2013 - Casebook

Special Tribunal for Lebanon
TRIBUNAL SPCIAL POUR LE LIBAN
STL CASEBOOK
2013
Major rulings issued by the
STL
STL CASEBOOK 2013
STL CASEBOOK
2013
Major rulings issued by the

Leidschendam

Leidschendam
Netherlands
2014 Special Tribunal for Lebanon
Documents published in this book do not constitute the official record of the Special Tribunal for
Lebanon and are intended for public information only.
ISBN 978-94-90651-11-4
Printed in The Netherlands
Table of Contents
Preface
1. The Prosecutor v. Ayyash et al., Pre-Trial Judge,

Order on the Defence Request to Compel Disclosure of the Lebanese
Investigative Case Files,
Case No.: STL-11-01/PT/PTJ, 8 February 2013
(Disclosure of Lebanese Case File PTJ)

Decision relating to the Defence Motion to Vacate the Date for the Start of
Trial,
(Vacating Trial Date PTJ)
23
3. In the Matter of El Sayed, Appeals Chamber,

Public redacted version of Decision on Appeal by the Prosecutor against PreTrial Judges Decision of 11 January 2013, Dated 28 March 2013,
Case No.: CH/AC/2013/01, 28 March 2013
(Disclosure of Documents AC)
35
4. The Prosecutor v. Ayyash et al., Appeals Chamber,

Decision on Appeal by Legal Representative of Victims against Pre-Trial
Judges Decision on Protective Measures,
Case No.: STL-11-01/PT/AC/AR126.3, 10 April 2013
(Total Anonymity of Victims AC, Total Anonymity of Victims AC
(Concurring Opinion of Judge Baragwanath), Total Anonymity of Victims
AC (Partially Dissenting Opinion of Judges Riachy and Nsereko))
55

Decision Relating to the Prosecution Requests of 8 November 2012 and
6 February 2013 for the Filing of an Amended Indictment,
Case No.: STL-11-01/PT/PTJ, 12 April 2013
(Leave to Amend Indictment PTJ)
99
6. The Prosecutor v. Ayyash et al., Trial Chamber,

Decision on Compliance with the Practice Direction for the Admissibility of
Witness Statements under Rule 155,
Case No.: STL-11-01/PT/TC, 30 May 2013
(Admissibility of Witness Statements TC)
119
7. The Prosecutor v. Ayyash et al., Trial Chamber,

Decision on Alleged Defects in the Form of the Amended Indictment of
21 June 2013,
Case No.: STL-11-01/PT/TC, 13 September 2013
(Defects in Form of Indictment TC)
135

Public redacted version of 19 September 2013 Decision on Appeal by
Counsel for Mr Oneissi against Pre-Trial Judges Decision on Issues Related
to the Inspection Room and Call Data Records,
Case No.: STL-11-01/PT/AC/AR126.4, 2 October 2013
(Inspection of Call Data Records AC)
157
9. The Prosecutor v. Ayyash et al., President,

Decision on Defence Motion for Reconsideration and Rescission of Order
Composing the Trial Chamber,
Case No.: STL-11-01/PT/PRES, 4 October 2013
(Composition of the Trial Chamber PRES)
183
10. The Prosecutor v. Merhi, Pre-Trial Judge,

Public Redacted Version of the Decision Relating to the Examination of the
Indictment of 5 June 2013 issued against Mr Hassan Habib Merhi dated
31 July 2013
Case No.: STL-13-04/I/PTJ, 11 October 2013
(Indictment of Mr Merhi PTJ)
193

Decision on Application by Counsel for Messrs Badreddine and Oneissi
against Presidents Order on Composition of the Trial Chamber of
10 September 2013
Case No.: STL-11-01/PT/AC, 25 October 2013
(Challenging Decision of the President AC)
229

Decision on Request by Counsel for Messrs Badreddine and Oneissi for
Reconsideration of the Appeals Chambers Decision of 25 October 2013
Case No.: STL-11-01/PT/AC, 10 December 2013
(Reconsideration of a Decision AC)
239
253
14. The Prosecutor v. Merhi, Pre-Trial Judge,
333
Index
381
Redacted Version of the Corrected Version of the Pre-Trial Judges Report

Prepared pursuant to Rule 95(A) of the Rules of Procedure and Evidence
Case No.: STL-11-01/PT/PTJ, 11 December 2013
(Pre-Trial Report PTJ)
Decision to Hold Trial in Absentia
Case No.: STL-13-04/I/TC, 20 December 2013
(Trial in Absentia TC)
PREFACE
This casebook is part of a collection of volumes that the Special Tribunal for Lebanon
plans to publish throughout its life, containing the most significant rulings delivered
by its Judges each year. It is part of the outreach efforts of the Tribunal. Its purpose
is to improve access to the jurisprudence of the Tribunal in Lebanon and beyond.
This volume contains fourteen major decisions issued by the Tribunal in 2013.
These decisions are also accessible on the Tribunals website (www.stl-tsl.org). The
volume also contains an analytical index aimed at facilitating research by students
and scholars.
As the first tribunal of international character with jurisdiction over terrorism, the
significance of the STL jurisprudence goes well beyond our courtroom. I hope that
this publication will assist students, professors, academics, scholars, judges, lawyers,
other members of the legal profession and even the general public both in Lebanon
and elsewhere in accessing, studying, and commenting on the Tribunals case law.
David Baragwanath
President
1.
Case name:
The Prosecutor v. Ayyash et al.
Before:
Pre-Trial Judge
Title:
Order on the Defence Request to Compel

Disclosure of the Lebanese Investigative Case
Files
Short title:
Disclosure of Lebanese Case File PTJ
10
THE PRE-TRIAL JUDGE

Case No.:
STL-11-01/PT/PTJ
Before:
Judge Daniel Fransen
Registrar:
Mr Herman von Hebel
Date:
8 February 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
MUSTAFA AMINE BADREDDINE
HUSSEIN HASSAN ONEISSI
ASSAD HASSAN SABRA
ORDER ON THE DEFENCE REQUEST TO COMPEL DISCLOSURE

OF THE LEBANESE INVESTIGATIVE CASE FILES
Office of the Prosecutor:
Mr Norman Farrell
Counsel for Mr Salim Jamil Ayyash:

Mr Eugene OSullivan
Legal Representative of Victims:

Mr Peter Haynes
Counsel for Mr Mustafa Amine Badreddine:

Mr Antoine Korkmaz
Counsel for Mr Hussein Hassan Oneissi:
Mr Vincent Courcelle-Labrousse
Counsel for Mr Assad Hassan Sabra:
Mr David Young
11
I. Introduction
1.
By way of this order, the Pre-Trial Judge decides upon the 6 December 2012
request (the Request)1 by Counsel for Mr. Oneissi (the Oneissi Defence), joined
in all respects by the respective Counsel for Mr. Ayyash, Mr. Badreddine, and Mr.
Sabra (collectively, the Defence), to receive the entirety of the Lebanese case files,
as compiled by the Lebanese Investigative Judges in the case dealing with the attack
against Prime Minister Rafiq Hariri and others (the Lebanese Case File and the
Hariri case ).
II.
Procedural background
2.
On 6 December 2012, the Oneissi Defence filed the Request pursuant to
Rule110(B) of the Rules of Procedure and Evidence (the Rules), asking the PreTrial Judge to order the Prosecution to disclose to the Defence the entirety of the
Lebanese Case File in the form that it was received.2
3.
On 10 December 2012, Counsel for Mr. Ayyash3 and Counsel for Mr.
Badreddine4 joined the Request. Additionally, on 11 December 2012, Counsel for
Mr. Sabra5 joined the Request.
4.
On 19 December 2012, the Prosecution filed its response, asking that the PreTrial Judge dismiss the Request (the Response).6
1 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Requte de la Dfense de M. Hussein
Hassan Oneissi visant obtenir les dossiers des juges dinstruction libanais, 6 December 2012.
2
Id., para. 30.
3 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Ayyash Joinder in Requte de la Dfense
de M. Hussein Hassan Oneissi visant obtenir les dossiers des juges dinstruction libanais, 10 December
2012.
4 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Adjonction de la Dfense de M. Mustafa
Amine Badreddine la Requte de la Dfense de M. Hussein Hassan Oneissi visant obtenir les dossiers des
juges dinstruction libanais, 10 December 2012.
5 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Sabra Joinder in Requte de la Dfense de
M. Hussein Hassan Oneissi visant obtenir les dossiers des juges dinstruction libanais, 11 December 2012.
6 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Response to the Defence
Request for an Order to Compel Disclosure of the Lebanese Investigative Case Files, 19 December 2012.
12
5.
On 29 January 2013, the Oneissi Defence submitted a supplementary filing
reiterating the initial disclosure request and adding that the method of disclosure
ought to be via Legal Workflow (the Supplementary Filing).7 The Oneissi Defence
further requested that the PreTrial Judge take note that the Prosecutions disclosure
to date of parts the Lebanese Case File was conducted in a disorganised, inefficient
and incomprehensible manner, rendering it insufficient and unacceptable.8
a.
The Request
6.
The Defence submits two main arguments in support of the Request, the first
relating to a restrictive interpretation of Rule 111,9 and the second dealing with the
rights of the accused under Lebanese criminal procedure.10
7.
The Defence reads Rule 111 as creating a disclosure exemption limited
to internal documents produced by the Prosecution or by the United Nations
International Independent Investigation Commission (UNIIIC).11 As such, the
Defence argues that any documents produced by the Lebanese Investigative Judges
cannot fall within the ambit of this rule.12
8.
Furthermore, should the Lebanese Case File contain any UNIIIC documents,
the Defence submits that they should be disclosed13 despite the 19July 2011 decision
by the Appeals Chamber in the El Sayed case (Appeals Chamber Decision),14
7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Requte suppltive la Requte de la
Dfense de M. Hussein Hassan Oneissi aux fins dobtenir les dossiers des juges dinstruction libanais,
confidential, 29January 2013 with a public redacted version of the same date.
8
Id., para. 26.
9 Rule 111 provides: Reports, memoranda, or other internal documents prepared by a Party, its assistants or
representatives in connection with the investigation or preparation of a case are not subject to disclosure or
notification under the Rules. For purposes of the Prosecutor, this includes reports, memoranda, or other internal
documents prepared by the UNIIIC or its assistants or representatives in connection with its investigative work.
10 Request, para. 1.
11 Id., para. 14.
12 Id., para. 16.
13 The Defence distinguishes between UNIIIC documents dated prior to 16June 2005, arguing that these documents
must be disclosed because they were created before the UNIIIC became fully operational. Id., para.19.
14 STL, In the matter of El Sayed, Case No. CH/AC/2011/01, Decision on Partial Appeal by Mr.ElSayed of Pre-
13
which specifies three categories of UNIIIC documents as being exempt from

disclosure under Rule 111.15 The Defence argues that the context of the present
case is distinguishable from that of the ElSayed case. Firstly, the four accused in
the current proceedings are procedurally distinct from Mr. El Sayed, who was not
charged by the Tribunal. Secondly, the Appeals Chamber Decision relied on case
law where the accused were present, whereas the in absentia nature of the present
proceedings renders access to documents essential.16
9.
Finally, the Defence submits that the Lebanese Code of Criminal Procedure
allows the accused access to the information collected by judges or police in relation
to the charges laid against them.17 As Lebanese citizens, the accused before the
Tribunal cannot be deprived of rights that they are entitled to under their national
jurisdiction.18
b.
The Response
10. The Prosecution submits that the Request is unnecessary19 since the Prosecution
intends to disclose the relevant20 documents, and that the Rules do not provide
for the relief requested.21 The Prosecution argues that Rule 110(B), upon which the
Request relies, provides for inspection of documents material to the preparation of
the Defence, not disclosure thereof.22 In addition, the Prosecution submits that it
is incumbent upon the Defence to establish the relevance of the specific documents
sought within the Lebanese Case File, as opposed to relying on a blanket request.23
Trial Judges Decision of 12 May 2011, 19July 2011.
15 Id., paras 92-96; See also Request para. 20, listing the three categories as: i) correspondence between the
UNIIIC and the Lebanese authorities, ii) internal memoranda of the UNIIIC, and iii) investigators notes.
16 Request, paras 20-21.
17 Id., para. 22.
18 Id., para. 23.
19 Response, para. 12.
20 Id., para. 2.
21 Id., paras 13-16.
22 Id., para. 13.
23 Id., para. 16.
14
11. Moreover, the Prosecution contends that the Defence arguments in relation to
Rule111 are without merit, that the rule applies in the present case and effectively
bars disclosure of certain material found in the Lebanese Case File.24 In accordance
with the holding of the Appeals Chamber Decision, the Prosecution submits that
internal UNIIIC material, even as possessed by the Lebanese authorities and as
contained in the Lebanese case files, is not subject to disclosure under Rule111.25
12. Finally, the Prosecution responds to the Defence arguments relating to Lebanese
criminal procedure by stating that they are inapposite and recalling that domestic
and international legal regimes are distinct, and provide different mechanisms to
ensure the fundamental rights of the accused.26
III. Discussion
a.
The Supplementary filing
13. The Pre-Trial Judge notes that the time period allotted for filing a response to
the Supplementary Filing has not elapsed and he will therefore, in this decision, only
rule on the Request.
b.
Defence access to the entirety of the Lebanese Case File
14. The Pre-Trial Judge notes that the legal characterisation of the Lebanese Case
File will determine whether the Defence should be granted access to it. In order to
properly categorise its nature, the Pre-Trial Judge considers it necessary to recall the
procedure by which the Lebanese Case File was transferred to the Prosecution:

- on 1 March 2009, the Tribunal began its operations and the Prosecutor
assumed office. On 27 March 2009, upon request of the Prosecutor, the Pre-Trial
Judge directed the Lebanese authorities seised of the Hariri case to defer to the
Tribunals competence and to thereby hand over to the Prosecution the results of the
24 Id., paras 17-22.
25 Id., para. 19.
26 Id., para. 20.
15
investigations, a copy of the relevant court records, and other probative material (the
Order of 27 March 2009);27

- on 7April 2009, in execution of the Order of 27 March 2009, the Lebanese
authorities agreed to provide the Tribunal with the Lebanese Case File;28

- on 10April 2009, the Pre-Trial Judge received the Lebanese Case File at the
Tribunal and immediately consigned it to the Office of the Prosecution (OTP).
15. The Pre-Trial Judge notes that the transfer to the Prosecution of investigations
and other material relevant for the Hariri case is in accordance with Article 4(2) of
the Statute and Rule17(A). The Prosecution is therefore expected to be in possession
of material produced by Lebanese investigative authorities who dealt with the Hariri
case prior to the Tribunal being bestowed exclusive jurisdiction over the matter. The
Pre-Trial Judge therefore considers it reasonable that the Defence seek access to
these documents by requesting them directly from the Prosecution.
16. Despite the Prosecutions submission that the Lebanese Case File is a
collection of large evidentiary holdings and not a distinct dossier,29 the Pre-Trial
Judge finds that the material contained therein can nevertheless be categorised as the
file or dossier received from the Lebanese authorities following a deferral order.
Indeed, in a 15 April 2009 letter to the Pre-Trial Judge, the Prosecution notes that it
received 253 files from the Lebanese authorities on 10 April 2009, in response to the
Order of 27 March 2009. He adds that the Lebanese Case File included an envelope
containing a copy of detailed lists of the content of the 253files,30 thereby serving as
an index to the entire dossier.
27 STL, CH/PTJ/2009/01, Order Directing the Lebanese Judicial Authority Seized with the Case of the Attack
Against Prime Minister Rafiq Hariri and Others to Defer to the Special Tribunal for Lebanon, 27 March 2009,
para.19.
28 . See Judicial Council of Lebanon, Conseil Judiciaire 2005/No. 3/Juge dInstruction Judiciaire, A lAttention
du Juge de la Mise en Etat Auprs du Tribunal Spcial Pour Le Liban M. Daniel Fransen 7April 2009
(Judicial Council of Lebanon Decision).
30 Letter from Prosecutor D.A. Bellemare to Pre-Trial Judge, Transmis au Juge de la mise en tat du Tribunal
spcial pour le Liban, 15 April 2009, para. 2: une enveloppe contenant, selon les mmes autorits libanaises,
une copie de toutes les listes dtailles du contenu des 253 dossiers.
16
17. In contrast to the Prosecutions file, the Lebanese Case File is essentially
an investigative file consisting of material gathered and recorded by Lebanese
Investigative Judges in establishing the truth,31 and thereby proving the guilt or
innocence of the accused. As such, the material it contains would fall under the
disclosure regimes of Rules110 and/or113. The Pre-Trial Judge therefore finds that
the Defence has a right to access all the documents and material consisting of the
Lebanese Case File, as received by the Tribunal on 10April 2009.
18. The Pre-Trial Judge agrees with the Prosecution that the Defence must establish
that the documents sought, pursuant to Rule 110(B), are material for the preparation
of its case. However, in the present case, the Pre-Trial Judge finds its relevance
evident since the Lebanese Case File contains the product of the investigations
carried out by Lebanese authorities with respect to the Hariri case.
19. Finally, the Pre-Trial Judge notes that the Prosecution agrees that it must
disclose or make available for inspection any relevant documents contained in the
Lebanese Case File that fall within the scope of Rules 110(B) and/or 113.32 Indeed,
the Prosecution has already sent the Defence a spreadsheet listing these relevant
documents and providing a brief summary of their content.33 Therefore, the matter
in dispute between the Parties is exclusively with respect to disclosure of documents
that the Prosecution considered irrelevant and therefore not needing to be disclosed
under Rules 110 and/or 113.
20. The Pre-Trial Judge takes note of the Prosecution having already disclosed
much of the material contained in the Lebanese Case File, and hereby orders that all
the remaining material be disclosed. Accordingly, the Prosecution should also update
the spreadsheet it sent the Defence to include the pertinent information (evidence
record number, title, brief summary) for all the documents contained in the Lebanese
Case File.
31 See Article 61 of Lebanese New Code of Criminal Procedure.

33 Ibid.
17
c.
Application of Rule 111 to the Lebanese Case File
21. The Pre-Trial Judge disagrees with the Defence submission that the present
case should be distinguished from the El Sayed case because the four accused in
the former case have been charged by the Tribunal and are therefore procedurally
distinct from Mr. El Sayed. The Pre-Trial Judge recalls that Rule 111 specifically
creates an exception to the accuseds general right to access relevant information in
preparing his defence. Indeed, Rule 111 aims to protect information related to the
internal preparation of a case34 in order to, inter alia, enable the Prosecution and the
UNIIIC to effectively conduct investigations while still being observant of the rights
of the accused.
22. The Pre-Trial Judge also disagrees with the Defence argument that the in
absentia nature of the current proceedings makes it essential for the Defence to have
access to documents, and therefore Rule 111 should not apply. The Pre-Trial Judge
recalls that access to information is also of primordial importance in cases where the
accused are present, as evidenced by the importance placed on disclosure. Indeed,
Rule 111 is unaffected by the presence or absence of the accused since the basis
justifying its application relates to maintaining the confidentiality of internal work
product gathered by the Parties in the preparation of their respective cases.
23. As noted in the Appeals Chamber Decision, the Pre-Trial Judge recalls that
Rule111 excludes from disclosure internal documents prepared either by a Party
or by the UNIIIC.35 Therefore, the first criterion for exclusion is that the documents
in question be internal documents.36
24. The Pre-Trial Judge further recalls that whether documents are characterised
as internal will depend not only on the content of the documents in question, their
function and purpose, as well as their source or author,37 but also on whether there has
34 Appeals Chamber Decision, para. 81, citing ICTY, Blagojevi et aI., Decision on Vidoje Blagojevis Expedited
Motion to Compel the Prosecution to Disclose Its Notes from Plea Discussions with the Accused Nikoli and
Request for an Expedited Open Session Hearing, IT-02-60-T, 13 June 2003, at p. 6.
35 Appeals Chamber Decision, para. 77.
36 Otherwise known as internal work product. Id., para. 79.
37 Appeals Chamber Decision, para. 72; ICC. Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Public Redacted
18
been outside interference. For instance, a note made by a member of the Prosecution
will lose its privileged status if it is put to a witness38 or if it is disclosed to a party
outside the OTP.39 Similarly, as stated by the Appeals Chamber, correspondence sent
to counsel for Mr.ElSayed or operative documents addressed to external actors
cannot be classified as internal documents because they are not purely internal.40
25. Indeed, the purpose of Rule 111 is predominantly to allow uninhibited
discussion among those representing one Party when considering what decisions to
make. [...] The major focus of Rule 111 material is on opinion.41 This discussion is
not commonly included in a court file, which is expected to be transmitted to all the
Parties.
26. The Lebanese Case File was compiled by Investigative Judges and contains
the results of the investigation and a copy of the courts records regarding the Hariri
case42. As such, the Lebanese Case File is to be considered as an indivisible file
which contains the information submitted for review to the Lebanese Investigative
Judges dealing with the Hariri case, and which could be accessed by the Parties.
27. The Pre-Trial Judge therefore finds that, unless the Lebanese Investigative
Judges compiling the file inadvertently included confidential material, none of the
documents contained in the Lebanese Case File are protected under Rule 111.
Version of Decision on the Defence Request for Disclosure of Pre-Interview Assessments and the Consequences
of Non-Disclosure, 9 April 2010, para. 35.
38 ICTR, The Prosecutor v. Niyitegeka, Case No ICTR-96-14-A, Appeals Judgment, 9 July 2004, para. 34.
39 ICTR, The Prosecutor v. Karemera, Case No ICTR-98-44-T, Decision on Joseph Nziroreras Motion for
Selective Prosecution Documents, 30 September 2009, para.10.
40 Appeals Chamber Decision, para. 108 [emphasis in original].
41 Id., para. 100 [emphasis in original].
42 Order of 27 March 2009, Disposition [emphasis in original]. See also Judicial Council of Lebanon Decision,
para.2 of Disposition: copie de tous les lments de linstruction ainsi quune copie du dossier de mme que
tous les documents et objets saisis.
19
d.
Inspection versus Disclosure of the Lebanese Case File
28. The Pre-Trial Judge takes note of the Prosecutions position that Rule110(B)
provides for inspection, not disclosure.43 However, the Pre-Trial Judge
emphasises that a liberal understanding of disclosure encompasses both providing
copies of documents and permitting their inspection. In this case, to disclose the
Lebanese Case File through inspection would be impractical and contrary to common
sense, notably when considering the volume of file and the fact that most documents
are in Arabic.
29. Furthermore, the Pre-Trial Judge has already found that the Lebanese Case
File, as compiled by the Lebanese Investigative Judges, should be treated as an
integral, indivisible whole, and it should therefore be disclosed as such. The updated
version of the Prosecutions spreadsheet listing all the material found within the
Lebanese Case File can serve as an index for disclosure purposes.
20
FOR THESE REASONS,

THE PRE-TRIAL JUDGE,
PURSUANT TO Rules 77(A), 89(B) and 110(B)
GRANTS the Request; and
ORDERS the Prosecution to disclose to the Defence the entirety of the Lebanese
Case File as it was received by the Tribunal, save for any confidential material that
may have been inadvertently included in the file by the Lebanese Investigative
Judges, along with an index of all the material contained therein.
Done in Arabic, English and French, the English version being authoritative.
Leidschendam, 8 February 2013
Daniel Fransen
Pre-Trial Judge
21
22
2.
Case name:
Before:
Pre-Trial Judge
Title:
Decision relating to the Defence Motion to

Vacate the Date for the Start of Trial
Short title:
Vacating Trial Date PTJ
23
24
THE PRE-TRIAL JUDGE

Case No.:
STL-11-01/PT/PTJ
Before:
Registrar:
Mr Herman von Hebel
Date:
21 February 2013
Original language:
French
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION RELATING TO THE DEFENCE MOTION TO VACATE THE

DATE FOR THE START OF TRIAL

Mr Norman Farrell

Mr Eugene OSullivan

Mr Peter Haynes

Mr Antoine Korkmaz
Mr David Young
25
I.
Subject of the decision
1.
By way of the present decision, the Pre-Trial Judge rules on the request of
23January 2013 from the Defence for Mr Salim Jamil Ayyash, Mr Mustafa Amine
Badreddine, Mr Hussein Hassan Oneissi and Mr Assad Hassan Sabra (the Defence
and the Accused) to postpone the date for the start of trial in accordance with
Rule91(C) of the Rules of Procedure and Evidence (the Rules and the Motion).1
II.
2.
On 28June 2011, the Pre-Trial Judge issued a decision relating to the
indictment of 10 June 2011 drawn up by the Prosecutor. Pursuant to that decision, the
Accused were indicted in relation to the attack of 14February 2005 which resulted in
the death of Mr Rafic Hariri and others, and caused injury to other persons.2
3.
On 19 July 2012, the Pre-Trial Judge set the tentative date for the start of trial
at 25 March 2013, in light, in particular, of his consultation with the Parties during
the Status Conference of 12 June 2012, as well as with the President of the Tribunal,
with the Presiding Judge of the Trial Chamber and with the Registrar (the Order
Setting the Date of Trial).3
4.
On 25 October 2012, in accordance with Rule 91 (A) of the Rules, the PreTrial Judge established a working plan determining the obligations of the Parties and
of the participants in the proceedings with a view to the start of trial on 25 March
2013 (the Working Plan).4
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Joint Defence Motion to Vacate Tentative
Date for Start of Trial, confidential, 23 January 2013. A public redacted version was filed on 24 January 2013.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Decision Relating to the Examination of the
Indictment of 10 June 2011 Issued Against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein
Hassan Oneissi & Mr Assad Hassan Sabra, 28 June 2011.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order Setting a Tentative Date for the Start
of Trial Proceedings, 19 July 2012, Disposition (Order Setting the Date of Trial).
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order on a Working Plan and on the Joint
Defence Motion Regarding Trial Preparation, 25 October 2012 (Order on a Working Plan).
26
5.
On 23 January 2013, the Defence sought the postponement of the date of the
trial in accordance with Article 16 of the Statute and Rules 69 and 77 (A) of the
Rules.5
6.
On 29 January 2013, the Prosecution responded to the Motion (the
Response).6
7.
On 30 January 2013, the Parties were heard with regard to the Motion during
a Status Conference.
8.
On 15 February 2013, in accordance with the instructions given by the PreTrial Judge during the Status Conference of 30 January 2013, the Prosecution filed a
notice regarding the fulfillment of its disclosure obligations (the Notice).7
III. Arguments of the Parties
A.
The Motion
9.
The Defence seeks the postponement of the date for the start of trial for,
among others, the following reasons: the incomplete disclosure of documents by
the Prosecution, the volume of evidentiary materials disclosed, the size of the
Prosecution file, the shortcomings of the Prosecutions pre-trial brief, the technical
and translation issues relating to the documents disclosed, the non-cooperation by
the Lebanese authorities, the impact of the possible need for the Defence to have to
prepare for allegations of a deliberate line of conduct of the Accused and the absence
of the Accused. The Defence considers that together these factors have contributed to
restricting its ability to conduct its investigations and prepare for trial. It deems that
Motion, para. 1.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Response to Joint Defence
Motion to Vacate Tentative Date for Start of Trial, confidential, 29 January 2013, with a public redacted version
of the same date.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecutions Notice Regarding Disclosure,
confidential, 15 February 2013. The Prosecution filed a public redacted version of the Notice on 18 February
2013.
27
the date of 25 March 2013 is neither realistic nor reasonable and that the Prosecution
itself should have sought the postponement of the start of trial.8
10. In concrete terms, the Defence submits that the Prosecution still has to disclose
to it approximately 200 documents in accordance with Rule 91 of the Rules, 85
documents being the subject of a Prosecution request to amend its list of exhibits
and others, including some expert reports, which are conditional upon pending
requests for witness protection.9 The Defence states that the Prosecutor has failed in
the disclosure obligations incumbent upon him pursuant to Rule110 (A) (ii) of the
Rules with respect to a number of witnesses.10 It states that the disclosure relating to
the expert witnesses is incomplete and is having a serious impact on its preparation
and the work of its own experts.11 The Defence recalls that the Prosecutor also failed
to meet his obligations with regard to Rule110 (B) of the Rules, as indicated by
the requests for intervention that it made to the Pre-Trial Judge.12 It also states that
the disclosure of documents in accordance with Rule113 of the Rules has been
extremely tardy and is not yet complete.13
11. With regard to the volume of the documents disclosed as of 22 January 2013,
the Defence states that it has received 86,236 documents, amounting to approximately
469,000 pages, of which 92% were only disclosed after 13 November 2012.14 It
adds that it has experienced some technical difficulties to access and understand the
documents, as well as difficulties related to the lack of translation of some of them.15
The Defence reports other difficulties in connection with the Lebanese investigative
file, including in particular the lack of an index for the documents disclosed by way
Motion, paras 1 and 2.
Id., para. 17.
10 Id., para. 19.

11 Id., paras 20 and 21.
12 Id,, para. 22.
13 Id., para. 23.
14 Id., paras 25-28.
15 Id., paras 32 et seq.
28
of the Z drive in that respect.16 It recalls that the Prosecution witness list comprises
557 witnesses, including 128experts, and that the list of exhibits comprises 13,173
items.17
12. Given the number of matters still outstanding, the Defence considers that it
is not able to propose a new date for the trial. It considers that the Pre-Trial Judge
should not set a new date before the Prosecution has met its disclosure obligations
and the Lebanese authorities have responded to their requests for cooperation.18
B.
The Response
13. According to the Prosecution, the following factors identified by the Defence
could justify postponing the date of the trial: the incomplete disclosure of the
documents, the volume of evidence disclosed, the scale of the case, as well as
the technical and translation issues relating to the disclosures.19 Nevertheless, the
Prosecution contests the assertion that it bears the entire responsibility for the delay
in the proceedings and that it should itself have sought a postponement.20 It considers
that it filed its pre-trial brief, the witness list and the list of exhibits in conformity
with Rule91 (G) (ii)21 of the Rules.
14. The Prosecution states that it intends to expand access for the Defence to
the call data records in the inspection room and that it is consulting with various
organs to find a solution for the documents the Defence is still unable to access
on the Z drive. It nevertheless considers that it has no obligation to provide an
organisational system of the Z drive along with the disclosures it makes.22
16 Id., para. 42.

17 Id., para. 30.
19 Response, paras 1 and 2.
21 Id., para. 11 et seq.
22 Id., paras 16-18.
29
C.
The Notice
15. The Prosecution emphasises the following points: with the exception of two
expert reports, one addendum and supporting material for expert reports, all the
documents referred to in Rule 91 (G) (iii) of the Rules have been disclosed;23 the
documents referred to in Rules 110 (A) (i) and 88 of the Rules have been disclosed
since June 2012;24 with the exception of a number of witness statements which are
the subject of a request filed before the Pre-Trial Judge, all the documents referred to
in Rule 110 (A) (ii) of the Rules have been disclosed;25 due to technical difficulties,
some documents will be made available for inspection in accordance with

Rule 110 (B) of the Rules only from 11 March 2013;26 the disclosure of all
the exculpatory evidence (Rule113 of the Rules) should be finalised on 17
June 2013 instead of 11 March 2013 due to the nature of the research the
Prosecution has to conduct.27
IV.
Applicable law
16.
Rule 91 (C) of the Rules, applicable in the case at hand, provides as follows:
The Pre-Trial Judge, in consultation with the Parties, the Registrar, the
Presiding Judge of the Trial Chamber and, if necessary, the President, shall
set a tentative date for the start of trial proceedings at least four months prior
to that date.
17. In order to rule on a request for postponement of the trial, the case law of the
ad hoc tribunals prescribes that, having been seized, a chamber examines whether
the interests of justice justify such a request.28
23 Notice, para. 5.
24 Id., para. 6.
25 Id., para. 7.
26 Id., paras 8-13.
27 Id., paras 14-20.
28 ICTY, The Prosecutor v. Jovica Stanii and Franko Simatovi, Case No. IT-03-69-T, Reasons for Decision
Partially Granting the Simatovi Defence Urgent Request for Adjournment, 17 April 2012.
30
V.
Statement of reasons
18. On 19 July 2012, the Pre-Trial Judge decided, in the interests of justice, to set
the tentative date for the start of trial for 25 March 2013. He set that date as early as
possible so that the Parties and the other participants in the proceedings would be
able to anticipate future deadlines and better prepare their case.29 That decision was
in response to the obligation of the Pre-Trial Judge to ensure that the proceedings
are not unjustifiably delayed in any way, in particular by imposing any measures
necessary for the case to be ready for a fair and expeditious trial.30
19. In order to determine the tentative date for the start of trial on 25 March 2013
and the Working Plan that followed, the Pre-Trial Judge took several factors into
consideration, and in particular Article 16 (4) (b) of the Statute, which provides that
the accused has the right [t]o have adequate time and facilities for the preparation of
his or her defence.31 The Pre-Trial Judge, moreover, took account of the international
case law according to which [w]hat constitutes adequate time and facilities cannot
be assessed in the abstract [...].32 That time depends on the specific circumstances
of the case at hand, and especially on the following criteria: i)the complexity of
the case; ii)the number of counts and charges; iii)the gravity of the crimes charged;
iv) the status and scale of the Prosecutions disclosure; and v) the staffing of the
Defence team.33
20. The Pre-Trial Judge now notes that some of the obligations provided for in
the context of the Working Plan were not met within the deadlines set, as is indeed
29 Order Setting the Date of Trial, para. 19.
30 Article 18, paragraph 2 of the Statute.
31 Order Setting the Date of Trial, para. 14.
32 Order Setting the Date of Trial, para. 13 citing ICTY, The Prosecutor v. Krajinik, Case No. ICTY0039A,
Appeal Chamber Judgement, 17 March 2009, para. 80; SCSL, Prosecutor v. Taylor, Case No. SCSL-2003-01-T,
Decision on Defence Notice of Appeal and Submissions Regarding the 4 May 2009 Oral Decision Requiring
the Defence to Commence Its Case on 29 June 2009, 23 June 2009, para. 19.
33 Id., citing ICTR, The Prosecutor v. Ngirabatware, Case No. ICTR-99-54-A, Decision on Augustin
Ngirabatwares Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 28; See also
ICTY, The Prosecutor v. S. Miloevi, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by
the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence
Case, 20 January 2004, paras 8-19; See also, ECHR, Twalib v. Greece (42/1997/826/1032), Judgment of 9 June
1998, para. 40.
31
recognised by the Prosecution. Among those is the fact that the Prosecution did not
disclose all the case materials to the Defence as provided by Rules91 (G) (iii) and
110 (A) (ii) of the Rules. It should also, in addition, be noted that the Defence has
encountered and is still encountering technical difficulties in accessing some of these
documents and analysing them. Clearly, problems such as these, together with the
pending requests for cooperation to the Lebanese authorities, which could not have
been anticipated in the Order setting the date of trial, to which can be added the
volume of evidence disclosed, are of a nature that justifies and renders legitimate the
request to postpone the tentative date for the start of trial submitted by the Defence.
Indeed, those factors do not allow the Defence to make efficient use of the time and
facilities required to prepare, thus jeopardising the fairness of the proceedings and
the compliance with the fundamental guarantees recognised by the general
principles of law.34
21. Under the current circumstances of the case, the Pre-Trial Judge considers
that maintaining the date for the start of trial at 25March 2013 would unduly favour
the imperative of expeditiousness to the detriment of the fairness of the proceedings.
As the Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) stated, [t]he Trial Chambers duty to ensure the fairness and
expeditiousness of proceedings will often entail a delicate balancing of interests.
This is particularly so in a trial of this scope and complexity, for which there is little
precedent.35 In the case at hand, it is in the interests of justice and the fairness of the
proceedings to set a new tentative date for the start of trial.
22. Out of concern for reducing the financial and human resources associated with
the organisation of the trial, the Pre-Trial Judge deems it appropriate to inform, as of
now, all the interested persons of the postponement of the date for the start of trial.
23. Furthermore, a new tentative date for the start of trial should be set as soon as
possible in order to ensure that the proceedings are not unjustifiably delayed in any
way. For that purpose, the consultation procedure with the Parties and the participants
34 Articles 16 and 18, paragraph 2 of the Statute.
35 ICTY, The Prosecutor v. Prli et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning
the Trial Chambers Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 16.
32
in the proceedings provided for in Rule 91 (C) of the Rules should start now. In that
regard, the Pre-Trial Judge considers that, even if some documents have not yet been
filed by the Prosecution, the information currently available, especially that provided
by the Prosecution on 15 February 2013 in the Notice, allows the Parties and the
participants in the proceedings to already estimate the time they consider they need
to prepare. In accordance with Rule 91 (C) of the Rules, the Pre-Trial Judge will then
consult with the President of the Tribunal, the Presiding Judge of the Trial Chamber
and the Registrar.
24. At the end of this consultation process, the Pre-Trial Judge will establish
a new Working Plan setting out clearly the obligations of the Parties and of the
participants with a view to preparing for the trial as well as the deadlines to be met
and will set a new tentative date for the start of trial, taking into account the need for
efficiency, expeditiousness and fairness of the trial. The Pre-Trial Judge considers
that, in the meantime, every effort must be made to meet the obligations laid down in
the Working Plan and the various decisions setting the deadlines. In that connection,
he points out that if the Parties consider that they are unable to meet the deadlines
set, they may only seek new deadlines by submitting a request for that purpose to the
Pre-Trial Judge. That request, duly reasoned and filed in good time, must justify in a
detailed and precise manner the reasons for which the requesting party deems itself
to be unable to meet the deadlines set.36
36 Order on a Working Plan, para. 22.
33
DISPOSITION
FOR THESE REASONS,
Pursuant to Rules 77 and 91 (C) of the Rules,
DECLARES the Request admissible and well-founded;
ORDERS the postponement of the tentative date for the start of trial;
ORDERS the Defence and the Legal Representative of Victims to send him a
detailed note containing a precise estimation of the time they require to prepare for
the trial, as well as a reasoned proposal for a tentative date for the start of trial by 8
March 2013 at the latest;
ORDERS the Prosecution to send him a detailed note containing a reasoned proposal
for a tentative date for the start of trial by 8 March 2013 at the latest; and
REMINDS all the participants in the proceedings that they must meet their
obligations in accordance with the Working Plan.
Done in English, Arabic and French, the French version being authoritative.
Leidschendam, 21 February 2013
Daniel Fransen
Pre-Trial Judge
34
3.
Case name:
In the Matter of El Sayed
Before:
Appeals Chamber
Title:
Public redacted version of Decision on Appeal

by the Prosecutor against Pre-Trial Judges
Decision of 11 January 2013, Dated 28 March
2013
Short title:
Disclosure of Documents AC
35
36
THE APPEALS CHAMBER

Case No.:
CH/AC/2013/01
Before:
Judge David Baragwanath, Presiding

Judge Ralph Riachy
Judge Afif Chamseddine
Judge Daniel David Ntanda Nsereko
Judge Ivana Hrdlikov
Registrar:
Mr Herman von Hebel
Date:
28 March 2013
Original language:
English
Type of document:
Public Redacted
IN THE MATTER OF EL SAYED
PUBLIC REDACTED VERSION OF DECISION ON APPEAL BY

THE PROSECUTOR AGAINST PRE-TRIAL JUDGES DECISION
OF 11 JANUARY 2013, DATED 28 MARCH 2013
Counsel for Mr El Sayed:
Mr Akram Azoury
Prosecutor:
Mr Norman Farrell
Head of Defence Office:
Mr Franois Roux
37
INTRODUCTION
1.
In the context of proceedings concerning a request by Mr El Sayed for
disclosure of documents in the Prosecutors custody, we are seized of an appeal
by the Prosecutor against the PreTrial Judges decision of 11 January 2013.1 In
that decision, the Pre-Trial Judge determined that certain documents were subject
to disclosure to Mr El Sayed in line with the Appeals Chambers case-law.2 We find
the appeal admissible. The appeal also succeeds on the merits because the three
documents in question are not subject to disclosure. We accordingly reverse the PreTrial Judges decision.
BACKGROUND
2.
The Prosecutor has in his possession three documents in respect of which
he was unsure whether he was obliged to disclose them to Mr. El Sayed. We have
previously ruled on the scope of the Prosecutors disclosure obligations vis--vis Mr
El Sayed. In particular, we have explained the extent to which internal work product
may not be disclosed to Mr El Sayed.3 In the light of that decision, the Prosecutor
requested the Pre-Trial Judge to clarify his disclosure obligations with respect to
the three documents. Referring to the decision, the Prosecutor generally argued
that these documents, correspondence between the United Nations International
Independent Investigation Commission (UNIIIC) and the Lebanese authorities,
constitute internal work product under Rule 111 of the Rules of Procedure and
Evidence (Rules) and were therefore not subject to disclosure.4
1 STL, In the matter of El Sayed, OTP/AC/2013/01, Prosecution Appeal of the Pre-Trial Judges Decision
portant sur la Demande du Procureur de Suspendre la Communication de Certains Documents of 11 January
2013, Confidential and Ex Parte, 7 February 2013 (Appeal).
2 STL, In the matter of El Sayed, CH/PTJ/2013/01, Decision on the Prosecution Request to Suspend the Disclosure
of Certain Documents, Confidential and Ex Parte, 11 January 2013 (Impugned Decision).
3 STL, In the matter of El Sayed, CH/AC/2011/01, Decision on Partial Appeal by Mr. El Sayed of Pre-Trial
Judges Decision of 12 May 2011, 19 July 2011 (Decision of 19 July 2011); see also below paras 25-26.
4 STL, OTP/PTJ/2012/10, In the matter of El Sayed, Prosecutions Submissions on the Status of Certain
Documents, Confidential and Ex Parte, 1 November 2012.
38
3.
In the Impugned Decision, while not ordering outright disclosure, the PreTrial Judge found that all three documents contained admissions of fact which, in
terms of the Appeals Chambers decision, should be disclosed.5 However, he also
stated that this clarification was independent of other conditions that might prevent
their disclosure.6
4.
On appeal, the Prosecution submits that the Pre-Trial Judge erred in interpreting
the Appeals Chamber decision too broadly and that he should have found that the
documents are protected as internal work product under Rule 111.7 Mr El Sayed
opposes the Appeal, primarily arguing that it is not admissible.8
DISCUSSION
I.
The public nature of the proceedings
5. The proceedings before the Pre-Trial Judge in this particular matter

were held confidentially and ex parte, that is, without the participation of Mr El
Sayed. This means that Mr El Sayed was not given the opportunity to respond
to the Prosecutors request before the Pre-Trial Judge. Likewise, the Appeal was
initially filed without being provided to Mr El Sayed. However, by way of
Interim Order, we provided him with public redacted versions of the Appeal, the
Impugned Decision, and the Prosecutors request before the Pre-Trial Judge,
to allow him to participate in this matter as far as possible.9 We were guided
in our decision by two considerations: the principle that requires a court to
Impugned Decision, p. 8; paras 11, 15.
Impugned Decision, para. 16.
Appeal, paras 6, 9.
8 STL, In the matter of El Sayed, CH/AC/2013/02, Observations of General Jamil El Sayed on the Prosecution
Appeal of the Pre-Trial Judges Decision portant sur la Demande du Procureur de Suspendre la Communication
de Certains Documents in Execution of the Appeals Chamber Decision of 14 March 2013, 18 March 2013
(El Sayed Response); see also STL, In the matter of El Sayed, OTP/AC/2013/01, Prosecution Reply to the
Observations of Jamil El Sayed, 25 March 2013.
9 STL, In the matter of El Sayed, CH/AC/2013/01, Interim Order on Prosecutors Appeal, 14 March 2013.
39
hear both parties before it renders any decision and our obligation to hold the
Tribunals proceedings in public.
A.
The principle of audi alteram partem
6.
The Tribunal must comply with the highest standards of international criminal
procedure.10 Indeed, it is the normal duty of a judicial body first to hear a party
whose rights can be affected by the decision to be made.11 This principle of hearing
the other side (audi alteram partem) is recognized in all legal systems of the world,
including in Lebanon.12 It is underpinned by a number of considerations. One is the
potential for judicial error caused by an absence of arguments.13
Another is the acceptance of judicial decisions both by the parties involved and the
public in general.14 These reasons have been summarized in the following way:
The task of the courts to render a final judgment with respect to a specific
factual situation cannot normally be resolved without hearing those concerned.
Hearing them is therefore the precondition for achieving a correct decision.
Moreover, a persons dignity requires that his rights are not disposed of
summarily by the authorities; an individual should not just be the object of a
10 Art. 28(2) STL St.

11 ICTY, Prosecutor v Jelisi, IT-95-10-A, Judgement, 5 July 2001, para. 27.
12 See Arts 372, 373 Lebanon, Code of Civil Procedure.
13 See UK, Chancery Division, John v Rees, [1970] Ch 345 (1968), Megarry J, p. 402: It may be that there are
some who would decry the importance which the courts attach to the observance of the rules of natural justice.
When something is obvious, they may say, why force everybody to go through the tiresome waste of time
involved in framing charges and giving an opportunity to be heard? The result is obvious from the start. Those
who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law
well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of
unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by discussion, suffered a change.
14 Ibid Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate
the feelings of resentment of those who find that a decision against them has been made without their being
afforded any opportunity to influence the course of events.; see also UK, House of Lords, Secretary of State
for the Home Department v AF (No 3) [2010] 2 AC 269 (2009), Lord Phillips, p. 355: The point goes further.
Resentment will understandably be felt, not merely by the controlee but by his family and friends, if sanctions
are imposed on him on grounds that lead to his being suspected of involvement in terrorism without any proper
explanation of what those grounds are. Indeed, if the wider public are to have confidence in the justice system,
they need to be able to see that justice is done rather than being asked to take it on trust.
40
judicial decision, rather, he should have his say before a decision affecting his
rights is rendered so as to bear upon the proceedings and their outcome.15
7.
However, the audi alteram partem principle is not without exceptions.
Indeed, we have previously decided in this very matter that ex parte proceedings are
appropriate under certain limited circumstances. We have held that the participation
by Mr El Sayed in the assessment of whether disclosing to him information related
to certain individuals could put them at risk would have defeated the whole purpose
of the risk assessment.16 More generally, this follows the approach of Rules 116, 1
17 and 118 which explicitly permit ex parte proceedings in cases where a party seeks
to be relieved of certain .disclosure obligations for one of the important reasons set
out in these Rules.17
8.
The issue before us is whether the three documents in question are ultimately
subject to disclosure to Mr El Sayed. Granting Mr El Sayed access to the documents
in order for him to comment on their content would run counter to the object
of the litigation and render it meaningless. We thus reject his complaints in this
regard.18 However, in this specific case, there are no exceptional reasons that
warrant full exclusion of Mr El Sayed from the entire appellate process for any
of the reasons provided in Rules 116 to 118. For one, Mr El Sayed knows that there
is an ongoing disclosure process and that the Prosecutor might seek to withhold
certain material from disclosure. Furthermore, Mr El Sayed could and did raise
15 Germany, Bundesverfassungsgericht [Federal Constitutional Court], BVerfGE 9, 89(95). Die Aufgabe der
Gerichte, ber einen konkreten Lebenssachverhalt ein abschlieendes rechtliches Urteil zu fllen, ist in aller
Regel ohne Anhrung der Beteiligten nicht zu lsen. Diese Anhrung ist daher zunachst Voraussetzung einer
richtigen Entscheidung. Darber hinaus fordert die Wurde der Person, da ber ihr Recht nicht kurzerhand von
Obrigkeits wegen verfgt wird; der einzelne soll nicht nur Objekt der richterlichen Entscheidung sein, sondern
er soll vor einer Entscheidung, die seine Rechte betrifft, zu Wort kommen, um Einflu auf das Verfahren und sein
Ergebnis nehmen zu konnen.
16 STL, In the matter of El Sayed, CH/AC/2012/02, Decision on Partial Appeal by Mr El Sayed Against Pre-Trial
Judges Decision of 8 October 2012, 23 November 2012 (Decision of 23 November 2012), para. 12.
17 Rule 116 STL RPE: prejudice to ongoing or future investigations; potential of grave risk to the security of
a witness or his family; or any other reasons that may be contrary to the public interest or the rights of third
parties; Rule 117: the security interests of a State or international entity; Rule 118: failure to obtain the consent
of an information provider to disclose that information.
18 See El Sayed Response, paras 9-11.
41
arguments that are not strictly related to the content of the documents. We note
that this was also the position of the Prosecutor.19
B.
The principle of publicity
9.
We have explained in previous decisions that our Statute and Rules
require all proceedings before the Tribunal to be held in public, unless otherwise
determined by a Chamber:
We are mindful of and emphasize the need for transparency in the proceedings
before this Tribunal, especially considering that the accused are entitled to a
fair and public hearing under Articles 16(2) and 20(4) of the Statute. Rules 96
and 136 of the Rules reflect this important principle and permit exceptions only
in specific and limited circumstances. Confidential submissions and decisions
although sometimes necessaryby their very nature conflict with this policy
of openness. They should be kept to a minimum and can only be justified for
exceptional reasons, which may include the protection of victims and witnesses
and the safeguarding of a continuing investigation by the Prosecutor.20
Even though we set out these principles in the framework of the Ayyash et al
proceedingsa criminal trialthey should also find application in the matter before
us, which we have held is a civil or administrative one.21 Accordingly, while the
content of the three documents at issue must be kept confidential, both with respect
to Mr El Sayed and with respect to the public, there is no reason to keep the existence
of the litigation confidential. In addition to ordering the redactions of the underlying
documents, we will therefore also issue a public version of the decision, keeping any
redactions to an absolute minimum.
19 Appeal, para. 30.

20 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Corrected Version of Decision on the Pre-Trial Judges
Request Pursuant to Rule 68(G), 29 March 2012, para. 12; see also Decision of 23 November 2012, para. 12.
21 Decision of 19 July 2011, para. 28; see also STL, In the matter of El Sayed, CH/AC/2010/02, Decision of
Appeal of Pre-Trial Judges Order Regarding Jurisdiction and Standing, 10 November 2010, para. 70: [Mr
El Sayeds] application must be considered in accordance with the dictates of Rule 3, including international
standards of human rights and general principles of international criminal law and procedure, and in the light of
the spirit of the Statue and rules.
42
II.
Admissibility of tbe Appeal

A.
Whether the Appeal was filed out of time
10. The Prosecutor filed his Appeal on 7 February 2013, almost one month after the
Impugned Decision. He argues that the Appeals Chamber has set no time limits for
the filing of appeals in the El Sayed matter. If, however, the Appeal were considered
out of time, it could still be accepted under Rule 9 of the Rules because good cause
exists to do so.22 Mr El Sayed did not respond on this issue.
11. We have previously clarified that [a]lthough the current proceedings fall
outside the literal scope of the Rules, we wish to maintain focus on the fairness and
efficiency of proceedings.23 The Prosecutor should have therefore adhered to the
time limits that the Rules provide for comparable appeals. We note that under Rule
126(E) of the Rules an appeal must be filed within seven days after certification to
appeal is granted. We hold that from now on this time limit should also apply to all
appeals in this matter. This includes both appeals where certification is necessary and
those where it is not.
12. Even in the absence of specific time limits, we are of the view that the
Prosecutor should have acted more expeditiously in filing this appeal. Nevertheless,
we condone this otherwise late filing and admit the appeal because this is the first
time in this matter that we have clarified the proper time limit for filing an appeal in
these proceedings. While the Prosecutor should have been more diligent, we will not
permit the lack of clarity until now to disadvantage him.24
B.
Whether the Prosecutor could appeal without seeking certification
13. The Prosecutor argues that his appeal is admissible without having obtained
certification from the Pre-Trial Judge.25 He submits that even though the Pre-Trial
23 Decision of 19 July 2011, para. 20.
24 See ICTY, Prosecutor v Marijai and Rebi, IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 14.
25 Appeal, paras 11-14.
43
Judge did not order disclosure in the Impugned Decision, he did deal finally with
the Documents, as Rule 111 was the only basis for their non-disclosure on which the
Prosecutor sought the guidance of the Pre-Trial Judge.26
14. We recall that an appeal in this matter can be brought before our Chamber
without certification if it potentially deals finally with Mr El Sayeds application
for disclosure of documents. Otherwise, certification is required.27 We must therefore
determine whether the Impugned Decision can be classified as final or merely
interlocutory.
15. On a preliminary note, we dismiss the Prosecutors argument that he has a
right to appeal the Impugned Decision because of its impact on the application of
Rule 111.28 Whether or not [c]larification by the Appeals Chamber on the proper
application of this exception is [...] necessary is irrelevant for determining whether
it is a final decision (permitting immediate access to the Appeals Chamber) or not
(requiring certification by the Pre-Trial Judge).
16. However, we agree with the Prosecutor that in any event, the Impugned
Decision for all intents and purposes was final.29 We held previously that any decision
of the Pre-Trial Judge ordering the disclosure of documents is final because once
the documents are disclosed there is nothing more to decide.30 While it could be
argued that the Pre-Trial Judge has only decided that the documents do not fall under
Rule 111 and has not ordered their disclosure, it is clear that, in the absence of other
reasons for non-disclosure, the Pre-Trial Judge would make such an order based on
his reasoning in the Impugned Decision. It would be overly formalistic and not in the
interests of judicial economy to require another decision of the Pre-Trial Judge when
27 STL, In the matter of El Sayed, CH/AC/2012/03, Decision on the Prosecutors Partial Appeal of the PreTrial Judges Order of 20 February 2012, 18 April 2012 (Decision of 18 April 2012), para. 15 (with further
references to our previous decisions); see also Decision of 23 November 2012, para. 5.
30 STL, In the matter of El Sayed, CH/AC/2012/02, Order Allowing in Part and Dismissing in Part the Appeal
by the Prosecutor Against the Pre-Trial Judges Decision of 2 September 2011 and Ordering the Disclosure of
Documents, 7 October 2011, para. 5; see also Decision of 18 April 2012, para. 15.
44
it is obvious what such decision would be. The Appeal therefore did not require
certification of the Impugned Decision.
C.
Whether the Prosecutor was otherwise barred from bringing the

Appeal
17. Mr El Sayed argues that the Prosecutor is barred from bringing the appeal
because the Prosecutor had previously considered that the documents in question
did not fall under Rule 111 and had now reconsidered his position. Mr El Sayed
specifically relies on the doctrine of estoppel.31 The Prosecutor responds that this
doctrine does not apply in the present case.32
18. We first note that the procedural background of this litigation is complicated.33
Part of the difficulty stems from the fact that the Prosecutor has taken seemingly
contradictory positions throughout the proceedings with respect to the three
documents. Indeed, when ordered by the Pre-Trial Judge to submit to him those
documents that could be disclosed [to Mr El Sayed]34 the Prosecutor initially
submitted the three documents, arguing that they contained Rule 111 discussions
expressed such that they amount to admissions of fact disclosable pursuant to the
Appeals Chamber Decision of 19 July 2011.35 Subsequently, there was extended
litigation on certain aspects of the disclosure process, which extended to the filing
of appeals before us. However, the three documents were never the subject of these
disputes.36 It was only a year after the Prosecutors submission that the documents
could be disclosed, and after having been ordered to disclose remaining materials
31 El Sayed Response, paras 18-21.

32 Prosecutor Reply, paras 2, 5-15.
33 We refer to the procedural history provided by the Impugned Decision for a detailed overview, Impugned
Decision, para. 7.
34 STL, In the matter of El Sayed, CH/PTJ/2011/17, Order for Enforcement of the Appeals Chamber Decision of
19 July 2011, 17 October 2011, Disposition.
35 STL, In the matter of El Sayed, CH/PTJ/2011/17, Prosecutions Submissions Following the Pre-Trial Judges
Order for Enforcement of the Appeals Chamber Decision of 19 July 2011, 15 November 2011, para. 11.
36 See Impugned Decision, para. 7.
45
in his possession,37 that the Prosecutor changed his opinion and asked the PreTrial Judge to now confirm that the documents need not be disclosed.38 He did so
without mentioning that he had submitted the very same documents a year before
and consequently without indicating any reason why his views on the status of
these documents were now different.39 In this regard, we share the Pre-Trial Judges
surprise at the Prosecutors request.40
19. However, we find that the Prosecutors change of position with respect to the
three documents and his tardiness in informing the Pre-Trial Judge about it did not
bar him from making his request. Mr El Sayeds reliance on the doctrine of estoppel is
misplaced in this regard. First of all, Mr El Sayed fails to explain on which elements
of this doctrine he is relying. Indeed, the doctrine of estoppel is legally complex,
viewed differently by different legal systems, and its precise application depends
on a number of factors.41 We find it unnecessary to decide whether it is applicable
in proceedings related to the disclosure of documents. That is because there is no
evidence that Mr El Sayed acted in some manner on the basis of the Prosecutors
initial position.
20. No principle was cited to us and, with one exception, we are not aware of one,
which in the absence of such evidence would prevent the Prosecutor from reviewing
his original decision. The exception is the common law principle of estoppel by
deed-where a person who has entered into a solemn engagement by deed is not
permitted to deny any matter asserted in it and no subsequent conduct or other act of
37 STL, In the matter of El Sayed, CH/PTJ/2012/04, Decision Setting a Deadline for the Prosecutor to Disclose to
Mr El Sayed the Documents Mentioned in the Pre-Trial Judges Order of 21 May 2011, 8 October 2012, para.
13. The title of the Impugned Decision initially contained an error, which was later on corrected, see STL, In
the matter of El Sayed, CH/PTJ/2012/05, Corrigendum to the Decision Setting a Deadline for the Prosecutor to
Disclose to Mr El Sayed the Documents Mentioned in the Pre-Trial Judges Order of 21 May 2011, 11 October
2012.
38 STL, In the matter of El Sayed, OTP/PTJ/2012/10, Prosecutions Submissions on the Status of Certain
Documents, Confidential and Ex Parte, 1 November 2012 (Prosecution Submissions of 1 November 2012),
paras 14-15
39 Prosecution Submissions of l November 2012.
40 Impugned Decision, paras 9, 12.
41 See UK, Queens Bench, McIlkenny v Chief Constable, [1980] 1 QB 283, Lord Denning, p. 317 (identifying at
least 11 different types of estoppel).
46
reliance by the party invoking the estoppel is required.42 But here there was no such
formality; the Prosecutor did no more than file a submission stating that the three
documents in question constituted admissions of fact disclosable pursuant to the
Appeals Chamber Decision of 19 July 2011.43
21. Estoppel by deed aside, the authorities we have examined require either
subsequent conduct or other acts of reliance by the party invoking the estoppel or
unconscionability.44 For example, if waiver is asserted,45 the operative principle
entails that if
[...] a course of negotiation which has the effect of leading one of the parties to
suppose that the strict rights [of the other party] [...] will not be enforced [and
if] [...] it would be inequitable having regard to the dealings which have thus
taken place between the parties [the person seeking to enforce those rights will
not be allowed to enforce them].46
22. The same applies, if Mr El Sayed seeks to rely on estoppel by election, namely,
that the Prosecutor had intentionally exercised a choice between two inconsistent
alternatives (i.e. stating that the documents should be disclosed) that now bars the
Prosecutor from benefiting of the alternative not selected (i.e. disputing that the
documents should be disclosed.) 47 That is because estoppel by election also presumes
that the other party (i.e. Mr El Sayed) relied on the choice made and through the
changed position would now suffer prejudice.48 We note that while claiming that
the Prosecutors change of position was to his detriment,49 Mr El Sayed fails to
substantiate any harm he suffered as a result of the Prosecutors actions. Indeed, Mr
42 UK, Chancery Division, PW & Co v Milton Gate Investments Ltd, [2004] 1 Ch 142, (30 June 2003) Neuberger
J pp 148-9.
43 Prosecutions Submissions of 15 November 2011, para 11.
44 UK, Chancery Division, PW & Co v Milton Gate Investments Ltd, [2004] 1 Ch 142, (30 June 2003) Neuberger
J pp 149-159, 195, 205, 209-211, 221-222, 227.
45 See, e g, UK, Queens Bench, Brikom Investments Ltd v Carr, [1979] 1 QB 467, (1979) Roskill L.J, pp 488-9.
46 UK, House of Lords, Hughes v Metropolitan Railway Co, (1877) 2 App Cas 439 (5 June 1877), Lord Cairns, p.
448.
47 See UK, Privy Council, Meng Leong Ltd v Jip Hong Ltd, [1985] 1 AC 511 (1984), p. 521.
48 Ibid
49 El Sayed Response, para. 21.
47
El Sayed could hardly rely on any position of the Prosecutor in this regard given that
Mr El Sayed was unaware of the content of the documents.
23. We therefore find that the Prosecutor was not prevented from retracting his
initial characterization of the documents and dismiss Mr El Sayeds arguments in
this respect. However, we remain puzzled as to why the Prosecutors reassessment
of the three documents would have taken so long. We note that neither the Pre-Trial
Judge nor the Appeals Chamber were given any explanations in this regard. We have
stated previously that the Prosecutor should meet his disclosure obligations in this
matter swiftly and without further delay.50 We remind him again of the importance of
finalizing disclosure in this case and urge him to do so expeditiously with respect to
any outstanding documents.
III. Merits of the Appeal
24. The question before us is whether the Pre-Trial Judge erred when
he found that the three documents in the possession of the Prosecutor were
admissions of fact within the meaning of the [Appeals Chambers] Decision
of 19 July 2011. We conclude that he did and thus reverse the Impugned
Decision.
A.
The standards set out by the Appeals Chamber
25. In the Decision of 19 July 2011, we recalled that Rule 111 grants an exception
from the general disclosure obligation under Rule 113, which requires the Prosecutor
to disclose to the Defence[...] any information in his possession or actual knowledge,
which may reasonably suggest the innocence or mitigate the guilt of the accused or
affect the credibility of the Prosecutors evidence.51 Rule 111 provides:
Reports, memoranda, or other internal documents prepared by a Party,
its assistants or representatives in connection with the investigation or
preparation of a case are not subject to disclosure or notification under
50 Decision of 18 April 2012, para. 44.

51 See Decision of 19 July 2011, paras 76-78.
48
the Rules. For purposes of the Prosecutor, this includes reports, memoranda,
or other internal documents prepared by the UNIIIC or its assistants or
representatives in connection with its investigative work.
We concluded that under the terms of the Rule correspondence exchanged between
the UNIIIC and the Lebanese Prosecutor-General constitutes such internal
documents, to the extent the correspondence pertains to the coordination of a unitary
criminal investigation.52
26. However, we also clarified that Rule 111 is not without its limits. We held as
follows:
99. Each of Rules 111 and 113 contains an expression of important public
policy.
100. That of Rule 111 is predominantly to allow uninhibited discussion among
those representing one Party when considering what decisions to make. The
high interest of freedom of expression to be found across the jurisprudence is
an expression of this point. Candour is vital to quality. The major focus of Rule
111 material is on opinion.
101. Rule 113, by contrast, is concerned essentially with fact. It is exculpatory
fact that forms the essential policy of Rule 113. There is therefore in general a
complementarity [sic] between the two Rules.
102. There is however the possibility that Rule 111 discussion will be
expressed (i) in such a categorical manner; (ii) by a decision maker; (iii) in
such circumstances as to suggest that what occurs in-house is properly to be
categorized as admission of fact. At that point the Rule 111 shield disappears
and is replaced by the Rule 113 obligation (subject of course to its limitations
laid down in Rules 116 to 118).
103. A further point is whether guilt or innocence in Rule 113 refers not only
to the crime alleged by Mr. El Sayed that others have made false evidence, but
also to the original suspicion of Mr. El Sayeds implication in the assassination
(a matter that is not at present germane to the adjudicatory power of this
Tribunal, in view of the 2009 statement by the Prosecutor that he was not
preferring any charge against Mr. El Sayed for that assassination).
49
104. Such distinction is one without difference. These are opposite sides of the
same coin. Mr. El Sayeds assertion is of innocence on his part of assassination;
that is part of his assertion of criminality on the part of the alleged false
witnesses.
105. In short, if in the course of discourse of persons whose conduct is
attributable to a Party in terms of Rule 111 there is (i) unambiguous acceptance;
(ii) by a decision maker; (iii) which is fairly to be characterised as a decision
as to relevant guilt or innocence, the Rule 111 discussion is lifted into the Rule
113 category and must be disclosed unless any of Rules 116 to 118 applies.53
27. We stress that the issue before us is not one of clarification / interpretation
or even reconsideration of our previous decision. Rather, it is one of application
of our case-law to a set of documents. Hence, we are asked to determine whether
the Pre-Trial Judge erred in concluding that the documents were not covered by
the disclosure exception of Rule 111. In other words, the Appeals Chamber is not
deciding once again on the applicable law, namely, the scope of the 4 exception
under Rule 111. Indeed, we have already done so,54 having had the assistance of both
the Prosecutor and Mr El Sayed who provided us with their views on this precise
legal issue.55 There is no need to reopen that discussion. What we must do now is
review the three documents and decide whether they fall under the exception or not.
B.
The application of these standards to the three documents in question
28. Before reviewing each of the three documents individually, we note that the
Pre-Trial Judge appears to have based his analysis on an overly broad reading of
the Decision of 19 July 2011. We recall that any exceptions to Rule 111 must be
narrow in nature and may not serve to undermine the purpose of the Rule, namely,
53 Decision of 19 July 2011, paras 99-105.
54 Decision of 19 July 2011.
55 See STL, In the matter of El Sayed, CH/PTJ/2010/01, Partial Appeal of the Pre-Trial Judges Decision on
the Disclosure of Materials from the Criminal File of Mr El Sayed of 12 May 2011, 20 May 2011; STL, In
the matter of El Sayed, CH/AC/2011/01, Prosecutions Response to Partial Appeal of the Pre-Trial Judges
Decision on the Disclosure of Materials from the Criminal File of Mr El Sayed of 12 May 2011, 10 June 2011;
STL, In the matter of El Sayed, CH/AC/2011/01, Reply to the Prosecutions Response to Partial Appeal of
the Pre-Trial Judges Decision on the Disclosure of Materials from the Criminal File of Mr El Sayed of 12 May
2011, 21 June 2011.
50
to protect the free exchange of ideas and an open discussion within the Prosecutors
or Defence counsels teams. Conversely, disclosure obligations under Rule 113 only
arise if exculpatory facts are in play. In the context of Rule 111, this means that not
every admission of fact will make the shield of Rule 111 disappear. As we have
explained, only if in the course of discourse of persons whose conduct is attributable
to a Party in terms of Rule 111 there is (i) unambiguous acceptance; (ii) by a decision
maker; (iii) which is fairly to be characterised as a decision as to relevant guilt or
innocence, the Rule 111 discussion is lifted into the Rule 113 category and must be
disclosed unless any of Rules 116 to 118 applies.56
29. In this regard, we reject the Prosecutors argument, opposed by Mr El Sayed,57
that the Decision of 19 July 2012 is ambiguously drafted and that the Appeals
Chamber has articulated two distinct versions of the exception to Rule 111.58 As the
Prosecutor elsewhere concedes, the relevant paragraphs of the Decision cannot be
read in isolation. In particular, paragraph 105 of that Decision, as set out above, is the
summary of the Appeals Chambers discussion in the previous paragraphs. As such,
the Decision must be read in totality.
[REDACTED]59
30.
[REDACTED]
31. [REDACTED] This was an error. [REDACTED] does not turn them into
admissions of fact. We recall that when we referred to Mr El Sayeds guilt or
innocence we meant his assertion that he was innocent of the attack of 14 February
2005 which killed former Prime Minister Hariri, and that he was wrongly accused
by the alleged false witnesses of involvement in the attack.60 It would therefore
go too far to describe [REDACTED]61 [REDACTED]. We stress once again that
56 Decision of 19 July 2011, para. 1 05.
57 El Sayed Response, para. 14.
58 Appeal, paras 17, 18 (referring to paras 102 and 105 of the Decision of 19 July 2011 ); see also paras 3, 4.
59 Impugned Decision, para. 15.
61 [REDACTED]
51
any exceptions to Rule 111 must be construed narrowly lest the benefits of the Rule
vanish.
[REDACTED]
32.
[REDACTED]
33. The Pre-Trial Judge found that this [REDACTED] was nevertheless a
categorical statement on the subject of innocence or guilt, in particular that of the
Applicant, carried out by a decision maker and was [i]n this sense [...] an admission
of fact.62 Again, this was an error. [REDACTED] the [REDACTED] intention was
not to express an opinion of guilt or innocence [REDACTED].
C. Conclusion
34. The three documents are protected under Rule 111. The Pre-Trial Judge erred
when he held that they were not. His decision is accordingly reversed.
52
DISPOSITION
FOR THESE REASONS;
THE APPEALS CHAMBER unanimously;
FINDS the Appeal admissible;
REVERSES the Impugned Decision;
FINDS that the three documents are protected under Rule 111;
ORDERS the Pre-Trial Judge to file a public redacted version of the Impugned
Decision, applying the redactions as undertaken by the Appeals Chamber in the
Interim Order, Annex B;
ORDERS the Prosecutor to file public redacted versions of the Prosecution
Submissions of 1 November 2012 and the Appeal, applying the redactions as
undertaken by the Appeals Chamber in the Interim Order, Annexes A and C.
Dated 28 March 2013,
Leidschendam, the Netherlands.
Judge David Baragwanath

Presiding
53
54
4.
Case name:
Before:
Appeals Chamber
Title:
Decision on Appeal by Legal Representative of

Victims against Pre-Trial Judges Decision on
Protective Measures
Short title:
Total Anonymity of Victims AC
55
56
THE APPEALS CHAMBER

Case No.:
STL-11-01/PT/AC/AR126.3
Before:

Judge Ralph Riachy
Registrar:
Mr Herman von Hebel
Date:
10 April 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION ON APPEAL BY LEGAL REPRESENTATIVE OF

VICTIMS AGAINST PRE-TRIAL JUDGES DECISION ON
PROTECTIVE MEASURES
Prosecutor:
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun
Legal Representatives of Victims:

Mr Peter Haynes
Mr Mohammad F. Mattar
Ms Nada Abdelsater-Abusamra

Mr Antoine Korkmaz
Mr John Jones

Mr Franois Roux

Mr David Young
Mr Gunal Mettraux

Mr Yasser Hassan
57
INTRODUCTION
1.
The Legal Representative of Victims (LRV) has seized us with an appeal
against a decision of the Pre-Trial Judge relating to protective measures for victims
participating in the proceedings (VPPs).1 The Appeal is directed against the PreTrial Judges holding that VPPs may not participate anonymously.2 The LRV requests
us to reverse this holding and exempt him from disclosing the identities of VPPs to
the Defence and the Prosecutor.
2.
We hold by majority, Judges Riachy and Nsereko dissenting, that the Appeal
is admissible. However, we unanimously dismiss the Appeal, and affirm the PreTrial Judges decision that VPPs cannot remain totally anonymous.
BACKGROUND
3.
In his first Decision on Victims Participation in the Proceedings, the Pre-Trial
Judge granted VPP status to 58 applicants, and invited those VPPs who wished to
remain anonymous or seek other protective measures to submit a request to that end
to the Pre-Trial Judge.3 A further 10 victims were later granted VPP status.4 The LRV
submitted three requests in which a number of VPPs requested the non-disclosure
of their identities not only vis--vis the public but also vis--vis the Parties for the
duration of the proceedings and after final judgment (total anonymity).5 The Pre1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, Appeal of the Legal Representative of Victims
Against the Decision of the Pre-Trial Judge Refusing Protective Measures, 8 February 2013 (Appeal), para.
2. All further references to filings and decisions relate to this case number unless otherwise stated.
2 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the Legal Representative of Victims
First, Second and Third Motions for Protective Measures for Victims Participating in the Proceedings,
19December2012 (Impugned Decision), para. 27, Disposition; see Appeal, paras 2, 74-75.
3 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims Participation in the Proceedings,
8May2012 (Decision on Victims Participation), para. 131.
4 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Second Decision on Victims Participation in the
Proceedings, 3September 2012; Third Decision on Victims Participation in the Proceedings, 28 November
2012.
5 STL, Prosecutor v Ayyash et al. STL-11-01/PT/PTJ: First Motion of the Legal Representative of Victims for
Protective Measures (Anonymity) of Seventeen Victims Participating in the Proceedings, 29 October 2012;
Second Motion of the Legal Representative of Victims for Protective Measures (Anonymity) of Six Victims
Participating in the Proceedings, 2November 2012; Third Motion of the Legal Representative of Victims for
58
Trial Judge declined to recognize the validity of total anonymity as a protective

measure and found that it was not available under the Statute and Rules of Procedure
and Evidence (Rules).6 The LRV obtained certification to appeal this decision
in relation to this specific issue.7 He now challenges the Pre-Trial Judges finding
on appeal.8 The Prosecution9 and counsel for Messrs Sabra10 and Badreddine11
responded, disputing the LRVs standing to bring the appeal, and arguing that total
anonymity should be refused or otherwise strictly limited. The LRV filed a request
for leave to reply, attaching the reply at the same time.12 The Victims Participation
Unit (VPU) made submissions supporting the availability of total anonymity.13
Protective Measures (Confidentiality) of Eight Victims Participating in the Proceedings, 2 November 2012.
6
Impugned Decision, paras 22-27.
7 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the Motion of the Legal Representative
of Victims Seeking Certification to Appeal the Decision of 19 December 2012 on Protective Measures, 30
January 2013 (Certification Decision), paras 24-26. Before certification was granted, the Pre-Trial Judge
asked the LRV to identify the VPPs on whose behalf he had filed the motion for certification (STL, Prosecutor v.
Ayyashetal., STL-11-01/PT/PTJ, Interim Order on the Motion of the Legal Representative of Victims Seeking
Certification to Appeal the Decision of 19December 2012 on Protective Measures, 18 January 2013). The LRV
clarified that he was seeking to bring the appeal on behalf of all current VPPs (STL, Prosecutor v. Ayyash et
al., STL-11-01/PT/PTJ, Notice of the Legal Representative of Victims Pursuant to the Pre-Trial Judges Interim
Order of the 18 January 2013, 24 January 2013).
8
Appeal, para. 2.
9 Prosecution Response to the Legal Representatives of Victims Appeal against the Decision of the Pre-Trial
Judge Refusing Protective Measures, 28 February 2013 (Prosecutors Response).
10 Sabra Response to the Appeal of the Legal Representative of Victims against the Decision of the Pre-Trial Judge
Refusing Protective Measures, 26 February 2013 (Sabra Response).
11 Response of the Badreddine Defence to the Appellate Brief of the Legal Representative of Victims against the
Pre-Trial Judges Decision Refusing to Grant Protective Measures, 28 February 2013 (Badreddine Response).
12 Application for Leave to Reply and Consolidated Reply of the Legal Representative of Victims to the Responses
of the Prosecution and Counsel for Sabra and Badreddine to his Appeal against the Decision of the Pre-Trial
Judge Refusing Protective Measures, 8 March 2013 (Application for Leave to Reply).
13 Submission from the Victims Participation Unit on Protective Measures for Victims Participating in the
Proceedings, Confidential and Ex Parte, 1 March 2013 (VPU Submission). A public redacted version was filed
the same day. The Registrar had previously sought leave on behalf of the VPU to file submissions (Registrars
Request to Permit Submissions from the Victims Participation Unit Regarding Victim Anonymity, 1February
2013), which we granted (Order on Submissions from the Victims Participation Unit, 12February2013).
59
DISCUSSION
I.
The LRVs reply
4.
More than seven days after the filing of the responses to his Appeal, the LRV
filed a request for leave to file a reply, together with the proposed reply. We note that
Rule 8 (B) of the Rules was recently amended and now requires that any request for
leave to file a reply must be filed within two days of the response. Given that the
responses were submitted before the Rule change, we find that the old version of the
Rulewhich did not contain a time limit for the filing of the requestapplied and
the request was not made out of time.14
5.
However, it was improper for the LRV to attach the substance of his reply to
the request seeking leave to file it. While the practice at other courts has not been
consistent in this regard, we find that it would be a circumvention of Rule 8 (B) if
counsel in effect places the reply on the case-record despite not having been granted
leave to do so.15 In the future, unless otherwise ordered, counsel should wait for the
Chambers decision to grant leavebased on the reasons offered by counsel in the
request for leave before filing the reply.
6.
Nevertheless, in the present case, in the interests of judicial economy, we
exceptionally turn to the question of whether leave should be granted on the basis
of the grounds outlined in the substantive part of the LRVs application.16 We first
must look to the applicable standard for granting leave to reply. We have held that
a reply must generally be limited to circumstances where new issues arise of the
respondents brief and that it is not a vehicle for an appellant to simply reiterate
or refine arguments made in the appeal.17 With respect to the issue of whether the
14 The amended version of the Rules entered into force on 6 March 2013.
15 See ICTY, Prosecutor v. Milutinovi et al., IT-05-87-T, Order Re Exhibit 5D1312, 22 April 2008, para.3
(referring to the Chambers general order that a request for leave to file a reply should not include the substance
of the reply, which should await the decision of the Chamber upon whether to grant such leave).
16 See Application for Leave to Reply, para. 1 (requesting leave on the basis of the substantive grounds set out in
the reply).
17 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Order on Defence Request for Leave to File a
Reply, 8October2012 (Order on Reply), para. 3; see also STL, In the matter of El Sayed, CH/AC/2012/01,
60
LRV has standing to file an appeal, the response did not raise this as a new issue.
Indeed, the LRV devoted some four pages to the issue in his Appeal.18 Leave to reply
is rejected in this regard.19 Likewise, the LRVs assurances that he will not seek
anonymity for VPPs who intend to present evidence are repetitive of his Appeal and
do not warrant the filing of a reply.20 While not addressed in his Appeal, the LRVs
remaining arguments21 are also not responding to a new issuethe LRVs failure to
make arguments in this regard in the Appeal does not justify filing a reply.22 In sum,
we do not grant leave for filing the reply.
II.
Admissibility of the Appeal
7.
The LRV argues that the VPPs have standing to file an appeal before the
Appeals Chamber.23 He submits that Rule 126 of the Rules should be construed as
encompassing the possibility for VPPs to seek and receive certification to appeal a
decision if such a decision relates to the VPPs personal interests.24 The Prosecutor
and counsel for Mr Sabra submit that the VPPs have no standing to lodge interlocutory
appeals.25 Counsel for Mr Badreddine do not object to the admissibility of the Appeal
because the Impugned Decision directly affects the VPPs personal interests in the
proceedings. However, they caution against a too flexible interpretation of Rule
126.26
8.
At the outset, we reject the LRVs argument that his Appeal is admissible
because neither the parties nor the Pre-Trial Judge raised any objections to his request
Order on Request by Mr El Sayed for Leave to File a Reply, 7 November 2012 (with further references).
19 Application for Leave to Reply, paras 13-22.
20 See Appeal, para. 60; Application for Leave to Reply, para. 28.
21 Application for Leave to Reply, paras 23-27.
22 Order on Reply, para. 3.
25 Sabra Response, para. 6; Prosecutors Response, para. 4.
26 Badreddine Response, paras 3-4.
61
for certification of the Impugned Decision.27 Whether a matter is properly before the
Appeals Chamber is not a decision for the parties or the Pre-Trial Judge. Indeed,
we have to verify in each and every appeal that we have jurisdiction to hear it. It is
therefore also irrelevant that the Prosecutor and counsel for Mr Sabradespite their
argument that the LRV has no standing to bring his Appealdo not object to the
Appeals Chamber taking a decision on the merits.28
9.
We recall that under our Rules, interlocutory decisions are not subject to an
automatic right of appeal. Indeed, an appeal against such decisions may only be filed
if this right is explicitly granted in the Rules or if certification to appeal is given by
the first instance Judge or Chamber. In the instant case, the Rules do not provide
for an automatic right of the VPPs to appeal against decisions on their protective
measures. While the Pre-Trial Judge granted the VPPs certification under Rule 126
(C) of the Rules upon the LRVs request, Rule 126 (E) makes it clear that only
a Party may appeal to the Appeals Chamber once certification is given. Rule 2
defines Party as the Prosecutor or the Defence. Under its express wording, Rule
126 (E) therefore does not make provision for an appeal by the LRV.
10. However, we hold by majority that Rule 126 (E) is exceptionally applicable
by analogy to allow for a narrow right to an interlocutory appeal of the VPPs in
strictly confined circumstances and only after obtaining certification. Judges Riachy
and Nsereko dissent from this holding and from the following part of this decision
relating to admissibility.
11. We are mindful that the jurisdiction of the Appeals Chamber is limited by
the Statute and Rules. Specifically, there can be no right of appeal if it was the
express intention of the drafters to exclude it.29 We find however that Rule 126 is
ambiguously drafted, creating a lacuna in the Rules that needs to be addressed in
order to do justice.
28 Prosecutors Response, para. 8; Sabra Response, para. 8.
29 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals Against
the Trial Chambers Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal,
24October 2012 (Jurisdiction Decision), para. 17.
62
12. As pointed out by the LRV,30 Rule 126 (A) on the one hand refers to all
motions,31 which presumably includes motions filed not only by the parties but also
by the LRV, if granted permission to do so. Rule 126 (B) then refers to the right of
a party to apply by motion for appropriate ruling or relief. Rule 126 (C) does not
contain this limitation but states that [d]ecisions on all motions under this Rule are
without interlocutory appeal save with certification []. Rule 126 (E) then again
refers to a Party that may appeal. This apparent inconsistency can be explained by
the fact that Rule 126 is essentially based on the nearly identical Rule 73 of the Rules
of Procedure and Evidence of the International Criminal Tribunal for the former
Yugoslavia (ICTY). Unlike before this Tribunal, however, the ICTY does not give
victims a right to participate in the proceedings. While Rule 73 therefore is clear in
the ICTY context, Rule 126 is less so in our proceedings.
13. To resolve this ambiguity, we must first look at the Rules to verify whether
they otherwise explicitly permit or prohibit appeals by the VPPs. We note that the
Rules do not contain any general provision that would exclude a right of the VPPs to
lodge interlocutory appeals. On the contrary, Rule 86 (C) grants an appeal as of right
to any unsuccessful applicant for the status of VPP against the decision of the PreTrial Judge denying them that status. Moreover, Rule 86 (D) specifically prohibits
appeals against decisions relating to the grouping of victims in the proceedings.
Argumentum e contrario, if the drafters of the Rules had believed that VPPs did not
have a general right to file interlocutory appeals, the express prohibition of Rule 86
(D) in relation to one specific matter would not have been necessary. In sum, the
Rules do not contain any general prohibition of interlocutory appeals by VPPs but
do permit appeals by persons seeking to participate as VPPs.
14. We are also guided by the provisions of the Statute. In particular, Article 17
provides that
[w]here the personal interests of the victims are affected, the Special Tribunal
shall permit their views and concerns to be presented and considered at stages
31 This Rule applies to all motions other than preliminary motions, motions relating to release, and others for
which an appeal lies as of right according to these Rules.
63
of the proceedings determined to be appropriate by the Pre-Trial Judge or the

Chamber and in a manner that is not prejudicial to or inconsistent with the
rights of the accused and a fair and impartial trial.
Consistent with this mandate, the Pre-Trial Judge has permitted the LRV to file
[] motions or briefs on any issue that affects the victims personal interests.32 If
such filings are permitted, then the LRV should also be allowed to appeal a decision
on them, provided that they meet the certification threshold of Rule 126. This is
certainly true in relation to matters where the Statute or Rules expressly provide
for the LRV to bring the matter before a Judge or Chamber at first instance.33 In
particular, it would be unjust to deny the VPPs access to the Appeals Chamber if for
instance their rights under Article 17 of the Statute were not given full effect or were
unduly limited by the Pre-Trial Judge or the Trial Chamber. Moreover, clarification
of the law by the Appeals Chamber ensures that Article 17 is interpreted and applied
through all stages of the proceedings in a uniform manner.
15. Neither the Statute nor the Rules define what qualifies as the VPPs personal
interests. Indeed, whether an issue is relevant to the personal interests of the VPPs
is necessarily a highly case-specific inquiry.34 However, for the purposes of whether
VPPs have standing to seek appellate review of interlocutory first instance decisions,
we hold that such personal interests must necessarily be limited to situations where
32 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the VPUs Access to Materials and the
Modalities of Victims Participation in Proceedings before the Pre-Trial Judge, 18 May 2012 (Decision on
Modalities), para. 31.
33 See, e.g., Rules 133 (A), 87 (A).
34 See ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-925, Decision of the Appeals Chamber on the Joint
Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the Directions and Decision of the
Appeals Chamber of 2February 2007, 13 June 2007, para. 28 (More broadly, any determination by the
Appeals Chamber of whether the personal interests of victims are affected in relation to a particular appeal will
require careful consideration on a case-by-case basis. Clear examples of where the personal interests of victims
are affected are when their protection is in issue and in relation to proceedings for reparations. More generally,
an assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact,
fall outside their personal interests and belong instead to the role assigned to the Prosecutor. Even when the
personal interests of victims are affected within the meaning of article 68 (3) of the Statute, the Court is still
required, by the express terms of that article, to determine that it is appropriate for their views and concerns to
be presented at that stage of the proceedings and to ensure that any participation occurs in a manner which is not
prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.).
64
the VPPs own interests as participants in the proceedings are fundamentally

concerned. We can discern three such specific situations:
Decisions on applications for status as a VPP (a right of appeal is already
provided for under Rule 86 (C)).
Decisions on the modalities of victims participation in the proceedings (such
as decisions concerning access of the LRV to documents and decisions on whether
victims may call evidence and make submissions).
Decisions on protective measures for VPPs and the variation of such measures.
16. We also hold that the right to seek appellate review in these limited
circumstances does not prejudice the Accused. In the absence of prejudice, we must
seek to give full effect to the rights of the victims as mandated by Article 17 of the
Statute. In any event, if it were demonstrated that there was such harm, the Appeals
Chamber would retain the discretion to reject an appeal on that basis.
17. Both the Prosecutor and counsel for Mr Sabra refer to the case-law of the
International Criminal Court (ICC) under which participating victims have not
been permitted to initiate interlocutory appeals. However, we are not bound by
that jurisprudence. Moreover, there are a number of differences between the legal
framework of the ICC and that of our Tribunal. For instance, while the ICC does
not allow victims to appeal a chambers refusal to grant victim status, our Rules
explicitly do. Furthermore, we note that while participating victims have never been
granted leave to appeal an interlocutory decision at the ICC, this specific issue for
that reason has not been addressed conclusively by the ICC Appeals Chamber.
18. In sum, we hold by majority, Judges Riachy and Nsereko dissenting, that the
Appeal is admissible in analogy to Rule 126 (E).
65
III.
Merits of the Appeal

A.
Standard of review on appeal
19. In the Impugned Decision, the Pre-Trial Judge held that before the Tribunal,
the total anonymity of VPPs vis--vis the Parties for the duration of the proceedings
cannot legally be recognised.35 The LRV contends that this holding was a legal
error. We have previously adopted the standard of appellate review applicable to
such alleged errors as set out by other international tribunals:
A party alleging an error of law must identify the alleged error, present
arguments in support of its claim, and explain how the error invalidates the
decision. An allegation of an error of law that has no chance of changing the
outcome of a decision may be rejected on that ground. However, even if the
partys arguments are insufficient to support the contention of an error, the
Appeals Chamber may still conclude, for other reasons, that there is an error of
law. [...] The Appeals Chamber reviews the Trial Chambers findings of law to
determine whether or not they are correct.36
20. We point out that not every error leads to a reversal or revision of a decision
at first instance and that we will only review errors of law that have the potential to
invalidate that decision.37
B.
Scope of the Appeal
21. The issue certified for appeal by the Pre-Trial Judge concerns the availability
of total anonymity of VPPs as a valid protective measure38 in proceedings before
him. In the Impugned Decision, the Pre-Trial Judge held that total anonymity of VPPs
notionally contravenes the rights of the accused,39 is inconsistent with Article 25

36 Jurisdiction Decision, para. 10, with references to the case-law of the ICTY, the International Criminal Tribunal
for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the ICC.
37 Jurisdiction Decision, para. 10 (with further references).
38 Certification Decision, paras 24-26.
66
of the Statute,40 and is not covered by any other exception in the Rules.41 He thus
refused the LRVs request to consider whether this particular protective measure was
merited in relation to individual VPPs.42
22. The Pre-Trial Judge defined total anonymity as the non-disclosure of the
identity of VPPs vis--vis the parties for the duration of the proceedings.43 This
Appeal is therefore not concerned with other measures for the protection of VPPs,
such as anonymity vis--vis the public or the withholding of their identities from
the parties on an interim basis, or with matters related to the general disclosure of
information in the possession of the VPPs. Moreover, the only question that was
certified for appeal is whether, as a protective measure, VPPs identities may be
withheld from the parties throughout the proceedings.44 As pointed out by the
Prosecutor and counsel for Mr Sabra,45 the LRV attempts to bypass this limitation
by framing the question of anonymity as one not relating to the VPPs protective
measures but rather to their disclosure obligations under Rule 112 bis.46 We find that
this goes beyond the grant of certification and dismiss his arguments in this regard.
C.
Applicable law
23. The basic principles of victim participation in the proceedings before the
Tribunal are set out in Article 17 of the Statute and in Rules 86 and 87 of the Rules.
In essence, victims are permitted to express their views and concerns throughout
all stages of the proceedings if their personal interests are affected. However, this
must not prejudice the rights of the accused.
24. The Statute and Rules also require that proceedings before the Tribunal are
held in public unless there are exceptional reasons justifying a departure from this
42 Impugned Decision, paras 22, 27, 37.
43 Certification Decision, paras 25-26; see also Impugned Decision, para. 22.
44 Certification Decision, para. 24.
45 Prosecutors Response, paras 13-16; Sabra Response, para. 11.
46 Appeal, paras 35-41; see also VPU Submission, paras 10-11.
67
principle.47 Article16 (2) of the Statute makes the entitlement of an accused to a

fair and public trial subject to measures ordered by the Tribunal for the privacy and
protection of victims and witnesses. Article 12 (4) establishes within the Registry a
Victims and Witnesses Unit to protect the safety, physical and psychological wellbeing, dignity and privacy of victims and witnesses. Rules 115 and 133 specify
certain protective measures available to victims and witnesses, such as interim nondisclosure of the identity of victims and the non-disclosure of the identity of victims
to the public and media. Neither the Statute nor the Rules contain any provision
explicitly allowing for the total anonymity of victims that exercise their right to be
VPPs vis--vis the parties.
D.
Whether the Pre-Trial Judge erred when finding that total anonymity
of VPPs entails prejudice in the proceedings before the Tribunal
25. The Pre-Trial Judge held that it is not conceivable to convict a person for
a crime committed against a VPP who is involved in the trial proceedings and yet,
by remaining anonymous, does not allow the accused a full defence.48 The LRV
argues that this was an error.49 He submits that VPPs may choose different degrees
of participation in proceedings such as that of an entirely passive participant or
silent observer and argues that some of these desired methods of involvement
do not prejudice the Accused if the identity of the victims is not revealed to them.50
Counsel for Messrs Badreddine and Sabra submit that the Pre-Trial Judge did not
err.51
47 See, e.g., Arts 16, 20, 23 STL St.; Rules 73, 96, 136 STL RPE; see STL, In the matter of El Sayed, CH/
AC/2012/02, Decision on Partial Appeal by Mr El Sayed Against Pre-Trial Judges Decision of 8October2012,
23 November 2012, para. 12; STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Corrected Version of
Decision on the Pre-Trial Judges Request Pursuant to Rule 68(G), 29 March 2012, para. 12; STL,Prosecutor v.
Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims Participation in the Proceedings, 8May 2012, para.129;
see also Prosecutors Response, para. 9.
51 Badreddine Response, para. 5; Sabra Response, para. 19.
68
26. We have noted the references by the LRV and the parties to the relevant
practice of the ICC. Indeed, the ICCs provisions on victim participation are the most
comparable to those of the Tribunal.52 ICC Pre-Trial and Trial Chambers have not
explicitly prohibited total anonymity of participating victims during trial and have
rejected the notion that anonymous victims should never be permitted to participate
in the proceedings on the basis of unfairness to the accused.53 Rather, victims are
permitted to preserve anonymity unless they desire a degree of participation that
would make anonymity incompatible with the rights of the accused.54 ICC Pre-Trial
Chambers have applied these principles and have held that they will not permit
total anonymity where victims engage in forms of participation that add evidence
to the case against the accused (on the basis that this would violate the principle
against anonymous accusations) or question witnesses.55 ICC Trial Chambers have
not permitted victims to testify as witnesses or to present their views and concerns
unless they relinquish their anonymity vis--vis the parties.56 One Trial Chamber
52 Article 68 (3) ICC St. This provision mirrors Art. 17 STL St. The ICTY, ICTR and SCSL do not give victims
participatory rights. The Extraordinary Chambers in the Courts of Cambodia allow participation in a manner
more akin to parties civiles in civil law jurisdictions.
53 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1119, Decision on victims participation, 18 January 2008, para.
130; ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1191, Decision on the Defence and Prosecution Requests
for Leave to Appeal the Decision on Victims Participation of 18 January 2008, 26 February 2008, para. 37; see
also ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1556, Decision on the applications by victims to participate
in the proceedings, 15December 2008, paras 126-133; ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/071788-tENG, Decision on the Modalities of Victim Participation at Trial, 22 January 2010, paras 92, 93.
54 See ICC, Prosecutor v. Bemba, ICC-01/05-01/08-2027, Second order regarding the applications of
the legal representatives of victims to present evidence and the views and concerns of victims, 21 December
2011, para.19; ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1119, Decision on victims participation,
18January2008, para. 131; see also ICC, Prosecutor v. Bemba, ICC-01/05-01/08-699, Decision defining the
status of 54victims who participated at the pre-trial stage, and inviting the parties observations on applications
for participation by 86 applicants, 22 February 2010, paras27, 31.
55 See ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-462-tEN, Decision on the Arrangements for Participation of
Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, 22 September 2006, pp. 7-8. This list
has been cited in several later decisions; see, e.g. ICC, Prosecutor v. Katanga and Chui., ICC-01/04-01/07-474,
Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the
Case, 13 May 2008, paras180-183; see also ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1788tENG, Decision on the Modalities of Victim Participation at Trial, 22 January 2010, paras 92-93.
56 ICC, Prosecutor v. Bemba, ICC-01/05-01/08-2027, Second order regarding the applications of the legal
representatives of victims to present evidence and the views and concerns of victims, 21 December 2011,
para.19; see also, e.g., ICC, Prosecutor v. Bemba, ICC-01/05-01/08-2220, Decision on the presentation of
views and concerns by victims a/0542/08, a/0394/08 and a/0511/08, 24 May 2012, para. 12; ICC, Prosecutor v.
Katanga and Chui, ICC-01/04-01/07-1788-tENG, Decision on the Modalities of Victim Participation at Trial,
69
noted that in light of the need to safeguard the fairness of the proceedings, the extent
of participation of a victim must be significantly limited if that victim is anonymous.57
While we have considered this jurisprudence, which despite some limitations does
not explicitly prohibit total anonymity of participating victims, we do not find it
persuasive as in our view it does not take fully into account the potential of prejudice
arising to the accused if the identity of the participating victims were to be withheld
from them, as set out below. We also note that until now there has been no conclusive
decision by the ICC Appeals Chamber on this issue.58
27. The LRV asserts that the Pre-Trial Judge mistakenly conflates the role of VPPs
and witnesses, wrongly assuming that the general right of an accused to know the
identity of a witness testifying against him or her also applies to VPPs.59 He also
draws particular attention to the fact that a victim seeking to remain anonymous will
not be called as a witness by the LRV.60 We first note that there are many other ways
that a VPP may participate in proceedings under the Rules. This includes tendering
evidence and examining witnesses called by the parties.61 In any event, we find it
unnecessary to address the prejudice arising from specific forms of participation.
This is because totally anonymous participation by victims is inherently prejudicial to
the accused, regardless of how active or passive their desired method of participation
and even for victims who do not seek to give or tender evidence.
22 January 2010, paras 92, 93; ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1665-Corr, Directions
for the conduct of the proceedings and testimony in accordance with rule 140, 1 December 2009, para. 22 (c).
57 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1191, Decision on the Defence and Prosecution Requests for
Leave to Appeal the Decision on Victims Participation of 18 January 2008, 26 February 2008, para. 37.
58 In the Lubanga appeal proceedings, the issue of victim participants anonymity has been raised by the Defence
at least in relation to the issue of reparations. ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2972, Mmoire de
la Dfense de M.Thomas Lubanga relatif lappel lencontre de la Decision establishing the principles and
procedures to be applied to reparations, rendue par la Chambre de premire instance le 7aot2012, 5 February
2013, paras 48-60 (in particular).
61 See Rules 87 (B)-(D), 171 (B) STL RPE; Impugned Decision, para. 25.
70
28. In order to qualify to be a VPP, a person must have suffered physical, material
or mental harm as a direct result of an attack within the Tribunals jurisdiction.62
By accepting a victims application and granting VPP status, the Pre-Trial Judge
decides that there is prima facie evidence the victim has suffered harm as a result
of the crimes alleged against the accused in the indictment, a finding that is then
either confirmed or annulled in the final judgment.63 Consequently, we consider that
during trial the very existence of each VPP might be construed as constituting a
specific accusation, separate and additional to those made by the Prosecution. An
accused is generally entitled to mount a defence against such accusations.64 If VPPs
are not required to disclose their identity at all, this would amount to an anonymous
accusation against the accused, in breach of fair trial rights guaranteed under Article
16 of the Statute.65
29. Without knowledge of the identities of VPPs, Defence counsel would likely
not be in a position to effectively challenge the status of individual victims before the
final judgment of the Trial Chamber identifying them as such.66 For example, it would
be impossible for the Defence to challenge the veracity of victims statements on
their applications for participation. Nor would they have the information necessary
62 Art. 25 STL St; Rules 2, 86 STL RPE; see also Decision on Victims Participation.
63 Decision on Victims Participation, para. 3.
64 Pursuant to the audi alteram partem principle, a decision that is not entirely and unconditional favourable to an
individual must not be taken without allowing that individual to state their position on that issue. In a criminal
trial, the right to an adversarial trial means that both prosecution and defence must be given the opportunity to
have knowledge of and comment on the observations filed and evidence adduced by the other party (ECtHR,
Laukkanen and Manninen v. Finland, 50230/99, Judgment, 3 February 2004, para. 34). This extends beyond
evidence relating to the alleged offence (ECtHR, Kamasinski v. Austria, 9783/82, Judgment, 19December
1989, para. 102). Further, an accused person has a right to acquaint himself, for the purposes of preparing
his defence, with the results of investigations carried out throughout the proceedings as part of the right of a
criminal defendant to adequate facilities to prepare their defence (ECommHR, Jespers v. Belgium, App. No.
8403/78, 29 September 1982, para. 56). This principle is a corollary of several fair trial rights, see International
Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (ICCPR); Art. 14 (1) (right to a
public hearing); Art. 14 (3) (a) (right of an accused to be informed promptly and in detail of the charges against
him/her and the right of an accused to defend him or herself); Art. 14 (3) (b) (right to adequate time and facilities
to prepare a defence).
65 An accused is entitled to a fair and public hearing under Article 16 (2) STL St. An accused person in criminal
proceedings is also entitled to be informed promptly and in detail of the nature and cause of the charge against
him or her and to have adequate time and facilities to prepare his or her defence: Article 16 (4) (a)-(b) STL St.
66 See Rule 86 (G) STL RPE.
71
to uncover any false declarations or fabricated identities before the final decision.67
Such a situation might conceivably lead to prejudice to the accused. Further, the
Defence would have a limited ability to challenge the extent of victim participation,
as they would not be in a position to properly assess whether or not the proposed
participation relates to the victims personal interests.
30. We also accept, as argued by the Sabra Defence before the Pre-Trial Judge,
that total anonymity has the strong potential to limit the ability of the Defence to
request the disclosure of relevant exculpatory information from the LRV, as the
Defence is unable to identify relevant material that may be in the possession of VPPs
and target their requests accordingly.68 Similarly, VPP anonymity would potentially
prevent the Defence from identifying and raising before the court other challenges,
for instance with respect to witnesses who are in some capacity connected to the
VPPs. It is not at this stage possible to predict all potential fairness issues that might
arise if anonymous victim participation were accepted. Suffice it to say that those we
have mentioned carry the strong potential to have a prejudicial effect on the accused.
We therefore hold that the Pre-Trial Judge did not err when finding that anonymity
of VPPs vis--vis the Accused would not allow them a full defence.
31. Hence, although we recognize the rights of victims and the importance of their
participation in these proceedings, we find that total anonymity is so prejudicial to
the rights of the accused and the fair conduct of the trial that this exceptional measure
should not be available in these proceedings, especially in consideration of the fact
that extensive protective measures are otherwise available (redactions of sensitive
information, delayed disclosure, anonymity vis--vis the public etc.).
67 In the Lubanga Judgment, the ICC Trial Chamber withdrew the rights of nine persons to participate as victims,
finding that there was a real possibility that some of them had fabricated their claim for victim status or had,
at the instigation or encouragement of others, stolen the identities of others in order to receive the benefits of
participating in the proceeding as a victim. This was discovered when the victims appeared as witnesses before
the Trial Chamber, see ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of
the Statute, 14 March 2012, paras 484, 502.
68 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Sabras Consolidated Response to the Motions of the
Legal Representative of Victims for Protective Measures (Anonymity) of Twenty-Three Victims Participating
in the Proceedings, 16 November 2012, para. 34.
72
E.
Whether the Pre-Trial Judge erred in finding that total anonymity of

VPPs entails prejudice in the proceedings before national jurisdictions
32. In providing another reason for rejecting total anonymity of VPPs, the PreTrial Judge stated that under Article 25, which provides for compensation to victims,
the accused is entitled to know the identity of the claimant VPP in order to be able
to contest whether the claimant was indeed harmed by the accuseds alleged criminal
act, and is thereby entitled to seek compensation.69 The LRV argues the Pre-Trial
Judge erred in making this finding.70 He submits that the Pre-Trial Judge ignored
the provisions of Rule 86 (G), which also allow persons other than VPPs to seek a
certified copy of the judgment in order to seek compensation before national courts.
He adds that there would also be no prejudice in the present criminal proceedings,
which are distinct from civil litigation in a different jurisdiction. Whether a victim
may seek compensation anonymously should therefore be left to the relevant
domestic courts.71
33. Under Article 25 of the Statute and Rule 86 (G) of the Rules, persons who have
suffered harm as the result of the commission of crimes by an accused convicted by
the Tribunal may bring an action in a national court in order to obtain compensation, if
they are identified as victims in the final judgment, or otherwise consider themselves
to be victims. Article 25 (1) gives the Tribunal the specific power to identify victims
who have suffered harm as a result of the commission of crimes by an accused
convicted by the Tribunal.
34. The extent to which a domestic court can rely on determinations on victim
status in a final judgment of the Tribunal is properly a matter for that court. This
includes determining any prejudice to the accused that may result from the anonymity
of claimants in civil compensation claims. We therefore conclude that to the extent
that the Pre-Trial Judge based his decision on any such potential prejudice arising
from litigation before domestic courts, he was in error. We further note that VPP
status is not a condition-precedent of a victims ability to seek compensation in a
70 Appeal, paras 62-63; see also VPU Submission, para. 8.
73
national court under Article 25 and Rule 86 (G). However, we note that the PreTrial Judges determination that total anonymity is not a valid protective measure
for VPPs before the Tribunal was not exclusively based on this specific finding. His
error therefore does not invalidate the Impugned Decision.
F.
Whether the Pre-Trial Judge erred in holding that Rule 93 of the

Rules is not applicable to VPPs
35. The Pre-Trial Judge acknowledged that the Rules provide for total anonymity
for witnesses in certain circumstances. Referring to the relevant Rule 93, he noted
that these are tightly constrained by a special procedure, and they does [sic] not
apply to VPPs.72 The LRV argues that this finding is erroneous. He claims that given
the acceptance of anonymous witness testimony under Rule 93, anonymity of VPPs
cannot be considered to be impermissibly prejudicial to the Defence.73
36. We are not persuaded by the LRVs argument. The question of witness
anonymity has no bearing on the present matter. With respect to witnesses, total
anonymity may be exceptionally justified on the basis that it is the only way for a
witness to give testimony without being put at risk. But unlike witnesses, who may
be compelled to give testimony,74 victims choose to participate in the proceedings
freely in order to access the participatory rights and other benefits of VPP status.
Enjoyment of these rights is explicitly made conditional on victim participation
being consistent with the rights of the accused and the fairness of proceedings under
Article 17 of the Statute. For this reason, victim anonymity and witness anonymity
must be treated as separate and distinct matters. There is also nothing nonsensical
in the fact that a VPP who also testifies as a witness may be granted anonymity
if such anonymity meets the stringent and exceptional requirements of Rule 93.75
Indeed, that individual would receive this protection only because of risks related to

74 See Rules 78, 130, 150, 151, 165 STL RPE.
75 Contra Appeal, para. 70.
74
their giving of evidence, which may be involuntary. On the other hand, VPPs who do
not testify as witnesses cannot draw on the same exception.
G.
Whether the Pre-Trial Judge failed to apply a balancing approach
In the Impugned Decision, the Pre-Trial Judge held that in relation to

the establishment of protective measures for VPPs the determination is not
whether the accuseds rights are prejudiced as a result of the measure, but
rather whether the interests of justice require that the accused be deprived
of their rights, or part of them, in this regard, and in the affirmative, whether
a balance between the interests concerned can be established.76 The LRV
argues that while the Pre-Trial Judge correctly articulated the test he failed to
apply it because he did not conduct a balancing exercise between the various
concerned interests.77
37.
38. We first note that contrary to the LRVs submission it is clear from the
Impugned Decision as a whole that the Pre-Trial Judge did not merely consider
the interests of the accused in isolation. Indeed, for those protective measures that
are explicitly available under the Rules, the Pre-Trial Judge expressly referred to
proportionality principles.78 However, with respect to the issue of anonymity vis-vis the parties, the Pre-Trial Judge cautioned that such a measure inherently risks
violating the rights of the accused.79 As for total anonymity, he forcefully stated
that it would be not conceivable to convict a person for a crime committed against
a VPP who is involved in the trial proceedings and yet, by remaining anonymous,
does not allow the accused a full defence.80 In other words there would simply be
no counterbalancing measure available to remedy the prejudice to the accused. In
particular, as we have held above, even the participation of passive or silent VPPs
would still be inherently prejudicial. In such circumstances, it would have been futile
for the Pre-Trial Judge to consider the interests of the VPP, especially given that
78 Impugned Decision, paras 19, 28-31.
75
under the mandate of Article 17 of the Statute VPP participation is permissible only
insofar as it does not prejudice the rights of the accused. We have noted the serious
concerns of the LRV that some VPPs might decide to discontinue their participation
if their identities are revealed to the Defence and the Prosecutor.81 However, while the
Statute mandates us to protect the rights of the victims, in particular their entitlement
to participate in the proceedings, it places paramount importance on the right of the
accused to a fair trial.82 The accuseds rights must therefore prevail.
H. Conclusion
39. In sum, we hold that the totally anonymous participation of VPPs in the
proceedings is generally prejudicial to and inconsistent with the rights of the accused
and the fairness of the trial and is not a valid form of victim participation within the
meaning of Article 17 of the Statute. This includes passive or silent observer
VPPs. The Pre-Trial Judge was therefore correct in finding that totally anonymous
participation by victims is inherently prejudicial in the present proceedings and that
the identities of VPPs should be disclosed sufficiently in advance to give the Defence
adequate time to prepare.83
40. We note that this appeal does not affect the availability of the other protective
measures that victims may request under the Statute and Rules, which are extensive.
41.
We accordingly dismiss the Appeal.
81 Appeal, para. 73; see also VPU Submission, paras 27-29.

82 See, e.g., ICTY, Prosecutor v. Simi, IT-95-9-A, Judgement, 28 November 2006, para. 71 (Any accused before
the International Tribunal has a fundamental right to a fair trial, and Chambers are obliged to ensure that this
right is not violated.); ICTY, Prosecutor v. Aleksovski, IT-95-14/1-A, Judgement, 24 March 2000, para.104
(The right to a fair trial is, of course, a requirement of customary international law.); see also STL, Prosecutor
v. Ayyash et al., STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,
Perpetration, Cumulative Charging, 16 February 2011, para. 32 (referring to the overarching principle of fair
trial).
83 Impugned Decision, paras 30-31.
76
DISPOSITION
FOR THESE REASONS;
THE APPEALS CHAMBER;
FINDS the Appeal admissible, Judges Riachy and Nsereko dissenting;
UNANIMOUSLY DISMISSES the Appeal.
Judge Baragwanath appends a Concurring Opinion.
Judges Riachy and Nsereko append a Joint Partially Dissenting Opinion.
Dated 10 April 2013,
Leidschendam, the Netherlands

Presiding
77
Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath)
CONCURRING OPINION OF JUDGE BARAGWANATH

I. Introduction
1.
My reasons for agreeing that we should entertain but dismiss this appeal differ
from my colleagues in the majority in relation to admissibility and elaborate on why
I agree with them in relation to the merits of the Appeal. I therefore write separately.
2.
Justice requires meticulous protection of the lawful rights of persons
suspected or accused of crimes. But, subject only to that absolute requirement,
the law should take care to protect those who have been victimized by crime. That
indeed is the raison dtre both of the criminal law and of this Tribunal. The Statute
of the Tribunal stipulates measures to protect the safety, physical and psychological
well-being, dignity and privacy of victims and witnesses. That is a policy which,
within the limits of a fair and expeditious trial, should receive full effect in decisionmaking. It is consistent with the reaffirmation in the United Nations Charter of
fundamental human rights and of the dignity and worth of the human person,1 which
must have particular resonance for victims of the grave crimes that have resulted in
the Tribunals creation under Chapter VII.2 Failure to apply such a policy would risk
re-victimizing victims.
3.
That is why on the first, procedural, issue I share the conclusion of Judges
Chamseddine and Hrdlikov that this Chamber should entertain the important
certified ground of appeal against the Pre-Trial Judges decision that permanent
anonymity with respect to the parties can never be ordered to protect a victim
participating in the proceedings. On the second, substantive, issue however I
agree with all my colleagues that permanent anonymity should not be ordered as
a protective measure. Ineed to explain why, despite the reason on which my first
answer is based, I have concluded that refusal of victim anonymity is not merely a
norm from which there may be departure in limited circumstances but, as the PreTrial Judge held and this Chamber agrees, an absolute.
1
Preamble, Charter of the United Nations (UN Charter).
SC Res. 1757, UN Doc. S/RES/1757 (30 May 2007), (Second Recital, [r]eaffirming its strongest condemnation
of the 14February2005 terrorist bombings []).
78
II.
The procedural issue
4.
The policy of the Statute is evident from Articles 12 (4), 17 and 22 which are
to be read in the context of the UN Charter. Article 12 (4) requires the establishment
of a Victims and Witnesses Unit which will provide measures to protect the safety,
physical and psychological well-being, dignity and privacy of victims and witnesses.
It could be read down, as merely providing bureaucratic procedures. It can also be
read, as I interpret it, as the expression of a policy which is broader in scope and
more consonant with the spirit of the whole Statute. Article 17 states that where the
personal interests of victims are concerned, the Tribunal shall permit their views and
concerns to be presented and considered at stages of the proceedings determined
to be appropriate by the Pre-Trial Judge or the Chamber in a manner that is not
prejudicial to or inconsistent with the rights of the accused and a fair trial. Article
22 goes so far, in the interests of victims as well as the public, as to provide for trial
in absentia. Thus, Article 12 (4) acknowledges the interests of victims; Article 17
gives victims with such interests a significant rightthat of being heard; Article 22
recognizes that victims as well as the public should be able to see the case come to
trial rather than be buried in an archive, so long as stringent conditions for ordering
trial in absentia are met3 and the absent accused is guaranteed retrial at his election
if he comes forward or is arrested. Rules 86 and 87 of the Rules of Procedure and
Evidence (Rules) then refine the procedures for victims to receive by order of the
Pre-Trial Judge the status and specific participation rights of a victim participating
in the proceedings (VPP). These pull together to bear out the policy of Article 12
(4) as informing the approach to be adopted by Judges on interpretation of victims
status before this Tribunal.
5.
VPPs may include both immediate victims, who have suffered injury and are
among the ones named in the indictment, but also secondary victims who have lost
or sustained injury to a loved one and who are not so named.
3 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Corrected Version of Decision on Defence

Appeals against Trial Chambers Decision on Reconsideration of the Trial In Absentia Decision, 1 November
2012, para. 31.
79
6.
In determining the first issue Lord Clarkes dissenting remark in Al Rawi et al.
v Security Service et al. may be borne in mind:
One of the problems raised by the appeal is that the declaration is stated in
absolute terms, without reference to the facts of a particular case. I am firmly
of the view that it is in general undesirable to determine bare questions of law
in this way. I would expect the court ordinarily to require the relevant legal
question to be decided in a particular factual context.4
7.
Since we face the same problem we must take into account not only the easy
cases, where the presumption of openness can safely apply, but also the argument that
there could be an extreme case, as where it is asserted that (because of deep concern
about the enormity of the crime and its effects) a VPP will suffer psychological
injury if deprived of that status, yet will be at serious risk of death or grave physical
or mental harm whether personally or to someone close if an anonymity order is
declined.5
8.
Neither the Statute nor the Rules expressly authorize appeal from the decision
of the Pre-Trial Judge. In domestic law that would bar any appeal. But as we decided
in El Sayed,6 the Statute and Rules are not to be read as a comprehensive codification
of the law of this international tribunal. In that case we were not prepared to attribute
to the Security Council or the Plenary of Judges who adopted the Rules an intention
to decline access to appeal in a case simply not contemplated by either, when to do
so would have presented risk of grave injustice.
9.
Such could arguably be the consequence of cases falling within paragraph
7 above. The logical possibility of such a case requires in my judgment the same
conclusion as in El Sayed, that an entitlement to appeal, adopting Rule 126 by
analogy, is to be inferred from the policy of the Statute and the consequences of an
erroneous decision at first instance.7
4
United Kingdom, Supreme Court, [2011] U.K.S.C. 34, [2012] 1 A.C. 531 (13 July 2011), (Al Rawi) para. 125.
This formulation adapts the language of Rule 93 concerning anonymous witnesses.
STL, In the matter of El Sayed, Decision on Appeal of Pre-Trial Judges Order Regarding Jurisdiction and
Standing, CH/AC/2010/02, 10 November 2010, in particular paras 54-57.
See also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals against
the Trial Chambers Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal,
80
III. The substantive issue

10. Generally for the reasons given by my colleagues, I accept that normally the
identity of a VPP should be disclosed to the accused. Moreover a decision by a
VPP to undertake the active forms of participation permitted by Rule 87, such as
requesting the Trial Chamber to call witnesses or tender evidence, or to examine
and cross-examine witnesses and file motions and briefs, or make submissions on
sentence, would necessarily entail loss of anonymity. That is required by the Statute
and Rules which reflect settled principles of law for the protection of an accused,
which are common to the highest standards of international justice with which we
are to conform.8 The precept that one must know ones accuser is age-old and deepset in any concept of procedural fairness. So recent decisions of final authority have
emphasized both the open justice principle9that subject to certain established and
limited exceptions trials should be conducted and judgments given in public; and
also the audi alteram partem principlethat a party has a right to know the nature
of the case against him, the evidence on which it is based, and the identity of his
accuser.10 So there can be no scope for any long-term or permanent anonymity order
for a VPP who is an active accuser.
11. But the appeal is dealing with an absolute: the Pre-Trial Judge held that in no
circumstances could total anonymity be ordered. It is argued that the same principle
applies to a VPP who plays no active part in the accusatorial process. The issue for
us is whether he was right to give such an absolute answer.11
Separate and Partially Dissenting Opinion of Judge Baragwanath, 24October 2012, paras 14-28.
8
See in particular Art. 28 (2) STL St.
See Al Rawi, paras 10-11.
10 Id. at para. 12; United Kingdom, House of Lords, R v Davis, [2008] U.K.H.L. 36, [2008] A.C. 1128 (18 June
2008) (Rv Davis).
11 See the later discussion of anonymous evidence, below paras 21-25. In proceedings currently in process, six
members of a nine member UK Supreme Court have limited the absolute character of public justice by holding
that where Parliament has permitted an ex parte hearing in order to protect material that should not be disclosed
on the grounds of public interest and national security, the appellate court must possess similar authority. The
principle never say never appears to have been applied, see United Kingdom, Supreme Court, Bank Mellat v
HM Treasury, U.K.S.C. 2011/0040, Statement by Lord Neuberger: Further update on proceedings (21 March
2013) (available at: http://www.supremecourt.gov.uk/news/bank-mellat-v-hm-treasury.html). The case is on
appeal from: United Kingdom, Court of Appeal, Bank Mellat v HM Treasury, [2010] EWCA Civ. 483, [2012]
Q.B. 91 (4 May 2010).
81
A.
Whether the Pre-Trial Judge erred when finding that total anonymity
of VPPs entails prejudice to the accused in the proceedings before the
Tribunal
12. As my colleagues recognize, VPPs may seek different degrees of participation

in proceedings, including that of an entirely passive participant or silent observer.
13. For the reasons they give I have no doubt that it is only the latter types of VPP
who could arguably be considered for total anonymity. I recognize that even though
victims seeking to remain anonymous will not be called by the Legal Representative
of Victims to give evidence (unless the provisions of Rule 93 were exceptionally
held to apply) and may be prohibited from overt activity such as requesting Judges to
call or cross-examine witnesses, there are other ways in which a VPP may participate
in proceedings.
14. I prefer to reserve my opinion on whether the mere existence during trial of
a VPP whose role is purely passive constitutes a specific accusation, separate and
additional to those made by the Prosecution, against which an accused person is
entitled to mount a defence, and that this would risk breaching the fair trial rights
guaranteed under Article 16 of the Statute. But whatever ones view on the point, in
criminal law the precept that justice to the accused must both be done and be seen to
be done is of the utmost importance.
15. While it can be argued that, without knowledge of the identities of VPPs,
Defence counsel would not be in a position to effectively challenge their status before
the final judgment of the Trial Chamber identifying them as such,12 if their role is
purely passive, it may be asked what harm is in practice done to the fair trial rights
of the accused? But the answer, implicit in the decision of this Chamber, is that one
simply does not know. The principle favor rei which we employed in our Decision
on the Applicable Law13 must give the accused the benefit of any real doubt.
16.
I have concluded that is so even in this case, where the Defence has:
12 See Rule 86 (G) STL RPE.

13 STL, Prosecutor v. Ayyash et al., STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism,
Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, para. 32.
82
(1)
been notified in the indictment of the name of each of the victims killed and
of each of the persons injured in the attack of 14 February 2005;
(2)
formally agreed not to contest those assertions;14
and so the only literally unidentified VPPs are second-stage victims: those who
are victimized by the death or injury of another victim.15 Of course there can be
first stage victims who are identified as victims, but do not wish to be identified as
VPPs, because this would imply taking a stand against the interests of the accused.
But the Defence knowledge of the identity of each first-stage victim reduces the
force in the argument of the Sabra Defence before the Pre-Trial Judge, that total
anonymity must limit the ability of the Defence to request the disclosure of relevant
exculpatory information from the LRV.16 When as here the identity of the primary
victims is known, while logically possible it is not inevitable that VPP anonymity
would present a real risk of preventing the Defence from identifying and raising
before the court other challenges, for instance with respect to witnesses who are in
some capacity connected to the VPPs.
17. In the end however I agree with my colleagues that it is not at this stage
possible to predict all potential fairness issues that might arise if anonymous victim
participation were accepted.
18. From the overarching requirement of fairness to the accused follows that the
possibilities of unfairness, coupled with the public trial and audi alteram partem
principles, point to a general principle that there should be disclosure of victims
names. That is because anonymity of VPPs vis--vis the accused might not allow
them a full defence.
14 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Prosecutions Notice on the Implementation of the PreTrial Judges Order Regarding Narrowing Issues Contested at Trial, 19 March 2013, para. 5 (referring to
Confidential Annex D [Letter from the Defence Counsel to the Acting Chief of Prosecutions, 21 February
2013]).
15 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims Participation in the Proceedings,
8May2012, paras 35-84.
16 See STL, Prosecutor v, Ayyash et al., STL-11-01/PT/PTJ, Sabras Consolidated Response to the Motions of the
Legal Representative of Victims for Protective Measures (Anonymity) of Twenty-Three Victims Participating
in the Proceedings, 16 November 2012, para. 34.
83
19. The remaining question is whether justice to the accused can be achieved only
by a blanket refusal of VPP anonymity. I return to this point at paragraph 27 after
first considering Rule 93.
B.
Whether the Pre-Trial Judge erred in holding that Rule 93 of the

Rules as to witness anonymity is irrelevant to VPPs
20. Rule 93 provides a procedure whereby evidence of anonymous witnesses may

be provided in cases [w]here [...] there is a serious risk that a witness or a person
close to the witness would lose his life or suffer grave physical or mental harm as a
result of his identity being revealed and alternative measures for protection would
be insufficient to prevent such danger.
21. The Pre-Trial Judge acknowledged that this Rule provides for total anonymity
for witnesses in certain circumstances. Referring to its provisions he noted that
these are tightly constrained by a special procedure, and they [do] not apply to
VPPs.17 The LRV argues that this finding is erroneous. He claims that given the
acceptance of anonymous witness testimony under Rule 93, anonymity of VPPs
cannot be considered to be impermissibly prejudicial to the Defence.18
Arguments against relevance of Rule 93
22. It can be argued that Rule 93 is an explicit statutory authorization that makes
an exception from the rule that an accused must be able to confront his accusers.
There is no such exception for VPPs. So expressio unius est exclusio alterius: the
fact that it has been necessary to create an explicit exception under Rule 93 for
witnesses suggests that in the absence of such express exception for witnesses none
should be permitted. Moreover, Rule 159 (B) says that no conviction may be based
solely or to a decisive extent on the statement of the witness under Rule 93. So even
the exception of Rule 93 is very limited. It should not be used to allow a VPP to be
anonymous, especially when there is no such exception under the Rules.

84
Arguments in favour of relevance of Rule 93

23. By definition, a witness is one whose evidence is relevant to and tends to
prove or disprove an issue in the case. Such status is more obviously calculated to
prejudice an accused than a mere second-stage victim, whose identification may or
may not allow the Defence to embark on a process of enquiry whether that is so.
Comment
24. It is in my view beside the point that unlike witnesses, who may be compelled
to give testimony,19 victims choose to participate in the proceedings freely in order
to access the participatory rights and other benefits of VPP status. I have already set
aside those who wish to exercise active participatory rights. The VPPs status must
conform with the condition that it be consistent with the rights of the accused and
the fairness of proceedings under Article 17 of the Statute. But of course the whole
of the conduct of the case is subject to that very same condition. For this reason,
victim anonymity and witness anonymity are not in my view to be treated as separate
and distinct matters. It would be odd if a VPP who also testifies as a witness, and
so participated actively in the proceeding, were able to receive anonymity (if the
stringent and exceptional requirements of Rule 93 were met), when a purely passive
VPP could not.20 What must matter is the evaluation of the three basic values in play:
(i) the nature and extent of the risk to the victim (or witness); (ii) the nature and
extent of the risk to the accused of an unfair trial; and (iii) the need for the criminal
law to operate not only fairly but in a manner that while giving effect to principle
also reflects practicality.
C.
The approach of the Pre-Trial Judge
25. In the Impugned Decision, the Pre-Trial Judge held that in relation to the
establishment of protective measures for VPPs the determination is not whether
the accuseds rights are prejudiced as a result of the measure, but rather whether
the interests of justice require that the accused be deprived of their rights, or part of
19 See Rules 78, 130, 150, 151, 165 STL RPE.
85
them, in this regard, and in the affirmative, whether a balance between the interests
concerned can be established.21 In other words, the accused is to be deemed to
have been deprived of rights and the issue is whether that is outweighed by other
considerations. The LRV argues that while the Pre-Trial Judge correctly articulated
the test he failed to apply it because he did not conduct a balancing exercise between
the various concerned interests.22
26. The VPPs argument can perhaps be pitched higher: in logic it may be that in
some instances a factual investigation would satisfy the Judge or Chamber that there
is in fact no real risk to the accuseds rights. That would enable a challenge to the
conclusion of the Pre-Trial Judge that an order for permanent anonymity inherently
risks violating the rights of the accused23 and that it would be not conceivable to
convict a person for a crime committed against a VPP who is involved in the trial
proceedings and yet, by remaining anonymous, does not allow the accused a full
defence.24
D.
My approach
27. I have held (at paragraph 10 above) that the principles of open justice and audi
alteram partem require disclosure in the case of an active participant. I have also
held (at paragraph 18) that there must be a presumption that even the participation
of passive or silent VPPs would still be inherently prejudicial. The remaining
question is whether such presumption should be treated as irrebuttable.
28. I have noted the serious concerns of the LRV that some VPPs might decide
to discontinue their participation if their identities are revealed to the Defence and
the Prosecutor.25 However, while the Statute mandates us to protect the rights of the
victims, it places paramount importance on the fundamental right of the accused to a
fair trial. I reiterate that the accuseds right to a fair trial must always prevail.
25 Appeal, para. 73; see also VPU Submission, paras 27-29.
86
29. But granted the right of the accused to a fair trial, in the case of a passive VPP
the further issue to be considered is whether the interests of the victim can be such
as to justify departing from the presumption of disclosure and accepting the cost
and delay of embarking on an enquiry whether the presumption of disclosure can be
rebutted.
30. In considering the ultimate result I bear in mind the caution voiced by Lord
Hope in Al Rawi:
As the Court of Appeal said, [] it is a melancholy truth that a procedure
or approach which is sanctioned by the court expressly on the basis that it
is applicable only in exceptional circumstances none the less often becomes
common practice. Lord Shaw of Dunfermlines warning in Scott v Scott [1913]
AC 417, 477-478, against the usurpation of fundamental rights that proceeds
little by little under the cover of rules of procedure remains just as true today
as it was then. 26
31. I have posed and reflected on the extreme argumentfor a victim who will
suffer psychological impairment if not admitted as a VPP yet (adapting the test of
Rule 93) would lose his life or suffer grave mental or physical harm as a result of his
identity being revealed and cannot otherwise be protected.
32. The simple approach is to say that such person must put up with a lack of
any formal status as a VPP. Yet it can be argued that to do so would overlook the
elements of psychological well-being, dignity and privacy emphasized by Article
12 (4) of the Statute. Victims apply to become VPPs because that status matters to
them. Those who have not been identified in the indictment as primary victims wish,
because of the death or injury to a loved one, to be associated with the case. Must it
always be said that they are to be denied such status because otherwise the accused
cannot receive a fair trial?
33. This argument receives logical support from the analogy of Rule 93. Certainly
there are very powerful reasons to avoid anonymous evidence. They are lucidly stated
by Lord Bingham in the UK House of Lords case R v Davis.27 Yet both the Rules of
26 Al Rawi, para. 73.
27 See R v Davis, per Lord Bingham, paras 5, 34.
87
this Tribunal and legislation elsewhere acknowledge the possibility in some cases
of combining justice to an accused with some measure of anonymous evidence.28
If a witness can sometimes be permitted to give evidence anonymously, must not a
secondary victim a fortiori sometimes be given similar permission?
34. Despite the analogy of Rule 93 I have concluded that the answer is no. That
Rule is very exceptional.29 Although the importance of the interests of victims is
clearly emphasized by the Statute, Article 17 recognizes that they are subordinate
to those of the accused. Theirs is a double right both to fair trial and to expeditious
process. The logical argument I have posed at paragraphs 29 and 31 stacks possibility
on possibility and would inject complication and delay into a process which, while it
must be fair, must also seek reasonable expedition. Just as an accuseds entitlement
to a fair trial does not require perfection, so the present decision requires a practical
rather than theoretical evaluation. I regard the real possibility of the extreme case
as so remote as to be outweighed by the considerations advanced in the decision of
this Chamber. It follows that I agree both with its conclusion that the appeal must
be dismissed and, subject only to the minor points on which I prefer a different
approach, with its reasons.
28 For example, the New Zealand experience began with: New Zealand, Court of Appeal, R v Hughes [1986] 2
NZLR 129 (19 June 1986) where three of five judges required an undercover police officer to disclose his true
identity; two preferred immunity unless the identity was of such relevance that to withhold it would be contrary
to the interests of justice. In: New Zealand, Court of Appeal, R v Hines [1997] 3 NZLR 529 (15 August 1997)
(followed by the House of Lords in R v Davis) three judges held that a witness must give his name and address
and that any change should be effected by Parliament; two dissented. One of the majority held that had it been
appropriate to reconsider R v Hughes judicially the court should feel able to take a position different from a view
that the right of the accused to know the identity of a prosecution witness is absolute or very close to absolute.
Following the New Zealand Law Commissions Preliminary Paper 29: Evidence Law: Witness Anonymity
(September 1997) (available at: http://www.nzlii.org/nz/other/nzlc/pp/PP29/PP29.pdf) and its Report 42:
Evidence Law: Witness Anonymity (October 1997) (available at: http://www.lawcom.govt.nz/sites/default/files/
publications/1997/10/Publication_43_84_R42.pdf) the New Zealand Parliament responded to R v Hines by
enacting the Evidence (Witness Anonymity) Amendment Act 1997 (New Zealand) which empowered the High
Court, subject to stringent safeguards, to make a witness anonymity order. The Court of Appeal upheld such
orders made by the High Court in: New Zealand, Court of Appeal, R v Atkins [2000] 2NZLR 46 (9 February
2000).
29 See fn. 28 above.
88
89
Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko)
JOINT PARTIALLY DISSENTING OPINION OF

JUDGES RIACHY AND NSEREKO
1.
While respecting the majoritys views on the admissibility of this appeal,
we disagree with their decision and consider the appeal to be inadmissible for the
following reasons.
I.
The power of the Appeals Chamber to entertain appeals
2.
The power of the Appeals Chamber to hear appeals is conditioned by both
the status of the appellants (parties to a case or third parties, i.e. whether they have
standing to appeal) and the nature of the appeal (appeal against a final decision or
appeal against an interlocutory decision). As a general principle of law, and of trial
fairness, parties to a case are always allowed to appeal final decisions.1 That is not
the case with respect to interlocutory appeals or to appeals brought by persons who
are not parties to the case (whether against a final decision or an interlocutory one).
3.
In the latter two cases, the Appeals Chamber exercises its appellate powers only
on the basis of express statutory authoritythe Statute and the Rules of Procedure
and Evidence (Rules)empowering it to do so. Therefore, in the absence of such
authority, the Appeals Chamber cannot assume jurisdiction to hear the appeal, say by
inference or otherwise. There is ample persuasive authority in support of this view
from the jurisprudence of other courts, both national,2 and international.3
1
See para. 13 below.
See, e.g., United Kingdom, House of Lords, Attorney-General v. Sillem, 11 ELR 1200 (1864), pp. 1207-1208
(Lord Westbury stating that [t]he creation of a new right of appeal is plainly an act which requires legislative
authority. The court from which the appeal is given and the court to which it is given, must both be bound, and
that must be the act of some higher power. It is not competent to either tribunal or both collectively to create
any such right.); see also Ghana (formerly, Gold Coast Colony), Privy Council (on appeal from the West
African Court of Appeal), Moore v. Tayee [1935] A.C. 72 (26 October 1934), paras 75-76 (After all, it is to
be remembered that all appeals in this country and elsewhere exist merely by statute, and unless the statutory
conditions are fulfilled no jurisdiction is given to any court of justice to entertain them.); see also Australia,
Supreme Court of South Australia, James v. Keogh, 102 SASR 51 (2008), Layton J (dissenting), para. 156 (The
jurisdiction of the Supreme Court to hear an appeal cannot rise above its source.).
See, e.g., ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2799, Decision on the Urgent Request for Directions
of the Kingdom of the Netherlands of 17 August 2011, 26 August 2011, paras 7, 8 (overturning a Trial Chamber
decision granting the Kingdom of the Netherlands leave to appeal); ICC, Prosecutor v. Lubanga, ICC-01/0401/06-2823, Decision on the Registrars Submission under Regulation 24bis of the Regulations of the
90
4.
We have previously adopted this approach at the STL. In our decision of 24
October 2012, the majority found that the Appeals Chamber cannot entertain appeals
outside the Rules where the language of a rule is drafted in a specific and narrow
way and the issue is not one that the drafters of the Rules could not have foreseen.
In such cases, it cannot be said that there is a lacuna in the Rules that would allow an
appeal to be admitted exceptionally.4
5.
In the present case, our Rules do not grant any appeal as of right to victims
participating in the proceedings (VPPs) with respect to the issue of protective
measures. Regarding interlocutory appeals that are not as of right, the Appeals
Chambers powers are defined by the provisions of Rule126 of the Rules. In our
view, this Rule is not applicable to the present case, either directly or by analogy.
Court In Relation to Trial Chamber Is Decision ICC-01/04-01/06-2800 of 5 October 2011, 21 November

2011, para. 14 (where the Appeals Chamber stated that [t]he Appeals Chamber has consistently held that its
jurisdiction is clearly and exhaustively defined in the Statute and Rules of Procedure and Evidence and has
equally consistently rejected any attempts to bring appeals outside this defined scope of jurisdiction); see
also ICC, Situation in the Democratic Republic of the Congo, ICC-01/04-168, Judgment on the Prosecutors
Application for Extraordinary Review of Pre-Trial Chamber Is 31March 2006 Decision Denying Leave to
Appeal, 13 July 2006 (where the Appeals Chamber rejected an attempt to appeal a decision for which leave
to appeal was not granted); see also ICTY, Prosecutor v. Deli, IT-04-83-Misc.1, Decision on Prosecutions
Appeal, 1November2006, p. 3 (where the Appeals Chamber decided that there was no right of appeal against a
decision denying the amendment of the indictment because there is no lacuna in the Rules, which justifies the
Appeals Chamber considering this appeal proprio motu and because the Appeals Chamber has no inherent
authority to intervene in an interlocutory decision of a Trial Chamber, not subject to a right of appeal and to
which certification has been denied [...] on the basis of an allegation by the Prosecution that the Trial Chamber
has abused its discretion by not allowing the Prosecution amendments.); see also SCSL, Prosecutor v. Norman
et al., SCSL-04-14-T, Decision on Prosecution Appeal Against the Trial Chambers Decision of 2 August 2004
Refusing Leave to File an Interlocutory Appeal, 17January 2005, paras 32, 41 (where the Appeals Chamber
held that it may have recourse to its inherent jurisdiction, in respect of proceedings of which it is properly
seized, when the Rules are silent and such recourse is necessary in order to do justice. The inherent jurisdiction
cannot be invoked to circumvent an express Rule. [...] Where the Rules make provision for a particular situation,
it is it is [sic] not a proper exercise of inherent jurisdiction for a tribunal to substitute its own view of what the
rules should have been for what the Rules are.); but see contra ICTY, Prosecutor v. eelj, IT-03-67-R33B,
Public Redacted Version of the Decision on the Registry Submissions Pursuant to Rule 33(B) Regarding the
Trial Chambers Decision on Financing of Defence Rendered on 8 April 2011, 17 May 2011, para. 16.
4 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals against the Trial
Chambers Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 24 October
2012, paras 16-18.
91
II.
Rule 126 may not be construed in any way to allow victims a right of
appeal
6.
Rule 126 is drafted as generally applicable to all decisions for which
certification is required before they can be appealed. However, the Rule cannot be
construed as recognizing, either directly or by analogy, any right of appeal by VPPs.
A.
No ambiguity in Rule 126
7.
Paragraphs (A) and (C) of Rule 126 contain general provisions regarding
certification for interlocutory appeals. However, paragraphs (B) and (E) of the Rule
clarify that only a party may, under circumscribed conditions, file an appeal before
the Appeals Chamber. We have previously held that the interpretation of a legal
document must take into account not only its text, but also its context.5 Paragraphs
(B) and (E) provide such context to Rule 126. These provisions should be interpreted
so that they are internally consistent and provide a coherent interpretation of Rule
126. Thus, contrary to the majoritys views on this point, we consider that paragraphs
(A) and (C) of Rule 126 must be interpreted in conformity with paragraphs (B) and
(E) which allow only a party to file appeals. As such, there is no ambiguity in Rule
126 and thus no lacuna in the Rules.
B.
Victims are not parties
8.
Rule 2 of our Rules defines the parties as the Prosecutor and the Defence.
The Defence is also defined as the accused, the suspect and/or his counsel. Rule
2 contains a separate definition for VPPs. This explicit reference to VPPs clearly
demonstrates that they cannot be characterized as parties under our Statute and
Rules. They have a separate status which in turn means that they do not benefit from
the same rights as parties.
5 STL, Prosecutor v. Ayyash et al., STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism,
Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, paras 19-20.
92
9.
Unlike the parties, VPPs at the STL have a narrow right to present their views
and concerns.6 This right is subject to constraints under our Statute and Rules, which
tend to show that the spirit of the Statute and Rules does not allow them to participate
as full parties, and thus enjoy similar rights to parties.
10. For example, under Article 17 of the Statute, the participation of victims is
subject to the authorization of a Judge or Chamber, if said Judge or Chamber finds
that this participation is appropriate and does not violate the rights of the Defence.
Rule 87, which further elaborates on the modes of participation of victims at the
STL, shows that their participation is strictly regulated.7 For example, victims do
not have the right to call witnesses, but they may ask the Trial Chamber to do so
on their behalf. The Chambers authorization is also required for examination and
cross-examination of witnesses, for the production of evidentiary material, and the
filing of submissions by VPPs. This would not have been the case had the Statute
and Rules considered that victims shared the same status as parties. Indeed, contrary
to civil law systems such as Lebanon, VPPs at the STL are not parties civiles (civil
litigants considered to be a party in a criminal trial).
11. We also note that the International Criminal Court (ICC) has dealt with the
question of whether victims are parties and, on the basis of similar provisions, has
found that they are not.8
6
Art. 17 STL St.
7 We note that Rule 87 (D) provides that the Appeals Chamber can authorize victims to participate in the
proceedings before it. This may not be construed as a recognition of a general right of appeal of victims
participating in the proceedings. It only allows the Appeals Chamber to authorize victims to participate, which
would require the Chamber to already be seized of an appeal submitted to it by the parties. Rule 87 (D) can
also be considered to apply only at the appellate stage following a final judgment by the Trial Chamber. In
other words, this Rule is simply an application of Article 17 of the Statute which allows the Pre-Trial Judge or
a Chamber to authorize the victims participating in the proceedings to submit their views and concerns under
certain conditions.
8 ICC, Situation in the DRC, ICC-01/04-437, Decision on Application for Leave to Appeal the Decision on
Requests of the OPCV, 18 January 2008, pp. 3-4 (finding that the Office of Public Counsel for Victims lacks
standing to seek leave to appeal); ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1432, Judgment on the
Appeals of The Prosecutor and The Defence against Trial Chamber Is Decision on Victims Participation of 18
January 2008, 11July2008, para. 93 (finding that a victim is not a party); ICC, Prosecutor v. Katanga and
Chui, ICC-01/04-01/07-675, Reasons for the Decision on Victims and Witnesses Units considerations on the
system of witness protection and the practice of preventive relocation and Prosecutions request for leave
to file a response to Victims and Witnesses Units considerations on the system of witness protection and the
practice of preventive relocation, 11 July 2008, Dissenting Opinion of Judge G.M. Pikis, para. 4 (finding that
93
12. Thus, in our view, Rule 126 cannot be directly applied to VPPs, as they are not
considered to be parties.
C.
No possible application to victims by analogy
13. Contrary to the assertion of the majority, the Statute and Rules do not support
a right of VPPs to seize this Chamber with interlocutory appeals. Article 26 of the
Statute limits the power of appeal to only the accused and the Prosecutor. This
provision is consistent with general principles of criminal law and international
human rights law, which recognize a right of appeal of an accused person9 but do
confer a comparable right on victims when they do not have the status of partie
civile.10 Thus, we consider that, generally under the Statute, only parties may bring
an appeal. Exceptions to this principle must be clearly articulated in the Rules and
must be narrowly applied to the situation foreseen in that text.
14. When our Rules accord to the victims a right to appeal they do so explicitly.
For example, Rule 86 (C) explicitly grants an unsuccessful applicant for the status
of victim participating in the proceedings a right to appeal a decision of the relevant
Judge or Chamber. It does not confer a similar right on victims under the circumstances
of this case. This limited right of applicants for victim status should not be extended
to all other victims participating in proceedings who may be aggrieved by a decision
of a Judge or Chamber. To extend a right of appeal to VPPs as is suggested by the
majority would be against the clear spirit of the Rules and of the Statute.
15. In addition, we do not share the majoritys view that because Rule 86 (D)
specifically prohibits appeals against decisions relating to the grouping of victims
in the proceedings and contains no general prohibition against participating victims
under the relevant provisions, parties are only the Prosecution and Defence); ICC, Situation in Darfur, Sudan,
ICC-02/05-192, Decision on the Application for Leave to Appeal the Decision on Application under Rule 103,
19 February 2009, p. 5 (refusing leave to appeal on the basis that the applicant was not a party).
9 For example, Article 14 (5) of the International Covenant on Civil and Political Rights (adopted 16 December
1966,999 U.N.T.S. 171) only recognizes a right to appeal of a person convicted of a crime. Article 2 (1)
of the Additional Protocol 7 to the European Convention on Human Rights (Council of Europe, adopted
22November1984,E.T.S. 117, as amended by Protocol No. 11, adopted 11 May 1994, E.T.S. 155) also
mentions this right as one belonging to a convicted person.
10 ECtHR, Garimpo v. Portugal, 66752/01, Final Decision on Admissibility, 10 June 2004.
94
right to file interlocutory appeals such appeals are argumentum e contrario

admissible.11 We consider that this explicit prohibition was inserted in the Rules to
ensure clarity. Indeed, Rule 86 (C) allows an appeal as of right. And in light of the
close connection between the status of VPPs and their grouping, it was important to
specify that only unsuccessful applicants are allowed to appeal decisions on victim
status, whereas decisions regarding grouping are not subject to appeal.
16. It is thus not enough that the Rules contain no provisions excluding VPPs from
lodging interlocutory appeals. Rather, the Statute contains a general presumption
that non-parties are not permitted to lodge appeals, and the Rules contain no explicit
provisions granting VPPs a right of appeal in relation to protective measures. There
is thus no legal basis for such a right.
17. Whilst dealing with an issue similar to the one at hand the Appeals Chamber
of the International Criminal Tribunal for the former Yugoslavia stated as follows:
If this view of the matter appears overly legalistic, any other ruling would
open up the Tribunals appeals procedure to non-parties witnesses, counsel,
amicus curiae, even member of the public who might nurse a grievance against
a Decision of the Trial Chamber. This could not be. The Tribunal has a limited
appellate jurisdiction which categorically cannot be invoked by non-parties.12
18. We therefore consider that the Appeals Chamber cannot invoke Rule 126,
either directly or by analogy, as the basis for holding the appeal admissible. To do so
would amount to an unwarranted extension of the Appeal Chambers powers.
III. Article 17 of the Statute cannot found the Appeals Chambers jurisdiction
19. We disagree with the majoritys view that the appeal can be held admissible
on the basis of Article 17 of the Statute. This article merely mandates the Tribunal to
permit victims to present their views and concerns at stages of existing proceedings
before a Chamber where that Chamber determines it to be appropriate. Presenting
views and concerns does not include initiating new proceedings or, as is held by
11 See Majority Opinion, para. 13.
12 ICTY, In the Case of Dragan Opaci, IT-95-7-Misc.1, Decision on Application for Leave to Appeal, 3 June
1997, para.6.
95
the majority in this case, mounting an appeal before the Appeals Chamber. In our
view, proceedings before the Appeals Chamber constitute a separate and distinct
stage of the proceedings from the proceedings before the Pre-Trial Judge; the two
should not be conflated.13 Thus, permitting an appeal would be to allow the Legal
Representative of Victims (LRV) to initiate new proceedings.14 Neither the Statute
nor the Rules authorize such proceedings.
20. The majority also relies on the notion of personal interest, as mentioned in
Article 17, and considers that VPPs have standing to file appeals before the Appeals
Chamber when their interests are fundamentally concerned.15 In our view, this
criterion creates a new standard which does not exist in the Statute. As a general
rule, an appellant must always demonstrate that he or she has standing to appeal16
otherwise the appeal would be inadmissible. However, the majority here is adding
fundamentally concerned interests as a basis for the right to appeal. We find no
justifiable basis for this addition.
21. This is equally true where the Statute or Rules permit the LRV to seize the
chamber of first instance with a request in relation to a specific matter relating to
their personal interests.17 Such provisions do not expressly confer a right of appeal
on victims in relation to these matters and thus should not be interpreted as to enlarge
the jurisdiction of the Appeals Chamber.
13 We find persuasive authority for this view in the ICC case of Prosecutor v. Lubanga, ICC-01/04-01/06-2823,
Decision on the Registrars Submission under Regulation 24bis of the Regulations of the Court In Relation
to Trial Chamber Is Decision ICC-01/04-01/06-2800 of 5 October 2011, 21 November 2011, para. 13; ICC,
Prosecutor v. Lubanga, ICC-01/04-01/06-824, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against
the decision of Pre-Trial Chamber I entitled Dcision sur la demande de mise en lbert [sic] provisoire de
Thomas Lubanga Dyilo, 13 February 2007, para.43.
14 This remains so notwithstanding the fact that the victims participating in the proceedings were part of the
proceedings before the Pre-Trial Judge.
15 See Majority Opinion, paras 14-18.
16 On the issue of standing see STL, In the matter of El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial
Judges Order Regarding Jurisdiction and Standing, 10 November 2010, paras 60-65.
96
IV.
The certification granted by the Pre-Trial Judge is not a recognition of a

right of appeal for victims participating in the proceedings
22. Finally, we agree with the majoritys view to reject the LRVs argument that
the appeal is admissible because neither the parties nor the Pre-Trial Judge raised any
objections to the request for certification.18 We add that the certification granted by the
Pre-Trial Judge has no bearing on the admissibility of the appeal. The determination
of whether VPPs have a right to appeal falls squarely within the purview of the
Appeals Chamber, which is the only competent body to decide this matter.
Juge Ralph Riachy
Juge Daniel David Ntanda Nsereko
97
98
5.
Case name:
Before:
Pre-Trial Judge
Title:
Decision Relating to the Prosecution Requests

of 8 November 2012 and 6 February 2013 for
the Filing of an Amended Indictment
Short title:
Leave to Amend Indictment PTJ
99
100
THE PRE-TRIAL JUDGE

Case No.:
STL-11-01/PT/PTJ
Before:
Registrar:
Mr Herman von Hebel
Date:
12 April 2013
Original language:
French
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION RELATING TO THE PROSECUTION REQUESTS OF 8

NOVEMBER 2012 AND 6 FEBRUARY 2013 FOR THE FILING OF
AN AMENDED INDICTMENT
Mr Norman Farrell

Mr Eugene OSullivan

Mr Peter Haynes

Mr Antoine Korkmaz
Mr David Young
101
I.
Subject of the Decision
1.
By way of the present Decision, the Pre-Trial Judge rules on the Prosecution
request of 8November 2012 seeking leave to file an amended indictment (respectively,
the Request of 8 November 2012 and the Indictment of 8November 2012),
in accordance with the Decision of the Pre-Trial Judge of 25 October 2012 (the
Decision of 25October 2012) and the issuing of arrest warrants including transfer
and detention orders for the accused referred to therein.1 The Pre-Trial Judge also
rules on the Prosecution request of 6February 2013 for leave to include further
amendments to the Indictment of 8 November 2012, to which is joined a new amended
indictment (respectively, the Request of 6February 2013 and the Indictment of
6February 2013).2
II.
Background to the proceedings
2.
On 28June 2011, the Pre-Trial Judge confirmed the counts contained in the
Indictment of 10June 2011 and allowed Messrs.Ayyash, Badreddine, Oneissi and
Sabra to be charged (respectively, the Decision of 28June 2011, the Indictment
of 10June 2011 and the Accused).3
3.
On 17 August 2012, the Prosecution seized the Pre-Trial Judge with a request
for leave to file an amended indictment (the Request of 17August 2012).4 The
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Filing of the Amended Indictment in
Compliance with the Decision of 25October 2012 & Request for Amended Arrest Warrants and Orders/
Requests for Transfer and Detention, confidential, 8November 2012.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Request for Leave to Include
Further Amendments to its Proposed Amended Indictment, 6February 2013.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Decision Relating to the Examination of the
Indictment of 10 June 2011 issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein
Hassan Oneissi & Mr Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version dated the
same day was filed on 16August 2011. This Decision confirms the counts included in the Indictment of 10June
2011 with the exception of the attempt to cause the death of 231other persons, which does not fall within the
constituent elements of the terrorist act but within those of attempted intentional homicide.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Request for Leave to Amend
the Indictment Pursuant to Rule71(A)(ii), confidential, 17 August 2012, with a public redacted version dated
18September 2012.
102
Prosecution included with that Request an amended indictment (the Indictment of

17August 2012).
4.
On 4October 2012, the Pre-Trial Judge issued the Prosecution with an order
for clarification of certain proposed amendments in the Request (the Order of
4October 2012).5
5.
On 15October 2012, the Prosecution responded by submitting a clarification
brief (the Clarification Brief).6
6.
On 25 October 2012, the Pre-Trial Judge ruled on the Request of 17August
7
2012. He granted that request, subject to a number of amendments, and invited the
Prosecution to file a new indictment incorporating them.8
7.
Pursuant to the Decision of 25 October 2012, the Prosecution filed the
Indictment of 8November 2012.9 The Prosecution, moreover, added two further
amendments in addition to those allowed by that Decision. It also requested the PreTrial Judge to issue arrest warrants including transfer and detention requests against
the Accused.10 Lastly, the Prosecution sought leave to redact some information
considered confidential from the Indictment of 8November 2012 and from annexesA
andB included therewith.11
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order for Clarification of Certain Proposed
Amendments in the Prosecutions Request for Leave To Amend the Indictment of 17 August 2012, 4October
2012.
STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Submissions Pursuant to the
Order for Clarification of Certain Proposed Amendments in the Prosecutors Request for Leave to Amend the
Indictment of 17August 2012, confidential, 15October 2012.
STL, The Prosecutor v. Ayyash et al., Case No. STL-01/PT/PTJ, Decision on the Prosecution Request of 17
August 2012 for Leave to File an Amended Indictment, 25 October 2012.
Id., Disposition.
Request of 8 November 2012, paras 4 and 7 to 8.

11 Id., para. 3.
103
8.
On 13 November 2012, Counsel for the Defence of Messrs.Ayyash,
Badreddine, Oneissi and Sabra (the Counsel for the Defence) were invited to
respond to the Request of 8November 2012,12 which they did not do.
9.
On 19 December 2012, the Prosecution requested the Pre-Trial Judge to stay
his Decision relating to the Indictment of 8November 2012 in order for him to
review it once again, and, if necessary, to add to or amend it.13
10. On 6 February 2013, the Prosecution sought leave to amend the Indictment
of 8November 2012 and filed the Indictment of 6February 2013 including all the
proposed amendments.14
11. On 12February 2013, Counsel for the Defence were invited to respond to the
Request of 6February 2013.15
12. On 19 and 20 February 2013, Counsel for the Defence of Messrs.Sabra16 and
Oneissi17 responded to the Request of 6 February 2013 (respectively, the Sabra
Response and the Oneissi Response).
13. On 6 March 2013, the Pre-Trial Judge granted the Prosecution leave to
file a reply to the response from the Counsel for the Defence. He also directed
the Prosecution to produce the additional evidence in support of the amendments
requested on 6February 2013 and invited Counsel for the Defence to respond to the
Prosecution reply (the Order of 6 March 2013).18 Furthermore, the Pre-Trial Judge
12 STL, The Prosecutor v. Ayyash et al., Case No. STL-01/PT/PTJ, Scheduling Directive from the Pre-Trial Judge,
confidential, 13November 2012.
13 Transcript, p. 33-34 [French version] (30 January 2013).
14 Request of 6 February 2013, Annex A.
15 STL, The Prosecutor v. Ayyash et al., Case No. STL-01/PT/PTJ, Scheduling Directive from the Pre-Trial Judge,
confidential, 12February 2013.
16 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Sabra Response to Prosecution Motion to
Amend the Amended Indictment, 19 February 2013.
17 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Rponse de la Dfense la Prosecution
Request for Leave to Include Further Amendments to its Proposed Amended Indictment, confidential,
20February 2013.
18 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order granting the Prosecution Request
for Leave to Reply to Defence Responses to the Prosecutions Further Amendments to the Proposed Amended
104
requested the Prosecution to provide him with explanations regarding the allegations
contained in paragraphs3 b) and 17 c) of the Indictment of 8November 201219
regarding the relationship between Mr Ayyash and the user of the purple231
telephone in connection with the false claims of responsibility.
14. On 14 March 2013, the Prosecution filed a reply (the Prosecution Reply)20
to which Counsel for the Defence did not respond.
III. Statement of reasons
15. After having ruled on his jurisdiction (A) and recalled the applicable law (B),
the Pre-Trial Judge shall review in succession the Request of 8 November 2012
(C) and the Request of 6 February 2013 (D). He shall rule lastly on the issuing of
arrest warrants including transfer and detention orders (E) and on the requirements
of confidentiality (F).
A. Jurisdiction
16. Rule71(A)(ii) of the Rules of Procedure and Evidence (the Rules) provides
that between the moment when an indictment has been confirmed and when the case
is assigned to the Trial Chamber, the Prosecution may only amend the indictment if
authorised by the Pre-Trial Judge. Insofar as the original indictment was confirmed
on 28June 2011 and that the Trial Chamber has not yet been seized of the case in
accordance with Rule95 of the Rules, the Pre-Trial Judge has jurisdiction to rule on
the Request of 8November 2012 and on the Request of 6February 2013.
B.
Applicable Law
17. Rule71(B) of the Rules provides that an indictment may only be amended if
there is prima facie evidence to support the proposed amendment and if [] the
Indictment, confidential, 6March 2013.
19 Paragraphs 3b) and 17c) of the Indictment of 8 November 2012 are identical to those of the Indictment of
6February 2013.
20 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Reply to Sabra Response to
Prosecution Motion to Amend the Amended Indictment, confidential, 14 March 2013.
105
amendment would not result in improper prejudice to the accused. As he recalled

in the Decision of 25 October 2012, the Pre-Trial Judge must, first and above all
else, take into account the effect of an amendment on the rights of the accused, in
particular to properly prepare his defence or to be tried without delay.21 To do so,
when an amendment is a substantive one, he must ensure that it is based on prima
facie evidence. If an amendment relates only to clarification, the Pre-Trial Judge
must ensure that it does indeed strengthen the preciseness of the indictment and,
thus, explain the content of the case and allow the accused to better comprehend
it.22 The accused shall then be able to prepare and, as necessary, adapt their defence
in terms of the clarification received.23 With that in mind, the Pre-Trial Judge has
pointed out that two elements should be considered: on the one hand, the delays in
the proceedings which might result from an amendment of the indictment and, on the
other hand, the benefit that the accused and the judges might derive from it.24
C.
The Request of 8 November 2012
18. The Pre-Trial Judge first recalls that the amendments proposed in the
Indictment of 8November 2012 were recapitulated in the Indictment of 6February
2013. He notes, moreover, that they reflect, in part, those allowed by the Decision of
25October 2012 relating to the Indictment of 17August 2012.
19. However, the Pre-Trial Judge notes that in the Indictment of 8 November
2012, the Prosecution wished to provide two new clarifications. On the one hand,
it intended to add to the last line of paragraph14(a) of the Indictment of 8November
2012 the words that were underlined in paragraph7 of the Request of 8November
2012.25 On the other hand, it requested that, in accordance with the evidentiary
analysis it has carried out, the number of telephone communications referred to in
21 Decision of 25 October 2012, para. 21.

22 Id., para. 22.
23 Ibid.
24 Ibid.
25 Request of 8 November 2012, para. 7.
106
paragraph 20 (b) of the Indictment of 8November 2012 be reduced from 213 to

212.26
20. The Pre-Trial Judge observes that these clarifications are amendments to the
Indictment of 17August 2012 which were not allowed by the Decision of 25October
2012. They therefore should have, in principle, been the subject of a request for
amendment filed in accordance with Rule71(A)(ii) of the Rules and, in any case,
they must meet the criteria provided for in Rule71(B) of the Rules.27 In particular,
the amendments must not be prejudicial to the rights of the Accused to properly
prepare their defence and to be tried without undue delay.
21. The Pre-Trial Judge considers that paragraph 14 (a) of the Indictment of
8 November 2012 mentioned above might provide clarification to strengthen the
preciseness of that Indictment. It is, consequently, in the interests of the Accused. The
second amendment indicated above contained in paragraph20(b) of the Indictment
of 8November 2012 rectifies a clerical error and has no influence on the rights of the
Accused. As a consequence, those two amendments are accepted. The Request of 8
November 2012 is based on that point.
22. However, insofar as the Indictment of 8November 2012 was the subject of a
request for amendment on 6February 2013, which must be ruled upon, the Pre-Trial
Judge considers that the Indictment of 8November 2012 must be dismissed.
D.
The Request of 6 February 2013

1.
The arguments of the Parties
23. In the Request of 6 February 2013, the Prosecution sought leave to classify the
amendments in two categories in order to clarify a number of allegations included in
the Indictment of 8 November 2012.
26 Id., para. 8.
27 Decision of 25 October 2012, paras 19-21.
107
24. The first category of amendments is aimed at removing the words and/or
from paragraphs15(c), 20(a) and38 of the Indictment of 8November 2012 and to
replace them with the words that have been highlighted in paragraphs12, 15 and17 of
the Request of 6February 2013.28 Moreover, in order to ensure consistency between
paragraphs15(c) and15(d), the Prosecution proposes amending paragraph15(d)
as indicated by the highlighting in paragraph13 of the Request of 6February 2013.29
The Prosecution states that those amendments are not prejudicial to the rights of the
Accused, that they strengthen the preciseness of the Indictment of 8November 2012
and are based on evidence which was already submitted in the context of the process
for confirmation of the Indictment of 10June 2011.30
25. The second category of amendments concerns the period during which
the conspiracy to commit a terrorist act namely the assassination of Mr Hariri
actually took place.31 Thus, according to the Prosecution, Messrs.Badreddine
and Ayyash agreed to commit the attack against MrHariri at some time during the
period between 11November 2004 the date of the first surveillance of MrHariris
movements and 14February 2005 the date the attack was carried out against
him.32 With regard to Messrs. Oneissi and Sabra, the Prosecution states that they
joined the conspiracy at a time between 22 December 2004 the date they first
visited the Arab University Mosque of Beirut in search of a suitable individual to
make the false claims of responsibility for the attack and 14 February 2005.33
With that in mind, the Prosecution proposes to amend paragraphs42, 42(a), 42(c)
and48 of the Indictment of 8November 2012 as indicated in paragraphs26, 27, 28
and29 of the Request of 6February 2013, respectively.34 As a consequence, it also
suggests amending Counts6 to9 of the Indictment of 8November 2012 and, in
particular, paragraphs58, 60, 62 and 64 as mentioned in paragraph32 of the Request
28 Request of 6 February 2013, paras 9-17.
29 Id., para. 13.
30 Id., para. 11.
31 Id., paras 18-32.
32 Id., para. 20.
33 Id., para. 21.
34 Id., paras 26-30.
108
of 6 February 2013.35 The Prosecution adds, in that regard, that, being secret by
nature, the existence of a conspiracy does not have to be formally established but
may be inferred from the totality of the evidence of the case at hand.36 Moreover, the
fact that the Prosecution extends the period during which the conspiracy occurred is
not likely to cause prejudice to the Defence which must, in any case, prepare itself to
meet the facts alleged in the Indictment of 8November 2012.37
26. The Oneissi Defence opposes the Request of 6 February 2013 for the
following reasons. The Prosecution omitted to precisely identify the facts and the
evidence on which it relies to propose further amendments.38 Moreover, to allow the
requested amendments would prejudice the rights of the Accused in that it would
prevent them from properly preparing their defence the date for the start of trial
being provisionally set for 25 March 2013 and would considerably extend the
scope of the allegations brought against the Accused.39
27. The Sabra Defence also requested the Pre-Trial Judge to dismiss the Request
of 6 February 2013 on the basis notably that: i)by seeking amendments to the
Indictment of 8November 2012, the Prosecution recognises de facto that it is not
in a position to prove the charges alleged therein;40 ii)the Prosecution is unable to
establish precisely when Mr Sabra became implicated in the conspiracy;41 iii)the
proposed amendments constitute new allegations which extend the period of the
conspiracy in which Mr Sabra allegedly participated and do not rely on specific
acts which might be imputed to him;42 iv)in that context, Counsel for the Defence
for MrSabra is not in a position to properly prepare his defence;43 and v)the
35 Id., paras 31-32.
36 Id., paras 23-24.
37 Id., para. 24.
38 Oneissi Response, paras 16-19.
39 Id., paras 20-32.
40 Sabra Response, para. 21.
41 Id., paras 27-29.
109
Prosecution should precisely identify the evidence on which it relies to submit these
new allegations.44
28. In its Reply, the Prosecution submits the following main arguments in support
of the Request of 6 February 2013: i)Defence Counsel have not demonstrated
that they would suffer a prejudice if the amendments proposed in the Request of
6February 2013 were to be allowed;45 ii)Defence Counsel have already challenged
defects of form before the Trial Chamber that relate to paragraphs38 and 42(c) of the
Indictment of 10 June 2011 with regard to which the Pre-Trial Judge declared himself
to be without jurisdiction;46 iii)by contesting, on the basis of pure speculation, the
amendments to the Indictment of 10 June 2011 that relate to the date of the conspiracy,
Defence Counsel are in reality seeking to obtain the annulment of Count1, which
has already been confirmed by the Pre-Trial Judge;47 iv)the proposed amendments
to paragraphs15(c) and(d) as well as 20(a) do not relate to substantive matters:
they are merely aimed at providing clarification or additional information regarding
the paragraphs concerned;48 v)the amendments to paragraph 38 do not constitute
new factual allegations: they are based on information contained in other paragraphs
of the Indictment of 8November 2012;49 vi)the date changes contained in Count1
are based on allegations included in the Indictment of 10June 2011 confirmed by
the Pre-Trial Judge50 and on the evidence provided in support of them;51 and v)the
date changes contained in Counts6 to 9 are based on allegations included in the
Indictment of 10June 2011 confirmed by the Pre-Trial Judge and on the evidence
filed in support of them.52
44 Ibid.
45 Prosecution Reply, para. 5.
46 Id., paras 4-8.
47 Id., paras 9-15.
48 Id., para. 16.
49 Id., para. 18.
50 These allegations are reiterated at pages 7 to 11 of the Prosecution Reply.
51 Prosecution Reply, paras 19-23.
52 Id., para. 24.
110
29. Furthermore, following the request for clarification from the Pre-Trial Judge
regarding the relationship between MrAyyash and the user of the purple231
telephone, the Prosecution states that paragraphs3(b) and17(c) of the Indictment
of 8 November 2012 which refer to it are in conformity with the Decision of
25October 2012.53 In addition, the Prosecution considers that the only reasonable
conclusion that may be drawn from the chain of events which preceded the attack
against MrHariri that is the identification of Mr Abu Adass (in December 2004),
the purchase of the red telephones (on 4January 2005), the disappearance of Mr
Abu Adass (on 16January 2005), the purchase of the Mitsubishi van (on 25January
2005), the preparation of the video recording (between 16January and 14February
2005) and the purchase of the telecard (in February 2005) is that MrAyyash as
the coordinator of the surveillance of MrHariri and of the purchase of the Mitsubishi
van must have necessarily been informed of the progress made with regard to the
preparation of the false claim of responsibility.54 Moreover, MrAyyash and the user
of the purple231 telephone contacted each other, on several occasions, between
23January 2005 and 7February 2005. Furthermore, on 6February 2005, between
17.21 et 18.46, MrOneissi, MrSabra and the user of the purple231 telephone
activated the same cell tower on eight occasions, which indicates that they might
have been able to meet.55 It is during that period that the video cassette intended for
the false claim must have been prepared.56 Even if there is no evidence to indicate
who participated in those preparatory activities, the individuals implicated in the
attack must have been informed of them.57 Otherwise, they would not have been
able to finalise either the attack or the plan to call the media outlets concerned and to
deliver the video cassette to them.58 Lastly, the telephones attributed to MrAyyash
and to the user of the purple231 telephone were in the same locations during the
53 Id., paras 25-27.

54 Id., para. 30.
55 Id., paras 31-32.
56 Id., para. 32.
57 Ibid.
58 Ibid.
111
relevant time periods, which indicates that they could have been able to communicate
other than by telephone.59
2.
Analysis of the proposed amendments
30. Two categories should be distinguished among the proposed amendments:

amendments aimed at strengthening the preciseness of the allegations made against
the Accused and which are therefore not substantive, and those which might have a
notable affect on the rights of the Accused.
31. The first category contains the amendments which are intended to remove the
words and/or from paragraphs15(c), 20(a) and38 of the Indictment of 8November
2012 and replace them with the words that are highlighted in paragraphs12, 15 and17
of the Request of 6February 2013.60 To ensure consistency between paragraphs15(c)
and15(d), the Prosecution also proposes to amend paragraph15(d) as indicated by
the highlighting in paragraph13 of the Request of 6February 2013. The Pre-Trial
Judge considers that those amendments are intended to strengthen the preciseness of
the charges against the Accused, notably with regard to the alleged preparations of
the attack against MrHariri and of the alleged false claim of responsibility. He deems,
as a consequence, that those amendments meet the criteria referred to in Rule71(B)
of the Rules, that they are not likely to prejudice the rights of the Accused and that,
therefore, they should be allowed.
32. The second category of amendments requested contains those relating to
the date of the conspiracy to commit a terrorist act. The Pre-Trial Judge notes that
the period included in Count1 of the Indictment of 6February2013 during which
the conspiracy to commit a terrorist act namely, the assassination of MrHariri
was formed has been extended, since it no longer ends on 16January 2005 but on
14February of the same year.61 However, the start of that period that is 11November
2004 has been narrowed down since the words at least which preceded it in the

61 Id., paras 18-30.
112
Indictment of 8 November 2012 have been removed in the Indictment of 6February

2013.62
33. The Pre-Trial Judge considers that extending the period as referred to in
the previous paragraph constitutes a substantive amendment of the Indictment of
8November 2012 which must be precisely substantiated by prima facie evidence.
Thus, by way of the Decision of 6 March 2013,63 the Pre-Trial Judge requested
clarification from the Prosecution regarding the elements on which the proposed
amendments were based and, in particular, the extension of the period referred
to previously. In its Reply, the Prosecution precisely identified a series of events
which took place between 16January and 14February 2005 inclusive.64 The PreTrial Judge takes note that those facts were already included in the Indictment
of 10 June 2011 and that the evidence on which they are based has already been
submitted to him during the process for confirmation of that Indictment.65 In light of
this clarification, the Pre-Trial Judge considers that the amendments relating to the
extension of the period during which the conspiracy to commit a terrorist act began,
namely the conspiracy to assassinate MrHariri, does indeed rest firmly, first, on the
evidence which has been submitted to him. As the acts invoked in support of these
amendments and the evidence underpinning them are not new, the amendments are
not, in principle, likely to prejudice the rights of the Accused in the preparation
of their defence. He considers, as a consequence, that the amendments proposed
in paragraphs42, 42(a), 42(c), and48(a) to(h) of the Indictment of 6February
2013 and which relate to Count1 of that Indictment meet the criteria referred to in
Rule71(B) of the Rules. They should, therefore, be allowed.
34. The second category also includes the amendments which follow from the
Prosecution request to extend the period relating to the commission of the acts
as accomplices to the crimes referred to in Counts 6 to 9 of the Indictment of 8
62 Id., paras 26-27.

63 Decision of 6 March 2013, paras 11-16 and Disposition.
65 Id., paras 20-21.
113
November 2012.66 Indeed, according to that Indictment, this period would no longer
start on 16January 2005 but on 22December 2004.67 The Pre-Trial Judge considers
that extending that period constitutes a substantive amendment to the Indictment of
8November 2012 which must be precisely supported by prima facie evidence. As
pointed out by the Prosecution, these amendments build on those of Count1 of the
Indictment of 8November 2012.68 The Pre-Trial Judge takes note that the facts in
support of these amendments were already included in the Indictment of 10June
2011 and that the evidence on which they are based has already been submitted to
him during the process for confirmation.69 In light of these clarifications, the Pre-Trial
Judge considers that the amendments to Counts6 to9 proposed in the Indictment of
6February 2013 do indeed rest firmly on the prima facie evidence that was submitted
to him. As the facts invoked and the evidence in support of these amendments are
not new, the amendments are not, in principle, likely to prejudice the rights of the
Accused. As a consequence, the amendments proposed in paragraphs58, 60, 62
and64 of the Indictment of 6February 2013 and which relate to Counts6 to9 of
that Indictment meet the criteria referred to in Rule71(B) of the Rules. They should,
therefore, be allowed.
35. Lastly, the Pre-Trial Judge takes note of the clarification provided by the
Prosecution regarding the amendments proposed in paragraphs3(b) and17(c) of
the Indictment of 8November 2012 and which are reproduced in the Indictment of
6 February 2013 on the subject of the alleged communications between MrAyyash
and the user of the purple231 telephone with respect to the alleged false claim
of responsibility. He notes that the Prosecution confirms that these two persons
exchanged no telephone calls with one another between 22 December 2004 and
17January 2005 the alleged period during which MrAbu Addass was identified and
recruited and 14February 2005 when the alleged false claim of responsibility was
made.70 The Pre-Trial Judge observes that these amendments are based, in reality, on
67 Ibid.
68 Request of 6 February 2013, para. 31.
70 Order of 6March 2013, para. 15.
114
inferences connected to the role of MrAyyash as coordinator for the surveillance of

MrHariri and the purchase of the Mitsubishi van, and, as such, the need for him to
be informed of the progress of the actions connected with the alleged false claim of
responsibility. This would appear to be substantiated by communications exchanged
in particular between MrAyyash and the user of the purple231 telephone between
23January 2005 and 7 February 2005 and by the fact that they could have been
at the same location at crucial times.71 The Pre-Trial Judge considers that these
amendments are founded, first, in conformity with the criteria required to confirm an
indictment recalled in the Decision of 28June 2011 to the extent that the reasoning
of the Prosecution is based on assumptions that are sufficiently credible. The PreTrial Judge nevertheless recalls that in this context, his powers are limited. He cannot
in any way act as a substitute for the judges dealing with the substance of the case,
who alone bear the responsibility of determining whether, at the end of adversarial
proceedings, the evidence has been established against the Accused and whether
they are guilty, beyond any reasonable doubt, of the crimes imputed to them. At this
stage of the proceedings, the Pre-Trial Judges sole mission is to review the proposed
amendments of the Indictment of 10 June 2011 in the light of the evidence gathered
and submitted by the Prosecution to determine whether, first, proceedings can be
brought against the Accused taking into account these amendments.72 In this regard,
the Pre-Trial Judge considers that it is not necessary to reconsider these amendments
which have already been approved in the Decision of 25October 2012.73
36. The Pre-Trial Judge considers, as a consequence, that the Request of 6February
2013 is founded.
71 Prosecution Reply, paras 30-33.

72 Decision of 28 June 2011, para. 26.
73 Decision of 25 October 2012, paras 34-35.
115
E.
The arrest warrants
37. On 28 June 2011, the Pre-Trial Judge issued arrest warrants including transfer
and detention orders against the Accused.74 On 8July 2011, he issued international
arrest warrants including transfer and detention orders against the same Accused.75
38. In the Request of 8 November 2012, the Prosecution requests the PreTrial Judge to adapt those arrest warrants with the amendments introduced in the
Indictment of 8November 2012.76
39. Insofar as the Indictment of 8 November 2012 has been dismissed,77 the PreTrial Judge considers that it is not necessary to rule on that request.
F.
The requirements of confidentiality
40. As it did for the Indictment of 10June 2011, the Prosecution seeks redaction
of the public version of the Indictment of 8November 2012 in order to ensure the
proper conduct of the ongoing investigations and to secure the protection of the
witnesses.
41. Insofar as the Indictment of 8November 201278 has been dismissed, the PreTrial Judge considers that it is not necessary to rule on that request.
74 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Warrant to Arrest Mr Salim Jamil Ayyash including
Transfer and Detention Order, 28June 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I,
Warrant to Arrest Mr Mustafa Amine Badreddine including Transfer and Detention Order, 28June 2011; STL,
The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Warrant to Arrest Mr Hussein Hassan Oneissi including
Transfer and Detention Order, 28June 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I,
Warrant to Arrest Mr Assad Hassan Sabra including Transfer and Detention Order, 28June 2011.
75 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, International Warrant to Arrest Mr Salim Jamil
Ayyash including Transfer and Detention Request, 8July 2011; STL, The Prosecutor v. Ayyash et al., Case No.
STL-11-01/I, International Warrant to Arrest Mr Mustafa Amine Badreddine including Transfer and Detention
Request, 8July 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, International Warrant to
Arrest Mr Hussein Hassan Oneissi including Transfer and Detention Request, 8July 2011; STL, The Prosecutor
v. Ayyash et al., Case No. STL-11-01/I, International Warrant to Arrest Mr Assad Hassan Sabra including
Transfer and Detention Request, 8July 2011.
76 Request of 8November 2012, paras 11c) and d).
77 Cf. para. 22 above.
78 Ibid.
116
DISPOSITION
FOR THESE REASONS,
Pursuant to Rules71(A)(ii) and(B) and 74 of the Rules,
GRANTS the Request of 8 November 2012 concerning the amendments to the
Indictment of 10June 2011;
DECLARES the Request of 8November 2012 unfounded in all other respects;
DISMISSES the Indictment of 8November 2012;
GRANTS the Request of 6February 2013;
AUTHORISES the amendments to the Indictment of 10June 2011 as they appear
in the Indictment of 6February 2013;
DECLARES that the Indictment of 6February 2013 annuls and replaces the
Indictment of 10June 2011; and
ORDERS the Prosecution to file a signed version of the Indictment of 6February
2013 by 17April 2013 at 16.00 hrs. at the latest.
Leidschendam, 12 April 2013
Daniel Fransen
Pre-Trial Judge
117
118
6.
Case name:
Before:
Trial Chamber
Title:
Decision on Compliance with the Practice

Direction for the Admissibility of Witness
Statements under Rule 155
Short title:
Admissibility of Witness Statements TC
119
120
THE TRIAL CHAMBER

Case No.:
STL-11-01/PT/TC
Before:
Judge Robert Roth, Presiding

Judge Micheline Braidy
Judge David Re
Judge Janet Nosworthy, Alternate Judge
Judge Walid Akoum, Alternate Judge
Registrar:
Mr Daryl Mundis, Acting Registrar
Date:
30 May 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION ON COMPLIANCE WITH THE PRACTICE

DIRECTION FOR THE ADMISSIBILITY OF WITNESS
STATEMENTS UNDER RULE 155
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun

Mr Franois Roux

Mr Antoine Korkmaz
Mr John Jones

Mr Peter Haynes

Mr Yasser Hassan
Mr David Young
Mr Gunal Mettraux
121
Introduction
1.
The Prosecution requested the Trial Chamber to rule on whether it may
admit into evidence, without cross-examination, certain witness statements that
do not comply with all of the requirements for admission into evidence specified
in the relevant Practice Direction. The Defence submissions agree, that in certain
circumstances, non-complying statements can be admitted into evidence. The Trial
Chamber must decide whether and in what circumstances such statements may be
received into evidence.
Procedural history
2.
On 20 February 2013, the Prosecution requested the Pre-Trial Judge to refer
to the Trial Chamber the issue of the admission into evidence under Rule 155 of
the Rules of Procedure and Evidence of ten witness statements, without crossexamination.1 The Prosecution also expressly moved the Trial Chamber to admit the
statements into evidence. The Defence of the Accused Mr. Salim Jamil Ayyash, Mr.
Mustafa Amine Badreddine, Mr. Hussein Hassan Oneissi, and Mr. Assad Hassan
Sabra opposed the motion, and in particular, the Prosecutions request to admit the
statements into evidence at this stage of the proceedings.2
3.
Ruling on this motion under Rule 89 (E) on 15 April 2013,3 the Pre-Trial Judge
decided to submit to the Trial Chamber only the narrower issue of the general status
of statements that do not comply with the formal requirements for admitting written
1 STL-11-01/PT/PTJ, The Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, Prosecutions Motion Requesting
the Pre-Trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89 (E), Confidential,
20 February 2013.
2
Response on behalf of Mr. Ayyash to Prosecutions Motion Requesting the Pre-Trial Judge to Refer its Rule 155
Application to the Trial Chamber Pursuant to Rule 89(E), Confidential, 4 March 2013; Response to Prosecution
Motion Requesting the Pre-trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule
89 (E), Confidential, 4 March 2013 (Badreddine); Rponse la Prosecutions Motion Requesting the Pre-trial
Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89 (E), Confidential, 4 March
2013 (Oneissi); Sabra Defence Response to Prosecution Motion Requesting the Pre-trial Judge to Refer its Rule
155 Application to the Trial Chamber Pursuant to Rule 89 (E), Confidential, 27 February 2013.
STL-11-01/PT/PTJ, Decision on the Prosecutions Motion to Refer to the Trial Chamber the Requests to Admit
the Written Statements of Witnesses pursuant to Rules 89 (E) and 155 of the Rules of Procedure and Evidence,
15 April 2013.
122
statements into evidence under Rule 155 as specified in the Practice Direction on the
Procedure for Taking Depositions under Rules 123 and 157 and for Taking Witness
Statements for Admission in Court under Rule 155.4
4.
On 29 April 2013,5 the Trial Chamber invited the parties to file submissions on
how any non-compliance with the Practice Direction would affect the admissibility
of the statements under Rule 155.6 The Prosecutor and counsel for the four Accused
consequently filed their submissions.7
Submissions of the Parties
5.
Rule 155 Admission of Written Statements and Transcripts in lieu of oral
testimony allows the receipt into evidence of witness statements but without crossexamination. Rule 155 (A) provides that the Trial Chamber may admit in lieu of oral
testimony the evidence of a witness in the form of a written statement, or a transcript
of evidence which was given by a witness in proceedings before the Tribunal, which
goes to proof of a matter other than the acts and conduct of the accused as charged in
the indictment. The Practice Direction prescribes the pre-conditions for admitting
statements into evidence under the Rule.
6.
The Prosecution and Defence submissions agree that under certain
circumstances statements that do not comply with the Practice Direction may be
4
STL-PD-2010-02, Issued 15 January 2010.
The submissions filed on 4 March 2013 by the Defence of Mr. Badreddine and Mr. Oneissi in response to
the Prosecutions motion of 20 February 2013 did not specifically address the issues the subject of the Trial
Chambers decision of 20 April 2013.
6 STL-11-01/PT/TC, Scheduling Order Relating to the Impact of the Non-Compliance with the Formal
Requirements for the Written Statements of Witnesses on their Admissibility, 29 April 2013.
7
STL-11-01/PT/TC, Prosecutions Submissions Regarding the Admission of Statements under Rule 155 which
do not Comply with the Practice Direction, 10 May 2013; Response on Behalf of Mr. Ayyash to Prosecutions
Submissions Regarding the Admission of Statements under Rule 155 which do not Comply with the Practice
Direction, 21 May 2013; Defence for Mr BadreddinesSubmissions Regarding the Admissibility of Statements
under Rule 155 which do not Comply with the Applicable Practice Direction, 21 May 2013; Jonction la
Response on behalf of Mr. Ayyash to Prosecutions Submissions Regarding the Admission of Statements under
Rule 155 which do not comply with the Practice Direction , 21 May 2013; Response on Behalf of Mr. Sabra to
Prosecutions Submissions Regarding the Admission of Statements under Rule 155 which do not Comply with
the Practice Direction, 21 May 2013.
123
admitted into evidence. They disagree on the status of the Practice Direction and
the precise circumstances in which the Trial Chamber may admit non-complying
statements into evidence.
7.
According to the Prosecution, Practice Directions are only non-binding
administrative guidelines; binding the Trial Chamber would undermine its judicial
discretion to determine the admissibility of statements at trial. The reliability of
witness statements must be assessed on a case by case basis. The essential issue is
whether the statement is reliable as opposed to whether it complies strictly with the
Practice Direction. Statements not conforming to all of the criteria in the Practice
Direction may nonetheless be admitted into evidence if they contain sufficient
indicia of reliability. Statements which are inherently reliable, due to the nature of
their evidence, should be admitted into evidence despite their non-compliance.8
8.
The submissions of counsel for the four Accused agree that although the
Practice Direction is presumptively binding, the Trial Chamber may, in certain
circumstances, nonetheless admit into evidence statements that do not comply
strictly with its terms. All disagree with the Prosecutions assertion that the Practice
Direction operates as a guideline. The Defence submissions also agree with the
Prosecution that any departure from compliance with the Practice Direction must be
assessed on a case by case basis.
9.
Counsel for Mr. Sabra submit that the Prosecutions argument that the Practice
Direction is a non-binding guideline is misconceived. In principle, all witness
statements must comply with the letter and spirit of the Practice Direction but in
practice exceptions may be allowed, depending on the consent of the opposing
Party, and whether the mischief that the Rule 155 Practice Direction was created
to prevent applies.9 Although compliance with the Practice Direction is mandatory,
non-complying statements could be received into evidence in two circumstances.
One is where all Parties consent while the other would be where a Party opposing
8
For example, witnesses who do not recognize specific telephone numbers, subscriber information or mobile
handsets falsely obtained with their identification and thus falsely attributed to them being facts that that are
not reasonably in dispute; Prosecution submissions, para. 16.
Sabra submissions, para. 1.
124
the Party that took the statement seeks to tender it into evidence (for example, the
Defence tendering into evidence a statement of a Prosecution investigator). It could
thus be admitted into evidence under Rule 155 because where such a statement
favours the position and case of the opposing party the concerns about reliability of
such deficient statements melt away.10 This is argued as analogous to the exception
to the hearsay rule in some common law jurisdictions, reflecting the statement against
interest rule. This, it is submitted, makes the statement inherently more reliable.
10. Counsel for Mr. Badreddine submit that the Practice Direction is presumptively
binding and not a mere guideline, and, relying upon the case-law of international
courts and tribunals, state that Practice Directions are binding legal documents of
the Court that cannot be ignored by the Parties.11 The Trial Chamber does, however,
retain an overarching discretion to admit evidence under Rule 149 (C) and may
admit non-complying statements. But it should not do so lightly. And this requires
either the consent of the Parties or exceptional circumstances. Non-compliance with
certain terms of the Practice Direction, such as the absence of a declaration certifying
the truth of a statement, that the witness has been informed of the consequences of
making an untruthful statement, and the date on which it was made, however, would
be intolerable. The Trial Chamber should declare that it will not tolerate noncompliance with any of the requirements of the Practice Direction, or alternatively,
with those fundamental requirements (as described).12
11. Counsel for Mr. Ayyash likewise argue that Practice Directions are binding
and that the Practice Direction exists to preserve the reliability and integrity of
evidence. The procedural safeguards set out in the Practice Direction are necessary
where evidence is admitted without cross-examination. There are two permissible
exceptions to this (those argued by counsel for Mr. Sabra. The Defence of Mr.
Oneissi joined the submissions of the Defence of Mr. Ayyash.
10 Sabra submissions, para. 23.

11 The Prosecution, however, by filing its motion is not attempting to ignore the Practice Direction.
12 Badreddine submissions, para. 20.
125
Analysis
The policy rationale for Rule 155 and its international equivalents
12. Rule 155 (A) allows the Trial Chamber to receive witness evidence in lieu of
oral testimony and without cross-examination. The factors in favour of admitting such
evidence include whether it is cumulative, or is background material, or concerns the
impact of crimes upon victims, or relates to the character of the accused.
13. Admitting witness statements into evidence without allowing crossexamination necessitates providing procedural safeguards, and most particularly that
written statements or transcripts must not contain evidence going to the proof of the
acts or conduct of the accused. The evidence contained in the statements must also
meet the basic requirements for the admission of evidence, in that it must be relevant
and probative, and its probative value must not be outweighed by its prejudicial
effect.13 After hearing the parties the Trial Chamber decides whether to require the
witness to appear for cross-examination, either in The Hague or by video-link.
14. The Rule aims to reduce the court time needed for Parties to present their cases,
thus increasing the expeditiousness and efficiency of trials. It allows the Parties to
submit statements or previous court transcripts in place of live witness testimony, but
while safeguarding the procedural rights of the Parties.
15. Rule 155 has its origins in similar rules originating in Rule 92 bis of the Rules
of Procedure and Evidence of the International Criminal Tribunal for the Former
Yugoslavia (ICTY), later adopted by the International Criminal Tribunal for Rwanda
and in a modified form by the Special Court for Sierra Leone.14 The first version of
13 Rule 155 (A)(ii)(b); see also e.g. ICTY, Prosecutor v. Stanislav Gali, IT-98-29-AR73.2, Decision on
Interlocutory Appeal Concerning Rule 92 bis(C), 7 June 2002, para.12; Prosecutor v. Radovan Karadi, IT-955/18-PT, Decision on Prosecutions Third Motion for Admission of Statements and Transcripts of Evidence in
lieu of Vive Voce Testimony pursuant to Rule 92 bis (Witnesses for Sarajevo Municipality), 15 October 2009,
para. 4; ICTR, The Prosecutor v. Bagosora and others, ICTR-98-41-T, Decision on Prosecutors Motion for the
Admission of Written Witness Statements under Rule 92 bis, 9 March 2004, para. 12.
14 The SCSLs Rule 92 bis (B) provides that information submitted may be received in evidence if it is relevant
to the purpose for which it is submitted and if its reliability is susceptible of confirmation. Its Appeals Chamber
has held that proof of reliability is not a condition of admission; all that is required is that the information
should be capable of corroboration in due course, Prosecutor v. Sam Hinga Norman, Moinina Fofaana, Allieu
126
the ICTY Rules,15 however, provided only that witnesses should testify orally before
the Tribunal (as in many domestic systems). International criminal proceedings,
though, differ in many ways from domestic criminal trials including in their length,
seriousness, complexity, cost and the location of the courts and tribunals away from
the crime scenes. Consequently, in circumstances in which almost all witnesses had to
travel internationally to the seat of the Tribunal in The Hague, The Netherlands, and
in which many were providing evidence that was uncontroversial, or uncontested,
or cumulative, or of background or historical interest, the length (and hence the
increased cost) of the ICTYs early trials were viewed as unnecessarily long.
16. Subsequently, in 2001, Rule 92 bis was added to the ICTY Rules in an
attempt to reduce the length of trials, while simultaneously attempting to safeguard
the fundamental procedural rights of the Parties. The ICTYs Annual Report to the
United Nations of September 2001 explained that the new Rule was created to
facilitate the admission by way of written statement of peripheral or background
evidence in order to expedite proceedings while protecting the rights of the accused
under the Statute.16 Rule 155 has the same policy rationale.
Relationship of the Practice Direction to the Statute and Rules of Procedure
and Evidence
17. Article 28 of the Statute of the Tribunal specifies that the judges of the Special
Tribunal shall adopt Rules of Procedure and Evidence. Rule 32 (E) provides that
the President of the Tribunal may, in consultation with the Council of Judges, the
Kondewa, SCSL-2004-14-AR73, Decision on Appeal Against Decision on Prosecutions Motion for Judicial
Notice and Admission of Evidence, 16 May 2005, para. 26.
15 IT/32, 14 March 1994, adopted 11 February 1994.
16 Eighth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,
A/56/352, S/2001/865, 17 September 2001, p. 17; see also ICTY, Prosecution v. Jadranko Prli and others,
IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlis Questioning
into Evidence, 23 November 2007, para. 43. In examining the policy rationale for the Rule change the ICTY
Appeals Chamber held that the policy consideration of an economical trial may be relevant to determining
whether to admit written statements in the interests of justice, but under its Rule 89 (F), Prosecutor v. Slobodan
Miloevi, IT-02-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the
Form of Written Statements, 30 September 2003, para. 20.
127
Registrar, the Head of Defence Office and the Prosecutor, issue Practice Directions,
consistent with the Statute and the Rules, addressing detailed aspects of the conduct
of proceedings before the Tribunal. In exercising this function, the President has
issued several Practice Directions.
18. Practice Directions are intended to assist the Tribunal and its Chambers
in managing procedural matters not specified in the Statute or Rules. They are
subordinate to, supplement, and must be consistent with the Statute and Rules of
Procedure and Evidence. They are issued at the Presidents discretion and in his
administrative capacity; they are neither adopted nor approved by the judges of the
Tribunal sitting in plenary session.
19. A Practice Direction would be invalid to the extent of any inconsistency with
the Statute or Rules. The Practice Direction on the Procedure for Taking Depositions
under Rules 123 and 157 and for Taking Witness Statements for Admission in Court
under Rule 155 prescribes the pre-conditions for admitting statements into evidence
under Rule 155. The Trial Chamber is satisfied that this Practice Direction, by
providing criteria regulating the conditions for the admissibility of statements under
Rule 155, is consistent with both the Statute and the Rules and that it is intended
to operate conjunctively with Rule 155 and does not weaken the Trial Chambers
judicial discretion in determining the admission of evidence.
20. This Practice Direction is expressed in mandatory terms, specifying in Article
2.1 that in order for the Trial Chamber to consider the written statement of a witness
to be admissible under Rule 155, the following requirements must be satisfied
Although Practice Directions are legally binding documents that the Parties must
follow, a Chamber should not inflexibly enforce strict adherence to them, and must
retain a general discretion to depart from strict application where it could result in
injustice or prejudice to a Party.17
21. The Trial Chamber is thus satisfied that departure from the strict terms of a
Practice Direction is permissible where the interests of justice so require.
17 See e.g. on the issue of the status of Practice Directions generally, ICTY, Prosecutor v. Dario Kordi and Mario
erkez, IT-95-14/2-A, Decision Authorising Appellants Brief to Exceed the Limit Imposed by the Practice
Direction on the Length of Motions and Briefs, 29 August 2001, para. 6.
128
Criteria for admissibility of statements under Rule 155

22. The Prosecution and the Defence agree that in some circumstances witness
statements may be admitted into evidence under Rule 155 notwithstanding some
non-compliance with the Practice Direction. They agree that this must be assessed
on an individual basis. All submissions agree that the basic policy requirement for
admitting statements under the Rule is to establish the necessary indicia of reliability.
The Trial Chamber concurs with each of these propositions.
23. Rule 155 contains strict criteria for admitting witness statements into evidence
without cross-examination. This is necessarily so as the policy rationale for Rule
155 and its international equivalents of expediting trials utilizing international
criminal procedural law entails constricting the normal rights of a Party to crossexamine witnesses called by an opposing Party. A Trial Chamber must therefore
perform a careful balancing exercise in weighing the public interest in ensuring a
fair and expeditious trial against the prejudice that a Party may experience in not
cross-examining a witness testifying against its interests. It must exercise this power
sparingly and provide cogent reasons for doing so.
24. The Practice Direction that supplements Rule 155 is directed at ensuring that
in circumstances in which the right to cross-examine is curtailed witness statements
have the indicia of reliability necessary to admit them into evidence under Rule 155.
The Trial Chamber must therefore undertake a similar balancing exercise in deciding
whether there are circumstances in which following the Practice Direction to the
letter would cause an injustice (or an incurable prejudice) to any Party by excluding
an otherwise reliable statement from admission into evidence.
25. The Trial Chamber must decide whether it can receive into evidence a
statement that does not comply with the Practice Direction. The question therefore is
whether any criterion in the Practice Direction is so fundamental in guaranteeing the
indicia of reliability that non-compliance will bar the statement from admission into
evidence under Rule 155. And, conversely, whether it is possible to list or categorise
any criteria, a breach of which could be considered so minor or inconsequential
as not to affect a statements reliability.
129
26. The Practice Directions numerous criteria for admissibility include: that a
statement must have a witness information sheet as its first page specifying, (in
descending order) family and given names, fathers and mothers names, nicknames,
date and place of birth, language(s) spoken, written language(s) if different,
language(s) used in the interview, current and former occupation, date(s), times and
place of interview(s), name of interviewer(s), name of interpreter(s), and names
of other persons present during the interview(s). Some criteria are evidently less
significant than others in giving a statement the indicia of reliability necessary to
admit it into evidence without cross-examination.
27. Examining the list, the Trial Chamber does not believe that the interests of
justice could be served by denying the admissibility of a statement under Rule
155 solely for non-compliance with a minor technical requirement of the Practice
Direction. To illustrate, failing to list a former occupation or a place of birth may
have no impact on the statements reliability. Nor would listing this information
on a final page rather than on its cover. Likewise, as the Prosecution submits, a
missing interpreters signature, or the witness not having signed the certificate, may
not affect the reliability of the statement.18 These types of minor breaches of the
Practice Directions could thus safely be disregarded for the purposes of establishing
the statements reliability and admitting it into evidence. Where the Trial Chamber
considers a breach of the Practice Direction to be minor in nature it will consider
whether the statement can be admitted into evidence under Rule 155, and will decide
the issue on a case by case basis after hearing from the Parties.
28. The Trial Chamber therefore holds that where the interests of justice so require,
it may deem a statement as complying for the purposes of admissibility under Rule
155, notwithstanding a minor breach of the Practice Direction. The reasons for
departing from the strict requirements of the Practice Direction, however, should
be compelling. Moreover, the Trial Chamber must always be otherwise satisfied
of the indicia of the statements reliability, especially those concerning identity,
18 The Prosecution, however, also submits that an omission to verify a witnesss identity with an identity card will
not affect the reliability of the statement; Prosecutions submissions, para. 16.
130
acknowledging the statements veracity, and that its deponent has either read it or
had it read to them in their own language.
29. On the other hand, however, some requirements of Articles 1 and 2 of the
Practice Direction would appear to be so fundamental to establishing the indicia of
reliability that it is difficult to envisage overlooking non-compliance. These could
include not properly identifying a witness, or failing to warn them that they could be
prosecuted for contempt or false testimony for knowingly and wilfully making a false
statement, knowing that it may be used in proceedings at the Tribunal (as specified
in Article 2 par. 2 (d)). (This list is non-exhaustive). Where such breaches occur the
Trial Chamber will examine also each application on its merits and examine the
individual circumstances of each witness statement.
30. The Trial Chamber does not concur with the Defence submissions specifying
two possible exceptions namely where all Parties consent to the tendering of the
statement, and where an opposing Party attempts to tender the other Partys witness
statement into evidence. The consent of the Parties is just one factor that the Trial
Chamber will consider in determining whether a statement should be admitted into
evidence under Rule 155 (or any other Rule). The Trial Chamber also disagrees with
the argument that the mere act of a Party tendering a witness statement taken by an
opposing Party provides the necessary indicia of reliability to accept it into evidence.
It is the combination of factors surrounding the statement (its content, its deponent,
the circumstances of its making) rather than the identity of the tendering Party that
provides the statement with the necessary indicia of reliability. Moreover, the Rules
of the Tribunal do not prohibit hearsay evidence and the common law rule identified
by the Defence submissions operates in a restricted manner in certain national legal
systems. The situation is not analogous to the principles of international criminal
procedural law generally, and in particular, to those provided in the Rules of the
Special Tribunal.
31. The Trial Chamber will therefore adopt the following principles in deciding
applications to admit into evidence under Rule 155 statements that do not comply
with the Practice Direction:
131
a) First, the overriding principle is to determine the reliability of a witness

statement;
b) Second, it will depart from the strict terms of the Practice Direction only
where compelling reasons exist;
c) Third, this will be done on a case by case basis. Each application will be
considered separately and carefully scrutinized;
d) Fourth, some breaches will be considered so consequential or fundamental
to establishing the reliability of a statement that the non-compliance cannot
be overlooked. Providing an exhaustive list of such possible breaches is not
possible; and
e) Fifth, in the case of minor breaches, if sufficient indicia of reliability exists
to overlook the breach, statements may be deemed to comply with the
requirements for admissibility.
Inapplicability of Rule 155 (B)
32. Rule 155 (B) allows the admission of unsigned statements, in exceptional
circumstances as an exception to the general rule that the statement must have
been signed by the person who records and conducts the questioning. This Rule,
however, is strictly applicable to the absence of a signature on the statement and
cannot be construed as giving a general discretionary power in respect of all noncompliances with the Practice Direction.
Rectifying defects and other consequences of non-compliance
33. The rationale of referring this issue to the Trial Chamber before it is seized of
the case under Rule 95 was to notify the Parties (and in particular the Prosecution)
in advance of the trial as to whether statements not fully complying with the Practice
Direction could nevertheless be admitted into evidence. Emphasis should thus now
be given to attempting to rectify any statements violating the requirements of the
Practice Direction.
132
34. The Prosecution if it seeks to tender statements under Rule 155 without
requiring witnesses to appear for cross-examination should therefore make all
reasonable attempts to rectify any non-complying statements before seeking to admit
them into evidence. The Trial Chamber urges the Prosecution to do this in a timely
manner.
35. Where this is not possible and if the Prosecution still wishes to tender the
statement into evidence and where the breach is so significant that in the absence
of any rectifying factors it casts doubt on the reliability of the statement, the Trial
Chamber will require the witness to attend for cross-examination (either in The
Hague or via video-link).
36. Alternatively, in appropriate circumstances, the Prosecution could seek to
tender such a statement under Rule 158 (unavailable persons). The Trial Chamber
would still have to be satisfied of the reliability of the statement under Rule 158 (A)
(ii).
Admitting statements into evidence under Rule 155 at this stage of the
proceedings
37. The Trial Chamber is not seized of the case under Rule 95 and does not yet
have a sufficient basis upon which it could decide whether the Prosecutions ten
statements should be admitted as evidence at trial, under either Rule 155 or another
Rule. The Trial Chamber will decide the admissibility of any statement proposed for
admission into evidence (under any Rule) on a case by case basis at the appropriate
time, noting that any Party may seek to tender statements under the Rule at any stage
of the trial.
FOR THESE REASONS the Trial Chamber:
(i)
Defers until an appropriate time the Prosecutions application to admit

statements into evidence under Rule 155; and
133
(ii)
Urges the Prosecution to take all necessary steps to remedy or rectify any
non-compliance with the Practice Direction identified in the statements
proposed for admission under Rule 155.
Leidschendam, The Netherlands, 30 May 2013
Judge Robert Roth, Presiding
Judge David Re
134
7.
Case name:
Before:
Trial Chamber
Title:
Decision on Alleged Defects in the Form of the

Amended Indictment of 21 June 2013
Short title:
Defects in Form of Indictment TC
135
136
THE TRIAL CHAMBER

Case No.:
STL-11-01/PT/TC
Before:
Judge David Re, Presiding

Judge Janet Nosworthy
Registrar:
Mr Daryl Mundis, Acting Registrar
Date:
13 September 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION ON ALLEGED DEFECTS IN THE

FORM OF THE AMENDED INDICTMENT OF 21 JUNE 2013
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun

Mr Peter Haynes

Mr Antoine Korkmaz
Mr John Jones
Mr Yasser Hassan
Mr David Young
Mr Gunal Mettraux
137
INTRODUCTION
1.
Defence counsel for three of the Accused, Mr. Mustafa Amine Badreddine, Mr.
Hussein Hassan Oneissi and Mr. Assad Hassan Sabra challenged the Prosecutors
amended indictment dated 21 June 2013 alleging defects in its form. The Prosecution
opposed the challenges.
2.
The Trial Chamber has decided that the challenges are without merit and
has dismissed the three Defence motions. The Trial Chamber has found that the
amended indictment provides counsel for the Accused with enough detail to inform
them clearly of the nature and cause of the charges and to allow them to prepare a
defence of the case at trial.
PROCEDURAL HISTORY
3.
On 10 June 2011, the Prosecution filed an indictment against Mr. Salim Jamil
Ayyash, Mr. Badreddine, Mr. Oneissi and Mr. Sabra charging them with crimes
related to the death of Rafik Hariri and others in Beirut on 14 February 2005.1 The
indictment was confirmed by the Pre-Trial Judge on 28 June 2011.2
4.
On 25 June 2012, Defence counsel for Mr. Badreddine, Mr. Oneissi and
Mr. Sabra filed preliminary motions under Rule 90 (A) of the Tribunals Rules of
Procedure and Evidence alleging defects in the form of that indictment.3
1 STL, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, Case No. STL-11-01/I/PTJ, Indictment, confidential,
10 June 2011. A public redacted version dated the same day was filed on 16 August 2011.
2 STL-11-01/I/PTJ, Decision relating to the Examination of the Indictment of 10 June 2011 issued against Mr.
Salim Jamil Ayyash, Mr. Mustafa Amine Badreddine, Mr. Hussein Hassan Oneissi & Mr. Assad Hassan Sabra,
confidential, 28 June 2011. A public redacted version was filed on 16 August 2011.
3
STL-11-01/PT/TC, Sabras Preliminary Motion Challenging the Form of the Indictment, confidential, 25 June
2012, with a public redacted version dated the same day; Preliminary Motion Submitted by the Defence for
Mr. Mustafa Amine Badreddine on the Basis of Rule 90 (A) (ii) of the Rules of Procedure and Evidence,
25 June 2012; The Defence for Hussein Hassan Oneissi Preliminary Motion on Defects in the Form of the
Indictment, 25 June 2012. The Prosecution responded in Prosecution Consolidated Response to the Defence
Motions Alleging Defects in the Form of the Indictment, confidential, 25 July 2012.
138
5.
On 17 August 2012, the Prosecution, however, sought the Pre-Trial Judges
leave to amend the indictment.4 Recognising that an amendment to the indictment
could affect the existing Defence challenge to the form of the indictment, the Trial
Chamber, on 12 September 2012, deferred considering the Defence motions pending
the Pre-Trial Judges decision on amending the indictment.5
6.
On 25 October 2012, the Pre-Trial Judge granted the Prosecutions request to
amend the indictment,6 and on 8 November 2012 the Prosecution filed an amended
indictment. However, it also sought the Pre-Trial Judges authorisation to make two
further clarifications to the indictment.7 Defence counsel for Mr. Sabra then filed a
motion alleging defects in the form of the amended indictment.8
7.
On 5 December 2012, noting that the Pre-Trial Judge had not yet decided
the Prosecutions request to clarify the amended indictment, the Trial Chamber
deferred deciding that motion.9 Defence counsel for Mr. Sabra also filed a motion
before the Pre-Trial Judge seeking additional particulars in regard to the amended
indictment.10 Noting the similarities between that motion and the preliminary motions
alleging defects in the form of the indictment pending before the Trial Chamber,
the Pre-Trial Judge declared that he lacked jurisdiction to rule on the motion for
particulars.11
Rule 71 (A) (ii), STL-11-01/PT/PTJ, Prosecution Request for Leave to Amend the Indictment Pursuant to Rule
71(A) (ii), confidential, 17 August 2012, with a public redacted version filed on 18 September 2012.
STL-11-01/PT/TC, Interim Decision on Alleged Defects in the Form of the Indictment, confidential, 12
September 2012.
6 STL-11-01/PT/PTJ, Decision on the Prosecution Request of 17 August 2012 for Leave to File an Amended
Indictment, 25 October 2012.
7 STL-11-01/PT/PTJ, Filing of the Amended Indictment in Compliance with the Decision of 25 October 2012
& Request for Amended Arrest Warrants and Orders/Requests for Transfer and Detention, confidential, 8
November 2012.
8
STL-11-01/PT/TC, Sabras Second Preliminary Motion Challenging the Form of the Indictment, 26 November
2012.
STL-11-01/PT/TC, Decision on Sabras Second Preliminary Motion Challenging the Form of the Indictment, 5
December 2012.
10 STL-11-01/PT/PTJ, Motion for Particulars, 30 November 2012.

11 STL-11-01/PT/PTJ, Decision Relating to the Sabra Defence Motion for Further Particulars, 22 January 2013.
139
8.
On 6 February 2013, the Prosecution again requested leave of the Pre-Trial
Judge to amend the indictment but this time in respect of the amended indictment
filed on 8 November 2012.12 On 12 April 2013, the Pre-Trial Judge granted leave
for the Prosecution to amend the amended indictment, declaring the indictment of 6
February 2013 to be the operative indictment.13 The Prosecution subsequently (on 17
April 2013) filed a signed copy of this amended indictment.14
9.
The following day the Trial Chamber declared the previous Defence motions
alleging defects in the form of the indictment to be moot, and requested Defence
counsel to file any fresh motions by 3 May 2013.15 Counsel for Mr. Badreddine, Mr.
Oneissi and Mr. Sabra, on 2 and 3 May 2013, filed preliminary motions under Rule
90 (A) of the Rules alleging defects in the form of the amended indictment.16 The
Prosecution filed a consolidated response on 24 May 2013.17
10. The Trial Chamber dismissed these motions on 12 June 2013.18 On 19 June 2013,
counsel for Mr. Oneissi and Mr. Sabra requested certification to appeal the decision,
and counsel for Mr. Badreddine requested certification and reconsideration.19 The
12 STL-11-01/PT/PTJ, Prosecution Request for Leave to Include Further Amendments to its Proposed Amended
Indictment, 6 February 2013.
13 STL-11-01/PT/PTJ, Decision Relating to the Prosecution Requests of 8 November 2012 and 6 February 2013
for the Filing of an Amended Indictment, 12 April 2013.
14 STL-11-01/PT/PTJ, Prosecutions Filing of the Signed Version of the Amended Indictment in Compliance with
the Pre-Trial Judges Decision of 12 April 2013 & Request for Amended Arrest Warrants and Orders/Requests
for Transfer and Detention, 17 April 2013.
15 STL-11-01/PT/TC, Order Authorising the Defence to File Preliminary Motions Challenging Defects in the
Form of the Amended Indictment of 6 February 2013, 18 April 2013.
16 STL-11-01/PT/TC, Consolidated Motion on Form of the Indictment, 2 May 2013; Exception prjudicielle
forme contre lActe daccusation du 6 fvrier 2013 par la Dfense de M. Oneissi en vertu de larticle 90(A)
(ii), confidentiel, 3 mai 2013; Double exception prjudicielle prsente par la Dfense de M. Badreddine
lencontre de la Dcision relative aux requtes du Procureur du 8 novembre 2012 et du 6 fvrier 2013 aux fins
de dposer un acte daccusation modifi et de lActe daccusation modifi, 3 mai 2013.
17 STL-11-01/PT/TC, Prosecution Consolidated Response to Preliminary Defence Motions Alleging Defects in
the Amended Indictment, 24 May 2013.
18 STL-11-01/PT/TC, Decision on Alleged Defects in the Form of the Amended Indictment, 12 June 2013.
19 STL-11-01/PT/TC, Requte de la Dfense de M. Oneissi aux fins de la certification de lappel de la dcision de
la Chambre de premire instance Decision on Alleged Defects in the Form of the amended Indictment, 19 juin
2013; Sabra Defence Request for Leave to Appeal the Decision on Alleged Defects in the Form of the Amended
Indictment, 19 June 2013; Requte de la Dfense de M. Badreddine en autorisation aux fins de rexamen et ou
140
Presiding Judge of the Trial Chamber rejected the request for reconsideration,20 and
on 5 July 2013 the Trial Chamber certified the three motions for appeal.21 Counsel
for Mr. Badreddine, Mr. Oneissi and Mr. Sabra then filed separate appeals.22 On 21
June 2013, before the Trial Chamber certified its decision for appeal, the Prosecution
filed a further request for leave to amend the Amended Indictment of 6 February
2013.23 The Pre-Trial Judge allowed this on 17 July 2013,24 and on 2 August 2013
the Prosecution filed the amended indictment.25
11. On 5 August 2013, the Appeals Chamber dismissed the three appeals against
the Trial Chambers Decision as moot, and declared that the Defence may file
preliminary motions before the Trial Chamber directed at the Amended Indictment
of 21 June 2013.26
12. On 13 August 2013, the Trial Chamber issued a scheduling order for the
filing of fresh challenges,27 and on 19 August 2013 counsel for Mr. Badreddine, Mr.
Oneissi and Mr. Sabra filed revised preliminary motions on the form of the amended
en certification aux fins dappel de la Dcision du 12 juin 2013 relative aux exceptions prjudicielles fondes
sur un vice de forme de lacte daccusation, 19 juin 2013.
20 STL-11-01/PT/TC, Dcision refusant la Dfense de M. Badreddine lautorisation de dposer une requte en
rexamen, 2 juillet 2013.
21 STL-11-01/PT/TC, Dcision sur les requtes aux fins de certification en vue dinterjeter appel contre la dcision
de la Chambre de premire instance du 12 juin 2013, 5 juillet 2013.
22 STL-11-01/PT/AC/AR90.2, Oneissi Defence Appeal of the Decision on the Alleged Defects in the Form of the
Amended Indictment, 22 July 2013; Sabra Defence Appeal of the Decision on Alleged Defects in the Form of
the Amended Indictment, 16 July 2013; Mmoire dappel de la Dfense de M. Badreddine lencontre de la
Dcision de la Chambre de premire instance du 12 juin 2013 relative aux exceptions prjudicielles fondes sur
des vices de forme de lActe daccusation, 17 juillet 2013.
23 STL-11-01/PT/PTJ, Prosecution Further Request for Leave to Amend the Indictment, 21 June 2013.
24 STL-11-01/PT/PTJ, Order Granting the Prosecution Request for Leave to Reply to the Defence Responses to
Prosecution Further Request for Leave to Amend the Indictment, 17 July 2013.
25 STL-11-01/PT/PTJ, Prosecutions Filing of the Signed Version of the Amended Indictment in Compliance with
the Pre-Trial Judges Decision of 31 July 2013 & Request for Amended Arrest Warrants and Orders/Requests
for Transfer and Detention, 2 August 2013.
26 STL-11-01/PT/AC/AR90.2, Decision on Defence Appeals Against Trial Chambers Decision on Alleged
Defects in the Form of the Amended Indictment (Appeals Chambers Decision), 5 August 2013.
27 STL-11-01/PT/TC, Scheduling Order for the Defence to File Preliminary Motions Challenging the Form of the
Amended Indictment of 21 June 2013, 13 August 2013.
141
indictment.28 The Prosecution filed a consolidated response on 30 August 2013.29

The motions and response are very similar in form, although shorter, to those filed
in May 2013. This decision is thus similar to that of 12 June 2013 dismissing those
earlier challenges to the form of the previous amended indictment.
APPLICABLE LAW
13. Article 16 of the Tribunals Statute Rights of the Accused outlines the rights
of the Accused to a fair trial including that to a fair and public hearing. International
human rights instruments mandate that accused persons have the right to be informed
of the charges against them,30 and Article 16 (4) (a) mirrors these rights by providing:
In the determination of any charge against the accused pursuant to this Statute,
he or she shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he or she
understands of the nature and cause of the charge against him or her.
14. Rule 68 (D) further elaborates on this right by stating that an indictment must
contain the name and particulars of the suspect and a concise statement of the facts
of the case and of the crime with which the suspect is charged.
15. Rule 3 (A) provides that the Rules shall be interpreted in accordance with the
spirit of the Statute, and, relevantly, according to international standards on human
28 STL-11-01/PT/TC, The Defence for Hussein Hassan Oneissi Preliminary Motion on the Defects in the Form
of the Amended Indictment of 21 June 2013, Confidential (Oneissi motion), 19 August 2013, with a public
redacted version filed on 20 August 2013; Preliminary Motion on the Form of the Indictment, Confidential
(Sabra motion), 19 August 2013, with a public redacted version filed on 23 August 2013; Nouvelle exception
prjudicielle prsente par la Dfense de M. Badreddine a lencontre de lActe daccusation modifi du 21 Juin
2013, (Badreddine motion), 19 aot 2013.
29 STL-11-01/PT/TC, Prosecution Consolidated Response to Preliminary Motions on the Form of the Indictment,
Confidential (Prosecution response), 30 August 2013, with a public redacted version filed on 13 September
2013.
30 See e.g., Article 6 (3) (a) of the European Convention on Human Rights and Article 14 (3) (a) of the International
Covenant on Civil and Political Rights which provide the right to be informed promptly, and in detail in a
language which he understands of the nature and cause of the accusation against him; see also Article 8 (2) (b)
American Convention on Human Rights, the right to prior notification in detail to the accused of the charges
against him. The case-law of the ECtHR holds that a fair trial requires that indictments include the charges and
form of liability alleged; see e.g., Penev v. Bulgaria, Appl. 20494/04, 7 January 2012, para. 44; Varela Geis v.
Spain, Appl. 61005709, 5 March 2013, para. 42.
142
rights, and the general principles of international criminal law. The rights of an
accused person to be informed of the charges against them under international human
rights law are set out in the Statute and Rules. Additionally, numerous decisions of
other international criminal courts and tribunals have interpreted and expanded upon
these rights.
16. Articles 21 (4) and 20 (4) and 17 (4) (a) (respectively) of the Statutes of the
International Criminal Tribunal for the former Yugoslavia (ICTY), the International
Criminal Tribunal for Rwanda (ICTR) and Special Court for Sierra Leone (SCSL)
are identical to Article 16 (4) (a) of the Special Tribunals Statute. Rule 47 (C) of
the Rules of Procedure and Evidence of both ad hoc tribunals is also identical to
the Special Tribunals Rule 68 (D).31 The Trial and Appeals Chambers of both ad
hoc tribunals, and of the SCSL, have extensively interpreted their equivalents of the
Special Tribunals Article 16 (4) (a) and Rule 68 (D).
17. In examining this international case law, the following general principles of
international criminal law emerge:
the Prosecution must plead the material facts underpinning the charges with
enough detail to inform an accused person clearly of the nature and cause of
the charges to allow them to prepare a defence,32
there is a clear difference between the material facts (which must be pleaded)
and the evidence proffered to prove them,33
31 Although its wording differs slightly, the SCSLs Rule 47 (C) is in substance the same, providing The indictment
shall contain, and be sufficient if it contains, the name and particulars of the suspect, a statement of each specific
offence of which the named suspect is charged and a short description of the particulars of the offence. It shall be
accompanied by a Prosecutors case summary briefly setting out the allegations he proposes to prove in making
his case.
32 ICTY, Prosecutor v. Furundzija, IT-95-17/1-A, Judgement, 21 July 2000 (Furundzija Judgement), paras 61,
147; Prosecutor v. Kupreki, IT-95-16-A, Judgement, 23 October 2001 (Kupreki Judgement), para. 88;
Prosecutor v. Blaki, IT-95-14-A, Judgement, 29 July 2004 (Blaki Judgement), para. 209; Prosecutor v
Staki, IT-97-24-A, Judgement, 22 March 2006, (Staki Judgement), para. 116; Prosecutor v. Simi, IT-959-A, Judgement, 28 November 2006 (Simi Judgement), para. 20; see also, Ntabakuze v. The Prosecutor,
ICTR-98-41A-A, Judgement, 8 May 2012, para. 30 and the line of authority at the ICTR cited there.
33 Blaki Judgement, para. 210; Staki Judgement, para. 116.
143
the Prosecution is not required to plead the evidence intended to prove the
pleaded material facts,34
it would be unworkable for an indictment to contain all the evidence the
Prosecutor proposes to introduce at the trial,35
an indictment must be considered as a whole, and select paragraphs should be
read in context with the entire document,36
the materiality of a particular fact cannot be decided in the abstract and
depends on the nature of the Prosecutions case,37
the alleged criminal conduct is decisive in determining the degree of specificity
required in the indictment,38
regarding the identity of perpetrators for whose acts an accused is charged, but
without being charged with personally committing the crimes, it is sufficient
to identify such perpetrators by category or group in relation to a particular
crime site,39
a date may be considered to be a material fact if it is necessary in order to
inform a defendant clearly of the charges so that he may prepare his defence,40
34 Furundzija Judgement, paras 61, 147, 153; ICTR, The Prosecutor v. Ntagerura, ICTR-99-46-A, Judgement, 7
July 2006, (Ntagerura Judgement), para. 21; Simi Judgement, para. 20; The Prosecutor v. Uwinkindi, ICTR01-75-AR72 (c), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the
Indictment, 16 November 2011, (Uwinkindi Decision), para. 4.
35 Furundzija Judgement, para. 153.
36 Rutaganda v. The Prosecutor, ICTR-96-3-A, Judgement, 26 May 2003, para. 304; Gacumbitsi v. The Prosecutor,
ICTR-2001-64-A, Judgement, 7 July 2006, para. 123; The Prosecutor v. Seromba, ICTR-2001-66-A, Judgement,
12 March 2008, para. 27.
37 Kupreki Judgement, para. 89; Blaki Judgement, para. 210; see also, Uwinkindi Decision at para. 4 and the
line of authorities cited there.
38 Kupreki Judgement, para. 89; Blaki Judgement, para. 210.
39 ICTY, Prosecutor v. Krnojelac, IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the
Indictment, 24 February 1999, para. 46; Blaki Judgement, para. 218; Simba v. The Prosecutor, ICTR-01-76-A,
Judgement, 27 November 2007, paras 71-72; Muvunyi v. The Prosecutor, ICTR-2000-55-A-A, Judgement, 29
August 2008 (Muvunyi Judgement), para. 55; Renzaho v. The Prosecutor, ICTR-97-31-A, Judgement, 1 April
2011, para. 64.
40 Ndindabahizi v. The Prosecutor, ICTR- 01-71-A, Judgement, 16 January 2007 (Ndindabahizi Judgement),
144
a reasonable range of dates may be pleaded where precise dates cannot be

specified as to when the alleged criminal conduct occurred,41
a broad range of dates does not of itself invalidate a paragraph in an indictment,42
the precision with which dates have to be charged varies from case to case,43
the Prosecution must offer its best understanding of the case in the indictment,44
or the best information available,45
the identities of co-conspirators are required to be pleaded when they are
known,46 and
a chamber must distinguish between a disagreement with the alleged facts
(which is to be determined at trial) and a defect in the form of the indictment,47
and the material facts and the evidence proving those material facts.48
para. 19.
41 ICTY, Prosecutor v. Branin and Tali, IT-99-36-PT, Decision on Objection by Momir Tali to the Form of the
Amended Indictment, 20 February 2001, para. 22; Ndindabahizi Judgement, paras. 19-20; Muvunyi Judgement,
para. 58.
42 Muvunyi Judgement, para. 58; Rukundo v. The Prosecutor, ICTR-2001-70-A, Judgement, 20 October 2010,
para. 163; Bagosora and Nsengiyumva v. The Prosecutor, ICTR-98-41-A, Judgement, 14 December 2011, para.
150.
43 Ndindabahizi Judgement, para. 20.
44 Kupreki Judgement, paras 92, 95; ICTY, Prosecutor v. Kvoka, IT-98-30/1-A, Judgement, 28 February 2005,
para. 30.
45 Prosecutor v. Sesay, SCSL-04-15-T, Judgement, 2 March 2009, para. 398.
46 The Prosecutor v. Nahimana, ICTR-96-11-T, Decision on the Prosecutors Request for Leave to File an
Amended Indictment, 5 November 1999, para. 19; The Prosecutor v. Barayagwiza, ICTR-97-19-I, Decision
on the Prosecutors Request for Leave to File an Amended Indictment, 11 April 2000, p. 3; The Prosecutor v.
Nyiramasuhuko, ICTR-97-21-T, Decision on Nyiramashukos Preliminary Motion based on Defects in the Form
and the Substance of the Indictment, 1 November 2000, paras 58, 60; The Prosecutor v. Bikindi, ICTR-200172-I, Decision on the Defence Motion Challenging the Temporal Jurisdiction of the Tribunal and Objecting to
the Form of the Indictment and on the Prosecutors Motion Seeking Leave to File an Amended Indictment, 22
September 2003, para. 38 (i).
47 ICTY, Prosecutor v. Kvoka, IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the
Indictment, 12 April 1999, para. 40.
48 Furundzija Judgement, para. 153.
145
18. The Trial Chamber endorses and adopts these decided general principles of
international criminal law and will apply them in determining the Defence challenges
to the form of the indictment.
DISCUSSION
19. The main issue for determination is whether the amended indictment provides
a concise statement of the case against the Accused by setting out the material facts
in sufficient detail to allow their counsel to prepare a defence at trial.
20. Requesting the Trial Chamber not to annul the indictment of 10 June 2011 is
not properly part of a motion under Rule 90 (A) (ii). This decision disposes of this
issue first, and then deals with the specific challenges to the form of the indictment,
either individually or, where convenient, thematically.

Dismissal of relief seeking not to annul the indictment of 10 June 2011
21.
Counsel for Mr. Badreddine asks the Trial Chamber to:

(a) declare that the indictment of 10 June 2011 is not annulled, and to place
on record the Defences contention that such annulment cannot be relied
on against the Accused, and that it cannot prejudice his rights in these or
future proceedings,
(b) find the amended indictment to be unacceptably vague and therefore
defective, and
(c) to suspend the proceedings and prosecution (or, in the alternative, to order
the Prosecutor to amend the amended indictment in the manner sought).
22. The Trial Chamber, however, cannot do what is requested in paragraph 21 (a).
The indictment of 21 June 2013 is operative; the original indictment of 10 June 2011,
having been succeeded by subsequent amended indictments, is no longer operative.
As the Trial Chamber does not sit in review of a decision of the Pre-Trial Judge,
it lacks the jurisdiction to declare that an inoperative indictment is not annulled.
Moreover, the Appeals Chamber in respect of the appeal against the form of the
146
amended indictment of 6 February 2013 declined to entertain the appeals when

their underlying premisenamely the existence of the previous indictmenthas
been fundamentally altered (meaning by the confirmation of the newly amended
indictment of 21 June 2013).49 The Trial Chamber therefore denies the relief sought.
23. In relation to the request to place on record the Defences contention that
such annulment cannot be relied on against the Accused, and that it cannot prejudice
his rights in these or future proceedings, counsel for Mr. Badreddine have not
demonstrated any prejudice or unfairness to their client. The Trial Chamber therefore
dismisses the request.
24. In relation to the alternative form of relief sought, the Trial Chamber has
determined in paragraphs 25-50 that the indictment does not lack specificity. It thus
follows that the Trial Chamber will not suspend (or stay) the proceedings or
prosecution.

A circumstantial case tried in absentia requires greater specificity in an

indictment
25. Counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra argued that greater
specificity is required in the amended indictment because the proceedings will be
held in absentia, and the Prosecution is relying heavily on circumstantial evidence.50
The Prosecution responded that neither the in absentia proceedings nor the
circumstantial nature of the evidence require greater specificity in the indictment,
and that the Defence has provided no legal authority to support this argument.51
26. The Trial Chamber is unaware of any legal authority supporting the Defence
argument and is unpersuaded by arguments that in absentia proceedings and
circumstantial evidence, either alone or in combination, impose a more onerous
pleading burden on the Prosecutor in filing an indictment. When filing an indictment,
a Prosecutor is not required to attempt to predict whether proceedings will later be
49 Appeals Chambers Decision, para. 20.
50 Badredinne motion, paras 21-25; Sabra motion, paras 7-8; Oneissi motion, para. 13.
51 Prosecution response, paras 30-31.
147
held in absentia. The quality and sufficiency of the material pleaded in an indictment,
rather than the category of case or type of evidence of itself, is determinative in
deciding whether an indictment is defective in form.
27. Moreover, the totality of the case against these Accused is contained in the
combination of the amended indictment, the Prosecutions pre-trial brief and the
evidence intended to be used at trial and these have been disclosed to their counsel.
It is this combination of information, rather than that found in the indictment alone,
that provides Defence counsel with the notice of the nature of the case necessary to
allow them to properly defend their clients. Thus, even if the Prosecution is required
to provide better particulars to counsel defending accused in proceedings held in
absentia, and where the evidence is circumstantial, Defence counsel are informed by
the totality of that information, rather than only that specified in an indictment. This
challenge is thus dismissed.

Using the Lebanese Code of Criminal Procedure
28. Counsel for Mr. Oneissi argued that Rule 68 (D) should be interpreted
in a manner more consistent with Article 131 of the Lebanese Code of Criminal
Procedure because the Tribunals Statute and Rules regarding the specificity required
in an indictment are too broad. An indictment in a more specific form would assist
the Defence in its preparation.52 The Prosecution responded that the Special Tribunal
should judge the requirements of an indictment according to the same wellestablished principles which govern indictments at the ICTY and ICTR,53 and that
counsel for Mr. Oneissi failed, in the absence of ambiguity, to justify needing to refer
to the Lebanese Code.54
52 Oneissi motion, paras 10, 12.

53 Prosecution response, para. 5. In summarising these well-established princples, the Prosecution states that
it must plead the charges against an accused and the material facts supporting those charges with sufficient
precision so as to provide notice of the nature and cause of the charges against the accused. The Prosecution
must plead its case according to the best information available to it. It is not required to plead the evidence by
which it intends to prove the material facts, or material facts of which it is not aware.
54 Prosecution response, paras 6, 25-29.
148
29. The Trial Chamber considers that Rule 68 (D) clearly specifies the requirements
for an indictment, and that the case law from other international courts and tribunals
aids its interpretation. Moreover, there is no inconsistency between Article 131 of
the Lebanese Code and Rule 68 (D), especially when considering that the Special
Tribunals Prosecutor must file a comprehensive pre-trial brief to supplement an
indictment, which is not required under the Lebanese Code. And moreover there is
no lacuna in the Rules requiring resort to the Lebanese Code.

Specific defects
30. The Defence motions allege specific defects in the form of the pleading of the
amended indictment. These are dealt with thematically in turn:

Pleading of the alleged conspiracy
31. The amended indictment, at paragraph 3, alleges that the four Accused
participated in a conspiracy with others aimed at committing a terrorist act to
assassinate Rafik Hariri. It then outlines in broad terms the role of each in the
conspiracy alleged.
32. Paragraph 48 avers that the four together with others as yet unidentified,
including the assassination team, agreed to commit a terrorist act by means of an
explosive device in order to assassinate HARIRI. It then further charts the alleged
role of each Accused in the conspiracy alleged.
33. The dates of the alleged conspiracy are specified in the particulars of count
one, in paragraph 54. There, it is alleged that participation in the conspiracy occurred
in the case of Mr. Badreddine and Mr. Ayyash between 11 November 2004 and 14
February 2005, and for Mr. Oneissi and Mr. Sabra between 22 December 2004 and
14 February 2005.55
34. Counsel for each of the three Accused challenged the pleading of the alleged
conspiracy in the amended indictment. The complaints essentially concern the
55 And in relation to Mr. Oneissi and Mr. Sabra in counts 6, 7, 8 and 9 between 22 December 2004 and 14 February
2005.
149
dates of the alleged conspiracy. Further complaints are made concerning a lack of
particulars of the alleged conspiracy.

Dates of the alleged conspiracy
35. Counsel for Mr. Badreddine submitted that the time period pleaded for the
conspiracy was increasingly ambiguous, contradictory and inconsistent in relation
to its alleged commencement date and Mr. Badreddines alleged participation in it.
They also submit that pleading this date range is incompatible with the statement
that Mr. Badreddine was allegedly among the early members of the conspiracy
asking how this could be correct if he could have joined it as late as 14 February
2005?56
36. Counsel for Mr. Oneissi argue that the date range provided for the conspiracy
is unreasonable as the nature of the case against the Accused cannot be ascertained.57
And, more broadly, the amended indictment does not contain any details regarding
his alleged involvement in the design and execution of the conspiracy.58 Counsel for
Mr. Sabra argue that the amended indictment lacks sufficient detail in relation to the
date range of the alleged conspiracy and Mr. Sabras complicity, thus undermining
their ability to prepare for trial.59
37. The Prosecution responded by referring to international criminal law
jurisprudence which holds that the range of dates pleaded in an indictment must
not be overly broad. The dates pleaded in the amended indictment, it is argued,
provide the Defence with sufficient notice of the relevance of the time frame of the
conspiracy pleaded.60
38. The Trial Chamber agrees. It is permissible, and indeed normal, to plead in
an indictment the occurrence of an act within a range of dates if its precise date is
56 Badreddine motion, paras 34-37.
57 Oneissi motion, paras 21-23.
58 Oneissi motion, para. 19.
59 Sabra motion, paras 10 (u)-(v).
60 Prosecution response, paras 45-48.
150
unknown. The ICTR Appeals Chamber, in summarising the relevant international

jurisprudence, has recently held that:61
a broad date range, in and of itself, does not invalidate a paragraph of an
indictment. A decisive factor in determining the degree of specificity with
which the Prosecution is required to particularise the facts of its case in the
indictment is the nature of the alleged criminal conduct with which the accused
is charged. Obviously, there may be instances where the sheer scale of the
alleged crimes makes it impracticable to require a high degree of specificity
in such matters as the identity of the victims and the dates for the commission
of the crimes.
39. Counsel for Mr. Badreddines submission that pleading such a range of dates
is incompatible with an allegation that one Accused was an early participant in
a conspiracy is misconceived. Here, the Prosecution has alleged the existence of
a conspiracy and the participation of each of the Accused in that conspiracy but
between specified dates. There is nothing impermissible in this form of pleading,
and indeed, the Special Tribunals Appeals Chamber has held in relation to the
duration of a conspiracy that no explicit time-line is required for the validity. The
agreement stands, even though it is a long-term one or has no predefined or foreseen
term.62
40. An indictment must be viewed in its totality, and pleading that an act relating
to a conspiracy occurred within a three month period in all of the circumstances
alleged here is not disproportionate or overly broad. The circumstances in which
the Accused are alleged to have come to participate in the alleged conspiracy are a
matter for evidence at trial and need not be pleaded as material facts in an indictment,
but should be notified to the Defence in a timely manner before trial.
61 Bagosora Judgement, para. 150.

62 STL-11-01/I, Interlocutory Decision on the Applicable Law; Terrorism, Conspiracy, Homicide, Perpetration,
Cumulative Charging (Applicable Law Decision), 16 February 2011, para. 196.
151
The identity of the alleged co-conspirators
41. Counsel for Mr. Sabra claim that the amended indictment is defective in not
explicitly naming the other alleged co-conspirators and in not clarifying certain
aspects of their involvement in the alleged conspiracy, while arguing that the
conspiracy is related solely to the four Accused.63
42. As a general principle of pleading indictments in international criminal
law, a Prosecutor is required to plead the identity of known co-conspirators.64 The
Prosecution has done so.65 Further, a Prosecutor has no requirement concerning the
identification of all individuals,66 and is not required to plead the names of those
whose identity is unknown.
43. The Trial Chamber is thus satisfied that the amended indictment pleads
sufficient material facts to allow Defence counsel to prepare their case for trial.

The False Claim of Responsibility
44. The amended indictment, at paragraphs 3 (c)-(d), 23 and 44, alleges that Mr.
Oneissi and Mr. Sabra participated in finding and then using a person, Abu Adass, to
make a video-taped false claim of responsibility for the Hariri assassination, which
was ultimately broadcast on Al-Jazeera on 14 February 2005.
45. The amended indictment pleads the following material facts, by alleging that
Mr. Oneissi and Mr. Sabra participated together in:
identifying and finding a suitable individual (Abu Adass) for making the false
claim,
63 Sabra motion, paras 10 (b), (t).
64 For example, The Prosecutor v. Nahimana, ICTR-96-11-T, Decision on the Prosecutors Request for Leave
to File an Amended Indictment, 5 November 1999, para. 19; The Prosecutor v. Barayagwiza, ICTR-97-19-I,
Decision on the Prosecutors Request for Leave to File an Amended Indictment, 11 April 2000, p. 4; The
Prosecutor v. Bikindi, ICTR-2001-72-I, Decision on the Defence Motion Challenging the Temporal Jurisdiction
of the Tribunal and Objecting to the Form of the Indictment and on the Prosecutors Motion Seeking Leave to
File an Amended Indictment, 22 September 2003, para. 38 (i).
65 Prosecution response, para. 38.
66 Applicable Law Decision, para. 195.
152
disseminating, after the attack, statements falsely attributing responsibility for

the attack,
ensuring the delivery to Al-Jazeera of a video, with a letter attached containing
the false claim, by telephoning Al-Jazeera on 14 February 2005, and
demanding, with menace, that the video be broadcast (i.e., ensuring that it
would be broadcast).
More specifically it alleges that Mr. Oneissi (using the pseudonym Mohammed)
allegedly met Abu Adass on 16 January 2005, and, on 14 February 2005 observed
Al-Jazeera employees locating the video-cassette which had been placed in a tree
near its offices in Beirut. Mr. Sabra is alleged in the amended indictment to have
telephoned Al-Jazeera shortly before this to inform the broadcaster of the videos
location.
46. Counsel for Mr. Oneissi submits that these pleadings do not specify clearly
enough the respective roles of Mr. Oneissi and Mr. Sabra in making the false claim.
Counsel for Mr. Oneissi and Mr. Sabra state that they need further details of the
alleged involvement of their clients in recruiting Abu Adass. Both submit that the
description of the observation and delivery of the video-cassette, including telephone
calls to Al-Jazeera falsely claiming responsibility,67 are impermissibly vague and fail
to establish the Accuseds participation.
47. The Prosecution responds that the amended indictment pleads all the necessary
material facts in relation to these alleged events, rather than the evidence which will
establish the material facts pleaded at trial.68
48. The Prosecutions submissions have merit. The Prosecution has pleaded the
material facts necessary for such an averment in an indictment. Further and more
broadly, the pleading provides sufficient information to Defence counsel to inform
them clearly of the nature and cause of the charges against their clients such as to
67 Oneissi motion, paras 26-29, 32-33; Sabra motion, paras 10 (e)-(f), (i), (r), (s). In this context, the Sabra motion
argues that the word or on the phrase ONEISSI and SABRA made a total of 4 calls is insufficiently clear,
and the allegation should be stricken if the Prosecution is unable to specify who made each call, para. 10 (s).
68 Prosecution response, paras 16, 32, 57-64, 72-73.
153
allow them to prepare a defence for trial. The issues raised in the Defence submissions
generally relate to the evidence to be led at trial (and particulars between the Parties)
rather than what must be pleaded in an indictment.

Allegations of vagueness in pleading
49. Counsel for Mr. Sabra argued that the amended indictment is vague in
23 discrete aspects. These include using the words each and together with,
participated together with, ensuring the delivery of the video, to co-ordinate the
false claim, phones ... were used from at least 1 January 2005, a number of days
prior to the attack, surveillance occurred on at least fifteen days, activity ... is
illustrated inter alia, in the vicinity of the mosque, locating, chose, seek a
suitable individual, together with others as yet unidentified, sometime between at
least 11 November 2004 and 16 January 2005, and identifying and then using.69
Counsel for Mr. Badreddine complained that the amended indictment is imprecise
in 20 distinct respects, attacking as imprecise the use of words such as monitor,
key times, coordinate and often.70 Moreover, they disagree with the distinction
made between material facts and evidence as set out in the Trial Chambers decision
of 12 June 2013 arguing that the distinction is inevitably arbitrary because the case
is circumstantial.71 Counsel for Mr. Oneissi submit that the deficiencies and lack
of clarity (e.g., whether relating to the alleged conspiracy or the false claim of
responsibility) result in an unacceptably vague amended indictment which must be
cured to ensure adequate preparation for trial.72
50. The Trial Chamber disagrees with these submissions. The amended indictment
pleads the material facts necessary for a valid indictment; each of the circumstances
complained of by Defence counsel relates to the evidence to be presented at trial. The
totality of the case against these Accused is contained in the amended indictment, the
Prosecutions pre-trial brief, the evidence disclosed to their counsel, and the evidence
69 Sabra motion, para. 10.
70 Badreddine motion, paras 29-33, 38-42.
71 Badredinne motion, para. 23 referring to para. 14 of the decision.
72 E.g., Oneissi motion, paras 25, 27, 30, 34.
154
to be presented at trial. These documents must be viewed as a package providing an

Accused with the material necessary to mount a proper defence, but the indictment
itself is only required to plead material facts. It has done so.
CONCLUSION
51. The amended indictment therefore provides counsel for the Accused with
enough detail to inform them clearly of the nature and cause of the charges to allow
them to prepare a defence of the case at trial. The amended indictment is not defective
in its form.
CERTIFICATION FOR APPEAL

52. The Trial Chamber requests Defence counsel, if they wish to file a motion
seeking certification of this decision for appeal under Rule 126, to clearly set out and
concisely list any issues in the decision that they wish to have certified for appeal. This
should reference any paragraph in the decision on the issues for which certification
is sought. The Prosecution should respond to any requests for certification by Friday
27 September 2013.
155
53. DISPOSITION
FOR THESE REASONS, the Trial Chamber:
(1) Dismisses the motions alleging defects in the form of the amended indictment
filed by Defence counsel acting for Mr. Mustafa Amine Badreddine, Mr. Hussein
Hassan Oneissi and Mr. Assad Hassan Sabra, and
(2) Orders the Prosecution to respond to Defence requests, if any, to certify this
decision for appeal by 27 September 2013.
Done in Arabic, English, and French, the English version being authoritative.
Leidschendam, The Netherlands
13 September 2013
___________________________
_______________________
_______________________
156
8.
Case name:
Before:
Appeals Chamber
Title:
Public redacted version of 19 September 2013

Decision on Appeal by Counsel for Mr Oneissi
against Pre-Trial Judges Decision on Issues
Related to the Inspection Room and Call Data
Records
Short title:
Inspection of Call Data Records AC
157
158
THE APPEALS CHAMBER

Case No.:
STL-11-01/PT/AC/AR126.4
Before:

Judge Ralph Riachy
Judge Ivana Hrdlikov, Judge Rapporteur
Registrar:
Mr Daryl Mundis
Date:
2 October 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
PUBLIC REDACTED VERSION OF 19 SEPTEMBER 2013

DECISION ON APPEAL BY COUNSEL FOR MR ONEISSI AGAINST
PRE-TRIAL JUDGES DECISION ON ISSUES RELATED TO THE
INSPECTION ROOM AND CALL DATA RECORDS
Prosecutor:
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun

Mr Peter Haynes

Mr Antoine Korkmaz
Mr John Jones

Mr Franois Roux

Mr David Young
Dr Gunal Mettraux

Mr Yasser Hassan
159
INTRODUCTION
1.
1.
We are seized of an appeal filed by counsel for Mr Oneissi1 against
two aspects of a decision of the Pre-Trial Judge.2 In the Impugned Decision, the PreTrial Judge dismissed, in part, the Defences joint request for the inspection of certain
Call Data Records (CDRs) pursuant to Rule 110 (B) of the Special Tribunal for
Lebanons Rules of Procedure and Evidence (Tribunal and Rule, respectively)
which counsel claim are in the possession of the Prosecutor and are material to the
preparation of their defence. The first aspect concerns the application of the first of
three limbs of Rule 110 (B), which entitles the Defence to documents material to
their preparation for trial. The second relates to the application of Rule 121 (A) as
to the form in which CDRs are to be disclosed. While it is possible that the Pre-Trial
Judge applied Rule 110 (B), the reasons for the decision do not demonstrate clearly
that he did so correctly. It is also unclear whether the order for disclosure complies
with Rule 121 (A). We therefore remand the Defence request for inspection of the
CDRs to the Pre-Trial Judge for reassessment consistent with this decision.
BACKGROUND
2.
Since this appeal relates to a number of technical issues, in particular with
respect to so-called CDRs, we find it useful to refer to the explanatory overview
provided by the Pre-Trial Judge in the Impugned Decision:
4. CDRs refer to information in the Prosecutions possession and related to
communication via either a fixed or mobile telephone, and include Short
Message Service or SMS records. The primary purpose of a CDR is to
generate records, and they include the dates, times and durations of calls made,
type of call (voice or SMS), the callers and recipients of the calls, as well as
the identities of the cell towers used to transmit the call (in the case of mobile
1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.4, The Defence for Hussein Hassan Oneissi Appeal
to the Pre-Trial Judges Decision on Issues Related to the Inspection Room and Call Data Records Dated 18
June 2013, Confidential, 19 August 2013 (Appeal).
2 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Issues Related to the Inspection Room and
Call Data Records, Confidential, 18 June 2013 (Impugned Decision).
160
telephony) which provides information on the telephone handsets location

when the call was made. It may also include other technical information,
depending on the service provider, such as the IMEI numbers of the handsets
used to place and receive the calls. SMS content is not stored in CDRs. CDRs
in respect of landline telephone phone numbers are similar to those generated
for mobile telephones but tend to contain less information.
5. To the extent that CDRs relate to the Prosecutions case against the accused,
they have been provided to the Defence in twoformats.
6. The first format is original information or Raw Data which was provided
to the Prosecution by the relevant service providers in Lebanon, pursuant to a
series of requests for assistance (RFA or RFAs). The Raw Data contains
records for one or more phone numbers and/or cell towers, as well as other
technical information. The Raw Data is voluminous and largely unintelligible
without further analysis.
7. The second format is processed or analysed information, in the form of
a database, against which searches and analysis can be performed more
easily.Since the programming language used by the Prosecution for processing
and managing the Raw Data in this case was a structured query language or
SQL, the resulting database is referred to herein as the SQL Database.
8. For the purposes of this decision, it is understood that copies of the CDRs
in either format are accessible in three locations. The first location is in the
Office of the Prosecutors evidentiary holdings. The second location is in the
Inspection Room. The third location is the Z:\Drive, the nature of which is
explained in paragraph10 below.
9. The SQL Database is generated and controlled by the Prosecution. The
Defence has access to it in the Inspection Room, a facility created within
the Tribunal for that purpose. It is noteworthy that the SQL Database relates to
a smaller subset of Raw Data than the Prosecution has in its possession. This
is because the Prosecution has only analysed and/or uploaded those CDRs
161
which it considers are relevant to its case, and which in its opinion the Rules
require it to provide for inspection. Furthermore, data [REDACTED].
10. The Parties have also made use of a restricted-access drive on the Tribunals
network called the Z:\ Drive, which serves two purposes. First, the Z:\ Drive is
used to enable the Prosecution to provide to the Defence materials in addition
to the CDRs which would but for their size ordinarily be provided to the
Defence via the Tribunals Legal Workflow System (LWS). This is because
LWS does not support the transmission of data above a specific size limit.
Second, the Z:\Drive is the location of the Raw Data which underlies the
SQL Databases, and which the Prosecution has provided to the Defence.The
Z:\Drive therefore contains two categories of material: CDRs, on the one
hand, and other material that the Prosecution has disclosed or made available
for inspection, pursuant to Rules91, 110 and113, on theother.3
3.
The procedural background of this matter is set out exhaustively in the
Impugned Decision.4 In essence, after negotiations between the parties, the Defence
filed a joint motion before the Pre-Trial Judge, requesting access to certain CDRs
from the Prosecutor pursuant to Rules 91 and 110 (B).5 In the Impugned Decision,
the Pre-Trial Judge granted the request, but only in part.6 Counsel for Mr Oneissi
sought and received certification to appeal one limited aspect of the decision, namely
whether the Pre-Trial Judges determination of (1) the relevant time period
namely 1January2003 to 1 October 2005for which the Defence should
be granted access to CDRs in SQL format was correct; and (2) if so, where
the Prosecution is not in possession of CDRs in SQL format falling within
Impugned Decision, paras 4-10 (footnotes omitted); see also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/
AC, Prosecution Response to the Oneissi Defences Appeal of the Pre-Trial Judges Decision on Issues Related
to the Inspection Room and Call Data Records of 18 June 2013, Confidential, 30August2013, (Prosecution
Response), paras 8-10.
Impugned Decision, paras 11-22.
5 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Defence Submissions Regarding the Prosecutions
Inspection Room and Call Data Records on the Z Drive, Confidential, 18 March 2013 (Defence
18MarchSubmissions), paras 20-25.
6
Impugned Decision, Disposition.
162
the relevant time period, whether it can be required to provide them in SQL
format.7
4.
Counsel for Mr Oneissi subsequently filed an appeal brief within the time
limit required by the Rules, elaborating the two grounds of appeal.8 The Prosecutor
responds that the appeal should be dismissed.9
DISCUSSION
I.
Confidentiality
5.
We note that the appeal was filed confidentially pending the Pre-Trial
Judges resolution of the issue of confidentiality of all the filings giving rise to this
appeal.10 The Pre-Trial Judge has not yet issued an order in this regard. We stress the
importance of the public nature of the proceedings before this Tribunal.11 Indeed, in
the Impugned Decision, the Pre-Trial Judge referred to the need for transparency.12
However, he considered that the Impugned Decision contain[s] material that reveals
the inner workings of the Prosecution and the Defence and asked the parties for
submissions on the issue.13 We find that, in the circumstances, it is prudent for us to
await the Pre-Trial Judges assessment on the matter before issuing a public version
of our decision, redacted if need be.
STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the Defence for Hussein Hassan Oneissis
Request for Reconsideration and Certification of the Decision on Issues Related to the Inspection Room and
Call Data Records Dated 18 June 2013, Confidential, 9August2013 (Certification Decision), Disposition.
Appeal, para. 2.
Prosecution Response, para. 50.
10 Appeal, para. 49
11 See STL, In the matter of El Sayed, CH/AC/2013/01, Public Redacted Version of Decision on Appeal by the
Prosecutor Against Pre-Trial Judges Decision of 11 January 2013, Dated 28March2013, 28March2013, para.
9 (with further references).
13 Ibid.
163
II.
Standard of review
6.
Rule 176 (A) provides for an appeal on the following grounds: (1) An error
on a question of law invalidating the decision; or (2) [a]n error of fact that has
occasioned a miscarriage of justice.14 Counsel for Mr Oneissi argue that for this
appeal we should apply the standard of review applicable to legal errors.15 On the
other hand, the Prosecutor submits that the
appeal relates to the Pre-Trial Judges decision on Defence access to CDRs
in SQL format. The Appeals Chamber of the ICTY and ICTR, tribunals with
rules governing disclosure that are nearly identical to those of this Tribunal,
has recognized that decisions involving disclosure are matters that relate to the
general conduct of trial proceedings, and thus fall within the discretion of the
first instance chamber or judge. [. . .] Therefore, the correct standard of review
for the appeal is the standard for discretionary decisions, not that applicable to
an alleged error of law.16
Indeed, we agree with the Prosecutor that the appeal is not limited to legal errors, and
that the Impugned Decision involves an evaluation of various factors. The question
whether certain records are material to the preparation the defence17 requires a
broader assessment of the factual circumstances of the case.
7.
However, because we ultimately base both aspects of our decision on questions
of law, we apply the following standard this Chamber has previously adopted and
applied to alleged errors of law:
A party alleging an error of law must identify the alleged error, present
arguments in support of its claim, and explain how the error invalidates the
decision. An allegation of an error of law that has no chance of changing the
outcome of a decision may be rejected on that ground. However, even if the
partys arguments are insufficient to support the contention of an error, the
Appeals Chamber may still conclude, for other reasons, that there is an error of
14 See Rule 176 (A) STL RPE.

16 Prosecution Response, para. 11.
17 See Rule 110 (B) STL RPE.
164
law. [] The Appeals Chamber reviews the Trial Chambers findings of law to
determine whether or not they are correct.18
III. Applicable law

8.
At issue here are the interpretation and application of Rule 110 (B). We
reproduce the subrule and have added bracketed numbers and emphasis:
The Prosecutor shall, on request, permit the Defence to inspect any books,
documents, photographs and tangible objects in the Prosecutors custody or
control, which are [1] material to the preparation of the defence, or [2] are
intended for use by the Prosecutor as evidence at trial or [3] were obtained
from or belonged to the accused.
There are clearly three distinct categories of documents which the Defence are
entitled to inspect. Here, the application by the Defence relied on the first. The issue
is whether the Impugned Decision shows that the first limb was duly applied.
A.
First ground of appeal - temporal extent to which CDRs must be

disclosed
9.
The first issue the Pre-Trial Judge certified for appeal was whether the time
period set forth by the Pre-Trial Judge as relevant for CDR disclosure in SQL format
was correct.19
10. The Defence request to the Pre-Trial Judge was that, pursuant to the first limb
of Rule 110 (B),20 the Prosecutor be ordered to make available for their inspection
18 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, Decision on Appeal by Legal Representative
of Victims Against Pre-Trial Judges Decision on Protective Measures, 10 April 2013, para. 19 (internal citation
omitted). We further note that, even if we were to follow the enunciated standard of appellate review for factintensive decisions, the issue here would be whether the Pre-Trial Judge based his decision on an incorrect
interpretation of the governing law. See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1,
Corrected Version of Decision on Defence Appeals Against Trial Chambers Decision on Reconsideration of
the Trial In Absentia Decision, 1November2012, para. 5.
19 Certification Decision, Disposition.
20 The Prosecutor shall, on request, permit the Defence to inspect any [items] in the Prosecutionss custody or
control [. . .] material to the preparation of the defence. Rule 110(B) STL RPE (italics not in original).
165
certain raw and SQL CDRs material to the preparation of the defence.21 The Pre-Trial
Judge answered the request by ordering production of both raw and SQL CDRs for
what he assessed as the relevant time period for disclosure, namely from 1 January
2003 until 1 October 2005.22 He determined this range by applying the earliest and
latest specific dates alleged in the Prosecutors Indictment for the existence of [one
of] several networks of [...] telephones that were used in the attack on 14 February
2005.23
11. Counsel for Mr Oneissi challenge what they argue was the Pre-Trial Judges
reasoningthat the only CDRs the Defence was entitled to receive in SQL format
were, in counsels submission, those that fall within the temporal scope of the
Indictment and on which the Prosecution would rely [. . .] at trial.24 We note that
these were not the Pre-Trial Judges words and we will have to interpret precisely his
reasons for the decision. Counsel submit that such reasoning arose from a failure
by the Pre-Trial Judge to distinguish between the requirements of the first and
second limbs of Rule 110(B).25 They argue that the Judge conflated the first limb,
materiality (which in fact relates to the preparation of the Defence), and the second
limb (which concerns intended use by the Prosecutor). The Prosecutor submits in
response that the [a]ppeal fails to demonstrate that the Pre-Trial Judge erred in
defining the relevant temporal range for the provision of access to [CDRs] to be
inspected in [SQL] format by the Prosecution.26 The Prosecutor argues that the PreTrial Judge properly applied Rule 110 (B).27
12. Since Rule 110 (B) requires disclosure by the Prosecutor of any item in the
Prosecutors custody or control that falls under any one of its three limbs,28 ifcounsel
21 Defence 18 March Submissions, paras 22-23.
22 Impugned Decision, paras 51-52.
23 Ibid.
24 Appeal, para. 17 (emphasis added).
25 Id. at para. 23.
26 Prosecution Response, para. 1.
27 Id. at paras 21, 26.
28 See Rule 110 (B) STL RPE.
166
for MrOneissiare correct in their contention that the Pre-Trial Judge conflated the
first and second limbs, there has been an error of law. Equally, if the Impugned
Decision does not make clear either that the first and second limbs were properly
distinguished, or that Rule 110(B) was duly considered, there has been an error of
law. We have concluded that the reasoning in the Impugned Decision is not clear and
that therefore an error of law is established, necessitating reference of the case back
to the Pre-Trial Judge.
13. The parts of the Impugned Decision relevant to this appeal made no specific
reference to the first limb of Rule 110 (B). Since the competing submissions concern
what inferences should be drawn from the Pre-Trial Judges words, we reproduce the
relevant passages. The Impugned Decision stated:
Discussion
40. The Prosecutions case is based largely on the use of mobile telephones
and their alleged attribution. The parties disagree, however, on the temporal
scope of the CDRs to be provided to the Defence in SQL format.
[. . .]
43. The Pre-Trial Judge considers that the determination of the pertinent
temporal scope of the CDRs to be made available for inspection in SQL format
requires that a distinction be drawn between two discrete purposes for which
they have been used by the Prosecution, namely: analysis and attribution.
44. Where the Prosecution has analysed the CDRs in order to investigate
patterns of calls made between specific phones, or specific groups of phones,
thereby leading to the identification of certain networks of telephones in use
at specific times and locations, the CDRs for the period of this analysis
together with their being reflected in the SQL database are required.
45. The attribution of a telephone number to a person, on the other hand, relies
on evidence that supports the assertion that a specific telephone number was
used by a specific person during a particular time period or on a particular
167
occasion. The attribution of specific telephone numbers to certain individuals

is ordinarily a simple matter where accurate and reliable subscriber details
relate to the phone number in question. Where these details are inaccurate
or unreliable, attribution may require recourse to supplementary information.
[. . .] The temporal scope of CDRs for analysis
46. According to the Rules, the Prosecution is obliged to make available to the
Defence copies of:
a. the material supporting the Indictment when its confirmation was sought
(pursuant to Rule 110(A)(i)); and
b. the list of exhibits it intends to offer at trial, together with copies of the
exhibits so listed or access thereto (pursuant to Rule 91(G)(iii)).
47. To the extent, then, that the Prosecution relied on CDRs when seeking
confirmation of the Indictment, or on which it intends to rely [...] at trial, data
relating to these CDRs ought already to have been provided to the Defence.
Indeed, the Prosecution asserts that it has discharged this obligation.
48. The Pre-Trial Judge notes that, with respect to the analysis of the CDRs,
the Prosecution has either disclosed, or provided for inspection, all the CDRs
necessary for a specific time period which it has in SQL format. This conforms
to the obligations incumbent on the Prosecution; the Defence must have
effective access to all CDRs in SQL format for the relevant time period that
allows it to conduct its own analysis.
49. On the other hand, where the Prosecution has relied on CDRs outside
of the relevant time period of analysis in order to support its attribution of
telephone numbers to certain individuals, it has provided the Raw Data, as
well as the relevant CDR or CDRs to the Defence on an individual basis.
50. The questions, then, are what this relevant time period is, and whether
the Prosecution is under an obligation to include CDRs in SQL format in the
Inspection Room which fall outside that relevant time period.
168
51. The Prosecution does not specify, in its submissions in this matter, what
it considers the relevant time period to be. The Pre-Trial Judge nevertheless
notes that, in the Indictment, the Prosecution alleges the existence of several
networks of mobile telephones that were used in the attack of 14 February
2005, at least one of which came into existence on or by 30 September 2004,
and at least one of which remained active until 1 October 2005. A further
specific group of phones was used from at least 1 January 2003 until 16
February 2005. In its letter of 20 February 2013, the Prosecution states that it
does not rely on the large CDRs for [a certain time period].
52. From this information, the Pre-Trial Judge considers the relevant time
period to be from 1 January 2003 until 1 October 2005. This determination
is subject to two caveats, however. First, the Pre-Trial Judge has previously
determined that the Prosecution is not obliged to perform analyses or to
create work products which are not in its custody or control, possession or
actually known to it. The Prosecution cannot disclose or allow the inspection
of materials that it does not have. Where the Prosecution is not in possession
of CDRs or analysis of Raw Data in SQL format falling within the relevant
time period, it cannot be required to provide them.29
14. Notably, paragraph 40 of the Impugned Decision refers to the parties dispute
as concerning the temporal scope of the CDRs to be provided to the Defence in SQL
format. Paragraphs 43 and 44, which address the determination of such temporal
scope, focus on the purposes for which [CDRs] have been used by the Prosecution.
This might be an implicit reference to the second limb of Rule 110 (B), or to another
Rule. But while such reference could be indirectly relevant to the first limb of Rule
110 (B)materiality to the preparation of the defenceit does not concentrate
specifically on that limb.
15. Subsequently, paragraph 46 of the Impugned Decisionwhich concerns what
the Prosecution is obliged to make available to the Defencerefers only to Rules
110 (A) and 91 (G) and makes no specific reference to Rule 110 (B). Nor does
paragraph 46 make clear allusion to the first limb of Rule 110 (B) on which the
29 Impugned Decision, paras 40, 43-52 (internal citations omitted).
169
Defence relied. Further, paragraph 47 may indeed be said to either refer back to
paragraph 46 or to the secondlimbof Rule110(B)matters intended for use by
the Prosecutor as evidence at trial. Paragraph 48 states, in part, that
withrespect to the analysis of the CDRs, theProsecution has either disclosed,
or provided for inspection, all the CDRs necessary for a specific time period
which it has in SQL format. This conforms to the obligations incumbent on
the Prosecution; the Defence must have effective access to all CDRs in SQL
format for the relevant time period that allows it to conduct its own analysis.30
It can be argued both from the context of the immediately preceding paragraph 47,
perhaps concerning the second limb of Rule 110 (B), and also from its own terms,
that paragraph 48 could be dealing with the first limb of Rule 110 (B). But if this is
the case, it fails to do so with clarity. Paragraph 48 refers to a specific time period,
which is not defined, and the relevant time period that allows [the Defence] to
conduct its own analysis. Such references could be taken as an allusion to a time
period which embraces documents material to the preparation of the defence.The
same may be said of paragraphs 51 and 52, which narrowly concern phone networks
whose existence is alleged in the Prosecutors Indictment. Fairness of process,
however, requires that there be no reasonable doubt that the rights of the accused in
this critical area have been ensured.
16. The crucial point is that in determining a relevant time period for which
CDRs had to be disclosed by the Prosecution, the Pre-Trial Judge never referred
to Rule 110 (B),31 even though the Defence had expressly relied on that Rule when
making its application.32 Nor did the Pre-Trial Judge explicitly examine whether or
not the requested CDRs were material to the preparation of the defence. Any real
doubt whether items material to the preparation of the defence have been duly
disclosed requires a clear resolution. The Impugned Decision has not done this. The
30 Id. at para. 48.

31 The Pre-Trial Judge referred to this Rule in another context. See Impugned Decision, paras 59-60.
32 Defence 18 March Submissions, paras. 21-22 (The relevance of the entirety of the telephone records in the
possession is clearly material to the preparation of the defence against the charges in the indictment. [. . .] The
Accused must be given meaningful access to this data to be able to investigate and examine those records for
the preparation of their respective defences. [emphasis added]).
170
Impugned Decision does not clarify whether disclosure of all CDRs necessary for
a specific time period relates to the Prosecutors obligation to provide CDRs on
which he has relied in some way, or to an obligation to provide CDRs material to the
preparation of the defence pursuant to Rule 110 (B). The same is true in regards to the
Pre-Trial Judges relevant time period. Indeed, with regard to the latter it appears
that the Pre-Trial Judge, when determining such time period, simply considered
those records that the Prosecutor explicitly or implicitly said he had analysed or on
which he would rely or not rely for trial.33 The Impugned Decision does not allow
us to resolve the above essential issues. Put simply, the Impugned Decision does not
make the legal standard applied clear.
17. In his response, the Prosecutor argues that [i]t is in the context of [the
Defences] Rule 110(B) request that the Pre-Trial Judges decision on the relevant
time period [ . . .] should be understood.34 The Prosecutor asserts that the Pre-Trial
Judge did not base his determination on Prosecution reliance because the
Prosecution does not intend to rely on all CDRs in its possession that it has
processed in SQL format from 1 January 2003 through October 2005 at trial.
Moreover, the Prosecution does not intend to use the SQL database as a tool
for the presentation of evidence at trial, as it is not suited for this purpose.35
18. The Prosecutor adds that the Pre-Trial Judge issued the Impugned Decision
knowing that the Prosecution had made CDRs available to the Defence in SQL
format that extended beyond the relevant time period, and had disclosed many CDRs
from 2003 [REDACTED] in their original format.36 Noting the Pre-Trial Judges
conclusion, in the section addressing the temporal scope of CDRs for attribution,
that the Prosecution continues to respond to Defence requests, made pursuant to
Rule 110(B), for CDRs for particular telephones for periods outside that available in
the inspection room where they are material to the preparation of the defence, the
Prosecutor further submits that
33 See e.g., Impugned Decision at paras 9, 43-44, 51-52.
34 Prosecution Response, para. 20 (emphasis added).
35 Id. at para. 21 (internal citation omitted).
36 Id. at para. 26.
171
[i]t follows that while the Pre-Trial Judge considered that requests for
particular phones may meet the materiality requirement under Rule 110(B), he
did not consider that the Defence had demonstrated that all CDRs related to
[REDACTED] for which the Prosecution possessed CDRs were material to the
preparation of the defence.37
19. Having reviewed carefully the Prosecutors context-based reading of the

Impugned Decision, we cannot agree with him. We are simply unable to determine
from the entirety of the Impugned Decision that the relevant time period set by
the Pre-Trial Judge was based on an examination of the materiality condition,
the controlling legal standard set out in Rule110 (B). Even if, as the Prosecutor
argues, the Pre-Trial Judge had Rule 110 (B) in mind, there is no explicit or implicit
explanation in the Impugned Decision for why certain requested CDRs falling
outside the relevant temporal period were not material to the preparation of the
defence. We consider that [n]either the Appeals Chamber nor the Parties can be
required to engage in speculation on the meaning of the [Pre-Trial Judges] findings
regarding which Rule was applied and how.38 From the Impugned Decision, we can
only conclude that the Pre-Trial Judge did not apply Rule 110 (B)s materiality
condition, and thus committed an error of law. We emphasize that we are not deciding
the ultimate correctness of the Pre-Trial Judges relevant time period, but rather
conclude that he did not apply the Rule in question.
20. Finding such error, based on the reasons above, we are unable to endorse the
Pre-Trial Judges order that
the Prosecution either [] provide to the Defence all CDRs in Raw Data
Format and SQL format for the period from 1 January 2003 until 1 October
2005, or [] clarify that it is not in possession of any CDRs falling within this
37 Id. at para. 25.

38 See ICTY, Prosecutor v. Krajisnik, IT-00-39-A, Judgement, 17 March 2009, para. 176; ICTY, Prosecutor v.
Oric, IT-03-68-A, Judgement, 3 July 2008, para. 56; see also STL, In the Matter of El Sayed, CH/AC/2012/02,
Decision on Partial Appeal by Mr El Sayed Against Pre-Trial Judges Decision of 8October2012, 23November
2012, para. 15 (noting that it is appropriate for initial determinations to be made by the actor best-placed in terms
of expertise).
172
time frame which have not been disclosed or made available for inspection in
these formats.39
We thus set aside that order and remand the Defences CDR request to the Pre-Trial
Judge for reconsideration and application of Rule 110(B)s materiality condition.
We are of the view that the Pre-Trial Judge is best placed to make this fact-intensive
decision at first instance. Conscious of our responsibility to set the correct legal
standard and considering that this issue was raised in the appeal and responded to
by the Prosecutor,40we offer the following discussion relating to Rule 110 (B)s
materiality condition to assist the Pre-Trial Judges determination of the request.
21. We recognize that before us is a matter of first impression. Neither Rule 110
(B) nor any other Rule offers guidance as to the interpretation of materiality in
this context. Therefore, because Rule 110 (B) mirrors or is substantially similar to
corresponding rules of the International Criminal Tribunal for Rwanda (ICTR),
International Criminal Tribunal for the former Yugoslavia (ICTY) and International
Criminal Court (ICC),41 we turn to the useful case-law of these tribunals. We find
the following approach to be persuasive which has consistently been taken by these
tribunals: (1) The defence must demonstrate prima facie that what is requested is
material to the preparation of the defence;42 and (2) the test for materiality under
Rule 110 (B) is whether the books, documents, photographs or tangible objects are
relevant to the preparation of the defence case.43
39 Impugned Decision, Disposition.
40 See Appeal, paras 20, 24-34; Prosecution Response, paras 28-39.
41 Rule 66(B) ICTR RPE; Rule 66(B) ICTY RPE; Rule 77 ICC RPE.
42 See ICTR, Prosecutor v. Karemera et al., ICTR-98-44-AR73.11, Decision on the Prosecutions Interlocutory
Appeal Concerning Disclosure Obligations, 23January2008 (First Karemera Decision), para.12; ICTR,
Karemera et al. v. The Prosecutor, ICTR-98-44-AR73.18, Decision on Joseph Nziroreras Appeal from Decision
on Alleged Rule 66 Violation, 17May2010, paras 12-13; ICTY, Prosecutor v. Karadi, IT-95-5/18-T, Decision
on Motion to Compel Inspection of Items Material to the Sarajevo Defence Case, 8February2012 (Karadi
Decision), paras6-9.
43 See ICTR, Prosecutor v. Bagosora et al., ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating
to Disclosure under Rule 66 (B) of the Tribunals Rules of Procedure and Evidence, 25 September 2006
(Bagosora Decision), para. 9; see also ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 OA 11, Judgment on
the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, 11July2008
(Lubanga Decision), para. 77; First Karemera Decision, para. 14; ICC, Prosecutor v. Banda and Jerbo, ICC02/05-03/09, Decision on the Defences Request for Disclosure of Documents in the Possession of the Office of
the Prosecutor, 23January2013 (Banda and Jerbo Decision), para.12 ; Karadi Decision, para.9.
173
22. The Appeals and Trial Chambers of the ICTY, ICTR and ICC have recognized
that preparation is a broad concept44 and that relevant items, in this context, need
not be directly linked to exonerating or incriminating evidence45 or related to
the Prosecutions case-in-chief.46 We acknowledge the ICTY and ICTR case-law
appropriately cited by counsel for Mr Oneissi,47 as well as other apposite decisions,
and agree that the concept of relevance, under Rule 110 (B), is not necessarily
confined by the temporal scope of an indictment, nor is it necessarily limited to
material relevant in countering the prosecution[s] evidence.48 Counsel for Mr
Oneissi cites apt examples of what might be materialitems that could inform
the defences decision whether to call a particular witness or assist in developing
cross-examination strategy.49 Nevertheless, Rule 110 (B) does not invite a fishing
expedition. Accordingly, we accept (with deletion of the word necessarily) a recent
ICC Trial Chamber clarification that Rule 77 [of the ICCs Rules of Procedure
and Evidence, corresponding to Rule 110 (B) of the Tribunals Rules,] does not
[. . .] provide for an unfettered right to inspection, triggered by any unsubstantiated
claim of relevance made by the defence.50 Rather, Rule 110 (B) demands a contextspecific application by the chambers of first-instance, which is uniquely situated to
determine whether the defence has sufficiently demonstrated materiality by making
the requisite showing that items sought are relevant to the preparation of the defence
case.51 We note that this approach is also supported by relevant domestic case-law.52
44 See e.g., Karadi Decision, para. 9; Lubanga Decision, paras 77-78; First Karemera Decision, para. 14;
Bagosora Decision, para. 9.
45 See Lubanga Decision, para. 77.
46 See Karadi Decision, para. 9; Bagosora Decision, paras 8-9.
47 Appeal, para 25, fns 28-31.
48 See id. at para. 25.
49 Ibid.
50 See Banda and Jerbo Decision, para. 15; see also ICTY, Prosecutor v. Karadi, IT-95-5/18-PT, Decision on
Accuseds Second Motion for Inspection and Disclosure: Immunity Issue, 17December2008, paras 23, 26.
51 See Bagosora Decision, para. 9.
52 For example, interpreting a rule of criminal procedure substantially similar to Rule 110 (B), the Eleventh Circuit
Court of Appeals held in United States v. Jordan, An item [. . .] need not be disclosed unless the defendant
demonstrates that it is material to the preparation of the defense. A general description of the item will not
suffice; neither will a conclusory argument that the requested item is material to the defense. [. . .] Rather, the
defendant must make a specific request for the item together with an explanation of how it will be helpful to
174
23. Accordingly, we remand the issue of materiality under Rule 110 (B) to the
Pre-Trial Judge who should reassess the Defence request in light of the approach
enunciated in the previous two paragraphs.
B.
Second ground of appeal access to CDRs in SQL format
24. After setting the relevant time period governing obligatory CDR disclosure,
the Pre-Trial Judge further concluded that, concerning CDRs falling within that
period, the Prosecution was not obliged to perform analyses or to create work
products which are not in its custody or control, possession or actually known to
it.53 Therefore, [w]here the Prosecution is not in possession of CDRs or analysis of
Raw Data in SQL format falling within the relevant time period, it cannot be required
to provide them.54 Consequently, the Pre-Trial Judge ordered the Prosecution to
provide all CDRs in its possession from the relevant time period that had not
already been disclosed.55
25. Upon reviewing the subsequent submissions from counsel for Mr Oneissi
and the Prosecutor, the Pre-Trial Judge certified the following issue for appeal: [W]
here the Prosecution is not in possession of CDRs in SQL format falling within the
relevant time period, [. . .] can it be required to provide them in SQL format?56
the defense. [. . .] [H]elpful means relevant to the preparation of the defense and not necessarily exculpatory.
United States, Eleventh Circuit Court of Appeals, United States v. Jordan, 316 F.3d 1215, 1250 (6 January
2003) (internal citations omitted). In a similar context, addressing what must be alleged in a defence request for
disclosure, the House of Lords stated in R. v. H that, respective cases should not be restrictively analysed. But
they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific
grounds on which the charges are resisted. The trial process is not well served if the defence are permitted
to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material
may turn up to make them good. United Kingdom, House of Lords, R. v. H, 2 A.C. 134 (5 February 2004)
(R. v. H 2004), para. 35. For other examples, see United States, Ninth Circuit Court of Appeals, United
States v. Mandel, 914 F.2d 1215, 1219 (14 September 1990); United Kingdom, Court of Appeal (Criminal
Division), R. v. Keane, 1 W.L.R. 746, 752 (14 March 1994); Canada, Supreme Court of Canada, R v. Taillefer,
2003 CarswellQue 2765 (12 December 2003), paras 79-70; Australia, High Court of Australia, Mallard v. R,
224 C.L.R. 125 (15 November 2005), para. 81; New Zealand, Human Rights Review Tribunal, Andrews v.
Commissioner, NZHRRT 6 (4 March 2013), paras 41. 49-51.
54 Ibid.
55 Id. at p. 27.
56 Certification Decision, Disposition.
175
26. Counsel for Mr Oneissi assert that the Pre-Trial Judge erred in law by finding
that where the Prosecution is not in possession of CDRs in SQL format it cannot
be required to provide them in SQL format.57 Counsels submission insists that,
pursuant to Rule 121 (A), when the Prosecution discloses material in electronic form,
it must also provide appropriate computer software for searching the material.58
SQL, it contends, is computer software under Rule 121 (A), the provision of which
does not involve performing analyses or creating any work product.59 In his response,
the Prosecutor submits that the Pre-Trial Judge did not abuse his discretion in
determining that the Prosecution cannot be ordered to make CDRs for the relevant
time period available to the Defence in SQL format where the Prosecution does not
possess them in SQL format.60 The Prosecutor further argues that [t]he Oneissi
Defence misinterprets [...] Rule 121.61 Importantly, the Prosecutor also notes that,
because it will have processed all bulk CDRs in its possession for the relevant time
period and provided them to the Defence in SQL format [by the end of September
2013], this issue is moot.62
27. As a preliminary matter, we substantially concur with the Pre-Trial Judges
assertionnot challenged by counsel for Mr Oneissi or the Prosecutorthat the
Prosecution generally is not obliged to perform analyses or to create work products
which are not in its custody or control, possession or actually known to it and that
the Prosecution cannot disclose or allow the inspection of materials that it does not
have.63 This certainly holds true for Rule 110 (B) and follows the consistent practice
of other international tribunals with similar provisions where Chambers have stressed
that the sought material must be in the custody or control of the Prosecutor.

58 Id. at para. 39.
59 Id. at paras 42-43.
60 Prosecution Response, p. 13.
61 Id. at para. 44.
62 Id. at para. 41.
63 Impugned Decision, para. 52 (without specifying to which Rule he was referring).
176
28. For example, the ICTR Trial Chamber in Bagilishema noted in this context
that the words known and possession used in other rules are synonymous with
custody or control. With respect to Rule 68 of the ICTRs Rules of Procedure and
Evidence (corresponding to the Tribunals Rule 113), it stated that the obligation
on the Prosecutor to disclose exculpatory evidence would be effective only when the
Prosecutor is in actual custody, possession, or has control of the said evidence. The
Prosecutor cannot disclose that which she does not have.64
29. So there can ordinarily be no obligation to create new material. In Halilovi, the
ICTY Trial Chamber refused a request for production of certain indices of disclosed
material, holding that the Rules do not require an index of the documents disclosed
or of relevant material made available to be provided to the Defence.65 In Stanii
and Simatovi, the Trial Chamber rejected a Defence request to receive, pursuant
to Rule 66 (B) of the ICTYs Rules of Procedure and Evidence (corresponding
to the Tribunals Rule 110 (B)), certain material in hard copy format, noting the
Prosecutions explanation that this would impose an unfair burden considering the
fact that it does not keep hard copies of Rule 66 material it discloses.66
30. In Popovi et al., the ICTY Trial Chamber also stated that material held
by a third party independent from the Prosecution, cannot be said to be within the
custody or control of the Prosecution on any reading. The fact that the Prosecution
has a good relationship with the third party is not relevant unless it can be established
that the Prosecution has some ability to direct and control the relevant person or
organization.67
64 ICTR, Prosecutor v. Bagilishema, ICTR-95-1A-T, Decision on the Request of the Defence for an Order for
Disclosure by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z, and AA, 8June2000, para. 7; see
also ICTR, Prosecutor v. Kajelijeli, ICTR-98-44A-T, Decision on Kajelijelis Urgent Motion and Certification
with Appendices in Support of Urgent Motion for Disclosure of Materials Pursuant to Rule 66(B) and Rule 68
of the Rules of Procedure and Evidence, 5July2001, paras 13-14.
65 ICTY, Prosecutor v. Halilovi, IT-01-48-T, Decision on Motion for Enforcement of Court Re Electronic
Disclosure Suite, 27July2005, p. 4.
66 ICTY, Prosecutor v. Stanii and Simatovi, IT-03-69-PT, Decision on Defence Motion to Receive Hard Copies
of Rule 66 Material, 11 March 2005, p. 3.
67 ICTY, Prosecutor v. Popovi et al., IT-05-88-T, Decision on Popovis Motion for Disclosure Pursuant to Rule
66 (B) and Request to File an Addendum to Professor Stojkovis Expert Report, 6 October 2008, para. 11.
177
31. Domestic jurisdictions with comparable requirements take similar approaches.

Interpreting the meaning of possession, custody, or control, United States federal
courts have rejected defence requests for production of non-existent material or
new analysis.68 The High Court of New Zealand has also rejected a request for the
disclosure of information theretofore not in recorded form.69 Similarly, Canadian
courts have found no obligation to disclose material the prosecution does not have or
to provide material in the specific format preferred by the defence.70
32. As pointed out above, the underlying legal principle here is not at issue. What
the Prosecutor does not have, he cannot generally be ordered to provide. But there are
further considerations to be weighed. For instance, the Pre-Trial Judge may consider
that fairness requires the Prosecutor to provide certain CDRs in SQL format.
33. Additionally, one means of conveying information to the Defence is via Rule
121 (A), which permits a party to fulfil some or all of its disclosure obligations in
electronic form, together with appropriate computer software to allow for searching
of the material.71 The question that then arises is whether data in SQL format is
in fact a new product or, as counsel for Mr Oneissi assert in the appeal, merely a
search tool. This distinction could determine the applicability of Rule 121 (A), which
on its face does not create new disclosure obligations and is merely a way for the
Prosecutor to discharge existing obligations efficiently,72 including the provision of
68 See e.g., United States, Fourth Circuit Court of Appeals, United States v Caro, 597 F.3d 608, 621 fn. 13
(17March2010); United States, First Circuit Court of Appeals, United States v. Amaya-Manzanares, 377 F.3d
39, 42-43 (27 July 2004); United States, Fifth Circuit Court of Appeals, United States v. Kahl, 583 F.2d 1351,
1354 (16 November 1978); United States, District Court of Arizona, United States v. Rigmaiden, 2012 WL
1150532, at *1 (5 April 2012); United States, District Court of Maine, United States v. Cameron, 672 F. Supp.2d
133, 137 (7 October 2009).
69 New Zealand, High Court of New Zealand, Drew v. Police, NZHC 1009 (14 May 2012), para. 24.
70 Canada, Alberta Court of Appeal, R. v. Diaz, 2010 CarswellAlta 2426 (14 December 2010), para. 41; Canada,
Saskatchewan Provincial Court, R. v Akinchets, 2011 SKPC 88 (20 June 2011), para. 21.
71 Emphasis added.
72 Cf. ICTR, Prosecutor v. Bizimungu et al., ICTR-99-50-T, Decision on the Motion of Bicamumpaka and Mugenzi
for Disclosure of Relevant Material, 1 December 2004, para. 9 (Rule 68 (B) [ICTR RPE, the equivalent to
Rule 121 (A) STL RPE] creates no new disclosure obligation on the Prosecution [. . .] The Rule merely permits
the Prosecution to use modern technology to discharge its disclosure obligations under Rule68(A) [ICTR
RPE, the equivalent to Rule 113 (A) STL RPE) and any other Rule such as Rule 66 [ICTR RPE, the equivalent
to Rule 110 STL RPE]).); see also ICTR, Prosecutor v. Karemera et al., ICTR-98-44-AR73.7, Decision
on Interlocutory Appeal Regarding the Role of the Prosecutors Electronic Disclosure Suite in Discharging
178
software already in its possession for searching the disclosed material. We recall that
the Defence did not raise the applicability of Rule 121 (A) in their CDR request. We
find, however, that the Pre-Trial Judge should nonetheless have explicitly considered
it.
34. The Pre-Trial Judge seems to have found that SQL data is a new work product,
hence his determination that where the Prosecutor is not in possession of CDRs or
analysis of Raw Data in SQL format falling within the relevant time period such
material cannot be provided to the Defence.73 On the other hand, counsel for Mr
Oneissi argue that SQL is a database for storage and searching of bulk data. They
thus argue that it is merely a type of computer software within the meaning of Rule
121 (A) and that the Prosecutor would not be performing any analyses or creating
any work product.74 The Prosecutor responds that
[t]he requirement in Rule 121 that a party provide appropriate computer
software to allow for searching of the material is to ensure that material
disclosed electronically is accessible and searchable. It does not require that
the Prosecution manipulate evidence received in a specific format (CDRs in
Raw Data format) and process it into another format (SQL database format)
to facilitate Defence investigations. Nor does Rule 121 require that the
Prosecution create a database to enable the Defence to manipulate or compare
disclosed evidence. It simply requires software that enables the evidence to
be read and searched. [. . .] The Oneissi Defence has not demonstrated that it
cannot access or search Raw Data CDRs. The CDRs in their Raw Data format
are text files that can be read and searched by suitable text reader software, such
as Microsoft UltraEdit, which has been provided to the Defence. Moreover,
CDRs are capable of being compared without conversion into SQL database
format by use of such readily available software as Excel.75
Disclosure Obligations, 30 June 2006, para. 12 (Rule 68 (B) does not establish a distinct disclosure obligation.
Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an
electronic format [...].).
73 See Impugned Decision, para. 52.
75 Prosecution Response, paras 45-46.
179
35. We first consider that, lacking the expertise and insight of a first-instance trier
of fact, it is not appropriate for us to conclusively decide this factual issuewhether
data in SQL format is a new producton appeal for the first time. Indeed, it fell
to the Pre-Trial Judge to make this decision. However, the Pre-Trial Judge did not
consider Rule 121 (A) and what potential impact this Rule might have on the matter
in contention before him.
36. We note in this respect that there are a number of ambiguities in the Impugned
Decision regarding the nature and status of the data in question. For instance, despite
pronouncing that the Prosecution is not obliged to perform analyses or to create work
products which are not in its custody or control and that [w]here the Prosecution
is not in possession of [] analysis of Raw Data in SQL format falling within the
relevant time period, it cannot be required to provide [such analysis],76 the Pre-Trial
Judge seemingly ordered the Prosecution to provide certain CDRs in SQL format
that did not already exist in SQL format.77 In fact, it is not entirely evident from the
Impugned Decision and the submissions of the parties which records exist in which
format. The Pre-Trial Judge has referred to a letter sent by the Prosecution to the
Defence on 15January 2013, which appears to include more information in this
respect.78 However, this letter is not on the record.
37. We find the Impugned Decision is too unclear as to the nature of CDRs in
SQL format, and that the Pre-Trial Judge is better situated than the Appeals Chamber
to determine this question at first instance and to consider the applicable Rule or
Rules. In these circumstances, we remand to the Pre-Trial Judge for determination
consistent with this decision the question of whether the Prosecutor must provide
CDRs in SQL format in the case where the CDRs to be disclosed are possessed by
the Prosecutor only in raw data format. The Pre-Trial Judge should clarify the nature
of data in SQL format relative to raw data and should then consider whether raw data
deemed material to the preparation of the defence pursuant to Rule 110 (B) must be
76 Impugned Decision at para. 52.

77 See id. at para. 55; Prosecution Response, paras 18, 41.
78 Impugned Decision, fn. 57.
180
made available in SQL format to the Defence under either Rule 110 (B) or Rule 121
(A) as appropriate computer software for searching.
CONCLUSION
38. In sum, on both the first and second issues, we allow the appeal to the extent
of setting aside the determinations of the Pre-Trial Judge. However, we reject the
remedy requested in the appeal, i.e., we do not find it appropriate in this case to
order disclosure ourselves. Instead, we remand the Defences specific request for
disclosure to the Pre-Trial Judge for reassessment consistent with this decision.
181
DISPOSITION
FOR THESE REASONS;
THE APPEALS CHAMBER, deciding unanimously;
ALLOWS the Appeal insofar as:
(1) It finds the Pre-Trial Judge committed an error of law by failing to apply or
misapplying Rule 110 (B);
(2) It finds the Pre-Trial Judge failed to make clear the nature of CDRs in SQL
format in applying Rule 110 (B) and to consider the applicability of Rule 121
(A) to the Defences CDR disclosure request;
DISMISSES the Appeal in all other aspects;
REMANDS the Defences specific request for disclosure at issue here to the PreTrial Judge for reassessment consistent with this decision.
Dated 2 October 2013
Leidschendam, the Netherlands.

Presiding
182
9.
Case name:
Before:
President
Title:
Decision on Defence Motion for Reconsideration

and Rescission of Order Composing the Trial
Chamber
Short title:
Composition of the Trial Chamber PRES
183
184
THE PRESIDENT
Case No.:
STL-11-01/PT/PRES
Before:
Judge David Baragwanath, President
Acting Registrar:
Mr Daryl Mundis
Date:
4 October 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION ON DEFENCE MOTION FOR RECONSIDERATION

AND RESCISSION OF ORDER COMPOSING THE TRIAL
CHAMBER
Prosecutor:
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun

Mr Franois Roux

Mr Antoine Korkmaz
Mr John Jones

Mr Peter Haynes

Mr Yasser Hassan
Mr David Young
Dr Gunal Mettraux
185
INTRODUCTION
1.
I am seized with a motion1 filed jointly by the Defence in the Ayyash et al.
case, requesting me to reconsider and rescind2 my order of 10 September 20133 in
which I re-composed the Trial Chamber.
BACKGROUND
2.
After the determination of the United Nations Secretary-General that the Trial
Chamber Judges should take office,4 President Antonio Cassese first convened the
Trial Chamber as of 20September 20115 pursuant to Article 8 (3) of the Statute of the
Special Tribunal for Lebanon (Statute and Tribunal, respectively).
3.
Article 8 (3) of the Statute states that [a]t the request of the presiding judge
of the Trial Chamber, the President of the Special Tribunal may, in the interest of
justice, assign the alternate judges to be present at each stage of the trial and to
replace a judge if that judge is unable to continue sitting.
4.
On the basis of this provision, President Cassese assigned three sitting Judges
and two alternate Judges to the Trial Chamber.6 The alternate JudgesJudge Walid
Akoum and Judge Janet Nosworthyhave thus been required to sit in all hearings
and deliberations of the Trial Chamber throughout the past two years.7
5.
Following the resignation of Judge Robert Roth, Presiding Judge of the Trial
Chamber, on 9 September 2013, the four remaining Judges wrote to me that day,
1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Motion for Reconsideration and Rescission of
the Presidents Order on Composition of the Trial Chamber of 10 September 2013, 23 September 2013
(Motion). All further references to filings and decisions relate to this case number unless otherwise stated.
2
Motion, para 13.
Order on Composition of the Trial Chamber, 10 September 2013 (Order).
See Article 17 (b) of the Annex to UN Security Council Resolution 1757 (2007).
5 STL, Prosecutor v. Ayyash et al., STL-11-01/I/PRES, Order on Composition of the Trial Chamber,
8September2011 (Order of 8 September 2011).
6
Order of 8 September 2011.
See Rule 27 of the Rules of Procedure and Evidence (Rules).
186
requesting that I take all necessary steps according to Article 8(3) of the Statute of
the Tribunal to ensure that the international Alternate Judge, Judge Janet Nosworthy,
is appointed as a Judge of the Trial Chamber, so as to allow the Trial Chamber to
continue functioning.8
6.
Article 10 (1) of the Statute makes the President responsible for [the
Tribunals] effective functioning and the good administration of justice.9 Article
16 (4) (c) provides for the accused persons right to be tried without undue delay.
Articles 18 (2) and 28(2) stress the need for a fair and expeditious trial. Article 21
instructs the Tribunal to take strict measures to prevent any action that may cause
unreasonable delay.
7.
Against this clear statutory mandate, I considered in my Order that the Trial
Chamber was seized with a number of matters under Rule 89 (E) of the Rules10 and
that the Pre-Trial Judge had set a tentative start date for trial in these proceedings of
13 January 2014.11 Ispecifically referred to the Trial Chamber being seized by some
Defence teams of motions regarding the form of the indictment, i.e., the essential
instrument pleading the charges against the accused.12 In particular, I noted the vital
importance of the Trial Chambers work proceeding as efficiently and expeditiously
as possible.13
8.
I also referred to the fact that the appointment of a new Judge, replacing Judge
Nosworthy as the international alternate Judge, falls to the United Nations SecretaryGeneral.14 This process is not in the hands of the Tribunal, and I was required by
Confidential letter from Judge Janet Nosworthy (Alternate Judge), Judge Walid Akoum (Alternate Judge), Judge
Micheline Braidy and Judge David Re to the President, 9 September 2013.
See also Rule 32 (B) of the Rules. These provisions are in line with similar provisions at various other
international criminal tribunals.
10 Order, p. 2.
11 Order, p. 3.
12 Order, p. 3.
13 Order, p. 3.
14 See Article 2 (3) (b) of the Annex to UN Security Council Resolution 1757 (2007) and Rule 28 of the Rules.
187
the Tribunals Statute and Rules to proceed expeditiously and ensure that the Trial
Chamber could deal with the matters before it in preparation for trial.
9.
In this context, I considered that Article 8 (3) of the Statute can only be read as
requiring the President, once the alternate Judges have been appointed to be present
at each stage of trial (as they were in this case), to then select one of them to replace
a judge if that judge is unable to continue sitting. There is no discretion for the
President to decide whether to effectuate the replacement.15 Consistent with Article 8
(3) of the Statute, Rule 26 (C) envisages the automatic replacement of a judge[i]
f a Judge is unable to continue sitting for a long period or permanently, the trial shall
continue with the alternate Judge replacing the Judge who is unable to continue
sitting. I thus assigned Judge Nosworthythe international alternate Judgeto
replace Judge Robert Roth (also an international Judge) effective immediately.
DISCUSSION
10. The Defence alleges that my Order assigning the international alternate Judge
to replace the Presiding Judge was ultra vires the Statute and the Rules and that I
should therefore reconsider and rescind it lest it results in an injustice to the four
Accused.16 The Prosecutor responds that this was not the case and that the Motion
should be dismissed.17
11. I first note that neither the Statute nor the Rules foresee that an order of the
President composing or re-composing a bench of the Tribunal is open to challenge
by the parties.18 Rule140of the Rules, as relied on by the Defence,19 merely refers
15 As noted in my Order, the French and Arabic versions of Article 8 (3) of the Statute make it clear that each
stage of trial may refer to any stage of the proceedings after the Trial Chamber Judges have been convened and
the Trial Chamber is seized of judicial matters. I also note the wording of the French version (remplacement de
tout juge).
16 Motion, para. 1.
17 Prosecution Response to Motion for Reconsideration and Rescission of the Presidents Order on Composition
of the Trial Chamber of 10 September 2013, 2 October 2013.
18 Under Rule 25 of the Rules, counsel may apply for the disqualification of a Judge according to the procedures
set out in that Rule. However, the present Motion does not challenge the qualification of any of the Judges to sit
on the Trial Chamber.
19 Motion, paras 2-3.
188
to the possibility to reconsider judicial decisions taken by one of the Tribunals three
Chambers. The President is not a Chamber under that Rule. Moreover, my order
to re-compose the Trial Chamber was not a judicial decision.
12. I am also not persuaded by the Defence argument that the Motion against
my Order can be based on an unwritten inherent authority to reconsider.20 Indeed,
the question is not whether such a power exists in the abstract, but whether the
administrative decisions that I take pursuant to my responsibilities under Article 10
of the Statute may be challenged by the parties.
13. Apart from the responsibility of coordinating the work of Chambers, Article 10
of the Statute and Rule 32 of the Rules task me with a number of other administrative
functions, such as issuing Practice Directions addressing detailed aspects of the
conduct of proceedings before the Tribunal, representing the Tribunal in international
relations, and submitting annual reports to the United Nations Secretary-General and
the Government of Lebanon. There is nothing in the Statute or the Rules allowing the
parties to remonstrate against my actions in the exercise of these functions.
14. Other international criminal tribunals where the President is required to
perform similar functions have consistently upheld the same principle. As noted
by the Appeals Chamber of the International Criminal Tribunal for Rwanda, [t]
he composition and re-composition of Trial Chambers by the President is a judicial
administrative function, pursuant to the Statute and Rules, formulated for the efficient
judicial administrative operation of the Tribunal.21 The Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia (ICTY) held that an
order determining the composition of a bench of the Appeals Chamber in a particular
20 See Motion, para. 4.
21 ICTR, Prosecutor v. Kanyabashi, ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal
on the Jurisdiction of Trial Chamber I, 3 June 1999 (Kanyabashi Decision), Joint and Separate Opinion of
Judge McDonald and Judge Vohrah, para. 19; see also id. at para. 46; Kanyabashi Decision, Joint Separate and
Concurring Opinion of Judge Wang Tieya and Judge Rafael Nieto-Navia, para. 19 (holding that the provisions of
the ICTR Statute and Rules relating to the assignment of Judges are all concerned with judicial administration);
but see ICC, Prosecutor v. Katanga et al., ICC-01-04-01/07, Decision concerning the Request of Mr Germain
Katanga of 14November2008 for re-composition of the bench of Trial Chamber II, 21 November 2008 (where
the Presidency, under a statutory framework different from that of this Tribunal, entertained a request for the
re-composition of the bench because of an alleged lack of necessary qualification of a Judge, but dismissed it on
the merits).
189
case is rendered by the President pursuant to this authority to coordinate the work of
the Chambers and is thus in essence an administrative matter.22
15. Indeed, when deciding a request similar to the present one, the acting President
of the ICTY stated that it is improper for counsel to address the composition of
any bench of the Chambers of the International Tribunal.23 In sum, the parties
may challenge matters of jurisdiction and other preliminary issues, as well as any
decision where such right is provided for in the Statute, the Rules or other related
instruments instrumentsbut the President has no authority to entertain a request
for reconsideration or rescission of administrative decisions of the type challenged
in this case. I therefore reject the Motion.
22 ICTY, Prosecutor v. Luki et al., IT-98-32/1-AR11bis.1, Decision on Motion to Disqualify President and VicePresident from Appointing Appeals Chamber and to Disqualify President Judge and Judge Meron from Sitting
on Appeals Chamber, 4 May 2007, p. 1.
23 ICTY, Prosecutor v. Delali et al., IT-96-21-A, Order on the Request to the President on the Composition of the
Bench of the Appeals Chamber, 12 February 1999.
190
DISPOSITION
FOR THESE REASONS;
I DISMISS the Motion.
Dated 4 October 2013.

President
191
192
10.
Case name:
The Prosecutor v. Merhi
Before:
Pre-Trial Judge
Title:
Public Redacted Version of the Decision

Relating to the Examination of the Indictment
of 5 June 2013 issued against Mr Hassan Habib
Merhi dated 31 July 2013
Short title:
Indictment of Mr Merhi PTJ
193
194
THE PRE-TRIAL JUDGE

Case No.:
STL-13-04/I/PTJ
Before:
Registrar:
Mr Daryl Mundis
Date:
11 October 2013
Original language:
French
Type of document:
Public
THE PROSECUTOR
v.
HASSAN HABIB MERHI
PUBLIC REDACTED VERSION OF THE DECISION RELATING

TO THE EXAMINATION OF THE INDICTMENT OF 5 JUNE 2013
ISSUED AGAINST MR HASSAN HABIB MERHI
DATED 31 JULY 2013
Mr Norman Farrell
195
I.
The subject of the decision
1.
By way of the present decision, the Pre-Trial Judge of the Special Tribunal for
Lebanon (the Tribunal) rules on the merits of the Indictment dated 5June 2013
(the Indictment of 5June 2013) issued by the Prosecutor against MrHassan Habib
Merhi (MrMerhi or the suspect) in the context of the case relating to the attack
carried out on 14February 2005 against MrHariri and other persons1 (theHariri
case), to which he made two corrigenda, on 5June and 25 July 2013. The PreTrial Judge also rules on the Prosecution motion to not disclose the Indictment of
5June 2013 to the public and to redact it so that it might be served on Mr Mehri in
accordance with Article 18 (2) of the Statute and Rules 61 (iv), 74 and 77 (A) of the
Rules of Procedure and Evidence (the Rules).
2.
The Pre-Trial Judge shall rule separately on the Prosecutions motion
requesting him, pursuant to Article18 (2) of the Statute and Rules14, 61 (iv),
68(J)(i), 76, 77(A), 79, 84 and 101(G) of the Rules, to issue: (i)upon confirmation
of the Indictment of 5June 2013, a national and international arrest warrant including
an order/request for the transfer of Mr Merhi to the Tribunal;and (ii)an order for
his detention in the Tribunals detention facility in the Kingdom of the Netherlands.
II.
3.
On 17 January 2011, pursuant to Rule 68 of the Rules, the Prosecutor forwarded
to the Pre-Trial Judge an Indictment against Mr Ayyash relating to the Hariri case.2
1 The term attack originates from Article 1 of the Statute. It carries no legal characterisation in the context of
the present decision.
2 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Submission of an Indictment for Confirmation
(Rule 68); and (1) Motion for an Arrest Warrant and Order for Transfer (Rule 79); (2) Urgent Motion for the
NonDisclosure of the Indictment (Rule 74); and (3) Urgent Motion for an Order for Interim Non-Disclosure of
the Identities of Witnesses Pending the Implementation of Appropriate Witness Protection Measures (Rules 77
and115), confidential and ex parte, 17 January 2011, (the Indictment of 17 January 2011). A public redacted
version of the combined submission (without the Annexes) was filed on 5 April 2012 pursuant to the Pre-Trial
Judges Order of 8 February 2012.
196
On 11 March,3 6May4 and 10 June 2011,5 the Prosecutor filed new versions of the
Indictment in which three new suspects, Mr Badreddine, Mr Oneissi and Mr Sabra,
were added.
4.
On 28June 2011, the Pre-Trial Judge issued a decision relating to
the examination of the Indictment of 10June 2011 issued by the Prosecutor
(the Indictment of 10June 2011) and authorised the indictment of MrAyyash,
MrBadreddine, MrOneissi and MrSabra (theDecision of 28June 2011).6 This
case, entitled The Prosecutor v.Ayyash et al., bears the reference STL-11-01.
5.
On 8February 2012, the Prosecution sought leave from the Pre-Trial Judge to
amend the Indictment of 10June 2011.7 Among the principal amendments made to
this Indictment, the Prosecution proposed the indictment of a fifth person, Mr Merhi.
6.
On 13March 2012, the Pre-Trial Judge dismissed the Prosecutions request
of 8February 2012, considering that it could not request, by way of amendments,
3 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Submission of an Amended Indictment for
Confirmation (Rules 68 and 71) and Motion for Arrest Warrants and Orders for Transfer (Rule 79), confidential
and ex parte, 11 March 2011. This Submission (without the Annexes) was made public pursuant to the Pre-Trial
Judges Order of 6 December 2011.
4 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Combined Motion of the Prosecutor (1)
Submission of an Indictment for Confirmation (Rule 68), (2) Motion for Continuation of Pre-Trial Judges
Order dated 19 January 2011 pursuant to Rule 96 (B), and (3) Motions in the event of confirmation of the
Indictment pursuant to Rules 74, 77 and 79, confidential and ex parte, 6 May 2011. Public redacted versions of
the Combined Motion and Annex A were filed on 16 February 2012 pursuant to the Pre-Trial Judges Order of
8 February 2012. Annex C was made public pursuant to the Pre-Trial Judges Order of 6 December 2011.
5 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Submission of an Amended Indictment for
Confirmation under Rule 71 and in Response to the Order of the Pre-Trial Judge dated 9 June 2011, confidential
and ex parte, 10 June 2011 (the Indictment of 10 June 2011). This document was made public (except for
Annex A) pursuant to the Pre-Trial Judges Order of 6 December 2011. Annex A was filed confidentially
pursuant to the Pre-Trial Judges Decision of 10 February 2012.
6 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Decision Relating to the Examination of the
Indictment of 10 June 2011 issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein
Hassan Oneissi & Mr Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version dated the same
day was filed on 16 August 2011. This decision confirms the counts contained in the Indictment of 10 June 2011
with the exception of the attempted homicide of 231 other persons which does not fall under the constituent
elements of a terrorist act but under those of intentional attempted homicide. See para. 53.
7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Request for Leave to Amend
the Indictment Pursuant to Rule 71(A) (ii), Submission of an Amended Indictment, and Related Prosecution
Applications, confidential and ex parte, 8 February 2012.
197
the indictment of an individual who was not initially accused in the Indictment of
10June 2011.8
7.
On 8 October 2012, the Prosecutor forwarded to the Pre-Trial Judge, for
confirmation, an Indictment, accompanied by supplementary evidentiary materials,
issued against Mr Merhi in the context of the Hariri case (the Indictment of 8
October 2012).9
8.
On 27 November 2012, the Pre-Trial Judge held a meeting with the Prosecutor,
pursuant to Rule 68 of the Rules, during which a number of issues relating to the
Indictment of 8 October 2012 were discussed.
9.
On 7 December 2012, the Prosecutor withdrew the Indictment of 8 October
10
2012.
10. On 5 June 2013, the Prosecutor signed an Indictment issued against Mr Merhi.
This case, entitled The Prosecutor v. Merhi, bears the reference STL-13-04.
11. On 24 June 2013, the Pre-Trial Judge was seized of the Prosecutions submission
for confirmation of the Indictment of 5 June 2013, as well as the accompanying
evidentiary materials (the Submission).11 The same day, the Pre-Trial Judge was
also seized of a corrigendum to the Indictment of 5 June 2013.12
8 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Decision relating to the Prosecution Request
of 8 February 2012 for Leave to File an Amended Indictment, confidential, 13 March 2012.
9 STL, The Prosecutor v. Merhi, Case No. STL-12-03/I/PTJ, Prosecutions Submission of an Indictment for
Confirmation and Order to Keep the Filing and its Annexes Confidential and Ex Parte; and Motion for an Arrest
Warrant, Order for Transfer and Detention; and Order for non-Disclosure, confidential and ex parte, 8 October
2012.
10 STL, The Prosecutor v. Merhi, Case No. STL-12-03/I/PTJ, Withdrawal of the Indictment against Hasan (sic)
Habib Merhi, confidential and ex parte, 7 December 2012.
11 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Prosecutions Submission of an Indictment for
Confirmation and Order to Keep this Filing and its Annexes Confidential and Ex Parte; and Motion for an Arrest
Warrant, Order for Transfer and Detention; and Order for Non-Disclosure, confidential and ex parte, 5 June
2013.
12 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Corrigendum to Annex A of Prosecutions
Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes Confidential and
Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for Non-Disclosure,
confidential and ex parte, 20 June 2013.
198
12. On 26 June 2013, the Prosecutor requested the withdrawal of two exhibits
from the list of evidentiary materials filed in support of the Indictment of 5 June
2013.13 On 25 July 2013, the Pre-Trial Judge authorised that withdrawal.14
13. On 26 June 2013, the Pre-Trial Judge sought explanations from the Prosecutor
regarding the Indictment of 5 June 2013.15
14. On 3 July 2013, by virtue of his authority under Rule 68 (E) and (F) of the
Rules, the Pre-Trial Judge held a meeting with the Prosecutor in order to obtain
a number of clarifications as well as information regarding the Indictment of 5
June 2013. On 16 July 2013, the Prosecutor completed his verbal response to those
questions with a written note.16
15. On 15 July 2013, the Prosecutor filed a corrigendum to Annex F to the
Submission by way of which he added eight files to the list of exhibits filed in support
of the Submission, which had been omitted in error.17
16. On 16 July 2013, the Pre-Trial Judge sought explanations from the Prosecutor
regarding a number of evidentiary supporting documents for the Indictment of 5
June 201318 to which the Prosecutor replied on 22 July 2013.19
13 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Prosecutors Request to Withdraw Two Internal
Memoranda from Supporting Materials, confidential and ex parte, 26 June 2013.
14 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Decision Authorising the Withdrawal of Two
Internal Memoranda from the Prosecution Exhibit List, confidential and ex parte, 25 July 2013.
15 Correspondence from the Pre-Trial Judge to the Prosecutor, Questions relatives lacte daccusation du 5 juin
2013 dans laffaire STL-13-04, confidential and ex parte, 26 June 2013.
16 Correspondence from the Prosecutor to the Pre-Trial Judge, reference IOP/O/L/NF/2013/0083, confidential, 16
July 2013.
17 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Corrigendum to Annex F to Prosecutions
Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes Confidential and
Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for Non-Disclosure,
confidential and ex parte, 15 July 2013 (the Corrigendum of 15 July 2013).
18 Correspondence from the Pre-Trial Judge to the Prosecutor, Questions to the Office of the Prosecutor related to
the documents filed in support of the Prosecutions Submission of an Indictment of 5 June 2013, confidential
and ex parte, 16 July 2013.
19 Correspondence from the Prosecutor to the Pre-Trial Judge, Response to Pre-Trial Judges Questions related
to documents filed in support of the Prosecutions Submission of an Indictment of 5 June 2013, reference
IOP/O/L/2013/NF/0086, 22 July 2013.
199
17. On 19 July 2013, at the request of the Prosecutor,20 the Pre-Trial Judge ordered
the Registry to file a certificate indicating that the evidentiary documents filed on 6,
11 and 20 May 2011 in the STL-11-01 case file are also evidentiary documents for
the STL-13-04 case file, without it being necessary for them to be filed again in that
file (the Supporting Documents for the Indictment of 10 June 2011).21 On 23 July
2013, the Pre-Trial Judge received that certificate.22
18. On 25 July 2013, the Prosecution filed a further corrigendum to the Indictment
of 5 June 2013.23
19. On 29 July 2013, the Prosecution sought leave to file 12 additional items of
evidence in support of the Indictment of 5 June 2013.24 Amongst these, the Prosecution
is of the opinion that three items replace those that it had filed previously.
III. The Submission
20. The Prosecution seeks confirmation of the Indictment of 5 June 2013 against
Mr Merhi in relation to the Hariri case. It also seeks the non-disclosure to the public
of that Indictment and the supporting documents until a subsequent order is issued
at its request, pursuant to Article 18 (2) of the Statute and Rules 61 (iv), 77 (A) and
96 (B) of the Rules.
21. The Prosecution requests the issuance of a national and international arrest
warrant against Mr Merhi, should the Indictment of 5 June 2013 be confirmed, and
20 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Prosecutions Request for a Certificate to be Filed in
Lieu of Filing the Supporting Materials from Case IT-01-11 (sic) Ayyash et al in the Present Case, confidential
and ex parte, 15 July 2013.
21 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Decision on Prosecutions Request for a Certificate
to be Filed in Lieu of Filing the Supporting Materials from Case IT-01-11 (sic) Ayyash et al in the Present Case,
confidential and ex parte, 19 July 2013.
22 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Certificate, confidential and ex parte, 22 July 2013.
23 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Second Corrigendum to the Merhi Indictment,
confidential and ex parte, 25 July 2013 (the Corrigendum of 25 July 2013).
24 STL, The Prosecutor v. Ayyash et al. (sic), Case No. STL-13-04/I/PTJ, Prosecution Application to Present
Additional Material in Support of the Indictment filed on 5 June 2013, confidential and ex parte, 29 July 2013
(the Application of 29 July 2013).
200
states its intention to seek the joinder of this case with the case of The Prosecutor
v. Ayyash et al..
IV.
Jurisdiction of the Pre-Trial Judge
22. In accordance with Article 18 of the Statute and Rule 68 of the Rules, the
Pre-Trial Judge reviews the Indictment forwarded to him by the Prosecutor for
confirmation, as necessary. Moreover, in accordance with Rule 74 of the Rules, at the
request of the Prosecutor, he may order, in the interests of justice and in exceptional
circumstances, the non-disclosure to the public of an indictment.
23. As a consequence, the Pre-Trial Judge has jurisdiction to rule on the
Submission.
V.
Applicable Law
24. The Pre-Trial Judge recalls that, in the context of the review of the Indictment
of 17 January 2011, he forwarded to the Appeals Chamber preliminary questions
relating to the crimes and modes of responsibility mentioned in that Indictment, as
well as on cumulative charging.25
25. On 16 February 2011,26 the Appeals Chamber responded to the aforementioned
questions by explaining the applicable law with respect to a terrorist act,27 to
25 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Order on Preliminary Questions addressed to
the Judges of the Appeals Chamber pursuant to Rule 68, paragraph (G) of the Rules of Procedure and Evidence,
21 January 2011.
26 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/AC/R176bis, Interlocutory Decision on the
Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011 (the
Interlocutory Decision of the Appeals Chamber).
27 Id., Disposition, paras 1-4.
201
intentional homicide,28 attempted homicide,29 modes of responsibility,30 cumulative

charging,31 as well as aggravating circumstances.32
26. Insofar as the crimes and the modes of responsibility decided upon by the
Prosecutor in the Indictment of 5 June 2013 are similar to those mentioned in the
initial Indictment in the case of The Prosecutor v. Ayyash et al., for the purposes of
the present decision, it should be recalled that the Appeals Chamber concluded:
i)
With respect to the terrorist act:

Article 314 of the Lebanese Criminal Code and Article 6 of the Law of
1958, interpreted in the light of international rules binding upon Lebanon,
provided such interpretation does not run counter to the principle of legality,
require the following elements for the crime of terrorism []:
a. the volitional commission of an act or the credible threat of an act;
b. through means that are likely to pose a public danger;33 and
c. with the special intent to cause a state of terror;
If the perpetrator of a terrorist act uses for example explosives intending to
kill a particular person but in the process kills or injures persons not directly
targeted, then that perpetrator may be liable for terrorism and intentional
homicide (or attempted homicide) if he had foreseen the possibility of
those additional deaths and injuries but nonetheless willingly took the risk

29 Ibid.
30 Id., Disposition, para. 13.
32 Id., paras 59, 145, 170 and 175.
33 The Appeals Chamber notes that whether certain means are liable to create a public danger
within the meaning of Article 314 should always be assessed on a case-by-case basis,
having regard to the non-exhaustive list in Article 314 as well as to the context and the
circumstances in which the conduct occurs. This way, Article 314 is more likely to be
interpreted in consonance with international obligations binding upon Lebanon (Id.,
Disposition, para. 3).
202
of their occurrence (dolus eventualis, namely advertent recklessness or

constructive intent) [].34
ii)
With regard to conspiracy:

Article 270 of the Lebanese Criminal Code and Article 7 of the Law of 11
January 1958 provide the following elements for the crime of conspiracy
[]:
a. two or more individuals;
b. who conclude or join an agreement of the type described in paragraph 196
[of the Interlocutory Decision of the Appeals Chamber];
c. aiming at committing crimes against State security (for purposes of this
Tribunal, the aim of the conspiracy must be a terrorist act);
d. with an agreement on the means to be used to commit the crime (which
for conspiracy to commit terrorism must satisfy the means element of
Article 314 [of the Lebanese Criminal Code]); and
e. criminal intent relating to the object of the conspiracy.35
iii)
With regard to intentional homicide:

Articles 547-549 of the Lebanese Criminal Code require the following
elements for the crime of intentional homicide []:
a. an act or culpable omission aimed at impairing the life of a person;
b. the result of the death of a person;
c. a causal connection between the act and the result of death;
d. knowledge of the circumstances of the offence (including that the act is
aimed at a living person and conducted through means that may cause
death); and
e. intent to cause death, whether direct or dolus eventualis.36

203
iv)
With regard to attempted homicide:

Articles 200-203 of the Lebanese Criminal Code require the following
elements for the crime of attempted homicide []:
a. a preliminary action aimed at committing the crime (beginning the
execution of the crime);
b. the subjective intent required to commit the crime; and
c. the absence of a voluntary abandonment of the offence before it is
committed.37
v)
With regard to modes of responsibility:

An evaluation is to be made between international criminal law and domestic
Lebanese law when the Tribunal applies modes of criminal responsibility.
Should no conflicts arise, Lebanese law should be applied. However, if
conflicts do arise, then, taking account of the circumstances of the case, the
legal regime that most favours the accused shall be applied [].38
vi)
With regard to cumulative charging:

Cumulative charging should only be allowed when separate elements of
the charged offences make those offences truly distinct and where the
rules envisaging each offence relate to substantially different values. The
Tribunal should prefer alternative charging where a conduct would not
permit multiple convictions. Modes of liability for the same offence should
always be charged in the alternative [].39
vii) With regard to aggravating circumstances:

Taking into account that the intended result in the crime of terrorism is to
spread terror, and not necessarily to cause death or injury, deaths caused by
terrorism become aggravating circumstances, pursuant to Article 6 of the
Law of 11 January 1958.40
37 Ibid.
40 Id., para. 59.
204
[]under Lebanese law the results of terrorist acts such as deaths,

destruction of property and other impacts designated in Article 6 of the
Law of 11 January 1958 constitute an aggravating circumstance of the
terrorist act (not a material element) []41.
This reasoning stems from the fact that premeditation, provided for in
Article 549 of the Lebanese Criminal Code, is not an element of the crime
but an aggravating circumstance of the sentence. Therefore it does not enter
in the evaluation of the crime but becomes relevant at a later stage, in the
determination of the sentence.42
To sum up, intentional homicide based on a direct intent leading to
the death of the targeted victim falls under Articles 547 and 188 of the
Lebanese Criminal Code. Intentional homicide based on dolus eventualis
leading to the death of unintended victims falls under Articles 547 and 189
of the Code. Premeditation as an aggravating circumstance is applicable to
both forms of the crime (with direct intent or dolus eventualis) and to all
perpetrators and accomplices who share the premeditation.43
27. The Pre-Trial Judge refers to these definitions of the applicable law for the
purposes of the review of the Indictment of 5 June 2013.
VI. Criteria for the review of the Indictment
28. In accordance with the terms of Article 18 of the Statute and Rule 68 of the
Rules, within the context in which these provisions are relevant, with their subject
and their aim, for the purposes of confirming an Indictment, the Pre-Trial Judge must
ensure that:
i)
the crimes referred to in the Indictment fall within the jurisdiction of the
Tribunal, as defined in Articles 1 to 3 of the Statute;
41 Id., para. 145.

42 Id., para. 170.
43 Id., para. 175.
205
ii)
with regard to examination of the documents included with the Indictment,

that Indictment relies first and foremost on evidence that is sufficient and
credible to bring proceedings against the suspect; and
iii)
the Indictment is sufficiently precise and reasoned to allow the suspect to

understand the allegations made against him.44
VII. Supporting Documents for the Indictment of 5 June 2013

29. In the Submission, the Prosecution relies on 2,524 files which make up the
evidentiary materials provided in support of the Indictment of 5 June 2013 (Annex F
to the Submission) as well as on the evidentiary materials provided in support of the
Indictment of 10 June 2011 in the case of The Prosecutor v. Ayyash et al.45
30. In the interests of rationality, the Prosecutor did not however file these last
evidentiary materials because the Pre-Trial Judge had already received them in
connection with the case of The Prosecutor v. Ayyash et al.. However, as indicated
previously,46 on 22 July 2013, a certificate was filed stating that the evidentiary
materials in support of the Indictment of 10 June 2011 were part of the STL-13-04
case file.47
31. The Pre-Trial Judge considers that, taking account of the wording of the
certificate, the evidentiary materials filed in support of the Indictment of 10 June
2011 are part of all the evidentiary materials in support of the Indictment of 5 June
2013 in accordance with Rule 68 (F) of the Rules and should be treated as such for
the requirements of the proceedings.

45 Submission, paras 9-11 and Corrigendum.
46 Supra, para. 17.
47 Cf. footnote 22 above.
206
VIII. Examination of the Submission

A.
Preliminary Observations
32. The Pre-Trial Judge hereby authorises the filing of the corrected versions of
the Indictment of 5 June 2013.48
33. The Pre-Trial Judge also finds that the Prosecution requests of 15 and 29
July 2013 to add and replace evidentiary materials are well-founded. Indeed, the
Prosecutor has stated the precise reasons why those materials are relevant to the
Indictment of 5 June 2013 and were not filed at an earlier date. Furthermore, he
stated that the three items49 replacing those that had been initially filed in support
of the Submission had been amended, in particular following observations made by
the Pre-Trial Judge during the review procedure of the Indictment of 5 June 2013.
Consequently, the Pre-Trial Judge authorises the filing of those items in accordance
with Rule 68 (1) of the Rules. The evidentiary materials filed in support of the
Indictment of 5 June 2013, as well as the evidentiary materials filed in support of the
Indictment of 10 June 2011 comprise, inter alia, reports from witnesses referred to as
experts by the Prosecution, investigators notes, lists of telephone communications,
witness interview reports, forensic reports, video recordings, photographs, maps and
death certificates.
34. Among the evidentiary materials filed in June 2013, some of which were
replaced on 29 July 2013, the Prosecution filed several reports prepared in particular
by various members of its Office in relation to specific subject matters,50 including:
48 Any reference to the Indictment of 5 June 2013 in this document relates to the Indictment which was the subject
of two corrigenda.
49 According to the Prosecution, they are the following reports: Indictment Report Attribution of Phone
numbers to Hassan Habib MERHI, Communications Evidence concerning the Assassination of Rafik Hariri:
Chronology Report and Co-location report number 3 written by [REDACTED] regarding the single person
use of mobile telephone numbers 3150071 and 375231 by suspect 3, Application of 29 July 2013, para. 4.
50 Contrary to what the Prosecution did in support of the Indictment of 10 June 2011 for which it filed a single
report relating to the telephone communications made between the persons implicated in the attack perpetrated
against Mr Hariri.
207
i)
the witness statement from [REDACTED] of 28 May 2013 which relates

to the profile of Mr Merhi;51
ii)
the report entitled Indictment Report - Attribution of Phone Numbers to

Hassan Habib Merhi from [REDACTED] of 29 July 2013, which relates
to the attribution of phones to the suspect;52
iii)
the report entitled Communications Evidence Concerning the

Assassination of Rafik Hariri: Chronology Report-Hassan Habib Merhi
from [REDACTED] of 29 July 2013 (the Chronology Report), which
relates to the participation of the suspect in the course of events leading to
the attack of 14 February 2005;53 and
iv)
the witness statement from [REDACTED] of 26 July 2013 relating to the

co-location of the Green 3150071 and Purple 3575231 phones.54
35. These reports are in turn based on a series of other documents which are
essential to the understanding of the case:
i)
four sets of investigators notes relating respectively to the attribution of

phones to Messrs Ayyash, Badreddine, Oneissi and Sabra;55
51 ERN 60280895-60280907.
52 ERN D0327911-D0328017.
53 ERN D0328018-D0328115.
54 ERN D0327905-D0327910. That statement relies on the following materials which were added on 29 July
2013: Maps provided to [REDACTED]on 12-12-2012 for use in [REDACTED] report entitled Single person
use of 2 mobiles-Suspect 3, ERN D0327447-D0327453; CST for Phone Number 3150071 provided to
[REDACTED] on 11-12-2012 for use in [REDACTED] report entitled Single person use of 2 mobiles-Suspect
3, ERN D0327454-D0327545; CST for Phone Number 3575231 provided to [REDACTED] on 11-12-2012 for
use in [REDACTED] report entitled Single person use of 2 mobiles-Suspect 3, ERN D0327546-D0327766;
Ayyash co-location report - Issue 01 containing report Demonstration of single person use of multiple
mobile phones using Cell Site Analysis, ERN D0216976-D0217258; and Report: Demonstration of single
person use of multiple mobile phones using Cell Site Analysis Suspect 2 written by [REDACTED], ERN
D0221699-D0221944.
55 Mr Ayyash: ERN D0205729-D0205934, 4 November 2012; Mr Badreddine: ERN D0187748-D0188040, 31
October 2012; Mr Oneissi: ERN 60275071-60275087, 24 October 2012: Mr Sabra: ERN 60274581-60274624,
19 October 2012.
208
ii)
a report entitled Communications Evidence Concerning the Assassination

of Rafik Hariri: Chronology Report from [REDACTED], of 13 November
2012, which relates to the participation of the four accused in the course of
the events leading to the attack of 14 February 2005;56
iii)
a report entitled Network Analysis Report: Red, Green, Blue and Yellow
Phones, analysing the phone networks prepared by [REDACTED], of 2
November 2012;57
iv)
the report [TRANSLATION] Presentation of the Cell Site Analysis Applied

to the GSM Networks prepared by [REDACTED], of 24 September
2012;58 and
v)
an investigators note entitled Acquisition of SIM Cards Report relating

to the acquisition of the phone cards presented in the Indictment of 5June
2013, prepared by [REDACTED], of 4 October 2012.59
36. The Pre-Trial Judge considers that these reports and documents put into
perspective the materials collected by the Prosecution in the context of its
investigations. They allow the existence of prima facie evidence in support of the
Indictment of 5June 2013 to be verified in a comprehensible and ordered fashion.
37. The Pre-Trial Judge finds that as the Indictment of 5June 2013 is based on
the same kind of circumstantial evidence as that which substantiates the Indictment
of 10June 2011, the same remarks apply that were made in the Decision of 28June
2011.60 Indeed, the role of the suspect was determined by the Prosecution essentially
on the basis of the analysis of the telephone communications, as well as of the mobile
phone usage. In that regard, the Pre-Trial Judge stated that:
56 ERN D0225397-D0225786.
57 ERN D0200399-D0200571.
58 ERN D0136125-D0136305.
59 ERN 60271149-60271206.
60 Decision of 28 June 2011, paras 37 and 38.
209
It is only by having a comprehensive view of this evidence that it is possible

to understand the attack of 14 February 2005, the events which preceded it
and those which followed, as well as the manner in which the suspects were
allegedly implicated in them. In light of his verifications, the Pre-Trial Judge
deems that this evidence is sufficiently credible and relevant to review the
Indictment initially. In order to lead to a conviction, it will nevertheless, if
applicable, have to be shown to be established beyond reasonable doubt by the
Trial Chamber.61
Finally, the Pre-Trial Judge emphasises that the alleged responsibility of the
suspects, as co-perpetrators or accomplices, has been examined by taking
account solely of the criteria established by the Appeals Chamber. As such, he
has deemed that he should not decide on their position in the hierarchy as
described by the Prosecutor in paragraph 5 of the Indictment.62
38. Lastly, the Pre-Trial Judge notes that the amendments to the Chronology Report
filed in this case are, in particular, no longer aimed at designating the unidentified
users of the phones of the different networks with the pseudonyms S5, S6
S7 etc. (subject number)63 and no longer attribute one or several phone numbers
belonging to different networks.64 The Pre-Trial Judge considers however that the
allegations relating to those unidentified users which appear in the Indictment of 5
June 2013 are based on other evidentiary materials and, in particular, those in support
of the Report relating to telephone communications made by persons implicated in
the attack against Mr Hariri, of 2 May 2011 by [REDACTED].65
61 Id., para. 37, footnote omitted.

62 Id., para. 38.
63 Indictment of 5 June 2013, para. 19.
64 Application of 29 July 2013, Annex C, p. 2.
65 The Report Relating to the Telephone Communications Between the Persons Implicated in the Attack against Mr
Hariri, of 2 May 2011 by [REDACTED] ERN 60218475-60218992 was filed in the case of The Prosecutor
v. Ayyash et al. and attached to the present case file by the certificate of 22 July 2013. Cf. footnote 22 above.
210
B.
The counts and the jurisdiction of the Tribunal
39. Pursuant to Articles 2 and 3 of the Statute and the relevant provisions of the
Lebanese Criminal Code66 and of the Lebanese Law of 11 January 1958 Increasing
the penalties for sedition, civil war and interfaith struggle (the Law of 11 January
1958),67 the Prosecution has accused Mr Merhi of:
i)
conspiracy aimed at committing a terrorist act, as a co-perpetrator (Count

1);
ii)
being an accomplice in the commission a terrorist act by means of an

explosive device, against Rafic Hariri (Count 2);
iii)
being an accomplice, of intentional homicide of Rafic Hariri, with

premeditation by using explosive materials (Count 3);
iv)
being an accomplice, of intentional homicide of 21 persons listed in Annex

A to the Indictment of 5 June 2013, with premeditation by using explosive
materials (Count 4);
v)
being an accomplice, of attempted intentional homicide of 226 persons

listed in Annex B to the Indictment of 5 June 2013, with premeditation by
using explosive materials (Count 5).
40. The facts mentioned in the Indictment of 5 June 2013 relate to the attack
carried out on 14 February 2005 against Mr Hariri and other persons. Pursuant to
Article 1 of the Statute, those facts fall within the jurisdiction of the Tribunal.68
41. In the case at hand, the Indictment of 5 June 2013 charges the suspect with the
crimes of conspiracy aimed at committing a terrorist act, of complicity in committing
a terrorist act, of complicity in intentional homicide and complicity in attempted
intentional homicide which are all referred to in Article 2 (a) of the Statute and in
Article 3 (1) (a) of the Statute, in Articles 188, 189, 200, 212, 213, 219 (4) and (5),
66 Arts 188, 189, 200, 212, 213, 219 (4) and (5), 270, 314, 547 and 549 (1) and (7) of the Lebanese Criminal Code.
67 Arts 6 and 7 of the Lebanese Law of 11 January 1958.
68 Decision of 28 June 2011, paras 32-33.
211
270, 314, 547, 549 (1) and (7) of the Lebanese Criminal Code and in Articles 6 and
7 of the Law of 11 January 1958.
42. As a consequence, the Pre-Trial Judge considers that the facts, the accusations
and the modes of responsibility referred to do indeed fall within the jurisdiction of
the Tribunal.
C.
Assessment of the Counts of the Indictment

1. Relevant facts
43. Among the factual evidence put forward by the Prosecution and which has
been established prima facie, the Pre-Trial Judge hereafter notes that which he
considers the most relevant for him to rule on the counts of indictment.69
a. The attack, the claim of responsibility, and the analysis of the
phone data
44. On 14 February 2005 at 12.55, Mr Hariri, former Prime Minister of Lebanon,
was killed following the detonation of a large quantity of explosives approximately
equivalent to 2,500 kg of TNT which had been hidden in a Mitsubishi Canter
van in the centre of Beirut in Lebanon. That suicide attack also caused the death of
21 other persons and injured at least 226 and led to the partial destruction of several
buildings.
45. Shortly after the attack, a video cassette accompanied by a letter claiming
responsibility was received in Beirut by the Al-Jazeera press agency. That video
cassette, broadcast the same day on television by that press agency, shows a person
unknown to the public, named Mr Abu Adass, claiming responsibility for the attack
on behalf of a fictitious alleged fundamentalist group called Victory and Jihad in
Greater Syria and announcing a number of acts of the same kind to come. The
69 These factual elements rely principally on the same evidence as those which led the Pre-Trial Judge to consider
as established prima facie evidence the factual elements contained in the Indictment of 10 June 2011 in the
Ayyash et al. case.
212
investigation however found that the perpetrator of the suicide attack was not Mr
Abu Adass, without however identifying who it was.
46. The report and analysis of the call data records of 14 February 2005 enabled the
Prosecution to discover six mobile phones which were communicating at key times
and locations in relation to the attack. These six phones, whose users were registered
under false names, were used exclusively to communicate with each other during the
entire period that they were activated. For ease of understanding, the Prosecution has
named the secret network formed by these phones the Red Network.
47. Subsequently, by using the technique of phone co-location,70 the Prosecution
identified other mobile phones which were also used by the users of the Red
Network phones. These phones were also registered under false names and some of
them connected exclusively, or to a large extent, with each other, allowing them to be
used clandestinely. The Prosecution has thus identified four other groups of phones
that it has referred to as Green, Blue, Yellow and Purple.
48. In order to determine the identity of the users of the phones of all of these
groups of phones, by continuing to make use of the technique of phone co-location,
the Prosecution has identified the personal mobile phones of some of these users.
These phones were used for daily business, to call persons whose identity could
be more easily revealed as they were not acting clandestinely. The Prosecution has
referred to these personal mobile phones as PMPs.
49. The identity of the users of these PMPs was researched [REDACTED].
Once a personal phone had been attributed to a particular person, the other phones
belonging to one or several group(s) that were in co-location with that phone could
be attributed to that same person.
50. According to its investigations, the Prosecution found, given all the evidence
and reasoning, that:
70 According to the exhibit entitled Indictment report, Attribution of phone numbers to Hassan Habib Merhi,
ERN D0321658 filed in support of the Indictment of 5 June 2013, [REDACTED].
213
i)
Mr Ayyash was the user of the personal mobile phones PMP 165, PMP
091, PMP 170, PMP 935 and consequently of the Red 741, Green
300, Blue 233 and Yellow 294 phones;
ii)
Mr Badreddine was the user of the personal mobile phones PMP 663,
PMP 354, PMP 944, PMP 195, PMP 683, PMP 486, PMP 593
(some of which were used consecutively) and consequently of the Green
023 phone;
iii)
Mr Merhi was the user of the Purple 231 and Green 071 phones;
iv)
Mr Oneissi was the user of the Purple 095 phone; and
v)
Mr Sabra was the user of the Purple 018 phone.

b. The identity and the role of the suspect
51.
According to its investigations, the Prosecution found that Mr Merhi:
i)
was a Lebanese citizen born on 12 December 1965 in Beirut (Lebanon),

having resided at the following address: Section 27, eastern faade, Real
Estate Number: 2501, Real Estate Zone: Bourj-El-Barajneh, District:
Baabda, Governorate: Mount Lebanon, South Beirut and whose present
address is unknown;
ii)
participated with others, including the accused Messrs Badreddine, Ayyash,

Oneissi and Sabra, in a conspiracy aimed at committing a terrorist act to
assassinate Mr Hariri; and
iii)
coordinated, with Mr Badreddine by way of the Green phones, the

preparation of the false claim of responsibility broadcast on 14 February
2005 after the attack against Mr Hariri; he thus coordinated, using his
Purple 231 phone, the activities of Messrs Oneissi and Sabra in order
to identify Mr Abu Adass, who falsely claimed, in a video recording,
responsibility for the attack as well as the broadcast of that recording by
Al-Jazeera.
214
c. Preparation of the false claim of responsibility

52. According to the Prosecutor, the users of the Purple phones are at first sight
implicated in the false claim of responsibility for the attack on the basis in particular
of the following:
i)
the Purple phones attributed to Messrs Oneissi and Sabra were active
for 10 days in December 2004 and January 2005 in the vicinity of Mr Abu
Adass home and the Arab University Mosque of Beirut which he apparently
frequented. Mr Oneissi, using the alias Mohammed, approached Mr Abu
Adass and then remained in contact with him before he disappeared on 16
January 2005. Mr Abu Adass then claimed responsibility for the attack in
a video recording that was broadcast on television by AlJazeera after the
attack;
ii)
by means of their Purple phones, Messrs Oneissi, Sabra and Merhi were
in contact from 2003 until early 2005: Messrs Oneissi and Sabra were in
contact 84 times between 12 January 2003 and 16 February 2005; Messrs
Sabra and Merhi were in contact 212 times between 7 January 2003 and 14
February 2005; and Messrs Merhi and Oneissi were in contact with each
other 195 times between 25 June 2003 and 26 January 2005;
iii)
more specifically, and according to the evidentiary materials, between 22

December 2004 and 14 February 2005, Mr Merhi and Messrs Oneissi and
Sabra were in telephone contact using their Purple phones 45 times;
iv)
the Green phones attributed to Messrs Merhi, Badreddine and Ayyash

were in contact exclusively with each other from 13 October 2004 to 14
February 2005;
v)
between 6 November 2004 at the latest and 7 February 2005, Mr Merhi,

using his Green 071 phone, was in contact with Mr Badreddine on his
Green 023 phone;
215
vi)
Mr Merhi, using his Green 071 phone, was in contact with Mr Ayyash on
his Green 300 phone and, using his Purple 231 phone, was in contact
with Mr Ayyashs personal mobile telephone PMP 091;
vii) more specifically, during the recruitment period of Mr Abu Adass, on 22

December 2004 and 7 January 2005, while Mr Oneissi was in the vicinity
of the mosque reportedly frequented by Mr Abu Adass, Messrs Merhi
and Oneissi were in telephone contact using their Purple phones. On 1
and 4 January 2005, at the time Mr Sabra was in the vicinity of the same
mosque, Messrs Merhi and Sabra were in telephone contact using their
Purple phones. During the same period, Messrs Oneissi and Sabra were
in telephone contact six times using their Purple phones, while one or
other of the two was in the vicinity of the mosque. On 23 and 27 December
2004, as well as on 2 January 2005, Messrs Merhi and Badreddine were in
telephone contact using their Green phones;
viii) between 12 and 16 January 2005, the day of the alleged disappearance
of Mr Abu Adass, Messrs Merhi and Badreddine were in daily telephone
contact using their Green phones, as is established prima facie by the
evidentiary materials. Between 14 and 15 January 2005, Messrs Merhi and
Sabra were in telephone contact three times using their Purple phones
and Messrs Oneissi and Sabra were in telephone contact twice using their
Purple phones. On 16 January 2005, the day of the supposed meeting
between Mr Oneissi using the alias Mohammed and Mr Abu Adass,
Messrs Merhi and Badreddine were in telephone contact five times using
their Green phones. On 17 January 2005, [REDACTED], Mr Oneissi,
[REDACTED], contacted Mr Merhi using his Purple phone; and
ix)
Mr Hariri departed Lebanon on 4 February 2005 and returned there on 7

February 2005. Between 5 and 6 February 2005, Mr Merhi, on the Purple
231 phone, was in telephone contact five times with Mr Ayyash on his
PMP 091. On the morning of 7 February 2005, the day of Mr Hariris
supposed return, Messrs Merhi and Ayyash were in contact with Mr
Badreddine on their Green phones.
216
d. The broadcast of the false claim of responsibility

53. With regard to the broadcast of the false claim of responsibility by means
of the delivery of a video cassette, the factors put forward by the Prosecutor are as
follows:
i)
on 14 February 2005, before, during and after the four calls Mr Oneissi or
Mr Sabra made to Al-Jazeera and Reuters using the same telephone card
which was used in several public payphones in Beirut, Mr Sabra, using the
Purple 018 phone, contacted Mr Merhi seven times using the Purple
231 phone;
ii)
on 14 February 2005, Mr Oneissi was in the vicinity of the tree where the
video cassette containing the claim of responsibility was placed in order to
be collected [REDACTED]; and
iii)
on 15 February 2005, the Purple 231 phone attributed to Mr Merhi ceased

being used and on 16 February 2005, the Purple 095 phone attributed to
Mr Oneissi and the Purple 018 phone attributed to Mr Sabra likewise
definitively ceased being used.
2. The Counts
54. It is more logical for the Pre-Trial Judge firstly to examine Counts 2, 3 4 and
5 and conclude with Count 1 regarding conspiracy aimed at committing a terrorist
act. Indeed, in order for it to be examined, a comprehensive view of all the factors
mentioned in the other counts, in particular those concerning a terrorist act, is
necessary.
a. Count 2: being an accomplice to commit a terrorist act
55. The Pre-Trial Judge notes that Count 2 contains the constituent elements of the
offence of a terrorist act as defined by the Appeals Chamber, namely: the volitional
217
commission of an act through means that are likely to pose a public danger, with the
special intent to cause a state of terror.71
56. With regard to the responsibility of the suspect in a terrorist act, the PreTrial Judge notes that, according to Count 2, Mr Merhi bears individual criminal
responsibility as an accomplice to committing a terrorist act. According to the
Appeals Chamber,72 an accomplice is anyone who must have acted in a form specified
by Article 219 of the Lebanese Criminal Code73 and be motivated by the knowledge
of the intent of the primary perpetrators to commit a crime and the intention to assist
these perpetrators in carrying out the crime.
57. On examining the material accompanying the Indictment of 5 June 2013 and,
in particular, the relevant facts referred to in section VIII (C) of this decision, the
Pre-Trial Judge finds that a sufficient prima facie case exists, in that:74
i)
on 14 February 2005, at 12.55, an extremely powerful explosive device,

concealed in a Mitsubishi Canter van, exploded on a public street, on rue
Minet el Hosn in Beirut (Lebanon) as the convoy escorting Mr Hariri, the
former Prime Minister and a prominent political figure in Lebanon, was
passing;
ii)
the attack resulted in the death of Mr Hariri and 21 other persons and
injured 226 persons and damaged several nearby buildings;
iii)
due to its scale, this act created a state of terror which was aggravated by
a public claim of responsibility and a threat that further similar attacks
would follow. This claim of responsibility was also intended to create a
false trail so as to shield the perpetrators from justice;
71 Interlocutory Decision of the Appeals Chamber, Disposition, para. 3.

72 Id., paras 218-228.
73 As amended by Article 11 of Legislative Decree No. 112 of 16 September 1983.
74 These presumptions shall, where appropriate, be confirmed and the evidence declared susbstantiated by the Trial
Chamber.
218
iv)
Messrs Ayyash and Badreddine participated, as co-perpetrators, in the

attack: they were implicated in the operations to locate and monitor the
whereabouts of Mr Hariri and they were also in contact with each other
during the location and purchase of the Mitsubishi Canter van in Tripoli
which was used to conceal the explosive device and carry out the attack;
v)
Messrs Oneissi and Sabra participated in the recruitment of Mr Abu Adass,

who claimed responsibility for the terrorist act in a video recording which
was broadcast shortly afterwards;
vi)
Mr Merhi was in direct telephone contact with Mr Badreddine using the

Green phones at various times in the months prior to the attack and
during the recruitment of Mr Abu Adass by Messrs Oneissi and Sabra.
Mr Abu Adass claimed responsibility for that act in a video recording
broadcast shortly after the attack and was also in contact with Mr Ayyash
before the attack;
vii) Mr Merhi oversaw the transmission by Messrs Oneissi and Sabra of the
video cassette to the Al-Jazeera press agency on 14 February 2005, after
the attack;
viii) Mr Merhi is therefore implicated in the claim of responsibility for the
attack of 14 February 2005, the purpose of which was to create a false trail
in order to shield the perpetrators from justice and aggravate the state of
terror;
ix)
in preparing the claim of responsibility for the attack before its execution,
as mentioned in Count 2, Mr Merhi was aware of the intention of Messrs
Ayyash and Badreddine to commit this terrorist act and he was personally
willing to contribute to that act by way of these preparatory acts; and
x)
by so doing, Mr Merhi lent his support to the preparation and commission

of the terrorist act mentioned in Count 2.
219
58. Therefore, in light of these presumptions, there is reason to prosecute Mr

Mehri as being an accomplice to commit a terrorist act. Consequently, Count 2
should be confirmed against Mr Merhi.
59. The Pre-Trial Judge notes that although the evidentiary materials filed in
support of the Indictment of 5 June 2013 can be used to justify prima facie the
mode of responsibility chosen by the Prosecutor against Mr Merhi, namely being an
accomplice to commit a terrorist act, they also allow a further form of participation
in the terrorist act to be chosen, that of co-perpetrator, comparable to Messrs
Badreddine and Ayyash. Indeed, the Prosecutor submits that Mr Merhi participated
in establishing a conspiracy in order to commit a terrorist act at the same time as
Messrs Badreddine and Ayyash, that the aim of that conspiracy was to commit a
terrorist act by detonating a large quantity of explosives and that Mr Merhi was in
contact with Messrs Badreddine and Ayyash prior to the preparation of the false
claim of responsibility as part of the preparatory acts. Consequently, the distinction
between the form of responsibility of Mr Merhi and that of Messrs Badreddine and
Ayyash is not apparent. However, as the responsibility for prosecutions lies with the
Prosecutor, the Pre-Trial Judge considers that it is not for him to oblige the Prosecutor
to reclassify the facts, insofar as the position adopted by the Prosecutor is not likely
to cause prejudice to the suspect.75
b. Count 3: being an accomplice to the intentional homicide with
premeditation of Rafic Hariri
60. The Pre-Trial Judge notes that Count 3 of the Indictment of 5 June 2013
does not contain the constituent elements of intentional homicide as defined by the
Appeals Chamber. However, the Pre-Trial Judge considers that the concise statement
of the facts in the Indictment of 5 June 2013 contains facts on which the Prosecutor
founded the legal classification of intentional homicide, namely the attack of 14
75 Pursuant to Rule 68 (I) (iii) and (iv) of the Rules, at the end of the examination of the Indictment submitted
by the Prosecutor, the Pre-Trial Judge may confirm or dismiss one or more counts. Consequently, at the stage
of the confirmation of the counts, the Pre-Trial Judge does not have the authority, as afforded to the judges of
the International Criminal Court by way of Regulation 55 of the Regulations of the Court, to amend the legal
characterisation of the facts.
220
February 2005 which resulted in the death of Mr Hariri, committed with intent and
with means likely to cause death.76 The Pre-Trial Judge considers that this statement
of facts and their legal characterisation, together with the reference to the relevant
provisions of the Statute and Lebanese law mentioned in Count 3, ensure that Mr
Merhi is sufficiently informed of the charges laid against him.
61. With regard to the responsibility of the suspect in the commission of intentional
homicide, the Pre-Trial Judge notes that the observations made in the context of the
review of Count 2 may also be applied to the review of Count 3.
62. On examining the material accompanying the Indictment of 5 June 2013 and,
in particular, the relevant facts referred to in section VIII (C), the Pre-Trial Judge
finds that a sufficient prima facie case exists, in that:
i.
for the same reasons as those mentioned in relation to Count 2, Mr Merhi lent his support to the preparation and commission of the intentional
homicide of Mr Hariri mentioned in Count 3; and
ii.
Mr Merhi was, at the very least, aware of the intention of Messrs Ayyash
and Badreddine to commit the intentional homicide of Mr Hariri and
was personally willing to contribute to that act by way of these preparatory acts.77

Mehri as an accomplice to the intentional homicide of Mr Hariri. Consequently,
Count 3 should be confirmed against Mr Merhi.
76 Indictment of 5 June 2013, para. 5.

77 Without prejudice to the observations relating to the standing of the co-perpetrator of a terrorist act as set out in
para. 57.
221
c. Count 4: being an accomplice to the intentional homicide with

premeditation of 21 persons
64. The Pre-Trial Judge notes that the observations made in the context of the
review of Count 3 relating to the constituent elements of intentional homicide may
be applied mutatis mutandis to the review of Count 4.
65. With regard to the responsibility of the suspect in the intentional homicide,
the Pre-Trial Judge notes that the observations made in the context of the review of
Count 2 may also be applied to the review of Count 4.
66. On examining the materials accompanying the Indictment of 5 June 2013 and,
i)
for the same reasons as those mentioned in relation to Count 2, Mr Merhi

lent his support to the preparation and commission of the intentional
homicide of 21 persons in addition to Mr Hariri as mentioned in Count 4;
and
ii)
Mr Merhi was aware of the intention of Messrs Ayyash and Badreddine to

commit the intentional homicide of 21 other persons and was personally
willing to contribute to that act by way of these preparatory acts.

Mehri as an accomplice to the intentional homicide of 21 persons listed in Annex A
to the Indictment of 5 June 2013. Consequently, Count 4 should be confirmed against
Mr Merhi.
d. Count 5: being an accomplice to the attempted intentional
homicide with premeditation of 226 persons
68. The Pre-Trial Judge notes that the observations made in the context of the
review of Count 3 relating to the constituent elements of intentional homicide may
be applied mutatis mutandis to the review of Count 5.
222
69. With regard to the responsibility of the suspect in the intentional homicide,
the Pre-Trial Judge notes that the observations made in the context of the review of
Count 2 may also be applied to the review of Count 5.
70. On examining the materials accompanying the Indictment of 5 June 2013 and,
i)
for the same reasons as those mentioned in relation to Count 2, Mr Merhi

lent his support to the preparation and commission of the attempted
intentional homicide of 226 persons mentioned in Count 5; and
ii)
Mr Merhi was aware of the intention of Messrs Ayyash and Badreddine to

commit the intentional homicide of 226 other persons and was personally
willing to contribute to that act by way of those preparatory acts.

Mehri as an accomplice to the attempted intentional homicide of 226 persons listed
in Annex B to the Indictment of 5 June 2013. Consequently, Count 5 should be
confirmed against Mr Merhi.
e. Count 1: conspiracy aimed at committing a terrorist act, as a
co-perpetrator
72. The Pre-Trial Judge notes that Count 1 contains the constituent elements of
the offence of conspiracy as defined by the Appeals Chamber, namely: the presence
of two or more individuals; the conclusion or joining an agreement for the purpose
of committing a crime against State security according to the means required by law
to commit this crime; and criminal intent relating to the object of the conspiracy.78
73. With regard to the responsibility of the suspect in the conspiracy, the Pre-Trial
Judge notes that, according to Count 1, he is a co-perpetrator with shared intent.79
According to the Appeals Chamber, a co-perpetrator must contribute to bringing into
78 Interlocutory Decision of the Appeals Chamber, Disposition, para. 7.
79 Indictment of 5 June 2013, para. 54 (c).
223
being the objective and subjective constituent elements of the crime of conspiracy
aimed at committing a terrorist act.80
74. On examining the materials accompanying the Indictment of 5 June 2013 and
from the review of the aforementioned Counts 2 to 5, the Pre-Trial Judge finds that a
sufficient prima facie case exists, in that:
i)
Messrs Merhi, Ayyash, Badreddine, Oneissi and Sabra, together with others
unidentified, were in contact, directly or indirectly, for a significant period
of time prior to the attack of 14 February 2005, in particular at key moments
linked to this act, its preparation and the way in which responsibility for the
attack was claimed;
ii)
due to its size, the intended victim and the resulting state of terror, this
terrorist act was an attack on Lebanese State security; and
iii)
the actions of Mr Merhi and the four accused and their direct contact
with each other suggest that they acted within the framework of a prior
agreement aimed at committing the terrorist act of 14 February 2005.

Mehri as being a co-perpetrator of conspiracy aimed at committing a terrorist act.
Consequently, Count 1 should be confirmed against Mr Merhi.
76. The Pre-Trial Judge notes that although the materials filed in support of
the Indictment of 5 June 2013 can be used to justify prima facie the date of the
conspiracy aimed at committing a terrorist act decided by the Prosecutor, namely 11
November 2004, they would likewise permit an earlier date to be chosen. Indeed,
according to those materials, the surveillance of Mr Hariri took place over a period
of 10 days between 20 October and 10 November 2004. Furthermore, telephone
communications between Messrs Merhi, Badreddine, Ayyash, Sabra and Oneissi
took place as of 1 September 2004. However, as the responsibility for prosecutions
lies with the Prosecutor, the Pre-Trial Judge considers that it is not for him to oblige
the Prosecutor to reclassify the facts by changing the date he has chosen to an earlier
80 Interlocutory Decision of the Appeals Chamber, paras 213-217.
224
one, insofar as the position adopted by the Prosecutor is not likely to cause prejudice
to the suspect.
f. Cumulative charging
77. In accordance with the Interlocutory Decision of the Appeals Chamber, there
is no objection to the Prosecutor charging concurrently the crimes of conspiracy
aimed at committing a terrorist act, being an accomplice in committing a terrorist
act, intentional homicide and attempted intentional homicide even though, with the
exception of conspiracy, these crimes are all based on the same facts.81
3. Requirements of grounds and precision and amendments to be
made to the Indictment of 5 June 2013
78. The Pre-Trial Judge finds that the Indictment of 5 June 2013 meets the
requirements with regard to the grounds and precision required under international
jurisprudence, the Statute and the Rules. Subject to a decision rendered on
preliminary motions,82 the Indictment of 5 June 2013 is sufficiently clear and accurate
so as to ensure that the suspect understands the allegations made against him and,
consequently, allow him in particular to prepare his defence and, if appropriate,
challenge the legality of his detention.
IX. Requirements of confidentiality
79. The Prosecutor puts forward several reasons in support of his request for nondisclosure that are principally linked to the need for all possible steps to be taken
to ensure the arrest of the suspect, to ensure the smooth running of the ongoing
investigations and ensure the protection of witnesses.
80. In accordance with Rule 74 of the Rules, there are grounds for the Indictment
of 5 June 2013 and the accompanying material to remain confidential in order to
ensure the integrity of the judicial procedure and, in particular ensure that the search
81 Decision of 28 June 2011, paras 92-93.
82 Rule 90 of the Rules.
225
and, where appropriate, apprehension [of Mr Merhi] is carried out effectively83.

The confidentiality should likewise assist in ensuring the protection of the
witnesses concerned by not revealing their identity and in safeguarding the ongoing
investigations by not disclosing the techniques that have been employed and the
information that has been gathered.84 The Indictment of 5 June 2013 may however
be disclosed to the competent authorities of the Lebanese Republic and to those of
other States to whom the Prosecutor might transmit the Indictment of 5 June 2013
pursuant to Rule 74 of the Rules.
81. The Prosecutors request to redact certain information in the Indictment of 5
June 2103 for the purpose of serving it on Mr Mehri upon his possible apprehension
is also well-founded given that the information could endanger potential witnesses.
As a consequence, a redacted version of the Indictment of 5 June 2013 shall be filed
by the Prosecutor as soon as possible so that it might be served on Mr Mehri.
82. For the same reasons, the Pre-Trial Judge considers proprio motu that this
decision should remain confidential until further notice and until such time that a
redacted version of it has been filed for the purpose of serving it on Mr Mehri upon
his possible apprehension.
83. This decision and the non-redacted Indictment of 5 June 2013 shall be served
on Mr Mehri upon his possible transfer to the Headquarters of the Tribunal.
84. All the materials submitted in support of the Indictment of 5 June 2013 shall
be disclosed to Mr Merhi in accordance with the relevant provisions of the Rules.

84 Ibid.
226
85. DISPOSITION
FOR THESE REASONS,
Pursuant to Article 18 (1) of the Statute and Rules 68 and 74 of the Rules,
AUTHORISES the filing of the corrigenda of 24 June and 25 July 2013 to the
Indictment of 5 June 2013;
AUTHORISES the filing of the materials mentioned in the Corrigendum of 15 July
2013 and the materials mentioned in the Application of 29 July 2013;
CONFIRMS against Mr Merhi the counts mentioned in the Indictment of 5 June
2013 of:
1.
conspiracy aimed at committing a terrorist act, as a co-perpetrator (Count 1);
2.
as an accomplice:
i)
committing a terrorist act (Count 2);
ii)
intentional homicide with premeditation (of Mr Hariri) (Count 3);
iii)
intentional homicide with premeditation (of 21 persons listed in Annex A

to the Indictment of 5 June 2013) (Count 4); and
iv)
attempted intentional homicide with premeditation (of 226 persons listed

in Annex B to the Indictment of 5 June 2013) (Count 5);
ORDERS that all the evidentiary material submitted in support of the Indictment of
5 June 2013 be disclosed to Mr Merhi in accordance with the relevant provisions of
the Rules;
ORDERS that this decision, together with the Indictment of 5 June 2013, remain
confidential until the Indictment has effectively been served on Mr Mehri or until
further notice, with the exception of the Indictment of 5 June 2013 which may be
disclosed to the competent authorities of the Lebanese Republic and to those of other
227
States to whom the Prosecutor might transmit the Indictment pursuant to Rule 74 of
the Rules;
ORDERS the Prosecutor to file a redacted version of the Indictment of 5 June 2013
so that it might be served on Mr Mehri upon his possible apprehension, by 6 August
2013 at the latest; and
STATES that a redacted version of this decision shall be filed so that it might be
served on Mr Mehri at the time of his possible apprehension; and
STATES that this decision and the non-redacted Indictment of 5 June 2013 shall be
served on Mr Mehri at the time of his possible transfer to the Headquarters of the
Tribunal.
Done in English, Arabic and French, the French text being authoritative.
Leidschendam, 11 October 2013
Daniel Fransen
Pre-Trial Judge
228
11.
Case name:
Before:
Appeals Chamber
Title:
Decision on Application by Counsel for Messrs

Badreddine and Oneissi against Presidents
Order on Composition of the Trial Chamber of
10 September 2013
Short title:
Challenging Decision of the President AC
229
230
THE APPEALS CHAMBER

Case No.:
STL-11-01/PT/AC
Before:
Judge Ralph Riachy, Presiding

Registrar:
Mr Daryl Mundis
Date:
25 October 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION ON APPLICATION BY COUNSEL FOR MESSRS

BADREDDINE AND ONEISSI AGAINST PRESIDENTS ORDER ON
COMPOSITION OF THE TRIAL CHAMBER OF 10 SEPTEMBER 2013
Prosecutor:
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun

Mr Franois Roux

Mr Antoine Korkmaz
Mr John Jones

Mr Peter Haynes

Mr Yasser Hassan
Mr David Young
Mr Gunal Mettraux
231
INTRODUCTION
1.
The Appeals Chamber is seized with an application filed jointly by the
Defence teams for Messrs Badreddine and Oneissi (Defence)1 against an order
of the President (Presidents Order) in which the President re-composed the Trial
Chamber following the resignation of its Presiding Judge.2
BACKGROUND
2.
After the determination of the United Nations Secretary-General that the
Judges of the Trial Chamber should take office,3 the then President Antonio Cassese
first convened the Trial Chamber as of 20September 2011, assigning two alternate
Judges (in addition to the three sitting Judges) pursuant to Article 8 (3) of the Statute
of the Special Tribunal for Lebanon (Statute and Tribunal, respectively).4
3.
On 9 September 2013, Judge Robert Roth, Presiding Judge of the Trial
Chamber, resigned. The four remaining Judges requested the President, Judge David
Baragwanath, to take all necessary steps according to Article 8(3) of the Statute of
the Tribunal to ensure that the international alternate Judge, Judge Janet Nosworthy,
is appointed as a Judge of the Trial Chamber, so as to allow the Trial Chamber to
continue functioning.5
4.
On 10 September 2013, the President issued the Order and appointed Judge
Nosworthyhitherto international alternate Judgeas sitting Judge on the Trial
Chambers bench.
1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Application Alleging Abuse of Authority against the Order
of the President of the Tribunal of 10 September 2013, 21 October 2013 (Application).
2 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Order on Composition of the Trial Chamber,
10September 2013 (Order).
3
See Article 17 (b) of the Annex to UN Security Council resolution 1757 (2007).
4 STL, Prosecutor v. Ayyash et al., STL-11-01/I/PRES, Order on Composition of the Trial Chamber,
8September2011.
5
Confidential letter from Judge Micheline Braidy, Judge David Re, Judge Janet Nosworthy (alternate Judge),
Judge Walid Akoum (alternate Judge), 9 September 2013.
232
5.
Thereafter, three Defence teams requested the President to reconsider the
6
Order. The President ruled that he had no power to do so.7 On 22October2013, the
Defence teams for Messrs Badreddine and Oneissi filed the present Application. On
24 October 2013, the Prosecutor informed the Appeals Chamber that he would not
respond.8
DISCUSSION
I.
Composition of the Appeals Chamber
6.
The Presiding Judge of the Chamber, Judge Baragwanath, has elected to
recuse himself from these proceedings due to the fact that the Order was made by
him in his capacity as President.9
7.
Pursuant to Article 8 (1) (c) of the Statute, the Appeals Chamber is composed
of five judges including the Presiding Judge (who is ex officio President of the
Tribunal), with no designated alternate judge. The recusal of the President reduces
the composition of the Appeals Chamber to four judges.10
6 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Motion for Reconsideration and Rescission of the
Presidents Order on Composition of the Trial Chamber of 10 September 2013, 23 September 2013.
7 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Decision on Defence Motion for Reconsideration and
Rescission of Order Composing the Trial Chamber, 4 October 2013 (Reconsideration Decision).
8
E-mail to Presidents Chef de Cabinet of 24 October (also copied to the Defence).
Letter from President Baragwanath to Vice-President Riachy, 24 October 2013. The full text of the letter reads:
Dear Vice-President, [a]n appeal has been filed in the Appeals Chamber against my decision as President under
Article 8(3) of the Statute of the Tribunal to assign Judge Nosworthy, appointed by the UN Secretary General
as an alternate judge under Article 8 (1)(d), to replace Judge Roth as a member of the Trial Chamber under
Article 8(1)(b). It is well settled that a judge is disqualified from sitting both if he is actually biased or if to do
so would cause an informed observer to form a reasonable apprehension of bias. The sole exception is where no
judicial decision is possible unless the judge sits. I am satisfied that to sit on an appeal from my own decision
would clearly infringe the test of reasonable apprehension of bias. The Appeals Chamber has already ruled that
it may sit in the absence of its President whose decision is challenged in the particular appeal. It follows that it is
my duty to advise you that I hereby disqualify myself from participating as a member of the Appeals Chamber
which is to determine the appeal.
10 STL, In the matter of El Sayed, CH-AC-2010-01, Decision on the Application to Challenge the Order of the
President of the Appeals Chamber to Stay the Order of the Pre-Trial Judge and to Call upon Amicus Curiae, 8
November 2010, para.14 (El Sayed Decision of 8 November 2010).
233
8.
We have previously held that in such circumstances the necessity principle
requires the remaining four Judges to exercise the jurisdiction of the Appeals
Chamber,11 and we see no reason to depart from that position in the instant case.
The Appeals Chamber is properly seized of a case even when composed of only
four Judges, because none of its members can be replaced by an alternate Judge.
Moreover, unlike other international tribunals, the Statute of this Tribunal does not
provide for the appointment of a Judge from the other Chambers to temporarily
serve on the Appeals Chamber.12 We therefore see what we have done previously as
the only course of action to overcome the impasse and to avoid denial of justice.13
We further note that in this specific instance the Defence itself acknowledges the
possibility for the President recusing himself.14
II.
Admissibility of the Application
9.
We first note that neither the Statute nor the Tribunals Rules of Procedure
and Evidence (Rules) grant the parties an explicit right to challenge a decision by
the President. Indeed, as held by the President, in common with the practice of other
international tribunals with similar provisions, an order of the President composing
or re-composing a bench of the Tribunal is a purely administrative matter and not
subject to challenge by the parties.15 This includes both requests for reconsideration
of the order by the President and any requests for review by the Appeals Chamber.
10. Acknowledging this position of the law, Defence counsel rely on the inherent
powers of the Appeals Chamber to find their application admissible. They argue in
effect that the Defence must be able to ensure respect of all fundamental rights of the
Accused and that adhering to a formalistic reading of applicable provisions would
11 Id. at paras 14-17, referring to other international jurisprudence; see also Grant Hammond, Judicial Recusal
Principles, Process and Problems (Hart 2009), pp. 84-85 (for the practice of various Supreme Courts, such as
the US Supreme Court and the High Court of Australia).
12 See, e.g., Rule 27 (C) of the ICTY Rules of Procedure and Evidence.
13 El Sayed Decision of 8 November 2010, paras 15-17.
14 Application, para. 7.
15 Reconsideration Decision, paras 12-15 (with further reference to the case-law of other courts).
234
lead to a denial of justice.16 While we have recognized limited inherent powers

before, we have also held that the authority of the Appeals Chamber to entertain
appeals outside of the Rules is exceptional and limited to cases where a situation has
arisen that was not foreseen by the Rules.17
11. Indeed, we stated that the jurisdiction of the Appeals Chamber is limited by
the Statute and Rules and that there can be no right of appeal if it was the express
intention of the drafters to exclude it.18 This is also the approach applied by both
domestic and other international jurisdictions.19 Even assuming that the Appeals
Chamber will, in exceptional circumstances, consider appeals or other applications
outside the scope of the Rules, this would rest on the consideration that injustice
may result if such an error as is alleged were left uncorrected.20 In other words, any
exercise of inherent jurisdiction would have to address a lacuna in our legal regime.
But this is not the case here.
12. In this context, the reliance of counsel on a decision of the International
Criminal Tribunal for Rwanda (ICTR), which addressed a completely different
factual situation, is misplaced. In this and other decisions, the ICTR Appeals Chamber
held that it had the inherent power to review decisions of that tribunals President
which concerned issues such as the status of counsel or the detention regime but
only if those issues involved the fairness of proceedings on appeal.21 This was
16 Application, para. 6.
17 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals Against the
Trial Chambers Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 24
October 2012 (Ayyash et al. Jurisdiction Decision), para. 17; STL, In the matter of El Sayed, CH/AC/2010/02,
Decision on Appeal of Pre-Trial Judges Order Regarding Jurisdiction and Standing, 10 November 2010, para.
54.
18 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, Decision on Appeal by Legal Representative of
Victims Against Pre-Trial Judges Decision on Protective Measures, 10 April 2013, para. 11.
19 Ayyash et al. Jurisdiction Decision, fns 54, 55 (providing references).
20 STL, El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judges Order Regarding Jurisdiction and
Standing, 10 November 2010, paras 54-55.
21 ICTR, Nahimana et al. v. Prosecutor, ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwizas
Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar
Relating to the Withdrawal of Co-Counsel, 23 November 2006, para. 9; ICTR, Nahimana et al. v. Prosecutor,
ICTR-99-52-A, Decision on Appellant Hassan Ngezes Motion for Leave to Permit his Defence Counsel to
Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays, 25 April 2005, p. 3;
235
because the Appeals Chamber had the statutory duty to safeguard the appellate
proceedings.22 Those cases are thus distinguishable from the instant case.
13. In sum, the Application is not admissible. We find it necessary, however, to
add an observation. The Defences arguments seem to be based on the false premise
that, absent the ability to contest the Presidents Order as such, the Defence (or,
for that matter, the Prosecutor) would be limited in their ability to challenge the
consequences arising from an irregular composition of the Trial Chamber. We cannot
agree with such a reading.
14. Indeed, it was open to the Defence to challenge the allegedly incorrect
composition of the Trial Chamber with that Chamber directly. Counsel could have
raised this as a certifiable issue in their motions seeking certification to appeal the
Trial Chambers Decision on Defence Motions for Certification for Appeal of the
Trial Chambers 13 September 2013 Decision on Alleged Defects in the form of the
Indictment, issued on 9 October 2013.23 They chose not to do so.
15. We note that the Defence relies on case-law of the European Court of Human
Rights to establish a right of appeal against the Presidents Order. However, in Latvia
(from which one of the cases, dealing with irregular composition of the bench cited
by the Defence, originated) the Code of Criminal Procedure requires any motion
against the composition of a Chamber to be decided by the same Chamber, without
the Judge who is sought to be disqualified.24
ICTR, Nshogoza v. Prosecutor, ICTR-2007-91-A, Decision on Request for Judicial Review of the Registrars
And Presidents Decisions Concerning Payment of Fees and Expenses, 13 April 2010, para. 14; see also ICTY,
Prosecutor v. Milutinovi et al., IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional
Funds, 13November 2003, paras 19-20 (relating to the similar statutory obligation of Trial Chambers, but
cautioning that exercise of such power should, however, be closely related to the fairness of the trial, and it
should not be used as a substitute for a general power of review); ICTY, Prosecutor v. Gali, IT-98-29-AR54,
Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003,
para. 8.
22 ICTR, Nahimana et al. v. Prosecutor, ICTR-99-52-A, Decision on Appellant Ferdinand Nahimanas Motion for
Assistance from Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7.
23 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/TC, Decision on Defence Motions for Certification for Appeal
of the Trial Chambers 13 September 2013 Decision on Alleged Defects in the form of the Indictment, 9
October 2013 (see fn. 2 for references to the motions filed by three Defence teams).
24 See ECtHR, Lavents v. Latvia, 58442/00, Judgment, 28 November 2002 (cited by the Defence at fn. 8 of the
Application), para. 49.
236
16. More importantly in the context of this Tribunal, Lebanese law does not
have provisions that allow a direct challenge of the type raised by the Defence. In
Lebanon, the proper way to challenge the allegedly irregular composition of a bench
is to raise the matter before the Court of Cassation against a substantive criminal
decision taken by that bench.25 There is no provision to directly appeal, or otherwise
seek remedy against, the appointment of judges to a benchbut this of course does
not mean that parties in Lebanon are not allowed to challenge decisions issued by a
purportedly irregularly constituted bench.
17. We further find the Application frivolous. Indeed, we have previously issued
a warning that we will not tolerate the filing of appeals that lack any serious legal
or factual basis.26 This is the case here. We therefore order the Registrar, pursuant
to Rule 126 (G), to withhold payment of fees associated with the production of the
Application and the costs thereof, with the necessary information to be obtained
from the Defence Offices Legal Aid Unit.
25 Apart from cases of requests for disqualification (which are in any event not brought before the authority
assigning judges to a bench), see in particular Article 296 (a) of the Lebanese New Code of Criminal Procedure,
providing that a judgment may be challenged if it was delivered by a body that was not legally constituted
(English text available on the Tribunals website).
26 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.2, Decision on Appeal against Pre-Trial Judges
Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor,
13November 2012, para. 22.
237
DISPOSITION
FOR THESE REASONS;
THE APPEALS CHAMBER
FINDS the Application inadmissible;
ORDERS the Registrar to withhold the fees associated with the production of the
Application.
Dated 25 October 2013
Judge Ralph Riachy

Presiding
238
12.
Case name:
Before:
Appeals Chamber
Title:
Decision on Request by Counsel for Messrs

Badreddine and Oneissi for Reconsideration of
the Appeals Chambers Decision of 25 October
2013
Short title:
Reconsideration of a Decision AC
239
240
THE APPEALS CHAMBER

Case No.:
STL-11-01/PT/AC
Before:
Judge Ralph Riachy, Presiding

Registrar:
Mr Daryl Mundis
Date:
10 December 2013
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
DECISION ON REQUEST BY COUNSEL FOR MESSRS

BADREDDINE AND ONEISSI FOR RECONSIDERATION OF THE
APPEALS CHAMBERS DECISION OF 25 OCTOBER 2013
Prosecutor:
Mr Norman Farrell

Mr Eugene OSullivan
Mr Emile Aoun

Mr Franois Roux

Mr Antoine Korkmaz
Mr John Jones

Mr Peter Haynes

Mr Yasser Hassan
Mr David Young
Mr Gunal Mettraux
241
INTRODUCTION
1.
In a recent decision (the Decision), we found an application submitted jointly
by Defence counsel for Messrs Badreddine and Oneissi (Defence) to be frivolous
and, under Rule126 (G) of the Rules of Procedure and Evidence (Rules), ordered
the Registrar to withhold payment for the fees associated with the production of the
application.1 We are now seized with a request by the Defence to reconsider this
Decision pursuant to Rule 140 of the Rules.2
2.
We reject the Request because the Defence has not demonstrated that the
Decision was erroneous and resulted in an injustice.
BACKGROUND
3.
In the Decision, we dismissed an application filed by the Defence that was
directed against an order by the President re-composing the Trial Chamber following
the resignation of its Presiding Judge.3 In addition to finding the application
inadmissible, we also found that it was frivolous and ordered the Registrar to
withhold payments of fees associated with the production of the Application and
the costs thereof.4
1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Decision on Application by Counsel for Messrs
Badreddine and Oneissi Against Presidents Order on Composition of the Trial Chamber of 10 September 2013,
25October2013, para. 17, Disposition. All further references to filings and decisions relate to this case number
unless otherwise stated.
2 Request for Reconsideration of the Appeals Chambers Decision of 25 October 2013, 18 November 2013
(Request), para. 1.
3 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Order on Composition of the Trial Chamber,
10September 2013; Decision, para. 13, Disposition.
4 Decision, para. 17, Disposition. It is our understanding that this order, for a number of technical reasons, has
not been fully implemented yet (see E-mails from Deputy Registrar to Legal Officer of the Appeals Chamber,
27November 2013, 9 December 2013). For sake of clarification, we recall that a request for reconsideration,
just like an appeal, does not suspend the execution of an order, unless such suspension is explicitly granted by
the Chamber (see ICTY, Prosecutor v. Prli, IT-04-74-T, Decision on Request for Reconsideration, or in the
Alternative, for Certification to Appeal the 1 February 2010 Decision Applying Rule 73 (D) of the Rules to the
Prli Defence, 28 June 2010, pp. 4, 6; see also ICTR, Munyagishari v. The Prosecutor, ICTR-05-89-AR11bis,
Decision on Bernard Munyagisharis Motion for Reconsideration of Prior Reconsideration Decisions, 24 July
2013, p. 3).
242
4.
The Defence subsequently sought authorization from the Presiding Judge
of the Appeals Chamber in this matter, Judge Riachy, to seek reconsideration of
the Decision with respect to the order on fees.5 Such authorization was granted but
limited in scope. In particular, the Presiding Judge found a number of the Defence
submissions manifestly unfounded.6 He consequently granted leave
to Defence counsel for Messrs Badreddine and Oneissi to file a request for
reconsideration of the Appeals Chambers decision of 25 October 2013, limited,
however, to the grounds that (i) the application of Rule 126 (G) allegedly leads
to an unfairness because it appears to apply only to assigned Defence counsel
and that (ii) counsel was not heard before the Appeals Chamber made its
ruling[.]7
The Presiding Judge also permitted the Prosecutor, the Head of Defence Office and
the Registrar to each file a response to the request for reconsideration.8
5.
The Defence then filed the Request to which both the Head of Defence Office
and the Prosecutor responded.9 The Registrar informed the Chamber that he would
not make any submissions.10
5 Request for Authorisation for Reconsideration of the Decision of the Appeals Chamber of 25 October 2013,
1November2013.
6
Decision on Request by Defence for Messrs Badreddine and Oneissi for Authorization to Seek Reconsideration
of the Appeals Chambers Decision of 25 October 2013, 13 November 2013 (Decision Granting Leave), paras
7-9, 12.
Id. at Disposition.
Ibid.
Request; Observations from the Defence Office Relating to the Request for Reconsideration of the Appeals
Chambers Decision of 25 October 2013, 25 November 2013 (HDO Observations); Prosecution Response
to Requte en rexamen de la Dcision de la Chambre dappel du 25 Octobre 2013, 25 November 2013
(Prosecutors Response).
10 E-mail from Registry Legal Office to Legal Officer of the Appeals Chamber, 25 November 2013.
243
DISCUSSION
I.
Preliminary Issues
A.
Composition of the Appeals Chamber
6.
The Decision that is subject to the request for reconsideration was taken by
the Appeals Chamber sitting with four Judges. This was because the Presiding Judge
of the Appeals Chamber, Judge Baragwanath, elected to recuse himself from the
proceedings given that the original order against which the Defence application was
directed was made by him in his capacity as President.11 Consequently, the Request,
which seeks reconsideration of the Decision, must be decided by the Appeals
Chamber with the same composition of four Judges, without the participation of
Judge Baragwanath.
B.
Scope of the reconsideration request
7.
As set out above, the Presiding Judge granted leave to seek reconsideration
only with respect to two matters relating to the application of Rule 126 (G).12 He
explicitly rejected as manifestly unfounded the Defence arguments concerning an
alleged violation of their immunity from legal process.13 These arguments were
based on Article 13 of the Document Annexed to Security Council Resolution 1757,
which regulates, inter alia, the relationship between the Tribunal and Lebanon.14
8.
Counsel now seek to resurrect the immunity argument through subterfuge,
camouflaging their claim by relying on the similar Article22 of the Headquarters
Agreement between the United Nations and the Netherlands.15 But, as also noted
11 See Decision, paras 6-8.
12 Decision Granting Leave, Disposition.
13 Decision Granting Leave, para. 7.
14 Article 13 reads in relevant part: (2) [C]ounsel shall be accorded: [] (c) Immunity from criminal or civil
jurisdiction in respect of words spoken or written and acts performed in his or her capacity as counsel. [].
15 Request, paras 3, 5-7 (referring to the Agreement between the United Nations and the Kingdom of the
Netherlands Concerning the Headquarters of the Special Tribunal for Lebanon, 21 December 2007). Article
244
by the Prosecutor,16 they were not granted leave to seek reconsideration based
on the issue of immunity. Consequently, and in accordance with Rule 140, we
hold that this issue is not properly before us. We also find that such an attempt to
circumvent the Decision Granting Leave is disingenuous and borders on the abusive.
A reconsideration request before the Appeals Chamber is not a forum to advance
arguments for which leave was not granted by the Presiding Judge, or to present
new arguments that were not litigated previously before him. We disapprove of such
practice and summarily dismiss the Request in this respect.
II.
Applicable Law
9.
Rule 140 provides:

A Chamber may, proprio motu or at the request of a Party with leave of the
Presiding Judge, reconsider a decision, other than a Judgement or sentence, if
necessary to avoid injustice.
10. We have previously held that reconsideration is an exceptional measure and

subject to strict requirements.17 A party seeking the remedy must demonstrate that
reconsideration is necessary to avoid an injustice. What constitutes an injustice is
case-dependent, but [a]t a minimum, it involves prejudice.18 The party must allege
prejudice on specific grounds, which may include that a decision is erroneous or
[. . .] constituted an abuse of power on the part of the Chamber or that new facts
or a material change in circumstances have arisen after the decision is made.19 We
22 of that Agreement reads in relevant part: (1) Counsel shall enjoy the following [] immunities []: (c)
immunity from legal process of every kind in respect of words spoken or written and all acts performed by them
in their official capacity [].
16 Prosecutors Response, para. 2
17 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/R176bis, Decision on Defence Requests for Reconsideration
of the Appeals Chambers Decision of 16 February 2011, 18 July 2011 (Rule 176 bis Reconsideration
Decision), para. 23; see also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Corrected Version
of Decision on Defence Appeals Against Trial Chambers Decision on Reconsideration of the Trial In Absentia
Decision, 1November2012, para. 19.
18 Rule 176 bis Reconsideration Decision, para. 24.
19 Id. at para. 25.
245
recall that the presence of these grounds is not sufficient per se. The party seeking
reconsideration must also show that they resulted in prejudice.20
11.
Rule 126 (G) states the following:

When a Chamber finds that a motion or other filing is frivolous or is an abuse
of process, the Registrar shall withhold payment of fees associated with the
production of that motion or other filing and the costs thereof.
III. The merits of the Request

12. Counsel seek reconsideration of our decision to withhold their fees for filing a
frivolous application on two grounds. They first argue that a sanction under Rule 126
(G) only applies to assigned counsel (i.e. counsel funded by the Tribunals legal aid
scheme) and not to appointed counsel (i.e. counsel paid for by an accused) or counsel
for the Prosecutor.21 In counsels view, this is a clear breach of the principle of
equality before the law and is discriminatory.22 The Prosecutor disagrees, arguing
that the Rules empower the Tribunal to sanction any counsel who files frivolous
motions.23
13. Counsel next argue that our decision breached the adversarial principle
because we did not hear them before imposing the sanction.24 This assertion is
supported by the Head of Defence Office.25
A.
Whether Rule 126 (G) is discriminatory
14. The Defence argument that Rule 126 (G)and, by extension, our Decision
are discriminatory rests on the premise that this Rule is applicable to assigned counsel
20 Id. at para. 26.
23 Prosecutors Response, para. 3; see also paras 4-6. The Head of Defence Office does not make submissions on
this issue.
25 HDO Observations, para. 2. The Prosecutor does not respond on this issue.
246
only. However, this is not the case. To start with, we never made such a holding in
our Decision. Rather, we addressed the specific issue before usa frivolous filing by
counsel paid under the legal aid scheme. Filings by other counsel were not at issue.
15. In addition, Rule 126 (G) may not be construed as limiting the courts power
to sanction counsel practicing before this Tribunal to assigned counsel. We first note
that the Rule relates to the courts inherent power to control its own proceedings.26
Article21of the Statute mandates the Chambers to take strict measures to prevent
any action that may cause unreasonable delay. Article 28 authorizes the Judges to
draft appropriate Rules to implement this mandate. Accordingly, Rule 126 (G) is one
way of expressing a Chambers power to protect the integrity of its proceedings by
imposing sanctions for dilatory or abusive tactics. Such tactics include the filing of
submissions that are frivolous or are an abuse of process.27
16. Furthermore, while the wording of Rule 126 (G) could suggest that sanctions
for the filing of frivolous or abusive submissions may only be imposed assigned
counsel, the Rule does not have such effect. It merely recognizes the Tribunals
obligation to ensure that taxpayer-funded public resources allocated to a Defence
team under the legal aid scheme are not wasted on the production of frivolous or
abusive motions. However, this does not mean that the courts inherent powers to
impose sanctions in response to such submissions do not extend to other counsel.
17. In this context, we recall the equivalent legal provisions at other international
criminal tribunals. In particular, the rules of the International Criminal Tribunal for
Rwanda, the Special Court for Sierra Leone, and the Mechanism for International
26 See ICTY, Prosecutor v. Delali et al., IT-96-21-A, Order on the Motion to Withdraw as Counsel Due to Conflict
of Interest, 24 June 1999, p. 3 (considering for the International Criminal Tribunal for the former Yugoslavia the
inherent power which the Tribunal has, deriving from its judicial function and from the provisions of Articles20
and 21 of its Statute, to control its proceedings in such a way as to ensure that justice is done and, particularly
in relation to matters of practice, that the trial proceeds fairly and expeditiously); see also Regulation 29 ICC
Reg (empowering the Chamber to make any order to ensure compliance with the Regulations or court orders
and clarifying that this is without prejudice to Chambers inherent powers).
27 In this regard, we reject counsels and the Head of Defence Offices arguments raised elsewhere as to an alleged
chilling effect of the Rule (Request, para. 15; HDO Observations, para. 4). The Presiding Judge denied leave
with respect to this more general argument, which challenges the Rule as such (see Decision Granting Leave,
para. 9). In any event, counsels freedom of expression and/or professional freedom and independence exist
within the boundaries of counsels obligations as officers of the court. Freedom of expression cannot be the
justification for filing motions that are frivolous or are an abuse of process.
247
Criminal Tribunals make clear that sanctions for the filing of frivolous or abusive
submissions may be imposed on all counsel.28 National jurisdictions also follow a
similar approach.29 Rule126(G) therefore cannot be read as restricting the courts
powers by excluding sanctions for the filing of frivolous or abusive submissions
by appointed counsel or by Prosecution counsel.30 The means for effecting those
sanctions must naturally be different because these counsel are not remunerated
through the legal aid scheme. For instance, appointed counsel are paid by the
accused directly. Any sanction would therefore have to be tailored to the specific
circumstances of each case.31
18. In sum, Rule 126 (G) is not discriminatory. Nor was our Decision. We reject
the Defence arguments in this regard.
28 See Rule 73 (F) ICTR RPE ([] [A] Chamber may impose sanctions against Counsel if Counsel brings a
motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of
process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/
or costs thereof.); Rule 46 (C) SCSL RPE (Counsel who bring motions, or conduct other activities, that in the
opinion of a Chamber are either frivolous or constitute abuse of process may be sanctioned for those actions as
the Chamber may direct. Sanctions may include fines upon counsel; non-payment, in whole or in part, of fees
associated with the motion or its costs, or such other sanctions as the Chamber may direct.); Rule 73 (D) SCSL
RPE ([] [W]hen a Chamber finds that a motion is frivolous or is an abuse of process, the Registrar shall
withhold payment of all or part of the fees associated with the production of that motion and/or costs thereof.);
Rule 80 (D) MICT RPE ([] [A] Trial Chamber may impose sanctions against Counsel if Counsel brings a
motion, including a preliminary motion, that, in the opinion of the Trial Chamber, is frivolous or is an abuse of
process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or
costs thereof.); but see Rule 73 (D) ICTY RPE ([] [W]hen a Chamber finds that a motion is frivolous or is
an abuse of process, the Registrar shall withhold payment of fees associated with the production of that motion
and/or costs thereof.) The previous version of the ICTY Rule, contained then in Rule 46 (C), was identical to
the current wording of the ICTR Rule (see Rule 46 (C) ICTY RPE until 28 July 2004).
29 See, e.g., Criminal Procedure Code, 18 U.S.C. 3162 (United States).
30 Cf. ICC, Prosecutor v. Kenyatta, ICC-01/09-02/11, Decision on the Defence application concerning professional
ethics applicable to prosecution lawyers, 31 May 2013, para. 16 (holding, based on the Chambers inherent
powers, that the courts code of conduct applicable to Defence lawyers should where applicable and to the
extent possible, also apply to members of the Prosecution).
31 See ICTY, Prosecutor v. eelj, IT-03-67-PT, Decision on Motion for Disqualification, 10June 2003, para. 5
(holding with respect to a self-represented accused that while the sanction of withholding fees could not be
applied to him, the court could impose other sanctions such as the refusal to accept a filing at all); cf.ICTY,
Prosecutor v. Staki, IT-97-24-AR73.4, Decision on the Prosecution Motion Seeking Leave to Appeal the
Decision of Trial Chamber II Ordering an Identification Parade, 28 June 2002, p. 3 (finding a Prosecution
application frivolous). Both ICTY decisions were based on the wording of the relevant Rule then in force
(seeabove fn. 28).
248
B.
Whether counsel had a right to be heard
19. Counsel further attack Rule 126 (G) because it provides for the withholding
of their fees without affording them an opportunity to be heard.32 However, as noted
above, the Decision was based on our inherent power to control the proceedings
before us and in particular, to prevent the filing of applications that we find devoid
of any merit. In this respect, the Decision was ancillary to our ruling on the merits of
the Defence application.33 Counsel have not demonstrated that there is an obligation
on the part of the Chamber to hear from them before making such a finding.
20. As pointed out by the Presiding Judge, the Defence has not challenged our
finding that their application was frivolous.34 The Defence now argues that if it
had been heard beforehand, it would have naturally challenged that characterisation
and that is precisely the matter of the principle which is raised.35 However, counsel
ignore that the Appeals Chambers order was based on its own determination that the
application submitted by the Defence was not simply unpersuasive on the merits but
also frivolous. It would be pointless for the Chamber to hear counsel on whether they
consider that their submission is frivolous or not. This question is inextricably linked
to the merits of the submission, on which the Chamber has already decided. To hear
counsel would therefore merely reopen consideration on the application itself. The
same applies to the sanction imposed as a consequence. Counsel are a fortiori not
entitled to be heard on this issue.
21. The Head of Defence Office refers to Rules 57 (H) and 60 of the Rules,
arguing that because these Rules provide counsel with a right to be heard before
certain measures against them are taken, the same must apply to Rule 126 (G).36 We
disagree. These Rules address different matters that go generally to the performance
33 See ICTR, Prosecutor v. Karemera et al., ICTR-98-44-PT, Decision on Joseph Nziroreras Motion for Order
Finding Prior Decisions to be of No Effect, 24 May 2005, para. 12 (The sanctions orders are not substantive.
They are merely ancillary or consequential to the substantive motions. They reflect the conclusion by the Trial
Chamber that bringing those motions was frivolous or was an abuse of process.)
34 Decision Granting Leave, para. 6.
36 HDO Observations, paras 5-7.
249
or conduct of counsel as such. To be able to evaluate alleged issues of performance or

conduct covered by these Rules, decision-makers would generally need information
that is not already before them. However, Rule 126 (G) deals with specific filings. As
explained above, in such instances, everything relevant to the Chambers decision
the filing(s)is already before it.
22. In sum, counsel have no right to be heard with respect to sanctions imposed
under Rule126 (G).
IV. Conclusion
23. We reject the Defence Request. Counsel have not shown an error in our
Decision resulting in prejudice to them. On a more general note, we stress that we
have not taken our decision to impose the sanction lightly.37 When warranted, as in
this case, such sanctions are necessary to safeguard the fair and expeditious conduct
of our proceedings.
37 See, e.g., ICTR, Prosecutor v. Kanyarukiga, ICTR-2002-78-R11bis, Decision on Request to Admit Additional
Evidence of 1August 2008, 1 September 2008, para. 12 (recalling that the power to impose sanctions should be
exercised cautiously); see also ICTR, Karera v. The Prosecutor, ICTR-01-74-A, Decision on the Appellants
Request to Admit Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence,
29October2008, para. 14; ICTR, Karemera et al. v. The Prosecutor, ICTR-98-44-AR73.15, Decision on Joseph
Nziroreras Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding
Judges Written Assessment of a Member of the Prosecution Team, 5 May 2009, para. 21.
250
DISPOSITION
FOR THESE REASONS;
THE APPEALS CHAMBER, deciding unanimously;
DISMISSES the Request.
Dated 10 December 2013
Judge Ralph Riachy

Presiding
251
252
13.
Case name:
Before:
Pre-Trial Judge
Title:
Redacted Version of the Corrected Version of

the Pre-Trial Judges Report Prepared pursuant
to Rule 95(A) of the Rules of Procedure and
Evidence
Short title:
Pre-Trial Report PTJ
253
254
THE PRE-TRIAL JUDGE

Case No.:
STL-11-01/PT/PTJ
Before:
Mr Daniel Fransen
Registrar:
Mr Daryl Mundis
Date:
11 December 2013
Original language:
French
Type of document:
Public
THE PROSECUTOR
v.
SALIM JAMIL AYYASH
ASSAD HASSAN SABRA
REDACTED VERSION OF THE CORRECTED VERSION OF THE

PRE-TRIAL JUDGES REPORT PREPARED PURSUANT TO
RULE 95 (A) OF THE RULES OF PROCEDURE AND EVIDENCE
Trial Chamber

Mr Eugene OSullivan

Mr Norman Farrell

Mr Antoine Korkmaz

Mr Peter Haynes

Mr David Young
255
Table of contents
I. Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
II.
The jurisdiction of the Pre-Trial Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
III.
The principal stages of the proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
IV.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
B. Ordinary meaning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
C. The context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
D. Object and purpose.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
E. In conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
V.
Analysis of the case file. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
B. The Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Mr Ayyash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Mr Badreddine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Mr Oneissi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Mr Sabra. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
268
269
271
274
275
C. Description of the phone networks and the attribution of the phones. . . . . .

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The phone networks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Attribution of the phones to the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
277
277
278
285
D. Activities prior to the attack. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Observation and surveillance activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Activities related to the false claim of responsibility. . . . . . . . . . . . . . . . . . . .
4. The purchase of the vehicle used to carry out the attack. . . . . . . . . . . . . . . .
294
294
295
298
301
256
E. The attack. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
2. How the attack unfolded. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
F. Activities after the attack. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
G. The existence of a consistent pattern of conduct. . . . . . . . . . . . . . . . . . . . . . . . . .
1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The attacks carried out against [REDACTED]. . . . . . . . . . . . . . . . . . . . . . . .
3. The attacks carried out in Kuwait. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
312
312
313
315
H. The victims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
2. Mr Hariri and the other victims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
VI.
Concluding observations regarding the witness lists.. . . . . . . . . . . . . . . . . . . . . .

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Prosecution Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The forensic and criminalistic reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Attribution and use of telephones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. The Accused and Mr Merhi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Mr Hariri himself and the Lebanese context. . . . . . . . . . . . . . . . . . . . . . . . . . .
6. The Mitsubishi vehicle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. CCTV cameras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8. Mr Abu Adass.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9. The false claim of responsibility for the attack. . . . . . . . . . . . . . . . . . . . . . . . .
10. The victims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11. The consistent pattern of of conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12. The residual category. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
320
320
321
321
323
324
325
326
327
327
327
327
328
328
328
C. The lists of the Legal Representative of Victims. . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The list of witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. The exhibit list. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
329
329
329
332
257
I. Preamble
1.
This report has been prepared in accordance with Rule 95 (A) (vi) of the Rules
of Procedure and Evidence (respectively the Report and the Rules) in the context
of the case of Ayyash et al. in which Messrs Salim Jamil Ayyash, Mustafa Amine
Badreddine, Hussein Hassan Oneissi and Assad Hassan Sabra (the Accused) were
indicted for their alleged involvement in the attack1 which resulted in the death of Mr
Rafic Hariri and others and injured other persons (the attack).
2.
After recalling the provisions on which his jurisdiction is based (II) and the
principal stages of the proceedings (III), the Pre-Trial Judge will define the legal
conditions relating to the preparation of the Report (IV). He will then analyse the
facts of the case in light of the Prosecutions pre-trial brief of 23 August 2013 (the
Prosecutions Brief),2 the exhibits submitted in support thereof and the pre-trial
briefs of counsel for the defence (the Defence or Counsel for the Defence) for
Mr Salim Jamil Ayyash of 6 September 2013 (the Ayyash Brief),3 for Mr Mustafa
Amine Badreddine of 6 September 2013 (the Badreddine Brief),4 for Mr Hussein
Hassan Oneissi of 6 September 2013 (the Oneissi Brief)5 and for Mr Assad Hassan
Sabra of 5 September 2013 (the Sabra Brief)6(V). The Pre-Trial Judge will
conclude the Report with an analysis of the lists of witnesses the Prosecution and the
Legal Representative of Victims (LRV) intend to call (VI).
3.
The Report also contains 10 annexes, namely: a list of the decisions issued
during the pre-trial phase (Annex A), a list of the correspondence exchanged in that
context (Annex B), a table relating to the witnesses mentioned by the Prosecution
1
The term attack comes from Article 1 of the Statute. It bears no legal classification in the context of this
Report.
2 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecutions Updated Pre-Trial Brief,
dated 23 August 2013, 23 August 2013. Any further reference to filings and decisions refers to this case number,
unless otherwise indicated.
3
Updated Defence Pre-Trial Brief on Behalf of Mr Ayyash, 6 September 2013.
4 Updated Pre-Trial Brief Submitted by the Defence for Mr Mustafa Badreddine Pursuant to Rule 91 (I), 6
September 2013.
5
Second Pre-Trial Brief on behalf of the Defence for Mr Hussein Hassan Oneissi, 6 September 2013.
Updated Sabra Pre-Trial Brief, 5 September 2013.
258
(Annex C), a list of outstanding requests that have been transferred to the Trial
Chamber (Annex D), two lists of outstanding confidential and ex parte requests
transferred to the Trial Chamber (Annexes E and F), a list of outstanding requests
relating to issues under the exclusive jurisdiction of the Pre-Trial Judge (Annex G), a
list of outstanding confidential and ex parte requests under the exclusive jurisdiction
of the Pre-Trial Judge (Annex H), a list of ex parte documents placed under seal with
limited distribution (Annex I) and a list of transcripts of meetings held pursuant to
Rule 68 of the Rules (Annex J).
II.
The jurisdiction of the Pre-Trial Judge
4.
The Pre-Trial Judge has jurisdiction to prepare the Report and submit it to
the Trial Chamber pursuant to Rule 95 (A) of the Rules. Upon receiving the file,
consisting of the Report and other documents mentioned in Rule 95 (A) of the Rules,
the Trial Chamber is seized of the case of Ayyash et al. in accordance with Rule 95
(B) of the Rules. As a consequence, starting from that time and with the exception
of issues under his exclusive jurisdiction by virtue of the Rules, the Pre-Trial Judge
is no longer seized of the case and has no jurisdiction to deal with both pending and
future requests.
III. The principal stages of the proceedings
5.
On 28 June 2011, the Pre-Trial Judge rendered a decision relating to the
examination of the indictment of 10 June 2011 issued by the Prosecutor against the
Accused (the Indictment of 10 June 2011 and the Confirmation Decision of 28
June 2011). Following that decision, the Accused were indicted in relation to the
attack carried out against Mr Hariri and other persons.7
7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Decision Relating to the Examination of the
Indictment of 10 June 2011 Issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein
Hassan Oneissi & Mr Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version dated the same
day was filed on 16 August 2011. This decision confirms the counts contained in the Indictment of 10 June 2011,
with the exception of the attempt to kill 231 other persons which does not fall under the constituent elements of
a terrorist act but under those of intentional attempted homicide (cf. para. 53).
259
6.
On 19 July 2012, the Pre-Trial Judge set a tentative date for the start of trial
proceedings of 25 March 2013.8
7.
On 17 August 2012, the Prosecution sought leave to amend the Indictment of
10 June 2011.9
8.
On 25 October 2012, the Pre-Trial Judge granted the request of 17 August
2012, subject to a number of amendments. He also invited the Prosecutor to file a
new indictment incorporating those amendments.10
9.
On 8 November 2012, the Prosecution filed an amended indictment adding
two further amendments to those authorised by way of the decision of 25 October
2012.11
10.
On 23 January 2013, the Defence requested that the trial date be postponed.12
11. On 6 February 2013, the Prosecution sought leave to amend the Indictment of
10 June 2011 (the Indictment of 6 February 2013).13
12. On 21 February 2013, the Pre-Trial Judge postponed the tentative date for the
start of trial proceedings. He also sought the observations of the Prosecution and the
Defence (the Parties) and of the LRV with regard to the setting of a new date.14
13. On 12 April 2013, the Pre-Trial Judge authorised the amendments to the
Indictment of 10 June 2011 sought by the Prosecution on 8 November 2012 and on
8
Order Setting a Tentative Date for the Start of Trial Proceedings, 19 July 2012, Disposition.
9 Prosecution Request for Leave to Amend the Indictment Pursuant to Rule 71 (A) (ii), confidential, 17 August
2012.
10 Decision on the Prosecution Request of 17 August 2012 for Leave to File an Amended Indictment, 25 October
2012.
11 Filing of the Amended Indictment in Compliance with the Decision of 25 October 2012 & Request for Amended
Arrest Warrants and Orders/Requests for Transfer and Detention, confidential, 8 November 2012.
12 Joint Defence Motion to Vacate Tentative Date for Start of Trial, confidential, 23 January 2013, with a public
redacted version dated 24 January 2013.
13 Prosecution Request for Leave to Include Further Amendments to its Proposed Amended Indictment, 6 February
2013.
14 Decision relating to the Defence Motion to Vacate the Date for the Start of Trial, 21 February 2013.
260
6 February 2013, and declared that the Indictment of 6 February 2013 annuls and
replaces the Indictment of 10 June 2011.15
14. On 21 June 2013, the Prosecution sought leave of the Pre-Trial Judge for
further amendments to the Indictment of 6 February 2013.16
15. On 5 July 2013, the Pre-Trial Judge ordered the Prosecutor and the Defence
to submit respectively on 15 July 2013 and 15 August 2013 pre-trial briefs relating
to the Indictment of 6 February 2013.17 He also requested the Defence to submit pretrial briefs in compliance with the requirements of Rule 91 (I) of the Rules.
16. On 10 July 2013, the Prosecution filed a notice in which it proposed
amendments with regard to its witness and exhibit lists.18 On 15 July 2013, it filed
a corrigendum to this notice19 together with a corrected version.20 In the corrected
notice, the Prosecution stated that it no longer intended to rely on 6,511 exhibits or
on 68 witnesses appearing on its initial lists. In the main, the exhibits and witnesses
that it wished to withdraw from the exhibit and witness lists were related to forensic
analyses.
17. On 15 July 2013, in compliance with the decision of 5 July 2013, the Prosecution
filed an updated pre-trial brief with new witness and exhibit lists pursuant to Rule
91 of the Rules.21
15 Decision relating to the Prosecution Requests of 8 November 2012 and 6 February 2013 for the Filing of an
Amended Indictment, 12 April 2013.
16 Prosecution Further Request for Leave to Amend the Indictment, confidential, 21 June 2013. A public redacted
version of this request was filed on 1 July 2013.
17 Decision on the Prosecution Motion entitled Prosecution Motion Regarding the Defence Pre-Trial Briefs, 5
July 2013.
18 Prosecutions Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification, 10 July
2013.
19 Corrigendum to Prosecutions Notice of Intention in Relation to Exhibits and Witnesses and Notice of
Reclassification and to the Confidential Annex B, 15 July 2013.
20 Corrected Version of Prosecutions Notice of Intention in Relation to Exhibits and Witnesses and Notice of
Reclassification, filed on 10 July 2013, 15 July 2013.
21 Prosecutions Submission Pursuant to Rule 91, confidential, 15 July 2013. In its submissions, the Prosecution
sought authorisation to add three witnesses and 115 exhibits and to withdraw 37 exhibits in addition to those
mentioned on 10 July 2013. Among the exhibits the Prosecution sought to withdraw are a number of reports
261
18. On 31 July 2013, the Pre-Trial Judge authorised22 the amendments to the
Indictment of 6 February 2013 sought by the Prosecution on 21 June 2013 (the
Indictment).23
19. On 2 August 2013, the Pre-Trial Judge set a tentative date for the start of trial
of 13 January 2014.24
20. On 5 August 2013, the Pre-Trial Judge authorised the amendments to the
witness and exhibit lists sought by the Prosecution on 10 and 15 July 2013.25
21. On 7 August 2013, the Pre-Trial Judge changed the dates for the filing of the
pre-trial briefs at the request of the Defence.26 He ordered the Prosecution pre-trial
brief for 19 August 2013 and those of Counsel for the Defence for 2 September 2013.
22. On 12 August 2013, the Pre-Trial Judge submitted to the Trial Chamber in
accordance with Rule 95 of the Rules a part of the case file which contained the
exhibits filed by the Prosecution in the case of Ayyash et al. pursuant to Rule 91 of
the Rules.27
which were filed as evidence in support of the Indictment of 10 June 2011. The three-part report on evidence
relating to telephone communications exchanged between the individuals implicated in the attack mentioned in
the Decision of 28 June 2011 is one of those reports.
22 Amended Version, Decision Relating to the Prosecution Request of 21 June 2013 for Leave to Amend the
Indictment of 6 February 2013, confidential, 31 July 2013, with a public redacted version dated 2 August 2013.
23 Prosecution Further Request for Leave to Amend the Indictment, confidential, 21 June 2013. The request was
officially filed with the Court Management Services Section on 21 June 2013, the date mentioned on the cover
page. The Prosecutor however signed the request on 18 June 2013. The Prosecution filed a public redacted
version of the request on 1 July 2013.
24 Order Setting a New Tentative Date for the Start of Trial Proceedings, 2 August 2013.
25 Decision on Two Prosecution Submissions in Relation to Amending the Prosecution Rule 91 Filings, 5 August
2013.
26 Order on the Defence Request for a Variance of the Deadline for Re-filing the Defence Pre-Trial Briefs, 7
August 2013.
27 Order on the Transfer of Part of the Case File to the Trial Chamber Pursuant to Rule 95 of the Rules, 12 August
2013.
262
23. On 16 August 2013, the Pre-Trial Judge granted, at the request of the
Prosecution,28 additional time to the Prosecution and Counsel for the Defence within
which to file their pre-trial briefs.29
24. In compliance with the decision of 16 August 2013, the Prosecutions Brief
was filed on 23 August 2013, the Sabra Brief on 5 September 2013, and the Briefs of
Messrs Ayyash, Badreddine and Oneissi were filed on 6 September 2013.
25. On 23 October 2013, at the request of the Pre-Trial Judge, the Prosecution
filed an updated witness list.30
IV
Applicable law
A. Introduction
26. Pursuant to Rule 95 (A) (vii) of the Rules, the Pre-Trial Judge shall submit to
the Trial Chamber:
a detailed report setting out: (a) the arguments of the Parties and the victims
participating in the proceedings on the facts and the applicable law; (b) the
points of agreement and disagreement; (c) the probative material produced by
each Party and by the victims participating in the proceedings; (d) a summary
of his decisions and orders; (e) suggestions as to the number and relevance of
both the witnesses to be called by the Prosecutor and the witnesses that the
victims participating in the proceedings intend to request the Trial Chamber to
call; and (f) the issues of fact and law that, in his view, are in contention [...].
27. Before starting with an analysis of the case file, the Pre-Trial Judge intends to
define the concept of the detailed report mentioned in this text, together with the
scope of his authority in the preparation thereof. In point of fact, although it sets out
a list of items to be included in the Report, Rule 95 (A) (vii) of the Rules does not
28 Prosecution Request for Extension of Time to Comply with Order of 7 August 2013, confidential, 13 August
2013. A public redacted version was filed on the same day.
29 Decision on Prosecution Requests (1) for Leave to File Amended Material Supporting the Indictment Confirmed
on 31 July 2013 and (2) for an Extension of Time in which to File its Updated Pre-Trial Brief, 16 August 2013.
30 Prosecution Submission Pursuant to Rule 91 (G) (ii) (f), Annex A, confidential, 23 October 2013.
263
describe clearly the scope of the role of the Pre-Trial Judge in this matter, notably
with regard to whether it allows an assessment to be made of the evidence submitted
to him and whether conclusions may be drawn on the evidence contested by the
Parties. In this respect, the exact meaning of the term detailed report must be
determined in light of the general principles for the interpretation of the provisions
of the Rules. As such, Rule 3 of the Rules provides that:
(A) The Rules shall be interpreted in a manner consonant with the spirit of the Statute and,
in order of precedence, (i) the principles of interpretation laid down in customary
international law as codified in Articles 31, 32 and 33 of the Vienna Convention
on the Law of Treaties (1969), (ii) international standards on human rights (iii) the
general principles of international criminal law and procedure, and, as appropriate,
(iv) the Lebanese Code of Criminal Procedure.
(B) Any ambiguity that has not been resolved in the manner provided for in paragraph
(A) shall be resolved by the adoption of such interpretation as is considered to be the
most favourable to any relevant suspect or accused in the circumstances then under
consideration.
28. Therefore, in accordance with the provisions of the aforementioned Vienna

Convention, the precise meaning of the term detailed report must be determined
by taking account of its ordinary meaning (B), interpreted in the light of the context
in which it appears (C), as well as the object and purpose of the Statute and of the
Rules (D). It must also be determined in accordance with fundamental human rights,
namely, in the case at hand, the right of the Accused to a fair and expeditious trial.
B.
Ordinary meaning
29. The French version of Rule 95 (A) of the Rules stipulates that the submission
of the complete case file must be accompanied by a rapport dtaill. The English
version also uses the similar words of detailed report. According to their common
legal definition, those terms encompass the statement of the facts of a case submitted
by a judge in this case, the Pre-Trial Judge to another chamber in this instance,
264
the Trial Chamber to facilitate its action in these circumstances, the holding of a
fair and expeditious trial.31
30. Furthermore, Rule 95 (A) (vii) of the Rules provides some details on the
concept of the detailed report by listing the items it must contain. As such, points
(a) to (d) of that provision refer to a series of items of an objective nature, including
the arguments of the Parties, their points of agreement and disagreement, as well as
the evidence they have gathered. Points (e) and (f) however require a more subjective
analysis. Indeed, the first point refers to indications suggestions in the English
version which the Pre-Trial Judge must provide as to the number of witnesses to
be called and the relevance of their statements. The second one refers to issues of
fact and law which in his view (the Pre-Trial Judges) in the English text in his
view are in contention. Those two factors therefore call for an assessment on the
part of the Pre-Trial Judge.
C.
The context
31. The work involved in preparing the Report also requires that it be determined
in the light of the context in which it is a part, namely within the framework of
the general responsibilities conferred, by the Statute and the Rules, on the Pre-Trial
Judge and likewise on the Trial Chamber. With this in mind, it should be recalled that
the Pre-Trial Judge is an impartial and independent judge not a member, therefore,
of the trial bench32 who is under an obligation, in accordance with Article 18 of the
Statute, to take all necessary measures for the preparation of a fair and expeditious
trial. Likewise, pursuant to Rule 89 (B) of the Rules, after the indictment has been
confirmed, that judge takes any measures necessary to prepare the case for a fair and
expeditious trial. These preparatory duties are closely linked to the responsibilities
incumbent upon the Trial Chamber in accordance with Articles 20 and 21 of the
Statute, namely to: (i) confine the trial [] to an expeditious hearing of the issues
raised by the charges []; (ii) take strict measures to prevent any action that may
cause unreasonable delay; and (iii) examine the witnesses (unless circumstances
31 Cf. in this regard G. Cornu, Vocabulaire Juridique, Presses Universitaires de France, Paris, 1987, p. 760.
32 Article 8, para. 1 of the Statute.
265
related to the interest of justice dictate otherwise). In point of fact, it is only if the PreTrial Judge takes all the necessary measures including the preparation of a detailed
report highlighting the key issues of the case file that the Trial Chamber will be
able, in turn, to carry out the tasks incumbent upon it relating to the management of
the trial in an effective and fair manner.
32. Fulfilling the role of preparing for trial, and more specifically, the preparation
of the Report, must however be tempered by the fact that, as the President of the
Tribunal points out in his Explanatory Memorandum to the Rules, the Pre-Trial
Judge cannot be compared to an investigating judge called upon to gather evidence.33
Indeed, apart from in exceptional circumstances,34 that responsibility lies with the
Prosecution and the Defence, and even the LRV. With this in mind, the preparation
of the Report is, by definition, conditional on and limited by the investigative
and analytical work of the Parties as reflected in their Briefs and represented in
the exhibits submitted in support thereof. Consequently, the more the Prosecution
and Defence Briefs are developed and supported by exhibits, the more detailed the
Report itself may be and it will thus provide the judges of the Trial Chamber with
clear suggestions that might assist them in the conduct of the trial.
33. Lastly, the preparation of the Report falls into a different context to that of
the confirmation of the charges with regard to the Accused or the determination of
their guilt or otherwise at the end of the proceedings on the merits. Indeed, it is not
a question of determining whether there is sufficient evidence to demonstrate that
a suspect committed a crime falling under the jurisdiction of the Tribunal, or of
whether there is evidence which may convince the Trial Chamber of the guilt of an
accused beyond reasonable doubt. Likewise, it is not a question of assessing, as such,
the evidence gathered by the Parties, but of simply making suggestions that might
facilitate the Trial Chambers work with regard to the conduct of the trial and the
judgement. Those suggestions do not encroach upon on the sovereign power of that
33 Explanatory Memorandum by the President of the Tribunal, Rules of Procedure and Evidence, 12 April 2012,
para. 11.
34 Rule 92 of the Rules.
266
chamber to admit and consider evidence or on the right of the Parties to challenge
that evidence during the trial.
D.
Object and purpose
34. The preparation of the file and, in particular, the transmission, before the start
of the proceedings, of the evidence contained therein to the Trial Chamber is aimed at
ensuring that the proceedings are not unduly delayed and are conducted in a fair and
equitable manner. It is also in this spirit that the notion of preparing a detailed report
was conceived. As previously pointed out, its purpose is to allow the Trial Chamber,
on the basis of the conclusions drawn by the Pre-Trial Judge, to be better placed to
understand the issues at stake, to direct the proceedings between the Parties, and
exercise effective control over the conduct thereof. In producing the Report which
is essentially based on the Briefs of the Parties the Pre-Trial Judge must ensure
however that his actions accord with the rights of the Accused. However, although,
pursuant to Rule 91 (I) of the Rules, the briefs must indicate: (i) in general terms,
the nature of the accuseds defence; (ii) the matters which the accused disputes in
the Prosecutors pre-trial brief; and (iii) in the case of each matter set out pursuant
to paragraph (ii), the reason why the accused disputes it, the Defence Briefs are,
in essence, often succinct. In point of fact, the investigations conducted by Counsel
for the Defence have generally not ended at the time of submitting their Briefs.
Furthermore, those counsel are not required to disclose their overall strategy at that
preliminary stage of the proceedings. These factors are therefore some of the limits
and constraints confronting the Pre-Trial Judge in his task of assessing the number
of witnesses to appear, the relevance of their testimony, the contentious issues of law
and fact and, more generally, in the preparation of his Report.
E.
In conclusion
35. It follows from the above that the Report is an analysis of the case of Ayyash
et al. conducted by the Pre-Trial Judge and based primarily on the Prosecutions
Brief, the Defence Briefs, the LRV Brief, and the evidence presented in support of
those briefs as submitted to him. The degree of specificity of that analysis, which is
267
intended to facilitate the holding of a fair and expeditious trial by the Trial Chamber,
is therefore determined by those briefs and the evidence.
V.
Analysis of the case file

A. Introduction
36. By way of introduction, the Pre-Trial Judge points out that in the Confirmation
Decision of 28 June 2011 he had made some observations regarding the Indictment
of 10 June 2011, a number of which are still valid, notably those relating to the
circumstantial evidence35 or the motive(s) for the attack.36
37. After analysing the personal information relating to the Accused (B), the
Pre-Trial Judge will examine successively the following factors: the description
of the phone networks and the attribution of the phones (C), the activities prior to
the attack(D), the attack (E), the activities after the attack (F), the existence of
a consistent pattern of conduct (G) and the issues raised due to the participation
of the victims (H). In an effort to maintain objectivity, the Pre-Trial Judge will
examine separately, for each of those points, the allegations of the Parties and his
consideration of the issues raised by the Parties. Those issues are the points that the
Pre-Trial Judge wished to highlight. They cannot be considered as the only ones
arising in the context of every topic addressed.
B.
The Accused
38. This section relates to the personal information concerning successively

Messrs Ayyash (1), Badreddine (2), Oneissi (3) and Sabra (4).
35 Confirmation Decision of 28 June 2011, para. 37.

36 Id., para. 96.
268
1.
Mr Ayyash
The allegations of the Parties

39. The Prosecution provides two types of information concerning the identity of
Mr Ayyash: biographical data, and information relating to his religious and political
affiliations.37
40. With regard to the biographical data, based on a copy of the official civil
register,38 the Prosecution states that Mr Ayyash was born on 10November 1963
in Harouf, Lebanon, and that he is the son of Mr Jamil Dakhil Ayyash and Mrs
Mahasen Issa Salameh. Furthermore, according to a copy of the application form for
an identity card which should be filed as an exhibit [REDACTED] PRH53939 Mr
Ayyash is a Lebanese citizen with civil registration number197/Harouf. In addition,
according to an extract of the statement of Witness PRH395 [REDACTED]
Mr Ayyash holds a travel document for the Hajj, the pilgrimage to Mecca, number
059386.40 Furthermore, a payslip, which should be filed as an exhibit by Witness
PRH391 [REDACTED] would make it possible to establish that Mr Ayyashs
social security number is 63/690790.41 The Ayyash Defence considers that, in
the absence of the accused, it is not in a position to confirm the biographical data
provided by the Prosecution.42
41. With regard to the religious and political affiliations of Mr Ayyash, the
Prosecution states that he is a Shiite Muslim and a supporter43 of Hezbollah.44 The
37 Prosecutions Brief, para. 16.
38 R91-801004.
39 R91-801136.
40 R91-801134.
41 R91-100615. That information is confirmed by exhibit R91-801122.
42 Ayyash Brief, para. 12.
43 The Prosecution uses the term supporter of Hezbollah in the English version, the original language of the
documents, of the Indictment (para. 49) and the Prosecutions Brief (paras 10, 12, 16, 17, 18). However in
their French version, the documents speak of sympathisant du Hezbollah and of partisan du Hezbollah
respectively. In order to keep to the terms used in the Indictment, this Report will use the term sympathisant du
Hezbollah.
269
Defence contests these allegations. It states in this regard that the exhibits submitted
by the Prosecution fail to prove this beyond reasonable doubt.45
The observations of the Pre-Trial Judge
42. The Pre-Trial Judge identifies the following two issues regarding the identity
of Mr Ayyash:
-- the information relating to Mr Ayyash is rather succinct.46 For example, there
is very little information as to his professional activities; and
-- with regard to Mr Ayyashs religious and political affiliations, the Prosecution
relies on various documents to support the fact that he is a Shiite Muslim
and a supporter of Hezbollah. They are, in particular, the statements of: (i)
Witness PRH385 [REDACTED];47 (ii) one of the [REDACTED] of PRH385
[REDACTED]; (iii) Witness PRH112, who states that he is unable to testify
as to which political party Mr Ayyash might be affiliated to, while presuming
he is a supporter of Hezbollah because he is a Shiite;48 (iv) Witness PRH096
[REDACTED] who believes that Mr Ayyash is politically associated with
Hezbollah, [REDACTED];49 together with (v), an extract from a publication
on Hezbollah,50 which does not contain any information regarding Mr Ayyash
[REDACTED]. It also relies on: (i) the statement of the aforementioned Witness
PRH385, [REDACTED], 51 and (ii) a letter [REDACTED].52 [REDACTED].
45 Ibid.
47 R91-100318.
48 R91-100319.
49 R91-801070.
50 R91-801766, New Introduction Hizbullah The Story from Within by Naim Qassem, pp. 60217343-60217344.
51 R-91-801112; R91-100391.
52 R91-801143.
270
2.
Mr Badreddine

43. The Prosecution provides two types of information concerning the identity of
Mr Badreddine: biographical data, and evidence relating to his religious and political
affiliations.53
44. With regard to the biographical data, the Prosecution states that Mr Badreddine
was born on 6 April 1961 in Beirut, Lebanon, and that he is the son of Mr Amine
Badreddine and Mrs Fatima Jezeini. Mr Badreddine is a Lebanese citizen with civil
registration number 341/Al-Ghbeiry. In support of that allegation, the Prosecution
adduces the birth certificate of Mr Badreddine, two marriage certificates, the
Lebanese civil register54 and an application he made to the American University
of Beirut.55 To establish that Mr Badreddine is a Shiite Muslim and supporter of
Hezbollah,56 the Prosecution also relies on those documents57 and on the statement of
Witness PRH329,58 who apparently stated that Mr Badreddine was an active member
of Hezbollah and had been imprisoned in Kuwait for political reasons.59 Furthermore,
the Prosecution alleges that Mr Badreddine uses several aliases including Safi
Badr, Sami Issa and Elias Fouad Saab.60 Witness PRH577 [REDACTED] is
expected to testify on the subject. In addition, several testimonies [REDACTED] are
expected to be called upon in this respect, including those of witnesses PRH273,61
53 Prosecutions Brief, para. 10

54 R91-801010. The Pre-Trial Judge notes that this exhibit is not linked to a witness.
55 R91-801008, p. 60230562. The Pre-Trial Judge notes that this exhibit is not linked to a witness.
57 R91-801008 p. 60230562; R91-801010.
58 R91-801009.
59 R91-801009, p. 60236244. Cf. also p. 60236245.
61 R91-300094, pp. 60228566-6022857.
271
PRH243,62 PRH244,63 PRH089,64 PRH359,65 PRH531,66 PRH264,67 PRH423,68

PRH556,69 PRH470,70 PRH30671 and PRH523.72 The Prosecution relies notably
on those testimonies, in addition to the fact that Mr Badreddine and Mr Sami
Issa apparently share similar physical traits, personal characteristics and habits to
conclude that those individuals are one and the same person.73 It also notes that Mr
Badreddine and Mr Sami Issa shared the same faith and were affiliated politically to
Hezbollah.74 With regard to the alias Elias Fouad Saab, the Prosecution alleges that
Mr Badreddine was convicted under that name for attacks carried out in Kuwait.75
In order to conclude that Mr Badreddine and Mr Elias Fouad Saab are the same
person, the Prosecution relies notably on [REDACTED],76 in addition to a judgment
rendered by a court of that State which mentions the similarity of the physical traits
of those two individuals.77
45. The Defence challenges in general the allegations relating to the personal data
for Mr Badreddine.78 It also questions the fact that he is supposedly a member of
62 R91-300193, transcript p. 4 and pp. 60223303-60223307.

63 R91-300195, paras 5-66; R91-801023, transcript, pp. 1-35.
64 R91-801024, transcript, p. 4.
65 R91-300257, pp. 60267198-60267202.
66 R91-801027, pp. 60229603-60229609.
67 R91-801025, pp. 60222600-60222605.
68 R91-801026, transcript, p. 11 and pp. 60228615-60228619.
69 R91-801028, pp. 60222483-60222492.
70 R91-300232, pp. 60254598-60254607.
71 R91-300093, pp. 60220462-60220475.
72 R91-300179.
74 Ibid.
75 Id., para. 15.
76 R91-300064.
77 R91-300595.
78 Badreddine Brief, Annex A confidential, p. 2.
272
Hezbollah, that he acted under the cover of various aliases and that Mr Elias Fouad
Saab committed attacks in Kuwait.79
46. The Pre-Trial Judge identifies the following six issues regarding the identity
of Mr Badreddine:
-- the Badreddine Defence fails to justify how the documents submitted by the
Prosecution in relation to the physical characteristics of Mr Badreddine are
not credible;
-- the attribution of the aliases of Safi Badr, Sami Issa and Elias Fouad
Saab to Mr Badreddine is crucial in order to determine his responsibility;
-- the statement of Witness PRH329 seems particularly significant in order
to establish that Mr Badreddine shared the same physical characteristics as
Messrs Sami Issa and Elias Fouad Saab;
-- the statement of Witness PRH273 seems particularly significant in order to
establish that Sami Issa was an alias used by Mr Badreddine;
-- the Prosecution seems to rely primarily on the statement of Witness PRH329
to support the argument that Mr Badreddine is a supporter of Hezbollah;
moreover, all the evidence that goes to prove that Mr Sami Issa is a supporter
of Hezbollah is only relevant if it is demonstrated that that name was one of
the aliases used by Mr Badreddine; and
-- the Badreddine Defence claims that Mr Elias Fouad Saab was not involved
in terrorist activities in Kuwait despite [REDACTED] produced by the
Prosecution in this regard.
79 Ibid.
273
3.
Mr Oneissi

47. The Prosecution provides two types of information regarding Mr Oneissi:
biographical data, and information relating to his religious beliefs and political
affiliation.80
48. With regard to the biographical data, the Prosecution states that Mr Oneissi
was born on 11 February 1974 in Beirut, Lebanon, and that he is the son of Mr
Hassan Oneissi (also known under the name of Hassan Issa) and Mrs Fatima
Darwish. Mr Oneissi is a Lebanese citizen with civil registration number 7/Shhour.
In support of these allegations, the Prosecution produces the identity card of Mr
Oneissi, which is to be filed as evidence by Witness PRH468.81 It also relies on Mr
Oneissis birth certificate, as well as birth, marriage and death certificates of members
of his family.82 The Prosecution further draws on copies of judicial decisions issued
by a civil court in Jouaiya to claim that, until January 2004, Mr Oneissi was called
Mr Issa and that his name, as well as that of his children, changed on that date.83
With regard to the political affiliations of Mr Oneissi, the Prosecution claims that he
is a supporter of Hezbollah and provides as proof a speech made by Mr Nasrallah,
the Secretary General of Hezbollah, during which he claims that the Accused were
brothers in resistance.84 Lastly, it relies on Mr Oneissis birth certificate to claim
that he is a Shiite.85
49. The Oneissi Defence does not adopt a position specifically on the biographical,
political and religious information cited by the Prosecution.86 It challenges in general

81 R91-300068.
82 R91-300006.
83 R91-300007.
84 R91-300056 p. 60223025.
85 R91-300006.
274
the factual and legal allegations contained in the Prosecutions Brief, arguing that
they cannot be proved beyond reasonable doubt.87
The Pre-Trial Judge identifies the following two issues regarding the identity of Mr
Oneissi:
-- with the exception of Mr Oneissis identity card and birth certificate, the
other evidence put forward by the Prosecution does not directly concern the
accused, but members of his family; and
-- with regard to the political affiliations of Mr Oneissi, the Prosecution relies on
a general statement made during a press conference held after the indictment
of the Accused and which does not specifically mention Mr Oneissi by name.
4.
Mr Sabra

50. The Prosecution provides two types of information regarding the identity of
Mr Sabra: biographical data, and evidence relating to his religious convictions and
political affiliations.88
51. With regard to the biographical data, relying on a copy of the official civil
register, the Prosecution states that Mr Sabra was born on 15 October 1976 in Beirut,
Lebanon, and that he is the son of Mr Hassan Sabradi Tahan and Mrs Leila Saleh.89
Mr Sabra is a Lebanese citizen and his civil registration is 1339/Zqaq Al-Blat.90 With
regard to Mr Sabras religious and political affiliations, the Prosecution claims that
he is a Shiite Muslim and a supporter of Hezbollah.91 It relies in this respect on:
87 Oneissi Brief, paras 19 and 45.
89 Prosecutions Brief, para. 18; R91-300006, p. 60210589.
90 R91-300006, p. 60210589.
275
(i) the transcript of an interview with [REDACTED] Witness PRH024 and the
related [REDACTED] notes;92 (ii) the transcript of an interview with [REDACTED]
Witness PRH106 and the related [REDACTED] notes;93 and (iii) the statement
of [REDACTED] Witness PRH106.94 Furthermore, the civil register mentions that
he is a Shiite Muslim.95
52. The Sabra Defence states that it does not intend to challenge either the age or
the birthplace of Mr Sabra.96 It is of the opinion, however, that there is no credible
evidence concerning the address attributed to Mr Sabra in the Indictment.97 The
Sabra Defence does not explicitly mention the information relating to the religious
affiliation of Mr Sabra.98 However, it does contest the allegations relating to his
political affiliations.99 It notes in this regard that the Pre-Trial Judge has not confirmed
the references made to Hezbollah in the decision of 28 June 2011 confirming the
Indictment of 10 June 2011100 and that the Prosecution withdrew them at the time
of the third amendment to the Indictment.101 According to the Sabra Defence, those
references, which do not rely on evidence established beyond reasonable doubt, do
not therefore form part of the Prosecution case.102
53. The Pre-Trial Judge identifies the following two issues regarding the identity
of Mr Sabra:
92 R91-800969.
93 R91-800972.
94 R91-800966.
95 R91-300006, p. 60210589. The Pre-Trial Judge notes that this exhibit is not linked to a witness.
96 Sabra Brief, para. 5.
97 Ibid.
99 Id., paras 25-27.
100 Id., para. 25.
101 Ibid.
102 Id., para. 27.
276
-- the Prosecution does make reference to the fact that the accused is a supporter
of Hezbollah not only in the Indictment,103 but also in its Brief.104 However,
the Brief only provides a short summary of the personal data relating to Mr
Sabra.105 For example, the Prosecution does not provide any information
relating to his employment history or any specific details on his links to
Hezbollah, as it did however for Mr Badreddine; and
-- to conclude that Mr Sabra is a Shiite Muslim and a supporter of Hezbollah,106
the Prosecution relies on three witnesses who all state that they did not
maintain close relations with him. Witness PRH024 [REDACTED]107
[REDACTED].108 Witness PRH106 states for his part that Mr Sabra is linked
to Hezbollah, but does not know in what way.109 He does not provide any
detail in this respect. Witness PRH079 claims that Mr Sabra is pro-Hezbollah
[REDACTED].110 That witness adds that it is not easy to obtain detailed
information on individuals who are members of Hezbollah.111
C.
Description of the phone networks and the attribution of the phones

1. Introduction
54. This section deals with the issue of the various phone networks involved in
the preparation and execution of the attack carried out against Mr Hariri (2) and the
difficulties related to the attribution of the phones to the Accused (3).
103 Indictment, para. 49.

104 Prosecutions Brief, paras 10, 16, 17 and 18.
105 Id., para. 18.
106 Ibid.
107 R91-800969.
108 Ibid.
109 R91-800966.
110 R91-800972.
111 Ibid.
277
2.
The phone networks
55. By way of introduction, it should be pointed out that the phone networks are
links that the Prosecution has established based on similar characteristics between
various mobile phones (activation periods, locations and times of use, modes of
communication, etc.). Having established the existence of the networks, the
Prosecution has drawn conclusions enabling it to identify the phone numbers of
individuals who could be involved in the attack.
56. The Prosecution alleges that the Accused, together with others, used mobile
phones, grouped together in four different networks, to perpetrate and execute the
attack against Mr Hariri. For ease of presentation, the Prosecution has assigned
colours to the four phone networks, namely:112 Red, Green, Blue and Yellow.113
According to the Prosecution, those phone networks shared two common features:
firstly, they were used to carry out specific activities linked to the attack and, secondly,
the vast majority of the calls coming from the phones in those networks were made
to other phones belonging to the same network as part of those activities.114 To those
four phone networks, a fifth group of phones should be added, consisting of Purple
phones, personal mobile phones (PMPs) and sequential mobile phones (SMPs).
PMPs are phones which do not belong to a group or to a network115 which were used
personally by individuals involved in the case, over a long period of time, to contact
a number of recipients, notably by sending text messages.116 SMPs are phones which
were used successively with different phone lines, which means that each phone was
used over several weeks or months, and then replaced by another one.
57. With regard to the Red Network, the Prosecution claims that it consisted of
eight phones which communicated almost exclusively with each other during the
113 Prosecutions Brief, para. 21; R91-200273.
115 ERN-60196228-60196753.
116 R91- 801452.
278
preparation period and execution of the attack.117 Furthermore, the Prosecution

points out that their users did not use Short Message Service (SMS).118 In addition,
still according to the Prosecution, those phones were activated on 4 January 2005
and operated from 14 January 2005 until 14 February 2005, two minutes before the
attack.119
58. To support these allegations, the Prosecution relies on two reports
[REDACTED] expert witness PRH147, [REDACTED] entitled Network
Analysis Report: Red, Green, Blue and Yellow Phones (the Network Analysis
Report)120 and Communications Evidence Concerning the Assassination of Rafik
Hariri: Chronology Report (the Chronology Report).121 The first describes in
detail how the four phone networks involved in the attack functioned.122 The second
one instead provides a detailed chronology of the relevant phone activity on those
networks from 13 October 2004 to 16 February 2005. That analysis is based on
sequential call tables, (known in English as Call Sequence Tables) (CST), as
well as other reports and investigators notes.123 The CST provide data relating to a
phone call including, in particular, the call number, the destination number, the date
and time of the call, its duration and the cellular antennae that relayed it.124
59. Furthermore, the Prosecution relies on the Network Analysis Report to
conclude that: (i) the phones belonging to the Red Network were activated on
4 January 2005, within 15 minutes of each other, in the Tripoli area;125 (ii) their
accounts were topped up with additional credit within a 45 minute period in the
117 Prosecutions Brief, para. 23; R91-200273, p. 41, paras 158-160.

119 Ibid.
120 R91-200273, p. 39, paras 151-156.
121 R91-200334, p. 156, paras 464 and 978-980.
122 R91-200273.
123 R91-200334, pp. 17-20.
124 ERN-60196228-60196753, p. 43.
125 R91-200273, p. 39, para. 152.
279
Tripoli area on 2 February 2005;126 (iii) the users of the eight phones belonging to
the Red Network exchanged handsets;127 and (iv) Mr Ayyash and the other members
of the execution team for the attack used six of the phones belonging to the Red
Network to communicate while preparing and carrying out the attack.128 Lastly, the
Prosecution states that the acquisition of the phones belonging to the Red Network
was effected by means of fraudulent identification documents. To arrive at this
conclusion, the Prosecution relies on the report by [REDACTED] Witness PRH528,
[REDACTED] entitled Acquisition of SIM Cards Report (the Acquisition of
SIM Cards Report) (Subscriber Identity Module to a phone number),129 which itself
is based on interviews with witnesses and on fraudulent documents used at the time
the phones were acquired.130
60. With regard to the Green phone network, the Prosecution claims that this
consisted of three phones which were used from at least 13 October 2004 until 14
February 2005 approximately one hour before the attack and which formed
part of a group of 18 Green phones (deactivated in August 2005).131 According to
the Prosecution, from 13 October 2004, the users of these phones communicated
exclusively with each other and had no SMS use.132 These claims derive from the
Network Analysis Report, which is based on the statement of [REDACTED]
Witness PRH064, [REDACTED] the analysis of the CST, the Acquisition of SIM
Cards Report, and the report by [REDACTED] Witness PRH377, [REDACTED]
entitled Examination of Red and Green Network Handset Usage Introduction.133
The Prosecution further states that Mr Badreddine was in contact with Mr Ayyash
126 R91-200273, p. 39, para. 153.

127 R91-200273, p. 46, paras 176 and 180.
128 R91-200273.
129 R91-801461, p. 3, para.10.
130 R91-801461, pp. 4-10.
131 R91-200273, pp. 72-73.
132 Prosecutions Brief, footnote 45; R91-200273, p. 73, para. 340; p. 76, para. 361; p. 78, para. 377; p. 80, para.
394.
133 R91-200273, pp. 72-75.
280
and Mr Merhi134 using the Green Network to prepare and carry out the attack, as
indicated in the Chronology Report,135 the reports by [REDACTED] expert witness
PRH230, [REDACTED] entitled Evidence of Telephone Attribution Mustafa
Amine Badreddine136 and Indictment Report Attribution of Phone Numbers to
Hassan Habib Merhi,137 in addition to a statement by [REDACTED] Witness
PRH435, an expert witness.138 Lastly, the Prosecution notes that the phones belonging
to the Green Network were purchased by means of the fraudulent use of identity
documents.139 To arrive at this conclusion, the Prosecution relies on the Acquisition
of SIM Cards Report,140 which in turn is based on interviews with witnesses and on
fraudulent documents used at the time of purchasing the phones.141
61. With regard to the Blue phone network, the Prosecution claims that it consisted
of 18 phones used between 18 October 2004 and 1 October 2005. The Prosecution
relies on the Network Analysis Report in order to conclude that: (i) the users of
those phones communicated exclusively with each other and did not send or receive
almost any texts; (ii) Mr Ayyash and the other members of the team responsible for
carrying out the attack used six phones belonging to this network; and (iii) handsets
were exchanged between the users of the phones in the Blue Network and the users
of the phones belonging to the Yellow Network.142 Moreover, the Prosecution relies
on the Chronology Report to claim that 15 phones belonging to the Blue Network
were used for the preparations for the attack, including the surveillance of Mr Hariri
between 18 October 2004 and 14 February 2005.143 Lastly, based on the Acquisition
134 The Prosecution identified Mr Merhi as being involved in the attack and he was indicted on 31 July 2013.
135 R91-200334.
136 R91-801452, p. 264.
137 ERN: D0327911-D0328017, pp. 48-72, paras 114-192.
138 ERN: D0327905-D0327910.
139 R91-801461, pp. 25-36.
140 Ibid.
141 Ibid.
142 R91-200273.
143 Prosecutions Brief, paras 27-28; R91-200334.
281
of SIM Cards Report, the Prosecution alleges that it was not possible to identify any
of the purported subscribers to the Blue Network phones.144
62. With regard to the Yellow phone network, the Prosecution claims that it
consisted of 18 phones put into service between 1999 and 2003 and which were
active until at least 7 January 2005. According to the Prosecution, of those 18 phones,
13 were used between 1 September 2004 and 7 January 2005.145 To arrive at this
conclusion, the Prosecution relies on the Network Analysis Report.146 Furthermore,
the Prosecution bases itself on the Chronology Report to conclude that Mr Ayyash
and three members of the team responsible for carrying out the attack used four of the
phones from the Yellow Network in the course of the preparations for the attack.147
The Prosecution also relies on the Network Analysis Report to assert that: (i) the
users of those four Yellow phones communicated almost exclusively with each other
and did not send or receive hardly any texts;148 and (ii) the users of certain phones
in this network used handsets which were also used by users of phones belonging
to the Blue Network and two of the PMPs belonging to Mr Ayyash.149 In addition,
relying on the report by [REDACTED] entitled Evidence of Telephone Attribution
Salim Jamil Ayyash, the Prosecution submits that one of the phone numbers from
the Yellow Network subsequently became one of the PMPs of Mr Ayyash.150 Lastly,
based on the Acquisition of SIM Cards Report, the Prosecution alleges that it was not
possible to identify any of the purported subscribers to the Blue Network phones.151
63. With regard to the Purple phones, the Prosecution claims that it consisted of a
group of three PMPs which were used from at least January 2003 until 16 February
144 Prosecutions Brief, para. 28; R91-801461, pp. 10-25.

146 Ibid.
149 Prosecutions Brief, para. 30; R91-200273, p. 149.
150 Prosecutions Brief, para. 30; R91-801194, p. 76, paras 182, 185-186.
282
2005.152 According to the Prosecution, Messrs Oneissi, Sabra and Merhi used these
phones to communicate with each other at the time of the false claim of responsibility.153
To support these assertions, the Prosecution relies on the Chronology Report154 and
on the reports by [REDACTED] entitled Evidence of Telephone Attribution
Assad Hassan Sabra and Evidence of Telephone Attribution Hussein Hassan
Oneissi.155 Those reports are based on data extracted from the CST, testimonies and
documents. Furthermore, according to the Prosecution, the Acquisition of SIM Cards
Report shows that that the individuals registered as the subscribers corresponding to
Purple phone 095 and Purple 231 did not purchase either of those phones.156
64. With regard to the PMPs and SMPs, the Prosecution notes that in addition
to Messrs Oneissi, Sabra and Merhi, whose Purple phones were PMPs, Messrs
Badreddine and Ayyash also used PMPs as well as their network phones.157
Furthermore, to support these conclusions that Mr Ayyash used PMPs to contact
Mr Merhi, the Prosecution relies on the Chronology Report, the reports by
[REDACTED] entitled Evidence of Telephone Attribution Salim Jamil Ayyash158
and Indictment Report Attribution of Phone Numbers to Hassan Habib Merhi.159
That report was compiled using information from phone data, witness statements,
official documents, information from Hajj lists, and investigators notes, in addition
to other documents. Lastly, the Prosecution claims that Mr Badreddine also used
PMPs to contact his family and friends, as well as for professional purposes.160 He
used nine SMPs between January 2003 and August 2006.161 Those allegations are
based on the report by [REDACTED] entitled Evidence of Telephone Attribution
153 Id., para. 31.
154 R91-200334, pp. 68-367.
155 R91-801568, p. 3.
158 R91-801194.
159 ERN D0327911-D0328017, para. 43.
161 Ibid.
283
Mustafa Amine Badreddine,162 which relies on various contacts between the phone
numbers attributed to Mr Badreddine and to persons [REDACTED], investigators
notes, witness statements and other documents.163
65. For its part, the Defence contests in general the Prosecution allegations
relating to the existence of the phone networks.164 As such, the Ayyash Defence
refutes the fact that he used phones belonging to one of these purported groups.165
The Oneissi Defence is of the opinion that none of the allegations based on the phone
data and the analysis thereof is established beyond reasonable doubt.166 It adds that,
as a consequence, the existence of the group of three Purple phones is contested,
as is the attribution of one of them to Mr Oneissi, in particular on the dates and at
the locations alleged by the Prosecution.167 Based on the same reasoning, the Sabra
Defence contests all the allegations relating to the existence of the Purple phones
or a Purple Network.168 Indeed, in its view, those allegations are disputed on the
grounds that they are unverified and incapable of proof beyond reasonable doubt, let
alone of being deemed the only reasonable conclusion available.169 With regard to
the Badreddine Defence, it challenges all the evidence presented by the Prosecution
relating to the networks, and to their supposed involvement in the preparation and
perpetration of the attack.170
66. Firstly, the identification of the various phone networks that might be
involved in the preparation and perpetration of the attack and composed of phones
162 R91-801452.
163 R91-801452, p. 12, paras 22-23, pp. 22-24, para. 64 (b).
164 Ayyash Brief, para. 19; Badreddine Brief, para. 15 (vii) and confidential Annex A to the Badreddine Brief, pp.35, paras 21-30; Oneissi Brief, paras 22-24; Sabra Brief, paras 1 and 7.
166 Oneissi Brief, para. 23.
167 Oneissi Brief, para. 24
169 Ibid.
170 Badreddine Brief, confidential Annex A.
284
communicating almost exclusively within each network is the cornerstone of the

Prosecutions theory concluding that Messrs Ayyash, Badreddine, Oneissi and Sabra
bear responsibility for the attack. The evidence presented in support of both the
existence and the analysis of those phone networks and the resulting debates are
therefore of paramount importance to the outcome of the proceedings on the merits.
In this regard, the Network Analysis Report, the Chronology Report, and the various
reports by [REDACTED] relating to attribution are particularly relevant.
67. The Defence systematically rejects the existence of phone networks and denies
the involvement of the Accused in those networks, considering that the evidence has
not been proven beyond reasonable doubt. With the exception of Counsel for the
Defence for Mr Badreddine, Counsel for the Defence do not identify the points in
the Indictment that they rebut. Moreover, not one Counsel for the Defence sets forth
in detail the reasons that would justify its position. Admittedly, at this stage of the
proceedings, the Defence remains at liberty not to reveal the strategy it intends to
adopt during the proceedings on the merits. That guarded approach however is not
conducive to facilitating the Pre-Trial Judges assessment task which, as pointed
out previously, depends on the submissions and the position of the Parties. Against
this background, it can be difficult to identify the specific points in dispute between
the Prosecution and the Defence and the issues at stake raised by those points, aside
from determining the general challenges mentioned above.
3.
Attribution of the phones to the Accused
68. By way of introduction, it should be mentioned that the attribution of one

mobile phone to an individual consists in identifying the user of that phone. This
section deals with the methodology used for the attribution of the phones (a),
general considerations relating to the Accused (b), and the main issues raised by the
attribution of the phones to the Accused (c).
285
a.
Methodology used

69. The Prosecutions Brief relies on the report by [REDACTED] entitled
Evidence of Telephone Attribution Mustafa Amine Badreddine171 to explain
how the various phones identified were attributed to the Accused. To do this, the
Prosecution refers to the CST and to different techniques of phone attribution, which
in turn are based on testimonies, documentary evidence, the analysis of SMS use
and the frequently-called numbers, as well as the technique known as co-location
positioning (in English co-location). That technique is explained below.172
Furthermore, the aforementioned report by [REDACTED] provides information
concerning the mobile phone users locations and movements based on the CST
relating to the use of those phones.173
70. Counsel for the Defence for Messrs Ayyash, Oneissi and Sabra contest in
general the Prosecutions allegations without referring to the techniques used by
them. For its part, the Badreddine Defence refutes the validity of all the analysis
techniques used by the Prosecution.174
71. The Pre-Trial Judge underlines the importance of the technical aspects relating
to telephony in the context of this case and the need for the judges to have a thorough
understanding of those aspects. In this regard, he reiterates the invitation addressed to
the Trial Chamber to consider the possibility of appointing an expert with specialist
knowledge who could advise it on technical issues relating to telephony in the Order
of 12 August 2013 on the transfer of part of the case file to the Trial Chamber in
accordance with Rule 95 of the Rules.175
171 R91-801452.
172 Cf. para. 72.
173 R91-800173.
174 Badreddine Brief, confidential Annex A, p. 5, paras 34-36.
175 Order relating to the Transfer of Part of the Case File to the Trial Chamber Pursuant to Rule 95 of the Rules, 12
August 2013, para. 24.
286
72. The report by [REDACTED] entitled Evidence of Telephone Attribution

Mustafa Amine Badreddine on which the Prosecutions Brief relies to describe
the attribution techniques used provides no details on those techniques. They
are examined in the report by Witness PRH435, [REDACTED] entitled An
Introduction to Cell Site Analysis as Applied to GSM Networks.176 It follows from
this that the important particulars relating to the attribution techniques, cited in
support of paragraphs 34, 35 and 36 of the Prosecutions Brief, do not appear as such
in the report of [REDACTED].177
73. The report of [REDACTED] states that the term co-location refers to two
(or more) mobile phones [TRANSLATION] whose cell site analysis shows that
they are situated in the same area and/or are travelling together, namely they travel
over the same route over the same time period, such that the users of the mobile
phones could be together. According to that witness, it can also be demonstrated
that those phones are used either by two different persons travelling together, or by a
single person.178 [REDACTED] defines the cell site analysis as being the examination
[TRANSLATION] of the call data records relating to a particular mobile phone,
on a specific date and time, in order to obtain an overview of the location and
movements of the mobile phone in question.179 He notes, in this respect, that this
analysis [TRANSLATION] is based essentially on a visual presentation of the call
data and that that operation involves the mapping of the cell site/cell usage by the
mobile phones and the number of times where they were used by the mobile phone
or phones.180
176 R91-801452, para. 3, p. 7 which refers to the report by [REDACTED].

177 R91-800173.
178 R91-800173, p. 142, para. 10.4.9.1.1.1.
179 R91-800173, p. 108, para. 10.1.1.1.1.1.
180 R91-800173, p. 11, para. 10.3.2.1.1.1.
287
b.
General considerations relating to the Accused

74. The Prosecutions Brief is based on the Network Analysis Report to establish
that Messrs Ayyash and Badreddine together with others possessed and used several
phones belonging to the various networks described in the previous section, as well
as PMPs.181 The Prosecution subsequently submits, in table form, a compilation of
the phones attributed to different persons including the four Accused and Mr Merhi
during a relevant period, comprising all the relevant phones belonging to the
Yellow, Blue, Green and Red Networks, the Purple phones and the PMPs and the
SMPs.
75. That table, which also appears in the Indictment and which does not provide
specific reference182 is based on a large volume of evidence: the Network Analysis
Report, the reports by [REDACTED] entitled Evidence of Telephone Attribution
Salim Jamil Ayyash,183 Evidence of Telephone Attribution Mustafa Amine
Badreddine,184 Evidence of Telephone Attribution Assad Hassan Sabra185 and
Evidence of Telephone Attribution Hussein Hassan Oneissi.186
76. As previously mentioned, the Defence contests the existence of the networks
or the phone groups. The Oneissi Defence contests the existence of the group of three
Purple phones,187 the Badreddine Defence, the existence of all the phone networks,188
the Ayyash Defence, the fact that the phones operated within networks189 and the
181 R91-200273.
182 It refers to parts of reports which are sometimes around 10 pages in length.
183 R91-801194.
184 R91-801452.
185 R91-801568.
186 R91-801738.
188 Badreddine Brief, confidential Annex A, paras 21-30.
288
Sabra Defence, all the allegations relating to the Purple phones or to the group of
Purple phones.190
77.
The Pre-Trial Judge notes that:
-- the allegation that Messrs Ayyash and Badreddine together with other persons
had in their possession and used several phones belonging to different networks
and PMPs is not supported by the information appearing in the reference
made in the footnote of the Prosecutions Brief concerning that point.191 That
allegation therefore will have to be examined by the Trial Chamber in light of
the whole of the Prosecutions Brief and the supporting materials;
-- the assumptions relating to the attribution of the phones to the Accused
concerned presented in the Prosecutions Brief are based on a pyramidal
structure of information. In point of fact, the Network Analysis Report and
the reports by [REDACTED] rely themselves on a set of evidence, some of
which, in turn, is based on other materials; and
-- the relevant period of attribution is not the same for all the phones mentioned
in the summary table on pages 18 and 19 of the Prosecutions Brief.
c.
The individual attributions

78. The Prosecution attributes four PMPs to Mr Ayyash the PMPs 165, 935,
091 and 170 and four network phones Yellow 294, Blue 233, Green 300 and
Red741. The Prosecution points out that the PMPs were attributed to him based
on testimonies, documentary evidence, cell site analysis, characteristics of the
phone contact which took place, and the technique of co-location. The latter
technique was used to attribute some of the network phones to him. To support those
191 R91-200273, p. 5, para. 9 referring to para. 37 of the Prosecutions Brief.
289
claims, the Prosecution refers to the report by [REDACTED] entitled Evidence of

Telephone Attribution Salim Jamil Ayyash192 and to the report by [REDACTED]
entitled Demonstration of Single Person Use of Multiple Mobile Phones Using
Cell Site Analysis Suspect 1.193 For its part, the Ayyash Defence considers that the
Prosecution has not proven beyond reasonable doubt that Mr Ayyash used any of the
phones belonging to the aforementioned five groups194 nor the eight phones which
have been attributed to him.195
79. The Prosecution attributes to Mr Badreddine and his alleged pseudonyms
Sami Issa and Safi Badr two PMPs PMPs 663 and 354 , nine SMPs
including the SMPs 128 and 944 and one Green phone Green 023. To support
these allegations, the Prosecution essentially relies on the report by [REDACTED]
entitled Evidence of Telephone Attribution Mustafa Amine Badreddine.196 That
report is based on call data records, witness statements, analysis of SMS content,
analysis of cell site use, persons contacted by those phones, documentary evidence,
as well as material resulting from the analysis of the co-location of two or more
phones. [REDACTED] points out that this report should be read in conjunction with
that of [REDACTED], entitled, Cell Site Analysis as Applied to GSM Networks.197
The Prosecution also relies on the report by [REDACTED] entitled Demonstration
of Single Person Use of Multiple Mobile Phones Using Cell Site Analysis Suspect
2198 in relation to the four phones attributed to Mr Badreddine. The analysis of the
SMS messages relevant to Mr Badreddine is presented by [REDACTED] witness
PRH236, [REDACTED].199 The Prosecution also relies on specific documentary
evidence, including information relating to a specific telephone number (01833354)
192 R91-801194.
193 R91-802651.
195 Id., para. 25.
196 R91-801452.
197 R91-800173.
198 R91-802650.
199 R91-801016.
290
belonging to the [REDACTED] phone company,200 enrolment documents for the

American University in Beirut for Sami Issa (as previously mentioned, one of Mr
Badreddines alleged pseudonyms),201 and extracts relating to the judicial file of Elias
Fouab (another alleged pseudonym of Mr Badreddine) who was allegedly convicted
in Kuwait in 1983 for terrorist offences, as mentioned previously.202 However, the
Badreddine Defence contests the attribution of the 12phones to Mr Badreddine, as
well as all the attributions in connection with the other Accused.203 The Badreddine
Defence also contests the fact that Messrs Badreddine, Issa and Badr are the same
person.204
80. The Prosecution attributes the phone Purple 095 to Mr Oneissi. To do so, it
relies on testimonies, documentary evidence, phone contact characteristics (several
family members and known associates as well as two other Purple phone users)
and cell site analysis. In support of these claims, the Prosecution relies on a report
by [REDACTED] entitled Evidence of Telephone Attribution Hussein Hassan
Oneissi.205 For its part, the Oneissi Defence considers that none of the allegations
relating to the existence of a group of three Purple phones nor the attribution of the
Purple phone 095 to Mr Oneissi has been established beyond reasonable doubt.206
81. The Prosecution attributes phone Purple 018 to Mr Sabra on the basis of the
SMS and cell site analysis as well as the characteristics of its phone contacts. To
support these claims, the Prosecution refers to the report by [REDACTED] entitled
Evidence of Telephone Attribution Assad Hassan Sabra.207 The Sabra Defence
does not comment on the matter of the attribution of the phones to Mr Sabra.
200 R91-804366.
201 R91-801749.
202 R91-300052.
203 Badreddine Brief, para. 15 (vi).
204 Id., Confidential Annex A, pp. 2, 5, 6, paras 11-15 and 39-46.
205 R91-801738.
206 Oneissi Brief, paras 21 to 24.
207 R91-801568.
291
82. The Prosecution attributes to Mr Merhi phones Green 071 and Purple 231 and
to the family of Mr Merhi the PMP 3686091. It states that the attribution of the Green
071 phone to Mr Merhi is based on its geographical profile and the technique of colocation. As regards the phone Purple 231, its attribution is based on its geographical
profile, the characteristics of its phone contacts and the technique of co-location.
In support of these claims, the Prosecution refers to the report by [REDACTED]
entitled Indictment Report Attribution of Phone numbers to Hassan Habib Merhi208
and the note by [REDACTED] entitled Single Person Use of 2 Mobiles-Suspect
3.209 The Prosecution also relies on a number of call data records for the Green
071210 and Purple 231211 phones and the PMP 3686091,212 which were examined by
[REDACTED] and included in support of the Indictment report.213 In addition, in
order to attribute the PMP3686091 to Mr Merhi, the Prosecution relies on particular
documentary evidence and SMS analysis.
Observations of the Pre-Trial Judge
83. The Pre-Trial Judge makes the following four observations with respect to the
aforementioned questions of individual attribution:
-- the various reports mentioned previously have neither been examined nor
taken into account during review of the different indictments because they
were not produced as exhibits;
-- the question of the attribution of the phones to the Accused is fundamental,
as it forms the link between them and the phones, which, according to the
Prosecution, were used by those responsible for the criminal activities relating
to the attack;
208 ERN D0327911-D0328017.

209 ERN D0327905-D0327910.
210 R91-804322, D0317148-D0317156.
211 R91-804318, D0317027-D0317147.
212 ERN D0317492-D0317832.
213 ERN D0327911-D0328017.
292
-- that attribution does not rely on documentary evidence or on direct testimony,

but on cross-analysis of a package of evidence and a process of logical
deduction which the Oneissi Defence refers to as circumstantial evidence.214
That analysis is based on certain raw data, namely the call data records
provided by the telephone companies which were operating during the time
periods relevant to the attack. That data was analysed by the Prosecution in
the light of other evidentiary materials witness statements, documents or
analysis of phone co-locations and of a review of the cell site coverage. That
review notably allowed the Prosecution to put forward the theory that a phone
was used by a particular person during a given period of time; and
-- the following points merit particular attention by the Trial Chamber: (i) the
methodology employed by the Prosecution to analyse the telephone data,
including the harvesting of the call data records, the co-location and the cell
site coverage; (ii) the evidentiary materials gathered to attribute the various
phones to the Accused, in particular the reports by [REDACTED] entitled
Evidence of Telephone Attribution Salim Jamil Ayyash,215 Evidence
of Telephone Attribution Mustafa Amine Badreddine,216 Evidence of
Telephone Attribution Hussein Hassan Oneissi,217 Evidence of Telephone
Attribution Assad Hassan Sabra,218 Indictment Report Attribution of Phone
numbers to Hassan Habib Merhi,219 as well as the reports by [REDACTED]
entitled Cell Site Analysis as Applied to GSM Networks,220 Demonstration
of Single Person Use of Multiple Mobile Phones Using Cell Site Analysis
Suspect 1,221 Demonstration of Single Person Use of Multiple Mobile

215 R91-801194.
216 R91-801452.
217 R91-801738.
218 R91-801568.
219 ERN D0327911-D0328017.
220 R91-800173.
221 R91-802651.
293
Phones Using Cell Site Analysis Suspect 2222 and the note by [REDACTED]
entitled Single Person Use of 2 Mobiles-Suspect3.223
D.
Activities prior to the attack

1. Introduction
84. This section, relating to the activities before the attack, deals with the
observation and surveillance activities (2), the false claim of responsibility (3) and
the purchase of the vehicle used to carry out the attack (4).
85. In general, the Prosecution alleges that Mr Badreddine monitored and, with
Mr Ayyash, coordinated the observation of the key locations, the surveillance of Mr
Hariris movements, and the purchase of the vehicle which was used as a vehicleborne improvised explosive device to perpetrate the attack.224 In addition, according
to the Prosecution, Messrs Oneissi and Sabra participated in the recruitment of Mr
Abu Adass, who was allegedly used to make a false claim of responsibility for the
attack.225 Mr Oneissi allegedly also participated in organising the disappearance of
Mr Abu Adass.226 Lastly, the Prosecution submits that Mr Badreddine monitored
and, together with Mr Merhi, coordinated the preparations for the false claim of
responsibility.227
86. In support of these claims, and in particular those regarding the telephone
communications between the persons implicated in the preparation of the attack, the
Prosecution draws in the main on the Chronology Report.228 Moreover, in order to
222 R91-802650.
223 ERN D0327905-D0327910.
225 Ibid.
226 Ibid.
227 Ibid.
228 R91-200334: pp. 23-43; pp. 42-48, paras77-98; pp. 59-66, paras128-158; pp. 98-104, paras260-280; pp.
124-130, paras351-375; pp.150-151, paras442-451; pp. 156-160, paras263-475; pp. 161-164, paras481-506;
paras512, 514 and 515; pp. 167-168, paras516-523; pp. 169-171, paras524-536; pp. 172-173, paras537-545;
pp. 174-177, paras546-555; p. 183, paras577-584; pp. 189-193, paras595-606; pp. 203-213, paras633-663;
294
determine the places and times where Mr Hariri was during the period in question, the
Prosecution relies mainly on the statements by [REDACTED] witness PRH066
[REDACTED].
87. Counsel for the Defence of Messrs Ayyash,229 Badreddine,230 Oneissi231 and
Sabra232 challenge, in general, the Prosecutions allegations regarding the activities
prior to the attack and the Accuseds involvement in them.
2.
Observation and surveillance activities

88. According to the Prosecution, from 20 October 2004 to 14 February 2005, Mr
Ayyash, together with several unidentified persons, carried out extensive observation
of key locations in preparation for the attack, such as Mr Hariris residences,
Parliament, and the site of the attack itself.233 According to the Prosecution, Mr
Ayyash, together with several unidentified persons, also conducted surveillance of
Mr Hariris movements.234 To do so, Mr Ayyash, together with several unidentified
persons, communicated on the Blue Network phones and, as of 15 January 2005, on
the Red Network phones.235 In this respect, the Prosecution notes at least 50 days
of surveillance between at the latest 20 October 2004 the date Mr Hariri resigned
as Prime Minister and the day of the attack.236 According to the Prosecution, that
surveillance enabled Messrs Badreddine and Ayyash, together with other persons,
to determine the most suitable location and method for the attack. The Prosecution
pp. 217-221, paras679-690; pp. 222-228, paras692-714; pp. 251-266, paras772-808; pp. 297-300, paras809829; and, generally, pp. 59-167and pp. 113-346.
229 Ayyash Brief, p. 4-7.
230 Badreddine Brief, p. 4.
231 Oneissi Brief, pp. 10-13.
232 Sabra Brief, p. 9.
234 Ibid.
235 Ibid.
236 Ibid.
295
also submits that Mr Ayyash was in frequent contact with Mr Badreddine throughout
the whole observation period, namely: between 1January and 14February 2005, Mr
Badreddine using the phone Green 023 was in contact 59 times with Mr Ayyash
who was using the phone Green 300.237 Lastly, the Prosecution states that during that
same period, Mr Ayyash using PMPs was also in contact with Mr Merhi who
was using the phone Purple 231.238
89. In its Brief, the Prosecution sets out in detail the almost daily observation and
surveillance activities from 20 October 2004 up to the day of the attack,239 which
bring it to the conclusion of premeditated intentional homicide on the part of Messrs
Ayyash and Badreddine.240
90. As mentioned previously, the Defence contests in general all the Prosecutions
allegations relating to the observation and surveillance activities that were allegedly
conducted by the Accused. More specifically, the Ayyash Defence considers that the
evidentiary materials provided by the Prosecution do not establish beyond reasonable
doubt that: (i) a team responsible for perpetrating the assassination of Mr Hariri
existed and that it was coordinated by Mr Ayyash;241 (ii)Messrs Badreddine and
Ayyash coordinated the observation and surveillance activities;242 (iii) Mr Ayyash
coordinated the preparation of the attack;243 and (iv) Mr Ayyash was in contact with
Mr Merhi regarding the preparation of the attack.244
237 Id., para. 65.

238 Id., para. 66.
239 Id., paras 67-103.
242 Id., para. 21.
243 Id., para. 23.
244 Id., para. 24.
296
91. The Badreddine Defence also contests the fact that Mr Badreddine could have
been implicated in the observation and surveillance activities245 and that he could
have played a role in the preparation of the attack.246
92. The Oneissi Defence, as pointed out previously, observes that the charges
brought against the Accused rely for the most part on circumstantial evidence247 and,
in particular, that the Prosecutor does not mention any of the alternative conclusions
which might be reasonably drawn from the evidence on which he intends to rely.248
93. Lastly, the Sabra Defence notes that the evidentiary materials submitted by the
Prosecution do not allow the conclusion to be drawn, beyond reasonable doubt, that
the allegations made by the Prosecution with regard to the complicity prior to the
perpetration of the attack are founded.249
94. The Pre-Trial Judge reiterates his previous observations made in relation to
the attribution of the phones. The Prosecution theory regarding the activities which
preceded the perpetration of the attack relies, for the most part, on circumstantial
evidence to support a process of logical deduction and inference. Thus, it is
only through a comprehensive overview of that evidence that an opinion on the
Prosecutions contentions relating to the various stages of the attack can be formed,
in particular with regard to the activities which led to its execution, as well as the
Defence challenges in that regard.
245 Badreddine Brief, para. 15 (iii).

246 Id., para. 15 (iv).
248 Id., para. 18 (c).
249 Sabra Brief, paras 13 to 15.
297
3.
Activities related to the false claim of responsibility

95. According to the Prosecution, at the same time as the monitoring and
surveillance activities for the perpetration of the attack, between 22 December 2004
and 17 January 2005, Messrs Oneissi and Sabra, together with Mr Merhi, recruited
an individual namely Mr Abu Adass who was to be used to make a false claim of
responsibility for the attack.250 This allegation is based mainly on the frequency of
the communications between the Purple phones attributed to those persons, namely
between Messrs Sabra and Merhi, Messrs Oneissi and Merhi, as well as between
Messrs Sabra and Oneissi.251 Thus, according to the Prosecution, Messrs Oneissi and
Sabra were in contact by their Purple phones 84 times between 12January 2003 and
16February 2005.252 Mr Sabra was in contact 212 times with Mr Merhi on the phone
Purple 231 between 26December 2002 and 14February 2005, and Mr Oneissi 194
times with Mr Merhi on the phone Purple 231 between 25June 2003 and 26January
2005.253 Lastly, still according to the Prosecution, between 4December 2003 and
6February 2005, Mr Merhi, using the phone Purple 231, was in contact 32 times
with Mr Ayyash using the PMPs 165, 935 and 091 and, in particular, seven times on
the PMP 091 between 23January 2005 and 6February 2005.254
96. The Prosecution states that Mr Abu Adass is a Sunni Muslim of Palestinian
origin who often attended the Arab University Mosque of Beirut. It was close to
his home.255 According to the Prosecution, Mr Abu Adass disappeared on 16
February 2005.256 It cites several points which, in its view, attest to the fact that his
disappearance was orchestrated by the Accused: [REDACTED].257
250 R91-200282, para.12.
252 Ibid.
253 Ibid.
254 Ibid.
255 Id., paras 116 and 124.
256 Id., para. 124.
257 Id., para. 117.
298
97. Moreover, the Prosecution alleges that on 22, 29, 30 and 31 December 2004, as
well as on 3 and 7January 2005, Mr Oneissi was in the vicinity of the Arab University
Mosque of Beirut.258 On two of those days, 22 December 2004 and 7 January 2005,
Mr Oneissi using the phone Purple 095 was in contact with Mr Merhi using the
phone Purple 231.259 Furthermore, on three of those days, 30 and 31 December 2004,
as well as 7January 2005, Mr Oneissi using the phone Purple 095 was in contact
with Mr Sabra using the phone Purple 018.260 In addition, the Prosecution points out
that according to the testimony of [REDACTED] witness PRH056 Mr Oneissi
introduced himself as Mohammed and met [REDACTED] at the mosque on the
pretext that he wanted to learn how to pray.261 The two men met several times over
the following days.262
98. The Prosecution also bases itself on the testimony of [REDACTED]263
witness PRH073 [REDACTED].264
99. The Prosecution also submits that, [REDACTED].265 Still according to the
Prosecution, on 16January 2005, Mr Abu Adass left home to meet Mr Oneissi and
has not been seen since.266 [REDACTED].267 [REDACTED].268
100. In addition, the Prosecution relies in particular on the Call Data Report269
to state that on 16 January 2005 the day Mr Abu Adass disappeared Messrs
258 Id., para. 118.

259 Ibid.
260 Ibid.
261 Id., para. 122.
262 Id., para. 123.
263 R91-100284, para. 76; R91-100329.
265 Id., para. 124.
266 Ibid.
267 R91-800075; R-91-800076; R91-800077.
269 R91-800075; R91-800076 and R91-800077.
299
Merhi and Badreddine were in contact five times between 06:19 and 19:00.270 The
Prosecution notes an anomaly in the use of the phones on that date. Indeed, apart
from one call by Mr Sabra at 00:03, none of the three Purple phones attributed to
Messrs Oneissi, Sabra and Merhi was used.271 Although it does not expressly state
such, the Prosecution implies that these three persons were together at that time and
therefore did not need to phone each other.
101. The Ayyash Defence272 and the Badreddine Defence273 contest that Mr
Ayyash and Mr Badreddine played any role in the false claim of responsibility and
communicated with other persons in that respect. The Oneissi Defence considers in
this regard that neither the presumed disappearance of Mr Abu Adass nor the alleged
involvement of Messrs Oneissi, Sabra and Merhi in this are established, and even
less that those are the only reasonable conclusions possible.274
102. Finally, the Sabra Defence submits that the allegations made regarding the
activities which occurred prior to the attack taking place have not been established
beyond reasonable doubt.275
103. The Pre-Trial Judge notes that:
-- the interviews with [REDACTED] are particularly important in deciding as
to his purported disappearance and the alleged roles of the Accused in the
preparations relating to the false claim of responsibility; and
-- the Prosecutions Brief does not provide any specific information as to the role
Mr Ayyash supposedly played in the preparations relating to the false claim
of responsibility, apart from the fact that he and Mr Badreddine coordinated
271 Ibid.
273 Badreddine Brief, para. 15 (iv).
274 Oneissi Brief, paras 33 and 34.
275 Sabra Brief, paras 13 to 15.
300
and monitored the observation and surveillance operations. Furthermore, the

Prosecution accuses Messrs Sabra and Merhi, as well as Mr Oneissi, of having
played a role in the recruitment of an individual to be used for their ends. The
Prosecution also observes that only Mr Oneissi is held responsible for having
participated in the actual disappearance of Mr Abu Adass.
4.
The purchase of the vehicle used to carry out the attack

104. The Prosecution alleges that, while the observation and surveillance operations
and the recruitment of Mr Abu Adass were at an advanced stage, Messrs Badreddine
and Ayyash took steps to select and purchase a vehicle to serve as an improvised
explosive device for the attack.276 Basing itself on the Chronology Report,277 the
Prosecution then concludes that, on 11 January 2005, Mr Ayyash went to Tripoli
where a vehicle, a Mitsubishi Canter van, was on show for sale.278 On that date, from
that town, Mr Ayyash called Mr Badreddine twice on the Green Network.279 That
same day, an unidentified user of the Blue Network who was in Tripoli referred to
by the pseudonym S8 called another user of that same network who was located
in South Beirut referred to by the pseudonym S6 who themselves contacted
Mr Ayyash who, in turn, contacted Mr Badreddine.280 In addition, also on 11January
2005, Mr Merhi called Mr Badreddine twice using the Green Network.281
105. According to the Prosecution, on 25 January 2005, while he was in Beirut,
Mr Ayyash was in contact three times with S6 who was in the Tripoli area, and
then he called Mr Badreddine.282 Then, S6 using the phone Blue 610 as well as
another unidentified person introducing themselves under false names, bought the
277 R91-200334, paras442 to 451, 481 to 506 and 577 to 584.
279 Id., para. 107.
280 Ibid.
281 Ibid.
282 Id., para. 108.
301
Mitsubishi Canter van.283 Fragments of that vehicle were found at the scene of the
attack.284 The Prosecution also alleges that, during the negotiations for the purchase
of that vehicle, S6 called Mr Ayyash.285 These circumstances lead the Prosecution
to conclude that the purchase of the Mitsubishi van demonstrates the intent to use
a large quantity of explosives, as well as the existence of an agreement between
Messrs Ayyash and Badreddine to carry out the attack.286
106. For their part, the Ayyash Defence287 and the Badreddine Defence288 contest
the fact that Messrs Ayyash and Badreddine coordinated or were involved in the
purchase of the aforementioned vehicle.
107. The Pre-Trial Judge makes the two following observations:
-- the activities surrounding the purchase of the vehicle are crucial in assessing
whether a predetermined conspiracy existed with a view to carrying out the
attack; and
-- the Pre-Trial Judge observes that, in order to prove that the Mitsubishi Canter
van was purchased on 25 January 2005, the Prosecution refers in its Brief to page
12 of a document referenced R91-200002 (ERN 60000510-60000511_D_EN)
entitled Information concerning the Mitsubishi Canter van [REDACTED].
However, that document does not contain the page 12 referred to above. That
page is in fact included in another exhibit referenced R91-200289 (ERN
60000486-60000676_D_EN). At first sight, it does not however allow the
conclusion to be drawn that this vehicle was indeed purchased on 25 January
2005 specifically, but between 17 and 26 January 2005.
283 Ibid.
285 Ibid.
286 Id., para. 111.
288 Badreddine Brief, para. 15 (iv).
302
E.
The attack
1. Introduction
108. This section deals with the manner in which the attack perpetrated against
Mr Hariri took place. To demonstrate the involvement of the Accused in it, the
Prosecution refers to various kinds of evidence, including telephone data, closedcircuit camera recordings and forensic analyses. The Defence in general refutes all
of the Prosecution allegations in this regard.
2.
How the attack unfolded

109. In order to come to the conclusion that the Accused bear responsibility for
the attack, the Prosecution bases itself essentially on the analysis of the following
elements: Mr Hariris movements, the use of the mobile phones by the members of
the team involved in the commission of the attack, closed-circuit camera recordings
and forensic expert reports.
110. With regard to Mr Hariris movements, the Prosecution refers mainly to three
witness statements witnesses PRH291, PRH076 and PRH009 to conclude
that: (i) the convoy was composed of six vehicles; (ii) in the first vehicle there
were four members of the close protection team from the Internal Security Forces
(ISF); (iii) Mr Hariris personal vehicle was armoured; (iv) Mr Hariris vehicle was
followed by two vehicles equipped with jamming devices;289 (v) those devices were
working on the day of the attack and had been turned on; and (vi) the operation of
the jamming devices had been checked two days before the attack.290 In addition, the
Prosecution cites the statement from witness PRH017 to assert that Mr Hariri was
at his residence, Quraitem Palace where he had been present at several meetings
before leaving for Parliament between 10:30 and 11:00.291 Mr Hariri appears to have
289 R91-602917, para.37.
291 Prosecutions Brief, para. 132; R91-200088, para.48.
303
arrived there at 10:54.292 One hour later, at around 11:54, Mr Hariri appears to have
left Parliament to go to the Caf Place de ltoile and meet [REDACTED].293 At
around 12:25, Mr Hariri left the caf to speak for five minutes with [REDACTED]
before going back inside the caf.294 According to the Prosecution, at 12:49 Mr Hariri
left the Caf Place de ltoile and returned to his armoured car295 to go back to
Quraitem Palace where he was expected for lunch. The convoy took the road passing
along the seafront.296 The jamming devices in the vehicles making up the convoy
were working when Mr Hariri left Parliament.297
111. In relation to the analysis of the telephone data, the Prosecution draws a
number of conclusions from the locations and times when a number of phone calls
were made in respect of the responsibility of Messrs Badreddine and Ayyash, as
well as of a number of Red Network users. The Prosecution states in particular that
Ayyash and the other members of the Assassination Team positioned themselves
in locations where they were able to track and observe Hariris convoy at Quraitem
Palace, Parliament, and his return as far as the area of the St. Georges Hotel, enabling
them to execute the attack.298 In order to do so, the Prosecution relies mainly on the
Chronology Report. In particular, it shows that the analysis of the telephone data
combined with Mr Hariris movements described in the preceding paragraphs
reveal that:
-- on the basis of the analysis of the data for the Blue Network phones, at 04:55
on 14February 2005, the Assassination Team began operating in South Beirut,
then moved to the vicinity of Parliament and the location of the attack;299
292 Prosecutions Brief, para. 134; R91-200334, para. 962 (to be read in conjunction with paras 15 and 936 and
table160)
294 Prosecutions Brief, para. 139; R91-200061, para.21; R91-200087, para.21.
296 Prosecutions Brief, para. 140; R91-200088, para.62.
297 Prosecutions Brief, para. 133; R91-400177, p.4.
299 Prosecutions Brief, para. 131; R91-200334, paras 929-951.
304
-- at 11:48, the members of the Assassination Team stopped using their Blue
Network phones, changing to the Red Network, and were in the vicinity
of Parliament, of the scene of the attack or on the route between those two
locations.300 The Blue Network phones were no longer used that day until they
were reactivated after the attack;301 and
-- the users of the Red Network phones followed Mr Hariris movements, as
the following evidence shows: (i) at 11:57, at the time when the Mitsubishi
Canter van appears to leave the main road at the exit of the President Solaiman
Franjiye tunnel, near the crime scene, Mr Ayyash received a call from S5; both
of them were present in the area of the crime scene;302 (ii) between 12:00 and
12:16, 11 calls were made within the Red Network between members of the
Assassination Team who were at locations between the scene of the attack and
Parliament;303 (iii) at approximately 12:25, when Mr Hariri exited the Caf
Place de ltoile to speak with [REDACTED], S9 located in the vicinity
of Parliament called S6 located south-east of Parliament;304 (iv) when
Mr Hariri left the Caf Place de ltoile, the Red Network became active
again, which, according to the Prosecution, means that all the members of that
network were aware he was on the move;305 (v) at 12:53, S9 located in the
vicinity of Parliament made the last Red Network call to S6 who was not
far away;306 (vi) Mr Ayyash contacted Mr Badreddine on the Green Network
at 11:58, and that was the last time a Green Network phone was used;307 and
(vii) Mr Badreddines telephone activities on all the phones attributed to him
were unusual during this period.308
300 Prosecutions Brief, para. 135; R91-200334, paras 945, 950.
301 Prosecutions Brief, para. 135; R91-200334, para. 952.
302 Prosecutions Brief, para. 136;R91-200334, para. 959.
308 Prosecutions Brief, para. 137; R91-800098, CST-0201.
305
112. Furthermore, according to the Prosecution, recordings from closed-circuit

cameras which were in the vicinity of the scene of the attack reveal that the Mitsubishi
Canter van took the President Solaiman Franjiye tunnel309 at around 11:56, and, later,
moved towards the St.Georges Hotel.310 Still according to the Prosecution, at 12:55,
as Mr Hariris convoy was passing, the suicide bomber detonated the improvised
explosive device that had been placed in the Mitsubishi van.311 According to the
Prosecution, analysis of the size of the crater, the physical damage to the surrounding
environment, including buildings and vehicles, shows that the quantity of explosives
used was equivalent to 2500kg to 3000kg of TNT.312 Furthermore, according to the
Prosecution, the attack had been very carefully prepared, as shown by the report by
the [REDACTED] experts entitled Interim Expert Report of EOD [REDACTED]
respectively expert witnesses PRH200, PRH201 and PRH202.313
113. With regard to the identity of the suicide bomber, the Prosecution states that
it was an unidentified man, and that none of the samples of biological materials
collected from the scene of the attack came from Mr Abu Adass.314
114. The Ayyash Defence emphasises that it has not been proven beyond reasonable
doubt that Mr Ayyash coordinated the preparation of the attack.315 The Badreddine
Defence contests in particular the modus operandi of the attack, namely the suicide
attack and the fact that the explosives were contained in a Mitsubishi Canter van
parked along the side of the road.316
115. As pointed out previously, the Oneissi Defence considers that none of the
factual allegations can be established beyond reasonable doubt.317
310 Prosecutions Brief, para. 142; R91-100050, paras166-168.
313 R91-607107.
316 Badreddine Brief, para. 15 (ix), Confidential Annex A, p. 17.
306
116. Lastly, the Sabra Defence observes that the Prosecution does not implicate Mr
Sabra in the preparations for the attack, nor in the attack itself, nor that he was aware
of those preparations.318
117. The Pre-Trial Judge notes, first of all, that Defence Counsel do not support
their statements as to the lack of responsibility of the Accused in the attack. He
is therefore unable to draw any detailed conclusions as regards the Prosecutions
allegations in that respect. The Pre-Trial Judge nevertheless draws the attention
of the Trial Chamber to the following points raised by the manner in which the
aforementioned events unfolded:
-- the times and the locations pertaining to Mr Hariris movements prior to the
attack. Indeed, the Prosecution alleges that the telephone activities of the
networks should be assessed in relation to those movements to which they are
directly linked. The analysis of Mr Hariris movements requires a simultaneous
and complex review of a large quantity of exhibits. A note by [REDACTED]
witness PRH424319 is designed to aid that review;
-- according to the Prosecution, at 11:58, Mr Badreddine was contacted on
the phone Green 023 by Mr Ayyash, using the phone Green 300.320 The
Prosecution nevertheless notes that, very unusually for Mr Badreddine, his
phones were inactive for the three hours prior to that call.321 Moreover, the
Prosecution points out that between 11:59 and 12:02, Mr Badreddine made
calls to unidentified phones using SMP 944. In that regard, the Prosecution
also observes that during the next two-and-a-half hours, Mr Badreddine
neither made nor received any calls and only received a number of text
messages, which was also highly unusual for him.322 These alleged anomalies
319 R91-200559.
321 Ibid.
322 Ibid.
307
merit clarification, especially given the fact that Mr Badreddine has been
attributed with the major role of monitoring the attack through his contact
with Mr Ayyash;323 and
-- the Prosecution points out in its Brief that none of the samples of biological
materials collected at the scene of the crime came from Mr Abu Adass.324 That
statement should be assessed in the light of the Indictment which states that
[f]ragments of the suicide bomber were recovered at the scene and forensic
examination has established both that the remains were: (a) of a male, and (b)
not of Abu Adass. The identity of the suicide bomber remains unknown.325
This second allegation therefore specifies that the attack was triggered by a
man who was not Mr Abu Adass. It thus falls to the Trial Chamber to rule on
the fact of whether, of the human remains found at the scene of the attack, any
came from the alleged suicide bomber on the one hand and are not those of Mr
Abu Adass on the other.
F.
Activities after the attack

118. According to the Prosecution, the delivery of the videotape containing the
alleged false claim of responsibility on behalf of a fictitious organisation named
Nusra and Jihad Group in Greater Syria, finalised the attack against Mr Hariri. It
allegedly proves the implication of Messrs Oneissi and Sabra in the conspiracy to
commit a terrorist act. Indeed, the content of the videotape supposedly shows that
they were aware of the crime committed against Mr Hariri and the means used to
carry it out.326
119. To support those allegations, the Prosecution bases itself essentially on the
information relating to the use of the Purple phones and of a phone card used only on
323 Id., para. 147.
324 Id., para. 145
325 Indictment, para. 43.
308
14February 2005,on statements [REDACTED] relating to the claim of responsibility

for the attack [REDACTED], as well as on the content of the videotape itself.
120. In its review of the activities relating to the false claim of responsibility for the
attack, the Prosecution refers to the statement by [REDACTED], witness PRH048.
[REDACTED] the phone card number 616569327 which was allegedly used to claim
responsibility for the attack.
121. According to the Chronology Report, that phone card was allegedly used
on 14February 2005 to make four calls to two press agencies, from four different
payphones located in Beirut. One call was made to the Reuters news agency, the
three others to Al-Jazeera.328 According to the CST, that same day, by way of their
Purple phone, Messrs Oneissi and Sabra contacted each other five times, while
Messrs Sabra and Merhi called each other seven times.329
122. According to the Chronology Report330 and based on the location of Messrs
Oneissi and Sabra in relation to the user of the phone card number 616569, the
Prosecution concludes that: (i) the first two calls to the Reuters agency and to Al
Jazeera were made by Mr Oneissi or by Mr Sabra; (ii)the second call to AlJazeera
was allegedly made by Mr Sabra; (iii) Mr Oneissi was monitoring the tree in which
the videotape had been placed; and (iv) the fourth call, demanding that Al Jazeera
broadcast the content of the videotape, was allegedly made by Mr Oneissi or Mr
Sabra.331
123. To support these conclusions, the Prosecution also bases itself on the following
evidence:
-- the statement by [REDACTED] witness PRH012 [REDACTED];332
327 R91-100298, paras 24, 28 and 52 and R91-100237, p. 2.

328 R91-200334, para. 1004.
329 R91-800075; R91-800076; R91-800077.
330 R91-200334, p.17.
331 R91-200334, para. 1004.
332 R91-200262, para. 38.
309
-- the statement by [REDACTED] witness PRH020 [REDACTED].333

[REDACTED]334 [REDACTED]
-- the statement by [REDACTED] witness PRH115, [REDACTED].335
124. The Prosecution also relies on the Chronology Report to establish a connection
between the activities of Mr Sabra and Mr Oneissi after the attack and the calls
between Mr Sabra and Mr Merhi. The last telephone contact between the Purple
phones took place at 17:24 on the day of the attack.336 The phone Purple 231 attributed
to Mr Merhi was last used on 15 February 2005 and Mr Oneissis phone Purple 095
and Mr Sabras phone Purple 018 were used for the last time on 16 February 2005.337
125. In the videotape broadcast by Al Jazeera, Mr Abu Adass claims responsibility
for the suicide attack committed against Mr Hariri, whereas the letter accompanying
the videotape states that the attack was committed on behalf of the Nusra and Jihad
Group in Greater Syria.338
126. Lastly, the Prosecution bases itself on the CST for the Accused and Mr Merhi
to demonstrate that they were all in the same part of South Beirut on 14 February
2005, after the attack.339
127. In general, the Ayyash Defence contests the fact that Mr Ayyash played any
role whatsoever in disseminating the false claim of responsibility, even through
Mr Merhi.340 Moreover, the Defence for Messrs Ayyash, Badreddine and Oneissi
consider that there is no proof to support the statement that the group which claimed
responsibility for the attack does not exist, nor that the claim of responsibility was
333 R91-200263, paras 42, 58, 66, 72, 82.
334 R91-500004.
335 R91-200267, para. 60.
336 R91-200334, para. 1038.
337 R91-200334, paras 1044, 1047 and 1049.
338 R91-500004.
339 R91-800051; R91-800042; R91-800050; R91-800054; R91-800055; R91-800057; R91-800098; R91-800075;
R91-800076; R91-800077.
340 Ayyash Brief, paras 15 and 16.
310
false.341 However, the Badreddine Defence does not adopt any position with regard
to the recovery of the videotape from the tree by [REDACTED] Al-Jazeera.342
128. The Oneissi Defence considers that the respective roles of Messrs Oneissi and
Sabra in relation to the calls and to the placing of the videotape in the tree have not
been made clear. Moreover, according to the Oneissi Defence, the Prosecution has
not established that they were aware of the content of the letter and of the videotape.343
129. The Sabra Defence also contests all the Prosecutions allegations in relation
to the events after the attack.344 More precisely, it points out that the Prosecution
does not state who made three of the four calls that were made. Regarding the third
call, which was made at 15:27 and which the Prosecution attributes to Mr Sabra,
the Prosecution does not clearly determine the role of the Accused, other than that
Mr Oneissi was allegedly monitoring the tree when that third call was made by Mr
Sabra. The Sabra Defence considers that this lack of information violates the right
of the accused to know precisely what accusations are made against him. Indeed,
considering that, if Mr Sabra is not the person who made the aforementioned calls,
no act can be imputed to him after the attack. The Defence contests in particular
the Prosecutions statement that whilst Sabra made the 15:27 phone call, Oneissi
watched the tree. The Defence points out that this allegation is not included in the
Indictment.345
130. The Pre-Trial Judge draws the attention of the Trial Chamber to the fact that
the attribution to Mr Sabra and/or Mr Oneissi of the telephone calls made using the
phone card 6162569 is based on the following theories: (i) the attribution of the
Purple phones to Messrs Sabra and Oneissi; (ii) an analysis similar to that carried
out in the context of the co-location of the user or users of phone cards at several
341 Ayyash Brief, para. 15; Oneissi Brief, para. 42; Badreddine Brief, para. 15 (x) and Confidential Annex A, p. 1.
342 Badreddine Brief, Confidential Annex A, p. 19.
343 Oneissi Brief, paras 39 to 41.
345 Sabra Brief, paras 17 and 18.
311
payphones over a period of time limited to a few hours; (iii)the proximity of the
Accused to specific locations which is inferred from the cell coverage of their phone;
and (iv) the Purple phones attributed to the Accused were not used at the same time
as the telephone calls relating to the claim of responsibility made from four different
payphones.
131. The Pre-Trial Judge further draws the attention of the Trial Chamber to several
other aspectsrelating to the users of the phone card 6162569, namely Mr Oneissi
and/or Mr Sabra: [REDACTED];346 and (ii) [REDACTED].347
G.
The existence of a consistent pattern of conduct

1. Introduction
132. This section concerns the Prosecutions allegations relating to the existence of
a consistent pattern of conduct by some of the accused, which are based on the attacks
committed in the context of the so-called connected cases against [REDACTED]
(2), as well as other attacks carried out in Kuwait (3).348
133. In its Pre-Trial Brief of 15 November 2012, the Prosecution refers to the
connected cases.349 This resulted, on 9January2013, in the Badreddine Defence
filing a motion before the Pre-Trial Judge seeking the removal of all the references
to the connected cases350 from that Brief because in particular those references
raise matters which should have been included in an Indictment confirmed according
to the procedure in force.351 Counsel for the Defence of Messrs Ayyash, Oneissi
346 R91-100237, p. 2.
347 R91-200263, pp. 8-12.
348 Prosecutions Brief, paras 167-185.
349 Prosecution Submission Pursuant to Rule 91, Annex A: Prosecution Pre-Trial Brief Pursuant to Rule 91,
15November 2012, confidential, paras 160-168 and 172-174.
350 Motion of the Defence for Mr Badreddine Seeking an Order to Strike out Sections of the Prosecutors Pre-Trial
Brief, 9 January 2013.
351 Id., para. 8.
312
and Sabra joined that motion.352 On 7February2013, the Pre-Trial Judge declared
himself without jurisdiction to settle the matter and referred it to the Trial Chamber,
pursuant to Rule 89(E) of the Rules.353 On 8 March 2013, that Chamber dismissed
the motion whilst inviting Defence Counsel to file by 9 April 2013 their substantive
submissions relating to the admissibility of the evidence concerning the attacks
committed in connected cases.354 Pursuant to that decision, Defence Counsel for
Messrs Ayyash355 and Badreddine356 filed submissions on 9 April 2013 and the
Prosecution replied to them on 24 April 2013.357 The matter is currently pending
before the Trial Chamber.
2.
The attacks carried out against [REDACTED]

134. From a point of view of law, in its Brief the Prosecution invokes Rule
149(C) of the Rules in support of the admissibility of evidentiary materials which
establish the existence of a consistent pattern of conduct.358 It also invokes the case
law of national courts and international criminal tribunals, in particular that of the
International Criminal Tribunal for Rwanda.359 It points out that, according to that
case law, such evidence may be admitted when it:
352 Ayyash Joinder to Motion of the Defence for Mr Badreddine Seeking an Order to Strike out Sections of the
Prosecutors Pre-Trial Brief, 14 January 2013; Jonction de la Dfense de M. Hussein Hassan Oneissi la
requte de la Dfense de M. Badreddine aux fins dobtenir lexclusion de sections du Mmoire davant procs
du Procureur, confidential, 15 January 2013; Sabra Joinder to Badreddine Motion to Strike Sections of the
Prosecution Pre-Trial Brief, confidential, 15 January 2015.
353 Decision on the Motion of the Defence for Mr Badreddine Seeking an Order to Strike Out Certain Sections of
the Prosecutors Pre-Trial Brief, 7 February 2013.
354 Decision on Defence Motion to strike out part of the Prosecutors Pre-Trial Brief, 8 March 2013, Disposition,
pp. 10-11.
355 Defence Submissions Pursuant to Decision on Defence Motion to Strike Out Part of the Prosecutors Pre-Trial
Brief, 9 April 2013.
356 Submissions on Behalf of Mr Badreddine Seeking Exclusion of Pattern of Conduct Evidence, 9 April 2013.
357 Prosecution Consolidated Response to Badreddine and Ayyash Defence Motions Seeking Exclusion of
Evidence, 24 April 2013.
359 Id., para. 168.
313
i)
proves a highly distinctive or unique propensity of the accused to commit

the criminal act;
ii)
proves a peculiar feature of the case; and
iii)
substantially enhances the probative value of the Prosecutions case against

the accused.360
135. From a factual viewpoint, [REDACTED]361 [REDACTED].362 [REDACTED]:

-- [REDACTED].363 [REDACTED];364 [REDACTED].365 [REDACTED];366
[REDACTED]367 [REDACTED].368 [REDACTED]369 [REDACTED]370
[REDACTED]
-- [REDACTED].371 [REDACTED]372 [REDACTED].373
136. The Ayyash Defence considers that the evidence adduced by the Prosecution
to establish the existence of a consistent pattern of conduct the admissibility of
which it contests374 does not prove beyond reasonable doubt that: (i)Mr Ayyash
360 Ibid.
361 Id., para. 170.
362 Ibid.
363 Id., para. 171.
364 Id., para. 172.
365 Ibid.
366 Id., para. 173.
367 Ibid.
368 Ibid.
369 Id., para. 174.
370 Id., para. 175.
371 Id., paras176-178.
372 Id., para. 176.
373 Id., para. 177.
314
was involved in the three connected cases; and (ii) those cases demonstrate the
existence of a consistent pattern of conduct.375
137. The Badreddine Defence, for its part, invokes the following arguments:
[p]ursuant to Rule 91(I)(iii), the reasons why the legal basis upon which the
Prosecution proposes to adduce the Connected Cases Evidence is disputed are
that, in the circumstances, leading such evidence without indicting the Accused
(i) violates the presumption of innocence as enshrined in Article 16(3) of the
Statute, by diluting the standard of proof beyond a reasonable doubt; and (ii) in
all the circumstances amounts to an abuse of process.
Pursuant to Rule 91(I) (iii), the reasons why the admissibility of the Connected
Cases Evidence is disputed are that (i) pattern of conduct evidence is, in general,
inadmissible before this Tribunal, (ii) the evidence is not truly evidence of any
pattern of conduct, (iii) it is inadmissible for irrelevance, and (iv) in any event
its prejudicial effect outweighs its probative value.376

138. Without prejudice to the questions which are at present pending before the
Trial Chamber and, in particular, to the possibility of admitting evidence relating
to the connected cases concerning persons who have not been formally indicted as
part of those cases the Pre-Trial Judge draws the attention of the Chamber to three
issues of fact raised by the Prosecutions allegations:
-- [REDACTED]
3.
The attacks carried out in Kuwait

139. According to the Prosecution, Mr Badreddine was convicted in Kuwait on 27
March 1984, under the alias of Elias Fouad Saab, for a series of attacks carried
out in that State on 12December 1983.377 Mr Badreddine allegedly in particular
375 Ibid., para. 27.
376 Badreddine Brief, paras 18 and 19.
315
developed and implemented the plan for the execution of those attacks, which were
carried out using vehicles loaded with explosives.378 According to the Prosecution,
[o]ne attack consisted of a suicide bomber driving a truck loaded with explosives
into the American embassy379 and [t]he Court of Kuwait held that SAAB selected
the cars and prepared the explosive devices which required a broad technical
experience in the make and use of explosives.380 According to the Prosecution, the
Court of Kuwait found that SAAB was an explosive expert, a trade he learned in his
country Lebanon381 and[] coordinated the purchase of vehicles and explosives,
as well the perpetration of the attacks.382
140. The Badreddine Defence challenges those allegations in the following terms:
[p]ursuant to Rule 91(I) (iii), the reasons why the admissibility of the Kuwait
Evidence is disputed are that (i) pattern of conduct evidence is, in general,
inadmissible before this Tribunal, (ii) the evidence in question is not truly
evidence of any pattern of conduct, (iii) it is inadmissible because there is
a real possibility that Saabs conviction in Kuwait was obtained as a result
of violations of his fundamental human rights, (iv) it is inadmissible for
irrelevance, and (v) in any event its prejudicial effect outweighs its probative
value.383

141. Without prejudice to the questions which are at present pending before the
Trial Chamber, the Pre-Trial Judge draws the attention of the Chamber to two issues
of fact raised by the Prosecutions allegations:
-- the question of whether Mr Badreddine and Mr Elias Fouad Saab are one and
the same person; and
378 Ibid.
379 Ibid.
380 Ibid. Internal citations omitted.
381 Id., para. 180.
382 Ibid. Internal citations omitted.
383 Badreddine Brief, para. 20.
316
-- the similarity between the methods for preparing and executing the attacks in
Kuwait and those used in the context of the assassination and connected cases.
If so, the conclusions to be drawn, both from a factual and legal perspective.
H.
The victims
1. Introduction
142. This section deals with the question of the victims. Indeed, the Prosecution
states that the attack caused the death of Mr Hariri and 21 other persons, as well as
injury to 226persons.384 This question was also the subject of an exchange between
the Parties in the context of the procedure provided for in Rule 122 of the Rules
relating to facts that are not contested.385
2.
Mr Hariri and the other victims

143. The Prosecution makes a distinction between Mr Hariri and the other victims.
It provides two kinds of information regarding Mr Hariri: biographical data, and
evidence relating to his political allegiances and his religion. In this regard, the
Prosecution explains that Mr Hariri was a Sunni Muslim, born on 1November 1944
in Sidon, Lebanon,386 as mentioned on a death certificate issued by the Lebanese
Ministry of the Interior.387 Moreover, according to the Prosecution, Mr Hariri resided
at Quraitem Palace in Beirut and also spent time at his family home at Faqra, in
Faraya, north-east of Beirut,388 as attested by witness PRH017 [REDACTED]389
384 Prosecutions Brief, paras19, 20 and 145.
385 Prosecutions Notice on the Implementation of the Pre-Trial Judges Order Regarding Narrowing Issues
Contested at Trial, 19 March 2013; Annex D, Letter from the Defence Counsel to the Acting Chief of
Prosecutions, confidential, 21 February 2013.
387 R91-602957.
389 R91-200088.
317
and witness PRH407 [REDACTED].390 These two witnesses provide

information in relation to Mr Hariris activities [REDACTED]. With regard to Mr
Hariris political activities, the Prosecution states that Mr Hariri was Prime Minister
of five Lebanese governments between 31October 1992 and 24December 1998, as
well as from 26October 2000 until his resignation on 26October 2004,391 as shown
by official decrees originating from the Lebanese Government.392 Furthermore, the
Prosecution points out that after having resigned, Mr Hariri began preparing his
electoral campaign ahead of the parliamentary elections which were due to start in
May 2005393 according to the statements by witness PRH031394 [REDACTED]
and witness PRH080395 [REDACTED] and according to a decree from the
Ministry of the Interior setting the date of the Parliamentary elections.
144. With regard to the victims other than Mr Hariri, the Prosecution alleges that,
21persons were killed.396 These were seven persons who were part of the convoy, as
stated by witness PRH256397 [REDACTED], Mr Fuleihan, a Member of Parliament
who was accompanying Mr Hariri in his car398and 13 bystanders. To prove that these
21 persons died, the Prosecution provides their death certificate,399 [REDACTED],
a forensic report from the United Nations International Independent Investigation
Commission (the Investigation Commission) from 2008,400 presented by witness
PRH120, as well as a report from a forensic expert who examined the body of
[REDACTED], presented by witness PRH287.401
390 R91-200129.
392 R91-400002. The Pre-Trial Judge notes that this document is not linked to a witness.
394 R91-200081, p. 20.
395 R91-200098.
397 R91-100222.
400 R91-606416.
401 R91-600023.
318
145. Lastly, the Prosecution alleges that the attack injured 226 persons.402 It relies
in this regard on police reports,403 [REDACTED],404 interviews [REDACTED],405
[REDACTED],406 witness statements,407 hospital and medical data,408 photos,409 as
well as audio410 and video411 recordings [REDACTED].
146. The Badreddine Defence does not contest the Prosecutions allegations with
respect to the victims of the attack.412 The Sabra Defence adopts the same position.413
The Ayyash Defence does not respond to the Prosecutions various allegations
concerning the victims, but defers to the responses given by Defence Counsel for the
other Accused,414 while the Oneissi Defence is silent on the matter.415
147. The Pre-Trial Judge notes that the evidence adduced in support of the various
allegations mentioned above is of different types: death certificates, testimonies,
forensic expert reports, reports, etc.

403 R91-400005; R91-400015-R91-400016; R91-400023. The Pre-Trial Judge notes that this document is not
linked to a witness.
405 R91-400012- R91-400014; R91-400022; R91-400024; R91-400026; R91-400032- R91-400149; R91-400178.
406 R91-400151.
407 R91-400167, PRH463; R91-400152, PRH378; R91-400018, PRH401; R91-400019, [REDACTED],
PRH353; R91-400020, PRH530; R91-400021, PRH235; R91-400027, PRH239; R91-400028,
PRH284; R91-400029, PRH285; R91-400030, PRH148.
408 R91-400017; R91-400153-R91-400154. The Pre-Trial Judge notes that this document is not linked to a witness.
410 R91-400168.
411 R91-400171-R91-400172.
412 Badreddine Brief, Confidential Annex A, paras 19-20.
415 Oneissi Brief.
319
148. The Pre-Trial Judge points out to the Trial Chamber that, on 19 March 2013,
the Prosecution informed him that the Defence had identified nine facts that it
intended not to contest at trial.416 They include a number of facts relating to the
victims, namely:
In addition to killing HARIRI, the explosion killed 21 other persons listed in
Schedule A of the Indictment;
The explosion injured 226 persons listed in Schedule B of the Indictment;
HARIRI was born on 1 November 1944 in the city of Sidon, Lebanon;
HARIRI served as Prime Minister of Lebanon in five governments from
31 October 1992 to 4 December 1998, and from 26 October 2000 until his
resignation on 26 October 2004; and
After his resignation, HARIRI started preparing for parliamentary elections
which were due to start in late May 2005.417
149. Lastly, the Pre-Trial Judge draws the attention of the Trial Chamber to the fact
that the Prosecution has assessed the time (25 hours) which could be saved if it did
not have to produce the evidence relating to these non-contested facts and call the
witnesses concerned to testify.418
VI. Concluding observations regarding the witness lists
A. Introduction
150. By way of conclusion to the Report, and pursuant to Rule 95 (A) (vii) of the
Rules, a number of observations can be made regarding the list of witnesses that the
Prosecutor (B) and the Representative of Victims (C) intend to call at trial.
416 Prosecutions Notice on the Implementation of the Pre-Trial Judges Order Regarding Narrowing Issues
Contested at Trial, 19 March 2013, para. 5.
417 Ibid.
418 Prosecution Submission on the Impact on Court Time of the Prosecution not having to Lead Evidence on Facts
the Defence has Agreed upon Not to Contest at Trial, including confidential Annexes 1, 2, 4, 5 and 7, 19 April
2013.
320
151. Only the Oneissi Defence has taken a stance on this issue, in general terms,
which limits the scope of the assessments of the Pre-Trial Judge. It states in fact that
the numerous amendments made to the accusatory instruments, and to the witness
and exhibit lists, have served to have a significant impact on its capacity to prepare
and to file a brief that fulfils the criteria set out in Rule 91 (I) of the Rules.419
B.
The Prosecution Lists

1. Introduction
152. Following three successive requests from the Pre-Trial Judge, the Prosecution
filed three witness lists, pursuant to Rule 91 (G) (i) of the Rules. The first list
dates from 15 November 2012, the second from 19 August 2013, and the third
from 23 October 2013 (the Prosecution Witness List). As was emphasised in the
procedural background, these lists have been the subject of multiple amendments.420
At the present time, the Prosecution Witness List is made up of 540 witnesses. The
estimation of the total duration of the examinations-in-chief of these witnesses is
six hundred and eighty seven-and-a-half hours, whereas the list of 15 November
2012 indicated a duration of four hundred and fifty-seven-and-a-half hours for the
examination-in-chief of 557 witnesses. The Pre-Trial Judge notes that when this
list was last amended, the Prosecution added the witness PRH058 and withdrew
witness PRH619 without either seeking or, a fortiori, obtaining his authorisation.
153. In addition to this estimation of the total duration of the presentation of the
prosecution evidence, the Prosecution Witness List contains, for each witness, the
420 Prosecution Request to Amend the Witness and Exhibit Lists and Authorization for Further Disclosure,
confidential with confidential annexes A to I, 21 December 2012; Prosecutions Notice of Intention in Relation
to Exhibits and Witnesses and Notice of Reclassification, confidential annexes B and C, 10 July 2013; Corrected
Version of Prosecutions Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification,
15 July 2013 and the Corrected Version of ANNEX B - LIST OF WITHDRAWN WITNESSES, filed 10
July 2013 filed the same day; Prosecutions Submission Pursuant to Rule 91, confidential annex Annex E
Proposed Additional Witnesses, 15 July 2013; Prosecutions Submission Pursuant to Rule 91 (G) (ii) and (iii),
confidential, confidential annex Annex C Proposed Additional Witnesses, 19 August 2013; Prosecution
Submission Pursuant to Rules (sic) 91 (G) (ii) and (iii), confidential, confidential annexes A, C and E, 10
September 2013, Decision on the Prosecution Submission Pursuant to Rule 91 (G) (ii) and (iii), 18 September
2013.
321
following information: (1) their name and possible pseudonym; (ii) a summary of
the facts contained in their statement; (iii) the points in the indictment in respect of
which they are expected to testify; (iv) an estimation of the total duration of their
examination-in-chief; (v) information as to the means by which they shall give their
evidence, namely in person, pursuant to Rule 150 of the Rules, or by another means,
pursuant to Rules 155, 156 or 158 of the Rules. However, the Prosecution Witness
List does not contain the number of witnesses who it is intended shall testify in
respect of each accused and each count, as required under Rule 91 (G) (ii) (d) of the
Rules.
154. The Prosecution Witness List lists the 540 witnesses in alphabetical order. In
order to facilitate the reading of this list, and to better identify the issues raised by it,
the Pre-Trial Judge has classified the witnesses in a table annexed to this document by
subject (Annex C) and, if applicable, has supplied additional information in relation
to them, such as the position they held at the time of the offences or a summary of the
information relevant to their statement. These subjects have themselves been subdivided into sub-categories in order to show the similarities in the subjects dealt with
or the specificities of certain witness evidence. The Pre-Trial Judge however wishes to
emphasise that this reorganisation exercise is not intended to present the Prosecution
case exhaustively or to substitute his own list with the one he will present to the Trial
Chamber and the participants in the proceedings before the commencement of the
trial. Moreover, this analysis is without prejudice to the assessment that the Parties
may subsequently make of the Prosecution Witness List.
155. The Pre-Trial Judge draws the attention of the Trial Chamber to the fact that
the Prosecution intends to seek, for the vast majority of witnesses, the admissibility
of their written statements in lieu of oral testimony, pursuant to Rule 155 (A) of
the Rules. By way of a reminder, that provision states that written statements may
be admitted, provided that they serve to go to proof of a matter other than the
acts and conduct of the accused as charged in the indictment. However, the PreTrial Judge finds, as he has previously noted in respect of the pyramidal structure
of the Prosecution evidence, that some analysis reports drawn up by experts who,
according to the Prosecution, will be heard orally are themselves based on a
package of witness evidence, the written admission of which will be sought pursuant
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to Rule 155 of the Rules and which therefore does not relate to the acts or conduct
of the Accused. This peculiarity would merit being taken into account when it comes
to determining the hearing of witnesses whose testimony has a direct bearing on the
acts and conduct of the Accused.
156. The subjects covered by the witnesses in their statements, and briefly discussed
hereinafter, are: forensic and criminalistic reports (2), the attribution and use of
telephones (3), the Accused and Mr Merhi (4), Mr Hariri himself and the Lebanese
context (5), the Mitsubishi vehicle (6), CCTV cameras (7), Mr Abu Addas (8), the
false claim of responsibility for the attack (9), the victims of the attack (10), the
consistent pattern of conduct (11) and a residual category (12).
2.
The forensic and criminalistic reports
157. This subject includes a very large number of reports which are organised
into several categories, the most voluminous of which relates to the inspection of
the scene of the attack. A large number [REDACTED] are quoted in these reports.
According to the Prosecution, they should give their evidence pursuant to Rule 155
of the Rules, with the exception of one of them, who should be heard. Among the
other [REDACTED], five witnesses, who will be heard orally for six hours each,
form a panel of experts who were involved in the drafting of the same report. The
relevance of hearing all these witnesses has to be questioned. Moreover, several
teams of national experts were involved in the preparation of the reports relating to
the scene of the attack. According to the Prosecution, nine [REDACTED] experts,
four [REDACTED] experts, five [REDACTED] and three [REDACTED] experts
who drafted joint reports should give evidence pursuant to Rule 155 of the Rules.
158. The analyses of DNA samples found at the scene of the attack were carried out
by 16 people of whom, according to the Prosecution, only one will be heard orally.
159. Two experts in the field of seismology also produced a joint report dealing
with the time of the attack. The Prosecution seeks the admission of that report in the
form of a written statement, pursuant to Rule 155 of the Rules.
323
160. And lastly, the Prosecution requests that the statements of nine witnesses
relating to the explosion reconstruction experiments be admitted in writing, pursuant
to Rule 155 of the Rules. In addition, a [REDACTED] is expected to give evidence
over 18 hours, notably in relation to a reconstruction of the attack carried out in 2010.
3.
Attribution and use of telephones
161. This category is subdivided into several subject areas: unjustified attributions
of telephone numbers to certain individuals (a), the attribution of telephone numbers
to certain individuals (b), the sale of telephone handsets and additional credit and the
use of phone lines (c), and also telecommunications analysis (d).
a.
Unjustified attributions of telephone numbers to certain

individuals
162. This category of witnesses comprises 26 persons whose evidence relates

solely to the fact that a telephone line was apparently set up in their name without
their knowledge. The Prosecution intends to request that for all of these witnesses
with the exception of two of them their written statements be admitted in lieu of
oral testimony pursuant to Rule 155 of the Rules.
b.
The attribution of telephone numbers to certain individuals
163. This category comprises 62 persons whose evidence relates to telephone

lines that they used or the users of which they knew. Amongst this evidence is that
of [REDACTED] of two mobile phone companies that were active in Lebanon in
2005: [REDACTED] witness PRH064 [REDACTED] witness PRH011
[REDACTED]. These two companies supplied the Prosecution with call data records
which apparently led to the identification of the telephone networks implicated in the
attack.
164. Among the other persons featuring in this category, a number were allegedly
in telephone contact with certain phones attributed to the Accused or to members of
324
their families. According to the Prosecution, 16 witnesses are expected to give their
testimony orally and 44 pursuant to Rule 155 of the Rules.
c.
The sale of telephone handsets and additional credit and the use
of telephone lines
165. This category includes 15 persons who it is anticipated shall give evidence
relating to the sale of telephone handsets (international mobile equipment identity
(IMEI) numbers), telephone lines (made up of the subscriber identity module (SIM)),
and additional credit which were allegedly implicated in the preparatory activities
to and execution of the attack, as well as those subsequent to the attack, including
the false claim of responsibility. The Prosecution intends to seek that for all these
witnesses their written statements be admitted in lieu of oral testimony pursuant to
Rule 155 of the Rules.
d.
Telecommunications analysis
166. 33 witnesses are included in this category. They are for the most part
[REDACTED].
167. According to the Prosecution, ten witnesses will have to be heard orally.
Amongst these are the three witnesses most commonly cited in support of the
Prosecution Brief: [REDACTED] witnessPRH435 whose examinationin-chief should last for 20 hours; [REDACTED] witness PRH147 whose
examination-in-chief is also scheduled for 20 hours; and [REDACTED] witness
PRH230 whose examination-in-chief will take approximately 15 hours.
4.
The Accused and Mr Merhi
168. This category includes the evidence of persons who allegedly have specific
information relating to the Accused and Mr Merhi and, in the case of Mr Badreddine,
his aliases.
169. An examination of this category leads to the conclusion that the majority of
the information available relates to Messrs Ayyash and Sami Issa (the suspected
325
alias of Mr Badreddine). 24 witness statements relate to Mr Ayyash. [REDACTED].

According to the Prosecution, roughly half of these witnesses are expected to be
heard orally.
170. 35 witness accounts relate to Mr Sami Issa or Mr Badreddine. [REDACTED].
According to the Prosecution, all the witnesses in this category, with the exception
of one of them, will be called to give evidence orally.
171. In addition, two witnesses apparently have information relating to Mr Ayyash
and Mr Badreddine and two others in relation to Mr Merhi. According to the
Prosecution, three of them should be called to give evidence orally.
172. Finally, according to the Prosecution, three witnesses are expected to give
evidence in relation to Mr Sabra. Of these, only one is expected to give evidence
orally.
5.
Mr Hariri himself and the Lebanese context
173. This category is subdivided into five subject areas. The first and second relate
respectively to the activities of certain persons on 14 February 2005 prior to the
attack (six witnesses) and to information and materials supplied by journalists and
photographers (seven witnesses). The Prosecution intends to request that for all these
witnesses their written statements be admitted in lieu of their oral testimony pursuant
to Rule 155 of the Rules.
174. The third subject area relates to Mr Hariris activities and movements. 26
persons are expected to give evidence on this topic. With the exception of one
[REDACTED], the Prosecution intends to apply Rule 155 of the Rules to all these
persons.
175. The fourth subject area deals with the security measures taken in order to
protect Mr Hariri. According to the Prosecution, five witnesses are expected to give
evidence in this regard, one orally.
326
176. The final subject area relates to the political situation in Lebanon prior to and
after the attack. Two persons are expected to give evidence in this respect, of whom
one will be heard orally.
6.
The Mitsubishi vehicle
177. This category includes 16 witness accounts relating to the Mitsubishi Canter
van. They include in particular those of four [REDACTED] providing evidence
in respect of the theft of the vehicle in Japan, [REDACTED] who have traced the
vehicles history from that country, and [REDACTED].
7.
CCTV cameras
178. This category includes eight witness accounts relating to the analysis of the
security cameras at the HSBC Bank, the Phoenicia Hotel and the Solaiman Franjiye
tunnel located close to the scene of the attack. According to the Prosecution, of these
witnesses, two of [REDACTED] will give evidence orally.
8.
Mr Abu Adass
179. This category includes the evidence of seven persons who allegedly knew Mr
Abu Addas. According to the Prosecution, two of the witness accounts should be
introduced on the basis of Rule 158 of the Rules, and the other witnesses should be
heard orally.
9.
The false claim of responsibility for the attack
180. Eight persons make up this category. [REDACTED]. According to the

Prosecution, all of these witnesses save one are expected to be heard orally.
327
10.
The victims of the attack
181. This category comprises 57 persons. [REDACTED]. Reference is also made

to the remarks relating to the 10 witnesses who appear on both the Prosecution List
of Witnesses and that of the LRV.421
182. The Prosecution has indicated that it intends to seek the admission of the
written statements of all these witnesses in lieu of oral testimony, pursuant to Rule
155 of the Rules.
11.
The consistent pattern of conduct
183. This category comprises the witness accounts submitted in support of the
Prosecution contention that Mr Ayyash and Mr Badreddine adopted a consistent
pattern of conduct as demonstrated by their involvement in several attacks.
[REDACTED].422
184. [REDACTED]. These numerous witness accounts (73) can be divided on a
case-by-case basis. As previously stated, these allegations are not contained in the
Indictment but are presented in Section X of the Prosecutions Brief. The Prosecution
requests that the majority of these witnesses have their written statements admitted
pursuant to Rule 155 of the Rules. However, 26 witnesses should give oral testimony,
[REDACTED].
12.
The residual category
185. 21 witness accounts which do not appear to relate specifically to the subjects
dealt with above have been filed in a residual category. This includes summaries of
their statements as the Prosecution submitted them in the Prosecution Witness List.
According to the Prosecution, only one of these witnesses is expected to give oral
testimony.
421 Amended and Updated Lists of Witnesses and Exhibits of the Legal Representative of Victims, 29 August 2013.
422 Prosecutions Brief, section X, pp. 64 to 73.
328
C.
The lists of the Legal Representative of Victims

1. Introduction
186. On 13 December 2012, the LRV filed a first list of witnesses and exhibits
pursuant to Rule 91 (H) of the Rules. 423 On 29 August 2013, he filed amended and
updated versions of those documents.424 The Defence has not taken a position in
respect of them.
2.
The list of witnesses
187. The Pre-Trial Judge notes that the LRV intends calling 60 witnesses in total,
for an estimated duration of 55 hours and 45 minutes. The LRV anticipates that of
those witnesses, 33 will give their testimony orally and 27 pursuant to Rule 155
of the Rules. Some of those witnesses are expected to produce numerous exhibits.
Moreover, 14 of these persons also appear on the Prosecution Witness List.425
However, in the meantime, two of those witnesses have been withdrawn from
that list.426 Of those 60 aforementioned witnesses, 44 are victims participating in
the proceedings (VPP) following decisions rendered by the Pre-Trial Judge on 8
May,427 3 September428 and 28 November 2012.429
188. The witnesses can be grouped according to the harm they suffered as a
result of the death of the same victim of the attack. Each member of the groups
concerned should be able to give evidence individually in respect of the harm that
423 List of Witnesses and Exhibits Filed on Behalf of the Participating Victims with Confidential & Ex Parte
Annexes, confidential Annex and [REDACTED], 13 December 2012.
424 Amended and Updated Lists of Witnesses and Exhibits of the Legal Representative of Victims, confidential
annexes A et C, 29 August 2013.
425 [REDACTED].
426 [REDACTED] were withdrawn from the Prosecution List on 10 July 2013. That withdrawal was approved by
the Pre-Trial Judge on 5 August 2013. Decision on Two Prosecution Submissions in relation to Amending the
Prosecution Rule 91 Filings, 5 August 2013.
427 Decision on Victims Participation in the Proceedings, 8 May 2012.
428 Second Decision on Victims Participation in the Proceedings, 3 September 2012.
429 Third Decision on Victims Participation in the Proceedings, 28 November 2012.
329
they themselves and their family have suffered as a result of the death of a member
of their family. Those groups are:
-- the wife, the mother, brother and two daughters of [REDACTED], who died
as a result of the attack.430 It is anticipated that the testimony of these five
witnesses will be given pursuant to Rule 155 of the Rules for an estimated
duration of one and-a-quarter hours;
-- the wife and the son of [REDACTED], who died as a result of the attack.431 It
is anticipated that the wifes evidence will be given pursuant to Rule 155 of
the Rules and the sons orally, for an estimated duration of one hour;
-- the mother, brother, sister and father of [REDACTED] who died as a result
of the attack.432 It is anticipated that the testimony of the parents and sister will
be given pursuant to Rule 155 of the Rules and that of the brother orally for an
estimated duration of one hour;
-- the wife and two daughters of [REDACTED], who died as a result of the
attack.433 The testimony of the two daughters [REDACTED]. It is anticipated
that the testimony of the wife and one of the daughters will be given pursuant to
Rule 155 of the Rules, and that of the second daughter orally, for an estimated
duration of one hour;
-- the wife, the mother, two sisters and two brothers of [REDACTED], who died
as a result of the attack.434 It is anticipated that the testimony of five of them
will be given pursuant to Rule 155 of the Rules and that the sixth one will give
evidence orally for an estimated duration of one hour.
430 Respectively: [REDACTED].

330
-- five brothers, the father, the mother and sister of [REDACTED], who died as a
result of the attack.435 It is anticipated that the testimony of seven of them will
be given pursuant to Rule 155 of the Rules and that of one of them orally for
an estimated duration of one hour;
-- the sister and brother of [REDACTED], who died as a result of the attack.436 It
is anticipated that both will testify orally for an estimated duration of one hour.
189. In order to ensure the efficiency of the proceedings, the need to have all the
members of a group of witnesses who have suffered the same harm as a result of the
death of the same person testify individually should be examined. In this respect, it
should be noted that, for the majority of the members of the same family, the LRV
has already favoured the procedure provided for under Rule 155 of the Rules. This
approach seems appropriate and should, as far as possible, be given precedence.
190. Finally, the LRV anticipates that it will be calling [REDACTED] victims who
have suffered direct harm as a result of the attack. Among them, nine are expected
to give oral testimony and three pursuant to Rule 155 of the Rules. Each of these
victims is expected to produce multiple exhibits. [REDACTED] of them are also on
the Prosecution Witness List.437
191. The 16 witnesses submitted by the LRV who do not have VPP status are:
-- [REDACTED].
192. With regard to these last four witnesses, the extent to which their respective
evidence does not cover the same area of expertise should be examined.

437 V034; V018; V013; V012; V033.
331
3.
The exhibit list
193. The LRV anticipates producing 373 exhibits as evidence.438 It has not
specified the number of exhibits which also appear on the Prosecutions list of
exhibits. However, 82 items bear the same numbers as those appearing on that list.
It would appear though that the LRV exhibit list has not been updated following the
amendments recently made by the Prosecution to its own list. As a consequence,
the number of exhibits likely to have been duplicated also needs to be updated. The
majority of LRV exhibits appear to comprise witness statements, medical reports,
identity documents and press cuttings.
Leidschendam, 11 December 2013
Daniel Fransen
Pre-Trial Judge
438 Amended and Updated Lists of Witnesses and Exhibits of the Legal Representative of Victims, 29 August 2013,
annex B, confidential Amended Exhibit List of the Legal Representative of Victims.
332
14.
Case name:
The Prosecutor v. Merhi
Before:
Trial Chamber
Title:
Decision to Hold Trial in Absentia
Short title:
Trial in Absentia TC
333
334
THE TRIAL CHAMBER

Case No.:
STL-13-04/I/TC
Before:

Registrar:
Mr Daryl Mundis
Date:
20 December 2014
Original language:
English
Type of document:
Public
THE PROSECUTOR
v.
HASSAN HABIB MERHI
DECISION TO HOLD TRIAL IN ABSENTIA

Mr Norman Farrell
The Accused:
Mr Hassan Habib Merhi
Defence Office:
Mr Franois Roux
335
INTRODUCTION
1.
Hassan Habib Merhi, on 31 July 2013, was indicted for his alleged role in
the explosion in Beirut on 14 February 2005 that killed the former Lebanese Prime
Minister, Rafik Hariri and 21 others, and injured over 200. On 28 June 2011, the
Pre-Trial Judge confirmed an amended indictment in the case of Prosecutor v. Salim
Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad
Hassan Sabra in respect of those events,1 and the trial of the four in absentia will
commence on 16 January 2014.2
2.
The Trial Chamber is now seised with an order of the Pre-Trial Judge under
Rule 105 bis (A) of the Tribunals Rules of Procedure and Evidence to determine
whether to try Mr. Merhi in absentia,3 as permitted by Article 22 of the Statute of the
Special Tribunal.
3.
The Trial Chamber has analysed within the context of the prevailing security
situation in Lebanon each of the measures taken by the Lebanese authorities and
the Special Tribunal to personally notify Mr. Merhi of the charges against him and
to secure his appearance at the Special Tribunal. It has also considered whether the
widespread publicity in the Lebanese media of his alleged role, both before and after
the indictment was confirmed, has informed him of the charges and the different ways
that he could participate in a trial. The extensive coverage in the Lebanese media of
the indictment of the four Accused in the Ayyash case has also been considered.
4.
The Trial Chamber has concluded that Mr. Merhi has absconded or otherwise
cannot be found and all reasonable steps have been taken to secure his appearance
before the Special Tribunal and to inform him of the charges by the Pre-Trial Judge.
1 STL, The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad
Hassan Sabra, STL-11-01/PTJ, Decision relating to the Examination of the Indictment of 10 June 2011
issued Against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi, & Mr
Assad Hassan Sabra, 28 June 2011; STL-11-01/PTJ, Public Redacted Version, Indictment, 10 June 2011. The
Prosecutor had submitted an indictment and supporting materials to the Pre-Trial Judge on 17 January 2011.
2
STL-11-01/PT/TC, Scheduling Order, 10 December 2013.
3 STL, Prosecutor v. Hassan Habib Merhi, STL-13-04/I/PTJ, Ordonnance de Saisine de la Chambre de Premire
Instance conformment lArticle 105 bis, paragraphe A) du Rglement de Procdure et de Preuve aux fins de
Statuer sur lEngagement dune Procdure par Dfaut, 25 novembre 2013.
336
The combination of these measures has satisfied the legal requirements necessary to
try him in absentia and the Trial Chamber has decided, for the reasons that follow, to
proceed to try Mr. Merhi in absentia.
PROCEDURAL BACKGROUND
5.
On 14 February 2005, a large explosion occurred near the St George Hotel in
downtown Beirut in Lebanon. A number of people, including the former Lebanese
Prime Minister, Rafik Hariri, were killed and many others were injured. Salim Jamil
Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan
Sabra were indicted on 30 June 2011 for nine counts connected with these events,
including conspiracy to commit a terrorist act, committing a terrorist act by using
explosives, and the murder of Rafik Hariri and 21 others.4
6.
On 5 June 2013, the Prosecutor submitted an indictment to the Pre-Trial
Judge alleging Mr. Merhis participation in these events.5 The indictment charges
Mr. Merhi with five counts, namely, conspiracy to commit a terrorist act, and as an
accomplice with respect to: committing a terrorist act by using explosive materials;
the premeditated intentional homicide of Rafik Hariri; the premeditated intentional
homicide of 21 others; and, the premeditated intentional attempted homicide of 226
people, by using explosives.6
7.
On 31 July 2013, the Pre-Trial Judge confirmed the indictment,7 and issued
national and international arrest warrants for Mr. Merhis apprehension.8 On 6
4
Having initially submitted an indictment and supporting materials to the Pre-Trial Judge on 17 January 2011.
Prosecutions Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes,
Confidential and Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for
Non-Disclosure, Confidential and Ex Parte, 5 June 2013.
Indictment, Confidential and Ex Parte, 5 June 2013. A confidential redacted version was filed on 31 July 2013
and a public redacted version was filed on 11 October 2013 pursuant to an order of the Pre-Trial Judge of 10
October 2013. Public Redacted Version of the Decision Relating to the Examination of the Indictment of 5 June
2013 Issued Against Mr Hassan Habib Merhi Dated 31 July 2013, 11 October 2013.
Decision relating to the Examination of the Indictment of 5 June 2013 Issued against Mr. Hassan Habib Merhi,
Confidential, 31 July 2013; Public Redacted Version dated 11 October 2013.
Warrant to Arrest Mr. Hassan Habib Merhi and Order for Transfer and Detention, Confidential, 31 July 2013;
International Warrant to Arrest Mr. Hassan Habib Merhi and Request for Transfer and Detention, Confidential,
337
August 2013, the indictment and arrest warrant were transmitted to the Government
of Lebanon for service and execution. On 6 September 2013, the Acting Public
Prosecutor of the Lebanese Court of Cassation9 submitted a report to the President of
the Tribunal under Rule 76 (C) of the Tribunals Rules, outlining the attempts by the
Lebanese authorities to execute the arrest warrant. He informed the President that it
had not been possible to find Mr. Merhi or a suitable person pursuant to Article 147
(7), on whom they could serve the documents at the known places of residence or
domicile of Mr. Merhi.10 On 16 September 2013, the President requested clarifications
from the Acting Prosecutor-General,11 who obliged in four further reports to the
President, on 24 and 26 September and 3 and 4 October 2013.12
8.
On 10 October 2013, the President of the Tribunal issued an order under Rule
76 stating that he was satisfied that reasonable attempts have been made by the
Tribunal and the Lebanese authorities to serve the indictment and arrest warrant on
the Accused.13 Accordingly, he ordered that the indictment be served by alternative
methods through public advertisement, and requested the Registrar to transmit an
advertisement to the Lebanese authorities. He ordered that they take all reasonable
steps to publicly notify Mr. Merhi of the existence of the indictment and to call upon
him to surrender to the Tribunal.14 On the same day, the Pre-Trial Judge lifted the
confidentiality of the indictment, allowing a redacted version to be published.15
31 July 2013.
9
The Acting Prosecutor-General.
10 Report of Prosecutor-General, 6 September 2013.

11 Letter from the President to the Acting Public Prosecutor at the Lebanese Court of Cassation Judge Samir
Hammoud, 16September 2013.
12 Report of the Acting Prosecutor-General of 24 September 2013 (Confidential and Ex Parte Annex C to the
Order Pursuant to Rule 76(E)); Report of the Acting Prosecutor-General of 26 September 2013 (Confidential
and Ex Parte Annex D to the Order Pursuant to Rule 76(E)); Report of the Acting Prosecutor-General of
3October 2013 (Confidential and Ex Parte Annex E to the Order Pursuant to Rule 76(E)) and Report of the
Acting Prosecutor-General of 4October 2013 (Confidential and Ex Parte Annex F to the Order Pursuant to
Rule 76(E)).
13 Order pursuant to Rule 76 (E), 10 October 2013, paragraph 30.
14 Order pursuant to Rule 76 (E), 10 October 2013, Disposition.
15 STL-13-04/I/PTJ, Order on Partially Lifting the Confidentiality of the Indictment against Hassan Habib Merhi,
10 October 2013.
338
9.
Following the Presidents order, the Registrar wrote to the Acting ProsecutorGeneral in Lebanon, requesting the publication of an advertisement in five
newspapers: three Arabic, one English, and one French Lebanese in accordance
with Rule 76 bis.16 The Tribunal also issued a media release on its website publicising
the indictment of Mr. Merhi.17 At the Presidents request, the Registrar informed the
Trial Chamber of the efforts made to serve the indictment on Mr. Merhi.18
10. On 25 November 2013, under Rule 105 bis (A) of the Rules, the Pre-Trial
Judge issued an order seising the Trial Chamber with determining whether to initiate
proceedings in absentia against Mr.Merhi, reporting that he had not been arrested,
voluntarily appeared before the Tribunal, or otherwise submitted himself to its
jurisdiction.19

Service of an indictment upon an Accused person under the Tribunals

Rules and Lebanese law
11. The procedures for serving an indictment on an accused person are in Rule 76
Service of Indictment. Rule 76 (A) specifies that a certified copy of the indictment
shall be formally provided to the authorities of the State in whose territory the
accused resides or was last known to reside, or in whose territory or under whose
jurisdiction he is believed likely to be found. According to Rule 76 (B), Personal
service of an indictment on the accused is effected by giving the accused a copy of
the indictment, together with the summons to appear or the arrest warrant.
12. The information available to the Pre-Trial Judge as of August 2013 was
that Mr. Merhi is a Lebanese citizen whose last known place of residence and the
location of his family, were in Lebanon. Acting on this information, the Pre-Trial
16 Correspondence from the Registrar to the Prosecutor-General, ref. EXT\SUP\LB\MJ\20131010_REG2404_ss,
10 October 2013.
17 STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut Attack, 10 October 2013.
18 Internal Memorandum, ref.: JUD/CAS/HM/20131111_REG2469_um, Report on the steps undertaken by the
Registry to advertise the indictment against Mr. Hassan Habib Merhi, 11 November 2013.
19 He also requested in the Order that the Registrar provide the Trial Chamber with relevant documentation. Order
to Seize the Trial Chamber Pursuant to Rule 105 bis (A) of the Rules of Procedure and Evidence in Order to
Determine Whether to Initiate Proceedings in Absentia, 25 November 2013, Disposition.
339
Judge instructed the Registrar to send the indictment and warrant of arrest to the
Government of Lebanon for notification and execution. The Acting ProsecutorGeneral then attempted personal service of the indictment on Mr. Merhi according to
the procedures specified in Chapter V of the Lebanese Code of Criminal Procedures,
Rules governing the service of legal documents and decisions.20
13. Like Rule 76 (B), these rules also require a form of personal service, and
Article 147 (6) of the Lebanese Code details the procedure for ordinary notification
under Lebanese Law. The person serving the document shall [ ... ] do his utmost to
notify the addressee himself. Under Article 147 (7),
If the person to be served with a document is not present at his elected place
of residence or domicile, the document shall be served through a member
of his family, a domestic employee or any other person living in the same
dwelling provided that it may be inferred from his appearance that he is an
adult. A further condition is that his interest does not conflict with that of the
addressee of the document. If he refuses to state his name and relationship with
the addressee or to acknowledge receipt of a copy of the document, the process
server shall record his refusal and shall leave a copy of the document with him.
14. Both the Tribunals Rules and the Lebanese Code of Criminal Procedure
provide for alternative means of serving indictments and warrants of arrest. Rule 76
(E) of the Tribunals Rules provides that,
where the President establishes that reasonable attempts have been made to
serve the indictment, the summons to appear or the warrant of arrest to the
accused, but that they have failed, he may, after consulting the Pre-Trial Judge,
order the service of process to be effected in an alternative manner, including
procedures of public advertisement.
15. Alternative manner is not further defined by the Tribunals Rules. Under
Lebanese law, where the personal service of an indictment is not possible in the
manner specified in Article 147 of the Lebanese Code, Article 148 provides allows
for notification by other means,
20 Articles 147, 148 and 149.
340
If the person to be served with a document has no known place of residence or

domicile, or if the, process server does not find anyone who can be served with
the document at his place of residence or domicile, he shall be notified through
the posting of a copy of the document at the entrance to his last known place
of residence; a second copy thereof shall be communicated to the local mayor
[the mukhtar], and a third copy shall be posted at the entrance to the judicial
authority that ordered the notification. These measures shall be recorded by the
process server on the original copy of the document, which shall be returned
to the relevant authority. If the person to be served with a document has no
known last place of residence, it shall suffice for the process server to post a
copy of the document at the entrance to the judicial authority that ordered the
notification.
Steps taken to secure Mr. Merhis appearance before the Tribunal and to
inform him of the charges by the Pre-Trial Judge
16. Personal service of the indictment on Mr. Merhi, as required by Rule 76 (B),
has thus far been unsuccessful. The measures taken to effect personal service on him
are detailed below, and are documented in the Acting Prosecutor-Generals reports to
the Tribunals President and Registrar. The Acting Prosecutor-General worked with
the Lebanese Central Criminal Investigation Section (CCIS) in attempting to effect
the personal service referred to in Rule 76.
17. The Acting Prosecutor-General first attempted notification according to the
procedures of Article 147 of the Lebanese Code of Criminal Procedure. According
to the information available to the Special Tribunals Prosecutor,21Mr. Merhis last
known place of residence or domicile was in an apartment in Bourj-El-Barajneh in
Dahyieh in South Beirut.22
18. In attempting to locate Mr. Merhi for execution of the warrant of arrest and
service of the indictment, the Acting Prosecutor-General obtained the following
information about him from the competent Lebanese authorities:
21 Request for assistance from the Prosecutor of the Special Tribunal for Lebanon to the Government of Lebanon,
5 June 2012.
22 On the 7th floor of the Gardenia building in El-Abiyad road in El-Roueiss.
341
the Directorate General of Personal Status of the Ministry of the Interior

and Municipalities has no registered death certificate relating to Mr. Merhi,
meaning that he is registered as living,23
an individual personal status extract issued by the Directorate General of
Personal Status records the name of Mr. Merhi, his family name, his fathers
name, his mothers given and family names, his place and date of birth, his
religion, his sex, his marital status, his date of birth and his registration date,24
a family personal status extract issued by the Directorate General of Personal
Status records the names of Mr. Merhi and his immediate family, their fathers
name, their mothers maiden name, their places and dates of birth, their
religion, their marital status, their sex and their registration date,25
the electoral list (males) of Zqaq-El-Blat municipality in Beirut, records the
name of Mr Merhi for the electoral period 2013-2014,26
Vehicle Registration Service records reveal that no vehicle is registered in Mr.
Merhis name,27
the Acting General Director for Real Estate Affairs confirmed that Mr. Merhi
owns real estate with real estate registry numbers:
352 in Ain Qana, Nabatiyeh, and

28
2501 (section 27) in Baabda, Bourj-El-Barajneh, Beirut,
23 Report of the Acting Prosecutor-General, 26 September 2013 and the attached response of the Directorate
General of Personal Status, 23 September 2013.
24 Report of the Acting Prosecutor-General, 26 September 2013 and the attached Individual Personal Status
Extract of Mr. Merhi issued by the Directorate General of Personal Status, 23 September 2013.
25 Report of the Acting Prosecutor-General, 26 September 2013 and the attached Family Personal Status Extract
of Mr. Merhi issued by the Directorate General of Personal Status, 23 September 2013.
26 Report of the Acting Prosecutor-General, 26 September 2013 and the attached copy of the Electoral List (Males)
of Zqaq-El-Blat for the electoral period 2013-2014 issued by the Directorate General of Personal Status, 23
September 2013.
27 Report of the Acting Prosecutor-General, 24 September 2013 and the attached response of the Vehicle
Registration Service (Traffic, Truck and Vehicle Management Authority at the Ministry of the Interior and
Municipalities), 18 September 2013.
28 Report of the Acting Prosecutor-General, 24 September 2013; the attached response of the Acting General
Director for Real Estate Affairs, 18 September 2013; and the attached Information Card on Real Estate
Ownership issued by the General Directorate for Real Estate Affairs, 18 September 2013.
342
the Archives and Documents Bureau of the Directorate General of Internal

Security Forces has no record relating to Mr. Merhi,29
Mr. Merhi is not registered with the National Social Security Fund,30
the Ministry of Labour has no record of Mr. Merhi applying to hire a
housemaid,31
Mr. Merhi has obtained two passports: issued on 22 September 1993 and 19
October 2007,32 and
Mr. Merhis official exit and entry into Lebanon records reveal that he has not
officially left the country since he returned to Lebanon on 18 October 2002
from a visit to Syria.33
19. On 12 August 2013, the Acting Prosecutor-General sent the warrant for Mr.
Merhis arrest to the head of the CCIS. The following day the CCIS circulated a
wanted notice against Mr. Merhi.34 In the normal course of events CCIS officers
would have attempted to apprehend Mr. Merhi at his last known residence. On 15
August 2013, however, a car bomb containing around 100 kilograms of explosives
was detonated in Dahyieh, Beirut. According to a CCIS report, Hezbollah then
implemented a large-scale deployment of its security forces there and installed fixed
barricades on all the street entrances to Dahyieh.35
29 Report of the Acting Prosecutor-General, 24 September 2013 and the attached response of the Head of the
Archives and Documents Bureau, 18 September 2013.
30 Report of the Acting Prosecutor-General, 24 September 2013 and the attached response of the Directorate of
statistics and Work Methods of the National Social Security Fund, 19 September 2013.
31 CCIS record, No. 1455/302, 18 September 2013, attached to the report of the Acting Prosecutor-General of 24
September 2013.
32 Report of the Acting Prosecutor-General, 4 October 2013; the attached response of the Director-General of
General Security, 4 October 2013; and the attached copy of the passport application.
33 Report of the Acting Prosecutor-General, 4 October 2013; the attached response of the Director-General of
General Security, 4 October 2013; and the Entry/Exit Record issued by the Directorate-General of General
Security.
34 CCIS record, No. 1249/302, 13 August 2013, attached to the report of the Acting Prosecutor-General of 6
September 2013.
35 CCIS record, No. 1249/302, 13 August 2013, attached to the report of the Acting Prosecutor-General of 6
September 2013.
343
20. The Acting Prosecutor-General reported that CCIS officers tried to go into
Dahyieh several times to look for Mr. Merhi, but that these security measures
prevented them from doing so. The barricades, reported the CCIS officers, prevented
them from going directly to the apartment in Dahyieh where Mr. Merhi was registered
as living. CCIS officers contacted the Security Committee of Hezbollah to negotiate
access but after several calls were told that because of these security measures they
could not carry out any tasks related to Mr. Merhi in Dahyieh or in Ain Qana, South
Lebanon.36
21. The information available to the Trial Chamber, from the reports of the Acting
Prosecutor-General, is that these security measures in Dahyieh, prevented the CCIS
from entering the suburb to attempt to find Mr. Merhi at his last known residence in
Dahyieh, until 6 December 2013.37 When they entered the area on 6 December 2013
their information was that Mr. Merhi was not in the apartment.38 They returned and
continued the searches and inquiries on 10 December 2013, but these operations
proved unsuccessful.39 CCIS officers also travelled to Ain Qana, South Lebanon, on
7 December 2013 and 15 December 2015, but were informed that Mr. Merhi was not
in his home village and was not living there.40
Service by alternative methods under Lebanese law
22. Reacting to the Acting Prosecutor-Generals report of 6 September 2013,41
the President of the Tribunal found, on 10 October 2013, that he was satisfied that
36 CCIS record, No. 1249/302, 13 August 2013, attached to the report of the Lebanese Acting Prosecutor-General
of 6 September 2013.
37 CCIS record, No. 1249/302, 13 August 2013 (reviewed on 6 September 2013), attached to the report of the
Lebanese Acting Prosecutor-General of 6 September 2013; CCIS Record, No. 1663/302, 28 October 2013
(reviewed on 6 November 2013), attached to the report of the Acting Prosecutor-General of 6 November 2013;
and CCIS Record No. 1800/302, 10 December 2013, attached to the PG report of 16 December 2013.
38 Report of the Acting Prosecutor-General of 18 December 2013.
41 Report dated 6 September 2013 from Judge Samir Hammoud, Acting Public Prosecutor at the Court of
Cassation, addressed to Daryl Mundis, Registrar of the Special Tribunal for Lebanon (reference No.:100/
I.T./2013), Confidential and Ex Parte Annex A to the Order Pursuant to Rule 76(E).
344
reasonable attempts have been made by the Tribunal and the Lebanese authorities
to serve the indictment and arrest warrant on the Accused. The President ordered
service of the indictment by alternative methods.
23. After the failure of the personal notification required under Rule 76, and Article
147 of the Lebanese Code of Criminal Procedure, as evidenced by the unsuccessful
efforts to go directly to Mr. Merhis last known residence at the apartment in Dahyieh,
the Acting Prosecutor-General moved to Article 148 of the Lebanese Code. This
allows service of an indictment on a person with no known place of domicile to
be effected by (i) posting of a copy of the document at the entrance to the persons
last known place of residence; (ii) communicating a copy to the mukhtar; and, (iii)
posting a copy at the entrance of the issuing judicial authority.
24. The Acting Prosecutor-General instructed the CCIS to summon the mukhtars
of his four possible residential addresses, in Bourj-El-Barajneh, Haret-Hreik, ZqaqEl-Blat in Beirut and of the village of Ain Qana in South Lebanon. The CCIS
summoned the four mukhtars. None, however, attended on the day scheduled for the
interview. 42
25. Copies of the indictment and the warrant for Mr. Merhis arrest were also
affixed to the entrance of the Special Tribunals Beirut office in Monteverde, Beirut.
The Acting Prosecutor-General also instructed the CCIS to monitor a 24 hour call
number 70/243110 to receive any information about Mr. Merhi.
26. The Acting Prosecutor-General also instructed the CCIS to affix copies of
the indictment and warrant of arrest at Mr. Merhis last known place of residence,
to record their actions, and to photograph each act of service. Further to the Acting
Prosecutor-Generals request and to execute their task, CCIS officers had several
meetings with the Central Security Committee of Hezbollah.
27. On 5 November 2013, the CCIS met again with a Hezbollah official, in his
office at the Hezbollah Central Security Committee in Beirut. According to the CCIS
report, the official checked with the Head of the Committee, and then prevented the
42 CCIS record, No. 1455/302, 18 September 2013, attached to the report of the Acting Prosecutor-General of 24
September 2013.
345
CCIS officers from going to Mr. Merhis addresses to execute the request for serving
the documents by affixing them to his apartment and photographing the process. The
CCIS officers reported that the Hezbollah official told them that they could not go
there because Mr. Merhis family was very upset that his name had been circulated
in the media as an accused in the case of the assassination of Prime Minister Rafik
Hariri and his companions.43 The CCIS officers reported that they regarded this as a
pretext to prevent their entry to Dahyieh.
28. Noting the failure of the Acting Prosecutor-General to provide the mukhtars
with the indictment and the warrant of arrest against Mr. Merhi, on 17 December
2013, the Registrar sent these documents by registered mail via Liban Post to the
mukhtars of Bourj-El-Barajneh, Haret-Hreik, Zqaq-El-Blat and the village of Ain
Qana in South Lebanon. On 20 December 2013 the Registrar informed the Trial
Chamber that: i) the mukhtars of Haret-Hreik and Ain Qana had received the
registered mail on 18 December 2013, ii) the delivery of the letter to the mukhtar
of Zqaq El Blat was attempted twice, without success, following which a notice
was left at his address, and iii) as of 20 December 2013 delivery of the letter to the
mukhtar of Bourj-El-Barajneh had been unsuccessful.44
Alternative methods of service Rule 76
29. On 10 October 2013, the President of the Tribunal, for the purpose of Rule 76
(E), comprehensively reviewed the attempts by the Lebanese authorities to serve the
indictment and associated material on Mr. Merhi and to execute the arrest warrant.
He concluded that they had been reasonable.45 Noting the unsuccessful attempts to
personally serve Mr. Merhi, he ordered that the service of process be effected in an
alternative manner, including by public advertisement. He requested the Registrar
to take all reasonable steps to transmit a form of advertisement to the authorities of
Lebanon, in particular to the Acting Prosecutor-General, to take all reasonable steps
43 CCIS record, No. 1602/302, 18 October 2013, attached to the report of the Acting Prosecutor-General of 6
November 2013.
44 Email from the Registrar to the Trial Chamber Legal Officers, 20 December 2013.
45 Order Pursuant to Rule 76(E), 10 October 2013.
346
to notify the public of the existence of the indictment and to call upon Mr. Merhi to
surrender to the Tribunal, or in any case to submit to its jurisdiction in accordance,
among other things, with the relevant Lebanese procedures.
30. Rule 76 bis provides that the advertisement shall be for publication in
newspapers and/or for broadcast via radio, television and/or other media, including
the internet. The President also requested the Registrar to consider other means of
disseminating the indictment in Lebanon, if appropriate, and in other countries, and
of calling upon Mr. Merhi to submit to the Tribunals jurisdiction.46 The Special
Tribunal has a Twitter account which as of 20 December 2013 has 12,011 followers
a Facebook account and a Scribd feed.47
31. On the same date, at the Prosecutions request,48 the Pre-Trial Judge partially
lifted the confidentiality of the indictment.49 As a result, the Special Tribunals media
office also published two media releases, one on the Rule 76 order and a second on
the lifting of confidentiality of the indictment.50
32. On 11 October 2013, the Tribunal issued an advertisement of the indictment
in the form of a poster (see below) in a media release. This was also affixed to the
judicial notice board at the entrance to the Criminal Court of Cassation in Beirut.51
The Tribunals press office posted these announcements on Facebook and sent three
tweets in English that included links to the Arabic version of the poster. The Acting
46 STL-13-04/I/PRES, Order pursuant to Rule 76(E), 10 October 2013, Disposition.

47 www.scribd.com/STLebanon.
48 STL-13-04/PT/PTJ (sic), Prosecution Request for Partially Lifting the Confidentiality of the Indictment,
Confidential and Ex Parte with Confidential and Ex Parte Annex A, 4 October 2013.
49 STL-13-04/I/PTJ, Order on Partially Lifting the Confidentiality of the Indictment against Mr. Hassan Habib
Merhi, 10 October 2013.
50 STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut attack, http://www.stl-tsl.org/en/media/pressreleases/10-10-2013-stl-indicts-hassan-habib-merhi-in-14-february-2005-beirut-attack and Prosecutor Farrell
welcomes the Pre-Trial Judges Decisions Confirming the Indictment against Hassan Habib Merhi and Lifting
confidentiality, http://www.stl-tsl.org/en/media/press-releases/10-10-2013-prosecutor-farrell-welcomes-thepre-trial-judges-decisions-confirming-the-indictment-against-hassan-habib-merhi-and-lifting-confidentiality.
51 CCIS record, No. 1602/302, 18 October 2013, attached to the report of the Acting Prosecutor-General of 6
November 2013.
347
Prosecutor-General advertised the notice in five newspapers: LOrient Le Jour,52 AsSafir,53 Al-Mustaqbal,54 The Daily Star,55 and An Nahar.56
33. This was on the same day that the Registrar sent the warrant of arrest poster to
the Acting Prosecutor-General for further dissemination. This poster advertisement
was headed,
WARRANT OF ARREST ISSUED BY THE SPECIAL TRIBUNAL FOR
LEBANON
It contained two photographs of Mr.Merhi, and included the name, picture,
biographical information and charges against Mr. Merhi. At the bottom was written,
IF YOU HAVE ANY INFORMATION CONCERNING THIS INDIVIDUAL,
PLEASE CONTACT.
52 Le Liban sollicit par le TSL pour la publication de laffiche publique de Hassan Merhi,12 October 2013
and Le TSL demande aux autorits libanaises de publier des affiches sur lesquelles figure Hassan Merhi, 14
October 2013.
53 The International tribunal confirms the indictment of Merhi (Unofficial translation), 11 October 2013.
54 Fifth Hezbollah member accused of Hariris assassination (Unofficial translation), 11 October 2013.
55 STL publishes posters of fifth Hezbollah suspect, 11 October 2013.
56 An Nahar, 12 October 2013.
348
Underneath were three boxes containing a dedicated telephone number for the
Tribunal in the Netherlands and its Field Office in Beirut.57
34. This media release was covered by several media sources. The poster was
published in full in Lebanese newspapers, including LOrient Le Jour58 and An
Nahar.59 NOW Lebanon Media,60 Naharnet,61 The Daily Star,62 Aliwaa,63 Al-Mustaqbal,64 AsSafir65
and Al-Wasat66 (a Bahraini newspaper) published either those parts of the poster
that included Mr. Merhis photograph, or his photograph.

Publicising and publishing Mr. Merhis identity in connection with the

indictment
35. The Special Tribunals media office issued two media releases on 10 October
2013 headed STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut attack67
and Prosecutor Farrell welcomes the Pre-Trial Judges Decisions Confirming the
Indictment against Hassan Habib Merhi and Lifting confidentiality,68 announcing
57 Media advisory - STL requests that the Lebanese authorities take further steps to advertise new accused, http://
www.stl-tsl.org/en/media/press-releases/11-10-2013-stl-requests-that-the-lebanese-authorities-take-furthersteps-to-advertise-new-accused .
58 Le Liban sollicit par le TSL pour la publication de laffiche publique de Hassan Merhi,12 October 2013
and Le TSL demande aux autorits libanaises de publier des affiches sur lesquelles figure Hassan Merhi, 14
October 2013.
59 An Nahar, 12 October 2013.
60 STL publicizes arrestwarrant against Merhi (Unofficial translation), 14 October 2013.
61 STL Indicts Fifth Hizbullah Supporter in Hariri Assassination, 10 October 2013 and STL Asks Lebanese
Authorities to Publish Merhis Posters in the Media, 11 October 2013.
62 STL publishes posters of fifth Hezbollah suspect, 11 October 2013.
63 The Tribunal indicts a fifth accused in the assassination of Hariri (Unofficial translation), 11 October 2013.
65 The International tribunal confirms the indictment of Merhi (Unofficial translation), 11 October 2013.
66 The Special Tribunal for Lebanon asks the Lebanese authorities to take further measures to announce a new
accused in the case of the assassination of Hariri (Unofficial translation), 14 October 2013.
67 STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut attack, http://www.stl-tsl.org/en/media/pressreleases/10-10-2013-stl-indicts-hassan-habib-merhi-in-14-february-2005-beirut-attack.
68 Prosecutor Farrell welcomes the Pre-Trial Judges Decisions Confirming the Indictment against Hassan Habib
Merhi and Lifting confidentiality, http://www.stl-tsl.org/en/media/press-releases/10-10-2013-prosecutorfarrell-welcomes-the-pre-trial-judges-decisions-confirming-the-indictment-against-hassan-habib-merhi-and-
349
that The Pre-Trial Judge of the Special Tribunal for Lebanon has confirmed an
indictment against Hassan Habib Merhi who is accused of being involved in the 14
February 2005 Beirut attack. The Tribunals press office posted these announcements
on Facebook and sent eight tweets including links to the two announcements in
English.
36. All of the main Lebanese media reported this including Al-Akhbar,69 AsSafir,70 An Nahar,71 Al-Mustaqbal,72 Al Liwa,73 The Daily Star,74 LOrient Le
Jour,75 Al-Hayat,76 Ad-Diyar,77 National News Agency (NNA),78 Al-Joumhouria,79
lifting-confidentiality.
69 The tribunal lifts confidentiality of a public indictment: a fifth accused in the assassination of Hariri
(Unofficial translation), 11 October 2013.
70 The international tribunal confirms the indictment against Merhi (Unofficial translation), 11 October 2013,
and A new warrant of arrest from the International tribunal against Merhi (Unofficial translation), 15 October
2013.
71 The international tribunal uncovers the accused of forging Abu Adas(Unofficial translation), 11 October
2013; The tribunal adds a new accused to the four others Farrell: Prosecution is working to present reliable and
credible evidence (Unofficial translation), 11October 2013 and International warrant of arrest against Merhi
(Unofficial translation), 15 October 2013.
73 The Tribunal indicts a fifth accused in the assassination of Hariri (Unofficial translation), in other two pages
it published the complete Arabic version of the redacted public indictment under the title of The indictment
against the fifth accused Hassan Habib Merhi in assassination Hariri (Unofficial translation), 11 October 2013
and A new Arrest Warrant against Hassan Merhi in the case of assassination of Hariri (Unofficial translation),
15 October 2013.
74 STL names Hezbollah supporter as fifth suspect, 11 October 2013 and Lawyers for latest STL suspect ask
for trial suspension, 14 October 2013.
75 TSL: un cinquime suspect inculp dans le procs Hariri, 11 October 2013 and Malvoyance(editorial), 13
October 2013.
76 A fifth accused in the assassination of Hariri (Unofficial translation), 11 October 2013.
77 The International Tribunal issues a warrant of arrest against Hassan Merhi and accuses him of (forging) Abu
Adas tape (Unofficial translation), 11 October 2013, and The International Tribunal: A new warrant of arrest
against Merhi who was involved in 14 February attack (Unofficial translation), 15 October 2015.
78 STL requests Lebanese authorities take further steps to advertise new accused, 11 October 2013, and TSL:
Mandat darrt mis lencontre de Hassan Habib Merhi, 14 October 2013.
79 The International Tribunal adds a fifth accused (Unofficial translation), 11 October 2013; STL issues arrest
warrant against Hassan Habib Mehri (Unofficial translation), 14 October 2013, and International warrant of
arrest against the fifth accused (Unofficial translation), 15 October 2015.
350
NOW Lebanon Media,80 and Naharnet.81 The content of the press release was also
broadcast the same day on LBC TV,82 MTV,83 Tl Liban,84 OTV,85 Future TV,86 and
Al Jadeed.87 The information was also disseminated on 10 October 2013 by panArabic media including Al-Hayat,88 Al-Arabiya,89 Kuwait News Agency (KUNA),90
and Al-Rai,91 and on 11 October 2013 by Al-Jazeeria,92 and Asharq Al-Awsat.93
International media also covered the media releases.94
80 Who is Hassan Merhi?, 10 October 2013; STL indicts new suspect in Hariri slaying, 10 October 2013, and
STL publicizes arrest warrant against Merhi, 14 October 2013.
81 STL Indicts Fifth Hizbullah Supporter in Hariri Assassination, 10 October 2013.
82 REPORT: Lebanon tribunal publishes arrest warrant for new suspect in 2005 Hariri killing, 10 October 2013.
83 Hassan Habib Merhi, the fifth indicted in Hariris assassination, 10 October 2013, and What Role Did the
Fifth Indicted Suspect Play in Hariri Assassination?, 11 October 2013.
84 Tl Liban, 10 October 2013.
85 OTV, 10 October 2013.
86 Future TV, 10 October 2013.
87 Al Jadeed, 10 October 2013.
88 A fifth accused in the assassination of Hariri (Unofficial translation), 10 October 2013.
89 U.N.-backed Hariri tribunal indicts fifth suspect (Unofficial translation), 10 October 2013.
90 Lebanon Tribunal indicts Hassan Habib Merhi over 2005 Beirut attack, 10 October 2013.
91 The Special Tribunal for Lebanon announces an indictment against a fifth member of Hezbollah involved in the
killing of Hariri (Unofficial translation), 10 October 2013.
92 Tribunal indicts new suspect in Hariri murder, 11 October 2013 (Al-Jazeera English).
93 The International tribunal issues a warrant of arrest against a fifth accused from Hezbollah in the assassination
of Hariri (Unofficial translation), 10 October 2013.
94 The New York Times (Fifth Suspect Is Indicted in 2005 Killing of Ex-Lebanese Premier, 10 October 2013);
AP (Tribunal Indicts 5th Suspect in Hariri Slaying, 10 October 2013), Reuters (Lebanon tribunal names new
suspect in 2005 Hariri killing, 10 October 2013, and Nouveau suspect dans le procs du meurtre de Rafic
Hariri, 10 October 2013); AFP (UN-backed Hariri tribunal indicts fifth suspect, 10 October 2013); BBC
(Lebanon Hariri: Fifth suspect indicted for murder, 10 October 2013); UPI (Fifth suspect named in Hariri
assassination, 10 October 2013); RTT (Arrest Warrant Issued For Fifth Suspect In Lebanese PM Hariris
Assassination, 10 October 2013); Washington Post (UN-backed court indicts 5th suspect in 2005 slaying of
former Lebanese prime minister Hariri, 10 October 2013); Le Monde (Un cinquime suspect inculp pour
lassassinat de Rafic Hariri, 10 October 2013); Deutsche Welle (Special Lebanon tribunal indicts fifth suspect
in Hariri assassination, 10 October 2013); Le Nouvel Observateur (Nouveau suspect dans le procs du meurtre
de Rafic Hariri, 10 October 2013); France 24 (Un cinquime membre du Hezbollah suspect du meurtre de
Rafic Hariri, 10 October 2013); and La Presse (Liban: un cinquime suspect inculp dans le procs Hariri, 10
October 2013).
351
37. Between 10 and 30 October 2013, the Special Tribunals spokesperson

conducted interviews in Arabic and English with print, electronic and broadcast
media including the Daily Star in Lebanon,95 the pan-Arabic media outlet Al
Hayat,96 and international media including The New York Times.97 Mr. Merhis
name and his alleged connection with the attack of 14 February 2005 were specified
in each interview. The interviews were also covered by the media agencies AFP,98
Associated Press,99 and Reuters100 the content of which is published worldwide by
many different news outlets. The spokesperson was also interviewed on 13 October
2013 on Ousbou Bi Saa, a popular current affairs program on Lebanese Al Jadeed
TV, during which Mr. Merhis full name and the indictment alleging his participation
in the 14 February 2005 attack were outlined.
38. On 28 October 2013, the Tribunal issued a Judicial Brief summarising
judicial developments at the Tribunal. This brief was distributed in Arabic, French
and English to the media, diplomatic community and the general public, and included
a large section about the indictment against Mr. Merhi including his photograph,
biographical information and charges against him. It is also on the Special Tribunals
website.101
Broadcasting of an audio recording of the charges
39. On the 14 October 2013, the Special Tribunal issued a media release entitled A
public service announcement by the Special Tribunal for Lebanon, which included
a link to an audio recording of the charges against Mr. Merhi in Arabic, French and
English.102 This public service announcement, which was intended for radio broadcast,
95 STL names Hezbollah supporter as fifth suspect, 10 October 2013.
96 The Special Tribunal for Lebanon issues a warrant of arrest against a fifth accused in the assassination of
Hariri (Unofficial translation), 10October 2013.
97 Fifth Suspect Is Indicted in 2005 Killing of Ex-Lebanese Premier, 10 October 2013.
98 UN-backed Hariri tribunal indicts fifth suspect,13 October 2013.
99 Tribunal Indicts 5th Suspect in Hariri Slaying, 10 October 2013.
100 Lebanon tribunal names new suspect in 2005 Hariri killing, 10 October 2013.
101 https://www.stl-tsl.org/en/media/judicial-brief.
102 A public service announcement by the Special Tribunal for Lebanon, http://www.stl-tsl.org/en/media/press-
352
further specified that it was part of a public advertisement campaign to inform the
accused of his rights and to also invite the public to submit any information on the
whereabouts of the accused to the Lebanese authorities. The recording also invited
Mr.Merhi to participate in the proceedings, as, by participating, the accused can
fully defend themselves against the charges and evidence presented against them.
The Tribunals press office posted this on Facebook and sent three tweets in English
linked to the radio announcement in Arabic and English.
40. This radio message was covered by media including: NNA,103 Naharnet,104
Lebanese Broadcasting Corporation International (LBCI),105 An Nahar,106 Al
Jadeed,107 Al-Mustaqbal,108 Al Kalima online,109 Sada el Balad,110 and The Tower111
on 14 October 2013, and, on 15 October 2015, by the Daily Star,112 LOrient Le
Jour,113 and As-Safir.114
releases/14-10-2013-a-public-service-announcement-by-the-special-tribunal-for-lebanon.
103 STL makes public service announcement concerning accused Hassan Merhi, 14 October 2013.
104 STL Issues Public Arrest Warrant against Fifth Suspect in Hariri Assassination, 14 October 2013.
105 STL issues new arrest warrant against Hassan Habib Merhi, 14 October 2013.
106 The International Tribunal reveals the accused of Abu Adas fabrication (Unofficial translation), 14 October
2013.
107 Al Jadeed, 14 October 2013.
108 The International Tribunal issues a new warrant of arrest against Hassan Habib Merhi (Unofficial translation),
14 October 2013.
109 The International Tribunal issues a warrant of arrest against Hassan Habib Merhi in the case of the assassination
110 The International Tribunal issues a warrant of arrest against a potential member of Hezbollah in the assassination
111 Amid Growing Criticism of Hezbollah-Driven Destabilization, Prosecutors Issue Fifth Assassination
Indictment, 14October 2013.
112 STL urges Hezbollah suspect to participate in trial proceedings, 15 October 2013.
113 Annonce publique du TSL pour informer laccus Merhi de ses droits, 15 October 2013.
114 A new warrant of arrest by the International tribunal against Merhi (Unofficial translation), 15 October 2013.
353
Publicising the President of the Tribunals public statement of 21 October

2013
41. On 21 October 2013, the Tribunal published a statement by its President
calling on Mr. Merhi to surrender himself to the custody of the Special Tribunal.115
The Tribunals press office also posted the statement on Facebook and sent 14 tweets
in Arabic and English linking to the statement in both Arabic and English. The
statement read in part,
The Special Tribunal for Lebanon has announced the confirmation of an
indictment accusing Hassan Habib Merhi of involvement in the 14 February
2005 Beirut attack for which four other accused are to be tried in absentia; that
trial has a tentative start date (13 January 2014).
The Lebanese authorities have so far been unable to locate Mr Merhi. I have
therefore ordered the service of the indictment in alternative modes, which
include public advertisement. If, following such procedures, Mr Merhi has not
been brought under the Tribunals authority, the Trial Chamber will be asked to
decide whether to initiate proceedings against him in absentia.
I address both Mr Merhi and also the people of Lebanon. As to Mr Merhi, I
invite you to consider whether you are prepared to face the Special Tribunal
with the help both of the Defence Office headed by Matre Franois Roux and
of the counsel he would assist you to obtain if that is your wish.
42. This statement was covered in the Lebanese media on 21 October 2013 by: An
Nahar,116 NNA,117 Naharnet,118 KUNA,119 Now Lebanon Media,120 Lebanon Files,121
115 Statement of Judge Baragwanath, President of the Special Tribunal of Lebanon, http://www.stl-tsl.org/en/
media/press-releases/21-10-2013-statement-of-judge-baragwanath-president-of-the-special-tribunal-oflebanon.
116 The Special Tribunal for Lebanon confirms the indictment against Merhi (Unofficial translation), 21 October
2013.
117 Le TSL annonce la confirmation dun acte daccusation lencontre de Hassan Merhi, 21 October 2013.
118 STL: Fifth Suspect in Hariri Assassination May Be Tried in Absentia if He is Not Found, 21 October 2013.
119 Lebanon Tribunal invites new accused in Hariri case to appear before court, 21 October 2013.
120 The Special Tribunal for Lebanon confirms the indictment against Hassan Merhi, 21 October 2013.
121 The President of the Special Tribunal for Lebanon: We do not intervene in Lebanons politics and I ask the
Lebanese to assist us (Unofficial translation), 21 October 2013.
354
Al-Watan Al-Arabi122 and United Press International (UPI).123 The next day it was
reported by The Daily Star,124 LOrient Le Jour,125 As-Safir,126 Al-Mustaqbal,127 AlJoumhouria,128 Al-khabar,129 and Al-wafed.130
43. On 13 December 2013, the Tribunals web-site published a further appeal to
Mr. Merhi from the President of the Special Tribunal. It read,
Seven weeks ago, on 21 October 2013, I invited you to consider whether you
are prepared to face the Special Tribunal for Lebanon to answer the charges in
the indictment. These are very serious charges, including acts of terrorism and
murder. I urge you to get legal advice and appoint a lawyer to represent you
before the Tribunal. As an alternative to appearing in person in the Netherlands,
you may have the right to participate in hearings by video-conference.
122 Hariri Tribunal indicts a fifth (member) of Hezbollah (Unofficial translation), 21 October 2013.
123 Tribunal needs help with 5th Hariri suspect, 21 October 2013.
124 STL president calls on fifth suspect to face justice, 22 October 2013.
125 Baragwanath envisage le procs par dfaut pour le cinquime accus dans laffaire Hariri, 22 October 2013.
126 The International tribunal invites Merhi to appear before it (Unofficial translation), 22 October 2013.
127 The Tribunal confirms the accusation of Merhis involvement in the assassination of Hariri(Unofficial
translation), 22 October 2013.
128 STL: Baragwanaths statement is not considered to be a new indictment(Unofficial translation), 22 October
2013.
129 The case of Hariri is to be considered on 13 January (Unofficial translation), 22 October 2013.
130 The International tribunal considers the case of Hariri on 13 January (Unofficial translation), 22 October 2013.
355
44. This further appeal was covered by media including: Naharnet,131 El-Nashra,132
Al-Mustaqbal,133 Al-Dostoor,134 MTV,135 Al Yawm Al-Sabeh,136 Al Jareeda,137 Tayyar.
org,138 KUNA,139 NNA,140 and LOrient Le Jour.141
Publicity and media coverage of the indictment in the Ayyash case
45. The Ayyash indictment is in substance the same as that against Mr.
Merhi, containing charges arising out the same factual allegations relating to
the same events of 14 February 2005. Mr. Merhi is a co-accused of the four
Accused in the Ayyash case and the Merhi indictment makes it evident that he
is the person referred to as S3/S15 in the amended Ayyash indictment. The
main procedural difference is that Mr. Merhi was indicted two years after the
four co-Accused.
46. The Trial Chamber issued its decision to proceed to trial in absentia against Mr.
Ayyash, Mr.Badreddine, Mr. Oneissi and Mr. Sabra on 1 February 2012. But before
deciding to proceed to trial in absentia, the Trial Chamber studied the extensive
131 STL President Again Urges Merhi to Appear before Court, Appoint Lawyer, 14 December 2013.
132 Baragwanath by a letter to Merhi: to get a legal advice and appoint a lawyer to represent you (Unofficial
translation), 13 December 2013.
133 Baragwanath invites the accused Merhi to appoint a lawyer (Unofficial translation), 14 December 2013.
134 The International Tribunal invites an accused of the assassination of Hariri to appear via video conference
(Unofficial translation), 13 December 2013.
135 Baragwanath calls on Hassan Habib Merhi to get legal advice, appoint lawyer, 13 December 2013.
136 The International Tribunal invites an accused in the assassination of Hariri to appear via conference (Unofficial
137 The International Tribunal invites the accused in the assassination of Hariri to appear via conference (Unofficial
138 What was the letter of the President of the Special Tribunal to the accused in the assassination of Hariri?
(Unofficial translation), 13 December 2013.
139 In both of its English and Arabic websites: Special Tribunal for Lebanon calls on accused Habib Merhi to get
a lawyer, 13 December 2013.
140 Baragwanath to Hassan Merhi: I urge you to get legal advice and appoint lawyer, 13 December 2013.
141 TSL: 2e appel du juge Baragwanath Hassan Habib Merhi linvitant se livrer la justice, 14 December
2013.
356
media publicity given to the possible indictment of the four accused before they were
indicted, concluding, at paragraph 63 of the decision,
The Lebanese public has thus known since at least 17 January 2011 of the
existence of an indictment related to the events of 14 February 2005, and,
unofficially (but nonetheless accurately) since 30 June 2011 of the names
of those suspected to be accused. And officially, since 29 July 2011, of the
precise identities of those actually indicted. Each step in this process has been
extensively covered by the Lebanese media. Each of the four Accused must
have known, from the extent of the media coverage - at least unofficially from
30 June 2011 - that he was a possible accused.
47.
And further at paragraph 60,

From the Trial Chambers examination of this media coverage it can be safely
concluded that, in a country of Lebanons size and scale of urbanization,
almost every adult by now would have some knowledge of (a) the events of
14 February 2005 (b), the fact of the indictment of 30 June 2011, and (c) the
connection of the identities of the four Accused with the indictment.
48. After the publication of the indictment and the subsequent publicity, the Trial
Chamber concluded, at paragraph 71, Between 17 and 19 August 2011, virtually all
Lebanese Arabic language media published the indictment in print, in television and
radio broadcasts and on news web sites. The decision analysed the media penetration
in Lebanon, concluding, at paragraph 59,
The Trial Chamber has reviewed a wealth of material, published in the
Lebanese and international print, broadcast and electronic media, connecting
the indictment with the names and faces of Mr Ayyash, Mr Badreddine, Mr
Oneissi and Mr Sabra. In assessing whether this information would have
independently informed the four Accused that they had been indicted, the Trial
Chamber has taken into account the media concentration and hence the likely
penetration of such information in a geographically compact country of the
size and population of Lebanon. The Lebanese media includes approximately
thirty-two magazines and fourteen daily newspapers, eight widely watched
domestic television stations, and sixteen domestic radio stations. Many have
their own web sites, also carrying news. Lebanese households, moreover, have
access to numerous satellite and cable news stations.
357
49. This statistical information remains unchanged. In relation to the amount

of media publicity that was given to the Ayyash indictment, the Trial Chamber
concluded, at paragraph 106,
The evidence establishes that massive if not blanket coverage was given in the
Lebanese media both to the indictment itself and to connecting Mr Ayyash, Mr
Badreddine, Mr Oneissi and Mr Sabra with the indictment. In the totality of
these circumstances it is inconceivable that they could be unaware that they
have been indicted.
50. The Trial Chambers decision to proceed to trial in absentia for the four
accused, and the subsequent appointment of counsel to represent them, was also
widely covered by the Lebanese media. Lebanese outlets including Naharnet,142
LOrient Le Jour,143 An Nahar, El Balad, Al Liwa,144 Al Joumhouria, As-Safir, AlAkhbar,145 NNA, NOW Lebanon,146 and The Daily Star,147 reported the decision. It
was also reported by pan-Arabic148 and international media.149
51. Within days of this decision, the then Prosecutor, Mr. Daniel Bellemare,
announced that he would soon file a new indictment, which would include a fifth
accused. The Prosecutors statement on this new fifth accused was also substantially
142 STL Trial Chamber Decides to Try Accused in Absentia, 1 February 2012.
143 Le TSL dcide de juger par dfaut les accuss du Hezbollah, 2 February 2013 and TSL : les avocats des
accuss commis doffice, 8 February 2012.
144 Trial Chamber of the International Tribunal decides to try the four accused in the assassination of Hariri in
absentia (Unofficial translation), 2 February 2012.
145 International Tribunal decides to run trials in absentia (Unofficial translation), 2 February 2012.
146 STL decides to move ahead with in absentia trials, 2 February 2012 and STL assigns defence attorneys for
Hezbollah men, 3 February 2012.
147 2012 trial a goal for STL, 2 February 2012.
148 Al Jazeera (A trial in absentia for Hariri suspects (Unofficial translation), 1 February 2012) and KUNA (Special
Tribunal for Lebanon will try suspects in the assassination of Hariri in absentia (Unofficial translation), 1
February 2012.
149 AFP (Lebanon court to try Hariri murder suspects in absentia, 1 February 2012 and Lebanon court selects
lawyers for Hariri accused, 2 February 2012); CNN (Hariri assassination suspects to be tried in absentia,
2 February 2012); AP (STL to move ahead with absentia trial, 2 February 2012); Jerusalem Post (Lebanon
tribunal to try Hariri suspects in absentia, 1 February 2012); Reuters; Policy Point) Hezbollah vs. The World:
The STL Announces it Will Conduct In Absentia Trial, 8 February 2012).
358
reported by the Lebanese major newspapers and media, such as LOrient Le Jour,150
Al Liwa,151 Al Akhbar (English),152 An Nahar,153 Naharnet,154 and Central News
Agency.155
52. On 8 February 2012 the Prosecutor confidentially filed an application to
amend that indictment to add Mr. Merhi. In March 2012, a month after this decision
was issued, at least eight Lebanese media outlets reported that Mr. Merhi was the
fifth accused in the Ayyash case who had also been involved in the Hariri attack.
These included a report on 8 March 2012 on Al Jadeed TV introduced as Al Jadeed
discovers the fifth accused that was then covered by at least six other Lebanese
media outlets, and an article on the same topic, on 28 March 2012, in Al-Akhbar
newspaper. His photograph was not shown. The reporting is detailed at paragraphs
54-57 below.
Media speculation that Mr. Merhi was involved in the February 2005 attack
before the indictment was made public
53. In making its decision to proceed to trial in absentia against Mr. Merhi, the
Trial Chamber has also examined the media publicity given to his alleged role in the
events of 14 February 2005 before the indictment was made public on 10 October
2013.
54. In March 2012, some 17 months before the confirmation of the indictment, at
least eight Lebanese media outlets reported that Mr. Merhi was a fifth but unindicted
accused who had been involved in the Hariri attack in the case of Prosecutor v.
Ayyash, Badreddine, Sabra and Oneissi. On 8 March 2012, Al Jadeed, a Lebanese
150 TSL : bientt un cinquime accus ?, 7 February 2012.
151 A fifth accused in the Hariri crime? (Unofficial translation), 2 February 2012.
152 Bellemare to Siniora: Fifth STL Suspect to be Named, 6 February 2012.
153 Bellemare informed Mikati that he is committed to submitting second indictment by end of February
(Unofficial translation), 6 February 2012 and and Youssef to An Nahar: Rules allow confidential indictment in
terms of content and timing from Bellemare (Unofficial translation), 9 February 2012.
154 Bellemare Informed Saniora that 2nd Indictment in Hariri Case to Be Complete in February, 5 February 2012.
155 Bellemare prepares a report with the results of his investigation for his successor... a fifth accused soon and the
Tribunal is convinced of the inability to apprehend the four accused (Unofficial translation), 7 February 2012.
359
TV channel report entitled Al Jadeed discovers the fifth accused was broadcast
during its evening news bulletin. The reporter announced that,
insider sources from the Tribunal informed Al Jadeed that H.M. are the initials
of the fifth accused used by the Special Tribunal for the crime of assassination
of the Prime Minister Hariri, he is Lebanese, his father is H.M. as well, and his
mother is Latifa. A. He was born in December 1965, he is from Zekak El Blat,
and his civil register number consists of four digits.
55. The reporter then stated that the mission is easy now and by searching the
electoral list he concluded, it appears clearly that H.M. is Hassan Merhi, his father is
Habeeb Merhi, and his mother is Latifa Abbas and his civil register number is 1126.
He also added that, it appears that Hassan belongs to Hezbollah, but that he does not
hold a leadership or highly ranked position.156
56. Recent ratings surveys have revealed that Al Jadeed is watched by 45% of
the Lebanese television viewers and that its morning and evening news and political
programs are the top rating in their category in Lebanon.157 The Al Jadeed report
was also covered by other media outlets including: An Nahar, Al Liwa, Al-Seyassah,
lOrient Le Jour,158 El-Nashra, Only Lebanon, and 14 March.159
57. On 28 March 2012, Al-Akhbar newspaper published a short report entitled
Hassan Merhi at the STL: Head of the Purple Network.160 Al-Akhbar reported that
the information available indicates that the name which former Prosecutor Daniel
Bellemare asked to be added to the list of those accused of involvement in the Hariri
assassination is that of Hassan Merhi and Merhi headed the group that used the
purple cell phone network and whose job was confined to tasks involving Abu
156 Al Jadeed TV, Al Jadeed discovers the fifth accused, 8 March 2012.
157 Survey of Beirut Centre for research and information, reported in Who watches what in Lebanon? A TV outside
the trench is wanted (Unofficial translation), Al-Akhbar, 13 October 2013, and Al Jadeed is the first and
the most viewed, (Unofficial translation), 13 October 2013. According to the survey, 81% of Lebanons TV
viewing Shia population watched that channel.
158 An Nahar, 9 March 2012; Al Liwa, 9 March 2012, and Al-Seyassah, 9 March 2012.
159 El-Nashra, Al Jadeed: the fifth accused in the case of the assassination of Hariri is Hassan Merhi, 8 March
2012; 14 March (news website), The Tribunal sources: The fifth accused in Hariri case is Hassan Merhi and he
belongs to Hezbollah, 8 March 2012; Only Lebanon, 8 March 2012.
160 Al-Akhbar, Hariri Investigation: A Star Witness is Born, 28 March 2012.
360
Adas. It further detailed the role of Mr. Merhi and his relationship with the other
accused. The Al-Akhbar article was published verbatim by some other news websites
including Al Bawaba,161 and was reported and analysed by others, including AlAkhbar Secrets which speculated that the Special Tribunal must have been infiltrated
by Al-Akhbar newspaper.162
58. The indictment against Mr. Merhi, made public only on 10 October 2013,
does indeed allege that Mr. Merhi was involved in the purple network, as did the
amended indictment filed on 8 February 2012 by the former Prosecutor, Mr. Daniel
Bellemare, attempting to amend the Ayyash indictment to add Mr. Merhi as a fifth
Accused. That attempt to amend the Ayyash indictment remains a confidential and ex
parte filing, but was the subject of an Appeals Chamber decision in March 2012 in
which it dismissed as inadmissible the Pre-Trial Judges referral of questions under
Rule 68(G).163 The fact that the Prosecution had sought leave to amend the Ayyash
indictment by adding a fifth accused was public, but the identity of the fifth potential
accused was not officially public.
59. On 13 August 2013, thirteen days after the confirmation of the then confidential
indictment against Mr. Merhi, Al Jadeed TV broadcast that the Special Tribunal for
Lebanon was about to indict a fifth accused, naming Mr. Merhi as this person.164 The
Al Jadeed broadcast was picked up and reported by Al Liwaa,165 LOrient Le Jour,166
El Nashra,167 and Janoubia.168
161 Hariri Tribunal Has A New Key Witness, 5 April 2012.

162 STL has been infiltrated: Al-Akhbar newspaper and Ahmad Libdeh, 29 March 2012.
163 STL, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, STL-11-01/PT/AC, Decision on the Pre-Trial
Judges request pursuant to Rule 68(G), 29 March 2012.
164 Al Jadeed TV, News bulletin, 13 August 2013.
165 The International Tribunal: An amended indictment adds a fifth accused to Hariri assassination, 14 August
2013.
166 TSL: Des rvlations sensationnelles lan prochain, promet Youssef, 14 August 2013.
167 Al Jadeed: The International Tribunal heads to add Hussein Merhi as an accused in the assassination of Hariri,
13August 2013.
168 The International tribunal: A fifth accused in the assassination of Hariri from Hezbollah, 13 August 2013.
361
Prosecutors attempts in June 2012 to interview Mr. Merhi as a suspect

60. In June 2012 after failing to have the Ayyash indictment amended by adding
Mr. Merhi to it as a fifth accused and several months after the accurate media
speculation that Mr. Merhi was the fifth accused, the Prosecutor sought the assistance
of the Lebanese authorities to interview him as a suspect.169
61. Acting under the Lebanese Prosecutor-Generals instructions, members of the
CCIS sought to find Mr. Merhi in his last known residence in Dahyieh, Bourj-ElBarajneh, Beirut on 20, 22 and 27 June 2012. However, they did not find him there.
The Acting Prosecutor-General reported:
On 20 June 2012, following their coordination with the Central Security
Committee of Hezbollah, CCIS officers went to the above-mentioned address.
Upon their arrival they entered the building and went up to the seventh floor
to the residence of Mr. Merhi. They knocked on the door of his residence and
rang the doorbell several times and remained in front of the door for about ten
minutes, but no one answered the door. They then left the building to carry out
investigations and inquiries in order to determine his whereabouts.170
On 22 June 2012, CCIS officers went again to the residential address of Mr.
Merhi in Bourj-El-Barajneh. They knocked on the door of his residence
several times but no one answered. They ascertained that the residence had no
occupants.171
On 27 June 2012, CCIS officers went again to the above-mentioned residence
address of Mr. Merhi and went to the seventh floor of the Gardenia building.
They knocked on the door several times, but no one answered. Their
investigations in the area have shown that no one currently lives in the house.172
169 Request for assistance from the Prosecutor of the Special Tribunal for Lebanon to the Government of Lebanon,
5 June 2012.
170 CCIS record, No. 1005/302, 21 June 2012, attached to the report of the Acting Prosecutor-General of 3 October
2013.
2013.
2013.
362
CCIS officers went afterwards on the same day to the Office of the mukhtar
of Bourj-El-Barajneh, and took his statement. According to the mukhtar Mr.
Merhi was a resident in El-Roueiss, Gardenia building behind the Sayyed Al
Shuhada Association. The mukhtar stated that he had no personal knowledge
of Mr. Merhi. According to his information acquired through his frequent visits
to the area and his personal knowledge of many of its residents because it is
administratively part of Bourj-El-Barajneh, Hassan Habib Merhi is currently
not in the Gardenia building. The mukhtar does not know his place of residence
or his whereabouts. The mukhtar told CCIS officers that Mr. Merhi does not
vote in Bourj-El-Barajneh.173
62. The Trial Chamber is thus satisfied that as of 27 June 2012, some three months
after extensive reporting in the Lebanese media that he was the fifth accused in the
Ayyash case, Mr. Merhi could not be located at his last known place of residence in
Dahyieh.
APPLICABLE LAW FOR PROCEEDING TO TRIAL

63. Article 22 of the Statute of the Special Tribunal authorises a Trial Chamber to
conduct trials in absentia,
1. The Special Tribunal shall conduct trial proceedings in the absence of the
accused, if he or she:
(a) Has expressly and in writing waived his or her right to be present;
(b) Has not been handed over to the Tribunal by the State authorities concerned;
(c) Has absconded or otherwise cannot be found and all reasonable steps
have been taken to secure his or her appearance before the Tribunal and to
inform him or her of the charges confirmed by the Pre-Trial Judge.
64. Before initiating proceedings in absentia, the Trial Chamber must determine
whether the requirements of Rule 106 have been met, namely,174
2013.
174 STL-11-01/I/TC, Decision to hold trial in absentia, 1 February 2012, footnote 38: A difference exists between
363
(A) Where the accused:

i) has expressly and in writing waived his right to be present at
proceedings before the Tribunal;
ii)
has not been handed over to the Tribunal by the State authorities
concerned within a reasonable time; or
iii) has absconded or otherwise cannot be found and all reasonable

steps have been taken to secure his appearance before the Tribunal
and to inform him of the charges by the Pre-Trial Judge;

the Trial Chamber shall conduct proceedings in absentia.
(B) Where the accused is not present on account of the failure or refusal
of the relevant State to hand him over, before deciding to conduct
proceedings in absentia, the Trial Chamber shall: (i) consult with the
President and ensure that all necessary steps have been taken with a
view to ensuring that the accused may, in the most appropriate way,
participate in the proceedings; and (ii) ensure that the requirements of
Article 22 (2) of the Statute have been met.
65. Rule 106 (A) (iii) contains several overlapping considerations. The first is
that the Trial Chamber must be satisfied that an accused has absconded or cannot
be found. The second is that all reasonable steps have been taken to secure the
appearance of the accused before the Tribunal. The third, concurrent with the second,
the English and French versions of Rule 106. The English version uses the words shall conduct proceedings
in absentia whereas the French provides peut dcider dengager une procedure par dfaut. The English
version of Rule 106 follows the wording of Article 22 of the Statute in English, French (le Tribunal conduit
le procs en labsence de laccus) and in Arabic. The English and Arabic versions of Rule 106 are thus more
consistent with Article 22, as written in the Tribunals three official languages. Applying the rules of statutory
interpretation relating to texts in different languages the meaning which best reconciles the texts, having regard
to object and purpose [of the treaty] in Article 33 (4) of the 1969 Vienna Convention on the Law of Treaties, the
Trial Chamber accordingly defers to the English and Arabic versions in preference to the French version of Rule
106 (see also the discussion in the decision of the Appeals Chamber, STL-11-01/I/AC/R176bis, Interlocutory
decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging, 16February
2011, para. 26, footnotes 40-41, referring to the ICTY and ICTRs use of the Convention in interpreting the
Statutes and Rules of those Tribunals).
364
is that all reasonable steps have been taken to inform the accused of the charges in
the indictment.175
66. With respect to an accused persons knowledge of the charges against them,
the Appeals Chamber interpreted these provisions in conformity with the applicable
standards of international human rights law, concluding that in absentia trials are
possible only where:
i)
reasonable efforts have been taken to notify the accused personally;
ii)
the evidence as to notification satisfies the Trial Chamber that the accused
actually knew of the proceedings against them; and that,
iii)
it does so with such degree of specificity that the accuseds absence means
they must have elected not to attend the hearing and therefore have waived
their right to be present.176
67. The Appeals Chamber also expressly noted, there is no requirement under the
Tribunals Statute or Rules, or under human rights law that the Trial Chamber must
receive positive evidence of the accuseds knowledge, or that notification must be
carried out officially and in person. Rather, the Trial Chamber must be satisfied that
the three elements set out above are met on the basis of the available evidence before
it. That may be done by inference from the circumstances.177
175 STL-11-01/I/TC, Decision to hold trial in absentia, 1 February 2012, footnote 41: The Trial Chamber resolves
the ambiguity in the wording of the English version of the Rules which may appear to require the Pre-Trial
Judge to take all reasonable steps to secure an appearance and to inform the accused of the charges, by giving
the Rule is natural meaning, namely, that the charges have been confirmed by the Pre-Trial Judge, as is clear
from the French and Arabic version of the Rules.
176 STL-11-01/PT/AC/AR126.1, Corrected Version of Decision on Defence Appeals against Trial Chambers
Decision on Reconsideration of the Trial in absentia Decision, 1 November 2012, para. 31.
177 Corrected Version of Decision on Defence Appeals against Trial Chambers Decision on Reconsideration of the
Trial in absentia Decision, 1 November 2012, para. 32.
365
SUBMISSIONS
68. To assist its determination of whether to initiate proceedings in absentia, the
Trial Chamber, on 3 December 2013, sought written submissions from the Office of
the Prosecutor, Mr. Merhi, and the Defence Office, by 9 December 2013.178
Prosecutions submissions regarding Rule 106
69. The Prosecution filed written submissions, indicating that efforts to try to locate
Mr. Merhi have been on-going since June 2012 but that the Lebanese authorities
had been unable to find him.179 The Prosecution submitted that, given the present
security situation in Lebanon, the Lebanese authorities have taken all reasonable
steps available to secure Mr. Merhis appearance, and that these are consistent with
those undertaken with respect to the four accused in the Ayyash case.180
70. In addition, public advertisements have been published in major national,
regional and international newspapers and public announcements made via broadcast
and social media.181 According to the Prosecution, there is no information to suggest
that Mr. Merhi has waived in writing his right to be present and regardless of
whether he has absconded, he has not been found and his whereabouts are presently
unknown.182
71. The Prosecution acknowledged that the security situation in Lebanon had
deteriorated since February 2012 when the Trial Chamber decided to proceed to a
trial in absentia in the Ayyash case. This should be considered in assessing the steps
taken by the Lebanese authorities in trying to secure Mr. Merhis appearance before
the Tribunal.183
178 STL, The Prosecutor v. Hassan Habib Merhi, STL-13-04/I/TC, Scheduling order in respect of Rule 106 of the
Rules of Procedure and Evidence, 3 December 2013.
179 Prosecution submissions pursuant to Rule 106, Confidential, 9 December 2013, paras 2, 12 and 13. Public
Redacted Version dated 18 December 2013 (Prosecution submissions).
180 Prosecution submissions, para. 3.
181 Prosecution submissions, para. 4.
182 Prosecution submissions, paras 7, 8, 11 and 13.
183 Prosecution submissions, paras 20 23.
366
72. With respect to Mr. Merhis knowledge of the charges against him, the
Prosecution submits that sufficient efforts have been made by the Lebanese authorities
to inform him of the charges. While accepting that the Lebanese authorities have been
unable to affix the indictment at any of the addresses associated with Mr. Merhi, the
Prosecution submits that the Lebanese authorities have undertaken reasonable steps
to serve the indictment on him personally by visiting or investigating the relevant
addresses.184 Significant efforts have also been made to inform Mr. Merhi of the
charges against him by public advertisement,185 and by the Tribunal itself through
press releases and media advisories, interviews, the use of social media and a direct
statement by the President of the Tribunal.186
73. The Prosecution concluded that the present security situation in Lebanon
prevented the Lebanese authorities from taking steps in certain areas where the
conditions of security are precarious. The Trial Chamber should therefore determine,
in the prevailing circumstances, that all reasonable steps have been taken to inform
Mr. Merhi of the charges against him. The Trial Chamber should thus proceed to trial
in absentia against Mr. Merhi.187
Defence Office submissions regarding Rule 106
74. By contrast, the Defence Office made no substantive submissions, claiming
that before any could be made, it needed to see four additional documents, those being
three internal Tribunal memoranda and an unredacted copy of the Pre-Trial Judges
confidential decision confirming the indictment against Mr. Merhi. The Defence
Office, however, otherwise had copies of the same documents relied upon by the
Prosecution making its substantial submissions. On 9 December 2013, by motion,
the Defence Office requested these four documents. The Trial Chamber then emailed
the three internal memoranda to both the Defence Office and the Prosecution, but
184 Prosecution submissions, paras 28 and 33.

367
saying that they were of minor significance and that submissions on those documents
were not required.
75. The three documents are merely internal memoranda between the Registry
and the Presidents Office, or Trial Chamber, seeking and forwarding documents
within the Tribunal. The Trial Chamber, however, had already provided the Defence
Office with the documents attached to the memoranda (namely the media information
referred to above) for the express purpose of making the submissions. These
internal memoranda are inconsequential and irrelevant. The unredacted decision of
the Pre-Trial Judge confirming the indictment is likewise immaterial to a decision
under Rule 106. The redactions are of the names of victims and of an investigative
procedure. The Defence Office has a public redacted version of the decision in which
paragraphs 7982 specifies the need to preserve its confidentiality.188 On 9 December
2013, the Defence Office filed some observations but expressed them to be without
prejudice to receiving the documents requested.189 The submissions, however, were
not substantive and have not assisted the Trial Chambers determination of the issue.
No further submissions were filed by the Defence Office and the Trial Chamber
expresses its disappointment about this unnecessary course of events.
Submissions for Mr. Merhi regarding Rule 106
76. The Trial Chamber instructed the Registrar to take the necessary steps to
notify Mr. Merhi of the scheduling order requesting submissions.190 The Registry
informed the Trial Chamber on 5 December 2013 that the Acting Prosecutor-General
had received the Registrars letter requesting him to serve the scheduling order on
Mr. Merhi.191
188 STL-13-04/I/PTJ, Public redacted version of the Decision relating to the examination of the indictment of 5
June 2013 issued against Mr. Hassan Habib Merhi dated 31 July 2013, 11 October 2013.
189 STL-13-04/I/TC, Observations du Bureau de la Dfense relatives lapplication de larticle 106 A) du
Rglement de Procdure et de Preuve, 9 dcembre 2013.
190 Scheduling order in respect of Rule 106 of the Rules of Procedure and Evidence, 3 December 2013, para. 3 (iii).
191 Email from Registry to the Legal Officer of the Trial Chamber, 9 December 2013.
368
77. On 16 December 2013, the Acting Prosecutor-General reported that CCIS

officers had attempted to serve the scheduling order on Mr. Merhi in Dahyieh. Before
attempting to visit his apartment, the report states that they consulted a representative
from the Hezbollahs Central Security Committee, Abou-Ali Diab, who told them
that they could not serve the documents on Mr. Merhi for the time being by affixing
them on the door of the Gardenia building because the parents of the accused Hassan
Merhi were very upset after his name was associated with the case of assassination
of the Prime Minister Rafik Hariri.192
78. On 14 December 2013, they visited the mukhtar of Bourj-El-Barajneh and
presented to him the documents to be served on Mr. Merhi. However, according to
the CCIS report, the mukhtar said that he was unable to accept them because of the
sensitivity of the current situation, and that he could not give a written statement
related to the matter. The mukhtar, however, signed the record of this encounter.193
79.
The Trial Chamber has received no submissions from Mr. Merhi.
DISCUSSION
80. Article 22 of the Statute of the Tribunal states that the Trial Chamber shall
proceed to trial in absentia in specified circumstances. The Trial Chamber has
received no material suggesting that Mr. Merhi has expressly and in writing waived
his or her right to be present, under Rule 106 (A) (i), nor that he has not been
handed over to the Tribunal by the State authorities concerned, under Rule 106 (A)
(ii). The Trial Chamber likewise has no information to the effect that the accused
is not present on account of the failure or refusal of the relevant State to hand him
over, according to Rule 106 (B).
81. For the Trial Chamber to be satisfied that Mr. Merhi has not been handed over
to the Tribunal by the State authorities concerned, it would have to be satisfied that
the relevant State authorities at least knew where he could be located. The evidence
192 CCIS record, No. 1800/302, 10 December 2013 (revised on 16 December 2013), attached to the report of the
Acting Prosecutor-General of 16 December 2013.
193 CCIS record, No. 1800/302, 10 December 2013, attached to the PG report of 16 December 2013.
369
before the Trial Chamber, as detailed in the reports of the Acting Prosecutor-General,
suggests the opposite. The Trial Chamber can therefore make a positive finding that
Mr. Merhi has not been handed over to the Tribunal by the State authorities concerned
under Rule 106 (A) (ii). From this it follows that Rule 106 (B) is inapplicable.
82. The totality of the evidence before the Trial Chamber also establishes that
Mr. Merhi has not expressly and in writing waived his or her right to be present
pursuant to Rule 106 (A) (i). There is simply no evidence of this.
83. The remaining basis upon which the Trial Chamber could order the proceedings
to be conducted in absentia is under Rule 106 (A) (iii) which mirrors Article 22 (1)
(c), namely that he has absconded or otherwise cannot be found and all reasonable
steps have been taken to secure his appearance before the Tribunal and to inform him
of the charges by the Pre-Trial Judge.
84. The Trial Chamber has no positive information as to the whereabouts of Mr.
Merhi, but the available evidence neither suggests nor establishes that he has left
Lebanon since the indictment was transmitted to the representatives of the Government
of Lebanon on 6 August 2013. The Trial Chamber is therefore proceeding on the
basis that it should confine its analysis under Rule 106 to sub-rule (A) (iii), namely
that an accused has absconded or otherwise cannot be found and hence examine
whether all reasonable steps have been taken to secure his appearance before the
Tribunal and to inform him of the charges by the Pre-Trial Judge. As the information
available to the Trial Chamber does not suggest that Mr. Merhi is not in Lebanon, the
analysis is confined to the measures taken in Lebanon.
85. These measures, detailed at paragraphs 16-44, include attempted visits to Mr.
Merhis last known places of residence, extensive inquiries of public registers, the
circulation of a wanted notice against Mr. Merhi, and the publication in the Lebanese
media of a poster containing biographical information and photographs of him, and
describing the charges. Additionally, in determining whether Mr. Merhi is aware
of the indictment, the Trial Chamber has examined the Lebanese medias coverage
connecting him with the indictment, both before and after its official publication by
the Special Tribunal in October 2013. The Trial Chamber has also considered the
370
extensive media coverage in Lebanon in 2011 and 2012 of the indictment of Mr.
Ayyash, Mr. Badreddine, Mr. Oneissi and Mr. Sabra, in which the charges against the
four accused in that case received near blanket coverage in the media.
86. The Trial Chamber has scrutinized the efforts made by the Lebanese authorities
to apprehend Mr. Merhi and to notify him of the charges against him by using the
personal and exceptional procedures for notification specified under the Lebanese
Code of Criminal Procedure. The Trial Chamber notes with great concern that the
CCIS was prevented from completing its task of attempting to notify Mr. Merhi in
person by visiting his last known place of residence in South Beirut.
87. The Trial Chamber has considered all of the steps taken to inform Mr. Merhi
of the charges as confirmed by the Pre-Trial Judge in the indictment, including the
formal requirements for notifying an accused person of the charges specified in
Rule 76 and requiring personal service, or where this cannot be effected, a form of
alternative service that may be ordered under Rule 76 (E).
88. The Trial Chamber has also applied the standards identified at paragraph 31 of
the Appeals Chambers decision of 1 November 2012, namely, that:
i)
reasonable efforts have been taken to notify the accused personally;
ii)
actually knew of the proceedings against them; and that,
iii)
their right to be present.194
reasonable efforts have been taken to notify the accused personally

89. Reasonable efforts must be evaluated according to the totality of the
circumstances. They may include a combination of the measures taken according
194 STL, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, STL-11-01/PT/AC/AR126.1, Decision on Defence
Appeals against Trial Chambers Decision on Reconsideration of the Trial in absentia Decision, 1 November
2012, para. 31.
371
to Lebanese criminal procedural mechanisms, those specified in the Statute and

Rules of the Special Tribunal, and other measures which, although not set out in
the Lebanese or Tribunals statutory instruments, may nonetheless be contextually
considered. These could include publicity, advertisements, wanted posters and social
and media reporting. The efforts must be reasonable; actual personal service is not
required.
90. The following steps have been taken according to Article 147 of the Lebanese
Code of Criminal Procedure in attempting the personal service required under Rule
76 (B):
The Lebanese CCIS, acting on the instructions of Lebanons Acting ProsecutorGeneral has attempted to visit the last known address of Mr. Merhi in Dahyieh,
Bourj-El-Barajneh, Beirut,
The CCIS first went to this address in June 2012, but were informed by the
local mukhtar that he no longer lived there,
The CCIS attempted to return there in September and November 2013, but
were denied access to the suburb due to security measures implemented by
Hezbollah. They were also informed that Mr. Merhis family did not want the
CCIS to go to the apartment because they were upset that his name had been
connected with the assassination of Rafik Hariri,
The CCIS returned to Dahyieh on 6 December 2013 searching for Mr. Merhi.
They were, however, unable to locate him at his last known place of residence
and were informed that he was not there, 195
The CCIS made another visit to the Dahyieh area on 10 December 2013
searching for Mr. Merhi, but were unsuccessful in locating him there, 196 and,
On 7 December, 2013, CCIS officers travelled to Ain Qana, South Lebanon,
attempting to locate Mr. Merhi. Following searches and inquiries, they were
informed that Mr. Merhi was not in his home village and does not live there.
They returned to the village on 15 December 2013 with the same result. 197

372
91. The subsequent additional steps were taken, pursuant to Article 148 of the
Lebanese Code of Criminal Procedure, after the Tribunals President issued an order
for alternative service under Rule 76 (E):
The indictment was posted on a notice board at the Court of Cassation in Beirut
and at the entrance to the Special Tribunals Beirut Office,
The Acting Prosecutor-General unsuccessfully attempted to notify the mukhtars
of addresses where Mr. Merhi may have been living in South Beirut and in
South Lebanon. The mukhtars, however, failed to attend scheduled interviews,
and
The Registrar of the Special Tribunal had the indictment and warrant of arrest
sent by registered mail to the four mukhtars, on 17 December, 2013.
92. Additionally, the Trial Chamber holds that the following measures could be
considered as part of reasonable efforts to notify the Accused personally:
the indictment has been widely publicised in the Lebanese media,
an audio-recording of the charges against Mr. Merhi issued by the Tribunal
was extensively circulated by the Lebanese media,
an advertisement in the form of a wanted poster was issued by the Tribunal
and widely published in the Lebanese media and posted at the Court of
Cassation, and
two messages from the President of the Special Tribunal, on 21 October 2013
and 13 December 2013 calling on Mr. Merhi to face the Tribunal and to get
a lawyer and legal advice were extensively broadcast in the Lebanese media.
93. The Trial Chamber must view the steps taken by the Acting Prosecutor-General
as a whole and within the prevailing circumstances. The Lebanese authorities were
unable to complete some notification formalities normally employed under the
Lebanese Code of Criminal Procedure law to inform an accused person of charges
against them. This failure under Articles 147 and 148 does not of itself mean that
the Trial Chamber could not be satisfied that reasonable efforts have been taken to
notify the accused personally. Reasonable efforts must be interpreted in the light
of what is possible in the prevailing circumstances, but combined with whether Mr.
Merhi actually knew of the charges against him.
373
94. The Trial Chamber reiterates the former Lebanese Public Prosecutors
assessment to the President of the Tribunal in respect of his attempts to notify the
four accused in the Ayyash case of the indictment against them.198 He described what
he termed the delicate and sensitive political and security situation in Lebanon, and
the difficulties faced by the Lebanese authorities in executing thousands of arrest
warrants in absentia decades ago against persons who have committed different
crimes and who have been secretly moving from one region to another. It is most
likely that they are receiving help from their relatives and others who share common
political views or religious or regional affiliations.
95. The Trial Chamber is thus satisfied that the combination of these measures
under the Tribunals Rules and Lebanese law constitutes reasonable efforts to
notify Mr. Merhi personally of the charges against him.
actually knew of the proceedings against them
96. The Trial Chamber held in its decision of 1 February 2012 in the Ayyash case
that the enormous publicity given to the indictment in that case had notified almost
every adult in Lebanon that four men were accused of acts of terrorism under
Lebanese law in the explosion that killed Rafik Hariri and 21 others, and injured over
200. The widespread media publicity given to the Ayyash indictment from the second
half of 2011 onwards, including after the decision of 1 February 2012, also served
to notify Mr. Merhi, at least in a general sense, that an indictment had been issued
against four men who were alleged in that indictment to be Hezbollah supporters.
97. Mr. Merhi was indicted on 31 July 2013. In February 2012, Prosecutor
Bellemare had publicly announced that he wished to amend the indictment to add
a fifth accused. In March 2012 a month after Prosecutor Bellemare had filed an
amended indictment in the Ayyash case, attempting among other things to add Mr.
Merhi as an accused to that indictment publicity started appearing in the Lebanese
media stating that Mr. Merhi was the fifth Accused on the indictment and linking
198 STL-11-01/I/TC, Decision to hold trial in absentia, 1 February 2012, para. 116.
374
him to the crimes charged in relation to 14 February 2005. The publicity included
a detailed report on one of Lebanons most popular television stations naming Mr.
Merhi as the fifth accused in the case. Three weeks later, a Lebanese newspaper
published a report naming Mr. Merhi as the head of the purple network, as alleged
in the Ayyash indictment.
98. Seventeen months later, on 13 August 2013, and just thirteen days after the
Pre-Trial Judge had confirmed the then confidential and ex parte indictment against
Mr. Merhi, he was again named in the Lebanese media as the fifth accused. The
Acting Prosecutor-General reported to the President of the Tribunal that CCIS
officers had been prevented by Hezbollahs Central Committee from entering the
suburb in Beirut where Mr. Merhi had his last known address. Officers of Hezbollahs
Central Security Committee also reportedly told the CCIS that Mr. Merhis family
were upset that his name had been circulated in the media as an accused in the case
of the assassination of Prime Minister Rafik Hariri.
99. Since 11 October 2013, the Lebanese media has extensively covered both that
Mr. Merhi has officially been indicted in relation to the crimes charged in the Ayyash
case and what the charges against him are. These reports include from 10 October,
information about the indictment after it was made public; from 11 October, wanted
posters published widely in the media; from 14October, the audio broadcast; and,
from 21 October and then 13 December 2013, the Presidents statement in relation
to the charges against Mr. Merhi.
100. The Trial Chamber is satisfied from the enormous publicity in Lebanon
connecting Mr. Merhi to the Ayyash case that Mr. Merhi must have been aware that
he had been indicted as a co-accused in the Ayyash case. This is derived from the
combination of (a) the massive publicity surrounding the indictment in the Ayyash
case from February 2011 onwards (b) that publicity connecting Mr.Merhi with the
case as the fifth accused in March and June 2012, and then again in August 2013, and
(c) the media publicity from 10 October 2013 naming him as an accused person and
publicising the charges against him.
375
101. Moreover, the mukhtar of Bourj-El-Barajneh knew that the CCIS had attempted
to find Mr.Merhi at his last known residence in Bourj-El-Barajneh in Dahyieh in
June 2012, just three months after it was widely broadcast in the Lebanese media
that he was a possible fifth accused in the Ayyash case. The Trial Chamber is entitled
to draw a reasonable inference that the mukhtar associated the CCISs visits to the
apartment in Dahyieh with this publicity and that the visits were connected with the
events of 14 February 2005. The CCIS were effectively prevented by Hezbollah
officials from attempting personal service on Mr. Merhi between August 2013 and 6
December 2013 in Dahyieh, and until 7 December 2013 in Ain Qana, South Lebanon.
When the CCIS officers were finally able to visit the possible last known addresses
of Mr. Merhi in these two locations where he is registered as owning property in
December 2013 they were informed that he lives in neither place. Return visits
within days produced the same answers. The Trial Chamber is entitled, from this
sequence of events, to draw the inferences necessary to conclude that Mr. Merhi has
absconded or otherwise cannot be found.
their right to be present
102. This condition does not require the express waiver specified Rule 106 (A)
(i). Rather, it refers to a waiver derived from analysing the available evidence and
concluding from the totality of the circumstances that an accused person must have
positively decided not to attend the hearing, and thus waived their right to be present.
103. The Trial Chamber has reached that conclusion. The publicity in Lebanon of
the charges against Mr. Merhi has been so great that he must have known of them.
The fact that he has failed to appear to respond to the charges either in person or
through a lawyer leads the conclusion that he has elected not to attend the hearing
and has therefore waived his right to be present.
104. CCIS officers were able to go to Mr. Merhis apartment in Dahyieh, Beirut in
June 2012 before he was indicted and to communicate with the relevant mukhtars,
who informed them that he no longer lived there. At that time, however, his alleged
376
connection with the Ayyash indictment as the fifth accused had been well-publicised
in the Lebanese media, and he was not to be found there. The mukhtar must have
known from the publicity in the Lebanese media that Mr. Merhi was alleged to have
be the fifth accused.
105. Fourteen months later, and after Mr. Merhi was indicted, these same mukhtars
failed to appear when summoned by the CCIS for an interview. This was before the
indictment was made public in October 2013 but after the CCIS had attempted to
go back to the same apartment in August 2013. The CCIS officers, who were able to
go to the apartment in Dahyieh in June 2012 were prevented entry into the suburb
between August 2013 and 6 December 2013.
106. The Trial Chamber is satisfied that Hassan Habib Merhi must be aware that he
has been indicted as a co-accused in the case arising out of the attack on 14 February
2005. Mr. Merhi must know that he has been charged with conspiracy to commit
a terrorist act relating to the deaths of Rafik Hariri and the others killed and those
injured in the blast on that day. According to the CCIS, his family were upset that
he had been indicted and did not want CCIS officers to approach their apartment in
Dahyieh. Whether that was actually a pretext for preventing their entry to Dahyieh,
as the CCIS believed, is unimportant. The CCIS had been informed in June 2012
by the mukhtar that Mr. Merhi no longer lived in Dahyieh and they were thereafter
prevented until December 2013 from ascertaining this fact for themselves.
107. Further, enormous publicity was given in Lebanon to the fact that a trial
of those charged with committing the attack was occurring in Leidschendam, the
Netherlands and that the trial was being held in the absence of the four accused.
The publicity was such that Mr. Merhi must have known that if he did not come
forward to defend the charges, the case against him too could be held in absentia. In
these circumstances, the only reasonable conclusion available to the Trial Chamber
is that Mr. Merhi has exercised a voluntary choice not to attend the trial. The size of
Lebanon and the concentration of its media is such that the publicity given to Mr.
Merhis alleged role as a fifth accused in the Ayyash case before his indictment was
so extensive and comprehensive that he must have known that he was suspected of
having participated in the attack of 14 February 2005, and that he could be indicted.
377
CONCLUSION
108. Mr. Merhi is a Lebanese citizen. He is listed in the civil register of ZqaqEl-Blat, as living in an apartment in Bourj-El-Barajneh in Dahyieh, South Beirut.
Lebanese entry and exit recordsreveal that he has not been recorded as leaving
Lebanon since returning from a visit to Syria in October 2002. There is no information
available to the Trial Chamber to suggest that he has left Lebanon. All attempts to
personally serve him with the indictment and arrest warrant have failed. Alternative
methods of service have been employed, including providing the relevant mukhtars
with the indictment and arrest warrant, and posting and circulating wanted posters
of Mr. Merhi. Lebanon is geographically compact with a vibrant and independent
media that reports events connected with the Special Tribunal. An enormous amount
of publicity has been given in Lebanon to Mr. Merhis indictment and the charges
against him. Much media coverage has connected him with the Ayyash indictment
and the attack of 14 February 2005.
109. The Trial Chamber therefore satisfied, according to the Appeals Chambers
interpretation of Article 22 and Rule 106, that reasonable efforts have been taken
to notify Mr. Merhi personally, the evidence of notification is such that he actually
knew of the proceedings against them, and it does so with such specificity that Mr.
Merhis absence means that he must have elected not to attend the trial and has
therefore waived his right to be present.
110. The mukhtars of Bourj-El-Barajneh, Haret-Hreik, Zqaq-El-Blat and the
village of Ain Qana in South Lebanon have refused to cooperate with the Acting
Prosecutor-Generals attempts to serve the indictment and arrest warrants on them as
required under Article 148 of the Lebanese Code of Criminal Procedure. Mr. Merhi
could not be found in Dahyieh in June 2012 several months after his name had
been publicised as the fifth accused in the Ayyash case. The CCIS reported that,
between August 2013 and December 2013, Hezbollah prevented the CCIS to access
to the apartment in Bourj-El-Barajneh in Dahyieh and the village of Ain Qana, but
that when they went twice to these locations in December 2013 they were informed
that Mr. Merhi lived in neither . The combination of these events permits the Trial
Chamber to conclude that Mr. Merhi has absconded or otherwise cannot be found.
378
111. The Trial Chamber is satisfied that under Article 22 (1) (c) Mr. Merhi has
absconded or otherwise cannot be found and all reasonable steps have been taken
to secure his appearance before the Tribunal and to inform him or her of the charges
confirmed by the Pre-Trial Judge. The Trial Chamber will therefore order under
Rule 106 (A) that the proceedings be conducted in absentia.
DISPOSITION
FOR THESE REASONS, the Trial Chamber:
DECIDES, pursuant to Article 22 of the Statute of the Special Tribunal and rule 106
(A) of the Rules of Procedure and Evidence, to proceed to try Hassan Assad Merhi
in absentia.
Done in Arabic, English, and French, the English version being authoritative.
Leidschendam, The Net
20 December 2013
herlands
Judge David Re,

Presiding
379
380
INDEX
2013
The numbers referred to are the paragraph numbers of the decisions. The short titles of decisions are intended for
ease of reference, they are not official titles.
THEME
LOCATION
Absconded
Trial in absentia TC, 4, 63-65, 70, 83, 84, 101, 110, 111.
Abuse of power
Reconsideration of a Decision AC, 10.
Abuse of process
Reconsideration of a Decision AC. 11, 15.
Access to information
Disclosure of Lebanese Case File PTJ, 22.
Accomplice
Indictment of Mr Merhi PTJ, 26, 37, 39, 55, 56, 58, 59, 63, 67, 71,
77.
Accused, absence of
Disclosure of Lebanese Case File PTJ, 22; Vacating Trial Date PTJ,
9; Trial in absentia TC, 63, 107; Pre-Trial Report PTJ, 40.
Accused, concerning personal Pre-Trial Report PTJ, 37, 38-53.

information
Accused, rights of
Disclosure of Lebanese Case File PTJ, 6, 9, 12, 17, 21, 22; Vacating
Trial Date PTJ, 19; Total Anonymity of Victims AC, 14, 21, 23-27,
31, 36-39 ; Total Anonymity of Victims AC (Concurring Opinion
of Judge Baragwanath), 4-5, 15, 25-26, 28-29; Total Anonymity
of Victims AC (Partially Dissenting Opinion of Judges Riachy and
Nsereko), 13; Leave to Amend Indictment PTJ, 17, 20-21, 24, 26,
30-31, 33-34; Admissibility of Witness Statements TC, 16; Defects
in Form of Indictment TC, 13, 15, 23; Inspection of Call Data
Records AC, 15; Challenging Decision of the President AC, 10; PreTrial Report PTJ, 28, 34,129.
Ad hoc tribunals
Vacating Trial Date PTJ, 17; Defects in Form of Indictment TC, 16.
Administrative decision
Composition of the Trial Chamber PRES,12,15; Challenging

Decision of the President AC, 9.
Admissibility criteria
Admissibility of Witness Statements TC, 22, 23, 26.
Admissibility - into evidence
Admissibility of Witness Statements TC, 1-3, 6-9, 13, 19, 22, 24-27,
30, 31, 33, 34, 37; Pre-Trial Report PTJ, 133, 134, 136, 137, 140.
Admissibility - of appeal
Total Anonymity of Victims AC,7,10; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath) 1; Total Anonymity
Nsereko), 1, 22; Challenging Decision of the President AC, 10.
Admissibility - of statements
Admissibility of Witness Statements TC, 4, 7, 19, 22, ; Pre-Trial

Report PTJ, 155.
381
Index
Admissions of fact
Disclosure of Documents AC, 3, 18, 20, 24, 31.
Adversarial principle
Aggravating circumstances
Indictment of Mr Merhi PTJ, 25-26.
Al-Jazeera
Defects in Form of Indictment TC, 44-45-46; Indictment of Mr

Merhi PTJ, 45, 51-53, 57; Pre-Trial Report PTJ, 121-127.
Alleged facts
Defects in Form of Indictment TC,17.
Amended indictment
Defects in Form of Indictment TC, 1, 2, 6-12, 19, 21, 22, 25, 27, 30,
31, 34, 36, 37, 41, 43-45, 47, 49, 50-52.
Amendments to the
indictment
Leave to Amend Indictment PTJ, 1, 6, 17, 20, 27-28, 30-34,

Disposition; Defects in Form of Indictment TC, 8; Indictment of Mr
Merhi PTJ, 5, 78; Pre-Trial Report PTJ, 7-9,11, 13, 14, 18, 52.
Annulment of indictment
Defects in Form of Indictment TC, 20-23.
Anonymity, definition of
Total Anonymity of Victims AC, 22, 30.
Anonymity, of victims
Total Anonymity of Victims AC, 3, 6, 19, 21, 22, 24, 26, 32, 34;
Total Anonymity of Victims AC (Concurring Opinion of Judge
Baragwanath), 3, 13, 16, 18-19, 21, 24.
Anonymity, of witnesses
Total Anonymity of Victims AC, 35-36; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath), 21, 24.
Anonymity, permanent

Baragwanath), 3, 26.
Appeal, nature of
Total Anonymity of Victims AC (Partially Dissenting Opinion of

Judges Riachy and Nsereko), 2.
Appeals Chamber,
jurisdiction, powers
Total Anonymity of Victims AC, 8, 11; Total Anonymity of Victims

AC (Partially Dissenting Opinion of Judges Riachy and Nsereko),
2-3, 5, 13, 18, 21; Defects in Form of Indictment TC, 38-39;
Challenging Decision of the President AC, 10-11; Admissibility of
Witness Statements TC, 9; Challenging Decision of the President
AC, 8, 11.
Appeals Chamber,
jurisprudence
Defects in Form of Indictment TC, 38-39; Challenging Decision of

the President AC, 10-11.
Appellants, status of

Judges Riachy and Nsereko), 2.
Appellate review, right to

seek
Total Anonymity of Victims AC, 15-16, 19.
Applicable law
Disclosure of Documents AC, 27; Indictment of Mr Merhi PTJ, 25,

27; Trial in absentia TC, 63-67.
Application of case law
Disclosure of Documents AC, 27.
382
Index
Argumentum e contrario
Total Anonymity of Victims AC, 13; Total Anonymity of Victims AC

(Partially Dissenting Opinion of Judges Riachy and Nsereko),15.
Arrest warrants
Leave to Amend Indictment PTJ, 1, 7, 17, 37-38; Indictment of Mr

Merhi PTJ, 2, 21; Trial in absentia TC 12, 14, 18, 26, 28, 32-34, 85,
89, 91, 92, 99, 108.
Attack of 14 February 2005
Disclosure of Documents AC,31; Total Anonymity of Victims AC

(Concurring Opinion of Judge Baragwanath), 16; Leave to Amend
Indictment PTJ, 25; Inspection of Call Data Records AC,10;
Indictment of Mr Merhi PTJ, 1, 34-35, 37, 57, 60, 74; Pre-Trial
Report PTJ, 1, 5, 36, 37, 54-62, 65, 66, 83-95, 102-129, 146, 156160, 163, 165, 173, 176, 178-180, 183, 188-190; Trial in absentia
TC,5,35,96-97,106-108.
Attacks, Kuwait
Pre-Trial Report PTJ, 44-46, 132, 139-141.
Attribution of phones
Indictment of Mr Merhi PTJ, 34(ii), 35; Pre-Trial Report PTJ, 37,

54, 60, 62-65, 68-69, 72, 75, 77-83, 94, ,130, 156, 161-162.
Audi alteram partem,

principle
Disclosure of Documents AC, 6, 7; Total Anonymity of Victims AC

(Concurring Opinion of Judge Baragwanath), 10,18, 27.
Bagilishema case (ICTR)
Inspection of Call Data Records AC, 28.
Bemba case (ICC)
Disclosure of Lebanese Case File PTJ, 24; Total Anonymity of

Victims AC, 26.
Briefs, of the Prosecution,

Counsel for the Defence,
LRV
Pre-Trial Report PTJ,1-2,15, 21, 23, 24, 32, 34, 35.
Broadcast
Trial in absentia TC, 30,37, 39, 48, 59, 70, 99.
Call Data Records (CDRs)
Vacating Trial Date PTJ, 14; Inspection of Call Data Records AC,
2; Indictment of Mr Merhi PTJ,46; Pre-Trial Report PTJ, 73, 82,
83, 163.
Call Data Report
Pre-Trial Report PTJ, 100.
Call Sequence Tables (CST)
Car bomb
Trial in absentia TC, 19.
CCTV (closed circuit TV

cameras)
Pre-Trial Report PTJ,112, 156, 178.
CDRs, temporal scope
Inspection of Call Data Records AC,13.
CCIS, see Lebanese Central

Criminal Investigation
Section
383
Index
Canadian courts
Case files (Lebanese)
Disclosure of Lebanese Case File PTJ, 1, 2, 8, 10, 11, 14, 16-20,

26-29.
Case-law
Vacating Trial Date PTJ, 17, 19; Disclosure of Documents AC,1,

27; Total Anonymity of Victims AC,17; Admissibility of Witness
Statements TC, 10; Defects in Form of Indictment TC, 17, 29, 52;
Inspection of Call Data Records AC, 21, 22; Pre-Trial Report PTJ,
134.
Cell site analysis
Pre-Trial Report PTJ, 72, 73, 78-81, 83.
Certification, to appeal,
threshold
Disclosure of Documents AC, 11, 13-16; Total Anonymity of

Victims AC, 3, 7-10, 12, 14, 22; Total Anonymity of Victims AC
(Partially Dissenting Opinion of Judges Riachy and Nsereko), 22;
Inspection of Call Data Records AC,3; Challenging Decision of the
President AC, 14.
Charging, cumulative
Indictment of Mr Merhi PTJ, 24-26, 77.
Chronology report
Pre-Trial Report PTJ, 58, 60-64, 66, 86, 104, 111, 121, 122, 124.
Circumstantial evidence
Defects in Form of Indictment TC, 25, 26; Indictment of Mr Merhi

PTJ, 37; Pre-Trial Report PTJ, 36 ,83, 92, 94.
Clarification
Leave to Amend Indictment PTJ, 4, 5, 17, 19-21, 28-29, 33-35.
Clarifications to the
indictment
Defects in Form of Indictment TC, 6; Indictment of Mr Merhi

PTJ,14.
Co-accused
Trial in absentia TC, 45, 100, 106.
Co-location
Indictment of Mr Merhi PTJ, 34 (iv), 47-49; Pre-Trial Report PTJ,

69,73, 78, 79, 82-83, 130.
Common law
Disclosure of Documents AC, 20; Admissibility of Witness

Statements TC, 9, 30.
Communications evidence,
report
Indictment of Mr Merhi PTJ, 35-37; Pre-Trial Report PTJ, 58.
Compensation, before
national courts
Total Anonymity of Victims AC, 32-34.
Complicity
Indictment of Mr Merhi PTJ, 41.
Composition of Chambers
Challenging Decision of the President AC,

Confidentiality
Inspection of Call Data Records AC, 5; Indictment of Mr Merhi

PTJ,79-80; Trial in absentia TC, 8, 31, 35, 75.
Connected cases
Pre-Trial Report PTJ, 132,133, 136-138, 140.
Conspiracy
Leave to Amend Indictment PTJ, 25, 27-28, 32-33; Defects in Form

of Indictment TC,31-37,39-41, 49; Indictment of Mr MerhiPTJ, 26,
39, 41, 51, 54, 59, 72, 73, 75-77; Pre-Trial Report PTJ, 107, 118;
Trial in absentia TC, 5-6,106.
384
7-9,
13-16;
Index
Consultation process
Vacating Trial Date PTJ, 24.
Co-perpetrator
Indictment of Mr Merhi PTJ, 37, 39, 57, 59, 71, 73, 75.
Counts
Indictment of Mr Merhi PTJ, 38, 42, 43, 53-58, 60-75.
Cumulative charging
Indictment of Mr Merhi PTJ, 24-26,76.
Defence Office
Challenging Decision of the President AC, 17; Admissibility of

Witness Statements TC, 17; Reconsideration of a Decision AC, 4, 5,
13, 21; Trial in absentia TC, 41, 68, 74, 75.
Delays in the proceedings
Leave to Amend Indictment PTJ, 17; Composition of the Trial

Chamber PRES, 6; Reconsideration of a Decision AC, 15.
Disclosure
Disclosure of Lebanese Case File PTJ, 5, 7-8, 10-11, 17, 19, 2223, 28-29; Vacating Trial Date PTJ, 8-10, 12-15, 19; Disclosure of
Documents AC, 1, 3, 8, 13-14, 16, 18-19, 27; Total Anonymity of
Victims AC, 22, 30-31; Total Anonymity of Victims AC (Concurring
Opinion of Judge Baragwanath), 16, 18, 27, 29.
Disclosure exemption
Disclosure obligations
Vacating Trial Date PTJ, 8, 10, 12; Disclosure of Documents AC, 2,

7, 23, 25, 28; Total Anonymity of Victims AC, 22; Inspection of Call
Data Records AC,12, 33.
Discretion
Composition of the Trial Chamber PRES, 9; Admissibility of

Witness Statements TC, 7, 10, 18-20.
Discriminatory, decision
Reconsideration of a Decision AC, 12-14,18.
DNA samples
El Sayed case
Disclosure of Lebanese Case File PTJ, 8, 21; Total Anonymity of

Victims AC (Concurring Opinion of Judge Baragwanath), 8,9.
Entitlement to appeal

Baragwanath), 9.
Error of law
Total Anonymity of Victims AC, 19, 34; Inspection of Call Data

Records AC, 6-7, 12.
Estoppel
Disclosure of Documents AC, 17, 19-22.
Estoppel by deed
Disclosure of Documents AC, 20-21.
Estoppel by election
European Convention on
Human Rights

Judges Riachy and Nsereko), 13: Defects in Form of Indictment TC,
13
European Court of Human

Rights
Challenging Decision of the President AC, 15.
Evidence, prima facie
Leave to Amend Indictment PTJ, 17, 33-34; Indictment of Mr Merhi

PTJ, 36, 52.
Evidence, supporting
Defects in Form of Indictment TC, 4, 16, 17, 25-27, , 40, 47-50; PreTrial Report PTJ, 58, 63, 64, 66, 77.
385
Index
Evidentiary analysis
Leave to Amend Indictment PTJ, 19.
Evidentiary materials,
documents
Vacating Trial Date PTJ, 9; Indictment of Mr Merhi PTJ, 7, 11, 12,

16, 17,29-31, 33, 34, 38, 52, 59, ; Pre-Trial Report PTJ, 83, 90, 93,
134.
Ex parte proceedings
Disclosure of Documents AC, 5, 7.
Exceptional circumstances
Admissibility of Witness Statements TC, 10, 32.
Exculpatory evidence
Vacating Trial Date PTJ, 15; Disclosure of Documents AC, 26, 28.
Exhibit list
Pre-Trial Report PTJ, 16, 17, 20, 151, 193.
Expeditiousness of
proceedings
Vacating Trial Date PTJ, 21, 24; Admissibility of Witness Statements

TC, 14, 23.
Expert reports
Vacating Trial Date PTJ, 10, 15.
Expert witnesses
Expressio unius est exclusion

alterius principle

Baragwanath), 22.
Facts, relating to victims, not

contested
Fair trial, right to
Total Anonymity of Victims AC, 24, 28, 31, 38; Total Anonymity
of Victims AC (Concurring Opinion of Judge Baragwanath), 4,
14-15, 28-29, 32, 34; Admissibility of Witness Statements TC, 23;
Composition of the Trial Chamber PRES, 6.
Fair and expeditious trial
Vacating Trial Date PTJ, 18; Total Anonymity of Victims AC, 2,

34; Admissibility of Witness Statements TC, 23; Defects in Form
of Indictment TC, 13; Composition of the Trial Chamber PRES, 6;
Pre-Trial Report PTJ, 28, 29, 31, 35; Reconsideration of a Decision
AC, 23.
Fairness of the proceedings
Vacating Trial Date PTJ, 20-21,24; Disclosure of Documents

AC,11; Inspection of Call Data Records AC,15; Reconsideration of
a Decision AC, 23; Pre-Trial Report PTJ, 34.
False claims of responsibility
Leave to Amend Indictment PTJ,13, 25, 29, 31, 35; Defects in Form
of Indictment TC, 44,46, 49; Indictment of Mr Merhi PTJ, 51-53,
59; Pre-Trial Report PTJ, 63, 84, 85, 95-103, 105, 118, 120,127,156,
165, 180.
Favor rei principle

Baragwanath), 15.
Forensic (and criminalistic)

reports
Pre-Trial Report PTJ, 16, 108, 109, 117, 144, 147, 156-160.
Forensic examination
Fraudulent documents
Pre-Trial Report PTJ, 59-60.
Frivolous, application, filing

or motion
Challenging Decision of the President AC, 17; Reconsideration of a

Decision AC, 1, 3, 11-12,14-17-20.
386
Index
General principles of law, of

international criminal law
Vacating Trial Date PTJ, 20; Total Anonymity of Victims AC

Defects in Form of Indictment TC, 15, 17-18.
Government of Lebanon
Composition of the Trial Chamber PRES, 13; Trial in absentia TC,

7,12, 84.
Halilovi case (ICTY)
Headquarters Agreement
between the
United Nations and the
Netherlands, Article 22
Hezbollah, Central Security

Committee
Trial in absentia TC, 26, 27, 61, 77, 98.
High Court of New Zealand
Homicide, attempted
Indictment of Mr Merhi PTJ, 25, 26, 41; Trial in absentia TC, 6.
Homicide, premeditated,
intentional
Indictment of Mr Merhi PTJ, 25, 26, 39, 41, 60, 61-71, 77; Trial in
absentia TC,6.
Human rights, international

instruments, standards
Defects in Form of Indictment TC, 13, 15; Trial in absentia TC,66.
Identity of a victim
Total Anonymity of Victims AC, 22, 24-26, 28, 32, Total Anonymity
of Victims AC (Concurring Opinion of Judge Baragwanath), 10, 16.
Identity of a witness
Total Anonymity of Victims AC, 27; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath), 20.
Immunity
Reconsideration of a Decision AC,7-8.
Impartial, judge
Impugned Decision
Disclosure of Documents AC, 3, 5, 10, 13-16, 24; Total Anonymity

of Victims AC, 7-8, 19, 21, 34, 37-38; Total Anonymity of Victims
AC (Concurring Opinion of Judge Baragwanath), 25; Inspection of
Call Data Records AC, 1-3, 5, 6, 8, 12-16, 18, 19, 36, 37.
In absentia, initiate
proceedings (see Trials in
absentia)
Defects in Form of Indictment TC, 25-27; Trial in absentia TC, 1, 2,

4, 10, 41, 46, 50, 53, 63-66, 68, 71, 73, 80, 83, 94, 107, 111.
Independent, judge
Indicia of reliability
Admissibility of Witness Statements TC, 7, 22, 24-26, 29, 30, 31.
Indictment, Ayyash, media

coverage
Indictment, confidentiality of
Trial in absentia TC, 8, 31.
Indictment, confirmation of
Indictment of Mr Merhi PTJ, 2,20; Pre-Trial Report PTJ, 5; Trial in

absentia TC, 7, 41, 54, 59.
Indictment, deficiencies
Defects in Form of Indictment TC, 49.
Indictment, disclosure of
Indictment of Mr Merhi PTJ, 1, 20.
387
Index
Indictment, operative
Defects in Form of Indictment TC, 8, 22.
Indictment, service of
Trial in absentia TC, 11, 12, 15, 16, 18, 22, 23, 41.
Inherent authority,
jurisdiction, power
Composition of the Trial Chamber PRES,12; Challenging Decision

of the President AC, 11-12; Reconsideration of a Decision AC, 15,
16, 19; Pre-Trial Report PTJ, 117.
Injustice
Composition of the Trial Chamber PRES,10; Challenging Decision

of the President AC, 11.
Inspection
Disclosure of Lebanese Case File PTJ, 10, 19, 28; Vacating Trial
Date PTJ, 15.
Inspection of Call Data

Records (CDRs), right to
Inspection of Call Data Records AC, 1, 13, 15, 22.
Inspection, room
Vacating Trial Date PTJ, 14; Inspection of Call Data Records AC, 2.
Intentional homicide
Interests of justice
Vacating Trial Date PTJ, 17, 21; Admissibility of Witness

Statements TC, 21, 27, 28; Total Anonymity of Victims AC, 37;
Baragwanath), 25; Indictment of Mr Merhi PTJ, 22; Challenging
Decision of the President AC, 8, 10.
Interlocutory appeal
Total Anonymity of Victims AC, 7, 10, 12-13, 17; Total Anonymity

Nsereko), 2, 5, 7, 13, 15-16.
Interlocutory decisions
Disclosure of Documents AC,14; Total Anonymity of Victims AC,

9, 17; Total Anonymity of Victims AC (Partially Dissenting Opinion
of Judges Riachy and Nsereko), 2; Indictment of Mr Merhi PTJ, 26,
77.
International Criminal Court

(ICC)

11; Inspection of Call Data Records AC, 21-22.
Rule 77 (ICC RPEs)
International criminal law

jurisprudence
International criminal
procedure standards of
Disclosure of Documents AC, 6; Admissibility of Witness Statements

TC, 23, 30.
International Criminal
Tribunal for Rwanda (ICTR)
Admissibility of Witness Statements TC, 15; Defects in Form of

Indictment TC, 16, 28,38; Inspection of Call Data Records AC, 6,
21, 22, 28; Composition of the Trial Chamber PRES,14; Challenging
Decision of the President AC, 12; Reconsideration of a Decision AC,
17; Pre-Trial Report PTJ, 134.
ICTR Rules of Procedure and

Evidence (ICTR RPEs)
Rule 47 (C) (ICTR RPEs)
388
Index
Rule 68 (ICTR RPEs)
ICTR Statute
Article 20
Statute)
(4)
(ICTR

Vacating Trial Date PTJ, 21; Total Anonymity of Victims AC, 12;
Total Anonymity of Victims AC (Partially Dissenting Opinion
of Judges Riachy and Nsereko), 17; Admissibility of Witness
Statements TC, 15-16; Defects in Form of Indictment TC, 16, 28;
Inspection of Call Data Records AC, 6, 21, 22,29, 30; Composition
of the Trial Chamber PRES,14-15.
International Criminal
Tribunal for the former
Yugoslavia (ICTY)
ICTY Rules of Procedure and
Evidence (ICTY RPEs)
Rule 47 (C) (ICTY RPEs) Defects in Form of Indictment TC, 16.

Rule 66 (B) (ICTY RPEs)
Rule 73 (ICTY RPEs)
Total Anonymity of Victims AC, 12.
Rule 92 bis (ICTY RPEs)
Admissibility of Witness Statements TC, 15-16.
ICTY Statute
Article 21
Statute)
(4)
(ICTY
International Human Rights

Law
International media
Internet
Judicial brief
Judicial decision
Disclosure of Documents AC, 6; Composition of the Trial Chamber

PRES, 11.
Judicial discretion
Admissibility of Witness Statements TC, 7,19.
Judicial economy
Disclosure of Documents AC, 16; Total Anonymity of Victims AC,

6.
Jurisdiction, Appeals
Chamber
Challenging Decision of the President AC, 8, 11-12.
Jurisdiction, PTJ
Leave to Amend Indictment PTJ, 16, 28; Indictment of Mr Merhi

PTJ,23; Pre-Trial Report PTJ, 1, 4, 133.
Jurisdiction, Tribunal
Indictment of Mr Merhi PTJ, 28, 38, 40, 42.
Leave to reply
Total Anonymity of Victims AC, 3, 6.
Lebanese authorities
Disclosure of Lebanese Case File PTJ, 11, 14, 16; Vacating Trial Date
PTJ, 9, 12, 20; Disclosure of Documents AC, 2; Trial in absentia TC,
3, 7, 8, 18, 22, 29, 39, 41, 60, 69, 71-73, 86, 93, 94.
Lebanese case file
Disclosure of Lebanese Case File PTJ, 1-2, 5, 8, 11.
389
Index
Lebanese Central Criminal

Investigation Section (CCIS)
Trial in absentia TC, 16, 19-21, 24-27, 61, 77-78, 86, 90, 98, 101,
104-106, 110.
Lebanese Code of Criminal

Procedure (LCCP)
Disclosure of Lebanese Case File PTJ, 9; Defects in Form of

Indictment TC, 28; Trial in absentia TC, 12, 14, 86, 90, 93.
Article 131
Article 147
Article 147 (6)
Article 147 (7)
Article 148
Chapter V
Lebanese Court of Cassation
Challenging Decision of the President AC, 16; Trial in absentia TC,

7, 32, 91, 92.
Lebanese Criminal Code

(LCC)
Articles 188-189
Indictment of Mr Merhi PTJ, 26 (vii), 41.
Articles 200-203
Indictment of Mr Merhi PTJ, 26 (iv), 41.
Article 212-213
Article 219 (4) and (5)
Article 270
Indictment of Mr Merhi PTJ, 26 (ii),41.
Article 314
Indictment of Mr Merhi PTJ, 26 (i),41.
Articles 547, and 549 ((1) Indictment of Mr Merhi PTJ, 26 (iii), 41.
and (7)
Lebanese criminal procedure
Disclosure of Lebanese Case File PTJ, 6, 12.
Lebanese investigative file
Lebanese Investigative
Judges
Disclosure of Lebanese Case File PTJ, 1, 7, 17, 26-27, 29.
Lebanese law
Lebanese Law of 11 January

1958
Article 6
Indictment of Mr Merhi PTJ, 26 (vii), 41.
Article 7
Indictment of Mr Merhi PTJ,26(ii), 41.
Lebanese media
Trial in absentia TC, 3, 36, 40-44, 46, 48-52, 54, 62, 85, 92, 97-99,
101, 104.
Lebanese Prosecutor-General
Legal aid scheme, of the

Tribunal
Reconsideration of a Decision AC, 12, 14-17.
Legal Aid Unit, Defence

Office
390
Index
Legal process
Legal Representative of
Victims (LRV)
Total Anonymity of Victims AC, 1, 3-9, 12, 14-15, 19, 21-22, 2527, 30, 32, 35-38; Total Anonymity of Victims AC (Concurring
Opinion of Judge Baragwanath), 13, 16, 21, 25, 28; Total Anonymity
Nsereko), 19, 21-22; Pre-Trial Report PTJ, 2, 12, 32, 35, 181, 186193.
Legal standard
Inspection of Call Data Records AC, 16, 19, 20.
List of exhibits
Litigation
Disclosure of Documents AC, 8-9, 18.
Material facts
Defects in Form of Indictment TC, 17, 19, 40, 43, 45, 47-50.
Material, preparation of the

defence
Inspection of Call Data Records AC, 1, 6, 8, 10, 15, 16,18, 19, 21,
37.
Materiality
Inspection of Call Data Records AC, 11, 14, 18-23.
Media, media coverage,

publicity
Trial in absentia TC, 3, 30-31,35, 45-49, 53, 85, 89, 96-100, 103104, 107-108.
Merhi, information about
Pre-Trial Report PTJ, 168-171; Trial in absentia TC, 1, 18, 25, 35,
54-55.
Methodology, of attribution
Pre-Trial Report PTJ, 68-73, 83.
Modes of responsibility
Indictment of Mr Merhi PTJ, 24-26, 42.
Modus operandi
National jurisdiction
Necessity principle
Network Analysis Report
Pre-Trial Report PTJ, 58-62, 66, 74, 75, 77.
Networks, secret, telephones
Indictment of Mr Merhi PTJ, 35, 38, 46-50; Pre-Trial Report PTJ,

37, 54-67, 76, 117, 163.
Non-disclosure
Notice
Notification, procedures
Trial in absentia TC, 11-15, 17, 23, 29, 41, 66, 67, 86, 88, 93, 95,
109.
Oral testimony, in lieu of
Admissibility of Witness Statements TC,5,12; Pre-Trial Report PTJ,

155, 162, 165, 173, 182, 184, 185.
Orders, transfer and detention

(see Transfer and detention
orders)
Parties civiles

Judges Riachy and Nsereko), 10, 13.
Parties, rights of

Judges Riachy and Nsereko), 2, 8-9, 13.
Pattern of conduct
Pre-Trial Report PTJ, 37, 132, 134, 136-137, 140, 156, 183-184.
391
Index
Personal notification
Phone networks
Inspection of Call Data Records AC,15; Indictment of Mr Merhi

PTJ, 35 (iii); Pre-Trial Report PTJ, 54-58, 65-67, 76, 163.
Plenary of Judges

Baragwanath), 8.
Popovi et al. case (ICTY)
Postponement (start of trial)
Vacating Trial Date PTJ, 5, 9, 13, 15, 20, 22.
Practice Direction
Admissibility of Witness Statements TC, 1, 3-11, 17-22, 24-29, 3133; Composition of the Trial Chamber PRES, 13.
Prejudice, absence of
Prejudice, in the proceedings
Total Anonymity of Victims AC, 32; Reconsideration of a Decision

AC, 10, 23.
Prejudice, to a Party
Admissibility of Witness Statements TC, 20, 23-24.
Prejudice, to the Accused
Total Anonymity of Victims AC, 25-26, 29, 34, 37-38; Total

Anonymity of Victims AC (Concurring Opinion of Judge
Baragwanath), 23, 25; Leave to Amend Indictment PTJ, 17, 25-26,
28, 31, 33-34; Defects in Form of Indictment TC, 21, 23.
Prejudicial
Total Anonymity of Victims AC, 14, 27, 30-31, 35, 38-39;

Baragwanath), 4, 21, 27.
Pre-trial brief
Vacating Trial Date PTJ, 9,13; Defects in Form of Indictment TC,

27, 29, 50; Pre-Trial Report PTJ, 2, 15, 17, 21, 23, 34, 133.
Prima facie evidence (see

Evidence, prima facie)
Principle of equality before
the law
Principles of international
criminal law
Defects in Form of Indictment TC, 15, 17, 18; Pre-Trial Report PTJ,
27.
Proceedings - fairness,
efficiency
Vacating Trial Date PTJ, 20, 21, 24; Disclosure of Documents AC,
11; Total Anonymity of Victims AC, 26, 36; Total Anonymity of
Victims AC (Concurring Opinion of Judge Baragwanath), 10, 24;
Inspection of Call Data Records AC, 15; Challenging Decision of
the President AC, 12.
Proceedings - public
Disclosure of Documents AC, 5, 9; Total Anonymity of Victims AC,

24.
Proportionality
Total Anonymity of Victims AC,38.
Protection of accused

Baragwanath), 2, 10.
Protection of victims,
witnesses
Total Anonymity of Victims AC, 22, 24, 36.
392
Index
Protective measures
Total Anonymity of Victims AC, 1, 3, 9, 15, 20-22, 24, 31, 34, 3740; Total Anonymity of Victims AC (Concurring Opinion of Judge
Baragwanath), 3, 25; Total Anonymity of Victims AC (Partially
Dissenting Opinion of Judges Riachy and Nsereko), 5, 16.
Public advertisement, service

announcement
Trial in absentia TC, 8, 14, 29, 32, 39, 41, 70, 72.
Publication
Trial in absentia TC, 9, 30, 48, 85.
Publicity, public hearing
Radio, message, broadcast
Trial in absentia TC, 30, 36-40, 48, 54, 59, 70, 92, 99, 101.
Raw data, raw materials
Inspection of Call Data Records AC, 2, 9, 34-36.
Reconsideration, Reconsider
Defects in Form of Indictment TC, 10; Composition of the Trial

Chamber PRES,1,10-11,15; Reconsideration of a Decision AC, 1,
4, 6,7, 8-10, 12.
Redaction

31; Leave to Amend Indictment PTJ, 40; Trial in absentia TC, 75.
Relevant facts
Indictment of Mr Merhi PTJ, 43, 57, 62, 66, 70.
Relevant time period
Inspection of Call Data Records AC, 3, 9, 13, 15-19, 24-26, 34, 36.
Reliability
Admissibility of Witness Statements TC, 7, 9, 11, 22, 24-31, 35, 36.
Rescind, rescission
Composition of the Trial Chamber PRES, 1, 10, 15.
Right of appeal (see

entitlement to appeal)
Total Anonymity of Victims AC, 9, 11, 15; Total Anonymity of

Victims AC (Partially Dissenting Opinion of Judges Riachy and
Nsereko), 6, 13-16, 21-22;
Rights of the accused (see

accused, rights of)
Rights of the victims

Victims AC (Partially Dissenting Opinion of Judges Riachy and
Nsereko), 15.
Rules of Procedure and

Evidence (RPEs)
Rule 2
Total Anonymity of Victims AC, 9, Total Anonymity of Victims AC

Rule 3
Rule 3 (A)
Rule 8(B)
Total Anonymity of Victims AC, 4-5.
Rule 9
Rule 14
Rule 32
Rule 32 (E)
Admissibility of Witness Statements TC, 17.
Rule 57 (H)
393
Index
Rule 60 (H)
Rule 61 (iv)
Indictment of Mr Merhi PTJ, 1-2.
Rule 68 (D)
Defects in Form of Indictment TC, 14, 16, 29.
Rule 68 (E)
Rule 68 (F)
Rule 68 (G)
Rule 68 (J)
Rule 69
Rule 71 (A)(ii)
Leave to Amend Indictment PTJ, 16, 20, Disposition.
Rule 71 (B)
Leave to Amend Indictment PTJ, 17, 20, 31, 33-34.
Rule 74
Rule 76
Indictment of Mr Merhi PTJ, 2; Trial in absentia TC, 8, 11, 16, 23,

31, 87.
Rule 76 (A)
Rule 76 (B)
Trial in absentia TC, 11,16, 90.
Rule 76 (C)
Rule 76 (E)
Rule 76 bis
Rule 77 (A)
Vacating Trial Date PTJ, 5; Indictment of Mr Merhi PTJ, 1-2.
Rule 79
Rule 84
Rule 86

Baragwanath), 4.
Rule 86 (C)
Total Anonymity of Victims AC,13, 15; Total Anonymity of Victims

14-15.
Rule 86 (D)

15.
Rule 86 (G)
Total Anonymity of Victims AC,32-34.
Rule 87
Total Anonymity of Victims AC, 23; Total Anonymity of Victims AC

(Concurring Opinion of Judge Baragwanath), 10; Total Anonymity
Nsereko), 10.
Rule 88
Rule 89 (B)
Rule 89 (E)
Admissibility of Witness Statements TC, 3; Composition of the Trial

Chamber PRES,7; Pre-Trial Report PTJ, 133.
394
Index
Rule 90 (A)
Defects in Form of Indictment TC, 4, 9, 20.
Rule 91
Inspection of Call Data Records AC, 2-3; Pre-Trial Report PTJ, 17,
22.
Rule 91(A)
Rule 91(C)
Vacating Trial Date PTJ, 1, 10, 16, 23.
Rule 91 (G)
Rule 91 (G)(ii)
Vacating Trial Date PTJ, 13; Pre-Trial Report PTJ, 153.
Rule 91 (G)(iii)
Vacating Trial Date PTJ, 15,20.
Rule 91 (I)
Pre-Trial Report PTJ, 15, 34, 152.
Rule 93

AC (Concurring Opinion of Judge Baragwanath), 13, 20-24, 31, 3334.
Rule 95
Leave to Amend Indictment PTJ, 16; Admissibility of Witness

Statements TC, 33, 37; Pre-Trial Report PTJ, 22, 71.
Rule 95 (A)
Pre-Trial Report PTJ, 4, 29.
Rule 95 (A) (vi)
Rule 95 (A) (vii)
Pre-Trial Report PTJ, 26-27,30, 150.
Rule 95 (B)
Rule 101 (G)
Rule 105 bis (A)
Rule 106
Rule 106 (A)(i)
Rule 106 (A)(iii)
Rule 106 (B)
Trial in absentia TC, 80-81.
Rule 110
Rule 110 (A)(i)
Rule 110(A)(ii)
Vacating Trial Date PTJ, 10, 15, 20.
Rule 110 (B)
Disclosure of Lebanese Case File PTJ, 2, 10, 18-19, 28; Vacating

Trial Date PTJ, 10,15; Inspection of Call Data Records AC, 1-3,8,1016, 19-23, 27, 29, 37.
Rule 111
Disclosure of Lebanese Case File PTJ, 6-8, 11, 21-23, 25, 27;
Disclosure of Documents AC, 2, 13, 15, 25-29, 34.
Rule 112 bis
Rule 113
Vacating Trial Date PTJ, 10,15; Disclosure of Documents AC, 2526; Inspection of Call Data Records AC, 2, 28.
Rule 115
Rule 116
Disclosure of Documents AC, 7-8, 26, 28.
Rule 117
395
Index
Rule 118
Rule 121 (A)
Inspection of Call Data Records AC, 1, 26, 33-35, 37, Disposition.
Rule 122
Rule 123
Rule 126

Victims AC (Concurring Opinion of Judge Baragwanath),9; Total
Anonymity of Victims AC (Partially Dissenting Opinion of Judges
Riachy and Nsereko), 5-7, 12, 18.
Rule 126 (A)
Rule 126 (B)
Rule 126 (C)
Total Anonymity of Victims AC ,9, 12
Rule 126 (E)

9-10, 12, 18.
Rule 126 (G)
Challenging Decision of the President AC, 17; Reconsideration of a

Decision AC, 1, 7, 11-19, 21-22.
Rule 133
Rule 140
Composition of the Trial Chamber PRES,11; Reconsideration of a

Decision AC, 1,8-9.
Rule 149 (C)
Admissibility of Witness Statements TC, 10; Pre-Trial Report PTJ,

134.
Rule 150
Rule 155
Admissibility of Witness Statements TC, 2, 3-5, 9, 12, 15, 16, 19,

20, 22-25, 27, 28, 30, 31, 34, 37; Pre-Trial Report PTJ, 153, 155,
157-160, 162, 164, 165, 173, 174, 182, 184, 187-190.
Rule 155 (A)
Admissibility of Witness Statements TC, 5, 12; Pre-Trial Report

PTJ, 155.
Rule 155 (B)
Rule 156
Rule 157
Rule 158
Admissibility of Witness Statements TC, 36; Pre-Trial Report PTJ,

153, 179.
Rule 158 (A)(ii)
Rule 159 (B)

Baragwanath), 22.
Rule 176 (A)
Sanctions
Reconsideration of a Decision AC, 12, 13,15-17, 20, 22-23.
Scheduling Order, on Mr
Merhi
Trial in absentia TC, 76-77.
396
Index
Security Council

Baragwanath), 8.
Security Council, Document

annexed to SC Resolution
1757, Article 13
Seized of the file
SMS (short message service)

records
Special Court for Sierra

Leone (SCSL)
Admissibility of Witness Statements TC, 15; Reconsideration of a

Decision AC, 17.
Rule 47 (C) (SCSL RPEs)
Article 17 (4) (e) (SCSL

Statute)
SQL (structured query

language) format, SQL CDRs
Inspection of Call Data Records AC, 2, 9-11, 13, 24-27, 32-37.
Standard of (appellate)
review
Total Anonymity of Victims AC, 19; Inspection of Call Data Records

AC, 6.
Stanii and Simatovi case

(ICTY)
Start of Trial
Vacating Trial Date PTJ, 4, 9, 19, 22; Composition of the Trial

Chamber PRES,7; Pre-Trial Report PTJ, 6, 12, 19.
Status Conference
Statute (STL)
Article 2
Article 2 (2)(d)
Article 3
Article 8 (1) (C)
Article 8 (3)
Composition of the Trial Chamber PRES, 2-3, 9.
Article 10
Composition of the Trial Chamber PRES, 12-13.
Article 10 (1)
Article 12 (4)

Article 16
Vacating Trial Date PTJ, 5, 28; Defects in Form of Indictment TC,

16.
Article 16 (2)
Article 16 (4) (a)
Article 16 (4) (b)
Article 16 (4) (c)
397
Index
Article 17
Total Anonymity of Victims AC, 14, 16, 23, 36, 38-39; Total
Baragwanath), 4, 24, 34; Total Anonymity of Victims AC (Partially
Dissenting Opinion of Judges Riachy and Nsereko), 10, 19-20.
Article 18
Article 18 (2)
Composition of the Trial Chamber PRES, 6; Indictment of Mr Merhi

PTJ, 1-2, 20, 28.
Article 20
Article 21
Composition of the Trial Chamber PRES,6; Reconsideration of a

Decision AC, 15.
Article 22

Baragwanath), 4; Trial in absentia TC, 2, 63, 64, 80, 109.
Article 22 (1) (c)
Article 25
Total Anonymity of Victims AC, 21, 32-34.
Article 28
Article 28 (2)
Suicide bomber
Pre-Trial Report PTJ, 112, 117, 139.
Supplementary filing
Disclosure of Lebanese Case File PTJ, 5, 13.
Surveillance, and observation
Pre-Trial Report PTJ, 61, 84-95, 103, 104.
Technical difficulties
Telephone, communications
Leave to Amend Indictment PTJ, 13, 19, 29, 35; Indictment of Mr

Merhi PTJ, 33, 37, 38,46-50, 76.
Telephony, technical aspects
Temporal scope
Inspection of Call Data Records AC, 13-14, 18.
Tendering evidence
Total Anonymity of Victims AC, 27; Admissibility of Witness

Statements TC, 9.
Tentative date (new, start of

trial)
Vacating Trial Date PTJ, 3, 18-24; Pre-Trial Report PTJ, 6, 12, 19.
Terrorist act
Indictment of Mr Merhi PTJ, 25, 26, 39, 41, 51, 54-59, 72-77.
Time limit
Time period, relevant
Inspection of Call Data Records AC, 15-16.
Transfer and detention orders, Leave to Amend Indictment PTJ, 1, 7, 15, 37.
requests
Transfer of case file
Transparency
Disclosure of Documents AC, 9; Inspection of Call Data Records

AC, 5.
Trials in absentia, to conduct,

initiate proceedings
Trial in absentia TC, 10, 41, 63, 64, 67, 68.
Ultra vires
398
Index
United Nations Charter

Baragwanath), 2.
United Nations International

Independent Investigation
Commission (UNIIIC)
Disclosure of Lebanese Case File PTJ, 7-8, 11, 21, 23; Disclosure of
Documents AC, 2, 25.
United Nations SecretaryGeneral
Composition of the Trial Chamber PRES, 2, 8, 13.
United States federal courts
Victim anonymity

Victims participating in the

procedings (VPPs) - status
Total Anonymity of Victims AC, 3, 13, 15, 28-29, 34, 36; Total
Baragwanath),4, 7, 15, 23-24, 32 ; Total Anonymity of Victims AC
(Partially Dissenting Opinion of Judges Riachy and Nsereko), 8, 10,
13-15, 20.
Victims participating in the

proceedings (VPPs) (non)disclosure of identity

Victims AC (Concurring Opinion of Judge Baragwanath), 10, 18.
Victims participating in
the proceedings (VPPs)
personal interests
Total Anonymity of Victims AC, 7, 14-15, 17, 23, 29; Total Anonymity
of Victims AC (Concurring Opinion of Judge Baragwanath), 4; Total
Anonymity of Victims AC (Partially Dissenting Opinion of Judges
Riachy and Nsereko), 20-21.
Victims Participation Unit

(VPU)
Victims and Witness Unit

(VWU)

Video tape, cassette
Defects in Form of Indictment TC, 44-46; Indictment of Mr Merhi

PTJ, 45, 51, 53, 57; Pre-Trial Report PTJ, 118, 119, 122, 125, 127,
128.
Video-link
Vienna Convention on the

Law of Treaties
Pre-Trial Report PTJ, 27-28.
Warrant of arrest (see Arrest

warrant)
Witness anonymity

Witness list
Vacating Trial Date PTJ, 13; Pre-Trial Report PTJ, 16-17, 20, 25,
150-155, 185, 187, 190.
Witness protection
Vacating Trial Date PTJ, 10; Leave to Amend Indictment PTJ, 40.
Witness statements,
admission into evidence
Vacating Trial Date PTJ, 15; Admissibility of Witness Statements

TC, 1-3, 5, 7, 9, 13, 19, 22-24, 37.
399
Witness statements, noncompliance of
Admissibility of Witness Statements TC, 1, 3, 6, 9, 10, 25, 28, 31, 34
Witness testimony

AC (Concurring Opinion of Judge Baragwanath), 21; Pre-Trial
Report PTJ, 155, 162, 164, 165, 173, 182, 184, 185, 187, 188
Working plan
Vacating Trial Date PTJ, 4, 19-20, 24.
Work product - internal
400
401
Major rulings issued by the Special Tribunal for Lebanon in 2013

1
2
3
Order on the Defence Request to Compel Disclosure of the Lebanese
The Prosecutor v. Ayyash et al., Pre-Trial Judge
Investigative Case Files (Disclosure of Lebanese Case File PTJ)
Decision relating to the Defence Motion to Vacate the Date for the Start
of Trial (Vacating Trial Date PTJ)
Public redacted version of Decision on Appeal by the Prosecutor against
In the matter of El Sayed, Appeals Chamber
Pre-Trial Judges Decision of 11 January 2013, Dated 28 March 2013
Case No.: CH/AC/2013/01, 28 March 2013
(Disclosure of Documents AC)
Decision on Appeal by Legal Representative of Victims against Pre-Trial
The Prosecutor v. Ayyash et al., Appeals Chamber
Judges Decision on Protective Measures (Total Anonymity of Victims
Case No.: STL-11-01/PT/AC/AR126.3,
AC)
10 April 2013
Decision Relating to the Prosecution Requests of 8 November 2012 and
6 February 2013 for the Filing of an Amended Indictment (Leave to
Case No.: STL-11-01/PT/PTJ, 12 April 2013
Amend Indictment PTJ)
Decision on Compliance with the Practice Direction for the Admissibility
The Prosecutor v. Ayyash et al., Trial Chamber
of Witness Statements under Rule 155
Case No.: STL-11-01/PT/TC, 30 May 2013
(Admissibility of Witness
Statements TC)
7
8
Decision on Alleged Defects in the Form of the Amended Indictment of
The Prosecutor v. Ayyash et al., Trial Chamber
21 June 2013 (Defects in Form of Indictment TC)
Case No.: STL-11-01/PT/TC, 13 September 2013
Public redacted version of 19 September 2013 Decision on Appeal by
Counsel for Mr Oneissi against Pre-Trial Judges Decision on Issues
Case No.: STL-11-01/PT/AC/AR126.4,
Related to the Inspection Room and Call Data Records (Inspection of
2 October 2013
Call Data Records AC
Decision on Defence Motion for Reconsideration and Rescission
The Prosecutor v. Ayyash et al., President
of Order Composing the Trial Chamber (Composition of the Trial
Case No.: STL-11-01/PT/PRES, 4 October 2013
Chamber PRES)
10 Public Redacted Version of the Decision Relating to the Examination of

the Indictment of 5 June 2013 issued against Mr Hassan Habib Merhi
The Prosecutor v. Merhi, Pre-Trial Judge

Case No.: STL-13-04/I/PTJ, 11 October 2013
dated 31 July 2013 (Indictment of Mr Merhi PTJ)
11 Decision on Application by Counsel for Messrs Badreddine and Oneissi

against Presidents Order on Composition of the Trial Chamber of 10

Case No.: STL-11-01/PT/AC, 25 October 2013
September 2013 (Challenging Decision of the President AC)
12 Decision on Request by Counsel for Messrs Badreddine and Oneissi for
Reconsideration of the Appeals Chambers Decision of 25 October 2013
Case No.: STL-11-01/PT/AC, 10 December 2013
(Reconsideration of a Decision AC)
13 Redacted Version of the Corrected Version of the Pre-Trial Judges

Report Prepared pursuant to Rule 95(A) of the Rules of Procedure and

Case No.: STL-11-01/PT/PTJ, 11 December 2013
Evidence (Pre-Trial Report PTJ)
14 Decision to Hold Trial in Absentia (Trial in Absentia TC)
The Prosecutor v. Merhi, Trial Chamber

Case No.: STL-13-04/I/TC, 20 December 2013

www.stl-tsl.org
ISBN 978-94-90651-11-4
9 789490 651114

2013 - Casebook

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Special Tribunal for Lebanon

TRIBUNAL SPCIAL POUR LE LIBAN

STL CASEBOOK 2013

Special Tribunal for Lebanon

Special Tribunal for Lebanon

1. The Prosecutor v. Ayyash et al., Pre-Trial Judge,

2. The Prosecutor v. Ayyash et al., Pre-Trial Judge,

3. In the Matter of El Sayed, Appeals Chamber,

4. The Prosecutor v. Ayyash et al., Appeals Chamber,

5. The Prosecutor v. Ayyash et al., Pre-Trial Judge,

6. The Prosecutor v. Ayyash et al., Trial Chamber,

7. The Prosecutor v. Ayyash et al., Trial Chamber,

8. The Prosecutor v. Ayyash et al., Appeals Chamber,

9. The Prosecutor v. Ayyash et al., President,

10. The Prosecutor v. Merhi, Pre-Trial Judge,

11. The Prosecutor v. Ayyash et al., Appeals Chamber,

12. The Prosecutor v. Ayyash et al., Appeals Chamber,

13. The Prosecutor v. Ayyash et al., Pre-Trial Judge,

14. The Prosecutor v. Merhi, Pre-Trial Judge,

Redacted Version of the Corrected Version of the Pre-Trial Judges Report

The Prosecutor v. Ayyash et al.

Order on the Defence Request to Compel

Disclosure of Lebanese Case File PTJ

THE PRE-TRIAL JUDGE

Judge Daniel Fransen

Mr Herman von Hebel

ORDER ON THE DEFENCE REQUEST TO COMPEL DISCLOSURE

Counsel for Mr Salim Jamil Ayyash:

Legal Representative of Victims:

Counsel for Mr Mustafa Amine Badreddine:

Disclosure of Lebanese Case File PTJ

Id., para. 30.

Disclosure of Lebanese Case File PTJ

Id., para. 26.

Disclosure of Lebanese Case File PTJ

which specifies three categories of UNIIIC documents as being exempt from

Disclosure of Lebanese Case File PTJ

The Supplementary filing

Defence access to the entirety of the Lebanese Case File

Disclosure of Lebanese Case File PTJ

Disclosure of Lebanese Case File PTJ

31 See Article 61 of Lebanese New Code of Criminal Procedure.

Disclosure of Lebanese Case File PTJ

Application of Rule 111 to the Lebanese Case File

Disclosure of Lebanese Case File PTJ

Disclosure of Lebanese Case File PTJ

Inspection versus Disclosure of the Lebanese Case File

43 Response, para. 13.

Disclosure of Lebanese Case File PTJ

FOR THESE REASONS,

Disclosure of Lebanese Case File PTJ

The Prosecutor v. Ayyash et al.

Decision relating to the Defence Motion to

Vacating Trial Date PTJ

THE PRE-TRIAL JUDGE

Judge Daniel Fransen

Mr Herman von Hebel

DECISION RELATING TO THE DEFENCE MOTION TO VACATE THE

Office of the Prosecutor:

Counsel for Mr Salim Jamil Ayyash:

Legal Representative of Victims:

Counsel for Mr Mustafa Amine Badreddine:

Vacating Trial Date PTJ

Subject of the decision