Later this month, the tribunal will hear a case that shows just how complicated its work has become. Karma al-Khayat, a defendant in that case, is not suspected of involvement in Hariri's death in any way (the tribunal has indicted five Hezbollah members for suspected involvement; they are being tried in absentia).
Instead, Khayat is a journalist who has reported on the tribunal.
Khayat and the news organization she works for, Al Jadeed TV, will appear in court on April 16 to face charges of contempt of court and obstruction of justice. If found guilty, Khayat could receive seven years in jail or a six-figure fine.
The charges relate to 2012, when Al Jadeed, a Lebanon-based Arabic news channel, contacted alleged confidential witnesses in the Hariri case and then broadcast some details about these witnesses in a series called "Witnesses of the International Tribunal." By publishing this information, Al Jadeed is accused of "undermining public confidence in the Tribunal's ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses."
Khayat and Al Jadeed are also accused of not removing their news reports featuring details of witnesses from the station's Web site or from YouTube when the tribunal ordered them to.
Khayat and Al Jadeed are pleading not guilty, arguing that Al Jadeed took steps not to name the witnesses. Instead,they said, they aired the reports as a way of warning the tribunal about leaks – Al Jadeed had based its investigation on a list of names of apparent witnesses in the case that was left at the reception of their offices, Khayat says. "Our imperative was to inform the tribunal that there are names being distributed," she said in a phone call from London last month. "This is what the story is actually about."
Khayat says that her concerns about leaks from the tribunal were proved right when the same list of names spread throughout Lebanese media. Another Lebanese news outlet, al-Akhbar newspaper, is also facing charges from the tribunal for publishing details that appeared to reveal the identity of confidential witnesses (the tribunal has never confirmed whether the names were accurate or fabricated). That trial date has not been set.
Al Jadeed's attorneys argue that freedom of speech is at stake, and the group has received considerable support from Lebanon's journalism community. However, the tribunal portrays the case differently. "The freedom of expression guarantees everyone's right to hold opinions and expressions, receive and impart information and ideas as long as they are in accordance with the applicable laws," the tribunal's Web site explains. "The freedom of expression is not absolute and journalists and media organizations must comply with the law."
Toby Cadman, a British lawyer and expert in international law, agreed, adding that "it is not appropriate to cite freedom of speech if you have acted in contravention of a court order, the result of which may be putting individuals at risk."
Courts are always concerned about the safety of witnesses, but international tribunals may have reason to be even more concerned. Last year, a high-profile case in the International Criminal Court against Kenyan President Uhuru Kenyatta collapsed, in part because of reported threats against witnesses. In Lebanon, where police officers investigating Hariri's death have been killed and security concerns led to the tribunal setting up its office in the Netherlands, concern about the fate of witnesses is even more fraught.
This won't be the first time that a journalist has been charged for publishing details about an international criminal court. Notably, French journalist Florence Hartmann was convicted of contempt for revealing confidential information about the International Criminal Tribunal for the former Yugoslavia in 2009. However, Hartmann refused to pay the $10,000 ordered by the court, and French authorities have refused to cooperate with the court's order.
Unusually, the tribunal is bringing charges against Al Jadeed as a legal entity, meaning the organization itself is facing charges, a move that may set a precedent for other international criminal courts. Some analysts have questioned the legal framework of the move, and Al Jadeed's attorneys warn that the court's decision could result in prosecutions against other organizations by international criminal courts.
Whatever the outcome of the case, some wonder about the wider logic of the court going after Al Jadeed in this manner. "As someone who served as the first spokesperson of the International Criminal Court and before that covered other U.N. ad hoc tribunals as a journalist, I know only too well the role independent media play in garnering support for such courts," said Ernest Sagaga, director of the human rights department for the International Federation of Journalists. "This can only be achieved if there is an understanding of each other's role and a willingness to explore alternative venues to resolve disputes."
In Lebanon, the investigation into the death of Hariri has already proven divisive — the government collapsed in 2011 over a disagreement about the tribunal. Habib Battah, a Lebanese journalist and editor in chief of the Web site Beirut Report, says the case against Al Jadeed may turn more of the Lebanese public against the investigation.
In a country where many news outlets are overtly tied to political factions, Battah explains, Al Jadeed had shown an ambitious, if sometimes flawed, desire for real investigative journalism. "Al Jadeed takes a lot more risks than other channels do when it comes to putting themselves in confrontation with political power," Battah says.