of these letters in confidential Annexes A, B and C and noted that counsel for Mr Oneissi has never asked for clarification of the heading.60

DISCUSSION

I. Amending the exhibit list

34. The Trial Chamber has previously held that it may, in the interests of justice, allow a party to amend its exhibit list. In doing so, it must balance the Prosecution’s interest in presenting any available evidence against the rights of an accused person to adequate time and facilities to prepare for trial. The evidence must be prima facie relevant and probative, and the Trial Chamber may consider, among other factors: i) whether the Prosecution has shown good cause for not seeking the amendments




60 Prosecution response, paras 11-14; Prosecution response, Annexes A-C.

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at an earlier stage, ii) the stage of the proceedings, and iii) whether granting the amendments would result in undue delay.61

35. The Trial Chamber has carefully reviewed all of the documents that the Prosecution seeks to add to the exhibit list. The proposed additions to the Prosecution exhibit list were disclosed to the Defence in advance of the motion. Most of the proposed additions are excerpts of or derived from materials already on the exhibit list, or are related to persons on the witness list.

36. With regard to Defence submissions that political context evidence is unrelated to the charges in the consolidated indictment, the Trial Chamber has held that it will hear this evidence as relevant background evidence, because it gives context to much of the other evidence adduced by the parties and could possibly explain any non-private motives for the commission of an offence the Trial Chamber could find proven.62

a) Communications-related data

37. The Trial Chamber finds the communications-related data prima facie relevant and probative to the movement of relevant telephones, including those the Prosecution submits are attributable to the Accused. As the Prosecution obtained this material only in 2014, the Trial Chamber is satisfied that good cause exists to allow its addition to the Prosecution’s exhibit list.

61 F1876, Decision on Three Prosecution Motions for the Admission into Evidence of Mobile Telephone Documents, 6 March 2015, para. 31; F1781, Decision on Prosecution Motion to Admit into Evidence Geographic Documents, 8 December 2014, para. 4; F1780, Decision Authorising the Prosecution to Amend its Witness and Exhibit Lists, 8 December 2014, para. 15.

62 F1802, Decision on Prosecution’s Motion for Admission into Evidence of 485 Documents, Photographs and Witness Statements Relevant to Rafik Hariri’s Movements and to Political Events, 30 December 2014, para. 30; F1785 Decision on the Prosecution Motion for Admission under Rule 155 of Written Statements in Lieu of Oral Testimony Relating to Rafik Hariri’s Movements and Political Events, 11 December 2014, para. 13; Decision on the scope of Mr Marwan Hamade’s evidence, transcript of 17 November 2014, pp. 2-15, in particular pp. 10-11; Decision on adding Mr Walid Jumblatt and Mr Ali Mohammad Hamade to the Prosecution’s witness list, transcript of 9 December 2014, pp. 7-13.

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b) Call sequence tables

38. The Trial Chamber is satisfied that these call sequence tables are prima facie relevant and probative of a number of relevant topics, including Mr Hariri’s movements, contacts and movements of the Accused, and the disappearance of, and claim of responsibility by, Mr Ahmad Abu Addas. Since nearly all of the call sequence tables either had a previous version on the exhibit list or were extracted from data sources on the exhibit list, their addition will not be burdensome to the Defence’s trial preparations. Considering that many of the call sequence tables include data from the end cell call data records the Prosecution received in 2014, the Trial Chamber is satisfied that good cause exists to allow the addition of the call sequence tables to the Prosecution’s exhibit list.

39. With regard to the objections of counsel for Mr Merhi to the three new call data records and the call sequence tables produced from these records, the Trial Chamber reiterates that the Prosecution disclosed the call data records to the Defence shortly after their receipt and nearly all of the call sequence tables either replace call sequence tables currently on the exhibit list or are derived from sources currently on the exhibit list. Additionally, this decision only allows the Prosecution to add the call data records and call sequence tables to its exhibit list. The Defence may produce their own call sequence tables from this data. Given these considerations, the Trial Chamber finds that allowing the addition of these call data records and call sequence tables to the Prosecution’s exhibit list causes no prejudice to the trial preparations of the Defence.

40. Several motions for the admission into evidence of some of these call sequence tables await the Trial Chamber’s decision.63 The Trial Chamber therefore emphasizes that this decision concerns only whether the Prosecution may add them to its exhibit list. It has no impact on their admissibility.

63 F1831, Prosecution Motion For the Admission of Red Network-Related Call Sequence Tables and Related Statement, 28 January 2015; F1832, Prosecution Motion for the Admission of Green Network Related Call Sequence Tables and Related Statement, 29 January 2015; F1836, Prosecution Motion for the Admission of Purple Phone Related Call Sequence Tables, 30 January 2015; F1837, Prosecution Motion for the Admission of Blue-Network Related Call Sequence Tables and Related Statements, 2 February 2015; F1840, Prosecution Motion for the Admission of Yellow Phone Related Call Sequence Tables and Related Statement, 3 February 2015.

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c. Subscriber notes

41. The subscriber notes are prima facie relevant to, and probative of, Mr Hariri’s movements and meetings in the months before his assassination. Since they are extracted from databases already on the Prosecution’s exhibit list, their addition to the exhibit list will not cause undue delay and is therefore in the interests of justice.

d. Witness statements related to locations

42. The witness statements are prima facie relevant to, and probative of, relevant locations around Beirut, Tripoli, Southern Lebanon, and locations relevant to the movements of Mr Hariri and the Accused, Mr Badreddine. All of the witnesses are already on the witness list. One statement has a previous version on the exhibit list. The remaining statements were taken in the 2014. Therefore, the Trial Chamber finds that the addition of these witness statements to the exhibit list will not unduly burden the Defence’s trial preparations and that good cause exists for their addition.

e. Exhibits provided by Witness 052, Mr Mohamad Hammoud

43. The 11 documents provided by Mr Hammoud are prima facie relevant to the political context prevailing in Lebanon in the months and years leading up to Mr Hariri’s assassination. The Prosecution obtained the documents on 10 October 2014, during Mr Hammoud’s interview, therefore good cause exists to seek their addition now. Also, considering that the documents are one-page newspaper articles or map extracts, the Trial Chamber is satisfied that their addition to the Prosecution’s exhibit list will not unduly burden the Defence.

f. Information from the Special Syrian Judicial Commission

44. This single, thirteen-page document from the Special Syrian Judicial Commission is prima facie relevant to and probative of the contact between Syrian and Lebanese officials. Although it has been in the Prosecution’s possession for some time, the fact that it is relatively short and its content is not complicated means that its addition will not unduly burden the Defence preparations for trial.

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45. The Trial Chamber is therefore satisfied that all of the proposed additions to the Prosecution’s exhibit list are prima facie relevant and probative.

46. The Trial Chamber reiterates that it is only allowing the Prosecution to amend its exhibit list. This decision does not admit any document into evidence. If the Prosecution seeks to admit these documents into evidence, the Defence may then raise any objections to the Trial Chamber admitting any of these documents into evidence.

47. The Trial Chamber has carefully balanced the right of the Prosecution to present evidence supporting its case with the rights of counsel for the five Accused to adequately prepare for trial. It is satisfied that it is in the interests of justice to allow the Prosecution to amend its exhibit list.

II. Request for a stay of proceedings and an order to the Prosecution to complete disclosure and re-file its exhibit and witness lists and pre-trial brief

48. The Special Tribunal’s Statute and Rules do not explicitly refer to the power to stay proceedings, but its Appeals Chamber has found that the Trial Chamber has inherent jurisdiction to make such an order.64 That power is discretionary and involves ‘an exercise of judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence’.65 The Trial Chamber has held that a stay of proceedings is a ‘drastic remedy’, necessary only if: (i) the essential preconditions of a fair trial are missing, and (ii) there is no sufficient indication that this will be resolved during the trial process.66

49. Counsel for Mr Oneissi ask the Trial Chamber to order the Prosecution to complete disclosure and to re-file its witness and exhibit lists and pre-trial brief. They request a stay of proceedings so the Prosecution may comply with that order.

64 CH/AC/2010/02, In the Matter of El Sayed, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, para. 46.

65 STL-11-01/PT/TC, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, F1270, Decision on Defence Motion to Stay the Proceedings, 17 December 2013, para. 9.

66 F1270, Decision on Defence Motion to Stay the Proceedings, 17 December 2013, paras 9-13.

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a. Request for an order to complete disclosure

50. Counsel’s argument—that the preconditions of a fair trial are missing because of the Prosecution’s repeated disclosures—assumes that all disclosure must be completed before trial. This argument is unfounded. Under the Pre-Trial Judge’s working plan, the Prosecution had an obligation to disclose all of the witnesses and materials it intended to use at trial by 15 November 2012.67 This does not, however, prevent the Prosecution from continuing its investigations or refining the evidence it would like to use at trial. New evidence may be found or new witnesses may come forward. In such instances, the Prosecution is under a continuing obligation to disclose that new evidence to the Defence, even if trial has begun.

51. Counsel also complained about disclosure under the heading of ‘other’, instead of under a rule. The Prosecution explained their use of the heading ‘other’ and, as counsel for Mr Oneissi never asked the Prosecution for clarification and made no specific submissions on why using the heading ‘other’ violates the essential preconditions of fairness, the Trial Chamber is satisfied that this practice is fully consonant with the Prosecution’s disclosure obligations.

52. The Trial Chamber therefore finds that counsel for Mr Oneissi’s request for an order to complete disclosure lacks merit.

b. Request for an order to the Prosecution to re-file witness and exhibit lists

53. Similarly, counsel for Mr Oneissi argue that repeated amendments to the Prosecution’s witness and exhibit lists renders the working plan meaningless and demonstrates that the essential preconditions of a fair trial are missing.

54. The Trial Chamber may allow the Prosecution to amend its witness and exhibit lists if it is in the interests of justice. In doing so, the Trial Chamber balances the rights of the Accused to a fair trial and the Prosecution’s right to present its evidence. This balancing exercise is directly aimed at ensuring that the trial retains

67 STL-11-01/PT/PTJ, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, F0496, Order on a Working Plan and on the Joint Defence Motion Regarding Trial Preparation, 25 October 2012, para. 21.

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the essential preconditions of a fair trial, and, therefore, an order to the Prosecution to re-file its witness and exhibit lists is unwarranted. The Trial Chamber emphasizes, again, that this decision merely allows the Prosecution to add these documents to its exhibit list and that the vast majority of these additions have previous versions on the exhibit list or are extracted from the exhibit list.

c. Request for an order to the Prosecution to resubmit its pre-trial brief

55. Counsel for Mr Oneissi’s submission that they have no notice of the case against them merely reiterates their arguments against allowing evidence of the political context in Lebanon. This argument has been previously considered by the Trial Chamber and rejected.68 The Trial Chamber therefore will not order the Prosecution to re-file its pre-trial brief.

d. Request for a stay of proceedings

56. For the reasons above, the Trial Chamber will not issue the orders requested by counsel for Mr Oneissi. Since the Trial Chamber does not consider these orders appropriate, it also rejects the submission that the essential preconditions of a fair trial are missing. Therefore, a stay of proceedings is unwarranted.

57. Having decided that the essential preconditions of a fair trial are not missing, the Trial Chamber does not need to decide whether or not there is sufficient indication that any unfairness will be resolved during the trial process.

III. Confidentiality of the motion and annexes

58. Because they contain confidential information, the Prosecution seeks to maintain the confidential status of the annexes to its motion.69 The Trial Chamber

68 F1802, Decision on Prosecution’s Motion for Admission into Evidence of 485 Documents, Photographs and Witness Statements Relevant to Rafik Hariri’s Movements and to Political Events, 30 December 2014, para. 30.


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reiterates the public nature of these proceedings and orders the Prosecution either to file a public redacted version of the annexes or have them reclassified as public.

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DISPOSITION


GRANTS the Prosecution leave to amend its exhibit list;

DENIES the request from counsel for Mr Hussein Hassan Oneissi to order the Prosecution to complete disclosure, re-file their witness and exhibit lists and resubmit a pre-trial brief;

DENIES the request from counsel for Mr Oneissi to stay the proceedings; and

ORDERS the Prosecution to file public or redacted versions of the annexes to its motion and response or to have them reclassified as public.

Done in Arabic, English, and French, the English version being authoritative. Leidschendam, The Netherlands 13 April 2015



5.Before: Pre-Trial Judge

Title: Decision on Request from Counsel for Mr El Hajj Received on 23 October 2014

Short title: Request for Access to Documents PTJ

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THE PRE-TRIAL JUDGE

Case: STL-El Hajj/PTJ

The Pre-Trial Judge: Judge Daniel Fransen


Date: 30 April 2015

Original language: French


DECISION ON REQUEST FROM COUNSEL FOR MR EL HAJJ RECEIVED ON 23 OCTOBER 2014

Counsel for Mr Ali Salah-el-Din El Hajj: Mr Maan Al-Assaad

Office of the Prosecutor: Mr Norman Farrell

Defence Office: Mr François Roux

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Request for Access to Documents PTJ

I. Introduction

1. By way of this decision, the Pre-Trial Judge rules on the request filed by Mr Maan Al-Assaad, counsel for Mr Ali El Hajj, seeking to obtain documents in possession of the Tribunal1 and declares the request inadmissible insofar as the Applicant has no standing before the Tribunal.

2. The Request seeks to “obtain copies, authenticated by your Tribunal, of the investigation records held by you and the UNIIIC2 relating to non-protected and protected witnesses in which my client was the subject of slander and false testimony against him and direct and indirect incitement against him and his family”,3 with the aim of taking action before a competent judicial organ to claim his rights.4 In its Response,5 the Prosecution opposes the Request.6

II. Statement of reasons

A. Preliminary observations

3. In light of the way the proceedings in this matter are unfolding and the incidental issues raised by the Applicant, a number of preliminary observations regarding three matters are worthy of mention.

1 STL, STL-El Hajj, F0002, Motion for the Attention of the Special Tribunal for Lebanon, confidential, 23 October 2014, p. 13 (“Request”). Any further references to filings or decisions relate to this case number unless otherwise indicated.

2 United Nations International Independent Investigation Commission (“Commission”).

3 Request, p. 1.

4 Id., p. 13.

5 F0009, Prosecutor’s Response to the Submissions of Mr. El Hajj in accordance with the Scheduling Order of 3 February 2015, confidential, 26 March 2015 (“Response”).

6 The Prosecution also opposed two requests filed by Mr Maan Al-Assaad, on 2 and 10 March 2015, not being informed of the irregularity of the filing of those two requests.

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1. The Applicant

4. The Applicant was previously held in detention by the Lebanese authorities in connection with the investigation into the assassination of Mr Hariri. Once the Lebanese Courts relinquished jurisdiction in favour of the Tribunal in April 2009, the Pre-Trial Judge ordered the release of the Applicant.7

2. The applicable law and procedures

5. The President of the Tribunal issued an order assigning the Request to the Pre-Trial Judge.8 In assigning that case, the President notably raised issues relating to the jurisdiction of the Tribunal to rule on the Request and the standing of Mr El Hajj before the Tribunal.9

6. Thus seised of the matter, the Pre-Trial Judge issued a scheduling order for the proceedings. He stated that, if he considered it appropriate, within fifteen working days of the notification of that Order, Mr El Hajj should submit in writing, in accordance with the modalities set forth in the Practice Direction on Filing of Documents before the Special Tribunal for Lebanon (the “Direction”),10 all the reasons in law and in fact together with, if applicable, any relevant documents and materials regarding the jurisdiction of the Tribunal to rule on the Request, as well as on the standing of the Applicant before the Tribunal. The Pre-Trial Judge stipulated that the Direction applied henceforth to Mr El Hajj and his counsel.11

7. On 2 and 10 March 2015, Mr Al-Assaad filed two requests before the Tribunal. The first request was addressed to the Trial Chamber whereas the second one was addressed to the Tribunal. Noting the irregular way in which these requests were

7 On 29 April 2009, at the request of the Prosecution, the Pre-Trial Judge notably ordered the release of Mr El Hajj and called on the Lebanese authorities to take all necessary steps to ensure his safety, see CH/PTJ/2009/06, Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack against Prime Minister Rafiq Hariri and Others, 29 April 2009, p. 16 (“Order on Detention”).

8 F0001, Order Assigning Matter to Pre-Trial Judge, 30 January 2015, disposition (“President’s Order”).

9 Id., para. 5.

10 STL/PD/2010/01/Rev.2, 14 June 2013.

11 F0003, Order Assigning Matter to the Pre-Trial Judge, 3 February 2015, p. 3 (“Order”).

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filed, they were not entered in the list, in accordance with the provisions of Article 11 of the Direction.12

8. The Pre-Trial Judge reiterates that as the Head of Defence Office has appointed Mr Al-Assaad to represent Mr El Hajj before the Tribunal,13 even though Mr El Hajj is not a suspect or an accused before the Tribunal,14 Mr Al-Assaad shall be subject “to the relevant provisions of the Statute, the Rules, Practice Directions […] the Code of Professional Conduct for Counsel and the codes of practice and ethics governing their profession […]” of defence counsel, in accordance with Rule 58 (B) of the Rules of Procedure and Evidence. That appointment took place even before the Tribunal declared that it had jurisdiction or had ruled on the standing of the Applicant. Furthermore, as the Appeals Chamber set forth in the matter of El Sayed, “the Rules give effect to the object and purpose of our Statute and are thus still germane to the exercise of the Tribunal’s inherent jurisdiction”.15 Consequently, the Rules and the Direction apply to the filing of any document before the Tribunal, including those filed by Messrs El Hajj and AlAssaad.

3. The limitation of the scope of the decision

9. In this decision, the Pre-Trial Judge does not rule on whether or not, as the Applicant submits, some of the documents contain false, slanderous or defamatory materials against the Applicant and does not identify those alleged materials. The Pre-Trial Judge rules in a general manner on whether the Applicant should have access to procedural documents of which the Tribunal is or has been seised.

12 Moreover, those requests were filed past the time limit as the filing deadline expired on 25 February 2015.

13 On 16 February 2015, at the request of Mr El Hajj and for the purposes of his representation, the Head of Defence Office appointed Mr Al-Assaad for the proceedings before the Tribunal linked to the Request “and any directly linked matter”, see F0004, Appointment of Counsel Pursuant to Rules 57) (D) (vii) and 58 of the Rules of Procedure and Evidence, 16 February 2015, p. 2 (“Appointment”).

14 According to Rule 57 (D) (vii) of the Rules, the Head of Defence Office performs the following duties: where an accused or a suspect has retained counsel, he confirms that this counsel meets the requirements of Rule 58 and appoints him to represent the accused or suspect in the proceedings before the Tribunal.

15 STL, In the matter of El Sayed, CH/AC/2011/0l, Decision on Partial Appeal by Mr. El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, 19 July 2011, para. 30.

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B. Examination of the Request

10. In support of his Request, the Applicant mentions that in the course of the testimony of witness 566 before the Tribunal on 6 February 2014 in the case of Ayyash et al., witness 566 allegedly contradicted the position of the Internal Security Forces regarding the nature of the explosion which resulted in the death of Mr Hariri.16 The Applicant also challenges another testimony, dated 14 October 2014, during which the witness purportedly insinuated that Mr El Hajj was the one who had decreased the security personnel responsible for ensuring the protection of Mr Hariri before his assassination.17 Lastly, the Applicant requests that the Prosecution and the Defence rectify the material and factual errors in the testimonies of protected and non-protected witnesses heard in the case of Ayyash et al.18 Mr El Hajj is of the opinion that those errors have affected his rights and his reputation. He intends to bring a civil action for redress against those who have caused him prejudice.19

C. The jurisdiction of the Tribunal

11. Prior to any examination on the merits, it is important to determine whether the Tribunal has jurisdiction to rule on the Request. The Pre-Trial Judge notes that the Applicant did not consider it appropriate to address that issue despite being offered the possibility to do so in the Order. On this point, the Prosecution submits that, not having responded to the Order calling on Mr El Hajj to submit all legal and factual arguments regarding both the jurisdiction of the Tribunal and his standing before the Tribunal, the Request should be dismissed on this basis alone.20

12. The subject matter jurisdiction of the Tribunal is strictly limited by the mandate conferred on it by Article 1 of the Agreement between the United Nations and the Lebanese Republic on the establishment of the Tribunal, annexed to Security Council resolution 1757 (2007) of 30 May 2007 (the “Agreement”) and Articles 1 and 2 of

16 Request, p. 2.

17 Id., p. 3.

18 Id., p. 11.

19 Id., p. 12.

20 Response, paras 2, 11 and 12.

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the Statute.21 Nevertheless, as he recalled in the matter of El Sayed, the Pre-Trial Judge notes that “the Tribunal has implicit jurisdiction to rule on incidental issues that are connected to its mandate or have an impact on it and which must be settled in the interests of justice.”22 In the case at hand, the Request does not fall within the primary jurisdiction of the Tribunal, which is to try the persons responsible for the attack of 14 February 2005, and, if appropriate, the connected cases, in accordance with Articles 1 and 2 of the Statute. Therefore, it should be determined whether the Tribunal has incidental jurisdiction to deal with the Applicant’s request to obtain materials in its possession.

13. In this respect, the subject of the Request is to obtain materials in the sole possession of the Tribunal including, subject to what follows below, official records of testimony heard in the context of the Ayyash et al. proceedings, and even official records of the investigation of the Tribunal and the Commission which could relate to witnesses connected with the criminal case file of the Applicant, namely the case file from the proceedings in which the Applicant was held in detention in Lebanon and over which the Lebanese courts relinquished jurisdiction in favour of the Tribunal on 10 April 2009.

14. However, although the requested materials are not explicitly described, with two exceptions, the official records of the witnesses interviewed by the Commission and the Tribunal which mention Mr El Hajj and which are held by the Tribunal seem, nevertheless, to be linked to the statutory subject matter jurisdiction of the Tribunal. Indeed, in the matter of El Sayed, the Appeals Chamber stated that:

Through the exercise of its primary jurisdiction, the Tribunal is now said to be in the possession of evidence on the basis of which the Applicant was detained for nearly four years. The incidental jurisdiction of the Tribunal’s Chambers over that evidence and thus over the legal issues addressed in the Application arise as a direct consequence of the matter having been brought before the Tribunals’ Prosecutor […]. The power to consider whether a person

21 STL, In the matter of El Sayed, CH/PTJ/2010/005, Order relating to the Jurisdiction of the Tribunal to Rule on the Application by Mr El Sayed dated 17 March 2010 and Whether Mr El Sayed has Standing before the Tribunal, 17 September 2010, para. 30.

22 Id., para. 31.

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with standing may request access to the Tribunal’s evidence is also necessarily incidental to the exercise of the Tribunal’s primary jurisdiction to collect and preserve that evidence. Further, […] were the Tribunal to decide that it lacks the authority to determine this issue, the Applicant would be deprived of his right to have access to some relevant parts of his criminal file and would thereby be denied the right to seek compensation […].23

15. As such, in that case, as the Prosecution recalled,24 the Appeals Chamber confirmed that the inherent jurisdiction of the Tribunal addressed a shortcoming. The same reasoning can be used for the request to access the official records of the witnesses mentioning Mr El Hajj, which are held by the Tribunal. There is no other body aside from the Tribunal which can rule on such a request.

16. Therefore, taking account of the fact that the Tribunal is in possession of the materials sought by the Applicant, whether relating to those materials which had been collected before the establishment of the Tribunal pursuant to Article 19 of the Statute or those which were gathered by the Prosecution in accordance with Article 11 of the Statute, the Tribunal has exclusive jurisdiction to rule on the Request.

D. The standing of the Applicant

17. As the jurisdiction of the Tribunal to rule on the Request has been established, it is important to determine whether the Applicant has standing before the Tribunal. The Pre-Trial Judge notes that, likewise on this point, the Applicant did not consider it appropriate to address this issue despite him being offered the possibility to do so in the Order.

18. On this point, the Prosecution recalls that the very nature of the Request must be examined in order to determine the Applicant’s standing before the Tribunal. In this instance, it is of the opinion that the request submitted by Mr El Hajj differs from that of Mr El Sayed whom the Tribunal recognised as having the right to act and to receive some of the evidence from his criminal case file. The Prosecution submits

23 STL, In the matter of El Sayed, CH/AC/ 2010/02, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing, 10 November 2010 (“Decision on Appeal”), para. 53.

24 Response, paras 18 and 19 citing the Decision on Appeal, paras 60 and 59.

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that the issue of standing is not determined merely by the fact that Mr El Hajj, like Mr El Sayed, had been detained by the Lebanese authorities in the context of the Hariri case.25 In point of fact, Mr El Hajj does not seek compensation for any prejudice linked to his detention, but requests a right of access to all the documents that are in the possession of the Tribunal and which mention his name in a defamatory manner, without basing his request on any form of legal foundation. The Prosecution further notes that the Applicant did not explicitly request access to his criminal case file, which is part of the criminal case file relating to the Hariri case which was transferred to the Tribunal by the Lebanese authorities on 10 April 2009. Lastly, even were the Request to have a legal foundation, the Prosecution submits that Mr El Hajj failed to demonstrate that he suffered a substantial injury on account of the testimonies whose content he challenges.26 Mr El Hajj has not claimed that the Lebanese authorities refused to give him access to his criminal case file; he never once mentions this in his Request.27 In any event, the Prosecution concludes that should the Applicant’s standing be recognised in this matter, it would create a precedent for anyone who disputes in one way or another testimony heard before the Tribunal.28

19. In order to determine this matter, it is necessary to have as clear an understanding as possible of the requests submitted by the Applicant.29 On this point, it must be noted that the Request is not specific as to the documents being sought. In point of fact, although the request is clearly focused on the official records of the testimonies heard in the Ayyash et al. proceedings, it also refers to witness statements contained in the investigative evidence of the Commission and the Tribunal, including some items that might be part of the criminal case file of the Applicant. Despite that reference, after a detailed examination of the Request, it should be noted that there is a lack of specificity in the Request on that point and no reference is made to those materials in the grounds for the request, while all the reasoning is based on the fact that the Applicant considers that he is harmed by “that failure to set the record

25 Response, paras 5, 6, 19.

26 Id., paras 7-9, 28.

27 Id., para. 29.

28 Id., para. 33.

29 Decision on Appeal, para. 59.

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straight, or permitting the conveyance of insinuations and slander live and on the air”.30 In light of the foregoing, the Pre-Trial Judge considers in fact that the only materials being sought are those relating to the Ayyash et al. proceedings.

20. Had the Applicant requested with clarity materials from his criminal case file, although, as far as the Tribunal is concerned, he is neither a suspect, nor an accused or victim, insofar as he was placed under the authority of the Tribunal for a brief period after he was taken into custody by the Lebanese authorities in relation to the Hariri case, he would have been entitled to have access to those materials under similar terms and conditions to those set forth by the Appeals Chamber and the Pre-Trial Judge in the matter of El Sayed.

21. Insofar as the Request concerns the official records of protected and non-protected witnesses heard in the context of the investigation of the Tribunal or in the Ayyash et al. proceedings, that reasoning cannot stand. In point of fact, with regard to those materials, the Applicant is neither a suspect, nor an accused or victim participating in the proceedings in the Ayyash et al. case as defined in the Rules of the Tribunal, nor is he involved in any other capacity in that case. In this sense, in the case at hand, the Applicant has no standing to request access to evidence from the proceedings insofar as it is not classified as public.

22. Furthermore, the Pre-Trial Judge notes that there are specific procedures within the Tribunal, a number of which are available notably to third parties who claim to have been injured, which could be used to redress the issues raised by the Applicant. This includes the procedures set forth in Rule 60 bis of the Rules on contempt and obstruction of justice and in Rule 152 of the Rules on false testimony under solemn declaration.31

23. With regard to the materials classified as public among those mentioned in the official records of witnesses heard in the context of the Ayyash et al. case, as he has

30 Request, p. 12.

31 With regard to the referral capacity of the Tribunal, whereas a single Judge or a Chamber may refer the matter of false testimony to the President in accordance with Rule 152 (A), a Party or any other interested person may inform the Chamber of an allegation of contempt or obstruction of justice in accordance with Rule 60 bis (D) in certain cases which are not defined in a limited manner (not underlined in the original).

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already done, if Mr El Hajj wishes to obtain certified copies, he is required to submit a request before the Registry of the Tribunal which will examine the appropriateness thereof.32

E. The confidentiality of the proceedings

24. With regard to the classification of the Request as confidential, the Prosecution considers that it is justified in that reference is made to the name of a protected witness. It adds that the Response was also filed confidentially in accordance with Article 6 (1) of the Direction but that there is nothing to prevent the Pre-Trial Judge from reclassifying it as a public document.33

25. The Pre-Trial Judge invites Mr El Hajj to file a public redacted version of the Request so as not to disclose identifying information of persons protected by the Tribunal and orders that the Response be reclassified as a public document.

32 The Pre-Trial Judges notes that in fact that procedure was already adopted in this case, see the request of Mr El Hajj of 27 November 2014 to which the Registry responded on 2 February 2015.


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DISPOSITION

FOR THESE REASONS,

Pursuant to Rule 77 of the Rules,

THE PRE-TRIAL JUDGE,

DECLARES that the Tribunal has jurisdiction to rule on the merits of the Request;

DECLARES that the Request is inadmissible as Mr El Hajj has no standing before the Tribunal;

ORDERS that a public redacted version of the Request be filed;

ORDERS that the Response be reclassified as a public document.

Done in English, Arabic and French, the French text being authoritative. Leidschendam, 30 April 2015

Daniel Fransen Pre-Trial Judge


Before: Pre-Trial Judge

Title: Seventh Decision on Victims’ Participation in the Proceedings

Short title: Victim Participation in Proceedings PTJ

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155

THE PRE-TRIAL JUDGECase No.: STL-11-01/T/PTJ

The Pre-Trial Judge: Judge Daniel Fransen


Date: 5 May 2015

Original language: French

Classification: Public with confidential and ex parte annex

THE PROSECUTOR v.



ASSAD HASSAN SABRA

SEVENTH DECISION ON VICTIMS’ PARTICIPATION IN THE PROCEEDINGS

Office of the Prosecutor: Mr Norman Farrell

Legal Representative of Victims: Mr Peter Haynes

Victims’ Participation Unit: Ms Fiana Reinhardt

Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan

Counsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz

Counsel for Mr Hassan Habib Merhi: Mr Mohamed Aouini

Counsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse

Counsel for Mr Assad Hassan Sabra: Mr David Young

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Victim Participation in Proceedings PTJ

I. Introduction

1. In this decision, the Pre-Trial Judge rules on applications requesting the granting of the status of victim participating in the proceedings (“VPP”) submitted on 17 April 2015 by two persons, assigned codes V085 and V086. These applications were transmitted with the assistance of the Victims’ Participation Unit (“VPU”) pursuant to Rule 51 (B) (iii) of the Rules of Procedure and Evidence.1 The Prosecution and Defence Counsel for the accused have not filed submissions in relation to these applications.

II. Submissions

2. During the pre-trial phase in the case of Ayyash et al., the Pre-Trial Judge ruled on obtaining VPP status in six public decisions.2 To date, 70 individuals are participating in the proceedings through a team of legal representatives.

3. The Pre-Trial Judge had originally set the deadline for filing all applications for participation for 31 October 2011.3 The VPU explains that these additional applications were filed on account of the fact that the applicants were not aware that they could apply to participate in the proceedings or were unable to do so.4

4. This decision is public. However, the examination of the submissions from the VPU presented on behalf of the applicants is summarised in the confidential and ex parte annex attached hereto. As such, details concerning the identity of the applicants,

1 STL, Prosecutor v. Ayyash et al., STL-11-01/T/PTJ, F1915, Eighth Transmission by the VPU Pursuant to Rule 51(B)(iii), 17 April 2015 (“Eighth Transmission”). All further references to filings and decisions refer to this case number unless otherwise stated.

2 F0236, Decision on Victims’ Participation in the Proceedings, 8 May 2012, with confidential and ex parte annex (“Decision of 8 May 2012”); F0398, Second Decision on Victims’ Participation in the Proceedings, 3 September 2012, with confidential and ex parte annex; F0557, Third Decision on Victims’ Participation in the Proceedings, 28 November 2012, with confidential and ex parte annex; F0879, Fourth Decision on Victims’ Participation in the Proceedings, 2 May 2013, with confidential and ex parte annex (“Decision of 2 May 2013”); F1621, Fifth Decision on Victims’ Participation in the Proceedings, 18 July 2014, with confidential and ex parte annex; F1737, Sixth Decision on Victims’ Participation in the Proceedings, 6 November 2014, with confidential and ex parte annex.

3 F0045, Ordonnance portant fixation du délai pour le dépôt des demandes aux fins d’obtenir la qualité de victime participant à la procédure, 8 September 2011.

4 Eighth Transmission, para. 4.

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the harm they consider that they have suffered, and how this harm is linked to the attack of 14 February 2005 will not be articulated in the body of the decision in order to reconcile the obligation for transparency in the proceedings as enshrined in Rule 96 (A) of the Rules with the obligation to safeguard the confidentiality of the applicants and their statements.5

II. Jurisdiction of the Pre-Trial Judge and applicable law

5. The Trial Chamber has been seised of the case of Ayyash et al. since the Pre-Trial Judge transmitted the case file to it in accordance with Rule 95 of the Rules. Since that referral, the Trial Chamber has authorised the joinder of a fifth accused to that case and assumed the pre-trial functions which are normally incumbent on the Pre-Trial Judge, with the exception of those falling under his exclusive jurisdiction. It has nevertheless noted that “the granting of the status of victims participating in the proceedings in Rule 86 in respect of any new applications could also be performed by the Pre-Trial Judge”.6 After consultation, the Trial Chamber and the Pre-Trial Judge decided that any new applications from victims to participate in the proceedings should be dealt with by the Pre-Trial Judge .7

6. Therefore, in accordance with Rule 86, it is for the Pre-Trial Judge to determine whether the two applicants whose files were transmitted to him by the VPU on 20 April 2015 may obtain VPP status.

7. The Pre-Trial Judge recalls that the relevant analysis of the law applicable to the granting of VPP status pursuant to Rule 86 was set forth in the Decision of 8 May 2012.8 According to those principles, in short, any person seeking VPP status must demonstrate that “an attack within the Tribunal’s jurisdiction” directly resulted in that person suffering physical, material or mental harm in accordance with Rules 2

5 F0187, Decision on Defence Motion of 17 February 2012 for an Order to the Victims’ Participation Unit to Refile its Submission Inter Partes and Inviting Submissions on Legal Issues Related to Applications for the Status of Victim Participating in the Proceedings, 5 April 2012.

6 F1424, Decision on Trial Management and Reasons for Decision on Joinder, 25 February 2014, para. 73.

7 F1599, Sixth Transmission by the VPU Pursuant to Rule 51(B)(iii), 27 June 2014, para. 1.

8 Decision of 8 May 2012, Sections III and IV.

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and 86 (B) of the Rules. In particular, any request must provide “prima facie evidence that he is a victim as defined by Rule 2 of the Rules”.9

8. On 2 May 2013, the Pre-Trial Judge defined the meaning of the word “victim”, since the reference to “an attack within the Tribunal’s jurisdiction” rendered Rule 2 of the Rules open to interpretation. To be a “victim” within the meaning of that Rule, three cumulative criteria must be satisfied: (1) the applicant must be a natural person; (2) who has suffered physical, material or mental harm; and (3) such harm must have been a direct result of an attack within the Tribunal’s jurisdiction. As the reference to “an attack within the Tribunal’s jurisdiction” could be subject to interpretation, the Pre-Trial Judge held that the causation test required the applicants to demonstrate that the harm claimed was, prima facie, caused by a specific crime charged in the indictment.10

9. The Pre-Trial Judge clarified that although such harm must be a direct result of the Attack, that requirement does not restrict the recognition of VPP status to direct victims only, but can also include indirect victims who personally suffered harm as a direct result of the Attack.11 Furthermore, the Pre-Trial Judge considered that, to bring an application, a natural person must have legal capacity and if the person is a minor, the application can be brought by a person acting on the applicant’s behalf. Proof of identity is needed for both the victim and his representative, together with proof of the connection between the two.12

10. With regard to the degree of proximity required between the direct and indirect victims seeking VPP status, the Pre-Trial Judge recalls that ascendant or descendant first degree relatives of a direct victim, as well as “persons in relationships of like proximity to the direct victim, and other extended family members having a special

9 The three other mandatory criteria set out at Rule 86 (B) are: (ii) whether the applicant’s personal interests are affected; (iii) whether the applicant’s proposed participation is intended to express his views and concerns; and (iv) whether the applicant’s proposed participation would be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

10 Decision of 2 May 2013, para. 11 et seq.

11 Decision of 8 May 2012, para. 45.

12 Id., paras 31-34.

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bond of affection with or dependence on the direct victim, can also be considered to have suffered harm as a direct result of the Attack.”13

IV. Statement of reasons

11. As a preliminary matter, the Pre-Trial Judge considers that although they are indeed overdue in relation to the initial deadlines set, the applications are admissible at this stage of the proceedings. Indeed, first of all, Rule 86 of the Rules does not set time limits within which to present a request to obtain VPP status. Secondly, the information set out by the VPU, according to which the state of health of the applicants and their lack of knowledge of the procedure would explain the delay in filing, is relevant. Lastly, if the applications are to be admitted they would not, at this stage of the proceedings, prejudice the rights of the participants in the proceedings.

12. The Pre-Trial Judge considers that applicants V085 and V086 satisfy the first mandatory criterion mentioned in Rule 86 (B) (i) of the Rules relating to the obligation to provide prima facie evidence establishing that they are victims as defined under Rule 2. The confidential and ex parte annex to this decision provides a more detailed justification.

13. Those two applications likewise satisfy the criteria set out in the Statute and in the Rules, as indicated in Section III above. As a consequence, the applicants concerned are granted the status of victim participating in the proceedings.

14. The Pre-Trial Judge recalls Rule 51 (B) (v), which requires that the VPU inform applicants of this decision “in a timely manner”, and considers that such notification must be provided within a time limit of two weeks from the translation into Arabic of the aforementioned decision.

V. Common legal representation and grouping of victims

15. The Pre-Trial Judge recalls that the principles governing common legal representation were set out in the Decision of 8 May 2012 and apply mutatis

13 Id., para. 50.

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mutandis to the present decision. In particular, and in accordance with Rule 86 (C) (ii) of the Rules, victims participating in the proceedings may only do so through a legal representative, unless the Pre-Trial Judge authorises otherwise. He notes that the applicants have not sought the right of self-representation. As indicated in the Decision of 8 May 2012 and in the absence of any reason to the contrary, the Pre-Trial Judge considers that the victims authorised to participate in the proceedings under the terms of this Decision may do so only through a legal representative.14 Moreover, Rule 86 (D) of the Rules provides that the Pre-Trial Judge rules on common legal representation by considering the criteria of Rule 86 (D) (i) to (iii) of the Rules. That provision suggests that, unless there are valid reasons for doing otherwise, VPPs are deemed to constitute a single group.15

16. Having examined the applications, the Pre-Trial Judge concludes that there does not appear to be any reason that would justify dividing the persons who have been granted VPP status by way of this Decision into different groups or distinguishing them from the VPP group whose victim status was recognised in previous decisions. Persons seeking VPP status and authorised to participate in the proceedings in accordance with this Decision shall be part of the group of victims identified in the Decision of 8 May 2012.

VI. Confidentiality

17. The Pre-Trial Judge recalls that this Decision, as with the previous ones dealing with the same subject, is classified as “public” although it does refer to documents in the applications which are classified as confidential and ex parte, so as to provide the persons who have been granted VPP status the possibility of seeking the protective measures mentioned in Rule 133 of the Rules.

18. As such, those persons who have been granted VPP status who wish to remain anonymous or to seek other protective measures must apply to the Pre-Trial Judge at the earliest opportunity, in accordance with Rule 133 (A) of the Rules. Any such

14 Id., para. 112.

15 Id., paras 113, 119 and 120.

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request must include a risk assessment conducted by the Victims and Witnesses Unit (the “VWU”).

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DISPOSITION

FOR THESE REASONS,

Pursuant to Articles 17 and 25 of the Statute, and Rules 2, 51 (B) (v), 86 and 133 of the Rules,

THE PRE-TRIAL JUDGE,

GRANTS VPP status to applicants V085 and V086;

ORDERS the VPU to notify the applicants of this decision within two weeks from its translation into Arabic;

ORDERS that the annexes to the Eighth Transmission by the VPU Pursuant to Rule 51 (B) (iii) of 17 April 2015 shall remain confidential and ex parte until further notice;

ORDERS that the annex to this decision shall remain confidential and ex parte until further notice; and

INVITES the VPU or the legal representative of victims to submit any request for appropriate measures to ensure the privacy and protection of the victims participating in the proceedings, after having conducted a risk assessment for the VPPs concerned, with the assistance of the VWU.

Done in English, Arabic and French, the French text being authoritative. Leidschendam, 5 May 2015

Daniel Fransen Pre-Trial Judge



Title: Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution

Short title: Admissibility of CSTs and Transfer of CDRs TC

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Date: 6 May 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON FIVE PROSECUTION MOTIONS ON CALL SEQUENCE TABLES AND EIGHT WITNESS STATEMENTS AND ON THE LEGALITY OF THE TRANSFER OF CALL DATA RECORDS TO UNIIIC AND STL’S

PROSECUTION


Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan, Mr Emile Aoun and Mr Thomas HannisCounsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz, Mr John Jones and Mr Iain EdwardsCounsel for Mr Hassan Habib Merhi: Mr Mohamed Aouini, Ms Dorothée Le Fraper du Hellen and Mr Jad KhalilCounsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse, Mr Yasser Hassan and Mr Philippe LarochelleCounsel for Mr Assad Hassan Sabra: Mr David Young,Mr Guénaël Mettraux and Mr Geoffrey Roberts

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Admissibility of CSTs and Transfer of CDRs TC

BACKGROUND

1. The Prosecution’s case against the five Accused relies heavily upon telecommunications data and records, including call data records. According to the Prosecution, these are collections of relevant portions of call data business records generated and maintained by three Lebanese communication service providers, Ogero, MTC and Alfa.1 The records relate to numbers in five groups of telephones that the Prosecution describes in the consolidated indictment; the ‘red’,2 ‘green’,3 ‘purple’4 and ‘blue’5 networks and the ‘yellow’ telephones.6

2. Call data records contain information routinely collected by these providers in connection with telephones using their services, for customer billing and systems management. Many are on the Prosecution’s exhibit list filed under Rule 91 of the Special Tribunal’s Rules of Procedure and Evidence.7 As call data records are ‘without further analysis largely unintelligible’,8 the Prosecution extracted information from the call data records and entered it into what it terms ‘call sequence tables’ to make them accessible and capable of presentation and analysis without altering the data.9 Produced by a Prosecution analyst in a ‘standardized’ and ‘mechanical’ manner by ‘copying and pasting the relevant data from the underlying material,’10 call sequence

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1831, Prosecution Motion For the Admission of Red Network-Related Call Sequence Tables and Related Statement, 28 January 2015, para. 2 and footnote 2.

2 F1831, Prosecution Motion For the Admission of Red Network-Related Call Sequence Tables and Related Statement, 28 January 2015.

3 F1832, Prosecution Motion for the Admission of Green Network Related Call Sequence Tables and Related Statement, 29 January 2015.

4 F1836, Prosecution Motion for the Admission of Purple Phone Related Call Sequence Tables, 30 January 2015.

5 F1837, Prosecution Motion for the Admission of Blue Network-Related Call Sequence Tables and Related Statements, 2 February 2015.

6 F1840, Prosecution Motion for the Admission of Yellow Phone Related Call Sequence Tables and Related Statement, 3 February 2015.

7 Red network motion, paras 2-3.




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tables present chronological sequences of calls relating to a particular, or target, telephone number over a specified period of time, comprising relevant call data records and cell site information.11 For each call, they detail:12

• the other telephone number in contact with the target number;

• the time and the date of the call;

• the type of call (voice or Short Message Service (SMS));

• the duration;

• the IMEI13 of the handset used by the target number;

• the cell identity and name of the cell sector used by the target number at the start of the call;14 and

• the cell identity and cell sector at the end of the call, when necessary.

3. The Prosecution has filed five motions seeking the admission into evidence, under Rules 154 and 155,15 of ‘call sequence tables’ derived from these telephone call data records, and related witness statements. The statements describe the production of these tables for numbers relating to the five groups of telephones.

4. Counsel for the five Accused, Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hassan Habib Merhi, Mr Hussein Hassan Oneissi and Mr Assad

11 Red network motion, para. 5. Cell site data is information about what cell tower a mobile telephone was connected to. Red network motion, paras 5, 31. See also red network motion, Annex B.


13 Every mobile telephone handset has a unique International Mobile Equipment Identity (IMEI) number. See F1876, Decision on Three Prosecution Motions for the Admission into Evidence of Mobile Telephone Documents, 6 March 2015, para. 9 and footnote 28.

14 Cell identity and cell sector names correspond to longitudinal and latitudinal coordinates of cell tower locations. Cell sector names are short-form alphanumeric identifiers used by communication service providers for a particular cell identity. Red network motion, para. 12 and footnote 6.

15 Rule 154: ‘Subject to Rules 155, 156 and 158, the Trial Chamber may admit evidence in the form of a document or other record, consistently with Rule 149(C) and (D).’ Rule 155 (A): ‘Subject to Rule 158, the Trial Chamber may admit in lieu of oral testimony the evidence of a witness in the form of a written statement, or a transcript of evidence which was given by a witness in proceedings before the Tribunal, which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.’

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Hassan Sabra filed consolidated responses to the five Prosecution motions.16 They oppose admitting the call sequence tables into evidence. The Prosecution thereafter filed a consolidated reply,17 and, to correct two errors in a call sequence table, filed supplementary submissions to admit a corrected call sequence table and another witness statement.18 Counsel for Mr Ayyash and counsel for Mr Badreddine responded.19

PROSECUTION SUBMISSIONS—THE FIVE MOTIONS

A. First Prosecution motion: the ‘red network’

5. The Prosecution requests the admission into evidence under Rule 154 of eight call sequence tables and, under Rule 155, Witness PRH371’s related statement, which explains how she produced the ‘red network’ call sequence tables.20 The Prosecution further seeks leave to add that statement to its exhibit list.

16 F1854, Consolidated Response by the Ayyash Defence to Five Prosecution Motions pursuant to Rules 154 and 155 for the Admission of Evidence Related to Call Sequence Tables, 16 February 2015; F1856, Badreddine Defence Consolidated Response to Five Prosecution Motions for Admission of Call Sequence Tables and Related Statements, 16 February 2015; F1855, Consolidated Response from the Merhi Defence to the Motions for the Admission of Call Sequence Tables and Statements Relating to the Disputed Networks, 16 February 2015; F1857, Oneissi Consolidated Response to the Prosecution Motions for the Admission of Call Sequence Tables, 16 February 2015; F1853, Sabra Consolidated Response to Prosecution Motions for Admission of Call Sequence Tables, 16 February 2015.

17 F1865, Prosecution Consolidated Reply to the Defence Responses to the Prosecution Motions for the Admission of Call Sequence Tables, 26 February 2015. The Prosecution requested leave to reply, a short extension of time and an increased word count. F1859, Prosecution Request for an Extension of Time to File a Consolidated Reply to the Defence Reponses to the Prosecution Motions for the Admission of Call Sequence Tables, 18 February 2015. This was granted. Email from Trial Chamber Senior Legal Officer to counsel, 19 February 2015.

18 F1911, Supplementary Submission to “Prosecution Motion for the Admission of Green Network Related Call Sequence Tables and Related Statement” of 29 January 2015, 16 April 2015. The time for responding to this filing was shortened to 23 April 2015. Email from Trial Chamber Legal Officer to counsel, 21 April 2015.

19 F1918, Response by the Ayyash Defence to the “Supplementary Submission to ‘Prosecution Motion for the Admission of Green Network Related Call Sequence Tables and Related Statement’ of 29 January 2015”, 21 April 2015; F1926, Badreddine Defence Response to “Supplementary Submission to ‘Prosecution Motion for the Admission of Green Network Related Call Sequence Tables and Related Statement’ of 29 January 2015”, 23 April 2015.

20 Red network motion. paras 1-10.

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(i) Admission of ‘red network’ call sequence tables

6. The ‘red network’ call sequence tables, sequentially titled CST-306 to CST-313, are annexed to the motion.21 They are derived from the call data records provided by ‘Alpha CS’ in relation to a group of eight telephones the Prosecution refers to as the ‘red network.’22 These call sequence tables provide evidence that these telephones operated as ‘mission telephones’—telephones that were operated as a closed group, for a limited time and purpose23—in a closed network and were used in the surveillance of former Lebanese Prime Minister Rafik Hariri between 4 January 2005 and his assassination in Beirut on 14 February 2005.24

7. According to the Prosecution, the ‘red network’ call sequence tables are admissible under Rule 154 as they have probative value, bear sufficient indicia of reliability and their admission does not prejudice the fair trial rights of the five Accused.

8. With regard to their probative value, the Prosecution submits that, read in conjunction with other evidence, the ‘red network’ call sequence tables help prove that the ‘red network’ telephones operated as ‘mission telephones’ in the month preceding the attack on Mr Hariri. Prosecution analysts, Witnesses PRH147 and PRH435, analysed the call sequence tables.25 In particular, the analysis of CST-306 of the telephone ‘Red 741’ by Witnesses PRH230, PRH435 and PRH356, according to the Prosecution, supports the conclusion that this telephone is attributable to Mr Ayyash.26

9. The Prosecution submits that both the ‘red network’ call sequence tables and the call data records are reliable. Prosecution analysts used Microsoft Excel software to produce the call sequence tables by copying, storing and formatting the relevant

21 Red network motion, Annex A. See F1791, Prosecution Request to Amend its Exhibit List, 15 December 2014.

22 F1444, Redacted Version of the Consolidated Indictment (consolidated indictment), 7 March 2014, para. 15 (a).


24 Red network motion. paras 7 and 17-20.



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data from the call data records. Prosecution analysts performed this standardised and mechanical process and verified call sequence tables against previous versions for consistency and accuracy.27 Similarly, in respect of multiple call data records covering the same calls, the Prosecution created separate call sequence tables from each source for cross-checking, for consistency.28

10. The call data records in Annex B to the ‘red network’ motion are the business records of the Lebanese telecommunications companies.29 They provided them to the Lebanese Prosecutor-General and the Lebanese Ministry of Telecommunications in electronic format (on DVDs and hard drives) pursuant to requests for assistance sent by the Special Tribunal’s Prosecutor or the Commissioner of the United Nations International Independent Investigation Commission (UNIIIC). The UNIIIC also obtained some data directly from Lebanese communication service providers. The Prosecution intends to lead evidence on the creation, storage, and retrieval of the underlying material, including the call data records, at a later time.30

11. Finally, the probative value of the ‘red network’ call sequence tables is not substantially outweighed by the need to ensure a fair trial under Rule 149 (D).31 Indeed, ‘red network’ call sequence tables present relevant portions of call data records in an intelligible format and exclude irrelevant data, in compliance with the requirement of relevance imposed by Rule 149 (C).32 Moreover, the practice of tendering an extract of a large record has been accepted by the International





31 Rule 149 (D): ‘A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. In particular, the Chamber may exclude evidence gathered in violation of the rights of the suspect or the accused as set out in the Statute and the Rules.’

32 Rule 149 (C): ‘A Chamber may admit any relevant evidence which it deems to have probative value.’

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Criminal Tribunal for the former Yugoslavia (ICTY)33 and by some common law jurisdictions.34

(ii) Admission of Witness 371’s statement

12. The Prosecution submits that Witness 371’s proposed statement will provide evidence on how the ‘red network’ call sequence tables and 19 other call sequence tables—the subject of future Prosecution applications—were produced. More precisely, it documents source material and the witness’s methodology in producing the ‘red network’ call sequence tables and any notable features of the call data observed when checking the call sequence tables against previous versions.35 Further, the witness’s statement is limited to establishing the reliability of the call sequence tables and does not concern the acts and conduct of the Accused. It also complies with the relevant Practice Direction.36

13. The evidence describes a standardised and mechanical procedure, and the Prosecution intends to lead evidence about the integrity of the underlying material—the call data records. The admission of Witness 371’s statement would therefore contribute to an expeditious trial, without impacting on the rights of the Accused to a fair trial. Witness 371’s statement is also cumulative to the evidence of other witnesses who will testify about similar facts. If the Trial Chamber considers it necessary to hear evidence about the production of the call sequence tables orally, the Prosecution will call the analyst who supervised their production, Witness PRH308.37

33 Red network motion, para. 36. An ICTY Prosecution investigator reviewed extensive data of genetic profiles of bodies exhumed from mass graves and produced a summary report and spreadsheet; these were admitted by the Trial Chamber and relied upon in the trial judgement. ICTY, Prosecutor v. Tolimir, IT-05-88/2-T, T. 1726-1728, 13 May 2010 and T. 1789, 14 May 2010; ICTY, Prosecutor v. Tolimir, IT-05-88/2-T, Trial Judgement, 12 December 2012, para. 50.

34 Red network motion, paras 34-37, citing, e.g., Canada Evidence Act, RSC 1985, c C-5, s. 30 (5) Business Records; Canada, Alberta Court of Appeal, R v. Monkhouse [1987] A.J. No. 1031, (C.A.); and United States, Federal Rules of Evidence, Rule 1006.


36 Red network motion, paras 42-43. See also STL-PD-2010-02, Practice Direction on the Procedure for Taking Depositions under Rules 123 and 157 and for Taking Witness Statements for Admission in Court under Rule 155, 15 January 2010.


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(iii) Amendment of the Rule 91 exhibit list

14. The Prosecution also seeks to amend its exhibit list by adding Witness 371’s statement, arguing that it is prima facie relevant and has probative value. It has been disclosed to the Defence, and it merely consolidates and replaces two witness statements on the exhibit list.38

B. Second Prosecution motion: the ‘green network’

15. The Prosecution seeks the admission into evidence under Rule 154 of sixteen call sequence tables related to the ‘green network’ and, under Rule 155, of Witness 230’s related statement. This statement explains and documents the process whereby the witness produced four of the ‘green network’ telephone call sequence tables and four other call sequence tables. This statement consolidates and updates four existing witness statements on the exhibit list.39 In its supplementary submission, the Prosecution explains that one of the call sequence tables from the ‘green network’ motion contained two errors, which a new call sequence table corrects and a new statement by Witness 371 explains its production.40

(i) Admission of ‘green network’ call sequence tables

16. The ‘green network’ call sequence tables annexed to the motion present the call data records of a group of eighteen post-paid mobile telephones the Prosecution refers to as the ‘green telephones’.41 They provide evidence that the ‘green telephones’ were managed as a group. In particular, the call sequence tables of the telephones of ‘Green 023’, ‘Green 300’ and ‘Green 071’—referred to as the ‘green network’—demonstrate that these three telephones operated in a closed network between 13 October 2004 and 14 February 2005. Further, these three call sequence tables provide evidence that telephones used by Mr Badreddine, Mr Ayyash and


39 Green network motion, paras 1-5.

40 Green network motion supplementary submission, para. 2.

41 Consolidated indictment, para. 15 (b).

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Mr Merhi, respectively, were involved in the planning and preparation of the attack against Mr Hariri and in the disappearance of Mr Ahmad Abu Adass.42

17. The Prosecution submits that the ‘green network’ call sequence tables are admissible under Rule 154 as they have probative value, bear sufficient indicia of reliability and their admission does not prejudice the rights of the Accused to a fair trial.43

18. The Prosecution submits that, when read in conjunction with other evidence, the ‘green network’ call sequence tables demonstrate that the ‘green telephones’ operated as a group. Prosecution analyst, Witness 147, analysed the call sequence tables and is expected to testify that: nine fake identification documents were used to purchase the 18 post-paid SIM cards; all 18 telephones were paid as a group at the end of each month; and all 18 telephones were deactivated on 23 August 2005.44 Moreover, Prosecution analysts, Witnesses 230, 435 and 356, analysed the call sequence tables relating to ‘Green 023’, ‘Green 300’ and ‘Green 071’ and state that:45

• these three telephones formed a closed ‘green network’ between 13 October 2004 and 14 February 2005;

• ‘Green 023’ was predominantly in contact with Mr Ayyash and Mr Merhi;

• the geographic use of ‘Green 023’ was consistent with the geographical profile of other telephones that have been attributed to Mr Badreddine;

• the geographical use of ‘Green 300’ was consistent with the geographical profile of other telephones that have been attributed to Mr Ayyash; and

• the geographical use of ‘Green 071’—which was predominantly in contact with Mr Badreddine—was consistent with the geographical profile of ‘Purple 231’, which is attributed to Mr Merhi.



44 Green network motion, para. 13.


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19. With regard to the indicia of reliability and potential prejudice to the fair trial rights of the Accused, the Prosecution makes the same arguments summarised in paragraphs 9 to 11 above in relation to the ‘red network’ motion. It states that the underlying material is annexed to the motion and has been disclosed to the Defence.46

(ii) Admission of Witness 230 and Witness 371’s statements

20. The Prosecution submits that Witness 230’s proposed statement contains evidence which explains how four of the ‘green telephones’ call sequence tables and 40 other call sequence tables were produced. The statement of Witness 371 documents the production of the corrected call sequence table, including describing the two errors in the previous call sequence table.47 Consistent with the Prosecution’s arguments on the admission of witness’ statements relating to other networks or groups of telephones, the Prosecution further submits that the evidence contained in Witness 230 and 371’s statements—which are standardised and mechanical in nature—does not concern the acts and conduct of the Accused and complies with the relevant Practice Direction. These statements are also cumulative and their admission would not prejudice the rights of the Accused to a fair trial. If the Trial Chamber decides to hear oral testimony about the production of the call sequence tables, the Prosecution proposes to call Witness 230.48

(iii) Amendment of Rule 91 exhibit list

21. The Prosecution also seeks to amend its exhibit list by adding Witness 230’s statement, Witness 371’s statement, and the updated call sequence table. According to the Prosecution, these materials are prima facie relevant and probative. Witness 230’s statement consolidates and replaces four witness statements on the exhibit list. All of these documents have been disclosed to the Defence.49


47 Green network motion supplementary submission, para. 8.

48 Green network motion, paras 36-41. Green network motion supplementary submission, para. 9-10.

49 Green network motion, para. 42.

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C. Third Prosecution motion: the ‘purple telephones’

22. The Prosecution also seeks the admission into evidence under Rule 154 of three call sequence tables and two SMS call sequence tables, and, under Rule 155, of Witnesses 308 and PRH377’s related statements. These statements explain how the SMS call sequence tables were produced.50

(i) Admission of ‘purple telephone’ call sequence tables

23. The ‘purple telephones’ call sequence tables and SMS call sequence tables represent the call data records and SMS content of a group of three telephones the Prosecution refers to as the ‘purple telephones’.51 These call sequence tables help prove that the ‘purple telephones’ functioned as a group involved in the planning and carrying out of the false claim of responsibility for the attack of 14 February 2005.52 Further, these call sequence tables and other evidence establish that Mr Merhi, Mr Oneissi and Mr Sabra were, respectively, the users of ‘Purple 231’, ‘Purple 095’ and ‘Purple 018’.53

24. According to the Prosecution, the ‘purple telephones’ call sequence tables and SMS call sequence tables are admissible under Rule 154 as they are probative, bear sufficient indicia of reliability and their admission does not prejudice the rights of the Accused to a fair trial.

25. With regard to their probative value, the Prosecution argues that, with other evidence, the ‘purple telephones’ call sequence tables prove that the ‘purple telephones’ were linked together as a group. Witness 147 analyzed these call sequence tables and determined that they establish patterns of contacts among the ‘purple telephones’ between October 2004 and February 2005 in the context of:54

50 Purple network motion, paras 1-6.

51 Consolidated indictment, para. 15 (e).

52 Consolidated indictment, paras 5, 15 (e), 23-29, 44.



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• the alleged disappearance of Mr Ahmad Abu Adass at the Arab University Mosque on 16 January 2005;

• calls to family members at Mr Adass’s home on 17 January 2005; and

• four calls made to Reuters and Al-Jazeera on 14 February 2005 regarding the false claim of responsibility.

26. Moreover, according to the Prosecution, Witness 230’s analysis of the call sequence tables and SMS call sequence tables proves that: 55

• ‘Purple 231’ is attributed to Mr Merhi from 19 December 2002 until 15 February 2005;

• ‘Purple 095’ is attributed to Mr Oneissi from at least 9 January 2003 to 16 February 2005; and

• ‘Purple 018’ is attributed to Mr. Sabra from at least 9 January 2003 to 16 February 2005.

27. The Prosecution reiterates its arguments with regard to the indicia of reliability and potential prejudice to the fair trial rights of the Accused as summarised above for the ‘red network’ motion. Again, it states that the underlying material is annexed to the motion and has been disclosed to the Defence.56

(ii) Admission of Witnesses 308 and 377’s statements

28. The Prosecution submits that Witnesses 308 and 377’s statements provide evidence on how the ‘purple telephones’ SMS call sequence tables and other SMS call sequence tables—the subject of future Prosecution applications—were produced. It documents source material and the methodology these witnesses used to produce the SMS call sequence tables and any notable features of the SMS records. Consistent with the Prosecution’s arguments on the admission of witness statements relating to other networks or groups of telephones, the Prosecution submits that this evidence


56 Green network motion, para. 23-33.

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does not concern the acts and conduct of the Accused and complies with the relevant Practice Direction. These statements are also cumulative and their admission would not prejudice the rights of the Accused to a fair trial. The Prosecution again proposes, if necessary, to call Witness 308 to testify about the creation of the call sequence tables. 57


29. The Prosecution also seeks to amend its exhibit list by adding these statements, arguing that they are prima facie relevant and probative. Each statement consolidates and replaces two witness statements already on the exhibit list.58

D. Fourth Prosecution motion: the ‘blue’ network

30. The Prosecution also seeks to have admitted into evidence, under Rule 154, eighteen call sequence tables and, under Rule 155, Witnesses 308 and PRH458’s related statements. The Prosecution seeks leave to add these statements to its exhibit list. The statements explain how the Prosecution analysts produced the ‘blue network’ call sequence tables.59

(i) Admission of ‘blue network’ call sequence tables

31. The ‘blue network’ call sequence tables are annexed to the motion. They represent the call data records in relation to a group of telephones the Prosecution refers to as ‘blue network.’60

32. According to the Prosecution, the ‘blue network’ call sequence tables are admissible under Rule 154 as they are probative, bear sufficient indicia of reliability and their admission does not prejudice the rights of the Accused to a fair trial.


58 Purple network motion, para. 47.

59 Blue network motion, paras 1-5.

60 Blue network motion, paras 2-4; consolidated indictment, para. 15 (c).

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33. With regard to their probative value, the Prosecution submit that, read in conjunction with other evidence, the ‘blue network’ call sequence tables help prove that the ‘blue network’ telephones operated as ‘mission telephones’ in the month preceding the attack on Mr Hariri and that a group of six telephones were used between 21 December 2004 and 14 February 2005 in planning the attack. Witnesses 147 and 435 analysed the call sequence tables. Moreover, the analysis by Witnesses 230, 435 and 356 of CST-0182 attributes a telephone referred to as ‘Blue 233’ to Mr Ayyash. Witness 435 also relied upon the call sequence table for a telephone referred to as ‘Blue 322’ to conclude that this telephone could be found at the same location as other telephones attributed to Mr Ayyash from 10 January 2005 to 21 September 2005.61

34. As with the other motions, the Prosecution repeats its arguments about reliability and prejudice to the Accused. Also, the underlying material is detailed in Annexes A and B to the motion and has been disclosed to the Defence. 62

(ii) Admission of Witnesses 308 and 458’s statements

35. Witnesses 308 and 458’s statements explain the production of the ‘blue network’ call sequence tables and 21 and 41 other call sequence tables that will be the subject of future Prosecution applications. The evidence in Witnesses 308 and 458’s statements is limited to establishing the reliability of the call sequence tables and does not concern the acts and conduct of the Accused, and further, complies with the relevant Practice Direction. More precisely, it documents the source material and the methodology used in producing the ‘blue network’ call sequence tables and any notable features of the call data.

36. The Prosecution submits that the process employed by Witnesses 308 and 458 in creating the call sequence tables is standardised and mechanical. The Prosecution again states their intention to lead evidence about the integrity of the underlying materials. The admission of these statements, with other statements related to the



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production of call sequence tables, would contribute to an expeditious trial without impacting on the rights of the Accused to a fair trial. The Prosecution proposes to call Witness 308, as the analyst supervising the production of SMS call sequence tables, to testify. Thereafter, Witness 458’s statement would be cumulative of similar evidence.63


37. The Prosecution also seeks to amend its exhibit list by adding Witnesses 308 and 458’s statements, arguing that they are prima facie relevant, are probative, have been disclosed to the Defence, and consolidate and replace four witness statements already on the exhibit list.64

E. Fifth Prosecution motion: the ‘yellow telephones’

38. The Prosecution seeks the admission into evidence, under Rule 154, of fourteen call sequence tables and, under Rule 155, of Witness PRH313’s related statement. The Prosecution also seeks leave to add that statement to its exhibit list. This statement explains how the Prosecution analysts produced the ‘yellow telephones’ call sequence tables.65

(i) Admission of ‘yellow telephones’ call sequence tables

39. The ‘yellow telephones’ call sequence tables represent the call data records in relation to 14 prepaid mobile telephones for various date ranges between February 2004 and January 2005, with the exception of ‘Yellow 669’, which begins in August 2002, and ‘Yellow 294’, which begins in January 2003.66


64 Blue network motion, para. 46.

65 Yellow telephones motion, paras 1-7.

66 Yellow telephones motion, para. 14.

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40. The Prosecution submits that the ‘yellow telephones’ call sequence tables are admissible because they are probative and reliable. Also, their admission does not prejudice the fair trial rights of the Accused.

41. With regard to their probative value, the Prosecution argues that, together with other evidence, the ‘yellow telephones’ call sequence tables help prove that the ‘yellow telephones’ operated as a group.67 Witness 147 analysed the call sequence tables and is anticipated to testify that:68

• 14 of the telephones began contacting each other from at least February 2004;

• the telephones ceased operating as a group, in a staggered manner, over the thirteen-day period between 30 December 2004 and 12 January 2005;

• based on a comparison of the location of the ‘yellow telephones’ locations and the whereabouts and movement of Mr Hariri, a subset of the ‘yellow telephones’ began operating around Mr Hariri’s residence in Beirut and his residence in Faraya from 21 to 31 December 2004 and were in contact with the Accused, Mr Ayyash, during this period; and

• two of the ‘yellow telephones’ were used in Tripoli on 4 January 2005.

42. Witnesses 230, 435 and 356 analysed the call sequence tables of ‘Yellow 669’ and ‘Yellow 294’ and attributed both telephones to the Accused, Mr Ayyash, during relevant periods. Witnesses 147 analysed the call sequence tables of ‘Yellow 457’, ‘Yellow 933’ and ‘Yellow 024’. Witness 147 is anticipated to testify that the call sequence tables of three telephone combinations could be consistent with use by a single user. The analysis of these call sequence tables also helps prove that several co-conspirators, until early January 2005, simultaneously held ‘blue telephones’ and ‘yellow telephones’, and, from 14 January to 14 February 2005, ‘blue telephones’ and ‘red telephones’.69

67 Consolidated indictment, para. 15 (d).



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43. The Prosecution makes the same submissions as to the reliability of the ‘yellow telephones’ call sequence tables and to the fair trial rights of the Accused as summarised for the ‘red network’ motion. Namely, the underlying material is in Annexes A and B to the ‘yellow telephones’ motion and has been disclosed to the Defence. 70

(ii) Admission of Witness 313’s statement

44. According to the Prosecution, Witness 313’s statement explains how the ‘yellow telephones’ call sequence tables and two other call sequence tables were produced. Witness 313’s statement does not concern the acts and conduct of the Accused, is cumulative and complies with the relevant Practice Direction. Its admission would contribute to an expeditious trial without impacting on the rights of the Accused to a fair trial.71


45. The Prosecution also seek to amend its exhibit list by adding Witness 313’s statement, submitting that it is prima facie relevant, probative, and consolidates and replaces another witness statement already on the exhibit list.72

DEFENCE SUBMISSIONS

A. Summary of relief sought by counsel for the Accused

46. Defence counsel for all five Accused oppose the admission into evidence of the call sequence tables.

47. Counsel for Mr Ayyash request the Trial Chamber to defer ruling on the admission of the call sequence tables and witness statements—including those in the supplementary submissions—until the Trial Chamber has sufficient evidence



72 Yellow telephones motion, para. 45.

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to assess the relevance, probative value, and reliability of the call sequence tables and the statements.73 They also want to cross-examine Witnesses 230, 308, and 371.74 Counsel for Mr Badreddine ask the Trial Chamber to defer its decision on the motions and supplementary submissions until the Prosecution has led evidence on the reliability of the call data records and called at least one witness who produced the call sequence tables.75 Counsel for Mr Merhi ask the Trial Chamber to dismiss the motions as premature.76

48. Counsel for Mr Oneissi request the Trial Chamber to dismiss the motions, to decide on the legality of the call data records before admitting any call sequence tables, and to allow further oral submissions. They also want the Trial Chamber to exclude the call sequence tables, especially those for telephone number 3598095. Alternatively, they request an order to the Prosecution to tender the ‘communication evidence’ through witnesses who can testify to ‘all of the reliability issues’.77

49. Counsel for Mr Sabra ask the Trial Chamber to deny the motions or defer a decision on the admissibility of the call sequence tables until it has received the call data records into evidence and heard live testimony as to their collection, retrieval, and storage.78

B. The motions are premature

(i) Defence submissions

50. Counsel for Mr Badreddine, Mr Ayyash, Mr Sabra and Mr Merhi argue that the Prosecution should tender into evidence the call data records—from which the call sequence tables were allegedly extracted and produced—before seeking the

73 Ayyash response, para. 44; Ayyash response to supplementary submissions, paras 7-8.

74 Ayyash response, para. 45; Ayyash response to supplementary submissions, para. 6.

75 Badreddine response, para. 27; Badreddine response to supplementary submissions, para. 11.

76 Merhi response, para. 7.

77 Oneissi response, para. 53.

78 Sabra response, para. 24.

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admission of the call sequence tables. Admitting the call sequence tables now would violate the rights of the Accused to effectively confront the evidence against them.79 The motions are premature because the Prosecution has not tendered into evidence the call data records and, consequently, has failed to demonstrate the admissibility of the call data records from which the call sequence tables derive.80 The Prosecution has also failed to provide sufficient information about the provenance, relevance, reliability, accuracy, integrity and authenticity of the call data records and the call sequence tables.81 Counsel for Mr Badreddine state that it is inappropriate to provisionally allow the Prosecution to use the call sequence tables now to present its evidence, but to address the admissibility of the call data records later.82

51. Counsel for Mr Ayyash and Mr Sabra argue that, to allow for their ‘contextualization’, the Prosecution should lead the evidence on the creation, storage, and retrieval of the call data records, as it states that it will do, before tendering the call sequence tables.83 Further, counsel for Mr Ayyash submit that the call sequence tables include information not found in the call data records derived from other sources, such as the name of the cell towers. Consequently, the reliability of the call sequence tables can be established only after evidence is led on the reliability of the underlying material.84

52. Counsel for Mr Merhi submit that they are not yet prepared to assess the reliability and probative value of the call data because their own expert report on telecommunications is still being prepared and will not be ready for several months.85

79 Badreddine response, paras 8-10; Ayyash response, paras 30-32, 35; Sabra response, paras 1, 6, and 20-23; Merhi response, para. 4.

80 Badreddine response, paras 8-10, 12-14, 20; Ayyash response, para. 21; Sabra response, paras 1 and 5-6; Merhi response, paras 3-4.

81 Ayyash response, para. 32; Badreddine response, paras 10-11, 12-14; Sabra response, paras 5-11.

82 Badreddine response, para. 11.

83 Ayyash response, paras 25-29; Sabra response, paras 16-19.

84 Ayyash response, paras 30-32.

85 Merhi response, paras 3-6.

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(ii) Prosecution reply

53. The Prosecution argues that counsel for Mr Ayyash have cited no legal authority for their contention that the supporting material annexed to the motions is not properly before the Trial Chamber.86 The call sequence tables are not substantively different from the underlying call data records, but merely re-formatted for ease of presentation.87

C. The data and call sequence tables may be unreliable

54. Counsel for Mr Sabra submit that the Trial Chamber must satisfy itself that the process of transforming call data records into call sequence tables is reliable. The Trial Chamber must properly hear and assess the evidence of the Prosecution analysts who carried out this process.88 Counsel for Mr Oneissi also submit that it is not possible to ascertain the reliability of the communications evidence before hearing the testimony of the relevant witnesses.89 In particular, counsel want to challenge the conditions in which the telephone data upon which the Prosecution relies were stored by the communication service providers before being sent to the UNIIIC or the Special Tribunal’s Prosecutor.90

55. In their response to the Prosecution’s supplementary submissions, counsel for Mr Badreddine use the errors identified by the Prosecution as proof that the call sequence tables are unreliable and that their creators need to be cross-examined.91

86 Prosecution reply, para. 38.


88 Sabra response, paras 12-14.

89 Oneissi response, paras 2 and 42-44.


91 Badreddine response to supplementary submissions, paras 5-10.

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D. The call sequence tables must be tendered through Prosecution witnesses

56. The Defence of Mr Ayyash, Mr Badreddine, Mr Merhi and Mr Sabra object to the tender of call sequence tables from the bar table, submitting that that they should be tendered through the witnesses who produced them. They have no probative value without the explanations provided by their author.92 According to counsel for Mr Sabra, admitting the call sequence tables without cross-examining the Prosecution analysts would not allow for an adversarial challenge to their evidence.93 Counsel for Mr Badreddine also object to the admission under Rule 155 of the proposed witness statements because the call sequence tables concern the acts and conduct of the Accused.94 Counsel for Mr Ayyash object to admission under Rule 155 because the reliability of the underlying materials has not been established.95

E. These Prosecution witnesses must be cross-examined


57. Counsel for Mr Oneissi argue that, as the integrity of the telephone data used to produce the call sequence tables cannot be guaranteed, they wish to cross-examine, among others, the employees of the Lebanese communication service providers involved in the production, collection, storage, and transfer of the call and SMS data to the Prosecution. They also wish to cross-examine the UNIIIC investigators and the Prosecution experts and investigators involved in the collection of the call data records and in the maintenance of the structured query language (SQL)—a special programming language for databases—and the production of the call sequence tables.96 Discrepancies in one specific call sequence table confirm the importance of

92 Ayyash response, paras 12-14; Badreddine response, para. 22; Badreddine response to supplementary submissions, para. 8; Merhi response, para. 2; Sabra response, paras 13-14.

93 Sabra response, paras 13-14, 21.


95 Ayyash response, paras 39-41.

96 Oneissi response, paras 45-50.

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cross-examination.97 These discrepancies raise serious doubts about the reliability of the call sequence tables and their underlying call data records.98

(ii) Prosecution reply

58. The Prosecution argued in reply that any concerns of counsel for Mr Oneissi about a discrepancy concerning the data for ‘Purple 095’ relate to the differences in the business records of two different companies. Any discrepancy goes to the weight the Trial Chamber may give the evidence rather than to the integrity of the data itself.99

F. Further oral submissions are required

59. Counsel for Mr Oneissi seek to make additional oral submissions. They refer to the importance of the telecommunications evidence and their submission that it was collected in breach of international standards on human rights and applicable Lebanese law.100

G. The Prosecution submissions are ‘confusing’

60. Counsel for Mr Badreddine find ‘confusing’ the Prosecution’s submission that the admission of the call sequence tables will eliminate the need to call witnesses solely to admit the call sequence tables. The Prosecution must clarify who would not be called if its motions were granted. Without this, it is impossible for the Defence to make informed objections to protect the rights of the Accused to a fair trial.101

97 Counsel for Mr Oneissi’s response refers at para. 51 to CST-0388, which corresponds to the telephone Purple 095. See Purple network motion, Annex A.


99 Prosecution reply, paras 40-46.

100 Oneissi response, paras 2 (b), 41, 53 (c).

101 Badreddine response, paras 14-15.

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H. Collecting the call data records breached Lebanese and international human rights law


61. Referring to international102 and domestic legal authorities,103 counsel for Mr Oneissi argue that the data used to produce the call sequence tables was gathered in breach of the international standards on human rights and the applicable Lebanese law governing the collection of such evidence.104 The Trial Chamber must therefore exclude this evidence under Rule 162 (B).105 Additionally, their admission would

102 This includes a treaty provisions on the right to privacy, including: Article 12 of the Universal Declaration of Human Rights; Article 17 of the International Covenant on Civil and Political Rights; Article 8 of the European Convention on Human Rights; and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. They also cite cases from the European Court of Human rights and European Union Court of Justice on the right to privacy: ECHR, Malone v. the United Kingdom, 2 August 1984; ECHR, Rotaru v. Romania, 4 May 2000; ECHR, Amann v. Switzerland, 16 February 2000; ECHR, Niemietz v. Germany, 16 December 1992; ECHR, Wieser and Bicos Beteiligungen GmbH v. Austria, 16 October 2007; ECHR, Iliya Stefanov v. Bulgaria, 22 May 2008; ECHR, Robathin v. Austria, 3 July 2012; ECHR, S. and Marper v. the United Kingdom, 4 December 2008; ECHR, Bykov v. Russia, 10 March 2009; ECHR, Peck v. the United Kingdom, 28 January 2003; ECHR, Uzun v. Germany, 2 September 2010; ECHR, Brunet v. France, 18 September 2014; ECHR, Al-Nashif v. Bulgaria, 20 June 2002; ECHR, Lupsa v. Romania, 8 June 2006; ECHR, Kruslin v. France, 24 April 1990; ECHR, Klass and Others v. Germany, 6 September 1978; ECHR, Moulin v. France, 23 November 2010; CJEU, Judgment in Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger v. Minister for Communications, Marine and Natural Resources, 8 April 2014. Counsel also cite an opinion of the United Nations High Commissioner for Human Rights: Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, 30 June 2014, A/HRC/27/37.

103 This includes constitutional provisions, laws, and court cases: United States, Amend. IV, Constitution; United States, United States v. Jones, 132 S.Ct. 945 (2012); United States, Riley v. California, 134 S.Ct. 2473 (2014); United States, United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) (This decision was vacated and the appeal was reheard en banc, United States v. Davis, 573 F. App’x 925 (2014)); United States, 18 U.S.C. §§ 2703 (c) (1), (d); Canada, Canadian Charter of Rights and Freedoms, section 8; Canada, R. v. Plant (1993) 3 S.C.R. 281; Canada, R. v. Telus Communications Co (2013) 2 S.C.R. 3; Canada, s. 487.1, Criminal Code of Canada; Canada, R. v. Vu (2013) 3 S.C.R. 657; Canada, The Canadian Broadcasting Corporation v. The Attorney General for New Brunswick (1991) 3 R.S.C. 469; United Kingdom, Investigatory Powers Tribunal, IPT/13/77/H, IPT/13/92/CH, IPT/12/168-173-H, IPT/13/194/CH, IPT/13/204/CH, Liberty and others v. Secretary of States for Foreign and commonwealth Affairs and others, 6 February 2015.

104 The cited Lebanese authorities include: Articles 8 and 13, Constitution of Lebanon; Lebanese Constitutional Council, decision no. 2/2001, 10 May 2001; Lebanese Law 140/99, On safeguarding the right to the privacy of communications transmitted by any means of communication; Exhibit 4D105, the non-binding conclusions of the Lebanese Independent Commission of three judges tasked with ensuring the legality of the administrative interception of telephone calls, 21 November 2012.

105 Rule 162 (B) reads: ‘In particular, evidence shall be excluded if it has been obtained in violation of international standards on human rights, including the prohibition of torture.’

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consequently be antithetical to, and would seriously damage, the integrity of the proceedings, and the Trial Chamber must therefore exclude this evidence under Rule 162 (A).106

62. Counsel for Mr Badreddine argue that the Prosecution should be required to demonstrate that the call data records have been collected in compliance with the applicable Lebanese law and the relevant international human rights standards.107

(ii) Prosecution reply: no laws or standards were breached

63. The Prosecution argues that the evidence was collected in accordance with the applicable procedures of the Special Tribunal and, when applicable, the UNIIIC.108 The Defence did not submit that the call data records were collected in violation of these legal regimes.109 The Defence bears the evidential burden of proving that the call data records were collected in violation of international standards on human rights.110 However, the Defence has not proven any violation of international standards binding on Lebanon—namely, conventions ratified by Lebanon or customary international law. The only relevant treaties ratified by Lebanon are the International Covenant on Civil and Political Rights (ICCPR) and the League of Arab States’ Arab Charter on Human Rights. Neither specifically address whether the collection of business records includes the right to privacy, and neither is sufficiently specific and concrete on the right to privacy to acquire immediate force of law.111 The UN Human Rights Committee, which monitors implementation of the ICCPR through non-binding rulings, has not addressed the right to privacy with regard to call data records.112

106 Oneissi response, paras 2 and 34-41. Rule 162 (A) reads: ‘No evidence shall be admissible if obtained by methods which cast doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceeings.’

107 Badreddine response, paras 16-17, citing ECHR, Malone v. United Kingdom, 2 August 1984 (incorrectly cited as Malone v. Italy).






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64. Moreover, considering the legislative practice of the Arab Charter’s member States, the right to privacy specified in the Charter has not been interpreted to cover call data records.113 The Defence did not identify any Lebanese laws directly covering call data records. The law cited—Lebanese Law 140/99, titled ‘On safeguarding the right to the privacy of communications transmitted by any means of communication’—is limited to the interception of the content of the communications, and does not extend to call data records. A mere non-binding judicial opinion holding that the law covered call data records does not constitute a definitive legislative determination that the Arab Charter’s right to privacy covers call data records.114

(iii) Prosecution reply: the Defence has not demonstrated a customary norm

65. The Defence has not demonstrated the existence of customary international law on the right to privacy in respect of call data records. In determining whether the collection of this data violated customary international law, the Trial Chamber must consider whether States recognise, with near unanimity, that the right to privacy is violated by access to call data records, rather than whether there is a general right to privacy.115 The judicial decisions of national and regional courts cited in support of the Defence submissions are insufficient to demonstrate the existence of a customary norm of international law. They either did not involve access to call data records or do not clearly demonstrate State practice necessary to establish a customary norm.116


114 Prosecution reply, para. 21, referring to Exhibit 4D105. See footnote 104, above.



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DISCUSSION

A. General principles of international criminal law to admit and exclude evidence

66. The general principles and rules in international criminal law relating to the admission and exclusion of evidence have been summarised as: a Chamber may admit any relevant evidence, taking into account, among other things, the probative value of the evidence; a Chamber is not bound any by national rules of evidence; and, a Chamber may exclude evidence obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.117 These principles are in the Special Tribunal’s Statute and its Rules of Procedure and Evidence.118

B. Exclusion of the call sequence tables under Rule 149 (D)

67. Counsel for Mr Merhi seek the exclusion of the call sequence tables under Rule 149 (D), arguing that the Prosecution’s motion for admission is premature. Under Rule 149 (D):

A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. In particular, the Chamber may exclude evidence gathered in violation of the rights of the suspect or the accused as set out in the Statute and the Rules.

68. Defence counsel do not challenge the relevance or probative value of the data, but maintain that the records should be excluded because their probative value is substantially outweighed by the need to ensure a fair trial. Their principal arguments are, first, that they require more time to prepare and, second, that the Prosecution is posing its admission in reverse order, namely the call sequence tables—which derive from the call data records—before seeking to admit call data records into

117 See, e.g., Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev and Salvatore Zappalá (eds), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, p. 1043.

118 Article 21 (2) of the Statute, Rules 3, 149, 162.

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evidence.119 On this second point, the Trial Chamber agrees. Before it can admit into evidence the secondary material, the call sequence tables, the Trial Chamber has to be satisfied of the reliability of the underlying data.

69. On the first point—and for the reasons set out in paragraphs 111 to 115 below—the Trial Chamber is not prepared to dismiss the Prosecution motions and, before admitting the call sequence tables into evidence, will satisfy itself of the reliability of the call data records. For this reason, the Trial Chamber is satisfied that, by the time the evidence is led in court, counsel for Mr Merhi will have had at least 18 months to prepare for this aspect of the Prosecution’s case.

70. The Trial Chamber will therefore not summarily exclude the evidence under Rule 149 (D).

C. Oneissi Defence submissions—exclusion of call sequence tables

71. Counsel for Mr Oneissi request the Trial Chamber to (a) dismiss the motion, (b) order that the legality of the call data records be adjudicated upon prior to any decision on the admissibility of the call sequence tables, and (c) order that in light of the importance of the issue, the Defence be granted the opportunity to make oral submissions.120

(i) No need for a public oral hearing

72. Counsel ask the Trial Chamber ‘to refrain on ruling on the admissibility of any other communications evidence until the legality of the call data records has been the subject of a public hearing’.121 However, the Trial Chamber, with the full benefit of Defence counsel’s written submissions and the Prosecution’s reply, does not need further submissions—either in a public hearing or otherwise. It will not order an oral hearing.

119 Merhi response, paras 3-7.


121 Oneissi response, paras 2, 41, and 53 (c).

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(ii) Excluding the call data records under Rules 149 and 162

73. This decision will deal with the substantive issue of the possible exclusion of the call sequence tables based on the alleged illegal collection of the call data records. Order (b) sought by counsel for Mr Oneissi asks the Trial Chamber to adjudicate the legality of the call data records. That requires a positive finding as to the legality or otherwise of the call data records, and, in particular, their transmission to the UNIIIC and the Special Tribunal’s Office of the Prosecutor. Counsel want the call sequence tables excluded and declared inadmissible, on the basis that they were generated from illegally collected call data records. Alternatively, they seek an order for the Prosecution to tender communication evidence through witnesses who can comprehensively address all of the reliability issues.122 Before determining whether the call sequence tables and the witness statements are admissible under Rules 154 and 155, the Trial Chamber will address the possible exclusion of the call sequence tables.

(iii) Rule 149 (C)—no exclusion for unreliability

74. Although Defence counsel argued that the evidence is unreliable under Rule 149 (C),123 they did not submit that the collection of the call data records cast any doubt on their reliability. Because the Trial Chamber—for the reasons in paragraphs 111 to 115 below—will rule on the reliability of the call sequence tables only after hearing some evidence, this decision is confined to possible exclusion under Rule 162. That is, whether the call data records were ‘obtained in violation of international standards on human rights’, as the Defence claims. If so, the Trial Chamber cannot admit them—or material deriving from them—into evidence.

D. Possible Rule 162 exclusion for breaching international human rights law right to privacy

75. Rule 162 ‘Exclusion of certain evidence’, provides:

122 Oneissi response, para. 53 (e).

123 Rule 149 (C): ‘A Chamber may admit any relevant evidence which it deems to have probative value.’

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(A) No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and seriously damage, the integrity of the proceedings.

(B) In particular, evidence shall be excluded if it has been obtained in violation of international standards on human rights, including the prohibition of torture.

76. According to Defence counsel, the Lebanese telephone data should be excluded under Rule 162 (B) because the UNIIIC and the Prosecution obtained it—without effective and independent judicial oversight—in violation of ‘international standards on human rights’. The call data records were therefore collected, used and retained illegally. Admitting into evidence the call sequence tables derived from the illegally obtained call data records would therefore be ‘antithetical to, and would seriously damage, the integrity of the proceedings’, requiring their exclusion under Rule 162 (A).124

(i) The Lebanese companies legally collected and retained the call data records

77. Although the heading in the Oneissi Defence response reads, ‘[T]he CDRs were collected, are used and retained illegally’, the submissions under the heading are silent on the alleged illegal collection of the data. The data is the business records of Lebanese telecommunications companies generated and retained automatically, and legally, in the normal course of their business. As no question can arise about their collection and retention by these companies, the Trial Chamber will ignore this heading and confine its analysis to the legality of their transfer to the UNIIIC and the Prosecution.

(ii) International human rights law includes a right to privacy

78. The threshold question is whether the right to privacy forms part of the ‘international standards on human rights’ referred to in Rule 162 (B). The answer to this is ‘yes’. Under international law, the right to privacy, generally, provides that people are free from unreasonable governmental intrusions into their lives


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and property. For example, Article 17 of the ICCPR, ratified by Lebanon in 1972, provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

79. The UN Human Rights Committee has defined ‘privacy’—although in the context of changing a family name—as referring to the ‘sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone’.125 The Arab Charter,126 also ratified by Lebanon, and the Universal Declaration of Human Rights127 also recognise this right. Other regional conventions on human rights, for example, Article 8 of the European Convention on Human Rights, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 11 of the American Convention on Human Rights contain a similar provision.

80. Some States provide a constitutional or legal right to privacy.128 The Lebanese Constitution, while guaranteeing individual liberty and freedom of expression and assembly does not specify a separate right to privacy.129 Internationally, in decisions on the admissibility of illegally or unlawfully obtained evidence, the International

125 See, e.g., Human Rights Committee, AR Coeriel and MAR Aurik v. Netherlands, CCPR/C/52/D/453/1991, 9 December 1994, section 10.2.

126 Article 17 provides, ‘Private life is sacred, and violation of that sanctity is a crime. Private life includes family privacy, the sanctity of the home, and the secrecy of correspondence and other forms of private communication.’ The Arab Charter entered into force in March 2008.

127 Article 12 states, ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’.

128 See United States, Amend. IV, Constitution; Canada, Canadian Charter of Rights and Freedoms, section 8; Belgium, Article 22, Constitution; France, Civil Code, Article 9.

129 Articles 8 and 13, Constitution of Lebanon.

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Criminal Court130 and the ICTY131 have recognised that the right to privacy is protected by internationally recognised norms on human rights. Thus, contrary to the Prosecution’s submissions,132 the conventions and treaties referred to above, even if not ratified by Lebanon, are relevant under both Rule 3 and Rule 162 (B) as they contribute to the body of principles comprising ‘international standards’.

81. The right to privacy undoubtedly forms part of ‘international standards on human rights’ referred to in Rule 162 (B). However, the definition and content of a right to privacy under international human rights law is far from settled. It is self-evident from the words ‘arbitrary or unlawful’ in Article 17 of the ICCPR that a case specific assessment is required.

(iii) The ‘international standards on human rights’ referred to in Rule 162 (B) need not be customary norms

82. The Prosecution argued that the Defence has not met its burden to demonstrate that, under customary international law, the right to privacy is violated by access to call data records.133 The Trial Chamber, it is submitted, must inquire into whether States recognise with near unanimity that the right to privacy is violated by access to the call data records. In other words—and although not expressly stated—in interpreting the words ‘international standards on human rights’ in Rule 3 (A),134 and the ‘violation of international standards on human rights’ in Rule 162 (B), the Trial Chamber must be satisfied that these form part of customary international law. But, apart from referencing some definitions of customary international law, the

130 ICC, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803, Decision on the confirmation of charges, 29 January 2007, para. 84. (Lubanga decision).

131 See, e.g., ICTY, IT-99-36-T, Prosecutor v. Radoslav Brđanin, Decision on the Defence “Objection to Intercept Evidence”, 3 October 2003, para. 29. (Brđanin decision). Brđanin appealed the Trial Chamber’s use of illegally obtained telephone intercepts, but the Appeals Chamber dismissed his appeal on this issue summarily as merely restating his arguments from the original motion. ICTY, IT-99-36-A, Judgement, 3 April 2007, paras 34-35.


133 Prosecution reply, heading 3 (c) and paras 24-37.

134 Which provides, relevantly, that the ‘Rules shall be interpreted in a manner consonant with the spirit of the Statute, and in order of precedence, (i) the principles of interpretation laid down in customary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969), (ii) international standards on human rights…’

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Prosecution offered no legal source for asserting that an international standard on human rights had to be considered to have gained customary law status.

83. Unquestionably, some international human rights law standards are part of customary international law, for example, the prohibition on genocide, torture and slavery and the principle of non-discrimination.135 However, disagreement exists as to identity and content of the fundamental principles and regional human rights instruments vary in the human rights protected.136 And, neither the Special Tribunal’s Statute nor its Rules specify that the ‘violation of international standards on human rights’ under Rule 162 (B) refers only to a protected human right that has attained customary status. To read this requirement into the Rule would unduly restrict its application. The Trial Chamber therefore finds that it does not have to satisfy itself that an alleged ‘violation of international standards on human rights’ forms part of customary international law. For this reason it is unnecessary to examine whether there are any customary norms on privacy that may bind Lebanon.137

(iv) The right to privacy is not absolute

84. The right to privacy under international law, however, is not absolute.138 Interferences are permissible when they are not ‘unlawful and arbitrary’.139 International criminal tribunals and human rights courts have interpreted this to mean that any restriction imposed on the right of privacy must respect certain

135 See, e.g., ICJ, Barcelona Traction, Light and Power Company Ltd (Belgium v Spain), ICJ Reports, 5 February 1970, p. 32; American Law Institute, Restatement of the Law Third, The Foreign Relations Law of the United States, 14 May 1986, § 702; Malcolm N. Shaw, International Law 7th edition, Cambridge University Press, 2014, p. 201; James Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press, 2012, p. 642.

136 See Brownlie, p. 642, and a chart at p. 644 comparing the ‘key human rights protected’ under the ICCPR, ECHR, the Arab Charter, the African Charter on Human and People’s Rights, and the International Covenant on Economic, Social and Cultural Rights and illustrating the differences in regional human rights protections.

137 See, e.g., F0936, STL-1-01/I/AC/R176bis, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, paras 114-122.

138 Brđanin decision, para. 30.

139 See ICCPR, Article 17. 1.

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guarantees.140 For example, the restriction must be provided for by law, be necessary in the circumstances, and proportionate to the pursuance of a legitimate aim.141

(v) Call data records and similar metadata may fall within privacy protections

85. The principal Defence argument for exclusion under Rule 162 is that the Prosecution’s possession of the call data records breaches the right to privacy recognised in international standards on human rights. Call data records and accompanying personal data contain information that may affect the rights to privacy of those whose data has been captured. In June 2014, the United Nations High Commissioner for Human Rights reported to the UN General Assembly that;142

[t]he aggregation of information commonly referred to as ‘metadata’ may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication. As the European Union Court of Justice recently observed, communications metadata ‘taken as a whole may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained’.143

86. The UN Human Rights Council, in 2015, recognised that the collection of data about communications—as opposed to the content of these communications—constitutes interference with privacy. The Human Rights Council consequently appointed a special rapporteur on the right to privacy.144 From this, it is evident

140 See ECHR, Malone v. United Kingdom, 2 August 1984, para. 62; Brđanin decision, para. 30.

141 ECHR, Uzun v. Germany, 2 September 2010, paras 77-81. See UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on State Party to the Covenant, CCPR/C/21/Rev.1/Add. 13, 24 May 2004, para. 6.

142 Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, 30 June 2014, A/HRC/27/37, para. 19. See also Resolution of the Human Rights Council, 24 March 2015, A/HRC/28/L.27, p. 3.

143 Referring to Court of Justice of the European Union, Judgment in Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger v. Minister for Communications, Marine and Natural Resources, 8 April 2014, paras. 26-27. See also United States, President’s Council of Advisors on Science and Technology, “Big Data and Privacy: A Technological Perspective”, May 2014, p. 19.

144 Resolution of the UN Human Rights Council, 24 March 2015, A/HRC/28/L.27, p. 3.

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that international human rights standards are evolving to include legal protection of metadata such as call data records from unwarranted disclosure to governments and law enforcement agencies.

(vi) Judicial control over transferring call data records to international investigatory agencies

87. Both the UNIIIC and the Special Tribunal’s Office of the Prosecutor are investigatory agencies established pursuant to UN Security Council Resolutions. They obtained the call from Lebanese telecommunications companies. But did this transfer require judicial control? And, if yes, did its absence violate any international human rights standard on the right to privacy justifying the exclusion of the data under Rule 162?145 The answer to both questions is ‘no’.

88. Counsel for Mr Oneissi argue that some form of ‘judicial control’, by an independent Lebanese juge d’instruction according to Lebanese law, was required to regulate the transfer of call data records.146 They have, however, failed to point to any Lebanese law requiring judicial control over providing telecommunications metadata for investigative purposes. As the Prosecution has submitted, the Lebanese law cited by counsel, Law 140/99, titled ‘On safeguarding the right to the privacy of communications transmitted by any means of communication’, is relevant only to surveillance and interception, and not to the transfer of legally collected and retained telecommunications data.

89. The ICTY—which, like the Special Tribunal was created by a Security Council Resolution under Chapter VII of the Charter of the United Nations—has examined the nature of the relationship between such international institutions and corresponding national authorities. It has described it as ‘vertical’, ‘at least as far as the judicial and injunctory powers of the International Tribunal are concerned

145 In other international criminal courts and tribunals, no rules provide for the automatic exclusion of illegally or unlawfully obtained evidence. See, e.g. Brđanin decision, paras 28-56; Lubanga decision, para. 84.


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(whereas in the area of enforcement the International Tribunal is still dependent upon States and the Security Council).’147

90. The Trial Chamber agrees with this description in relation to cases in which the Special Tribunal has exercised its primacy under Article 4 (1) of the Special Tribunal’s Statute and Rules 17 (A) and (B). A distinction must be drawn between national and international authorities when international institutions derive their authority from Security Council Resolutions. The policy rationale is to maintain the institution’s true international independence by preventing national authorities from imposing conditions on or frustrating or influencing investigations. Allowing domestic oversight could prevent international institutions from exercising their investigative powers148 and fulfilling mandates such as those specified in Security Council Resolutions 1595 and 1757.

91. Thus, if judicial oversight were required, it should, as a matter of principle, come from either the UNIIIC or the Special Tribunal under their own rules and internal mechanisms, as opposed to that of national judges. The UNIIIC, however, as a purely investigating agency, had no judicial competence; no international judicial oversight was therefore possible until the Special Tribunal’s establishment on 1 March 2009.

92. Defence counsel justify the need for judicial overview over the UNIIIC and the Prosecution’s actions by arguing that ‘a Prosecutor whose position depends on the Minister of Justice, who receives his instructions when prosecuting and investigating from that same Minister and reports to him or her on their execution, is not structurally independent from the executive’.149 This argument, however, illustrates precisely why any judicial oversight over an investigation should be international rather than

147 ICTY, Prosecutor v. Tihomir Blaškić, IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 47. See also ICTY, Prosecutor v. Dragan Nikolić, IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 100; ICTY, Prosecutor v. Milan Lukić and Sredoje Lukić, IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis with Confidential Annex A and Annex B, 5 April 2007, para. 108.

148 See Security Council Resolution 1595 (2005), para. 3; Article 11 (5) of the Statute.


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national. The UNIIIC Commissioner and the Special Tribunal’s Prosecutor, by contrast, are independent.

93. Both are expressly prohibited from receiving instructions from any political bodies—international or national. Security Council Resolution 1595 highlights the UNIIIC’s independence by naming it the ‘International Independent Investigation Commission’ and providing it with all necessary powers to function independently. These are:150

• full access to all documentary, testimonial and physical information and evidence in the possession of Lebanese authorities;

• authority to collect—by itself—any additional information;

• freedom of movement within Lebanese territory; and

• facilities necessary to perform its functions.

The UNIIIC had the required legal authority to collect investigatory information, which must, by necessity, include call data records. Further, the Agreement annexed to Resolution 1757 and the Statute itself highlight that the Prosecutor is independent in the performance of his or her functions and shall not accept or seek instructions from any Government or any other source.151

94. Allowing national control—even judicial—over investigations would also contravene Article 4 (1) of the Special Tribunal’s Statute, specifying that within its jurisdiction, ‘the Tribunal shall have primacy over the national courts of Lebanon.’ Once the Special Tribunal exercises its primacy over a case under this Article and Rules 17 (A) and (B), the Lebanese courts must defer their competence to it. It then has full jurisdiction over all aspects of the investigation and trial of the case. This

150 Security Council Resolution 1595 (2005), paras 1 and 3.

151 Article 3, para. 4 of the Agreement annexed to Security Council Resolution 1757 (2007), 10 June 2007, and Article 11, para. 2 of the Statute.

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includes obtaining evidence. The case of the attack against Mr Hariri and others was transferred to the Special Tribunal on 27 March 2009.152

95. National authorities, under their domestic law, however, may of course assist in implementing or enforcing the UNIIIC’s or the Special Tribunal’s requests for assistance, or orders such as to arrest suspects.153 By virtue of the Security Council Resolution 1757, Lebanon is required to cooperate with the Special Tribunal.

(vii) The Special Tribunal does not judicially control Prosecution or Defence investigations

96. Do the Special Tribunal’s Chambers control or oversee the Prosecution or Defence investigations? No. The Special Tribunal has no investigating magistrate (juge d’instruction) and its Prosecutor has no judicial powers. Under the Statute and the Rules the Prosecution and Defence conduct their own investigations.

97. The Prosecution needs no authorization from the Pre-Trial Judge, or the Trial Chamber, before collecting evidence. Nor do Defence counsel. Nor does the Head of the Defence Office in sending a request for assistance to the Lebanese authorities.154

98. Under Article 18 (2) of the Statute, the Pre-Trial Judge may issue orders required for the conduct of the investigation, but only upon the Prosecutor’s request. He does not investigate or compile a dossier of evidence for any party. The Prosecutor, apparently, did not seek a judicial order from the Pre-Trial Judge to obtain the call data records from Lebanon. But he did not have to. Security Council Resolution 1595, establishing the UNIIIC, also contained no requirement for international judicial control over the international investigation.

152 CH/PTJ/2009/01, Order directing the Lebanese Judicial Authority Seized with the Case of the Attack Against Prime Minister Rafiq Hariri and Others to Defer to the Special Tribunal for Lebanon, 27 March 2009, Disposition.

153 See Security Council Resolution 1595 (2005), para. 6; Rule 16 (B).

154 Memorandum of Understanding between the Government of the Lebanese Republic and the Defence Office on the Modalities of their Cooperation, 28 July 2010.

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(viii) The transfer of the call data records did not involve surveillance or interception

99. Neither the UNIIIC nor the Prosecution conducted surveillance or interception of communications to obtain the data in question.155 Any interference with a right to privacy must be assessed in this light. Their involvement was confined to requesting, either directly or indirectly via the Lebanese Prosecutor-General, the transfer of existing data that was legally compiled and held by Lebanese telephone companies in the ordinary course of their business for billing purposes.

(ix) The transfer of the data was legal

100. The transfer of the call data records occurred under the legal framework of cooperation between the UNIIIC or the Special Tribunal and the Lebanese authorities, as regulated by Security Council Resolution 1595, Article 15 (1) of the Agreement annexed to Security Council Resolution 1757, Rules 14 and 61, the Memoranda of Understanding concluded between the UNIIIC or the Special Tribunal and Lebanese authorities156 and Lebanese law on intercepting telecommunications.157 None of these legal instruments require judicial control over the transfer of investigative material to the UNIIIC or the Special Tribunal’s Prosecution or Defence.

101. The Trial Chamber, moreover, emphasises that the Security Council adopted Resolutions 1595 and 1757 under Chapter VII of the Charter of the United Nations,

155 This includes the SMS content used to make SMS call sequence tables for two telephones in the ‘purple network’ with numbers 3419018 and 3598095 between 1 February 2004 and 16 February 2005. See purple network motion, para. 4 and Annex A.

156 Memorandum of Understanding between the Government of the Republic of Lebanon and the Office of the Prosecutor of the Special Tribunal for Lebanon regarding the Modalities of Cooperation Between Them, 5 June 2009; Letter dated 16 June 2005 from the Secretary General addressed to the President of the Security Council, S/2005/393, 20 June 2005, attaching Memorandum of Understanding Between the Government of the Republic of Lebanon and the United Nations regarding the Modalities of Cooperation for the International Independent Investigation Commission.

157 Exhibit 4D99, Article 9, Lebanese Law 140/99, On safeguarding the right to the privacy of communications transmitted by any means of communication, 27 October 1999.

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and Article 48 (1)158 of the Charter obligates members of the United Nations—including Lebanon—to implement its decisions.

(x) The call data transfer had a narrow and legitimate forensic purpose

102. The call data transfer had a narrow and legitimate forensic purpose, namely, according to the UNIIIC’s and Special Tribunal’s respective mandates, conducting a criminal investigation against those allegedly responsible for the attack against Mr Hariri and others.

103. The proportionality of the collection of a large amount of telephone data—necessary to establish the call sequence tables relevant for the case—must be evaluated in light of the gravity of the attack under investigation and of the overall unstable security situation then prevailing in Lebanon and that the investigation was pursuant to a UN Security Council Chapter VII Resolution. The Trial Chamber is satisfied that, in the circumstances, the transfer was for a narrow and legitimate forensic purpose.

(xi) Access to the call records data is strictly limited

104. The data is retained within the Special Tribunal’s Office of the Prosecutor and access to it is strictly limited. The intrusion to any right to privacy is minimised because the data is available only to an extremely limited number of people involved in the trial—namely, staff of the Office of the Prosecutor, Defence counsel, the Legal Representative of the Victims, the Judges and their staff—all of whom have professional and ethical obligations of confidentiality.

105. The Trial Chamber also emphasises that Defence counsel do not have access to all the telephone data held by the Prosecution, but only to that between 1 January 2003 and 31 December 2005 (and additionally to two specified telephone numbers)—declared by the Trial Chamber to be material to the Defence preparation for trial—

158 Chapter VII, Article 48 (1) reads: ‘The action required to carry out the decisions of Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.’

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and any other agreed between the Parties to be material under Rule 110 (B).159 The restrictions imposed by such measures on any right to privacy are proportional to this legitimate investigatory aim referred to above.

(xii) Judicial oversight is required over the admission of evidence, not its collection

106. The Trial Chamber has not found any specific international standard on the transfer to an investigating agency of metadata, such as call data records—either with or without judicial oversight.160 However, the conduct of the UNIIIC and the Prosecution in their investigations are not free from judicial scrutiny.

107. The Trial Chamber assesses the legality, necessity and proportionality of the measures taken by these investigative bodies to collect evidence during admission into evidence under Rule 149 (C) and (D) and, in particular, when determining their reliability. And similarly in determining the possible exclusion of evidence under Rule 162. It is at this point—according to the Statute and Rules—and not during the investigation, that judicial oversight over the collection of material is required.

(xiii) Conclusion: the transfer of the call data records was legal

108. Although the collection of telephone data may constitute a restriction of the right to privacy, the Trial Chamber concludes that, since the transfer of the legally-collected call data records was neither unlawful nor arbitrary, no violation of international standards on human rights has occurred. The Trial Chamber is satisfied that what has been described as a ‘restriction’ on the right to privacy was provided for

159 STL-11-01/PT/TC, F1252, Decision on Call Data Records and Disclosure to defence (on Remand from Appeals Chamber), 4 December 2013, para 31, 33 and Disposition. In this decision, counsel for Mr Oneissi—as opposed to their current request for exclusion for having been illegally obtained—sought access to all of the call data records in the Prosecution’s custody from 2003 onward in SQL format. The Trial Chamber, at para. 27, held that they had demonstrated relevance, and therefore materiality to their preparations, of the call data records after the time period specified in the amended indictment for only two specified telephone numbers.

160 The Trial Chamber recognises that, in some national systems, investigators require a warrant or other judicial supervision to obtain SMS content. However, for the reasons above at paras 87-98, this does not apply to the transfer of SMS content data to the UNIIIC and the Special Tribunal’s Office of the Prosecutor.

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by law, was necessary in the circumstances, and was proportionate to the pursuance of a legitimate aim.161

109. The two Security Council Resolutions―supplemented by the Agreement annexed to Security Council Resolution 1757, the Special Tribunal’s Statute and Rules, and the Memoranda of Understanding concluded between the UNIIIC or the Special Tribunal and Lebanese authorities― provide the necessary legal authorisation for the transfer of the call data records. The transfer of the records was necessary in the circumstances; without these records the Prosecutor could not have constructed his case and filed an indictment against the first four, and then the fifth Accused. The legitimate aim―in accordance with the UNIIIC’s and Special Tribunal’s mandates―was investigating the attack of 14 February 2005. Transferring call data records, and strictly limiting access to them, was proportionate to this legitimate aim.

110. Accordingly, no violation justifying the exclusion pursuant to Rule 162 of the call data records or call sequence tables derived from the data, has occurred. The Defence submissions made in this regard are therefore rejected.162 The call data records—and their derivative call sequence tables as demonstrative evidence—are thus admissible as evidence in the case if the Trial Chamber is satisfied that they are relevant and probative.

E. Admitting the call sequence tables into evidence

111. The Trial Chamber has specified the procedural safeguards for admitting material tendered from the ‘bar table’ under Rule 154. It must meet the basic requirements for admission of evidence in Rule 149 (C) and (D): it must be relevant and probative, and its probative value must not be outweighed by its prejudicial

161 ECHR, Uzun v. Germany, 2 September 2010, paras 77-81. See UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on State Party to the Covenant, CCPR/C/21/Rev.1/Add. 13, 24 May 2004 para. 6.

162 The Trial Chamber has carefully examined each cases cited above in footnotes 102, 103, and 104. However, most of the cases are distinguishable. The two most relevant are Malone v. United Kingdom and Uzun v. Germany. However, Malone dates from 1984 and concerns the legality of the interception of telephone call data using 1970s technology, and Uzun relates to the police planting a GPS device on a suspect’s vehicle, without a court warrant, and raises different considerations about State action.

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effect.163 Only prima facie―rather than definite―reliability and probative value is required at this stage.164 Probative value, in this sense, is distinct from the weight that the Trial Chamber may ultimately give to a document or record. The tendering party must also demonstrate, with clarity and specificity, where and how each document or record fits into its case.165

112. The Defence argues that determining the admissibility of the call sequence tables would be premature, as the Prosecution did not tender into evidence the call data records from which the call sequence tables were produced.166 The Prosecution failed to provide sufficient information about the provenance, reliability, accuracy, integrity and authenticity of both the call data records and the call sequence tables.167 Counsel for Mr Ayyash and Mr Sabra state that, before the tendering of the call sequence tables and to allow for their contextualization, the Prosecution should lead the evidence on the creation, storage, and retrieval of the call data records, as it declares it will do in each of the motions.168

113. The Trial Chamber believes that no practical utility could exist in admitting into evidence all the call data records from which the call sequence tables are derived. The call data records of themselves are voluminous, and, without extraction of the relevant data into a readable format, meaningless. However, to allow the Trial Chamber to evaluate the admissibility of the call sequence tables and the reliability

163 F1876, Decision on Three Prosecution Motions for the Admission into Evidence of Mobile Telephone Documents, 6 March 2015, para. 33; F1781, Decision on Prosecution Motion to Admit into Evidence Geographic Documents, 8 December 2014, para. 4.

164 Decision of 6 March 2015, para. 33; F1350, Decision on Prosecution’s Motion to Admit into Evidence Photographs, Questionnaires and Records of Victims, 28 January 2014, para. 7; STL-11-01/PT/TC, F1308, Decision on Prosecution’s Motion to Admit into Evidence Photographs, Videos, Maps, and 3-D Models, 13 January 2014, para. 8.

165 Decision of 6 March 2015, para. 33; Decision of 28 January 2014, para. 7; Decision of 13 January 2014, paras 4-6.

166 Badreddine response, paras 8-10, 12-14; Ayyash response, paras 21, 31; Sabra response, paras 1 and 9; Merhi response, paras 3-4.

167 Badreddine response, paras 8-10 12-14; Sabra response, paras 5-13; Oneissi response, paras 45-46; Ayyash response, paras 30-32.

168 Ayyash response, paras 25-29; Sabra response, para. 21.

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of their underlying data, the Prosecution must provide contextual evidence on its provenance.

114. As to the admissibility of the call sequence tables themselves, the Trial Chamber considers that the Prosecution has prima facie demonstrated that they show the existence of groups of mobile telephone operating as networks referred to as ‘red’, ‘green’, ‘purple’ and ‘blue’ networks and ‘yellow’ group allegedly involved in the planning and carrying out of the attack against Mr Rafik Hariri and making a false claim of responsibility for the attack.

115. These tables are therefore prima facie relevant to the allegations pleaded in the consolidated indictment and, in particular in paragraphs 14 to 19. However, the Trial Chamber has insufficient information to effectively assess the reliability and probative value of these call sequence tables, which amalgamate and organise underlying data from different sources of raw data. To properly evaluate the integrity, value and authenticity of these call sequence tables, the Prosecution must provide contextual evidence on these tables and, in particular, on how they were produced. The Trial Chamber will thus defer its decision on the admissibility of the call sequence tables until the Prosecution has called at least one witness who can provide information on: (i) the provenance of the underlying call data records (including the gathering, retrieval and storage of this data), and (ii) the production of the call sequence tables.

F. Admitting the witness statements into evidence

116. The principles governing the admission into evidence of statements under Rule 155 are also set out in previous decisions.169 In particular, these statements can be admitted in lieu of live in-court testimony if they meet the basic requirements for admission under Rule 149. If going to proof of acts or conduct of the Accused, they

169 F1820, Decision on the Prosecution Motion for Admission Under Rule 155 of Written Statements in Lieu of Oral Testimony Relating to the ‘Red Network’ Mobile Telephone Subscriptions, 19 January 2005, para. 3; F1785, Decision on the Prosecution Motion for Admission Under Rule 155 of Written Statements in Lieu of Oral Testimony Relating to Rafik Hariri’s Movements and Political Events, 11 December 2014, para. 3; STL-11-01/PT/TC, F1280, First Decision on the Prosecution Motion for Admission of Written Statements Under Rule 155, 20 December 2013, paras 7-14; F937, Decision on Compliance with the Practice Direction for the Admissibility of Witness Statements Under Rule 155, 30 May 2013, para. 13.

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may not be admitted without cross-examination. These principles are applicable to this decision.

117. The Prosecution submits that the eight witness statements are relevant, probative and contain the necessary indicia of reliability. According to the Prosecution, none go to the acts and conduct of the Accused and the admission of each into evidence would be in the interest of justice. The evidence of the six witnesses explains how the call sequence tables, relating to each network or group of telephones, were produced by the Prosecution from the call data records, namely:

• Witness 371―a Prosecution analyst since March 2009―produced 27 call sequence tables170 referred to in the ‘red network’ motion and the one call sequence table171 in the supplementary submission to the ‘green network’ motion;

• Witness 230―a Prosecution analyst since March 2009―produced 44 call sequence tables172 referred to the ‘green network’ motion;

• Witness 308―a Prosecution analyst since November 2009―produced several call sequence tables from SMS messages referred to the ‘purple network’ motion173 and the ‘blue network’ motion;174

• Witness 377―a Prosecution analyst since October 2009―produced 12 call sequence tables175 referred to in the ‘purple network’ motion;

• Witness 458―a Prosecution analyst since June 2010―produced call sequence tables listed in the investigator’s note176 referred to in the ‘blue network’ motion; and

170 Witness 371’s statement of 18 December 2014.

171 Witness 371’s statement of 13 April 2015.

172 Witness 230’s statement of 19 January 2015.





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• Witness 313―a Prosecution analyst since April 2009―described producing call sequence tables177 referred to in the ‘yellow telephones’ motion.

118. These analysts’ statements all concern producing the call sequence tables relating to the networks and groups of telephones, allegedly involved in the attack against Mr Hariri. These are prima facie relevant to the allegations pleaded in the consolidated indictment. However, as the Trial Chamber requires further contextual evidence from the Prosecution to properly evaluate their probative value and the reliability of their subject matter―namely, producing the call sequence tables, and the underlying data used―their admission is premature. The Trial Chamber will therefore defer its decision until hearing this evidence. If the Trial Chamber finds the call data records reliable and declares the call sequence tables admissible, it follows that these statements will be declared admissible as integral associated exhibits.

119. Collectively, Defence counsel want to cross-examine all witnesses involved in the collection of call data records and production of call sequence tables. As these statements relate to vital parts of the Prosecution’s case, the Trial Chamber considers that their authors should be made available for cross-examination under Rule 156.

G. Amending the Prosecution’s exhibit list

120. The Prosecution requests amendments to its exhibit list to add the statements of Witnesses 313, 230, 308, 371, 377 and 458 and the corrected call sequence table.178 The Defence takes no position on the Prosecution’s requested amendments to the exhibit list. The Trial Chamber has previously held that it may, in the interests of justice, allow a party to amend its exhibit list. In doing so, it must balance the Prosecution’s interest in presenting any available evidence against the rights of an accused person to adequate time and facilities to prepare for trial.179 These documents


178 Red network motion, para. 47; Green network motion, para. 42; Purple network motion, para. 47; Blue Network motion, para. 46; Yellow telephones motion, para. 45; Green network motion supplementary submission, paras 3 and 11-13.

179 Decision of 6 March 2015, para. 31; F1781, Decision on Prosecution Motion to Admit into Evidence Geographic Documents, 8 December 2014, para. 4; F1780, Decision Authorizing the Prosecution to Amend its Witness and Exhibit Lists, 8 December 2014, para. 15.

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have already been disclosed to the Defence and largely consolidate and replace other witness statements. Adding them to the exhibit list will neither delay the proceedings nor prejudice Defence preparations for trial. The Trial Chamber is therefore satisfied that adding the eight statements and corrected call sequence table to the exhibit list is in the interest of justice.

H. Confidentiality

121. Because they contain confidential witness information, the Prosecution seeks to keep confidential the annexes to its motions.180 The Trial Chamber reiterates the public nature of the proceedings and orders the Prosecution to either file a public redacted version of the annexes or have them reclassified as public.

180 Red network motion, para. 48; Green network motion, para. 43; Purple network motion, para. 48; Blue network motion, para. 47; Yellow telephones motion, para. 46.

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DISPOSITION


GRANTS leave to the Prosecution to amend its exhibit list filed under Rule 91;

FINDS that the call data records were not illegally transferred to the United Nations International Independent Investigation Commission, or to the Special Tribunal’s Office of the Prosecutor, in breach of either Rule 162 (A) or (B);

ORDERS the Prosecution to call at least one witness who can testify to the creation of the call sequence tables and to the collection, storage and reliability of their underlying materials;

DECIDES that it will defer a decision on the admissibility of the call sequence tables and related witness statements until at least one witness has testified about:

(i) the provenance of the underlying call data records (including the gathering, retrieval and storage of this data); and

(ii) the production of the call sequence tables; and

DECIDES that, if it is satisfied of (i) and (ii), it will:

• DECLARE the statements of Witnesses PRH230, PRH308, PRH313, PRH371, PRH377, and PRH458 admissible under Rule 155 (C) or Rule 156; and

• ORDER the Prosecution to make Witnesses PRH230, PRH308, PRH313, PRH371, PRH377, and PRH458 available for cross-examination.

Leidschendam, The Netherlands 6 May 2015





Title: Decision on the Admissibility of Documents Published on the WikiLeaks Website

Short title: Admissibility of WikiLeaks Documents TC

213

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Date: 21 May 2015


Type of document: Public

THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON THE ADMISSIBILITY OF DOCUMENTS PUBLISHED ON THE WIKILEAKS WEBSITE

Office of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneLegal Representatives of Participating: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra


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Admissibility of WikiLeaks Documents TC

INTRODUCTION

1. Defence counsel moved the Trial Chamber to admit into evidence two purported American diplomatic cables—found on the website of WikiLeaks—describing meetings between Lebanese politicians and American diplomats. One is dated 6 July 2007, the other 8 April 2008. Counsel attempted to use these documents during the testimony of Mr Fouad Siniora and Mr Walid Jumblatt. The Prosecution objected.

2. The two documents are apparently part of a large collection of documents published by WikiLeaks relating to the diplomatic business of the United States of America. WikiLeaks is, in its own words, ‘a not-for-profit media organisation. Our goal is to bring important news and information to the public. We provide an innovative, secure and anonymous way for sources to leak information to our journalists (our electronic drop box).’1 Many WikiLeaks documents have been published in the international media.

Mr Fouad Siniora

3. Mr Fouad Siniora was the Prime Minister of Lebanon between July 2005 and November 2009. He testified between 23 and 26 March 2015. During cross-examination, counsel for the Accused, Mr Mustafa Amine Badreddine, questioned him about the circumstances of the Special Tribunal’s establishment. He was asked about a meeting between the Lebanese Minister of Justice, Mr Charles Rizk, and the United States Ambassador to Lebanon, said to have occurred on 6 July 2007. One of the subjects was the release of four Lebanese generals, detained in 2005 by the Lebanese authorities during the investigation into the attack on the former Lebanese Prime Minister, Mr Rafik Hariri, in Beirut, on 14 February 2005.

4. Mr Siniora denied any knowledge of the meeting, or what may have been discussed, saying ‘What is mentioned in WikiLeaks, I do not know. I have no information about it. And this is the first time I hear about it’.2 Mr Siniora also

1 www.wikileaks.org.

2 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, Transcript of 26 March 2015, pp. 82-83.

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denied that Mr Rizk had asked the American Ambassador to ‘bring pressure to bear to prevent the release of the four generals’. He had no information about this.3

5. The Prosecution objected to the Defence using the WikiLeaks document, arguing that its reliability was uncertain, the U.S. State Department had never acknowledged its provenance and, as it was illegally obtained, it could be excluded under Rule 162 (A) of the Special Tribunal’s Rules of Procedure and Evidence. Questions, however, could be asked on the contents of the document, but without referring to it.4

6. The Trial Chamber ruled that Defence counsel could question Mr Siniora on information obtained from any source but, until it had ruled on its admissibility, they could not directly refer to the WikiLeaks document (1DT2-0312).5

7. The Trial Chamber invited written submissions on its admissibility, and counsel for Mr Badreddine subsequently filed submissions requesting its admission into evidence.6 Counsel for Mr Hussein Hassan Oneissi filed observations supporting its admission.7 The Prosecution responded, and counsel for Mr Badreddine replied.8

Mr Walid Jumblatt

8. Mr Walid Jumblatt is the leader of the Progressive Socialist Party, a member of the Lebanese Parliament, and a leader of Lebanon’s Druze community. During


4 Transcript of 26 March 2015, pp. 84-87. Rule 162 (A) states that ‘(A) [n]o evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. (B) [i]n particular, evidence shall be excluded if it has been obtained in violation of international standards on human rights, including the prohibition of torture’.

5 Special Tribunal’s internal number, 1DT2-0312, transcript of 26 March 2015, pp. 86-87, 88-89.

6 F1913, Request for the Admission of a Document and Submissions in favour of the Admissibility of Diplomatic Cables Published on the WikiLeaks Website, 17 April 2015.

7 F1900, Defence for Hussein Hassan Oneissi Observations on the Issue of the Admissibility of United States Diplomatic Cables, 10 April 2015.

8 F1933, Prosecution Response to Request for the Admission of a Document and Submissions in favour of the Admissibility of Diplomatic Cables Published on the WikiLeaks Website, 1 May 2015; F1944, Badreddine Defence Reply to the Prosecution Response to its Request for the Admission of a Diplomatic Cable Published on the WikiLeaks Website, 11 May 2015. The reply was filed confidentially seeking an order that it remain confidential until the end of Mr Siniora’s testimony.

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his testimony, counsel for Mr Badreddine questioned him about the emergence of radicalism in Lebanon, suggesting that jihadist movements were accused of ‘being behind Mr Hariri’s bombing’. Counsel suggested that Mr Jumblatt attended a meeting with the American Ambassador to Lebanon on 8 April 2008, where he had (i) expressed concerns about the building up of Sunni militias through the Al-Mustaqbal movement and (ii) said that ‘the constitution of a Sunni militia by Saad Hariri… would cause significant damage to the 14th of March movement’. In relation to the first topic, Mr Jumblatt responded that it was not helping him to remember and, additionally, denied it. Of the second, he said that it was an inaccurate and personal analysis.9 The Prosecution objected to counsel referring to this document as an authentic U.S. cable, arguing that its provenance and its authenticity—as the Ambassador’s actual words—had not been established.10 No further written submissions were made in relation to this second WikiLeaks document, Defence exhibit 2D133 MFI (marked for identification).

Admissibility of the WikiLeaks documents under Rule 149

9. The Trial Chamber may receive evidence, under Rule 149 (C), ‘which it deems to have probative value’. It may exclude the evidence under Rule 149 (D) if satisfied that ‘its probative value is substantially outweighed by the need to ensure a fair trial’. Under Rule 149 (E), the Trial Chamber ‘may request verification of the authenticity of evidence obtained out of court’. Rule 162 permits the exclusion of evidence obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.

10. Rule 154 allows a Chamber to admit documents, consistent with Rules 149 (C) and (D). The Trial Chamber has admitted documents into evidence under this rule from the ‘bar table’, holding that the offering party must demonstrate, with clarity and specificity, where and how each document or record fits into its case.11

9 Transcript of 7 May 2015, pp. 31-32, 37-38.

10 Transcript of 7 May 2015, p. 38. This document was marked for identification as exhibit 2D133; Transcript of 7 May 2015, p. 35.

11 F1802, Decision on Prosecution’s Motion for Admission into Evidence of 485 Documents, Photographs, and Witness Statements Relevant to Rafik Hariri’s Movements and to Political Events, 30 December 2014, para. 29; F1781, Corrected version of ‘Decision on Prosecution Motion to Admit into Evidence Geographic Documents’

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11. Rules 89 (C), (D) and (E) of the International Criminal Tribunal for the Former Yugoslavia’s Rules of Procedure and Evidence are identical to the Special Tribunal’s Rules 149 (C), (D) and (E). The ICTY’s case law holds that a document’s prima facie reliability ‘is an underlying factor relevant in determining whether the prerequisites of relevance and probative value have been met’. Authenticity relates to ‘whether a document is what it professes to be in origin and authorship’ and ‘may be relevant in assessing whether a document is prima facie reliable’. Definitive proof of reliability and authenticity is not required at the admissibility stage.12

12. Article 69 (4) of the International Criminal Court’s Rome Statute is similar to the Special Tribunal’s Rule 149,13 but the ICC’s interpretation of its application has varied. The Lubanga Trial Chamber held that where evidence is ‘demonstrably lacking any apparent reliability the Chamber must equally carefully decide whether to exclude the evidence at the outset’ or wait to assess it at the end of the case.14 But another, Katanga, applied a stricter assessment of authenticity at the admissibility stage, holding, that if, ‘when tendering an item of evidence, the party is unable to demonstrate relevance and probative value, including its authenticity, it cannot be admitted’.15

13. The Trial Chamber agrees with the ICTY Appeals Chamber’s approach in interpreting its identical Rules on admissibility. Lubanga is closer to this than

of 8 December 2014, 10 December 2014, para. 4; F1308, Decision on Prosecution’s Motion to Admit into Evidence, Photographs, Videos, Maps and 3-D models, 13 January 2014, para. 5.

12 ICTY, Prosecutor v. Prlić and others, IT-04-74-AR73.16, Decision on Jadranko Prlić’s Interlocutory Appeal against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 3 November 2009, paras 33-34, referring to other decisions of the ICTY and the International Criminal Tribunal for Rwanda.

13 Article 69 (4), ‘The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.’ Rule 63 (2) ICC Rules of Procedure and Evidence provides, ‘A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69.’

14 ICC, Situation in the Democratic Republic of the Congo, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the admissibility of four documents, 13 June 2008, para. 30.

15 ICC, Situation in the Democratic Republic of the Congo, Prosecutor v. Katanga and Ngudjolo Chui, ICC-01/04-01/07, Decision on Prosecutor’s bar table motions, 17 December 2010, para. 13.

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Katanga. The Trial Chamber will therefore assess the authenticity of the WikiLeaks documents based on ‘whether a document is what it professes to be in origin and authorship’.

No oral hearing is needed

14. Counsel for Mr Badreddine submitted that the complexity and importance of the issues required a hearing.16 The Trial Chamber, however, has everything it needs to decide this without further oral submissions.

Relevance: the subject matter of the WikiLeaks documents may be relevant to the Defence case

15. The Trial Chamber is satisfied that the subject matter of both documents may be relevant to the proceedings and to the Defence case.

16. According to counsel for Mr Badreddine, the first WikiLeaks document—because it relates to Mr Siniora’s testimony—is relevant to test his credibility.17 Counsel for Mr Oneissi observed that the WikiLeaks documents were similar to others admitted by the Trial Chamber under Rule 154, and are a useful resource to clarify political background.18 The document is also relevant to test Mr Siniora’s credibility; it shows that his government intervened in the case-file of the four generals and thus illustrates its ‘sleights of hand and manoeuvres’. This indicates that Mr Siniora himself might attempt to influence the course of justice for political purposes. And, as it relates to the arbitrary detention of the generals, it could affect the integrity of the investigation, and hence the proceedings.19 The Prosecution responded that the Badreddine Defence had not demonstrated the relevance of the document, especially as Mr Siniora had no knowledge of the meeting.20

16 Badreddine motion, para. 31.


18 Oneissi observations, paras 6-7.

19 Badreddine reply, para. 3.


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17. Defence counsel made no submissions as to the relevance of the second WikiLeaks document—exhibit 2D133 MFI—in relation to Mr Jumblatt’s testimony.

18. The Trial Chamber accepts that the subject matter of the first WikiLeaks document, 1DT2-0312—relating to the detention of the four Lebanese generals—concerns the integrity of the investigation, and hence, culpability for the crimes charged. It may therefore be relevant to the proceedings. But because Mr Siniora testified that he did not know about the meeting—and denies sending Mr Rizk there with instructions to seek the U.S. Government’s interference in the manner alleged—its utility is markedly diminished. In these circumstances, it is difficult to see how the document—even if authentic—is relevant to his credibility. If admitted into evidence, the document would be only a hearsay—and hence untested and unauthenticated—account of a meeting not attended by any witness in the case.

19. The subject matter of the second, exhibit 2D133 MFI, could be relevant both to the issue of a motive for the attack on Mr Hariri and—as the document concerns a meeting that Mr Jumblatt is said to have attended and expressed views about militias in Lebanon—to Mr Jumblatt’s credibility. However, the document is not Mr Jumblatt’s and he denies that he said what the document attributes to him.

20. To receive it into evidence, the Trial Chamber has to be convinced of the document’s probative value, and in particular, its reliability. This includes its authenticity. But even if the Trial Chamber were satisfied of its authenticity and admitted it into evidence, the Trial Chamber would be faced with—on one hand, Mr Jumblatt’s sworn testimony denying something—and on the other, someone else’s hearsay document stating something to the contrary. Without proof of the document’s accuracy, and hence its reliability, the Trial Chamber is left only with Mr Jumblatt’s word.

21. The next issue, therefore, is whether the two documents have sufficient probative value, including their reliability and authenticity, for admission into evidence.

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International and national case law on the admissibility of WikiLeaks documents

22. International and national courts have considered the admissibility of WikiLeaks documents. Their reasoning and decisions may be relevant here, and both the Defence and the Prosecution used them to support their arguments about the documents’ admissibility.

23. According to the Defence an emerging trend of judicial reasoning favours admitting WikiLeaks documents into evidence.21 Defence counsel pointed to a decision in Charles Taylor at the Special Court for Sierra Leone (SCSL) admitting a purported U.S. Government cable obtained from the WikiLeaks site, and holding that it was relevant.22 The Prosecution responded, but incorrectly in relation to that case, that Rule 89 (C) of the SCSL’s Rules of Procedure and Evidence only requires that documents are relevant; the documents need not be probative.23

24. In Gotovina, according to the Defence, the ICTY held that a large number of documents, including a ‘diplomatic cable’ prepared by a Prosecution witness, had sufficient indicia of credibility, including dates, names of recipients, signatures and seals and were therefore prima facie credible for admission.24 But, responded the Prosecution, for reasons unrelated to its reliability, the document was not admitted, so any comments about its potential reliability create no precedent for admissibility.25 The Defence submitted that in Milošević and Karadžić and Milošević, where

21 Badreddine motion, paras 24-26.

22 Badreddine motion, para. 24, citing SCSL-03-01-T, SCSL, Trial Chamber II, Prosecutor v. Charles Ghankay Taylor, Decision on the urgent and public with annexes A-C defence motion to re-open its case in order to seek admission of documents relating to the relationship between the United States Government and the Prosecution of Charles Taylor, 27 January 2011, p. 6.

23 Prosecution response, para. 15. The decision, however, was made under the SCSL’s Rule 92 bis rather than Rule 89 (C). Rule 92 bis (B) of the SCSL’s Rules of Procedure and Evidence, ‘Alternative proof of facts’, which provides, ‘The information submitted may be received in evidence if, in the view of the Trial Chamber, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation’ (italics added).

24 Badreddine motion, para. 25; ICTY, Prosecutor v. Ante Gotovina and Mladen Markač, IT-06-90-A, Public Redacted Version of the 21 June 2012 Decision on Ante Gotovina’s and Mladen Markač’s Motions for the Admission of Additional Evidence on Appeal, 2 October 2012, para. 26.


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allegations of interference in the administration of justice were sourced in WikiLeaks documents, the ICTY and MICT26 decisions challenged neither the admissibility of the document nor the facts to which they referred.27 The Prosecution responded that neither decision admitted the WikiLeaks documents into evidence nor made any findings regarding their admissibility.28

25. The Defence also referred to Bancoult, where the English High Court found that several WikiLeaks documents had been leaked, widely published, were before the court, and could be used for cross-examination.29 But Bancoult, responded the Prosecution, did not address the issue of the authenticity of the documents.30

26. The Prosecution also referred to Case 002 at the Extraordinary Chambers in the Courts of Cambodia where the court refused to admit WikiLeaks documents, finding that it could not conclude the documents were authentic.31

27. The Prosecution, additionally, relied upon a U.S. Federal District Court case—the American Civil Liberties Union v. Department of State—to challenge the authenticity of the WikiLeaks documents.32 There, a Freedom of Information

26 Mechanism for International Criminal Tribunals.

27 Badreddine motion, para. 26 and footnote 32. ICTY, Prosecutor v. Slobodan Milošević, IT-02-54-Misc.5 & IT-02-54-Misc.6, Decision on the Initiation of Contempt Investigations, 18 July 2011; MICT, Prosecutor v. Radovan Karadžić & Prosecutor v. Slobodan Milošević, MICT-13-55-R90.1 & MICT-13-58-R90.1, Decision on Karadžić Requests to Appoint an Amicus Curiae Prosecutor to Investigate Contempt Allegations against Former ICTY Prosecutor Carla Del Ponte, 27 November 2013.


29 England and Wales, High Court of Justice (Administrative Court), The Queen (on the application of Louis Oliver Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 1502 (Admin), 11 June 2013, paras 27, 35.

30 Prosecution response, para. 23: England and Wales, High Court of Justice (Administrative Court), The Queen (on the application of Louis Oliver Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 1502 (Admin), 11 June 2013, and England and Wales Court of Appeal (Civil Division), The Queen (on the application of Louis Oliver Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708, 23 May 2014.

31 Prosecution response, para. 13; ECCC, Case 002, Decision on the Co-Prosecutors’ and Khieu Samphan’s Internal Rule 87 (4) Requests concerning US Diplomatic Cables (E282 and E282/1; E290 and E290/1), 13 June 2013, paras 7, 11.

32 Transcript of 26 March 2015, p. 85; United States District Court for the District of Columbia, American Civil Liberties Union and another v. Department of State, Civil Action No. 11-01072 (CKK), Memorandum Opinion, 23 July 2012.

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Act request sought 23 diplomatic cables from the U.S. State Department, and some were released with redactions. The court held that the State Department had properly invoked exemptions to the Act, and that the ACLU had failed to prove the doctrine of ‘prior disclosure’, namely that the cables were already in the public domain. The prior disclosure had to be officially acknowledged as opposed to an unofficial disclosure, and disclosure on the WikiLeaks website did not substitute for an official acknowledgement. The ACLU could not show that the State Department had officially acknowledged that the cables formed part of the WikiLeaks disclosure.33

28. Further, according to the Prosecution, the Trial Chamber must decide the admissibility of the specific WikiLeaks documents tendered and not whether all documents obtained from the WikiLeaks website are admissible.34 The Defence did not demonstrate the authenticity of the relevant document (1DT2-0312) and therefore failed to establish that it was reliable and had probative value.35

29. The Trial Chamber has carefully examined these cases. The only decision admitting into evidence WikiLeaks documents—expressed to be American diplomatic cables—is that of two judges in Charles Taylor,36 where the SCSL admitted two documents under its Rule 92 bis. The court, however, gave no reasoning for its decision and did not analyse the documents’ authenticity.

30. The ECCC, by contrast, refused to admit the WikiLeaks documents. They did not satisfy its internal rules’ prima facie standards of relevance, reliability and authenticity. Because the documents originated from the WikiLeaks website, rather than the U.S. State Department, the court could not conclude that they were authentic, and rejected them as ‘unsuitable to prove the facts it purports to prove’.37 The court

33 United States District Court for the District of Columbia, American Civil Liberties Union and another v. Department of State, Civil Action No. 11-01072 (CKK), Memorandum Opinion, 23 July 2012, p. 10.



36 The third judge, Justice Sebutinde, excused herself, naming herself as the subject of unsourced allegations in one of the cables, see, Declaration of Justice Julia Sebutinde.

37 Under ECCC internal rule 87 (1), ‘Unless provided otherwise in these IRs, all evidence is admissible.’ Internal rule 87 (3) provides for exclusion, ‘The Chamber may reject a request for evidence where it finds that it is: (c) unsuitable to prove the facts it purports to prove’.

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noted, however, that authentic versions of the proposed cables could be sought from official sources.38

31. Bancoult related to a document referring to a meeting between U.S. and U.K. officials in May 2009. The U.K. Government had no note of it. The document had been published in The Guardian. The court allowed the cross-examination of U.K. officials on the contents of the document, but—on the basis of a possible violation of Articles 24 and 27 of 1961 Vienna Convention on Diplomatic Relations39—did not allow its admission as an authentic cable.40 This was upheld on appeal.41

32. Gotovina merely stated that certain categories of documents had sufficient indicia of credibility to be admissible as additional evidence on appeal, but without stating why, or analyzing reliability, authenticity or accuracy. And, in the other two ICTY and MICT cases Milošević and Karadžić and Milošević, the admissibility of the WikiLeaks documents was not an issue.

33. The only comparable precedents on the admission of WikiLeaks documents therefore are: the unreasoned Charles Taylor decision where they were received into evidence; the reasoned ECCC Trial Chamber decision rejecting them; and the two reasoned decisions in Bancoult declining admission. The judicial trend is therefore not, as argued by the Badreddine Defence, towards admitting WikiLeaks documents into evidence.

34. Here, the Trial Chamber has followed the Bancoult approach by permitting cross-examination on the contents of the disputed documents but disallowing reference to them as authentic U.S. cables.42 But, relevantly, in cross-examination in Bancoult the two U.K officials who attended the meeting with the U.S. officials

38 ECCC, Case 002, Decision of 13 June 2013, paras 7, 11.

39 Article 24, on the inviolability of the archives and documents of a diplomatic mission, and Article 27, on the inviolability of a mission’s correspondence.

40 Bancoult, High Court, para. 51.

41 Bancoult, Court of Appeal, paras 89 and 93.

42 Bancoult, High Court, paras 59-61. Cross-examination of the contents of the document was not objected to, ‘provided that it was not asserted that it was a true copy of an “Embassy” cable’, para. 27.

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disagreed with some of the WikiLeaks documents’ assertions. This shows the caution needed in assessing the admission into evidence of unauthenticated documents.

Probative value: reliability, authenticity and accuracy of the documents

35. In deciding whether to admit the WikiLeaks documents into evidence, the Trial Chamber must consider whether they contain adequate indicia of reliability. This includes authenticity and accuracy.

36. According to the Badreddine Defence, the WikiLeaks documents are admissible as evidence and, in principle, nothing prevents the Trial Chamber from admitting them.43 WikiLeaks documents have been extensively published in, for example, The New York Times, The Guardian, Der Spiegel, El País and Le Monde. The U.S. Government has never denied the provenance of the WikiLeaks documents, and its State Department has in reality acknowledged that the WikiLeaks documents are leaked cables.44 This gives them the necessary indicia of reliability. The document relating to Mr Siniora’s Government was probative as it had indicia of reliability and was reliable because of its purpose—namely, to transmit an accurate report of a meeting.45

37. The Oneissi Defence argued that WikiLeaks documents are already public, reliable and have been admitted by international tribunals. And, their ‘historical value has been widely acknowledged in political and academic spheres, and their content never denied by the United States and most states…’46

38. Relying upon the ACLU case, the Prosecution responded that Defence counsel had not demonstrated that the WikiLeaks documents are authentic United States

43 Badreddine motion, paras 2-3.



46 Oneissi observations, paras 3-5, citing Karadžić and Milošević, see footnote 27 above; Charles Taylor, see footnote 22 above; and ICTR, The Prosecutor v. Karemera, ICTR-98-44-T, Decision on the Prosecution Motion for Admission into Evidence of UNAMIR documents, 30 October 2007. This case, however, pre-dates by three years the WikiLeaks disclosures and concerns documents obtained by the ICTR Prosecution from the UN archives in New York. It is not relevant.

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diplomatic cables.47 The ACLU did not convince the U.S. District Court that the U.S. Government had formally acknowledged the cables.48 Similarly, here, the Trial Chamber has no evidence that the U.S. Government has acknowledged the two particular WikiLeaks documents. Moreover, Defence counsel have not demonstrated how general comments about the provenance of the WikiLeaks documents, newspaper reports, comments by politicians and the conviction of a U.S. soldier for disclosing classified material prove the authenticity of these specific documents. References to these external sources do not demonstrate authenticity. Further, an insufficient link exists between the suggestion that the entire WikiLeaks collection is genuine, and Defence submissions that specific documents should be admitted into evidence.49

39. The Oneissi Defence observed that the ACLU case concerned the State Department’s disclosure of cables, and not their admissibility once disclosed.50 The Badreddine Defence argued that the only conclusion that can be drawn from this case is that the U.S. State Department did not acknowledge the source of the WikiLeaks documents. The case is otherwise irrelevant.51 The Prosecution replied that this case directly addressed the authenticity of the WikiLeaks documents, distinguishing it from those cited by the Defence.52

Decision not to admit the two WikiLeaks documents into evidence

40. The Trial Chamber accepts the Prosecution’s submissions on authenticity. The Defence has not proved that the documents—apparently downloaded from the WikiLeaks website—are authentic U.S. diplomatic cables. The documents may be authentic, but the Trial Chamber has no evidence of the U.S. Government acknowledging their authenticity, or indeed their accuracy. And, directly to the point on the reliability of the documents, the Trial Chamber has no evidence that they accurately describe the events referred to in them. In fact, Mr Siniora and Mr Jumblatt


48 Cited at footnote 31 above, at p.10.


50 Oneissi observations, para. 10.



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both denied what is stated in the documents. The Bancoult decision illustrates the difficulty in admitting such disputed documents in these circumstances.

41. Counsel for Mr Badreddine have not satisfied the ‘verification of the authenticity of evidence obtained out of court’ required under Rule 149 (E) when the Trial Chamber invited written submissions on the admission of WikiLeaks documents.

42. In these circumstances, the Trial Chamber is not satisfied that the documents have the necessary prima facie indicia of reliability—namely, authenticity and accuracy—for admission into evidence. As already noted, even if it found them authentic—as opposed to accurate—and received them into evidence, the Trial Chamber would face having the sworn testimony of two witnesses denying their contents, yet none affirming their accuracy. Without more, little weight could be given to them. It would be different if the moving party, here the Defence of Mr Badreddine, brought persuasive evidence of their authenticity and accuracy.53

43. The Trial Chamber is therefore not satisfied that either document ‘is what it professes to be in origin and authorship’,54 and denies the Defence motion to admit the two documents into evidence. Consistent with previous rulings, however, counsel may question witnesses on the contents of such documents.55

No need to rule on the applicability of Rule 162

44. The Prosecution initially argued that receiving the WikiLeaks documents into evidence could breach Rule 162 (A),56 but did not advance this argument in written submissions.57 As the Trial Chamber has decided the issue on the documents’ probative value, it need not consider this.

53 The Trial Chamber has required the Prosecution to call witnesses to prove the provenance of and to provide contextual evidence of business records, see, F1876, Decision on three Prosecution motions for the admission into evidence of mobile telephone documents, 6 March 2015, paras 40, 48, 52, 54.

54 See footnote 12 above.

55 Transcript of 26 March 2015, pp. 86-87, 88-89; 7 May 2015, pp. 37-38.


57 Defence counsel rejected this, arguing that the documents were already in the public domain and that any person using them could not therefore commit a crime; Oneissi observations, paras 9-10; Badreddine motion, para. 18.

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DISPOSITION


DENIES the Defence motion to admit into evidence two WikiLeaks documents: document 1DT2-0312 dated 6 July 2007, and exhibit 2D133 MFI (marked for identification) dated 8 April 2008.

ORDERS that the Badreddine Defence Reply to the Prosecution Response to its Request for the Admission of a Diplomatic Cable Published on the WikiLeaks Website remains confidential until the end of Mr Fouad Siniora’s testimony.

Done in Arabic, English, and French, the English version being authoritative. Leidschendam, The Netherlands, 21 May 2015





Title: Order Clarifying Decision on Updated Request for a Finding of Non-Compliance of 27 March 2015

Short title: Clarification of Finding of Non-Compliance TC

231

233




Date: 22 May 2015


Classification: Public with Confidential and Ex Parte annexes

THE PROSECUTOR v.



ASSAD HASSAN SABRA

ORDER CLARIFYING DECISION ON UPDATED REQUEST FOR A FINDING OF NON-COMPLIANCE OF 27 MARCH 2015

Office of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneDefence Office: Mr François RouxVictims’ Legal Representatives: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-AbusamraThe Government of the Lebanese Republic


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Clarification of Finding of Non-Compliance TC

1. This order further clarifies the Trial Chamber’s three previous decisions, directing the Government of Lebanon to cooperate with the Special Tribunal. In January and March 2014, and again in March 2015, the Trial Chamber directed the Government of Lebanon to cooperate with the Special Tribunal.1 These orders related to requests for assistance sent by the Special Tribunal’s Head of Defence Office to the Lebanese Government, on behalf of the Defence of Mr Assad Hassan Sabra. On 8 and 13 April 2015, the Special Tribunal’s Registrar transmitted the Trial Chamber’s March 2015 decision and its annexes to the Government of Lebanon.2 The annexes list, in one column, the request’s number, e.g. ‘Requests 1 (108), 2 (109) and 3 (110)’, and in the other, a summary of the issue raised by Defence counsel.

2. Several days later, on 17 April 2015, the Lebanese Prosecutor-General wrote to the Minister for Justice of the Lebanese Republic, saying that some requests for assistance must be sent to multiple Lebanese ‘authorities’. Sending the same request classified as ‘confidential’ or ‘confidential and ex parte’ to multiple authorities meant that each would know of the other requests. To comply with the decision, the content of each request should therefore go only to each relevant authority. The Lebanese Prosecutor-General, it appears, wants the Special Tribunal to reclassify the requests individually, according to subject and authority.3

3. On 20 April 2015, the Government of Lebanon wrote to the Registrar of the Special Tribunal attaching the letter of 17 April 2015.

4. Some confusion appears to exist. The three annexes to the Trial Chamber’s decision of 27 March 2015 clearly specify the authorities that the Sabra Defence believes have the information sought. The Lebanese Prosecutor-General, however,

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1379, Decision on Second and Fifth Motions by Counsel for Assad Hassan Sabra and Two Orders to Lebanon to Cooperate with the Tribunal, 31 January 2014; F1471, Further Decision on Motions under Rule 20 (A) by Counsel for Assad Hassan Sabra and Four Orders to Lebanon to Cooperate with the Tribunal, 31 March 2014; F1889, Decision on Updated Request for a Finding of Non-Compliance, 27 March 2015.

2 F1925, Notice of Response from the Government of Lebanon regarding the ‘Decision on Updated Request for a Finding of Non-Compliance’, 23 April 2015, Annex A. The letter of 8 April 2015 contained the decision of 27 March 2015 and three annexes to the decision, with copies of other documents. The letter of 13 April 2015 provided the other documents in Arabic.

3 Notice of Response, Annex B.

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wants the Trial Chamber to further sub-divide these annexes. To break this apparent impasse, the Trial Chamber has now split the information—in the three annexes to the decision of 27 March 2015—into 25 separate annexes.

5. These new annexes contain the same information. Annex 1 is an index; Annexes 2 to 9 identify the specific authority or entity to which the request should go. Six different Lebanese authorities or entities are identified, namely:

• Ministry of Telecommunications,

• ALFA Telecommunications,

• MTC Telecommunications,

• Internal Security Forces,

• Lebanese Army, and

• Sûreté Générale.

The Lebanese Government should send the relevant requests to these authorities or entities.

6. Annexes 10 to 25 are addressed to the Government of Lebanon and do not identify specific recipients. The Government of Lebanon must itself decide which authority or entity may have the material sought in these annexes.

7. Annexes 3, 7, 8 and 9 contain information about request 117—as set out in the schedule to annex D to the decision of 31 March 2014, and annex III to the decision of 27 March 2015—and is ex parte the Prosecution.

8. The annexes to this clarifying order contain several minor language adjustments to the annexes to the Trial Chamber’s decisions of 31 January, 31 March 2014, and 27 March 2015. To interpret the annexes correctly those decisions and this order should be read together.

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DISPOSITION


ORDERS the Government of Lebanon to respond to each of the requests for assistance listed in annexes 2-25 with an explanation as to whether it can comply with the request for assistance, and if not, to explain why not; and

EXTENDS the date for enforcement by Lebanon of this order to 21 days from the date of its notification in Arabic.

Done in Arabic, English, and French, the English version being authoritative. Leidschendam, The Netherlands 22 May 2015





Title: Decision on Oneissi Defence Request to Interview and Prosecution Motion to Admit the Statement of Witness PRH662

Short title: Witness Interview and Admission of Witness Statement TC

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Date: 19 June 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON ONEISSI DEFENCE REQUEST TO INTERVIEW AND PROSECUTION MOTION TO ADMIT THE STATEMENT OF WITNESS

PRH662



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Witness Interview and Admission of Witness Statement TC

INTRODUCTION

1. Witness PRH662 was an investigator working for the Special Tribunal’s Prosecutor who, in March 2010, prepared two photo boards for identification purposes during the investigation into the explosion that killed former Lebanese Prime Minister Mr Rafik Hariri on 14 February 2005, in Beirut. Two motions have been filed before the Trial Chamber. In the first, counsel for the Accused, Mr Hussein Hassan Oneissi, requested the Trial Chamber to issue an order, under Rules 77 (A), 78 (B) and 130 (A) and (B) of the Special Tribunal’s Rules of Procedure and Evidence, directing the witness’s attendance for interview by the Defence.1 The Prosecution responded and counsel for Mr Oneissi replied.2 In the second motion, the Prosecution sought to admit into evidence, under Rule 155, one statement from Witness 662.3 Counsel for Mr Oneissi and for Mr Mustafa Amine Badreddine objected to the motion.4

REQUEST TO INTERVIEW WITNESS 662

2. Counsel for Mr Oneissi contacted Witness 662 and asked him to meet them, but the witness was unwilling. Defence counsel believed that they needed to question him to obtain essential evidence, and to ask him about the rules relating to the photo boards’ creation, and the rules relating to identification parades.5 After the motion was filed, Defence counsel informed the Trial Chamber that the witness had

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1929, ‘Corrected version of Request to Interview PRH662’ of 24 April 2015, 28 April 2015. The motion asked the Trial Chamber to note that it was necessary for the Defence to hear Witness PRH662 regarding all his statements at the earliest opportunity and order any appropriate administrative and judicial measure so as to ensure the appearance of Witness 662, and his interview by the Defence. Rules 130 (B) permits the Trial Chamber to issue, under Rule 77 (A) a summons to appear to a witness, or at the at request of the Defence under Rule 78 (B).

2 F1941, Corrected Version of “Prosecution Response to Oneissi Defence Request to Interview PRH662”, dated 8 May 2015, 13 May 2015; F1948, Oneissi Defence Reply to the Prosecution Response to Oneissi Defence Request to Interview PRH662, 14 May 2015.

3 F1956, Prosecution Motion to Admit the Statement of PRH662, 21 May 2015.

4 F1983, Oneissi Defence Response to ‘Prosecution Motion to Admit the Statement of PRH662’ dated 21 May 2015, 1 June 2015; F1985, Badreddine Defence Response to “Prosecution Motion to Admit the Statement of PRH662”, 2 June 2015 The Victims’ Legal Representatives stated in an email they would not file a response to the Prosecution motion to admit the statement, Email from Victims’ Legal Representatives Legal Officer to Trial Chamber’s Senior Legal Officer, 28 May 2015.

5 Oneissi request, paras 6-7, 10.

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agreed to meet them.6 The Trial Chamber asked counsel to withdraw the motion, but they declined to do this, expressing fear that the witness may not answer counsel’s questions.7

3. This motion is connected to the motion to admit the statement of Witness 662. If the Trial Chamber directs Witness 662 to attend an interview with Defence counsel, they may not need to cross-examine him.

4. On 4 June 2015, the Trial Chamber invited Defence counsel to withdraw their request to interview the witness. Counsel argued that they had not withdrawn the request for fear that the witness would not answer their questions. The motion, however, requested the Trial Chamber to ‘order any appropriate administrative and judicial measure so as to ensure the appearance of PRH662 and his interview by the Defence’, rather than to answer any specific questions.8 As the witness has agreed to meet counsel for Mr Oneissi,9 the motion is now moot, and it is therefore dismissed.

RULE 155 MOTION

5. The Prosecution seeks to admit Witness 662’s statement into evidence. The statement describes how the witness compiled two photo boards containing, among other photographs, those of the Accused, Mr Assad Hassan Sabra, and Mr Oneissi. One of the photo boards was shown to another witness for identification purposes.10 The Prosecution does not seek to admit the entire statement of the witness, but only its redacted portion.11 It also seeks to further redact the statement of the witness.12

6 Email from counsel for Mr Oneissi to Trial Chamber’s Senior Legal Officer, 22 May 2015.

7 Email from Trial Chamber’s Senior Legal Officer to counsel for Mr Oneissi, 22 May 2015; Transcript of 4 June 2015, pp 40, 43-44.

8 Oneissi request, para. 13.

9 Transcript of 4 June 2015, p. 42.

10 Prosecution motion, para. 2; STL-11-01/PT/TC, F1228, Decision Authorising the Prosecution to Amend its Exhibit List and to Redact Exhibit 55, 19 November 2013, para. 7.



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6. The Prosecution submits that Witness 662’s statement proves matters other than the acts and conduct of the Accused as charged in the consolidated indictment. It provides background evidence for the expected evidence of another witness who was shown one of the photo boards.13 The witness statement also contains the necessary indicia of reliability for admission under Rule 155, notwithstanding some minor departures from the Practice Direction.14 Specifically, the statement does not contain an interviewer’s certificate, and it is unclear if the witness was provided with Rules 60 bis and 152.15 The Prosecution also argues that it is in the interests of justice and of a fair and expeditious trial to admit Witness 662’s statement without cross-examination, and that substantiated reasons are necessary to warrant the attendance of witnesses for cross-examination.16

7. Counsel for Mr Oneissi request Witness 662’s attendance for cross-examination. The Prosecution relies upon another witness selecting Mr Oneissi’s photograph to support the allegation that Mr Oneissi is ‘Mohammad’, the person who allegedly identified and manipulated Mr Ahmad Abu Adass to make a false claim of responsibility for the explosion, as pleaded in the consolidated indictment.17 According to Defence counsel, the selection of Mr Oneissi as ‘Mohammad’ is inconclusive, and they need to cross-examine Witness 662 to ascertain whether the photo board creation process was flawed.18 A flawed photo board creation process will diminish the evidentiary value of the selection of Mr Oneissi’s photograph.

8. Counsel for Mr Badreddine object to the request to admit the statement. Counsel do not wish to cross-examine Witness 662, but submit that he may be unwilling to testify and that refusing to be questioned casts doubt on a witness’s

13 Prosecution motion, paras 3, 7.

14 STL-PD-2010-02, Practice Direction on the Procedure for Taking Depositions under Rules 123 and 157 and for Taking Witness Statements for Admission in Court under Rule 155, 15 January 2010.

15 Prosecution motion, paras 4-5. Rule 60 bis allows the Special Tribunal to hold in contempt those who knowingly and wilfully makes a statement which the person knows is false, and may be used as evidence in proceedings before the Tribunal, and, under Rule 152, those who give false testimony under solemn declaration.


17 F1444, Consolidated Indictment of 7 March 2014, para. 44 (e).


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reliability or credibility. Rule 155 should not be used to permit the Prosecution to circumvent difficulties with unwilling witnesses.19

Decision

9. The Trial Chamber is satisfied that Witness 662’s statement is relevant and probative under Rule 149 (C).20 It concerns the compiling of photo boards containing photographs of two of the Accused. The selection by another witness of Mr Oneissi’s photograph may support Prosecution allegations pleaded in the consolidated indictment.

10. The statement contains evidence going to proof of matters other than the acts and conduct of the Accused as charged in the consolidated indictment. The preparation of the photo boards, rather than the purported identification of Mr Oneissi, is background investigative evidence.

11. The statement has sufficient indicia of reliability under both Rule 155 (B) and the Practice Direction, although there are slight deviations from the Practice Direction. The Trial Chamber has previously ruled upon a deviation similar to that identified in Witness 662’s statement.21 In that decision, a statement missing an interviewer’s certificate that the witness was provided with a copy of Rules 60 bis and 152 was deemed in minor breach of the Practice Direction, where the witness acknowledged the legal consequences for contempt and false testimony. That acknowledgement provided compelling reasons to depart from the strict application of the Practice Direction.

12. Witness 662’s statement is relevant and probative, and therefore admissible. Because his proposed evidence relates to preparation of photo boards, cross-examination about their compilation and any possible flaws in that process is justified. His statement is therefore admissible under Rule 155 (C). The Trial Chamber requires the Prosecution to make the witness available for cross-examination. If, after


20 Rule 149 (C) states “[a] Chamber may admit any relevant evidence which it deems to have probative value”.

21 STL-11-01/PT/TC, F1280, First Decision on the Prosecution Motion for Admission of Written Statements under Rule 155, 20 December 2013, para. 23.

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interviewing the witness, counsel for Mr Oneissi no longer need to cross-examine him, they should immediately inform the Trial Chamber and the Prosecution.

Redaction of Witness 662’s statement

13. The remaining issue is of redactions to the witness’s statement. In 2013, the Prosecution disclosed to the Defence a heavily redacted version the witness’s statement. Defence counsel asked the Trial Chamber to order the Prosecution to disclose the statement in an unredacted form. The Trial Chamber reviewed the redacted material and decided that the redactions at pages 2-8 of the statement were irrelevant internal Prosecution emails—that should never have been included in the statement—and thus not disclosable under Rule 111 as the internal work product of a party.22 The Prosecution subsequently disclosed to the Defence other information that it had originally redacted, specifically the names of those whose faces appeared on the photo boards.

14. The Prosecution has now sought to further redact the statement of Witness 662. It states that although the witness has not sought protective measures, his statement requires redactions to protect both his personal details and those of third parties, including the photographs and names of individuals on the photo boards. This redaction should occur before its public broadcast.23

15. Counsel for Mr Oneissi submit that redactions previously ordered to the statement of Witness 662 should be removed as this curtails their ability to effectively cross-examine Witness 662.24 Counsel suggest that although the Trial Chamber decided the redactions fell under Rule 111, that Rule applies to disclosure between the Parties and not to the admission of documents into evidence and, therefore,

22 The redacted statement was disclosed on 20 September 2013, see STL-11-01/PT/PTJ, F1102, Second Corrigendum to Annex D to the ‘Prosecution Submission Pursuant to Rules 91 (G) (ii) and (iii)’ of 10 September 2013, 25 September 2013, para. 6. The redactions at pages 10-11 of the statement of witness 662 were permitted in F1228, Decision Authorising the Prosecution to Amend its Exhibit List and to Redact Exhibit 55, 19 November 2013, para. 13 and Disposition. In F1436, the ‘Second Decision on Sabra Motion to Lift Redactions and Disclose United Nations Fact-Finding Mission Documents’ of 28 February 2014, the Trial Chamber examined the unredacted statement and dismissed the motion to remove the redactions from the witness’s statement.



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the redactions mean that the statement is not in an admissible state.25 In an oral submission to the Trial Chamber, counsel for Mr Oneissi asked it to ‘have another look at’ the existing redactions to the witness’s statement.26

16. The Trial Chamber rejects counsel’s submission that the statement of Witness 662 is not in an admissible state because of the redactions. Having previously decided the issue of removing existing redactions—and in the absence of any formal reasoned motion to reconsider the decision of 28 February 201427—counsel’s new request to remove them, repeated in oral submission, is rejected.

17. The Trial Chamber, however, invited the Prosecution to file a revised witness statement, removing the irrelevant redacted material. The Prosecution undertook to do so.28 As the request for further redactions only relates to the public broadcast of the statement, no decision is required on this.

25 Oneissi response, para. 4. Rule 111 states: “[r]eports, memoranda, or other internal documents prepared by a Party, its assistants or representatives in connection with the investigation or preparation of a case are not subject to disclosure or notification under the Rules. For purposes of the Prosecutor, this includes reports, memoranda or other internal documents prepared by the UNIIIC or its assistants or representatives in connection with its investigative work”.

26 Transcript of 5 June 2015, p. 5.

27

28 Transcript of 5 June 2015, pp 2-3.

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DISPOSITION


DISMISSES the Motion to Request to Interview Witness PRH662;

DECLARES admissible under Rule 155 (C) the redacted statement of Witness PRH662; and

ORDERS the Prosecution to make the witness available for cross-examination.

Done in Arabic, English and French, the English version being authoritative. Leidschendam, The Netherlands 19 June 2015





Title: Decision on Prosecution Application for a Summons to Appear for Witness 012 and Order Issuing a Summons for a Witness

Short title: Summons to Appear TC

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Date: 1 July 2015


Type of document: Confidential*

THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON PROSECUTION APPLICATION FOR A SUMMONS TO APPEAR FOR WITNESS 012 AND ORDER ISSUING A SUMMONS

FOR A WITNESSOffice of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneLegal Representatives of Participating Victims: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra


* Made public by Trial Chamber’s order.

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Summons to Appear TC

INTRODUCTION

1. The Prosecution, on 26 May 2015, sought a summons for Witness PRH012 to appear to testify before the Special Tribunal under Rules 78 (A) and 130 (B) of the Rules of Procedure and Evidence.1 At the Trial Chamber’s invitation,2 lawyers acting for the witness filed submissions, on 21 June 2015, in which they opposed issuing the summons.3 The Prosecution subsequently replied to this filing.4 Counsel for the five Accused did not oppose the application.5

SUBMISSIONS AND DISCUSSION


2. In February 2005, Witness 012 worked at Thomson Reuters in Beirut. According to the Prosecution, on 14 February 2005, while at work at the Thomson Reuters office, the witness answered a call from someone claiming to be from ‘al-Nusra wa al-Jihad fi Bilad al-Sham’ and claiming responsibility for the attack on the former Lebanese Prime Minister, Mr Rafik Hariri, who had died in a bomb blast that day. Four calls allegedly were made that day to Al Jazeera and Thomson Reuters in Beirut by someone falsely claiming responsibility for the attack.

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1966, Application for a Summons to Appear in respect of Witness PRH012, 26 May 2015, para. 1.

2 F1995, Order Relating to Prosecution’s Application for a Summons for Witness PRH012, 10 June 2015; F2000, Notice of Prosecution Compliance with “Order Relating to Prosecution’s Application for a Summons for Witness PRH012”, dated 10 June 2015, 11 June 2015. At the request of Witness 012’s lawyers, the Trial Chamber granted them an extension until 22 June 2015 to file their submissions. Email from Trial Chamber’s Senior Legal Officer, 11 June 2015.

3 F2019, Written Submissions on Behalf of Witness PRH012 in Opposition to the Prosecutor’s Application dated 26 May 2015 for a Summons to Appear, 21 June 2015.

4 F2027, Prosecution Submissions on “Written Submissions on Behalf of Witness PRH012 in Opposition to the Prosecutor’s Application dated 26 May 2015 for a Summons to Appear’, 25 June 2015. The Registrar also filed F2030, Registry Submission pursuant to Rule 48 (C) Regarding Correspondence on Prosecution’s Application for a Summons for Witness PRH012, dated 26 May 2015, 26 June 2015.

5 Transcript of 27 May 2015, pp 65-66.

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3. This claim of false responsibility is pleaded in paragraph 44 of the consolidated indictment.6 The Trial Chamber has now heard uncontested evidence of two telephone calls made to Al Jazeera in Beirut on the afternoon of 14 February 2005 by a male demanding that the news channel broadcast a video of a person claiming responsibility for the attack.7

4. Thomson Reuters, however, considered the call to be a hoax, and, it was only after seeing the broadcast of a video on Al Jazeera later that day of someone claiming responsibility for the bombing, that it informed the authorities of the call. The Prosecution submits that the same prepaid phone card was used to call both Al Jazeera and Thomson Reuters on the afternoon of 14 February 2005.8 The witness was the only person at Thomson Reuters to speak to the caller.

5. Under Rules 78 (A) and (B), the Pre-Trial Judge may issue a summons to a witness to appear, proprio motu (on his own volition, in the interests of justice) or at the request of a Party. Rule 130 (B) applies these rules to the Trial Chamber after the submission of the case file. According to the Prosecution, the witness was willing to testify but required permission from her employer.9 The Prosecution sought this permission, but it was refused.10 A summons is therefore necessary to secure her attendance.11 If the Trial Chamber issues a summons, the Prosecution intends to apply for the witness to testify by video-conference link sometime in July 2015.12

Submissions by lawyers acting for Thomson Reuters and Witness 012

6. Thomson Reuters and Witness 012 engaged a law firm, Howard Kennedy LLP, to act in this matter, and this firm then briefed counsel. In a letter to the Registrar, dated 29 May 2015, Howard Kennedy stated that the summons was ‘an attempt

6 F1444, Redacted Version of Consolidated Indictment, 7 March 2014, para. 44.

7 Witnesses PRH006 and PRH007. See Transcript of 24 June 2015; Transcript of 25 June 2015.

8 Redacted Version of Consolidated Indictment, para. 44.

9 Application, para. 2.



12 Application, paras 3, 22.

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to attack the rights of journalists in conflict areas that were clearly established by the ICTY Appeals Chamber in the case of Brdjanin, and unless the application is withdrawn, our clients wish to resist it strenuously’.13

7. The Trial Chamber, on 10 June 2015, after viewing correspondence between the Prosecution and Chief Counsel for Thomson Reuters in relation to Witness 012’s attendance before the Special Tribunal—but not having seen Thomson Reuters’ letter to the Registrar—invited submissions under Rule 131 (A) from Witness 012 and ordered the Prosecution to provide her lawyers with the relevant documents.14

8. Her lawyers then filed submissions opposing the Trial Chamber issuing a summons to appear.

9. These submissions, however—and unfortunately—are, in large part, legally and factually incorrect. Inexplicably, they proceed on the false basis that the Trial Chamber had already issued a summons but without hearing from Witness 012.

10. The submissions claim that; (1) the Trial Chamber has already issued a summons that should be set aside, (2) the witness’s oral evidence is not relevant or necessary, (3) oral evidence is unnecessary because the Trial Chamber may receive the evidence under Rule 155, (4) the Trial Chamber can use the witness’s previous statements in lieu of oral testimony, (5) the witness should not be called to testify and Defence counsel do not wish to cross-examine her, (6) the application is premature because the Trial Chamber has not yet determined the admissibility of the witness’s statement, and (7) as no application was made to the Pre-Trial Judge for a summons, ‘it may be perhaps inferred that this oral evidence is not really important’.15

11. In the alternative, they ‘seek an oral hearing to present evidence and argument as to why it [the summons] should be set aside’.16 They also seek an order that

13 Annex 1 to Registry submission. The Trial Chamber received a copy of this letter from the Registry on 9 June 2015.

14 Order, para. 3 and disposition.

15 Witness 012’s submissions, para. 7.


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the summons—which has not been issued—‘should be withdrawn on public policy grounds’.17

12. Additionally, and legally—referring to a precedent in one case at the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY)—they submit that the witness should not be compelled to testify because she works for a news organisation.

13. Dealing with these arguments in turn; first, as noted, the submissions proceeded on the incorrect basis that the Trial Chamber had already issued the summons and seek as relief that the apparently already issued summons should be ‘set aside’. In support of this, the witness’s lawyers claim that the Trial Chamber (and Prosecution) ‘manifested a cavalier and unfair approach’ to the witness and her rights by issuing a summons without hearing from her.18 But the Trial Chamber did no such thing. The Trial Chamber did the exact opposite of what is asserted by seeking submissions from the witness’s lawyers before proceeding to issue a summons. This submission is dismissed. Counsel should also withdraw it.

14. Second, the submissions claim that the witness’s oral evidence would not be relevant or necessary to the case.19 This too is incorrect. The proposed evidence is pleaded as a material fact in paragraph 44 of the consolidated indictment.

15. Third, regarding the claim that oral evidence is unnecessary, the witness’s lawyers misconstrue Rule 155 which appears to preclude a Chamber from accepting evidence in the form of a document or record that goes to the acts and conduct of the accused as pleaded in an indictment. Rule 155 (A) provides that the Trial Chamber may admit a written statement in lieu of oral testimony ‘which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment’. Paragraph 44 of the consolidated indictment pleads that either the Accused Mr Assad Hassan Sabra or Mr Hussein Hassan Oneissi, coordinated by Mr Hassan Habib Merhi, made four telephone calls to Thomson Reuters and Al Jazeera on 14 February

17 Witness 012’s submissions, paras 40-41.


19 Witness’s submissions, para. 23 b.

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2005. The evidence goes directly to the acts and conduct of three of the Accused and does not appear capable of reception into evidence under Rule 155. Nor can it be received into evidence, as asserted, under the general rule for admitting evidence, Rule 149 (C), nor the specific rule for admitting documents, Rule 154.

16. The Prosecution, in its response, stated that it would not oppose the Trial Chamber making an exception to Rule 155 here to accept into evidence a written statement going to the acts and conduct of the Accused without cross-examination.20 Without ruling on whether the strict wording of Rule 155 (A) would permit such an exception—and this could surely only be with the consent of the lawyers representing the Accused—Defence counsel have informed the Prosecution that they wish to cross-examine the witness when she testifies. The statement could be admitted into evidence under Rule 156,21 but that would require the presence of the witness for adopting the statement and for questioning by the judges and parties.

17. Fourth, it does not appear that, from the wording of Rule 155 (A), the Trial Chamber can admit into evidence previous statements the witness made to the Lebanese investigating authorities and to the United Nations International Independent Investigating Commission. This submission also overlooks that the previous statements—even if they were admissible under Rule 155—do not comply with the requirements of the Practice Direction for admitting statements into evidence under Rule 155.22 It is also legally and factually wrong for the witness’s lawyers to categorise as ‘nonsense’ the Prosecution’s submissions that it cannot obtain her evidence from an alternative source.23


21 This rule permits the receipt into evidence in lieu of oral evidence, a written statement or transcript of evidence, going to the proof of the acts or conduct of an accused, if the witness is present in court, is available for cross-examination and questioning and attests that the statement accurately reflects their declaration of what they would say if examined.

22 STL-PD-2010-02, Practice Direction for Taking Depositions under Rules 123 and 157, and for Taking Witness Statements for Admission in Court under Rule, 15 January 2010.

23 Witness 012’s submission, para. 23 e.

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18. Fifth, the Defence have notified the Prosecution that they wish to cross-examine the witness.24

19. Sixth, the application is not premature—it was made mid-trial after it became obvious that securing the witness’s testimony required a summons, and the Prosecution has scheduled the witness to testify in July 2015—and, for the reasons above, the evidence must be heard orally. The Trial Chamber therefore cannot determine the admissibility of a written statement in advance of the oral evidence in circumstances where a witness will be called to testify orally. The evidence will be what the witness gives in court, rather than what is in her previous statements.

20. Seventh, the submission regarding the Pre-Trial Judge not issuing a summons is irrelevant. The case is before the Trial Chamber, not the Pre-Trial Chamber, and Rule 130 (B) provides the Trial Chamber with all necessary powers to issue such orders.

‘War correspondents’ privilege

21. Rule 163 provides for legal professional privilege,25 and Rule 164—in relation to the International Red Committee of the Red Cross and the Red Crescent Movement—a privilege against testifying and the disclosure of information. The Rules of Procedure and Evidence contain no such privilege in relation to journalists or ‘war correspondents’.

22. Initially, Thomson Reuters’ Chief Counsel—and thereafter Howard Kennedy and counsel retained by them, and acting for both Thomson Reuters and Witness 012—claimed, first in correspondence with the Prosecution and the Registrar, and then in their submissions, that Witness 012 is entitled to claim a privilege from testifying as a ‘war correspondent’ working in a ‘conflict zone’.

23. This argument is based on the ICTY case of Brđanin where its Appeals Chamber found that ‘war correspondents’ had a qualified privilege from testifying about


25 Protecting lawyer-client communications from disclosure at trial except with (a) consent, or (b) voluntary third party disclosure, or where (c) the communications were made in furtherance of the client’s intention to commit a crime.

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the course of their work as ‘war correspondents’.26 According to the submissions, Lebanon, on 14 February 2005, ‘rightly deserves the status of a “conflict zone”’.27

24. The ICTY Appeals Chamber, however, commenced its analysis of what a ‘war correspondent’ was by emphasising that the case and the qualified privilege was confined to ‘war correspondents’. It defined them as ‘individuals who, for any period of time, report (or investigate for the purposes of reporting) from a conflict zone on issues relating to the conflict’.28 Brđanin then held that for a subpoena to be issued to a ‘war correspondent’, a two-pronged test applies. First, the applicant must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. And, second, that the evidence sought cannot reasonably be obtained elsewhere.29

25. Witness 012, however, was not working as a ‘war correspondent’ when she picked up the telephone in Beirut on 14 February 2005. And, moreover, there was no international or non-international armed conflict occurring in Beirut in February 2005.

26. The principles of the Brđanin case are therefore distinguishable to the application before the Trial Chamber. A more relevant decision is that of the ICTY Trial Chamber in Haradinaj, which—in refusing to overturn a subpoena to a journalist to testify—distinguished Brđanin by pointing out that it ‘concerned a war correspondent who was subpoenaed to testify about an interview he had conducted while working as a war correspondent’, and that it ‘does not bestow testimonial privilege on a war correspondent for activities carried out in a capacity other than that of a war correspondent’.30 That is the same situation here.

26 ICTY, Prosecutor v. Radoslav Brđanin and Momir Talić, IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002.

27 Witness 012’s submission, para. 38.

28 Brđanin, para. 29.

29 Brđanin, para. 50.

30 ICTY, Prosecutor v. Ramush Haradinaj and others, IT-04-84-T, Decision on Motion by Witness 28 to Set Aside Subpoena or for Alternative Relief’, 5 September 2007, para. 7. At the Special Court for Sierra Leone, Justice Robertson pointed out regarding any journalistic privilege regarding the revealing of sources that ‘The privilege is not absolute, but must yield in cases where the identification of the source is necessary either 1) to prove guilt,

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Personal issues

27. Through her lawyers, Witness 012 states that if she testifies she will be unable to continue with her work, that she will be in placed in danger, and that protective measures under Rule 133 will not mitigate this.31 This, however, is contrary to the witness’s statement to the Special Tribunal’s Prosecution in October 2011.32

28. The Trial Chamber is unconvinced by these arguments. The Trial Chamber must balance, as a matter of public policy, receiving the evidence that the Parties need to place before it, against the personal wishes of witnesses—or their employers—not to testify. Here, the evidence may not be admitted under Rule 155, and Defence counsel wish—as is their right when the evidence goes to the acts and conduct of the Accused—to cross-examine the witness. In this case, the balance lies with receiving the evidence orally, as the Trial Chamber has already done with Witnesses 006 and 007 in relation to calls made to Al Jazeera on the same day. The Trial Chamber may, of course, and, where necessary, order protective measures for the privacy and protection of any witness—as it did with both Witnesses 006 and 007.

Is a summons necessary to secure Witness 012’s testimony before the Trial Chamber?

29. The issue therefore is whether the application for a summons is required to secure the witness’s testimony. The answer is yes. The Trial Chamber is satisfied that the evidence is relevant and probative. It relates to material facts pleaded in the consolidated indictment and goes directly to the acts and conduct of three of the Accused. The witness appears to be the only person who can provide this relevant and probative evidence. No form of privilege operates to prevent the Trial Chamber from issuing a summons to the witness to appear. The witness, through Thomson

or 2) to prove a reasonable doubt about guilt’; SCSL, Prosecutor against Brima, Kamara and Kanu, SCSL-04-16-AR73, Decision on Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality, 26 May 2006, Separate and concurring opinion of Hon. Justice Geoffrey Robertson, QC, para. 33.

31 Witness 012’s submission, paras 42-47.

32 Statement of 18 November 2011 to Prosecution, paras 13-16, ERN 60239109-60239111.

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Reuters’ lawyers, has stated that she will not voluntarily appear before the Special Tribunal.

30. The Trial Chamber is therefore satisfied that a summons is necessary to secure the witness’s attendance to ensure a fair, impartial and expeditious trial. The annexed summons is classified as confidential to conceal the witness’s identity pending any decision on any application for protective measures. The Trial Chamber may then order reclassification or the filing of a public redacted version.

Confidentiality of the filings and this decision

31. This decision is filed confidentially only pending any application for protective measures. Otherwise, it will be reclassified as public. The Parties will then be ordered to file publicly redacted versions of their filings, or their filings will be reclassified as public. The Trial Chamber reiterates the public nature of these proceedings. The litigation in this matter—and in particular the legal issues—should not remain confidential.

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DISPOSITION


ISSUES a Summons to Appear to the witness named in Annex A;

ORDERS the Summons to Appear addressed to the witness be classified as confidential, until further instruction from the Trial Chamber; and

ORDERS the Prosecution and Howard Kennedy LLP to file public redacted versions of their filings.

Done in Arabic, English, and French, the English version being authoritative. Leidschendam, The Netherlands 1 July 2015





Title: Decision Denying Certification to Appeal the ‘Decision on the Admissibility of Documents Published on the WikiLeaks Website’

Short title: Denial of Certification to Appeal WikiLeaks Decision TC

261

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Date: 3 July 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION DENYING CERTIFICATION TO APPEAL THE ‘DECISION ON ADMISSIBILITY OF DOCUMENTS PUBLISHED ON THE

WIKILEAKS WEBSITE’



264

Denial of Certification to Appeal WikiLeaks Decision TC

INTRODUCTION

1. The Defence of the Accused, Mr Mustafa Amine Badreddine, seek certification, under Rule 126 (C) of the Special Tribunal’s Rules of Procedure and Evidence,1 to appeal the Trial Chamber’s ‘Decision on Admissibility of Documents Published on the Wikileaks Website’, of 21 May 2015.2 The Prosecution opposed the application.3

2. The Trial Chamber, in its decision, declined to admit into evidence two documents that Defence counsel found on the Wikileaks website, purportedly relating to two meetings between diplomats of the United States of America—the first with the former Lebanese Minister of Justice Mr Charles Rizk, and the second with the Lebanese Progressive Socialist Party leader, Mr Walid Jumblatt.4

3. Defence counsel attempted to tender the documents into evidence during the testimony of Mr Jumblatt and the former Lebanese Prime Minister, Mr Fouad Siniora. The Trial Chamber, however, was not satisfied that the Defence had proved that the documents were authentic or accurate.5

THE LEGAL PRINCIPLES FOR CERTIFICATION FOR APPEAL

4. Rule 126 (C), ‘Motions Requiring Certification’, requires the Trial Chamber to certify a decision for interlocutory appeal:

if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which an immediate resolution by the Appeals Chamber may materially advance the proceedings.

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1979, Badreddine Defence Motion for Certification to Appeal the “Decision on the Admissibility of Documents Published on the Wikileaks Website”, 28 May 2105.

2 F1955, Decision on the Admissibility of Documents Published on the Wikileaks Website, 21 May 2105.

3 F1993, Prosecution Response to “Badreddine Defence Motion for Certification to Appeal the ‘Decision on the Admissibility of Documents Published on the Wikileaks Website”, 9 June 2015.

4 Document 1DT2-0312, dated 6 July 2007, and exhibit 2D133 MFI (marked for identification) dated 8 April 2008.

5 Decision, paras 40-44.

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5. The Trial Chamber must be satisfied that an issue for certification meets the Rule’s strict requirements.6 This high threshold means certification for appeal is exceptional.7 A request for certification is concerned not with whether a decision was correctly reasoned or not but solely whether the challenged decision involves a precise issue, with an adequate legal or factual basis in the decision, which meets the requirements of Rule 126 (C).8 Judicial economy dictates that appeals on issues not meeting this threshold are heard, if necessary, once the Trial Chamber has rendered its judgment on the merits.9

SUBMISSIONS

6. Defence counsel submit that the decision has the effect of excluding a whole category of evidence, namely, ‘all the cables published on the Wikileaks website that may be relevant’ to the trial by requiring the Defence to bring evidence of the US Government acknowledging their authenticity or accuracy, notwithstanding its policy of neither confirming nor denying. The Trial Chamber had applied a less onerous standard in admitting other documents into evidence such as the recordings of deceased persons and press articles. This amounts to an overly and inappropriately stringent criteria of admissibility for this class of documentary evidence.10 This therefore impacts the fair and expeditious conduct of the proceedings. An erroneous exclusion of a whole category of evidence will have an irremediable effect on the trial thus necessitating immediate resolution by the Appeals Chamber.11

6 STL-11-01/PT/AC/AR90.2, F0007, Decision on Defence Appeals against Trial Chamber’s “Decision on Alleged Defects in the Form of the Amended Indictment”, 5 August 2013, para. 7 and references therein.

7 STL-11-01/PT/AC/AR126.2, F0008, Decision on Appeal against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor, 13 November 2012, para. 11 and references therein.

8 Decision on Appeal on Absence of Authority of the Prosecutor, paras 13-15 and references therein.

9 STL-11-01/PT/AC/AR126.1, F0012, Corrected Version of Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, 1 November 2012, para. 11.

10 Application, paras 3-4.


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7. The Prosecution responded that the decision is confined to two documents and that the Trial Chamber took an approach in evaluating the prima facie relevance of the two documents consistent with that of other international courts and tribunals applying near identical rules of evidence. Moreover, the Trial Chamber permitted Defence counsel to cross-examine witnesses on the content of the two documents.12

DISCUSSION

8. The decision is confined to the admission into evidence of two documents. The Trial Chamber was not satisfied of their authenticity and reliability. The decision says nothing about other documents that may be found on either the Wikileaks website or any other. The Trial Chamber assesses each document submitted for admission into evidence on its own merits. In declining to admit these two documents into evidence and in assessing their reliability, the Trial Chamber applied the general principles of international criminal procedural law.13 The Trial Chamber was asked to rule on the admissibility of two specific documents and did so. Moreover, the US Department of State has produced diplomatic cables in response to US Freedom of Information Act requests, thereby authenticating them.14 These two documents were not so authenticated.

9. Their relevance to the proceedings is, at best marginal, and their admission or non-admission into evidence cannot be an issue ‘that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial’ as required by Rule 126 (C). The application for certification to appeal is therefore dismissed.


13 Decision, paras 11-13.

14 For example see, United States District Court for the District of Columbia, American Civil Liberties Union and another v. Department of State, Civil Action No. 11-01072 (CKK), Memorandum Opinion, 23 July 2012, referred to in the Decision, para. 27.

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DISPOSITION


DISMISSES the application.






Title: Decision on ‘Prosecution Motion for the Admission of Locations Related Evidence’

Short title: Admission of Locations Related Evidence TC

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Date: 9 July 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON ‘PROSECUTION MOTION FOR THE ADMISSION OF LOCATIONS RELATED EVIDENCE’



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Admission of Locations Related Evidence TC

INTRODUCTION

1. The Prosecution intends to use computer software, the ‘Electronic Presentation of Evidence’, to present in court and on an electronic map, geographical locations relevant to its case.1 The Prosecution believes that this software will assist it in visually representing relevant events, such as the movements of the former Lebanese Prime Minister Mr Rafik Hariri, before his assassination in Beirut on 14 February 2005, and the movements of mobile telephones used by those—including the Accused—who are relevant to the Prosecution’s case.2

2. To allow it to enter the data of these locations into the software, the Prosecution seeks to tender into evidence, under Rule 155 of the Special Tribunal’s Rules of Procedure and Evidence, seventeen statements by fifteen Witnesses: PRH009, PRH012, PRH020, PRH063, PRH065, PRH075, PRH087, PRH263, PRH312, PRH400, PRH420, PRH539, PRH550, PRH553 and PRH583.3 To the same end, the Prosecution seeks to tender into evidence, under Rule 154, four exhibits. It also seeks leave to amend its exhibit list filed under Rule 91, as seven of the seventeen witness statements and one of the four exhibits are not on the exhibit list.4

3. Counsel for the Accused, Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi and Mr Assad Hassan Sabra responded to the motion.5 The Prosecution subsequently filed a reply.6

1 See for instance, STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F1704, Prosecution Rule 154 Motion for the Admission of Geographic and Locations Related Materials, 16 October 2014, para. 10.

2 F1986, Prosecution Motion for the Admission of Locations Related Evidence, 3 June 2015, para. 2.



5 F2008, Response by the Ayyash Defence to the “Prosecution Motion for the Admission of Locations Related Evidence”, 17 June 2015; F2011, Badreddine Defence Response to “Prosecution Motion for the Admission of Locations Related Evidence”, 17 June 2015; F1994, Oneissi Defence Response to the ‘Prosecution Motion for the Admission of Locations Related Evidence’ dated 3 June 2015, 9 June 2015; F2009, Sabra Defence Response to “Prosecution Motion for the Admission of Locations Related Evidence”, 17 June 2015.

6 F2018, Prosecution Reply to Defence Responses to “Prosecution Motion for the Admission of Locations Related Evidence”, 22 June 2015.

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4. On 30 June 2015, the Trial Chamber asked counsel for Mr Sabra for supplementary submissions on why they requested to cross-examine certain witnesses under Rule 155 (C); counsel filed these confidentially and ex parte on 2 July 2015.7

DISCUSSION

A. Admission of statements into evidence under Rule 155

5. In earlier decisions, the Trial Chamber determined the procedural safeguards for admitting statements into evidence under Rule 155.8 These allow it to receive written testimony in lieu of live oral testimony in the courtroom. In particular, a statement must meet the basic requirements for admission into evidence under Rule 149 and, if going to proof of the acts or conduct of the Accused, may not be admitted without cross-examination. In addition, Rule 155 (C) states that the Trial Chamber may decide, providing reasons, that the interests of justice and the demands of a fair and expeditious trial exceptionally warrant the admission of a statement or transcript, in whole or in part, without cross-examination. These principles are applicable here.

6. The statements may conveniently be divided into two categories—statements by Prosecution staff and statements by non-Prosecution staff. The Trial Chamber will address each statement separately below.

(i) Statements by Prosecution staff

7. Statements in this category are from Prosecution investigators or analysts and do not go to acts or conduct of the Accused. The Prosecution seeks to have them admitted in lieu of examination in chief, under Rule 155.

7 Email from the Trial Chamber’s Senior Legal Officer to the Parties, dated 30 June 2015; F2009, Sabra Defence Addendum to Response to Prosecution Motion for the Admission of Locations Related Evidence, 2 July 2015.

8 STL-11-01/PT/TC, F937, Decision on Compliance with the Practice Direction for the Admissibility of Witness Statements under Rule 155, 30 May 2013, para. 13; F1280, First Decision on the Prosecution Motion for Admission of Written Statements Under Rule 155, 20 December 2013, paras 7-14; F1785, Decision on the Prosecution Motion for Admission Under Rule 155 of Written Statements in Lieu of Oral Testimony Relating to Rafik Hariri’s Movements and Political Events, 11 December 2014, para. 3.

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Witness 550

8. Witness 550 is Prosecution investigator. He marks on a map the location of a clinic where he interviewed a medical doctor, and annexes the screenshot of that map to his statement. The Prosecution submits that the location of this clinic is relevant because it was visited by people related to Mr Ayyash.9

9. Counsel for Mr Sabra initially required the witness’s attendance for cross-examination, but subsequently withdrew their request.10

10. The Trial Chamber considers this statement as relevant and probative, notably to the Prosecution’s attempt to attribute telephones to Mr Ayyash.11 The statement also conforms to the requirements of Rule 155 and the relevant Practice Direction.12 As a result, and because the witness went to the clinic and interviewed the doctor practising there, the statement is reliable. Moreover, it does not go to the acts and conduct of the Accused. The Trial Chamber accordingly finds Witness 550’s statement to be admissible into evidence under Rule 155.

Witness 583

11. Witness 583 was a Prosecution investigator. In March 2010, he photographed and recorded the global positioning system (GPS) coordinates of nine locations linked to what the Prosecution pleads in its consolidated indictment was a false claim of responsibility for the attack of 14 February 2005 made by Ahmad Abu Adass.13 The nine locations include the four public telephone booths from where calls claiming responsibility were allegedly made after the attack, the tree where the videotape recording the claim of responsibility was found, the residence of Ahmad Abu Adass, and two mosques in Beirut at which he prayed.14

9 Prosecution motion, para. 13; Annex A, line 8.

10 Sabra response, paras 12-13; Sabra addendum, para. 4.

11 Prosecution motion, Annex A, line 8.

12 STL-PD-2010-02, Practice Direction on the Procedure for Taking Depositions under Rules 123 and 157, and for Taking Witness Statements for Admission in Court under Rule 155, 15 January 2010.

13 F1444, Redacted Version of the Consolidated Indictment, 7 March 2014, paras 3, 23 and 44.


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12. Counsel for Mr Sabra and Mr Oneissi both require Witness 583 to be present for cross-examination. Counsel for Mr Oneissi argue that his evidence is closely linked to the allegations against Mr Oneissi, and, counsel for Mr Sabra that he was directly involved in investigations that are material and relevant to the Sabra Defence case.15

13. The Trial Chamber considers Witness 583’s statement to be relevant to and probative of the Prosecution’s allegations in relation to the false claim of responsibility. The statement also conforms with Rule 155 and the Practice Direction, and does not go to the acts and conduct of the Accused. Defence counsel have put nothing before the Trial Chamber to cast any doubt on the reliability of the statement. The Trial Chamber accordingly finds Witness 583’s statement to be admissible. As the Prosecution alleges in its consolidated indictment that Mr Oneissi participated with Mr Sabra in planning the false claim of responsibility for the attack, the Trial Chamber considers that counsel for Mr Oneissi and Mr Sabra have justified their request to cross-examine Witness 583.16 The Prosecution must therefore call him and make him available for cross-examination in accordance with Rules 155 (C) and 156.

Witness 312

14. Witness 312 is a Prosecution investigator who made two statements.17 In his first statement, he describes collecting insurance records for an accident involving a car registered in Mr Ayyash’s name, and annexes these records. This evidence establishes the location of the car accident, which is relevant to attributing telephone numbers to Mr Ayyash at the time and place of the accident.18

15. Counsel for Mr Ayyash argue that the statement is unnecessary hearsay and other witnesses are better placed to provide the same evidence, although they take

15 Oneissi response, paras 2-3; Sabra response, paras 12-13; Sabra addendum, para. 5.

16 Consolidated indictment, para. 3 (c) and (d).

17 Dated 10 May 2013 and 28 November 2014.

18 Prosecution motion, para. 15, Annex A, line 14.

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no position on its admissibility.19 Counsel for Mr Badreddine and Mr Sabra request the witness’s appearance for cross-examination, as he was involved in investigations linked to these two Accused.20

16. The Trial Chamber considers this statement to be relevant and probative. The Prosecution has explained how it will use the statement to attribute telephones to Mr Ayyash. Defence counsel have put nothing before the Trial Chamber to cast any doubt on the reliability of the statement. The statement conforms with Rule 155 and the Practice Direction, and does not go to the acts and conduct of the Accused. The statement is admissible. As this witness was involved in Prosecution investigations concerning Mr Badreddine and Mr Sabra, Defence counsel may cross-examine him. The Prosecution must call the witness and make him available for cross-examination under Rules 155 (C) and 156.

17. The Prosecution also seek to tender Witness 312’s second statement. There, the witness describes photographing, in August 2007, as a UNIIIC investigator, two mobile telephone stores in Tripoli—Nejmeh Cell and Echo Cell—that sold SIM cards allegedly used in planning the attack, and the vehicle dealership in Tripoli where the Mitsubishi Canter allegedly used in the attack was sold.21

18. Counsel for Mr Ayyash argue that Witness 312 misidentified the location of the dealership. They refer to testimony by its owner, Witness 063, who testified that it was 250 meters from the site in Witness 312’s photographs.22 Counsel for Mr Badreddine argue that the statement is therefore unreliable.23 The Prosecution then acknowledged this error, and stated that it ‘no longer seeks to rely’ on Witness 312’s statement ‘as it relates to the location of the car dealership’.24

19 Ayyash response, para. 10.

20 Badreddine response, paras 22-23; Sabra response, paras 12-13; Sabra addendum, para. 7.


22 Ayyash response, paras 6-7; Transcript no. 159 of 5 June 2015, pp. 51-52.



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19. The Trial Chamber considers that part of Witness 312’s statement, namely paragraphs 12 (c) and 15 and the four annexed photographs, as irrelevant and not probative. The remainder of the statement, however, is relevant and probative and admissible under Rule 155 (C). The Trial Chamber invites the Prosecution to re-submit the statement without the part concerning the incorrect location of the dealership.

Witness 400

20. Witness 400, a Prosecution investigator, made two statements.25 In the first, he describes GPS coordinates and includes photographs of locations relevant to the Prosecution’s case. These include the vehicle dealership in Tripoli, Mr Hariri’s residences and places he visited, the Echo Cell and Nejmeh Cell mobile telephone stores, and the Samino jewellery stores that the Prosecution alleges Mr Badreddine owned under the alias of Sami Issa.26 To identify the various locations he surveyed, the witness relies on addresses and descriptions in statements of other witnesses. To locate the vehicle dealership and the mobile telephone stores, for example, he relies on Witness 312’s second statement.27

21. Counsel for Mr Sabra do not oppose the admission of either of this witness’s statements, but require his attendance in court for cross-examination on the basis that he was directly involved in investigations material and relevant to the Sabra Defence case.28 Counsel for Mr Ayyash and Mr Badreddine point out that Witness 400 misidentified the location of the Tripoli dealership.29

22. The Trial Chamber finds the part of Witness 400’s statement concerning the dealership, at paragraphs 15-22, irrelevant and not probative,30 and invites the

25 Dated 15 January 2015 and 5 February 2015.

26 STL-11-01/PT/TC, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, F1077, Redacted Version of the Prosecution’s Updated Pre-Trial Brief, dated 23 August 2013, 31 October 2013, para. 14.

27 Dated 28 November 2014. Prosecution motion, para 16, and Annex A, line 11.


29 Ayyash response, paras 6-8; Badreddine response, para. 26.

30 Paragraphs 15-22 of the statement.

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Prosecution, as it has already undertaken to do, to resubmit it without these irrelevant parts.31 The remainder of the statement is relevant, probative and reliable, and may accordingly be admitted under Rule 155 (C).

23. The Prosecution seeks to also tender Witness 400’s second statement, which provides the GPS coordinates and photographs of Mr Hariri’s villa in Naameh.32

24. The Trial Chamber considers Witness 400’s second statement relevant to and probative of Mr Hariri’s movements, as the Prosecution alleges in the consolidated indictment that the Accused, Mr Ayyash, and others observed Mr Hariri’s movements to learn the routes and movements of his convoy and his vehicle’s position within it.33 Defence counsel have not challenged the statement’s prima facie reliability. The statement also complies with Rule 155 and the Practice Direction, and does not go to the acts and conduct of the Accused. The Trial Chamber accordingly finds this statement admissible. As counsel for Mr Sabra have justified their request to cross-examine the witness, the Prosecution must call him and make him available for cross-examination under Rules 155 (C) and 156.

Witness 539

25. Witness 539 is a Prosecution investigator. He recorded the GPS coordinates and photographed what appears to be a physiotherapy clinic where Mr Oneissi allegedly received treatment.34 The Prosecution argues that this is relevant to attribute a telephone number to Mr Oneissi.35

26. Counsel for Oneissi require Witness 539’s attendance for cross-examination because his statement supports the Prosecution attributing a telephone number to Mr Oneissi.36 Counsel for Mr Sabra argue that the witness was directly involved in


32 Prosecution motion, para. 14 and Annex A, line 11.

33 Prosecution motion, Annex C, line 101; consolidated indictment, paras 20-22.


35 Prosecution motion, Annex A, line 15; Annex C, line 43.


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investigations that are material and relevant to their case, and want to cross-examine him.37

27. The Trial Chamber considers Witness 539’s statement as relevant to and probative of the Prosecution’s case and specifically, the attribution of a telephone to Mr Oneissi.38 The statement is prima facie reliable. The statement complies with Rule 155 and the Practice Direction, and the Defence have not challenged its reliability. Moreover, the statement does not go to the acts and conduct of the Accused. It is admissible. Counsel for Mr Oneissi and Sabra have justified their request to cross-examine the witness. The Prosecution therefore must call him and make him available for cross-examination under Rules 155 (C) and 156.

Witness 420

28. Witness 420 is a former Prosecution investigator. His statement attaches investigator notes and photographs of the Samino jewellery stores in Furn el Chebbak and Mar Elias.39

29. Counsel for Mr Badreddine submit that the Samino stores are critical to the Prosecution’s case against Mr Badreddine and the provenance of some of the information the witness has relied on is unclear. For this reason, and although they take no position on the admissibility of this statement, they require Witness 420’s attendance for cross examination.40

30. The Trial Chamber considers this statement relevant to and probative of the Prosecution’s allegations against Mr Badreddine and attributing mobile telephones to him.41 The statement is reliable, and conforms to the requirements of Rule 155 and the relevant Practice Direction. It does not go to the acts and conduct of the Accused. Witness 420’s statement is therefore admissible. Defence counsel have made a case


38 Prosecution motion, Annex A, line 15; Annex C, line 43.

39 Prosecution motion, para. 14; Annex A, line 16; Annex C, lines 126 and 128.


41 F1077, Redacted Version of the Prosecution’s Updated Pre-Trial Brief, 31 October 2013, paras 40 and 42.

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to cross-examine the witness; the Prosecution must therefore make him available for cross-examination under Rules 155 (C) and 156.

Witness 263

31. Witness 263 is a Prosecution analyst. His statement and its annexes describe the methods he used and the materials he consulted to establish the coordinates of various places that will be plotted into the Electronic Presentation of Evidence module.42

32. Counsel for Mr Badreddine take no position on the admissibility of this statement for the purposes of the module, but observe that it relies on Witness 400’s first statement to plot the location of the Tripoli vehicle dealership.43 The Prosecution recognises Witnesses 312 and 400’s misidentification of the dealership’s location, but does not address that Witness 263 relied, notably, on Witness 400’s statement to plot that location.44

33. The Trial Chamber finds the parts of Witness 263’s statement concerning the dealership, that is, paragraph 21 and line 139 of Annex I, irrelevant and not probative. The Prosecution is invited to resubmit the statement without these irrelevant parts. The remainder of the statement is relevant, probative and reliable. The Trial Chamber considers those portions admissible under Rule 155 (C).

Ayyash and Badreddine Defence argument on verification of locations

34. Counsel for Mr Ayyash generally argue with respect to the statements by Prosecution staff, that while they do not contest the accuracy of the GPS readings, the statements are not inherently reliable. The Prosecution should therefore independently verify that the location of each GPS reading is correct.45 Counsel for

42 Prosecution motion paras 3 and 7, Annex A, line 17.




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Mr Badreddine make a similar argument and state that the Prosecution should verify the accuracy of Witness 400’s survey.46

35. The Trial Chamber does not consider it necessary, at this point, to require an independent verification of the Prosecution’s GPS data. It is satisfied that each statement is relevant, probative and prima facie reliable. Defence counsel may challenge the reliability of the evidence in cross-examination, and adduce evidence to support their own case. The Trial Chamber will determine the weight of the evidence, if any, at the conclusion of the trial, and in light of all the evidence adduced.47

(ii) Statements by non-Prosecution staff

36. The Prosecution seeks to tender eight statements by non-Prosecution staff. These witnesses each have ‘personal knowledge’ of a location and provide an address, describe a location or mark it on a map.48 All but one—Witness 065—are expected to testify in person, or have already testified.49 Some of these statements—those of Witnesses 012, 020 and 087—go to proof of the acts and conduct of the Accused.50

Witness 065

37. Witness 065 provides the address of an apartment in Jounieh allegedly frequented by Mr Badreddine, using the alias of Sami Issa. He also describes Sami Issa and his lifestyle, and provides the telephone number of someone associated with him. The Prosecution submits that the number is relevant to attributing telephones to Mr Badreddine.51


47 See F1841, Decision on ‘The Defence for Hussein Hassan Oneissi Request for Certification of the “Decision on Prosecution’s Motion for Admission into Evidence of 485 Documents, Photographs and Witness Statements Relevant to Rafik Hariri’s Movements and to Political Events” of 30 December 2014’, 3 February 2015, para. 14.

48 Prosecution motion, para. 9

49 Prosecution motion, paras 4 (b), (c) and (d).

50 Prosecution motion, para. 4 (d).


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38. Counsel for Mr Badreddine object to the statement’s admission without cross-examination. They submit that, contrary to the Prosecution’s characterization, the statement goes to the acts and conduct of the Accused, as it concerns the attribution of telephones to Sami Issa and to proving that Mr Badreddine and Sami Issa are the same person.52

39. The Trial Chamber considers this statement relevant and probative of the Prosecution’s allegations against Mr Badreddine and attributing mobile telephones to him.53 The statement complies with Rule 155 and the Practice Direction, and Defence counsel have put nothing before the Trial Chamber to cast doubt on its reliability. The Trial Chamber does not consider that sufficient proximity exists between the evidence of the telephone number of a person linked to Sami Issa and Mr Badreddine’s acts or conduct as an Accused, to justify not admitting the statement under Rule 155. Establishing that a person used a particular telephone number does not, of itself, go to the acts and conduct of an Accused person.

40. Witness 065’s statement is admissible. Nevertheless, the nature of the evidence—Mr Badreddine’s lifestyle, activities and alleged alias—justifies Defence counsel’s request to cross-examine him under Rule 155 (C). The Prosecution must therefore call the witness and, in accordance with Rules 155 (C) and 156, make him available for cross-examination.

Witnesses 063 and 075

41. Witness 063 owned the vehicle dealership in Tripoli where the Mistubishi Canter owned by Witness 075, and allegedly used in the attack, was sold to two unnamed men.54 The Prosecution seeks to tender a statement from each describing the location of the dealership.55 Both statements refer generally to the area or the road where the dealership is situated.


53 Redacted version of the updated pre-trial brief, paras 40 and 42.

54 Transcript no. 158 of 4 June 2015, pp 72-76.


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42. Witness 063 and Witness 075, however, have already testified.56 The Trial Chamber admitted into evidence an extract of the same statement by Witness 063 that the Prosecution now seeks to tender—the page containing the dealership’s address.57 During cross-examination, counsel for Mr Ayyash also showed Witness 063 photographs allegedly representing his showroom. These are the photographs included in Witness 400 first and Witness 312’s second statements.58 The witness testified that they were of adjacent businesses, and marked the location of his dealership on a map, exhibit 1D148.59 The Prosecution did not elicit evidence from Witness 075 of the location of Witness 063’s dealership.60

43. On these grounds, counsel for Mr Ayyash and Mr Badreddine argue that Witness 063 and Witness 075’s statements should not be admitted, as they are either no longer relevant or simply unnecessary.61

44. The Trial Chamber agrees with Defence counsel. The request to admit Witness 063’s statement is moot, as the relevant page of that statement was admitted into evidence while the witness was testifying. In addition, the Trial Chamber has received sufficient evidence concerning the location of the dealership. Accordingly, it does not consider it necessary to admit Witness 075’s statement.

Witness 553

45. Witness 553 owned the Nejmeh Cell mobile telephone business in Nejmeh Square, Tripoli. His store allegedly sold SIM cards that were later used in the telephone networks planning Mr Hariri’s assassination.62 The Prosecution asks for his statement to be admitted into evidence ‘only’ to establish the location described,

56 Witness 063 testified on 4, 5 and 10 June 2015: Transcript no. 158 of 4 June 2015; Transcript no. 159 of 5 June 2015; Transcript no. 160 of 10 June 2015. Witness 075 testified on 15 and 16 June 2015: Transcript no. 161 of 15 June 2015; Transcript no. 162 of 16 June 2015.

57 Exhibit P474; Transcript no. 158 of 4 June 2015, pp 68-69 and 103.

58 See paras 17-19 and 20-22 of this decision.

59 Transcript no. 159 of 5 June 2015, p. 51-57.

60 Transcript no. 161 of 15 June 2015, pp. 8-9.

61 Ayyash response, paras 6-7 and 12; Badreddine response, paras 6-8.

62 Prosecution motion, Annex A, line 5; consolidated indictment, paras 14-15.

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because it intends to call him to testify in relation to the rest of his evidence. Should this witness not testify, however, the Prosecution wishes to ‘resubmit’ this statement under Rule 155 in its entirety.63

46. Counsel for Mr Sabra oppose the admission of this statement on the basis that it is unnecessary if the witness is expected to testify.64

47. The witness is not yet scheduled to testify, but the Trial Chamber accepts that the Prosecution might need his evidence on certain points for the purposes of the Electronic Presentation of Evidence module before his appearance. In this case, however, as pointed out by counsel for Mr Sabra, the location of Nejmeh Cell is mentioned in several other witness statements that the Trial Chamber has already admitted or declared admissible, such as those of Mr Ahmad Srour, and Witnesses PRH004 and PRH117.65 Witness 553’s statement contains no additional information on the location of his store. Given that he will be called to testify, no compelling reason exists to admit his statement under Rule 155 now, and the Trial Chamber declines to do so.

Witness 009

48. In 2005, Witness 009 was a member of the Lebanese Internal Security Forces and the team leader assigned to Mr Hariri’s convoy.66 The Prosecution wishes to tender his statement because he marked a map with various places visited by Mr Hariri that it argues are relevant to its case.67 As with Witness 553, the Prosecution

63 Prosecution motion, para. 4(c).

64 Sabra response, paras 5-8.

65 Sabra response, Annex A; F1953, Decision on Prosecution Motion to Admit the Statements of Deceased Witnesses PRH249 and PRH093, 18 May 2015; F1820, Decision on the Prosecution Motion for Admission under Rule 155 of Written Statements in lieu of Oral Testimony Relating to ‘Red Network’ Mobile Telephone Subscription, 19 January 2015; Exhibits P464, P376 and P374; Transcript no. 114 of 4 February 2015, pp. 8-11; Transcript no. 153 of 22 May 2015, p. 35.

66 Prosecution motion, Annex A, line 6; F1742, Decision on Expert and Witness Statements of Witnesses PRH009 and PRH101, 7 November 2014, para. 3.

67 Prosecution motion, para. 12. At Annex A of its motion, and for those statements it seeks to tender ‘only’ to establish the locations referred in them, the Prosecution identifies the specific page numbers it considers relevant for some statements (such as those of Witness 020 and 553). However, it does not do this for Witness 009.

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only seeks to tender this statement to prove the places described in it, and it intends to call the witness to testify in relation to the rest of his evidence.68

49. Counsel for Mr Badreddine take no position on the admissibility of this statement solely to establish places visited by Mr Hariri, but request his appearance for cross-examination. They argue, notably, that he was ‘the subject of inquiries’ from the Defence during another witness’s cross-examination on matters that could seriously affect his credibility.69

50. Counsel for Mr Sabra object to the admission of this statement, on the basis that the witness will testify. They list, in an annex to their response, the other witness statements admitted into evidence or declared admissible, including another by Witness 009, describing most of the locations he marked.70

51. The Trial Chamber is satisfied that Witness 009’s statement is relevant to Mr Hariri’s movements and the routes of his convoy, and that it is probative. His statement is cumulative to the evidence of other witnesses in relation to the locations he describes. In addition, the Trial Chamber has already found another of his statements admissible.71 The Trial Chamber considers Witness 009’s statement prima facie reliable. As the Prosecution intends to call this witness to testify, his statement may be admitted into evidence under Rule 156 when he testifies. There is accordingly no need to rule on counsel for Mr Badreddine’s request for cross-examination.

Witness 087

52. Witness 087 provides the address of Ahmad Abu Adass’s residence.72 His statement also describes seeing Mr Abu Adass at the Arab University mosque in Beirut shortly before he disappeared, and apparently teaching someone how to

68 Prosecution motion, para. 4(c).


70 Sabra response, paras 5-8; Annex A.

71 F1742, Decision on Expert and Witness Statements of Witnesses PRH009 and PRH101, 7 November 2014.

72 Prosecution motion, Annex A, line 1.

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pray.73 The Prosecution submits that this statement goes to the acts and conduct of the Accused, therefore it seeks its admission ‘only’ to establish the locations referred to in it.74 The Prosecution will call the witness to testify in person on the other aspects of his evidence.

53. Counsel for Mr Badreddine take no position on this statement’s admissibility ‘for the sole purpose of establishing the location of Ahmad Abu Adass’s residence’.75 They warn, however, against the difficulties that may arise from the Prosecution’s proposed approach to admit the statement if the witness’s testimony contradicts the location surveyed by Witness 583.76

54. Counsel for Mr Sabra object to the admission of the statement and point out that the Trial Chamber has already declared admissible statements from Ahmad Abu Adass’s father giving the residential address.77

55. The Trial Chamber has already admitted Mr Abu Adass’s father’s statements into evidence.78 Witness 087’s statement contains no additional evidence on the residential address. In addition, the Prosecution will be calling this witness to testify. The Trial Chamber is not satisfied of the need to admit Witness 087’s statement into evidence now, particularly as his statement goes to proof of acts and conduct of the Accused, and declines to do this.

Witness 012

56. Witnesses 012 gives the address of the Reuters office in Beirut which, on 14 February 2005, received a telephone call claiming responsibility for the attack earlier that day.79





77 Sabra response, paras 7-8. Annex A.

78 Exhibit P461; Transcript no. 153 of 22 May 2015, p. 23.


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57. Counsel for Mr Badreddine and Mr Sabra object to the admission of her statement on the grounds that it is unnecessary, since the Prosecution intends to call her to testify.80

58. The Trial Chamber agrees. As this witness will be testifying, it is not necessary to admit her statement into evidence under Rule 155 solely to prove Reuters’ address.81

Witness 020 (Ghassan Ben Jeddo)

59. Witness 020, Ghassan Ben Jeddo, also provides the address of the Al-Jazeera office in Beirut, that also received several calls claiming responsibility on the day of the attack.82 During his testimony on 8 July 2015, Mr Ben Jeddo gave the relevant address.83

60. For the same reasons as for Witness 012, counsel for Mr Badreddine and Mr Sabra oppose the admission of Mr Ben Jeddo’s statement.84

61. Again, the Trial Chamber agrees. It is not necessary to admit Mr Ben Jeddo’s statement under Rule 155 solely to prove Al-Jazeera’s Beirut address. Both he and Witness PRH115, who was at Al-Jazeera’s office the day of the attack, have provided this address during testimony.85

B. Amendment of the exhibit list

62. The Trial Chamber has previously held that it may, in the interests of justice, allow a party to amend its exhibit lists, but must balance the Prosecution’s interest in presenting any available evidence against the rights of an accused person to adequate time and facilities to prepare for trial. The evidence must be prima facie relevant

80 Badreddine response, para. 11; Sabra response, paras 5-8.



83 Provisional Transcript no. 168 of 8 July 2015, pp. 60 and 70-72; Exhibit P496.

84 Badreddine response, para. 9; Sabra response, paras 5-8, Annex A.

85 Witness PRH115; Transcript no. 167 of 7 July 2015, p. 86.

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and probative, and the Trial Chamber may consider general factors that include: (i) whether the Prosecution has shown good cause for not seeking the amendments at an earlier stage; (ii) the stage of the proceedings; and (iii) whether granting the amendment would result in undue delay.86

63. The Prosecution requests leave to amend its exhibit list to add eight exhibits: the two statements of Witness 400,87 the statements of Witnesses 065, 075, 087, 263 and 539, and a series of satellite photographs by European Space Imaging GmbH.88 It argues that it has good cause to add the photographs as it only received them in January 2015. The statements replace others already on the exhibit list to make them compliant with Rule 155, or streamline and render more comprehensible documents already on the exhibit list, or were only recently taken.89

64. Counsel for Mr Ayyash do not object to the amendment.90 Counsel for Mr Badreddine object to adding Witness 075’s statement because the Trial Chamber has already heard evidence on the same subject, namely the Tripoli dealership’s location.91 They take no position on adding Witnesses 065, 087, 263 and 539’s statements or the satellite photographs.92 Counsel for Mr Oneissi and Mr Sabra take no position on the proposed amendment.93

65. As the Trial Chamber has declined to admit into evidence the statements of Witnesses 075 and 087, they cannot be added to the exhibit list. The Trial Chamber is satisfied that adding the statements of Witness 065, 263, 400 and 539, and the

86 F1820, Decision on the Prosecution Motion for Admission under Rule 155 of Written Statements in Lieu of Oral Testimony relating to ‘Red Network’ Mobile Telephone Subscriptions, 19 January 2015, para. 5.

87 Annex E of the Prosecution motion appears to incorrectly date Witness 400’s statement of 5 February 2015 as 30 January 2015.

88 Prosecution motion, paras 32-33, Annex E.




92 Badreddine response, paras 10, 13, 19, 27 and 32.

93 Oneissi response, para. 1; Sabra response, para. 3.

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satellite photographs will not prejudice Defence preparations for trial nor delay the trial, and grants the application.

C. Admission of four exhibits

66. The Trial Chamber has previously acknowledged that admitting evidence ‘from the bar table’, under Rule 154, without requiring a witness to produce or to identify it, is a well-established practice before international courts and tribunals.94 Material tendered in this manner―like any other evidentiary material―must meet the basic requirements for the admission of evidence in Rule 149 (C) and (D), in that it must be relevant and probative, and its probative value must not be outweighed by its prejudicial effect.95 Only prima facie―rather than definite―reliability and probative value is required at this stage.96 Probative value, in this sense, is distinct from the weight that the Trial Chamber may ultimately give to a document or record. The tendering party must also demonstrate, with clarity and specificity, where and how each document or record fits into its case.97

67. To allow it to identify and plot relevant locations on a map, the Prosecution seeks the admission into evidence under Rule 154 of four exhibits.98 The exhibits are a business card for Samino Jewellery stores, a map marked by Witness PRH089, an extract from a letter from the Banque du Liban (the Lebanese central bank) listing addresses of a Lebanese bank, and satellite photographs of Lebanon taken by European Space Imaging GmbH.99

94 F1876, Decision on Three Prosecution Motions for the Admission into Evidence of Mobile Telephone Documents, 6 March 2015, para. 33; F1781, Decision on Prosecution Motion to Admit into Evidence Geographic Documents, 8 December 2014, para. 4; F1350, Decision on Prosecution’s Motion to Admit into Evidence Photographs, Questionnaires and Records of Victims, 28 January 2014, para. 5-7; STL-11-01/PT/TC, F1308, Decision on Prosecution’s Motion to Admit into Evidence Photographs, Videos, Maps and 3-D Models, 13 January 2014, para. 4.

95 F1781, Decision on Prosecution Motion to Admit into Evidence Geographic Documents, 8 December 2014, para. 4.

96 Decision of 28 January 2014, para. 7; Decision of 13 January 2014, para. 8.

97 Decision of 28 January 2014, para. 7; Decision of 13 January 2014, paras 4-6.

98 Prosecution motion, para. 2; Annex B.

99 Prosecution motion, Annex E.

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68. Counsel for Mr Ayyash, Mr Oneissi and Mr Sabra take no position on the admission of these exhibits into evidence.100 Counsel for Mr Badreddine object to the Samino business card and Witness 089’s map, but not to the letter from the Banque du Liban and the satellite photographs.101

(i) Samino Jewellery business card

69. The Prosecution seeks to tender a business card for the Samino Jewellery store showing its three addresses. The Prosecution argues that the stores are linked to Mr Badreddine’s alleged alias of Sami Issa, and that—considered with cell site coverage for the surrounding area—they are relevant to attributing telephones to him.102

70. The Prosecution obtained the card from Witness PRH306.103 Although the Prosecution does not specify whether it will tender that statement into evidence later or call him to testify, counsel for Mr Badreddine point out, based on information available to them—such as the Prosecution’s consolidated witness list filed under Rule 91—that the witness is expected to testify.104

71. Counsel for Mr Badreddine object to the admission of the business card and require that the Prosecution first establish its provenance and authenticity through Witness 306’s testimony. They also argue that the addresses of two of the three branches on the card are not specific enough to find the stores.105

72. Counsel for Mr Badreddine do not specify which addresses are not specific enough. They also do not explain what additional information is necessary to sufficiently describe the addresses.106

100 Ayyash response, para.14; Oneissi response, para. 1; Sabra response, para. 3.






106 This is because in Lebanon, addresses often do not include post codes or house numbers, and are described by reference to neighbourhoods, nearby landmarks or the names of buildings.

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73. The Prosecution has demonstrated the business card’s relevance to its case on the telephones it attributes to Mr Badreddine. The Trial Chamber is accordingly satisfied that it is relevant and probative. The Trial Chamber has reviewed Witness 306’s statement and is also satisfied of the card’s provenance and its reliability as a business record. The Prosecution has shown where and how the information on the card fits into its case. The Samino business card is therefore admissible into evidence under Rule 154.

(ii) Letter from the Special Investigation Commission of the Banque du Liban

74. The Prosecution seeks to tender a one page extract from a letter dated 30 March 2012 from the Special Investigation Commission of the Banque du Liban to the Special Tribunal’s Prosecutor in response to a request for assistance. The extract lists the addresses of three branches of the Lebanese banking group Audi-Saradar.107

75. The Prosecution argues that these addresses are relevant to the attribution of telephone numbers to Mr Ayyash. Specifically, Mr Ayyash allegedly used telephones the Prosecution attributes to him, in the locality of these branches, when banking transactions were made on his bank accounts.108

76. The Trial Chamber is satisfied of the letter’s relevance and probative value to the Prosecution’s case, in particular, in relation to attributing telephones to Mr Ayyash. The letter is reliable, given that it comes from Lebanon’s central banking authority, and its provenance is clear. The Prosecution has demonstrated how and where the information in the letter fits into its case. The extract of the letter is accordingly admissible into evidence under Rule 154.

(iii) Map marked by Witness 089

77. The Prosecution seeks to tender an extract of a statement by Witness 089—a map on which he marked the approximate location of his apartment. Mr Badreddine

107 Prosecution motion, para. 28; Annex B.


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allegedly occasionally visited the apartment. With cell site coverage of this area, the location allows the attribution of telephones to Mr Badreddine. The map is reliable because the statement bears the indicia of reliability required by Rule 155. Witness 089 is expected to testify in the trial.109

78. Counsel for Mr Badreddine argue that Witness 089, in his interview with Prosecution investigators, was uncertain of the location of his apartment on the map, and made an imprecise mark on the map. For this reason, it should not be admitted into evidence.110

79. The Trial Chamber has reviewed Witness 089’s interview and examined the map. It is not convinced by these objections. The marking, although obscured, is visible. The interview transcript shows that the witness, despite expressing some initial hesitation, located the ‘LAU’ (presumably, the Lebanese American University), and positioned his apartment in relation to it.

80. The Trial Chamber is satisfied of the relevance of this map to the Prosecution’s case on the telephones that it attributes to Mr Badreddine, and of its probative value. It is reliable, given that the witness identifies his own apartment on it, and its provenance is clear. The Prosecution has demonstrated how and where the location identified on the map fits into its case. The map is accordingly admissible into evidence under Rule 154.

(iv) Satellite photographs of Lebanon

81. The Prosecution also seeks to tender high resolution photographs of areas of Lebanon taken on specific dates in 2004 and 2005. The areas are relevant to the Prosecution case because Mr Hariri travelled there, they are related to the Accused, or network telephones, as alleged in the consolidated indictment, operated there.111 The Prosecution acquired the photographs from European Space Imaging GmbH, a supplier of global very high-resolution satellite imagery. The Prosecution submits



111 Prosecution motion, para. 30; consolidated indictment, paras 14-15.

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that the photographs’ technical information includes details on the processing they have undergone, and how and when the photographs were taken.112

82. The Trial Chamber is satisfied of the photographs’ relevance and probative value in the context of the Prosecution’s intended use of locations to map out various elements of its case. The Prosecution has also demonstrated the photographs’ prima facie reliability, and how and where they fit into its case. They are accordingly admissible under Rule 154.

CONFIDENTIALITY

83. Because they contain confidential witness information, the Prosecution seeks to maintain the confidential status of the annexes to its motion.113 The Trial Chamber reiterates the public nature of these proceedings and orders the Prosecution either to file a public redacted version of the annexes or have them reclassified as public.

GENERAL REMARKS

84. The Trial Chamber again reminds the Parties of the importance of communicating and reaching agreement on matters that are not in dispute.114 It appears that several issues, the subject of this motion, such as the address of Al Jazeera and Reuters in Beirut, are not in dispute. The Trial Chamber strongly encourages the Parties to reach agreement out-of-court on these issues.

112 Prosecution motion, para. 31; Annex B, line 4.


114 See e.g, F2037, Decision on Prosecution Motion to Admit under Rule 155 the Statements of 13 Witnesses in relation to Telephone Distribution and Subscription, 30 June 2015, paras 40-41.

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DISPOSITION


GRANTS the Prosecution leave to amend its exhibit list by adding the statements of Witnesses PRH065, PRH263, PRH400 and PRH539 and the satellite photographs by European Space Imaging GmbH;

DENIES the Prosecution leave to amend its exhibit list to add the statements of Witnesses PRH075 and PRH087;

DECLARES admissible under Rule 155 the statement of Witness PRH550;

DECLARES admissible in part under Rule 155 (C) the statements of Witness PRH263, PRH312, PRH400, invites the Prosecution to resubmit them without their irrelevant parts, and requires the Prosecution to make Witnesses PRH312 and PRH400 available for cross-examination under Rule 156;

DECLARES admissible under Rule 155 (C) the statements of Witnesses PRH065, PRH420, PRH539, and PRH583 and requires the Prosecution to make them available for cross-examination under Rule 156;

DECLARES admissible under Rule 156 the statement of Witness PRH009;

DENIES the Prosecution’s request to admit under Rule 155 the statements of Witnesses PRH012, PRH020, PRH063, PRH075, PRH087 and PRH553;

DECLARES admissible under Rule 154 the Samino Jewellery business card, the extract of the letter from the Special Investigation Commission of the Banque du Liban to the Special Tribunal’s Prosecutor, the map marked by Witness PRH089, and the satellite photographs by European Space Imaging GmbH;

DECIDES that it will, at a suitable stage in the proceedings, formally admit the statements and exhibits into evidence;

ORDERS the Prosecution to file a public redacted version of the annexes to its motion or have them reclassified as public; and

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ORDERS that the Sabra Defence Addendum to Response to Prosecution Motion for the Admission of Locations Related Evidence, be made public upon the completion of the evidence of Witnesses PRH312, PRH400, PRH539 and PRH583.






Title: Decision Denying Certification to Appeal the Trial Chamber’s Decision on Issuing a Summons to Witness 012

Short title: Denial of Certification to Appeal Summons TC

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Date: 10 July 2015


Classification: Confidential*

THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION DENYING CERTIFICATION TO APPEAL THE TRIAL CHAMBER’S DECISION ON ISSUING A SUMMONS TO WITNESS 012

Office of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneVictims’ Legal Representatives: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-AbusamraWitness 012: Mr Geoffry Robertson & Mr Toby Collis, instructed by Mark Stephens, Elizabeth Morley of Howard Kennedy LLP, with Gail Grove, Chief Counsel, Reuters News, Thomson Reuters


* Made public by Trial Chamber’s order.

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Denial of Certification to Appeal Summons TC

INTRODUCTION AND PROCEDURAL HISTORY

1. The Trial Chamber, on 1 July 2015, issued a summons to a witness, Witness PRH012, to appear to testify in the trial. In its decision, the Trial Chamber decided that the qualified privilege that, in some limited circumstances, excuses ‘war correspondents’ from testifying in international trials—as found in a decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY)—did not apply to this witness.1 Witness PRH012 seeks certification to file an interlocutory appeal, under Rule 126 (C) of the Special Tribunal’s Rules of Procedure and Evidence, against this decision.2 The Prosecution opposed the application.3

2. The brief procedural history is that the Prosecution sought a summons for Witness 012 to appear to testify.4 At the Trial Chamber’s invitation, Witness 012 filed submissions opposing the summons. She did so on the basis of this ‘war correspondent’s’ privilege.5 The Prosecution filed a reply,6 and the Trial Chamber issued its decision on 1 July 2015.7 This summons was served on Witness 012 on 4 July 2015 at her office.8

3. Witness 012 wrote to the Special Tribunal’s Registrar on 8 July 2015, requesting an extension of time to seek certification to appeal the decision ordering

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F2040, Decision on Prosecution Application for a Summons to Appear for Witness 012 and Order Issuing a Summons for a Witness, 1 July 2015.

2 F2059, Application for Certification for the Appeal of the Trial Chamber’s Decision Dated 1 July 2015, pursuant to Rule 126, 8 July 2015.

3 F2065, Prosecution Response to “Application for Certification for the Appeal of the Trial Chamber’s Decision Dated 1 July 2015, pursuant to Rule 126”, 10 July 2015. As the witness was ordered to appear to testify on 14 July 2015, the Trial Chamber shortened the deadline to respond to this application. Email from Trial Chamber’s Senior Legal Officer to counsel, 8 July 2015.

4 F1966, Application for a Summons to Appear in respect of Witness PRH012, 26 May 2015.

5 F2019, Written Submissions on Behalf of Witness 012 in Opposition to the Prosecutor’s Application dated 26 May 2015 for a Summons to Appear, 21 June 2015.

6 F2027, Prosecution Submissions on ‘Written Submissions on Behalf of Witness 012 in Opposition to the Prosecutor’s Application dated 26 May 2015 for a Summons to Appear’, 25 June 2015.

7 Witness 012 sent a reply to the Prosecution submissions on 3 July 2015, but this was not filed before the Trial Chamber because leave had not been sought under Rule 8 (B) to file a reply and the Trial Chamber had already issued its decision. Application for certification, para. 3.

8 Application for certification, para. 4.

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the summons, but before the Trial Chamber had could decide this issue, filed her application.9

THE LEGAL PRINCIPLES FOR CERTIFICATION FOR APPEAL

4. Rule 126 (C), ‘Motions Requiring Certification’, requires the Trial Chamber to certify a decision for interlocutory appeal:

if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which an immediate resolution by the Appeals Chamber may materially advance the proceedings.

5. The Trial Chamber must be satisfied that an issue for certification meets the Rule’s strict requirements.10 This high threshold means certification for appeal is exceptional.11 A request for certification is concerned not with whether a decision was correctly reasoned or not but solely whether the challenged decision involves a precise issue, with an adequate legal or factual basis in the decision, which meets the requirements of Rule 126 (C).12 Judicial economy dictates that appeals on issues not meeting this threshold are heard, if necessary, once the Trial Chamber has rendered its judgment on the merits.13

9 Application for certification, para. 5. Witness 012 states that, having not heard from the Trial Chamber, she filed her application at 15:45, London time. The Trial Chamber was still in session and only adjourned at 16:47, Leidschendam time. Transcript of 8 July 2015, p. 107.

10 STL-11-01/PT/AC/AR90.2, F0007, Decision on Defence Appeals against Trial Chamber’s “Decision on Alleged Defects in the Form of the Amended Indictment”, 5 August 2013, para. 7 and references therein.

11 STL-11-01/PT/AC/AR126.2, F0008, Decision on Appeal against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor, 13 November 2012, para. 11 and references therein.

12 Decision on Appeal on Absence of Authority of the Prosecutor, paras 13-15 and references therein.

13 STL-11-01/PT/AC/AR126.1, F0012, Corrected Version of Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, 1 November 2012, para. 11.

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SUBMISSIONS

6. Witness 012 submits, without citing any of the Special Tribunal’s case law on certification for an interlocutory appeal, that a number of ‘issues’ involved in the decision merit appellate consideration. She does not, however, articulate a precise certifiable issue or a question to submit to the Appeals Chamber.

7. She argues, first, that Rule 126 applies to the application for a summons. She submits that ‘the rules of the SLA [meaning, presumably, the Special Tribunal for Lebanon, or, as commonly abbreviated, ‘the STL’] do not foresee interlocutory appeals by third parties’ but such appeals could be made through direct application to the Appeals Chamber—as in the matter of El Sayed14—or, applying the ICTY’s case law, by holding that Rule 126 applies to applications for summons.15 Witness 012 then argues that this very issue itself requires certification, namely, ‘whether there is a route, under Rule 126 or the inherent jurisdiction, for the Appeal Chamber to hear an appeal against a decision that impacts on the rights of a third party to the trial.’ This issue, according to the witness, may arise in future summons or in the contempt proceedings. The overall fairness of the trial would be affected if there is no avenue for appeal against decisions affecting the rights of third parties.16

8. Second, Witness 012 argues that the decision involves the issue of the correct interpretation of Rules 149 (C), 154 and 155.17 She reiterates the Prosecution’s lack of opposition to the Trial Chamber receiving Witness 012’s evidence under Rule 155, and asserts (but incorrectly repeating her earlier submissions),18 that no inquiry

14 STL, CH/AC/2010/02, In the matter of El Sayed, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010.

15 Application for certification, para. 6. See ICTY, Prosecutor v. Radoslav Brđanin and Momir Talić, IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002.


17 Rule 149 (C) states: ‘A Chamber may admit any relevant evidence which it deems to have probative value’. Rule 154 states: ‘Subject to Rules 155, 156 and 158, the Trial Chamber may admit evidence in the form of a document or other record, consistently with Rules 149 (C) and (D)’. Rule 155 states: ‘Subject to Rule 158, the Trial Chamber may admit in lieu of oral testimony the evidence of a witness in the form of a written statement […] which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment’.

18 Application for certification, para. 12. See also Decision of 1 July 2015, para. 16 (stating that Defence counsel have informed the Prosecution that they wish to cross-examine Witness 012 when she testifies).

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has been made of the Defence to see whether they have relevant questions for her on cross-examination.

9. Article 19 of the Statute of the Special Tribunal19 controls the interpretation of the Rules relating to evidence, and, according to Witness 012, requires that the Trial Chamber receive evidence collected by Lebanese authorities or the United Nations International Independent Investigation Commission (UNIIIC). Because she made statements, including at least one sworn statement to the Lebanese authorities, and then to the UNIIIC, the Trial Chamber should admit these into under Rules 149 (C) and 154. This interpretation ‘is a matter appropriate for appellate consideration’ because the ready admissibility of investigative material ‘would assist the fair and expeditious proceedings’.20

10. Third, Witness 012 submits that the Trial Chamber erred in interpreting what constitutes ‘the acts and conduct of the Accused’ under Rule 155. She contends that ‘as charged in the indictment’ in that Rule means that the acts and conduct must amount to a crime. This interpretation is likely to recur and thus affects the fair and expeditious conduct of the proceedings.21

11. Fourth, Witness 012 argues that the Trial Chamber incorrectly determined that she was not a ‘war correspondent’ and that Lebanon was not a ‘conflict zone’ in 2005. The relevant time in determining whether Lebanon is a conflict zone, according to the witness, is 2015. She makes no submissions, however, on how this affects the fair and expeditious conduct of the proceedings, or that immediate resolution by the Appeals Chamber is required.

12. Finally, she submits that the Trial Chamber erred when it did not refer to the statement of Mr Thomas Perry, the Reuters’ Bureau Chief of Lebanon, Syria

19 Which states: ‘Evidence collected with regard to cases subject to the consideration of the Special Tribunal, prior to the establishment of the Tribunal, by the national authorities of Lebanon or by the International Independent Investigation Commission in accordance with its mandate as set out in Security Council Resolution 1595 (2005) and subsequent resolutions, shall be received by the Tribunal. Its admissibility shall be decided by the Chambers pursuant to international standards on the collection of evidence. The weight to be given to any such evidence shall be determined by the Chambers’.



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and Jordan, that was annexed to her submissions. His evidence was relevant to determining whether Lebanon is a conflict zone and the witness’s views on threats to her safety and professional reputation from testifying. She is entitled to have this evidence evaluated and appellate evaluation on these issues ‘may assist in future cases’.22

13. Witness 012 also requests the Trial Chamber to suspend the summons for her appearance pending determination of these issues on appeal.23

14. The Prosecution sought the dismissal of the application, arguing that Witness 012 is not authorised to request certification under Rule 126. The Rule does not apply to third parties, as seen by the word ‘a Party’ in Rule 126 (E), which is defined in Rule 2 as ‘The Prosecutor or the Defence’. The case law of the ICTY is irrelevant and non-binding, and the Special Tribunal’s Appeals Chambers’ decision in El Sayed is irrelevant as concerned a Prosecution appeal and not one by a third party. This issue also does not arise from the Trial Chamber’s decision, which only concerned the Prosecution’s request for a summons and not whether third parties may appeal Trial Chamber decisions.24

15. Further, Witness 012 does not identify any issues meeting the threshold requirements of Rule 126. The issues raised in the application do not arise from the Trial Chamber’s decision, go to the general interpretation of the Statute, Rules and legal principles, and are either based on mere disagreements with the reasoning of the Trial Chamber, or on a mischaracterization of the Trial Chamber’s decision. Witness 012, therefore, has not identified any issues that affect the fair and expeditious conduct of the proceedings that require immediate resolution by the Appeals Chamber.25



24 Prosecution response, paras 2, 8-13, 16.


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DISCUSSION

16. The Special Tribunal’s Rule 126 is identical to the same Rules concerning certification at the ICTY and the International Criminal Court.26 The Trial Chamber is prepared to construe Rule 126 liberally, in this particular case, and to follow the ICTY precedent in Brđanin, in certifying an issue for interlocutory appeal where the interests of third parties are affected.27

17. However, this finding precludes her first issue from being certified. Having decided that the Trial Chamber can certify an issue for interlocutory appeal under Rule 126, an Appeals Chamber determination on this issue could not materially advance the proceedings. This submission is dismissed.

18. The second issue identified—whether Article 19 controls the interpretation of Rules 149 (C), 154 and 155—relies on an incorrect analysis of Article 19. Witness 012 suggests that Article 19 requires the automatic admission into evidence of everything collected by the Lebanese authorities or UNIIIC. But if accepted, this reading would seriously infringe upon the rights of the Accused to a fair trial. Article 19 simply provides that the Prosecution receives all of the evidence collected, and, as is plainly stated, that the Trial Chamber will determine admissibility and weight independently. This ‘issue’ cannot arise from the Trial Chamber’s decision: the statements to Lebanese authorities and UNIIIC were provided to the Prosecution, and, as Witness 012 submitted, ‘[t]here has been no suggestion that international standards on the collection of evidence were not met in the collection of these witness statements’.28 Article 19 has no bearing on Rules 149 (C), 154 or 155. Therefore, there is no appealable issue which would affect the fair and expeditious conduct of the trial or requires immediate resolution.

19. Similarly, Witness 012’s third issue concerning the acts and conduct does not affect the fair and expeditious conduct of the proceedings. Witness 012 cites no

26 ICTY, Rule 73 (B); ICC, Rome Statute, Article 82 (1) (d). See also Special Court for Sierra Leone, Rule 73 (B); International Criminal Tribunal for Rwanda, Rule 73 (B).

27 ICTY, Prosecutor v. Radoslav Brđanin and Momir Talić, IT-99-36-T, Decision to Grant Certification to Appeal the Trial Chamber’s ‘Decision on Motion to Set Aside Confidential Subpoena to Give Evidence’, 19 Juny 2002.

28 Application for certification, para. 12 (emphasis in the original).

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authority for her interpretation and merely asserts that this interpretation may come up again so ‘it would contribute to the fair and expeditious conduct of the proceedings to have it settled by the Appeals Chamber’. But this is not the test. Rule 126 does not allow certification merely to settle a disputed interpretation. An identified issue must affect the fair and expeditious conduct of the proceedings and resolution by the Appeals Chamber must materially advance the proceedings. Witness 012 has not demonstrated how the Trial Chamber’s interpretation rises to the level of significantly affecting the fair and expeditious conduct of the proceedings.

20. On the issue of the ‘war correspondent’s privilege’, Witness 012 merely disagrees with the Trial Chamber’s decision. She makes no submissions either on how the Trial Chamber’s interpretation affects the fair and expeditious conduct of the proceedings or on how immediate resolution by the Appeals Chamber would materially advance the proceedings. Mere disagreement with the reasoning of the Trial Chamber does not rise to a certifiable issue. Witness 012 has not demonstrated that the Trial Chamber’s decision that she was not a war correspondent and Lebanon was not a conflict zone in 2005 affects the fairness or expeditious conduct of the proceedings.

21. Finally, the fact that the Trial Chamber’s decision did not explicitly refer to the statement of Mr Thomas Perry, Witness 012’s employer at Reuters in Beirut, is not an error that can of itself be certifiable. The Trial Chamber is not obliged to cite everything placed before it by a Party. Particularly if it is not helpful. Nothing in Mr Perry’s statement or the other documents annexed to Witness 012’s submissions suggested that Mr Perry was qualified to provide an opinion on conflict zones, nor specifically, whether Lebanon, in February 2005, was in a state of conflict. This does not significantly affect the fair and expeditious conduct of the proceedings.

22. Moreover, Witness 012’s submission that ‘an appellate court evaluation of […] whether Lebanon is (or was) a conflict zone may assist in future cases’ is irrelevant. The Special Tribunal is not applying international humanitarian law, which requires the existence of an armed conflict. The Trial Chamber applies the substantive criminal laws of Lebanon and, procedurally, the Special Tribunal’s Rules of Procedure and

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Evidence.29 A determination of whether Lebanon was a conflict zone has no bearing on either. The standard for certification is not whether it may assist future cases to have an Appeals Chamber determination, but whether there is an issue that affects the fair and expeditious conduct of the proceedings for which immediate resolution by the Appeals Chamber would materially advance the proceedings.

23. Witness 012 neither identified any issue that affects the fair and expeditious conduct of the proceedings and requires immediate resolution by the Appeals Chamber nor formulated any question for certification for interlocutory appeal. The application for certification is therefore dismissed.

24. Having found no appealable issue in Witness 012’s submissions, there is no need to consider whether to suspend the effect of the summons. It remains in force.

CONFIDENTIALITY

25. The Trial Chamber reiterates the public nature of these proceedings. This decision is filed confidentially only pending an application for protective measures. Otherwise it will be reclassified as public. The Parties must file publicly redacted versions of their filings, or their filings will be reclassified as public.

29 See, STL-11-01/I/AC/R176bis, F0936, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging with corrected front page, 16 February 2011.

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DISPOSITION


DISMISSES the application.





Before: Appeals Chamber

Title: Decision on Appeal by Counsel for Mr Oneissi Against the Trial Chamber’s Decision on the Legality of the Transfer of Call Data Records

Short title: Transfer of CDRs AC

Transfer of CDRs AC (Opinion of Judge Riachy)

Transfer of CDRs AC (Opinion of Judge Baragwanath)

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THE APPEALS CHAMBERCase No.: STL-11-01/T/AC/AR126.9

Before: Judge Ivana Hrdličková, Presiding Judge Ralph Riachy Judge David Baragwanath Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko


Date: 28 July 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

DECISION ON APPEAL BY COUNSEL FOR MR ONEISSI AGAINST THE TRIAL CHAMBER’S DECISION ON THE LEGALITY OF THE

TRANSFER OF CALL DATA RECORDS

Office of the Prosecutor: Mr Norman FarrellHead of Defence Office: Mr François RouxLegal Representatives of Participating Victims: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra


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HEADNOTE*1

Defence Counsel for the five Accused in this case have challenged the admission of call sequence tables (“CSTs”) that the Prosecution seeks to admit into evidence. The Prosecution created the CSTs using the call data records (“CDRs”) pertaining to every mobile phone call and text message in Lebanon between 2003 and 2010. The CDRs were transferred from Lebanese telecommunications providers to the United Nations International Independent Investigation Commission (“UNIIIC”) and the Tribunal’s Prosecution. The CDRs are so-called metadata; that is, they do not contain the content of any communications but rather provide information about the communications, such as the source and destination phone numbers, the type of communication, the date and time of the calls and text messages, the duration of the calls and other relevant information. The CSTs present in an accessible form the metadata/CDRs of specific mobile phones that the Prosecution alleges belonged to the Accused.

In its Decision, the Trial Chamber did not rule on the admissibility of the CSTs, deferring that matter to such time that the Prosecutor has presented witness testimony about the collection, retrieval and storage of the CDRs and the production of the CSTs. However, it held that while the collection of telephone metadata may constitute a restriction on the right to privacy, the transfer of the CDRs was neither unlawful nor arbitrary. This was because Security Council Resolutions 1595 and 1757 establishing the UNIIIC and the Tribunal provided the necessary legal authorization for the transfer. Moreover, the transfer was necessary and proportionate to the legitimate aim of investigating the attack of 14 February 2005.

The Trial Chamber certified two issues for appeal under Rule 126(C). They are: 1) did the Trial Chamber err in concluding that the UNIIIC and the Prosecutor could legally request and obtain CDRs from Lebanese telecommunications companies without either Lebanese or international judicial authorization?; and 2) did the Trial Chamber err in concluding that the absence of judicial control does not violate any

* This Headnote does not constitute part of the decision of the Appeals Chamber. It has been prepared for the convenience of the reader, who may find it useful to have an overview of the decision. Only the text of the decision itself is authoritative.

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international human rights standard on the right to privacy, justifying the exclusion of the call data records under Rule 162?

Counsel for Mr Oneissi filed an appeal, arguing that the Trial Chamber erred in concluding that the CDRs had been lawfully disclosed to the UNIIIC and the Prosecution; that the transfer of the CDRs should have been authorized by an independent (judicial) authority, be it Lebanese or international, and that the absence of such controls resulted in a violation of international human rights standards, in particular the right to privacy, which warranted exclusion of the evidence under Rule 162.

The Appeals Chamber dismisses the appeal with respect to both the First and Second Certified Issues.

Under the First Certified Issue, the Appeals Chamber holds that the Trial Chamber was correct in finding that the UNIIIC and the Prosecutor could legally request and obtain the CDRs without judicial authorization because such authorization was not required under their respective governing legal instruments. The Appeals Chamber notes that the Security Council Resolutions establishing the UNIIIC and the Tribunal did not demonstrate any intention on the part of the Security Council to subject the UNIIIC or the Prosecution to the jurisdiction of judicial or other authorities in their investigative endeavours. The Lebanese government requested the establishment of both the UNIIIC and the Tribunal precisely to create independent external organs to conduct investigations into the attack of 14 February 2005 and others of a similar nature without interference.

With respect to the Second Certified Issue, the Appeal Chamber holds that there is a compelling case as to the CDRs protection by international standards on the right to privacy. However, it concludes that the transfer of the CDRs in the absence of judicial control did not violate the right to privacy in this case because their transfer was provided for by law, necessary and proportionate. The Appeals Chamber notes that judicial authorization is but one means of ensuring that restrictions on the right to privacy remain proportionate. In this respect, the precise requirements necessary to adequately safeguard human rights depend on the circumstances of each case.

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Here, the collection of the CDRs was lawfully carried out, not by any State, but by Lebanese companies—which were also responsible for the storage of the CDRs—for billing and customer management purposes. The CDRs were not collected and stored for the purpose of investigating future indeterminate and unspecified criminal conduct. Instead, the transfer of the CDRs took place for the investigation of concrete and specific crimes whose execution had already taken place. Furthermore, the CDRs are not accessible to any authority or State who may have cause to use such information for a variety of ends which are not generally disclosed to the wider public. They are strictly confined to a limited number of individuals and used only for the purpose of determining who carries responsibility for the attack of 14 February 2015 and others of a similar nature. As a result, the absence of judicial control did not violate any international human rights standards, justifying the exclusion of the CDRs under Rule 162.

Judge Riachy concurs with the result but—as regards the Second Certified Issue—for different reasons. Judge Baragwanath dissents with respect to the reasoning and result of the decision.

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INTRODUCTION

1. Counsel for Mr Oneissi have filed an appeal1 against the Trial Chamber’s “Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution”.2 In the Impugned Decision, the Trial Chamber made a preliminary ruling on five requests from the Prosecutor seeking the admission of evidence pertaining to the alleged use of telephone networks by the Accused in this case. It held that this evidence did not fall under Rule 162 of the Rules of Procedure and Evidence (“Rules”),3 which requires the exclusion of evidence that was “obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings […][,] [i]n particular, […] if it has been obtained in violation of international standards of human rights […]”.

2. Counsel for Mr Oneissi seek to have the Impugned Decision set aside and for this Chamber to order the exclusion of the material that the Prosecution ultimately seeks to admit into evidence.4 However, we hold that neither Lebanese nor international judicial authorization was required for the material to be transferred to the United Nations Independent Investigation Commission (“UNIIIC”) or the Office of the Prosecutor (“Prosecution”). Further, we find, Judge Riachy concurring in the result, but for different reasons, that in the specific circumstances of this case the absence of judicial control over the transfer of the material did not violate international human rights standards. Judge Baragwanath dissents with respect to the reasoning and result of this decision in its entirety.

1 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.9, F0003, Appeal of the “Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution”, with Public and Confidential Annexes, 3 June 2015 (“Appeal”).

2 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1937, Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution, 6 May 2015 (“Impugned Decision”).

3 Impugned Decision, Disposition, p. 36.

4 Appeal, paras 105, 109.

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BACKGROUND

3. The present appeal concerns call data records (“CDRs”) with respect to every mobile phone call made and text message sent in Lebanon between 2003 and 2010.5 As discussed by the Trial Chamber, the CDRs are so-called metadata; that is they do not contain the content of any communications6 but rather provide information about the communications, such as the source and destination phone number, the type of communication (phone call or text message), the date and time of phone calls and text messages, the duration of phone calls, the IMEI number7 of the hand set relevant to the communications, and the cell sectors8 engaged at the beginning and end of a call.9

4. The CDRs were obtained by the UNIIIC, and later by the Prosecution, either directly from the three telephone communications providers that operate in Lebanon (Ogero, MTC and Alfa)10 or pursuant to Requests for Assistance through the Lebanese authorities.11

5 Id. at paras 8, 13.

6 We note that the CDRs, as defined in the Impugned Decision, did not include the content of the communications (see Impugned Decision, para. 2.)

7 The International Mobile Station Equipment Identity (“IMEI”) is a unique number that every mobile phone handset possesses (see Impugned Decision, fn. 13 (citing STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1876, Decision on Three Prosecution Motions for the Admission into Evidence of Mobile Telephone Documents, 6 March 2015, para. 9, fn. 28)).


9 Appeal, para. 14; STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.9, F0006, Prosecution Response to the Oneissi Defence “Appeal of the ‘Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution’”, 15 June 2015 (“Response”), para. 7.

10 These Lebanese telephone communications providers generated and stored the CDRs in the ordinary course of their business for billing and customer management purposes.

11 See STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1831, Prosecution Motion for the Admission of Red Network-Related Call Sequence Tables and Related Statements, 28 January 2015 (“Red Network Motion”), para. 28; STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1832, Prosecution Motion for the Admission of Green Network Related Call Sequence Tables and Related Statement, 29 January 2015, para. 25; STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1836, Prosecution Motion for the Admission of Purple Phone Related Call Sequence Tables, 30 January 2015, para. 29; STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1837, Prosecution Motion for the Admission of Blue Network-Related Phone Call Sequence Tables and Related Statements, 2 February 2015, para. 25; STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1840,

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5. From the raw data comprising the CDRs, the Prosecution produced what it refers to as call sequence tables (“CSTs”), which allow for the presentation and analysis of the data.12 In five separate motions filed before the Trial Chamber, the Prosecution sought the admission into evidence of the CSTs pertaining to five different groups of mobile telephones—the Prosecution refers to them as the “red”, “green”, “purple”, “blue” and “yellow” telephone networks.13 The Prosecution alleges that these telephones were used by the Accused and others in the attack of 14 February 2005 from which the charges in the consolidated indictment arise.

6. Counsel for each of the Accused opposed the admission of the CSTs, on different grounds. Counsel for Mr Oneissi, in particular, argued before the Trial Chamber that the CDRs were collected, used and retained illegally in violation of international human rights standards; that the admission of the CSTs would damage the integrity of the proceedings; and that they should therefore be excluded from evidence pursuant to Rule 162 of the Rules.14

7. In the Impugned Decision, the Trial Chamber did not make an ultimate finding on the admissibility of the CSTs. This issue was deferred until such time that the Prosecution have called at least one witness to testify as to the collection, retrieval and storage of the CDRs, and the production of the CSTs.15 However, the Trial Chamber did rule on whether the underlying CDRs were obtained legally by the UNIIIC and the Prosecution.16 It held that while “the collection of telephone data may constitute a restriction on the right to privacy, […] the transfer of the legally-collected call data records to the UNIIIC and the Prosecution was neither unlawful nor arbitrary, [and]

Prosecution Motion for the Admission of Yellow Phone Related Call Sequence Tables and Related Statement, 3 February 2015, para. 26.

12 Red Network Motion, paras 4-5.

13 See above, fn. 11.

14 See STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1857, Oneissi Consolidated Response to the Prosecution Motions for the Admission of Call Sequence Tables, 16 February 2015; see also STL, Prosecutor v. Ayyash et al., STL11-01/T/TC, F1856, Badreddine Defence Consolidated Response to Five Prosecution Motions for Admission of Call Sequence Tables and Related Statements, 16 February 2015.

15 Impugned Decision, paras 68, 111-115.

16 Id. at paras 108-110.

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no violation of international standards on human rights has occurred”.17 The Trial Chamber stated that the two Security Council resolutions establishing the UNIIIC and the Tribunal provided the necessary legal authorization for the transfer of the CDRs, that the transfer was necessary and legitimate and that transferring the records and limiting access to them was proportionate to the legitimate aim of investigating the attack of 14 February 2005.18

8. Following a request by counsel for Mr Oneissi for certification, the Trial Chamber certified the following two issues for appeal:

Firstly, did the Trial Chamber err in concluding that the Commissioner of the United Nations International Independent Investigation Commission and the Prosecutor of the Special Tribunal for Lebanon could legally request and obtain call data records from Lebanese telecommunications companies Alfa and MTC without either Lebanese or international judicial authorization?

Second, did the Trial Chamber err in concluding that the absence of judicial control does not violate any international human rights standard on the right to privacy, justifying the exclusion of the call data records under Rule 162?19

9. On 26 May 2015, we granted counsel for Mr Oneissi’s request for an extension of time and ordered them to file any appeal by 3 June 2015, at 4 pm.20 We also granted an extension of the word limit for their appeal.21 The appeal was filed on 3 June 2015, at 9.47 pm.22 The Prosecutor filed his response on 15 June 2015.

17 Id. at para. 108 (emphasis in the original).

18 Id. at para. 109.

19 STL, Prosecutor v. Ayyash et al., STL-11-01, Transcript of 20 May 2015, p. 3 (EN). We note that, although the CDRs in this case as defined by the Trial Chamber do not include the content of the communications (Impugned Decision, para. 2), text message content stored by Lebanese telephone communications providers was also transferred to, and is in the possession of, the Prosecution (see Impugned Decision, para. 23, fns 155, 160). Because the Trial Chamber defined the CDRs as metadata, we consider that the content of any text messages transferred to the UNIIIC and the Prosecutor is not encompassed by the certified issues. Further, counsel for Mr. Oneissi have not referred to such material either in their submissions before the Trial Chamber or in their Appeal. We will therefore not consider the matter in the present case.

20 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/T/AC/AR126.9, F0002, Order on Request for Extension of Time and Word Limits for Filing of Interlocutory Appeal, 26 May 2015 (“Extension Order”).

21 Extension Order.

22 See E-Mail from CMSS to Appeals Chamber Legal Officer, 4 June 2015.

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DISCUSSION

I. Preliminary issues

A.Latefilingofappeal

10. We recall our previous finding that counsel for Mr Oneissi filed their appeal late.23 Despite our order that the appeal be filed no later than 3 June at 4 pm,24 it was submitted only at 9.47 pm that day. In response to our subsequent order that an explanation be provided to the Chamber,25 the Defence submitted that “[t]he late submission was the result of an administrative oversight” due to the absence of a team member but that the appeal “was nevertheless filed on 3 June 2015” and “respectfully request[ed] [our] indulgence”.26

11. Rule 9—which allows a Chamber, proprio motu or upon good cause shown, to recognize as validly done any act carried out after the expiration of a time limit—affords us broad discretion in deciding whether to accept or reject a filing that was submitted late.27 This includes, in the appropriate circumstances, the dismissal of an appeal.28 However, in these circumstances, we will not adopt that course of action since the delay was short, did not result in any prejudice to the Prosecutor, and the Prosecutor has not raised the matter as a ground for dismissal. Further, the issues in this appeal are of significant importance, as they go to the very heart of the case presented by the Prosecutor.

23 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.9, F0004, Order on Interlocutory Appeal, 4 June 2015 (“Order on Filing”), para. 1.

24 Extension Order, Disposition.

25 Order on Filing, Disposition.

26 STL, Prosecutor v. Ayyash et al., Case No. STL-11-01/T/AC/AR126.9, F0005, Defence for Hussein Hassan Oneissi Response to “Order on Interlocutory Appeal” of 4 June 2015, 5 June 2015, paras 3-5.

27 See also Art. 10 (2), Practice Direction on Filing of Documents Before the Special Tribunal for Lebanon, STL/PD/2010/01/Rev.2, 14 June 2013.

28 See ICTY, Prosecutor v. Haxhiu, IT-04-84-R77.5-A, Decision on Admissibility of Notice of Appeal Against Trial Judgement, 4 September 2008.

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12. However, we stress that “procedural time-limits are to be respected, and that they are indispensable to the proper functioning of the Tribunal and the fulfilment of its mission to do justice”.29 As we have held previously in a similar context, “[w]e will not further tolerate violations which run counter to the Tribunal’s mandate to administer justice fairly, efficiently and expeditiously.”30 In this context, we are not satisfied by counsel for Mr Oneissi’s explanation for the late filing based on the absence of a team member. We note that it is counsel who carry ultimate responsibility for the case, which includes compliance with the applicable time limits, and we recall their professional obligation to “be considerate of time constraints which they have agreed upon or which have been imposed by the Tribunal”.31

B.Scopeofthecertifiedissues

13. In his Response, the Prosecutor contends that the submissions by counsel for Mr Oneissi address matters that are above and beyond those certified for appeal by the Trial Chamber, in particular with respect to “whether CDRs fall within the right to privacy, the gathering and retention of the CDRs by the Lebanese telecommunications companies, and the necessity and proportionality of the collection of the CDRs by the UNIIIC and the OTP”.32 For that reason, the Prosecutor did not address them in his Response.33 Nevertheless, he requests to be heard on these matters should the Appeals Chamber consider these issues.34

14. As we have consistently held, where the Appeals Chamber is seized of an interlocutory appeal that requires prior certification, our jurisdiction is limited to

29 ICTR, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-A, Judgement (Reasons), 1 June 2001, para. 46 (referring to the ICTR).

30 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.2, F0007, Decision on Defence Appeals Against Trial Chamber’s “Decision on Alleged Defects in the Form of the Amended Indictment”, 5 August 2013 (“Indictment Appeal Decision”), para. 15.

31 Art. 49, Code of Professional Conduct for Counsel Appearing before the Tribunal, 28 February 2011.

32 Response, para. 13 (internal citations omitted).

33 Id. at para. 13.

34 Id. at para. 13, fn. 19.

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those issues that have in fact been certified.35 In the present case, there are two such issues: 1) whether the UNIIIC or the Prosecution could legally request and obtain CDRs from Lebanese telecommunications companies without judicial authorization; and 2) whether the absence of judicial control violates international human rights standards on the right to privacy, thereby triggering the CDRs exclusion pursuant to Rule 162.36

15. These certified issues make it plain that we are not seized of any matters concerning the collection and retention of CDRs by Lebanese telephone communications providers. That is a different and separate issue than the legality of the transfer of the CDRs to the UNIIIC or the Prosecution without judicial authorization, or any consequences flowing from the absence of such judicial control in light of international human rights standards. There is no discernible link between these certified issues and the conduct of the Lebanese telephone communications providers in collecting and retaining CDRs. We therefore agree with the Prosecutor that these arguments fall outside the scope of the certified issues. We accordingly do not consider them.37

16. The same, however, cannot be said with respect to the remainder of the Prosecutor’s objections. Indeed, the Trial Chamber’s grant of certification cannot be read in the narrow manner as the Prosecutor does. In particular, the second certified issue expressly refers to potential violations of “international human rights standard[s] on the right to privacy” in the transfer of the CDRs. It would be impossible to consider a possible violation of the right to privacy without first determining whether the material in question even implicates that right. Similarly, necessity and proportionality are core factors that must be considered when scrutinizing the acts

35 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, F0009, Decision on Appeal by Legal Representative of Victims Against Pre-Trial Judge’s Decision on Protective Measures, 10 April 2013 (“LRV Appeal Decision”), para. 22; STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.6, F0003, Decision on Appeal by Counsel for Mr Oneissi Against Pre-Trial Judge’s “Decision on the Oneissi Defence’s Request for Disclosure Regarding a Computer”, 12 May 2014, para. 11; STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.7, F0013, Decision on Appeal by Counsel for Mr Merhi Against Trial Chamber’s “Decision on Trial Management and Reasons for Decision on Joinder”, 21 May 2014, paras 13, 16.

36 See above para. 8.

37 See Appeal, paras 21-28.

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and conduct of authorities for adherence with international human rights standards, such as the right to privacy. Consequently, we will address arguments both on whether the CDRs fall under the right to privacy and whether any limitation on this right is necessary and proportionate if it is in fact affected.

17. Having held that these issues are properly before the Appeals Chamber and that we will accordingly address them, we must therefore dispose of the Prosecutor’s request that he be given a further opportunity to respond.38

18. We first recall that a party whose interests stand to be affected by a decision or judgment has the right to be heard before that decision or judgment is rendered.39 This principle—audi alteram partem—is recognized in Lebanon40 as in all legal systems that adhere to the rule of law. However, whether and to what extent a party chooses to exercise that right is a different question. Here, the Prosecutor identified certain matters which he believed fell outside the scope of the certified issues and therefore our jurisdiction. He then deliberately chose not to respond to them, thus foregoing the opportunity to address their substance in his Response.

19. Whilst the parties have the ultimate say on the content of their filings and their preferred strategy during litigation, they “must present their arguments in a concise and comprehensive manner”.41 This applies to responses. In this case, the Prosecutor did not do so. Contrary to what the Prosecutor suggests,42 it is not proper for any party to be afforded the opportunity—barring exceptional circumstances—to submit a supplemental filing on issues that it has identified but decided not to address.

20. In sum, we hold that it was incumbent upon the Prosecutor to raise any arguments on the right to privacy in relation to the CDRs in his Response. Given

38 Response, para. 13, fn. 19.

39 STL, In the matter of El Sayed, CH/AC/2013/01, Public Redacted Version of Decision on Appeal by the Prosecutor Against Pre-Trial Judge’s Decision of 11 January 2013, 28 March 2013, para. 6; LRV Appeal Decision, para. 28, fn. 64.

40 See Art. 372 and Art. 373, Lebanese Code of Civil Procedure.

41 Indictment Appeal Decision, para. 14 (emphasis added).

42 Response, para. 13, fn. 19.

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his decision not to do so43 and absent any exceptional circumstances, we deny the Prosecutor’s request for a further opportunity to be heard. We note in this regard that in any event, given the outcome of our decision, the Prosecutor does not suffer prejudice.

II. Standard of review

21. The Defence contends that the Trial Chamber committed legal errors that invalidate the Impugned Decision.44 We have previously adopted the following standard of appellate review applicable to alleged errors of law, informed by the jurisprudence of other international tribunals:

A party alleging an error of law must identify the alleged error, present arguments in support of its claim, and explain how the error invalidates the decision. An allegation of an error of law that has no chance of changing the outcome of a decision may be rejected on that ground. However, even if the party’s arguments are insufficient to support the contention of an error, the Appeals Chamber may still conclude, for other reasons, that there is an error of law. [...] The Appeals Chamber reviews the Trial Chamber’s findings of law to determine whether or not they are correct.45

22. We also recall that “not every error of law leads to a reversal or revision of a decision at first instance”.46

43 We also note that the Prosecutor did not, in his Response, exhaust the applicable word limit, which we had extended to 10,000 words, commensurate with the extension granted to counsel for Mr Oneissi (see Extension Order, para. 4).


45 See, e.g., LRV Appeal Decision, para. 19; see also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, F0020, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012 (“Jurisdiction Appeal Decision”), para. 10 (with reference to case-law of the ICTY, ICTR, SCSL and ICC).

46 LRV Appeal Decision, para. 20.

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III. Whether the Trial Chamber erred in concluding that the UNIIIC and the Prosecutor could legally request and obtain CDRs from Lebanese telecommunications companies Alfa and MTC without either Lebanese or international judicial authorization (“First Certified Issue”)

23. The Trial Chamber concluded that Security Council Resolutions 159547 and 1757,48 the Tribunal’s Statute and Rules, and the Memorandum of Understanding between Lebanon and the UN49 provided a sufficient legal basis for the transfer of the CDRs.50 As a result, neither the UNIIIC nor the Prosecution was required to seek judicial authorization from either Lebanese or international authorities.51 Additionally, with regard to Lebanese authorization, the Trial Chamber found that the Defence had not identified any Lebanese law requiring judicial control over the transfer of telecommunications metadata to the UNIIIC or the Prosecution.52 In any event, the Trial Chamber also held that, even if such a law existed, Lebanese oversight would undermine the independence and ability of the UNIIIC and the Prosecution in carrying out their investigations and mandates.53 The Trial Chamber further concluded that international authorization was not possible because the UNIIIC had no judicial competence and the Tribunal could have not performed this role as it was not established until 1 March 2009.54

24. In their appeal, counsel for Mr Oneissi submit that the Trial Chamber erred in finding that the interference with the privacy of the Accused and the Lebanese

47 SC Res. 1595, UN Doc. S/RES/1595 (7 April 2005) (“Resolution 1595”).

48 SC Res. 1757, UN Doc. S/RES/1757 (30 May 2007) (“Resolution 1757”).

49 See Letter from the Secretary General to the President of the Security Council, UN Doc. S/2005/393 (16 June 2005), annexing Memorandum of Understanding between the Government of the Republic of Lebanon and the United Nations regarding the Modalities of Cooperation for the International Independent Investigation Commission (“Memorandum of Understanding between Lebanon and the UN”).


51 Id. at para. 87.

52 Id. at para. 88.

53 Id. at para. 90.

54 Id. at para. 91.

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population was neither unlawful nor arbitrary.55 This was so regardless of whether the interference stemmed from a misinterpretation of the applicable law or from the absence of a law that was sufficiently accessible, clear and precise.56 Counsel contend that the transfer of the CDRs should have been subject to effective judicial control and authorized by either a Lebanese or international judge or by an independent body.57 Counsel further submit that the Tribunal cannot absolve itself of the requirement of judicial control by sheltering behind Security Council Resolutions 1595 and 1757.58

25. The Prosecutor responds that the First Certified issue concerns whether the UNIIIC and the Prosecution, in accordance with their respective legal frameworks, were required to seek prior judicial authorization to receive the CDRs.59 He further submits that counsel for Mr Oneissi have not identified any applicable provision in the legal framework governing the UNIIIC or the Prosecution’s collection of evidence that would require judicial authorization and control over the request for and transfer of the CDRs.60 The Prosecutor argues that neither the UNIIIC nor the Prosecution is bound by any Lebanese law that may apply to such a transfer.61

26. At the outset, we agree with the Prosecutor that the First Certified Issue solely concerns the legal framework that governed the UNIIIC and the Prosecution’s collection of evidence. This excludes broader considerations of international human rights law, in particular with respect to the right to privacy, which fall under the Second Certified Issue. Without such a distinction, the Trial Chamber’s clear separation between the two certified issues would become meaningless.

27. In the context of the UNIIIC, the applicable legal framework included Security Council Resolution 1595 and the Memorandum of Understanding between Lebanon and the UN. The Prosecution’s collection of evidence was governed by Security

55 Appeal, para. 8.

56 Id. at para. 9.

57 Id. at paras 8, 34-37, 40-45, 103.

58 Id. at para. 40.


60 Id. at paras 5, 24, 28.

61 Id. at paras 20-24, 27.

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Council Resolution 1757, the Memorandum of Understanding between Lebanon and the Prosecutor,62 and the Tribunal’s Statute and Rules. We must therefore analyse these legal instruments to ascertain whether they contained a requirement for the UNIIIC and the Prosecutor, respectively, to seek judicial authorization with respect to their investigative conduct.

28. Security Council Resolution 1595 established the UNIIIC as an “international independent commission […] to assist the Lebanese authorities in their investigation” of the attack of 14 February 2005.63 Under the express terms of the Resolution, the UNIIIC was given “full access to all documentary, testimonial and physical information and evidence in [the Lebanese authorities’] possession” and was vested with the authority to collect “any additional information and evidence, both documentary and physical” pertaining to the attack of 14 February 2005.64 The Security Council granted these powers to the Commission to ensure its “effectiveness in the discharge of its duties.”65

29. Likewise, the document annexed to Security Council Resolution 1757, which established the Tribunal with an independent Prosecutor,66 directed the Lebanese Government to “facilitate access of the Prosecutor and defence counsel to […]

62 Art. 4 of the Memorandum of Understanding between the Government of the Republic of Lebanon and the Office of the Prosecutor of the Special Tribunal of Lebanon regarding the Modalities of Cooperation between them, 5 June 2009 (“Memorandum of Understanding between Lebanon and the Prosecutor”).

63 Resolution 1595, para. 1 (emphasis added).

64 See in particular, Resolution 1595, para. 3: 3. Decides that, to ensure the Commission’s effectiveness in the discharge of its duties, the Commission shall:

– Enjoy the full cooperation of the Lebanese authorities, including full access to all documentary, testimonial and physical information and evidence in their possession that the Commission deems relevant to the inquiry;

– Have the authority to collect any additional information and evidence, both documentary and physical, pertaining to this terrorist act, as well as to interview all officials and other persons in Lebanon, that the Commission deems relevant to the inquiry;

– Enjoy freedom of movement throughout the Lebanese territory, including access to all sites and facilities that the Commission deems relevant to the inquiry;

– Be provided with the facilities necessary to perform its functions, and be granted, as well as its premises, staff and equipment, the privileges and immunities to which they are entitled under the Convention on the Privileges and Immunities of the United Nations[.]

65 Ibid.

66 Art. 11 (2) STL St.

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relevant documents required for the investigation”.67 Moreover, both the Statute and the Rules empower the Prosecutor to conduct investigations with the cooperation of the Lebanese and other authorities.68

30. Resolutions 1595 and 1757 were supplemented by the Memorandum of Understanding between Lebanon and the UN and the Memorandum of Understanding between Lebanon and the Prosecutor, respectively. Both memoranda underscore the independence of the UNIIIC and the Prosecutor, requiring the Lebanese government to guarantee that they are “free from interference in the conduct of [their] investigations”.69

31. None of these legal instruments demonstrate any intention on the part of the Security Council to subject the UNIIIC or the Prosecutor to the jurisdiction of any other authority in their investigative endeavours. Had the Security Council intended for either of these bodies to be subject to judicial control in the gathering of evidence (by the Lebanese judiciary or otherwise), it would have reflected such an intention in their constitutive documents. On the contrary, it is clear from the language of the relevant Security Council Resolutions and the Statute that the Security Council sought to exempt both the UNIIIC and the Prosecutor from the routine and complex

67 See, in particular, Resolution 1757, Annex – Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Art. 15(1):

The Government shall cooperate with all organs of the Special Tribunal, in particular with the Prosecutor and defence counsel, at all stages of the proceedings. It shall facilitate access of the Prosecutor and defence counsel to sites, persons and relevant documents required for the investigation.

68 See Resolution 1757, Annex – Statute of the Special Tribunal for Lebanon, Art. 11(5): The Office of the Prosecutor shall have the power to question suspects, victims and witnesses, to collect

evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor shall, as appropriate, be assisted by the Lebanese authorities concerned.

See Rule 16 (B) STL RPE: Where it appears to the Prosecutor that, for the purposes of investigations concerning the Hariri Attack or

any other attack that may fall within the Tribunal’s jurisdiction under Article 1 of the Statute, it is necessary to question witnesses, search premises, seize documents and other potential evidence, or undertake any other investigative measure in Lebanon, the Prosecutor may request the Lebanese authorities to conduct such measures or request permission to have his staff conduct such measures themselves, or a combination thereof.

See Rule 61 (iii) STL RPE: In the conduct of an investigation in relation to the Hariri Attack or any other attack that may fall within the

jurisdiction of the Tribunal under Article 1 of the Statute, the Prosecutor may […] seek the assistance of any State authority concerned as well of any relevant international body, including INTERPOL[.]

69 See Art. 3 of the Memorandum of Understanding between Lebanon and the UN and Art. 3 of the Memorandum of Understanding between Lebanon and the Prosecutor.

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procedures that would normally apply to the collection of evidence in Lebanon or other jurisdictions. The Rules are also devoid of any provision indicating the contrary.

32. Indeed, it would have defeated the purpose of the Security Council’s actions in establishing the UNIIIC and the Tribunal if authorization of another authority, judicial or otherwise, was required before the UNIIIC or the Prosecutor could obtain evidence. The Lebanese government requested the establishment of both the UNIIIC and the Tribunal precisely so as to create independent external organs to conduct the investigations.70 Requiring Lebanese or other outside involvement in the form of judicial authorization for the collection of evidence is difficult to reconcile with this intent. Undoubtedly, such involvement would have interfered with the conduct of the investigations by the UNIIIC and the Prosecutor.

33. With respect to the Prosecutor, requiring judicial authorization for his investigations would also undermine his independence as a separate organ of the Tribunal. Article 11 of the Statute provides that the Prosecutor “shall not seek or receive instructions from any Government or from any other source”.71 The judiciary of a State is part and parcel of its “Government”. While the Prosecutor may, no doubt, solicit assistance or cooperation from the Lebanese government, this is not the same as seeking and receiving instructions as a matter of obligation.

34. Furthermore, neither the UNIIIC nor the Prosecutor was bound by any Lebanese law regulating the transfer of CDRs. Security Council Resolution 1595 directed the UNIIIC to “determine procedures for carrying out its investigation, taking into account the Lebanese law and judicial procedures”.72 However, a requirement to take Lebanese law into account is not synonymous with being bound by Lebanese law. Any provision in Lebanese law requiring judicial control over telecommunications metadata could have guided the UNIIIC in its pursuit of appropriate investigative

70 See Letter dated 24 March 2005 from the Secretary General to the President of the Security Council, UN Doc. S/2005/293 (24 March 2005), annexing Report of the Fact-finding Mission to Lebanon inquiring into the causes, circumstances and consequences of the assassination of former Prime Minister Rafik Hariri, para. 52.

71 Art. 11 STL St.

72 Resolution 1595, para. 6.

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procedures, but it would not constitute part of the legal framework that the UNIIIC was obliged to follow.73

35. In this context, we note that Article 2 of the Memorandum of Understanding between Lebanon and the UN provided for Lebanese judicial officials to advise the UNIIIC on the “appropriate procedures for the collection of evidence in accordance with the Lebanese Law”.74 However, while this article gave the UNIIIC the discretion to seek assistance from the Lebanese judiciary, it did not oblige it to do so. Similarly, the Memorandum of Understanding between Lebanon and the Prosecutor provided for the possibility of the Prosecutor seeking assistance from the Lebanese judicial authorities,75 but did not mandate such a course. In any event, we note that these documents—which are supplemental in nature—cannot impose conditions that are not envisaged by the controlling language of the relevant Security Council resolutions.

36. In conclusion, we find that the Trial Chamber did not err in holding that the UNIIIC and the Prosecutor could legally request and obtain the CDRs without judicial authorization; such authorization was not required under their respective governing legal instruments. We therefore dismiss the appeal with respect to the First Certified Issue.

IV. Whether the Trial Chamber erred in concluding that the absence of judicial control does not violate any international human rights standard on the right to privacy, justifying the exclusion of the CDRs under Rule 162 (“Second Certified Issue”)

37. The Trial Chamber found that, although the collection of the CDRs may constitute a restriction on the right to privacy, it was neither unlawful nor arbitrary and

73 The Appeals Chamber agrees with the Trial Chamber’s finding at para. 88 of the Impugned Decision that Lebanese Law 140/99 applies to the interception of communications but does not extend to metadata. However, we also note the possible application of Art. 32 of Decree Law No. 127 “Post and Telecommunications – Telephone and Telex”, issued on 12 June 1959, to such information, but find it unnecessary to determine this issue given our conclusion that the UNIIIC was not and the Prosecutor is not subject to Lebanese law.

74 Art. 2 of the Memorandum of Understanding between Lebanon and the UN.

75 Art. 4 of the Memorandum of Understanding between Lebanon and the Prosecutor.

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did not violate international human rights standards.76 The Trial Chamber stated that it could not identify any specific international standard with respect to the transfer to an investigating agency of such metadata with or without judicial authorization.77 It nonetheless concluded that the UNIIIC and the Prosecutor are not free from judicial scrutiny as the Trial Chamber would assess the steps taken by these bodies to secure the CDRs when determining the admissibility of the CDRs and their by-product, the CSTs, under Rules 149 and 162.78

38. Counsel for Mr Oneissi contend that international human standards on the right to privacy required the transfer of the CDRs to be subject to judicial authorization by either a Lebanese or international judge or by an independent body.79 Citing both regional case-law and UN documents, counsel submit that in light of the information contained in the CDRs, the right to privacy is affected.80 Irrespective of the applicable law of the UNIIIC or the Prosecution, they argue that the absence of effective judicial control constituted a violation of international human rights standards.81 Consequently, the CSTs—which are derived from the CDRs—are liable to compromise and seriously undermine the integrity of the proceedings and should thus be ruled inadmissible under Rule 162.82 Finally, counsel conclude that the transfer of the CDRs was neither necessary nor proportionate because, among other things, they included the metadata of a significant number of persons for whom there was no suspicion of any criminal wrongdoing.83

39. The Prosecutor responds that, to succeed, counsel must demonstrate that international human rights standards can only be satisfied through prior judicial

76 Impugned Decision, para. 108; see also paras 85-86.



79 Appeal, paras 8, 40-45, 103.


81 Id. at paras 9, 46-94.


83 Id. at paras 95-103.

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authorization when accessing the CDRs.84 He submits that counsel for Mr Oneissi have not identified any authority for the proposition that international human rights standards require prior judicial control and authorization over access to CDRs and, as a result, the Impugned Decision should be upheld.85 In this respect, the Prosecutor argues that the State practice referred to by counsel for Mr Oneissi cannot adequately demonstrate the existence of an international standard on human rights.86 Furthermore, the Prosecutor stresses that the judicial review carried out by the Trial Chamber at the stage of the admission of evidence is an important human rights safeguard that enables the assessment of the legality of its transfer.87

40. We first note that the Second Certified Issue concerns the place and scope of international human rights standards on the right to privacy with respect to the transfer of the CDRs to the UNIIIC and the Prosecutor. It is therefore distinct from the First Certified Issue which addresses the question of whether there was a requirement for judicial authorization for the transfer of the CDRs under the relevant legal framework governing the establishment and operation of the UNIIIC and the Tribunal.88 As we have held above, there was no such requirement.89 Under the Second Certified Issue, we thus analyse whether the absence of such authorization was in violation of international human rights standards, justifying their exclusion from the Ayyash et al. trial proceedings. This is because Rule 162 prescribes that, among other things, “evidence shall be excluded if it has been obtained in violation of international standards on human rights”.

41. At the outset, we observe that the right to privacy is recognized in various modern international human rights documents,90 the Constitutions of numerous


85 Id. at paras 6, 32-40.

86 Id. at para. 39.

87 Id. at para. 36.

88 See above, para. 26.


90 The right to privacy is enshrined in Art. 17 of the International Covenant on Civil and Political Rights (“ICCPR”), a treaty to which Lebanon acceded in 1972. Art. 17 provides that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” Lebanon has also ratified the Arab

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States around the world,91 and has been found to exist even in Constitutions where it is not explicitly provided for.92 The Lebanese Constitution does not include a separate right to privacy. However, it makes express reference to the rights contained in the ICCPR and UDHR and includes the rights to liberty and freedom of expression,93 rights which protect similar values as the right to privacy.94 The right to privacy has similarly been considered in the jurisprudence of various international criminal tribunals.95 Given this widespread and consistent recognition, we agree with the Trial Chamber’s holding that “[t]he right to privacy undoubtedly forms part of ‘international standards on human rights’”96 which, as directed by Rule 162, are relevant to the present inquiry. As the Trial Chamber also correctly held, the right to privacy is not among those absolute rights from which no derogation is permitted; rather it can be restricted in accordance with human rights law.97

42. Nevertheless, despite this recognition, we must consider whether and to which extent the right to privacy is engaged: in this case, whether the CDRs collected by the Lebanese telecommunication companies and transferred to the UNIIIC and the Prosecutor fall within the ambit of this right. We recall that the CDRs do not reveal

Charter on Human Rights, Art. 21 of which provides that violation of the sanctity of private life, which includes the secrecy of correspondence and other forms of private communication, is a crime. Art. 12 of the Universal Declaration on Human Rights (“UDHR”) also protects the right to privacy. In 1948, Lebanon voted in favour of the adoption of the UDHR.

91 See, e.g., Art. 10 (1), Basic Law for the Federal Republic of Germany (1949); Art. 17 (1), Constitution of Iraq (2005); Art. 16, Constitution of Mexico (1917); Art. 2 (10), Constitution of Peru (1993); Section 14, Constitution of South Africa (1996); Art. 24, Constitution of Tunisia (2014); Art. 27 (2), Constitution of Uganda (1995); Art. 21, Constitution of Vietnam (1992).

92 This is the case, for example, in the United States (see United States, Supreme Court, Griswold v. Connecticut 381 US 479 (7 June 1965).

93 See Arts 8, 13 of the Lebanese Constitution.

94 See Report of the Office of the United Nations High Commissioner for Human Rights, The Right to Privacy in the Digital Age, UN Doc. A/HRC/27/37 (30 June 2014), para. 14 (“Report on the Right to Privacy in the Digital Age”).

95 See, e.g., ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007, paras 73-90; ICTY, Prosecutor v. Brđanin, IT-99-36-T, Decision on the Defence “Objection to Intercept Evidence”, 3 October 2003; ICTY, Prosecutor v. Karadžić, IT-95-5/18-T, Decision on the Accused’s Motion to Exclude Intercepted Conversations, 30 September 2010.


97 Id. at para. 84.

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the content of any communication. Rather, they are telecommunications metadata, which only reveal information about the circumstances of the communications, for instance the numbers called, the length of the calls, and the date and time of calls.98

43. We first note counsel for Mr Oneissi’s reliance on recent practice and case-law of a number of international bodies and courts to demonstrate that the CDRs—in light of the information they contain—should be subject to the same protections traditionally granted with respect to the content of communications.99 The Prosecutor, as discussed above,100 has not responded to this particular point. We also note the Trial Chamber’s holding that “international human rights standards are evolving to include legal protection of metadata such as call data records from unwarranted disclosure to governments and law enforcement agencies”.101

44. We are further cognizant of current trends and discussions surrounding the collection, storage and use of metadata. As the UN General Assembly and the Human Rights Council have recently pointed out, “certain types of metadata, when aggregated, can reveal personal information and can give an insight into an individual’s behaviour, social relationships, private preferences and identity”.102 Similarly, in Digital Rights Ireland, the Grand Chamber of the Court of Justice of the European Union (“CJEU”) declared an European Union data retention directive, which required telecommunications service providers to retain the telecommunications metadata of every EU citizen and to make this available to national security agencies for investigatory purposes, to be in violation of the right to privacy as found in Articles 7 and 8 of the EU Charter of Fundamental Rights. It reasoned that metadata allows:



100 See above, paras 13, 16-20.


102 UN General Assembly, The Right to Privacy in the Digital Age, A/Res/69/166 (10 February 2015) (“GA Resolution on Privacy”), Preamble, para. 15; Human Rights Council, The Right to Privacy in the Digital Age, A/HRC/28/L.27 (24 March 2015) (“HRC Resolution on Privacy”), Preamble, para. 15; see also Report on the Right to Privacy in the Digital Age, para. 19.

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very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.103

45. Indeed, as early as 1984, the European Court of Human Rights (“ECtHR”) found that communications data is “an integral element” of private communications under Article 8 of the European Convention on Human Rights.104 More recently, the Inter-American Court of Human Rights also found that the right to privacy protects metadata.105

46. While there are differences in approach taken by domestic courts,106 recent decisions in a number of jurisdictions have recognized that privacy protections extend to metadata.107

47. This jurisprudence provides strong indications that metadata—information concerning communications devoid of their content—is encompassed by the right to privacy. Consequently, since the CDRs at issue in this case comprise of such information, we find that there is a compelling case as to their protection by the right

103 CJEU, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources, et al., Judgment, C-293/12 and C-594/12, 8 April 2014 (“Digital Rights Ireland”), para. 27.

104 ECtHR, Malone v. UK, 8691/79, Judgment, 2 August 1984, para. 84; see also ECtHR, Weber & Saravia v. Germany, 54934/00, Judgment, 29 June 2006, para. 79.

105 IACtHR, Escher et al. v. Brazil, Judgment, 6 July 2009, para. 114. The IACtHR ultimately found the Brazilian surveillance law in question compliant with the right to privacy under Art. 11 of the American Convention on Human Rights.

106 We note that there is some domestic judicial authority for the proposition that the right to privacy does not protect metadata in certain contexts (see France, Cour de Cassation, No. 01-82578, 27 June 2001; United States, Court of Appeals – 11th Circuit, Unites States v. Davis, No. 12-12928, 5 May 2015; United States, Court of Appeals – 5th Circuit, In Re: Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 30 July 2013.

107 See Mexico, Supreme Court, Judgment of Contradicción de Tesis 194/2012, 10 October 2012; Canada, Supreme Court, R v. Spencer, 2014 SCC 43; US, District Court – District of Columbia, Klayman v. Obama, Civil Action No. 130851, 16 December 2013; Belgium, Cour Constitutionelle, Judgment, No. 84/2015, 11 June 2015; Argentina, Supreme Court, Halabi, Ernesto c/ P.E.N.- ley 25.783 - dto. 1563/04 s/amparo ley 16.986; Czech Republic, Constitutional Court, Judgment, Pl. ÚS 24/10, 22 March 2011, para. 44; Germany, Federal Constitutional Court, BVerfGE 125, 260 (319), 2 March 2010.

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to privacy.108 Having found that this right is affected, we proceed to consider whether international human rights standards require that their transfer to the UNIIIC and the Prosecutor was subject to independent oversight, judicial or otherwise.

48. We observe that international human rights law provides a universal framework against which any interference in privacy rights must be assessed.109 Although the right to privacy is not absolute, any limitation on this right must be provided for by law, be necessary for reaching a legitimate aim and be proportionate.110 Without satisfying these requirements, an interference with privacy would be arbitrary and unlawful.

49. We first consider whether the transfer of the CDRs was provided for by law.111 Under the applicable legal frameworks established by the Security Council by Resolutions 1595 and 1757, both the UNIIIC and the Prosecution were purposefully and expressly given a wide mandate to collect and transfer evidence of the criminal offences falling within their jurisdictions.112 In light of such language, we hold that this resolution and related instruments provided the necessary legal framework for both the UNIIIC and the Prosecutor within which they carried out their mandate and under which the transfer of the CDRs was carried out. It was therefore provided by law.113

50. An interference with a right will be considered “necessary” for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the

108 Judge Riachy dissents from this holding and the reasoning on which it is based.

109 GA Resolution on Privacy, Preamble, paras 12, 16, 17; HRC Resolution on Privacy, para. 12.

110 See Arts 4, 17 of the ICCPR; see also UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/13/37, 28 December 2009, para. 17.

111 Human Rights Committee, General Comment 16 – Article 17, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (29 July 1994), p. 21, para. 3.

112 See above, paras 27-30, fns 64-69.

113 We note that counsel for Mr Oneissi has not advanced any arguments with respect to the issue of whether the terms and language employed in the relevant frameworks of the UNIIIC and the Tribunal were sufficiently clear and precise so as to authorise the transfer of the CDRs at issue in this case.

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legitimate aim pursued.114 The principle of proportionality in that sense requires that limitations on a right must be: (1) appropriate to achieve their protective function, (2) the least intrusive instrument among those available to achieve the desired result, and (3) proportionate to the interest to be protected.115 Moreover, the limitation placed on the right must be shown to have some chance of achieving that goal and must not render the essence of the right meaningless.116

51. Here, the material objective for the establishment of the UNIIIC and the Tribunal—as expressed in the relevant Security Council Resolutions, the Tribunal’s Statute and other documents—was to ascertain the circumstances of, and those responsible for, the attack of 14 February 2005 as well as other similar terrorist attacks on Lebanese soil. The purpose of the investigation and prosecution of these crimes was to ensure, on behalf of the Lebanese people, that the alleged attackers were identified and tried in accordance with the law and that the truth concerning these events was revealed.117 In this way, respect for the rule of law in Lebanon would be fortified and ultimately result in the strengthening of the right to security of the Lebanese public.118 There can therefore be little doubt that the measures put in place were crafted so as to address a pressing social need in Lebanon. In light of these factors, we hold that the transfer of the CDRs—which formed part of the investigations in the attack of 14 February 2005 and others of a similar nature—was for a legitimate and genuine aim. Indeed, the Prosecutor now seeks to rely on the information gained from the CDRs as evidence to prove his case.

52. Notwithstanding, we must consider the proportionality of the transfer in light of the legitimate aims pursued. We have already noted that the right to privacy is not absolute. This means that it must be balanced with other competing rights and interests—such as the right of citizens to live in a stable environment free of crime

114 ECtHR, Uzun v. Germany, 35623/05, Judgment, 2 September 2010, para. 78.

115 Human Rights Committee, General Comment No. 27, CCPR/C/21/Rev.1/Add.9 (1999), para. 14; see also ECtHR, Handyside v. United Kingdom, 5493/72, Judgment, 7 December 1976, paras 48-49.

116 Report on the Right to Privacy in the Digital Age, para. 23.

117 See, e.g., UN Security Council, Report of the Secretary-General pursuant to paragraph 6 of Resolution 1644 (2005), UN Doc. S/2006/176 (21 March 2006), para. 13.

118 Ibid.

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and the interest of the state to ensure public security. One of those balancing factors may be a requirement to seek judicial authorization before accessing metadata.

53. We note in this regard the ECtHR’s holding in Klass, a case dealing with the surveillance of communications, that prior judicial authorization was desirable but not always necessary. This was particularly so where the relevant authorizing body was sufficiently independent of the authorities carrying out the surveillance and was also vested with sufficient powers and competence to exercise effective and continuous control.119 However, the ECtHR has subsequently emphasized the desirability of judicial authorization in the context of surveillance in Kopp120 as did the CJEU in Digital Rights Ireland where it struck down an EU data retention directive concerning metadata.121

54. We can glean from this case-law that prior judicial authorization would normally be desirable when granting access to metadata, such as the CDRs in this case. However, our analysis cannot stop here. Indeed, to require judicial authorization is not just a formality or an end in itself. In particular, we do not understand these decisions to demand judicial authorization as an absolute necessity whose absence would ipso facto result in the violation of international human rights standards. Rather, judicial authorization is but one means of ensuring that restrictions on the right to privacy remain proportionate.122 But as in every proportionality analysis, the

119 ECtHR, Klass and others v. Germany, 5029/71, Judgment, 6 September 1978, paras 55-56.

120 ECtHR, Kopp v. Switzerland, 13/1997/797/1000, Judgment, 25 March 1998, para. 74:[I]t is, to say the least, astonishing that [the] task [of authorizing interceptions] should be assigned to an official of the

Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence.

121 The CJEU did so on the basis that directive “d[id] not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use.” It further held that:

[T]he access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detention or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits. (Digital Rights Ireland, paras 61-62).


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precise requirements necessary to adequately safeguard human rights depend on the circumstances of each case.

55. With respect to the right to privacy, it is evident that, in the modern age, citizens must be afforded protections against intrusions into their private digital lives by States. It should not be the norm that organs of the State have limitless and unregulated access to the data—including metadata—of all those within their reach. Because of the levers of power the State wields, such access can engender a deep feeling of unease and can result in a “chilling effect” on various other human rights.123 Under such circumstances, it is understandable that various courts have disapproved of the collection and storage of metadata without judicial or other independent controls. However, these same considerations are not present on the facts before us.

56. Importantly, while the transfer of the CDRs concerned the telecommunications metadata of the entire Lebanese population between 2003 and 2010, the collection of that information was lawfully carried out, not by any State, but by Lebanese companies during the ordinary course of their business for billing and customer management purposes. These same entities were responsible for the storage of the CDRs—this was not undertaken by the Lebanese State or pursuant to a directive or demand issued by the UNIIIC or the Prosecutor. Furthermore, the CDRs were not collected and stored for the purposes of investigating future indeterminate and unspecified criminal conduct as was the case with respect to the European Union’s Data Retention Directive, which was challenged in many European States and before the CJEU in Digital Rights Ireland, or in certain cases before US courts.124 Instead, the transfer of the CDRs to the UNIIIC or the Prosecutor took place for the investigation of concrete and specific crimes whose execution had already taken place. As the Trial Chamber held, the transfer of the CDRs had “a narrow and legitimate forensic purpose”.125

123 Germany, Federal Constitutional Court, BVerfGE 125, 260 (335), 2 March 2010.

124 See, e.g., United States, Court of Appeals – 2nd Circuit, ACLU et al v. Clapper, No. 14-42.cv, 7 May 2015.


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57. Furthermore, and unlike in the circumstances of the cases cited above, the CDRs in question in this case are not accessible to any authority or State who may have cause to use such information for a variety of ends which are not generally disclosed to the wider public. Instead, the CDRs are strictly confined to the Tribunal’s judges, the Prosecution, Defence Counsel, the Legal Representative of the Victims and support staff126 involved in the Ayyash et al. trial and those involved in any connected cases. Moreover, access to the CDRs and their use will only be for specified reasons that are known to the entire Lebanese population and beyond: the determination of those responsible for the attack of 14 February 2005 and others of a similar nature.

58. For these reasons, the transfer of the CDRs to the UNIIIC and the Prosecutor without judicial authorization was not disproportionate.127

59. We stress that in this decision we deal with only broad legal matters. The Trial Chamber will, in time, consider further detailed factual issues concerning the CDRs. This will include an evaluation of the manner in which the CDRs were collected, retrieved and stored so as to determine whether or not they are admissible under Rules 149 and 162. In this context, the present decision does not prejudice the right of the defence to challenge admissibility of the CDRs and to obtain the necessary rulings from the Trial Chamber. Indeed, the Trial Chamber has deferred a decision on whether to admit this material and any related witness statements into evidence to a later point.128 In so doing, the Chamber will provide an additional check and safeguard against abuse.

60. In sum, given this specific and distinct situation, we hold that when balancing the right to privacy with the legitimate interest of the Lebanese public and the international community to properly investigate the specific crimes under

126 We further note that, as the Trial Chamber correctly noted, such persons “have professional and ethical obligations of confidentiality” to the Tribunal (see Art. 5 of the Code of Professional Conduct for Counsel Appearing before the Tribunal, 28 February 2011). These obligations can result in serious consequences for those who violate them, and can ultimately result in contempt proceedings and potential disbarment from their national jurisdictions.


128 Impugned Decision, paras 115, 118.

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the Tribunal’s jurisdiction and the right of the Lebanese to security, the absence of judicial control did not violate any international human rights standard on the right to privacy, justifying the exclusion of the CDRs under Rule 162.

61. We therefore dismiss the Appeal also with respect to the Second Certified Issue.

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DISPOSITION

FOR THESE REASONS;

PURSUANT to Rule 162;

THE APPEALS CHAMBER, Judge Baragwanath dissenting;

DISMISSES the Appeal.

Judge Riachy appends a separate and partially dissenting opinion.

Judge Baragwanath appends a dissenting opinion.

Done in Arabic, English and French, the English version being authoritative. Dated 28 July 2015 Leidschendam, the Netherlands

Judge Ivana Hrdličková Presiding Judge

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SEPARATE AND PARTIALLY DISSENTING OPINION OF JUDGE RIACHY

1. I concur with the Majority in dismissing the appeal filed by counsel for Mr Oneissi, both in respect to the First and the Second Certified Issues. However, I do not share the Majority’s reasoning under the Second Certified Issue on why judicial authorization was not required for the transfer of the call data records (“CDRs/metadata”)1 to the UNIIIC and the Prosecution and why this transfer did not constitute a violation of international human rights standards. I therefore offer my reasoning, which supports the Appeals Chamber’s ultimate conclusion to dismiss the appeal, but is based on different considerations.

I. Preliminary Observations

2. I fully agree with the Appeals Chamber’s conclusions on the preliminary issues raised by the appeal.2 I also support the Appeals Chamber’s decision with respect to the First Certified Issue, both with respect to the reasoning and the result.3

3. However, even though I agree with the final result, I cannot support the reasoning adopted by the majority of my fellow judges with respect to the Second Certified Issue.4 This issue concerns the Trial Chamber’s conclusion that the transfer of CDRs to the UNIIIC and the Prosecution in the absence of judicial authorization does not violate any international human rights standard with respect to the right to privacy, and that therefore an exclusion of the CDRs pursuant to Rule 162 of the Rules of Procedure and Evidence (“Rules”) is not warranted. I do not agree with the reasoning provided by the Majority, which considered that even though the CDRs relate to a core part of an individual’s privacy, their collection and transfer without prior judicial authorization did not violate international human rights

1 I agree with my colleagues that the matter before us only concerns metadata and that the content of any communications is not encompassed by the certified issues (see Decision, para. 3, fns 6, 19).

2 See Decision, paras 10-20.

3 See id. at paras 23-36.

4 See id. at para. 8.

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standards. Instead, I offer different reasons to arrive at the same result, i.e., that in the circumstances of this case there was no need for such judicial authorization.

II. The reasoning adopted by the Majority concerning the Second Certified Issue does not form a proper basis for the conclusions reached

4. The Majority concluded that the CDRs in this case are protected by the right to privacy.5 Despite this holding, the Majority decided that judicial authorization was not required in order to transfer the metadata to the UNIIIC or the Prosecution and that the absence of such authorization did not infringe international human rights standard. I do not agree with this approach.

A. Applicable law

5. The applicable legal provisions are primarily those of the Tribunal’s Statute and Rules.

6. Article 19 of the Statute states the following:

Evidence collected with regard to cases subject to the consideration of the Special Tribunal, prior to the establishment of the Tribunal, by the national authorities of Lebanon or by the International Independent Investigation Commission in accordance with its mandate as set out in Security Council resolution 1595 (2005) and subsequent resolutions, shall be received by the Tribunal. Its admissibility shall be decided by the Chambers pursuant to international standards on collection of evidence. The weight to be given to any such evidence shall be determined by the Chambers.

7. In addition, Article 28 (2) of the Statute states that:

1. The judges of the Special Tribunal shall, as soon as practicable after taking office, adopt Rules of Procedure and Evidence for the conduct of the pre-trial, trial and appellate proceedings, the admission of evidence, the participation of victims, the protection of victims and witnesses and other appropriate matters and may amend them, as appropriate.

5 See Decision, paras 44-47.

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2. In so doing, the judges shall be guided, as appropriate, by the Lebanese Code of Criminal Procedure, as well as by other reference materials reflecting the highest standards of international criminal procedure, with a view to ensuring a fair and expeditious trial

8. Rule 3 (A) (“Interpretation of the Rules”) states the following:

The Rules shall be interpreted in a manner consonant with the spirit of the Statute and, in order of precedence, (i) the principles of interpretation laid down in customary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969), (ii) international standards on human rights (iii) the general principles of international criminal law and procedure, and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.

9. Rule 162 (“Exclusion of Certain Evidence”) provides that:

(A) No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.

(B) In particular, evidence shall be excluded if it has been obtained in violation of international standards on human rights, including the prohibition of torture.

B. The legal reasoning of the Majority is in contradiction with the abovementioned provisions

10. The legal reasoning of the Majority leads to the following two results: i) the transfer of the CDRs is encompassed by the right to privacy under the universal framework of international human rights law against any interference with this right must be assessed; however, ii) with respect to the present case, for the specific reasons described in the decision, no international human rights standards were violated despite the absence of judicial authorization permitting the transfer of the CDRs and consequently the exclusion of evidence based on the CDRs pursuant to Rule 162 is not warranted in this case.6 In my view, these two findings are contradictory when taking into account the relevant law.

6 See Decision, para. 60.

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11. It is indisputable that under international law—and in particular Article 17 of the International Covenant on Civil and Political Rights, to which Lebanon has acceded—the protection of privacy forms an integral part of international human rights standards, and that there can be no arbitrary or illegal interference with this right. Other international legal instruments express the same principle.7

12. The importance of protecting this fundamental right is reflected by the existence of international jurisprudence which has stressed this principle but has also permitted limited derogations in exceptional cases.8 Indeed, under international law there are certain safeguards which guarantee that any derogation from the right to privacy is limited. Some of these safeguards are:

i) any interference with the right to privacy must be provided for by law;

ii) the interference must be motivated by a legitimate aim;

iii) it must be proportional to the achievement of this aim; and

iv) other requirements where necessary, considering that any limitation on the right to privacy must be subject to prior control by an independent judicial organ.9

13. In light of the principles set out above, once the Majority recognized that the CDRs were encompassed by the right to privacy, it should have considered that their transfer to the UNIIIC and the Prosecutor of the STL was not in conformity with international law and indeed exceeded any permissible derogations because this transfer had not been subject to prior authorization by an independent judicial authority.

7 See Art. 12 of the Declaration of Human Rights; Arts 7 and 8 of the Charter of Fundamental Rights of the European Union; Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

8 See, e.g., Belgium, Cour Constitutionelle, Judgment, No. 84/2015, 11 June 2015.

9 See, e.g., CJEU, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources, et al., Judgment, C-293/12 and C-594/12, 8 April 2014 (“Digital Rights Ireland”); Report of the Office of the United Nations High Commissioner for Human Rights, The Right to Privacy in the Digital Age, UN Doc. A/HRC/27/37 (30 June 2014), para. 38; ECtHR, Klass and others v. Germany, 5029/71, Judgment, 6 September 1978 (“Klass et al. v. Germany”), paras 55-56; ECtHR, Kopp v. Switzerland, 13/1997/797/1000, Judgment, 25 March 1998 (“Kopp v. Switzerland”), para. 74.

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14. Instead, the Majority proceeded to find that no judicial authorization was required because of the specific circumstances of this case. I respectfully disagree. On the contrary, the Majority should have considered whether such independent review of the transfer of the CDRs was provided for under international or domestic Lebanese law.

15. I agree with the holding in the Decision that neither Security Council Resolution 1595 (concerning the creation of the UNIIIC) nor Security Council Resolution 1757 (concerning the creation of the STL) contain any reference to an independent control mechanism that would be able to control potential interferences with the right to privacy. However, this does not justify in any way the transfer of the CDRs without authorization, if the CDRs are indeed encompassed by the right to privacy. Rather, it would then be required to assess, as per the provisions of Article 28 (2) of the Statute, whether Lebanese law provides such protection.10 The Majority failed to do this.

16. In this respect, it should be noted that while the First Certified Issue only concerned the applicable legal provisions relating to the establishment of the UNIIIC and the STL by the Security Council, the Second Certified Issue concerns the question of whether an international tribunal could do away with human right protections given under domestic law. Indeed, the principle is that the Security Council cannot circumvent applicable regional or domestic human rights protection by virtue of its resolutions. This was expressed by the Grand Chamber of the European Court of Human Rights in the Al Jedda case:

[T]he Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend

10 See Art. 28 (2) STL St.

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States to take particular measures which would conflict with their obligations under international human rights law.11

17. Under Lebanese law, there are two potentially applicable provisions: Law 140/99 on Safeguarding the Right to the Privacy of Communications Transmitted by any Means of Communication, issued on 17/10/1999, and Decree Law 127/59 Telephone and Telex, issued on 12 June 1959.

18. An analysis of Law 140/99 leads to the conclusion that it relates to the interception of communications, i.e. the content of phone calls (which are usually recorded). Such measures require judicial authorization. The judicial authority or “the judge charged with the investigation” mentioned in the law is usually the juge d’instruction. Prior to the enactment of Law 140/99 and in application of the Decree Law 127/59, it was the Prosecutor-General who had the right to give such authorization. After the enactment of Law 140/99, authorization to conduct an intercept could only be granted by a competent Tribunal or Judge.12

19. On the other hand, Article 32, under Section Three “On the Subscription Contract”, of the Decree Law No. 127 “Telephone and Telex”, issued and effective since 12 June 1959 and still in force, clearly states that “[t]he secrecy of telephone calls is inviolable. No employee or freelancer in the company can divulge it. The Administration can give a report on telephone calls on the basis of a written warrant from the judicial authorities.” This “report on telephone calls’’ corresponds to the CDRs addressed by the Trial Chamber in its Decision. Indeed, the “report” provides information on the identity of the telephone subscriber and can therefore be considered to contain telephone metadata, i.e., data about data. It does not concern the content of the communication and its “interception”, which Law 140/99 addresses. While Decree Law No. 127 was enacted before mobile phone services existed and therefore

11 ECtHR, Al Jedda v. United Kingdom, 27021/08, Judgment (GC), 7 July 2011, para. 102; see also para. 105 (“The Court does not consider that the language used in this Resolution indicates unambiguously that the Security Council intended to place member States within the Multinational Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention. Internment is not explicitly referred to in the Resolution.”).

12 See Opinion of the Legislative Advisory Commission at the Ministry of Justice, No. 139/2009, 19 February 2009.

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originally applied only to landline phones, it also applies—by analogy—to new communication technologies and therefore mobile phones. Accordingly, in order to collect and transfer information relating to the use of such phones, i.e., the CDRs, authorization from the Prosecutor-General would be required. The Prosecutor-General is not merely a party to the proceedings in the Lebanese judicial system but is also a judge. Consequently, applying Decree Law 127/59 would result in finding that transferring the CDRs was illegal because it did not follow the process required by this law.

20. Therefore, once the Majority found that the CDRs were encompassed by the right of privacy of the Lebanese population, it should have considered whether there existed a domestic Lebanese provision that safeguards the right to privacy, whether this provision was applicable in the circumstances of this case, and, if so, whether the transfer of the CDRs conformed with the requirements of this provision. This would have led to the conclusion that, under the applicable provisions of Decree Law 127/59, the transfer of the CDRs should have been subject to authorization by the Prosecutor-General, and, in the absence of such authorization, was illegal.

21. By avoiding such an assessment, the Majority failed to properly justify the result reached in its decision. However, for the reasons that follow below, despite this lack of justification, I agree with the ultimate dismissal of the appeal because in my view the CDRs in this case are not encompassed by international human rights provisions relating to the right to privacy.

III. The collection, seizure and transfer of the CDRs does not necessarily pertain to the right of privacy

22. The CDRs contain information about calls and SMS messages made and sent from mobile phones, including the time, duration and recipient of the call, the International Mobile Equipment Identity (IMEI) and International Mobile Subscriber Identity (IMSI) of the mobile phones used, and the mobile phone towers engaged during these calls. They are data about data.

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23. It is not yet clear whether the right to privacy extends to CDRs or metadata as a matter of international human rights law. Privacy is a fluid concept with multiple definitions and its contours are yet to be definitively determined at both the domestic and international levels.13 Nevertheless, some regional and domestic courts have applied the right to privacy in the context of metadata collection and concluded that the transfer of such data can give its recipients information about the everyday habits, personal activities and social encounters of the people to which the data pertains.14

24. However, it is up to individual courts to evaluate, in light of the specific facts of each case, whether metadata should attract protections afforded by the right to privacy. It is my opinion that the mass of metadata involved in the Ayyash et al. case15 should not attract such protections. The Prosecutor’s case does not appear to be concerned with the CDRs in the abstract. Rather, it focuses on the mobile phone metadata related to the alleged perpetrators of the attack of 14 February 2005 and, as a result, does not implicate the private information of ordinary mobile phone users.

25. While international human rights law generally requires prior judicial authorization when granting access to metadata,16 I do not consider such law to be engaged in this case. It follows that the transfer and use of this information need not be subject to judicial authorization.

26. Such a finding is consistent with trends in certain jurisdictions to only afford privacy protection to the content of communications. For instance, the French Cour de Cassation, in its decisions of 27 June 2001 and 8 August 2001,17 considered that access to metadata did not require judicial authorization as this process did not constitute an interception of correspondence under Articles 100 to 100-7 of

13 See R.A. Reilly, “Conceptual Foundations of Privacy: Looking Backward Before Stepping Forward”, 6 Richmond Journal of Law and Technology 6 (1999), para. 1.

14 See, e.g., Digital Rights Ireland; ECtHR, Malone v. UK, 8691/79, Judgment, 2 August 1984; Canada, Supreme Court, R v. Spencer, 2014 SCC 43; United States, District Court – District of Columbia, Klayman v. Obama, Civil Action No. 13-0851, 16 December 2013.

15 I stress again that the matter before us only concerns metadata and that the content of any communications is not encompassed by the certified issues; see above fn. 1.

16 See Klass et al. v. Germany; Kopp v. Switzerland.

17 France, Cour de Cassation, No. 01-82578, 27 June 2001 and No. 01-82490, 8 August 2001.

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the Criminal Procedural Code (Code de Procédure Pénale). The identification of phones from which calls were made and received, according to the court, constituted a “simple technical measure”.18 Similarly, it stated that the right to privacy was only concerned with communication intercepts but not with requests to identify the holders of telephone lines or subscriptions, the localization of relays and the telephone numbers dialled, as long as the technical means employed did not amount to an interception of content.19

27. This reasoning is also reflected in the decisions of US courts, where it has been held that there is “no reasonable expectation of privacy” in information that people voluntarily give to third parties—such as banks, phone companies, internet service providers and e-mail servers.20 The French and American jurisprudence demonstrates that as yet there is no international customary rule that metadata should be afforded the protections of human rights law.

28. In sum, I disagree with the Majority’s opinion that metadata are generally encompassed by the right to privacy. Each case must be considered on its own facts. In this case, I consider that the CDRs transferred to and used by the UNIIIC and the Prosecution do not implicate or reveal intimate information about mobile phone users. As a result, their transfer to and use by the UNIIIC and Prosecutor did not require judicial authorization as a matter of international human rights law.

18 France, Cour de Cassation, No. 01-82578, 27 June 2001, p. 5.

19 France, Cour de Cassation, No. 01-82490, 8 August 2001, pp 3-4 («seules les interceptions de communications sont visées par ces dispositions et non les réquisitions aux fins d’identifier les titulaires des lignes ou des abonnements, la localisation des relais et les numéros appelés, ou d’obtenir le détail des facturations » […] « les policiers ont adressé des réquisitions aux opérateurs de télécommunications à seule fin d’identifier les titulaires d’autres lignes téléphoniques, la localisation des relais et les numéros appelés ; que ces dernières opérations ont été également régulières, dès lors que le procédé technique mis en oeuvre n’a pas eu pour objet l’interception de correspondances au sens des articles précités »)

20 See United States, Supreme Court, Smith v. Maryland, 442 US 735, 20 June 1979; United States, Supreme Court, Katz v. United States, 389 US 347, 18 December 1967; United States, Supreme Court, United States v. Jones, 132 S. Ct. 945, 23 January 2012; see also United States, Court of Appeals – 11th Circuit, United States v. Davis, No. 12-12928, 5 May 2015; United States, Court of Appeals – 5th Circuit, In Re: Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 30 July 2013 (for further cases where US federal courts determined that an individual has no reasonable expectation of privacy in CDRs).

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V. Conclusion

29. The Majority failed, as it was required, to assess whether the transfer of the CDRs to the UNIIIC and the Prosecutor was subject to the relevant provisions under Lebanese law, in particular Decree Law 127/59.

30. However, because in my view the CDRs are not protected by the right to privacy in the circumstances of this case, I find that the appeal is unfounded and should be rejected on that basis.


Judge Ralph Riachy

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DISSENTING OPINION OF JUDGE BARAGWANATH

1. This appeal raises competing vital public interests which must be evaluated and prioritized. They are:

(i) the Prosecutor’s claim that it is open to the Trial Chamber to admit potentially probative evidence drawn from metadata or call data records (“CDRs”) that identify the whereabouts of specific telecommunications users at times and places material to its case; and

(ii) counsel for Mr Oneissi’s claim of privacy interests in the CDRs which are relied upon to seek the exclusion of this evidence.

2. In my view, such evaluation and prioritization should take place as a three-fold enquiry with the issues of legality and admissibility being considered together:

(i) did the process employed by the UNIIIC and the Prosecution in accessing and using the CDRs accord with the law (the principle of legality)?

(ii) if so, was the UNIIIC’s and the Prosecution’s access to and use of the CDRs proportionate (the principle of proportionality)?

(iii) is the probative value of the evidence substantially outweighed by the need to ensure a fair trial?

3. However, given that the Trial Chamber has decided to consider questions of admissibility at a later stage, the certified issues do not extend to the whole of these matters. Nevertheless, due consideration of the principles of legality and proportionality still requires knowledge of the facts relevant to these issues. We are not informed of such facts and, while the Prosecution has offered to give further submissions on some of the issues, the Majority has decided not to order or permit them to do so.

4. It follows that to ensure due process we must allow the Defence appeal and refer the case back to the Trial Chamber so it can ascertain the relevant facts and perform legality and proportionality analyses in accordance with the directions of this Chamber. It is also my view that the Trial Chamber should have dealt with the

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questions of the legality of the transfer of CDRs and their admissibility as a whole before seizing us of any appeal.

5. Moreover, for the reasons next mentioned, I read the certified issues differently from my colleagues and do not agree with their characterization.

I. The Certified Issues1

6. The First Certified Issue is whether the UNIIIC and the Prosecution “could legally request and obtain call data records […] without […] judicial authorization”. The Second Certified Issue is whether the “absence of judicial control does not violate any international human rights standard on the right to privacy, justifying the exclusion of the call data records under Rule 162”.2 Since the ultimate issue of the admission of the evidence has not been determined by the Trial Chamber, it is not before us.

7. In my view, the broad language of the Second Certified Issue encompasses not only the legality of the transfer of the CDRs but also the events that transpired after they entered into the possession of the UNIIIC and the Prosecution. This is because the Second Certified Issue simply speaks of the “absence of judicial control” and does not stipulate where or when this judicial control was to be carried out. Without any indication to the contrary, it must be read as embracing both the transfer of the CDRs and the way this material was subsequently treated by the Prosecution. The First Certified Issue is then superfluous as it covers only the legality of the transfer of the CDRs, a matter already included in the Second Certified Issue. I therefore cannot agree with the separation drawn by my colleagues between the two certified issues.

8. We are bound to deal with the essence of both issues certified by the Trial Chamber. But how we do that is a matter for the Appeals Chamber.

1 Under Rule 126 (C) STL RPE.

2 See Rule 162 STL RPE: (A) No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if

its admission is antithetical to, and would seriously damage, the integrity of the proceedings. (B) In particular, evidence shall be excluded if it has been obtained in violation of international standards on

human rights, including the prohibition of torture.

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II. The privacy claim

9. The concept of privacy has been described as “a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings that I sometimes despair whether it can be usefully addressed at all”.3 The present arguments illustrate its complexity and could be said to mark two extremes. The Prosecution’s case includes the proposition that mobile telephones were used for the purpose of planning, committing and covering up the attack of 14 February 2005 and that their use created metadata showing, among other things, where and when they were used. The Defence’s case is that securing the immense volume of 7 ½ years of metadata of all telephone calls and text messages4 made and sent within Lebanon between 2003 and 2010 without judicial oversight entails a breach of privacy of the Lebanese people so egregious that the evidence should be excluded. How are they to be approached?

10. There is now a vast jurisprudence that recognizes the importance and difficulty of such issues.5 In addition to the international materials referred to in the Judgment and the report cited at footnote five of this Opinion, that is just what was done recently by the French Conseil constitutionnel in examining claims that a new surveillance law responding to terrorist threats did not provide adequate privacy protections for metadata and the content of electronic messages.6 In their decision, the Conseil constitutionnel clearly implies that metadata are afforded privacy protections, which should not be subject to disproportionate limitations.7

3 R.C. Post, “Three Concepts of Privacy”, 89 Georgetown Law Journal 2087 (2001).

4 The Prosecution are also in possession of the content of such messages but the Certified Issues do not extend to this material.

5 See, e.g., the discussion of European law in United Kingdom, England and Wales High Court, R (Davis) v The Secretary of State for the Home Department [2015] EWHC 2092 (17 July 2015); see also A Question of Trust: Report of the Investigatory Powers Review, David Anderson QC, Independent Reviewer of Terrorism Legislation, June 2015.

6 France, Conseil constitutionnel, No. 2015-713 DC, 23 July 2015.

7 See id. at para. 56 («Considérant, en second lieu, que cette technique de recueil de renseignement est mise en œuvre dans les conditions et avec les garanties rappelées au considérant 51 ; qu’elle ne pourra être mise en œuvre que pour les finalités énumérées à l’article L. 811-3 du code de la sécurité intérieure ; qu’elle est autorisée pour une durée de quatre mois renouvelable conformément à l’article L. 821-4 du même code ; qu’en outre, lorsque le recueil des données a lieu en temps réel, il ne pourra être autorisé que pour les besoins de la prévention du terrorisme, pour une durée de deux mois renouvelable, uniquement à l’égard d’une personne

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11. The law’s protection of metadata is evolving internationally. The opinion of Judge Riachy records the prohibition by the Lebanese legislature of disclosure of metadata without judicial authority;8 other legislatures have adopted a similar policy. This Tribunal is required by its Statute9 and Rules10 to apply the highest standards of international criminal procedure. I have found of particular assistance the approach to privacy interests under Article 8 of the European Convention on Human Rights adopted by the UK Supreme Court in Beghal v Director of Public Prosecutions.11 While it concerned a different context from the one we face, the Court addressed two fundamental principles applicable in any case where competing interests must be weighed: the principle of legality and the principle of proportionality. The issues raised by the Trial Chamber require appraisal of each principle.

A. Principle of legality

12. The leading judgment in Beghal was delivered by Lord Hughes, who stated:

It is well established that the primary constituent of the requirement that interference with an ECHR must be in accordance with the law (“legality”) is [1] that there must be a lawful domestic basis for it, [2] that this law must be adequately accessible to the public and [3] that its operation must be sufficiently foreseeable, so that people who are subject to it can regulate their conduct […] The requirement of legality, however, is now established to go further than this. It calls for the law to [4] contain sufficient safeguards to avoid the risk that power will be arbitrarily exercised and thus that unjustified interference with a fundamental right will occur.12 (numbering added)

préalablement identifiée comme présentant une menace et sans le recours à la procédure d’urgence absolue prévue à l’article L. 821-5 du même code ; que, par suite, le législateur a assorti la procédure de réquisition de données techniques de garanties propres à assurer entre, d’une part, le respect de la vie privée des personnes et, d’autre part, la prévention des atteintes à l’ordre public et celle des infractions, une conciliation qui n’est pas manifestement déséquilibrée») (emphasis added).

8 Separate and Partially Dissenting Opinion of Judge Riachy, paras 19-20.

9 Art. 28 STL St.

10 Rule 149 (B) STL RPE.

11 [2015] UKSC 49 (22 July 2015) (“Beghal”).

12 Beghal. paras 29, 30.

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13. In analysing whether the legality test was met, Lord Hughes concluded:

The need for safeguards is measured by the quality of intrusion into individual liberty and the risk of arbitrary misuse of the power […] There are sufficient safeguards against arbitrary use of this power […] [and] effective controls [including] judicial review […] which prevent arbitrary use of the power or provide a correction if it should occur.13

14. I agree with these formulations, which are the result of a succession of carefully argued appeals.

B. Principle of proportionality

15. Beghal, applying earlier high authority, formulated the concept of proportionality in four questions:

(i) is the objective sufficiently important to justify limitation upon a fundamental right?

(ii) is the measure rationally connected to the objective?

(iii) could a less intrusive measure have been adopted?

(iv) has a fair balance been struck between individual rights and the interests of the community?14

16. In contrast, in the present case, the Majority propose the following test:

An interference with a right will be considered “necessary” for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. The principle of proportionality in that sense requires that limitations on a right must be: (1) appropriate to achieve their protective function, (2) the least intrusive instrument among those available to achieve the desired result, and (3) proportionate to the interest to be protected. Moreover, the limitation placed on the right must be shown to have some

13 Id. at para. 45.

14 Beghal, para. 46 (citing Bank Mellat v. HM Treasury (No 2) [2013] UKSC 39, para. 20).

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chance of achieving that goal and must not render the essence of the right meaningless.15

17. The Majority’s formulation with the language of “pressing social need” and “some chance of achieving that goal” is vague compared to the Beghal criteria. Furthermore, its use of “proportionate” to define the term “proportionate” is unhelpful, while the criterion of the “least intrusive instrument” for a non-decisive factor is overly determinative. I therefore prefer the Beghal criteria.

18. Applying their chosen criteria, their Lordships in Beghal then evaluated the proportionality of the alleged privacy infringement in light of the facts of the case before them. They concluded:

Overall, the level of intrusion into the privacy of the individual is, for the reasons which have been explained above, comparatively light and not beyond the reasonable expectations of those who travel across the UK’s international borders. Given the safeguards set out above, it is not an unreasonable burden to expect citizens to bear in the interests of improving the prospects of preventing or detecting terrorist outrages. In those circumstances, the port questioning and associated search powers represent a fair balance between the rights of the individual and the interests of the community at large and are thus not an unlawful breach of article 8.16

C. Application of these principles in the present case

19. The Majority judgment in this case agrees that “as in every proportionality analysis, the precise requirements necessary to adequately safeguard human rights depend on the circumstances of the case.”17

20. Yet here relevant circumstances of the case are unknown to us. That is because the Prosecution considered that the issues of whether the CDRs fall within the right

15 See Majority decision, para. 50 (citing ECtHR, Uzun v. Germany, 35623/05, Judgment, 2 September 2010, para. 78); ECtHR, Handyside v. United Kingdom, 5493/72, Judgment, 7 December 1976, paras 48-49; Report of the Office of the United Nations High Commissioner for Human Rights, The Right to Privacy in the Digital Age, UN Doc. A/HRC/27/37 (30 June 2014), para. 23 and Human Rights Committee, General Comment No. 27, CCPR/C/21/Rev.1/Add.9 (1999), para. 14.

16 Beghal, para. 51.

17 Majority Decision, para. 54.

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to privacy and the necessity and proportionality of their transfer and use go beyond the certified issues and, as a result, it has not addressed them in its response.18 It did add that, in the event that the Appeals Chamber finds it appropriate to consider these issues, it requests an opportunity to be heard.19 But the Majority has declined that request.

21. There can be no complaint at that decision: the Trial Chamber is the appropriate forum for making findings of first impression; our role should, as far as possible, be exercised only with the benefit of its conclusions. But what should follow in my respectful view is a reference back to the Trial Chamber to make its own findings on legality and proportionality.

22. Here however the Majority makes its own evaluation of proportionality. Its proportionality analysis is based on an acceptance of the Trial Chamber’s conclusions that “the transfer of the CDRs had a narrow and legitimate forensic purpose”20 and that “the CDRs are strictly confined to the Tribunal’s judges, the Prosecution, Defence Counsel, the Legal Representative of the Victims and support staff” and will only be used for “the determination of those responsible for the attack of 14 February 2005 and others of a similar nature.”21

23. But the Appeals Chamber has neither the facts, nor Prosecution submissions and Defence reply, required to justify its decision as to proportionality. In particular, the Majority decision is made without any evidence or submissions on:

(i) how and why the UNIIIC and the Prosecution decided to acquire 7 ½ years’ worth of telephone call and text message metadata, in addition to text message content, rather than making a more targeted request;

18 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.9, F0006, Prosecution Response to the Oneissi Defence “Appeal of the ‘Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution’”, 15 June 2015, para. 13.

19 Id. at fn. 19.



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(ii) what process of examination of the metadata was selected and how it was then applied; and

(iii) whether and to what extent privacy interests were protected or affected by the UNIIIC and the Prosecution.

24. The Trial Chamber says it will consider the evidence at the admissibility stage. However, without it, for this Chamber to give affirmative answers to the certified issues entails an unjustified assumption that the criteria of “least intrusive instrument” and “proportionality to the interest to be protected” are satisfied. A genuine analysis of the legality and proportionality of the transfer and use of the CDRs requires knowledge of the abovementioned salient facts.

25. It may be that the Majority rely on the fact that, when deciding that legislation infringed European standards, earlier judgments as to proportionality, including the important Digital Rights Ireland decision of the European Court of Justice,22 entailed a fact assessment at a high level of generality rather than grappling with the specific facts of any case. If so, I respectfully disagree that such an approach can be adopted in reverse to answer the questions posed in this appeal. It is one thing to strike down legislation expressed in general terms as risking injury to privacy interests. It is quite another thing to reason from general facts that the wholesale taking of metadata for many years, with no information as to how it was used and with what consequences, entails no significant infringement that needs to be carefully evaluated against the Prosecution’s claim for its admission.

26. For these reasons, I respectfully disagree with the judgment of the Majority.

III. Conclusion

27. I am of opinion that the administration of due process of law requires both evidence of and findings upon the issues I have identified. Since we have been given neither, I would reply to the Trial Chamber that we cannot answer either of the certified issues at this time and that the case must go back to it with a direction that

22 CJEU, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources, et al., C-293/12 and C-594/12, Judgment, 8 April 2014.

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it consider the evidence of the matters referred to in paragraph 23. This information is required before proper consideration can be given to whether:

(i) the probative value of the Prosecution evidence is substantially outweighed by the need to ensure a fair trial;23 and

(ii) evidence was obtained by methods which cast substantial doubt on its reliability; its admission is antithetical to, and would seriously damage, the integrity of the proceedings; or it was obtained in violation of international standards on human rights.24

28. I accordingly dissent from the Majority decision which seeks to answer the issues posed by the Trial Chamber without the necessary information.


Judge David Baragwanath

23 Art. 21 (2) STL St.

24 Rule 162 STL RPE.


Before: Appeals Chamber

Title: Reasons for Decision on Applications filed by Counsel for Witness PRH012 and Order on Confidentiality

Short title: Witness Right to Appeal AC

Witness Right to Appeal AC (Opinion of Judge Baragwanath)

Witness Right to Appeal AC (Appendix)

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THE APPEALS CHAMBERCase No.: STL-11-01/T/AC

Before: Judge Ivana Hrdličková, Presiding Judge Ralph Riachy Judge David Baragwanath Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko


Date: 28 July 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

REASONS FOR DECISION ON APPLICATIONS FILED BY COUNSEL FOR WITNESS PRH012 AND ORDER ON CONFIDENTIALITY

Office of the Prosecutor: Mr Norman FarrellHead of Defence Office: Mr François RouxLegal Representatives of Participating Victims: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-AbusamraWitness 012: Mr Geoffrey Robertson & Mr Toby Collis, instructed by Mark Stephens, Elizabeth Morley of Howard Kennedy LLP, with Gail Gove, Chief Counsel, Reuters News, Thomson Reuters


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Witness Right to Appeal AC

INTRODUCTION

1. A witness in the Ayyash et al. case sought to appeal the Trial Chamber’s decision to summon that witness to testify before the Tribunal (“Application”).1 The witness also requested that we suspend the operation of the summons (“Request for Suspensive Effect”).2 We decided, by majority, Judge Baragwanath dissenting, to dismiss both the Application and the Request for Suspensive Effect.3 Because of the urgency of the matter—the witness was scheduled to testify the following day—we noted that written reasons would follow.4 We provide them here.

BACKGROUND

2. The Prosecutor requested the Trial Chamber to issue a summons for witness PRH012 to appear to testify before the Tribunal in the Ayyash et al. proceedings.5 The Trial Chamber invited counsel acting for the witness to make written submissions on the matter.6 Counsel opposed the issuing of a summons, arguing, inter alia, that hearing the witness’s evidence was not necessary for a number of reasons. Counsel also submitted that the witness should not be compelled to testify because she

1 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F2040, Decision on Prosecution Application for a Summons to Appear for Witness 012 and Order Issuing a Summons for a Witness, 1 July 2015 (“Decision on Summons”); STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC, F2068, Application to Appeal Pursuant to Inherent Jurisdiction Made on Behalf of Witness PRH012, Confidential with Confidential Annex, 9 July 2015. Counsel also filed an addendum (STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC, F2068, Addendum to Application to Appeal Dated 9 July 2015 Pursuant to Inherent Jurisdiction, Confidential, 12 July 2015 (“Addendum”)).

2 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC, F2067, Witness PRH012: Urgent Application for Suspension of Compulsory Testimony, Confidential with Confidential Annex, 9 July 2015.

3 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC, F2073, Decision on Applications Filed by Counsel for Witness PRH012, Confidential, 13 July 2015, para. 4.

4 Ibid.

5 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1966, Application for a Summons to Appear in Respect of Witness PRH012, Confidential, 26 May 2015.

6 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F1995, Order Relating to Prosecution’s Application for a Summons for Witness PRH012, 10 June 2015.

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works for a news organization, asserting a privilege that would apply to war zone correspondents.7

3. The Trial Chamber decided that, in the circumstances of the case, “a summons [was] necessary to secure the witness’s attendance to ensure a fair, impartial and expeditious trial”.8 It held that the witness’s prospective evidence was relevant and probative, related to material facts pleaded in the indictment and went directly to the acts and conduct of three of the Accused. The Trial Chamber further noted that the witness appeared to be the only person who could provide the particular evidence, that no form of privilege operated to prevent the Trial Chamber from summoning the witness and that the witness had stated that she would not voluntarily appear before the Tribunal.9

4. The witness filed a request for certification to appeal the Decision before the Trial Chamber.10 While this request was still pending, the witness additionally filed the Application and the Request for Suspensive Effect directly before the Appeals Chamber. In the Application, the witness argues that the Appeals Chamber should review the Trial Chamber’s Decision on Summons and advances six grounds of appeal.11 In the Request for Suspensive Effect, the witness seeks to suspend the operation of the summons.12

5. Subsequent to these submissions, the Trial Chamber denied the certification request.13 The Trial Chamber held that it was “prepared to construe Rule 126 liberally, in this particular case, and to follow the ICTY precedent in Brđanin, in certifying

7 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F2019, Written Submissions on Behalf of Witness PRH012 in Opposition to the Prosecutor’s Application Dated 26 May 2015 for a Summons to Appear, Confidential with Confidential Annexes, 21 June 2015.

8 Decision on Summons, para. 30

9 Decision on Summons, para. 29.

10 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F2059, Application for Certification for the Appeal of the Trial Chamber Decision Dated 1 July 2015, Pursuant to Rule 126, Confidential, 8 July 2015.


12 Request for Suspensive Effect, p. 1.

13 STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F2069, Decision Denying Certification to Appeal the Trial Chamber’s Decision on Issuing a Summons to Witness 012, 10 July 2015 (“Certification Decision”).

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an issue for interlocutory appeal where the interests of third parties are affected”.14 However, it found that the witness “neither identified any issue that affects the fair and expeditious conduct of the proceedings and requires immediate resolution by the Appeals Chamber nor formulated any question for certification for interlocutory appeal”.15

6. The Prosecutor responded to the Application and the Request for Suspensive Effect, requesting that they be dismissed.16 He argues that the witness is not entitled to directly seize the Appeals Chamber of an appeal17 and that the Appeals Chamber has no jurisdiction to suspend the summons in the absence of a properly filed appeal.18

DISCUSSION

I. Application to appeal

7. We recall that the power of the Appeals Chamber to entertain an appeal is circumscribed by our Statute and Rules of Procedure and Evidence.19 In particular, we have held that:

[I]nterlocutory decisions are not subject to an automatic right of appeal. Indeed an appeal against such decisions may only be filed if this right is explicitly granted in the Rules or if certification to appeal is given by the first instance Judge or Chamber.20

14 Id. at para. 16.

15 Id. at para. 23.

16 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC, F2071, Prosecution Consolidated Response to “Application to Appeal Pursuant to Inherent Jurisdiction on Behalf of Witness PRH012”, “Witness PRH012: Urgent Application for Suspension of Compulsory Testimony”, and “Addendum to Application to Appeal Dated 9 July 2015 Pursuant to Inherent Jurisdiction”, Confidential, 13 July 2015 (“Response”).



19 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, F0009, Decision on Appeal by Legal Representative of Victims Against Pre-Trial Judge’s Decision on Protective Measures, 10 April 2013 (“LRV Appeal Decision”), para. 11.

20 LRV Appeal Decision, para. 9; see also STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.7, F0013, Decision on Appeal by Counsel for Mr Merhi Against Trial Chamber’s “Decision on Trial Management and

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8. There is no provision in the Rules explicitly permitting an interlocutory appeal as of right against a Chamber’s decision to subpoena a witness pursuant to Rule 78. Furthermore, the Trial Chamber rejected the request for certification to appeal its decision ordering witness PRH012 to appear to testify at the Tribunal.

9. The witness argues that, despite the absence of an appeal as of right and the denial of certification by the Trial Chamber, we should nevertheless consider the appeal as falling under our “inherent jurisdiction to do justice to third parties whose rights are infringed by a Trial Chamber decision”.21 The witness relies on our decision in the El Sayed case, arguing that “[i]n this case justice requires appellate review, both because of the severe and immediate impact on the witness’s rights, [the witness’s] safety and profession and for the wider reasons that the Trial Chamber judgment impermissibly restricts a recognised testamentary privilege”.22

10. However, the matter of El Sayed was quite distinct from the present circumstances and, as we have stressed before, “must be viewed in its proper context”.23 In El Sayed we ruled that the Tribunal had jurisdiction to consider an individual’s request for documents in a case before the Tribunal when that individual was not a suspect or an accused.24 It therefore “[fell] outside the literal scope of the Rules”25 and was “not a criminal matter falling under our primary mandate”.26 It was only in that specific context that we decided to entertain an appeal against a decision of the Pre-Trial Judge, stressing that:

Reasons for Decision on Joinder”, 21 May 2014, para. 14 (“We may intervene in interlocutory decisions of the Trial Chamber or the Pre-Trial Judge only on appeal as of right or following certification.”); cf. STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, F0020, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012 (“Ayyash et al. Jurisdiction Appeal Decision”), para. 23 (dismissing an appeal because there was neither an appeal as of right nor a grant of certification).


22 Id. at para. 21; see also Addendum, paras 3, 7.

23 Ayyash et al. Jurisdiction Appeal Decision, para. 16.

24 STL, In the matter of El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010 (“El Sayed Jurisdiction Appeal Decision”), paras 50-53.

25 STL, In the matter of El Sayed, CH/AC/2011/01, Decision on Partial Appeal By Mr. El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, 19 July 2011, para. 20.

26 Id. at para. 27.

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The Appeals Chamber will not normally consider interlocutory appeals outside the scope of the Rules but finds it necessary to do so here, where a situation has arisen that was not foreseen by the Rules, and it is alleged that a jurisdictional error has been committed and injustice may result if such an error as is alleged were left uncorrected.27

11. In the case before us, unlike in El Sayed, “the issue is not one that the drafters of the Rules could not anticipate”.28 There is no gap or lacuna in the Rules. Indeed, Rule 78 is a key element of the Tribunal’s core procedure in criminal matters and explicitly provides for the possibility to summon a witness to testify before the Tribunal “when warranted by the interests of justice”. If the drafters had intended to provide for an automatic right of appeal against a Trial Chamber’s decision in this regard, they could have done so. However, they did not. We have no authority to create such a right on our own.29 The Appeal was dismissed for these reasons.

II. Request for suspensive effect

12. The witness requested the Appeals Chamber, “whether or not it decides to hear the appeal”, to suspend the operation of the summons.30 However, we have held repeatedly that absent exceptional circumstances we lack the power to order the suspension of a decision if we are not properly seized of an appeal.31 Because we decided that we had no authority to consider the Application, it follows that we could not order any suspension either. We therefore rejected the Request for Suspensive Effect.

27 El Sayed Jurisdiction Appeal Decision, para. 54.

28 Ayyash et al. Jurisdiction Appeal Decision, para. 17.

29 See the references to domestic and international case-law provided in Ayyash et al. Jurisdiction Appeal Decision, para. 17, fns 54-55.

30 Request for Suspensive Effect, p. 1.

31 STL, Prosecutor v. Ayyash, STL-11-01/PT/AC/AR126.7, F0004, Order on Request for Suspensive Effect of Appeal, 4 April 2014; STL, In the matter of El Sayed, CH/AC/2011/01, Order on Urgent Prosecution’s Request for Suspensive Effect Pending Appeal, 12 September 2011.

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III. Order on confidentiality

13. We note that the submissions before us were filed confidentially. However, given that the Trial Chamber has now lifted the confidentiality of its relevant decisions32 and in light of the public nature of the proceedings before the Tribunal,33 we will issue our decision publicly.

14. There is also no reason to maintain the confidentiality of our Decision of 13 July 2015, the Request for Suspensive Effect34 and the Response.35 We therefore order the Registrar to reclassify these filings as public. With respect to the Application and the Addendum, we order counsel for the witness to file public redacted versions of these submissions.

32 See e-mails from CMSS informing Legal Workflow users about the change in classification with respect to the Decision on Summons and the Certification Decision, 24 July 2015.

33 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, F0171/COR, Corrected Version of Decision on the Pre-Trial Judge’s Request Pursuant to Rule 68(G), 29 March 2012, para. 12.

34 We do not lift the confidentiality of the Annex (F2067/A01).

35 We note that the Prosecutor does not object to the lifting of confidentiality of this filing (see Response, para. 14).

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DISPOSITION

FOR THESE REASONS;

THE APPEALS CHAMBER,

DISMISSED, Judge Baragwanath dissenting, the Application and the Request for Suspensive Effect;

ORDERS the Registrar to reclassify the following filings from confidential to public:

- Decision on Applications Filed by Counsel for Witness PRH012 of 13 July 2013 (F2073)

- Request for Suspensive Effect (F2067)36

- Response (F2071); and

ORDERS counsel for the witness to file public redacted versions of their Application (F2068) and Addendum (F2068/ADD).

Judge Baragwanath appends a Dissenting Opinion.


Judge Ivana Hrdličková Presiding Judge

36 See above fn. 34.

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DISSENTING OPINION OF JUDGE BARAGWANATH

I. Introduction

1. My colleagues have rejected summarily a direct appeal by an appellant who claims the status of “war correspondent journalist” and consequential qualified privilege against testifying before the Trial Chamber. The basis for this decision is that, without certification under Rule 126 (C) from that Chamber, the Appeals Chamber lacks jurisdiction to entertain both the appeal and an application for a stay of an order for the journalist’s appearance while the appeal is considered without haste. Because I am satisfied that Rule 126 has no application to this case and that, as determined in our El Sayed Jurisdiction Appeal Decision,1 we possess the inherent jurisdiction to consider both the appeal and the stay, I dissent.

2. My conclusion that Rule 126 has no present application begins with the status of the claimed privilege which is supported by the provisions of Lebanon’s Constitution and international human rights instruments. The latter in particular must be contrasted with the lesser status of judge-made rules, which are presumed to give effect to, and be consistent with, such instruments. It is further supported by the language, context and purpose of Rule 126.

3. However, to avoid possible misunderstanding, I wish to state clearly that this decision is confined to questions of law and contains no comment on the conditions of Lebanon in 2005 or since. There has been no evidence suggesting that the events over which this Tribunal has jurisdiction occurred in the context of an armed conflict; or submissions as to what degree of unrest is required to trigger the status of “war correspondent” as claimed by the appellant. Since the appeal is dismissed, that topic will not arise for consideration.

1 STL, In the matter of El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010 (“El Sayed Jurisdiction Appeal Decision”) (see Appendix).

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II. The appeal, the stay application and their dismissal

4. The appellant applied unsuccessfully to the Trial Chamber to set aside an order to appear before it on Tuesday 14 July 2015 to give evidence. That Chamber subsequently declined to issue a certificate authorizing an appeal. At 4.44pm on Friday 9 July 2015 the appellant filed out of caution an application to this Chamber (“Direct Appeal”) asking us to exercise our inherent jurisdiction to hear the appeal. It was accompanied by an application for a stay of the Trial Chamber’s order, pending the Appeals Chamber’s consideration of the Direct Appeal.

5. On Monday 13 July 2015 the Majority dismissed, with reasons to follow, both the application for stay and the Direct Appeal, decisions from which I dissented.

III. The privilege at issue in this case

6. The appellant is a journalist employed by a significant news agency which reports on political and social developments in Lebanon to that country and around the world. A senior officer of that news agency asserts in the Direct Appeal that its reputation and value as a news organization depend on its continued ability to be trusted as a source of impartial news and information.

7. The officer recounts the personal background of the appellant and his assessment that to be compelled to give evidence in the present trial would seriously compromise the journalist’s role, with potential adverse consequences both for the news agency and for the journalist.

A. The appellant’s claim: the Randall Decision and its scope

8. It is against this background that the appellant asks this Chamber to recognize that she is entitled to privilege of the kind recognized by the ICTY Appeals Chamber in Brđanin and Talić2 (“Randall Decision”). For the reasons it expressed, that decision recognized, under international law, a qualified privilege for journalists reporting from conflict areas:

2 ICTY, Prosecutor v. Brđanin and Talić, IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002.

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[C]ompelling war correspondents to testify […] may have a significant impact upon their ability to obtain information and thus their ability to inform the public on issues of general concern. The Appeals Chamber will not unnecessarily hamper the work of professions that perform a public interest. […] [F]or a Trial Chamber to issue a subpoena to a war correspondent a two-prong test must be satisfied. First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.3

9. The scope of this privilege extends beyond the sphere of this Tribunal; like legal professional privilege, it operates in every context.

10. The recognition of this privilege is based, in part, on the crucial role of the press in monitoring and reporting on events both in and affecting Lebanon and around the world. In particular, judicial notice may be taken of the wide range of Lebanese media, the strength and vigour of the opinions they express, and the profound interest of the Lebanese people in the work of journalists across all media. For example, as was noted in a decision which directed the commencement of contempt proceedings for alleged breaches of Rule 60 bis:

The importance of the press as the eyes, ears and voices of the community is at its highest when confronted with the power of public decision-makers, such as judges. That was expressed lucidly by Jeremy Bentham:

Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the securest of all guards against impropriety. It keeps the judge himself, while trying, under trial.4

3 Id. at paras 44, 50.

4 STL, In the Case Against New TV S.A.L. and Al Khayat, STL-14-05/I/CJ, F0001, Redacted Version of Decision in Proceedings for Contempt with Orders in Lieu of an Indictment, 31 January 2014, para. 15; STL, In the Case Against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/I/CJ, F0001, Redacted Version of Decision in Proceedings for Contempt with Orders in Lieu of an Indictment, 31 January 2014, para. 15.

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11. Indeed, the free press is a vital element of the rule of law and the men and women who are part of the reporting profession carry out a vital public service. As the Randall Decision stated:

Both international and national authorities support the […] proposition[] that a vigorous press is essential to the functioning of open societies and that a too frequent and easy resort to compelled production of evidence by journalists may, in certain circumstances, hinder their ability to gather and report the news. […] [S]ociety’s interest in protecting the integrity of the newsgathering process is particularly clear and weighty in the case of war correspondents.5

12. This interest is also related to the right to receive information as recognized under international human rights law and under Lebanese law. The Lebanese Constitution provides that:

Lebanon is a parliamentary democratic republic based on respect for public liberties, especially the freedom of opinion and belief[.]6

[…]

The freedom to express one’s opinion orally or in writing, the freedom of the press, the freedom of assembly, and the freedom of association shall be guaranteed within the limits established by law.7

The Constitution also specifically endorses Lebanon’s accession to the Universal Declaration of Human Rights (1948).8 This document adds the:

[F]reedom […] to seek, receive and impart information and ideas through any media and regardless of frontiers.9

5 Randall Decision, paras 35-36.

6 Lebanese Constitution, Preamble, para. C.

7 Lebanese Constitution, Art. 13.

8 Id. at Preamble, para. B.

9 Universal Declaration of Human Rights (1948), Art. 19.

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A third guarantee, to similar effect, is provided by Article 19 of the International Covenant on Civil and Political Rights (1966)10 to which Lebanon has also acceded. Others appear in various regional human rights treaties.11

IV. The Statute, the rule-making power of the judges and Rule 126

13. This Tribunal was created by Security Council Resolution 1757 (2007) to which the Tribunal’s Statute was annexed.12 Article 8 of the Statute established the Pre-Trial Judge as well as the Trial and Appeals Chambers, whilst Article 28 empowered the judges of the Tribunal to adopt the Rules of Procedure and Evidence, requiring them to be “guided, as appropriate, by the Lebanese Code of Criminal Procedure as well as by other reference materials reflecting the highest standards of international criminal procedure”. In exercise of that power the judges created Rule 126, which the Majority assumes applies to this case. That Rule provides in the relevant parts (emphasis added):

Motions requiring certification

A. This Rule applies to all motions other than preliminary motions, motions relating to release, and others for which an appeal lies of right according to these Rules.

10 See International Covenant on Civil and Political Rights (1966), Art. 19:1. Everyone shall have the right to hold opinions without interference.2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and

impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputation of others;(b) For protection of national security or of public order (ordre public), or of public health and morals.

11 See (European) Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 10; American Convention on Human Rights (1969), Art. 13; African Charter on Human and Peoples’ Rights (1981), Art. 9 (1).

12 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, F0020, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012, para. 31.

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B. After a case is assigned to the Trial Chamber, either Party may apply by motion for appropriate ruling or relief. […]

C. Decisions on all motions under this rule are without interlocutory appeal save with certification, if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which an immediate resolution by the Appeals Chamber may materially advance the proceedings.

14. My colleagues consider that both the Direct Appeal pursuant to our inherent jurisdiction and therefore the application for the stay of the Trial Chamber’s order fall clearly within the ample language of Rule 126:

• Rule 126(A): “This Rule applies to all motions […]”;

• Rule 126(C): “Decisions on all motions under this Rule are without interlocutory appeal save with certification [by the Trial Chamber]”.

If that were so, I would have agreed with the summary dismissal of both applications. However, since such an interpretation runs counter to both the high policies that underlie the claimed privilege and, as will be seen, the language, context and purpose of the Rule, I have concluded that the applications fall outside Rule 126. I also consider that the appellant’s appeal to the inherent jurisdiction of this Chamber over what is an “issue that is incidental to its primary jurisdiction and the determination of which serves the interests of fair justice”13 should have been accepted.

V. Legal context – the construction of Article 28 and Rule 126

A. Approach to basic rights

15. As the Al Jedda decision of the European Court of Human Rights (“ECtHR”) shows, a UN Security Council resolution is presumed not to authorise infringements


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of fundamental rights unless it expresses a clear contrary intention.14 In that case, a Security Council resolution with general language, which the House of Lords had previously held justified detention without trial, was held by the Grand Chamber of the ECtHR not to authorize conduct that infringed fundamental rights. Such rights are to be upheld if at all possible; any authority to override them, if indeed it can lawfully be conferred, must be given in explicit and clear terms.15

16. Accordingly, the judges of this Tribunal have no power, as the creators of the Rules pursuant to Article 28, to override whatever entitlement to qualified privilege the law provides to journalists reporting on conflict areas in the public interest. In particular, the right of a journalist entitled to privilege is of such high importance that the Rules cannot, in my view, deny the Appeals Chamber the opportunity to review its denial by the Trial Chamber. Article 28 of the Statute contains no language that can be said to authorize such a result; it is to be presumed that the rule-making power it confers will be exercised in conformity with the law, not to defeat it. Nor do the judges of this Tribunal have such a power in their judicial role.

17. The journalist’s claim in this case is analogous to that of a lawyer who is asked in evidence to answer a question which professional legal privilege provides

14 ECtHR, Al Jedda v. United Kingdom, 27021/08, 7 July 2011, para. 102: [T]here must be a presumption that the Security Council does not intend to impose any obligation on Member

States to breach fundamental principles of human rights […] In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

Whether and if so to what extent the UN Security Council can specifically override such rights does not require present consideration.

15 A celebrated formulation of the principle is that of Lord Hoffmann in the UK House of Lords, R v. Secretary of State for the Home Department, Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 8 July 1999, at 131:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The [UK] Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

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protection against answering. There, the law was stated by Lord Taylor CJ in R v. Derby Magistrates’ Court Ex parte B:

The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. […] [It] is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors.16

18. Likewise, if the appellant in this case is entitled to privilege, it is a privilege created by the law not only for the individual journalist’s benefit but for the press as a whole in the interests of the entire community. It is the obligation of the judges both as rule-makers and as adjudicators to protect whatever legal right of privilege a journalist may possess. It follows that the Rules, including Rule 126, are presumed not to deprive the Tribunal of its power and obligation to maintain whatever privilege the appellant may possess to the maximum extent permitted by law. If the Rules did lead to such a result, then the judges, in their rule-making capacity, would have acted ultra vires of the authority contained in Article 28 of the Statute

B. The language, context and purpose of Rule 126

19. Moreover, in any event, on its true construction, Rule 126 cannot be fairly read as having that same effect. It is focused on issues between Prosecutor and Defence and says nothing about issues affecting third parties such as in the In the matter of El Sayed 17 (see below, para. 23). That is clear from a cumulative reading of Rule 126 (A)-(C).

16 United Kingdom, House of Lords, R v. Derby Magistrates’ Court Ex parte B [1995] UKHL 18; [1996] 1 AC 487, 19 October 1995, at 507, 508.

17 See STL, In the matter of El Sayed, CH/AC/2011/01, Decision on Partial Appeal by Mr. El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, 19 July 2011, paras 27-30.

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20. Rule 126 (B), sandwiched between Rule 126 (A), stating “[t]his Rule applies to all motions […]” and Rule 126 (C) stating that “[d]ecisions on all motions under this rule are without interlocutory appeal”, provides that “either Party may apply by motion for appropriate ruling or relief […]”. These are to be read together: Rule 126 (B) makes plain that they are referring to all applications by a Party.

21. The focus of Rule 126 (C) is again on issues between Prosecutor and Defence. It takes care to avoid injustice in their case by addressing issues “that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial”. Concern for expedition requires that issues for which immediate resolution is not required be deferred to the end of the trial. But it says nothing about an issue raised by a third party, whether by Mr El Sayed in the El Sayed Jurisdiction Appeal Decision when he sought access to documents in the possession of the Prosecutor, or by a witness who claims privilege.

22. Read literally and in isolation from the factual and legal contexts, including the approach taken by the law to basic rights, the repetition of the words “all motions” in Rule 126 (A) and (C) would have foreclosed an appeal in a case like the El Sayed Jurisdiction Appeal Decision where a third party sought to seize the Tribunal of their matter. However:

The modern approach of the court to construing […] regulatory documents is to prefer a purposive to a literal approach.18

23. In the El Sayed Jurisdiction Appeal Decision, discussed at paras 26-27 below, the claimant was not denied access to the Tribunal and the Prosecutor was permitted to appeal. Rather, the decision of the Appeals Chamber was quite to the contrary. That case involved a Lebanese general who had been imprisoned for 3 ½ years in Lebanon without charge on suspicion of being involved in the attack of 14 February 2005. He had been released on the application of the Prosecutor shortly after the Tribunal was created on 1 March 2009. Mr El Sayed then applied to the Tribunal in order for the Prosecutor to disclose to him documents that were relevant to his

18 United Kingdom, Supreme Court, In the matter of Lehman Brothers International (Europe) (In Administration) and In the matter of the Insolvency Act 1986 [2012] UKSC 6, [2012] Bus L R 667 at 688, para. 47 (per Lord Walker).

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detention. The Pre-Trial Judge granted the application which the Prosecutor sought to appeal. On the argument accepted by the majority in the present case, the Appeals Chamber would have held that the matter fell within Rule 126 (A) and, since the Rules made no provision for appeals in circumstances where a third party and the Prosecution are the exclusive litigants, this Chamber lacked jurisdiction to entertain the appeal. But we held that Rule 126 had no application and for reasons outlined at paras 26-27 below we accepted jurisdiction to consider the appeal.

24. Furthermore, this Chamber does not, in my view, properly consider the rationale behind certification and its application to the present case. Ordinarily, it is the Parties (Prosecution or Defence) who request certification to appeal a rendered decision. There, when a matter is not certified for appeal this does not result in the parties being barred from approaching the Appeals Chamber. Rather, a denial of certification simply means that the parties are denied the opportunity to appeal on an interlocutory basis. The parties are still able, if they so wish, to raise such matters in their appeal of the final trial judgment.

25. This rationale has no application to the present case any more than In the matter of El Sayed. The Majority’s insistence that Rule 126 applied and the Trial Chamber’s denial of certification forced the appellant to give evidence the following day, thereby extinguishing the opportunity to approach the Appeals Chamber on a permanent basis. Since the journalist is not a party to the proceedings, she will therefore have no right to appeal against the final trial judgment.19 And since the journalist has been forced to give evidence, the matter has become moot. The end result is that the denial of the claim to privilege accorded to war correspondents will forever escape the scrutiny of the Appeals Chamber and any error made by the Trial Chamber will never be subject to appellate review. This, in my mind, is inconsistent with due process and the “highest standards of international criminal procedure” required by Article 28 of the Statute and applied In the matter of El Sayed.

19 In this context, I note that none of the counsel representing the various accused in the Ayyash et al. proceedings opposed the summoning of the appellant to give evidence (see STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC, F2040, Decision on Prosecution Application for a Summons to Appear for Witness 012 and Order Issuing a Summons for a Witness, 1 July 2015, para. 1).

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26. The point of the El Sayed Jurisdiction Appeal Decision was to deal with just such a situation. It set out the principles on which, contrary to domestic law, international courts will accept jurisdiction despite the absence of specific authorizing language in the relevant Statute or rules:

[T]he Tribunal possesses inherent jurisdiction [to] fill[] an unforeseen gap in the legal regulations, and serves to determine a procedural issue incidental to the exercise of the Tribunal’s primary jurisdiction. In addition, it is consonant with, and indeed required by, the principle of fair administration of justice and full respect for the rights of all those involved in the proceedings before this Tribunal.20

It does so:

[O]ver any issue that is incidental to its primary jurisdiction and the determination of which serves the interests of fair justice.21

[…]

The Appeals Chamber also exercises its inherent jurisdiction to consider this interlocutory appeal. The Appeals Chamber will not normally consider interlocutory appeals outside the scope of the Rules but finds it necessary to do so here, where a situation has arisen that was not foreseen by the Rules, and it is alleged that a jurisdictional error has been committed and injustice may result if such an error as is alleged were left uncorrected.22

27. The El Sayed Jurisdiction Appeal Decision recognized that, where first instance redress is granted to the claimant, the respondent (there the Prosecutor) may appeal. That argument must apply a fortiori where a third party claimant wishes to appeal such a first instance decision which is adverse – particularly where matters such as privilege are at issue. In other words, where a person alleges fundamental rights are being breached, redress must be available. That must include, in the present case, recourse to this Chamber. Here that is required to ensure that a privilege to which

20 El Sayed Jurisdiction Appeal Decision, para. 53; see also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, F1178, Decision on Application by Counsel for Messrs Badreddine and Oneissi Against President’s Order on Composition of the Trial Chamber of 10 September 2013, 25 October 2013, para. 11 (“any exercise of inherent jurisdiction would have to address a lacuna in our legal regime.”).


22 Id. at para. 54.

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the appellant may be entitled, conferred in the public interest by the general law, has not been wrongly denied. The present claim falls squarely within the principle of the El Sayed Jurisdiction Appeal Decision. As In the matter of El Sayed, the absence of explicit provision for appeal demonstrates a clear lacuna in our Rules which must be filled by this Chamber in the exercise of its inherent jurisdiction.

28. The decision of this Chamber In the matter of El Sayed warrants substantial citation and the material passages are appended to this dissent (footnotes omitted).

29. For these reasons, I find the Trial Chamber’s denial of certification does not operate to deprive the Appeals Chamber of jurisdiction in this case.

VI. The stay application

A. Jurisdiction

30. The Majority decision reasons that:

[W]e have held repeatedly that absent exceptional circumstances we lack the power to order the suspension of a decision if we are not properly seized of an appeal. Because we decided that we had no authority to consider the Application it follows that we could not order any suspension either. We therefore rejected the Request for Suspensive Effect.23

31. If there had been such decisions of this Chamber, for reasons that follow, such jurisprudence would be unsupportable. But the cases cited for this proposition do not sustain the Majority’s argument. In the first, counsel for the appellant had not yet filed their appeal brief.24 That was also the position in the second case.25 These cases provide no support for the proposition that where there are grounds for arguing that Rule 126 does not apply (as, for example, in the El Sayed Jurisdiction Appeal


24 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.7, F0004, Order on Request for Suspensive Effect of Appeal, 4 April 2014, para. 4.

25 STL, In the matter of El Sayed, CH/AC/2011/01, Order on Urgent Prosecution’s Request for Suspensive Effect Pending Appeal, 12 September 2011, para. 4.

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Decision) the Appeals Chamber cannot order a stay of the appealed decision so it can examine the merits of the appellant’s arguments.

32. In fact, the power to do so derives from the customary international rule conferring on each international court the power to determine its own jurisdiction – the “compétence de la competénce” or “Kompetenz-Kompetenz” as this Chamber recognized in the El Sayed Jurisdiction Appeal Decision.26 That this Tribunal and Appeals Chamber possesses such a power derives unarguably from their establishment by Security Council Resolution 1757 to which the Statute is annexed and whose Article 8 composes the respective Trial and Appeals Chambers with judges duly appointed by the Secretary-General pursuant to Article 9.

33. This principle is so vital to the proper administration of justice that it permits, in my view, a court to determine the legality of its own creation. A logician might perhaps argue that the position should be different where jurisdiction is at issue, as it is here and is often in arbitration cases: how can such a judge or arbitrator, who may in the end prove to have been invalidly appointed, determine the validity of his or her own appointment?27 But for at least six decades such dilemma been resolved in the manner described by Oliver Wendell Holmes Jr: “[t]he life of the law has not been logic: it has been experience.”28 So the UK Supreme Court has recently confirmed the explanation by Devlin J in Christopher Brown Ltd v. Genossenschaft Österreichischer Waldbesitzer29:

It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally. Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of


27 On my approach we encountered that very problem in STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, F0020, Decision on the Defence Appeals against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal” – Separate and Partially Dissenting Opinion of Judge Baragwanath, 24 October 2012, para. 17.

28 O. W. Holmes, Jr., The Common Law (Boston, 1881), p. 1.

29 United Kingdom, Queen’s Bench Division, Christopher Brown Ltd v. Genossenschaft Österreichischer Waldbesitzer [1954] 1 QB 8, pp 12-13.

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their jurisdiction to be held over until it is determined by some court which had power to determine it. They might then be merely wasting their time and everybody else’s. They are not obliged to take either of those courses. They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties – because that they cannot do – but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not. If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all. They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties.30

34. It was equally the right and duty of this Chamber to investigate the merits of the claim raised by the appellant and for that purpose, in accordance with its inherent authority to determine its own competence, to order a stay of the order issued by the Trial Chamber for as long as was reasonably necessary to complete an unpressured evaluation. It was also the right of the appellant to have the Direct Appeal considered at whatever length it demanded rather than on the basis that “[b]ecause we decided that we had no authority to consider the application it follows that we could not order any suspension either.”31

B. Criteria for stay

35. These are:

1. Does the appellant have a prima facie case in law and in fact?

2. If the stay is wrongly granted and the uncertificated application to the Appeals Chamber fails, what would be the detriment to the proceedings and to the public interest?

30 United Kingdom, Supreme Court, Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, [2011] 1 AC 763, 3 November 2010, p. 811.


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3. If the stay is wrongly declined what would be the detriment to the appellant and to the public interest?

4. Is there an arguable case warranting due consideration?

1. Does the appellant have a prima facie case?

a. Is there legal support for the concept of war correspondent privilege for journalists?

36. As discussed above,32 the Randall Decision provides direct and powerful appellate authority for the concept of such privilege. Therefore there is legal support for the appellant’s privilege claim which should have been duly considered rather than summarily dismissed.

b. IstherelegalsupportfortheconceptofuncertifiedrecoursetotheAppeals Chamber?

37. In the matter of El Sayed supplies such support. It is wholly fortuitous that the status of the journalist, a matter of importance extending far beyond the issues of this important case, should arise for determination simply because the witness is said to have received a telephone call which the Prosecution wish to adduce as evidence to assist in proving their case. If the Trial Chamber has decided this matter wrongly, the case would fall squarely within the language of the El Sayed Jurisdiction Appeal Decision, not least its emphasis on the need for the full exercise of the Tribunal’s authority. As already noted, it does so:

[O]ver any issue that is incidental to its primary jurisdiction and the determination of which serves the interests of fair justice.33

[…]

The Appeals Chamber also exercises its inherent jurisdiction to consider this interlocutory appeal. The Appeals Chamber will not normally consider

32 See above, paras 8-12.


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interlocutory appeals outside the scope of the Rules but finds it necessary to do so here, where a situation has arisen that was not foreseen by the Rules, and it is alleged that a jurisdictional error has been committed and injustice may result if such an error as is alleged were left uncorrected.34

Yet by contrast, the Majority state that:

[I]nterlocutory decisions are not subject to an automatic right of appeal. Indeed an appeal against such decisions may only be filed if this right is explicitly granted in the Rules or if certification to appeal is given by the first instance Judge or Chamber.35

38. The footnote to that quotation cites our decisions in the Ayyash LRV Appeal Decision36 and the Merhi Joinder Appeal Decision.37 While the statement is correct in respect of issues between the Prosecution and the Defence as parties in the proceedings, the decisions cited contain no suggestion that they could apply to an appeal by a non-party such as the present journalist. In the Ayyash LRV Appeal Decision the present issue did not arise since certification for the appeal had been granted. In any event, since victims are expressly provided for as active participants in the proceedings by both our Statute and Rules, the decision is of no present relevance; it was reasonable to assume that an appeal by the Legal Representatives of Victims had been considered when the Rules were drafted. This is contrary to the Majority’s assertion that “unlike in El Sayed, “the [present] issue is not one that the drafters of the Rules could not anticipate”.38 The present case provides a clear instance of a matter that could not have been anticipated. Likewise, the Merhi Joinder



36 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, F0009, Decision on Appeal by Legal Representative of Victims Against Pre-Trial Judge’s Decision on Protective Measures, 10 April 2013 (“Ayyash LRV Appeal Decision”), para. 9 (“We recall that under our Rules, interlocutory decisions are not subject to an automatic right of appeal. Indeed, an appeal against such decisions may only be filed if this right is explicitly granted in the Rules or if certification to appeal is given by the first instance Judge or Chamber”).

37 STL, Prosecutor v. Ayyash et al., STL-11-01/T/AC/AR126.7, F0013, Decision on Appeal by Counsel for Mr Merhi Against Trial Chamber’s “Decision on Trial Management and Reasons for Decision on Joinder”, 21 May 2014 (“Merhi Joinder Appeal Decision”), para. 14 (“We may intervene in interlocutory decisions of the Trial Chamber or the Pre-Trial Judge only on appeal as of right or following certification”).


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Appeal Decision concerned a dispute between the Prosecutor and an accused whose case had been joined by the Trial Chamber to the main Ayyash et al. trial. As an issue between Prosecutor and Defence, it fell clearly within the language of Rule 126.

39. It has been noted that the time is long past when courts adopted a narrow literal approach to the interpretation of legislation. As explained in this Chamber’s Interlocutory Decision on the Applicable Law, words are to be interpreted not in isolation but in total context.39 I therefore accept the submission of the appellant that on the present facts the El Sayed Jurisdiction Appeal Decision is of direct application.

2. If the stay is wrongly granted and the uncertified application to the Appeals Chamber fails, what would be the detriment to the proceedings and to the public interest?

40. If a stay had been granted there would have been delay for the time required by the Appeals Chamber to consider the arguments without pressure and prepare its decision. Given the relative novelty of the claimed privilege, oral argument and an opportunity for amicus curiae submissions might have extended the length of the delay. But since the Prosecution have other witnesses waiting to be heard the delay in hearing the witness would not have materially interfered with the conduct of the trial.

3. If the stay is wrongly declined what would be the detriment to the journalist and to the public interest?

41. The privilege would be breached. The claim as to the consequences of such testimony as made by the senior officer of the appellant’s news agency has not been the subject of contrary evidence. It is also worth repeating that the damage would have been irreversible.

39 STL, STL-11-01/I/AC/R176bis, F0936, Interlocutory Appeal on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, paras 19-21.

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4. Is there an arguable case warranting due consideration?

42. I would have held that there was such a case and that there should have been a stay pending this Chamber’s unpressured decision on the merits.

VII. The merits

43. Rather than dismiss the claim summarily, this Chamber should, in my opinion, have ordered the stay so as to address the merits without haste. There is no purpose in speculating on what course the appeal would have taken had the stay been granted. I offer no comment on the merits.

VIII. Conclusion

44. It is unnecessary to rehearse the challenges which led elected representatives of the people of Lebanon to seek from the Security Council the intervention which created this Tribunal. Lebanon, an outstanding contributor to the international rule of law,40 is still striving against daunting pressures to fully restore peace and security within its borders.

45. In this context, I recognize that, if the factual basis for its exercise were made out – and I have emphasized that this opinion has not addressed that topic – war correspondent’s privilege, like legal professional privilege, should not be cast away lightly. Because of its important function in society we should be vigilant to protect it to the maximum extent that the law permits. In the present case, our rules make no express provision for a third party to seize the Appeals Chamber of the present matter. But the deficiency in our rules is met by the settled jurisprudence of the El Sayed Jurisdiction Appeal Decision. It is for these reasons that inherent jurisdiction exists to ensure that justice is done. Hence my dissent.

40 As witness its major contributions to the Roman Law that underlies the law of four continents, and to the creation of both of the United Nations and the Universal Declaration of Human Rights (1948).

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Judge David Baragwanath

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APPENDIX

STL, In the matter of El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing,

10 November 2010, paras 38-48

II. Whether the Tribunal Is Endowed with Jurisdiction

A. The Power of International Tribunals to Pronounce Upon Their Own Jurisdiction

38. […] the Prosecutor first asserts that the Pre-Trial Judge erred as a matter of law in concluding that the Tribunal has jurisdiction over the Application. The Appeals Chamber must therefore rule on the question of the Tribunal’s authority to pronounce on the matter raised by the Applicant, namely whether the Pre-Trial Judge may request that the Prosecutor and the Applicant argue the merits of the Applicant’s request that he be granted access to the relevant pieces of evidence. In other words, the Appeals Chamber must pass judgment on the issue of the Tribunal’s own jurisdiction.

39. The question of the scope of an international tribunal’s jurisdiction such as this one is complex. In order to appropriately address this question, it is necessary to consider it within the general context of international adjudication.

40. In the case of domestic courts, the scope of their jurisdiction (whether subject-matter jurisdiction or personal, territorial, or temporal jurisdiction) is normally defined by law. That this should be so is only natural, given that domestic courts make up a proper judiciary, consisting of a number of judicial bodies distributed over the state’s territory, each being endowed with specific powers, a well-defined field of action, and a distinct territorial competence. Domestic judiciaries are organized not only horizontally, but also vertically, being part of a hierarchical organization in which the higher courts may revise or reverse decisions of the lower courts. Within domestic legal systems, questions of jurisdiction raised before a particular court may be settled by that court, if the law so provides, but may often be settled by a higher

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court. Indeed, in some countries, such questions must be referred to the highest judicial body, which has the authority to decide on the matter in such a manner that its decisions are binding on all the courts of the state. Similarly, other questions pertaining to the conduct of proceedings raised before a specific court may have to be settled by another court or by a higher court. This holds true for questions relating to the recusal of judges, to misconduct of the persons participating in the proceedings, and so on.

41. Things are different at the international level. In this field, there is no judicial system. Courts and tribunals are set up individually by States, or by intergovernmental organizations such as the United Nations, or through agreements between States and these organizations, but they do not constitute a closely intertwined set of judicial institutions. Indeed, each tribunal constitutes a self-contained unit or, as has been said, “a monad that is very inward-looking” or “a kind of unicellular organism”. There is neither a horizontal link between the various tribunals, nor, a fortiori, a vertical hierarchy. As was aptly noted in 1995 by the ICTY Appeals Chamber in Tadić (Interlocutory Appeal), international law “lacks a centralized structure, [and] does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others.”

42. It follows that international courts and tribunals may not rely on other international courts for the determination of jurisdiction and the host of other procedural matters not addressed by their own statutes. They have perforce to settle such issues for themselves. In other words, international judicial bodies must each exercise powers which in other legal systems are spread across a hierarchy of courts.

43. Whenever a question relating to the jurisdiction of an international tribunal is raised, therefore, it falls to the court itself to adjudicate it, for lack of any other judicial body empowered to settle the matter. In instances where that court’s constituting documents do not expressly grant the court the power to decide on its own jurisdiction, the resulting condition may appear to be paradoxical. Indeed, in such instances, a court exercises a power not provided for in its statutory provisions, with a view to determining whether, under those provisions, it has the power to

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pass on the merits of the question at issue. The paradox, however, disappears if one recognizes that a customary international rule has evolved on the inherent jurisdiction of international courts, a rule which among other things confers on each one of them the power to determine its own jurisdiction (so-called compétence de la compétence or Kompetenz-Kompetenz). This rule is attested to, inter alia, by the numerous international decisions holding that international courts are endowed with the power to identify and determine the limits of their own jurisdiction.

B. The Notion of Inherent Jurisdiction

44. The nature and structure of international courts referred to above entails, in addition to the power of each court to pronounce on its own jurisdiction, that international judicial bodies may have to exercise inherent jurisdiction to an extent larger than any domestic court. The notion of inherent jurisdiction has been referred to by many international judicial bodies, such as the International Court of Justice, the ICTY, the ICTR, the Special Court for Sierra Leone, the Inter-American Court of Human Rights, the European Court of Human Rights, the Iran-US Claims Tribunal, and the ILO Administrative Tribunal.

45. With regard to the Tribunal, by ‘inherent jurisdiction’ we mean the power of a Chamber of the Tribunal to determine incidental legal issues which arise as a direct consequence of the procedures of which the Tribunal is seized by reason of the matter falling under its primary jurisdiction. This inherent jurisdiction arises as from the moment the matter over which the Tribunal has primary jurisdiction is brought before an organ of the Tribunal. It can, in particular, be exercised when no other court has the power to pronounce on the incidental legal issues, on account of legal impediments or practical obstacles. The inherent jurisdiction is thus ancillary or incidental to the primary jurisdiction and is rendered necessary by the imperative need to ensure a good and fair administration of justice, including full respect for human rights, as applicable, of all those involved in the international proceedings over which the Tribunal has express jurisdiction.

46. International courts have exercised this inherent jurisdiction in many instances where their statutory provisions did not expressly or by necessary implication

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contemplate their power to pronounce on the matter. By way of example, one can mention the power to take interim measures, to request stays of domestic proceedings or to stay its own proceedings, to order the discontinuance of a wrongful act or omission, to appraise the credibility of a witness appearing to testify under solemn declaration before the international court, to pronounce upon instances of contempt of the court, to order compensation in appropriate circumstances, to consider matters or issue orders proprio motu, and to rectify material errors contained in a court’s judgment.

47. The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.

48. The practice of international judicial bodies shows that the rule endowing international tribunals with inherent jurisdiction has the general goal of remedying possible gaps in the legal regulation of the proceedings. More specifically, it serves one or more of the following purposes: (i) to ensure the fair administration of justice; (ii) to control the process and the proper conduct of the proceedings; (iii) to safeguard and ensure the discharge by the court of its judicial functions (for instance, by dealing with contempt of the court). It follows that inherent jurisdiction can be exercised only to the extent that it renders possible the full exercise of the court’s primary jurisdiction (as is the case with the compétence de la compétence), or of its authority over any issue that is incidental to its primary jurisdiction and the determination of which serves the interests of fair justice.

17.Case name: In the Case Against

Al Jadeed [CO.] S.A.L./ NEW T.V. S.A.L. (N.T.V.) Karma Mohamed Tahsin Al Khayat

Before: Contempt Judge

Title: Public Redacted Version of Judgment

Short title: Contempt Judgment CJ

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397

THE CONTEMPT JUDGECase No.: STL-14-05/T/CJ

Before: Judge Nicola Lettieri, Contempt Judge


Date: 18 September 2015



IN THE CASE AGAINST

AL JADEED [CO.] S.A.L./ NEW T.V. S.A.L. (N.T.V.) KARMA MOHAMED TAHSIN AL KHAYAT

PUBLIC REDACTED VERSION OF JUDGMENT


Counsel for Al Jadeed [CO.] S.A.L./ NEW T.V. S.A.L. (N.T.V.) and Ms Karma Khayat: Mr Karim A.A. Khan Mr Rodney Dixon Ms Shyamala Alagendra

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Contempt Judgment CJ

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402

Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407

I. Count 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

II. Count 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415

II. Corporate Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426

I. Count 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426

A. Actus Reus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426

II. Count 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442

A. Actus Reus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442

B. Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448

Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461

Glossary of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462

Filings Submitted in the Present Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463

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INTRODUCTION

1. This case concerns a series of television Episodes broadcast in Lebanon in August 2012 on purported confidential Tribunal witnesses, and the Episodes’ subsequent availability online. Al Jadeed TV and Ms Kharma Khayat are alleged to have been responsible both for the broadcasts and for leaving the Episodes online. Ms Khayat characterizes these Episodes as investigative journalism; and it is claimed in the Episodes that they address alleged leaks coming from inside the Tribunal. For this conduct, Al Jadeed TV and Ms Khayat are charged with interfering with the Tribunal’s administration of justice. In various ways, this is an unconventional contempt case. It implicates media expression and supposed limits to that expression under the law; it involves a count—count 1—never before charged in an international court; and most notably, it is the first in the history of international justice in which a legal person is accused of a crime.

2. Having completed the trial and after careful deliberation, I now issue the judgment in this case, along with reasons. First, I summarize the charges, as set out in the Amended Order in Lieu of Indictment.

3. Al Jadeed TV is a private television broadcasting company, based in Beirut, Lebanon, that broadcasts general interest programmes, including news bulletins. It also publishes the content of its broadcasts on its official website, as well as on its own YouTube channel.1

4. Ms Karma Mohamed Tahsin al Khayat, born in 1983, in Saida, Lebanon, was at all times relevant to the Amended Order in Lieu of Indictment Deputy Head of News and Political Programs and a shareholder of Al Jadeed TV.2

5. The Amended Order in Lieu of Indictment charges Al Jadeed TV and Ms Khayat with two counts of contempt, pursuant to Rule 60 bis (A) and Rule 60 bis (A) (iii) respectively, for knowingly and wilfully interfering with the administration of justice by:

1 Table of Agreed Facts, pp. 1, 3; Amended Order in Lieu of Indictment, p. 1.

2 Table of Agreed Facts, p. 1; Amended Order in Lieu of Indictment, p. 1.

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a) broadcasting and/or 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; and

b) failing to remove from Al Jadeed TV’s website and its YouTube channel information on purported confidential witnesses in the Ayyash et al. case, thereby violating the 10 August 2012 Order.3

6. Ms Khayat allegedly had the authority to decide on behalf of Al Jadeed TV which reports would be broadcast by Al Jadeed TV and transferred to its website and YouTube channel, and also had the authority to remove this content from Al Jadeed TV’s online platforms.4

7. The Amended Order in Lieu of Indictment alleges that during the period from February to August 2012 Ms Khayat tasked Mr Rami Al Amin, one of Al Jadeed TV’s reporters, to investigate and prepare a report on purported confidential witnesses in the Ayyash et al. case. Mr Al Amin’s investigative report was broadcast on Al Jadeed TV on 6, 7, 9 and 10 August 2012 in the form of five Episodes containing information on purported confidential witnesses in the Ayyash et al. case (“Episodes”).5

8. The Episodes were allegedly also transferred to Al Jadeed TV’s website, where they remained at least until 4 December 2012, and to Al Jadeed TV’s YouTube channel, where they remained accessible to the public at least until 31 January 2014.6

9. The Amended Order in Lieu of Indictment further alleges that, on 7 August 2012, the Registrar sent a Notice of Cease and Desist to Ms Khayat by email, demanding that “Al Jadeed TV, its principals, employees, agents and affiliates immediately cease and desist from publicizing, in any means, the segments of [the

3 Amended Order in Lieu of Indictment, p. 3.

4 Id. at p. 1

5 Id. at p. 2.

6 Ibid.

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interviews with purported confidential witnesses]”. The Letter was subsequently served on Al Jadeed TV on 8 August 2012.7

10. On 10 August 2012, the Pre-Trial Judge ordered “Al-Jadeed TV, its principals, employees, agents and affiliates immediately to remove any confidential information or material allegedly related to witnesses before the Tribunal, from their websites and from any other resource accessible to the public”. The 10 August 2012 Order was served on Al Jadeed TV on 14 August 2012.8

11. The Amended Order in Lieu of Indictment further states that Ms Khayat failed to remove the Episodes from Al Jadeed TV’s website and YouTube channel, while she had the authority on behalf of Al Jadeed TV to do so.9

12. Additionally, Ms Khayat allegedly knew that broadcasting the Episodes on Al Jadeed TV and publishing them on Al Jadeed TV’s website and/or YouTube channel would undermine the public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses and potential witnesses.10

13. Finally, Ms Khayat allegedly knew that the failure to remove the Episodes from Al Jadeed TV’s website and/or YouTube channel violated the 10 August 2012 Order.11

7 Ibid.

8 Ibid.

9 Amended Order in Lieu of Indictment, p. 2.

10 Id. at p. 3.

11 Ibid.

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PROCEDURAL HISTORY

I. The Indictment

14. On 31 January 2014, Judge David Baragwanath, as the Contempt Judge, issued the Contempt Decision, which included the Order in Lieu of Indictment against Ms Karma Mohamed Tahsin Al Khayat and New TV S.A.L., a legal person.12

II. Contempt Judge and Parties

15. Upon issuing the Order in Lieu of Indictment, Judge Baragwanath recused himself from the case.13 I was subsequently designated as Contempt Judge by order of the President.14 Soon thereafter, in light of the resignation of the original Amicus, the Registrar appointed a new Amicus, Mr Kenneth Scott, to prosecute the contempt allegations.15

16. Following the issuance of summons to appear16 and the lifting of confidentiality of the Order in Lieu of Indictment,17 Mr Karim A.A. Khan was appointed as counsel for the two Accused, 18 and Ms Shyamala Alagendra and Ms Maya Habli were appointed as co-counsel.19

III. Initial Appearance

17. On 13 May 2014, the Accused made their initial appearance. For the purposes of the initial appearance, Al Jadeed T.V.’s general manager, Mr Dimitri Khodr,

12 Decision in Proceedings for Contempt; Order in Lieu of Indictment.

13 Decision in Proceedings for Contempt, paras 68-74.

14 Order Designating Contempt Judge.

15 Registrar Decision Appointing Replacement Amicus Curiae .

16 Summons to Appear (New TV S.A.L.); Summons to Appear (Ms Karma Khayat).

17 Order Lifting Confidentiality.

18 Appointment of Counsel.

19 Appointment of Co-Counsel.

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appeared on behalf of the corporate Accused. Each Accused entered pleas of not guilty on both counts.20

IV. Jurisdiction

18. On 16 June 2014, pursuant to Rule 90 (A) (i), the Defence challenged the jurisdiction of the Tribunal over legal persons.21 It requested that I dismiss the charges against New TV S.A.L. for lack of jurisdiction. The Amicus opposed the motion.22

19. On 24 July 2014, I granted the Jurisdiction Motion and ordered that the charges against New TV S.A.L. be dismissed. While I affirmed the Tribunal’s inherent jurisdiction to prosecute contempt, I held that Rule 60 bis applies to natural persons only, given that there is no basis in the Rule for extending the Tribunal’s jurisdiction to legal persons. I noted that the Rule, just like the Statute, does not contemplate corporate liability explicitly and then found, in light of the Tribunal’s principles of interpretation, that the Rule could not be said implicitly to allow prosecution of legal persons. I determined that the spirit of the Statute, given its terms—especially its understanding of “person”—, supports an interpretation limiting personal jurisdiction in contempt cases to natural persons. I stated that, in the criminal field, where the legislators do not explicitly foresee corporate liability, it is impermissible to proceed by analogy. Further, I could not discern a consensus in domestic criminal systems or a general principle of international criminal law, international treaty or customary law supporting corporate liability or an interpretation of “person” that encompasses corporations. I added that, if there is any ambiguity in Rule 60 bis, the interpretation most favourable to the Accused is one limiting jurisdiction to natural persons.23 I certified the following issue for appeal: whether the Tribunal in exercising its inherent

20 20140513_STL-14-05_I_T1_OFF_PUB_EN_1-21, 13 May 2014, p. 20; 20140513_STL-14-05_I_T2_OFF_PUB_EN_1-23, 13 May 2014, p. 7. All further references to transcripts in this Judgment will use an abbreviated number.

21 Defence Preliminary Motion Challenging Jurisdiction.

22 Response to “Defence Preliminary Motion Challenging Jurisdiction; Response to Defence Request for Leave to Reply to “Response to ‘Defence Preliminary Motion Challenging Jurisdiction’”.

23 Jurisdiction Decision.

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jurisdiction to hold contempt proceedings pursuant to Rule 60 bis has the power to charge legal persons with contempt.24

20. On 31 July 2014, the Amicus appealed the Jurisdiction Decision.25 He argued that the Tribunal’s inherent jurisdiction is not limited by the Statute or Rule 60 bis, and that jurisdiction over legal persons accords with the ratio underlying inherent jurisdiction over contempt, along with the spirit of the Statute, developments in national law and international trends.26 The Defence opposed the Jurisdiction Appeal.27

21. On 2 October 2014, the Appeals Panel granted the Jurisdiction Appeal and reinstated the original Order in Lieu of Indictment.28 The Appeals Panel ruled that the term “person” in Rule 60 bis was ambiguous and that an interpretation encompassing legal persons is supported by the spirit of the Statute, together with the principles of interpretation laid down in customary international law, evolving international standards on human rights, general principles of international criminal law and procedure and, as appropriate, the Lebanese Code of Criminal Procedure.29 The Appeals Panel found that the “ordinary meaning of the term ‘person’” in a legal context can include both natural and legal persons.30 Further, in its examination, the Appeals Panel emphasized developing international standards on corporate accountability and trends in national laws.31

24 Id. at p. 83.

25 Amicus Jurisdiction Appeal.

26 Id. at paras 10, 14, 27.

27 Defence Response to Amicus Jurisdiction Appeal.

28 Jurisdiction Appeal Decision.

29 Ibid.

30 Id. at para. 36.


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V. Amendment of Indictment

22. On 12 June 2014, the Amicus requested that I amend the Order in Lieu of Indictment to correct the name of the corporate Accused.32 The Defence did not oppose the request.33 Subsequent to the Appeals Panel’s reinstatement of the corporate Accused, I granted the request34 and, on 17 October 2014, issued the Amended Order in Lieu of Indictment. The corporate Accused became and has remained Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.).35

VI. Pre-Trial Phase

23. On 4 September 2014, the Amicus filed his Pre-Trial Brief, including his witness and exhibit lists,36 which he amended on 13 October 2014.37 The Defence filed its Pre-Trial Brief on 22 September 2014,38 which it amended on 23 October 2014.39

24. I convened a Pre-Trial Conference with the Parties on 3 November 2014.40

25. During the pre-trial phase, the Amicus engaged in significant disclosure and the Parties submitted motions concerning, inter alia, disclosure, amendments to the witness and exhibit lists, admission of evidence from the bar table, the form of witness testimony and protective measures.

26. On 15 April 2015, the Defence submitted an authorization from the corporate Accused permitting Ms Khayat to appear on its behalf during trial proceedings.41

32 Amicus Request for Leave to Amend Order in Lieu of Indictment.

33 Defence Response to Amicus Request for Leave to Amend Order in Lieu of Indictment.

34 Decision on Amicus Request for Leave to Amend Order in Lieu of Indictment.

35 Amended Order in Lieu of Indictment.

36 Amicus Pre-Trial Brief.

37 Amicus Amended Pre-Trial Brief.

38 Defence Pre-Trial Brief.

39 Defence Amended Pre-Trial Brief.

40 T4, 3 November 2014.

41 Defence Submission of Company Representation Authorization.

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VII. Trial

27. The Parties gave their opening statements on 16 April 2015. Ms Khayat also made a statement. 42

28. On the same day, the Amicus began his case. In total, he called eight viva voce witnesses, including one expert, Dr Anne-Marie de Brouwer. Pursuant to protective measures I had ordered, several witnesses gave testimony in either closed or private session.43 The Amicus closed his case on 22 April 2015.44 I admitted a total of 181 Amicus exhibits.

29. On 29 April 2015, prior to the commencement of its case, the Defence engaged in significant disclosure and submitted its witness and exhibit lists.45

30. On 12 May 2015, the Defence began its case.46 In total, it called four viva voce witnesses, one of whom testified via video-conference link from the Tribunal’s Beirut office.47 The Defence closed its case on 15 May 2015, subject to a ruling on a motion for admission of documentary evidence.48 I admitted a total of 136 Defence exhibits.

VIII. Final Trial Briefs and Closing Arguments

31. The Parties filed their final trial briefs on 8 June 2015.49

32. On 18 and 19 June 2015, I heard the Parties’ closing arguments, along with a rebuttal by the Amicus and a rejoinder by the Defence. Ms Khayat gave a

42 T5, 16 April 2015.

43 Decision on Amicus Application for Protective Measures Regarding Witnesses AP11, AP12 and AP13; Decision on Amicus Application for Protective Measures Regarding Witness AP02;

44 T10, 22 April 2015.

45 Defence Witness and Exhibit Lists.

46 T11, 12 May 2015.

47 Decision on Defence Application For Protective Measures Regarding Witness DT13; T13, 14 May 2015.

48 Defence Bar Table Motion.

49 Amicus Final Trial Brief; Defence Final Trial Brief.

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statement following the Defence rejoinder.50 I subsequently adjourned the hearing for deliberation.

APPLICABLE LAW

33. Contempt of the Tribunal is described in Rule 60 bis (A), which provides:

(A) The Tribunal, in the exercise of its inherent power, may hold in contempt those who knowingly and wilfully interfere with its administration of justice, upon assertion of the Tribunal’s jurisdiction according to the Statute. This includes, but is not limited to, the power to hold in contempt any person who:

(i) being a person who is questioned by or on behalf of a Party in circumstances not covered by Rule 152, knowingly and wilfully makes a statement which the person knows is false and which the persons knows may be used as evidence in proceedings before the Tribunal, provided that the statement is accompanied by a formal acknowledgment by the person being questioned that he has been made aware about the potential criminal consequences of making a false statement;

(ii) being a witness before a Judge or Chamber refuses or fails to answer a question without reasonable excuse including the situation described in Rule 150(F);

(iii) discloses information relating to proceedings in knowing violation of an order of a Judge or Chamber;

(iv) without reasonable excuse fails to comply with an order to appear or produce documents before a Judge or Chamber

(v) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give

50 T15, 19 June 2015, pp. 41-48.

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evidence in proceedings before a Judge or Chamber, or a potential witness;

(vi) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber; or

(vii) threatens, intimidates, engages in serious public defamation of, by statements that are untrue and the publication of which is inconsistent with freedom of expression as laid down in international human rights standards, offers a bribe to, or otherwise seeks to coerce, a Judge or any other officer of the Tribunal.

34. The Tribunal possesses inherent jurisdiction to prosecute the crime of contempt.51 Such jurisdiction derives from the Tribunal’s inherent power, as a judicial institution, to ensure that the exercise of its statutory jurisdiction is not frustrated and that its basic judicial functions are safeguarded.52 Rule 60 bis expresses the Tribunal’s contempt jurisdiction, but because this jurisdiction is inherent, its scope is not confined by the Rule’s terms.53

35. The Accused are charged with two counts; the first under Rule 60 bis (A), the second under Rule 60 bis (A) (iii). Below, I recite the counts as well as the applicable actus reus and mens rea for each. I also summarize the Parties positions, particularly with respect to the elements where there are disputes or divergent characterisations.

36. Of course, the Amicus must prove each element of an offence beyond reasonable doubt in order for a conviction.54

51 Jurisdiction Appeal Decision, para. 32.

52 Id. at para. 32; Jurisdiction Decision, para. 31.


54 See Rule 148 (A) STL RPE; see also ICTY, Prosecutor v. Jović, IT-95-14 & IT-95-14/2-R77, Judgement, 30 August 2006 (“Jović Contempt Trial Judgement”), para. 14; ICTY, Prosecutor v. Marijačić & Rebić, IT9514-R77.2, Judgement, 10 March 2006 (“Marijačić Contempt Trial Judgement”), para. 16.

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I. Count 1

37. In Count 1, under Rule 60 bis (A), the Accused are charged with knowingly and wilfully interfering with the administration of justice by broadcasting and/or 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.55

38. This count does not fall under one of the specific types of conduct listed in Rule 60 bis (A) (i)-(vii). However, as I have held and the Appeal Panel confirmed, Rule 60 bis (A) explicitly contemplates prosecution for conduct beyond that which is listed.56 Any conduct charged under Rule 60 bis (A) must, if proven, amount to a knowing and wilful interference with the Tribunal’s administration of justice. The particular actus reus and mens rea will depend on the charge in each case.57

39. I must first address the Defence assertion that this count is without legal basis.58 The Defence submits that the count should be dismissed because it alleges conduct which, even if proved, does not amount to contempt.59 It contends that there is no legal authority for the charge and that “seeking to characterise media reporting in this way as contempt is wholly disproportionate and does not strike an apposite balance ‘between the rights of the free press and the need to protect the integrity of judicial proceedings’”.60 According to the Defence, moreover, the Order in Lieu of Indictment and the Amicus improperly rely on precedent concerning violation of


56 See Rule 60 bis (A) STL RPE; STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/CJ, F0069, Decision on Motion Challenging Jurisdiction, 6 November 2014, para. 20; STL, In the case against Akhbar Beirut S.A.L. and Al Amin, STL-14-06/PT/AP/AR126.1, F0004, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 23 January 2015 (“Akhbar Jurisdiction Appeal Decision”), para. 55.

57 See, e.g., ICTY, Prosecutor v. Aleksovski, IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Contempt Appeal Judgement”), paras 39-42.

58 Defence Final Trial Brief, paras 20-24.

59 Id. at para. 24.

60 Id. at para. 21.

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court orders relating to specifically identified witnesses in proceedings.61 The Amicus argues that the freedom of the media is not unlimited and that these limitations are also recognized in Lebanon.62

40. As affirmed above, Rule 60 bis (A) encompasses an array of conduct. In response to the Defence’s assertion, I observe that there need not be legal precedent matching the exact behaviour charged in a given case. Here, the only requirement is that the conduct charged can amount to knowing and wilful interference with the administration of justice. I consider, in principle, that the disclosure of information on purported confidential witnesses can undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses, and that such undermining can interfere with the administration of justice. Indeed, while the disclosure of information on purported confidential witnesses does not necessarily interfere with the administration of justice, it could do so, if certain effects and a culpable state of mind are proved. Undoubtedly, maintaining public confidence in courts’ authority and their ability to administer justice is essential to protecting their proper functioning; such that even the right to criticize is not limitless.63 I thus conclude that, if certain conditions are met, proof that public confidence in the Tribunal has been undermined, in the sense articulated below, is sufficient to prove interference with the administration of justice. Before setting out the requirements—the actus reus and mens rea—I must assess the Defence submission with respect to the freedom of the press.64

61 Id. at para. 23.

62 Amicus Final Trial Brief, paras 1-4.

63 See ECtHR, Case of Worm v. Austria, Application 22714/93, Judgment, 29 August 1997, para. 50 (“[T]he limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of justice.”); Marijačić Contempt Trial Judgement, para. 50 (“Any deliberate conduct which creates a real risk that confidence in the Tribunal’s ability to grant effective protective measures would be undermined amounts to a serious interference with the administration of justice. Public confidence in the effectiveness of such orders is absolutely vital to the success of the work of the Tribunal.”). In my view, the reasoning with respect to the public’s confidence in a court’s ability to grant effective protective measures applies as well to protecting confidentiality.

64 Defence Final Trial Brief, para. 21.

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41. There is no doubt that this count engages the freedom of the press.65 However, its implication in this case is properly addressed only if and after the Amicus has proved the elements of the count. Should these elements (actus reus and mens rea) be proved beyond reasonable doubt, then I am required to consider whether the Accused’s conduct was justified, accounting for both the freedom of the press and the need to ensure the integrity of the Tribunal’s proceedings. 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. In sum, the freedom of the press does not relate to the legal foundation of the charge but, if anything, to the possible justification of the conduct. For the above reasons, I reject the Defence’s contention that this count has no legal basis.

42. With respect to the applicable actus reus for count 1, the Amicus submits that he must prove that the Accused (a) broadcast and/or published, or caused to be broadcast or published, information on purported confidential witnesses in the Ayyash et al. case and (b) that such broadcast or publication created a real risk that public confidence in the Tribunal would be undermined, including, inter alia, its ability to grant and enforce protective measures and confidentiality.66 To the contrary, the Defence contends that the Amicus must demonstrate actual interference with public confidence.67 Further, the Defence argues that the Amicus improperly characterizes the language of the count to broaden the alleged effects.68

43. In order to satisfy the actus reus for this count, the prosecution must first prove that the Accused actually broadcast and/or published information on purported confidential witnesses in the Ayyash et al. case. Exactly what or how much information is sufficient will depend on the circumstances. However, I consider that the disclosed information must at least be significant enough that the relevant individual is reasonably identifiable in the circumstances.

65 Jurisdiction Decision, paras 36-40.

66 Amicus Final Trial Brief, pp. 23-25.


68 Id. at para. 25.

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44. In addition, the prosecution must show that such broadcast and/or publication created a likelihood of undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses. Contrary to the Defence’s submission, the prosecution need not demonstrate that public confidence was in fact undermined. Like intimidation of or interference with a witness or potential witness, where “likelihood” is the applicable standard69, broadcasting and/or publishing information on purported confidential witnesses is a crime of “concrete danger”, and thus does not require proof of a particular result. The Defence seeks to draw a distinction between these two scenarios.70 However these two types of acts are discouraged for the same reason: they tend to obstruct justice.71 The potential harm from such conduct is sufficiently serious that just creating a concrete danger may justify a criminal sanction

45. On the other hand, unlike violating a court order—the very act of which amounts to an interference with the administration of justice72—disclosing information on purported confidential witnesses does not automatically constitute contempt. Indeed, I cannot find that public confidence has been undermined just on the basis of “common sense”, uncorroborated by evidentiary proof. Not every disclosure of this kind of information would create such likelihood. It is easy to imagine scenarios where the disclosed information would be so disconnected from the relevant context, or even reality, as to have no impact whatsoever on the administration of justice. Moreover, “common sense” reasoning and generalized conjectures have no place in criminal proceedings, which require proof beyond reasonable doubt.

69 See, e.g., ICTY, Prosecutor v.Haraqija & Morina, IT-04-84-R77.4, Judgement on Allegations of Contempt, 17 December 2008 (“Haraqija Contempt Trial Judgement”), paras 18-19; ICTY, Prosecutor v. Margetić, IT9514-R77.6, Judgement on Allegations of Contempt, 7 February 2007 (“Margetić Contempt Trial Judgement”), para. 64.

70 See Defence Final Trial Brief, para. 25 (b).

71 See above fn. 69; see also Nobilo Contempt Appeal Judgement, para. 36; ICTY, Prosecutor v. Tadic, IT941A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, para. 18.

72 See, e.g., ICTY, In the Case Against Florence Hartmann, IT-02-54-R77.5-A, Judgement, 19 July 2011, (“Hartmann Contempt Appeal Judgement”), para. 107.

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46. Accordingly, in this case the conduct must, when it occurred, have been of sufficient gravity to create, objectively, the likelihood of undermining the public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses. Such likelihood cannot be proved in subjective terms (for example, on the basis of the personal feelings of a small number of people). Under the required objective test, likelihood can only be proved through ascertainable facts. Whether or not the Accused’s conduct in fact caused harm can be relevant to, but is not dispositive of, the existence or degree of objective likelihood at the relevant time.73

47. Regarding the applicable mens rea, the Amicus considers that he must prove the Accused acted deliberately and that they knew, should have known or were recklessly indifferent to the real risk that their conduct would undermine public confidence in the Tribunal.74 Contrastingly, the Defence claims the Amicus must show the Accused acted with the specific intent to interfere with the administration of justice.75

48. In view of the Parties’ arguments, I observe that the mens rea required for a violation of Rule 60 bis (A) is knowing and wilful interference with the Tribunal’s administration of justice. In particular, with respect to the Defence’s argument, I do not consider that, on a plain reading of the text and in line with relevant case-law,76 “knowing and wilful” is a mere stand-in for “specific intent”. As noted above,77 contempt concerns different types of conduct, and these different types require different states of mind.78

73 Cf. United Kingdom, House of Lords, Attorney General v. Guardian Newspapers Ltd. (No. 2), [1988] UKHL 6 (13 October 1988), para. 29.


75 Defence Final Trial Brief, para. 24. I note that “specific intent” can generally be defined as the subjective desire that the prohibited result will occur.

76 See below fn. 81.

77 See above para. 40.

78 See Nobilo Contempt Appeal Judgement, para. 40.

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49. Indeed, there are forms of contempt expressly recognized in Rule 60 bis (A) (i)-(vii) which clearly do not require specific intent, but rather, for example, deliberate conduct with actual knowledge79 that or wilful blindness80 to the fact that such conduct is a violation.81 Wilful blindness can be considered equally culpable as actual knowledge and sufficient to prove knowledge.82 In such cases, the prosecution need not separately prove a specific intent to interfere with the administration of justice.83 I find no basis in the law to conclude that Rule 60 bis (A), which articulates the general mens rea for interference with the administration of justice, requires a higher degree of culpability than the specific conducts listed underneath as constituting such interference per se.

50. The essential question is what state of mind renders the conduct in question sufficiently culpable to constitute a knowing and wilful interference with the administration of justice.84 I find that, in this context, what is required for the prosecution is to establish that the Accused (1) deliberately broadcast and/or published information on purported confidential witnesses, and (2) in doing so they knew that their conduct was objectively likely to undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses. Actual knowledge that the conduct created such likelihood, which can be inferred from a variety of circumstances, suffices, as does wilful blindness. For wilful blindness, the prosecution must first show that the

79 “Actual knowledge” is direct and clear awareness of a fact or understanding a fact as true.

80 “Wilful blindness” is a term used to describe the state of mind of an individual who seeks to avoid civil or criminal liability for a wrongful act by intentionally being unaware of facts that would render him or her liable (for instance, a drug smuggler who deliberately fails to find out about the exact contents of drug packages). In other words, this type of mens rea occurs when a person deliberately engineers a situation to be ignorant of material facts.

81 See Rule 60 bis (A) STL RPE; see, e.g., Hartmann Contempt Appeal Judgement, para. 128; Nobilo Contempt Appeal Judgement, paras 45, 54; ICTY, In the Contempt Case of Milan Tupajić, IT-95-5/18-R77.2, Public Redacted Version of “Judgement on Allegations of Contempt” Issued on 24 February 2012, 24 February 2012, para 16; ICTY, Contempt Proceedings Against Dragan Jokić, IT-05-88-R77.1, Public Redacted Version of Judgement on Allegations of Contempt, 27 March 2009, paras 32-36.

82 See Nobilo Contempt Appeal Judgement, para. 43.


84 See Nobilo Contempt Appeal Judgement, paras 39-45.

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Accused had a suspicion or realization of the likelihood.85 In addition, the Accused must have refrained from finding out about the likelihood, so as to be able to deny knowledge of it.86 In my view, however, basic recklessness87 representing a lower degree of culpability, cannot amount to the “knowing and wilful” conduct required for contempt.

II. Count 2

51. In Count 2, under Rule 60 bis (A) (iii), the Accused are charged with knowingly and wilfully interfering with the administration of justice by failing to remove from Al Jadeed TV’s website and Al Jadeed TV’s YouTube channel information on purported confidential witnesses in the Ayyash et al. case, thereby violating the Order issued by the Pre-Trial Judge in the Ayyash et al. case on 10 August 2012.88

52. The actus reus of this form of contempt is the disclosure of information relating to proceedings before the Tribunal, where such disclosure breaches an order of a Judge or Chamber.89 When the order concerns the removal of information that has already been disclosed, a failure to remove the information constitutes disclosure. In such case, the prosecution must show that the Accused was in a position to remove or cause the removal of the information. In addition, the order must be objectively breached.90 In the event of a breach, the prosecution need not

85 See id. at para. 51; Marijačić Contempt Trial Judgement, para. 18.

86 See Nobilo Contempt Appeal Judgement, paras 43, 45, 52, 54; ICTY, Prosecutor v. Brđanin, IT-99-36-R77, Decision on Motion for Acquittal Pursuant to Rule 98 bis, 19 March 2004, para. 38.

87 Recklessness is one of the four types of mens rea (intent, knowledge, recklessness and criminal negligence). It generally describes the state of mind of an accused who is actually aware of the potential harm of his or her planned actions, but who acts anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring the harm (for instance, the knife thrower whose throw goes awry and kills his assistant).


89 See, e.g., ICTY, Prosecutor v. Jović, IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007 (“Jović Contempt Appeal Judgement”), para. 30; ICTY, In the Matter of Vojislav Šešelj, IT-03-67-R77.4, Public Redacted Version of Judgement Issued on 28 June 2012, 28 June 2012, para. 41.

90 See, e.g., ICTY, Prosecutor v. Šešelj, IT-03-67-R77.3, Public Redacted Version of “Judgement” Issued on 31 October 2011, 31 October 2011 (“Šešelj Contempt Trial Judgement 2”), para. 31; ICTY, In the Case Against Florence Hartmann, IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009, para. 21; Marijačić Trial Judgement, para. 17.

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prove actual interference with the Tribunal’s administration of justice. A violation of a court order per se suffices.91

53. With respect to the applicable mens rea, the Amicus submits that he must prove the Accused (a) knew about, should have known about or were recklessly indifferent to the existence of the relevant order and (b) knowingly and wilfully violated such order. He asserts that the deliberate disobedience of a court order is per se wilful and knowing interference with the administration of justice.92 Further, mere awareness of an order is sufficient to impute knowledge of its contents.93 To the contrary, the Defence argues that the Amicus must prove both (a) knowledge of the order and its contents and (b) wilful intent to violate the order.94 The Defence disagrees with the Amicus that an accused can be convicted for reckless indifference to the existence of an order. The Amicus needs to demonstrate either “actual knowledge” of or “wilful blindness” to the order’s existence. “Actual knowledge” requires proof an accused knew the disclosure was made in clear violation of an existing order. “Wilful blindness” requires proof the Accused had an actual suspicion or realization that an order existed, and wilfully ignored it.95

54. I will generally follow the persuasive and well-established case-law of the ICTY with respect to the same provision, consistent with the tenor of “knowing and wilful”. To satisfy the mens rea, the prosecution must prove that the Accused had knowledge that the disclosure was in violation of an order.96 Where the prosecution demonstrates knowledge of the existence of an order, a finding that the Accused intended to violate it would almost necessarily follow.97 In such case, it is sufficient for the prosecution to establish that the act which constituted the violation was

91 See, e.g., Hartmann Contempt Appeal Judgement, paras 53, 107; Jović Contempt Appeal Judgement, para. 30.

92 Amicus Final Trial Brief, para. 52.

93 Id. at para. 58.


95 Id. at para. 63.

96 See, e.g. Hartmann Contempt Appeal Judgement, para. 127; ICTY, In the Case Against Vojislav Šešelj, IT-03-67-R77.2-A, Public Redacted Version of Judgement, 19 May 2010, para. 26; Jović Contempt Appeal Judgement, para. 27.

97 See, e.g., Hartmann Contempt Appeal Judgement, para. 128; Nobilo Contempt Appeal Judgement, para. 54.

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deliberate and not accidental.98 Proof of actual knowledge of the order, which can be inferred from a variety of circumstances,99 satisfies this element, as does proof of wilful blindness.100 For wilful blindness, the prosecution must first show that the Accused had a suspicion or realization of the order’s existence.101 In addition, the Accused must have refrained from finding out whether it did exist, so as to be able to deny knowledge of it.102 Mere negligence in failing to ascertain whether an order had been made is of an insufficiently culpable nature to constitute contempt.103 In my view, under a proper understanding of the expression “knowing violation of an order”, the same is true for basic recklessness.

III. Corporate Liability

55. Al Jadeed TV, a legal person, is charged with both counts. Reversing my Jurisdiction Decision, the Appeals Panel found that the Tribunal has personal jurisdiction to prosecute legal persons under Rule 60 bis. Consequently, this case became the first in the history of international criminal justice with a corporate accused. The Appeals Panel, however, provided no clear guidance as to the applicable material elements in attributing liability to legal persons charged with contempt before this Tribunal, including with respect to the relationship between the modes of responsibility in the Statute and corporate accused. Because of and despite this, I must identify these elements, recognizing that, as explained below, no international model of corporate criminal liability has emerged.104

98 Ibid.

99 See, e.g., Šešelj Contempt Trial Judgement 2, para. 32; ICTY, Prosecutor v. Jović, IT-95-14 & IT-95-14/2-R77, Judgement, 30 August 2006, para. 20; Marijačić Contempt Trial Judgement, para. 18.

100 See, e.g., Hartmann Contempt Appeal Judgement, para. 128; Nobilo Contempt Appeal Judgement, para. 45; Šešelj Contempt Trial Judgement 2, para. 32.



103 See, e.g., Nobilo Contempt Appeal Judgement, para. 45; Šešelj Contempt Trial Judgement 2, para. 32.

104 The Amicus himself recognizes that this would be the “first case against a legal entity before an international tribunal”. Amicus Final Trial Brief, fn. 183.

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56. The Amicus acknowledges that “while the Appeals Panel affirmed the liability of a legal person for contempt, it did not specify the details of such liability”105. The Amicus sets out elements for attributing the acts or omissions of a “corporation’s principals, employees, agents and/or affiliates” to the corporation that he submits are “common to nearly every model of corporate liability, including that in Lebanon”.106 In his view, such persons must have (1) acted within the scope of their employment; (2) had authority on behalf of the corporation; and (3) acted on behalf of the corporation. Purely private acts and acts outside the scope of a person’s agency would not be attributable to the corporation.107 The Amicus suggests that an additional requirement might be that a natural person be identified and/or convicted before the corporation can be convicted. However, the Amicus argues that this element should not be adopted in international law.108 In addition, the Amicus asserts that applying these elements would not violate the principle of nullum crimen sine lege, emphasizing that the Accused is not required to know all details of a crime.109

57. The Defence submits that the Amicus has not established the elements of corporate liability under international law and therefore those he proposes violate the principle of nullum crimen sine lege.110 The Amicus, in the Defence’s view, derives such elements exclusively from national laws without demonstrating the required consensus. He has not shown that any “trends” had crystallized as elements under international law. In light of this, there is no legal basis to find that any elements existed during the relevant period and were foreseeable. Consequently, the corporate Accused cannot have had knowledge of the applicable elements prior to its acts, let alone with sufficient specificity and clarity. Relatedly, without such elements, the Contempt Judge cannot properly engage in interpretation.111


106 Ibid.

107 Id. at paras 59-60.

108 Id. at paras 61-66.

109 Id. at para. 60, fn. 183.



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58. I first observe that, contrary to the suggestion of the Defence, I am responsible for determining and applying the law in this case with respect to attributing corporate liability. This derives from the principle of iura novit curia (“the court knows the law”), which is commonly recognized in international law.112 Because the Appeals Panel determined that the Tribunal has jurisdiction to prosecute a corporation for contempt under Rule 60 bis, thus crystallizing the Tribunal’s jurisdiction, it is for the judge to identify the applicable law for attribution and the proper elements.

59. But what is this law? Neither the Statute nor the Rules provides an answer. Article 2 of the Statute (“Applicable criminal law”) establishes that certain provisions of the Lebanese Criminal Code, including those on criminal participation, form the Tribunal’s applicable criminal law for prosecuting the criminal acts referred to in Article 1. But Article 1 (“Jurisdiction of the Special Tribunal”) plainly does not contemplate contempt, which is grounded in the Tribunal’s inherent jurisdiction. Moreover, Article 2 does not include among the applicable provisions of the Lebanese Criminal Code any provision on contempt or obstruction of justice. In addition, the scope of Article 3 (“Individual criminal responsibility”) is explicitly limited to the crimes set forth in Article 2. Finally, Rule 60 bis—from which the Tribunal’s jurisdiction over the corporate Accused arises—is silent on the attribution of corporate liability, and the interpretative guidance envisaged in the only other relevant Rule—Rule 3—is unclear as to this topic.

60. Rule 3 details how to interpret other Rules. It lists the sources of interpretation in order of precedence—the principles of interpretation laid down in customary international law; international standards on human rights; the general principles of international criminal law and procedure; and, as appropriate, the Lebanese Code of Criminal Procedure. The Rule is at least relevant here because I am, in a sense, interpreting Rule 60 bis. This is because in light of the Appeals Panel’s Jurisdiction Decision—which concluded that Rule 60 bis permits corporate criminal liability for contempt—and the absence in the Statute and the Rules of the material elements for

112 See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 14 (1986), para. 28-29; ICTY, Prosecutor v. Milutinović et al., IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, Separate Opinion of Judge Shahabuddeen, para. 23.

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attributing such liability or reference to the source thereof, Rule 60 bis must be read as implicitly including these elements. Discerning what these implied elements are can be characterized as interpreting Rule 60 bis. It would thus seem reasonable to look to Rule 3 for interpretative guidance. However, in my view, because interpreting Rule 60 bis in this case requires not the interpretation of a word or provision in a conventional sense, but rather that I articulate the elements of substantive criminal law (as opposed to procedural law), I cannot rely solely on Rule 3.

61. It is thus necessary to look beyond the Tribunal’s governing documents. In doing so, I recognize that there is no relevant international convention with respect to the elements of corporate liability, nor international custom or general principles of law (there is indeed nothing approaching a universal model or a consensus across national systems) on which I can rely.

62. In this respect, the Amicus argues that the elements he proposes are “common to nearly every model of corporate liability, including that of Lebanon”.113 In support, he refers to his Amended Pre-Trial Brief.114 There, however, he more accurately describes the international picture: “States vary in their approaches to […] prosecutions [of corporations], and what emerges from these variations is not a single approach, but a series of principles and trends.”115 In that same brief, he identifies such principles or trends. For none of these does he demonstrate commonality across even a particularly large number of countries.116 For each he cites at most a handful of national practices. And indeed he points to different groupings of countries for various principles or trends.117 It is thus impossible to conclude from the Amicus’s submissions that there exist principles or trends, let alone elements, across nearly every model of corporate liability. Moreover, in any event, I do not consider that “principles or trends” can justifiably define the material elements of crimes.


114 Id. at para. 59, fn. 181.

115 Amicus Amended Pre-Trial Brief, para. 22.

116 See id. at paras 23-30,

117 Ibid.

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63. Surveying national systems, the Appeals Panel merely found a “trend criminalizing the acts of legal entities”.118 It further noted that “the practice concerning criminal liability of corporations and the penalties associated therewith varies in national systems”.119 Indeed, state practice varies significantly, particularly with respect to the crimes for which corporations can be held responsible and the range of natural persons whose conduct can be attributed to the corporation.120 Regarding the latter, the Amicus proposes that the natural person can be any “principal[], employee[], agent[] and/or affiliate[]” with “authority on behalf of” the corporation.121 But, even assuming that all relevant national systems require some level of authority, no consensus exists—or near consensus for that matter—around where the line is to be drawn or from where such authority must derive.122 Critically, I observe that when comparing national systems, one must guard against relying narrowly on terminological commonalities. Doing so risks ignoring or discounting particular qualifications imposed in the various countries elsewhere in statutory provisions or case-law.123



120 See Clifford Chance, Briefings, Corporate Criminal Liability, March 2015 (“Corporate Criminal Liability”) (available at www.cliffordchance.com/briefings/2015/03/corporate_criminalliability.html); Brodowski et al., Regulating Corporate Criminal Liability (Springer International Publishing 2014) (“Regulating Corporate Criminal Liability”), pp. 4, 57-60; Mark Pieth and Radha Ivory, Corporate Criminal Liability:, Emergence, Convergence, and Risk (Springer International Publishing 2011) (“Corporate Criminal Liability: Emergence, Convergence, and Risk”), pp.13-53; Allens Arthur Robinson, Report Prepared for the United Nations Special Representative of the Secretary General on Human Rights and Business, “Corporate Culture” As a Basis for the Criminal Liability of Corporations, February 2008 (“AAR Report”), pp. 4-6, 10-60; Sara Sun Beale & Adam G. Safwat, “What Developments in Western Europe Tell Us about American Critiques of Corporate Criminal Liability”, 8 Buffalo Criminal Law Review 89 (February 2005) (“Developments in Western Europe”), pp. 110-126,136-138; Cristina De Maglie, “Models of Corporate Criminal Liability in Comparative Law”, 4 Washington University Global Studies Law Review 547 (January 2005) (“Models of Corporate Criminal Liability”), pp. 547-555.



123 For instance, Article 121-2 of the French Penal Code establishes that a moral person is criminally liable for infractions committed on its behalf by its organs or representatives. In applying this law, however, the Criminal Chamber of the Cour de Cassation does not have a consistent jurisprudence with respect to the need to identify the particular organ or representative responsible for the imputed infraction. For instance, in a decision of 18 June 2013, the Criminal Chamber of the Cour de Cassation found that the identification of the organ or representative was not necessary to impute an infraction to a particular company because, absent a delegation of authority, the crime in question could only have been committed on behalf of the corporation by its president (France, Cass.

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64. One need not look beyond the most notable so-called “common law” systems to see important differences. To take one example, between the United Kingdom and the United States there is significant divergence regarding the type of position or scope of decision-making authority a natural person must have in order for his/her criminal acts to be attributable to the corporation.124 This in part follows from doctrinal differences reflected by the “identification” approach adopted for common law crimes in the U.K. and the “strict vicarious liability” approach under U.S. federal law.125 In short, the U.K.’s approach is in general more restrictive. Commonwealth countries generally fall somewhere between these two on the spectrum.126

65. Looking at civil law systems, France for example, generally limits corporate liability to criminal acts done by certain “representatives” or “organs” of the corporation.127 These defined categories, and their development in case-law, are distinct from the practices of both the U.K. and the U.S., as well as from those of other civil law countries. For instance, Poland and Hungary permit attribution of the conduct of a much wider-range of actors than France, whereas Portugal and Spain can be said to be in between.128 Additionally, in various systems, it is not always necessary to prove the mens rea for a natural person or even that a specific natural person committed the offence.129

crim. 18 June 2013, nº12-85.917: JurisData nº2013-013165; Bull. crim. 2013, nº144). However, on 19 June 2013, the court overturned a ruling of the cour d’appel on the grounds that it had not sufficiently motivated its finding that the crime imputed to a company had been committed by one of its organs or representatives (France, Cass. crim., 19 June 2013, nº12-82.827; JurisData nº2013-012436; Bull. crim. 2013, nº148). And this relates to just one out of the many systems that allow corporate criminal liability!

124 See Corporate Criminal Liability, pp. 10, 44; Regulating Corporate Criminal Liability, p. 58; Corporate Criminal Liability: Emergence, Convergence, and Risk, pp. 22-24.

125 See Corporate Criminal Liability, pp. 10, 44; Corporate Criminal Liability: Emergence, Convergence, and Risk, pp. 22-24, 63-71, 97-99, 115-124; AAR Report, pp. 18, 29-30.

126 See Corporate Criminal Liability: Emergence, Convergence, and Risk, pp. 24-25; AAR Report, p. 24.

127 See Corporate Criminal Liability, p. 19; Corporate Criminal Liability: Emergence, Convergence, and Risk, pp. 30, 158-161; Models of Corporate Criminal Liability, p. 554.

128 See Corporate Criminal Liability, pp. 19, 28, 36; Corporate Criminal Liability: Emergence, Convergence, and Risk, pp. 32-35, 281-282, 318-321.

129 See Corporate Criminal Liability, pp. 14, 39; Corporate Criminal Liability: Emergence, Convergence, and Risk, pp. 25-26, 33-35; AAR Report. Here I do not even explore many of the other structural and practice-based differences in national models, including with respect to the mens rea required and the kind of crimes to which corporate liability attaches (see above fn. 120).

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66. These are just a few Euro-centric illustrations indicating that there is no international consensus around an important component of attributing liability. I regard that, even if there are identifiable trends, no comparative analysis that honestly accounts for the complexities within and the diversity among states could conceivably produce common material elements. Any attempt at synthesis of these systems would be highly selective and simplistic at best. Such a course would result in a hodgepodge of elements that among other things could not reasonably have been foreseeable by the Accused at the time of the alleged acts and conduct.130

67. In light of the above and for the following reasons, I conclude that it is most appropriate in the circumstances to look to Lebanese law on corporate liability. First, when interpreting Rule 60 bis to determine whether the Tribunal could prosecute legal persons for contempt, rather than look to Lebanon’s Code of Criminal Procedure as provided for in Rule 3 (A), the Appeals Panel examined the Lebanese Criminal Code. It stated that, “in this particular context, where a rule is declarative of the Tribunal’s inherent power over the crime of contempt, it is relevant to draw upon the Lebanese Criminal Code which lists substantive criminal offences”.131 The Appeals Panel added that, “it [is] relevant to consider the fact that legal persons can be criminally liable under Lebanese Criminal Law as an interpretative consideration”.132 While I recognize that the circumstances are different—the Appeals Panel was interpreting a specific term—I consider instructive in this context that, facing uncertainty with respect to substantive law found in the Rules, little if any guidance from the Statute and no express basis for considering Lebanese substantive criminal law, the Appeals Panel determined the Lebanese Criminal Code to be a relevant source in interpreting Rule 60 bis in regard to applicable substantive criminal law.

68. Relatedly, the Appeals Panel relied on the existence of corporate criminal liability under Lebanese law to find that a Lebanese corporation could foresee

130 Cf. STL, STL-11-01/I, F0010, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, para. 137.



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being prosecuted for contempt under Rule 60 bis.133 In its decisions, the Appeals Panel highlighted the “unique link between [Lebanese law] and this Tribunal” and the Tribunal’s “hybrid nature”.134 I thus find significant that the corporate Accused is domiciled in and substantially operates in Lebanon. As it was foreseeable from Lebanese domestic law that certain conduct might give rise to corporate liability, I consider that looking to the material elements of the pertinent Lebanese law would not violate the rights of the Accused; particularly in the absence of contrary provisions in the Tribunal’s Statute or Rules. Finally, I am mindful that, in addition to being the domicile of the corporate Accused, Lebanon is where the alleged acts and conduct in this case occurred and more broadly is at the heart of the Tribunal’s mandate.

69. The applicable provision of Lebanese law is Article 210 of the Lebanese Criminal Code. The second paragraph sets out the conditions in which a legal person can be held liable for a crime. It states that “legal persons shall be criminally responsible for the activities of their directors, members of the administration, representatives and employees[/workers] when such activities are undertaken on behalf of or using the means of such legal persons”.135

70. Lebanon’s Court of Cassation has interpreted “representatives” and “employees/workers” under Article 210 as follows:

[Employees/workers] as used in the aforementioned Article 210 is meant to refer to the legal body’s agent, that is, the person who acts in its name based on the relevant powers granted him by this body; this interpretation is required by the original, French, text of this Article, in which reference is made to the word “agent”, that is, the representative of the legal person; therefore the Arabized text of Article 210 of the Penal Code cannot mean that, in assigning responsibility to the legal body, it places a mere employee in the position of those who are qualified to represent it, such as its director, its board of directors, and representatives who have been authorized by the legal person to act in its name. This is supported by the text of Article 210 itself, which states that in order for criminal responsibility to be assigned to a legal person,

133 Jurisdiction Appeal Decision, para. 71; Akhbar Jurisdiction Appeal Decision, para. 59.

134 Akhbar Jurisdiction Appeal Decision, para. 68; Jurisdiction Appeal Decision, para. 59.

135 Art. 210 Lebanon, Lebanese Criminal Code (STL revised English translation).

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the act in question must have been committed in its name, a condition which is not fulfilled in the case of an employee who has not been given explicit authorization to act in the name of this legal person.136

71. The Court of Cassation has further held that the prosecution must identify and establish the responsibility of a specific natural person before attributing responsibility to the relevant corporation.137 However, the case-law indicates that conviction of the natural person is not required to establish the criminal liability of the legal person.138 Accordingly, in this respect, I must merely be satisfied that the identified natural person, capable of representing the corporation, committed the criminal conduct with the requisite state of mind.

72. Thus, inferring from Lebanese law, in order for the corporate Accused to be held criminally responsible for either count, the prosecution must: (1) establish the criminal responsibility of a specific natural person; (2) demonstrate that, at the relevant time, such natural person was a director, member of the administration, representative (someone authorized by the legal person to act in its name) or an employee/worker (who must have been provided by the legal body with explicit authorization to act in its name) of the corporate Accused; and (3) prove that the natural person’s criminal conduct was done either (a) on behalf of or (b) using the means of the corporate Accused.

136 Lebanon, Court of Cassation, Criminal Chamber 6, Decision No. 60/2010, 9 March 2010 (published in Almarjaa-Cassandre) (STL unrevised English translation); see e.g., Lebanon, Court of Cassation, Criminal Chamber 6, Decision No. 157/2004, 3 June 2004, p. 1033 (published in Almarjaa-Cassandre).

137 See Lebanon, Court of Cassation, Criminal Chamber 6, Decision No. 4/2007, 11 January 2007, p. 939 (published in Almarjaa-Cassandre); Lebanon, Court of Cassation, Criminal Chamber 3, Decision No. 163/2004, 19 May 2004 (published in Sader, Criminal Decisions, 2004).

138 See, e.g., Lebanon, Court of Cassation, Criminal Chamber 3, Decision No. 34/2011, 12 January 2011 (published in Almarjaa-Cassandre) (“[H]olding the company criminally accountable does not preclude punishment of the natural person who committed the act.” (STL unrevised English translation)).

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FINDINGS

I. Count 1

A. Actus Reus

73. In order to satisfy the actus reus for this count, the Amicus must first prove that the Accused actually disclosed information on purported confidential witnesses in the Ayyash et al. case. He then must show that, at the time when it occurred, such disclosure was objectively likely to undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.

1. Disclosure of information on purported confidential witnesses of the Tribunal

74. The evidence shows that from 6 to 10 August 2012, Al Jadeed TV aired five Episodes with the title “The Witnesses of the International Tribunal”.139 These Episodes are described by Al Jadeed TV’s newscaster as revealing the identities of witnesses of the Tribunal and containing their statements.140 The newscaster states that these witnesses are on a confidential list from the Tribunal’s “Witness Protection Program”.141

75. The Amicus argues that the information disclosed in the Episodes, such as the individuals’ initials, voices, professions, work places, town or other geographic location, as well the backgrounds visible in the broadcasts, could easily lead to the identification of the persons concerned.142 In the Amicus’s view, this was especially

139 Comeau; T6, 16 April 2015, p. 4; Lodge, T8, 17 April 2015, p. 12 ; AP12, T9, 21 April 2015, pp 10-11 ; P00045 (confidential); P00046 (confidential); P00047 (confidential); P00055 (confidential); P00071 (confidential); P00076 (confidential); P00077 (confidential); P00078 (confidential); P00126 (confidential), p. 17; P00164 (confidential); P 00165 (confidential).

140 P00046 (confidential), p. 1.


142 Amicus Final Trial Brief, para. 25; T14, 18 June 2015, p. 15.

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true here given the small geographic areas where “everybody knows everything about everybody”.143 The Amicus submits that these circumstances led to the identification of the four purported Tribunal witnesses featured in the broadcasts who testified in this case—AP13, AP12, AP11 and Mr Afif Choiab.144

76. The Defence recalls Mr Comeau’s assertion that it was difficult even for the OTP to identify the 11 individuals featured in the broadcasts. This task required the assistance of an analyst and an investigator.145 The Defence argues further that Witness AP12 was mentioned for a few seconds, his name or initials were not disclosed; neither his image nor his work place was displayed and his voice could not be heard.146 The Defence avers that Mr Choiab was not identified by any member of the public as a result of the broadcasts. 147

77. I make the following findings with respect to the four individuals featured in the broadcasts who testified in this case:

a) AP13

78. Witness AP13 is a [REDACTED] based in [REDACTED]. Al Jadeed TV’s reporter Mr Rami Al Amin intentionally [REDACTED] in this area and subsequently called the witness for assistance. Mr Al Amin video-taped his interaction with the witness. The footage was aired in the [REDACTED] Episode of the Al Jadeed TV series and he is presented as one of the witnesses of the Tribunal. In this Episode, Mr Al Amin mentioned [REDACTED]. Mr Al Amin explained that Witness AP13 was [REDACTED]. In the video, Witness AP13’s face was pixelated and his name was not disclosed but his voice could be heard undistorted.148

143 Amicus Final Trial Brief, para. 25-26.


145 T14, 18 June 2015, p. 43.


147 Id. at para. 55; T14, 18 June 2015, p. 42.

148 P00047 (confidential); P00050 (confidential); P00049 (confidential), p. 1; P00164 (confidential); Comeau, T7, 17 April 2015, p. 31.

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79. Witness AP13 testified that he first came to know about his appearance in the broadcast when a friend called him to ask: “What [is] happening, your name is on the news bulletin.”149 This phone call was followed by many others that the witness received at his home from acquaintances and family members who recognized him in the episode.150 People who recognized the witness’s voice, [REDACTED] and his general appearance and demeanour from the broadcast started asking him about the Tribunal.151 The witness explained that he was [REDACTED] identified by Mr Al Amin because of [REDACTED].152

80. In light of this evidence, I am satisfied that the broadcasts allowed for the identification of Witness AP13.

b) AP12

81. Witness AP12 is [REDACTED]. He was mentioned in the [REDACTED] Episode as one of the Tribunal’s witnesses. [REDACTED].153 He was said to have provided the Tribunal with information [REDACTED].154

82. Witness AP12 testified that, after the airing of the Episodes, he received many phone calls at home in the evening and early in the morning. “People were calling, questioning me [REDACTED]” he stated.155 Some friends told him that [REDACTED] and that he was referred to as “one of the international tribunal’s witnesses”.156 Some [REDACTED] informed him that in the broadcast they talked [REDACTED] about him.157

149 AP13, T8, 20 April 2015, p. 56.

150 AP13, T8, 20 April 2015, pp. 56, 72-73, 77, 79.

151 AP13, T8, 20 April 2015, p. 74.

152 AP13, T8, 20 April 2015, p. 74.

153 P00073 (confidential); P00071, p. 1; P00069; AP12, T9, 21 April 2015, p. 11 (closed session). [REDACTED], see AP12, T9, 21 April 2015, pp. 10 (closed session), 23 (closed session).

154 P00073 (confidential); P00071 (confidential).

155 AP12, T9, 21 April 2015, p. 15 (closed session).

156 AP12, T9, 21 April 2015, pp. 23-24 (closed session).


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83. The witness explained that [REDACTED].158 [REDACTED].159 According to the witness, the information provided by Al Jadeed TV was enough to allow people to identify him.160

84. In light of this evidence, I am satisfied that the broadcasts also allowed for the identification of Witness AP12.

c) AP11

85. Witness AP11 [REDACTED]. He appeared in the [REDACTED] Episode. He was introduced [REDACTED] in the Ayyash et al. case.161 His name was not mentioned,162 but his initials were disclosed163 and he was described as [REDACTED].164 When Al Jadeed TV’s reporter Rami Al Amin visited the witness [REDACTED], he video-taped the witness [REDACTED] while asking questions about his alleged testimony before the Tribunal. During this interview, [REDACTED].165 In the broadcast, the witness’s face was blurred166 but the rest of his body was visible and his voice was not distorted. [REDACTED].167

86. Witness AP11 testified that he first got to know about his appearance in the broadcast when a friend called him and asked: “[REDACTED] Your picture was on


159 AP12, T9, 21 April 2015, pp. 22-23 (closed session), 52-53 (closed session); D00042; D00043.

160 AP12, T9, 21 April 2015, pp. 23 (closed session), 27 (closed session).

161 P00050 (confidential); P00055 (confidential); P00165 (confidential); P00053 (confidential), pp 2, 3.

162 Comeau, T7, 17 April 2015, p. 31 (closed session).

163 AP11, T10, 22 April 2015, pp. 5-7 (closed session); P00166 (confidential); P00167 (confidential), p. 1; Comeau, T6, 16 April 2015, p. 36 (private session).





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TV.”168 He stated that several persons called him after that and others came to see him because they were afraid of talking to him on the phone.169

87. In light of this evidence, I am satisfied that the broadcasts also allowed for the identification of Witness AP11.

d) AfifChoiab

88. Mr Afif Choiab works for the Lebanese Civil Defence Office. He appeared in the third episode of the broadcasts and was presented as a witness of the Tribunal.170 He was introduced as a firefighter in charge of the civil defence in the southern area. Al Jadeed TV journalist Firas Hatoum filmed him in his office with a hidden camera.171 In the broadcast, the witness’s image was pixelated but his voice was not altered.172 His name was not disclosed.173 After the broadcast, an acquaintance told Mr Choiab that “the regional center of Nabatiyeh” appeared on New T.V.174 Other persons had recognized his office from the inside.175 According to the witness, nobody recognized him in the episode.176

89. Given this evidence, I am not satisfied that the broadcasts permitted the identification of Mr Choiab.

e) Other individuals featured in the Episodes

90. The Defence argues that because the seven remaining individuals featured in the broadcasts did not testify in the trial, there is no evidence that their identities



170 P00050 (confidential); P00055 (confidential); P00049 (confidential) p. 3; P00054 (confidential), p. 2.

171 Choiab, T13, 14 May 2015, pp. 41 (private session), 50.

172 Choiab, T13, 14 May 2015, p. 64 (private session).


174 Choiab, T13, 14 May 2015, pp. 38, 55-56.

175 Choiab, T13, 14 May 2015, p. 39.

176 Choiab, T13, 14 May 2015, pp. 38-39.

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were disclosed as a result of the broadcasts.177 As indicated above, the Amicus has submitted the footage of all five Episodes. However, lacking additional evidence, I agree with the Defence that I cannot conclude that their identities were disclosed.

91. In sum, I find that the information provided in the broadcasts permitted the identification of Witnesses AP11, AP12 and AP13.

2. Effect of the disclosure on the public’s confidence in the Tribunal’s ability to protect confidential information

92. The Amicus argues that the conduct of the Accused created a “real risk” to the administration of justice. He refers to Judge Baragwanath’s finding that, as a matter of common sense, intentionally broadcasting information on purported confidential witnesses potentially constituted such interference.178 According to the Amicus, this assertion is corroborated by expert witness Dr Anne-Marie de Brouwer’s conclusion that “disclosure of identifying information of alleged and actual victims/witnesses has significant effects on them, the public and its understanding and perceptions of the international criminal tribunals as well as on the tribunals’ administration of justice”.179 In the Amicus’s view, in Lebanon, a “close knit” society experiencing “political, territorial and religious fragmentation and a permanent state of security alert”, being called a “witness against Hezbollah” can have serious negative repercussions.180 The risk created by the broadcasts was indeed recognized by witness Ms Véronique Bernard, senior security officer at the Tribunal’s Beirut office at that time.181 Moreover, the fact that many Tribunal witnesses are granted protective measures indicates the risk.182 The Amicus further submits that, though it is not necessary to demonstrate actual harm, the evidence proves that various individuals







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featured in the Al Jadeed TV Episodes suffered significant consequences.183 Finally, the Amicus contends that the disclosures, whether true or not, could only have a negative effect on the public’s confidence in the Tribunal, especially its ability to protect victims and witnesses.184

93. The Defence responds that the Amicus failed to prove that the broadcast or publication of the Episodes had actually interfered or posed a real risk of interference with the Tribunal’s administration of justice.185 It argues that there is no evidence that the broadcasts had any impact on witnesses in the Ayyash et al. case and that no one lodged any complaints with, pursued legal action before, or otherwise contacted the STL or the Lebanese authorities about the broadcasts.186 According to the Defence, Mr Comeau’s evidence with respect to the concerns raised by the individuals [REDACTED] after the airing of the Episodes amounts to uncorroborated, inconsistent and partially refuted hearsay and cannot be relied upon.187 In the Defence’s view, the evidence given by Witnesses AP11, AP12 and AP13 does not support the Amicus’s case, as they neither were nor are actual or potential Ayyash et al. witnesses and none were endangered due to the broadcasts or publications.188 Further, Mr Choaib’s public testimony undermines the Amicus’s assertion that the broadcasts endangered the individuals whose identities were purportedly disclosed.189

94. I reviewed the relevant evidence in light of the Parties’ arguments.




186 Defence Final Trial Brief, paras 33-38.

187 Id. at paras 39-41.

188 Id. at paras 42-52.

189 Id. at paras 55-58.

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a) John Allen Comeau

95. Mr Comeau testified that [REDACTED].190 These two or three individuals raised concerns for their safety and the safety of their families.191 In particular, Mr Comeau recalled [REDACTED] Mr Choaib and Witness AP13. Mr Choaib indicated that he felt at risk after being exposed by the media, that he was experiencing extreme anxiety and that he would not be cooperating with the STL in the future.192 Witness AP13 [REDACTED] that he was concerned that his security had been jeopardized in particular because [REDACTED] felt he could be exposed to danger following the disclosure of his identity in the broadcasts.193

b) AP13

96. In a telephone conversation, Witness AP13 understood Al Jadeed TV’s reporter Mr Al Amin [REDACTED].194 According to the witness “when somebody tells you [REDACTED] [i]t’s something that terrorizes you”.195 After appearing on the broadcast, the witness claimed to [REDACTED] and forbid his children from going out at night.196 [REDACTED].197 When challenged by the Defence, [REDACTED].198

97. Witness AP13 further testified that he had received no actual threats after appearing on the broadcasts.199 [REDACTED].200

190 Comeau, T6, 16 April 2015, p. 30 (private session); T7, 17 April 2015, pp 60-61 (private session).

191 Comeau, T7, 17 April 2015, p. 96.

192 Comeau, T6, 16 April 2015, pp. 35, 36-38 (private session).

193 Comeau, T6, 16 April 2015, p. 40 (private session).

194 AP13, T8, 20 April 2015, pp. 65 (closed session), 124-132 (closed session).



197 AP13, T8, 20 April 2015, pp. 76-77 (closed session); Comeau, T6, 16 April 2015, pp. 40-41 (private session).


199 AP13, T8, 20 April 2015, p. 79 (closed session)

200 AP13, T8, 20 April 2015 p. 87 (closed session).

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c) AP12

98. Witness AP12 testified that, a few weeks after appearing in the broadcasts, he received 15 to 20 phone calls at his home late at night and early in the morning.201 People asked [REDACTED].202 He declared that some time after the broadcasts, a man [REDACTED].203 [REDACTED].204 [REDACTED].205 The witness did not explain whether these events were related to the broadcasts.

99. The witness explained that, in Lebanon, whoever cooperates with the Tribunal is considered a traitor. For this reason, after the broadcasts, the witness and his family felt in danger and [REDACTED].206 However, the witness also declared that he never received actual threats.207 He also asserted that he had never experienced the above-described type of incidents before the broadcasts208 and stated that he could not confirm that the phone calls were linked to his appearance in the broadcasts.209 Witness AP12 declared that he suffered the consequences of having collaborated with the Tribunal which is “something that [he] should not have done” and now [his] family [was] paying the price.”210 However, the witness later states that while he was upset by the broadcast of the Episodes and that his life had been endangered, he had not been scared by the broadcast.211

201 AP12, T9, 21 April 2015, pp. 15 (closed session), 24 (closed session), 41 (closed session), 49 (closed session), 69 (closed session).

202 AP12, T9, 21 April 2015, pp. 15 (closed session).








210 AP12, T9, p. 26.

211 AP12, T9, p. 39.

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d) AP11

100. Witness AP11 testified that being exposed by the broadcasts had affected him and his family and that he now had to lock his home door.212 He declared that his whole life had changed and that no-one trusted him anymore since the broadcasts. However, he clarified that the reason why people distrusted him [REDACTED] not because he was an alleged witness of the STL.213

101. Witness AP11 also stated that he was forced [REDACTED].214 However, he later clarified that he [REDACTED] before the broadcasts aired.215

e) AfifChoaib

102. Mr Choaib’s testimony contained numerous inconsistencies and contradictions.

103. For instance, while he initially [REDACTED] that he had been put at risk by being exposed by the media,216 he testified repeatedly that his cooperation with the Tribunal became public through leaks coming from the STL.217 He later explained that his relationship with the Tribunal became known to his colleagues because his testimony was requested through his supervisors. With respect to this request, he testified that, “everyone at the Directorate General of the Civil Defence were aware of that before [he] even knew about it”. He went on to say that Lebanon is a small and community-driven society and nothing is secret.218

104. With respect to the consequences that his contacts with the Tribunal had on his career and personal well-being, the witness failed to provide clear answers. Instead, he gave lengthy, confusing explanations. He suggested that people were aggressive towards him because, after the “the leaks coming from the STL”, the Lebanese media




215 AP11, T9, 21 April 2015, pp. 90 (closed session), 92-93 (closed session).

216 Comeau, T6, 16 April 2015, pp. 39, 43 (private session).

217 Choaib, T13, 14 May 2015, pp. 46-48, 55, 69, 74-76.

218 Choaib, T13, 14 May 2015, p. 71.

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had portrayed those cooperating with the STL as “false witnesses”.219 However, at no point was the witness able to substantiate that he was perceived as a “false witness” in his professional environment or elsewhere, or that he had been intimidated or threatened in any way. He also complained that his public testimony in this trial would have a negative impact in a series of lawsuits he had filed against his employer but he was also unable to substantiate this claim.220

105. As a result of these inconsistencies, I do not deem the testimony of Mr Choiab reliable.

f) Expert witness Anne-Marie de Brouwer

106. In my decision of 27 March 2015, I found that, though Dr de Brouwer’s extensive training and experience had no direct connection to Lebanon, the application of such training and experience to the Lebanese context and to the facts in dispute might assist in the determination of this case.221

107. Dr de Brouwer testified primarily about her conclusions on the effects of disclosure of purported confidential witness information in the context of other international criminal tribunals. However, I am not satisfied that Dr de Brouwer’s examination of the impacts of the disclosure of confidential information in proceedings before other international criminal tribunals was sufficiently comprehensive to allow for general conclusions applicable to the case at hand. For instance, while she cited in her report the Haradinaj case before the ICTY as an example of how the disclosure of confidential witness information can interfere with the administration of justice, the cross-examination by the Defence revealed that she had not thoroughly reviewed the first trial judgment in that case and was unfamiliar with the decision on appeals and the re-trial process in that case.222

219 Choaib, T13, 14 May 2015, pp. 47-48, 55, 69, 71.

220 Choaib, T13, 14 May 2015, pp. 70-71, 76-79.

221 Expert Decision, para. 12.

222 De Brouwer, T10, 22 April 2015, pp. 65-70.

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108. Dr de Brouwer also testified that the consequences of the disclosure of purported confidential witness information are case-specific and depend on multiple factors such as the geographical, political, ethnic, and religious circumstances of each case.223 However, her evidence did not address the effects of disclosures in Lebanon or in the region. She clarified that she had not applied her general findings from international practice to the Lebanese context.224 Consequently, I am not persuaded that her conclusions on the effects of disclosure of purported confidential witness information are applicable to this case.

109. In sum, Dr de Brouwer’s general scholarly expertise does not assist in the specific circumstances of this case. I am therefore not persuaded that her evidence has sufficient probative value with respect to the alleged impact of the disclosure of purportedly confidential information at issue.

g) Documentary evidence

110. The Amicus tendered a number of exhibits pertaining to reactions, by Lebanese media outlets and others, to alleged disclosures of purported confidential Tribunal witnesses, including those at issue here. He did so to demonstrate the effects of the Accused’s acts and conduct.225 I admitted these exhibits because I determined that they could provide informative context on the effects that the disclosures in this case may have had on the public’s confidence in the Tribunal’s ability to protect confidentiality.226

111. I note that, while referring to the disclosure of confidential information by several Lebanese and international media outlets, some of these reports do not mention the impact that such disclosures had or could have had on actual or

223 De Brouwer, T10, 22 April 2015, pp. 38-40.

224 De Brouwer, T10, 22 April 2015, p. 78.

225 Decision on Amicus Bar Table Motion, para. 18.

226 Decision on Amicus Bar Table Motion, para. 19. The admitted exhibits are: P00083 (confidential), P00084 (confidential), P00085 (confidential), P00086 (confidential), P00087 (confidential), P00088 (confidential), P00089 (confidential), P00090 (confidential), P00091 (confidential), P000092 (confidential), P00093 (confidential), P00094 (confidential), P00100 (confidential), P00101 (confidential), P00104 (confidential), P00109 (confidential), P00112 (confidential), P00150 (confidential).

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prospective Tribunal witnesses or even on the Lebanese public’s perception of the Tribunal.227

112. The Amicus tendered several articles by Youkal Net. In his view, Youkal Net’s report of 10 August 2012228 proves that disclosures of purported confidential witnesses’ identities or information may deter witnesses from testifying before the STL.229 The article reports that some individuals whose identities were disclosed by the newspaper Al Akhbar as “false witnesses of the STL” were threatened by Hezbollah after the publication of the article.

113. Another Youkal Net report of 8 April 2014 states that, through its affiliated media, i.e. Al Akhbar, Hezbollah will threaten to kill the witnesses in the “Hariri Tribunal”.230 A report of 9 December 2014 states that the disclosures by Al Akhbar and Al Jadeed TV led to the non-appearance of witnesses before the Tribunal.231 In an article of 10 March 2013, Youkal Net purports to quote the New York Times in stating that “reports from Lebanon” revealed that several witnesses whose identities were disclosed decided not to testify, while others left Lebanon.232 The Amicus has not tendered the report from the New York Times referred to in this exhibit.

114. An article by Elnashra dated 16 January 2013233 cites a statement by the Lebanese Minister of Justice that “the leaks are sowing doubt in some people’s minds and are scaring some witnesses”.

115. An article by Now dated 17 January 2013234 reports on the disclosure by the newspaper Al Akhbar of a list of purported witnesses in the Ayyash et al. case. The

227 P00083 (confidential), P00084 (confidential), P00087 (confidential), P00089 (confidential), P00091 (confidential), P00092 (confidential), P00093 (confidential), P00094 (confidential), P00100 (confidential), P00109 (confidential), P00112 (confidential), P00150 (confidential).

228 P00082 (confidential).







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article quotes a Lebanese lawyer by the name of Marwan Saqr stating that the Al Akhbar publication is an attempt to intimidate the witnesses who may decide to recant their testimonies, which would in turn sabotage the work of the Tribunal.

116. A report by Shia Watch dated 29 April 2013 discusses the disclosure of purported confidential witness information by an unknown website.235 According to this article, “a commentator” declared that incidents such as this “would scare away all the witnesses”. It also states that the intention of the disclosure was to intimidate witnesses and that it had achieved this outcome “immediately and effectively”.

117. I note that none of these articles provide any information on the individuals concerned and quote no source of information. None of these reports were presented to any witness in court who might have testified to the truth of their content. Moreover, the information provided in these exhibits is not corroborated by any other evidence in the record. Accordingly, I find that these exhibits have no probative value with respect to the impact of the Al Jadeed TV broadcasts on the public’s confidence in the Tribunal’s ability to protect confidential information.

118. The Amicus also introduced into evidence a complaint submitted to the Tribunal by 13 individuals purportedly identified as Tribunal witnesses by Al Akhbar in April 2013.236 These individuals claimed that the publication of their names had put them at risk. The plaintiffs based their complaint on statements made by the spokesperson and a judge of the Tribunal that these disclosures could have placed the individuals concerned at risk and that such behaviour could discourage witnesses from testifying. 237

119. According to this document, the plaintiffs requested that their statements be removed from the trial record and their names not be included in the Prosecutor’s list of witnesses in the main trial.238 However, concerns reported by the alleged victims of disclosures are based on conjectures formulated by third persons. As a



237 P00151 (confidential), pp. 5, 7.

238 P00151 (confidential), p.18.

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result, I find that this exhibit has no probative value with respect to the impact of the disclosures in this case of purported confidential witness information on the public’s confidence in the Tribunal’s ability to protect its witnesses.

h) Conclusion

120. In light of this evidence, I am not persuaded that the Amicus proved beyond reasonable doubt that the disclosure of identifying information of purported confidential witnesses was objectively likely to undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.

121. As discussed above, while proof of actual harm is not required, it may be relevant in deciding whether the conduct of the Accused created such likelihood. However the evidence submitted by the Amicus to this effect does not show that the individuals concerned suffered any harm from the disclosures.

122. As I explained above, I do not find Mr Choaib’s testimony reliable per se.239 With respect to Mr Comeau, he testified of the concerns [REDACTED]. His hearsay testimony is reliable as it is corroborated by the testimony of certain of these individuals in court. Indeed, Witness AP12 (and Witness AP13 expressed similar fears) declared that he was scared after being identified as witness of the Tribunal because being perceived a witness against Hezbollah in Lebanon may entail negative consequences.240 However, neither witness provided information that they received threats or were harmed in any way after the airing of the Episodes. Witness AP13 expressed fear of [REDACTED] but clarified that he had actually received no threats. Witness AP12 reported some incidents that occurred after the airing of the broadcasts but provided no information that would link those incidents with the broadcasts. He also declared that he had received no threats. I also find that it is clear from Witness AP11’s testimony that any consequence that he may have suffered

239 See above paras 102-105.

240 See above paras 96, 99.

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from the airing of the episode in which he appears stems from [REDACTED] rather than to his being portrayed as a witness of the Tribunal.

123. I thus conclude that the concerns reported by these witnesses were not based on ascertainable facts that could objectively be linked to the disclosure of their identities and their alleged status as witnesses of the Tribunal by Al Jadeed TV.

124. I can also draw no conclusions with respect to whether the broadcasts had any impact on the witnesses’ confidence in the Tribunal’s ability to protect confidential information. Indeed, Witnesses AP11 and AP13 did not clarify whether or not their own confidence in the Tribunal’s ability to protect such information had been undermined after the airing of the Episodes. Witness AP12 declared that he should never have collaborated with the Tribunal. While this statement suggests that his confidence in the Tribunal had been undermined, he also stated that he had not been scared by the broadcast of the Episodes, which suggests the opposite. Finally, while Mr Choaib declared that he would, if called, testify before the Tribunal,241 I recall that I found his testimony unreliable.242

125. As a result, I cannot infer from the witnesses’ testimony that the broadcast of the Episodes created the likelihood of undermining the public’s confidence in the Tribunal.

126. Additionally, I determined that I cannot rely on the documentary evidence pertaining to the effects of the disclosures. I also found that Dr de Brouwer’s generic expert testimony was not reliable. As a result, there is no evidence on the record on the effects of the Al Jadeed TV’s disclosures on the public in general.

127. The Amicus has not proved the second element of the actus reus for this count. As a result, I must dismiss this charge and consequently do not need to enter findings with respect to the means rea and a fortiori to freedom of press for this count.

241 Choaib, T13, p. 46.

242 See above paras 102-105.

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II. Count 2

A. Actus Reus

128. To satisfy the actus reus for this count, the Amicus must prove that the Accused violated the 10 August 2012 Order by failing to remove the information on purported confidential witnesses from Al Jadeed TV’s online platforms.

1. The 10 August 2012 Order

129. On 10 August 2012, the Pre-Trial Judge issued a confidential and ex parte order directing Al Jadeed TV to cease the dissemination of all material alleged to be related to confidential Tribunal witnesses.243

2. Publication of the Episodes after 10 August 2012

130. The Amicus contends that the Accused violated the Registrar’s 7 August 2012 Cease-and-Desist Letter and the 10 August 2012 Order by not removing the material alleged to be related to confidential witnesses of the Tribunal from all of Al Jadeed TV’s public platforms.244 According to the Amicus, the Episodes were placed on Al Jadeed TV’s website, YouTube channel and Facebook page and remained there until at least 25 April 2013, 15 January 2014 and 26 September 2012, respectively.245

131. The Defence responds that the Amicus failed to prove the dates on which the material was available on Al Jadeed TV’s public platforms, relying on three arguments.246

132. First, the annex to the Amicus’s witness John Allen Comeau’s statement, showing the dates on which the Episodes were available on Al Jadeed TV’s online

243 P00079.

244 Amicus Final Trial Brief, paras 49, 51.



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platforms,247 cannot be relied on, as Mr Comeau did not create it and did not provide any underlying information for the document apart from screenshots of Al Jadeed TV’s Facebook page taken in 2012, which reveal an ‘error message’ that the materials in questions were in fact not available.248 Moreover, there is no “visual record” in evidence verifying the allegations contained in the annex to Mr Comeau’s statement, which fatally undermines the reliability and probative value of the annex, standing on its own with no other evidence.249

133. Second, the availability of the Episodes online is a contested issue, which the Amicus could have addressed by calling Mr Bertrand Gagnon, a former member of the Amicus Investigator’s team who was expected to testify, but the Amicus chose not to do so.250

134. Last, Mr Comeau’s testimony is uncorroborated and untested hearsay evidence that was obtained in circumstances that seriously diminish its reliability. While the Defence acknowledges that hearsay evidence is admissible before international criminal tribunals, it refers to relevant case-law which militates against relying upon only hearsay evidence without further substantiation.251

135. Mr Comeau testified that a language assistant of the OTP who “responded” to him monitored and recorded the availability of the Episodes on the three Al Jadeed TV’s platforms: its website, Facebook page and YouTube channel.252 According to these records, the Episodes were available on Al Jadeed TV’s website until 25 April 2013,253 on its Facebook page until 26 September 2012254 and on its YouTube channel

247 P00159.


249 Defence Final Trial Brief, para. 68; T15, 19 June 2015, p. 26.


251 Id. at paras 70-72; T14, 18 June 2015, pp. 52-54; T15, 19 June 2015, p. 23.

252 Comeau, T6, 19 April 2015, pp 46-47; T7, 17 April 2015, pp. 56-58, 78-79; P00159 (public with confidential annex).

253 Comeau, T6, 19 April 2015, p. 49; P00159, p. 2.

254 Comeau, T6, 19 April 2015, p, 52. P00158; P00159, p. 2.

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until 26 September 2013.255 Mr Comeau later clarified that this language assistant was not under his supervision and that he was “made aware of [the monitoring][…] until such time as [he] went on to other tasks”.256 The dates indicated in the record were the last dates known to him on which the Episodes were available online.257

136. In general terms, I find that Mr Comeau did not have close knowledge of the process of recording the availability of the Episodes on Al Jadeed TV’s platforms. I note in particular his statement that the recording of this information was performed by a language assistant in the OTP; that this language assistant was not under his supervision and that he was not involved in this process but was merely “made aware” of the results. As a result, I do not find Mr Comeau’s hearsay testimony on this matter sufficiently reliable where not corroborated by other evidence in the record.

137. In a letter dated 28 August 2012, the Registrar informed the Prosecutor-General of the Court of Cassation that on 27 August 2012 the Episodes were still available on Al Jadeed TV TV’s online platforms despite the service of the 10 August 2012 Order on Al Jadeed TV and requested his assistance to ensure the discontinuation of the broadcasts.258 The Amicus has not provided any foundation for or corroboration of the assertions contained in the Registrar’s Letter of 28 August 2012. I therefore cannot rely on this hearsay evidence to enter a finding with respect to the availability of the Episodes online up to 27 August 2012.

138. With respect to Al Jadeed TV’s YouTube channel, Mr Comeau added that a staff member of the Amicus, Mr Bertrand Gagnon had informed him over the phone that the Episodes were available on that platform until 15 January 2014.259 In the course of the cross-examination by the Defence, Mr Comeau stated several times that he had spoken with Mr Stephane Bourgon, the former Amicus Curiae Investigator, in 2013 and 2015 on the issue of the availability of the Episodes on Al Jadeed TV’s

255 P00159, p. 2.

256 Comeau, T7, 17 April 2015, p. 79.

257 Comeau, T6, 16 April 2015, pp. 51-52.


259 Comeau, T6, 16 April 2015, p. 49.

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YouTube channel.260 He clarified that he had last spoken to Mr Bourgon the night prior to his testimony in this case.261 However, he later stated that it was Mr Gagnon, a scheduled Amicus witness in this case, to whom he had spoken, not Mr Bourgon.262 Mr Comeau explained that he had made an error with respect to the name of the person in question.263 He later clarified that he did not have first-hand information that the Episodes were available until January 2014 because he was at the time no longer employed by the Tribunal.264 Following Mr Comeau’s testimony, the Amicus decided to not call Mr Gagnon to testify as initially scheduled.265

139. Mr Comeau’s testimony on the availability of the Episodes on Al Jadeed TV’s YouTube channel until January 2014 amounts to hearsay evidence. This information was provided to the witness over the telephone by a third person, Mr Gagnon, who was himself a witness scheduled to testify for the Amicus in this case. However, following Mr Comeau’s testimony, the Amicus decided not to call Mr Gagnon who could have corroborated Mr Comeau’s account. I find that, absent further corroborating evidence Mr Comeau’s hearsay testimony is not sufficiently reliable. Lacking any other evidence on the record of the availability of the Episodes on Al Jadeed TV’s YouTube channel, I conclude that the Amicus has not proven that the Episodes were available on this platform beyond 10 August 2012.

140. With respect to Al Jadeed TV’s Facebook page, the Amicus introduced into the record several screenshots of the page showing a disclaimer indicating that the content is no longer available.266 I had rejected the admission of this item from the bar table on the grounds that further explanation at trial by a person who could speak to the documents’ content was appropriate to inform my decision on its reliability

260 Comeau, T6, 16 April 2015, pp. 57-58, 59-61 (private session), 62-69, 75-78.

261 Comeau, T6, 16 April 2015, p. 61 (private session).

262 Comeau, T6, 16 April 2015, pp. 75-78.

263 Comeau, T6, 16 April 2015, p. 77.

264 Comeau, T7, 17 April 2015, pp. 72-73.

265 Comeau, T7, 17 April 2015, p. 174.


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and avoid potential unfair prejudice.267 The Amicus introduced this item at trial through witness John Allen Comeau.268 However, as discussed above, Mr Comeau was not personally involved in the monitoring of Al Jadeed TV’s online content at the time. As a result, I am not satisfied that Mr Comeau was the appropriate witness to provide the necessary explanation as to the content of this document and the circumstances in which it was obtained. I therefore cannot assign any probative value to it. Consequently, I find that the Amicus has not proven that the Episodes were available on Al Jadeed TV’s Facebook page after the 10 August 2012 Order.

141. With respect to Al Jadeed TV’s website, I note that the Amicus also introduced into the record the video recording and the transcript of Al Jadeed TV reporter Rami Al Amin’s suspect interview of 2 October 2013.269 During the interview, Mr Al Amin, who had been involved in the production of the Episodes, declared that, on that date the Episodes were still online on Al Jadeed TV’s website.270

142. I am satisfied that Mr Al Amin’s suspect interview is sufficiently reliable. The interview was video-taped, Mr Al Amin was informed of the content of the charges for which he was being investigated and of his rights as a suspect. Throughout the interview, he was assisted by counsel and by an interpreter.271 His answer on this point was clear and without hesitation. Additionally, this exhibit corroborates in part Mr Comeau’s evidence on this matter. Accordingly, I find that this evidence allows me to conclude beyond reasonable doubt that the Episodes were available on Al Jadeed TV’s website at least until 2 October 2013, the date of Mr Al Amin’s suspect interview.

143. In this regard, I note that my finding on the availability of the Episodes on Al Jadeed TV’s website goes beyond the dates mentioned in the factual allegations of the Order in lieu of Indictment with respect to Al Jadeed TV’s website. The

267 Decision on Amicus Bar Table Motion, para. 39.

268 Comeau, T6, 16 April 2015, p. 53.

269 P00122 (confidential), P00123 (confidential), P00124 (confidential), P00125 (confidential); P00126 (confidential).

270 P00126 (confidential), p. 44-45, 74-75.

271 P00126 (confidential), p. 1-12.

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Amended Order in Lieu of Indictment states that the Episodes were available on Al Jadeed TV’s website until at least 4 December 2012 and on its YouTube channel until at least the date of issuance of the Order: 31 January 2014. In his submissions, the Amicus argued that the evidence proved the availability of the Episodes on Al Jadeed TV’s website until at least 25 April 2013, seemingly implying the possibility that they may have been online until a later date.272

144. However, this does not bar me from making findings on the relevant dates based on the evidence that I have heard. Indeed, the charge against the Accused as defined in count 2 of the Order is the failure to remove the Episodes from Al Jadeed TV’s online platforms, including its website, in violation of the 10 August 2012 Order. The count does not set any timeframe. Besides, the type of platform concerned and the exact duration online are not essential to the charge but if anything, are relevant to the gravity of the conduct. Accordingly, the Accused were given sufficient notice that they were indicted for failing to remove the Episodes from public access through Al Jadeed TV’s online platforms. I am thus satisfied that my finding that the Episodes were posted on Al Jadeed TV’s website until at least 2 October 2013 does not infringe on the Accused’s rights to be informed of the charges against them.

3. Findings with respect of Karma Khayat

145. In light of the evidence, I will determine whether the Amicus has proved beyond reasonable doubt that the Ms Khayat failed to remove information pertaining to purported confidential witnesses of the Tribunal from Al Jadeed TV’s online platforms in violation of the 10 August 2012 Order.

146. I recall that in his suspect interview of 3 October 2013, Mr Ibrahim Dsouki, Head of Al Jadeed TV’s online department, declared that Al Jadeed TV’s “news management” was responsible for “what goes on the website”. He explained further that “everything that is being broadcasted on television is published on the website, so [the news management] have the decision of what is being broadcasted on TV and


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consequently what is being published on the website”. 273 He confirmed that he took his instructions from both Ms Khayat, “deputy manager of news” and Ms Al Bassam who were responsible for the news.274

147. In her suspect interview, Ms Khayat declared that she assumed “the direct responsibility” for the investigation and the production of the Episodes.275 She explained that Ms Al Bassam “kn[ew] that th[e] story [would] be reported on [a certain date] regarding this issue”. However, Ms Khayat pointed out that “the final output of the report [was her] part”.276 With respect to the online broadcasting of political content, Ms Khayat explained that Mr Dsouki, Head of the Online Department, coordinates with her and with Ms Al Bassam.277

148. In light of this evidence, I am satisfied that Ms Khayat was part of the management of the news department at Al Jadeed TV and in that capacity was responsible for producing and broadcasting the Episodes. Since all the content broadcast on Al Jadeed TV is automatically published online, Ms Khayat was equally responsible for the publication of the Episodes on Al Jadeed TV’s online platforms, including its website. Consequently, Ms Khayat had the ability to remove the information on purported confidential witnesses of the Tribunal from Al Jadeed TV’s website but failed to do so at least until 2 October 2013.

149. The Amicus has therefore proved the actus reus element for this count with respect to Ms Khayat.

B. Mens rea

150. The element of mens rea for this count is satisfied if the Amicus demonstrates that the Accused either had knowledge of the existence of the 10 August 2012 Order

273 P00131 (confidential) (second transcript), pp. 9-11.

274 P00131 (confidential) (second transcript), p. 12.



277 P00173 (confidential), pp. 72-73.

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or was wilfully blind to its existence and deliberately failed to remove the Episodes from Al Jadeed TV’s online platforms.

1. Arguments of the Parties

a) The position of the Amicus

151. The Amicus submits that both Al Jadeed TV and Ms Khayat knew or should have known of the Order, and that mere awareness of the Order is sufficient to impute knowledge of its contents.278 In the Amicus’s view, actual knowledge of both Accused follows from the fact that they had every reason to believe that additional Tribunal action would follow their total dismissal of the Cease-and-Desist Letter, which was delivered to them on 8 August 2012.279 With the knowledge that additional action would likely follow from the Tribunal, Al Jadeed TV made every effort to evade service of the 10 August 2012 Order.280 The Amicus submits that, in so doing, the Accused deliberately disobeyed the Order, which is per se a wilful and knowing interference with the administration of justice and contempt of court.281

b) The position of the Accused

152. The Defence responds that the Amicus failed to prove beyond reasonable doubt that Ms Khayat had knowledge of the existence of the 10 August 2012 Order until her suspect interview on 2 October 2013282 and that Al Jadeed TV, by and through its principals, officers, managers, employees, agents, representatives and/or affiliates, knew of, or was recklessly indifferent to, the existence of the Order.283





282 Defence Final Trial Brief, para. 73; T14, 18 June 2015, pp. 41, 49, 55; T14, 18 June 2015, p. 19.


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153. It avers that the service of the 10 August 2012 Order was effected in violation of Article 147 of the Lebanese Code of Criminal Procedure, which renders it unenforceable and contributed to the Accused’s lack of knowledge regarding the existence and contents of the Order;284 that Ms Bernard’s attempt to deliver the Order on 11 August 2012 does not demonstrate any wilful blindness or reckless indifference on the part of Al Jadeed TV285 and that the Amicus failed to prove that Ms Al-Bassam could properly and lawfully receive service on behalf of the company.286 The Defence further submits that it is reasonable that on 14 August 2012 Ms Al-Bassam thought the Lebanese authorities were re-serving the Cease-and-Desist Letter, previously sent to Al Jadeed TV, but disputed by Al Jadeed TV for its improper notification.287

154. The Defence further argues that had they received the 10 August 2012 Order, the Accused would have taken immediate action as they did following the receipt of the Cease-and-Desist Letter.288

2. Discussion

155. The Parties’ arguments as regards the Accused’s mens rea revolve around two distinct events—the notification of the Registrar’s Cease-and-Desist Letter, and the service of the 10 August 2012 Order. I will first review the evidence with respect to these two events, which will inform my analysis of whether the Accused had knowledge of the 10 August 2012 Order, which is required for a finding that they had the necessary mens rea.

284 Id. at paras 77-79; T14, 18 June 2015, pp. 50-51.



287 Id. at paras 83, 85.


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a) Evidence presented with respect to the Accused’s knowledge of the Cease-and-Desist Letter

156. On 7 August 2012, Mr Marten Youssef, Spokesperson of the Tribunal, forwarded the Cease-and-Desist Letter to Ms Khayat by email.289 In his Letter, the Registrar requested Al Jadeed TV to cease the publication of the Episodes.290 During her suspect interview on 2 October 2013, Ms Khayat confirmed that she had received this email.291

157. On 8 August 2012, Al Jadeed TV employee Mr Ibrahim Dsouki signed four acknowledgments of receipt of the Cease-and-Desist Letter delivered by Ms Véronique Bernard, senior security officer of the Tribunal, at Al Jadeed TV’s headquarters.292 The four addressees were Ms Al Bassam, Ms Khayat, Mr Al Amin and Mr Tahsine Khayat.293

158. On 7 August 2012, the Registrar forwarded the Cease-and-Desist Letter to the Lebanese Prime Minister requesting his assistance to ensure that Al Jadeed TV cease the broadcast of the Episodes.294 On 8 August 2012, the Prime Minister in turn forwarded the Cease-and-Desist Letter to Mr Abdel-Hadi Hasan Mahfouz, President of the NAMC requesting that he take the appropriate action.295 Mr Mahfouz testified that as soon as he received the Cease-and-Desist Letter, he called Mr Tahsine Khayat, Chairman of the Board of Directors of Al Jadeed TV. Mr Khayat informed him that Al Jadeed TV had interrupted the broadcast of the Episodes pending the review of the Cease-and-Desist Letter by the company’s attorney.296 Mr Mahfouz further testified that on 8 August 2012 he met with Ms Al Bassam and Al Jadeed TV’s

289 P00057; P00056 (confidential); D00059 (confidential).

290 P00056 (confidential); D00059 (confidential).


292 P00065; Lodge, T8, p. 11; P00131 (confidential) (second transcript), pp. 13-15, 20-25; P00132 (confidential).


294 D00057.

295 P00061(confidential).

296 Mahfouz, T12, 13 May 2015, pp. 27-28; P00062 (confidential) and P00062 (confidential), p. 2.

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attorney, Ms Maya Habli, who sought his advice with respect to the Letter.297 Based on the information provided by Ms Habli and Ms Al Bassam, Mr Mafouz advised them that there was no legal impediment to the broadcast of the Episodes.298

159. In a letter of 9 August 2012, Ms Habli informed the Registrar that Al Jadeed TV dismissed the Cease-and-Dessist Letter as unfounded and not binding.299 The same day, Ms Khayat sent Ms Habli’s letter to Mr Marten Youssef from the same email address to which Mr Youssef successfully transmitted the Cease-and-Desist Letter.300 Al Jadeed TV reported several times in its news bulletins on the content of the Letter stating that the company was not bound by it.301

160. During her suspect interview of 2 October 2013, Ms Khayat confirmed that she was aware of the content of the Letter and of the response provided by Al Jadeed TV’s counsel Ms Habli on 9 August 2012.302

b) Evidence presented with respect to the Accused’s knowledge of the 10 August 2012 Order

161. The Defence presented a copy of Ms Khayat’s passport documenting her travels overseas.303

162. The evidence shows that on 11 August 2012 Ms Bernard attempted to deliver the 10 August 2012 Order to Al Jadeed TV at the company’s headquarters in Beirut but no one at the office accepted the delivery.304

163. During Ms Khayat’s suspect interview of 2 October 2013, Mr Gagnon affirmed that the 10 August 2012 Order was not sent by email to Ms Khayat but to

297 Mahfouz, T12, 13 May 2015, pp. 9, 18-19.

298 Mahfouz, T12, 13 May 2015, pp. 37-38.


300 P00075 (confidential); D00075 (confidential); D00076 (confidential); D00077 (confidential).

301 P00067 (confidential); P00068 (confidential); P00070; P00072.


303 D00065 (confidential); D00066 (confidential).

304 Bernard, T7, 17 April 2015, pp. 97-101; P00081; Lodge, T8, 20 April 2015, pp. 15-16, 33-34.

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Al Jadeed TV and to someone else he does not identify.305 However, on 11 August 2012, Mr Anthony Brettell Lodge, Head of Registry and Resident Representative at the Tribunal’s Beirut office, forwarded the 10 August 2012 Order to Ms Khayat by email to the same address from which Ms Khayat had exchanged emails with the Tribunal’s Spokesperson regarding the Cease-and-Desist Letter.306 Mr Lodge confirmed in court that he sent this email to Ms Khayat but that he did not receive a confirmation of receipt or a response to his email of 11 August 2012. He also testified that there was no indication that the message was undeliverable, that the address was wrong or that for some other reason the intended recipient did not receive the mail in the inbox.307 Mr Lodge confirmed that, until the Order was given to the Lebanese authorities to be delivered to Al Jadeed TV, there was no attempt on his behalf, other than his email of 11 August 2012.308

164. On 14 August 2012, Chief Warrant Officers Messrs Ziad Eid and Akram Rahal served the 10 August 2012 Order to Ms Mariam Al Bassam who signed the service report at Al Jadeed TV’s headquarters in Beirut.309 Mr Eid testified that he and Mr Rahal “informed [Ms Al Bassam] of the content” after which “she looked at the documents” and stated that “the Tribunal did not want us to publish anything” and “signed the receipt”.310 During Ms Khayat’s suspect interview of 2 October 2013, both Ms Khayat and Ms Habli denied having seen the 10 August 2012 Order before or having knowledge of its service to Ms Al Bassam on 14 August 2012.311

165. On 8 October 2013, Ms Al Bassam filed a complaint for forgery of her signature on the report of service of the 10 August 2012 Order. On 23 October 2013, Ms Al Bassam withdrew her complaint.312 At the hearing related to her forgery complaint

305 P00173, pp. 82-83.

306 Lodge, T8, 20 April 2015, pp. 12-14, 24, 41; P00160 (confidential).

307 Lodge, T8, 20 April 2015, pp. 12-14, 25-27, 44.

308 Lodge, T8, 20 April 2015, pp. 14, 28.

309 P00080.

310 Comeau, T7, 17 April 2015, pp. 118-121.


312 Bou Samra, T12, 13 May 2015, pp. 136, 139-140; P00138 (confidential).

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before Public Prosecutor Mr Bou Samra, Ms Al Bassam declared that she thought the document that had been served to her on 14 August 2012 concerned “the prohibition of the publication of news on the Special Tribunal” but that it actually related to “a ruling made by the Pre-Trial Judge”.313

166. In a letter dated 28 August 2012, the Registrar informed the Prosecutor-General of the Court of Cassation that on 27 August 2012 the Episodes were still available on Al Jadeed TV’s online platforms despite the service of the 10 August 2012 Order on Al Jadeed TV and requested his assistance to ensure the discontinuation of the broadcasts.314 On 6 September 2012, the Acting Prosecutor-General informed the President of the NAMC of the content of the 10 August 2012 Order; that the Order had been served on Ms Al Bassam and that despite this service the Episodes were still available on Al Jadeed TV’s online platforms on 27 August 2012. He requested the President of the NAMC to take appropriate action to enforce the 10 August 2012 Order.315 Mr Mahfouz testified that he took no action following the receipt of this letter because he considered that the NAMC had no jurisdiction to intervene in a matter of a criminal nature.316

167. During and after Ms Khayat’s suspect interview of 2 October 2013, Al Jadeed TV’s attorney Ms Maya Habli requested the former Amicus Curiae Investigator to provide her with a copy of the 10 August 2012 Order.317 On 30 October 2013, Ms Habli told Mr Bourgon that she had still not received such copy.318 Mr Bourgon informed Ms Habli that due to its confidential nature, he could not provide her with a copy of the Order and that he had asked the Registrar’s authorization to do so.319

313 Bou Samra, T12, 13 May 2015, p. 150 ; P00139.



316 Mahfouz, T12, 13 May 2015, pp. 87-88.

317 D00053 (confidential).



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c) Findings with respect to Karma Khayat

168. Based on this evidence, I have to determine whether the Amicus has established that Ms Khayat had knowledge of the 10 August 2012 Order and deliberately violated it. I first note that there is no direct evidence on the record showing that Ms Khayat knew of the service of the 10 August 2012 Order to Ms Al Bassam.

169. Further the Defence asserts that Ms Khayat was not in Lebanon at the time of the service of the 10 August 2012 Order. It relies on Ms Khayat’s passport to claim that she was in France at the time. I observe that the copy of Ms Khayat’s passport adduced by the Defence indicates that she departed from Lebanon on 29 July 2012 and returned on 22 August 2012.320 However, I find that this is of no relevance given that Ms Khayat on a number of occasions during this period received, read and wrote email messages at the email address to which the copy of the Order was sent.

170. Indeed, the evidence shows that Mr Lodge transmitted the 10 August 2012 Order to the same email address used by Ms Khayat in her exchanges with Mr Marten Youssef, the Tribunal’s Spokesperson, including those on 7 and 9 August 2012 concerning the Cease-and-Desist Letter.

171. Additionally, Mr Lodge testified that he received no failed delivery notification of this email. Indeed, nothing in the record indicates that Al Jadeed TV’s server or Ms Khayat’s email inbox were not functioning on that date.

172. The only reasonable inference I can draw from this evidence is that Ms Khayat received the 10 August 2012 Order in her email inbox on 11 August 2012.

173. Additionally, while there is no proof on the record that Ms Khayat actually read Mr Lodge’s e-mail or the attached Order, I note that Ms Khayat had knowledge of the Cease-and-Desist Letter to which Al Jadeed TV had responded on 9 August 2012. Ms Khayat therefore had every reason to suspect that the email she received from Mr Lodge, an official of the Tribunal, only three days later, concerned the broadcast of the Episodes and she deliberately chose to ignore it in order to be able to deny knowledge of its existence.


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174. Finally, I note that during Ms Khayat’s suspect interview both Ms Khayat and Ms Habli denied having previously seen the 10 August 2012 Order. To substantiate these denials, the Defence points to Ms Khayat’s and Ms Habli’s supposed surprised reactions when shown the 10 August 2012 Order. However, I am unable to draw any conclusions about the veracity of Ms Khayat’s and Ms Habli’s statements merely from viewing their demeanours during the video recording of the interview.

175. I conclude from the foregoing that Ms Khayat was at least wilfully blind to the 10 August 2012 Order.

176. With respect to Ms Khayat’s deliberate violation of the 10 August 2012 Order, I found that despite having the ability to do so, as of 2 October 2013, more than a year later, Ms Khayat had not removed the Episodes from Al Jadeed TV’s website. I am therefore satisfied that being wilfully blind to the 10 August 2012 Order and failing to remove the Episodes from Al Jadeed TV’s website, Ms Khayat deliberately violated the Order.

d) Findings with respect to the corporate Accused

177. To obtain the corporate Accused’s conviction for count 2, the Amicus needs to (1) establish the criminal responsibility of a specific natural person; (2) demonstrate that, at the relevant time, such natural person was a director, member of the administration, representative (someone authorized by the legal person to act in its name) or an employee/worker (who must have been provided by the legal body with explicit authorization to act in its name) of the corporate Accused; and (3) prove that the natural person’s criminal conduct was performed (a) on behalf of or (b) using the means of the corporate Accused. As discussed above, the law does not require the conviction of a natural person to establish the criminal liability of a corporation. All is needed is the identification of the criminal conduct by one of the individuals capable of representing the corporation.

178. The Amicus has submitted evidence with respect to the conduct of two Al Jadeed TV employees: Ms Al Bassam and Ms Khayat. I will review the evidence to

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determine whether the elements have been satisfied for attributing their conduct to Al Jadeed TV.

i. Mariam Al Bassam

179. With respect to Ms Al Bassam’s conduct, I am satisfied that she was Head of News and Political Programs at all times relevant to this case.321 In his suspect interview of 3 October 2013, Mr Ibrahim Dsouki, Head of Al Jadeed TV’s online department, declared that Al Jadeed TV’s “news management” was responsible for “what goes on the website”. He explained further that “everything that is being broadcasted on television is published on the website, so [the news management] have the decision of what is being broadcasted on TV and consequently what is being published on the website”. 322 He confirmed that he took his instructions from both Ms Khayat, “deputy manager of news” and Ms Al Bassam, who were responsible for the news.323 In her suspect interview of 2 October 2013, Ms Khayat explained that Ms Al Bassam had the responsibility for the “sequence and introduction of the news bulletin” and that in other areas, which she did not specify, the decisions were taken by both her and Ms Al Bassam “in coordination”.324 Ms Khayat explained further that Ms Al Bassam was aware of “every story that is broadcast daily” but that she was responsible for “the final output of the report” and that “[when] [Ms Al Bassam] manages a report for instance, during the news bulletin, she […] follows it up from A to Z. It’s her […] call on the Story”.325

180. In his suspect interview of 2 October 2013, Mr Al Amin explained that Ms Al Bassam did not play a role in the investigations or the editing of videos being aired. Mr Al Amin explained that Ms Al Bassam “supervise[d] the bulletin in general”, “wr[ote] the introduction” and was responsible for that introduction.326

321 Table of Agreed Facts (fact 6).

322 P00131 (confidential) (second transcript), pp. 9-11.

323 P00131 (confidential) (second transcript), p. 12.




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181. I am satisfied that Ms Al Bassam was part of the management of the news department. However, Mr Dsouki does not provide further information on Ms Al Bassam’s exclusive responsibilities. The evidence only shows that the production and broadcasting of the Episodes were the responsibility of Ms Khayat. Consequently, I cannot conclude beyond reasonable doubt that Ms Al Bassam had the ability to remove the Episodes from Al Jadeed TV’s platforms in compliance with the 10 August 2012 Order. Therefore, I cannot conclude that Ms Al Bassam violated the 10 August 2012 Order.

ii. Karma Khayat

182. With respect to Ms Khayat’s conduct, I found that being wilfully blind to the 10 August 2012 Order and having the ability to remove the Episodes from Al Jadeed TV’s website but failing to do so, she deliberately violated the Order.

183. It is thus necessary to determine whether the evidence shows that Ms Khayat qualified as one of the persons whose conduct can be attributed to Al Jadeed TV. There is no proof on the record that Ms Khayat qualified as director or a member of the board of directors of the company. The evidence only shows that in October 2013, Mr Dimitri Khodr was Al Jadeed TV’s general manager.327 The Amicus has also not proved that Ms Khayat was member of Al Jadeed TV’s administration.

184. The evidence shows that Ms Khayat had some degree of authority within the news department of Al Jadeed TV. Indeed, Ms Khayat was deputy Head of News and Political Programs.328 Moreover, in her suspect interview of 2 October 2013, Ms Khayat explained that she and Ms Al Bassam were at the same level in the company’s structure. As discussed above, Ms Khayat explained that while she handled certain matters by herself, Ms Al Bassam had the final decision for other matters, such as the “sequence and introduction of the news bulletins”.329 Ms Khayat declared that she assumed “the direct responsibility” for the investigation of the Episodes.330

327 P00131 (confidential) (second transcript), p.9.

328 Table of Agreed Facts (fact 5).

329 P00173 (confidential), pp.52-53.

330 P00173 (confidential), pp.54.

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With respect to the online broadcasting of political content, Ms Khayat explained that Mr Dsouki, Head of the Online Department, coordinated with her and with Ms Al Bassam.331 I also found that Ms Khayat was responsible for the production and broadcast of the Episodes.

185. However, while I am satisfied that Ms Khayat was part of the management of the News Department of Al Jadeed TV, there is no evidence of her having any managerial responsibility beyond this discrete department.

186. Additionally, other evidence indicates that Ms Khayat had no authority to represent the company before third parties. Indeed, under Article 22 of Al Jadeed TV’s bylaws, the representatives of the company before third parties are the Chairman of the Board, the General Manager or the Delegate Member.332 Article 23 of Al Jadeed TV’s bylaws provides that the company “shall be bound by the signature of the Chairman of the Board [of Directors], the General Manager or the Delegate Member, within the limits of the powers conferred on them”. In addition, the bylaws establish that the company “shall be bound by the signature or the actions carried out by its representatives, within the limits of the powers conferred to them.”333 There is no evidence that Ms Khayat held any of these positions at the relevant times.

187. Moreover, an exhibit submitted by the Amicus shows that, in March 2009, it was Mr Tahsine Khayat, acting on behalf of Al Jadeed TV in his capacity as Chairman and Managing Director, who had the authority to grant a general power of attorney for Ms Habli.334 There is no evidence that Ms Khayat had been provided with any authorization to act in Al Jadeed TV’s name at the relevant time.

188. In light of this evidence, I cannot conclude beyond reasonable doubt that Ms Khayat qualified as a representative or duly authorized agent of Al Jadeed TV in the sense of Article 210 of the Lebanese Criminal Code.





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189. In view of the above, the Amicus has not proved that Ms Khayat was a director, member of the administration, representative or duly authorized worker of Al Jadeed TV at the relevant times. Her conduct can therefore not be attributed to the company.

190. In sum, the Amicus has not proved that either Ms Al Bassam’s or Ms Khayat’s conduct can be attributed to Al Jadeed TV.

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DISPOSITION

FOR THESE REASONS;

PURSUANT to Rules 60 bis (A), 60 bis (A) (iii), 60 bis (H) and 168 of the Rules;

I

FIND both Accused NOT GUILTY with respect to the charges under Count 1 of the Amended Order in Lieu of Indictment;

FIND the Accused Ms Karma Khayat GUILTY and the Accused Al Jadeed TV NOT GUILTY with respect to the charges under Count 2 of the Amended Order in Lieu of Indictment;

AND

ORDER that a sentencing hearing shall be held on 28 September 2015 subject to the modalities that I will set out in a separate scheduling order.

Done in Arabic, English and French, the English version being authoritative. Dated 18 September 2015 Leidschendam, the Netherlands

Judge Nicola Lettieri Contempt Judge

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GLOSSARY OF ABBREVIATIONS

Abbreviation Used Full reference10 August 2012 Order STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ,

Order for Immediate Removal of Disseminated Material and Cessation of Dissemination, 10 August 2012.

Al Jadeed TV Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.)

Amicus Amicus Curiae Prosecutor

Appeals Panel Appeals Panel of the Special Tribunal for Lebanon

Ayyash et al. case STL, Prosecutor v. Ayyash et al., STL-11-01

Cease-and-Desist Letter Notice of Cease and Desist from the Registrar to Mr Tahseen Khayat, Confidential, 7 August 2012.

Closing arguments Closing arguments made on 19 June 2015

Contempt Judge Judge Nicola Lettieri (see STL, In the Case Against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/PRES, F0002, Order Designating Contempt Judge, Confidential and Ex Parte, 31 January 2014)

corporate Accused Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.)

Episodes Broadcast aired on Al Jadeed TV on 6, 7, 9 and 10 August 2012 titled “Witnesses of the International Tribunal”.

ICTY International Criminal Tribunal for the former Yugoslavia

Opening statements Opening statements held on 16 April 2015

OTP Office of the Prosecutor of the Special Tribunal for Lebanon

President President of the Special Tribunal for Lebanon

Rules Rules of Procedure and Evidence of the Special Tribunal for Lebanon, amended on 12 February 2015

Statute Statute of the Special Tribunal for Lebanon

STL/Tribunal Special Tribunal for Lebanon

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FILINGS SUBMITTED IN THE PRESENT CASE

Decision in Proceedings for Contempt

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0001, Redacted Version of Decision in Proceedings for Contempt with Orders in Lieu of an Indictment, 31 January 2014.

Amicus Jurisdiction Appeal STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/AP/AR126, F0001, Interlocutory Appeal against the Decision on Motion Challenging Jurisdiction, 31 July 2014.

Order in Lieu of Indictment STL, In the Case against New TV S.A.L. & Karma Mohamed Thasin Al Khayat, STL-14-06/I/CJ, F0001, Order in Lieu of an Indictment, 31 January 2014.

Order Designating Contempt Judge STL, In the Case against New TV S.A.L. & Karma Mohamed Thasin Al Khayat, STL-14-05/I/PRES, F0002, Order Designating Contempt Judge, 31 January 2014.

Registrar Decision Appointing Replacement Amicus Curiae

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0004, Registrar’s Decision Under Rule 60bis(ii) to Appoint a Replacement Amicus Curiae to Investigate and Prosecute contempt Allegations, 4 March 2014.

Defence Response to Amicus Jurisdiction Appeal

STL, In the Case against New TV S.A.L. & Karma Mohamed Thasin Al Khayat, STL-14-05/PT/AP/AR126.1, F0005, Defence Response to Amicus Prosecutor’s “Interlocutory Appeal against the Decision on Motion Challenging Jurisdiction” 11 August 2014.

Summons to Appear (New TV S.A.L.)

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0006, Summons to Appear (New TV S.A.L.), 18 March 2014.

464


Summons to Appear (Ms Karma Khayat)

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0007, Summons to Appear (Ms Karma Khayat), 18 March 2014.

Order Lifting Confidentiality STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0008, Order Lifting Confidentiality, 24 April 2014.

Appointment of Counsel STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0010, Appointment of Counsel Pursuant to Rules 57 (D) (vii) and 58 of the Rules of Procedure and Evidence, 9 May 2014.

Appointment of Co-Counsel STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/I/CJ, F0011, Appointment of Co-Counsel Pursuant to Rules 57 (D) (vii) and 58 of the Rules of Procedure and Evidence, 12 May 2014.

Jurisdiction Appeal Decision STL, In the Case against New TV S.A.L. & Karma Mohamed Thasin Al Khayat, STL-14-05/PT/AP/AR126.1, F0012, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 2 October 2014.

Amicus Request for Leave to Amend Order in Lieu of Indictment

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0032, Request for Leave to Amend Order in Lieu of an Indictment with Annexes, 12 June 2014.

Defence Preliminary Motion Challenging Jurisdiction

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0037, Defence Preliminary Motion Challenging Jurisdiction, 16 June 2014.

Defence Response to Amicus Request for Leave to Amend Order in Lieu of Indictment

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0046, Defence Response to Amicus Prosecutor’s Request for Leave to Amend Order in Lieu of an Indictment, 26 June 2014.

465


Response to “Defence Preliminary Motion Challenging Jurisdiction”

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0047, Response to “Defence Preliminary Motion Challenging Jurisdiction”, 30 June 2014.

Response to Defence Request for Leave to Reply to “Response to ‘Defence Preliminary Motion Challenging Jurisdiction’”

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0051, Response to Defence Request for Leave to Reply to “Response to ‘Defence Preliminary Motion Challenging Jurisdiction’”, 4 July 2014.

Jurisdiction Decision STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0054, Decision on Motion Challenging Jurisdiction and on Request for Leave to Amend Order in Lieu of an Indictment, 24 July 2014.

Amicus Pre-Trial Brief STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0057, Redacted Version of “Prosecution’s Pre-Trial Brief” dated 1 September 2014, 4 September 2014.

Defence Pre-Trial Brief STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0060, Redacted Version of “Defence Pre-Trial Brief”, 22 September.

Decision on Amicus Request for Leave to Amend Order in Lieu of Indictment

STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0061, Decision on Amicus Curiae Prosecutor’s Request for Leave to Amend Order in Lieu of an Indictment and Scheduling Order, 7 October 2014.

Amicus Amended Pre-Trial Brief STL, In the Case against New TV S.A.L. & Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0066, Amended “Redacted Version of “Prosecution Pre-Trial Brief’, dated 4 September 2014”, 14 October 2014.

Amended Order in Lieu of Indictment

STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0068, Amended Order in Lieu of an Indictment, Annex, 17 October 2014.

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Defence Amended Pre-Trial Brief STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0071, Amended Defence Pre-Trial Brief, Confidential 23 October 2014.

Table of Agreed Facts STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0108, Table of Agreed Facts, 13 March 2015.

Expert Decision STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0114, Decision on Expert Witness Anne-Marie de Brouwer 27 March 2015.

Decision on Amicus Application for Protective Measures Regarding Witnesses AP11, AP12 and AP13

STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0119, Decision on Amicus Curiae Prosecutor Application for Protective Measures Regarding Witnesses AP11, AP12 and AP13, Confidential, 7 April 2015.

Decision on Amicus Bar Table Motion

STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0120, Decision on Amicus Curiae Prosecutor’s Motion for Admission of Evidence Pursuant to Rule 154, 9 April 2015.

Decision on Amicus Application for Protective Measures Regarding Witness AP02

STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0122, Public Redacted Decision on Amicus Curiae Prosecutor’s Application for Protective Measures Regarding Witness AP02, 16 April 2015.

Defence Submission of Company Representation Authorization

STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/CJ, F0123, Defence Submission of Company Representation Authorization, 15 April 2015.

467


Defence Witness and Exhibit Lists STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/T/CJ, F0136, Submission of Defence List of Witnesses and List of Evidence, Public with Confidential Annexes, 29 April 2015.

Decision on Defence Application for Protective Measures Regarding Witness DT13

STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/T/CJ, F0148, Public Redacted Decision on Defence Application For Protective Measures Regarding Witness DT13, 4 June 2015; T13, 14 May 2015.

Defence Bar Table Motion STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/T/CJ, F0155, Defence Application for Admission of Evidence Pursuant to Rule 154 of the Rules of Procedure and Evidence, Public with Confidential Annex, 18 May 2015.

Amicus Final Trial Brief STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/T/CJ, F0164/CRG, Corrigendum to “Amicus Final Trial Brief” Dated 8 June 2015, Confidential, 10 June 2015.

Defence Final Trial Brief STL, In the Case against Al Jadeed [CO.] S.A.L./NEW T.V. S.A.L (N.T.V) Karma Mohamed Tahsin Al Khayat, STL-14-05/T/CJ, F0165, Defence Final Trial Brief, Confidential with Public Annexes, 8 June 2015.


Before: Contempt Judge

Title: Reasons for Sentencing Judgment

Short title: Sentencing Judgment in Contempt Case CJ

469

471

THE CONTEMPT JUDGECase No.: STL-14-05/S/CJ

Before: Judge Nicola Lettieri, Contempt Judge


Date: 6 October 2015



IN THE CASE AGAINST

KARMA MOHAMED TAHSIN AL KHAYAT

REASONS FOR SENTENCING JUDGMENT


Counsel for Ms Karma Khayat: Mr Karim A.A. Khan Mr Rodney Dixon Ms Shyamala Alagendra

472

Sentencing Judgment in Contempt Case CJ

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473

Arguments of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473

I. Position of the Amicus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473

II. Position of the Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475

Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477

Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

473


INTRODUCTION

1. On 18 September 2015, I pronounced the judgment in this case,1 whereby I acquitted Al Jadeed [CO.] S.A.L./New T.V. S.A.L. (N.T.V.) (“Al Jadeed TV”) of all charges under the Amended Order in Lieu of an Indictment;2 acquitted Ms Karma Mohamed Tahsin Al Khayat of the charges under count 1; and convicted Ms Khayat of the charges under count 2.3

2. On 28 September 2015, I heard the Parties’ submissions on sentencing with respect to Ms Khayat’s conviction under count 2 of the Order in Lieu of Indictment.4 I pronounced my decision on sentencing on the same day, imposing on Ms Khayat a fine of 10,000 Euros to be paid no later than 30 October 2015. I clarified that I would issue the written reasons for my decision as soon as practicable.5 Below are my reasons.

ARGUMENTS OF THE PARTIES

I. Position of the Amicus

3. The Amicus Curiae Prosecutor (“Amicus”) argues that the publication and dissemination of the Episodes6 online increased the scope of the disclosures, making the violation of the 10 August 2012 Order7 even more serious. 8 He states further

1 STL, Prosecutor v. Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, F0176, Public Redacted Version of Judgment, 18 September 2015 (“Judgment”). All further references to filings refer to this case number unless otherwise stated.

2 F0068, Amended Order in Lieu of an Indictment, 17 October 2014 (“Order in Lieu of Indictment”).

3 Judgment, p. 53.

4 20150928_STL-14-05_S_T17_OFF_PUB_EN 1/45, 28 September 2015. All further references to transcripts in this document will use an abbreviated number.

5 T17, 28 September 2015, p. 45.

6 Broadcast aired on Al Jadeed TV on 6, 7, 9 and 10 August 2012 titled “Witnesses of the International Tribunal”.

7 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, F0372, Order for Immediate Removal of Disseminated Material and Cessation of Dissemination, 10 August 2012.

8 T17, 28 September 2015, p. 7.

474


that the dissemination took place in a relatively small community, which adds to the gravity of the offence.9

4. With respect to the aggravating factors, the Amicus asserts that Ms Khayat had already ignored the Pre-Trial Judge’s 25 May 2012 Order10 prohibiting disclosure of confidential information. Moreover, he argues that Al Jadeed TV dismissed the Registrar’s Cease-and-Desist Letter11 as not legally binding. This, he claims, constitutes a pattern of conduct in defiance of the Tribunal.12 The Amicus further contends that Ms Khayat’s lack of remorse constitutes an aggravating factor.13

5. The Amicus avers that there are no mitigating factors in this case. While Ms Khayat agreed to be interviewed as a suspect, the quantity and quality of the information that she provided during the interview of 2 October 2013 were not sufficient to constitute substantial cooperation with the investigation.14

6. With respect to Ms Khayat’s individual circumstances, the Amicus states that she covered all the expenses related to her defence.15 Moreover, he asserts that she holds a position of authority in and owns a sizeable share of Al Jadeed TV, which, according to the testimony of Ms Rana Sabbagh, executive director of Arab Reporters for Investigative Journalism, is a success story.16 The Amicus infers that, consequently, Ms Khayat has accrued some financial gain.17

7. In light of these considerations, the Amicus requests that I sentence Ms Khayat to a term of imprisonment of one year and a fine of 100,000 Euros.18

9 Ibid.

10 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, F0269, Decision Relating to the Prosecution Request Seeking Measures for the Non-Dissemination of Material of 2 May 2012, 25 May 2012.

11 Notice of Cease and Desist from the Registrar to Mr Tahseen Khayat, Confidential, 7 August 2012.

12 T17, 28 September 2015, p. 10.

13 T17, 28 September 2015, p. 12.

14 T17, 28 September 2015, p. 14.

15 T17, 28 September 2015, p. 36.

16 T17, 28 September 2015, pp 16, 37.

17 T17, 28 September 2015, p. 37.

18 T17, 28 September 2015, p. 17.

475


II. Position of the Defence

8. The Defence argues that the publication of the Episodes did not harm the public’s confidence in the Tribunal and no order granting protective measures to witnesses was violated.19

9. The Defence asserts further that Ms Khayat appeared before the Tribunal when summoned, attended every day of the trial and paid her own legal costs.20

10. Contrary to the Amicus’s assertion, the Defence contends that Ms Khayat cooperated with the investigation in this case by answering every question during her suspect interview and that Al Jadeed TV cooperated with the Prosecution in the Ayyash et al. case by providing material as requested.21 The Defence adds that, as Ms Sabbagh testified, Ms Khayat demonstrated good professional conduct. It also highlights that she has no previous convictions.22

11. With respect to Ms Khayat’s individual circumstances, the Defence avers that Al Jadeed TV had to lay off many of its employees due to financial difficulties.23 It states that the Amicus made no inquiries as to Ms Khayat’s financial means.24

12. Accordingly, the Defence argues that a conviction is sufficient punishment and no sentence should be imposed.25 It submits that because the Episodes are no longer online and their publication caused no harm, it was a “breach without harm” and the “damage caused has been made good”.26

19 T17, 28 September 2015, pp 20, 40.

20 T17, 28 September 2015, pp 21-22.

21 T17, 28 September 2015, pp 23, 38-39.

22 T17, 28 September 2015, pp 29-30.

23 T17, 28 September 2015, p. 25.

24 T17, 28 September 2015, pp 37-38.

25 T17, 28 September 2015, pp 30-31.

26 T17, 28 September 2015, pp 42-43.

476


APPLICABLE LAW

13. Rule 60 bis (J) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) states that the maximum penalty that may be imposed on a person convicted for contempt is a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both.

14. Rule 172 (B), which applies mutatis mutandis in contempt proceedings pursuant to Rule 60 bis (H), provides that, in determining a sentence, the Trial Chamber shall take into account the factors mentioned in Article 24 (2) of the Tribunal’s Statute—namely, the gravity of the offence and the individual circumstances of the convicted person—as well as factors such as: any aggravating circumstances; any mitigating circumstances, including substantial cooperation with the Prosecutor by the convicted person before or after conviction; the general practice regarding prison sentences in Lebanon; and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.

15. In considering these factors, I am also guided by the well-established sentencing practice of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in contempt matters. I agree with the ICTY’s case-law that the most important factors in determining the appropriate penalty in a contempt case are the gravity of the conduct and the need to deter repetition and similar conduct by others.27 In short, in determining the penalty I will essentially focus on its retribution and deterrence functions.28

27 ICTY, Prosecutor v. Jović, IT-95-14 & IT-95-14/2-R77, Judgement, 30 August 2006, para. 26; ICTY, Prosecutor v. Marijačić and Rebić, IT-95-14-R77.2, Judgement, 10 March 2006, para. 46; ICTY, Prosecutor v. Margetić, IT-95-14-R77.6, Judgement on Allegations of Contempt, 7 February 2007, para. 84; ICTY, Prosecutor v. Haraqija and Morina, IT-04-84-R77.4, Judgement on Allegations of Contempt, 17 December 2008, para. 103.

28 Cf. ICTY, Prosecutor v. Hartmann, IT-02-54-R77.5, Judgment on Allegations of Contempt, 14 September 2009, para. 88; ICTY, Prosecutor v. Šešelj, IT-03-67-R77.3, Public Redacted Version of “Judgment” Issued on 31 October 2011, paras. 77, 80; ICTY, Prosecutor v. Šešelj, IT-03-67-R77.4, Public Redacted Version of Judgment Issued on 28 June 2012, 28 June 2012, para. 52.

477


DISCUSSION

16. As a preliminary issue, I note that the Parties argued at length about the weight that Ms Khayat’s absence at the pronouncement of the judgment and during the sentencing hearing should have, if any, in my determination of the sentence in this case.29 I recall that under Rule 168 (A), Ms Khayat was entitled to be present at the pronouncement of the judgment. Further, pursuant to Rule 171 (E), a sentence shall be pronounced, wherever possible, in the presence of the convicted person. I conclude that Ms Khayat was within her rights and under no obligation to be present at the pronouncement of the judgment or the sentence. I also observe that Ms Khayat did not simply fail to appear; rather, she waived her right to be present at those hearings and was represented by her chosen counsel.30 As a result, I cannot infer any conclusions from her absence at those hearings in determining the sentence in this case.

17. With respect to the kind and gravity of the offence, I first recall my finding that Ms Khayat failed to remove the Episodes from Al Jadeed TV’s website from 11 August 2012 until at least 2 October 2013.31 I consider that knowingly violating an order is a serious offence since it per se defies the authority of the Tribunal. The effectiveness of orders issued by a court of law is vital to its proper administration of justice. It is not for those subject to an order to decide whether or not to follow it

18. With respect to the mitigating circumstances, I recall that the evidence did not show that the publication of the Episodes was likely to undermine the public’s confidence in the Tribunal’s ability to protect confidential information.32 Furthermore, I am satisfied that Ms Khayat cooperated with the investigation in this case by making herself available to be interviewed by the Amicus Curiae Investigator on 2 October 2013 and responding to all of his questions.33 I also note that Ms Khayat appeared

29 T17, 28 September 2015, pp 3, 11, 19, 32, 37.

30 T16, 18 September 2015, p. 1; T17, 28 September 2015, p. 2.

31 Judgement, paras 172, 176.

32 Judgment, paras 125-126.


478


at her trial and was duly represented by counsel at the delivery of the judgment and during the sentencing hearing.34

19. The Defence refers to Ms Khayat’s good character as a mitigating circumstance. Citing Ms Sabbagh’s testimony that Ms Khayat chaired working groups and participated in expert panels, the Defence argues that Ms Khayat’s mission is to contribute to building a sustainable democratic society in Lebanon.35 However, Ms Khayat’s mere participation in a number of journalistic events36 does not allow me to draw any conclusions with respect to her character or conduct that I could consider in determining the relevant sentence in this case.

20. In regard to Ms Khayat’s individual circumstances, which I may take into consideration in evaluating the proportionality of the penalty, I find that the Parties failed to substantiate their arguments (inter alia, from the Amicus, that Ms Khayat has been financially successful and, from the Defence, that Ms Khayat is of good character). There is simply inadequate support in the record for these contentions.

21. Nor can I say, as the Defence appears to imply by invoking the journalistic duty to inform, that Ms Khayat acted for reasons of particular moral or social value, which might constitute mitigating circumstances. Indeed, no such finding can be attributed to professional journalistic conduct which targets, on the basis of mere conjectures, the first serious attempt to shed light on the appalling attacks which bloodied Lebanon in the period beginning October 2004.37 While simply criticizing the Tribunal (which is holding proceedings that could deliver justice for the victims and the broader public and shape collective memory of horrible events) is of course not a crime, nor an aggravating circumstance, it also cannot objectively mitigate guilt in this case.

34 T16, 18 September 2015, p. 1; T17, 28 September 2015, p. 1.

35 T17, 28 September 2015, p. 29.

36 Sabbagh, T11, 12 May 2015, pp 15-23, 46-47.

37 In this period covered by the jurisdiction of the Tribunal, 1 October 2004/12 December 2005 (article 4.3 of the Statute), 15 terroristic bomb attacks carried out against similar targets and with the same modus operandi occurred (murder of the former premier Hariri and of other 21 persons, as well as other 14 bomb attacks). Without forgetting the other five bomb attacks and one shooting attacks which occurred in the period November 2006/January 2008, where also an investigator involved in the investigation on the Hariri murder was killed.

479


22. Finally, I note that the case-law of other international tribunals cited by the Parties concerns cases that, quite clearly, are factually very different from this case.38 As a result, in determining the sentence to be imposed on Ms Khayat in this case, I cannot be guided by the penalties imposed in those cases.39

23. In sum, taking into account all these factors, in particular the gravity of the particular criminal conduct for which Ms Khayat was convicted and the need for deterrence, I find it appropriate to sentence her to a fine of 10,000 Euros.

38 T17, 28 September 2015, pp 3-5, 12-13, 20-21.

39 Cf, ICTY, Prosecutor v. Šešelj, IT-03-67-R77.2-A, Judgment, 19 May 2010, para. 41.

480


DISPOSITION

FOR THESE REASONS;

PURSUANT to Article 24 (2) of the Statute of the Tribunal and Rules 60 bis (J) and 172 (B) of the Rules;

I

SENTENCED Ms Khayat to a fine of 10,000 Euros, to be paid in full by 30 October 2015.

Done in Arabic, English and French, the English version being authoritative. Dated 6 October 2015 Leidschendam, the Netherlands

Judge Nicola Lettieri Contempt Judge



Title: Invitation to the Government of the Lebanese Republic to Make Submissions in Relation to the Sabra Defence Request for a Finding of Non-Compliance

Short title: Invitation to Lebanese Government to Make Submissions TC

481

483




Date: 17 November 2015



THE PROSECUTOR v.



ASSAD HASSAN SABRA

INVITATION TO THE GOVERNMENT OF THE LEBANESE REPUBLIC TO MAKE SUBMISSIONS IN RELATION TO THE SABRA DEFENCE

REQUEST FOR A FINDING OF NON-COMPLIANCE

Office of the Prosecutor: Mr Norman Farrell Mr Graeme Cameron Mr Alexander MilneVictims’ Legal Representatives: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-AbusamraDefence Office: Mr François RouxThe Government of the Lebanese Republic

Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan, Mr Emile Aoun and Mr Thomas HannisCounsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz, Mr Iain Edwards and Ms Mylène DimitriCounsel for Mr Hassan Habib Merhi: Mr Mohamed Aouini, Ms Dorothée Le Fraper du Hellen and Mr Jad KhalilCounsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse, Mr Yasser Hassan and Mr Philippe LarochelleCounsel for Mr Assad Hassan Sabra: Mr David Young,Mr Guénaël Mettraux and Mr Geoffrey Roberts

484

Invitation to Lebanese Government to Make Submissions TC

1. Counsel for the Accused, Mr Assad Hassan Sabra, request the Trial Chamber to issue, under Rule 20 (C) of the Special Tribunal’s Rules of Procedure and Evidence, an immediate finding of non-compliance to the Government of the Lebanese Republic in relation to 21 requests for assistance that counsel for Mr Sabra submit are outstanding. Counsel also ask the Trial Chamber to inform the President of the Special Tribunal of this finding of non-compliance so that she may engage in consultations with the relevant Lebanese authorities with a view to obtaining the required cooperation.1

2. From August 2012 onwards, counsel for Mr Sabra have sent numerous requests for assistance to the Government of the Lebanese Republic seeking material that they considered relevant and necessary to their trial preparations.2 The requests were sent through the Special Tribunal’s Head of Defence Office under the ‘Memorandum of Understanding between the Government of the Lebanese Republic and the Defence Office on the modalities of their cooperation’ signed on 28 July 2010. The requests for assistance were addressed to the Government of the Lebanese Republic; the Government itself decides which authority or entity may have the material sought in these requests.

3. Counsel for Mr Sabra subsequently filed several motions asking the Pre-Trial Judge and the Trial Chamber, under Rule 20 (A), to order the Lebanese Government to ‘search, identify and provide’ the requested material.3 The motions resulted from what counsel for Mr Sabra submit are partially or fully unanswered requests for assistance. On 31 January 2014, 31 March 2014, and 27 March 2015,

1 STL-11-01/T/TC, Prosecutor v. Ayyash, Badreddine, Merhi, Oneissi and Sabra, F2139, Ninth Notice to “Decision on Updated Request for a Finding of Non-Compliance” and Request for a Finding of Non-Compliance, 24 August 2015; F2322, Clarification to Notices to “Decision on Updated Request for a Finding of Non-Compliance”, 16 November 2015.

2 STL-11-01/PT/PTJ, F0702, Second Motion Seeking the Cooperation of Lebanon – Telecommunications Information, made confidential by the Pre-Trial Judge’s Decision of 15 March 2013, 4 February 2013, paras 2-4.

3 STL-11-01/PT/PTJ, F0702, Second Motion Seeking the Cooperation of Lebanon – Telecommunications Information, 4 February 2013; F1079, Fifth Motion Seeking the Cooperation of Lebanon, 28 August 2013; STL-11-01/T/TC, F1495, Consolidated Request for Finding of Non-Compliance, 14 April 2014; F1810, Updated Request for a Finding of Non-Compliance, 8 January 2015, Confidential and ex parte. A confidential version, F1811, (redacted version of F1810) Updated Request for a Finding of Non-compliance, was filed the same day, as was a public redacted version of F1810.

485


the Trial Chamber directed the Government of the Lebanese Republic to cooperate with the Special Tribunal.4 These decisions specifically addressed these requests for assistance.

4. The Trial Chamber, in a decision of 27 March 2015, instructed counsel for Mr Sabra to provide the Trial Chamber, within two weeks of the Government of the Lebanese Republic receiving this decision and the annexes to it (in Arabic), with an update as to any progress, and to file updates every two weeks thereafter.5 Counsel for Mr Sabra have subsequently filed thirteen notices describing the progress.6

5. On 22 May 2015, the Trial Chamber, at the request of the Lebanese Government, sub-divided the three annexes to its decision of 27 March 2015 into 25 annexes identifying the specific authority or entity to which the request for assistance should go in Lebanon. The Trial Chamber ordered the Lebanese Government to respond to each of the requests for assistance with an explanation as to whether it can comply with the request for assistance, and if not, to explain why not.7

4 STL-11-01/T/TC, F1379, Decision on Second and Fifth Motions by Counsel for Assad Hassan Sabra and Two Orders to Lebanon to Cooperate with the Tribunal, 31 January 2014; F1471, Further Decision on Motions under Rule 20 (A) by Counsel for Assad Hassan Sabra and Four Orders to Lebanon to Cooperate with the Tribunal, 31 March 2014; F1889, Decision on Updated Request for a Finding of Non-Compliance, 27 March 2015.

5 Decision of 27 March 2015, Disposition.

6 F1925, Notice of Response from the Government of Lebanon Regarding the “Decision on Updated Request for a Finding of Non-Compliance”, 23 April 2015; F1930, Second Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 28 April 2015; F1946, Third Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 12 April 2015; F2005, Fourth Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 15 June 2015; F2028, Fifth Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 26 June 2015; F2076, Sixth Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 13 July 2015; F2101, Seventh Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 24 July 2015; F2118, Eighth Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 10 August 2015; F2139, Ninth Notice to “Decision on Updated Request for a Finding of Non-Compliance” and Request for a Finding of Non-Compliance, 24 August 2015; F2221, Tenth Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 28 September 2015; F2259, Eleventh Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 12 October 2015; F2288, Twelfth Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 26 October 2015; F2310, Thirteen Notice to “Decision on Updated Request for a Finding of Non-Compliance”, 9 November 2015. The Prosecution responded to the Sabra Defence’s Ninth Notice and counsel for Mr Sabra subsequently replied (F2178, Prosecution Submissions in Relation to the Sabra Defence’s Request for Finding of Non-Compliance, 8 September 2015; F2195, Reply to “Prosecution Submissions in Relation to the Sabra Defence’s Request for a Finding of Non-Compliance”, 14 September 2015).

7 F1960, Order Clarifying Decision on Updated Request for a Finding of Non-Compliance of 27 March 2015, 22 May 2015.

486


6. On 24 August 2015, counsel for Mr Sabra, in their Ninth Notice, submitted that 21 requests for assistance are outstanding either because they do not include replies from some relevant Government departments or private companies, or because the full request remains unanswered.8

7. The Trial Chamber, in its decision of 27 March 2015, held that “a State should be heard before a Chamber makes a finding of non-compliance”.9 The Defence submits that 21 requests for assistance remain outstanding. The Trial Chamber would be assisted by submissions from the Lebanese Government. It therefore invites the Government of the Lebanese Republic to make submissions in relation to the Defence Ninth Notice and Clarification to Notices requesting a finding of non-compliance regarding the 21 requests for assistance.

8 Sabra Defence’s Ninth Notice, paras 61, 64, 68 and 73 (a).

9 Decision of 27 March 2015, para. 55.

487


DISPOSITION


INVITES the Government of the Lebanese Republic to file submissions in relation to the 21 requests for assistance that counsel for Mr Assad Hassan Sabra consider to be outstanding, within 14 days from receiving this invitation in Arabic;

DIRECTS counsel for Mr Assad Hassan Sabra to file any response to the submissions, within 10 days; and

INSTRUCTS the Registrar to immediately notify the Government of the Lebanese Republic of this invitation, and provide it with copies of the following:

(1) Decision on Second and Fifth Motions by Counsel for Assad Hassan Sabra and Two Orders to Lebanon to Cooperate with the Tribunal, 31 January 2014;

(2) Further Decision on Motions Under Rule 20 (A) by Counsel for Assad Hassan Sabra and Four Orders to Lebanon to Cooperate with the Tribunal, 31 March 2014;

(3) Decision on Updated Request for a Finding of Non-Compliance, 27 March 2015;

(4) Order Clarifying Decision on Updated Request for a Finding of Non-Compliance of 27 March 2015, 22 May 2015;

(5) Ninth Notice to “Decision on Updated Request for a Finding of Non-Compliance” and Request for a Finding of Non-Compliance, 24 August 2015;

(6) Prosecution Submissions in Relation to the Sabra Defence’s Request for Finding of Non-Compliance, 8 September 2015; and

(7) Clarification to Notices to “Decision on Updated Request for a Finding of Non-Compliance”, 16 November 2015.

488


Done in Arabic, English, and French, the English version being authoritative. Leidschendam, the Netherlands 17 November 2015



489

INDEX 2015The numbers referred to are the paragraph numbers of the decisions. The short titles of decisions are intended for ease of reference, they are not official titles.

THEME LOCATIONAccused, acts and conduct of Admissibility of CSTs and Transfer of CDRs TC, 12, 20, 28, 35, 44,

56, 117; Witness Interview and Admission of Witness Statement TC, 6, 10; Summons to Appear TC, 15, 16, 28, 29; Denial of Certification to Appeal Summons TC, 10, 19; Admission of Locations Related Evidence TC, 5, 7, 10, 13, 16, 24, 27, 30, 36, 38, 39, 52, 55; Transfer of CDRs AC, 16; Witness Right to Appeal AC, 3; Contempt Judgment CJ, 66, 68, 92, 110, 121.

Accused, corporate Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 3; Exhibit List Amendment and Stay of Proceedings TC, 11; Contempt Judgment CJ, 17, 22, 26, 55, 57, 59, 68, 72, 177.

Accused, equality between Personal Jurisdiction in Contempt Case AP, 70; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 26.

Accused, rights of Personal Jurisdiction in Contempt Case AP, 22, 56, 60, 61; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 18; Testimony of Expert Witnesses TC, 18; Exhibit List Amendment and Stay of Proceedings TC, 30, 32, 34, 47, 54; Admissibility of CSTs and Transfer of CDRs TC, 7, 13, 17, 19, 20, 24, 27, 28, 32, 36, 40, 43, 44, 50, 60, 67; Denial of Certification to Appeal Summons TC, 18; Admission of Locations Related Evidence TC, 62; Contempt Judgment CJ, 68.

Actus reus Personal Jurisdiction in Contempt Case AP, 53,55; Contempt Judgment CJ, 35, 38-43, 52, 73, 127, 128, 149; Testimony of Expert Witnesses TC, 10.

Administration of justice Personal Jurisdiction in Contempt Case AP, 10, 46, 55, 58, 59; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 18, 19, 22, 25, 38; Admissibility of WikiLeaks Documents TC, 24; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 17, 26, 33, 45, 48; Sentencing Judgment in Contempt Case CJ, 17; Contempt Judgment CJ, 1, 5, 33, 37, 38, 40, 45, 47-53, 92, 93, 107, 151.

Admissibility Testimony of Expert Witnesses TC, 1, 12; Exhibit List Amendment and Stay of Proceedings TC, 4; Admissibility of CSTs and Transfer of CDRs TC, 49, 50, 71, 72, 80, 112, 113, 114, 115; Admissibility of WikiLeaks Documents TC, 6, 7, 9-13, 22, 24, 28, 32, 39; Summons to Appear TC, 10, 19; Denial of Certification to Appeal WikiLeaks Decision TC, 6,8; Admission of Locations Related Evidence TC, 15, 29, 32, 49, 53; Denial of Certification to Appeal Summons TC, 9, 18; Transfer of CDRs AC, 7, 37, 59; Transfer of CDRs AC (Opinion of Judge Riachy), 6; Transfer of CDRs AC (Opinion of Judge Baragwanath), 2, 3, 4, 24.

Admissibility, criteria Admissibility of WikiLeaks Documents TC, 9-13; Denial of Certification to Appeal WikiLeaks Decision TC, 6.

490

Index

Admissibility criteria, probative value of evidence

Admissibility of WikiLeaks Documents TC, 9, 11, 12, 20-21, 23, 28, 35-39; Admissibility of CSTs and Transfer of CDRs TC, 7, 8, 11, 14, 17, 25, 33, 41, 47, 52, 66, 67, 68, 111, 115, 118.

Admissibility criteria, relevance of evidence

Exhibit List Amendment and Stay of Proceedings TC, 14, 15, 24, 26, 28; Admissibility of CSTs and Transfer of CDRs TC, 11, 47, 50, 68; Admissibility of WikiLeaks Documents TC, 11, 12, 15-17, 30; Denial of Certification to Appeal WikiLeaks Decision TC, 7,9; Admission of Locations Related Evidence TC, 73, 76, 80, 82.

Admissibility, disputed documents

Admissibility of WikiLeaks Documents TC, 34, 40-42.

Admissibility into evidence Testimony of Expert Witnesses TC, 1; Exhibit List Amendment and Stay of Proceedings TC, 23, 40, 46; Admissibility of CSTs and Transfer of CDRs TC, 3, 4, 5, 15, 22, 30, 38, 46, 49, 68, 69, 74, 76, 107, 113, 116, 117; Admissibility of WikiLeaks Documents TC, 1, 9-13, 18, 20, 21, 22-35, 38, 42, 43, 44; Witness Interview and Admission of Witness Statement TC, 1, 5,15; Summons to Appear TC, 15, 16, 17; Denial of Certification to Appeal WikiLeaks Decision TC, 2, 3, 6, 8, 9; Admission of Locations Related Evidence TC, 5, 10, 42, 44, 45, 50, 51, 55, 58, 65, 67, 68, 73, 76, 78, 80; Transfer of CDRs AC, 2, 5, 59.

Admissibility of a motion Witness Interview and Admission of Witness Statement TC, 1, 2, 3, 4; Contempt Judgment CJ, 30.

Al Akhbar (newspaper) Personal Jurisdiction in Contempt Case AP, 2, 10, 66, 67; Contempt Judgment CJ, 112, 113, 115, 118.

Al Jadeed TV Contempt Judgment CJ, 1, 3-13, 17, 22, 51, 55, 74, 78, 83, 85, 88, 92, 96, 113, 117, 123, 126, 128-132, 135-148, 150-153, 156-160, 162, 163, 164, 166, 167, 171, 173, 176, 178, 179, 181-190; Sentencing Judgment in Contempt Case CJ, 1, 4, 6, 10, 11, 17.

Al Jedda case (“ECtHR”) Transfer of CDRs AC (Opinion of Judge Riachy), 16; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 15.

American Civil Liberties Union v. Department of State

Admissibility of WikiLeaks Documents TC, 27, 38, 39; Transfer of CDRs AC, 56.

American Convention on Human Rights

Admissibility of CSTs and Transfer of CDRs TC, 79; Transfer of CDRs AC, 46; Witness Right to Appeal AC, 12.

Amicus Curiae Prosecutor (Amicus)

Personal Jurisdiction in Contempt Case AP, 7; Witness Right to Appeal AC, (Opinion of Judge Baragwanath), 40; Contempt Judgment CJ, 15, 18, 20, 22, 23, 25, 28, 32, 36, 39, 41, 42, 47, 53, 56, 57, 62, 63, 73, 75, 90, 92, 93, 110, 112, 113, 118, 120, 121, 127, 128, 130-133, 138-141, 143, 145, 149-153, 167, 168, 177, 178, 183, 187, 189, 190; Sentencing Judgment in Contempt Case CJ, 3-7, 10, 11, 18, 20.

Appeal, suspensive effect of Witness Right to Appeal AC, 1, 4, 6, 12, 14; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 30.

491

Index

Applicable law Personal Jurisdiction in Contempt Case AP, 31; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 40; Request for access to Documents PTJ, 5; Victim Participation in Proceedings PTJ, 5; Admissibility of CSTs and Transfer of CDRs TC, 83; Denial of Certification to Appeal Summons TC, 22; Transfer of CDRs AC, 24, 38; Transfer of CDRs AC (Opinion of Judge Riachy), 5; Witness Right to Appeal AC, 39; Contempt Judgment CJ, 33, 58; Sentencing Judgment in Contempt Case CJ, 13.

Arab Charter on Human Rights, ACHR

Admissibility of CSTs and Transfer of CDRs TC, 63, 64, 79; Transfer of CDRs AC, 41.

Arbitrary Admissibility of CSTs and Transfer of CDRs TC, 78, 80, 84, 108; Admissibility of WikiLeaks Documents TC, 16; Transfer of CDRs AC, 7, 24, 37, 48; Transfer of CDRs AC (Opinion of Judge Riachy), 11, 13.

Attack of 14 February 2005 Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 33; Testimony of Expert Witnesses TC, 1, 12, 37; Exhibit List Amendment and Stay of Proceedings TC, 15; Request for Access to Documents PTJ, 12; Victim Participation in Proceedings PTJ, 4; Admissibility of CSTs and Transfer of CDRs TC, 23, 33, 109; Witness Interview and Admission of Witness Statement TC, 1; Admission of Location Related Evidence TC, 11; Transfer of CDRs AC, 5, 7, 28, 51, 57; Transfer of CDRs AC (Opinion of Judge Riachy), 24; Transfer of CDRs AC (Opinion of Judge Baragwanath), 9, 22; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 23.

Audi alteram partem, principle of

Personal Jurisdiction in Contempt Case AP, 16, 26; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 5, 6, 8, 14, 43; Transfer of CDRs AC, 18.

Authenticity Admissibility of CSTs and Transfer of CDRs TC, 50, 112, 115; Admissibility of WikiLeaks Documents TC, 8, 9, 11-13, 20, 21, 25, 27, 28, 29, 30, 32, 35, 38, 39, 40, 41, 42; Denial of Certification to Appeal WikiLeaks Decision TC, 6, 8; Admission of Location Related Evidence TC, 71.

Bancoult case (England and Wales High Court of Justice)

Admissibility of WikiLeaks Documents TC, 25, 31, 33, 34, 40.

Bar table Admissibility of CSTs and Transfer of CDRs TC, 56, 111; Admissibility of WikiLeaks Documents TC, 10; Admission of Location Related Evidence TC, 66; Contempt Judgment CJ, 25, 140.

Beghal v Director of Public Prosecutions (UK Supreme Court)

Transfer of CDRs AC (Opinion of Judge Baragwanath), 11, 12, 15, 17, 18.

Brđanin case (ICTY) (also spelled Brdjanin)

Summons to Appear TC, 6, 23, 24, 26; Denial of Certification to Appeal Summons TC, 16; Witness Right to Appeal AC, 5; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 8.

492

Index

Call Data Records (CDRs) Admissibility of CSTs and Transfer of CDRs TC, 1-3, 6, 9-11, 13, 16, 23, 31, 39, 47-51, 53, 54, 57, 62-65, 68, 69, 71-74, 76, 77, 82, 85, 86, 88, 93, 98, 100, 104-105, 108-110, 112, 113, 115, 117-119; Exhibit List Amendment and Stay of Proceedings TC, 5, 6, 15, 38, 39; Transfer of CDRs AC, 1, 3-8, 13-16, 20, 23-25, 34, 36, 38, 39, 40, 42, 43, 47, 49, 51, 54, 56-60; Transfer of CDRs AC (Opinion of Judge Riachy), 1-4, 10, 13, 15, 19-24, 28, 29; Transfer of CDRs AC (Opinion of Judge Baragwanath), 1, 2, 4, 6, 7, 20, 22, 24.

CDRs, admissibility and exclusion

Admissibility of CSTs and Transfer of CDRs TC, 49, 50, 67, 73, 74, 110, 112-115, 118; Transfer of CDRs AC, 8, 14, 37, 40, 59, 60; Transfer of CDRs AC (Opinion of Judge Riachy), 3, 10; Transfer of CDRs AC (Opinion of Judge Baragwanath), 1,6.

CDRs, judicial oversight Admissibility of CSTs and Transfer of CDRs TC, 87-95, 106, 107.

CDRs, legality Admissibility of CSTs and Transfer of CDRs TC, 48, 71, 72, 73, 77, 108-110.

Call Sequence Tables (CSTs) Admissibility of CSTs and Transfer of CDRs TC, 2-9, 11, 12, 15-18, 20-26, 28, 30- 33, 35, 36, 38-51, 53-57, 60, 61, 67-69, 71, 73, 74, 76, 103, 110, 112-115, 117-120; Exhibit List Amendment and Stay of Proceedings TC, 1, 5, 6, 10-15, 38, 39, 40; Transfer of CDRs AC, 1, 5, 6, 7, 37, 38.

CSTs, contextual evidence Admissibility of CSTs and Transfer of CDRs TC, 113, 115, 118.

CSTs, prima facie reliability Admissibility of CSTs and Transfer of CDRs TC, 111, 114, 115, 118.

Case 002 (ECCC) Admissibility of WikiLeaks Documents TC, 26, 30, 33.

Case-law Personal Jurisdiction in Contempt Case AP, 30, 32, 38; Testimony of Expert Witnesses TC, 6, 32; Finding of Non-Compliance TC, 33, 35, 44, 51, 54, 55; Admissibility of WikiLeaks Documents TC, 11, 22; Denial of Certification to Appeal Summons TC, 6, 7, 14; Transfer of CDRs AC, 38, 43, 54; Contempt Judgment CJ, 48, 54, 65, 71, 134; Sentencing Judgment in Contempt Case CJ, 15, 22.

Cell site data Exhibit List Amendment and Stay of Proceedings TC, 5.

Certification request Denial of Certification to Appeal WikiLeaks Decision TC, 4, 5; Witness Right to Appeal AC, 5.

Certification, to appeal, threshold

Personal Jurisdiction in Contempt Case AP, 48; Denial of Certification to Appeal WikiLeaks Decision TC, 1, 4, 5, 9; Denial of Certification to Appeal Summons TC, 1, 3, 4, 5, 6, 7, 14, 16, 22, 23; Transfer of CDRs AC, 8, 14; Witness Right to Appeal AC, 4, 5, 7, 8; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 24, 37, 38.

Charter of Fundamental Rights of European Union

Admissibility of CSTs and Transfer of CDRs TC, 79.

493

Index

Christopher Brown Ltd v. Genossenschaft Österreichischer Waldbesitzer (UK, Queen’s Bench Division)

Witness Right to Appeal AC (Opinion of Judge Baragwanath), 33.

Circumstances (individual, aggravating, mitigating, specific, exceptional)

Transfer of CDRs AC, 2, 19, 20; Transfer of CDRs AC (Opinion of Judge Riachy), 14; Witness Right to Appeal AC, 3, 12; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 30; Sentencing Judgment in Contempt Case CJ, 6, 11, 14, 18-21.

Civil law Personal Jurisdiction in Contempt Case AP, 18, 29; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 29, 35; Testimony of Expert Witnesses TC, 7, 25, 26; Contempt Judgment CJ, 65.

Claim of responsibility, false Exhibit List Amendment and Stay of Proceedings TC, 15, 20; Admissibility of CSTs and Transfer of CDRs TC, 23, 25, 114; Witness Interview and Admission of Witness Statement TC, 7; Summons to Appear TC, 2, 3, 4; Admission of Locations Related Evidence TC, 11, 13.

Common law Personal Jurisdiction in Contempt Case AP, 18, 35, 40; Testimony of Expert Witnesses TC, 25, 26; Admissibility of CSTs and Transfer of CDRs TC, 11; Contempt Judgment CJ, 64.

Common legal representation Victim Participation in Proceedings PTJ, 15, 16.Communications-related data Exhibit List Amendment and Stay of Proceedings TC, 3, 5-9, 37, 39.Compétence de la compétence

Witness Right to Appeal AC (Opinion of Judge Baragwanath), 32; Witness Right to Appeal AC, Appendix, 43, 48.

Competing rights and interests

Transfer of CDRs AC, 52.

Compliance Finding of Non-Compliance TC, 24, 32-39, 43, 47, 53-55, 63, 67; Admissibility of CSTs and Transfer of CDRs TC, 11, 62; Transfer of CDRs AC, 12; Contempt Judgment CJ, 181.

Concurrent expert evidence Testimony of Expert Witnesses TC, 15, 16, 18, 20, 21, 25, 26, 28, 30, 33, 36, 38, 39.

Conduct of the proceedings Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 15, 16; Testimony of Expert Witnesses TC, 7, 27; Denial of Certification to Appeal WikiLeaks Decision TC, 4, 6, 9; Denial of Certification to Appeal Summons TC, 4, 10, 11, 15, 19, 20, 21, 23; Witness Right to Appeal AC, 5, 13; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 21, 40; Witness Right to Appeal AC, Appendix, 40, 48.

Confidential witness Admissibility of CSTs and Transfer of CDRs TC, 121; Admission of Locations Related Evidence TC, 4, 83; Contempt Judgment CJ, 5, 7, 9, 37, 40, 42-45, 50, 51, 73, 92, 107, 108, 112, 116, 119, 120, 128, 130, 145, 148.

494

Index

Confidentiality Admissibility of CSTs and Transfer of CDRs TC, 104, 121; Request for access to Documents PTJ, 24, 25; Exhibit List Amendment and Stay of Proceedings TC, 58; Victim Participation in Proceedings PTJ, 4, 17; Witness Right to Appeal AC, 13,14; Contempt Judgment CJ, 5, 12, 16, 37, 40, 42, 44, 46, 50, 73, 110, 120; Summons to Appear TC, 30, 31.

Connected cases Personal Jurisdiction in Contempt Case AP, 33; Request for access to Documents PTJ, 12; Transfer of CDRs AC, 57.

Consolidated indictment Finding of Non-Compliance TC, 11; Exhibit List Amendment and Stay of Proceedings TC, 36; Admissibility of CSTs and Transfer of CDRs TC, 1, 115, 118; Witness Interview and Admission of Witness Statement TC, 6, 7, 9, 10; Summons to Appear TC, 3, 14, 15, 29; Admission of Locations Related Evidence TC, 11, 13, 24, 81; Transfer of CDRs AC, 5.

Contempt Personal Jurisdiction in Contempt Case AP, 1, 2, 3, 4, 7, 8, 10-20, 22-27, 32, 34-37, 39-49, 52-57, 59, 60, 66-74; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Chamseddine), 2, 3, 5, 7; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 1, 2-5, 10-16, 18-20, 22-27, 33, 37, 39-41, 43; Request for access to Documents PTJ, 22; Witness Interview and Admission of Witness Statement TC, 11; Denial of Certification to Appeal Summons TC, 7; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 10, 46, 48; Contempt Judgment CJ, 1, 5, 14, 15, 19, 20, 33, 34, 39, 45, 48-50, 52, 54-60, 67, 68, 151; Sentencing Judgment in Contempt Case CJ, 13, 14, 15.

Contempt, jurisdiction over Personal Jurisdiction in Contempt Case AP, 13; Contempt Judgment CJ, 20.

Cooperation Finding of Non-Compliance TC, 2, 8, 9, 20, 22, 34, 48, 49, 50, 51, 55, 70; Admissibility of CSTs and Transfer of CDRs TC, 100; Clarification of Finding of Non-Compliance TC, 1; Transfer of CDRs AC, 29, 33; Contempt Judgment CJ, 103; Sentencing Judgment in Contempt Case CJ, 5, 14; Invitation to Lebanese Government to Make Submissions TC, 1, 2.

Corporate accused (see Accused, corporate) Corporate (criminal) liability Personal Jurisdiction in Contempt Case AP (Opinion of Judge

Nosworthy), 24; Contempt Judgment CJ, 19, 56-59, 61, 62, 65, 67, 68.

Counsel, rights of Exhibit List Amendment and Stay of Proceedings TC, 47.Counts Contempt Judgment CJ, 1, 5, 17, 21, 35, 37- 39, 41-43, 51, 55, 62-66,

72, 73, 127, 128, 144, 150, 177; Sentencing Judgment in Contempt Case CJ, 1, 2.

Court order, violation of Contempt Judgment CJ, 33, 39, 53, 54; Sentencing Judgment in Contempt Case CJ, 3.

495

Index

Credibility of witness Witness Interview and Admission of Witness Statement TC, 10; Witness Right to Appeal AC, Appendix, 46.

Cross-examination Testimony of Expert Witnesses TC, 1, 7, 13, 37, 38; Admissibility of CSTs and Transfer of CDRs TC, 57, 116, 119; Admissibility of WikiLeaks Documents TC, 3, 25, 31, 34; Witness Interview and Admission of Witness Statement TC, 6, 7, 12; Summons to Appear TC, 16; Admission of Locations Related Evidence TC, 4, 5, 12, 13, 16, 24, 27, 29, 30, 40, 49; Denial of Certification to Appeal WikiLeaks Decision TC, 8; Contempt Judgment CJ, 107, 138.

Customary international law Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 22; Testimony of Expert Witnesses TC, 16, 17; Finding of Non-Compliance TC, 52; Admissibility of CSTs and Transfer of CDRs TC, 63, 65, 82, 83; Transfer of CDRs AC, 8; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 47; Contempt Judgment CJ, 21, 60.

Digital Rights Ireland Decision (European Court of Justice)

Admissibility of CSTs and Transfer of CDRs TC, 61, 85; Transfer of CDRs AC, 44, 53, 56; Transfer of CDRs AC (Opinion of Judge Riachy), 12; Transfer of CDRs AC (Opinion of Judge Baragwanath), 25.

Disclosure Exhibit List Amendment and Stay of Proceedings TC, 2, 15, 27, 29, 30, 31, 32, 33, 49, 50, 51, 52; Admissibility of CSTs and Transfer of CDRs TC, 86; Admissibility of WikiLeaks Documents TC, 27, 39; Witness Interview and Admission of Witness statement TC, 15; Summons to Appear TC, 21; Transfer of CDRs AC, 43; Transfer of CDRs AC (Opinion of the Judge Baragwanath), 11; Contempt Judgment CJ, 25, 29, 40, 45, 52-54, 73, 92, 95, 107-113, 115, 116, 118-121, 123, 126; Sentencing Judgment in Contempt Case CJ, 3, 4.

Disclosure obligations Exhibit List Amendment and Stay of Proceedings TC, 30, 32, 51.Discretion Personal Jurisdiction in Contempt Case AP (Opinion of Judge

Nosworthy), 7, 15, 35; Testimony of Expert Witnesses TC, 7, 27, 28, 36, 37; Finding of Non-Compliance TC, 33, 35, 37, 38, 41, 48, 52, 55, 67; Exhibit List Amendment and Stay of Proceedings TC, 48; Transfer of CDRs AC, 11, 35.

Documents. admission into evidence

Exhibit List Amendment and Stay of Proceedings TC, 46; Admissibility of WikiLeaks Documents TC, 10, 23, 24, 36, 38, 40, 41, 43, 44; Witness Interview and Admission of Witness statement TC, 15; Summons to Appear, 15; Denial of Certification to Appeal WikiLeaks Decision TC, 2, 3, 6, 8; Admission of Locations Related Evidence TC, 66, 68, 70, 73, 76, 78, 80.

Due Process Transfer of CDRs AC (Opinion of Judge Baragwanath), 4, 27; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 25.

Error of law Personal Jurisdiction in Contempt Case AP, 38, 39; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 4; Transfer of CDRs AC, 21, 22.

496

Index

European Convention on Human Rights

Admissibility of CSTs and Transfer of CDRs TC, 61, 62, 79, 83, 84, Transfer of CDRs AC, 45; Transfer of CDRs AC (Opinion of Judge Baragwanath), 12.

Article 8 Admissibility of CSTs and Transfer of CDRs TC, 61, 79; Transfer of CDRs AC, 45; Transfer of CDRs AC (Opinion of Judge Baragwanath), 11.

European Court of Human Rights (ECtHR)

Personal Jurisdiction in Contempt Case AP, 32; Transfer of CDRs AC, 45, 53; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 15; Witness Right to Appeal AC, Appendix, 44; Contempt Judgment CJ, 40.

European Union Charter of Fundamental Rights

Transfer of CDRs AC, 44; Transfer of CDRs AC (Opinion of Judge Riachy), 11.

Article 7 Transfer of CDRs AC, 44.Article 8 Transfer of CDRs AC, 44.

Evidence, admissibility and exclusion

Testimony of Expert Witnesses TC, 1; Exhibit List Amendment and Stay of Proceedings TC, 23; Admissibility of CSTs and Transfer of CDRs TC, 3, 5, 15, 22, 30, 38, 46, 49, 50, 74, 76, 107, 112, 113, 116, 117; Denial of Certification to Appeal WikiLeaks Decision TC, 2, 3, 6, 8,9; Summons to Appear TC, 15, 17, 24; Admission of Locations Related Evidence TC, 2, 5, 10, 42, 44, 45, 50, 51, 55, 58, 65, 66, 67, 68, 70, 73, 76, 78, 80; Denial of Certification to Appeal Summons TC, 18; Transfer of CDRs AC, 1, 2, 5, 59; Contempt Judgment, 25.

Evidence, electronic Admission of Locations Related Evidence TC, 1.Evidence, oral Summons to Appear TC, 10, 14, 15, 19, 28.Evidence, political context Exhibit List Amendment and Stay of Proceedings TC, 22, 36, 43, 55.Evidence, prima facie Exhibit List Amendment and Stay of Proceedings TC, 26, 28, 34,

38, 41-45; Victim Participation in Proceedings PTJ, 7, 12; Denial of Certification to Appeal WikiLeaks Decision TC, 7; Admission of Locations Related Evidence TC, 62.

Evidence, probative value of Testimony of Expert Witnesses TC, 5; Admissibility of CSTs and Transfer of CDRs TC, 66, 67, 111; Admissibility of WikiLeaks Documents TC, 9, 20, 21, 35-39; Summons to Appear TC, 29; Admission of Locations Related Evidence TC, 66; Transfer of CDRs AC (Opinion of Judge Baragwanath), 2, 27; Contempt Judgment CJ, 109.

497

Index

Evidence, relevance of Exhibit List Amendment and Stay of Proceedings TC, 14, 15, 18, 19, 22, 24, 25, 26, 28, 34, 36, 38, 41-45; Admissibility of CSTs and Transfer of CDRs TC, 14, 21, 29, 37, 45, 110, 111, 115, 117, 118; Admissibility of WikiLeaks Documents TC, 11, 15, 18, 19, 22, 23; Witness Interview and Admission of Witness Statement TC, 9, 12; Denial of Certification to Appeal WikiLeaks Decision TC, 7, 9; Summons to Appear TC, 29; Admission of Locations Related Evidence TC, 10, 13, 14, 16, 19, 22, 24, 33, 35, 39, 48, 51, 62, 66, 73, 75, 76, 80, 82; Witness Right to Appeal AC, 3.

Evidence, secondary material Admissibility of CSTs and Transfer of CDRs TC, 68.Evidence, WikiLeaks documents

Admissibility of WikiLeaks Documents TC, 9, 13, 15, 22, 23, 24, 26, 28, 29, 30, 32, 33, 35, 36, 40, 41, 44; Denial of Certification to Appeal WikiLeaks Decision TC, 6, 8, 9.

Evidence, witness statements Exhibit List Amendment and Stay of Proceedings TC, 3; Admissibility of CSTs and Transfer of CDRs TC, 3, 20, 28, 47, 56, 73, 114; Witness Interview and Admission of Witness Statement TC, 1, 2, 5, 6, 9, 10, 12; Summons to Appear TC, 17; Admission of Locations Related Evidence TC, 2, 5, 47, 50, 64, 65; Transfer of CDRs AC, 59.

Evidentiary materials, documents

Admission of Locations Related Evidence TC, 66, 67; Summons to Appear TC, 15.

Ex parte proceedings Finding of Non-Compliance TC, 3, Admission of Locations Related Evidence TC, 4; Witness Right to Appeal (Opinion of Judge Baragwanath), 17; Contempt Judgment CJ, 129.

Examination Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 3; Testimony of Expert Witness TC, 18, 24; Finding of Non-Compliance TC, 40; Request for access to Documents PTJ, 10, 11, 19; Victim Participation in Proceedings PTJ, 4; Transfer of CDRs AC (Opinion of Judge Baragwanath), 23; Contempt Judgment CJ, 21, 107.

Exceptional circumstances Transfer of CDRs AC, 19, 20; Transfer of CDRs AC (Opinion of Judge Riachy), 12; Witness Right to Appeal AC, 12; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 30.

Exhibit List, addition of CDRs and CSTs

Exhibit List Amendment and Stay of Proceedings TC, 3, 13, 38, 39, 41.

Exhibit List, amendments of Exhibit List Amendment and Stay of Proceedings TC, 27, 28, 29, 31, 32, 34-36, 46, 54; Admissibility of CSTs and Transfer of CDRs TC, 120; Contempt Judgment CJ, 23, 25.

Expert Testimony of Expert Witnesses TC, 1, 2, 7, 8, 10-16, 18, 20, 21, 23-26, 28-36, 39; Exhibit List Amendment and Stay of Proceedings TC, 9; Admissibility of CSTs and Transfer of CDRs TC, 52, 57; Contempt Judgment CJ, 28, 92, 109, 126; Sentencing Judgment in Contempt Case CJ, 19.

498

Index

Expert witnesses Testimony of Expert Witnesses TC, 1, 2, 7, 9, 14, 16, 18, 20, 24, 26, 28, 30, 34, 39.

Factors (aggravating, mitigating, important, balancing)

Transfer of CDRs AC, 52; Sentencing Judgment in Contempt Case CJ, 4, 5, 15.

Fair and expeditious proceedings

Witness Interview and Admission of Witness Statement TC, 8; Denial of Certification to Appeal WikiLeaks Decision TC, 4, 6, 9; Denial of Certification to Appeal Summons TC, 4, 9, 10, 11, 15, 18, 19, 20, 21, 22, 23; Witness Right to Appeal AC, 5; Witness Right to Appeal AC (Opinion of Judge Baragwanath) 13.

Fair and expeditious trial Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 8, 26; Exhibit List Amendment and Stay of Proceedings TC, 30, 32, 48, 50, 53, 54, 56, 57; Admissibility of CSTs and Transfer of CDRs TC, 7, 11, 13, 17, 19, 20, 24, 27, 28, 32, 36, 40, 43, 44, 60, 67, 68; Admissibility of WikiLeaks Documents TC, 9; Witness Interview and Admission of Witness Statement TC, 6; Summons to Appear TC, 30; Admission of Location related Evidence TC, 5; Denial of Certification to Appeal Summons TC, 18; Transfer of CDRs AC (Opinion of Judge Riachy), 7; Transfer of CDRs AC (Opinion of Judge Baragwanath), 2, 27;Witness Right to Appeal AC, 3.

Fair trial, right to Exhibit List Amendment and Stay of Proceedings TC, 30, 32, 54; Admissibility of CSTs and Transfer of CDRs TC, 7, 13, 17, 19, 20, 24, 27, 28, 32, 36, 40, 43, 44, 60; Denial of Certification to Appeal Summons TC, 18.

Fairness of the proceedings Finding of Non-Compliance TC, 17; Denial of Certification to Appeal Summons TC, 7, 20.

False claim of responsibility Exhibit List Amendment and Stay of Proceedings TC, 15, 20; Admissibility of CSTs and Transfer of CDRs TC, 23, 25, 114; Witness Interview and Admission of Witness Statement TC, 7; Summons to Appear TC, 2, 3; Admission of Location related Evidence TC, 11, 13.

Freedom of expression Admissibility of CSTs and Transfer of CDRs TC, 80; Transfer of CDRs AC, 41; Contempt Judgment CJ, 33.

Freedom of the press Witness Right to Appeal AC (Opinion of judge Baragwanath), 12; Contempt Judgment CJ, 40, 41, 127.

French Conseil constitutionnel

Transfer of CDRs AC (Opinion of Judge Baragwanath), 10.

French Court of Cassation Transfer of CDRs AC (Opinion of Judge Riachy), 26.Fundamental rights Witness Right to Appeal AC (Opinion of Judge Baragwanath), 15,

27.Gaddafi case Finding of Non-Compliance TC, 43-48.

499

Index

General principles of law, of international criminal law, of international criminal procedural law

Personal Jurisdiction in Contempt Case AP, 63; Testimony of Expert Witnesses TC, 16, 19; Admissibility of CSTs and Transfer of CDRs TC, 66; Denial of Certification to Appeal WikiLeaks Decision TC, 8; Transfer of CDRs AC (Opinion of Judge Riachy), 8, 12; Transfer of CDRs AC (Opinion of Judge Baragwanath), 15; Contempt Judgment CJ, 19, 21, 60, 61.

Gotovina case (ICTY) Admissibility of WikiLeaks Documents TC, 24, 32. Government of the Lebanese Republic

Finding of Non-Compliance TC, 1,-18, 19-22, 24, 27-31, 67, 68, 70; Clarification of Finding of Non-Compliance TC, 1, 3, 5, 6; Transfer of CDRs AC, 29, 30, 32, 33; Invitation to Lebanese Government to Make Submissions TC, 1-7.

Haradinaj case (ICTY) Summons to Appear TC, 26; Contempt Judgment CJ, 107.Head of Defence Office Request for access to Documents PTJ, 8; Admissibility of CSTs

and Transfer of CDRs TC, 97; Clarification of Finding of Non-Compliance TC, 1; Invitation to Lebanese Government to Make Submissions TC, 2.

Head of Defence Office, appointment of counsel

Request for access to Documents PTJ, 8.

Human rights, international instruments, standards

Personal Jurisdiction in Contempt Case AP, 64, 65; Testimony of Expert Witnesses TC, 16, 18; Admissibility of CSTs and Transfer of CDRs TC, 59, 61-63, 74, 75, 76, 78, 79, 81-83, 85-87,108; Transfer of CDRs AC, 1, 2, 6, 7, 8, 14-16, 26, 37, 38, 39, 40, 41, 43, 47, 54, 55, 60; Transfer of CDRs AC (Opinion of Judge Riachy), 1, 3, 4, 8, 9, 10, 11, 21, 23, 25; Transfer of CDRs AC (Opinion of Judge Baragwanath), 6, 27; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 2; Contempt Judgment CJ, 21, 33, 60.

Inherent authority, jurisdiction, power

Personal Jurisdiction in Contempt Case AP, 7, 11, 13, 14, 35, 44, 72; Exhibit List Amendment and Stay of Proceedings TC, 48; Request for access to Documents PTJ, 8, 15; Denial of Certification to Appeal Summons TC, 7; Witness Right to Appeal AC, 9; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 1, 4, 14, 26, 27, 34, 37, 45; Witness Right to Appeal AC, Appendix, 43-48; Contempt Judgment CJ, 19, 20, 33, 34, 59, 67.

Initial appearance Contempt Judgment CJ, 17.Injustice Witness Right to Appeal AC, 10; Witness Right to Appeal AC

(Opinion of Judge Baragwanath), 10, 21, 26, 37.Inter-American Court of Human Rights

Transfer of CDRs AC, 45; Witness Right to Appeal AC, Appendix, 44.

500

Index

Interests of justice Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 13, 41; Testimony of Expert Witnesses TC, 14; Exhibit List Amendment and Stay of Proceedings TC, 4, 34, 41, 47, 54; Request for access to Documents PTJ, 12; Admissibility of CSTs and Transfer of CDRs TC, 117, 120; Witness Interview and Admission of Witness Statement TC, 6; Summons to Appear, 5; Admission of Locations Related Evidence TC, 5, 62; Witness Right to Appeal AC, 11; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 12, 14, 26, 37, 48.

Interference with the administration of justice

Personal Jurisdiction in Contempt Case AP, 10; Contempt Judgment CJ, 38, 40, 45, 48, 49, 50, 53, 93, 151.

Interim measures Witness Right to Appeal AC, Appendix, 46.Interlocutory appeal Personal Jurisdiction in Contempt Case AP, 1, 7, 14, 40, 42; Denial

of Certification to Appeal WikiLeaks Decision TC, 4; Denial of Certification to Appeal Summons TC, 1, 4, 6, 7, 16, 17, 23; Transfer of CDRs AC, 9, 10, 14; Witness Right to Appeal AC, 5, 8, 10; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13, 14, 20, 26, 37, Witness Right to Appeal AC, Appendix, 41.

International Court of Justice (ICJ)

Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 37; Witness Right to Appeal AC, Appendix, 44.

International Covenant on Civil and Political Rights (ICCPR)

Admissibility of CSTs and Transfer of CDRs TC, 63; Transfer of CDRs AC, 41; Transfer of CDRs AC (Opinion of Judge Riachy), 11; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 12.

ICCPR, Article 17 Admissibility of CSTs and Transfer of CDRs TC, 63, 78, 81; Transfer of CDRs AC (Opinion of Judge Riachy), 11.

International Criminal Court (ICC)

Personal Jurisdiction in Contempt Case AP, 38; Testimony of Expert Witnesses TC, 20; Finding of Non-Compliance TC, 25, 29, 33, 35, 36, 43; Admissibility of WikiLeaks Documents TC, 12.

ICC Regulations of the CourtRegulation 44(5) Testimony of Expert Witnesses TC, 20, 31.

ICC Statute Article 69(4) Admissibility of WikiLeaks Documents TC, 12. Article 87 Finding of Non-Compliance TC, 34, 43, 47.

International criminal law, principles of

Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 63; Testimony of Expert Witnesses TC, 16, 19; Finding of Non-Compliance TC, 52; Admissibility of CSTs and Transfer of CDRs TC, 66; Denial of Certification to Appeal WikiLeaks Decision TC, 8; Transfer of CDRs AC (Opinion of Judge Riachy), 8; Contempt Judgment CJ, 21, 60.

International criminal procedure, standards of

Transfer of CDRs AC (Opinion of Judge Riachy), 7; Transfer of CDRs AC (Opinion of Judge Baragwanath), 11; Witness Right to Appeal AC, (Opinion of Judge Baragwanath), 13, 25.

501

Index

International Criminal Tribunal for Rwanda (ICTR)

Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 38; Finding of Non-Compliance TC, 26, 34, 35, 54; Witness Right to Appeal AC, Appendix, 44.

International Criminal Tribunal for the former Yugoslavia (ICTY)

Personal Jurisdiction in Contempt Case AP, 25; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 7, 8, 38, 41; Testimony of Expert Witnesses TC, 7, 19, 21, 30, 31; Finding of Non-Compliance TC, 18, 26, 34, 35, 51; Admissibility of CSTs and Transfer of CDRs TC, 7, 80, 89; Admissibility of WikiLeaks Documents TC, 11, 13, 24, 32; Summons to Appear TC, 6, 12, 23, 24, 26; Denial of Certification to Appeal Summons TC, 1, 7, 14, 16; Witness Right to Appeal AC, 5; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 8, 41, 44; Witness Right to Appeal AC, Appendix, 44; Contempt Judgment CJ, 54, 107; Sentencing Judgment in Contempt Case CJ, 15.

ICTY Rules of Procedure and Evidence

Rule 7 bis (A) Finding of Non-Compliance TC, 34Rule 89 Admissibility of WikiLeaks Documents TC, 11.Rule 90 (C) Testimony of Expert Witnesses TC, 21, 31.

ILO Administrative Tribunal Witness Right to Appeal AC, Appendix, 44.International courts, relationship with national authorities

Finding of Non-Compliance TC, 26; Admissibility of CSTs and Transfer of CDRs TC, 89, 90.

International Human Rights Law

Admissibility of CSTs and Transfer of CDRs TC, 61,75, 78, 81, 83; Transfer of CDRs AC, 26, 48; Transfer of CDRs AC (Opinion of Judge Riachy), 10, 16, 23, 25, 28; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 12.

International human rights, standards of

Personal Jurisdiction in Contempt Case AP, 65; Testimony of Expert Witnesses TC, 18; Admissibility of CSTs and Transfer of CDRs TC, 62, 83, 86, 87; Transfer of CDRs AC, 2, 6, 8, 14, 15, 16, 37, 38, 39, 40, 43, 47, 54, 60; Transfer of CDRs AC (Opinion of Judge Riachy), 1, 3, 4, 10, 11; Transfer of CDRs AC (Opinion of Judge Baragwanath), 6, 27; Contempt Judgment CJ, 21, 33, 60.

Interpretation favorable to the accused

Personal Jurisdiction in Contempt Case AP, 35; Contempt Judgment CJ, 19.

Iran-US Claims Tribunal Witness Right to Appeal AC, Appendix, 44.Iura novit curia, principle of Contempt Judgment CJ, 58.Journalists, professional responsibility of

Personal Jurisdiction in Contempt Case AP, 57.

Judge, recusal of Witness Right to Appeal AC, Appendix, 40.

502

Index

Judicial authorization Transfer of CDRs AC, 2, 8, 14, 23, 25, 27, 32, 33, 36-40, 52, 53, 54, 58; Transfer of CDRs AC (Opinion of Judge Riachy), 1, 3, 4, 10, 14, 18, 22, 25, 26, 28; Transfer of CDRs AC (Opinion of Judge Baragwanath), 6.

Judicial control Admissibility of CSTs and Transfer of CDRs TC, 87-95, 96-98, 100; Transfer of CDRs AC, 2, 8, 14, 15, 23, 24, 31, 34, 38, 39, 60; Transfer of CDRs AC (Opinion of Judge Baragwanath), 6, 7.

Judicial discretion (see Discretion) Judicial economy Denial of Certification to Appeal WikiLeaks Decision TC, 5; Denial

of Certification to Appeal Summons TC, 5. Jurisdiction, Appeals Panel Personal Jurisdiction in Contempt Case AP, 44; Contempt Judgment

CJ, 60.Jurisdiction, exclusive Personal Jurisdiction in Contempt Case AP, 40; Request for access

to Documents PTJ, 16; Victim Participation in Proceedings PTJ, 5.Jurisdiction, incidental, implicit

Request for access to Documents PTJ, 12, 14.

Jurisdiction, legal person Personal Jurisdiction in Contempt Case AP, 45, 48, 66, 67, 69, 72.Jurisdiction, materiae Personal Jurisdiction in Contempt Case AP, 41, 43.Jurisdiction, personal Personal Jurisdiction in Contempt Case AP, 1, 8; Contempt Judgment

CJ, 19, 55.Jurisdiction, subject matter Request for access to Documents PTJ, 12, 14; Witness Right to

Appeal AC, Appendix, 40.Jurisdiction, temporal Personal Jurisdiction in Contempt Case AP, 41; Witness Right to

Appeal AC, Appendix, 40.Jurisdiction, territorial Personal Jurisdiction in Contempt Case AP, 41; Witness Right to

Appeal AC, Appendix, 40.Jurisdiction, Tribunal Request for access to Documents PTJ, 11-16; Witness Right to

Appeal AC, Appendix, 39, 48. Justice, obstruction of Personal Jurisdiction in Contempt Case AP, 15, 47; Request for

access to Documents PTJ, 22; Contempt Judgment CJ, 59.Kaing Guek Eav (a.k.a Duch) (ECCC)

Testimony of Expert Witnesses TC, 23.

Karadžić and Milošević (MICT)

Admissibility of WikiLeaks Documents TC, 24, 32.

Katanga case (ICC) Admissibility of WikiLeaks Documents TC, 12, 13. Kenyatta case (ICC) Finding of Non-Compliance TC, 17, 50, 51.Klass case (“ECtHR”) Transfer of CDRs AC, 53.Knowing and wilful interference

Personal Jurisdiction in Contempt Case AP, 10; Contempt Judgment CJ, 5, 33, 37, 38, 40, 48, 49, 50, 51, 53, 151.

503

Index

Kopp case (“ECtHR”) Transfer of CDRs AC, 53.Kovacevic case (ICTY) Testimony of Expert Witnesses TC, 21, 30, 31.League of Arab States’ Arab Charter on Human Rights


Leave to reply, request Admissibility of CSTs and Transfer of CDRs TC, 4; Contempt Judgment CJ, 18.

Lebanese authorities Finding of Non-Compliance TC, 32; Admissibility of CSTs and Transfer of CDRs TC, 62; Clarification of Finding of Non- Compliance TC, 5; Contempt Judgment CJ, 93, 154, 164; Invitation to Lebanese Government to Make Submissions TC, 1.

Lebanese Code of Civil Procedure

Personal Jurisdiction in Contempt Case AP, 28; Transfer of CDRs AC, 18.

Lebanese Code of Criminal Procedure

Personal Jurisdiction in Contempt Case AP, 28; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Chamseddine), 6; Testimony of Expert Witnesses TC, 28; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13; Contempt Judgment CJ, 21, 60, 67, 153.

Lebanese Constitution (1926) Admissibility of CSTs and Transfer of CDRs TC, 80; Transfer of CDRs AC, 41; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 12.

Lebanese Court of Cassation Contempt Judgment CJ, 70, 71, 138, 167.Lebanese Criminal Code Contempt Judgment CJ, 59, 67, 68.

Article 210 Personal Jurisdiction in Contempt Case AP, 57; Contempt Judgment CJ, 69, 70, 188.

Lebanese Law on Publications

Article 12 Personal Jurisdiction in Contempt Case AP, 58.Article 26 Personal Jurisdiction in Contempt Case AP, 57.

Lebanese media Witness Right to Appeal AC (Opinion od Judge Baragwanath), 10; Contempt Judgment CJ, 104, 110, 111.

Legal person Personal Jurisdiction in Contempt Case AP, 11, 12, 13, 31, 36, 41, 48, 52, 56, 57, 58, 60, 66, 67, 68, 73, 74; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Afif Chamseddine), 1, 3, 7; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 3, 4, 12, 20, 22, 23, 24; Contempt Judgment CJ, 1, 19, 20, 21, 55, 56, 67, 69, 70, 72, 177.

Legal Representative of Victims (LRV)


Legitimate aim Transfer of CDRs AC, 7, 48, 50, 51, 52; Transfer of CDRs AC (Opinion of Judge Riachy), 12, 16, 22.

Lubanga case (ICC) Admissibility of WikiLeaks Documents TC, 12, 13; Sentencing Judgment in Contempt Case CJ, 17.

504

Index

Material facts Witness Right to Appeal AC, 3; Contempt Judgment CJ, 49.Memorandum of Understanding between Lebanon and the Defence Office

Invitation to Lebanese Government to Make Submissions TC, 2.

Memorandum of Understanding between Lebanon and the Prosecutor

Transfer of CDRs AC, 27, 30.

Memorandum of Understanding between Lebanon and the UN

Admissibility of CSTs and Transfer of CDRs TC, 100, 109; Transfer of CDRs AC, 23, 27, 30, 35.

Mens rea Personal Jurisdiction in Contempt Case AP, 53, 55; Contempt Judgment CJ, 35, 38, 40, 41, 47, 48, 49, 50, 53, 54, 65, 150, 155.

Metadata Admissibility of CSTs and Transfer of CDRs TC, 85, 86, 88, 106; Transfer of CDRs AC, 3, 23, 34, 37, 38, 42, 43, 44, 45, 46, 47, 53, 54, 55, 56; Transfer of CDRs AC (Opinion of Judge Riachy), 1, 4, 19, 23, 24, 25, 26, 27, 28, Transfer of CDRs AC (Opinion of Judge Baragwanath), 1, 9, 10, 11, 23, 25.

Milošević case (ICTY) Admissibility of WikiLeaks Documents TC, 24, 32.Natural person Personal Jurisdiction in Contempt Case AP, 13, 34, 35, 36, 46, 54,

66, 68, 73; Victim Participation in Proceedings PTJ, 8, 9; Contempt Judgment CJ, 19, 21, 56, 63, 64, 65, 71, 72, 177.

Necessity, principle of Admissibility of CSTs and Transfer of CDRs TC, 107; Transfer of CDRs AC, 13, 16, 20.

Non- compliance Finding of Non-Compliance TC, 22, 24, 25, 26, 29, 30, 32, 35, 36, 38, 39, 40, 41, 43, 44, 47, 48, 51, 53, 55, 61, 67; Clarification of Finding of Non- Compliance TC, 1; Invitation to Lebanese Government to Make Submissions TC, 1, 7.

Notice Exhibit list Amendment and stay of Proceedings TC, 29, 55; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 10; Contempt Judgment CJ, 9, 145; Invitation to Lebanese Government to Make Submissions TC, 4, 6, 7.

Nullum crimen sine lege, principle of

Personal Jurisdiction in Contempt Case AP, 3, 22, 25, 51, 52, 54, 63, 74; Contempt Judgment CJ, 56, 57.

Obstruction of justice Personal Jurisdiction in Contempt Case AP, 15, 47; Request for access to Documents PTJ, 22; Contempt Judgment CJ, 59.

Opinio juris Witness Right to Appeal AC, Appendix, 47.Oral testimony, in lieu of Admissibility of CDTs and Transfer of CDRs TC, 3, 116; Summons

to Appear TC. 10, 15.Phone calls Summons to Appear TC, 2, 3, 4, 15, 28, Transfer of CDRs AC, 3,

18, 19.

505

Index

Photographs, evidence of Admission of locations related evidence TC, 18, 19, 63, 66; Witness Interview and Admission of Witness Statement TC, 1, 2, 5, 6, 7, 9, 10, 12, 14.

Practice Direction on Filing of Documents before the Special Tribunal for Lebanon

Request for access to Documents PTJ, 6; Admission of Locations Related Evidence TC, 10, 13, 16, 27, 30.

Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Special Tribunal for Lebanon

Article 6(1) Request for access to Documents PTJ, 24.Article 11 Request for access to Documents PTJ, 7.

Pre-trial brief Contempt Judgment CJ, 23, 62.Pre-trial judge, jurisdiction Victim Participation in Proceedings PTJ, 5,6.Prima facie evidence Exhibit List Amendment and Stay of Proceedings TC, 26, 28, 34, 38,

41-45; Denial of Certification to Appeal WikiLeaks Decision TC, 7; Admission of locations related evidence TC, 62.

Primary jurisdiction Request for access to Documents PTJ, 12, 14; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 14, 26, 37; Witness Right to Appeal AC, Appendix, 45, 48.

Principles of international criminal law

Testimony of Expert Witnesses TC, 16, 19; Admissibility of CSTs and Transfer of CDRs TC, 66; Contempt Judgment CJ, 21, 60.

Principle of legality Personal Jurisdiction in Contempt Case AP, 1, 22, 31, 46, 52; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Chamseddine), 5; Transfer of CDRs AC (Opinion of Judge Baragwanath), 2, 3, 11; Witness Right to Appeal AC, 15.

Principle of proportionality Admissibility of CSTs and Transfer of CDRs TC, 103, 105, 107; Transfer of CDRs AC, 50; Transfer of CDRs AC (Opinion of Judge Baragwanath), 2, 3, 11, 15, 16.

Privacy, right to (see Right to privacy)Proceedings, fairness (see Fairness of the Proceedings)

506

Index

Proceedings, integrity of Personal Jurisdiction in Contempt Case AP (Opinion of Judge Afif Chamseddine), 2; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 148; Testimony of Expert Witnesses TC, 15; Admissibility of CSTs and Transfer of CDRs TC, 61, 66, 75, 76; Admissibility of WikiLeaks Documents TC, 5, 9, 16, 18; Transfer of CDRs AC, 1, 6, 38; Transfer of CDRs AC (Opinion of Judge Riachy), 9; Transfer of CDRs AC, (Opinion of Judge Baragwanath), 6, 27; Contempt Judgment CJ, 39, 41.

Proceedings, stay of Exhibit List Amendment and Stay of Proceedings TC, 27, 48, 49, 56, 57.

Proportionality of the penalty Sentencing Judgment in Contempt Case CJ, 20.Proprio motu Personal Jurisdiction in Contempt Case AP, 14, 42, 43, 48; Personal

Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 3, 7, 8, 9; Summons to Appear TC, 5; Transfer of CDRs AC, 11; Witness Right to Appeal AC (Appendix), 46.

Prosecution, rights of Exhibit List Amendment and Stay of Proceedings TC, 47; Witness Interview and Admission of Witness Statement TC, 8.

Protective measures Victim Participation in Proceedings PTJ, 17, 18; Summons to Appear TC, 27, 28, 30, 31; Contempt Judgment CJ, 25, 28, 42, 92; Sentencing Judgment in Contempt Case CJ, 8.

Public confidence in the Tribunal

Contempt Judgment CJ, 5, 12, 37, 40, 42, 44, 46, 47, 50, 73, 93, 110, 117, 119, 120, 124, 125.

Publicity, public hearing Witness Right to Appeal AC (Opinion of Judge Baragwanath), 10.R v. Derby Magistrates’ Court Ex parte B (UK, House of Lords)


Reasonable doubt Summons to appear TC, 26; Contempt Judgment CJ, 36, 41, 45, 120, 142, 145, 152, 181, 188.

Recusal of judge (see Judge, recusal of) Reliability Admissibility of CSTs and Transfer of CDRs TC, 48, 50, 51, 54, 73,

74, 111, 112, 113; Admissibility of WikiLeaks Documents TC, 20, 21, 35-39, 42; Denial of Certification to Appeal WikiLeaks Decision TC, 8; Contempt Judgment CJ, 133, 135, 141.

Reliability, prima facie Admissibility of WikiLeaks Documents TC, 11, 42; Admission of Locations Related Evidence TC, 24, 27, 35, 51, 62, 66, 82.

Request for a finding of non-compliance

Invitation to Lebanese Government to Make Submissions TC, 6; Finding of Non- Compliance TC, 21, 23, 24, 35.

Request for access to Documents, requirements

Request for access to Documents PTJ, 19-23.

Request for access to Documents, standing

Request for access to Documents PTJ, 17, 18, 21.

507

Index

Request for assistance Finding of Non-Compliance TC, 55, 57, 59, 60, 65, 70; Clarification of Finding of Non-Compliance TC, 1, 2; Invitation to Lebanese Government to Make Submissions TC, 1-7.

Right to cross-examine witnesses

Admissibility of CSTs and Transfer of CDRs TC, 57, 119; Witness Interview and Admission of Witness statement TC, 3, 6, 7, 8, 12, 15; Summons to Appear TC. 10; Denial of Certification to Appeal WikiLeaks Decision TC, 7; Admission of Locations Related Evidence TC, 26, 27.

Right to prepare for trial Exhibit List Amendment and Stay of Proceedings TC, 47.Right to present evidence Exhibit List Amendment and Stay of Proceedings TC, 47, 54.Right to privacy Admissibility of CSTs and Transfer of CDRs TC, 63, 64, 65, 78-85,

99, 105, 108-109; Transfer of CDRs AC, 7, 8, 13, 14, 16, 20, 26, 37, 38, 40, 41, 42, 44, 47, 48, 52, 54, 55, 60; Transfer of CDRs AC (Opinion of Judge Riachy), 3, 4, 10, 12, 13, 15, 20, 21, 23, 24, 26, 28, 30; Transfer of CDRs AC (Opinion of Judge Baragwanath), 6, 20.

Right to privacy, Lebanese law

Admissibility of CSTs and Transfer of CDRs TC, 64, 88, 101.

Rule of law Witness Right to Appeal AC (Opinion of Judge Baragwanath), 11, 44.

Rules of Procedure and Evidence (S.T.L)

Witness Interview and Admission of Witness Statement TC, 1; Denial of Certification to Appeal Summons TC, 22; Summons to Appear TC, 1, 21; Witness Right to Appeal AC, 7; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13; Invitation to Lebanese Government to Make Submissions TC, 1.

Rule 2 Victim Participation in Proceedings PTJ, 7, 8, 12; Denial of Certification to Appeal Summons TC, 14.

Rule 3 Personal Jurisdiction in Contempt Case AP, 53, 61; Testimony of Expert Witnesses TC, 16, 28; Finding of Non-Compliance TC, 52; Contempt Judgment CJ, 59, 60, 67.

Rule 3 (A) Personal jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 22; Admissibility of CSTs and Transfer of CDRs TC, 82; Transfer of CDRs AC (Opinion of Judge Riachy), 8.

Rule 9 Transfer of CDRs AC, 11.

Rule 17 Admissibility of CSTs and Transfer of CDRs TC, 90, 94.Rule 20(A) Invitation to Lebanese Government to Make Submissions TC, 3.Rule 20(C) Finding of Non-Compliance TC, 33, 34, 37, 38, 52; Invitation to

Lebanese Government to Make Submissions TC, 1.Rule 58(B) Request for access to Documents PTJ, 8.

508

Rule 60 bis Personal Jurisdiction in Contempt Case AP, 1, 3, 10, 11, 12, 13, 14, 22, 34, 45, 46, 47, 48, 49, 52, 53, 54, 55, 56, 59, 72, 73, 74; Personal Jurisdiction in Contempt Case AP (Opinion of Judge Nosworthy), 1, 3, 4, 17, 18, 19, 24, 25; Witness Interview and Admission of Witness Statement TC, 6; Contempt Judgment CJ, 5, 19-21, 30, 34, 35, 37, 38, 40, 48, 49, 51, 55, 58, 59, 60, 67, 68; Sentencing Judgment in Contempt Case CJ, 13, 14.

Rule 78 Witness Right to Appeal AC, 8, 11.Rule 78 (A) Summons to Appear TC, 1, 5.Rule 78 (B) Summons to Appear TC, 5.Rule 86 Victim Participation in Proceedings PTJ, 11, 12, 15.Rule 90 Personal Jurisdiction in Contempt Case AP, 41.Rule 90 (E) Personal Jurisdiction in Contempt Case AP, 41, 43. Rule 111 Witness Interview and Admission of Witness Statement TC, 13, 15.Rule 126 Personal Jurisdiction in Contempt Case AP, 40, 41; Denial of

Certification to Appeal Summons TC. 7, 14, 15, 16, 17; Witness Right to Appeal AC, 5; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 1, 2, 13, 14, 18-20, 22, 23, 25, 31, 38.

Rule 126 (C) Personal Jurisdiction in Contempt Case AP, 42; Denial of Certification to Appeal WikiLeaks Decision TC, 1, 5, 9; Denial of Certification to Appeal Summons TC, 1, 4, 5; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 1, 14, 19-22.

Rule 126 (E) Denial of Certification to Appeal Summons TC, 14.Rule 130 (A) Testimony of Expert Witnesses TC, 34, 37.Rule 130 (B) Summons to Appear TC, 5, 20.Rule 131 (A) Summons to Appear TC, 7.Rule 133 Summons to Appear TC, 27.Rule 149 Admissibility of WikiLeaks Documents TC, 9-13; Admission of

Locations Related Evidence TC, 5, 66; Transfer of CDRs AC, 37, 59.

Rule 149 (B) Testimony of Expert Witnesses TC, 28.Rule 149 (C) Admissibility of WikiLeaks Documents TC, 9-12; Admissibility of

CSTs and Transfer of CDRs TC, 3, 11, 74, 107, 111; Summons to Appear TC, 15; Denial of Certification to Appeal Summons TC, 8, 9, 18; Admission of Locations Related Evidence TC, 66; Witness Interview and Admission of Witness statement TC, 9.

Rule 149 (D) Admissibility of CSTs and Transfer of CDRs TC, 3, 11, 67, 70, 107, 111; Admission of Locations Related Evidence TC, 66.

Rule 149 (E) Admissibility of WikiLeaks Documents TC, 9, 11, 41.Rule 150 (C) Testimony of Expert Witnesses TC, 18, 21, 34, 36.

509

Index

Rule 152 Witness Interview and Admission of Witness statement TC, 6.Rule 154 Admissibility of WikiLeaks Documents TC, 10; Summons to Appear

TC, 15,16; Denial of Certification to Appeal Summons TC, 8, 9, 18; Admission of Locations Related Evidence TC, 66, 67, 76, 80, 82.

Rule 155 Witness Interview and Admission of Witness Statement TC, 1, 6, 8, 12; Summons to Appear TC, 15, 17, 28; Denial of Certification to Appeal Summons TC, 8, 10, 18; Admission of Locations Related Evidence TC, 2, 4, 5, 7, 10, 13, 16, 19, 24, 27, 30, 33, 39, 47, 56, 58, 61, 63, 77.

Rule 155 (A) Summons to Appear TC, 15, 17.Rule 155 (B) Witness Interview and Admission of Witness Statement TC, 11.Rule 155 (C) Witness Interview and Admission of Witness Statement TC, 5, 6,

8, 12; Admission of Locations Related Evidence TC, 4, 5, 19, 22, 30, 40.

Rule 156 Summons to Appear TC, 16; Admission of Locations Related Evidence TC, 13, 24, 27, 30, 40, 51.

Rule 161 Testimony of Expert Witnesses TC, 1, 12.Rule 162 (A) Admissibility of WikiLeaks Documents TC, 5, 44.Rule 162 (B) Admissibility of CSTs and Transfer of CDRs TC, 78, 80, 81, 83.Rule 163 Summons to Appear TC, 21.Rule 164 Summons to Appear TC, 21.Rule 168 Sentencing Judgment in Contempt Case CJ, 16. Rule 171 Sentencing Judgment in Contempt Case CJ, 16.Rule 172 Sentencing Judgment in Contempt Case CJ, 14.Rule 176 Personal Jurisdiction in Contempt Case AP, 37.

Sabotage Contempt Judgment CJ, 115.Safeguarding the right of the privacy of communications transmitted by any means of communication, Law 140/99

Transfer of CDRs AC (Opinion of Judge Riachy), 17, 18.

SCSL Rules of Procedure and Evidence

Finding of Non- Compliance TC, 34.

Rule 89(C) Admissibility of WikiLeaks Documents TC, 23.Rule 92 bis (B) Admissibility of WikiLeaks Documents TC, 23.

Scope of appeal Personal Jurisdiction in Contempt Case AP, 40.Scope of decision Request for access to Documents PTJ, 9.Security Council Witness Right to Appeal AC (Opinion of Judge Baragwanath), 15,

44.

510

Index

Security Council, Document annexed to SC Resolution 1757, Article 13

Admissibility of CSTs and Transfer of CDRs TC, 93, 100.

Security Council Resolution 1595

Admissibility of CSTs and Transfer of CDRs TC, 93, 98, 100, 101; Transfer of CDRs AC, 23, 24, 27, 28, 30, 34, 49; Transfer of CDRs AC (Opinion of Judge Riachy), 6,15.

Security Council Resolution 1757

Admissibility of CSTs and Transfer of CDRs TC, 95, 101; Transfer of CDRs AC, 23, 24, 27, 29, 30, 49; Transfer of CDRs AC (Opinion of Judge Riachy), 15; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13, 32.

Special Court for Sierra Leone

Finding of Non- Compliance TC, 34; Summons to Appear TC, 26; Witness Right to Appeal AC, appendix, 44.

Rule 89(C) Admissibility of WikiLeaks Documents TC, 23. Rule 92 bis (B) Admissibility of WikiLeaks Documents TC, 23.

Special Syrian Judicial Commission

Exhibit List Amendment and Stay of Proceedings TC, 25, 44.

Spirit of the STL Statute Personal Jurisdiction in Contempt Case AP, 35; Testimony of Expert Witnesses TC, 16; Contempt Judgment CJ, 19-21.

Standard of (appellate) review

Personal Jurisdiction in Contempt Case AP, 38; Transfer of CDRs AC, 21.

Standing before the Tribunal Request for access to Documents PTJ, 5-8, 17-23.State practice Transfer of CDRs AC, 39; Contempt Judgment CJ, 63.Statute (STL) Transfer of CDRs AC, 23, 27, 29, 31, 33, 51; Transfer of CDRs

AC (Opinion of Judge Riachy), 5-8, 15; Transfer on CDRs AC (Opinion of Judge Baragwanath) 11; Witness Right to Appeal AC, 7; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13, 16, 18, 25, 26, 32, 38; Contempt Judgment CJ, 19, 20, 21, 33, 55, 59, 60, 67, 68.

Article 1 Request for access to Documents PRJ, 12.Article 2 Personal Jurisdiction in Contempt Case AP, 57; Request for access

to Documents PRJ, 12.Article 8 Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13,

32.Article 11 Transfer of CDRs AC, 33.Article 16 Testimony of Expert Witnesses TC, 18; Personal Jurisdiction in

Contempt Case AP, 70.Article 18 (2) Admissibility of CSTs and Transfer of CDRs TC, 98.Article 19 Request for access to Documents PTJ, 16; Denial of Certification

to Appeal Summons TC. 9, 18; Transfer of CDRs AC (Opinion of Judge Riachy), 6.

Article 21 (1) Testimony of Expert Witnesses TC, 27.

511

Index

Article 24 (2) Sentencing Judgment in Contempt Case CJ, 14.Article 26 Personal Jurisdiction in Contempt Case AP, 37.Article 28 Witness Right to Appeal AC (Opinion of Judge Baragwanath), 13,

16, 18, 25.Article 28 (2) Personal Jurisdiction in Contempt Case AP, 28, Transfer of CDRs

AC (Opinion of Judge Riachy), 7, 15.Stay of proceedings, request Exhibit Lis Amendment and Stay of Proceedings TC, 27-30, 56, 57.Stay of proceedings, Trial Chamber power to

Exhibit List Amendment and Stay of Proceedings TC, 48.

Structured query language (SQL)


Subscriber notes Exhibit List Amendment and Stay of Proceedings TC, 16, 41.Summons to appear Summons to Appear TC. 1, 5, 8, 13, 29, 30; Denial of Certification to

Appeal Summons TC, 1, 2; Contempt Judgment CJ, 16.Summons, effect Summons to Appear TC, 6, 11, 19, 29, 30; Denial of Certification to

Appeal Summons TC, 24.Summons, illegal Summons to Appear TC, 10, 13.Summons, necessity Summons to Appear TC, 5, 29, 30.Taylor case (SCSL) Admissibility of WikiLeaks Documents TC, 23, 29, 33.Telephone and Telex, Decree Law 127/59

Transfer of CDRs AC (Opinion of Judge Riachy), 17, 19, 20.

Television (episodes broadcast, broadcast company…)

Contempt Judgment CJ, 1, 3, 146, 179.

Testimony, by video-conference

Summons to Appear TC, 5.

Testimony, of expert Testimony of Expert Witnesses TC, 1, 2, 7, 9, 12, 14, 16, 18, 20, 26, 30, 32, 36.

Testimony, oral Summons to Appear TC, 10, 15.Testimony, written Admission of Locations Related Evidence TC, 5, 62.Time, extension of Denial of Certification to Appeal Summons TC, 3.Time limit Transfer of CDRs AC, 11, 12.Time period, relevant Denial of Certification to Appeal Summons TC, 11.Tribunal’s ability Contempt Judgment CJ, 5, 12, 37, 40, 44, 46, 50, 73, 110, 117, 119,

120, 124; Sentencing Judgment in Contempt Case CJ, 18.Ultra vires Witness Right to Appeal AC (Opinion of Judge Baragwanath), 18.United Nations Charter Admissibility of CSTs and Transfer of CDRs TC, 101.United Nations Human Rights Committee


512

Index

United Nations Human Rights Council


United Nations International Independent Investigation Commission (UNIIIC)

Exhibit List Amendment and Stay of Proceedings TC, 25; Admissibility of CSTs and Transfer of CDRs TC, 10, 76, 91-93, 98, 99; Denial of Certification to Appeal Summons TC, 9, 18; Transfer of CDRs AC, 1, 2, 4, 7, 13, 14, 15, 23, 25, 26, 27, 28, 30, 31, 32, 34, 35, 36, 37, 38, 40, 42, 47, 49, 51, 56, 58; Transfer of CDRs AC (Opinion of Judge Riachy), 1, 3, 4, 13, 15, 16, 28, 29; Transfer of CDRs AC (Opinion of Judge Baragwanath), 2, 6, 7, 23.

Universal Declaration of Human Rights (UDHR)

Admissibility of CSTs and Transfer of CDRs TC, 79; Transfer of CDRs AC, 41; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 12.

Art.15(1) Finding of Non-Compliance TC, 2, 6, 65.Victim, definition Victim Participation in Proceedings PTJ, 8, 9.Victim, degree of proximity Victim Participation in Proceedings PTJ, 10.Victims, grouping of Victim Participation in Proceedings PTJ, 15, 16.Victims participating in the proceedings (VPPs), confidentiality

Victim Participation in Proceedings PTJ, 4.

Victims participating in the proceedings (VPPs), status

Victim Participation in Proceedings PTJ, 5-10, 13.

Victims and Witnesses Unit (“VWU”)

Victim Participation in Proceedings PTJ, 18.

Vienna Convention on the Law of Treaties (1969)

Transfer of CDRs AC (Opinion of Judge Riachy), 8.

War correspondent Summons to Appear TC, 21, 23, 24; Witness Right to Appeal AC, 2; Witness Right to Appeal AC (Opinion of Judge Baragwanath), 1, 3, 8, 11, 25, 35.

Witness, confidential (see Confidential witness) Witness, expert (see Expert witness)Witness, interference with Contempt Judgment CJ, 44.Witness, list Contempt Judgment CJ, 119.Witness, protection Contempt Judgment CJ, 74; Summons to Appear TC, 12, 19.Witness statements, admission into evidence

Admissibility of CSTs and Transfer of CDRs TC, 116; Witness Interview and Admission of Witness Statement TC, 3, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16, 17; Summons to Appear TC, 10; Admission of Locations Related Evidence TC, 2, 5, 6, 7, 10, 20, 34, 35, 36, 41, 43, 47, 48, 50, 51, 54, 55, 63, 65, 84.

513

Index

Witness statements, redaction of

Witness Interview and Admission of Witness Statement TC, 5, 13, 14, 17.

Witness testimony Admission of Locations Related Evidence TC, 18, 47, 53, 59, 62; Contempt Judgment CJ, 25.

Witness testimony, permission

Summons to Appear TC, 5.

Witness testimony related to location

Exhibit List Amendment and Stay of Proceedings TC, 20, 42; Admission of locations related evidence TC, 78, 80.

Witness, war correspondent Summons to Appear TC, 22-26; Denial of Certification to Appeal Summons TC, 11, 20.

ISBN 978-94-90651-17-6Special Tribunal for Lebanonwww.stl-tsl.org

Major rulings issued by the Special Tribunal for Lebanon in 20151 In the Case against Akhbar Beirut S.A.L.,

Ibrahim Mohamed Ali Al Amin, Appeals Panel, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings (with Opinions of Judge Chamseddine and Judge Nosworthy), STL-14-06/PT/AP/AR126.1, 23 January 2015

2 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Simultaneous or Concurrent Testimony of Expert Witnesses, STL-11-01/T/TC, 17 February 2015

3 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Updated Request for a Finding of Non-Compliance, STL-11-01//T/TC, 27 March 2015

4 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Prosecution Motion to Amend its Exhibit List and Oneissi Defence Request to Stay the Proceedings, STL-11-01/T/TC, 13 April 2015

5 Pre-Trial Judge, Decision on Request from Counsel for Mr El Hajj Received on 23 October 2014, STL-El Hajj/PTJ, 30 April 2015

6 The Prosecutor v. Ayyash et al., Pre-Trial Judge, Seventh Decision on Victims’ Participation in the Proceedings, STL-11-01/T/PTJ, 5 May 2015

7 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Five Prosecution Motions on Call Sequence Tables and Eight Witness Statements and on the Legality of the Transfer of Call Data Records to UNIIIC and STL’s Prosecution, STL-11-01/T/TC, 6 May 2015

8 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on the Admissibility of Documents Published on the WikiLeaks Website, STL-11-01/T/TC, 21 May 2015

9 The Prosecutor v. Ayyash et al., Trial Chamber, Order Clarifying Decision on Updated Request for a Finding of Non-Compliance of 27 March 2015, STL-11-01/T/TC, 22 May 2015

10 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Oneissi Defence Request to Interview and Prosecution Motion to Admit the Statement of Witness PRH662, STL-11-01/T/TC, 19 June 2015

11 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Prosecution Application for a Summons to Appear for Witness 012 and Order Issuing a Summons for a Witness, STL-11-01/T/TC, 1 July 2015

12 The Prosecutor v. Ayyash et al., Trial Chamber, Decision Denying Certification to Appeal the ‘Decision on Admissibility of Documents Published on the WikiLeaks Website’, STL-11-01/T/TC, 3 July 2015

13 The Prosecutor v. Ayyash et al., Trial Chamber, Decision on ‘Prosecution Motion for the Admission of Locations Related Evidence’, STL-11-01/T/TC, 9 July 2015

14 The Prosecutor v. Ayyash et al., Trial Chamber, Decision Denying Certification to Appeal the Trial Chamber’s Decision on Issuing a Summons to Witness 012, STL-11-01/T/TC, 10 July 2015

15 The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Appeal by Counsel for Mr Oneissi Against the Trial Chamber’s Decision on the Legality of the Transfer of Call Data Records (with Opinions of Judge Riachy and Judge Baragwanath), STL-11-01/T/AC/AR126.9, 28 July 2015

16 The Prosecutor v. Ayyash et al., Appeals Chamber, Reasons for Decision on Applications Filled by Counsel for Witness PRH012 and Order on Confidentiality (with Opinion of Judge Baragwanath), STL-11-01/T/AC, 28 July 2015

17 In the Case against Al Jadeed [CO.] S.A.L./New T.V. S.A.L. (N.T.V.), Karma Mohamed Tahsin Al Khayat, Contempt Judge, Public Redacted Version of Judgment, STL-14-05/T/CJ, 18 September 2015

18 In the Case against Karma Mohamed Tahsin Al Khayat, Contempt Judge, Reasons for Sentencing Judgment, STL-14-05/S/CJ, 6 October 2015

19 The Prosecutor v. Ayyash et al., Trial Chamber, Invitation to the Government of the Lebanese Republic to Make Submissions in Relation to the Sabra Defence Request for a Finding of Non-Compliance, STL-11-01/T/TC, 17 November 2015