On March 8, 2016 the appeals panel of the Special Tribunal for Lebanon (STL) reversed the contempt conviction of Karma Khayat, the deputy head of news of the television news station Al Jadeed, and upheld the acquittal of the station itself, in connection with the broadcast of information concerning the identity of confidential witnesses. See Special Tribunal for Lebanon, Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, Case STL-14-05/A/AP, Appeals Panel Judgment, 8 March 2016, 93. The STL had charged Ms. Khayat and Al Jadeed each with two counts of interfering with the tribunal’s administration of justice, one for the initial broadcast of the episodes in which journalists approached individuals Al Jadeed claimed to be confidential witnesses in the ongoing Ayyash et al. case concerning the assassination of former Lebanese prime minister Rafic Hariri, and a second count for their failure to remove the videos from the internet pursuant to the STL’s order, communicated by email. See STL, About the Contempt Cases. Because the defendants accused of responsibility for Mr. Hariri’s death are being prosecuted in absentia, Ms. Khayat is the first defendant to testify before the STL. [BBC]
After the appeals panel determined that the STL has jurisdiction to hear charges against “legal persons” (corporations) and sent the case back to the contempt judge, Judge Lettieri convicted Ms. Khayat on the second count and acquitted the news station on September 18, 2015. See STL, Al Jadeed [Co.] S.A.L./ New T.V. S.A.L. (N.T.V.) Karma Mohamed Tahsin Al Khayat, Case STL-14-05/T/CJ, Contempt Judge Judgment, 18 September 2015. The majority of the appeals panel reversed the conviction because there was insufficient evidence that Ms. Khayat had received and read the email ordering the videos be removed. Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, 8 March 2016, para. 170. While the defense initially argued that the contempt charge places freedom of expression at risk, the STL has maintained that free expression is not an absolute right and it must yield to court orders for the protection of witnesses. [Washington Post] Although the appeals panel adhered to its earlier decision that the STL does have jurisdiction to criminally prosecute legal persons, it nonetheless confirmed Al Jadeed’s acquittal because there was insufficient evidence to prove the objective likelihood of the public’s lack of confidence and Judge Lettieri did not err in relying on and applying Lebanese law on corporate responsibility. Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, 8 March 2016, paras. 102, 107, 196, 203-205.
The Contempt Charges
On January 31, 2014, the STL charged Ms. Khayat and Al Jadeed with contempt and with knowingly and willfully interfering with the administration of justice, pursuant to Rule 60 bis (A) of its Rules of Procedure and Evidence, which permits the STL to hold in contempt persons who knowingly and willfully interfere with its proceedings. See STL, About the Contempt Cases.
The defense challenged Ms. Khayat’s conviction based on two key findings of the contempt court: that the episodes were available online after August 10, 2012, the date the court order was emailed, and that Ms. Khayat had the necessary mental state, or mens rea, of knowledge or willful blindness. See Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, 8 March 2016, para. 109. While it found that the videos were available online after the court order was sent, the appeals panel questioned whether Ms. Khayat willfully ignored the court’s order. It applied the principle that when relying on circumstantial evidence to prove an element of the offense by inference, as was done in this case, that inference must be the only reasonable conclusion the court can draw from the available evidence. Id. at para. 167. On appeal, the judges rejected the contempt court’s finding that either Ms. Khayat read the e-mail or received it and chose to ignore it to avoid actual knowledge. The appeals panel held that other possible inferences could be drawn, such as the email being labeled “junk mail” and thus going unnoticed by Ms. Khayat. Id. at para. 168. Thus, the mens rea element of the offense was not met, and the appeals panel reversed the conviction. Id. at para. 173.
For its part, the amicus curiae prosecutor (amicus) argued that the contempt court erred in acquitting both defendants on count one because its application of the legal test was flawed. For count one, that the defendants interfered with the trial because they compromised confidentiality by airing the TV shows, Judge Lettieri determined it required an objective likelihood that the broadcast would affect public confidence in the Tribunal, producing actual harm. See Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, 8 March 2016, paras. 25, 35, and 40. The appeals panel held that the amicus failed to prove that the contempt court had made errors in applying the legal test. Id. at paras. 31, 39, and 42. The contempt court, according to the judgment, did not err in holding that the evidence presented lacked probative value sufficient for a finding that public confidence was affected. Id. at para. 73.
Jurisdiction over Legal Persons
In the original hearing, Judge Lettieri held that the Tribunal lacked jurisdiction over “legal persons”, such as Al Jadeed; however, the three-judge appeals panel overruled this determination, finding that customary international law, international human rights law, and the Lebanese Code of Criminal Procedure support an interpretation of “person” to include “legal persons.” See Al Jadeed [Co.] S.A.L./ New T.V. S.A.L. (N.T.V.) Karma Mohamed Tahsin Al Khayat, 18 September 2015, para. 21. This ruling will set a precedent for another contempt trial with similar charges brought against another news source, Akhbar Beirut, which opened in February 2016. See STL, Q & As on the Contempt Cases before the Special Tribunal for Lebanon.
The STL was established as an internationalized criminal tribunal, by agreement between the UN and the Lebanese government, in 2009. The STL’s mandate is limited to prosecuting the individuals accused of carrying out the February 14, 2005 bombing in Beirut that killed two people including the former prime minister, and other attacks committed between October 1, 2004 and December 12, 2005 that are “connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005.” See UN Security Council, Resolution 1757 (2007), Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, UN Doc. S/RES/1757 (2007), 30 May 2007, Annex, art. 1 .