Dec 18, 2014

A paramedic in Mr. Hariri's convoy ambulance testifies

The next witness on the stand was Mr. Rachid Hammoud, a Lebanese paramedic. He testifies that in 2004, there was always one ambulance accompanying Mr. Hariri's convoy, another was kept ready for special circumstances. One ambulance would have one driver and two paramedics. The ambulance would always be the last car in the convoy. On the 14th February 2005, the day of the explosion, the witness sat in the back of the ambulance, so he did not see what happened outside. As a result of the explosion, the witness fainted, and when he regained his conscience, he climbed outside of the ambulance through the roof.

Mr. Hariri's paramedic team consisted of ten paramedics. Whenever he would travel with his convoy, also abroad, the ambulance would follow the convoy. When traveling by plane, medical suitcases would be brought along.

The witness estimates that the ambulance was at approximately 50 meters distance from the last car in the convoy, though this distance is fiercely debated during cross-examination of this witness. Because of this distance, normally the jammers would not affect the radio. If the car would come closer than that, you would hear some buzzing, and you would not be able to make any calls. 

Nov 19, 2014

Prosecution witnesses who were working for Mr. Hariri

The week of 11 November saw the end of the first phase of the Prosecution's case. The first witness to testify this week from Leidschendam, the seat of the Tribunal, was Mr. Mohammed Mneimneh who was the assistant to the head of protocol office of Lebanon's former Prime Minister Rafik Hariri. He testified about his role and responsibilities in the protocol office, Mr. Hariri's typical daily schedule and lifestyle patterns and his agenda, including his visits to Quraitem Palace.

First witness this week: Mr. Mneimneh

[Screenshot of Mr. Mohammed Mneimneh.]

The witness started working for Mr. Hariri in 1999 and worked under the late Wissam Al-Hassan where he was responsible for keeping Mr. Hariri's agenda. He arranged the appointments and visitors, organised his trips; he and his team would travel in advance to arrange for Mr. Hariri's trips inside and outside of Lebanon. The witness describes a typical day of Mr. Hariri, waking up early and would meet with people that he knew, close associates and businessmen, who did not have appointments but who wanted to meet with him. He describes the nine floor building of Quraitem Palace where Mr. Hariri's office was located. The appointments Mr. Hariri had with representatives of Hezbollah were not noted down in the agenda as they were not arranged through the Protocol Department but through intermediaries or through Mr. Hariri himself. The witness would only know of these appointments after they had occurred. The Prosecution tenders parts of Mr. Hariri's agenda into evidence, and some of the details thereof are discussed in the courtroom.

That same day, 11th November, the Defence started its cross-examination of Mr. Mneimneh. One of the issues Mr. Korkmaz, counsel for accused Mr. Baddreddine, questions the witness about Mr. Wissam El-Hassan's absence from work on Monday 14 February 2005, the day of the assassination. Mr. El-Hassan called the witness the preceding Saturday to inform the latter that he would have an exam at the Lebanese university on Monday and hence would be absent from work that day. Mr. Korkmaz's cross-examination continued on 12th November. The witness is asked about a scheduled appointment with Mr. Ayad Allawi on 14th February 2005 that had been cancelled, though the witness states he was unaware of that. The next in line to cross-examine the witness is Mr. Young defending the interests of accused Sabra. Mr. Young questioned the witness about, inter alia, the importance of the election time in January and February 2005. Mr. Young further discusses the resignation of Mr. Wissam El-Hassan from the Internal Security Forces (ISF) on 10 February 2005, four days before the fatal assassination. Also, prior to his assassination, Mr. Hariri had personal concerns about his safety and sometimes failed to give advance notice of his movements, even to his protocol team. Ms. Le Fraper, lawyer defending the interests of the fifth accused Mr. Merhi, also questions the witness in respect of the scheduling of the secret meetings Mr. Hariri had, which, the witness states, were organised by Mr. Wissam El-Hassan or through Mr. Hariri himself or intermediaries, but there was no clear record of that type of visitors.

Second witness this week: Mr. Al-Daouq
The second, and last, witness to testify this week on 12 and 13 November, was Mr. Maarouf Al-Daouq, who was the head of the Lebanese Press Office for the President of the Council of Ministers. In his testimony-in-chief, he talked about his role and responsibilities in the creation of press releases, the publishing and circulation thereof and the structure and format of such press releases. When Mr. Hariri resigned as Prime Minister, the witness was asked to work with Mr. Hariri on a full-time basis at the Quraitem Palace. His responsibilities included covering news, activities and events related to Mr. Hariri and he would make arrangements to cover those events. Counsel for the Prosecution, Ms. Bari, takes the witness through several of the press releases that were issued prior to the assassination of Mr. Hariri. The witness discussed the resignation of Mr. Hariri as Prime Minister on 20 October 2004, and his involvement in the formation of the subsequent government; there were attempts to nominate Mr. Hariri again as Prime Minister in the new government. However, when all discussions and negotiations on this topic failed, he submitted his final resignation. Mr. Iain Edwards for the accused Badreddine started the cross-examination of this witness. The 171 press releases that this witness provided on a CD to the Prosecution have not yet been admitted into evidence, and the questioning of this witness is not about the content of those documents. Unfortunately, when they will be admitted, the STL website will probably not allow the public to read these exhibits.

Nov 6, 2014

Courageous decision by STL Contempt Judge ignoring Appeals Chamber decision to prosecute corporate entities

On 6 November Judge Lettieri, the Contempt Judge in the two contempt cases, decided to bypass a previous ruling by the Appeals Chamber, and instead ruled that the Lebanon Tribunal does not have the right to prosecute corporate entities, thereby ignoring the legal precedent previously set by the Appeals Chamber.

The cases
The Lebanon Tribunal (STL) is currently dealing with two separate contempt cases, dealing with similar substantive issues. The first is against NEW TV S.A.L. and Ms. Karma Al Khayat (Case No. STL-14-05) and the second against Akhbar Beirut S.A.L. and Mr. Ibrahim Mohamed Al Amin (Case No. STL-14-06). In both cases, the defendants, both natural and corporate, are accused of having published names of individuals alleged to be witnesses before the Tribunal. If proved, the defendants will be guilty of contempt of court. 

In the first contempt case against Ms. Al Khayat and her media corporation NEW TV S.A.L., Judge Lettieri had previously come to the conclusion that Ms. Khayat could indeed be prosecuted for contempt of court, but that her employer, the media corporation NEW TV, could not be prosecuted, as there is no basis in the laws governing the Tribunal for the prosecution of legal persons. The Amicus Prosecutor in charge of the contempt prosecutions appealed against Judge Lettieri's decision, and the Appeals Chamber ruled in favour of the Amicus appeal and concluded that not only natural persons, but also legal persons could be prosecuted by the Tribunal for contempt of court.

The second contempt case: Largely the same substance
In case STL-14-06, Judge Lettieri now faced the same legal issue as in the first case (though he argues in paragraph 73 that the facts of the case slightly differ). Having a clear previous ruling from the higher legal body of this Tribunal on this very particular issue, Judge Lettieri nonetheless decided to bypass the unambiguous ruling by the Appeals Chamber by insisting that the Tribunal does not have the jurisdiction to prosecute legal persons.

Discussion: Principle of legality
The substance of the discussion boils down to the principal of legality, i.e. whether the defendant, in this case the legal person of NEW T.V., could have been aware of the possibility of prosecution by this Tribunal for contempt of court. Judge Lettieri convincingly argues that NEW T.V. could not have been aware of this, and then the conclusion must be that the Tribunal has no jurisdiction, for an accused must be able to foresee that his behaviour will be judged criminal by a court.

Judge Lettieri extensively criticises the Appeals Chamber's analysis and argumentation in concluding that it could prosecute the legal person, even accusing the Appeals Chamber of citing "misleading" developments (paragraph 47) and of violating the legality principle (paragraph 51). Judge Lettieri considers:
45. In sum, the interpretation of Rule 60 bis is clear: the Rule is not ambiguous. It does not explicitly provide for the prosecution of legal persons. Even if one were to resort to interpretation as to what Rule 60 bis might implicitly mean, I believe that, in accordance with the ordinary meaning to be given to the terms of the Rules in their context and in the light of their object and purpose (as required by Rule 3), an interpretation of "any person who" encompassing legal persons would not sufficiently put on notice a corporate accused that it could incur criminal liability (footnotes omitted).
In his critique of the Appeals Chamber's decision, Judge Lettieri notably argues that in the same line of reasoning, the Tribunal could then prosecute States and international organisations for contempt of court (paragraph 53). He further criticises the Appeals Chamber's motive of effectiveness in concluding that legal persons should be included in its jurisdiction (paragraph 59). 

The discussion here is whether the Judge should indeed blindly follow the jurisprudence set by the Appeals Chamber, or whether he ultimately has to follow his own legal reasoning and instinct in coming to a conclusion in such matter.

We fully agree with the substance of the reasoning of Judge Lettieri (see here and here for our criticism of the Appeals Chamber's decision to allow prosecution of corporate entities), though at the same time acknowledging that in principle, the Judge should have been bound by the Appeals Chamber's decision. Blatantly ignoring jurisprudence of a higher body in the legal hierarchy is not done, to say the very least.

In principle, decisions by a higher legal authority are binding over lower judicial instances. Judge Lettieri discusses this in a separate section of his appeal (paragraph 66 ff.), acknowledging "the general need for consistency, certainty and predictability in the judicial decision-making at this Tribunal". However, Judge Lettieri correctly considers that at this Tribunal the Appeals Chamber's decisions do not create binding precedents. 

It is clear from the wording of Judge Lettieri's decision that he has not come to this conclusion lightly, but that his sense of justice required him to do this. He could have easily followed the Appeals Chamber decision, and no one could have criticised him for doing that, but instead, he decided to go against the flow and follow his own conscience. It was an unexpected and unconventional step to take, but a courageous one nonetheless.

The Appeals Chamber will undoubtedly again reverse this legal reasoning by Judge Lettieri. However, the fact that this Judge reiterated his position in this second contempt decision, combined with the fact that the Appeals Chamber decision was only decision by majority (Judge Akoum dissented), gives force to the argument that this Tribunal should not prosecute legal entities, and it may very well have an effect on this decision forming a precedent for future tribunals and courts trying to build on this for establishing jurisdiction over legal entities.

Witnesses testify about the jammers in Hariri's motorcade at the Lebanon Tribunal

In the week preceding 20-23 October 2014 (see here, here and here) several Prosecution witnesses testified about jammers in the motorcade, blocking transmissions by cell phones by emitting signals that block electronic devices that may be used to set off bombs. And again on 12 December another witness testified about the jamming systems.

Three of the cars of the former Prime Minister's motorcade had jammers installed. The witnesses all testify that at the beginning of each trip they made with Mr. Hariri,  they would turn on the jammers and verify whether they were operational. If their cell phones or car radios were still operational, the jammer would not have been properly turned on.

The Prosecution's case seems to be that, given that all cars in the convoy contained such jamming devices, the bomb killing the former Prime Minister could not have been set off by a remote electronic device. The defence has cast doubt on this theory by revealing evidence from some of the Prosecution witnesses that at least one of the jammers was not functioning properly, thus allowing for an alternative assassination theory.

The week of 20-23 October saw two further witnesses testify about the technology of electronic countermeasures.

On 20th and 21st October, witness PRH507 testified under protective measures. This person has been working in the field of electronic countermeasures, more specifically, jammers and he delivered the jamming systems for Mr. Hariri's convoy. He explains that a jammer works within a specified band of frequencies within which it distributes signals that prevent receivers from communicating with the transmitters that belong to them. The transmitters cannot reach the receivers anymore, because the signal is being blocked.

Witness PRH507 inspected the jammers in three of the vehicles in January 2005, one month before the assassination, and they were functioning properly at that time. He further speaks about the impact of weather conditions on the functioning of the systems. The witness is also asked about the possibility of someone having used a satellite telephone to set off the bomb; the witness explains that topographically, Beirut is a complicated city, and using a satellite telephone for such purpose would be difficult.

After the explosion, the jammers were examined at the Beirut police headquarters; all of the switches were in "on" position (though one was completely destroyed). Also the jammer in the fifth convoy vehicle was switched on. However, the antenna cables were violently torn out of the plugs, and the witness indicates that this is strange. It is impossible to know whether they had been working at the time of the explosion.

At the end of the first day of his testimony, cross-examination of this witness commenced, and continued into the next day. The witness was presented three different possibilities regarding the setting off of the bomb, and asked to comment upon those. The first concerns the theory of a suicide bomber who receives a call, and he can see the convoy and then triggers the detonation. In the second theory there is no suicide bomber, but a timer that receives a call from a transmitter via a relay post. The call is logged before the jammers turn up, and a few seconds later the bomb goes off. The witness says these two theories are feasible. The third theory, however, he does not find feasible. In this theory, a phone connected to a transmitter is hanged up by a person, and that hanging up triggers the bomb to go off. The witness indicates that the act of hanging up on the part of the transmitter becomes more unlikely the closer the convoy gets to the recipient. The witness says that he has never seen a device that triggers the detonation of a bomb through the mere act of hanging up, though he concedes such device may exist.

The witness then testifies about the second car in the convoy, and how they found that several of the cables had been professionally deinstalled, while others had been ripped out by sheer brute force, and the witness adds that "[i]t's difficult to imagine that it could have been caused by the explosion". He also tells the court that the control light of the jammers would have still been on in the second convoy car, in spite of them not being operational given that the linking equipment to the antennae was disassembled or cut, though they would control the device by checking their mobile phones which would have warned them of the mechanical problem.

The witness is confronted with a statement from another witness who worked close to the place of the assassination. The latter witness testifies that she was watching television when the convoy of Mr. Hariri passed by. Normally, the jammers would affect her television, but on this particular day, the television was not affected. Witness PRH507 indicated in response that normally, one would conclude from this that the jammers were switched off.

The subsequent Prosecution witness PRH256, testifying on 22 and shortly 23 October, was one of the drivers for the Hariri family. Normally he would drive the former Prime Minister around in Lebanon, but on occasion they would travel abroad. The witness was in charge of activating the jammers in his vehicle, and they were constantly turned on. On the particular day, 14 February 2005, the witness drove the ambulance that followed Mr. Hariri's convoy. During the route, the radio was turned on, though it was interrupted once or twice. Normally, he would drive at a distance behind the other vehicles. In case of an explosion, the ambulance and people driving it must be safe. He is asked extensively about the distance of his vehicle to the convoy itself, but the witness states he no longer remembers this precisely, though stresses it would be no more than 15 metres. However, in a previous statement, the witness had indicated that when driving 50 metres away from the convoy, they would be able to listen to the radio.

In a previous statement to the UN investigation commission, the witness had indicated he thought the convoy had been followed by a suspicious car, an Opel Senator car, though he didn't consider it a threat at the time.

On 12 December, Mr. Diab testified by video-link from the office in Beirut about jammers in Mr. Hariri's motorcade. The witness worked for the Hariri family as an electronic technician, working specifically on the jamming system in the cars of the motorcade. Mr. Diab was in charge of the security equipment an systems, and, besides his colleague witness PRH507 (mentioned above), he was the only person who was allowed to touch  the jamming devices.

Mr. Diab, his colleague witness PRH507, Mr. Hariri himself and Mr Yahya El-Arab's head of security knew their specifications. Two days prior to the attack, on 12 February 2005, the systems were checked by the bodyguards, and Mr. Diab testifies that it functioned properly, for if it hadn't, the bodyguards would have informed him. The witness further indicates that even if one of the jamming systems was turned off, the other two would still work.  The jammers sent strong signals in forward directions, and weaker signals behind. The last car in the convoy was the ambulance, as indeed testified by many other witnesses before. The witness testifies that it would have been difficult to tamper with the jamming system. Mr. Diab further testified that the cars in the convoy could use radios amongst themselves, although that depended where they were. 

Oct 24, 2014

Witness at Lebanon Tribunal describes the assassination: "And I saw hell"

On 16 October the next Prosecution witness was also a surviver from the convoy of Mr. Hariri that was attacked on 14 February 2005 and killed former Lebanese Prime Minister Mr. Rafik Hariri and 21 others.  Like the previous testimony, Mr. Amer Chehadeh was a security guard for Mr. Hariri and had been working for the Hariri family since 1985. When Mr. Hariri became Prime Minister the witness became a close protection officer for him until the time of his assassination. This witness also traveled with Mr. Hariri throughout Lebanon and abroad.

On the day of the assassination, there was only one car of the Internal Security Forces (ISF) in Mr. Hariri's convoy, that was the lead vehicle. When Mr. Hariri was still Prime Minister, he had much more security than afterwards. At the time of the assassination, there were only some 35 to 40 ISF members assigned to his protection, whilst during his premiership there were some 400 protecting him.

[Screenshot of Mr. Amer Chehadeh.]

Normally, Mr. Chehadeh did not drive in the convoy, but would only do so when the team was not complete.

In the weeks leading up to the bomb attack, Mr. Abou-Tareq, the head of security, had given instructions to the security personnel to remain alert, though he testifies that they never felt any danger or threat; they never expected what happened, they never thought of that. They sometimes used a decoy technique, where they would create a second convoy, sent to act as a decoy.

In each car of the convoy, it would be the person in charge of the car who was responsible for the turning on and off of the jamming device (see yesterday's blog for Witness 76 on jamming devices). To check whether the device worked, they would turn the radio on: if the radio would no longer be operational, the device would work. Even television sets in the nearby areas would stop working when the jammers were turned on. They discuss one of Mr. Chehadeh's colleagues who was absent on 14 February 2005, the day of the assassination. That person will also be testifying in court under the pseudonym PRH247. This person still works for the Hariri family.

Mr. Chehadeh further testifies about that day, that he did not notice anything that caused him concern on that day and when reaching the St. Georges Hotel; he saw nothing out of the ordinary. This witness remembers the explosion itself, and he testifies:
"As far as I remember, I heard a loud noise and the vehicle flew. It was no longer on the ground and then it hit the ground very hard. I asked the person next to me: Are you okay? He said: Yes. I went out of the car and looked to my back and I saw hell. It was fire everywhere, smoke, and I understood that it was an explosion."
In cross-examination, the witness is asked about the vehicles of Mr. Hariri's convoy, and who would have access to them overnight. This would be virtually anyone within the residence; there were no locked doors but CCTV cameras.

Regarding the jammers, the witness testifies that they would normally check whether they were working immediately after switching them on; they would not check them again whilst driving.

The witness testifies about an ambulance that was at quite a close distance behind the convoy. In an earlier statement (a public document, but unfortunately not available on the Court's website) the witness had indicated that he had heard that the radio was on in the ambulance. Given that the effective range of the jammers was approximately hundred meters, and the ambulance was much closer to the convoy than that, the logical conclusion would be that something was wrong with the jammers.

When they arrived at the St. Georges Hotel on the particular day, the witness had not seen anything out of the ordinary; he did not see any truck or van parked outside the hotel. Double-parked vehicles were a very normal sight in Lebanon, but he saw nothing unusual. This witness finished his testimony within the day, and the subsequent witness, Mr. Dia, was sitting in the same convoy car as Mr. Chehadeh on the day of the assassination.

Oct 23, 2014

Witness 76: Survivor of the convoy

In the week of 14 to 17 October 2014, the Special Tribunal for Lebanon saw three Prosecution witnesses testify about their experiences as victims of the attack on former Prime Minister Rafik Hariri's convoy on 14 February 2005.

The first witness testified on 14 and 15 October under protective measures and is indicated by the pseudonym PRH076, or in short "Witness 76". His identity and voice were obscured during his testimony in court.

[Screenshot of witness PRH076 testifying with protective measures.]

Witness 76 had been employed by Mr. Hariri since 1995 and from 2000 onwards had been his close protection officer.

In his testimony, Witness 76 explains the protection of Rafik Hariri, who at the time that he was Prime Minister was usually guarded by his personal body guards as well as officers from the Internal Security Forces (ISF). He normally drove an armoured car that provided protection against light bombs and bullets. The other cars in such convoy were not armoured. The witness testifies that the cars in the convoy were fitted with jammers, except for Mr. Hariri's vehicle. These devices would jam any remotely detonated explosives. Also on the 14th of February 2005, these jammers had been turned on. When the explosion occurred, the witness had lost his consciousness and when he awoke he was in the hospital; an hour after the explosion he realised that Mr. Hariri had been assassinated.

The witness testifies about meetings Mr. Hariri had had with Syrian President Bashar Al-Assad in Syria. He mentions one particular trip to Syria, when Mr. Hariri met the Syrian President. Mr Hariri returned from that meeting and he was very upset. According to the witness, they had discussed the extension of Mr. Hariri's presidential term; this was between 2004 and 2005. The witness describes that the bodyguards were warned about the threat posed by Hezbollah. Prior to the assassination, there had been an unspecified security threat that they had been informed of.

Witness 76 describes the details of the convoy on the day of the assassination up until the explosion took place. The witness also testifies about a threat he received some two years after the assassination, when he received a phone call and a person told him that "[i]f you do not change what you said to the Tribunal, you are going to follow your colleagues who died before you". The witness, however, does not seem too concerned about it when he tells the court that "if someone really wanted to hurt me, they would have done so after the first phone call that I've received".  The witness informs the court that all information relating to his testimony had been broadcast by some Lebanese television stations, and that all that information had been accessible to the public.

On the second day of his testimony in court, Witness 76 was cross-examined by defence counsel Mr. Edwards, representing the interests of defendant Badreddine. He confronted Witness 76 with evidence that not all the jammers in all the cars functioned properly on the day in question. A witness testifying in court next week would make such declaration in court, therewith undermining this witness's statement that all the jammers were functioning properly. The witness was also confronted with Mr. Wissam Al-Hasan, Mr. Hariri's chief of protocol who was absent at the day of the assassination, which arouse suspicion at a later stage, and this obviously forms an interesting theory for defence counsel representing the interests of the five absent accused. 

Oct 18, 2014

Another survivor from Mr. Hariri's convoy: Mr. Dia

The subsequent witness on 16 and 17 October was Mr. Mohammed Jamal Dia, another survivor from Mr. Hariri's convoy that was attacked on 14 February 2005, and he was sitting in the same car as the previous witness, Mr. Chehadeh (see here for our blog post on his testimony). The witness was the person in charge in that particular car at that day and he was specifically assigned to be on the lookout. He states he saw nothing out of the ordinary on that day.

Mr. Dia was a close protection officer for Mr. Hariri, having worked for the Hariri family since 1984. He would travel abroad with Mr. Hariri when required to do so. The witness describes the motorcade of Mr. Hariri, including the ISF (Internal Security Forces) jeep in front, the Mercedes that Mr. Hariri drove in, the ambulance at the back of the convoy and several other cars. This witness is also questioned about the jamming devices. When he was Prime Minister, the convoy had been much more extensive than afterwards. Also, when he was still Prime Minister, usually ahead of the convoy there would be an ISF reconnaissance drive to explore the area; this no longer happened when Mr. Hariri was no longer Prime Minister.

Regarding the jammers, the witness recalls on the 14th of February 2005, the day of the explosion, that the son of Mr. Hariri had tried to call him, but had failed to reach him due to the active jamming devices. This evidence is based on hearsay, the witness heard this four or five hours later, when he was at Quraitem Palace. 

On the second day of his testimony, the witness is asked about his (unnamed) colleague who was unexpectedly absent from work on 14 February 2005, due to migraine, from which he sometimes suffered. That day, Mr. Dia was sitting in the car next to the previous witness, Mr. Chehadeh, who was driving the vehicle. After the explosion, Mr. Dia lost his consciousness for a few minutes. After he regained his consciousness, he stepped out of the car. He saw a person lying on the ground, and he was able to identify that person as Mr. Hariri; he could identify him by his wedding ring, and he does not remember seeing his face, and it was clear that he had passed away. 

After the incident, the witness stayed at home for three months to rest. He is cross-examined by defence counsel Mr. Edwards for defendant Mr. Badreddine. Mr. Edwards asks the witness whether there was a debriefing after the attack. The witness denies this, but seems to have suggested something different in an earlier statement Mr. Dia made to the UNIIIC (UN commission investigating the assassination prior to the existence of the STL). In his earlier statement to the UNIIIC, the witness had mentioned authorization documents issued by Rustom Ghazaleh, the head of the Syrian security in Lebanon. When confronted with that information, the witness no longer recalls this information. 

The witness is then shown a security document, a laissez-passer, issued by Syria to Lebanese security personnel, belonging to (protected) witness PRH247. The witness confirms that such documents are very common in Lebanon. About the value of such cards, he states that they have no value, but some people like to have them, others don't.  The witness does not recall ever having been offered such a document, and he never obtained one. 

Oct 16, 2014

Some further thoughts on the STL Appeals Chamber decision on criminal liability for legal entities

In a ruling entitled ‘Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings’ (‘Decision’), the Appeals Chamber of the Special Tribunal for Lebanon ruled that the defendant NEW TV S.A.L., a Lebanese media corporation, can be prosecuted for contempt of court in relation to the publication of names of persons alleged to be witnesses. Together with the media corporation’s Deputy Head of News and Political Programmes Manager, Ms. Karma Al Khayat, NEW TV S.A.L. is charged with knowing and willful interference with the administration of justice. In an earlier blog, we discussed the merits of this case.

In a guest blog on the International Justice Monitor website, we concluded that the legal analysis underlying this decision is quite unconvincing, however, the outcome is groundbreaking in that it lays the ground for criminal responsibility for corporate entities under international law. Never before has an international criminal tribunal held that it could prosecute non-natural persons. This blog post does not attempt to provide a detailed analysis of the Decision, but rather mentions a few aspects thereof that are food for discussion. 

According to Rule 60bis of the Tribunal’s Rules of Procedure and Evidence any person can be held in contempt of court if they, inter alia, “disclose[] information relating to proceedings in knowing violation of an order of a Judge or Chamber”. The question is thus whether “person” includes legal persons, or only refers to natural persons. There are various methods of interpretation of legal clauses, and normally, one first looks at the actual text of the provision to find its ordinary meaning. In looking at all three official languages of the Tribunal—English, Arabic and French—the Appeals Chamber concludes in paragraph 36 that “the ordinary definition of the term ‘person’ in a legal context can include a natural human being or a legal entity (such as a corporation) that is recognized by law as the subject of rights and duties”. It may have been preferable for the Chamber to stop its legal reasoning after arriving at that conclusion. The Decision then goes on to attempt to find a basis in international law for the conclusion that legal persons can be held criminally liable, but from then on, the logic of argumentation in the Decision decreases.

The Decision notes that “there is an emerging shared international understanding on the need to address corporate responsibility” (para. 46). It firstly notes in that respect that international human rights standards and the positive obligations arising therein are equally applicable to legal entities. The legal basis the Decision provides for this important conclusion is, to put it mildly, very thin.
It first cites General Comment 31 of the UN Human Rights Committee, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev. lIAdd.13, 29 March 2004, para. 8:

“the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities".

First, a “General Comment” is not binding international law. Second, the wording of the General Comment does not suggest that international human rights standards are binding on legal entities, it merely indicates that States Parties can only discharge of their duties if individuals are protected against legal entities. The second source cited in this respect is the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. First, as the title suggests, these are mere ‘principles’, and again not binding international law. Secondly, Principle 25 is quoted, which states that "[a]ll States must take necessary measures to ensure that non-State actors which they are in a position to regulate, as set out in Principle 25, such as private individuals and organisations, and transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights". It merely says that states must take action, no more than that.

The Decision continues to argue that a report by the Human Rights Committee on the issue of human rights and transnational corporations and other business enterprises and “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” represent a “concrete movement on an international level backed by the United Nations for, inter alia, corporate accountability” (para. 46), which really means not much in a legal context.

In the subsequent sentence, the Chamber indeed acknowledges the non-binding nature of the sources cited. It seems to conclude nonetheless that criminal prosecutions are possible, in an impossibly formulated sentence:
“Although we are wary that such instruments are non-binding, in light of the fact that corporations have been considered subjects of international law, the possibility of proceeding against a corporation through criminal prosecution cannot discarded but rather criminal regimes are regarded as an available remedy.” [footnote omitted]
It then comes to the convenient conclusion that “[t]he Appeals Chamber considers these factors to be evidence of an emerging international consensus regarding what is expected in business activity, where legal persons feature prominently, in relation to the respect of human rights”. It states there is an emerging international consensus, but then fails to formulate what this consensus is about.

Was the Chamber here merely lazy in only referring to non-binding principles and comments by UN bodies, or did it attempt to find stronger evidence for its far-stretching conclusion, but was it non-existent? The Chamber readily admits that there is no norm of customary international law that provides for criminal liability for corporations (see para. 50), it indicates that it does not have to be constrained by that fact (para. 59), given its inherent jurisdiction over contempt of court.

In conclusion, it can be said that the decision is indeed groundbreaking in that, for the first time in international criminal law, a tribunal has held that it can prosecute a legal person. However, whilst the development itself may be praiseworthy, the legal foundations of the Decision are questionable.

And whilst it may be praiseworthy to hold all actors that may be involved in human rights violations accountable, we have to be mindful that this conclusion, based on such weak arguments, violates the principle of in dubio pro reo, as indeed indicated by Judge Akoum in his Dissenting Opinion. The Chamber’s focus on holding corporations accountable for their behavior should not supersede the more important principle that no one should be prosecuted without a prior basis in law, and that any doubt as to the interpretation of such criminal provision should be explained in favour of the accused person, in this case the legal person. Paradoxically, the Chamber by attempting to secure the protection of human rights at large, failed to protect the human rights of one of its accused that it was supposed to protect. 

There are many more aspects of this Decision that deserve a closer analysis than the few thoughts discussed here, and we are eagerly awaiting discussion by other international lawyers and interested persons!

Oct 15, 2014

Testimony by Dr. Murray on the chemical analysis of explosives used in the attack

On 29 and 30 September, Dr. Gerard Murray came to the stand to testify about specific tests as part of the wider investigation in cooperation with Dr. Van der Craats, the forensic scientist from the Dutch Forensic Institute (NFI), who testified several weeks prior to Dr. Murray's testimony (see here).

[Screenshot of witness Dr. Gerard Murray]

Dr. Murray is a British specialist in analytical chemistry. He has dealt with many explosions during his 40-year long career in the UK, and was invited by the Dutch investigators' team to join their investigation. Together with Dr. Van der Craats, the witness examined which of the items recovered from the crime scene were suitable to examine for explosives residues. The analysis of the swabs taken by the witness was done in a laboratory in Northern Ireland. The witness visited the crime scene in order to observe the damage that had been caused. The witness was not involved in the actual collecting of the evidence, but only the examination thereof. 

The testing in the laboratory consisted of so-called high-pressure liquid chromatography, consisting of two series of tests, the first series is an attempt to identify if any materials of significance are present, the second series to confirm the presence or absence of such materials. The tests look for the most commonly experienced organic explosive materials in Northern Ireland (inorganic residues are so common in the general environment that there is no point in looking for them). 

The witness describes the traces of explosives they discovered at the crime scene items. On several of the swabs, witness found traces of the explosive RDX, a very powerful high explosive, and a component part of the plasticised explosive Semtex. It is not possible to tell whether the explosive Semtex was used, only that an RDX-based explosive was used. The witness also explains the possibility of the Prosecution's theory that a suicide bomber drove a Mitsubishi Canter van to the location to detonate the bomb there. The most likely scenario being that the Mitsubishi van contained an improvised explosive devise in the back of the vehicle. A less likely scenario would be that of a remotely controlled device. The witness informs the court that in his view it is relatively easy to acquire the components to make RDX. The witness believes the explosive used was obtained from Libya, but this is information he received through conversations with police officers and through the media.

In cross-examination, the witness is asked about possible cross-contamination of the explosive residue. He indeed indicates that such cross-examination can take place. He is specifically asked whether the residue found at the crime scene could have been the result of cross-contamination, but the witness was not present when the swabs with the residue were taken from the crime scene, so he states that "all I can say, Your Honour, is that RDX was detected on those swabs. I can't elaborate on how it got to be there." 

In cross-examination, counsel for Mr. Badreddine Mr. Edwards, asks the witness about precautions to protect the evidence, normally taken at a crime scene, obviously with regard to the lack of precautions taken at the crime scene in Beirut and the ensuing lack of credibility of the evidence coming from that crime site, e.g. the exhibits swabbed were only taken some seven months after the explosion. He recalls the items were laid out in the open in a hotel room in Beirut, and admits that items may have been cross-contaminated, which may be an important element for the defence.

Appeals Chamber of the STL decides it can prosecute legal persons for contempt

For our analysis of the 2 October 2014 Appeals Chamber decision on the jurisdiction over the media corporation, please see our guest blog on the website of the International Justice Monitor.

Witness PRH155: Spanish police inspector

Witness PRH155, testifying under that pseudonym, is a Spanish police inspector working on anti-terrorism cases. He has extensive experience in relation to investigating car bombs: his first voluntary posting was in the north of Spain, were the ETA terrorist movement was very active.

Witness PRH155 was in charge of the Spanish 9-member investigation team that went to Beirut in 2006, investigating the bombing of former Prime Minister Rafiq Hariri's motorcade; their final report is dated 14 July 2006. The witness and his team conducted a final investigation of the crime scene, though this was some fifteen months after the explosion had taken place. The witness concedes that it is not an ideal situation to investigate a crime scene some fifteen months after the crime. The site had already been manipulated and adjusted by previous investigation teams, but they specifically searched for areas that may have been overlooked or left out by previous investigators.

 The witness indicates that in spite of his extensive experience in Spain, he had never been confronted with an investigation like the one in Beirut, where there were so many items found. The Spanish investigation team found several biological and other items; nine thereof were identified as coming from the 'unknown man' (we blogged earlier about this 'unknown man', see here). One of the judges asked the witness how in his view it was possible that they still managed to find new pieces of evidence some fifteen months after the attack, after so many investigative teams had already examined the area, and the witness attempts to answer this by saying that perhaps immediately subsequent the attack people were not sufficiently calm to proceed with caution to examine a crime scene like that.

The witness further testified to certain shortcomings in the preservation of the crime scene, including the heavy machinery used, the piling up of rubble, and the fact that they were the last team on the scene after many others had already investigated the area.

In his testimony, this witness also testifies about the shortage of time given to do the investigation. He had attempted to convince the UN to give their team more time, but the UN explained that the time period was not negotiable.

We would like to thank our intern, Ms. Eleonore Kahn, for her analysis of witness PRH155's testimony for this blog post.

Oct 8, 2014

Prosecution witness testifies about DNA identification of bone tissue

On 30th September and 1st of October, Dr. Reza Gerretsen testified for the Prosecution, another witness from the Dutch Forensic Institute (NFI). Dr. Gerretsen is a forensic anthropologist who, some seven years after the 2005 bomb explosion, made a selection of human bone tissue for DNA analysis of materials that had not previously rendered a clear DNA profile. This witness had prepared expert reports with his NFI colleague Dr. Kokshoorn. As a forensic anthropologist, his work focuses on the forensic identification of bones, teeth and areas of the body surrounding those tissues. He examined specimen of body parts, trying to identify what they were, whether they were human bones or not. He would then determine whether it contained sufficient DNA for analysis and determination and send it on to a DNA specialist for profiling.

[screnshot of witness Dr. Gerretsen]

The difficulty, as with so many other expert witnesses, is here that the underlying expert reports are not publicly available, though they are not confidential and openly discussed in the courtroom. This makes it especially difficult to understand the proceedings, specifically where they concern the details of the experts' reports.

In responding to questions by Prosecution counsel Mr. Milne, Dr. Gerretsen testified about the long process of DNA identification of bone and soft tissue. With respect to items that could not have previously been profiled, six clear DNA profiles were identified by this method. One of the DNA profiles belonged to a person who is still alive, but was injured during the attack.

The witness testifies on the possible deterioration of human bone tissue through storage, freezing and defrosting, the temperature it has been stored in, the acidity, the presence of bacteria

Part of defence counsel's cross-examination on 1st October evolves around the administrative aspects of the DNA profiling examination. The witness testifies that the budget for the NFI's examination was limited, and that certain pieces of tissue may have led to identification, but that it had been decided by the Office of the Prosecutor not to have them submitted for DNA analysis, even though they may have had fruitful results.

Oct 6, 2014

Two members of the Dutch forensic team that investigated the crime scene in August 2005: Anick van de Craats and Jan Kuitert

Dr Anick van de Craats (who testified on 28 August and 1 September 2014) works at the Netherlands Forensic Institute (NFI). In 2005 she was working as a forensic explosives scientists at the NFI and she was part of the team that was sent to investigate the crime scene in Beirut following a request of UNIIIC to the Dutch government. The team was tasked to find physical evidence and reconstruct the improvised explosive device (IED) which caused the explosion. One of the tasks of Dr van de Craats was to write the report on behalf of the Dutch forensic team. This team was further composed of six colleagues with forensic police experience.

The team was in Beirut from 11 August until 25 September 2005, that is some six months after the explosion occurred. They checked all vehicles within a specifically defined crime zone, searching for objects outside and underneath the cars. After the cars were searched, they were removed from the crime scene. During the first three weeks the focus was on searching the crime scene; after that the team analysed and sorted all vehicle parts that were collected from the crime scene. They were assisted by other experts in recognising the vehicle parts, including Prosecution witness Mr. Geyer (click here for a summary of his evidence). Dr van de Craats took swabs from some of the items which may have had explosive residue upon them. These swabs were taken in consultation with Dr Murray, another Prosecution witness, and subsequently sent to Northern Ireland for Dr Murray to analyse, whilst separate samples were also examined by the NFI to compare the results.

Dr van de Craats explains that it is important to look at the overall damage at the crime scene, including the damage to the buildings and vehicles, to establish the type of explosion that occurred. The damage to the buildings and vehicles showed that the explosion occurred because of a detonation and had an enormous high velocity, which caused the complete destruction of all material in the near vicinity. This also explains why there is a crater. A detonation also can cause ceilings or walls to be moved, and this type of damage was found at the St. George and Byblos hotels. Further, the horizontal perforations of the vehicles show that there had been a horizontal blast force. Based on this and other characteristics of the crime scene (bent columns at the St. Georges Hotel and a slided wall at the Byblos Hotel) Dr van de Craats concludes that it must have been an explosion above the ground. The movement of asphalt is not conclusive for either an underground or above-ground explosion.

The team also had the opportunity to examine the convoy vehicles, which were retained at the Helou barracks, a guarded police compound; although these vehicles were covered by blue plastic they showed sever rust. The damage to these cars was used to determine their position to the explosion centre. The team compared the remains of the three most damaged vehicles: the black Mercedes 404, the Red Ford and the Mitsubishi Canter. They concluded that the Mitsubishi Canter was the most damaged vehicle, with only small parts being recovered, therefore supporting the hypothesis that this was the bomb-carrying vehicle. Further, the Red Ford could not have contained the IED because the damage to the carcass came from the rear left and thus from the outside the vehicle.

During cross-examination, Mr. Edwards (representing the interests of the accused Badreddine) is confronting the witness with the differences between the position of vehicles at the maps of the crime scene drawn by the Dutch team, and the maps of the Lebanese police (ISF). According to a comparison presented by Mr. Edwards, the difference between the maps show addition and removal of vehicles. Dr van de Craats explains that it is difficult to state if these are real differences, given a lack of a common reference points, and if so, what would be the reason for those differences. Also, she states that these differences do not affect the conclusions of her report. Dr van de Craats further explains that at the time of the investigations they already noted the differences, but “we talked to the UNIIIC investigators and we all accepted the fact that we could only start our crime scene search six months after the explosion occurred, and our task was to record the crime scene at that moment as best as we could.” The Prosecution does not dispute that the convoy vehicles and at least one other vehicle were moved; further, it takes the view that the variations in the maps are “simply map-drawer's perspectives”.

The Dutch forensic team further included a number of police officers with specific crime scene experience, one of them being Jan Kuitert, a (now retired) crime scene investigator from the police with experience in explosives. Jan Kuitert gave evidence on 11 September 2014. He explains that each Dutch team member was assigned 4-5 Lebanese police investigators, and they systematically searched the crime scene; the team inspected and removed over 100 vehicles, and located and photographed numerous car parts.

[screenshot of witness Jan Kuitert]

The overall conclusions of the Dutch report "Forensic investigation of the explosion which occurred on the 14th of February, 2005, in Beirut, Lebanon." of 30 September 2005 are as follows:

(i) Detonation of high explosive “The damage inflicted on the buildings, vehicles, surrounding lamp-posts and other objects in the vicinity of the explosion site demonstrate that a large amount of high explosives was activated and detonated to the left side in front of the main entrance of the St. Georges Hotel on the Rue Minet el Hos' n. This detonation set fire to many vehicles within a distance of 20 to 30 metres of the explosion centre. From the damage pattern it was clear that it was one explosion of a charge of high explosive.”
(ii) The Mitsubishi Canter as bomb vehicle “Regarding the physical evidence recovered, the human remains identified by Dr Ayoub, the HSBC security video, and the damage on vehicles parked on the road, the most likely scenario is that a Mitsubishi Canter van containing the improvised explosive device (IED) was activated when the Hariri convoy of six vehicles drove by. The engine number of this Mitsubishi Canter was found among the debris on the crime scene. This number led to the vehicle registration number and the production date of Mitsubishi Canter van which was manufactured in Japan.
No remains of the constituents of the IED have been found among the debris, apart from the vehicle parts of the Mitsubishi Canter in which the IED was most probably placed. Because of the size of the explosion and the exploded charge this is not unexpected. A few damaged parts of circuit boards have been recovered which may be related to an activation mechanism. However, these circuit boards should first be examined by electronics experts, who might give an indication of the origin and application of these boards.”
(iii) Location of convoy vehicles and bomb vehicle “When the explosive device was activated, the Mitsubishi Canter was parked almost in line with the other parked vehicles along the pavement in front of the St. Georges Hotel with the front of the vehicle facing west. It was not parked fully in line judging from the direction of the explosion force acted on the red Ford vehicle which was most likely parked directly in front of the Mitsubishi. This red Ford vehicle was most severely damaged from the left rear side which means that the Mitsubishi could not have been parked fully in line with the red Ford vehicle.
Of the six convoy vehicles, the black Mercedes numbered 404 was closest to the explosion centre when the IED detonated. The direction of the explosive force on this vehicle was from the right side, meaning it was most likely located alongside the Mitsubishi. From the damage patterns it can be stated that the vehicles 401, 402, and 403, the latter with Hariri and Fuleihan as occupants, had just passed by the Mitsubishi when the explosion occurred. Vehicles 405 and 406 have been damaged most severely at the right front side, meaning that these vehicles had not yet driven by the Mitsubishi at the moment of the detonation.“
(iv) Activation of IED “Regarding the physical evidence presented in this report and the fact that small human remains of an up-to-now unidentified person have been found and no large body parts, such as legs, feet, or underarms, the most likely scenario for the activation of the IED is a suicide bomber. Another only less likely possibility is that of a remotely controlled device. However, no residues of such device have been recovered from the crime scene.”

Mr. Kuitert gives a good explanation of the most important caveat to the conclusions of the report because of possible contamination of the crime scene by stating that “when you carry out an investigation half a year after the incident and even if the crime scene has been under surveillance during that time, you can never be sure that the crime scene is as it was shortly after the explosion.”

Sep 19, 2014

Explosive Experts of the Lebanese Police: Mr. Walid Othman, Mr. Mahmoud Khashab, and Mr. Husein Krayem

On 2, 3 and 4 September, Mr. Walid Othman testified for the Prosecution. Mr Othman is an explosive expert within the Explosives Bureau of the Internal Security Forces (ISF) of Lebanon, and since 1986 he has been involved in defusing or dismantling bombs, and visiting crime scenes after an explosion took place. Explosions occured on a daily basis in Lebanon.

On 14 February 2005, within half an hour after the explosion, Mr. Othman and his colleagues were at the crime scene. There was chaos, there were people and mechanical parts spread all over the place. The witness and the three other members of his team went into the crater, which was still hot, and found several pieces belonging to the vehicle in which the bomb had been placed. Various photographs confirm their presence in the crater. As soon as the witness looked at the damages, the crater and the crime scene itself, he thought that this was a car bomb that had exploded; this was based on his previous experience. The pieces of the vehicle were placed in bags and no photographs were taken of the pieces at that time; these pieces were taken to their office. They also took the measurements of the crater.

In the following days the witness and his colleagues collected more car parts at the crime scene, both from inside and outside the crater. The witness and his colleagues did not wear any special clothing or gloves, as they did not have the means and tools to deal with the crime scene as they currently have. They were mostly concerned with preserving the pieces as water started leaking into the crater. They drafted reports of their activities, which included photographs. These reports were sent to the military judge and also included a description of the destruction of buildings and the damage to cars of the convoy of Hariri. Various car parts were shown to mechanical experts at automobile companies and were identified as parts of Mercedes, Audi, Volkswagen and Mitsubishi vehicles. The parts from the crime scene were compared with original car parts. There was also one part that actually contained a Mitsubishi logo. Later on, upon request of international experts, Mr. Othman and his colleagues took four Mitsubishi car parts back to the crime scene. This was in order for the international experts to see the location where those pieces were found.

The following two witnesses, Mr. Mahmoud Khashab and Mr. Husein Krayem are colleagues of Mr. Othman, forming part of the same ISF team that investigated the crime scene. Further, the statement of the fourth member of the team, Mr. Joseph Safi, has been tendered pursuant to Rule 155. These testimonies are very similar in nature, even to the point that one wonders why the Prosecution decided to introduce the evidence of all of them, instead of selecting one or two team members to give evidence.

Mr. Mahmoud Khasab, testifying on 8 and 9 September, has been working as an explosive expert with the ISF since 1984. He gave evidence that after the inspection of the crime scene on 14 February 2005 they went to the military court to inform the government commissioner about the results of their inspection of the crime scene, and they showed him the metallic parts they had located. They received a rogatory letter from the investigative judge on the basis of which further inspections of the crime scene were held. Mr. Khasab further talked about the returning of car parts to the crime scene at the request of UNIIIC. According to Mr. Khasab, they relied on their memories in order to put back the parts at the crime scene (two days after the explosion however, they had already drawn a map with an indication of where the parts were found).

[screenshot of Prosecution witness Mahmoud Khasab]

In cross-examination, Mr. Khasab stated that, given that the convoy of Mr. Hariri was equipped with high-definition jammers, it would have been very difficult to detonate the explosives by remote control. The type of explosives used are classified as military. Like his colleagues, Mr. Khasab excludes the possibility that the explosion occurred underground. The witness further confirmed that he and his colleagues were the first to enter the crater, although there were already a lot of military and fire men present when they arrived. He further confirmed the primitive work methods at that time and the lack of tools to inspect or test the car parts they had found at the crime scene.  Mr. Hussein Krayem, who testified on 9 and 10 September, further clarified that the removal of evidence from the crime scene was not in accordance with their instructions; before 14 February 2005 applicable instruction 151 was never followed.

[screenshot of Prosecution witness Hussein Krayem]

These three witnesses provided the defence with the opportunity to highlight the (small) contradictions between their evidence, for example about the amount of car parts found in the crater, the amount of car parts that were returned to the crime scene (and also how often and when they were returned), and which team members participated in the meeting with the commissioner on the day of the explosion.

Sep 12, 2014

Defence lawyer's call for help rejected by Contempt Judge - STL status conference of 12 September

Judge Lettieri, the Contempt Judge, called the status conference today in the case against Al Akhbar Beirut SAL and Mr Al Amin. Present are, inter alia, Kenneth Scott, amicus curiae prosecutor participates in the hearing through video link and lead counsel for the defendants, Mr. Antonios Abou Kasm.

[screenshot of Mr. Kenneth Scott, amicus curiae prosecutor]

1. Absence of the accused

Judge Lettieri started off by indicating that initially, Mr. Al Amin, wished to represent himself as well as his co-defendant, the media company Akhbar Beirut S.A.L. However, given the behaviour of Mr. Al Amin, Contempt Judge Lettieri decided to request the Defence Office to appoint counsel to Mr. Al Amin and Akhbar Beirut S.A.L. The accused was not present today to participate in the proceedings. The Contempt Judge indicated that the accused continues to have the right to address the Judge on the matter of his representation, but he has to be present in the courtroom to do so.

2. Preliminary matter raised by the defence

Counsel for the accused Mr. Kasm, speaking in Arabic and at times French, indicated that he would have preferred the amicus prosecutor to participate today in the courtroom, instead of through video link from the US. It was the amicus curiae who proposed the date for this conference, after all.  Judge Lettieri responds that for a status conference, this is not necessary, but this is envisaged in the Rules.

[screenshot of counsel for the accused Mr. Abou Kasm]

3. Case management

The amicus prosecutor has submitted a proposal for a timeline for the pre-trial phase. Mr Kasm responds that the defence must be given sufficient time for the preparation of the trial, including the filing of its pre-trial brief. He stressed that at the international level, it is the first time counsel is assigned against the accused's will in a contempt case. In all other cases where counsel have been assigned, the accused had been prosecuted for horrendous international crimes.

The Judge will give his decision on the timelines after he will have given his decision on jurisdiction.

4. Request by counsel for the defence rejected by the Contempt Judge

At the end of the hearing, counsel for the accused Mr Kasm called on the Judge for assistance. He is, understandably, in a very difficult position, given that he is imposed on the accused, and the accused do not want to have counsel representing them. Mr Kasm states: "I do all I can to fulfill my professional responsibilities, but I would like to call on you".

In a previous ruling, the Contempt Judge imposed the duty on defence counsel for the accused to disclose the evidence to the latter, while stressing at the same time "that counsel is reminded of their obligation to protect the confidentiality of the evidence and the proceedings".

In quite an emotive statement, counsel Kasm says that he is not there simply to serve the accused persons with documents only. He asks that the responsibility of disclosure to the accused be not only put on his shoulders, but also on the prosecutor and the Registrar, adding that the current proceedings are coming quite close to an in absentia trial. He adds that there is a risk that counsel, who bears the sole responsibility of sharing evidence with the accused, is then faced with a non-cooperative accused publicising such information illegally.

The Contempt Judge chose not to address the question, and simply responded: "You have chosen to be a lawyer, and you have accepted that responsibility!", thereby leaving counsel for the defence in a very difficult position. A position that he has knowingly taken upon himself, but nonetheless a very difficult situation that any lawyer in his situation would have problems with.

Aug 26, 2014

Resumption of the STL trial with a bomb explosion expert

On 26 August the Lebanon Tribunal resumed its proceedings after the summer recess had come to an end. The Prosecution continued with the presentation of its evidence by presenting its next witness in line, Dr. Konrad Schlatter. Dr. Schlatter was one of a group of Swiss forensic experts, himself being a bomb explosives expert. He attended crime site in Beirut in March 2005 at the request of Mr. Fitzgerald, head of the UN Fact Finding Mission to Lebanon.

[Screenshot of Dr. Schlatter at the STL.]

The witness explains that the questions asked by the UN Fact Finding Mission were limited; they were asked to say something about what kind of explosives were used, how much of it, and about the trigger mechanism of the device. Given the limited amount of time they were given, there was no possibility to do a wider research than the parameters given by the Fact Finding Mission.

Dr. Schlatter states that the crime scene was "significantly altered" when they arrived there in March of 2005. The witness and his co-experts were shown videos and pictures which showed the first few hours after the explosion. There were a lot of emergency personnel and other persons on the spot, and as a result of that, evidence had been moved. When they arrived at the scene, the convoy vehicles were no longer there. And in the course of their work, Lebanese officials showed them pieces of evidence which had clearly been removed from the scene of the crime before they had arrived. Normally, at a crime scene it is indicated where people are not allowed to walk; that had clearly not been the case here.

The witness is shown several photographs of the crater and its surroundings.

[Screenshot of the crime scene.]

The witness testifies about the size of the bomb crater; indicating that the diameter crater was approximately 12.5 meters, and some 2.2 meters deep. Also, the vehicles from the convoy were taken away from the scene, thereby contaminating the evidence. The witness is further asked by Judge Akoum about the destruction of evidence and how that could have been avoided. The witness indicates that simple precautions could have been taken, such as covering the crime scene, so as to protect it from rain and wind. But more importantly, the evidence should have been collected at a very early stage so as to avoid its destruction or altering.

The witness describes in great detail his report and the photographs annexed to it, and in response to questions posed by the Prosecution and judges today, about the effect of the explosion on the buildings surrounding the explosion site.

The witness and the other experts were looking for more metal parts of the vehicle carrying the bomb in the crater. One item they found was a metal part with a Mitsubishi logo on it (see red marking on screenshot below).

[Screenshot of metal part with Mitsubishi logo found on the explosion site.]

Another item was retrieved; the witness also joined the diving team and found more metal parts. They picked up parts from the bottom of the sea near the St. Georges building. Dr. Schlatter also explains why he believes the explosion took place above the ground and that the amount of explosives used was approximately 1,000 kilograms.

In cross-examination, the following day, Dr. Schlatter confirms that the investigations team he formed part of did not have a lot of time for its investigations of the explosion, and the crime scene had been altered, recognising that in the immediate aftermath of an explosion, the saving of lives and removing the dead takes priority over safeguarding the crime scene.

Jul 30, 2014

Expert witness Geyer about identification of vehicle parts

On 16 and 17 July 2014, Prosecution witness Gerhard Geyer came to testify about the identification of Mitsubishi vehicle parts. Mr Geyer has worked for Mitsubishi Motors Germany since 1990. He was asked to investigate the vehicle parts in Beirut, where he traveled to in 2005 and subsequently drafted a report.

First, the Trial Chamber had to decide whether this witness would testify as an expert witness or as a witness-of-fact. The defence for Badreddine, Mr Iain Edwards, called into question this witness's expertise, but the judges decided nonetheless that Mr Geyer qualified as an expert witness under Rule 161 of the Rules of Procedure and Evidence, in that he had some form of specialised knowledge, experience or training.

[screenshot of Mr Geyer at the STL]

In his testimony, and whilst being confronted with several exhibits consisting of car parts, Mr Geyer identified fragments of the vehicle that may have carried the bomb to the place of the assassination of former Prime Minister Rafik Hariri. Those parts were likely to have belonged to a Mitsubishi Canter van, according to Mr Geyer.

Mr Geyer was shown from the CCTV in the tunnel in Beirut through which the van had allegedly traveled in the direction of the location of the assassination (see here for an earlier overview of expert witness Robyn Fraser on the CCTV footage of the lorry through the tunnel). He indicated that it was not possible for him to confirm that the lorry that traveled through the tunnel was indeed a Mitsubishi Canter van.

The testimony of Mr Geyer forms an important aspect of the Prosecution case in tying together the vehicle that they allege carried the bomb to the assassination. The Prosecution alleges that the defendant Ayyash was involved in the purchase of the Mitsubishi Canter van in Tripoli (see article in the Daily Star).