Respond Brief To Amicus Appeal Brief en Web 04

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BEFORE THE APPEALS PANEL

SPECIAL TRIBUNAL FOR LEBANON
Case No:
STL-14-05/A/AP
Before:
Judge Ivana Hrdlickova, Presiding

Judge Janet Nosworthy
Judge Walid Akoum
Registrar:
Mr. Daryl Mundis
Date:
5 December 2015
Filing Parties:
The Defence for AI Jadeed S.A.L.

The Defence for Karma Mohamed Tahsin al Khayat
Officiallanguage:
English
Classification:
Public
IN THE CASE AGAINST
AL JADEED [CO.] S.A.L. I NEWT. V. S.A.L. (N. T.V.)

KARMA MOHAMED TAHSIN AL KHAYAT
PUBLIC REDACTED VERSION OF "RESPONDENT'S BRIEF TO

'PROSECUTION'S APPEAL BRIEF"', DATED 9 NOVEMBER 2015
Amicus Curiae Prosecutor:

Mr. Kenneth Scott
Counsel for AI Jadeed S.A.L. & Karma Mohamed

Tahsin al Khayat:
Mr. Karim A.A. Khan QC
Mr. Rodney Dixon QC
Dato' Shyamala Alagendra
Ms. Maya Habli
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I.
1.
INTRODCUTION
The defence for Al-Jadeed S.A.L. and Ms. Karma Mohamed Tahsin Al Khayat
("Defence") file this Respondent's Brief to the Amicus Prosecutor's ("Amicus" or
"Prosecution") appeal brief ("Brief') 1 against the Contempt Judge's ("Judge")
Judgment of 18 September 2015 ("Judgment") 2 acquitting Al-Jadeed S.A.L. ("AlJadeed") of both counts under the Amended Order in Lieu of an Indictment
("Amended Order in Lieu") 3 and acquitting Ms. Khayat of Count 1 under the
Amended Order in Lieu. 4
2.
The Amicus has submitted an excessive number of grounds of appeal against the
acquittals, none of which constitute valid grounds, let alone require any intervention
by the Appeals Panel. The 22 grounds are nothing more than a lengthy and repetitive
attempt by the Prosecution to re-argue the case it failed to prove at trial, when it had
every opportunity to do so. The Amicus has treated this appeal as though it was a trial
de-novo, seeking to re-litigate and resurrect its defeated case. The Amicus' Brief in
effect lists all of its disagreements with the Judge's findings, and reads more like a
closing brief for trial than a proper appellate brief. The Amicus has not identified any
discemable errors that could rightly be the subject of an appeal, and certainly has not
shown that the Appeals Panel should take the exceptional step of interfering in any
way with the acquittals that were handed down on the basis that the Prosecution had
not at trial proved its case beyond reasonable doubt. Only in the rarest circumstances
may an acquittal be disturbed, and the Amicus falls very far short of requiring any
action by the Appeals Panel. There is plainly no basis to reverse the acquittals and it
would be an injustice for the acquittals to be overturned, particularly given that the
Amicus was manifestly unable to prove its case at trial.
3.
The Judgment is very clear, rigorous, and well-reasoned, and in full accordance with
the applicable jurisprudence. The Amicus' long list of alleged 'errors' highlight no
1 STL, in the Case Against Al Jadeed [Co.] S.A.L. I New T.V. S.A.L. (N. T.V.) and Karma Mohamed Tahsin
AI Khayat ("AI-Jadeed"), STL-14-05/A/AP, F0005, 20 October 2015.
2 AI-Jadeed, STL-14-05/T/CJ, F0176.
3 AI-Jadeed, STL-14-05/PT/CJ, F0068, 17 October 2014.
4 Ms. Khayat was convicted of Count 2 under the Amended Order in Lieu. The defence for Ms. Khayat has
submitted an appeal against this sole conviction (in the Case Against Karma Mohamed Tahsin AI Khayat,
STL-14-05/A/AP, Kanna Khayat's Appellant's Brief, F0013, 5 November 2015).
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more than its disapproval of the Judge's findings and the ultimate acquittals. The
Amicus Prosecutor naturally sought convictions, but at trial dismally failed to prove
his case and should not be permitted now to use the appeal process to air its
misgivings. As set out below, appellate proceedings are narrowly restricted to
addressing discemable errors that invalidate a decision and I or occasion a
miscarriage justice, which must be clearly established by the prosecution. In
particular for alleged errors of fact, the Prosecution has the very highest of thresholds
to meet-to establish that the Appeals Panel should go beyond the margin of
deference to be accorded the trial judge and that the finding amounts to one which no
reasonable person could have reached, taking into account that two judges can come
to different reasonable conclusions. In respect of acquittals, as is the case here, the
Prosecution must show given the burden that rests on it at trial to prove its case, that
the alleged errors result in "all reasonable doubt of the accused's guilt [ ... ] be[ing]
eliminated". 5 At no stage in the Brief does the Amicus address these requirements, let
alone show that all reasonable doubt is somehow eliminated because of any
particular, discemable errors.
4.
The Defence accordingly submit that the appeal against the acquittals should be
rejected in its entirety.
II. APPLICABLE LAW

5.
It is most important to emphasise that an appeal against a final judgment "is not a
trial de novo and is not an opportunity for a party to remedy any 'failures or
oversights' made during the pre-trial and trial phases". 6 Rule 17 6( a) of the Rules of
Procedure and Evidence ("Rules") accordingly provides that a party may only lodge
an appeal on grounds of an error of law invalidating the decision and/or an error of
fact occasioning a miscarriage of justice.
ICTY, Strugar, IT -0 1-42-A, Judgement, 17 July 2008 ("Strugar"), para. 14 (citations omitted).
ICTR, Nahimana et al., ICTR-99-52-A, Decision on Appellant Hassan Ngeze's Motions for Approval of
Further Investigations on Specific Information Relating to the Additional Evidence of Potential Witnesses,
20 June 2006, para. 4 (citations omitted); see also ICTY, Haraqija eta!., IT-04-84-R77.4-A, Judgement, 23
July 2009, para. 16.
5
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6.
With respect to an error of law, the moving party "must identify the alleged error,
present arguments in support of its claim and explain how the error invalidates the
decision". 7 Further, "[a]n allegation of an error of law which has no chance of
changing the outcome of a decision may be rejected on that ground". 8
7.
For an alleged error of fact the standard of appellate review
IS
one of
unreasonableness of the trial judge's finding. 9 Where the prosecutor claims an error
of fact occasioning a miscarriage of justice, 10 in light of the prosecutor's burden of
proof at trial, the prosecutor must demonstrate that "when account is taken of the
errors of fact committed by the Trial Chamber, all reasonable doubt of the accused's
guilt has been eliminated". 11
8.
The appellate chamber, in determining whether the trial judge's finding was
reasonable, "will not lightly disturb findings of fact by" 12 the trial judge and
must give a margin of deference to a finding offact reached by a Trial Chamber. It is

only where the evidence relied on by the Trial Chamber could not reasonablv have been
accepted by any reasonable person that the Appeals Chamber can substitute its own
finding for that of the Trial Chamber. It is important to note that two judges, both acting
reasonably, can come to different conclusions on the basis of the same evidence. 13
9.
The standard of review for errors of fact applies equally to findings of the trial judge
based on direct or circumstantial evidence. 14
10. Finally, pursuant to Article 5(2) of the Practice Direction on Procedure for the Filing
of Written Submissions in Appeal Proceedings, "if an Appellant relies on a particular
ground to reverse an acquittal, the Respondent may support the acquittal on
additional grounds".
7
See, e.g., ICTY, Stakic, IT-97-24-A, Judgement, 22 March 2006, para. 8.
X Ibid.
See, e.g., ICTY, Tadic, IT-94-1-A, Judgement, 15 July 1999 ("Tadic"), para. 64; ICTY, KvoCka et al., IT98-30/1-A, Judgment, 28 February 2005, para. 18.
10 The ICTY Appeals Chamber has defined a miscarriage of justice as a "grossly unfair outcome in judicial
proceedings" (ICTY, Furundzija, IT -95-17-1/A, Judgement, 21 July 2000 ("Furundzija"), para. 37 (citing to
Black's Law Dictionary (7th ed., 1999))).
11 Strugar, para. 14 (citations omitted) (emphasis added).
12 !d. at para. 13.
13 Tadic, para. 64. See also Furundzija, para. 37 (citing with approval to Tadic).
14 Strugar, para. 13.
9
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III. SUBMISSIONS ON AMICUS GROUNDS OF APPEAL
1. Amicus Grounds of Appeal1, 2 and 3: Actus reus for Count 1
Brief, Ground 1: "The Judge erred in law by requiring proof of an 'objective

likelihood' ('concrete danger') that public confidence in the Tribunal was undermined
(e.g., paras.40, 44-46, 120-27)."
11. This main ground of appeal is demonstrably lacking in any merit and should be
rejected. 15 The Prosecution obviously has to prove that there is a likelihood that
public confidence was undermined. This is the very charge that the Amicus itself
chose to rely on. Just because the Amicus has failed to do so at trial, does not provide
it with a fresh opportunity on appeal to argue its case again as though it were a retrial. The Amicus had every opportunity at trial to present all the evidence it wished
to in order to prove the elements of the charge it elected to bring.
12. The Judge clearly did not err in law by requiring the Prosecution to prove beyond
reasonable doubt that the conduct charged under Count 1 "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". 16 The
Prosecution has shown no discernable error at all-it is simply re-arguing its case on
appeal.
13. It is completely irrelevant that the Judge noted that the case is an "unconventional"
one 17 , as highlighted by the Amicus. 18 There is nothing of any substance in the
Amicus' exaggerated claim that the Judge "departed from and acted contrary to
established international jurisprudence, and in doing so, largely rewrote the
international law of contempt". 19 In fact, quite the opposite is the case-the Judge
merely followed on a narrow basis the existing jurisprudence.
Brief, paras. 25-33.

Judgment, para. 120 (emphasis added).
17 Judgment, para. 1.
IX Brief, para. 27.
19 Brief, para. 26.
15
16
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14. The Judge dismissed both Defence submissions20 and the Amicus' arguments on the
basis of the established international jurisprudence and identified the law applicable
to the conduct set out under Count 1 in accordance with this case law:
Like intimidation of or interference with a witness or potential witness, where

'likelihood' is the applicable standard, 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 potential harm from such conduct is
sufficiently serious that just creating a concrete danger may justifY a criminal
sanction. 21
On the other hand, unlike violating a court order-the very act of which amounts to an
interference with the administration ofjustice-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 ofjustice. 22
[. . .}
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 o[a small number o[people). Under
the required objective test, likelihood can only be proved through ascertainable (acts.
Whether or not the Accused's conduct in [act caused harm can be relevant to, but is not
dispositive of. the existence or degree of objective likelihood at the relevant time. 23
Judgment, paras. 40-42

Judgment, para. 44 (emphasis added) (citing to ICTY, Haraqija et al., IT-04-84-R77.4, Judgement on
Allegations of Contempt, 17 December 2008, paras. 18-19 ("Haraqija"); ICTY, Margetic, IT-95-14-R77.6,
Judgement On Allegations Of Contempt, 7 February 2007 ("Margetic"), para. 64).
22 Judgment, para. 45 (emphasis added) (citing to ICTY, Hartmann, IT-02-54-R77.5-A, Judgement, 19 July
2011 ("Hartmann"), para. 107).
23 Judgment, para. 46 (emphasis added) (citing in comparison United Kingdom, House of Lords, Attorney
General v. Guardian Newspapers Ltd. (No. 2) ("A.G. v. Guardian Newspapers"), [1988] UKHL 6 (13
October 1988, para. 29). The House of Lords held that that in order to successfully obtain an injunction with
respect to the disclosure of confidential government information, it was necessary to show that the disclosure
was likely to damage or had actually damaged the public interest.
20
21
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15. The Judge's reasonmg cannot be faulted in any way.
The Judge: (i) thoroughly
reviewed and took into account the relevant contempt jurisprudence of the ad hoc
tribunals; (ii) clearly determined that the conduct covered by Count 1 was akin to the
crime of witness interference where likelihood/concrete danger is the applicable test
rather than the per se interference approach for breach of an order; (iii) thus correctly
noted that the nature of, circumstances surrounding and context within which the
conduct occurred were central to the evaluation of the actus reus; and (iv)
accordingly held that in light of the particular crime preferred and squarely relied on
by the Amicui 4-dissemination of purported confidential information related to
witnesses or potential witnesses and undermining (not simply having an impact on)
the confidence of the "public in general" 25 in the Tribunal's ability to protect such
information-the Amicus must demonstrate on an objective basis that the gravity of
the conduct was sufficient for the Judge to find beyond reasonable doubt that the
conduct, within the context it took place, presented the real risk of the harm alleged.
16. The Judge's statement of the applicable law, and its actual application in the case,
contrary to the Amicus' unsupported claim, "did not require an actual effect" or
"something substantially different and more" 26 than the accepted 'real risk' or
'likelihood' standard as adopted in other contempt cases before international criminal
tribunals. Indeed, the Judge rightly did not circumscribe the type of evidence the
Amicus must lead to establish beyond reasonable doubt the necessary "ascertainable
facts" regarding the gravity of the alleged conduct, apart from noting that such facts,
in view of the crime charged (disclosing purported confidential information and
undermining confidence in the public in general), could not be proved solely "on the
basis of the personal feelings of a small number of people". 27 In line with this
finding, the Judge further clarified, correctly, that while the occurrence of actual
harm "can be relevant to, [][it] is not dispositive of, the existence or degree of
objective likelihood [of undermining the confidence of the public in general] at the
relevant time". 28
Al-Jadeed, STL-14-05/1/CJ, Decision in Proceedings for Contempt with Orders in Lieu of an Indictment,
F0001, 31 January 2014, paras. 32-33.
26 Brief, para. 28.
27 Judgment, para. 46 (emphasis added).
2 x Judgment, para. 46 (emphasis added).
24
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17. In this ground of appeal the Amicus has merely sought to resurrect his rejected29
'common sense in lieu of evidence' 30 argument, and re-argues on appeal for a 'per se
violation standard' for Count 1 which discounts the actual circumstances of and
context within which the alleged contemptuous conduct occurred. 31 The Amicus
asserts that the relevant jurisprudence with respect to actus reus 32 "did not require
either an actual effect or some greater certainty of likelihood of harm than the
creation of a 'risk' in its common (and common sense) meaning". 33 This amounts to
nothing more than a restatement of the same argument made at trial-it does not
show that the Judge committed any error. This ground (and all the others that suffer
from the same fatal defect) should be rejected.
18. As contended at trial, the Amicus argues again in the same way on appeal that the
theoretical possibility of the type of conduct in question resulting in the harm alleged
is sufficient to prove actual criminal liability beyond reasonable doubt. 34 In order to
find jurisprudential support for its 'common sense in lieu of evidence' theory the
Amicus turns to the Margetic case (as it did at trial) and suggests that the "court did
not require proof of an 'objecttive [sic] likelihood' by 'ascertainable facts"' with
respect to the actus reus of the crime of otherwise interfering with a witness. There is
nothing new in this argument to that advanced at trial.
19. In any event, the Margetic court applied exactly the same test articulated by the
Judge. It held that the Prosecution must prove proof beyond reasonable doubt the
objective likelihood of witness interference in the particular circumstances of the case
and identified the following ascertainable facts:
Judgment, para. 45.

Al-Jadeed, STL-14-05/T/C, Corrected Version of"Amicus Final Trial Brief' dated 8 June 2015, F0164,
10 June 2015 ("Amicus Trial Brief'), paras. 34-35.
31 See supra submissions at paras. 14-15.
32 Note that ICTY jurisprudence discussing "real risk" and "public confidence" generally do so not as a
considered matter of the actus reus of the crime, but rather in the context of sentencing. See MarijaCic et al.,
IT-95-14-R77.2, Judgement, 10 March 2006 ("MarijaCic"), para. 50; Jovic, IT-95-14 & IT-95-14/2-R77,
Judgement, 30 August 2006 ("Jovic"), para. 26; Haxhiu, IT -04-84-R77.5, Judgement on Allegations of
Contempt, 24 July 2008, para. 34; Hartmann, para. 80. While Hartmann also addresses "real risk" in the
merits section, it does so in the context of press freedom, not in relation to the actus reus of the crime.
33 Brief, para. 29 (emphasis added).
34 See Amicus Trial Brief, para. 34.
29
30
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a. the protective measures in question were ''put in place by the [} Trial Chamber
pursuant to Rule 75 o(the [JCTYl Rules [Measures for the Protection of Victims
and Witnesses} in order to ensure the security of these witnesses and to prevent the
disclosure of their identities"; 35
b. the accused's actions in publishing the full witness list in the case "reverse[dl the
effect of such protective measures"; 36
c. as a result, and given that these protected witnesses were obviously aware and
testified (or agreed to provide testimony) on the basis of the granted protective
measures, such 'reversal' "undermin[edl the confidence of the witnesses [covered
by these protective measures-not all the witnesses on the list} in the Tribunal's
ability to protect them" 37 from the "objectively grounded risk to the security or
welfare of the witness or the witness's family should it become publicly known
that the witness testified before the Tribunal", 38 which is the required legal basis
for the Trial Chamber granting the aforementioned Rule 7 5 measures;
d. accordingly, on the basis of these ascertainable facts, the Margetic court found
that the "Accused's conduct is likely to dissuade these protected witnesses from
testifying in the future before the Tribunal, and that if they do, their evidence may
be affected and given in fear"; 39 AND
e. lastly, "[w} hile proof is not required that such effects actually occurred, the Trial
Chamber notes [. ..} [the prosecution investigator's} testimony that two of the
[protected disclosed} witnesses [. ..} told him that they are only willing to provide
evidence to the Tribunal in the future under very strict protective measures
because of fears for their safety", which hearsay testimony "the Defence did not
challenge", and a third protected witness who did testify "expressed his reluctance
Margetic, para. 69 (emphasis added).

ibid (emphasis added).
37 ibid (emphasis added). Note that the Brief (at para. 29) appears to incorrectly quote this paragraph as "thus
undermining the public confidence of the witnesses". The word "public" does not appear in the version of
the judgment available at:
.
38 ICTY, Karadiic, IT-95-5118-T, Decision on Accused's Motion for Protective Measures for Witness
KW194, 12 November 2012, para. 5 (emphasis added) (citations omitted).
39 Margetic, para. 69 (emphasis added).
35
36
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to testify before national courts or before the Tribunal in the future for fear that his
security would be endangered". 40
20. The Judge did not therefore depart from the test in Margetic which determined
beyond reasonable doubt, on the basis of the above ascertainable facts, that the
accused's conduct was of sufficient gravity to create, objectively, the likelihood of
the specific witnesses covered by the protective measures being dissuaded from
testifying in the future before the ICTY. As set out below, the Prosecution has
completely misapplied this decision, as it sought to do at trial.
21. The Amicus, despite quoting from the very same section of the Margetic judgment, 41
overlooks the specific category of conduct the court determined falls under the
definition of "otherwise interfering with a witness"-namely, "any conduct that is
likely to dissuade a witness or potential witness from giving evidence, or to influence
the nature of the witness' or potential witness' evidence". 42 Instead, the Amicus
focuses only on the second category of conduct identified by the court for this
crime-namely, "any conduct which is likely to expose witnesses to threats,
intimidation or injury by a third party". 43 The Amicus wrongly claims that the court's
use of the phrase 'likely to expose' to, as opposed to 'likely to result in' threats,
intimidation, or injury, is evidence that the Margetic court did not require proof of an
objective likelihood by ascertainable facts. 44 The application of the law by the Judges
in Margetic with respect to the first category of conduct constituting "otherwise
interfering with a witness" (likely to dissuade or influence), makes clear that the
objective likelihood by ascertainable facts standard equally applies to the second
category of conduct under this criminal offence.
22. After the court's detailed analysis for the first category of conduct constituting
"otherwise interfering with a witness", it did not need to repeat its analysis when also
finding the accused criminally liable under the second category. 45 Indeed, the
Margetic court's factual findings for the first category of conduct equally support the
Margetic, para.
Brief, para. 29.
42 Margetic, para.
43 Margetic, para.
44 Brief, para. 30.
45 Margetic, para.
40
70.
41
64 (emphasis added).
64 (emphasis added).
71.
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reasonableness of its ultimate finding with respect to the second category conduct.
These findings are that ICTY Rule 75 protective measures are based on 'objectively
grounded risk to the security or welfare of the witness or the witness's family', and
accordingly revealing the identities of these individuals presented the objective
likelihood, at the time the disclosure took place, of exposing these protected
individuals to these objectively grounded threats.
23. The Amicus also erroneously relies on the use of the word "may" 46 in the last
sentence ofthe Margetic court's findings regarding the accused's criminal culpability
under the first type of 'otherwise interfering' conduct (see paragraph 19.d above).
The Prosecution wrongly claims it shows that the mere possibility of the alleged
harm occurring in the abstract ("the creation of existence of a risk") 47 is sufficient.
The Amicus completely ignores the Margetic court's finding of law at paragraph 64
of the judgment48 and its ultimate factual findings as to the actus reus of the crime,
both of which make perfectly clear that the term 'likely' is applicable to all types of
conduct under the crime of 'otherwise interfering' .49
24. The Amicus tries to stretch its unfounded argument even further by claiming that
Margetic's purported 'may occur' standard is equivalent to the 'language used' in
Worm v. Austria 50 before the European Court of Human Rights 51 that "a disclosure be
'objectively capable' of influencing the outcome of judicial proceedings". 5 2 In Worm
the ECtHr did not endorse the 'objectively capable' standard as the standard to be
applied across the member states of the European Convention on Human Rights
("ECHR") when considering issues of media freedom and the functioning of the
judicial process. Rather, "in exercising its supervisory function" 53 it held that the
Austrian Court of Appeal's application of this domestic standard in the particular
Brief, para. 30, final two sentences.

Brief, para. 33.
4 x See supra para. 21.
49 Margetic, para. 72 ("The Trial Chamber finds that the conduct of the Accused is likely to dissuade the
protected witnesses on the Witness List from giving evidence, to influence the nature of their evidence
should they testify in the future, or to expose them to threats, intimidation or injury by a third party.")
(emphasis added).
50 ECtHr, Application 22714/93, Judgment, 29 August 1997 ("Worm").
51 Brief, para. 31.
52 Brief, para. 31.
53 Worm, para. 47.
46
47
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circumstances of the case were supported by "relevant and sufficient" reasons 54 and
accordingly, in the Majority's view, no violation of Article 10 of the ECHR
transpired. In fact, the findings of Judge Casadevall in his Partly Dissenting Opinion
in Worm, joined by Judge Jungwiert, are directly relevant (although not mentioned by
the Amicus):
The freedom of expression enshrined in Article I 0, one of the fundamental pillars of a

democratic society, justifies circumscribing the States' margin of appreciation more
narrowly. It follows that the exceptions laid down in Article I 0, such as [. ..}
"maintaining the authority and impartiality of the judiciary", are justified [. .. 1 onlv in
particularly serious situations. [. ..} While it is possible to understand that in some fields
(public health, traffic) public-order requirements dictate that penalties may be imposed
without it being necessary to prove that there is a real risk of any kind, this should not
be so where the penalty entails restriction o(!. .. l the right to freedom of expression. For
such restrictions to be justified for the purposes of the Convention, it [. ..} [isJ essential
that it should be shown that the information and ideas in issue might pose a real.
substantial risk- not merely a hypothetical one - to [. ..} "the disclosure of information
received in confidence" or "the authority and impartiality of the judiciary". 55
25. The position of Judges Casdevall and Jungwiert that a 'real', not 'merely
hypothetical' risk must be established, accords with the finding of the United
Kingdom House of Lords in A.G. v. Guardian Newspapers (involving intelligence
secrets), that was rightly cited with approval by the Judge. It held that, at a minimum,
a showing that the particular disclosed information was 'likely' to damage the public
interest was required to justify an injunction against such disclosure. 56
26. The Defence submits that the Judge unquestionably committed no error of law as
claimed by the Amicus under Ground 1. This ground of appeal should be dismissed.
54
Ibid.
Worm, Partly Dissenting Opinion of Judge Casadevall, paras. 2-6.
56 See supra fn. 23.
55
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Brief, Ground 2: "The Judge erred in law by requiring proof that the publications
caused actual harm or effects (e.g., paras.40, 44-46, 120-27)."
27. Ground 2 is similarly without any merit and should be dismissed. The Amicus'
assertion that the Judge's test requires proof of "actual harm or effects" 57 is wholly
incorrect. It is a fruitless claim which is absolutely unsupported by the Judge's
reasoning. The Judge in fact held the direct opposite in finding that the burden rests
on the prosecution to prove beyond reasonable doubt through 'ascertainable facts'
that the conduct in question was of sufficient gravity to create the objective
likelihood of the confidence of the public in general being undermined in the
Tribunal's ability to protect the confidentiality of information related to witnesses or
potential witnesses.
28. The Defence incorporates its submissions in response to Ground 1 which show that
Ground 2 is equally unfounded. As submitted above at paragraph 16, the Judge did
not circumscribe the type of evidence the Amicus must lead to establish the necessary
ascertainable facts, apart from noting that such facts, in view of the crime charged, 58
could not be proved solely "on the basis of the personal feelings of a small number of
people". 59 The Judge's evaluation of the relevant evidence and information on the
record demonstrates that the Judge did not at all require proof of actual effects or
harm. The Amicus has simply failed to discharge its burden to adduce relevant,
reliable, credible and probative evidence to prove the charges.
29. For example, with respect to the expert evidence of de Brouwer, the Judge did not
dismiss the relevance, reliability and probative value of her evidence on basis that it
did not address the actual effects and/or harm of the broadcast Episodes. Rather, the
Judge correctly determined her "generic expert testimony" 60 regarding disclosure of
confidential information before other international criminal tribunals was of limited
probative value. This was because it was not "sufficiently comprehensive to allow for
general conclusions applicable to the case at hand" 61 and "did not [otherwise] address
Brief, p. 9.
See supra submissions at paragraph 15.
57
58
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the effects of disclosures in Lebanon or in the region". 62 The Amicus could have
called a relevant expert to seek to establish ascertainable facts that the Judge could
rely on in considering whether an objective likelihood of harm to the public in
general existed, but the Amicus failed to do so. It is the shortcoming of the Amicus (as
is the entire failed case) and cannot be blamed on the Judge. The Amicus should not
be allowed to use this appeal to seek to remedy its own deficiencies at trial.
30. Similarly, with regard to the documentary evidence submitted from the bar table by
the Amicus, the Judge "note[d] 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 prospective Tribunal witnesses or even on the Lebanese public's perception
of the Tribunal". 63 The Judge, again, makes abundantly clear that it is for the Amicus
to establish ascertainable facts on which the Judge may determine whether or not the
conduct in question was of sufficient gravity to create the objective likelihood of the
harm alleged. Actual effects or harm need not be shown, though such evidence may
be relevant to and probative of the ultimate issue. 64
31. The Amicus is wrong in claiming that: "By combining his terms of 'objective
likelihood,' sufficient 'gravity' and 'ascertainable facts,' Judge Lettieri required
objective effects and said that his tests cannot be satisfied 'in subjective terms
[ ... ]. "' 65
As set out above, the Judge has properly applied the relevant case law to the
specific evidence in the present case. The Judge's approach and reasoning is entirely
consistent and sound. There is no substance at all to Ground 2 and it should be
rejected.
62
Judgment, para. 108.

65 Brief, para. 36.
63
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Brief, Ground 3: "The Judge erred in law by requiring that the alleged witnesses
appearing in the broadcasts be reasonably identifiable (para.43)."
32. The Amicus' third ground of appeal should be dismissed in limine as it fails to
articulate how the Judge's alleged error of law could invalidate the Judgment with
respect to the acquittals of Al-Jadeed and Ms. Khayat for Count 1. The Judge
determined that at least three individuals-witnesses AP13, 66 AP12 67 and APII 68-
were identified on the basis of their inclusion in the Episodes, but nonetheless
correctly found that the Amicus had not proved beyond reasonable doubt all of the
requisite elements of the actus reus for all of the reasons set out above in the
response to Grounds 1 and 2. This latter finding that there was no evidence of the
likelihood of undermining the public confidence in the Tribunal is the basis for the
acquittals, and not whether the individuals were identified or not.
33. Even on its merits this ground should be rejected. The Defence submits that Judge's
requirement that "the disclosed information must at least be significant enough that
the relevant individual is reasonably identifiable in the circumstances", 69 is a
necessary prerequisite to establish the gravity of the conduct in view of the broad
nature of the harm alleged (vis-a-vis the public in general). 70 The Amicus has not
shown any discemable error in the Judge's reasoning, and that the Appeals Panel has
any basis to intervene.
34.
Conclusion and relief requested: Brief, Grounds 1-3: For the reasons submitted
above, the Defence request the Appeals Panel: (a) find that the Judge committed no
errors of law as alleged under Grounds 1 and 2; (b) dismiss in limine the alleged error
under Ground 3 as it could not invalidate the Judgment or, in the alternative, find that
no error was committed; and (c) uphold Al-Jadeed and Ms. Khayat's acquittals on
Count 1.
Judgment, para. 80.

Judgment, para. 84.
70 See supra submissions at paragraphs 15-16.
66
67
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2. Alleged errors of fact and evaluation of facts (Count 1 and 2)
Brief, Ground 4: "The Judge committed legal and factual error in his review of the
evidence and determination of what it proved. The Judge rejected an appropriate,
holistic and "common sense" view of the evidence, both concerning individual elements
of proof and consideration of the combined evidence in its entirety, and instead applied
an artificial, fragmentary approach. (paras.106-09, 117, 119, 122-27, 135-42, 168-81)"
Brief, Ground 5: "The Judge committed legal and factual error in giving no probative
value to hearsay and secondary (or summary) evidence
if it was not specifically
corroborated by more direct or firsthand evidence, and in rejecting such evidence

whether it was actually or substantially contested or not. The Judge committed legal and
factual error in not considering the corroborating effects of viewing the evidence as a
whole. (paras.106-09, 117, 119, 122-27, 135-42)"
35. As with the above grounds, Grounds 4 and 5 disclose no discemable errors and the
Amicus certainly has not demonstrated, as it must, that any alleged errors result in
"all reasonable doubt of the accused's guilt[] be[ing] eliminated". 71 These grounds of
appeal should all be dismissed.
36. Grounds 4 and 5 (as with all of the grounds) are based on the fundamental
misconception that the Judge should have filled in evidential gaps in the Amicus' case
and bolstered the shortcomings in the Prosecution's evidence. They ignore the
"general principle of law, that the Prosecution bears the onus of establishing the guilt
of the accused beyond reasonable doubt", 72 that such onus "is not limited to the
ultimate question of guilt", 73 and that "[t]he persuasive burden on the issues pleaded
in the indictment is always on the shoulders of the Prosecution". 74 The Prosecution
Strugar, para. 14 (citations omitted).

See Defence submissions at closing: "Your Honour, it is instructive that in the almost 14.000 words that
the learned Prosecutor was given to detail, distill, and present what should have been, according to him, a
compelling case, not once does he mention the words 'beyond reasonable doubt."' (STL-11-01/T/TC,
Transcript of 18 June 2015 (T14) ("Tl4"), p. 29, lines 20-23).
73 ICTR, Ntagerura, ICTR-99-46-A, Judgement, 7 July 2006, para. 170 (citations omitted).
74 ICC, Ruto et al., ICC-01/09-01111, Decision No.5 on the Conduct of Trial Proceedings (Principles and
Procedure on 'No Case to Answer' Motions), Separate Further Opinion of Judge Eboe-Osuji, 5 June 2014,
para. 79. See also R. May and M. Wierda, International Criminal Evidence (2002), para. 4.62.
71
72
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"must put forward its best possible case at trial". 75 When it fails to do so, it cannot
challenge the Judge after the fact on appeal for the Prosecution's own, avoidable
inadequacies.
37. The Amicus was, for example, put on notice more than five months prior to the
commencement of trial of the Defence position, ultimately confirmed by the Judge, 76
that the Amicus expert Ms. de Brouwer could not provide sufficiently relevant and
probative expert evidence with respect to the context of Lebanon, the wider-region,
or the particular circumstances of this case as relates to the core matters that were in
dispute. 77 Furthermore, it was the Prosecution who withdrew "Protected Witness
3", 78 [REDACTED], 79 who [REDACTED]. 80 The Prosecution also chose not to call
other witnesses like Mr. Gagnon, the Amicus investigations' team leader in the case.
The Amicus elected not to do so, even when it implicitly sought, 81 but did not
receive, 82 any indication from the Judge that witness Comeau's contested hearsay
testimony regarding Gagnon's alleged knowledge could be relied on by the Judge.
The Amicus was put on notice by the Judge in advance of trial that with respect to
documentation purporting to confirm the availability and accessibility to the public of
the Al-Jadeed Episodes online, the fair trial rights of the accused required the
testimony of a person who was sufficiently capable of speaking to the origin, creation
and content of the documentation. 83 Despite being on such notice, the Amicus relied
solely on Comeau's evidence, which the Defence argued 84 and the Judge
determined, 85 was not sufficient.
ICTY, Galic, IT -98-29-A, Decision on Defence Second Motion for Additional Evidence Pursuant to Rule
115, 21 March 2005, para. 17 (citations omitted).
76 Judgment, paras. 107-108, 126. See also Defence submissions at paragraph 29 above.
77 Al-Jadeed, STL-14-05/PT/CJ, Defence Notice Pursuant to Rule 161(B) Regarding the Expert Report of
Witness AP07, F0080, 31 October 2014, paras. 3, 8-13.
78 See Annex A to Al-Jadeed, STL-14-05/PT/CJ, Amended Prosecution Pre-Trial Brief, F0066, 13 October
2014 ("Amended Amicus Pre-Trial Brief'), p. 1 ("A third confidential witness indicated in our 1 September
2014 filings will not be called.").
79 See Al-Jadeed, STL-14-05/PT /CJ, Application for Protective Measures and Non-Disclosure with Annexes,
Confidential and Ex Parte, F0031, 11 June 2014 (and accompanying ex parte annexes).
80 See, e.g., [REDACTED].
81 Al-Jadeed, STL-14-05/T/CJ, Submissions on Oral Order of 16 April2015, F0126, 17 April2015, para. 19.
82 Al-Jadeed, STL-14-05/T/CJ, Transcript of 17 April 2015 (T7), ("T7"), p. 2, lines 1-4.
83 Al-Jadeed, STL-14-05/PT/CJ, Decision on Amicus Curiae Prosecutor's Motion for Admission of Evidence
Pursuant to Rule 154, F0120, 9 April 2015 ("Rule 154 Decision"), paras. 38-39. See also Defence Trial
Brief, para. 71.
84 See, e.g., Al-Jadeed, STL-14-05/T/CJ, Defence Final Brief, F0165, 8 June 2015 ("Defence Trial Brief'),
paras. 67-68.
75
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38. With respect to the documentary evidence that the Amicus relied on at trial, and
which it now claims the Judge failed properly to consider, 86 the Defence had also
notified the Amicus prior to the commencement of trial about the deficiencies of this
evidence. 87 The Amicus took no steps to address these shortcomings, which the Judge
ultimately noted in his reasoning. 88
39. The Amicus claims that the Judge erroneously rejected the "central role of common
sense in criminallaw". 89 This is an odd ground of appeal. As is clear from the very
language of the Judgment quoted by the Amicus, 90 the Judge's unimpeachable finding
was that "'common sense' reasoning" and "generalized conjectures" by themselvesi.e."uncorroborated by evidentiary proof'-cannot found the basis of a criminal
conviction, "which require[s] proof beyond reasonable doubt". 91 For the Amicus to
claim that the Judge rejected the use of 'common sense' as a necessary component of
the method of evaluating evidence, where evidence exists, is without any support
whatsoever. The Amicus is 'clutching at straws' in trying to find arguments for its
appeal. The only reason the Judge had specific cause to address the issue of 'common
sense' at all is due to the Amicus' own aforementioned 'common sense in lieu of
evidence' submissions. 92
40. The remainder of the Amicus' submissions under these grounds amount to no more
than a disagreement with the Judge's evaluation of the evidence. They certainly do
not constitute an error of law or fact and do not establish that the Judge reached such
unreasonable findings and conclusions that no reasonable trier of fact could have
drawn. 93 The Amicus' vague and baseless claim that the Judge failed to apply a
"holistic approach" 94 to his evaluation of the evidence merely shows that the
Prosecution disputes the Judge's findings on all of the evidence. This is not a valid
x6 Brief, para. 54.

x7 See Annex A to Al-Jadeed, STL-14-05/PT/CJ, Defence Response to "Motion for Admission Evidence
Pursuant to Rule 154", F0101, 2 March 2015.

xx Judgment, para. 117.
x9 Brief, para. 40.
Brief, para. 40 (citing Judgment, para. 45).

Judgment, para. 40.
92 See Judgment, para. 92 (citing Amicus Trial Brief, para. 34). See supra submissions at para. 17.
93 See supra Applicable Law section.
94 Brief, para. 46.
90
91
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ground of appeal. The Amicus treats the Judge as though he is an opposing party in
the proceedings with who the Amicus is in dispute on the evidence.
41. In any event, the reasonableness of the Judge's factual findings for the purposes of
appellate review is unassailable. The fact that the Judge did not find, beyond
reasonable doubt, that certain of the Amicus' defective evidence corroborated other
similarly defective evidence certainly does not equate to an unreasonable method of
assessing the evidence as a whole:
It is incumbent on the Trial Chamber to adopt an approach it considers most

appropriate for the assessment of evidence. The Appeals Chamber must a priori lend
some credibility to the Trial Chamber's assessment of the evidence proffered at trial,
irrespective o(the approach adopted. [It is only where} [. ..}such approach leads to an
unreasonable assessment of the facts of the case, it becomes necessary to consider
carefully whether the Trial Chamber did not commit an error offact in its choice of the
method of assessment or in its application thereof, which may have occasioned a
miscarriage ofjustice. 95
42. To address specific arguments raised by the Amicus under this ground:
a. Contrary to the Amicus' characterisation of Comeau's evidence 96 (the reliability,

content and credibility of which the Defence strongly contested) 97 at most
[REDACTED] expressed concern regarding [REDACTED], 98 [REDACTED]. 99
b. It was certainly not unreasonable 100 for the Judge to find that Comeau's limited
hearsay evidence, when taken together with media reports (that did not "provide
any information on the individuals concerned[,] [ ... ] quote no source of
information", and "were [not] presented to any witness in court who might have
testified to the truth of their contents") were insufficiently corroborative of de
ICTR, Kayishema et al., ICTR-95-1-A, Judgment (Reasons), 1 June 2001, para. 119.
Brief, para. 55.
97 See, e.g., Defence Trial Brief, paras. 39-41.
98 Judgment, para. 95; T7, p.60, line 13 to p.61, line 24.
99 [REDACTED].
100 Brief, paras. 55-56.
95
96
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Brouwer's testimony. 101 It was perfectly permissible for the Judge to assess that
collectively this evidence with all of its flaws could not safely be relied on to prove
the actus reus of Count 1 beyond reasonable doubt.
c. With respect to the Amicus' submissions regarding the alleged availability of the
Episodes online, 102 it was clearly not unreasonable for the Judge to have required
the Amicus to meet its burden of proof for this essential element of the offence. It
was certainly not unreasonable for the Judge to have required the Amicus,
particularly when it was put on notice, to call a witness with direct knowledge of
the origin, creation and content of documentation pertaining to the alleged
availability of the reports online, the reliability of which the Defence had explicitly
contested. 103 It was also entirely reasonable for the Judge not to have relied on
Comeau's hearsay testimony regarding Gagnon's alleged knowledge. 104 Finally,
with regard to the Agreed Facts, the Defence did not in any respect, as the Amicus
appears to suggest, 105 agree or accept the availability and accessibility online to the
public of the reports beyond 10 August 2012.
43. Consequently, the Defence submits that no errors of fact or law were committed by
the Judge as alleged by the Amicus under Grounds 4 and 5. These grounds of appeal
should all be dismissed.
Brief, Ground 6 (Count 1): "The Judge committed factual error in concluding that Afif
Choaib and other individuals exposed in the broadcasts, except for APll, AP12 and
AP13, were not identified, or that the broadcasts did not permit their identification
(paras. 8 8-91). "
44. Ground 6 should be dismissed in limine. The Amicus fails to articulate how the
Judge's alleged error of fact in concluding that, apart from APll, AP12 and AP13,
the other individuals included in the broadcast reports were not identified, constituted
a miscarriage of justice. Indeed, notwithstanding the Judge's finding that APll,
See supra paras. 29, 36.

103 See supra submissions at paragraph 3 7.
104 Ibid.
105 Brief, paras. 57-58.
101
102
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AP12 and AP13 were identified, as set out above in respect of Grounds 1 to 5, the
Judge held that the Amicus had not proved beyond reasonable doubt all of the
requisite elements ofthe actus reus.
45. Even considering the Amicus' submission on the merits, the Amicus does not show
that the Judge's findings were so unreasonable such that no reasonable trier of fact
could possibly have reached the Judge's conclusions. Apart from Choaib, these
remaining individuals were not called as witnesses by the Amicus, and there is
otherwise no evidence from them, or any other evidence, that they were identified, or
that they were reasonably identifiable as a result of the broadcasts to constitute proof
beyond reasonable doubt. 106 The Amicus led no expert evidence to support its claims
that the facial or other obscuring employed in the reports rendered each particular
individual (or Choaib) identifiable. 107 Further, individuals A W -08 and A W -09 were
only represented by computer generated silhouettes, 108 and all of the individuals
discussed in the Reports are described in general terms-persons involved in
particular categories of enterprises or government departments (including very large
institutions with numerous employees), 109 only sometimes with broad information
about location provided. 110
46. Furthermore, with respect to the Amicus' lengthy submissions regarding Choaib, lll
the Judge did not find Choaib's testimony reliable, 112 and accordingly did not take
into account Choaib' s testimony on the matter of whether he had been identified due
to the Episodes. This left only the uncorroborated hearsay [REDACTED]. It was
plainly not unreasonable for the Judge to determine on the basis of this available
evidence, extremely limited as it was, that the Amicus had not proved beyond
reasonable doubt Choaib's public identification.
106
107
With respect to P00150, relied upon at footnote 75 of the Brief, see infra submissions at paragraph 65.
See in this respect Al-Jadeed, STL-14-05/T/CJ, Transcript of 12 May 2015 (T11) ("T11 "), p. 111, lines 1-
7.
P00073, at 02:33-03:15.
See, e.g., P00054, p.00487, line 4 (referring to "[REDACTED]"); P00071, p.00704
(referring to "[REDACTED]").
110 See, e.g., P00053, p.00485, lines 15-16 ("[REDACTED]"); P00054, p.00488, line 5 ("[REDACTED]");
P00071, p.00704, lines 15-16 ("[REDACTED]" [note that [REDACTED]; P00071, p.00704, line 17
([REDACTED]); P00077 ([REDACTED]).
111 Brief, para. 61.
108
109
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Brief, Ground 7 (Count 1): "The Judge committed legal and factual error in failing to
adequately assess the totality of Comeau's evidence and to reasonably take this evidence
into consideration regarding the actus reus concerning Count 1 (paras.95,121-24)."
Brief, Ground 8 (Count 1): "The Judge committed factual error in finding that APll 's,
AP12 's, AP13 's and Afif Choaib 'sconcerns and/or repercussions they suffered were not
probative of the real risks posed by the acts and conduct of the Accused (paras. 96-105,
121-25)."
4 7. The Amicus' submissions under Grounds 7 and 8 are, once again, used to re-argue its
failed case at trial. The Amicus does not identify and substantiate any errors of fact
constituting a miscarriage of justice or errors of law invalidating the judgment. These
grounds should all be dismissed.
48. The Appeals Panel when considering the Amicus' claim that the Judge erred in his
assessment of the evidence, must of course accord the Judge's conclusions due
deference given that "the Trial Chamber has the advantage of observing witness
testimony first-hand, and is, therefore, better positioned than [] [an Appeals
Chamber] to assess the reliability and credibility of the evidence". 113
49. With respect to Comeau, rather than treating the witness "unfairly" 114 , the Judge did
not even mention Comeau's confusion on the basic issue of whether or not he
[REDACTED]. 115 Further, contrary to the Amicus' claim, 116 nowhere does the Judge
state that he doubted Comeau's credibility as a witness due to his confusion over the
names of two former Amicus team members. Lastly, regarding the Amicus'
highlighting of Comeau's testimony on [REDACTED] as evidence of the Judge
giving limited weight and probative value to the testimony, 117 it must be taken into
account that when he was asked to recall with specificity the concerns
113
Furundiija, para. 37.
114
Brief, para. 64.

T7, p.81, line 9 to p.84, line 4.
Brief, para. 64 (citing Judgment, para. 138).
Brief, para. 64.
115
116
117
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[REDACTED], his evidence became "two or three [REDACTED]" who had

expressed concerns, as noted by the Judge. 118
50. With regard to the testimony of witnesses APll, AP12, AP13 and Choaib, 119 the
Amicus' complaint is that: "The Judge completely and incorrectly disregarded the
fact that all of these reactions [expressed by the witnesses] or [alleged] consequences,
whether objective or subjective, were in fact linked to and followed from the AlJadeed broadcasts." 120 There was nothing at all unreasonable, or any abuse of
discretion, 121 in the Judge finding on the available evidence and in light of the
applicable law, "that the concerns reported by these witnesses [APll, AP12 and
AP13] 122 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
AI Jadeed TV". 123
51. The Judge, self-evidently, did not disregard the fact that APll, AP12 and AP13's
concerns were linked to their identification through the Episodes. However, none
suffered any harm from any third party on the basis of such identification as an
alleged Tribunal witness. 124 Nor did the witnesses indicate or the Amicus adduce any
ascertainable facts that the concerns expressed by AP12 and AP13 125 could be
objectively linked-in the sense expressed by Margetic 126-to their identification as
alleged Tribunal witnesses in the reports. Hence, for purposes of evaluating the
sufficiency of the gravity of the conduct as required by the applicable law, 127 the
evidence did not establish that there was any harm perpetrated against any individual,
or that there was any objective basis for the apprehension of harm with respect to
APll and AP12, resulting from their identification as alleged Tribunal witnesses.
These were all perfectly permissible and reasonable findings on the evidence.
Judgment, para. 95.
122 Choaib's testimony having been deemed not reliable (Judgment, para. 122).
124 As noted by the Judge, whatever consequences AP11 may have suffered, this had nothing at all to do with
his alleged status as a Tribunal witness (Judgment, para. 122). With respect to AP12, the Judge found, well
within his proper discretion, that AP12 was unable to provide any information linking the incidents he
mentioned to his inclusion in the Al-Jadeed reports (Judgment, para. 122).
125 As noted, AP 11 having expressed no concerns vis-a-vis his identification as a purported Tribunal witness.
126 See supra submissions at paras. 18-20.
127 Judgment, para. 46. See supra submissions at paras. 14-15.
118
119
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52. As noted above, 128 the Amicus completely misapprehends the interpretation and
proper application of the law by reference again under these grounds to Margetic 129
and the Amicus' own 'common sense in lieu of evidence' theory. 130
53. Moreover, the Judge's finding that he could draw "no conclusions with respect to
whether the broadcasts had any impact on the witnesses' [APll, AP12, AP13 and
Choiab] confidence in the Tribunal's ability to protect confidential information" 131
cannot in any way be regarded as unreasonable. It is pertinent to compare, for
example, AP 12' s statements in this regard which even if taken at their highest are
equivocal, 132 with the evidence of the three protected witnesses in Margetic, who
clearly expressed that due to the disclosure of their identities they would only testify
in the future before the ICTY under strict protective measures or expressed great
reluctance to testify in the future on basis of security fears 133 (AP12, as noted by the
Judge, said he had not been scared by the broadcast). 134 It was also not unreasonable
for the Judge to have given little weight to Comeau's sparse, uncorroborated hearsay
testimony-the reliability and credibility of which was challenged by the Defence, 135
unlike in Margetic 136-that two or three of the individuals [REDACTED] expressed
concerns [REDACTED]. 137 The Judgment shows that the Judge reached his
conclusions that the Prosecution had not proved that the Episodes created the
likelihood of undermining the public's confidence, after a thorough examination of
all of the evidence. 138 There is thus no basis for the Appeals Panel to interfere with
these findings.
See supra paras. 18-23.

Brief, para. 66.
132 See Judgment, para. 99.
133 See supra para. 19.e.
136 See supra para. 19 .e.
137 See Judgment, para. 95.
138 See Judgment, paras. 96-1 02, 111, 117-125.
128
129
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Dr. de Brouwer's expert evidence (Count 1)- Ground 9
Brief, Ground 9: "The Judge committed legal and factual error in rejecting Dr De
Brouwer's evidence as having no probative value. (paras.106-09)."
54. This is yet another ground that discloses absolutely no error that invalidates the
judgment or occasions any miscarriage of justice. The Judge acted entirely
reasonably in determining that the evidence of de Brouwer did not have "sufficient
probative value with respect to the alleged impact of the disclosure of purportedly
confidential information at issue" and accordingly did "not assist in the specific
circumstances of this case". 139 This ground of appeal should be dismissed too.
55. As noted in the Judgment, the Judge forewarned the Amicus prior to trial that the
potential value of de Brouwer's "extensive training and experience", though with "no
direct connection to Lebanon", would be "the application of such training and
experience to the Lebanese context and to the facts in dispute". 140 Despite this, the
Amicus' examination of de Brouwer "primarily [][concerned] her conclusions on the
effects of disclosure of purported confidential witness information in the context of
other international criminal tribunals", 141 and "her evidence did not address the
effects of disclosures in Lebanon or in the region". 142
56. It did not constitute an error, nor was it "substantially unfair", 143 and it certainly was
not unreasonable, for the Judge to have determined de Brouwer's examination of the
impact of confidential information disclosure before other international courts was
insufficiently comprehensive, in part, due to reliance on case law that did not support
the propositions in her expert report. 144 This is an entirely logical and rational
finding.
139

Judgment, para. 106 (emphasis added) (citing to Al-Jadeed, STL-14-05/PT/CJ, Decision on Expert
Witness Anne-Marie de Brouwer, F0114, 27 March 2015, para. 12).
140
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57. The Amicus merely disagrees with the Judge's finding that he was not persuaded that
de Brouwer's evidence had sufficient probative value 145 , and the Amicus shows no
error. Instead, the Amicus suggests that the Judge should have himself applied de
Brouwer's generic knowledge to the Lebanese context and the facts of the case by
"deductive reasoning", common sense, and by using his "overall Tribunal
experience". 146 This is an astonishing submission which implies that the Judge should
have explained and proved the Prosecution's case for the Prosecution. It plainly does
not amount to a proper ground of appeal, and should be rejected.
Documentary evidence (Count 1)- Grounds 10, 11 and 12
Brief, Ground 10: "The Judge committed factual errors in determining that Amicus'
documentary evidence was not probative in relation to elements in the case (e.g., in
ruling that information contained in various documents was not probative because it
was not individually specifically corroborated) (paras.111-17, 126)."
Brief, Ground 11: "The Judge committed legal and factual errors in failing to consider
Exhibits P00091, P00109, P00112 and P00150 (paras.111-17, 126)."
Brief, Ground 12: "The Judge committed factual errors in determining that the
Complaint by thirteen persons (Exh. P00151) had no probative value concerning the
real risk created by the disclosure of alleged confidential witness information
(paras.118-19). "
58. These grounds individually and cumulatively are all unsubstantiated and should be
rejected. The Judge committed no legal errors invalidating the judgment or factual
errors occasioning a miscarriage of justice when finding that documentary evidence
submitted by the Amicus had no probative value to the issue of "the impact of the Al
Jadeed TV broadcasts on the public's confidence in the Tribunal's ability to protect
confidential information". 147 It is as though the Amicus is just re-litigating the weight
to be given this evidence before the Appeals Panel.
145
146
147

Judgment, para. 73.
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59. The Judge properly dismissed the majority of the Amicus' documentary evidence on
basis that "none of the articles provide any information on the individuals
concerned", "quote no source of information", or "were not presented to any witness
in court who might have testified to the truth of their content". Further, none of the
specific allegations in the various documents were "corroborated by any other
evidence". 148 The Judge's reasoning and findings are beyond reproach, and are
certainly not unreasonable.
60. It is most surprising that the Amicus submits that the Judge's "principal error" was
that he considered at all the provenance, reliability, truthfulness and accuracy of the
contents of the documents. 149 Instead, the Amicus asserts that the documents are, in
and of themselves, physical evidence (akin to a 'knife') 150 of the "public discourse
that was going on at the time about the publication or exposure of confidential
witness information" and claims that the public whose confidence in the Tribunal
was being undermined by this discourse "were the people listening to, reading and
seeing these articles and others like them". 151 This is argument is unashamedly
misguided. No reasonable trier of fact could possibly draw any conclusions in order
to convict without assessing the reliability of the evidence, and certainly could not
merely rely on documents at face value without any further evidence or explanation.
It would be speculative in the extreme to seek to draw the conclusions the Amicus
suggests about the impact on the public of the articles in the absence of any evidence
to this effect.
61. At a minimum, to embark on such an analysis a reasonable finder of fact would first
need to be appraised of "the public's" view of the reputation I credibility of the
publications I sources in question (' Shia Watch'; 152 'Y oukal Net' 153 ). Further, "the
people" actually reading these publications I sources within the diverse amalgam of
the Lebanese population would have to be established on the evidence, as would the
breadth of distribution and readership. The Amicus Prosecutor should have taken
148
149
150
151
152
153

Judgment, para. 78.
Brief, para. 81.
Brief, para. 78.
P00101.
See, e.g., P00082; P00088; P00090.
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heed of his own objection to the Defence's exhibiting of media articles to AP12
("[REDACTED]") 154 or [REDACTED] 155
62. The Amicus never sought to question any witnesses about these documents. It is illconceived for the Prosecution to suggest that the documents can stand on their own
without any assessment of their reliability and probative value. It is also just another
attempt by the Prosecution to put forward arguments that it did or should have done
at trial.
63. The alleged error 156 asserted by the Amicus with respect to the Judge's evaluation of
the legal complaint sent to the Tribunal allegedly on behalf of thirteen individuals 157
identified as Tribunal witnesses by Al-Akhbar in 2013, is similarly unfounded. It was
clearly not unreasonable for the Judge to have required verification as to the contents
of the complaint (just as with information contained in media articles), which is
undeniably "based on conjectures formulated by third persons". 158 Moreover, this
document had nothing at all to do with Al-Jadeed's August 2012 reports. The
Prosecution has certainly not shown that any miscarriage of justice has occurred such
that "all reasonable doubt of the accused's guilt has been eliminated". 159
64. The Amicus claim that the Judge erred by citing to four items-P00091, P00109,
POO 112 and POO 150-but not considering them, should also be dismissed. 160
First, the fact that the Judge cited to the items indicates that he did consider them.
Second, as is well accepted in international criminal jurisprudence, "[a] Trial
Chamber is not required to expressly reference and comment upon every piece of
evidence admitted onto the record". 161 In any event, the Judge did reference the items
in the section of the Judgment considering the Amicus' documentary evidence. Third,
the Amicus makes no claim that such alleged error constituted a miscarriage of justice
or invalidated the Judgment.
Al-Jadeed, STL-14-05/T/CJ, Transcript of21 April2015 (T9) ("T9"), p. 48, lines 3-5.
T9, p. 52, lines 4-5.
157 P00151.
159 Strugar, para. 14 (citations omitted) (emphasis added).
161 ICTR, Rukundo, ICTR-2001-70-A, Judgment, 20 October 2010, para. 217 (citation omitted).
154
155
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65.
With respect to the Amicus' specific submissions regarding item POOl 50: (i) the item
does not mention Al-Jadeed; (ii) [REDACTED]; 162 there is hence no indication
provided that [REDACTED] experienced any difficulties on the basis of the
Episodes;
(iii)
[REDACTED]; 163
(iv)
the
press
release
simply
requests
[REDACTED]; and (v) [REDACTED]. 164
66.
The Judge's findings are thus clearly not unreasonable in respect of any of these
documents, and all of these grounds should be rejected.
The availability of the broadcasts on the web (Count 1 and 2)-Grounds 13 and 14
Brief, Ground 13 (Counts 1 and 2): "The Judge committed factual error in finding that
Comeau's evidence regarding the Office of the Prosecutor's monitoring of and Mr.
Gagnon's information concerning the availability of the broadcasts were not reliable or
probative (paras. 136, 139)."
Ground 14 (Counts 1 and 2): "The Judge committed legal and factual error in failing
to take into consideration the Parties' agreed facts regarding the public availability of
the broadcasts, the fact that the Defence did not contest or offer any evidence contrary
to the Amicus' evidence, and the Accused's recognition that the broadcasts were still
available, as exemplified by Exhibits P00107/P00108 (paras.130-44)."
67.
Grounds 13 and 14 should be dismissed in limine. The Judge determined that the
Episodes were available on Al-Jadeed TV's website until 2 October 2013 165 and
convicted Ms. Khayat for Count 2 of the Amended Order in Lieu on the basis of this
finding. The Amicus has failed to substantiate how the alleged errors constituted
either a miscarriage of justice and/or invalidated the judgment with respect to Al
Jadeed's acquittals on both counts and Ms. Khayat's acquittal for Count 1.
68. In any event, the alleged errors, once again, are no more than disagreements with the
Judge's valid exercise of discretion in evaluating the evidence and reaching proper
See P00083; P00087; Tl4, p.55, lines 18-22.
[REDACTED].
164 [REDACTED].
162
163
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factual findings. At no stage does the Amicus show that no reasonable finder of fact
could have reached the Judge's conclusions.
69. The Judge did not act unreasonably in declining to rely on Comeau's testimony for
determining the reliability and accuracy of the information purportedly recorded by
an OTP language assistance about the alleged availability of the Episodes online. 166
Comeau could not testify with any authority about this matter. His evidence provided
no assistance to the Judge in determining this factual issue. The Judge put the Amicus
on notice in advance of trial that with respect to documentation purporting to confirm
the availability and accessibility to the public of the Episodes online, the fair trial
rights of the accused required the testimony of a person who was sufficiently capable
of speaking to the origin, creation and content of the documentation. 167 Despite such
notice, the Amicus relied solely on Comeau (without calling Gagnon or anyone else),
who the Defence submitted 168 and the Judge rightly determined, 169 did not provide
sufficiently reliable evidence on this matter. The Amicus has plainly failed to show
that no reasonable trier of fact could reach that same conclusion.
70. With respect to the issue of corroboration and hearsay evidence, 170 "a Trial Chamber
has the discretion to decide, in the circumstances of each case, whether corroboration
of evidence is necessary". 171 Similarly, the Judge "has the discretion to cautiously
consider hearsay evidence", the weight and probative value of which "will usually be
less than that accorded to the evidence of a witness who has given it under oath and
who has been cross-examined", with the Judge also needing to consider "the
infinitely variable circumstances which surround [the] hearsay evidence". 172
71. Taking these legal rules into account, including that the Appeals Panel should defer
to the trial judge's assessment of witness testimony, the Defence's response to the
points raised under these grounds are as follows:

Rule 154 Decision, paras. 38-39. See also Defence Trial Brief, para. 71.
171 ICTR, Karera, ICTR-01-74-A, Judgment, 2 February 2009, para. 45 (emphasis added) (citation omitted).
172 !d., para. 39 (emphasis added) (citations omitted).
166
167
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a. Judge Baragwanath's statement in his 31 January 2014 decision that the Episodes
were available on Al-Jadeed's YouTube channel 173 is not evidence and cannot be
relied on in any respect at the trial stage of this case;
b. Whether the Judge stated that Rami Al-Amin's evidence regarding the availability
of the reports on Al-Jadeed's website corroborated Comeau's evidence on this
specific point, or the other way around, 174 does not undermine in any way the
Judge's proper determination in the exercise of his discretion, that Comeau's
evidence on the matter of online availability of the reports required sufficient
corroboration, which the Judge determined the Registrar's letter 175 did not
.
constitute;
176
c. Contrary the Amicus' claim, 177 Ms. Khayat, when specifically asked by the Amicus
team about the online availability of the episodes stated that she had no recollection
whether she checked (i.e. actual knowledge) if the reports were made available
online and simply stated that she thought they would have been; 178
d. With respect to the communications of Al-Jadeed's lawyer Ms. Habli with the
former Amicus Prosecutor Mr. Bourgon in the month following the Amicus' early
October 2013 suspect interviews with Al-Jadeed personnel, 179 these very brief
communications from Ms. Habli had the sole focus of obtaining a copy of the 10
August 2012 Order, which the Amicus had declined to provide Ms. Khayat or Ms.
Habli at the suspect interview, 180 and the existence and contents of which the
Defence maintain on the evidence neither Ms. Khayat orAl Jadeed S.A.L. were
aware at that time;
Brief, para. 85.

Brief, para. 85.
178 P00173, p. 41, lines 11-14.
IXO D00053-54.
173
174
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e. Al-Jadeed TV's 'story' 181 of 29 April2014 182 was exactly that-a news story with
a particular focus, not a formal response to the Tribunal as to the alleged specific
availability online of the Episodes;
f.
In its repeated assertions regarding Defence submissions (or alleged lack thereof)
on the issue of the online availability of the reports, 183 the Amicus again
misunderstands that there is no burden on the defence-it may remain silent with
no adverse inference permitted to be drawn-and the Defence is perfectly entitled
to put the Amicus to strict proof on each required element of the charge preferred;
g. With respect to the issue of agreed facts, 184 nowhere in these facts does it state that
the Defence agree that the Episodes were available online and accessible to the
public (also to be distinguished from mere links to the reports available on Al
Jadeed's Facebook page "up to a certain time" 185 ) after 10 August 2012, or after 11
August 2012 186 , or after 14 August 2012; 187
h. The Prosecution has not shown that any alleged error about the reports' availability
online constituted a miscarriage of justice; 188 and,
1.
Lastly, for the reasons previously submitted, the Judge did not act unreasonably
when not relying on Comeau's hearsay testimony regarding Gagnon's alleged
statement on the online availability of the Al Jadeed reports. 189
Unnumbered Ground- "Karma Khayat's knowledge of the 10-August-2012 Order"
72. First, this unnumbered ground of appeal should be dismissed in limine because the
Amicus failed to provide any notice of this ground in its Notice of Appeal
lXI
Brief, para. 85.
1 ~P00107;P00108.
x Brief, para. 86.

x Brief, para. 86.
lxs Brief, para. 88.
1x6 The date of Lodge's email addressed to Ms. Khayat's email address that the Defence maintain Ms. Khayat
did not receive.
187 The date of the visit by Chief Warrant Officer Akram Rahal to AI Jadeed S.A.L. headquarters.
lXX See paragraph 67 above.
1x9 See supra submissions at para. 37.
1 3
1 4
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("Notice"). 190 The error alleged under this unnumbered ground does not come within
the specific alleged errors set out under Grounds 13 or 14, or within any other of the
grounds of appeal listed in the Notice.
73.
Second, even if the Appeals Panel deems the ground validly notified, the Amicus has
failed to substantiate how the Judge's alleged error in not finding that Ms. Khayat
had actual knowledge of the 10 August 2012 Order, as opposed to his finding that she
was 'willfully blind' to the Order, occasions a miscarriage of justice or invalidates
the Judgment (in the event the Amicus also intends to claim an error of law).
74. Third, if the Appeals Panel still determines that this non-notified and unnumbered
ground should be considered on the merits, the ground should be dismissed as it
clearly constitutes a mere disagreement with the Judge's factual finding. The Amicus,
while citing to no legal authority, submits that "[i]t is an accepted presumption or
interference usually recognized in law" that if an email with an attachment is sent to
an individual they are deemed to have actual knowledge of the attachment. It was
certainly not unreasonable (in accordance with the proper appellate standard of
review) for the Judge to have decided otherwise in the circumstances of this case.
Further, it is not unreasonable-particularly given the complete absence of any
evidence-that the Judge declined to find that Mrs. Al-Bassam informed Ms. Khayat
about the 10 August 2012 Order, or that an inference may be drawn such that the fact
that an Al Jadeed receptionist greeted Ms. Bernard on 11 August 2012 results in a
finding beyond reasonable doubt that Ms. Khayat had actual knowledge of the
Order. 191 These are perfectly proper and permissible findings on the evidence.
7 5. Conclusion and relief requested: Brief, Grounds 4 to 14 and unnumbered ground:

For all of the reasons submitted above, the Defence request the Appeals Panel to: (a)
dismiss Grounds 4 to 14 by finding that the Judge committed no errors of fact
occasioning a miscarriage of justice and no errors of law invalidating the judgment;
(b) dismiss the Unnumbered Ground on basis that it was not properly notified, or
otherwise by finding that the Judge committed no error of fact occasioning a
miscarriage of justice and no error of law invalidating the judgment; and (c) uphold
190
191
Al-Jadeed, STL-14-05/A/AP, F0001, 5 October 2015.

Brief, para. 90.
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Al-Jadeed and Ms. Khayat's acquittals on Count 1 and Al-Jadeed's acquittal on

Count 2.
Brief, Ground 15 (Counts 1 and 2): "The Judge erred in law regarding the required
mens rea for Counts 1 and 2, in not finding or rejecting that recklessness/reckless
indifference can amount to "knowing and wilful" conduct (paras. 50, 54)."
76. The Amicus has not substantiated in any way how the error alleged under this ground
of appeal invalidated the acquittals against Al-Jadeed on both counts and Ms. Khayat
for Count 1 given that the Judge did not have cause to make factual findings with
respect to mens rea. This ground should be dismissed summarily.
77. In any event, the Defence submit the Judge committed no error m declining to
expand the requisite mens rea for contempt under Rule 60bis to include
'recklessness/reckless indifference' in the context of the particular charges preferred.
Contrary to the Amicus' submission, 192 and as held in Nobilo (cited in support by the
Amicus), 193 "for different types of conduct to amount to contempt, different states of
. d are reqmre
. d" .194
mm
78. All seven international cases cited by the Amicus are in pertinent part limited to the
context of knowing and wilful violation of a judicial order. 195 There is no support to
apply the standard of 'recklessness/reckless indifference' to the conduct charged
under Count 1, which the Judge determined was akin to witness interference or
intimidation. 196 Even more so, when the actus reus of the alleged harm is qualified so
broadly (vis-a-vis the public in general) and the conduct additionally involves
principles of media freedom, 197 it would be incompatible with the nature of the crime
and the fair trial rights of the accused to hold that the prosecution may "establish that
Brief, para. 93.

Brief, para. 93 and fn. 145.
194 ICTY, Aleksovski, IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding of
Contempt, 30 May 2001 ("Nobilo"), para. 40. See also ICTY, Brdjanin, IT-99-36-R-77, Concerning
Allegations Against Milka Maglov, Decision on Motion for Acquittal Pursuant to Rule 98 Bis, 19 March
2004 ("Brdjanin"), para. 16.
195 Brief, para. 93 and fn. 145. Note that the Margetic court discussed 'reckless' specifically in the context of
violation of a judicial order, not with respect to the charge of witness interference (Margetic, para. 37).
192
193
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the accused acted with specific intent to interfere with the Tribunal's due
administration of justice" 198 merely on the basis of 'recklessness/reckless
indifference'.
79. Even with respect to Count 2, and contrary to the Amicus' assertion, 199 the
international jurisprudence
on the
application
of the
'recklessness/reckless
indifference' standard in contempt cases is decidedly unsettled with respect to the

requisite culpable knowledge that goes to the existence of an order. 200 The Defence
submit there is no valid justification for the Appeals Panel to disturb the Judge's
findings in the context of this case as requested by the Amicus, particularly as the
Judge did not make any findings as to mens rea.
80. For all of these reasons Ground 15 should be rejected.
Grounds 16 to 22 (Counts 1 and 2): Alleged criminal liability of Al-Jadeed
81. Grounds 16 to 22 concern the Amicus' challenge to the Judge's conclusion that the
Amicus failed to prove beyond reasonable doubt Al-Jadeed's criminal culpability as a
corporate entity for Counts 1 and 2.
82. The Amicus claims that the Judge erred in law in requiring at least one natural person
within the corporation to be identified as having committed the wrongful act and that
such person(s) be capable of representing the corporation (as required under
Lebanese law). Further, the Amicus submits that even if the Judge was correct in his
findings of law, he erred in fact in qualifying the authority of Ms. Khayat and Mrs.
Mariam Al-Bassam as employees of Al-Jadeed on the evidence in the case.
83. None of these grounds constitute proper and appropriate grounds of appeal. Contrary
to the Amicus' submissions under Grounds 16 and 17, it was entirely permissible for
Brdjanin, para. 16.
Brief, para. 93.
200 See Nobilo, paras. 45 and 54. In Brdjanin (at paras. 39 and 41), the Chamber approved the standard of
reckless indifference with respect "to whether his conduct was in violation" of an order, not with respect to
the existence of the order (emphasis added). In Hartmann, the Chamber noted that Nobilo made no finding
as to whether reckless indifference to the existence of an order satisfies the mens rea for contempt (fn. 51
and para. 22). Similarly, in Nshogoza (ICTR-07-91-T, Judgement, 7 July 2009, paras. 181-183, 188), the
standard was applied in relation to conduct which was recklessly indifferent (not existence of an order).
198
199
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the Judge to rely on Lebanese law in the particular circumstances of this case.
Further, the Judge's interpretation of Lebanese law and its application to the specific
facts was undertaken in a detailed, soundly reasoned, and proper manner in the
rightful exercise of his discretion as the trial judge (contra Grounds 18 to 22). The
Amicus has not shown that the Judge acted unreasonably (and as no reasonable judge
could do in the circumstances) in finding that on the evidence under the specific
requirements of Lebanese law, Ms. Khayat and Mrs. Al-Bassam, at the material time,
did not represent the company and had no authority to act on its behalf and bind the
company.
84. The Amicus does not identify and articulate any discemable error committed by the
Judge, let alone one that reaches the very high standard of invalidating the judgment
and occasioning a miscarriage of justice. Instead, the Amicus simply restates its case
that it presented at trial in the hope that the Appeals Panel, acting as a trial chamber
de novo, may reach a different conclusion to the Judge. For these reasons the Appeals
Panel should dismiss Grounds 16 to 22.
85. As underlined in the Applicable Law section, the Appeals Panel may only interfere
with the Judge's findings of law and fact where the Amicus has identified discemable
errors, which invalidate the judgment or occasion a miscarriage of justice. As
submitted below, the Amicus has failed to satisfy this onerous standard.
86. It also bears emphasis, given that the Amicus highlights the issue of the
'effectiveness' of the Tribunal's contempt powers, 201 that Al Jadeed's acquittals on
Counts 1 and 2 do not undermine in any respect the validity of the Appeals Panel's
holding 202 that corporate liability applies as a matter of law before the STL for
contempt allegations (despite the Defence's challenges to the applicability of
corporate liability). The Judge has given full effect to the Appeals Panel's findings on
corporate liability. It is rather that the Prosecution in the present case has failed to
meet its burden of proof on the evidence to establish the corporation's liability.
201
Brief, paras.96, 97, 108, 109, 112.

Al Jadeed, STL-14-05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal
Jurisdiction in Contempt Proceedings, FOO 12-AR 126.1, 2 October 2014 ("Jurisdiction Decision").
202
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Ground 16 (Counts 1 and 2): "The Judge erred in law by relying solely on the Lebanese
Criminal Code when defining the elements of legal person liability, in finding that
international law cannot be considered unless a consensus among States exists and in
failing to properly consider the interpretation rules in Rule 3 (paras. 6 7-68)."
87. Under Ground 16 the Amicus claims the Judge erred by not considering each
enumerated source of law in Rule 3 in determining that the Lebanese Criminal Code
was the most appropriate source of law to define the elements of corporate liability.
The Amicus submits the Judge also erred in finding that the lack of consensus among
national systems in this area precluded the Judge from relying on the laws of these
other jurisdictions.
88. The Amicus has failed to identify and articulate any discernable error in the Judge's
reasoning and determination of the applicable law on corporate liability in the
circumstances of this case. It is a case that concerns a corporation domiciled in
Lebanon, alleged acts and conduct arising in Lebanon, proceedings in which the
Appeals Panel in its Jurisdiction Decision has placed specific reliance on Lebanese
law, and in which Lebanon is "at the heart of the [hybrid] Tribunal's mandate". 203
89. First, the Judge's application of Rule 3 was clear, well-reasoned and sound. The
Judge held that:
Rule [3} is [. . .} relevant here because I am, in a sense, interpreting Rule 60 bis. This is
because in light of the [. ..} Jurisdiction Decision-which concluded that Rule 60 bis
permits corporate criminal liability for contempt-and the absence in the Statute and
the Rules ofthe material elements for attributing such liability or reference to the source
thereof. Rule 60 bis must be read as implicitly including these elements. [ .. .} However,
[. . .} because interpreting Rule 60 bis in this case requires not the interpretation o( a
word or provision in a conventional sense [as in the Jurisdiction Decision!, but rather
[. . .} articulat[ing} the elements o(substantive criminal law (as opposed to procedural
law), I cannot rely solely on Rule 3.
203
204
204
Judgment, paras. 67-68.

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The Amicus has failed to identify (let alone substantiate) any discernable error in the
Judge's reasoning.
90.
Second, as properly noted by the Judge, the Statute and Rules are silent on any
elements of the offence for corporate liability. The Amicus' insistence 205 on applying
the rules of interpretation set out in the Vienna Convention on the Law of Treaties to
Rule 60bis is thus misplaced given that there are no 'words ' 206 in the Statute or Rules
to interpret regarding the substantive elements of corporate criminal liability before
the STL.
91. Third, the Amicus misapplies the Appeals Panel's finding that the divergence in
national approaches to the concept of corporate liability does not undermine the
existence of corporate liability as a general principle of law. 207 The Appeals Panel's
finding was limited to deciding whether the Tribunal's jurisdiction for purposes of its
inherent contempt authority, articulated in Rule 60bis, included legal entities. It did
not deal with the elements of corporate liability. The Jurisdiction Decision, as alluded
to in Judge Akoum's dissent therefrom, 208 made no determination as to the applicable
elements of legal entity liability before the STL.
92. The Amicus has demonstrated no error in the Judge's finding that "there is no
relevant international convention with respect to the elements of corporate liability,
nor international custom or general principles of law ([ ... ] indeed nothing
approaching a universal model or a consensus across national systems) on which" the
Judge could rely to identify and apply, in the context of this case, the elements of
corporate liability. 209
93. Indeed, in reaching this finding, the Judge relied in part on the Amicus' own
submission in its Amended Pre-Trial Brief as to the divergence in state practice in
this area and that there is "not a single approach, but a series of principles and
Brief, para. 96.

Ibid.
207 Brief, paras. 98-100. See also Jurisdiction Decision, para. 6 7.
208 Dissenting Opinion of Judge Walid Akoum to Jurisdiction Decision.
205
206
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trends" 210 . The Judge rightly noted that the Amicus "does [][not] demonstrate
commonality across even a particularly large number of countries". 211 The Judge also
correctly relied on the Appeals Panel's own findings as to the variance in national
approaches to corporate criminal and civilliability, 212 and noted that:
[Ejven 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[. ..} would be highly selective and simplistic at
best. Such a course would result in a hodgepodge o[ elements that among other things
could not reasonably have been fOreseeable by the Accused at the time of the alleged
acts and conduct. 213
94. The Judge was perfectly entitled to rely on Lebanese law in these circumstances, and
in order to give proper and full effect to the Appeals Panel's decision on jurisdiction
which had centrally relied on these laws.
95. Finally, the fact that the Amicus was unable to discharge its burden of proof under
Article 210 of the Lebanese Criminal Code ("LCC") 214 on the evidence is not a
reason at all to challenge the Judge's considered approach to determining the
applicable elements ofthe offence. 215
96. Relief requested: For the reasons submitted above, the Defence request the Appeals
Panel to find that the Judge committed no discernable error of law as alleged by the
Amicus under Ground 16, and to uphold Al-Jadeed's acquittals on Counts 1 and 2.
Judgment, para. 62, citing to Amended Amicus Pre-Trial Brief, para. 22.
Judgement, para. 62.
213 Judgment, para. 66 (citing in approval Ayyash, STL-11-01/I, F0010, Interlocutory Decision on the
Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011
("Applicable Law Decision"), para. 137.
214 Lebanese Criminal Code, Selected Articles (STL Official Translation) (version of September 2015).
210
211
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Ground 17 (Counts 1 and 2): "The Judge erred in law in requiring, concerning legal
person liability, that a natural person must be identified as criminally responsible (as to
all elements of the crime) (para. 71)."
97. As with Ground 16, this ground is without any merit, and should be rejected.
98. The Amicus submits the Judge erred in law by holding that "a single natural person
must have committed the crime the corporation is accused of committing" and that
said person "must be identified". 216 The Amicus alleges that such a "narrow
interpretation of legal person liability under Lebanese law" does not accord with the
"spirit of Rule 60bis" and "the purpose of international law in charging a legal person
with contempt" 217-i.e. the principle of 'effectiveness'. 218
99. First, the Amicus fails to substantiate how the Judge's requirement that a natural
person within the corporation be identified as responsible for the criminal conduct
invalidates the Judgment given that the Amicus did indeed identify two such
allegedly responsible individuals-Ms. Khayat and Mrs. Al-Bassam. Clearly, the
Judge was also not limiting this element to identifying a single person as the
Prosecution seems to suggest-the Judge went on to consider the positions of both
Ms. Khayat and Mrs. Al-Bassam.
100. Second, the Judge did not interpret the law 'narrowly'. As set out above with respect
to Ground 16, the Judge correctly identified Lebanese law as the most appropriate
source of law in the circumstances of this case, and then properly applied this law
pursuant to the text of Article 210 LCC, guided by the Lebanese judiciary's
interpretation and application of the law. 219
101. Third, and as also submitted above with respect to Ground 16, 220 the principle of
effectiveness was articulated and applied by the Appeals Panel in the specific context
of interpreting the text of the Rules (the word 'person') for the purposes of defining
216
217
218
219
220
Brief, para. 103.

Brief, para. 103.
Judgment, paras. 69-71.
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the personal jurisdiction of the Tribunal, not the substantive elements of a criminal
offence where, as the Judge rightly found, there was no substantive text to
interpret. 221 The Amicus' submissions are misconceived and should be rejected. 222
Even where the principle of effectiveness may be applicable, it does not provide
license to fundamentally alter existing law where, as here, the law (Article 210 LCC)
is clear and unambiguous.
102. Instead, the more relevant and specific principles of interpretation in this
circumstance, and as also addressed by the Amicus, 223 are those articulated by the
Appeals Chamber in the Applicable Law Decision:
As an international court, we may depart from the application and interpretation of

national law by national courts under certain conditions: when such interpretation or
application appears to be unreasonable, or may result in a manifest injustice, or is not
consonant with international principles and rules binding upon Lebanon. 224
103. The Amicus does not, and indeed cannot submit that the Lebanese judiciary's
interpretation or application of Article 210 LCC, as identified in the Judgment, 225 is
'unreasonable' or may result in a 'manifest injustice' .226 Instead, the Amicus argues
that the third limb of the test, as was applied by the Appeals Chamber to the 'means'
element of the offence of terrorism, should likewise apply to interpreting the
elements of corporate liability under Article 210 LCC. 227 Such an application would
be manifestly wrong. Unlike the Applicable Law Decision, where the Appeals
Chamber relied upon the Arab Convention against Terrorism (ratified by Lebanon)
and "the customary international rule on terrorism", 228 there are no "international
principles and rules binding upon Lebanon" with respect to the elements of corporate
liability, as the Judgment addresses in detail. 229 In the present case, the Tribunal is

223 Brief, paras. 104-1 06.
224 Applicable Law Decision, para. 39 (emphasis added) (citations omitted).
225 Judgment, paras. 69-71.
226 See Applicable Law Decision, fns. 58-59.
227 Brief, paras. 105-107.
228 Applicable Law Decision, para. 129.
229 Judgment paras. 61-66.
221
222
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concerned with contempt and not the substantive offences over which the STL has
jurisdiction.
104. Further, the Appeals Chamber imposed the fundamental caveat of nullum crimen sine
lege on the above-described interpretive principle, as relied on by the Contempt
Judge in turning to Lebanese law? 30 "'A criminal conviction should indeed never be
based upon a norm which an accused could not reasonably have been aware of at the
time of the acts, and this norm must make it sufficiently clear what act or omission
could engage his criminal responsibility. '" 231
105. Fourth, the Amicus makes an astoundingly incorrect assertion about the Judge's
application of Article 210 LCC, namely that it "would only allow small, single
person-owned businesses to be held accountable, whereas large complex enterprises
involving many different actors would generally remain immune". 232 There is
nothing at all in the Judge's reasoning that permits such an extreme and distorted
conclusion. Clearly, the positions of different persons at different levels could be
considered on the evidence as occurred in the present case when the Judge reviewed
the positions of both Ms. Khayat and Mrs. Al-Bassam.
106. Relief requested: For the reasons set out above, the Defence submit the Amicus has
not identified any discernable error of law in the manner in which the Judge gave
effect to the Appeals Panel's Jurisdiction Decision recognising the Tribunal's Rule
60bis jurisdiction over legal entities. The Defence request the Appeals Panel to: (a)
find that the Judge committed no discernable error of law as alleged by the Amicus
under Ground 17 and (b) uphold Al-Jadeed's acquittals on Counts 1 and 2.
230
See supra fn. 213.

Applicable Law Decision, para. 137 (quoting ICTY, Vasiljevic, IT-98-32-T, Judgement, 29 November
2002, para. 193).
231
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Ground 18 (Counts 1 and 2): "The Judge erred in law by misapplying Lebanese law
concerning the scope of the persons who qualify as "directors, member of
administration, representatives and employees when such actions are undertaken on
behalf of or using the means provided by such legal persons. "180 (paras.69, 72 and
177)."
107. The Amicus submits the Judge erred in law by narrowly interpreting the category of
persons enumerated under Article 210 LCC whose conduct may engage the criminal
responsibility of a legal person.
108. As consistently established by the relevant Lebanese case law cited by the Judge 233
and the decisions annexed to the Brief, 234 the core legal issue underlying Article 210
LCC is whether the natural person(s) allegedly responsible for the criminal conduct
had the legal authority to "to act in the name of' the legal person, 235 "the capacity to
represent" the legal person, 236 or "who have the function and competence to represent
the" legal person237-i.e. those persons "who were granted, by the legal person, the
power of working on its behalf'. 238
109. Pursuant to Article 210, directors, members of the administration, and representatives
of the legal person are presumed to have been granted such power by the legal person
to represent it and act on its behalf. With respect to the last category of natural
persons listed under Article 21 0-"employees"-"an explicit authorisation allowing
him [or her] to act on behalf of the legal person" is required to engage the legal
person's criminalliability. 239
110. Contrary to the Amicus' claim, the Judge carefully and rigorously applied this wellestablished interpretation and understanding of Article 210 LCC to the facts of this
233
Judgment, para. 70
See Annexes B, C and D to Brief.
235 Judgment, para. 70 (quoting Lebanon, Court of Cassation, Criminal Chamber 6, Decision No. 60/2010,9
March 2010 (published in Almarjaa-Cassandre)).
236 Lebanon, Court of Cassation, Criminal Chamber 6, Ruling No. 0, 19 January 2006 (published in AlMustashar) (Brief, Annex C).
237 Lebanon, Court of Cassation, Criminal Chamber 6, Ruling No. 0, 9 March 2010 (published in Al
Mustachar), p. 3 (Brief, Annex D).
238 Lebanon, Tribunal composed of President Riachi and Counsellors Zanhour and Saad, Decision No. 157, 3
June 2004 (Brief, Annex B).
239 Ibid.
234
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case. The level at which a natural person sits within the hierarchy of a legal entity,
the fact that a natural person owns shares in the legal entity, and/or that a natural
person is related to the chairman of the board of directors 240 are all rightly irrelevant
to the core issue of whether the natural person is legally authorised to represent, and
may legally bind, the legal entity.
111. The Amicus has patently failed to demonstrate that the Judge's findings, based on,
inter alia, the Amicus' own evidence as to Al-Jadeed's bylaws and a legal proxy
signed by the Chairman and Managing Director of Al-Jadeed, 241 were unreasonable
(to the very high standard required at appellate proceedings). The Judge correctly
found that the Amicus failed to prove beyond reasonable doubt that Ms. Khayat "was
a director, member of the administration, representative or duly authorized worker
[employee] of' Al-Jadeed TV and hence that Ms. Khayat's conduct can be legally
attributed to Al-Jadeed pursuant to Article 210 LCC. 242 The Amicus has shown no
error and no justification at all for the Appeals Panel's intervention.
112. Relief requested: Based on the above submissions, that Defence request the Appeals
Panel to: (a) find the Judge committed no discernable error of law as alleged by the
Amicus under Ground 18; and (b) uphold Al-Jadeed's acquittals on Counts 1 and 2.
Ground 19 (Counts 1 and 2): "The Judge committed legal and factual error in not
finding that M. Al-B assam's position and/or conduct at Al-Jadeed triggered or involved
conduct attributable to Al-Jadeed, concerning its criminal responsibility (para.181,
190)."
113. Once again, this Ground reads as if it were a closing brief before a trial chamber as
opposed to proper appellate submissions before an appellate panel. The Amicus is repleading the case that has already been rejected by the Judge. The Amicus fails to
identify any discernable errors of law committed by the Judge or identify factual
findings with respect to Al-Bassam that were so unreasonable that no reasonable
Judge could reach the same result. This ground should accordingly be dismissed.
240
241
242
Brief, para. 116.

Judgment, paras. 186-187 (citing P00117; P00175).
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114. As discussed above, pursuant to Article 210 LCC, in order for a natural person's
conduct to engage the criminal liability of a legal entity, the individual must fall
within the category of persons legally empowered by the legal entity to act on its
behalf. 243
115. First, it should be noted that the Judge did not have cause to explicitly engage the
issue of Al-Bassam's legal authority (or not) to represent and bind Al-Jadeed for the
purposes of Article 210 LCC. This is because the Judge found that the Amicus did not
prove beyond reasonable doubt that Al-Bassam, as Head of News and Political
Programs, had the ability to remove the Episodes (the production of and decision to
broadcast being Ms. Khayat's responsibility) 244 from Al-Jadeed's website, which was
under the purview of Al Jadeed's online department. 245 Accordingly, the Judge held
that Al-Bassam could not be held liable for failing to remove the Episodes from the
website in violation of the 10 August 2012 Order. 246 The Judge correctly based his
findings primarily on the Agreed Facts and the Amicus' suspect interviews with Ms.
Khayat, Rami Al-Amin and Ibrahim Dsouki. 247
116. The Amicus fails to identify any error in the Judge's consideration of and conclusions
drawn from the relevant portions of the above-mentioned suspect interviews. Instead,
the Amicus focuses 248 on facts concerning: (i) the act of broadcasting the Episodes (to
be distinguished from the decision to broadcast which the Judge attributed to Ms.
Khayat); 249 (ii) Al-Bassam and Al-Jadeed's counsel, Ms. Habli, meeting and seeking
the advice of the President ofthe National Audiovisual Media Council, Mr. Mahfouz,
on 8 August 2012 250 following delivery of the Registrar's cease and desist letter dated
7 August 2012 ("Registrar's Letter"); 251 (iii) the act of broadcasting (again to be
distinguished from the content and decision to broadcast) on 8 August 2012 of Al-

248 Brief, paras. 121-127.
250 See Testimony of Mahfouz, Al-Jadeed, Transcript of 13 May 2015 (Tl2), ("Tl2"), p. 18, lines 15-19;
p.19, lines 16-22; p.29, lines 14-25; p.3 7, line 15 to p. 3 8, line 7; D00056.
251 P00056.
243
244
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Jadeed's preliminary response to the Registrar's Letter, 252 and on 9 August 2012 of
Al-Jadeed's formal response to said letter; 253 (iv) the alleged 'service' of the Order on
Al-Bassam on 14 August 2012; 254 and (v) Al-Bassam's forgery complaint filed in
October 2013 regarding the alleged service. 255
117. The Amicus has failed to demonstrate how the evidence it cites to, primarily
concerning Al-Bassam's connection to issues related to the physical broadcast of the
Episodes on television and alleged receipt of the 10 August 2012 Order, contradict
the above-mentioned relevant findings of the Judge concerning the ability/authority
of Al-Bassam to remove the Episodes from the Al-Jadeed website, let alone that the
Judge's finding was so unreasonable on the evidence that no reasonable Judge could
have reached the same conclusion.
118. Second, the Amicus claims that Al-Bassam did fall within the category of persons
whose conduct (if criminal) could engage the criminal liability of Al-Jadeed pursuant
to Article 210 LCC. The Amicus places great emphasis 256 on the fact that the English
translation of Al-Jadeed's 9 August 2012 official response ("Al-Jadeed Response") to
the Registrar's Letter states "that the news and political programs director, Mrs
Mariam El-Bassam, is the director of the company according to the Lebanese
laws". 257 The Amicus then cites to and quotes from 258 Article 28 of Lebanon's
Audisovisual Law No. 382, which mandates the appointment of a "news and political
programs director" for a television station broadcasting such programming. Such a
'director' (or 'manager'), self-evidently, is not a member of the board of directors
(see Article 29 of the law), and the law does not otherwise imply that such person is
generally empowered to represent, and to act on behalf and bind a corporation in the
manner required by Article 210 LCC.
252
Agreed Fact 13.

Agreed Fact 17.
254 See, e.g., P00080 and Defence Trial Brief, paras. 77-79.
255 See, e.g., Tl2, p. 133, lines 4-11.
257 P0007 4 (emphasis added).
258 Brief, fn. 199.
253
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119. The Amicus also references two Lebanese court decisions which it submits show that
"Al-Bassam can and has represented Al-Jadeed in multiple judicial proceedings". 259
However, these decisions make abundantly clear that Al-Bassam appeared in her
personal capacity as the aforementioned 'director' and that Al-Jadeed was
represented by the Chairman of the Board. 260
120. Relief requested: Accordingly, the Defence request the Appeals Panel to dismiss
Ground 19 and uphold Al-Jadeed's acquittals on both counts.
Ground 20 (Counts 2): "The Judge committed legal and factual error in finding that
M.Al-Bassam did not have the authority or ability to remove the broadcasts from AlJadeed's public platforms. (para.181)."
121. This ground of appeal, in substance, is virtually identical to the Amicus'

unsubstantiated claims under Ground 19. The Defence accordingly adopts in full and
by reference here its submissions above in response to the errors alleged by the
Amicus under Ground 19.
122. The Judge committed no errors, as alleged by the Amicus, 261 and certainly did not act
unreasonably, in finding that the Amicus failed to prove beyond reasonable doubt AlBassam's authority/ability to remove the Episodes from Al-Jadeed's online
platforms, which were under the purview of the online department. As submitted in
detail above, 262 the Judge determined that the production of and decision to broadcast
the Episodes were Ms. Khayat's sole responsibility, 263 based on the Agreed Facts and
the Amicus' suspect interviews with Ms. Khayat, Rami Al-Amin and Ibrahim
Dsouki. 264
123. Further, Al-Bassam was not Ms. Khayat's 'superior' as claimed by the Amicus, 265 but
instead, as noted by the Judge, citing to Ms. Khayat's suspect interview, they "were
Brief, para. 128 (citing D00134; D00136).
D00134.
261 Brief, paras. 132-137.
262 See supra paras. 114-119.
259
260
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at the same level in the company's structure". 266 The Amicus certainly did not lead
evidence to establish otherwise beyond reasonable doubt.
124. Relief requested: The Defence request the Appeals Panel to dismiss Ground 20 and
uphold Al-Jadeed's acquittals on both counts.
Ground 21 (Counts 1 and 2): "The Judge erred in law and fact in finding that
K.Khayat was a mere employee who had no authority to act for or represent Al-Jadeed
and required explicit authorization to act on Al-Jadeed's behalf. (paras. 70-72, 188-89)"
125. Under this Ground the Amicus appears to submit that because the Judge found that
Ms. Khayat had the ability to remove the Episodes without requiring 'explicit
company authorization', and in view of her ownership stake in Al-Jadeed, she was an
"important" manager, "no 'mere employee"', and accordingly, the Judge erred when
not attributing her alleged wrongful acts to Al-Jadeed. 267
126. The Amicus' submissions fundamentally misapprehend the scope and application of
Article 210 LCC. The relevant authority under consideration is not the power to act
within the legal entity, but the "authority to represent the company before third
parties". 268 Further, as noted above, the level at which a natural person sits within the
hierarchy of a legal entity, the fact that a natural person owns shares in a legal entity,
and/or that a natural person is related to the chairman of the board of directors 269 is
entirely irrelevant to the core issue of having the specific mandate and authority to
represent, act on behalf of, and bind the corporation. 270
127. The Amicus does not demonstrate that the Judge erred in this regard. The Amicus
merely advances his legal submissions on appeal as though he was arguing the case
de novo.
266
267
268
269
270

See Brief, para. 116.
See supra submissions paras. 108-111.
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128. Relief requested: The Defence thus requests the Appeals Panel to dismiss Ground 21
and uphold Al-Jadeed's acquittals on both counts.
Ground 22 (Counts 1 and 2): "The Judge committed legal and factual error in not
finding that the admitted evidence proved that the Accused "us[ed] the means provided
by such legal persons" in committing the charged crimes. (paras.177, 189-90)."
129. The Judge, self-evidently, did not have occasiOn to consider this alternative last
prong of the test under Article 210 LCC given the Judge's finding that the Amicus
failed to prove beyond reasonable doubt the earlier essential element that the natural
person "was a director, member of the administration, representative [ ... ] or an
employee/worker ([ ... ] provided with explicit authorization to act in" the
.
'
corporatiOn
s name " .271
130. Accordingly, and contrary to the Amicus' submission, 272 the Judge did not err by
failing (superfluously) to consider this element of corporate liability. The Defence
request the Appeals Panel to dismiss Ground 22.
IV. RELIEF REQUESTED
131. In light of all of the submissions herein, the Defence respectfully request the Appeals
Panel to dismiss each of the grounds of appeal, leave undisturbed the Judge's legal
and factual findings for acquitting Al-Jadeed on both counts and Ms. Khayat on
Count 1, and to uphold the acquittals of Al-Jadeed on both Counts and the acquittal
of Ms. Khayat on Count 1.
271
272

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Word Count: 17,204

Respectfully submitted on this 5th day of December 2015,
Karim A.A. Khan QC

Lead Counsel for Al Jadeed S.A.L. and Ms. Karma Mohamed Tahsin Al Khayat

Respond Brief To Amicus Appeal Brief en Web 04

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R000761

BEFORE THE APPEALS PANEL

Judge Ivana Hrdlickova, Presiding

Mr. Daryl Mundis

The Defence for AI Jadeed S.A.L.

IN THE CASE AGAINST

AL JADEED [CO.] S.A.L. I NEWT. V. S.A.L. (N. T.V.)

PUBLIC REDACTED VERSION OF "RESPONDENT'S BRIEF TO

Amicus Curiae Prosecutor:

Counsel for AI Jadeed S.A.L. & Karma Mohamed

Amicus was manifestly unable to prove its case at trial.

Case No. STL-14-05/A/AP

II. APPLICABLE LAW

Case No. STL-14-05/A/AP

For an alleged error of fact the standard of appellate review

must give a margin of deference to a finding offact reached by a Trial Chamber. It is

See, e.g., ICTY, Stakic, IT-97-24-A, Judgement, 22 March 2006, para. 8.

Case No. STL-14-05/A/AP

III. SUBMISSIONS ON AMICUS GROUNDS OF APPEAL

1. Amicus Grounds of Appeal1, 2 and 3: Actus reus for Count 1

Brief, Ground 1: "The Judge erred in law by requiring proof of an 'objective

Brief, paras. 25-33.

Case No. STL-14-05/A/AP

Like intimidation of or interference with a witness or potential witness, where

Judgment, paras. 40-42

Case No. STL-14-05/A/AP

15. The Judge's reasonmg cannot be faulted in any way.

The Judge: (i) thoroughly

Case No. STL-14-05/A/AP

Judgment, para. 45.

Case No. STL-14-05/A/AP

Margetic, para. 69 (emphasis added).

Case No. STL-14-05/A/AP

Case No. STL-14-05/A/AP

Brief, para. 30, final two sentences.

Case No. STL-14-05/A/AP

The freedom of expression enshrined in Article I 0, one of the fundamental pillars of a

Case No. STL-14-05/A/AP

Case No. STL-14-05/A/AP

Judgment, para. 108.

Case No. STL-14-05/A/AP

Judgment, para. 80.

Case No. STL-14-05/A/AP

2. Alleged errors of fact and evaluation of facts (Count 1 and 2)

if it was not specifically

corroborated by more direct or firsthand evidence, and in rejecting such evidence

Strugar, para. 14 (citations omitted).

Case No. STL-14-05/A/AP

Case No. STL-14-05/A/AP

x6 Brief, para. 54.

Pursuant to Rule 154", F0101, 2 March 2015.

Brief, para. 40 (citing Judgment, para. 45).

Case No. STL-14-05/A/AP

It is incumbent on the Trial Chamber to adopt an approach it considers most

a. Contrary to the Amicus' characterisation of Comeau's evidence 96 (the reliability,

Case No. STL-14-05/A/AP

See supra paras. 29, 36.

Case No. STL-14-05/A/AP

Case No. STL-14-05/A/AP

Furundiija, para. 37.

Brief, para. 64.

Case No. STL-14-05/A/AP

[REDACTED], his evidence became "two or three [REDACTED]" who had